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SAM BIRD, Judge.
Margaret Inge appeals the granting of summary judgment in favor of Scott Walker. She argues that there were questions of fact to be determined and, therefore, Walker should not have been awarded summary judgment. We agree with Inge that there were issues of fact to be determined and that the grant of summary judgment was error. Consequently, we reverse and remand.
The case arises out of an automobile accident that took place on June 15, 1998. Ms. Inge was stopped in the street waiting to make a left turn. Walker was behind her and bumped her rear bumper. They moved their cars and, while waiting for the officer, they talked. According to Walker, they assured each other that there were no personal injuries, only property damage to the bumper of Inge’s vehicle, and Inge agreed to accept Walker’s check for $200 for the damage. A police officer is said to have asked Ms. Inge if the $200 was satisfactory, and she is said to have replied that it was.
On February 22, 1999, Ms. Inge filed a complaint in the Sebastian County Circuit Court alleging that Walker was negligent and that, as a result of his negligence, she sustained serious physical injuries and permanent impairment, resulting in pain and suffering, medical treatment and expenses, and lost income. Ms. Inge asked for a jury trial. Accompanying her complaint were two requests for production, and thirty-two interrogatories. In an amended answer, Walker alleged that the $200 check was an accord and satisfaction, in full and final satisfaction of all claims arising from the accident.
On May 24, 1999, Walker filed a motion for summary judgment, relying on the pleadings, his response to the interrogatories, his affidavit, and the canceled $200 check. In his brief to the trial court in support of his motion for summary judgment, Walker claimed that Ms. Inge actually asked for the check to cover her damages. Walker contended in his motion that by cashing the check, Ms. Inge released him from liability for any further damages. Ms. Inge did not respond to the motion for summary judgment, no hearing was held, and on June 18, 1999, the appellee’s motion for summary judgment was granted. The order stated:
Rule 12(c) of the Arkansas Rules of Civil Procedure provides, in part: “If a party opposes a motion ... he shall file his response ... within ten (10) days after service...”
As heretofore stated Plaintiff has failed to comply with said rule.
The law is well settled that when a party makes a prima facie showing of entitlement to a summary judgment, the opposing party must meet proof with proof by showing there is a genuine issue as to a material fact. Plaintiff has failed to do so.
Accordingly, Defendant’s Motion for Summary Judgment is granted.
On June 25, 1999, Ms. Inge filed a motion for reconsideration and to vacate the summary judgment, alleging that no hearing was set or held on the motion for summary judgment, and that Walker’s affidavit and answers to interrogatories filed as exhibits to his motion specifically raise the issue of the parties’ intent in giving and receiving the check. In her brief, she pointed out that in exhibit one to the motion for summary judgment Walker stated: “Plaintiff asked Defendant to write her a check for $200 for her bumper.” Ms. Inge contends this raised an issue of fact as to whether the $200 check was in satisfaction of all damages arising from the accident, or just payment for the damage to her bumper. She also raised in her motion for reconsideration the issue of whether summary judgment was proper simply because she failed to respond to the motion within ten days, citing Ark. R. Civ. P. 12(i).
Walker responded to Inge’s motion to vacate and pointed out in his brief that Ark. R. Civ. P. 56 applies to summary judgments and allows a time for affidavits to be filed; Ark. R. Civ. P. 12(i) controls the time a party has to respond to a motion. He argued that granting the motion for summary judgment was appropriate since Inge failed to respond to his motion and “set forth specific facts showing there is a genuine issue for trial.” On July 13, 1999, Inge’s motion to vacate was denied.
Inge makes several arguments on appeal. First, she contends that summary judgment was not appropriate where genuine issues of material fact existed or where reasonable minds could differ as to the interpretation of the facts as shown by the pleadings, even if no formal response to the motion had been filed. We agree.
Arkansas Rule of Civil Procedure 56(e) provides:
When a motion is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added.)
The Arkansas Supreme Court recently reviewed the law in regard to summary judgment in New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999):
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a hght most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
338 Ark. at 45-46, 991 S.W.2d at 553 (quoting Sublett v. Hipps, 330 Ark. 58, 62, 952 S.W.2d 140, 142 (1997), quoting Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 653, 656 (1997))(empha-sis added). Once a moving party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. New Maumelle Harbor, supra. Prima facie evidence is “[e]vidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient.” Black’s Law Dictionary, 1190 (6th. ed 1990) (emphasis added).
In Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999)(quoting Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998)), the supreme court explained further:
The law is well setded that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). Once the moving party has established a prima facie entidement 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.
339 Ark. at 153-54, 3 S.W.3d at 686-87.
Summary judgment is not granted simply because the opposing party fails to respond to the motion for summary judg ment. See Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994), which held:
Summary judgment should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992). A summary judgment should not be granted where reasonable minds could differ as to the conclusions they could draw from the facts presented. Lee v. Doe et al, 274 Ark. 467, 626 S.W.2d 353 (1981). The burden of proving there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins., 315 Ark. 547, 868 S.W.2d 505 (1994). Any doubts and inferences must be resolved against the moving party. Wyatt, supra; Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991). The burden in a summary judgment proceeding is on the moving party and cannot be shifted when there is no offer of proof on a controverted issue. Wyatt, supra; Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issue as to a material fact. Wyatt, supra; Harrell v. International Paper Co., 305 Ark. 490, 808 S.W.2d 779 (1991).
318 Ark. at 429-30, 885 S.W.2d at 895-96 (emphasis added). When the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995); Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986); Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980). The failure to file counteraffidavits does not in itself entide the moving party to a summary judgment. However, the effect is to leave the facts asserted in the uncontroverted affidavit supporting the motion for summary judgment accepted as true for purposes of the motion. Cameo Jewelry v. Sweetser, 247 Ark. 477, 446 S.W.2d 228 (1969); Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969).
Inge stated in her complaint that she sustained physical injuries in the rear-end collision. Walker’s answer did not offer proof that her claim was not true. In his answer to Inge’s complaint, Walker stated that, at the time of the accident, he and Inge had entered into an agreement whereby he paid her $200 in “full and final settlement” of her claim. However, in his answers to the interrogatories attached as an exhibit to Walker’s motion for summary judgment, he stated that he gave Ms. Inge a check “for her bumper.” These statements are contradictory. They leave open to speculation whether the $200 payment was for the damage to Ms. Inge’s bumper or all damages sustained, including physical injuries. Since different conclusions can be drawn from these statements contained in the motion for summary judgment, the motion itself presented a material question of fact, and summary judgment should not have been granted.
Walker also claims the check represented an accord and satisfaction. An “accord and satisfaction” contemplates an agreement between parties to give and accept something different from that claimed by virtue of the original obligation, and both the giving and acceptance are essential elements. Helms v. University of Missouri-Kansas City, 65 Ark. App. 155, 986 S.W.2d 419 (1999); Bohle v. Sterrfels, 261 S.W.2d 936, 941 (Mo. 1953). It generally involves a settlement in which one party agrees to pay and the other to receive a different consideration or a sum less than the amount to which the latter is or considers himself entitled. Hardison v. Jackson, 45 Ark. App. 49, 871 S.W.2d 410 (1994); Dyke Indus., Inc. v. Waldrop, 16 Ark. App. 125, 697 S.W.2d 936 (1985). There must be a disputed amount involved and a consent to accept less than the amount in settlement of the whole before acceptance of the lesser amount can be an accord and satisfaction. Mademoiselle Fashions, Inc. v. Buccaneer Sportswear, Inc., 11 Ark. App. 158, 668 S.W.2d 45 (1984). The validity of an accord and satisfaction is dependent upon the same basic factors and principles that govern contracts generally, Helms, supra; Bestor v. American Nat'l Stores, Inc., 691 S.W.2d 384 (Mo. Ct. App. 1985), and the burden of proving the agreement is simply the burden of proving a contract: offer, acceptance, and consideration. Id. The defense of accord and satisfaction presents an issue of fact, and Walker had the burden of proving accord and satisfaction. Boone v. Armistead, 48 Ark. App. 187, 892 S.W.2d 531 (1995); Holland v. Farmers & Merchants Bank, 18 Ark. App. 119, 711 S.W.2d 481 (1986). Since Inge claimed that the $200 was for damage to her bumper and Walker claimed it was in settlement of all liability for the accident, including personal injuries, a fact question was raised that was not capable of being decided by summary judgment.
Because of the foregoing conclusions, we find it unnecessary to consider appellant’s other arguments.
Reversed and remanded.
KOONCE and GRIFFEN, JJ., agree. | [
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OLLY Neal, Judge.
This is an appeal from the Washington County Circuit Court’s denial of appellants’ request for attorney’s fees following the entry of judgment on a jury verdict for appellant Phi Kappa Tau Housing Corporation (hereinafter “PKT”) against appellees Matt Wengert, Paul Wengert, and Angie Wengert in the amount of $10,500. On cross-appeal, appellees do not appeal from the jury verdict rendered but assert error in the trial court’s refusal to grant them judgment as a matter of law on the ground that appellant Rick Marcum lacked authority to prosecute this action on behalf of PKT. We affirm the trial judge’s decision in all respects.
In August 1994, appellees leased a building for a term of six months to PKT for use as a fraternity house by the Fayetteville chapter of Phi Kappa Tau Fraternity. Marcum signed the lease as president, and appellant Anthony Capo signed it as vice-president of PKT. After the term .of the lease expired, PKT continued as a month-to-month tenant through the remainder of the school year. During the summer of 1995, several of the student fraternity members occupied the house with the permission of appellees, although the terms of that agreement were later disputed. The parties to this appeal were unsuccessful in reaching an agreement for the next school term, and appellees directed PKT to remove its personal property from the building. A few days later, appellee Matt Wengert notified Marcum that he must immediately remove the furniture or it would be considered abandoned. Paragraph seventeen of the lease provided: “Any personal property not removed at the termination or forfeiture of this Lease Agreement shall be deemed abandoned and become the property of Lessor without any payment or offset of such fixtures or property.” Appellants did not remove the furniture from the building, and appellees later refused to return it or the security deposits to PKT.
In February 1996, Marcum, as president of PKT, filed a complaint against appellees for conversion of PKT’s furniture, valued at $10,000, and for the return of $8,000 in security deposits and $2,000 for kitchen renovations. In response, appellees alleged that the personal property had been abandoned pursuant to the terms of the lease. They filed a counterclaim and a third-party complaint against Marcum and Capo, individually and in their capacities as president and vice-president of PKT, alleging breach of the lease and seeking damages in excess of $40,000. PKT filed an amended complaint requesting damages for appellees’ failure to deliver the premises until three weeks after the lease was signed, for return of its security deposits, and for conversion of the furniture. PKT also sought punitive damages of $100,000 in the amended complaint.
At trial, appellees moved for judgment as a matter of law on the ground that Marcum did not have authority to file the lawsuit on behalf of PKT because he was not a member of the board of directors or an officer of the corporation when the suit was filed. The circuit judge denied the motion, stating that appellees lacked standing to raise this question.
In its verdict on interrogatories, the jury found that appellees had converted PKT’s property and awarded it damages of $8,500. It also found that appellees had breached the contract with PKT and awarded it $4,000 for that breach. The jury further found that appellees were entitled to recover $2,000 in damages from PKT. It found that Marcum and Capo were not liable to appellees for any damages.
In a letter opinion written after the jury returned its verdict, the circuit judge stated:
[PKT] maintains it is entitled to recover an attorney’s fee under either the provisions of A.C.A. section 16-22-308 or the terms of the parties’ lease agreement providing for same.
Under either theory of recovery, a party seeking entitlement to a fee must be the prevailing party. Here, [PKT] received more money under the jury’s verdict than [appellees], and as [PKT] argues, could be considered the prevailing party. However, [PKT], in its amended complaint, sought at least $110,000 in damages, recovered $8,500 on its conversion theory and $2,000 on its breach of contract claim, thus hardly prevailing on its original claim.
On the other hand, [appellees] claimed damage in excess of $40,000 in their counterclaim and obtained a net verdict of $2,000 — a far cry from their sought after recovery, but nonetheless a recovery.
[PKT] seeks an attorney’s' fee and costs amounting to $54,432.69 and [appellees] maintain they have expended in excess of $20,000 defending [PKT’s] claims and prosecuting their counterclaim. This case involves claims by [PKT] for conversion and breach of contract and a counterclaim by [appellees] for breach of contract. This is a simple case, neither complicated by facts nor esoteric questions of law. It is exceedingly difficult to imagine why, in a case of this nature, a litigant would authorize the expenditure of sums anywhere near those now claimed by [PKT], or for that matter, paid by the [appellees].
Prevail is defined as being victorious. See Webster’s, 1989 ed. Certainly neither [PKT] nor [appellees] have been victorious. In my judgment, neither party, as a matter of law, prevailed in this action and, accordingly, no fees or costs will be awarded.
On appeal, PKT argues that it should have been awarded attorneys fees according to the terms of the lease. Marcum and Capo assert that they should have been awarded attorney’s fees as provided by Arkansas Code Annotated section 16-22-308 (Repl. 1999). We disagree with both arguments.
Arkansas Code Annotated section 16-22-308 provides for the recovery of a reasonable attorney’s fee by the prevailing party in any civil action for breach of contract unless otherwise provided by the contract. There can be only one prevailing party in an action at law for the recovery of a money judgment; sometimes each party wins on some of the issues, but the party in whose favor the verdict compels a judgment is the prevailing party. See ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990).
Here, the jury awarded PKT $8,500 for conversion of its property, a tort, and $4,000 for breach of contract, which was offset by a $2,000 breach-of-contract verdict for appellees. Appellees were unsuccessful in their breach-oKcontract claims against Marcum and Capo. We therefore hold that PKT was a prevailing party because, after setting off the award to appellees, it was awarded judgment of $8,500 on its tort claim and $2,000 on its contract claim. The fact that PKT did not recover ail of the damages it sought is not determinative of whether it prevailed at trial. Also, Marcum and Capo are prevailing parties because they successfully defended appellees’ claims against them. See Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995); Cumberland Financial Group v. Brown Chemical Co., 34 Ark. App. 269, 810 S.W.2d 49 (1991).
However, our analysis cannot end with the determination that appellants are prevailing parties. Even though Marcum and Capo are prevailing parties, we cannot say, given the record, that the circuit judge abused his discretion in denying them attorney’s fees. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).
PKT’s claim for attorney’s fees involves different considerations. Appellees argue that PKT is not entitled to fees because it recovered $8,500 on its tort claim for conversion and attorney’s fees are not recoverable in tort actions. We agree. Where both contract and tort claims are advanced, an award of attorney’s fees to the prevailing party is proper only when the action is based primarily in contract. See Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 466 (1993); Meyer v. Riverdale Harbor Mun. Property Owners Improvement Dist., 58 Ark. App. 91, 947 S.W.2d 20 (1997). We believe that, although PKT recovered some damages for breach of contract, this action is based primarily in tort. Therefore, the trial judge had no discretion as to whether to award attorney’s fees to PKT. We may affirm the trial judge’s decision if it is correct for any reason. Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989).
PKT urges us to hold that it is entitled to attorney’s fees under the terms of the lease, which states:
In the case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney’s fee.
PKT argues that this provision would require appellees to pay attorney’s fees even in the context of a tort case. We do not agree.
In Griffen v. First National Bank, 318 Ark. 848, 888 S.W.2d 306 (1994), the issue was whether Arkansas Code Annotated section 16-22-308 limited the bank’s right to an award of attorney’s fees to those incurred at trial before the circuit court. There, the agreement provided that the appellant would “pay all expenses, legal and/or otherwise (including court costs and attorney’s fees, paid or incurred by said Bank in endeavoring to collect such indebtedness, obligations and liabilities, or any part thereof, and in enforcing this guaranty.” 318 Ark. at 855, 888 S.W.2d at 310. The supreme court held that the agreement was enforceable in accordance with its terms independent of the statute and, therefore, the bank was entitled to recover attorney’s fees incurred in a related bankruptcy proceeding and upon appeal from the circuit court’s judgment.
In our view, Griffen v. First National Bank cannot be read as providing support for PKT’s position. In that case, the proceedings for which the attorney’s fees were awarded were clearly within the specific terms of the agreement •— the appellee incurred those fees in seeking recovery of the debt and in enforcing the guaranty. We do not read Griffen v. First National Bank as providing authority for the recovery of attorney’s fees in actions such as this that are based primarily in tort. It is true that, in the case before us, the wording of the agreement to pay attorney’s fees is broader than that involved in Griffen v. First National Bank and that the parties’ entry into the lease provided the opportunity for their subsequent conflict. Nevertheless, the relevant language of the unambiguous lease before us does not expressly contemplate that appellees must pay attorney’s fees in cases involving the tort of conversion, nor can we reasonably interpret it as doing so by implication. If the parties had chosen to provide otherwise, they were free to include such language in the lease. Accordingly, we hold that PKT is not entitled to recover attorney’s fees under the facts of this case.
For their cross-appeal, appellees assert that the circuit judge should have granted them judgment as a matter of law because Marcum was not a director of PKT and did not have the authorization of the board when the suit was filed and, therefore, could not act on its behalf. The circuit judge denied appellees’ motion by stating that they lacked standing to complain about this issue. At trial, appellants unsuccessfully sought to introduce into evidence a document stating that PKT’s board had ratified Marcum’s initiation of this lawsuit on PKT’s behalf; however, appellants failed to include its rejection among their points on appeal.
Nevertheless, we have no difficulty in affirming the trial judge’s decision in this regard on two bases. Appellees filed a counterclaim and third-party complaint seeking affirmative relief against Marcum and Capo in their capacities as president and vice-president of PKT. One may not complain of action he has induced, consented to, or acquiesced in. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998); Neel v. Citizens First State Bank, 28 Ark. App. 116, 771 S.W.2d 303 (1989). Additionally, we think this situation is analogous to one where a defendant waits until trial to argue that the action has not been prosecuted by the real party in interest. As we held in Monaghan v. Davis, 16 Ark. App. 258, 700 S.W.2d 375 (1985), a trial court has discretion whether to hold that a party has waived this issue by waiting until trial to raise it. A trial court’s ruling will be affirmed on appeal if it is correct for any reason. Alexander v. Chapman, supra.
Affirmed.
Hart, Stroud, and Crabtree, JJ.,agree.
Bird and Meads, JJ., dissent. | [
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JOSEPHINE Linker Hart, Judge.
This is an appeal from the trial court’s refusal to award a deficiency judgment following a sale of collateral. The trial court found that the sale had not been conducted in a commercially reasonable manner. We affirm.
In 1996 and 1997, appellant Eagle Bank & Trust made two loans to appellee Kurt Dixon totaling $45,000. The loans were secured by the furniture, fixtures, and equipment used in the operation of appellee’s restaurant, Big Mamou. On November 18, 1998, appellee sold the assets of the restaurant to Club Rio, USA, Inc. Thereafter, Club Rio took possession of the premises, including the furniture, fixtures, and equipment.
On December 23, 1998, appellant filed suit against appellee in Pulaski County Circuit Court alleging that he had defaulted on the loans. The court issued an order of delivery allowing appellant to take immediate possession of the collateral, and appellee was notified that the collateral would be sold at a private sale. However, the sale never took place. Shortly after the order of delivery was issued, appellant’s representative visited Club Rio to inspect the collateral and discovered that some of it was either missing or destroyed. As a result, appellant filed an amended complaint adding Club Rio as a defendant and asserting a cause of action for conversion. Attached to the complaint was the affidavit of Susan Barre, appellant’s assistant vice-president and loan officer. Barre stated that she had seen the collateral and believed that its value was sufficient to satisfy appellee’s debt.
Within days after the amended complaint was filed, appellant sold the collateral to Club Rio for $22,500 and moved to dismiss Club Rio from the lawsuit because a settlement was reached. The motion was granted, and appellant proceeded to trial seeking a deficiency judgment of approximately $18,000 against appellee. That sum represented the amount owed on the loans (approximately $40,500) less the $22,500 received from Club Rio as settlement. Appellee contended that appellant was precluded from seeking a deficiency judgment because the sale of the collateral was not conducted in a commercially reasonable manner. The trial judge agreed and found that appellant’s disposition of the collateral was not a commercially reasonable sale but rather the setdement of the lawsuit between appellant and Club Rio. He also found that the price obtained for the collateral was -not commercially reasonable given appellant’s strong bargaining position with Club Rio (Club Rio was using the collateral to operate its restaurant), and the fact that appellant’s representative, Susan Barre, stated in her affidavit that the value of the collateral was equal to the value of appellee’s remaining debt, i.e., approximately $40,000. The trial court denied appellant’s complaint for a deficiency judgment, and this appeal followed. On appeal, appellant argues that the trial court erred in finding that the sale was not conducted in a commercially reasonable manner.
Every aspect of the disposition of collateral, including the method, time, manner, place, and terms must be commercially reasonable. See Ark. Code Ann. § 4-9-504(3) (Repl. 1991). Once the collateral has been disposed of, the debtor remains Hable for any deficiency. Ark. Code Ann. § 4-9-504(2) (Repl. 1991). However, a creditor may be barred from seeking a deficiency judgment if the sale of the collateral was not commercially reasonable. See First Nat’l Bank of Wynne v. Hess, 23 Ark. App. 129, 743 S.W.2d 825 (1988); Farmers & Merchants Bank v. Barnes, 17 Ark. App. 139, 705 S.W.2d 450 (1986). Whether a sale has been conducted in a commercially reasonable manner is essentially a factual question. See Mercantile Bank v. B & H Associated, Inc., 330 Ark. 315, 954 S.W.2d 226 (1997). A trial court’s finding on such a question will not be reversed unless it is clearly against the preponderance of the evidence. See Jones v. Union Motor Co., Inc., 29 Ark. App. 166, 779 S.W.2d 537 (1989). It was appellant’s burden to prove that the sale proceeded in a commercially reasonable manner. See Mercantile Bank v. B & H Associated, Inc., supra.
At trial, appellant’s case centered on the testimony of its assistant vice-president, Susan Barre. Barre testified that, after the order of defivery was issued, she made contact with Club Rio and attempted to repossess the collateral. She examined the collateral on two separate occasions and saw that it included various tables, chairs, and kitchen equipment. According to her, the collateral was not in the best condition, and five or six small items were missing. She admitted that she originally thought the bank would receive the $40,000 still owed on the loans, based on Club Rio’s offer to assume the loans (which the bank rejected). However, Club Rio offered only $20,000 to purchase the collateral, and the bank countered with a $30,000 offer. After negotiations, Club Rio and the bank agreed to the final $22,500 figure. Club Rio paid that amount and was released from all liability in connection with the bank’s lawsuit, including HabiHty for conversion.
At trial, Barre offered her opinion that, based upon her experience, $22,500 was a fair price for the collateral. She also said that, by seHing the collateral to Club Rio, the bank did not have to pay any storage, moving, or selfing costs that would ultimately have been borne by appellee. However, on cross-examination, she admitted that an appraisal of the collateral was not conducted. Further, she was unable to explain why, in her affidavit attached to the bank’s amended complaint, she stated that the value of the collateral was sufficient to satisfy appellee’s debt.
The only other evidence of the value of the collateral came from the testimony of appellee. He said that, based upon his experience in the restaurant business, the collateral was worth $45,000 to $50,000.
Appellant argues on appeal that the trial judge’s finding of a lack of commercial reasonableness was improperly based upon appellee’s argument that an inadequate price was received for the collateral. It is well settled under Arkansas law that price alone is not dispositive of whether a sale is commercially reasonable. See Goodin v. Farmers Tractor & Equip. Co., 249 Ark. 30, 458 S.W.2d 419 (1970); Prince v. R & T Motors, Inc., 59 Ark. App. 16, 953 S.W.2d 62 (1997). See also Ark. Code Ann. § 4-9-507(2) (Repl. 1991). To establish commercial unreasonableness, decidedly stronger proof is needed than an inadequate sale price. See Goodin v. Farmers Tractor & Equip. Co., supra. However, a large discrepancy between the sale price and the fair market value of the collateral signals a need for close scrutiny of the sale procedures. See Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987). The trial court in this case did not base its ruling merely on sale price, but acknowledged that a court is required to look at the time, method, and place of the sale as well as the price. In arriving at a decision, the trial court focused on two aspects of the sale other than price. First, the court noted the discrepancy between Barre’s testimony at trial that the collateral was worth $22,500 and her statement in her affidavit that the collateral had sufficient value to cover a $40,000 debt. This discrepancy reflected on the credibility of Barre, appellant’s primary witness, who bore the responsibility of meeting appellant’s burden of proof.
On appeal, the trial court’s determination of credibility is considered in deciding whether the findings were clearly against the preponderance of the evidence. See Beard v. Ford Motor Credit Co., 41 Ark. App. 174, 850 S.W.2d 23 (1993). We defer to the trial court’s superior ability to judge the credibility of the witnesses and the weight to be given their testimony. See id. Barre could not explain the discrepancy in her statements. Therefore, the trial court may well have found that Barre’s testimony at trial regarding the value of the collateral was not credible and concluded that the bank sold the collateral to Club Rio for $22,500 knowing the price was far below the collateral’s true value. Ultimately, commercial reasonableness requires that the secured party act in good faith to maximize returns on collateral. See Marks v. Powell, 162 B.R. 820 (E.D. Ark. 1993).
Secondly, the trial court determined that the disposition of the collateral was a settlement of a lawsuit between appellant and Club Rio rather than an actual sale. The importance of this consideration lies in the fact that appellant may have acted strictly in its own interest for the purpose of ending litigation without regard to whether the disposition of the collateral was commercially reasonable. Further, a secured party’s desire to setde may prevent it from seeking other potential buyers of collateral, a factor that has been considered in determining commercial reasonableness. See Mercantile Bank v. B & H Associated, Inc., supra. Accordingly, we hold that the sale of collateral in this case was not conducted in a commercially reasonable manner and affirm.
Affirmed.
JENNINGS and ROAF, JJ., agree.
Appellant was aware of the sale. The contract between appellee and Club Rio provided that, in addition to other consideration, Club Rio, as buyer, would “assume the outstanding balance due and owing [appellant] effective December 1, 1998, until paid in Full."
Club Rio obtained possession by forcing Dixon to leave the premises, with the assistance of law enforcement officers. Dixon filed a federal court lawsuit as a result, and appellant was aware of the suit. | [
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Melvin Mayfield, Chief Judge.
Ray and Marie Pickens appeal from a judgment of the Polk Chancery Court in favor of the appellees in the amount of $8,914.82. The appellees are Raymond Stroud Lumber Company, Inc., and Raymond Stroud, individually.
The parties made a contract providing that appellees would build a home for appellants for the consideration of $50,000.00. This amount was to be paid in four payments: $5,000.00 when the contract was signed, $15,00.00 when the subfloor was down, $15,000.00 when the house was locked-in, and a final $15,000.00 payment when the house was completed. The first and second payments were made, but the third payment was not made and this case resulted.
Appellees claimed that the house was locked-in and when appellants did not agree and would not make the third payment, appellees stopped work and filed suit. At trial, when the evidence was completed, the chancellor announced that both parties had breached the contract. He said the appellees did not have the building locked-in, a term he found to mean that the windows and exterior doors would be installed, the plumbing and wiring would be roughed in, the walls would be up, and the roof would be on the building. But the j udge found that appellants would not pay the third payment until appellees did some things which were not necessary for the house to be locked-in. He said he suspected that meant that appellees were entitled to the fair value of the work performed, but he was not sure and he asked for briefs.
After briefs were furnished, the court filed a memorandum opinion in which he said that most of the work required to lock-in the house had been completed and that it would be inequitable to allow the appellants to gain the benefits of that work without paying for it, particularly since they were as much at fault as the other side. He then made findings with regard to the other evidence heard at trial.
That evidence had disclosed that after appellees had stopped work, the appellants had obtained another contractor to finish the house. This man testified that he charged appellants $27,000.00 to complete the job and $4,100.00 of that was for correcting defective work done by appellees. The appellants testified that they had paid $2,485.15 for bricks and $500.00 for lighting fixtures that went into the house; and there was evidence that the appellants had put labor and building material into the house at a cost of $33,906.58.
The judge’s opinion stated that he thought the appel-lees’ recovery should be based upon the percentage of their contract that they had completed and he fixed that at 80% for a base recovery of $36,000.00, considering “the cumulative testimony of all the witnesses, noting particularly the evidence reflecting the cost of labor and materials furnished by Mr. Stroud and the amount charged by Jon Murrell to complete the construction.” From that $36,000.00 the judge allowed appellants to deduct the $20,000.00 in payments they had made to appellees, the $4,100.00 they had paid Murrell for correcting the defective work done by appellees, and the amounts appellants had paid for bricks and lighting fixtures, and he gave judgment for appellees against appellants in the amount of $8,914.82.
On appeal, the appellants first argue that the evidence does not support the chancellor’s finding that they breached the contract by refusing to make the locked-in payment. It is, of course, their position that the breach was solely by appellees and that their failure to perform released the appellants from further performance. While we do not think the judge’s finding on that point clearly against the preponderance of the evidence, Civil Procedure Rule 52 (a), the view we take of the case makes it immaterial.
In D. Dobbs, Handbook on the Law of Remedies § 12.24, at 918-19 (1973), the author discusses the effect of a contractor’s breach of a building contract and states that “under older doctrine, a contractor, even if his breach was only minor, could recover nothing at all because complete performance was deemed a condition” but that “this grim guillotine no longer cuts him off.” The reasons for allowing recovery are then discussed and Dobbs says the doctrine of substantial performance will allow recovery subject to credit to the owner for his damages.
That doctrine is followed in Arkansas. See Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978), and Taylor v. Richardson Const. Co., 266 Ark. 447, 585 S.W.2d 934 (1979). However, Dobbs points out that the performance must be sufficiently substantial. We do not find that this matter has been considered by an appellate court in Arkansas, but in Dixon v. Nelson, 107 N.W.2d 505 (S.D. 1961), the court said this is a relative term and cited a case which held there had not been substantial performance where it was necessary to tear down and rebuild an entire wall. And in Miles Homes, Inc. of Wisconsin v. Starrett, 127 N.W.2d 243 (Wis. 1964), the court said substantial performance could not be determined by a mathematical rule relating to the percentage of the cost of completion but found that there had not been substantial performance where the cost to rebuild into compliance equaled 36% of the contract price.
In the instant case, we do not think there has been substantial performance, but we do not think that prevents the appellees from recovering. Dobbs also says that a contractor may, though in substantial breach, recover on a restitutionary theory, or on quantum meruit. Dobbs, supra, at 920-921. A case so holding is Lowe v. Rosenlof, 364 P.2d 418 (Utah 1961), where the plaintiff abandoned the concrete work on a construction job but the court said: “Although plaintiff is not entitled to the benefits of the contract, he is, nevertheless, entitled to payment on a quantum meruit basis for the work he did perform.” See also Burke v. McKee, 304 P.2d 307 (Okla. 1956). The theory upon which recovery is allowed in those cases is to prevent unjust enrichment or as Dobbs says “the feeling that the landowner is not entitled to a windfall merely because he has contracted with a man who has breached his contract.” Dobbs, supra, at 921.
This theory has been applied to allow recovery in Arkansas. In Coley v. Green, 232 Ark. 289, 335 S.W.2d 720 (1960), the court said:
The older cases hold that, when a special contract had been performed only in part, then there could be no recovery on a quantum meruit basis. Simpson v. McDonald, 2 Ark. 370; Manuel v. Campbell, 3 Ark. 324. But over the years there has been a constant tendency to find a way to prevent the working party from losing his entire outlay. In Selig v. Botts, 128 Ark. 167, 193 S.W. 534, the Court, in effect, divided the contract, and allowed recovery for the part that was performed; and in Mitchell v. Caplinger, 97 Ark. 278, 133 S.W. 1032, a contractor was allowed part recovery even though the owner had to make further expenditures to complete the building.
In the case at bar, we believe the appellees are entitled to recover on a quantum meruit basis and, although not so designated, we think that is really the basis the chancellor attempted to use. However, we do not think he used all the evidence necessary to properly fix the amount of recovery.
In Beeman v. Worrell, 612 S.W.2d 953 (Tex. Civ. App. 1981), there is an extended discussion of the method of determining the amount that may be recovered in quantum meruit by a building contractor who has breached his contract without substantial performance. In the first paragraph of the opinion, the court said:
The trial court apparently awarded the market value of the house as constructed, less the owners’ payments and the cost of remedying certain defects .... We hold that this amount was properly determined to be the net benefit to the owners from the contractor’s part performance.
See also Tannhaeuser Co. v. Holiday House, 83 N.W.2d 880 (Wis. 1957), where the court did not allow recovery because the plaintiff did not meet its burden of showing “how much the uniighted sign had benefited the defendant. In Coley, supra, the Arkansas court quoted with approval from American Jurisprudence that “the basis of liability under a quasi contract resulting from part performance is the benefit conferred upon a defendant.” Of course, as Beeman v. Worrell points out, the amount of recovery should not exceed the contractor’s reasonable expenditures for labor and materials.
In our case, the trial judge made no determination of the value of the house as constructed nor did he in other manner fix the amount of benefit that appellees’ part performance conferred upon the appellants. He simply found that appellees had completed 80% of their contract for a base recovery pf $36,000.00. It appears that the judge used 80% of the contract price of $50,000.00 to arrive at $40,000.00 and deducted the approximate $4,000.00 cost of correcting appel-lees’ work to arrive at the $36,000.00 figure. This computation also overlooks the $22,900.00 that appellants paid Murrell (over and above the $4,100.00 for correcting deficiencies) to complete the house. That figure, the appellants testified, was for Murrell to complete to the same specifications of the Stroud contract. They said they did add a closet in the basement and put a different covering on the kitchen cabinets, but paid extra for that.
Equity cases are tried de novo on appeal, and while findings of fact are not set aside unless clearly against the preponderance of the evidence, where the chancellor has made no factual decision, or where the evidence is undisputed, we render the judgment, on the record made in the trial court, which the chancellor should have rendered. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). No one testified to the value of the house at the time the appellees stopped work or after Murrell had completed it. Dobbs, however, states that value to the landowner can be measured in several ways.
For example, if the contractor promises to build a house to certain specifications for $50,000 and ceases to work when it is partially completed, and the landowner can get the house completed according to the same specifications for $20,000 it is reasonably clear that the benefit to the landowner of the work done was $30,000. Dobbs, supra, at 922.
And in Coley, supra, the court found that the amount expended accomplished that much benefit to the property.
Although the usual practice in chancery appeals is to end the controversy by final judgment here, Ferguson v. Green, supra, also holds that the appellate court does have the discretionary power to remand a chancery case for further proceedings, either on the whole case or on certain issues. It is obvious from the record that the parties did not attempt to establish the benefit that Stroud’s part performance conferred to the house or the land Upon which the house is situated. Under those circumstances, rather than attempting to fix that benefit from the evidence in the record by using some method such as used in Coley or suggested by Dobbs, we have concluded to remand for that issue to be decided by the trial court after affording the parties an evidentiary hearing. The court shall then enter the appropriate judgment based upon that hearing and the record previously made.
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Tom Glaze, Judge.
The appellant, Billy Thomas Simmons, appeals from the revocation of his probation and his sentence of five years in the Department of Correction. We affirm.
On September 15, 1982, the appellant pleaded guilty to burglary. He was sentenced to five years probation and was assessed a $250 fine, $125 restitution and costs. At a revocation hearing on April 16, 1984, the appellant testified that he had failed to pay as ordered, failed to report to the probation office, and failed to notify the probation office of a change of address after he moved from Kirby to Hot Springs. He stated that he remembered that the trial judge had outlined in detail his conditions of probation and that he knew if he violated the terms of probation he could be sent to prison. Even with that knowledge, according to appellant, he moved and did not report in.
On appeal, appellant contends the trial court abused its discretion in revoking his probation for de minimus violations of probation. Appellant contends that his failure to pay was remedied by his payment of fines, restitution, court costs, and attorney’s fees prior to the revocation hearing. He contends that his failure to report to his probation officer and to notify the officer of his change of address was merely negligence on his part and nothing in the record indicated that he was engaged in bad acts. Appellant relies upon Cogburn v. State, 264 Ark. 173, 569 S. W.2d 658 (1978), for the proposition that his violations are excusable.
In Cogburn, the Supreme Court noted that the statute permits revocation of a suspended sentence when the court finds that a defendant has inexcusably failed to comply with a condition of suspension. Ark. Stat. Ann. § 41-1208(4) (Repl. 1977). The Court found that Cogburn’s noncompliance was not inexcusable. His condition of suspension was to work for eighty hours each month at the Arkansas Children’s Colony. The evidence showed that he worked for fifty to sixty hours each week for his employer; he and his wife both had been ill; as a consequence, he had worked fewer than eighty hours a month at the Children’s Colony for several months in a row, although he had worked each month. At the revocation hearing, the trial judge misunderstood the number of hours that Cogburn had actually worked to satisfy the condition and revoked his suspended sentence. In reversing the trial court’s revocation, the Supreme Court said that in view of the circumstances, Cogburn’s failure was excusable.
In the instant case, the appellant admitted that he did not comply with the terms of his probation, and the trial court found his failure inexcusable. Unlike the defendant in Cogburn who had reasons for his failure to fully comply, the appellant here had no reason for his failure and did not even attempt to comply until after he was arrested for violations of probation. It was then that he paid his fine and restitution. His excuse for not notifying the probation office that he had moved was that he did not have the address of the Arkadelphia office. In view of appellant’s failure to comply with the terms of probation and the absence of any excuse for that failure, we find no error in the trial court’s revoking the probation for what appellant contends are de minimus violations.
Appellant raises a second point for reversal, and argues that the trial judge imposed an erroneous sentence when he revoked appellant’s probation. On September 15,. 1982, the trial court took appellant’s plea under advisement for a probated period of five (5) years, commencing September 15, 1982. The court’s order listed appellant’s conditions of probation under eight paragraphs, the last of which sentenced him to five years probation, a $250 fine, $75 costs, $125 restitution and $200 attorney’s fees as a part of the costs. The order further provided that appellant’s probation was subject to good behavior, no law violations, three years active supervision by the court’s probation officers and the court’s standard conditions of probation. Appellant contends that because the trial judge originally imposed a fine on September 15, 1982, the appellant’s five-year sentence should have run from that date rather than the date of revocation. We disagree.
Appellant cites Ark. Stat. Ann. § 41-1201(3) (a) (Repl. 1977), which provides that the court, when it places a defendant on probation (or suspends his imposition of sentence) must enter a judgment of conviction if it sentences him to pay a fine and places him on probation (or suspends imposition of his sentence to imprisonment). Appellant next refers to that part of the commentary to § 41-1201(3) that states when a fine is imposed, the court must enter a judgment of conviction. Appellant concludes that when the trial court fined him on September 15,1982, such action was tantamount to the entry of a j udgment of conviction and his probated time ran from that date.
Appellant’s argument ignores other relevant statutes that bear on this issue. Unquestionably, appellant pleaded guilty to burglary, a Class B felony, and the trial court had authority under Ark. Stat. Ann. § 41-803 (Supp. 1983) to either suspend imposition of sentence or place him on probation. Pursuant to § 41-803(5) — because burglary is punishable by fine and imprisonment — the trial court chose to sentence appellant to pay a fine and placed him on probation. When the trial court revoked appellant’s, probation, it was authorized under Ark. Stat. Ann. § 41-1208(6) (Repl. 1977) to enter a judgment of conviction. At that time, it could impose any sentence on appellant that might have been imposed originally for the burglary offense provided that any sentence to pay a fine or to imprisonment, when combined with any previous fine or imprisonment imposed for the same offense, not exceed the limits of Ark. Stat. Ann. §§ 41-901(c) (Supp. 1983) and -1101(1) (a) (Repl. 1977). The trial court’s power under § 41-1208(6) is clearly explained by the commentary to that statute as follows:
The power to impose any sentence originally authorized is qualified to the extent that a fine or imprisonment was actually imposed at the time suspension or probation was ordered. For example, assume that a defendant is found guilty of a class B felony and the court imposes a fine of $10,000 and suspends imposition of sentence as to imprisonment. If the defendant is subsequently revoked, he may be sentenced to a term of imprisonment up to 20 years but the maximum fine that can be imposed is $15,000 (statutory limit for class B felony) less $10,000 (fine already imposed), or $5,000. Similarly, if the court had imposed a 5-year term of imprisonment followed by a period of suspension, the maximum sentence upon revocation is 15 years.
Following the foregoing example, the trial court here imposed a $250 fine but released appellant on probation for a five-year period without pronouncing sentence. When appellant’s probation was revoked, the trial court could have sentenced him to a term of imprisonment up to twenty years (the statutory limit for a Class B felony), but the maximum fine imposed could not exceed $14,750 (the $15,000 maximum for a Class B felony minus $250 — the fine imposed on September 15,1982). Instead, the trial judge sentenced appellant to the minimum term of imprisonment for a Class B felony (five years) and imposed no additional fine. Accordingly, we hold the sentence imposed by the trial court was well within its power to make.
Affirmed.
Mayfield and Cooper, JJ., agree. | [
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Tom Glaze, Judge.
This appeal arises from the chancery court’s denial of appellant’s specific performance suit against appellee, the Friends of Mayflower, Inc. (FOM). Appellant alleged FOM breached its agreement to sell appellant a building for $65,000. The court held the agreement unenforceable because the parties had “no meeting of the minds” concerning the contractual terms. We reverse the decision of the lower court because it erroneously refused appellant’s request to exclude witnesses from the courtroom.
Immediately before trial, FOM requested that its shareholders be permitted to stay in the courtroom during trial. Appellant objected, stating FOM’s designated representative could stay but requesting that the other shareholders be excluded. The court overruled appellant’s objection, stating FOM’s shareholders were party litigants and could remain in the room.
Rule 615 of the Uniform Rules of Evidence covers the exclusion of witnesses and provides as follows:
Rule 615. Exclusion of witnesses. — At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
The foregoing rule on sequestering witnesses is mandatory when requested by one or both of the parties. Morton v. Wiley Grain & Chemical Co., 271 Ark. 319, 609 S.W.2d 322 (1980); and Chambers v. State, 264 Ark. 279, 571 S.W.2d 79 (1978). In International Harvester Corp. v. Hardin, 264 Ark. 717, 574 S.W.2d 260 (1978), the Supreme Court found the trial court had violated Rule 615 and reversed, holding the lower court’s error was presumed to be prejudicial unless the contrary affirmatively appeared from the record.
Here, after appellant requested they be excluded, the trial court allowed six FOM shareholders to remain in the courtroom. Of course, under Rule 615(1), a party who is a natural person is exempt from exclusion, but here the shareholders were not party litigants — their corporation, FOM, was. These shareholder witnesses could only be exempt from exclusion under Rule 615 if FOM’s attorney had designated any one of them as FOM’s officer or employee or if their presence was shown by FOM to be essential to the presentation of its cause. From our review of the record, neither exemption was shown. FOM’s counsel never designated any of the shareholders as its representative ; nor did he provide a reason why their presence was essential to the management of FOM’s case.
The sequestration or exclusion of witnesses is employed to expose inconsistencies in their testimonies and to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial. In the instant case, four FOM shareholders’ interests were not only antagonistic to those of appellant; they also conflicted with two other FOM shareholders’ interests as well. For example, these four shareholders wished to purchase the building in question and had obtained a loan commitment to do so. Meanwhile, two other shareholders’ (Mr. and Mrs. Cisnes’) efforts to remove their names off a bank indebtedness — apparently involving FOM — depended upon FOM’s accepting appellant’s offer to purchase the building.
Appellant and Mrs. Cisne testified that appellant offered $65,000 for the building, and this sale amount was not due the day after FOM accepted the offer. To the contrary, five FOM shareholders (including the four who wanted to purchase the building) each testified consistently that they understood appellant’s $65,000 offer was payable the day after FOM accepted it. The trial judge relied on these five shareholders’ testimonies when it held the appellant and FOM had no meeting of the minds and concluded no agreement was reached. Whether these five shareholders’ testimonies would have been the same if the trial court had sequestered them, we cannot say. However, because this cause was decided by the trial court upon the conflicting testimonies presented by each party, this case typifies the situation when the witness-exclusion rule is needed, viz., to avoid the possibility of a witness’s shaping his or her testimony by that given by other witnesses. In sum, the trial court failed to exclude FOM’s witnesses, as required under Rule 615, and because we are unable to say the court’s error was harmless, we must reverse and remand this cause for a new trial.
Since this cause is remanded for another trial, it is necessary to consider appellant’s second point for reversal. Prior to this chancery court lawsuit, FOM brought an unlawful detainer action in circuit court against appellant for his nonpayment of rent. After the chancery suit was filed, the parties agreed to certain matters in the circuit case, pending a full trial of the issues in chancery. This agreement was reduced to an order and largely dealt with appellant’s responsibilities under the parties’ oral rental agreement pending the chancery trial. Among other things, they agreed that appellant maintained that the $2,000 check tendered was a down payment for the purchase of the building and that he was not by contract required to pay rent for the months of August, 1982, and thereafter. They further agreed that FOM’s position was that the $2,000 was being credited as back rent for the months of August, 1982, and thereafter. Upon reaching his decision, the chancellor construed the circuit court’s agreed-order as a ruling on the dispositon of the $2,000 earnest payment, finding the circuit court applied the $2,000 to accrued rental arrearages owed by appellant. The chancellor held that order was binding on the chancery proceeding, and that he could not reconsider any issue dealing with the disposition of the $2,000. We cannot agree. The circuit court order merely contains the parties’ respective contentions concerning the appellant’s $2,000 payment, and the chancery court is in no way prevented from considering any issues surrounding that payment in its retrial of this cause.
Reversed and remanded.
Corbin and Mayfield, JJ., agree.
Professor Weinstein relates that it is unclear whether Rule 615 permits more than one representative and suggests the trial judge should have wide discretion to allow multiple representatives. See 3 Weinstein’s Evidence, Par. 615[02] (1982). We need not reach that question because no attempt was made to designate a representative in this cause. | [
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John B. Robbins, Judge.
Appellant Linda Kilpatrick appeals the Board of Review’s denial of unemployment compensation benefits in accordance with Ark. Code Ann. § 11-10-514 (Repl. 1996) upon finding that appellant was discharged for misconduct in connection with the work. She argues that the decision is not supported by substantial evidence. We affirm.
We do not conduct a de novo review on the appeal of a decision of the Board of Review. The findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. § 11-10-529(c)(1) (Repl. 1996); Perdix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). 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.
Mere inefficiency, unsatisfactory conduct, failure of good performance as a result of inability or incapacity, inadvertence, and ordinary negligence or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless they are of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or of an employee’s duties and obligations. Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986).
In reaching its decision the Board noted the testimony of the employer’s store manager, Jim Fletcher, who testified that appellant was a single mother with four children who had been cosmetic-department manager for approximately two years. During this period of time, he arranged her work schedule so that she did not have to work nights or weekends to accomodate her child care responsibilities. In August 1994 appellant was granted a medical leave of absence with an understanding that she would return to work on October 31, 1994. Appellant neither returned to work nor contacted him on October 31, 1994. Approximately a week later appellant contacted him seeking her old job. He testified that he explained to her that he had hired someone else to fill the cosmetic-department manager position, but that he had another department manager position available. Appellant refused the other position. A few days later the new manager of the cosmetic department quit, so he contacted appellant. He testified that he explained to appellant that because of increased business all employees were now required to work additional hours, which meant that she would have to work an occasional night and weekend shift. He said that he no longer felt the need to accommodate the appellant’s child care responsibilities because she had a live-in boyfriend.
While appellant’s testimony was inconsistent with Mr. Fletcher’s testimony in some respects, appellant testified that she worked occasional nights and weekends for approximately a month and a half. She then contacted the employer’s district manager on Friday, January 6, 1995, and informed him that she could not work the hours she was scheduled. She was told that if she could not work the scheduled hours she was discharged.
The Board of Review found that appellant refused to work her scheduled hours and that she did not show that her work schedule violated the terms of her hiring agreement. It concluded that appellant’s action of refusing to work the scheduled hours was a willful disregard of her employer’s best interests and was, therefore, misconduct. From our review of the record, there is substantial evidence to support the Board’s findings and decision. Therefore, we affirm the Board’s decision that appellant was discharged from her last work for misconduct in connection with the work.
Affirmed.
PITTMAN and Rogers, JJ., agree.
Mayfield, Stroud, and Griffen, JJ., dissent. | [
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James R. Cooper, Judge.
On October 10, 1979, the appellants entered into an Exclusive Listing Contract with the appellee. The listing agreement was to expire January 10, 1980. The listing agreement provided that the appellee “shall have the sole and exclusive right to sell said property.” It further provided that “if the property be sold or otherwise disposed of by agent or any other person, association or corporation or owner during the period of this contract, Owner agrees to pay Agent a professional fee of ten percent of the gross amount of the sale.” On December 28, 1979, the appellants executed a lease agreement between themselves, as lessors, and Ratliff Brothers. The lease was for three months, commencing on January 1, 1980, and ending March 31, 1980. The lease included an option to purchase which was effective during the term of the lease. Ratliff Brothers exercised the option to purchase on March 31,1980. The appellee filed suit for its commission on the sale to Ratliff Brothers and the trial judge granted the appellee’s motion for summary judgment. From that decision, comes this appeal.
The appellants argue that the trial court erred in granting the appellee’s motion for summary judgment because a fact question existed as to whether the lease with an option to purchase was on its face a disposition of the property as that term is used in the listing agreement between the parties. The appellants also argue that summary judgment was not proper because they had raised the issues of unjust enrichment and failure of consideration. We find no error in the trail court’s ruling, and therefore we affirm.
First, we find it unnecessary to deal with the appellants’ argument concerning whether a lease with an option to purchase is a disposition of property. In the case at bar, the option was granted during the listing period, and the optionee exercised the option. We are mindful of the fact that the option was exercised after the exclusive listing contract had expired. We see little difference in the granting of an option which is ultimately exercised, and the execution of a contract to sell property which is signed during the listing period but performed afterwards. The trial judge properly gran ted summary judgment on this point. In Swift v. Erwin, 104 Ark. 459, 148 S.W. 267 (1912), the court stated, “Instead of being a sale, an option excludes the right to sell during its life.” The option here effectively prevented the appellee from exercising its exclusive right to sell the appellants’ property during the remainder of the exclusive listing. Also, the exercise of the option by Ratliff Brothers consummated the sale by the appellants in derogation of the appellee’s rights under the exclusive listing agreement. Therefore, the appellee was entitled to its commission pursuant to the listing agreement.
Next, the appellants argue that summary judgment was improper because they raised the issues of unjust enrichment and failure of consideration, which created a fact question for the jury. We disagree. The appellants and the appellee entered into a valid exclusive listing contract and the appellants failed to show by affidavit or other proof the basis of their claim that there was in fact a failure of consideration. In Tate v. Goine, 212 Ark. 51, 204 S.W.2d 900 (1947), the court held that “the mere fact of listing, coupled with anticipated effort in procuring a purchaser, would be sufficient consideration.” There was no showing that the appellee did not attempt to discharge its obligations under the contract with the appellants and we will not reverse on the mere allegation of failure of consideration.
The appellants’ argument concerning unjust enrichment is likewise without merit. There was no evidence presented which would show that the listing contract was not freely entered into by the appellants, and therefore nothing upon which a jury could find the contract void. Thus, the concept of unjust enrichment has no application to these facts as it is a legal theory that exists in the realm of quasi-contract, and not when an express written contract exists. See, Dunn v. Phoenix Village, Inc., 213 F. Supp. 936 (W.D. Ark. 1963).
The appellee’s motion for summary j udgment was filed on October 6, 1981. The appellants obtained extensions of time in which to file their response to the motion, and they finally did respond on December 31, 1981. Accompanying their response to the motion was the affidavit of Russell Ratliff, the lessee and purchaser of the appellants’ property. A hearing on the motion was held on July 21, 1982, and summary judgment was granted on March 17, 1983. The trail court found that Mr. Ratliff’s affidavit was not sufficient to set forth specific facts showing that there was a genuine fact issue for trial. The ambiguities claimed by the appellants, and their other arguments addressed above, were not supported by the one affidavit which was filed in resisting the motion.
ARCP, Rule 56 (e) provides that:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegation or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment if appropriate, shall be entered against him.
We cannot say that, based on the facts presented at the hearing on the appellee’s motion, the granting of the summary judgment was error.
On appeal from the granting of a motion for summary judgment, this Court must review the evidence in the light most favorable to the party resisting the motion. Bourland v. Title Ins. Co. of Minnesota, 4 Ark. App. 68, 627 S.W.2d 567 (1982). See also Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). The burden is on the appellee to demonstrate that, even though the facts may be in dispute, reasonable minds could not differ as to the conclusion to be drawn from them. Hendricks v. Burton, 1 Ark. App. 159, 613 S.W.2d 609 (1981).
Summary judgment is an extreme remedy and should be granted only when no genuine issue of fact exists. Purser v. Corpus Christi State Nat’l Bank, 258 Ark. 54, 522 S.W.2d 187 (1975). In Davis, Adm’x v. Lingl Corp., 277 Ark. 303, 641 S.W.2d 27 (1982), the Arkansas Supreme Court stated:
A summary judgment is appropriate only where the pleadings, depositions and answers to interrogations, together with the affidavits, show there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Rule 56, ARCP; Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982).
We have reviewed the evidence before the trial judge when he granted the motion for summary judgment and find that he did not err. Also, the appellee has met its burden by showing that no genuine issues of fact existed and the judgment was correct.
Affirmed.
Cracraft, C.J. and Cloninger, J., agree. | [
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OlXY NEAL, Judge.
Appellant Debra Carpenter appeals a decision of the Arkansas Board of Review which affirmed a decision of the Appeal Tribunal and an earlier determination by the Arkansas Employment Security Department that appellant should be disqualified from receiving unemployment benefits under Ark. Code Ann. § 11-10-513 (a) (1987). We believe that the Board of Review’s decision was not supported by substantial evidence and should be reversed.
At the Appeal Tribunal hearing, Ms. Carpenter testified that after she had worked at Starks Manufacturing for three or four months, she was notified that appellee intended to close its plant in Ozark, Arkansas. According to appellant, she refused reassignment to the facility located at Paris because the transfer would require additional driving. Appellant’s family had only one automobile and Starks did not offer to increase its employees’ rate of compensation. Appellant also found the $3.00 a day for sixty days’ travel expenses offered by Stark insufficient to cover the additional travel expenses that would be generated. Ms. Carpenter stated that prior to the closure of the Ozark plant, she only drove ten miles to work, one-way, and that accepting the reassignment would necessitate at least sixty miles of driving daily, much of which would be on narrow, winding mountainous roads, sometimes in inclement weather. Finally, appellant Carpenter testified that, although the employer intimated to its employees that they would remain eligible for unemployment benefits should they not accept the reassignment, the employer denied such statements and controverted all claims for benefits. Ms. Carpenter’s last day of work for appellee was August 25, 1994, the day Stark’s Ozark facility was closed.
On appeal, we review the findings of the Board in the light most favorable to the prevailing party, only reversing where the Board’s findings are not supported by substantial evidence. Roberson v. Director of Labor, 28 Ark. App. 337, 775 S.W.2d 82 (1989). Here the Board found that appellant left her last work for reasons which do not constitute good cause in connection with the work and that appellant’s decision not to commute to the new location constituted failure to accept suitable work when offered without good cause.
Good cause has been defined as:
[A] cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment. (Citation omitted). It is dependent not only on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting, but also on the reaction of the average employee.
Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Similarly, good cause has also been found to mean:
A justifiable reason for not accepting the particular job offered. In other words, to constitute good cause, the reason for refusal must not be arbitrary or capricious and the reasons must be connected with the work itself.... [T]he question of good cause must be determined in the light of the facts in each case.
Wacaster v. Daniels, 270 Ark. App. 190, 603 S.W.2d 907 (1980). The fact that Ms. Carpenter continued to work for appellee through the day the Ozark plant closed, forecloses any finding of substantial evidence to support a finding that she left her last work for reasons which do not constitute good cause in connection with the work.
Although the relevant statute, Ark. Code Ann. § 11-10-515 establishes the distance of available work from a claimant’s residence as a relevant factor in consideration of whether a claimant has refused suitable employment, our case law has not established a bright-line test for determining what distance is unreasonable. We acknowledged in Rowlett v. Director, 45 Ark. App. 99, 872 S.W.2d 83 (1994), that, “under normal conditions, a distance of several hundred miles between home and work would make commuting unreasonable,” but, on the other hand, held in Roberson v. Director of Labor, 28 Ark. App. 337, 775 S.W.2d 82 (1989), that a fifteen-mile commute was not unreasonable. We note that the issue of distance may not be isolated from other relevant factors, including the economic impact of the commute on the particular claimant. See Jackson v. Daniels, 269 Ark. 74, 600 S.W.2d 427 (1980).
In the case before us, in addition to the increased distance of travel necessitated by appellee, there was evidence that commuting employees would have to undertake the additional safety hazard presented by the inherent condition of the roads in the area. Also, appellant earned only $5.25 an hour and presented evidence that after the initial sixty days of compensation at $3.00 a day for travel expenses, the increased costs of gasoline would reduce the amount of her take-home. Based on those factors, we hold that the Board’s findings that Ms. Carpenter left her last work for reasons that do not constitute good cause in connection with the work and that her decision not to commute constituted failure to accept suitable work when offered without good cause are not supported by substantial evidence.
Reversed.
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JAMES R. Cooper, Judge.
The parties in this chancery case appeared in open court on July 13, 1994. At that time, a property settlement agreement was read into the record, and the parties stated under oath that they agreed to the terms thereof. The agreement was complete with the exception of one item, i.e., the amount of money the appellee was to pay to reimburse the appellant for paying the appellee’s personal tax liability. This item was expressly left out of the agreement recited in court; the appellee’s attorney was to prepare a precedent incorporating the correct figure. After this was done, the appellant did not agree with the figure provided by the appellee and she so informed her former attorney. However, her former attorney failed to investigate the matter and failed to attend or inform the appellant of a hearing set for adjudication of the correct figure and entry of the decree. The appellee did attend the hearing, and the divorce decree was entered on December 20, 1994. The appellant, after learning that the decree had been entered, filed on January 5, 1995, a motion for a new trial or to set aside the decree. After a hearing on June 10, 1995, an order denying the motion was entered on August 15, 1995. On August 16, 1995, the appellant filed a notice of appeal challenging the correctness of the divorce decree of December 20, 1994, and the granting of attorney’s fees to the appellee by an order of July 17, 1995.
The appellee has filed a motion to dismiss the appeal on the grounds that the appellant’s notice of appeal was untimely. We grant the motion with respect to the issues regarding the divorce decree of December 20, 1994.
Although Ark. R. App. P. — Civ. 4 allows thirty days for a notice of appeal to be filed after a motion for a new trial is deemed denied, the notice of appeal in the case at bar was not filed within the thirty-day period. The motion in the case at bar was deemed denied on February 6, 1995, and no notice of appeal was filed until August 16, 1995.
The appellant contends that her motion should be regarded as one for setting aside a judgment on the ground of newly-discovered evidence under Ark. R. Civ. P. 60(c)(1), which may be granted more than ninety days after the entry of judgment. We do not agree. The “newly discovered evidence” asserted in the case at bar is merely the fact that the hearing was held: the appellant’s former attorney failed to inform the appellant of the hearing date, and the hearing took place in their absence, with the appellee present. However, this does not constitute newly discovered evidence to authorize a new trial, which has been defined as evidence:
[R]elevant and material to the issue involved in the original case . . . and due diligence must be shown.
Forsgren v. Massey, 185 Ark. 90, 93, 46 S.W.2d 20 (1932). The date of the hearing, while important to the parties, was not an item of evidence; nor was it relevant and material to the amount of tax liability, which was the issue involved in the original case; nor has there been a showing of due diligence.
It has been held that a party cannot invoke Rule 60(c) when the party ignored the action and failed to stay informed. CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991). For whatever reason, that is what happened in the case at bar, and we consequently grant the appellee’s motion to dismiss with respect to the issues relating to the decree of December 20, 1994.
Because the notice of appeal was filed within thirty days of the July 17, 1995, order awarding attorney’s fees to the appellee, the notice of appeal was timely with respect to that order. However, we find no merit in the appellant’s contention that the chancellor erred in awarding attorney’s fees to the appellee. The award of attorney’s fees in a domestic relations case lies within the sound discretion of the chancellor, Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995), and we find nothing in the record before us to show that the chancellor’s considerable discretion was abused in the case at bar. As the chancellor noted, the hearings and proceedings at issue should not have been necessary in a case where the parties stated their agreement in open court more than one year beforehand. We cannot say that it was an abuse of discretion to award attorney’s fees under these circumstances, and we affirm.
Dismissed in part; affirmed in part.'
Jennings, C.J., and Mayfield, J., agree.
This was not a default judgment, Dawson v. Picken, 1 Ark. App. 168, 613 S.W.2d 846 (1981), so Rule 55 is not applicable. | [
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Wendell L. GRIFFEN, Judge.
Florastene Rosser appeals from the decision of the Circuit Court of Monroe County which granted summary judgment in favor of appellee, The Jacobs Company, on Rosser’s complaint in which she sought $50,000 in damages for what she terms misrepresentation, unconscionable business practices, conflict of interest, and breach of fiduciary duty. We hold that the trial court did not err when it granted summary judgment in favor of appellee on its motion asserting that there were no genuine issues of material fact and that appellee was entitled to judgment as a matter of law. We also find that the motion by appellee for attorney fees and costs because of gross defects in appellant’s abstract is well-founded and should be granted because appellant’s abstract is in flagrant violation of Rule 4-2(b) of the Rules of the Supreme Court. Therefore, we affirm the judgment below, and award an attorney’s fee of $750 and brief cost of $42 to appellee, to be paid by counsel for appellant.
This litigation arose from appellant’s purchase of a house located at 208 Karen Lane in Clarendon, Arkansas, pursuant to an offer and acceptance that she executed on April 5, 1991, which was accepted by William M. Smith and Wanda K. Smith (the sellers of the house) the same day. Appellant agreed to pay $33,500 for the house, made a $14,000 down payment, and financed the balance of the purchase price through a loan from Merchants and Planters Bank of Clarendon. The transaction closed on April 19, 1991, and appellant moved into the house during the weekend of July 4, 1991. The house had been listed by appellee, The Jacobs Company, on behalf of the sellers. Appellant requested that The Jacobs Company procure a homeowner’s policy for her, and a policy was issued by Columbia Mutual Insurance Company for an initial coverage period covering April 19, 1991, to April 19, 1992. The policy was later extended for the period from April 19, 1992, to April 19, 1993, but was not renewed after the 1993 expiration date.
Sometime in February 1993, appellant notified David Jacobs, of The Jacobs Company, that water was standing on the roof of the house. Jacobs reviewed the Columbia Mutual policy and informed appellant that the problem was not an insured loss under its terms. According to appellant, the roof began leaking sometime between May and July 1993. Appellant filed this litigation on July 28, 1993, against Columbia Mutual and The Jacobs Company, alleging that Columbia had breached a duty of good faith and fair dealing, had acted in bad faith by refusing to pay a valid insurance claim, and had wrongfully canceled the homeowner’s policy. Appellant alleged that The Jacobs Company was liable for damages because of conflict of interest and breach of fiduciary duties owed to her, and that both defendants were liable because of unconscionable business practices. The complaint sought damages of at least $50,000 from the defendants, jointly and severally, for alleged economic losses, mental anguish, emotional pain, and attorneys’ fees and costs. No service, however, was had on Columbia Mutual. The Jacobs Company filed its answer denying the allegations of the complaint, followed by interrogatories and requests for production of documents and appellant’s deposition. Appellee then moved for summary judgment, supported by appellant’s responses to the interrogatories, her deposition testimony, and the sworn affidavit of David Jacobs. Appellee’s motion was based on the ground that appellant had no cause of action against it arising from its conduct as real estate broker or as an insurance agent. Appellant filed a response, but offered no opposing affidavits or supporting documents. The trial judge heard oral arguments on the motion, and then entered an order granting summary judgment in favor of The Jacobs Company based on its finding that the parol evidence rule and Statute of Frauds prevented consideration of oral proof pertaining to the real estate purchase contract. The trial judge also found that appellant failed to assert a cause of action against The Jacobs Company in tort, and that no cause of action had been asserted against that party in its capacity as agent for Columbia Mutual Insurance Company.
On appeal, appellant argues that the trial judge erred in dismissing her complaint for failure to state a cause of action upon which relief could be granted, and contends that the complaint asserted a cause of action for misrepresentation. That is the only argument raised by appellant on appeal, so there is no reason for us to review the trial court’s decision regarding the Statute of Frauds and parol evidence rulings concerning appellant’s purchase contract pursuant to the longstanding principle that on an appeal from circuit court the appellate court only reviews errors assigned. Arkansas Power & Light Co. v. City of Little Rock, 243 Ark. 290, 420 S.W.2d 85 (1967).
There are five elements to the tort of fraud, misrepresentation, or deceit: (1) a false representation of material fact; (2) knowledge that the representation is false, or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). Appellant testified in her deposition that David Jacobs represented to her that the house she purchased was in good condition and would not need major repairs. She also testified that her “gut feeling” was that Jacobs knew that there was a problem with the roof but that she did not know whether he knew that there was. Even if there was an issue of material fact concerning whether Jacobs represented to appellant that the house was in good condition and would not need major repairs (an assertion that Jacobs denied in the affidavit submitted in support of the summary-judgment motion), appellant was obligated to produce specific facts showing that Jacobs knew that the representations were false. Her deposition testimony demonstrates her failure and inability to do so. She was unable to establish the first and second elements of a claim for misrepresentation. Representations are considered to be fraudulent when made by one who either knows them to be false or, not knowing, asserts them to be true. Miskimins v. City National Bank, 248 Ark. 1194, 456 S.W.2d 673 (1970). Appellant offered no facts to support either conclusion in her response to the summary-judgment motion. Furthermore, we hold that appellant’s failure to produce facts showing that any reliance on her part was justifiable warranted the trial court’s decision to grant summary judgment against her and in favor of the appellees.
Appellees have moved for an award of attorney’s fees and brief cost because of alleged defects in appellant’s brief. That motion is well-taken and should be granted. Although appellant’s brief asserts that the trial court’s dismissal of her complaint for failure to state a claim upon which relief could be granted is the basis of her appeal, she failed to abstract the complaint or any other pleading, including the summary-judgment pleadings that resulted in the decision from which her appeal is taken. She failed to abstract the order by the trial court that granted summary judgment against her. These infractions are sufficient to justify summary dismissal of the appeal for failure to comply with Rule 4-2 of the Rules of the Supreme Court because the deficiencies in the abstract are so flagrant that a decision based on it alone would have been impossible. McAdams v. Automotive Rentals, Inc., 319 Ark. 254, 891 S.W.2d 52 (1995); Haynes v. State, 313 Ark. 407, 855 S.W.2d 313 (1993). But for the supplemental abstract contained in the appellee’s brief, it would be impossible for us to understand the basis for the appeal or review the order on which it is based.
Rule 4-2(b)(l) provides that when an appeal is considered on its merits involving a flagrantly defective abstract which has been brought to an appellate court’s attention by the appellee who has opted to submit a supplemental abstract in its brief, the appellate court may impose costs to compensate for the other party’s noncompliance with the Rule. Counsel for appellee has complied with the requirement of submitting a statement showing the cost of the supplemental abstract and his certificate showing the amount of time devoted to preparing the supplemental abstract. There is clear judicial precedent holding that attorney’s fees may be assessed as costs against a party who has filed a flagrantly defective brief. See Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Roach v. Terry, 263 Ark. 774, 567 S.W.2d 286 (1978). However, we have not found cases where those costs have been assessed directly against counsel for the party on whose behalf the flagrantly defective abstract was filed. Nevertheless, in this case we believe that basic fairness requires us to grant the appellee’s motion for costs and attorney’s fees in preparing the supplemental abstract and brief, and assess the amount of that cost and fee against counsel for appellant. Counsel was responsible for knowing the rules regarding abstracting, preparing her client’s brief, and ensuring that the rules were followed. Rather than impose the cost of the flagrant dereliction in this regard against appellant, we grant the motion by appellee for the costs associated with preparing the supplemental abstract and assess that cost against appellant’s attorney. Counsel for appellant is hereby ordered to pay an attorney’s fee of $750 to counsel for appellee, plus $42 for the cost of the supplemental abstract.
Affirmed. Appellee’s motion for imposition of cost for preparing the supplemental abstract is granted.
Robbins and Stroud, JJ., agree.
As will be seen later in this opinion, appellant’s theory of alleged liability is unclear, whether judged from the language of her complaint or the summary judgment pleadings. Unfortunately, her brief contains no abstract of the pleadings. However, because the argument section of her brief mentions “the tort of fraud, misrepresentation, or deceit,” we have reviewed her appeal from the entry of summary judgment from the perspective of that allegation, notwithstanding what we find to be flagrant and inexcusable deficiencies in her abstract and brief regarding this and other areas of the appeal.
The pertinent provision of appellant’s complaint regarding the damages allegation reads as follows:
As a result of defendants [sic] joint and severable conduct, plaintiffhas suffered economic losses, mental anguish, emotional pain and the attorneys fees and cost necessitated by their conduct.
Accordingly, plaintiff request [sic] that the jury award her the sum of money which will compensate her for her loss, compensate her personal injuries and cause defendants reason to give considerable reflection and contemplation to proceeding on the same course of conduct made the basis of this complaint in the future. | [
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JUDITH Rogers, Judge.
The appellant, Kenneth Smith, was found guilty in a jury trial of driving while intoxicated, first offense, for which he was sentenced to a year in jail and fined $500. Appellant raises three evidentiary issues on appeal. Finding no merit in his arguments, we affirm.
Since the sufficiency of the evidence is not at issue, we briefly set out the facts necessary for an understanding of the points raised in the appeal. Belinda Shelton, a Pope County Deputy, received a dispatch concerning a car in a ditch with someone lying on the hood. When she arrived, she found appellant on the hood of the car. She testified that appellant told her that he had been driving around and had driven into the ditch so that the police would come and get him. She said that appellant spoke with a thick tongue, that his eyes were bloodshot, and that he showed signs of intoxication, but that she did not detect the odor of intoxicants. Deputy Shelton said that appellant admitted that he had snorted cocaine some time prior to the accident. She placed appellant under arrest and took him to the hospital for blood and urine testing. Shelton testified that appellant was fidgety at the hospital and that he was carrying on a conversation with a nonexistent person named “Mac,” who was supposedly in the ceiling. She said that appellant was having other hallucinations as well. It was disclosed at trial that methamphetamine, amphetamine, and cannabinoids were present in appellant’s urine. There was further testimony that a person who had taken a high dosage of methamphetamine might hallucinate.
During her testimony, Deputy Shelton stated that there had been a constable and a wildlife officer at the scene when she arrived. On cross-examination, she admitted that she had failed to mention this in her report and that she had not informed the prosecutor, either, explaining that the two men had told her that they had not had any contact with the appellant. It was also revealed that the blood sample taken from the appellant had not been tested because it had been sent to the wrong place and had later been destroyed. The trial court sustained the State’s objection to the appellant questioning the witness about her awareness of a motion for discovery requesting the names of everyone involved. Appellant questions the trial court’s ruling as his first issue on appeal.
The discovery motion referred to by appellant was one filed in municipal court where appellant had been previously found guilty and an appeal had been taken to circuit court. The trial court, noting that this was a trial de novo, disallowed questions pertaining to such a discovery motion because the record did not disclose that a discovery motion had been filed in circuit court. Appellant argues that the fact that no new motion for discovery had been filed did not relieve the State of its duty to disclose. We agree with the trial court’s ruling.
Appeals from municipal court to circuit court are tried de novo. Ark. Code Ann. § 16-96-507 (1987). And, the purpose of the trial de novo is to conduct a trial as though there had been no trial in the lower court. Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993). In Bussey v. State, the appellant had filed a motion in municipal court requesting the presence of the operator and the person who calibrated the breathalyzer machine, pursuant to Ark. Code Ann. § 5-65-206(d)(2) (Repl. 1993). In the appeal to circuit court, the appellant objected to the introduction of the test results on the ground that those persons were not available for cross-examination. The supreme court upheld the trial court’s ruling that the statutory notice must be renewed in the circuit court proceeding and that the appellant could not rely on the former motion because, under Ark. Code Ann. § 16-96-507, a trial in circuit court is treated as an entirely new trial, as though the case had originated in circuit court. It follows from this decision that appellant’s reliance on his previous motion for discovery is misplaced.
Appellant’s remaining arguments concern the testimony of Kelly Lane, a nurse at the hospital where the samples of blood and urine were taken. Ms. Lane testified that in her work she regularly came into contact with persons under the influence of intoxicants. She said that appellant’s pupils were constricted, that he was “hyper” and “very restless,” and that he could not follow the commands she gave in order to draw his blood. She testified that he would sit down, but that he was “very fidgety” on the examination table. Appellant objected when the witness was asked whether appellant seemed more than simply nervous. The trial court overruled the objection and Ms. Lane testified that what stayed in her mind was that he was different from just being nervous because she had to constandy repeat commands, because he was in constant motion, was “wild-eyed,” jittery, fidgety and pacing the room.
Appellant contends that the trial court erred by allowing the testimony because the witness was not qualified to offer an opinion with respect to the cause of the appellant’s nervousness. It is clear from a reading of the record, however, that the witness did not offer an opinion as to why the appellant appeared nervous, as appellant complains. In responding to the question, the witness simply described the behaviors she observed without attributing that behavior to any particular cause. Although she testified that the behavior seemed “different” from just being nervous, we do not find that testimony objectionable. Rule 701 of the Arkansas Rules of Evidence permits a lay person to offer opinion testimony that is rationally based on the perception of the witness and is helpful to a clear understanding of his or her testimony, or the determination of a fact in issue. Thus, it is not required in all circumstances that a witness be qualified as an expert in order to state an opinion. Whaley v. State, 11 Ark. App. 248, 669 S.W.2d 502 (1984). Whether to admit such testimony rests in the sound discretion of the trial court, and our standard of review is abuse of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Given her stated experience and her personal observation of appellant’s conduct, we find no abuse of discretion in the trial court’s ruling.
Ms. Lane later testified, over appellant’s objection, that she did not feel that appellant could safely drive a vehicle in his condition. Appellant contends that the trial court erred by permitting Ms. Lane to give an opinion as to whether the appellant was intoxicated because she did not know the legal definition of intoxication under the laws of this state. Again, appellant mischaracterizes the witness’s testimony because she did not testify that appellant was “intoxicated.” Even so, under Rule 701, lay witnesses have been allowed to testify that in their opinion someone was intoxicated. Clawson v. Rye, 281 Ark. 8, 661 S.W.2d 354 (1983). The witness testified about her experience of regularly dealing with intoxicated persons, and her opinion that appellant was in no condition to safely drive a car was based on her observation of appellant’s behavior. We find no abuse of discretion.
Affirmed.
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JUDITH Rogers, Judge.
The appellant, Naomi Stokes Howard, as executrix of the Estate of Frances Parette, brings this appeal from an order dismissing her complaint against appellee, Aubrey Weathers. As her only issue on appeal, appellant contends that the trial court erred in finding that a valid inter vivos gift had been made to appellee of money belonging to the deceased as the beneficiary of an estate, but which was retained by appellee after his discharge as the executor of that estate. We find merit in appellant’s argument and reverse.
Frances Parette and Juanita Richenback were sisters. Juanita died in June of 1987, and she left a will nominating appellee as the executor of her estate and naming Frances as her sole beneficiary. According to the final accounting, $34,758.72 was to be distributed to Frances upon the closing of the estate. Frances died testate in September of 1990. In her will, she appointed appellant as the executrix of her estate and designated appellant as her sole beneficiary. On behalf of Frances’s estate, appellant filed this suit claiming entitlement to the proceeds of Juanita’s estate which she alleged had not been distributed to Frances in accordance with Juanita’s will and the order of final distribution of Juanita’s estate. After a trial, the trial court dismissed appellant’s complaint, thereby accepting appel-lee’s claim that Frances had made a gift of the money to him.
In his testimony at trial, appellee openly acknowledged that he had retained the money after the closing of Juanita’s estate, but he said that he had done so at Frances’s behest. He explained that, at Juanita’s funeral, Frances instructed him to “take care” of the money she was to inherit and to send her $100 a month. Appellee also stated that, although he and Frances were virtual strangers, Frances told him that he could keep the remainder when she died. Introduced into evidence was a letter written by Frances to appel-lee, dated June 10, 1988, in which she stated, “Just send me one 100 [sic] a month. I don’t want it all at once.” Also introduced was a letter written by appellee to Frances, dated August 19, 1988, in which appellee informed Frances that “[t]here is now available to be distributed to you or to be held and paid over to you as you have previously directed me to do so the sum of $34,758.72.” Appellee testified that he kept the money in a joint account in both of their names and sent Frances $100 a month until her death, as well as additional sums when requested. He also testified that he would have sent her “$1,000 or $10,000,” if she had ever asked for it. He maintained that he had refused appellant’s request to turn over the money to Frances’s estate because Frances had made a gift of the money to him.
Appellee’s testimony was confirmed in several respects by J.W Green, the attorney who handled the probate of Juanita’s estate, and in particular by the testimony of Reverend J.T. Welch, Frances’s pastor. Reverend Welch testified, by deposition, that Frances had first asked him to hold the money under the same arrangement to give her $100 or more a month for whatever she needed and to keep the balance upon her death. He said that, when he refused, Frances told him that she was going to approach appellee, since her sister had trusted him well enough to name him as the executor of her estate. Reverend Welch testified that appellee sent him the monthly allowance to forward to Frances, who lived in a nursing home. He also stated that it was his understanding that Frances could have asked appellee for all of the money if she had wanted it.
At issue in this case is whether Frances made a completed inter vivos gift of the money to appellee. Gifts inter vivos, as well as causa mortis, are based on the fundamental right everyone has of disposing of his or her property as he or she so desires. While the law leaves the power of disposition complete, it regulates the methods by which it is accomplished to guard against fraud and imposition. Krickerberg v. Hoff, 201 Ark. 63, 143 S.W.2d 560 (1940). To that end, our law is clear that in order for an inter vivos gift to transpire it must be proven by clear and convincing evidence that (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. Wright v. Union National Bank, 307 Ark. 301, 819 S.W.2d 698 (1991).
Over the years, our courts have focused on the requirement of delivery. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 8 27 (1992). It is said that mere delivery of possession is not sufficient, but there must be an existing intention accompanying the act of delivery to pass title, and, if this does not exist, the gift is not complete. Krickerberg v. Hoff, supra. Thus, the effect of the delivery must be that the donor parts, not only with possession, but with dominion over, and control of, the property so delivered. Baugh v. Howze, 211 Ark. 222, 199 S.W.2d 940 (1947).
Applying these established principles to the case at bar, we must conclude that the elements necessary to establish a valid gift are sorely lacking. According to appellee’s own testimony, Frances was to receive a monthly stipend, and she retained the authority to demand additional sums at her own pleasure. Therefore, it cannot be said that Frances completely surrendered dominion and control over the money by placing it in appellee’s hands. It necessarily follows that she did not unconditionally or irrevocably make an immediate and final gift. At best, the evidence reflects an attempt to make a gift of the remainder upon the contingency of her death. However, a gift inter vivos cannot be made to take effect in the future, as such a transaction would only be a promise or an agreement to make a gift. Krickerberg v. Hoff, supra; Neal v. Neal, 194 Ark. 226, 106 S.W.2d 595 (1937); Bryant v. Parker, 188 Ark. 598, 66 S.W.2d 1061 (1934). For these reasons, we hold that appellant is entitled to recover the funds held by appellee, and we reverse the trial court’s contrary decision.
Reversed.
Mayfield and Neal, JJ., agree.
J.W. Green offered testimony that Frances believed that her receipt of the money would interfere with her staying in the nursing home. | [
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OLLY Neal, Judge.
Appellant James Dray, a former sergeant of the Bentonville Police Department, takes this appeal from an order affirming the denial of his request for unemployment benefits entered by the Arkansas Board of Review on June 29, 1994. The Board agreed with the Arkansas Appeal Tribunal in its findings that the Appeal Referee presiding at the hearing on appellant’s claim correcdy found that appellant was discharged for misconduct connected with his employment. We disagree and reverse the Board’s decision.
Appellant’s alleged work-related misconduct occurred about 2:00 a.m., December 20, 1993, at the Bentonville Police Department. On that date, appellant was notified by one of his fellow officers that appellant’s 15-year-old son, Casey, had been arrested on a charge of public intoxication, and would only be released to a parent or legal guardian. When appellant arrived at the police station, his son was very intoxicated, argumentative, and belligerent toward the police officers who arrested him and toward his father. Appellant slapped his son on the face twice in response to the conduct. Appellant was terminated effective January 25, 1994, and on March 2, 1994, was notified by the Arkansas Employment Security Department of his disqualification to receive benefits.
At the hearing before the Appeal Tribunal, appellant testified that prior to his termination he had been employed by the City of Bentonville as a police officer for almost ten years. Mr. Dray stated that when he received the call from the police department concerning his son’s arrest, he was off duty on sick leave due to an accident he had in November 1993. Appellant was not in uniform when the incident occurred. According to Mr. Dray, he had no responsibilities that called for contact with juveniles and would not have been at the police station if the juvenile who was arrested had not been his son. Mr. Dray admitted that he struck his son in the face and testified that he did so because his son “smarted off” to him after being admonished for being disrespectful to other officers.
Appellant also presented documentary evidence consisting of his own Employment Security Department Worksheet and State ment concerning his discharge, the statement of City of Benton-ville’s Mayor, John W. Fryer, concerning the discharge and transcripts of interviews with the police officers who witnessed the incident. Appellant’s worksheet reflected that appellant had been issued a manual containing rules and regulations of the employer in 1991 and that at the time of the issuance, appellant’s supervisor indicated he was not happy with the manual and was only passing them out because everyone “was complaining about no set of rules and regulations.” Appellant claimed in his statement that he had never been warned that his type of behavior could result in his termination and that he was not aware of the employer’s policy on the subject.
Mayor Fryer, on the other hand, acknowledged in his statement that appellant had never received any warnings concerning his specific behavior, but claimed that appellant was aware of the general policy against striking “handcuffed prisoners” by virtue of his nine and one-half years of employment as a police officer.
A transcription of a December 22, 1993, interview with appellant regarding the slapping incident was also introduced as evidence. During the interview, appellant admitted that he struck his son in the police station, but claimed he wasn’t trying to hurt him. Appellant stated that he only slapped the boy hard enough “to get his attention because he was mouthy and cussing.” Appellant also stated that the slap did not leave any marks or imprints or bruises. After the incident, appellant immediately took his son home.
Appellant’s statement was somewhat corroborated by the testimony of Lieutenant Jerry Williams in a separate interview which occurred on December 21, 1993, the day before appellant was interviewed. Lieutenant Williams stated that Casey Dray was completely uncooperative and “mouthing and carrying on and yelling and screaming” from the time he was picked up until he was confronted by appellant. Williams stated that no bruises or other marks resulted from the slapping and that no serious damage was done.
On appeal, we review the findings of fact of the Board of Review in the light most favorable to the prevailing party, only reversing where the findings are not supported by substantial evidence. Roberson v. Director of Labor, 28 Ark. App. 337, 775 S.W.2d 82 (1989). Substantial evidence is such evidence that a reasonable mind would find adequate to support a conclusion.
Misconduct has been defined as “more than mere inefficiency” or unsatisfactory judgment; it is “some act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, or a disregard of the standard of behavior the employer has a right to expect of its employees.” Baker v. Director of Labor, 39 Ark. App. 5, 832 S.W.2d 864 (1992); Feagin v. Everett, Director, 9 Ark. App. 59, 652 S.W.2d 839 (1983); Ark. Code Ann. § 11-10-515(b) (1987). In order for an employer to show that his employee’s off-duty activities rise to the level of misconduct in connection with the employment, the employer must show by a preponderance of the evidence:
[T]hat the employee’s conduct (1) had some nexus with her work[,] (2) resulted in some harm to the employer’s interest, and (3) was in fact conduct which was (a) violative of some code of behavior impliedly contracted between employer and employee, and (b) done with intent or knowledge that the employer’s interest would suffer.
Feagin, supra, at 68.
In the case at bar, the record is sufficient to support the findings that an implied contract prohibiting certain behavior existed between appellant and his employer. However, no copy of any of the specific rules or regulations is a part of the record. It is, therefore, impossible on appeal to ascertain what the exact prohibitions were and whether appellant was guilty of violating any of them. Also, appellant testified that when he struck his son he was reacting as a parent to the boy’s behavior, and didn’t think that his conduct would reflect adversely on the department. Appellee offered nothing to refute appellant’s contention that he had no intention of harming his employer’s interest.
The employer also had the burden of showing that some actual harm resulted from appellant’s conduct. The only evidence offered in this regard is that some of appellant’s subordinate officers and one civilian were present in the same building in which the incident occurred. There is no evidence that the one civilian witnessed the incident or that any of the officers present interpreted the act as having any implications toward their own dealing with prisoners or inmates to whom they had no lawful responsibility by nature of a parent-child relationship.
Finally, the Board’s decision indicates that its decision was partially based on the fact that “the employer’s rules for the use of physical force reasonably extended to the claimant’s off-duty activities towards a person in the employer’s custody.” The record reflects, however, that appellant had been called to the police station for the very purpose of taking his son out of the employer’s custody; the son therefore had impliedly been released, and was not in the “employer’s custody.” This tends to support appellant’s contention that he had no intention of adversely affecting the employer’s interest.
In sum, because appellee failed to prove that appellant possessed the requisite intent when he violated a rule, regulation, or occupational standard of the employer, we cannot say the Board’s decision is supported by substantial evidence.
Reversed.
Mayfield, J., agrees.
ROGERS, J., concurs in result. | [
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John F. Stroud, Jr., Judge.
Marcela Johnston appeals from an order of the juvenile court which determined that her daughter, Blair, was dependent-neglected and placed Blair in a foster home, with appellee Department of Human Services maintaining legal custody. We affirm.
Blair Johnston was born on November 23, 1994. On April 10, 1995, when she was approximately four and one-half months old, the Arkansas Department of Human Services received a complaint concerning Blair, alleging child neglect. A seventy-two hour protective hold was placed on Blair. On April 18, 1995, DHS filed a petition for emergency custody. On the same day, an ex-parte order for emergency custody was entered by the Juvenile Division of the Pulaski County Chancery Court, and Blair was placed in DHS custody. On April 24, 1995, the probable cause hearing was held. The court determined there was probable cause to believe that the emergency conditions which necessitated Blair’s removal continued. Blair remained in DHS custody pending the adjudication hearing. The adjudication hearing began on May 16, 1995, and was continued on June 22, 1995. The adjudication order was entered on July 26, 1995, finding that Blair was dependent-neglected; that it would not be in her best interest to return to appellant’s custody; and that it was in Blair’s best interest to continue in foster care with legal custody remaining in DHS.
Appellant raises two points of appeal, both of which have several subpoints. The two major points can be summarized as follows: (1) the trial court erred at the probable cause hearing in finding that probable cause existed for continuation of the emergency order; and (2) the trial court erred at the adjudication hearing in finding that Blair was dependent-neglected. The second point controls the outcome of this appeal, and we find no clear error in the chancellor’s decision.
We do not decide the first issue since it is not necessary to the outcome of this appeal. However, we note our serious reservations concerning the amount of evidence left to establish probable cause after the allegations in the affidavit supporting the petition for emergency custody were explored at the probable-cause hearing. Since probable-cause-hearing orders are not final and appealable, the statutory scheme of the. juvenile code adds the safeguard of requiring that an adjudication hearing be held within thirty days of the probable cause hearing. In that way, any errors made in the probable cause hearing, which would not be subject to immediate appeal, are minimized by requiring the foil adjudication hearing to follow soon thereafter.
Although appellant subdivides her second point of appeal into several subpoints, the root of her argument is that the trial court’s finding that Blair was dependent-neglected is clearly against the preponderance of the evidence. We find that the trial court’s decision was not clearly erroneous.
At the adjudication hearing, the chancellor heard the testimony of Rickie Lockwood, a clinical therapist for the Little Rock Community Mental Health Center. Ms. Lockwood held a bachelor’s degree in sociology and a master’s degree in clinical social work, which she received in 1993. However, she had worked professionally in the field of abuse and neglect for eighteen years.
Appellant had a history of psychological difficulties and had been diagnosed as having bipolar disorder, for which lithium is a prescribed medical treatment. Appellant was hospitalized for the condition in June 1994, at which time her mother and brother obtained custody of her other daughter, Randal. When she was released from the hospital, appellant was treated at the Little Rock Community Health Center. Ms. Lockwood began seeing appellant in September 1994 after appellant expressed a desire to have Ms. Lockwood as her primary therapist, rather than the therapist she had been seeing. Ms. Lockwood continued seeing appellant for weekly sessions through January 20, 1995, a period of approximately five months.
For the majority of this five-month period, appellant was pregnant with Blair and therefore unable to take lithium. Blair was born on November 23, 1994. Appellant’s symptoms increased after Blair’s birth. She began taking lithium around the first of December 1994, but it takes time for the medication to become regulated and begin working. She was hospitalized from December 12, 1994, to December 21, 1994. Ms. Lockwood last saw appellant on January 20, 1995. Appellant changed doctors and began seeing Dr. Brad Diner in January 1995. He was her treating psychiatrist at the time of the probable-cause hearing and the adjudication hearing.
Ms. Lockwood testified that appellant was very impulsive; that she externalized blame and responsibility for everything that happened; that she exercised poor judgment; that she acted in an adolescent manner; and that she had a history of objectifying or seeing her children as objects rather than as human beings with needs. She also testified that appellant had a history of stopping medication against doctors’ recommendations. She stated that she does not think appellant is capable of nurturing Blair emotionally; and that appellant is not capable of caring, understanding, and opening up. She stated that her concern really deepened when appellant commented to her that she had sometimes put Randal, appellant’s other daughter, in a room with a baby gate and allowed her to cry herself to sleep or tear up the room. Ms. Lockwood stated that in her opinion appellant’s parenting abilities are very limited and that Blair would be at risk in appellant’s home.
The other testimony presented at the adjudication hearing was either generally favorable or neutral with respect to appellant’s ability to care for Blair. For example, Blair’s pediatrician, Dr. Anthony Johnson, testified that he saw Blair when she was two weeks old, ten weeks old, three-and-one-half months old, and four-and-one-half months old; that she was clothed appropriately, clean, developing perfectly; that appellant acted appropriately with Blair during these visits and appeared to be bonded with Blair; that he had seen nothing to make him think there was a problem; and that he has a number of patients who have bipolar disorder and properly care for their children.
Sue Wilson is the DHS caseworker who supervised appellant’s visits with Blair during the one-month period between the time Blair was removed from appellant’s custody and the adjudication hearing. She testified that there had been at least four or five visits of about two hours each, and that appellant’s actions with Blair were very appropriate.
Judy Sanders is the director of the preschool Blair attended prior to her removal to DHS custody. Ms. Sanders testified that she had observed appellant with Blair from January 1995 until April 1995, and that appellant interacted well with Blair and met her physical needs.
Gloria Beard kept Blair in the baby room at the preschool. She saw appellant with Blair on a daily basis. She felt Blair was doing fine and saw no problems.
Nancy Brinkley had known appellant for about one year after working with her at the same place of employment. She testified that appellant interacted appropriately with other persons in the office. She also said that she had seen appellant with Blair on a couple of occasions, and that she interacted really well with Blair.
Reba Gaines was an intake supervisor with the DHS Division of Children and Family Services. She supervised Michael King, the family services worker who investigated the report of child maltreatment concerning appellant which was conducted prior to the probably cause hearing. She testified that King called her from appellant’s home and told her he saw no reason to place Blair into custody that day; that she was a happy, healthy baby; and that he felt the situation was good. She said DHS decided to remove Blair based on information received from Rickie Lockwood.
Appellant testified about her medical history, her current treatment and therapy with Dr. Diner, and the allegations contained in the petition that resulted in Blair’s removal from appellant’s custody.
Dr. Brad Diner testified that he had seen appellant five times since January 1995, approximately thirty minutes each visit, and that he had talked with her by telephone on numerous occasions. However, he had not seen appellant and Blair together. He said that bipolar was still his working diagnosis for appellant; that her lithium levels were in the therapeutic range; that he was comfortable with the fact she was adhering to the minimum requirements necessary to keep her stable; that he had never seen anything to suggest that appellant would harm her children; that he knew of no reason from a mental health standpoint why Blair should not be returned to appellant. He acknowledged appellant’s extensive medical history, and acknowledged that there was some confusion among other treating physicians about whether her diagnosis was schizophrenia or bipolar disorder. He agreed that there was a point at which she had been seriously disturbed, but she was not now; that there are “tons” of people with mental diseases that do not make them unfit parents; that he had no current concerns about appellant complying with her treatment; and that he would have no problem providing the court with periodic reports.
Furthermore, as part of the adjudication hearings, the chancellor ordered appellant to submit to “a parenting assessment designed to formulate a plan to correct any deficiencies.” A letter from Larry Clarke, the psychologist who assessed appellant, was introduced at the adjudication hearing. The letter stated that he met with appellant on June 12, 1995, for more than four hours, and that she related her life history, her experiences in her family of origin, her educational background, her marriage and divorce, her decision to have children (Randal, age 7, and Blair, 6 months) by artificial insemination, her treatment with lithium for depression/bipolar disorder, and events surrounding her daughter’s being taken from her custody. He was also able to meet with appellant and Blair on June 13, 1995, for approximately thirty minutes during their weekly visit at the DHS offices. He concluded in pertinent part:
Dr. Johnston’s [appellant’s] behavior with Blair was entirely appropriate. She brought with her to the visit a number of objects suitable for play with a baby of Blair’s age and proceeded to employ them skillfully to keep Blair amused.
Blair’s responses to her mother were positive and as expected for an infant of 6-7 months.
My assessment of Dr. Johnston [appellant] detected no reason why she should not be currendy capable of caring for her daughter. My own inclination would be to return Blair to her unless there were some substantial evidence she had regularly behaved in ways which placed this child at risk.
The view that her current psychological functioning is adequate to permit good parenting was further supported by the Personality Assessment Inventory which Dr. Johnston [appellant] completed at the time of her evaluation.
She is a highly educated person who reports that she has a Masters degree in counseling from N.Y.U. and a Ph.D. in psychology from Hofstra.
Dr. Johnston [appellant] has been diagnosed with a bipolar disorder.... Although this is a relatively serious psychiatric diagnosis, it is also one which can often be very well controlled through medication.
Although Dr. Johnston [appellant] is currently functioning well it is not possible to say how her condition might change if she were to discontinue medication without consulting her physician. For this reason, I have strongly recommended that she make no change in medication without consulting Dr. Diner.
Dr. Johnston [appellant] has indicated that she plans to continue her work with Dr. Diner and would not change her medication unilaterally. Dr. Diner can indicate for the court whether Dr. Johnston [appellant] has been compliant with treatment to date.
The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark. Code Ann §§ 9-27-325(h)(2)(B) (Supp. 1995). We review a chancellor’s findings of fact de novo, and will not set them aside unless they are clearly erroneous, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses. Ark. R. Civ. P. 52(a). A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence the reviewing court is left with the definite and firm conviction that a mistake has been made. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).
A dependent-neglected child is one who “as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness is at substantial risk of serious harm.” Ark. Code Ann. § 9-27-303(12) (Supp. 1995). The juvenile code further defines “neglect” as an act or omission by a parent which constitutes the “[f]ailure or irremedial inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile.” Ark. Code Ann. § 9-27-303(23)(D) (Supp. 1995).
At the adjudication hearing, the chancery court was presented with conflicting testimony concerning appellant’s ability to provide for the essential and necessary physical, mental, or emotional needs of Blair, an infant totally dependent upon her care giver. Therefore, we cannot say that the chancellor’s choice of crediting Ms. Lockwood’s testimony over that of the other witnesses was clearly erroneous.
Affirmed.
Jennings, C.J., and Pittman, Robbins, and Rogers, JJ., agree.
Mayfield, J., dissents. | [
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Larry D. Vaught, Judge.
Appellant Victor Bettis appeals the trial court’s order modifying the divorce decree that extended and increased alimony payments to his former wife, appellee Wendy Bettis. We affirm.
Victor and Wendy were divorced in 2002. They have three children — Megan, Jacqueline, and Evan. Jacqueline and Evan were minors at the time of the divorce, age sixteen and fourteen respectively. Jacqueline suffers from cerebral palsy and is confined to a wheelchair. Although Jacqueline requires twenty-four hour a day care, she is currently enrolled at the University of Central Arkansas and maintains a 3.0 grade-point average.
The divorce decree awarded custody of Jacqueline and Evan to Wendy; awarded Wendy child support for Jacqueline and Evan; acknowledged that child support for Jacqueline would continue beyond the age of majority because of her disability; and awarded $1000 per month in alimony to Wendy until Evan graduated from high school.
In November 2004, the trial court entered an order that, among other things, stated that child support would continue for Jacqueline due to her disability; however, the parties agreed that child support for Jacqueline was abated as of May 1, 2004, so that she could receive government assistance. According to the testimony at trial, Jacqueline is not entitled to government benefits if Wendy receives child-support payments for Jacqueline.
On March 20, 2006, Victor filed a motion for termination of alimony and child support. He alleged that child support payments for Evan should be terminated, because Evan turned eighteen and was about to graduate from high school. Wendy conceded this issue, and the trial court terminated these payments. Victor also alleged that alimony should be terminated because the divorce decree stated that alimony will be terminated upon Evan’s graduation from high school. Wendy filed a response and counter-motion seeking the continuation and increase of alimony.
At trial, Wendy testified that she is employed as a teacher at the Cathedral School where she has worked for twelve years. Her salary for the 2006-07 school year was $33,000. Since the divorce, her salary has increased $5100. She fives in the home that she and Victor built to accommodate Jacqueline’s special needs. The testimony was undisputed that Wendy is the primary-care giver for Jacqueline year round and that Jacqueline needs assistance with every task. Also, while Jacqueline is in college during the school year, she fives with Wendy during the weekends, holidays, and summers.
Victor testified that he is employed with Remington Arms where he earns $82,500 a year. He testified that since the divorce, his salary has increased in excess of $10,000. He admitted that Wendy is the primary care giver for Jacqueline, but he testified that he provides help when needed.
Lyles Henry testified on behalf of Wendy as an expert witness. He reviewed Victor’s tax returns and his Affidavit of Financial Means. Mr. Henry testified that Victor had a net annual income of $60,022 and expenses of $36,732. Therefore, Mr. Henry concluded that Victor had the ability to pay $1000-$2000 per month in alimony.
The trial court subsequently entered an order finding that there had been a substantial change in circumstances since the entry of the divorce decree justifying an increase in the duration and amount of alimony awarded to Wendy. The trial court stated:
The substantial change in circumstances include the following:
a. The Defendant’s annual income increased by at least $10,000 since the entry of the Divorce Decree and the Plaintiffs annual income increased by at least $5000 since the entry of the Divorce Decree.
b. The Defendant received a $30,000 bonus from his employer.
c. The child support for Jacqueline has been abated. The Plaintiff anticipated at the time of the divorce that she would be receiving child support payments to assist in Jacqueline’s care and to provide her a home. Plaintiff is not receiving child support payments to assist her in the care of Jacqueline, who is an adult and who is in need of care because of her disability.
d. Jacqueline is attending college.
e. The Defendant is not paying any child support for Jacqueline and therefore has a higher level of income than he anticipated at the time of the divorce.
f. Plaintiff provides a substantial amount of care for Jacqueline.
g. Either of the parties could have chosen to provide the care for their adult daughter, who is in need of substantial care, however, the party who provided the care for Jacqueline was Plaintiff.
The trial court further stated that it considered the tax effect of Victor’s continued alimony payments. The court found that Wendy’s weekly income was approximately $512 while Victor’s weekly in come was approximately $1,184.55. The trial court then awarded alimony to Wendy in the amount of $1150 per month and awarded her $3000 in attorney’s fees and expenses. Victor has appealed from this order.
Victor first argues that the trial court erred in finding that there had been a change in circumstances sufficient to continue and increase alimony to Wendy. He argues that Wendy is actually seeking child support but calling it alimony. A decision whether to award alimony is a matter that lies within the trial court’s sound discretion, and on appeal we will not reverse a trial court’s decision to award alimony absent an abuse of that discretion. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000); Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). Alimony is intended to rectify any economic imbalance in the earning power and standard of living of the parties in light of the particular facts of the case. Cole, 82 Ark. App. at 58, 110 S.W.3d at 317. The primary factors to be considered are the financial need of one spouse and the ability of the other spouse to pay. Id.
Modification of an award of alimony must be based on a change of circumstances of the parties. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998). The burden of showing a change of circumstances is always on the party seeking the change in the amount of alimony. Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). In the divorce decree, the parties agreed that alimony would discontinue when Evan graduated from high school. Therefore, the burden of showing a change of circumstances to support a continuation and increase of alimony was on Wendy.
We hold that the trial court did not abuse its discretion in modifying the divorce decree by continuing and increasing alimony. First, the evidence supports the trial court’s findings of Victor’s ability to pay and Wendy’s need. Wendy’s annual income is $33,000 while Victor’s is $82,500. Wendy’s expert witness testified that Victor had the ability to pay up to $2000 per month in alimony. At trial, Victor admitted that “I’ve got more than enough [money] to cover my expenses and continue to pay the alimony.” In contrast, Wendy testified that, “I cannot make my house payment without the current alimony.” Wendy’s ability to pay the mortgage is significant in light of the undisputed fact that she is the primary care giver for Jacqueline who, along with Wendy, must have a place to live. Even Victor testified about the importance ofWendy having a home: “I would agree that Jacque line needs a place to stay on the weekends. [I] [n]ever denied that [Jacqueline] needs a place to stay on holidays and in the summer. My ex-wife has been the only one to provide that.”
Furthermore, we hold that the trial court did not abuse its discretion in finding a change of circumstances. Since the entry of the divorce decree, Victor’s income increased by $10,000 while Wendy’s increased only by $5000. At the time of the divorce, Victor anticipated paying child support indefinitely, and because it was abated, he has experienced an unexpected increase in income. When the parties divorced, Wendy testified that she never anticipated that Jacqueline would be able to attend college. Moreover, Wendy did not anticipate that Jacqueline’s child support would be abated so that Jacqueline could receive government benefits. These facts alone demonstrate a significant change in circumstances since the entry of the divorce decree.
We disagree with Victor, and the dissent, that this case is nothing more than Wendy’s effort to collect child support by calling it alimony. We further acknowledge the unusual circumstances of this case: Jacqueline will likely need care and support for the rest of her life, but she cannot be the beneficiary of child-support payments because of her receipt of government benefits. Nevertheless, based on the findings of the trial court Wendy is, independent from the child-support issue, entitled to continued and increased alimony.
Victor also argues that the trial court erred in awarding $3000 in attorney’s fees and expenses in favor of Wendy. Arkansas Code Annotated section 9-12-309(b) (Repl. 2002) provides that a court may allow either party additional attorney’s fees for the enforcement of alimony. Victor contends that his motion to terminate alimony and Wendy’s counter motion to continue and increase alimony does not fall within the purview of that statute. We disagree. There was only one issue in this case — whether Wendy was entitled to alimony. We also note that the trial court has great discretion on the issuance of an attorney’s fee award in alimony cases. McKay, 340 Ark. at 183, 8 S.W.3d at 532. Therefore, we cannot say that the trial court abused its discretion in awarding attorney’s fees to Wendy, and we affirm the award.
Affirmed.
Pittman, C.J., and Hart, Bird and Heffley, JJ., agree.
Gladwin, Griffen, Glover and Miller, JJ., dissent.
Jacqueline receives college tuition scholarships from the Arkansas Academic Challenge and Arkansas Rehabilitation, social security disability benefits, Medicare benefits, and Independent Choices benefits. | [
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OLLY NEAL, Judge.
John Christian appeals from an order of the Arkansas Workers’ Compensation Commission finding that he was not an employee covered under Arkansas Workers’ Compensation Law at the time of his injury, thereby precluding an award of workers’ compensation disability benefits. For reversal, appellant contends that the Commission erred as a matter of law in ruling that appellant was not an employee of Arkansas Crane & Crawler and that the Commission’s decision was not supported by substantial evidence. We find merit in appellant’s argument and reverse and remand.
Appellant sustained an injury on June 2, 1994, when he fell twenty feet from a ladder while working at the residence of Gilbert Garrett. Garrett is an officer in several corporations including Arkansas Crane & Crawler, Garrett Excavating, and Garrett Enterprises. Arkansas Crane & Crawler primarily engages in the purchase and sale of equipment; Garrett Excavating contracts excavation type work, and Garrett Enterprises purchases property for investment purposes. Mr. Garrett pays for work performed on his home through Garrett Enterprises. After the injury appellant received a week’s pay from Arkansas Crane & Crawler and an advance of $200 written on the bank account of Garrett Enterprises.
There was some dispute as to the nature of the relationship between the parties. When appellant filed a claim for workers’ compensation disability benefits he stated that he was employed by either Arkansas Crane & Crawler, Garrett Excavating, or Garrett Enterprises. At the hearing before the administrative law judge Mr. Garrett acknowledged that he considered appellant to be an employee of Arkansas Crane & Crawler. Appellant testified that at one time he had worked as an independent contractor hired to paint the interior of Mr. Garrett’s pool house, which was located adjacent to his personal residence. After completing the interior of the pool house, appellant went to Mr. Garrett to seek work with one of his companies. Appellant testified that he was seeking stable employment because of his wife’s medical condition. Mr. Garrett testified that he could not recall making a definite offer of employment, but did recall offering to allow appellant to work for him at Arkansas Crane & Crawler. Mr. Garrett also testified that he neither promised appellant full time employment, nor did he tell appellant he would not be employed full-time. Mr. Garrett testified that he intended to keep appellant around to work if his capabilities were such that he could perform additional tasks. Under examination by the administrative law judge, Mr. Garrett testified that he considered appellant to be an employee of Arkansas Crane & Crawler.
The administrative law judge dismissed Garrett Enterprises and Garrett Excavating as parties to the action upon finding that Garrett Enterprises and Garrett Excavating had no liability in the matter. The administrative law judge found that appellant was an employee of Arkansas Crane & Crawler, that he had sustained a compensable injury and awarded benefits for an assessed 20% permanent impairment rating to the body as a whole.
Arkansas Crane & Crawler appealed to the Commission, which after conducting a de novo review of the record, reversed the administrative law judge’s finding that appellant had sustained a compensable injury and denied appellant’s entitlement to any benefits. In reversing the administrative law judge, the Commission specifically found that appellant was not an employee covered under Arkansas Workers’ Compensation law of either company. The Commission concluded that appellant continued to be an independent contractor from the time he originally contracted to paint the interior of the pool house until the time he was injured. The Commission also pointed out that the medical report generated by Dr. Robert Johnson immediately after the injury indicated that Dr. Johnson was advised by appellant’s wife that appellant was working as an independent contractor. Although appellant and Mr. Garrett both testified that appellant was an employee of Arkansas Crane & Crawler, the Commission found that the testimony was not disposi-tive of the issue, but instead constituted evidence to be considered in reaching its decision of whether appellant was an employee.
In reviewing cases on appeal from the Commission, we affirm the Commission’s decision if supported by substantial evi dence. Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Harper v. Hi-Way Express, 51 Ark. App. 183, 912 S.W.2d 21 (1995). A decision of the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id.
Pursuant to Ark. Code Ann. § ll-9-102(10)(A), “Employee means any person, ... employed in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied; but excluding one whose employment is casual and not in the course of the trade, business, profession or occupation of his employer....”
In the case at bar, the Commission had before it a statement from the president of Arkansas Crane & Crawler that appellant was considered an employee of that entity, even though he did not know how long appellant would be employed. Appellant received a W-2 form from Arkansas Crane & Crawler and was paid on an hourly basis. Also there is evidence that when appellant worked as an independent contractor he received two checks as payment for his services, rather than being paid $15 per hour as he was when he painted the exterior of the pool house. The evidence clearly indicates that appellant was an employee of Arkansas Crane & Crawler and that the work he performed was in the course of the business of his employer.
Pursuant to Ark. Code Ann. § ll-9-102(12)(A)(ii), employment means:
(a) Every employment in the state in which three (3) or more employees are regularly employed by the same employer in the course of business except:
(ii) An employee employed to do gardening, maintenance, repair, remodeling, or similar work in or about the private home of the person employing the employee.
The Commission found that even if it determined appellant to be an employee of Arkansas Crane 8c Crawler he would not satisfy the definition of “employment” because he was employed to work at Garrett’s residence.
The testimony of Mr. Garrett, appellant and appellant’s brother supported the contention that appellant was employed by Arkansas Crane & Crawler. Mr. Garrett testified that as an employee of Arkansas Crane & Crawler appellant was employed to perform work which included painting the building which housed Arkansas Crane & Crawler and some of the machinery that was in need of repainting. When appellant reported to work at Arkansas Crane & Crawler to paint the inside of the building he could not because there were trucks inside of the building that were being repaired and could not be moved. Mr. Garrett testified that once appellant reported to the job site, he did not want to send him home because he had had a difficult time getting someone to work there. Once appellant was at the job site, according to Mr. Garrett, he was sent to Garrett’s personal residence to paint the exterior of his pool house. Mr. Garrett’s personal residence is located only a few hundred yards from Arkansas Crane & Crawler.
The Commission suggests that since appellant was injured while painting at Garrett’s personal residence his employment is not covered under our workers’ compensation law. If, in fact, appellant’s primary purpose for being at the Arkansas Crane & Crawler site was to paint the exterior of the pool house we would be inclined to agree. However, as in the instant case, where an employee reports to his designated place of employment and is then sent to his employer’s personal residence to make repairs, we cannot find that work done in such a manner is the worker’s employment.
We believe that the evidence supports a finding that appellant was at all relevant times an employee of Arkansas Crane & Crawler. It would appear that the only reason that appellant was at Mr. Garrett’s residence was because he had been instructed to go there because he could not work at his place of employment, Arkansas Crane & Crawler. We believe that based upon the evidence, it is clear that fair-minded persons could not have reached the same conclusion as the Commission. We accordingly reverse and remand for an award of benefits consistent with this opinion.
Reversed and remanded.
Stroud and Pittman, JJ., agree. | [
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JOHN F. Stroud, Jr., Judge.
This is an appeal from a decision of the Arkansas Board of Review in which the claimant, Yvette Thomas, was denied unemployment benefits. The Board’s decision affirmed that of the appeal tribunal and the Arkansas Employment Security Department, both of which had determined that claimant was discharged for misconduct in connection with her work. We reverse and remand.
For the most part, the facts are essentially undisputed. At the time of her discharge claimant had worked for the employer, Sparks Regional Medical Center, for more than nine years. She was a registered nurse. On February 19, 1995, claimant and another nurse, Hye-Ran Smith, who was also discharged, became involved in a situation with a combative and assaultive patient. Several medical personnel, including claimant and Smith, were attempting to place restraints on the patient, who was suffering from alcohol and substance abuse. The patient grabbed Smith’s hands and would not release them. The patient’s fingernails were scratching or puncturing Smith’s hands. Claimant pinched the patient on the inside of her upper arm, causing the patient to release her hold on Smith. Claimant was discharged for pinching the patient.
An employee is disqualified from receiving benefits if he or she is discharged for misconduct connected with the work. Ark. Code Ann. § ll-10-514(a)(l) (Repl. 1996). An employee’s actions constitute misconduct if they deliberately violate the employer’s rules, or if they wantonly or willfully disregard the standard of behavior which the employer has a right to expect of its employees. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987).
Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence or GOOD FAITH ERRORS IN JUDGMENT OR DISCRETION ARE NOT CONSIDERED MISCONDUCT FOR UNEMPLOYMENT INSURANCE PURPOSES UNLESS IT IS OF SUCH A DEGREE OR RECURRENCE AS TO MANIFEST CULPABILITY, WRONGFUL INTENT, EVIL DESIGN, OR AN INTENTIONAL OR SUBSTANTIAL DISREGARD OF AN EMPLOYER’S INTERESTS OR AN EMPLOYEE’S DUTIES AND OBLIGATIONS.
Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980) (emphasis added).
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. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987); Dillaha Fruit Co. v. Everett, 9 Ark. App. 51, 652 S.W.2d 643 (1983). On appeal, the Board’s findings are conclusive if they are supported by substantial evidence. A. Tenenbaum Co. v. Director of Labor, 32 Ark. App. 43, 796 S.W.2d 348 (1990). The scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it; we may not substitute our findings for those of the Board even though we might have reached a different conclusion had we made the original determination upon the same evidence. Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). This is not to say, however, that our function on appeal is merely to ratify whatever decision is made by the Board. It is essential that the Board’s findings of fact be supported by substantial evidence upon which a particular conclusion could reasonably have been reached. We are not at liberty to ignore our responsibility to determine whether the standard of review has been met. Id.
Here, the Board determined that claimant’s actions amounted to misconduct in connection with her work. We find that the Board could not reasonably have reached its decision upon the evidence that was before it. Without departing from the limitations on the scope of our review, we hold that the Board’s finding that claimant was discharged for misconduct in connection with her work is not supported by substantial evidence. At most, claimant’s conduct in pinching the combative and assaultive patient in order to get the patient to release her hold on another nurse was a good-faith error in judgment or discretion that was not of such a degree as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or an employee’s duties and obligations. The Board’s finding otherwise is simply not supported by the evidence presented to it. Any higher degree of restraint employed or even a pinch in other circumstances might well amount to misconduct. Under the facts of this case, however, claimant’s conduct could not reasonably be found to constitute misconduct in connection with the work. The case is reversed and remanded to the Board for such further proceedings as may be necessary to determine the appellant’s eligibility for benefits and the amount and duration of those benefits.
Reversed and remanded.
Pittman and Mayfield, JJL, agree. | [
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Brian S. Miller Judge.
Bernard Burgess is seeking reversal of an order issued by the Van Burén County Circuit Court denying his claims of fraud and constructive fraud against Don and Coretta French. We agree with the trial court’s finding that Burgess failed to show that his reliance on the Seller Property Disclosure form was reasonable and therefore we affirm.
The Frenches purchased a house in Bee Branch, Arkansas, in 1996. After leasing the house to Rick and Marie Martens from 1997 until October 2003, the Frenches listed it for sale in 2004 and executed a Seller Property Disclosure form on July 27, 2004. In the disclosure form, they verified, among other things, that (1) there had been no damage to the house prior to or during their ownership; (2) there were no known defects in the mechanical or electrical systems; (3) there had never been a problem with the roof or with any of the improvements to the house, such as “defective shingles, damaged shingles, leaking or otherwise” and that they were not aware of any “possible” problems that could occur in the future with the roof or with any of the improvements to the property; (4) they were unaware of any facts, circumstances or events on or around the property that could adversely affect the value or desirability of the property; (5) there had never been any past or present water intrusion. The disclosure form also provided that the Frenches would notify the agent if any of the answers to the disclosure became untrue and that the disclosure was not a substitute for inspections.
Burgess, who was looking for a fixer-upper to restore and sell, was shown the property by Rita Collums, the real estate agent, on December 18, 2004. At the time the house was shown to Burgess, there was only one room in the entire house that was completely finished. All other rooms were in obvious need of repair. For example, the sheetrock was missing from most of the rooms and the electric wiring and insulation were exposed. Burgess signed a contract on the house the same day and personally viewed it on at least three occasions prior to closing on January 17, 2005.
The contract of sale between the parties contained an “as is” clause, which stated in pertinent part:
Buyer agrees to accept the Property “as is”.... Buyer is declining to Inspect the Property as offered in paragraph 15(B). The Buyer further agrees to hold the Seller(s) and the Listing Agent Firm and Selling Agent Firm involved in this Real Estate Contract harmless of any problems relative to the mechanical or structural defect or failure in any of the components of the Property that may exist or be discovered (or occur) after closing.
Burgess also executed a Buyer’s Disclaimer of Reliance, which provided in pertinent part that:
BUYER CERTIFIES BUYER HAS PERSONALLY INSPECTED OR WILL PERSONALLY INSPECT, OR HAS HAD OR WILL HAVE A REPRESENTATIVE INSPECT, THE PROPERTY AS FULLY AS BUYER DESIRES AND IS NOT RELYING AND SHALL NOT HEREAFTER RELY UPON ANY WARRANTIES, REPRESENTATIONS OR STATEMENTS OF THE SELLER . . . REGARDING THE AGE, SIZE . . . QUALITY, VALUE OR CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION ALL IMPROVEMENTS, ELECTRICAL OR MECHANICAL SYSTEMS, PLUMBING OR APPLIANCES, OTHER THAN THOSE SPECIFIED HEREIN (INCLUDING ANY WRITTEN DISCLOSURES PROVIDED BY SELLER AND DESCRIBED IN PARAGRAPH 16 OF THIS REAL ESTATE CONTRACT), IF ANY, WHETHER OR NOT AN EXISTING DEFECTS (sic) IN ANY SUCH REAL OR PERSONAL PROPERTY MAY BE REASONABLY DISCOVERABLE BY BUYER OR A REPRESENTATIVE HIRED BY THE BUYER.
Approximately one week after closing on the purchase of the house, Burgess noticed several problems with the roof and the electrical system. He called Ms. French, who informed him that Mr. French had recently made repairs to the roof. Burgess called Ms. French again the next day and was informed that Mr. French had made repairs to the roof on at least two occasions prior to Burgess purchasing the house.
Relying on the information provided in the real estate disclosure form, Burgess sued the Frenches for fraud. At trial, Burgess testified that the disclosure form was “very important” to him and that he relied on it in determining the condition of the roof and electrical system. He also testified that he knew the house was incomplete but that, prior to closing, he was able to look through the house all he wanted and that he felt that the house was adequate. He stated that he once worked as a real estate agent and that he did not think that it was necessary to have the house inspected by an independent home inspector prior to closing.
Collums testified that, when she showed the house to Burgess, she told him that she had seen a “big puddle” of water on the living room floor in the fall of2004 and that the Frenches fixed the leak. She stated that the leak occurred after the Frenches executed the disclosure form and that she could have updated the disclosure form but that she “personally disclosed that the house was leaking” to Burgess before he signed the contract of sale. She encouraged Burgess to get the home inspected but he told her that he conducted inspections for a living and that he would inspect the house himself.
Heidi Meyers, Burgess’s daughter, testified that she and Burgess visited the house once while it was raining and that there was no evidence of a leak. She confirmed that, prior to closing, the agent notified Burgess of the puddle of water on the floor, but that the agent did not say that the puddle was the result of a leak in the roof.
The trial court determined that the lynchpin issue in Burgess’s fraud and constructive fraud claims was whether he was justified in relying on the disclosure form in light of all of the other information given to him and available to him regarding the poor condition of the house. The trial court found that Burgess was not justified in relying on the disclosure form because he entered into an “as is” contract of sale, disclaimed all warranties, and purchased a house that was in obvious need of major repair. This appeal followed.
We review equity cases de novo; however, the trial court’s findings of fact will not be reversed unless they are clearly erroneous. Riley v. Hoisington, 80 Ark. App. 346, 96 S.W.3d 743 (2003). A finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with a definite and firm conviction that a mistake has been made. Id.
To establish a fraud claim, Burgess was required to prove (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; (5) damage suffered as a result of the reliance. Barringer v. Hall, 89 Ark. App. 293, 202 S.W.3d 568 (2005). Unlike actual fraud, constructive fraud is simply a breach of a legal or equitable duty, which, irrespective of the moral guilt of the fraud-feasor, the law declares to be fraudulent because of its tendency to deceive others. Beatty v. Haggard, 87 Ark. App. 75, 184 S.W.3d 479 (2004). Although in Beatty we stopped short of specifically holding that all of the fraud elements must be shown to prove a constructive fraud claim, we pointed out that almost all cases analyze the proof using these elements. Id. (citing Knight v. Day, 343 Ark. 402, 36 S.W.3d 300 (2001)).
The denial of Burgess’s fraud and constructive fraud claims was correct because Burgess failed to show that it was reasonable for him to rely on the disclosure form when (1) he knew the home was unfinished and in obvious disrepair; (2) he agreed to purchase it “as is”; (3) he disclaimed all warranties, including those specifically created by the disclosure form; (4) the electrical wiring in the walls was exposed; (5) the real estate agent told him about the leak and advised him to have an independent home inspection performed. Burgess also had an affirmative obligation to make further inquiry when he noticed the exposed electrical wiring throughout the house and when he was placed on notice of the puddle of water in the living room. See Vaught v. Satterfield, 260 Ark. 544, 542 S.W.2d 502 (1976). His failure to do so precludes him from claiming fraud or constructive fraud against the Frenches. For these reasons, we affirm the trial court’s ruling.
Affirmed.
Pittman, C.J., and Hart, J., agree. | [
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Karen R. Baker, Judge.
Appellant, Shirley M. Jaramillo, appeals from a decision by the Johnson County Circuit Court finding that a deed from Grace Adams to Shirley Jaramillo was null and void. Ms. Jaramillo has three arguments on appeal. First, she argues that the trial court’s decision to cancel the deed must be reversed because the court erred as a matter of law when it found that the case filed in 2004 was not barred by the statute of limitations where the deed was notarized, executed, and filed of record in 1984 and the grantee (through whom the appellee claims his right to the lands) died in 1992. Furthermore, tolling of the statute will not be found in the case of a recorded deed where the appellee was aware of his mother’s death for some twelve years before maintaining this action. Second, she argues that the trial court’s decision to cancel the deed must be reversed because the court erred as a matter oflaw when it found that this case, which was filed in 2004, was not subject to the defense of laches where the deed was notarized, executed and filed of record in 1984 and the grantee (through whom the appellee claims his right to the lands) died in 1992. Third, she argues that the trial court’s decision to cancel the deed must be reversed because the court abused its discretion and committed prejudicial error when it refused to admit into evidence a will executed by the mother of the parties and a statement executed by a deceased brother of the parties, finding the evidence was excluded as hearsay. We find merit in appellant’s first two arguments and reverse and dismiss.
Grace Adams and James H. Adams acquired an interest as tenants by the entirety in real property located in Johnson County, Arkansas, by warranty deed dated and recorded of record on December 4, 1974. The warranty deed conveyed approximately thirty-nine acres of land. Grace Adams had four children, Shirley M. Jaramillo (appellant), LeonardE. Adams, Sr. (appellee), Denver Adams, and Marjorie Hudgens. On November 19, 1984, Grace Adams executed a warranty deed conveying the thirty-nine acres in Johnson County to Shirley and reserving a life estate in herself. The warranty deed was recorded on November 28, 1984. Subsequently, on May 30, 1988, Shirley quitclaimed the thirty-nine acres to Barry Watkins (an attorney), who in return, quitclaimed the same real property to Shirley and her husband Lotario O. Jaramillo for the purpose of creating a tenancy by the entirety. Grace Adams died intestate on May 21, 1992. On February 20, 2004, Shirley’s sibling, Leonard Adams, filed a complaint in Johnson County Circuit Court alleging that Grace Adams’s signature on the deed conveying the thirty-nine acres to Shirley was a forgery; therefore, Grace Adams died while owning a fee simple title to the thirty-nine acres and the title passed by operation of law to all four of Grace Adams’s children in equal shares as tenants in common.
A hearing was held on March 24, 2006, and resumed on September 20, 2006. Shirley testified first at the hearing. She explained that both her mother and father began living with her in 1980. Her father lived with her until his death in 1985, and her mother continued to live with her until her death in 1992. Shirley testified that during that time, she cared for her parents and provided all the physical and financial assistance that her parents needed. In 1984, she and her husband took her mother to attorney Barry Watkins’s office to have a deed prepared conveying the thirty-nine acres to Shirley and retaining a life estate in her mother. She was present when the deed was signed, and Mr. Watkins and his secretary and notary, Janie Barnett, were also present. Mr. Watkins recorded the deed on November 28, 1984. In 2002, a lawsuit was filed in Sebastian County to determine entitlement to the proceeds of the mineral interests and royalties on the thirty-nine acres. At the time, Shirley claimed that she was the sole owner of the thirty-nine acres, and Leonard disputed the claim that she was the sole owner. Ultimately, on July 23, 2003, the judge in the Sebastian County lawsuit entered an order distributing the payment of royalties equally among Grace Adams’s four children. Shirley testified that she did not dispute the court’s distribution of the payments because the lawsuit concerned payments of royalties from 1979 until 1994. Because her mother retained a life estate and died in 1992, she would have been entitled only to the proceeds of the last two years of that time period.
Shirley testified that when she became aware of the fact that her brother Leonard and her sister Marjorie believed the 1984 deed was a forgery, she hired Linda Taylor, a handwriting analyst, to examine Grace Adams’s signature on the deed. Ms. Taylor’s July 12, 2004 report demonstrated that she was unable to confirm that Grace Adams was the person that signed the deed. However, Shirley testified that she was one hundred percent certain that her mother signed the deed, and she signed it in the presence of Mr. Watkins, Ms. Barnett (the notary), and Shirley. Mr. Watkins was available and testified at the hearing; however, although every attempt was made to find Janie Barnett, Shirley was unable to locate her.
Shirley also testified that her mother executed a will, drafted by attorney Barry Watkins, which was discovered after Grace Adams’s death in some of her personal papers. The will was never probated because Shirley testified that she did not become aware of the fact that a will was executed until approximately a year before the hearing in this case. Shirley attempted to introduce the will at the hearing, but the judge ruled that the will was inadmissible. She stated that the signature on the will belonged to her mother, and that Mr. Watkins and Janie Barnett were witnesses to the will. Shirley also attempted to introduce a document executed by her brother, Denver Adams, before his death. It was signed by Denver, his wife, and Shirley. However, the trial court determined that the document was hearsay and inadmissible “[ajlthough it [did] point out that on the defense of laches the number of witnesses we[’]re seeing [were] not available anymore. But, I’m going to sustain Mr. Bradley’s objection.”
Mr. Watkins testified that when he was a practicing attorney he did real estate work, such as preparing deeds, contracts for sale, mortgages, and notes. Although not absolutely certain, he stated that he remembered preparing the deed signed by Grace Adams. He also remembered meeting with her on two occasions. At the first meeting, which took place in his office, he remembered discussing Grace Adams’s desire, except for retaining a life estate in the thirty-nine acres, to “convey everything to Shirley.” He wanted to make sure she understood the implications of conveying all of her property to only one of her four children. On the second occasion when Grace Adams was present at his office, she signed the deed. He thought he was present on this second occasion and stated “I have no reason to doubt that it is indeed her signature.” He explained that it was standard procedure in his office for his secretary to type the deed and to notarize only the documents that she witnessed the client signing. At the time the deed was prepared, Janie Barnett, his secretary, signed and notarized the deed. After working for him approximately eight or nine years, Janie left his office, and began working at the Ozark Guidance Center. Mr. Watkins stated that he had not had any contact with Janie since she obtained other employment.
Mr. Watkins also testified that an associate of his law firm prepared a Last Will and Testament for Grace Adams. On October 2, 1984, he “witnessed Ms. Adams signature on this [w]ill, and [he knew] it to be her signature.” Mr. Watkins signed the document as a witness. There were also two other witnesses to the will; however, they were both employees that, at the time, worked in a nearby office, and there had been no communication with either witness since the will was signed.
Leonard Adams also testified at the hearing. The following excerpts from his testimony demonstrate the confusing and inherently contradictory nature of his statements. Leonard testified that he became concerned about the property back in 1976 or 1977, and after several conversations with Shirley, he decided to check the deed to the thirty-nine acres. He .stated that, “[w]hen I found the deeds I knew they were not my mother’s signature.” However, even after seeing the deeds, he did not share any of his concerns with Shirley. Leonard testified that “I think it was about two years before I filed the lawsuit that I went to the Courthouse and got copies of the deeds. . .” However, he also stated that “I would say that it was about five or six years after 1984 that I found the deed dated November 19, 1984 and I found it in the Clerk’s office at that same courthouse.” Leonard also testified that he “found the deeds after the funeral,” and that it had been close to ten years since he “went to check out the deeds at the courthouse.” Leonard stated that, “I found the deed but I had to have it analyzed before I would believe it. That wasn’t 10 years ago though, it hasn’t been quite that long.” Leonard then testified that, “It’s been over 10 years ago when I went and checked out the deed records.” He stated that Shirley told him that “[the property] belongs to all of us, nothing has changed.” However, Leonard stated that the three deeds that he found showed otherwise. Then, he testified that he found the deeds “about 5 or 6 years after the first deed was filed. When I found these deeds in the record my mother was not still alive. The deed was made in 1984 and it was filed of record then. It was 5 or 6 years after it was filed that I found it in the record. It was quite awhile after Mother’s death that I found the deed.”
Leonard further testified that after his mother’s death, he and siblings Denver and Marjorie discussed what they would do with the thiry-nine acres. He did not discuss it with Shirley because Shirley claimed to own it all. At the time he found the deed, which he again testified was ten years ago, Shirley was claiming that she owned the land. He also restated that he concluded that the moment he first discovered the deed, he knew it did not contain his mother’s signature. To confirm that it was not his mother’s signature, he hired B.P.I. Laboratories in Texas to analyze the deed. The letter Leonard received from B.P.I. Laboratories, dated May 9, 2003, stated that, in the opinion of the examiner, the signature on the deed appeared to be traced from the original 1974 warranty deed and was, therefore, not a genuine signature. At this point in his testimony, Leonard stated that he thought he found the deeds two years before receiving the 2003 letter from B.P.I. Laboratories.
During Leonard’s testimony he was also shown a copy of the Last Will and Testament of Grace Adams. When he looked at the signature, Leonard stated that while the signature matched the one on the deed, neither signature belonged to his mother. At this point, Shirley’s counsel attempted to proffer the will for the record. The trial court allowed introduction of the signature of Grace Adams and the signature of one witness, Mr. Watkins. However, the trial court did not allow the contents of the will to be introduced.
After hearing the testimony of several witnesses, the trial court took the case under advisement. On October 13, 2006, the trial court entered a judgment in the case, finding that based on the expert opinion of Ms. Linda Taylor, which the court found to be unbiased, credible, and more convincing, the deed did not contain the signature of Grace Adams and the deed was declared canceled and null and void. The trial court also determined that the defenses of the statute of limitations and laches had no applicability to this case. From that decision, comes this appeal.
In bench trials such as this, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (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 firm conviction that a mistake has been committed. Flagstar Bank v. Gibbins, 367 Ark. 225, 238 S.W.3d 912 (2006) (citing Sharp v. State, 350 Ark. 529, 88 S.W.3d 348 (2002)). Disputed facts and determinations of credibility are within the province of the fact-finder. Id. (citing Sharp, supra; Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001)). However, a trial court’s conclusions of law are given no deference on appeal. McWhorter v. McWhorter, 351 Ark. 622, 97 S.W.3d 408 (2003) (citing City of Lowell v. M & N Mobile Home Park Inc., 323 Ark. 332, 916 S.W.2d 95 (1996)); Millwood Sanitation & Park Co., Inc. v. Mattingly, 100 Ark. App. 56, 264 S.W.3d 566 (2007).
Shirley argues that Leonard’s claims are barred because he did not file his claim until twenty years after the deed was executed and recorded and twelve years after the death of their mother. Arkansas Code Annotated section 18-61-101 states that “[n]o person or his or her heirs shall have, sue, or maintain any action or suit, either in law or equity, for any lands, tenements, or heredita-ments after seven (7) years once his or her right to commence, have, or maintain the suit shall have come, fallen, or accrued.” Additionally, Shirley argues that the trial court erred as a matter of law in finding Leonard’s cause of action was not barred by the defense of laches. Both rulings were premised on the trial court’s determination that the deed was a forgery. Because Shirley’s first two arguments on appeal both turn on the question of when Leonard’s right to maintain the suit accrued, we will address them together.
The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. Self v. Self, 319 Ark. 632, 893 S.W.2d 775 (1995). Laches or estoppel does not arise merely by delay, but by delay that works a disadvantage to another. Ueltzen v. Roe, 242 Ark. 17, 411 S.W.2d 894 (1967). So long as the parties are in the same condition, it matters little whether one presses a right promptly or slowly within limits allowed by law. Id. But where one, knowing his rights, takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state if the right be enforced, delay becomes inequitable and operates to estop the asserted right. Id. This disadvantage may come from loss of evidence, change of title, intervention of equities, the making of substantial improvements to the land, and other causes, for where the court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief. Id. Put in other terms, estoppel is merely the manner, in courts of equity, and sometimes even in courts of law, where when one party, or one group of parties sit idly by and do not speak when, in good conscience, they should speak, they will not later be heard to speak when they should in good conscience, remain silent. Id.
Because of Leonard’s delay in taking action, Shirley’s position has detrimentally changed. When an affirmative defense is raised, the defendant has the burden of proof. See generally Marx v. Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (2004) (stating that because comparative fault is an affirmative defense, the burden is on the defendant to prove that the plaintiff was at fault); Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984) (stating that when the statute of limitations has been pled, the one relying upon it has the burden of proving those facts giving rise to it). Here, in attempting to meet her burden, Shirley was forced to depend on documents that were determined by the court to be unreliable because at the time the hearing was held, as noted by the trial court, witnesses were unavailable to testify. Shirley also attempted to rely upon a signed statement from her now deceased brother, Denver Adams, that the signature on the deed belonged to her mother. However, the court determined that the signed statement was hearsay and inadmissible. Also due to Leonard’s delay, Shirley was unable to locate Janie Barnett, the secretary and notary from Mr. Watkins’s law office. She testified that every attempt was made to locate Janie, but because Janie had only worked for Mr. Watkins for eight or nine years, and Mr. Watkins had no contact with her after she left his employ, her attempts were unsuccessful. Certainly Shirley’s position had changed to her detriment in reliance on Leonard’s inaction.
Based on Leonard’s testimony, we find that it was impossible to determine, or for Shirley to prove, exactly when he discovered the deed. The only definite fact that the trial court could have derived from Leonard’s testimony was that when he first discovered the deed, he knew that the signature on the deed did not belong to his mother. Likewise, we know that after his mother’s death in 1992, Leonard and siblings Denver and Marjorie discussed what they would do with his mother’s land, but did not discuss it with Shirley because she claimed to own it all. A statute of limitations begins to run only when a right accrues. See Marshall v. Gadberry, 303 Ark. 534, 535, 798 S.W.2d 99, 100 (1990). When the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence. See Mitchell v. Hammons, M.D., 31 Ark. App. 180, 792 S.W.2d 333 (1990). Although we do not determine when Leonard discovered the deed, we do find that any reasonable person should have inquired as to the ownership of the property at the time of Grace Adams’s death in 1992, when Shirley continued in possession óf the thirty-nine acres, claiming sole ownership. Any reasonable inquiry would have led to the discovery of the deed, which was filed for record in 1984, and any potential forgery would have become apparent at that time. However, it was not until 2004 that Leonard filed the complaint in this case alleging that the signature on the deed was a forgery.
We hold that at least by the time of Grace Adams’s death, Leonard’s rights had accrued and the seven-year statute of limitations began to run. Thus, the trial court erred as a matter of law in finding that because of his determination that the deed was forged, the defenses of statute of limitations and laches could not apply. Here, the question concerning the applicability of the defenses raised by Shirley was not whether the deed was forged; but rather, whether Leonard still had the right to question the authenticity of the signature on the deed twenty years after it was executed and recorded and twelve years after the death of Grace Adams. We hold that he did not.
Shirley’s final argument is that the trial court abused its discretion and committed prejudicial error when it excluded as hearsay a will executed by the mother of the parties and a statement executed by a deceased brother of the parties. Because of our conclusion as to Shirley’s first two arguments, we do not address this issue.
Reversed and dismissed.
Marshall and Miller, JJ., agree.
Shirley’s husband died in 1990. Because she and her husband owned the property as tenants by the entirety, Shirley became the owner of the property upon his death.
Mr. Watkins surrendered his law license after numerous complaints were filed against him alleging that he failed to accurately communicate with his clients about the status of their cases. | [
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James R. Cooper, Judge.
This litigation arises out of a sale by the appellants to the appellees of certain real estate located in Fulton County, Arkansas. In 1979, the appellants contracted to sell a tract of land to the appellees, which was referred to by legal description as “70 acres more or less.” After the sale, the appellees had the land surveyed, and it showed the actual acreage to be only 55.20 acres. A later survey by the appellants showed the acreage to be 56.77 acres. The appellees filed suit, seeking rescission of the contract, or, in the alternative, an abatement of the purchase price based on the reduced acreage in the tract.
The chancellor specifically found the sale to have been in gross and that there was no fraud on the part of the appellants. The chancellor further determined that the difference in the acreage actually conveyed constituted a gross mistake and that the sale would not have been completed for the agreed upon price had the parties been aware of the true acreage contained in the tract. Consequently, the chancellor granted relief to the appellees by giving the appellants the option of rescinding the original contract and refunding to the appellees their purchase money or, in the alternative, abating the purchase price to reflect the number of acres actually conveyed. In the event the appellants failed to exercise one of these options, the appellees were to select their relief from the two options. From that decision, comes this appeal.
The appellants argue that the trial court erred in holding an acreage deficiency of less than twenty percent in a sale in gross to be a gross mistake justifying abatement of the purchase price. To support their argument, the appellants cite a number of Arkansas cases wherein the deficiency in acreage was approximately the same as in the present case and where the trial court declined to abate the purchase price due to the deficiency.
In Ryan v. Batchelor, 95 Ark. 375, 129 S.W. 787 (1910), the appellee sold the appellant real estate which was described on the deed as consisting of “70 acres, more or less”. Several years later the purchasers had the land surveyed and discovered there were only 57.23 acres in the tract. The trial court ruled in favor of the seller and refused to abate the purchase price. The court discussed several factors which influenced its decision. Among these were the fact the purchaser had seen the land many times before the sale, knew it had not been surveyed and even agreed to have it surveyed himself prior to the transaction. Also, the court mentioned the fact the seller’s agent never represented the tract to contain 70 acres. The only reference to the 70 acres was in the description on the deed.
The court in Ryan stated the general principle upon which relief will be granted in sale in gross cases as follows:
When the vendor conveys for a specified price a tract of land which is described by metes and bounds or otherwise, with the words added containing a specified number of acres more or less, this upon the face of the contract is a contract not by the acre but in gross, and does not by implication warrant the quantity. In such event, should there be a deficiency in the quantity, the right to relief for such deficiency is founded upon fraud, misrepresentation or gross mistake. I Sugden on Vendors, p. 490; 3 Washburn on Real Property, § 2322; Harrell v. Hill, 19 Ark. 103; Goodwin v. Robinson, 30 Ark. 535; Neely v. Rembert, 71 Ark. 91; Joseph v. Baker, ante p. 150.
The court went on to determine that the purchaser was not relying on representations made by the seller as to the quantity of land but rather had intended to ascertain for himself the quantity of land by having a survey made. Upon these facts, relief was denied.
In Gilbertson v. Clark, 175 Ark. 1118, 1 S.W.2d 823 (1928), relief was again denied to a purchaser who had bought a lease to a tract of oil producing land and had received 52.12 acres rather than the 71 acres “more or less” as stated in the legal description in the deed. The trial court stated, “It is true that the price was considerable, but, when the attending circumstances are considered, it is evident that the quantity of acres was not the controlling factor in the premises.”
Both Ryan, supra and Gilbertson, supra were cases where the trial court based its decision on the lack of fraudulent misrepresentation rather than gross mistake. In Ryan there was good reason for the purchaser to suspect the exact quantity of land was unknown to the seller’s agent. Further, the purchaser assumed the responsibility to have the land surveyed, and then failed to do so until several years later. These factors clearly influenced the trial court’s decision. In Gilbertson the trial court specifically found that the purchaser received what he actually sought in the purchase, that is, the producing oil wells on the tract, and the total number of acres was found not to be important in the transaction. The Arkansas Supreme Court, in both these cases, affirmed the trial court’s findings of fact.
In the case at bar, the chancellor specifically found that the appellees, who were residents of California, had never been on the land prior to the day they purchased it, that the appellees were relying on the appellant’s representations that the tract contained 70 acres and, finally, that, had the shortage in acreage been known, the parties would not have contracted for the sale at the agreed upon price.
In Carter v. Finch, 186 Ark. 954, 57 S.W.2d 408 (1933), the trial court abated the purchase price on a finding that the difference in the amount of land described and that actually conveyed constituted a gross mistake. The court, in discussing the meaning of the words “more or less” following the described number of acres stated:
... in a deed conveying a certain number of acres “more or less,” the words “more or less” are precautionary, and are intended to cover slight or unimportant inaccuracies, but do not weaken or destroy the indications of quantity, when no other guide is furnished. Slight discrepancies may be ignored when there is no express warranty as to quantity.
In Glover v. Bullard, 170 Ark. 58, 278 S.W.2d 645 (1926), the court stated the general rule in cases when a sale in gross is challenged as involving a gross mistake as follows:
The general rule on this question is clearly stated in Weart v. Rose, 16 N.J. Eq. 290. It is there said that the general rule as laid down by Chancellor Kent is that where it appears by definite boundaries, or by words of qualification, as “more or less,” or as “containing by estimation,” or the like, that the statement of the quantity of acres in the deed is a mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case.
On the other hand, where the sale is by the acre, and the statement of the quantity of acres is of the essence of the contract, the purchaser, in case of a deficiency, is entitled in equity to a corresponding deduction from the price.
There is a further qualification of the general rule recognized in that case and by our own decisions as to the effect that, where the difference between the actual and the estimated quantity of acres of land sold in gross is so great as to warrant the conclusion that the parties would not have contracted had the truth been known, in such case the party injured is entitled to relief in equity on the ground of gross mistake.
As sustaining these principles of law, in addition to the case above cited, see Harrell v. Hill, 19 Ark. 103; Haynes v. Harper, 25 Ark. 541; Drake v. Eubanks, 61 Ark. 120; and Solmson v. Deese, 142 Ark. 189.
Gross mistake is where the difference between the actual and the estimated quantity of land represented is so great as to clearly warrant the conclusion that the parties would not have contracted, had they known the truth. Melick v. Dayton, 34 N.J. Eq. 245.
After reviewing the record, the excellent briefs submitted by both counsel, and our prior cases, we must affirm. In chancery cases, we review the record de novo, but we will not reverse the chancellor unless his factual findings are clearly erroneous or against the preponderance of the evidence. ARCP Rule 52 (a); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979). We cannot conclude that the chancellor was wrong in finding that the parties would not have contracted for the sale and purchase of the tract for the price of $50,000.00, had they known of the shortage in the acreage. Accordingly, the decree appealed from is affirmed.
The chancellor offered the appellants two methods of affording equitable relief to the appellees. The decree provides that a) the contract may be rescinded with all sums paid by the appellees being returned to them, and all matters being held by the escrow agent being returned to the appellants, or b) the appellees being given credit for $9,450.00 on the end of the contract plus 9% interest from May 29,1979, to the date credit is given. The appellants were granted thirty days from the date of the final decree to make their election, and if they failed to do so, the appellees were to have the opportunity to choose their relief from the two choices given.
The appellants are hereby granted thirty (30) days from the date the mandate issues in which to exercise their option, on the same terms as outlined in the chancellor’s decree. Should they fail to do so, the appellees may proceed to select their relief, as per the chancellor’s decree.
Affirmed.
Mayfield and Corbin, JJ., agree. | [
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Steele Hays, Special Judge.
The appellant appeals from the judgment of the Juvenile Division of the Sebastian County Chancery Court adjudicating him a delinquent for committing the crime of rape and committing him to the Department of Human Services, Division of Youth Services. On appeal, he argues that the trial court erred in denying his directed verdict motions. We affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992).
The appellant argues that the evidence is insufficient to establish forcible compulsion pursuant to Arkansas Code Annotated § 5- 14-103(a)(l) (1995). He also argues, in the alternative, that he is not guilty of committing rape by engaging in sexual intercourse with a person less than fourteen years of age because the age of the victim was within two years of the appellant’s age. See Ark. Code Ann. § 5-14-103(a)(3).
The appellant, who was twelve years old at the time of the offense, was convicted of raping a ten-year-old girl. Dr. Merle Edward McClain, a pediatrician, examined the victim approximately one month after the incident. Dr. McClain testified that the victim stated that her brothers let the appellant into their house on the night in question and that the appellant later “got on top of her and put his thing” into her pudendum. The doctor testified that the victim complained of constipation and explained that it was not unusual for a child who had been sexually molested to complain of abdominal pain.
The victim testified that the appellant was friendly with her brothers. She testified that the appellant came into their house through a window in the bedroom in which she was sleeping with her brother, Tyrus. She testified that she was awakened at one point during the night to find that the appellant had taken off her clothes. She then felt something “going into” her. She testified that “at first he would not let me up. He just kept on doing what he was doing. Then he stopped and I hurried up and got up.” The victim spent the rest of the night in another room.
The victim’s brother, Tyrus, testified that the appellant was present in the bedroom on the night in question. He testified that when he awoke the next morning, the appellant was sleeping next to him where his sister had previously been sleeping. Jennifer Campbell, the mother of the victim, testified that the victim began complaining of stomach aches. She stated that the victim subsequently told her that the appellant had raped her.
We do not address the appellant’s argument regarding forcible compulsion because we find the evidence sufficient to sustain his conviction under § 5-14-103 (a) (3), which provides:
(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(3) Who is less than fourteen (14) years of age. It is an affirmative defense to prosecution under this subdivision that the actor was not more than two (2) years older than the victim.
The appellant contends that he is not guilty of committing rape under this section because the age of the victim was within two years of his age. The appellant presented evidence that he was two years, four months, and one day older than the victim on the date of the offense. The trial court concluded that the affirmative defense was not applicable because the appellant was over two years older than the victim. The appellant argues that the two-year statutory language should be two years including any months and days which follow the two-year anniversary up to the three-year anniversary year.
In State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991), overruled on other grounds in Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992), our Supreme Court held that “12 years of age or younger” as used in Arkansas Code Annotated § 5-13-202(a)(4)(C) defining second degree battery refers to persons whose age is less than or under 12 years as well as persons who have reached and passed their twelfth birthday but have not yet reached their thirteenth birthday. The Court, in Joshua, agreed with the following reasoning set out in State v. Carlson, 223 Neb. 874, 394 N.W.2d 669 (1986):
If “less than fourteen years of age” or “under fourteen years of age” had been used in [the statute], the protection of that statute would terminate when a child reached the 14th birthday. Because “less than” or “under” is absent from [the statute], while fourteen years of age or younger” appears in the statute, the compelled logical conclusion is that the statute’s protection extends into and throughout the year immediately following a person’s 14th birthday. When the plain and unambiguous language of [the statute] is considered, to the ordinary person “fourteen years of age” means that one has passed the 14th birthday but has not reached the 15th birthday. Thus, “fourteen years of age” is a temporal condition existing on the 14th birthday and continuing until the 15th birthday. Any other construction of “fourteen years of age” would be a perversion of popular parlance.
(Citations omitted.)
When the language of a statute is plain and unambiguous, the language is given its plain and ordinary meaning. Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993). Unlike the statutory language in Joshua or Carlson, the plain wording of § 5-14-103(a)(3) uses the limiting language of “not more than” so that any months or days beyond twenty-four months takes the defendant out of the affirmative-defense period. Thus, because the appellant was more than two years older than the victim, he could not avail himself of the affirmative defense. Therefore, we hold that the evidence is sufficient to show that the appellant committed the crime of rape by engaging in sexual intercourse with another person who was less than fourteen years of age.
Affirmed.
Neal and GRIFFEN, JJ., agree. | [
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John B. Robbins, Judge.
On May 17, 1995, the appellant was found guilty of possession of a controlled substance (methamphetamine) with intent to deliver and was sentenced to ten years in the Arkansas Department of Correction. On appeal the appellant contends that the trial court erred in failing to grant his motion to suppress. We find no error and affirm.
The evidence showed that on May 19, 1994, several officers with the Fort Smith Police Department went to a residence in Barling to arrest the appellant on two misdemeanor warrants unrelated to the present case. After arriving at the residence, the officers were permitted entry by Jodie Cathers, the brother of appellant’s girlfriend. Mr. Cathers was informed of the warrants and then escorted the officers to a bedroom where the appellant was in bed. Officer Steve Scott informed appellant of the warrants and re quested him to get dressed and accompany them to the living room. Officer Scott advised the appellant of his Miranda rights and attempted to do a “field search” of the appellant for weapons in the course of arresting him and taking him into custody.
During the search incident to arrest Officer Scott noticed a large bulge in appellant’s pocket. Appellant was asked what was in his pocket and he responded that it was a 35-millimeter film canister with film in it. Scott testified that the appellant attempted to surrender the film canister to Jodie Cathers and was evasive to the officer’s questions. Officer Scott took the canister from the appellant, opened it, and found three small packets of what was later identified as methamphetamine.
Appellant moved to suppress this evidence and contends on appeal that the trial court erred in failing to grant his motion. Appellant specifically argues on appeal that Ark. R. Crim. P. 12.1 did not justify a search of the container. He contends that only 12.1(a) would be applicable but that it could not apply to these facts because the search was not conducted for the officer’s protection, disputing the officer’s credibility.
In reviewing a trial court’s decision to deny an appellant’s motion to suppress evidence, we make an independent determination based on the totality of the circumstances and will reverse the decision only if it is clearly against the preponderance of the evidence. Dickerson v. State, 51 Ark. App. 64, 909 S.W.2d 653 (1995). Because the preponderance of the evidence turns heavily on the question of credibility, we defer to the superior position of the trial court in determining which evidence is to be believed. Folly v. State, 28 Ark. App. 98, 771 S.W.2d 306 (1989).
Arkansas Rule of Criminal Procedure 12.1 states:
An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only;
(a) to protect the officer, the accused, or others;
(b) to prevent the escape of the accused;
(c) to furnish appropriate custodial care if the accused is jailed; or
(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.
It appears that both Rule 12.1(a) and 12.1(d) were applicable to the fact situation of this case. The officers were conducting a lawful search incident to the execution of two arrest warrants. Pursuant to Rule 12.1(a), Officer Scott testified that the search for weapons was for the officers’ personal safety, and that he looked inside the film canister for their safety and to identify any items appellant was attempting to release to Mr. Cathers. The trial court could have found that it was possible that the film canister contained a weapon such as a razor blade. See Jackson v. State, 34 Ark. App. 4, 804 S.W.2d 735 (1991). By virtue of the authorization for a search provided under Ark. R. Crim. P. Rule 12.1(a), we cannot say that the court’s denial of appellant’s motion to suppress is clearly erroneous.
The United States Supreme Court has held that once a lawful arrest has been made, a search incidental to the arrest may be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence; no further justification is required. United States v. Chadwick, 433 U.S. 1 (1977); United States v. Robinson, 414 U.S. 218 (1973). The Supreme Court expressed its rationale for such searches as follows:
A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.
Id. at 235-236.
Arkansas Rule of Criminal Procedure 12.1(d) is also applicable to the facts of this case. While it is true that state law may offer greater protection than the United States Supreme Court holds that our federal constitution requires, Arkansas cases have interpreted Rule 12.1(d) in the same manner and used the same rationale as the Supreme Court in Robinson. In Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982), our supreme court held that a search incident to arrest requires no additional justification, finding that a search of containers, whether open or closed, may be conducted pursuant to a lawful custodial arrest. Our supreme court has also said that Rule 12.1(d) allows officers to search for evidence of any crime, not just the crime for which an accused is being arrested. In Stout v. State, 304 Ark. 610, 615, 804 S.W.2d 686, 689 (1991), the supreme court stated, “[P]ursuant to Ark. R. Crim. P. Rule 12.1(d), a police officer who makes a lawful warrantless arrest is authorized to search the person or property of the accused to look not only for weapons but also fruits and instrumentalities of crime. Even if the fruits and instrumentalities of any other crime are found, those are properly seized.”
In the case of Holmes v. State, 262 Ark. 683, 561 S.W.2d 56 (1978), the supreme court reviewed a search conducted pursuant to a lawful arrest. In that case the officers were searching the appellant’s person when they discovered a piece of aluminum foil in the appellant’s pocket. The officers opened the piece of aluminum foil and discovered heroin inside. The appellant moved to suppress this evidence. Relying on Rule 12.1 and Chimel v. California, 395 U.S. 752 (1969), the court upheld the trial court’s denial of appellant’s motion holding that evidence of another crime discovered during a search incident to arrest may be properly seized and should not be suppressed.
In the present case, the officer was searching the appellant pursuant to a valid arrest warrant. The officer could search any container on appellant’s person pursuant to Rule 12.1(a), and once evidence of another crime was discovered in the container, it could be seized pursuant to Rule 12.1(d) under the authority of the cases cited above. The trial court properly denied appellant’s motion to suppress.
Affirmed.
Jennings, C.J., and Hays, S.J., agree.
Griffen, Stroud, and Pittman, JJ., concur.
The concurring opinion implies that there was no common sense reason as to why the police officers should have had any concern for their safety in executing these mere misdemeanor warrants. The record, however, reveals that appellant was the principal suspect in a homicide case in which the victim’s throat had been slit or stabbed. The misdemeanor warrants afforded the police a means by which they could bring the appellant in for questioning. | [
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John Mauzy Pittman, Judge.
William Bert Johnson appeals from his non-jury felony conviction of driving while intoxicated, fourth offense. Appellant was sentenced to three years in the Arkan sas Department of Correction, with two years suspended, and was fined $2,500.00. On appeal, appellant contends (1) that the trial court erred in finding that the information properly charged a felony DWI, (2) that the trial court erred in not reducing the charge from a felony DWI to a DWI, third ofíense, and (3) that the trial court erred in not dismissing the information for insufficient allegations of venue. We find no error and affirm.
Arkansas Code Annotated § 5-65-111 (b)(3) (Repl. 1993) provides that any person who pleads guilty, nolo contendere, or is found guilty of violating § 5-65-103 shall be imprisoned for at least one year but no more than six years for the fourth or subsequent offense occurring within three years of the first offense and shall be guilty of a felony.
The initial information in this case alleged that appellant had had three prior “offenses.” The information was amended to state that appellant had three prior “arrests.” Appellant then filed two motions to dismiss. In his first motion, he argued that the amended information alleged that he had had three prior “arrests,” rather than “convictions,” and that it is three prior convictions that constitute an element of felony DWI, fourth offense. The State responded that appellant’s prior offenses were described as arrests because, for purposes of penalty enhancement, prior DWI offenses are deemed to have occurred when the criminal act was committed, and the State used the date of arrest as the date of commission. Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987). Wording other than that of the statute may be used when the words convey the same meaning. Ark. Code Ann. § 16-85-405(k) (1987). An indictment or information is sufficient if the act or the omission charged as the offense is stated with a degree of certainty that enables the court to pronounce judgment on conviction. Ark. Code Ann. § 16-85-405(a)(l)(C) (1987). A variance between the wording of an indictment or information and the proof at trial does not warrant reversal unless the variance prejudices the substantial rights of the defendant. Ark. Code Ann. § 16-85-405(a) (2) (1987); Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). Here, there were exhibits placed into evidence indicating that appellant had three judgments of conviction of DWI entered against him, each reflecting the date of the offense and conviction. Appellant has not demonstrated prejudice, and we find no error in the language used in the information.
In his second motion to dismiss, appellant alleged that he did not have a third-offense DWI conviction, but only a first-offense DWI, and two second-offense DWI’s. He argues that one must have had three convictions, designated as first, second, and third offense, in order to be convicted of a fourth offense. Arkansas Code Annotated § 5-65-111 (Repl. 1993) sets out the elements of and penalties for subsequent offenses of DWI, and contains no requirement that the offender be punished as a third offender before he is punished as a fourth offender. It is only necessary that the defendant have been convicted of having committed, within the relevant time frame, three prior offenses. Moreover, this court has upheld a felony DWI conviction in Dickerson v. State, 24 Ark. App. 36, 747 S.W.2d 122 (1988), stating that it was not significant that a prior DWI conviction was marked as second offense since it was the defendant’s third conviction within three years and the defendant knew how many times he had been convicted of DWI offenses. Similarly, we do not find error in appellant’s felony DWI conviction as the record reflects that he had committed three prior offenses within three years of the fourth offense.
Appellant next argues that he plea-bargained his third-offense DWI to a second-offense DWI, which conviction should be treated as a second offense for purposes of sentence enhancement. He relies on State v. Crist, 843 P.2d 368 (Nev. 1992), which held that a second conviction for driving under the influence of intoxicants that was plea-bargained to a first offense must be treated as a first offense for purposes of penalty enhancement.
The alleged plea-bargain agreement on which appellant relies is not part of this record, and we do not know the terms of any such agreement. Nevertheless, we decline to adopt the reasoning of State v. Crist, supra. The element of fourth-offense DWI at issue here is based on the number of prior offenses, not how they were designated. The language of Ark. Code Ann. § 5-65-111 is unambiguous. See Dickerson v. State, supra.
Appellant next argues that the trial court erred in allowing the prosecutor to amend the information orally during the trial to state correctly that the offense was committed in Madison County rather than Washington County. The State filed a written amended information two days after trial. Appellant argues that the information must be amended in writing prior to the case being heard on the merits. We do not agree. An information may be amended during trial if the nature or degree of the crime is not changed and if the defendant is not prejudiced through surprise. Ark. Code Ann. § 16-85-407(b) (1987); Sellers v. State, 50 Ark. App. 32, 901 S.W.2d 853 (1995). Appellant cites no authority, and we know of none, that requires that an amendment be made in writing. The nature or degree of the offense was not changed by the amendment, and appellant’s counsel admitted that he was not surprised by the amendment. We find no error.
Affirmed.
JENNINGS, C.J., and Hays, Special Judge, agree.
We recognize that in Dickerson we mistakenly spoke in terms of three “convictions” within three years instead of “offenses.” See Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987). However, that mistake does not affect resolution of the issue presented here. | [
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John F. Stroud, Jr., Judge.
Louis Albert Weaver III was working for Whitaker Furniture Company, Inc., on October 28, 1993, when he stepped down from a forklift and fell. He continued to work until his supervisor asked about his arm about four hours later. That afternoon he was sent to Dr. C. W. Koch, Jr., who determined that he had fractured his elbow. Before leaving Dr. Koch’s office, appellant gave a urine sample that was forwarded for testing. The laboratory analysis revealed the presence of cannabi-noids. A second urine sample, taken two weeks later, had no detectable level of cannabinoids.
Whitaker Furniture contended that appellant’s injury was drug-related and contested his claim for workers’ compensation benefits. The administrative law judge denied the claim, finding that the preponderance of the evidence failed to show that the claimant had sustained a compensable injury within the meaning of Act 796 of 1993. The Workers’ Compensation Commission affirmed and adopted the decision of the law judge after conducting a de novo review. On appeal Mr. Weaver contends that the Commission’s opinion is not supported by substantial evidence and is erroneous as a matter of law. We disagree and affirm.
Under our prior workers’ compensation law, there was a prima facie presumption that an injury did not result from intoxication of the injured employee while on duty. See Ark. Code Ann. § 11-9— 707(4) (1987). Act 796 of 1993, however, changed that presumption so that it now reads as follows:
The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. . . . An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
Ark. Code Ann. § ll-9-102(5)(B)(iv) (Repl. 1996).
In the case before us, the Commission’s opinion included the following discussion of appellant’s burden of proof in overcoming the rebuttable presumption that his injury was substantially occasioned by the use of illegal drugs:
[I]n determining whether the presumption has been overcome, the results of objective testing and the clear and consistent opinions of experts cannot be overlooked. Additionally, while some accidental injuries might occur with little possible relationship to intoxication, a slip and fall type injury is of the type which could be influenced by the effect of the forbidden substances. Moreover, the record does not reveal whether the other persons who allegedly did not notice intoxication possessed any special training for making such assessments.
Thus, it cannot be said that the claimant has overcome the statutory presumption and proved entitlement to benefits without impermissibly giving him the benefit of the doubt or resorting to conjecture and speculation on his behalf.
Both appellant and a co-worker testified that appellant slipped as he was stepping down from a forklift. The co-worker stated that the forklift leaked brake fluid; that he, too, had slipped on the forklift two or three times; that there was brake fluid on the concrete floor where appellant slipped; and that appellant did not appear to be “high” from drugs before or after the accident. The appellant testified that he had oil on his shoes that morning; and that although he had not used marijuana in three years, he had attended a party four days previously where marijuana smoke was heavy. It was his opinion that the oil on his shoes had caused him to slip and fall. Appellant introduced into evidence a letter from Dr. Koch, stating that there was no obvious intoxication when appellant was seen on the date of the accident.
The record also contains correspondence from two experts who evaluated appellant’s laboratory test results. Cannabinoids detected in the first urine specimen were confirmed by gas chromatography-mass spectrometry showing a level greater than 200 ng/ml carboxy acid THC, the principle metabolite of marijuana. Dr. Henry F. Simmons stated that cut-off levels used to confirm positive screening tests are 15 ng/ml for federal programs and 10 ng/ml in many private programs. He stated that a level of 200 was well above levels expected from passive exposure to marijuana smoke, was not consistent with use of marijuana two to three years before testing, and could dissipate within two weeks to a level below cut-off values. He stated that the technique used by the laboratory was a state-of-the-art method of testing with a false positive rate near zero. Stuart Bogema, Ph.D, confirmed that two weeks after initial results of 200 ng/ml, a follow-up test of an individual who was not a heavy, chronic user and had not used marijuana in the interim would most likely be negative.
Appellant contends that the Commission erred as a matter of law in that it failed to understand that when any evidence is presented, the rebuttable presumption evaporates. He contends that the Commission placed an impossible burden upon him in refusing to disregard the rebuttable presumption once he presented testimony that he had not used marijuana in three years, that he was not intoxicated the day of the accident, and that he slipped because of oil on his shoes and brake fluid on the floor.
We do not read the Commission’s decision as placing an impossible burden upon appellant, nor do we agree that the Commission erred as a matter of law. The plain language of the last sentence of section ll-9-102(5)(B)(iv) denies compensation “unless it is proved by a preponderance of the evidence that the . . . illegal drugs . . . did not substantially occasion the injury or accident.” Furthermore, section ll-7-104(c)(3) requires that all provisions of the chapter be stricdy construed. It was up to the Commission to determine whether appellant met its burden of proof in rebutting the presumption, and it did so by addressing in its decision “whether the presumption has been overcome.” Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. See Eagle Safe Corp. v. Egan, 39 Ark. App. 79, 842 S.W.2d 438 (1992).
When reviewing a finding of fact made by the Commission, we must affirm if the Commission’s decision is supported by substantial evidence. Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996). Furthermore, it is well established that the credibility of witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
Here, laboratory test results showed high levels of cannabinoids in appellant’s urine the day he was injured at work. Under Ark. Code Ann. § ll-9-102(5)(B)(iv) (Repl. 1996), this created a rebuttable presumption that his injury was substantially occasioned by the use of illegal drugs. The Commission weighed appellant’s evidence that he slipped because of a substance on the floor or on his shoes and that he had not used marijuana in three years, against the opinions of experts indicating that appellant had used marijuana or similar substances shortly before his accident at work and could not have attained the level detected by the testing from passive exposure to the smoke at a party a few days before the injury. We conclude that the Commission’s finding that appellant did not overcome the presumption is supported by substantial evidence.
Affirmed.
Jennings, C.J., and Pittman, Robbins, and Rogers, JJ., agree.
Mayfield, J., dissents. | [
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JOHN E. Jennings, Chief Judge.
Marie Brothers and Gary Wayne Nason were married in the 1970’s and had three sons. In their 1978 divorce, Ms. Brothers was awarded custody of the children but no child support was ordered. Ms. Brothers subsequendy assigned her rights to child support to the State of Arkansas, and the Office of Child Support Enforcement filed a petition for prospective and retrospective support on December 7, 1995.
Following a hearing on the petition the chancellor ordered appellant to pay child support in the amount of $51.00 per week and awarded a judgment to the State for retrospective support totaling $15,600,000 over a five-year period.
The only issue raised on appeal is whether the trial court had authority to award a judgment for retrospective child support. The propriety of the amount awarded is not at issue. We find no error and affirm.
Appellant’s argument is based primarily on Ark. Code Ann. § 9-14-236(b), which states:
In any action involving the support of any minor child or children, the moving party shall be entitled to recover the full amount of accrued child support arrearages from the date of the initial support order until the filing of the action.
Appellant contends the statute means that the court cannot award support for any time prior to “the date of the initial support order.” Appellant also argues that Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992), which was relied on by the appellee at trial, has no application because it is a paternity case.
The Arkansas Supreme Court has long held that a parent has a legal duty to support his minor child regardless of the existence of a support order. See e.g., Holt v. Holt, 42 Ark. 495 (1883); McCall v. McCall, 205 Ark. 1123, 172 S.W.2d 677 (1943). It is true that Green v. Bell, cited above, was a paternity case, but in Green the court held that an award of past child support rests upon the equities of the particular case. It is not limited to reimbursement only but rather to an amount that is fair and equitable. On this point the Green court cited Ryan v. Baxter, 253 Ark. 821, 489 S.W.2d 241 (1973). Ryan was a divorce case in which the decree was silent as to child support. It would thus seem clear that, apart from the statute, there is adequate authority for the chancellor’s award of past support.
We do not agree that Ark. Code Ann. § 9-14-236(b) changes the law in this regard. In interpreting statutes, words are to be given their ordinary meaning and an attempt should be made to give effect to the intent of the legislature. See State v. Gray, 322 Ark. 301, 908 S.W.2d 642 (1995). The purpose of the statute appears to be to prohibit a court from reducing the arrearages from periodic child support after the payments have already fallen due. We see no indication that the General Assembly intended by the passage of this provision to abrogate the general rule that a parent is legally obligated to support his minor child even in the absence of a court order.
For the reasons stated the decision of the chancellor is affirmed.
Affirmed.
Pittman, J., and Hays, S.J., agree.
While it could be argued that the case involves a question of statutory interpretation under Ark. R. S. Ct. Rule l-2(a)(17)(vi), the supreme court has declined certification. | [
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Melvin Mayfield, Chief Judge.
This is an appeal from a chancery court decree which canceled and rescinded a written contract for the sale of certain described real property and the improvements, fixtures, and equipment located thereon.
The appellants, Bryan and Margaret Glasgow, owned the property and operated a retail liquor store on it. The sale price was $160,000.00. The appellee, Faye Greenfield, made a down payment of $10,000.00 and agreed to make other payments at specified periods. In addition, appellee purchased the inventory for a cash payment of $4,709.80.
Evidence was introduced to show that the appellee lived in Arizona and made the contract to purchase the property while on vacation in Arkansas. She testified the contract was signed on November 14, 1980, and that appellant Bryan Glasgow said she could get a license to operate the store in about 90 days and could operate on his license until the next June when his license expired. In December, after she had begun to operate the business, she was told by an enforcement officer of the Alcoholic Beverage Control Board that she had to have a license in her own name. She said the enforcement officer called the ABC office and had them send her an application for a license.
The appellee testified that the application arrived in January but it contained a statement that an applicant must be a resident of Arkansas for two years before a license may be obtained. She then contacted Mr. Glasgow and they went to his attorney’s office and the attorney suggested they could circumvent the law by forming a corporation with Glasgow serving as president. She told Glasgow and his attorney at that time that she wanted her money back if she could not get a license in her own name. Glasgow tried to lease the building but nothing came of that and in March she moved out and left the keys with an employee who gave them to Glasgow.
Suit was filed by appellee in April, after she had moved out in March. After trial, the chancellor issued a decree canceling and rescinding the contract and granting appellee judgment for the $10,000.00 down payment made by her. The decree contained the following finding of fact:
That the contract was predicated upon mistake of fact and law; that the plaintiff entered into the contract relying upon the representations of defendants that she would have no problems getting her State licenses; that these representations were material and substantial; that plaintiff is neither estopped nor barred by laches; and, plaintiff did not waive her cause of action.
On appeal the appellants first argue that the court erred in rescinding the contract as the alleged misrepresentations were not established by clear, unequivocal, and decisive evidence; they also argue that the misrepresentations alleged to have been made by them were about matters of law, not fact, and that a contract cannot be rescinded for misrepresentations of law.
We think the appellants’ argument misses the force of the chancellor’s finding that “the contract was predicated upon mistake of fact and law.” Appellants cite Adkins v. Hoskins, 176 Ark. 565, 3 S.W.2d 322 (1928), for the proposition that fraud cannot be predicated upon misrepresentations of matters of law. The court’s finding in the instant case, however, is based upon the finding of mutual mistake and appellee cites Foster v. Dierks Lumber and Coal Company, 175 Ark. 73, 298 S.W. 495 (1927), which states:
It is well settled under the former decisions of this court that equity has jurisdiction to cancel or reform written instruments, either where there is a mutual mistake or where there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the other party ....
In appellants’ reply brief they do not deny that a contract may be canceled for mutual mistake but argue that there was no mutual mistake in this case. We think otherwise.
Bryan Glasgow admitted that he told appellee she could operate on his license until she got one and that it would take about 60 to 90 days after application for her to do that. This testimony appears on pages 100-102 of the transcript and although there are other places where he seems to equivocate, the chancellor was free to accept Glasgow’s testimony as above indicated. The same is true as to when these statements were made. On pages 92-93 Glasgow makes it very clear that at the very first meeting with appellee, in September before the contract was signed in November, he told her she could operate on his license while her application was pending and that she would have no trouble getting a license. He also admitted that he sold appellee a liquor store and assumed she was going to run it as a liquor store, and both of them testified that they knew that a license was required to operate a liquor store.
It is perfectly obvious from the testimony of both Glasgow and the appellee that they entered into the contract upon the assumption that appellee would be able to obtain a license to operate the liquor store. The chancellor was clearly justified in finding that the contract was predicated upon a mistake and certainly the mistake was mutual. Foster also required that proof to cancel a written instrument must be clear, unequivocal and convincing, but it has been explained that “it is not necessary that evidence be undisputed in order to be clear and convincing” and that “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, 870, 575 S.W.2d 672 (1979). See also Ballard v. Carroll, 2 Ark. App. 283, 290, 621 S.W.2d 484 (1981). We think the evidence of mututal mistake is sufficient to support the chancellor’s finding.
The question remains, however, whether the mistake was one of law which would have prevented the chancellor from canceling the contract. In the Adkins v. Hoskins case, cited by appellants, Hoskins told Adkins what property, in his judgment as a lawyer, Adkins’ wife would be entitled to receive if they divorced. The court said this was a representation of law, not fact, and held “as a general rule, fraud cannot be predicated upon misrepresentations as to matters of law.” This rule is sharply criticized in D. Dobbs, Handbook on the Law of Remedies § 11.8 (1975), in these words:
The rule originated in a mistake of law in 1802, but was widely, even, in the words of Dean Wade, “promis cuously” used by courts in the ensuing years. The reasons for it are virtually nonexistent. The usual argument is that everyone ought to know the law, or be presumed to know it. It is of course true that no man ought to escape the charge of murder on the ground that he believed it was permitted by law, and the maxim that one is presumed to know the law has good application in such a case. It can hardly be said to carry any similar weight when the issue is not obedience of law but unjust enrichment arising out of a misunderstanding of it.
Dobbs points out that “perhaps in recognition that the general rule against relief is an unjust one, courts have created several special exceptions to it,” and explains one such exception as follows:
A similar idea, also applicable only in cases where parties have a contract or attempted contract between themselves, is that restitution may be granted for a mistake of law that has led to a failure of the contract’s purpose. The Restatement of Restitution illustrates this idea with the case of the landowner who contracts with a builder to erect a building 100 feet high, and makes an initial payment to the builder. Thereafter the landowner discovers that an ordinance prohibits structures over 75 feet high in this locality. According to the Restatement this constitutes a failure of purpose and the landowner is entitled to restitution of payment he has made.
In the early case of State v. Paup, 13 Ark. 129 (1852), the Arkansas Supreme Court noted that there were cases which made exceptions to the general rule and commented upon one exception in this language:
So, if both parties should be ignorant of a matter of law, and should enter into a contract for a particular object, the result whereof would, by law, be different from what they mutually intended; here, on account of the surprise, or immediate result of the mistake of both, there can be no great reason why the court should not interfere in order to prevent the enforcement of the contract, and relieve from the unexpected consequences of it. To refuse, would be to permit one party to take an unconsciencious [sic] advantage of the other, and to derive a benefit from a contract which neither of them intended it should produce. State v. Paup at 138.
It is apparent that the exception to the mistake of law rule which applies when the mistake leads to a contract’s failure of purpose, as explained by Dobbs, is the same exception commented upon in the State v. Paup case. The actual holding in that case relied upon another exception to the general rule, but the language quoted above clearly and favorably recognized the same well-established exception discussed by Dobbs.
Therefore, while we recognize that the appellant in Adkins v. Hoskins, supra, could not predicate fraud upon the representations of law made by his wife’s attorney, we do not think that is authority for refusing relief to the appellee in the present case where there was a mutual mistake which prevented appellee from operating the liquor store and which resulted in an unexpected failure of the reason and purpose of the contract.
In their reply brief, the appellants argue that the appellee did not allege mistake with the particularity required by Civil Procedure Rule 9 (b). Trial briefs were filed in this case and are in the record. The appellee’s brief cites the Paup case and states that it holds that a contract entered into under a material misconception of legal rights may be rescinded as a contract founded in mistake of fact. This issue was therefore before the trial court and no objection was made to it there. It cannot be objected to here for the first time. Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983).
Appellants also argue that the trial court erred in not holding against the appellee on the basis of waiver and estoppel. They cite Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980), which holds that one who wants to rescind must, as soon as he learns the truth, announce his purpose, “adhere to it, and act with reasonable diligence, so that all parties may be restored to their original position as nearly as possible.” It is the appellants’ contention that the appellee waited over three months after becoming aware of the two-year residency requirement before making any attempt to rescind the contract.
Herrick holds that the issue of timely rescission is one of fact, 267 Ark. at 587, and the supplemental opinion on rehearing again makes that clear, 267 Ark. at 592-B. Here the appellee testified she found out about the residency requirement in January and after contacting Glasgow and going with him to his attorney’s office where she advised them she wanted her money back if a license could not be issued in her name, she waited while Glasgow attempted to lease the building and she finally moved out sometime in March. We cannot say that the chancellor’s decision on the question of a timely rescission is clearly erroneous. Civil Procedure Rule 52 (a).
Furthermore, the point involved in the requirement of a timely rescission is the opportunity for the parties to be restored to their original position. According to the appel-lee, after being told that she wanted her money back, Glasgow tried to lease the building but did not avail himself of the opportunity to táke the store back. Secondly, Glasgow admitted he knew the appellee was going to close the store about a week before it was closed and he testified that even after it was closed he did not open it up again, and that he surrendered his license because the ABC Board told him they wanted the store open or his license would be revoked. Finally, appellants seem to complain that the appellee took the inventory with her instead of turning it over to them. It must be remembered, however, that the appellee paid cash for the inventory and it therefore belonged to her. There is certainly nothing in the record to indicate that appellants offered — or even wanted — to pay for the inventory that was left and take it back. The money judgment against them is for the down payment only. Appellee did not seek to recover the money she paid for the inventory.
Having carefully considered the appellants’ contentions, we affirm the chancellor’s decree.
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OLLY NEAL, Judge.
Office of Child Support Enforcement has appealed from an order of the Lee County Chancery Court modifying appellee Shaun Pittman’s child-support obligation for Shamara Pittman, who was born out of wedlock to Sonya Pointer and appellee on July 30, 1996. We agree with appellant that the chancellor erred in determining appellee’s net income and the amount of child support required by the family-support chart in reference to that income. Accordingly, we reverse and remand.
In June 1997, appellee was adjudged to be Shamara’s father and was ordered to pay child support in the amount of $95.00 every two weeks. In September 1998, another child was born out of wedlock to appellee and a different woman, whom appellee married in July 1999. Appellee’s support obligation for Shamara was reviewed at a hearing on August 5, 1999. At the hearing, appellee testified that he has a master’s degree in business administration and is employed by Coahoma Community College in Mississippi. He stated that he has a second job at a casino, the commute to which requires an hour’s drive each way. He said that he is also obligated by a Mississippi court order to pay $700 per month in child support for his four other children. Appellee testified that his wife is working on her master’s degree in English education and is not employed during the school year. He said that he is the sole support for his wife, their child, and his wife’s son; his wife does not receive any child support from her son’s biological father.
At the conclusion of the hearing, the chancellor found appel-lee’s after-tax income to be $4,400 per month. He stated that, from this $4,400, he would deduct $140 for appellee’s commuting expenses and the $700 appellee was ordered to pay by the Mississippi court, to arrive at a net income of $3,600 per month. The chancellor also said that, in determining the amount of support required by the family-support chart, he would treat Shamara as one dependent, appellee’s wife and his stepchild as one dependent, and appellee’s child that was born to his present marriage as one dependent. He said that, based on appellee’s net income of $3,600, appellee should pay $972 in support for three dependents and, therefore, he would order appellee to pay one-third of that amount for Shamara. On August 6, 1999, the chancellor entered an order directing appellee to pay $150 every two weeks in child support.
On appeal, appellant makes the following arguments: (1) the chancellor erred in determining appellee’s net income by deducting his commuting expenses from his gross pay; (2) the chancellor erred in setting appellee’s support obligation for Shamara as one-third of the amount established by the family-support chart for three dependents; and (3) the chancellor erred in granting appellee a credit for his current wife and her son, appellee’s step-child.
The amount of child support a chancery court awards lies within the court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion. Davis v. Office of Child Support Enforcement, 68 Ark. App. 88, 5 S.W.3d 58 (1999). In setting the amount of support, the chancellor must refer to the family-support chart. Id. Reference to this chart is mandatory. Id. The family-support chart creates a rebuttable presumption that the amount of child support set forth therein is the correct amount of child support to be awarded and that such amount can be disregarded only if the chancery court makes a specific written finding that application of the support chart is unjust or inappropriate. Id.; In re Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998) (hereinafter “guidelines).
Before a chancellor can refer to the child-support chart, the payor’s income must be determined. Office of Child Support Enforcement v. Longnecker, 67 Ark. App. 215, 997 S.W.2d 445 (1999). The guidelines define “income” as follows:
Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest • less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependant children, and
4. Presendy paid support for other dependents by Court order.
Therefore, we agree with appellant that the chancellor erred in deducting appellant’s commuting expenses from his after-tax income to arrive at his net income. However, as discussed below, such expenses may be considered by the chancellor in determining whether to deviate from the amount of child support established by the family-support chart.
We also agree with appellant that the chancellor erred in treating Shamara as one of three dependents and awarding her one-third of the amount of child support required by the family-support chart for three dependents. This method of determining support was disapproved in Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992); Arkansas Dep’t of Human Servs. v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994); and Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). We explained our decision in Arkansas Department of Human Services v. Forte, as follows:
In the case at bar, there was evidence from which the chancellor could have found that appellee contributes to his other children’s support. Therefore, we cannot say the chancellor’s consideration of these children in setting support is in error. Nevertheless, we must reverse and remand this award to the chancellor because the method the chancellor employed in determining appellee’s child support obligation is not appropriate.
It appears that the chancellor applied appellee’s income figure of $270.00 to the chart under the column for three dependents, which showed support of $101.00, and then divided that figure by three, to arrive at support for U.T. of $35.00. In Waldon v. Waldon, supra, this Court held that the chart should be applied to the child that is before the court and that it is improper for the chancellor to have applied the chart based on three dependents and then divide that amount by three. “The result of applying the chart as the chancellor did here is that the amount of support for the one child was diluted, as the chart is structured so that the amount of support per child decreases in proportion to the number of added dependents.” 32 Ark. App. at 123, 806 S.W.2d at 390. Therefore, we must remand this decision to the chancellor with instructions to apply the chart based on the one child that is before it and then, if the chancellor finds this amount unjust or inequitable, to make such adjustments as he considers necessary supported by written findings.
46 Ark. App. at 119, 877 S.W.2d at 951-52.
Applying this reasoning to the case before us, we conclude that the chancellor erred in treating Shamara as one of three dependents and in setting her child support at one-third of the amount indicated by the chart for three dependents. As explained below, however, the chancellor may consider the needs of appellee’s child from his current marriage, along with appellee’s other obligations, in deciding whether it would be equitable to deviate from the amount set by the chart.
The guidelines provide that it is sufficient to rebut the presumption that the amount of child support calculated pursuant to the family-support chart is correct, if the court enters a specific written finding within the order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate. According to the guidelines, relevant factors to be considered by the court in determining whether to deviate from the amount of child support set by the family-support chart shall include food, shelter and utilities, clothing, medical expenses, educational expenses, dental expenses, child care, accustomed standard of living, recreation, insurance, transportation expenses, and other income or assets available to support the child from whatever source. The guidelines also include the following as additional factors that may warrant adjustment to the child-support obligation:
1. The procurement and/or maintenance of life insurance, health insurance, dental insurance for the children’s benefit;
2. The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g. orthopedic shoes, glasses, braces, etc.);
3. The creation or maintenance of a trust fund for the children;
4. The provision or payment of special education needs or expenses of the child;
5. The provision or payment of day care for a child;
6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements; and
7. The support required and given by a payor for dependent children, even in the absence of a court order.
331 Ark. at 586.
Therefore, it is clear that, in deciding whether to deviate from the amount of child support set by the family-support chart, the chancellor may consider appellee’s support of his child by his present marriage. See also Lovelace v. Office of Child Support Enforcement, 59 Ark. App. 235, 955 S.W.2d 915 (1997); Arkansas Dep’t of Human Servs. v. Forte, supra. He may also consider the fact that appellee is the sole support of his wife and her son, appellee’s step-child. In Green v. Green, 232 Ark. 868, 341 S.W.2d 41 (1960), the appellee persuaded the chancellor to discontinue his obligation to pay $25 toward his child’s educational fund primarily because he had remarried and assumed the support of his new wife and her daughter. On appeal, the supreme court reversed this aspect of the order, noting that the appellee was actually better off financially than he was at the time of the divorce. The court also stated:
Appellee mainly relies upon the fact of his remarriage to justify a modification of the decree. In Bostic v. Bostic, 229 Ark. 127, 313 S.W.2d 553, this Court, in quoting from 27 C.J.S., Divorce, § 322, p. 1245, said:
The fact that a divorced husband has remarried or was contemplating remarriage is not alone ground for reducing the amount of the allowance, although it is a circumstance that may be considered in weighing the equities of the situation; and the same rule applies to the remarriage of the wife, at least in the absence of an assumption by the second husband of any obligation to support the children of the first marriage; nor is the remarriage of both husband and wife to third persons, in itself, regarded as such a change of circumstances as requires a modification of the allowance.
Certainly, the remarriage is not a ground for modification in this case; the record reflects that Mr. Green married his present wife shortly after obtaining the divorce, and was well aware, at the time he asked the court, through his complaint, to enter the educational fund provision, that he was fixing to assume additional obligations, viz., a second wife and a step-daughter.
232 Ark. at 870-71, 341 S..W.2d at 43 (emphasis added).
The child-support chart and the criteria used for deviating from it are not conclusive, and there may be other matters in addition to the child-support chart that have a strong bearing upon determining the amount of support. Arkansas Dep’t of Human Servs. v. Forte, supra. Similarly, the chancellor may consider appellee’s commuting expenses in making this determination. It is permissible for the chancellor to consider the effect of an increase in a payor’s child-support obligation on his ability to pay his bills. Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993).
On de novo review of a fully developed chancery record, the appellate court may enter the order that the chancellor should have entered, or it may remand if the court concludes that justice would be better served. Office of Child Support Enforcement v. Longnecker, supra. Wé note that, at the August 1999 hearing, appellee testified that his wife expected to complete her work toward her master’s degree in about a year and a half. In our view, justice would be better served to remand this action so that, if the chancel lor wishes, he may take additional evidence about appellee’s current financial condition, including whether appellee’s wife has plans to re-enter the job market and whether she has taken any steps to collect child support from her son’s biological father. Therefore, we reverse the chancellor’s decision and remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
Pittman and Hart, JJ„ agree. | [
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Per Curiam This per curiam order relates to an appeal from the chancellor's award of attorney's fees and cost to the appellee, Pat Cooper Winter, who prevailed in an action by J.W. Hendrix, appellant, to establish an easement on Winter’s land by prescription. The appeal was submitted to a panel of this court on March 15, 2000. However, before an opinion could be rendered, Winter, on March 20, 2000, filed a motion to dismiss the appeal, asserting that Hendrix had voluntarily paid the judgment on March 2, 2000. Hendrix filed a response to the motion admitting that the judgment had been satisfied, but alleging that his attorney had entered into an agreement with Winter’s attorney to the effect that Winter’s attorney would “hold” the funds paid by him in satisfaction of the judgment pending the outcome of the appeal, and that, upon conclusion of the appeal, the funds would be released to the party who prevailed. Hendrix also alleged that the reason for this agreement was that the existence of the judgment on the record had created financial difficulties for him in conducting his timber business because of his inability to obtain a bank loan as a result of the judgment lien on his land.
Hendrix attached to his response the affidavits of himself and his attorney that set forth in greater detail the circumstances and events that led to the alleged agreement. Attached to his attorney’s affidavit was a copy of a portion of the attorney’s February 29, 2000, long-distance telephone bill purporting to reflect two calls from Hendrix’s attorney to Winter’s attorney on February 25, four minutes and seven minutes in duration, respectively. Hendrix’s attorney alleged in his affidavit that these telephone conversations resulted in the agreement between the parties’ attorneys that Hendrix would pay the judgment funds to Winter’s attorney, that a satisfaction of the judgment would be entered of record, but that Winter’s attorney would hold the funds pending conclusion of the appeal.
Winter filed a reply to Hendrix’s response disputing Hendrix’s allegation that the payment of the judgment involved an agreement to hold the funds pending the outcome of the appeal. Winter’s reply was accompanied by an affidavit of her attorney stating that a Satisfaction of Judgment was provided to Hendrix in exchange for payment of the judgment, that the exchange was accomplished without a conversation resulting in any agreement that the funds were to be held pending the resolution of the appeal, and that payment of the judgment was voluntarily made by Hendrix at his request.
Obviously, the positions of the respective parties as to the existence of an alleged agreement to “hold” the judgment funds pending the appeal are diametrically opposed, and we believe that we have good reason to be concerned about what appears to be a violation by the attorney for one of the parties of Rule 3.3(a)(1) of the Model Rules of Professional Conduct, which provides that, “a lawyer shall not knowingly make a false statement of material fact or law to a tribunal.” This court is without the means or authority to resolve the disputed factual issue of whether either, or which, attorney has committed an ethical violation. However, under Canon 3(D)(2) of the Arkansas Code of Judicial Conduct, we, as judges, having received information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty or trustworthiness, are obligated to either communicate directly with respect to the violation with the lawyer who has committed the violation or report the violation to the Arkansas Supreme Court Committee on Professional Responsibility. Under the circumstances presented here, we consider that it is appropriate to report this matter to the Committee on Professional Responsibility, and we do so at this time by directing the Clerk of this court to provide a copy of this order to its Director, James A. Neal.
Turning to the merits of the matter, we have decided that the motion to dismiss this appeal must be granted. In DeHaven v. T & D Dev., Inc., 50 Ark. App. 193, 901 S.W.2d 30 (1995), we held that if an appellant voluntarily pays a judgment, then the appeal from that judgment would be moot, but that if payment of the judgment is involuntary, an appeal would not be precluded. In Hendrix’s response to Winter’s motion in the case at bar, he does not contend that his payment of the judgment was involuntary. He alleges that the existence of the judgment on the record, constituting a lien on his land, created a financial hardship on his timber business due to his inability to obtain a bank loan. Consequently, he chose to pay the judgment debt in exchange for a satisfaction of it. In DeHaven, we quoted from Lytle v. Citizens Bank of Batesville, 4 Ark. App. 294, 630 S.W.2d 546 (1982):
[I]n the majority of jurisdictions, the effect of the payment of a judgment upon the right of appeal by the payer is determined by whether the payment was voluntary or involuntary. In other words, if the payment was voluntary, then the case is moot, but if the payment was involuntary, then the appeal is not precluded. The question which often arises under this rule is what constitutes an involuntary payment of a judgment. For instance, in some jurisdictions the courts have held that a payment is involuntary if it is made under threat of execution or garnishment. There are other jurisdictions, however, which adhere to the rule that a payment is involuntary only if it is made after the issuance of an execution or garnishment. Another variation of this majority rule is a requirement that if, as a matter of right, the payer could have posted a supersedeas bond, he must show that he was unable to post such a bond, or his payment of the judgment is deemed voluntary....
DeHaven, 50 Ark. App. At 193, 901 S.W.2d at 32.
Hendrix does not allege that an execution or garnishment on the judgment against him had been either threatened or issued at the time he paid the judgment. He had an absolute right to post a supersedeas bond in this court that would have stayed enforcement of the judgment pending his prosecution of the appeal. He did not do so, and he does not allege that he was unable to post such a bond. From the fact that Hendrix had the money to pay the judgment in full, it is obvious to us that he could have obtained the approval by this court of a supersedeas bond by filing the appropriate bond with the clerk of this court, accompanied by a certificate of deposit, certified check, cash, bank money order, corporate surety, or irrevocable letter of credit, in an amount sufficient to guarantee his payment of “all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree or order of the trial court.” Ark. R. App. P. 8(a); see also Home Mut. Fire Ins. Co. v. Jones, 62 Ark. App. 182, 969 S.W.2d 675 (1998); and Schramm v. Piazza, 53 Ark. App. 99, 918 S.W.2d 733 (1996).
We do not decide by this opinion whether, in a proper case, we would not approve and enforce a written stipulation between the parties for the stay of enforcement of a judgment pending an appeal. However, under the rule applied in DeHaven, supra, we obviously cannot permit the prosecution of an appeal from a judgment that has been satisfied solely upon the strength of an alleged unwritten agreement that is disavowed by one of the parties to the appeal.
Appeal dismissed.
Hart and Roaf, JJ., dissent. | [
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George K. Cracraft, Chief Judge.
James Ronald Pomraning appeals from a divorce decree entered in the chancery court of Polk County. He contends that the chancellor erred both in granting the divorce when appellee failed to prove and corroborate statutory grounds and in assuming jurisdiction to determine the issue of child custody. We do not agree.
The appellee sought her divorce on grounds of indignities. Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Ark. Stat. Ann. § 34-1202 (Supp. 1983) authorizes the granting of a divorce when one spouse proves that the other had offered such indignities to her person as to render her condition in life intolerable. Personal indignities may consist of rudeness, unmerited reproach, contempt, studied neglect, open insult and other plain manifestations of settled hate, alienation or estrangement so habitually, continuously and permanently pursued as to create that intolerable condition contemplated by the statute. Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981).
Appellee testified that during the marriage appellant was constantly angry at her and would not speak to her for days at a time except in situations of necessity. This behavior occurred every two or three weeks throughout the marriage. He openly criticized her about her housekeeping and the way she cared for the children. He showed her little affection. On two occasions he lost his temper and became “physical” with her. On one occasion tney were separated for over three months and during this period he did not provide any support for her or their child. They were reconciled théreafter but his conduct toward her continued to be the same. She stated that she had separated from him five months before the hearing and he had contributed nothing toward her support or that of the children, although he visited them regularly. As a result of the “constant fighting” she has developed health problems. This testimony, if believed, would constitute acts of rudeness or unmerited reproach, studied neglect and other manifestations mentioned in Copeland.
Corroboration is testimony of a substantial fact or circumstance, independent of the statement of a complaining spouse, which leads a reasonable mind to believe that the material testimony of that spouse is true. Corroborating testimony may not consist of mere generalities or opinions, beliefs and conclusions on the part of the witness but must be directed toward specific language, acts and conduct. Welch v. Welch, 254 Ark. 84, 491 S.W.2d 598 (1973); Copeland v. Copeland, supra. In a contested matter in which it is apparent that there is no collusion the corroboration required may be relatively slight. Copeland v. Copeland, supra; Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954).
The appellee’s mother testified that she regularly visited in the parties’ home every six to eight weeks and had an opportunity to observe their relationship. She stated that appellant would not communicate with appellee and would never talk to her during meals. He criticized her about everything, including the house and the food. This reproach took place in her presence, and she stated that any criticism about her housework and care of the children was wholly unmerited. She stated that he had yelled and screamed at appellee in her presence and that she knew that the appellee was nervous and distressed and had developed an upset stomach as a result of it. At the time she had left the appellant she had lost a lot of weight, but since the separation she has relaxed, eats better, and has gained weight. This testimony adequately corroborates the appellee’s statements as to rudeness, unmerited reproach, contempt and studied neglect.
Although the appellant denied any marital misconduct we give due regard to the chancellor’s superior position to determine the weight of the testimony and the credibility of the witnesses. Although we review chancery cases de novo, we do not disturb a chancellor’s finding unless it is clearly against a preponderance of the evidence. ARCP Rule 52(a); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981).
Prior to her marriage appellee had been a lifelong resident of Arkansas. In 1979 she married the appellant in Louisiana and maintained her marital domicile in that state until July 28, 1983 when she separated from her husband and brought her two children to her mother’s home in Mena. On September 27, 1983 she filed suit in Arkansas seeking a divorce and custody of the two children. The appellant appeared, answered and prayed that, if a divorce be granted, he be awarded joint custody of the two children.
The case was set for trial on December 29, 1983 but was continued until January 5, 1984 because of a winter storm. On January 3rd the appellant filed an amended answer challenging the court’s jurisdiction to determine the custody issue and asserting that because Louisiana was the home state of the children the Arkansas court lacked jurisdiction under Ark. Stat. Ann. § 34-2701(a) (Supp. 1983). The following day he obtained an Ex Parte order from the Louisiana court finding that Louisiana had jurisdiction of the custody issue and directing the appellee to appear and show cause why the children should not be placed in the appellant’s custody. On January 5th the appellant presented his motion to dismiss to the chancellor and exhibited the Louisiana order. The chancellor denied the motion.
Appellant contends that the chancellor lacked jurisdiction to make a custody determination under the provisions of the Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. §§ 34-2701 et seq (Supp. 1983). Ark. Stat. Ann. § 34-2703 deals with jurisdictional requisites for custody determinations and states in pertinent part that a court has jurisdiction if:
(a) (1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding ... or
(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
(3) the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction. [Emphasis supplied]
Ark. Stat. Ann. § 34-2702(5) defines “home state” as the one in which the child has resided with one or both parents for at least six consecutive months immediately preceding the time involved.
Appellant primarily argues that as the children had not resided in this state for six months preceding the commencement of appellee’s action, the court lacked jurisdiction of that issue under § 34-2703(a)(l). This argument must fail because the section as a whole provides for alternate bases for jurisdiction, only one of which is based on establishing a “home state.” Subsection (a)(1) confers jurisdiction in any event if the child has resided in this state for six consecutive months before the commencement of the action. Subsections (a)(2), (3) and (4) outline those circumstances under which jurisdiction is conferred where the child has resided here for less than 6 months.
The chancellor found that he did have jurisdiction under subsection (a)(2) which confers jurisdiction where it is shown that the child and at least one parent have significant connections with this state and there is available in the state substantial evidence concerning the child’s present or future care, training and personal relationships.
We find no error in the chancellor’s conclusion. Appellee was born and raised in this state and lived most of her life in Polk County. She was not “shopping” to find a forum in which to obtain a divorce and custody order but was returning to the home in which she had been raised and to which she had returned on both occasions when marital problems developed. The children were present in this state and had been for several months. The older child had resided in Polk County during an earlier separation. The maternal grandparents with whom both appellee and her children had maintained a close relationship resided there. They had provided appellee and the child a home and financial support during her first and second separations from the appellant and gave assurance that they would do so for so long as was necessary. The appellee considered Mena her home and stated her intention to remain in that community indefinitely. A full contested hearing was had before the chancellor with both parties present. Appellant does not point out to us any evidence regarding the child’s present or future care which was not made known to the chancellor, under these circumstances the fact that appellee and her children had lived in this state for a shorter period than that required to establish it as their “home state” did not preclude jurisdiction over the custody issue.
The facts in this case are readily distinguishable from those in Biggers v. Biggers, 11 Ark. App. 62, 666 S.W.2d 714 (1984) and Hogan v. Durgan, 11 Ark. App. 172, 668 S.W.2d 57 (1984). In Hogan the child’s home state was in the State of Washington and neither she nor her mother had ever been in or had any connection with Arkansas. In Biggers the home state of the children and their mother was Missouri. The only connection with this state was that the father had moved here after the divorce. The children had been in this state only on short and infrequent visits and were present at the time of the hearing only because their father had abducted them and brought them here for the purpose of obtaining a custody award.
Appellant also contends that the chancellor should have declined to exercise jurisdiction because Louisiana was a more convenient forum. Ark. Stat. Ann. § 34-2707 provides that a court may decline to exercise its jurisdiction on a custody determination where it finds it to be an inconvenient forum taking into account the fact that another state was the child’s home state or has a closer connection with the child and parent, or that evidence of present and future care is more readily available in another state. Considering the factors previously outlined we cannot conclude that the chancellor abused his discretion in deciding to exercise jurisdiction in this case.
Affirmed.
Cloninger and Cooper, JJ., agree. | [
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OLLY Neal, Judge.
On November 8, 1995, appellant pleaded guilty to the felony offense of aggravated assault and was placed on probation for a period of three years. Under paragraph 32 of his conditions of probation, appellant was eligible for expungement of his conviction “upon successful completion of his probationary period.” Appellant completed his sentence on November 8, 1998, without violating any condition of his probation. There is no evidence of whether appellant’s conviction was expunged.
On March 25, 1999, appellant was charged by information with possession of a firearm by a convicted felon pursuant to Ark. Code Ann. § 5-73-103 (Repl. 1997). On April 12, 1999, he filed a motion in limine asserting that the State could not use his previous felony conviction as a basis in a later prosecution for felon in possession of a firearm because the underlying felony was subject to expungement.
Following a pretrial hearing held June 2, 1999, the trial court denied the motion based on its finding that, at the time appellant was placed on probation in November of 1995, Ark. Code Ann. § 16-93-1207 (Supp. 1999), “provided that upon successful completion of probation the Court may direct the record of the offender be expunged of the offense for which the offender was convicted” (emphasis added), and that Ark. Code Ann. § 16-90-904 (Supp. 1999), “sets forth the procedure for a defendant to seek expungement pursuant to A.C.A. § 16-93-1207.” The trial court found that there was nothing in the record to show that appellant had taken steps to have his record expunged or sealed. It noted that even though the date of the current offense was outside the probationary period for appellant’s prior aggravated assault conviction, the prior felony conviction remained in effect and was available for use by the State as an element of the current offense because appellant’s prior record had not been expunged. The trial court noted that appellant’s reliance on Irving v. State, 301 Ark. 416, 784 S.W.2d 763 (1990), was distinguishable from the present case because the basis of the Irving decision was decided under the Youthful Offender Alternative Services Act, which provided that upon completion of probation, the trial court “shall” direct that the record of the eligible offender be expunged of the offense for which the eligible offender was convicted. It further noted that appellant’s prior offense occurred in 1995 after the repeal of the Youthful Offender Alternative Services Act. After a bench trial held August 3, 1999, appellant was convicted of being a felon in possession of a firearm and fined $1,000 along with court costs.
Appellant’s sole point on appeal is that the trial court erred in denying his motion in limine to exclude the introduction of his prior conviction of aggravated assault, for which he was sentenced under the expunging provisions of Ark. Code Ann. § 16-93-1207.
On appeal, the appellate court will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion nor will the appellate court reverse absent a showing of prejudice. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999).
Arkansas Code Annotated section 16-93-1207(b)(l) provides that “upon successful completion of probation ... the court may direct that the record of the offender be expunged of the offense of which the offender was convicted....” Arkansas Code Annotated section 16-93-1207 (b)(3) further provides that the “procedure, effect, and definition of ‘expungement’ for the purposes of this subsection shall be in accordance with that established in § 16-90-901 et seq.” Under Arkansas Code Annotated section 16-90-904 (a), “an individual who is eligible to have an offense expunged may file a uniform petition to seal records ... with the court in the county where the crime was committed.”
Appellant now argues that the trial court abused its discretion when it used his prior felony conviction as the underlying felony in the subsequent prosecution against him for felon in possession of a firearm. He argues that when the trial court sentenced him to probation, the trial court’s order and the conditions of probation provided that his conviction “shall” be eligible for expungement upon successful completion of the probationary period. He argues that under the dictate of Irving, supra, an underlying felony cannot be used in a subsequent prosecution for felon in possession of a firearm if it is subject to expungement and the expungement is merely a ministerial function to be performed by an official of the trial court.
In this case, however, a sentence must be in accordance with the statutes in effect on the date of the crime. Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984). At the time appellant was convicted of his prior felony in November of 1995, he was sentenced under Ark. Code Ann. § 16-93-1207, which provides that the trial court “may” direct that the record of the offender be expunged. Section 16-90-904(a), which sets out the procedures for expungement, further provides that it is the duty of the “individual who is eligible to have an offense expunged,” and not the trial court, to file a petition to seal a criminal record. The Youthful Offender Alternative Service Act of 1975, under which the facts in Irving were decided, provides that upon completion of the sentence, the Commissioner of the Department of Correction shall direct that the record of the eligible offender be expunged. (Emphasis added.) See Ark. Stat. 43-2344 et seq. [Ark. Code Ann. § 16-93-501 et seq. (Repealed 1993)]. In Irving, the supreme court held that under the language of the Act, young offenders did not have to petition for expungement, and that expungement was a ministerial duty to be completed by the Commissioner of the Department of Correction.
We distinguish Irving from the facts in this case because appellant was sentenced and placed on probation under the provisions of Ark. Code Ann. § 16-93-1207 and not the Youthful Offender Alternative Services Act. Although the trial judge had some discretion under Section 16-93-1207 to expunge appellant’s record upon the successful completion of appellant’s probationary period, this court cannot say that the expungement of appellant’s record was merely a ministerial duty of the trial court or a mandated function of the trial court. Therefore, since there is no evidence that appel lant petitioned to have his record sealed at the end of his probationary period, this court finds that the trial court did not abuse its discretion in denying appellant’s motion in limine.
Affirmed.
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Tom Glaze, Judge.
On conviction for burglary and theft of property, the appellant was sentenced to twelve and six years respectively. His only argument for reversal is that his confession should not have been introduced into evidence.
Sometime prior to 10:30 A.M. on January 22, 1982, appellant was picked up for questioning regarding a burglary and theft. At about 10:45 A.M. the same day, he was read his rights and advised of the charges of which he was suspected. At 12:25 P.M., he signed a statement admitting his involvement in the crimes, and he was officially arrested at 1:15 P.M. The crux of appellant’s argument on appeal is that although he requested counsel, the officers continued to interrogate him in violation of the Fifth Amendment as interpreted by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477 (1981). At the suppression hearing, the officers testified that appellant voluntarily gave a statement, but they never specifically contradicted appel - lant’s claim that during the questioning and before giving a statement, he had requested an attorney and was never allowed one.
While appellant is correct that the State did not recall the officers as witnesses to rebut appellant’s claim that he requested an attorney, it is also true that he signed a rights form which clearly reflected that he could remain silent and talk to an attorney before giving a statement. As was noted by the Supreme Court in North Carolina v. Butler, 441 U.S. 369 (1979), an express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver. Here, appellant admitted that he signed the rights form, that he was a high school graduate who could read and write and that he read and understood the form before he signed it. The statement he later gave and signed also acknowledged that his rights had been read and explained to him and that his statement was voluntary and not the result of any threats or promises.
In sum, the police officers’ testimonies and appellant’s explicit waiver of rights tend to show appellant’s rights were preserved and his statement was given voluntarily. When evidence is in conflict, it is for the trial court to determine the weight and credibility to be given the testimony. Profit v. State, 6 Ark. App. 51, 637 S.W.2d 620 (1982).
We believe the trial court’s finding of voluntariness is not clearly against the preponderance of the evidence or clearly erroneous. Accordingly, we will not set it aside. Profit v. State, supra.
We affirm.
Affirmed.
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Tom Glaze, Judge.
The appellants appeal from the chancellor’s decree finding easements for two roads over appellants’ property, one prescriptive easement in favor of the general public and one in favor of the appellees. For reversal, appellants contend that the appellees have no record title to the road and that the evidence did not establish a prescriptive easement on either (&) the north-south road or (b) the east-west road. We affirm the chancellor’s decision.
The facts presented at the hearing below showed that the appellants and the appellees own adjoining rural property on which the two disputed roads are located. A north-south road runs between appellants’ and appellees’ property and has existed for over forty years on the site of what was originally a “dummy line” railroad. The road originally provided access to four tenant houses that were removed from appellants’ property in the 1960s. Since the houses were removed, both appellants and appellees have continued to use the road for moving farming equipment to and from their fields. Appellants fenced and closed the north-south road in 1982.
An east-west road runs through appellants’ property and is the northern boundary of appellees’ land. If one begins at the northeast corner of appellees’ property heading east, he drives through appellants’ property over the road to reach U. S. Highway 63. When tenants lived in the above-mentioned houses, the east-west road was used by school buses and by mailmen serving those families. In 1978, iron bar gates were erected across this road by Judd Chapin, appellant Esther Jane Chapin’s grandson. The gates were opened from time to time until 1980, when they were closed and locked.
The appellees brought their action after appellant blocked and denied appellees the use of these two roads. They asked that these obstructions be removed and that damages be awarded. The chancellor found that the north-south road is a private road with an easement acquired by prescription by appellees and their predecessors in title and that the east-west road is a public road with an easement acquired by prescription. He also found the easements to run with the land.
Appellants’ first point for reversal is that the appellees have no record title to the north-south road. Although appellees’ complaint included an allegation that they had claimed to the center of that road as their eastern boundary since 1957 and were therefore claiming under color of title, the trial court did not make a finding in that regard. The trial court’s findings that prescriptive easements were estab lished required no finding that appellees had record title to the property in question. Having record title is not a requisite of one’s acquiring a prescriptive easement; therefore, we find appellants’ first point inapposite.
Appellants’ second point is that the evidence did not establish a prescriptive easement over the north-south road. Appellants contend that appellees never asserted a right to use the north-south road, but rather used the road with the permission of appellants.and their predecessor in title. Appellants correctly point out the following rule from Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957):
“[W]hile a way may be acquired by use or prescription by one person over the uninclosed land of another, mere use of the way for the required time is not, as a general rule, sufficient to give rise to the presumption of a grant. Hence, generally, some circumstance or act, in addition to, or in connection with, the use of the way, tending to indicate that the use of the way was not merely permissive, is required to establish a right by prescription.”
Craig v. O’Bryan, at 685, 301 S.W.2d at 21 (quoting LeCroy v. Sigman, 209 Ark. 469, 191 S.W.2d 461 (1945)).
As we pointed out in Burdess v. Arkansas Power & Light Co., 268 Ark. 901, 597 S.W.2d 828 (Ark. App. 1980), before permissive use can ripen into the adverse use necessary to create a prescriptive easement, some overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim is being exerted. We pointed out in Zunamon v. Jones, 271 Ark. 789, 610 S.W.2d 286 (Ark. App. 1981), that if usage of a passageway over land, whether it began by permission or otherwise, continues for seven years after the facts and circumstances of the usage are such that the landowner would be presumed to know the usage was adverse, then the usage ripens into an absolute right. Id. at 791, 610 S.W.2d at 287-88 (citing Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954)).
The testimony below indicated that in addition to the long passage of time — nearly fifty years — that the road has been used by appellees and their predecessors in title, the appellees have also worked to repair and maintain the road. There was testimony that appellees had neither sought permission nor been denied the right to use the north-south road and that their use was well known by appellants. Appellant Esther Chapin testified that she had never been notified that anyone claimed a right to use the road. She also denied knowledge of the extent of the use that appellees asserted. However, other evidence was to the contrary and indicated a use of a duration and extent that ought to have put appellants on notice. We believe the testimony supported the chancellor’s finding that a prescriptive easement in favor of the appellees exists over the north-south road.
Appellants’ last point is that the evidence did' not establish a prescriptive easement in the public to the east-west road. The east-west road undisputedly lies-across property owned entirely by the appellants; the road provided access to the tenant houses on appellants’ property so lonjas they were there. In addition, school buses and mail trucks used the road to get to and from the tenants’ houses. Testimony also indicated that other members of the public used the east-west road when traveling in the area. Examples of testimony upon which the chancellor could have relied in making his findings included the following:
John Turner, Jr., testified that he had farmed all of the appellees’ property from 1939 to 1957 and that he had used the east-west road without permission and considered it a public road xvhen he lived there. He said that he had seen county road graders working on the road many times.
Alfred Burgess testified that he had lived in the area since 1917, and had used the road without permission to travel to town and to his brother’s house. He stated that the road was used by the public, both local people and those just traveling through the area.
Walter Larison testified that he “figured” the east-west road was a public road; it was used by the community as a whole. From 1972 to 1982, he worked on appellees’ farm and used the road to go to Marked Tree.
Steve Ryan, the Poinsett County Judge, testified that although there was no recorded easement, the county map in his office showed both disputed roads as county roads for maintenance purposes and that the east-west road was graded by the county until iron bars were placed across the road.
/. A. Talbot, appellee, testified that he had used the east-west road without permission from the time he bought his property in 1957 until about three years before trial when the road was blocked off by the appellants.
In view of the testimony presented concerning the longstanding use of the road by members of the community, we believe the evidence supports the chancellor’s finding a prescriptive easement in favor of the public on the east-west road. Applying the same rules about overcoming the presumption of permissiveness as we applied above, we fail to find that the chancellor’s findings are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a).
Affirmed.
Cracraft, C.J., and Mayfield, J., agree. | [
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Donald L. Corbin, Judge.
Appellant, B.J. McAdams, Inc., is a motor carrier of property in interstate commerce, and enters into vehicle lease agreements with owners of tractors and trailers to maintain a fleet of vehicular equipment to provide transportation services. Appellees, Doggett Leasing Company, Inc., and Junior Doggett, executed five such agreements with appellant, and were to receive a specified percentage of the net revenue from each load transported by appellees’ vehicles. Net revenue was defined in the agreements “as gross revenue less amounts paid to other persons.” Also, appellees were to reimburse appellant for any claims for cargo damage caused directly or indirectly by appellees or their employees.
On June 23, 1982, appellees filed suit alleging that appellant had breached the terms of the agreements by (1) deducting fees from the compensation owed to appellees, from October, 1977, through January, 1982, and paying the fees to two wholly-owned subsidiaries of appellant, and (2) deducting a late delivery claim and a cargo damage claim from appellees’ compensation, which were not caused by appellees or their employees.
Appellant filed a counterclaim for breach of the agreements alleging that it had paid certain cargo damage claims caused by appellees or their employees, for which it had not been reimbursed by appellees.
On October 31, 1983, in a trial by jury, a verdict was rendered in favor of appellees on their complaint and against appellant on its counterclaim. Appellant filed a motion for new trial which was denied by the trial court, and appellant prosecutes this appeal.
Appellant raises two issues on appeal: (1) The trial court erred in failing to find, as a matter of law, that the contract phrase, “amounts paid to other persons,” was unambiguous, and the interpretation of the phrase by the jury was not supported by substantial evidence. (2) The jury verdict against appellant on the complaint and counterclaim involving cargo damage claims was not supported by substantial evidence.
We need not reach either of these arguments because appellant may not now question the sufficiency of the evidence to support the verdict because appellant failed to renew its motion for a directed verdict at the conclusion of all the evidence, nor did appellant file a motion for judgment notwithstanding the verdict. In McFall Chevrolet Co. v. Collins, 271 Ark. 469, 609 S. W.2d 118 (Ark. App. 1980), this Court stated:
[I]n order for an appellant to challenge the sufficiency of the evidence in a jury trial, he must either move fora directed verdict at the conclusion of all the evidence, move for a judgment notwithstanding the verdict, or move for a new trial because of insufficiency of the evidence. The failure to do one of these three requirements precludes raising the issue on appeal.
The rule has since been changed by a May, 1983, amendment to delete the mention of a motion for a new trial as being a means to challenge the sufficiency of the evidence of a jury verdict. ARCP Rule 50(e) now states:
(e) Failure to Question Sufficiency of the Evidence. When there has been a trial by jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. [Amended by Per Curiam, May 16, 1983.]
The trial of this case was on October 31, 1983, and was clearly subject to the rule change.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Donald L. Corbin, Judge.
This suit was instituted by E. A. Martin Machinery Company against appellee, Ancel P. Waterson, to collect the balance due on a promissory note covering the purchase price on a Caterpillar D-5 bulldozer. Appellee filed a counterclaim against E. A. Martin Machinery Company and a third-party complaint against appellant, Caterpillar Tractor Company, alleging breach of express and implied warranties. He sought damages of $50,000.00. At trial, E. A. Martin Machinery Company and appellee dismissed their respective claims against each other and appellee returned the D-5 bulldozer to E. A. Martin Machinery Company. Appellee pursued his third-party action against appellant on the theory of breach of express warranty. Appellant defended, contending that language in its written warranty limited appellee’s remedy to repair or to replacement of defective parts and excluded liability for any other damages.
The jury returned a general verdict for appellee, fixing his damages at $35,000.00. Appellant appeals on the grounds that the trial court erred in instructing the jury on lost profits and on the issue of unconscionability or failure of essential purpose. We affirm.
Appellee ordered the D-5 Caterpillar bulldozer by filling out a customer purchase order given to him by the dealer, E. A. Martin Machinery Company. The original purchase order was a one page document with printing on both the front and back. In general, the purchase order provided that appellant warranted the product sold to be free from defects in material and workmanship for six months after date of delivery and limited appellant’s express obligation to the repair or replacement of any defective parts and provided that the warranty was in lieu of all other express or implied warranties and barred liability for incidental, consequential or special damages arising from defects in material and workmanship. Appellee signed the purchase order indicating he had carefully read the instrument and was acquainted with its contents.
Appellee testified that the dozer had an annoying, almost constant vibration from the very day it was delivered, a vibration that nearly “drove you out of your mind.” He testified that despite numerous attempts to correct the problem, neither E. A. Martin Machinery Company nor appellant could pinpoint or eliminate the vibration. Leroy McDonald and James Moore, experienced heavy equipment operators employed by appellee, testified that they noticed the dozer’s vibration and pointed it out to E. A. Martin Machinery Company and appellant’s representatives. Both men stated that the vibration on the dozer was much greater than that normally felt when operating heavy construction equipment.
Loren Niblett, a bulldozer mechanic employed by E. A. Martin Machinery Company, investigated appellee’s complaints about the dozer and confirmed that the machine had an abnormal vibration. It was his opinion that the vibration was a result of a defect in material and workmanship at the Caterpillar factory. Jerry Ford, another witness for appellee, explained that appellee hired him to tear down the dozer in an attempt to discover the cause of its problems. In the process of tearing down the machine, he discovered that the dozer’s rear thrust bearings were installed backwards, the side marked “block side” being turned away from the block. Jerry Ford also testified that the vibration in this bulldozer was certainly abnormal and, in his opinion, was a defect in material and workmanship. He stated that the dozer’s value with the vibration problem was $35,000.00 or $36,000.00 at the time of its purchase by appellee.
In addition to the vibration problem, the record reflects that appellee experienced other problems with the dozer which required replacement or repair of the following parts: starter, head gasket, hydraulic hoses, flex coupling, yoke, gaskets and seals.
Appellee had the dozer for approximately twenty months and at the date of trial when the dozer was returned to E. A. Martin Machinery Company, it had approximately 1,400 hours of use on it. Appellee estimated that the dozer was down a total of 68 days during this time and stated that the net profit per day amounted to $161.58 for a total loss of profits of $10,987.48. Evidence adduced at trial established that appellee purchased the D-5 bulldozer at a price of $71,264.67 and was credited with $23,264.67 for a trade-in. A balance of $48,000.00 was to be paid by appellee in monthly installments. Appellee testified that upon return of the dozer toE. A. Martin Machinery Company, he had paid $14,613.72 on the balance of the note. Appellee also testified that in his opinion the fair market value for the machine for the condition it was in when he purchased it was $20,000.00.
Appellant argues in its first point for reversal that the trial court erred in instructing the jury on lost profits. In this regard, appellant contends that the language contained in the purchase order effectively limited appellee’s recovery to repair or replacement of defective parts and relies upon the holding of the Arkansas Supreme Court in the case of Gramling v. Baltz, 253 Ark. 361, 485 S.W.2d 183 (1972), anda United States Court of Appeals case, Cryogenic Equipment Inc. v. Southern Nitrogen, Inc., 490 F. 2d 696 (8th Cir. 1974). In Gramling, supra, the Arkansas Supreme Court impliedly recognized that liability for consequential damages can be limited by “clear and unmistakeable language.” The Court there held that the trial court erred in refusing to admit plaintiff’s testimony concerning consequential damages in the nature of lost profits because such damages were not properly limited or excluded in the manufacturer’s warranty. We believe this case is distinguishable in that the question was whether plaintiff had made a prima facie case for the jury on the issues of breach of'express and implied warranties and the failure of the remedy’s essential purpose was not before that Court as. it is in the case at bar. Appellant’s reliance upon Cryogenic Equipment, Inc., supra, is also misplaced. In upholding a disclaimer of liability for loss of profits in that case, the court held that the disclaimer of liability was not unconscionable in view of the expertise of both parties and in view of the absence of any evidence of a disparity of bargaining power between the parties. The issue of failure of the remedy’s essential purpose was not addressed by the Cryogenic court.
Under the Uniform Commercial Code, a seller of goods may limit his contractual liability in two ways. He may disclaim or limit his warranties, pursuant to Ark. Stat. Ann. § 85-2-316 (Supp. 1983), or he may limit the buyer’s remedies for a breach of warranty, pursuant to Ark. Stat. Ann. § 85-2-719 (Add. 1961). These methods are closely related, and in many cases their effect may be substantially identical. White and Summers, Handbook of the Law Under the Uniform Commercial Code (Hornbook Series, 1980), § 12-8, p. 462. Á disclaimer of warranties limits the seller’s liability by reducing the number of circumstances in which the seller will be in breach of the contract; it precludes the existence of a cause of action. A limitation of remedies, on the other hand, restricts the remedies available to the buyer once a breach is established. White and Summers, supra, § 12-11, pp. 471, 472.
In the case at bar we believe the language contained in appellant’s purchase order is an attempt to both disclaim warranties and limit the remedies available to the buyer upon breach.
It is clear under Arkansas law that parties to a contract may limit or alter the measure of damages recoverable by limiting the buyer’s remedies to repair and replacement of non-conforming goods or parts. Ark. Stat. Ann. § 85-2-719(1 )(a); Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W.2d 555 (1974). The purpose of an exclusive remedy of replacement or repair of defective parts is to give the seller an opportunity to make the goods conforming while limiting the risks to which he is subject by excluding direct and consequential damages that might otherwise arise. From the point of view of the buyer the purpose of the exclusive remedy is to give him goods that conform to the contract within a reasonable time after a defective part is discovered. When the warrantor fails to correct the defect as promised within a reasonable time he is liable for a breach of that warranty.
In its argument appellant overlooks language in § 85-2-719 which qualifies its rights to limit or alter appellee’s remedies. It is clear that limitations on remedies and damages permissible under § 85-2-719 (l)(a) are subject to § 85-2-719(2), which provides:
Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act.
The rationale underlying § 85-2-719(2) is adequately stated by the court in Jones & McKnight Corp. v. Birdsboro Corp., 320 F. Supp. 39 (N.D.Ill. 1970), as follows:
This Court would be in an untenable position if it allowed the defendant to shelter itself behind one segment of the warranty when it has allegedly repudiated and ignored its very limited obligations under another segment of the same warranty, which alleged repudiation has caused the very need for relief which the defendant is attempting to avoid.
Soo Line R. Co. v. Fruehauf Corp., F.2d 1365, 1370 (8th Cir. 1977).
Section 85-2-719(2) is to apply whenever an exclusive remedy, which may have appeared fair and reasonable at the inception of the contract, as a result of later circumstances operates to deprive a party of a substantial benefit of the bargain. See Committee Comment 1. Where the seller is given reasonable opportunity to correct the defect or defects, and the machinery nevertheless fails to operate as should new machinery free of defects, the limited remedy fails of its essential purpose. Soo Line R. Co., supra; Koehring Co. v. A.P.I., Inc., 369 F.Supp. 882 (E.D.Mich. 1974); Jones & McKnight Corp., supra; Kohlenberger, supra; Adams v. J. I. Case Co., 125 Ill.App.2d 388, 261 N.E.2d 1 (1970). It makes no difference that the transaction was between commercial parties. We are not dealing with unconscionability or disparity of bargaining power under the facts of this case, but whether a party was deprived of a substantial benefit of the bargain. Other courts have found a contract to have failed of its essential purpose in commercial settings and applied § 2-719(2). See, Soo Line R. Co., supra (sale of 500 covered hopper freight railroad cars); Beal v. General Motors Corp., 354 F.Supp. 423 (D.Del. 1973) (extra-heavy tonnage diesel tractor for trucking); Jones & McKnight Corp., supra (automated machinery and equipment); Adams, supra (crawler tractor for contracting business). Upon failure of the limited remedy’s essential purpose, the purchaser is then entitled to any of the buyer’s remedies provided by the Code. Among these remedies are consequential damages as provided in Ark. Stat. Ann. §§ 85-2-714 and 85-2-715(2) (Add. 1961). See, Hartzell v. Justus Co., Inc., 693 F.2d 770 (8th Cir. 1982); Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir. 1971). Section 85-2-714 deals with the remedies available to the buyer for breach in regard to accepted goods. The most commonly applied formula for damages is stated in this section which gives the buyer “the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.” Ark. Stat. Ann. § 85-2-714(2). Also, “[i]n a proper case any incidental and consequential damages under the next section may also be recovered.” Ark. Stat. Ann. § 85-2-714(3). The next section, Ark. Stat. Ann. § 85-2-715(2), provides in part: “Consequential damages resulting from the seller’s breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise;” The most commonly litigated and sought-after item of consequential damages is lost profits. White and Summers, supra, § 10-4, p. 391.
In order to ascertain the propriety of the trial court’s instructions in the case at bar, they are set out in full as follows:
No. 10
The Defendant, Caterpillar Tractor Company, has raised the defense that the remedies of Ancel Waterson are limited to the repair or replacement of such parts as shall appear to have been defective in material or workmanship, and that he is not otherwise entitled to recover damages. Thp law allows damages to be limited by warranty if done in clear language, was part of the basis of the bargain, and was known or reasonably should have been known to both parties. Further, you are advised that it is of the very essence of a sales contract that at least minimum adequate remedies be available. Parties to a contract must accept the legal consequence that there be at least a fair remedy for breach of the obligation or duties outlined in the contract. Thus, where circumstances cause an exclusive or limited remedy set forth in the contract to fail of its essential purpose, or operates to deprive either party of the substantial value of his bargain, the limitation of remedy is void and of no effect whatsoever.
No. 11
If you find that the remedy was effectively limited and did not fail of its essential purpose, then your verdict must be for the defendant, Caterpillar Tractor Company.
No. 12
On the other hand, if you find that Caterpillar Tractor Company is liable for breach of warranty and has not effectively limited Plaintiff Ancel Waterson’s remedies, you must then fix the amount of damages to which Ancel Waterson is entitled. You are advised that the measure of damages for breach of warranty in this case is the difference at the time and place of acceptance between the value of the D5 Caterpillar tractor as it was accepted and the value the D5 Caterpillar tractor would have had if it had been as warranted. Further, you may award as damages the profits lost by Ancel Waterson as a foreseeable result of such breach of warranty.
In applying the law to the facts of this case, we believe the question of whether the exclusive remedy provided in appellant’s warranty failed of its essential purpose was properly submitted to the jury by Instruction No. 10. Much of the language contained therein came from the official commentary following Ark. Stat. Ann. § 85-2-719. The instructions as a whole are correct under the law and effectively required a finding that appellant’s repair and replacement clause failed of its essential purpose before the jury could award damages, including damages for lost profits. Accordingly, we reject appellant’s argument that the trial court erroneously instructed the jury on lost profits. Appellee was entitled under Ark. Stat. Ann. § 85-2-719(2), to any of the buyer’s remedies provided by the Code upon establishing appellant’s repair and replacement clause failed of its essential purpose.
In its second point for reversal, appellant contends the trial court erred in instructing the jury on the issue of unconscionability or failure of essential purpose. We have addressed the issue of failure of essential purpose in our discussion of appellant’s first point for reversal and held that it was proper to instruct the jury on failure of essential purpose where the evidence established that appellant was in breach of warranty. Therefore, our discussion of appellant’s second point for reversal will be limited to only the issue of unconscionability. Appellant argues that the following language in Instruction No. 10 attempted to define the doctrine of unconscionability:
Thus, where circumstances cause an exclusive or limited remedy set forth in the contract to fail of its essential purpose, or operates to deprive either party of the substantial value of his bargain, the limitation of remedy is void and of no effect whatsoever.
Appellant’s interpretation of this portion of the instruction is incorrect. The above language, taken in part from the official commentary following Ark. Stat. Ann. § 85-2-719, is clearly concerned with failure of essential purpose and not unconscionability. As stated previously in this opinion, if the buyer is deprived of the substantial value of his bargain, the limitation of remedy is deemed to have failed of its essential purpose. Ark. Stat. Ann. § 85-2-719(3) provides:
Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.
From our reading of the above provision in conjunction with § 85-2-719(2) and the official commentary, it is evident that an otherwise valid limitation of remedy contained in a contract is avoided by the buyer if the limitation fails of its essential purpose or is unconscionable. If either situation is found, the buyer is entitled to any of his remedies provided by the Code.
In Hartzell, supra, the buyer of a log home construction kit brought a breach of warranty and negligence action against the manufacturer-seller of the kit to recover for damages for loss in value of the home due to defects and for cost of repairs. In affirming a jury verdict in favor of the buyer in the amount of $39,794.67, the Court of Appeals held, among other things, that the district court was hot required to have made a determination that the limitation of warranties clause was unconscionable before submitting any issue of consequential damages to the jury. There, the evidence established that the repair or replacement clause was a failure and the buyer was entitled to any of the buyer’s remedies provided by the Code among which were consequential damages. The Court stated that “A finding of unconscionability is, as a matter of logic, simply unnecessary in cases where § 2-719(2) applies.”
In the case at bar, Ark. Stat. Ann. § 85-2-719(2) applied and the trial court properly instructed the jury on the issue of failure of essential purpose. The question of unconscion-ability pursuant to § 85-2-719(3) was not addressed by the clear language of Instruction No. 10 and we find no merit to this argument.
Affirmed.
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James R. Cooper, Judge.
In this criminal case, the appellant was charged with possession of a controlled substance, marijuana, with intent to deliver. After a jury trial, the appellant was convicted and sentenced to four and one-half years in the Department of Correction, and a $2,500.00 fine. From that decision, comes this appeal.
The appellant raises three points of error for reversal: 1) the trial court’s failure to grant his motion to suppress evidence seized pursuant to an allegedly defective search warrant; 2) the trial court’s not sustaining the appellant’s objection to the testimony of one of the arresting officers concerning a statement made by the appellant while in police custody; and 3) the trial court’s failure to sustain the appellant’s objection to the sheriff’s opinion testimony as to whether the vegetable material seized in the search of the appellant’s home was in fact marijuana. For the reasons below, we find no merit to the appellant’s alleged points of error, and therefore, affirm.
The facts leading up to the appellant’s arrest and subsequent conviction are as follows. On the afternoon of June 15, 1983, Officer Don Beck of the Poinsett County Sheriff’s Department was approached by a confidential informant who disclosed to Officer Beck that he could purchase marijuana from the appellant at the appellant’s residence. Officer Beck arranged with this individual to attempt to make a controlled buy in the evening of the next day, June 16. On June 16, 1983, at approximately 10:30p.m., Officer Beck drove the informant to the appellant’s residence. The informant was searched for drugs, and given $125.00 by Officer Beck to purchase the marijuana. The serial numbers on these bills had been recorded by the officer for later verification. Officer Beck observed the informant approach the appellant’s residence, and approximately ten minutes later, the informant returned with approximately one ounce of marijuana. Officer Beck took the informant home, and notified Sheriff Bloodworth of the buy.
Officer Beck and Sheriff Bloodworth then met Municipal Judge Steve Inboden, of Trumann for the purpose of obtaining a search warrant for the appellant’s residence. The police officers presented the judge with an affidavit to support the warrant.
The judge doubted the affidavit was sufficient to support the issuance of a warrant, so he took a tape recorded, sworn statement from Officer Beck of the evening’s events, which the judge then found gave him probable cause to issue the warrant. It is unclear whether Officer Beck executed the affidavit under oath, and the appellant alleges he did not. The judge also authorized the officers to execute the warrant immediately because of the possibility that the contraband and marked bills could be removed if the search were to be delayed. The search of the appellant’s home took place at 1:20 a.m. on the morning of June 17, 1983. Among the items seized were the marked bills which Officer Beck gave the informant to purchase the marijuana, and two and one-half pounds of marijuana. Officer Beck executed an inventory of the items seized pursuant to the search, but neglected to give a copy of his inventory to the appellant, as required by Arkansas Rules of Criminal Procedure, Rule 13.3(d), Ark. Stat. Ann., Vol. 4A(Repl. 1977). Also, the officer failed to return the warrant to the issuing magistrate, as required by Rule 13.4, Id.
First, we believe that based on the totality of the circumstances, the judge who issued the search warrant was presented with sufficient facts tó support the issuance of the warrant. Although the appellant argues that the warrant would not withstand the two-pronged Aguilar-Spinelli test which is incorporated into Rule 13(b) of the Arkansas Rules of Criminal Procedure, he concedes that since Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), the test of whether the warrant will pass constitutional muster has changed. As stated in Wolf v. State, 10 Ark. App. 379, 664 S.W.2d 882 (1984), under the new test,
the magistrate issuing the warrant must make a practical, common sense decision based on all the circumstances set forth in the affidavit. . . .‘the duty of the reviewing court is simply to ensure that the magistrate has a substantial basis for concluding that probable cause existed’ to issue the warrant.
In the case at bar, the issuing magistrate initially determined that more facts were needed to establish probable cause. Thus, he placed the officer under oath, and questioned him until he was satisfied that the officer had reliable facts upon which to base probable cause to issue the warrant. We believe that this is the type of common sense determination which the new test contemplates. We also note that this procedure is contemplated by Rule 13.1 of the Arkansas Rules of Criminal Procedure.
The appellant argues that the informant who participated in the controlled purchase had not been shown to be reliable, as he had not been used in the past. We believe the trial judge ruled correctly when he stated, in denying the appellant’s motion to suppress, that the controlled purchase gave the informant, who disclosed to Officer Beck that he could purchase marijuana from the appellant, sufficient reliability to support his allegations. If the officer had attempted to obtain a warrant on the informant’s bare assertion that he could purchase the marijuana, then the appellant’s argument might be well taken. However, when the informant backed up this assertion with the controlled purchase, his reliability was then established, and the warrant was properly issued. In Pridgeon v. State, 262 Ark. 428, 559 S.W.2d 4 (1979), (reversed on other grounds), the court gave much weight to the fact that the informant had purchased contraband from the appellant the day before the search warrant was obtained. This, the court said, “indicated the reliability and credibility of the informant and, therefore, the existence of probable cause for the issuance of the search warrant.”
The appellant also challenges the search on the grounds that the search warrant was executed at an unreasonable time. In obtaining the search warrant, the affiant, Officer Beck, stated that he “had intelligence. . .that there is heavy traffic in and out of that residence at all hours of the night.” The appellee argues that his knowledge, coupled with the necessity of recovering the marked bills as quickly as possible in order to preserve the evidence of the controlled buy, gave the officers reason to execute the warrant in the early morning hours. Rule 13.2 (c), Rules of Criminal Procedure, Ark. Stat. Ann., Vol. 4A (Repl. 1977), provides that search warrants shall be executed between the hours of sixa.m. and eight p.m. Subdivision i, ii, andiii set out three exceptions to this rule, in which case the warrant may be executed any time day or night. These exceptions arise when, (1) the place to be searched is difficult of speedy access, (2) the items to be seized are in danger of imminent removal, and (3) the warrant can be successfully executed only at irregular and unpredictable intervals.
The affiant to the search warrant in question had witnessed the sale of marijuana from the appellant’s residence prior to his securing the warrant, and feared that if he were not allowed to execute the warrant immediately, the contraband could be removed or the marked bills which were evidence of the earlier sale could also be removed. Under these circumstances we feel there existed the type of exigent circumstances contemplated by the second section of Rule 13.2(c). Also, we feel that the officer securing the warrant gave the issuing judge sufficient basis to authorize the nighttime search when he revealed his knowledge of the activities occurring at the appellant’s residence throughout the night. Although the appellant alleges that the affiant’s statement is conclusory in nature, we believe that in light of Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977), such a statement will suffice.
Next, the appellant argues that the trial court erred in failing to grant his motion to suppress because the officer who executed the warrant failed to provide the appellant with a receipt of those items seized at the time of the search pursuant to Rule 13.3(d). We cannot agree with the appellant that this failure to comply with the strict requirements of this rule caused the appellant to be prejudiced. In Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978), the court held that because the items seized were so numerous and taken from different houses, it was critical to show which items belonged to the defendant. Here, the possibility of confusion is virtually non-existent. The appellant makes no allegation that the officers produced evidence allegedly seized in the search of his residence which were actually not his. The appellant has not demonstrated prejudicial error which would require reversal.
Also, the appellant argues that the officer’s failure to return the search warrant to the court from which it was issued within five days should result in reversal. Again we find no prejudice.
Another point for reversal raised by the appellant is that the trial court erred in refusing to suppress the appellant’s statement concerning ownership of the seized marijuana. After Officer Beck read the appellant his Miranda warnings, and after the appellant had indicated that he understood his rights, the appellant asked the officer why his wife was being detained. When he was told that she was also a suspect in the illegal activity, the appellant made a damaging statement which indicated guilt.
First, we note that the appellant never requested a Denno hearing at which time the voluntariness of the statement would have been explored, and the appellant declined such a hearing when the trial court suggested one. The appellant properly argues that the burden of proving voluntariness is upon the appellee. The State proffered the testimony of Officer Beck who stated the appellant made statements after being advised of his rights and declaring that he understood them. We believe this satisfied the State’s burden. The appellant failed to show any evidence of involuntariness, and therefore we believe the statement was properly shown to have been voluntary. Also, we feel that the statement could be characterized as spontaneous, as in Hale v. State, 252 Ark. 1040, 483 S.W.2d 228 (1972).
Finally, the appellant argues that the trial court erred in allowing Sheriff Bloodworth to testify that, in his opinion, the substance obtained from the appellant’s residence was marijuana. We disagree. The sheriff testified as to his prior law enforcement experience, that he had received special training in the visual identification of marijuana, and that he had actually seen marijuana hundreds of times. Such testimony was admissible. See, Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977); Euton v. State, 270 Ark. 121, 603 S.W.2d 468 (Ark. App. 1980).
Affirmed.
Glaze and Mayfield, JJ., agree.
See, Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). | [
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JOSEPHINE LINKER Hart, Judge.
The circuit court determined that appellants, Tim Smith and Shelby Arrington, breached a contract for the sale of an automobile to appellee, Shawn J. Russ. The court awarded appellee $12,078.16, of which $10,395.00 served as compensation for lost tips and wages resulting from appellee’s lack of transportation with which to deliver pizzas and his consequent demotion from pizza delivery driver to cook. On appeal, appellants argue that to establish a breach of the contract, appellee had to prove, as he alleged, that the car was stolen, and the court erred in finding that there was a breach of contract because appellee did not prove that the vehicle was stolen. They further argue that the court erred in awarding consequential damages in the form of lost earnings. While we conclude that the court’s finding that appellants breached the contract was not clearly erroneous, we further conclude that the court erred in awarding damages stemming from appellee’s lost tips and wages. Therefore, we affirm in part, and we reverse in part and remand for an award of damages consistent with this opinion.
Appellee, appearing pro se, provided the only testimony at trial. According to him, on December 22, 1997, appellant Arrington, at Auto 1 USA, sold him a 1987 Black Nissan Maxima. Appellee paid $500 in cash, $400 in trade, and executed a promissory note in the amount of $100. Appellee, however, was unable to obtain a title on the car, and appellants never provided him with one. On January 17, 1999, appellee was stopped by police “for being in a stolen car.” After providing the police with proof that he had purchased the car, he was released. When appellee complied with a request by the police to return the vehicle to the dealer, the owners of the vehicle were present at appellants’ business. Appellee was then given a loan vehicle that was not roadworthy. Appellee was given another loan vehicle by appellant Smith to use until appellant Arrington was released from jail. On February 7, 1999, after appellant Arrington was released from jail, he went' to appellee’s residence and demanded return of the vehicle. Appellee refused and explained that he could not return the car until he was given another car because “I had paid him for a car.” After appellee refused to return the car, appellant Arrington unsuccessfully attempted to have the car towed and then called the police, who arrested both appellee and appellant Arrington. The police ordered appellee to return the car. Afterwards, appellants neither provided appellee with a replacement vehicle nor returned the purchase money.
We disagree with appellants’ conclusion that appellee had to prove that the car was stolen in order to establish a breach of contract. “The obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract.” Ark. Code Ann. § 4-2-301 (Repl. 1991). “[T]here is in a contract for sale a warranty by the seller that ... [t]he title conveyed shall be good and its transfer rightful....” Ark. Code Ann. § 4-2-312(l)(a) (Repl. 1991). Here, appellants never provided to appellee • title to the vehicle. Further, after appellee returned the vehicle to appellants, appellee never received a replacement vehicle or return of his consideration. In bench trials, the standard of review on appeal is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. See Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). Here, the court did not clearly err in finding that appellants breached the parties’ contract for the sale of an automobile.
We conclude, however, that the court erred in awarding appellee lost tips and wages. “Consequential damages resulting from the seller’s breach include ... [a]ny loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise.” Ark. Code Ann. § 4-2-715(2)(a) (Repl. 1991). Appellee never presented evidence that, at the time of contracting, appellants had reason to know the particular needs of appellee. Thus, we reverse and remand on this point for an award of damages consistent with this opinion.
Affirmed in part; reversed in part and remanded.
Pittman and Stroud, JJ., agree. | [
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Larry D. Vaught, Judge.
This is a personal-injury case. When she was fifteen years old, appellee Kaity Wood was injured in a vehicle accident caused by appellant Laura Graftenreed. Ms. Graftenreed appeals from a judgment entered on a jury verdict for Ms. Wood and her mother, appellee Karen Wood Seabaugh. On appeal, Ms. Graftenreed challenges some of the jury instructions, the introduction of certain medical evidence, and the sufficiency of the evidence. We affirm on all points.
The accident occurred in January. 2001. Appellant’s vehicle struck the vehicle in which Ms. Wood was a passenger from behind, causing it to hit the vehicle in front of it. Four days later, Ms. Wood saw her family doctor for shoulder and neck pain. The x-rays he took were normal, and he prescribed anti-inflammatories and muscle relaxers. A week later, he saw no reason to prescribe further treatment. Her symptoms, however, returned and worsened. Ten months later, Ms. Wood saw Dr. Kenneth George, a chiropractor, for neck and back pain. He saw Ms. Wood on nine occasions between November 2001 and January 2002. Mrs. Sea-baugh filed this negligence lawsuit against appellant on Ms. Wood’s behalf in March 2002. Ms. Wood joined the lawsuit when she reached the age of majority. In February 2003, Ms. Wood saw Dr. George again for the same symptoms.
Ms. Wood was involved in another accident in October 2003. She was examined in the emergency room, complaining of pain in her knee, elbow, neck, and chin and was diagnosed with “ligamentous strain, right knee.” A neck x-ray taken at that time showed straightening of her cervical spine. Ms. Wood did not tell Dr. George about the second accident when she saw him for subsequent treatments. Appellees have consistently maintained that her primary complaint from the second accident was a knee injury and that her neck and back problems resulted from the accident caused by appellant.
Dr. George referred Ms. Wood for digital motion x-rays (DMXs). DMXs, which are a type of video fluoroscopy, are a relatively new use of an old technology (x-rays) and are used by some physicians and chiropractors to diagnose a ligamentous injury. A DMX machine uses a video camera to take thirty x-ray frames per second, for ninety seconds, as the patient moves. These images are viewed on a computer. Dr. David Harshfield and Dr. Kenneth Ratajczak, radiologists, reviewed Ms. Wood’s DMXs. Using their reports, Dr. George was prepared to testify at trial that Ms. Wood had suffered permanent neck and low-back injuries caused by the collision with appellant that would limit her activities and require future medical treatment.
Appellant objected to the introduction of the DMX evidence by filing motions in limine before trial. She asked the trial court to prohibit any testimony from Dr. George that was not timely disclosed. She also argued that there was no basis for Dr. George to testify about the radiology reports; that the second accident was an intervening cause of her injuries; that DMX technology was not scientifically reliable; and that Dr. George was not qualified to testify about radiology results reported by a medical doctor. The trial court denied these motions and held that, assuming that the DMX evidence was subject to a reliability challenge, Ms. Wood had sufficiently shown that it is reliable and accepted by the chiropractic and medical communities. The court also held that the value of the DMX evidence was not outweighed by the danger of unfair prejudice.
At trial, the circuit court denied appellant’s motions for directed verdict on the issues of negligence, liability, and damages. The case was submitted to the jury over appellant’s objections to a damages instruction that included transportation costs related to medical care and Ms. Wood’s loss of ability to earn in the future. On a general verdict, the jury awarded Mrs. Seabaugh $1,485 (her requested out-of-pocket medical expenses) and $57,000 to Ms. Wood.
I. The jury instructions
Appellant first argues that the trial court erred in instructing the jury on Ms. Wood’s transportation costs in seeking medical care and her loss of future earning ability.
A. Transportation costs
Appellant argues that there was no evidence to support the instruction on transportation costs as damages. Paragraph two of the damages instruction stated that, if the jury found in favor of Ms. Wood on liability, it must fix the amount of money to reasonably and fairly compensate her for “[t]he reasonable expenses of any necessary medical care, treatment, and services received after Kaity Wood turned eighteen years of age, including transportation necessarily incurred in securing such care, treatment or services, and the present value of such expenses reasonably certain to be required in the future.” Appellant asked that the same instruction be given without the clause involving transportation costs because there was no evidence of past expenses or of the present value of such expenses reasonably certain to be required in the future. Appellees argued that their evidence that Ms. Wood went to Little Rock for the DMXs and to Jonesboro for an MRI was sufficient to submit this instruction. Ms. Wood testified about her out-of-town trips for these medical tests but did not present any evidence of their monetary value. She testified that she now works in Jonesboro and plans to seek future medical care there.
Appellant also argues that there is no way to tell how much of the verdict was intended as damages for past and future transportation costs. The supreme court has held that, when an erroneous instruction has been given and a jury has rendered a general verdict from which prejudice due to the error cannot be ascertained, it will reverse. England v. Costa, 364 Ark. 116, 216 S.W.3d 585 (2005).
A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). We will not reverse a trial court’s decision to give an instruction unless the court abused its discretion. See Marx v. Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (2004).
The trial court did not err in giving this instruction. It has long been held that judicial notice may be taken of the locations and distances between towns. St. Louis S.W. Ry. v. Taylor, 258 Ark. 417, 525 S.W.2d 450 (1975). Additionally, jurors are entitled to take into the jury box their common sense and experience in the ordinary affairs of life. Fayetteville Diagnostic Clinic, Ltd. v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001); Palmer v. Myklebust, 244 Ark. 5, 424 S.W.2d 169 (1968). The jurors were competent to determine the cost of such transportation from their common knowledge and experience. See St. Louis, I.M. & S. Ry. Co. v. Stell, 87 Ark. 308, 112 S.W. 876 (1908).
B. Ms. Wood’s future earning ability
Appellant next argues that the jury should not have been instructed to consider Ms. Wood’s loss of future earning ability because Ms. Wood testified that she had never missed any work because of her injuries. At trial, Ms. Wood testified that she worked about two to three days a week for IGA at the time of the accident and that, afterward, she continued to work the same amount of time. She also testified that she never missed any work at her subsequent jobs.
Damage resulting from loss of earning capacity is the loss of the ability to earn in the future. Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983). The impairment of the capacity to earn is sometimes confused with permanency of the injury, but it is a separate element. Id. A permanent injury is one that deprives the plaintiff of her right to live her life in comfort and ease without added inconvenience or diminution of physical vigor. Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993). It is well recognized that impairment of earning capacity is recoverable only upon proof that an injury is permanent. Id. Although whether a permanent injury exists is not to be left up to speculation and conjecture on the part of the jury, proof of this element does not require the same specificity or detail as does proof of loss of future wages. Cates v. Brown, 278 Ark. at 245. This is because a jury can observe the appearance of the plaintiff, her age, and the nature of the injuries that will impair her capacity to earn. Id. Proof of specific pecuniary loss is not indispensable to recovery for this element. Id. It is to be determined by the application of the common knowledge and experience of the jurors to the facts and circumstances of the case. Coleman v. Cathey, 263 Ark. 450, 565 S.W.2d 426 (1978).
By all accounts, Ms. Wood was a competitive athlete before the accident; afterward, she had to push herself to continue participating in cheerleading and softball. She had to give up playing basketball, and she was forced by her neck and back pain to severely restrict her participation in the other activities. Although she continued to appear with the other cheerleaders, she could not do any tumbling or “pyramid-building” and spent much of her time sitting with their sponsor. She testified that, mostly, she just yelled and waved her arms and even that hurt. Often, she was reduced to tears by her inability to keep up with the other girls. Now, as an adult with a full-time job, she testified about the problems her injuries have caused her at work. She said that she has to change positions frequently to avoid being in one position too long and sometimes stands up while using the computer. She also cannot sit up straight. She said that she cannot do housework without difficulty and pain, nor can she play with her baby as she would like. In our view, this evidence was sufficient to take the issue of her lost earning capacity to the jury.
II. The digital motion x-rays
Appellant next argues that the trial court should not have admitted the DMX evidence on four grounds: (1) it was not timely disclosed; (2) it was not admissible through Dr. George; (3) it was not scientifically reliable; and (4) there was no proof that it reflected injuries caused by the 2001 accident. We will not reverse the trial court’s decision to admit or refuse evidence in the absence of an abuse of that discretion and a showing of prejudice. Turner v. N.W. Ark. Neurosurgery Clinic, P.A., 84 Ark. App. 93, 133 S.W.3d 417 (2003).
A. Timely disclosure of the DMX
Appellant argues that appellees failed to timely disclose the DMX evidence as the basis for Dr. George’s testimony. When his deposition was taken on March 3, 2003, trial was scheduled for March 15, 2005. Appellees’ attorney supplemented their discovery responses on February 3, 2005, with reports from the radiologists that would be used to support Dr. George’s opinion that Ms. Wood was permanently impaired. On February 14, 2005, appel lant filed a motion in limine objecting to the last-minute supplementation of appellees’ discovery responses. She filed another motion in limine on March 3, 2005, to prohibit Dr. George’s testimony. The court then rescheduled the trial for March 26, 2006. On March 21, 2006, appellees provided appellant with approximately 200 pages of documents to be used to support Dr. George’s testimony. Appellant filed another motion in limine on March 23, 2006, asking the court to prohibit any testimony from Dr. George that was based on evidence not timely disclosed. The court decided to admit the testimony. Appellant asks us to hold that Dr. George’s testimony should have been limited to the matters that he disclosed in his deposition over a year before trial. We decline to do so.
Arkansas Rule of Civil Procedure 26(e)(1) requires a party to supplement her discovery responses in the case of expert witnesses, to identify the identity and location of each person expected to be called as a witness at trial, and the subject matter and substance of his testimony. It is within the trial court’s discretion whether to limit the testimony of witnesses, and that discretion will not be second-guessed by the appellate court. Id.; see also Ark. State Highway Comm’n v. Frisby, 329 Ark. 506, 951 S.W.2d 305 (1997). Appellant received a continuance of over a year in order to review the DMX reports. As for the 200 or so pages of documents supplied the week before trial, they contained no surprises and primarily illustrated the acceptance and reliability of the DMX evidence already in appellant’s possession. We cannot say that the trial court abused its discretion in rejecting appellant’s untimeliness argument.
B. The admission of the DMX evidence through Dr. George’s testimony
Appellant argues that it was error to admit the DMX evidence through Dr. George because he had no personal experience with DMX technology. Dr. George admittedly was not an expert in performing digital motion x-rays or in interpreting them; in fact, he had never ordered them for a patient before Ms. Wood.
Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Brunson v. State, 349 Ark. 300, 79 S.W.3d 304 (2002). If an opponent of the expert testimony contends that the expert is not qualified, the opponent bears the burden of showing that the testimony should be stricken. Arrow Int’l, Inc. v. Sparks, 81 Ark. App. 42, 98 S.W.3d 48 (2003). Experts may not offer opinions that range too far outside their area of expertise. Id. An expert may, however, rely on information provided by others in the formulation of his opinion. Id. If some reasonable basis exists demonstrating that a witness has knowledge of a subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Id. There is a decided tendency to permit the fact-finder to hear the testimony ofpersons having superior knowledge in the given field, unless they are clearly lacking in training and experience. Id. The fact that a medical expert is not a specialist in that particular field does not necessarily exclude him from offering testimony. Hill v. Billups, 92 Ark. App. 259, 212 S.W.3d 53 (2005). Arkansas Rule ofEvidence 702 expressly recognizes that an expert’s testimony may be based on experience in addition to knowledge and training. Absolute expertise concerning a particular subject is not required to qualify a witness as an expert. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997).
Generally, a chiropractor is qualified to testify in a personal-injury action concerning matters within the scope of the profession or practice and may testify as to the permanency of an injury, as well as its probable cause. Stevens v. Smallman, 267 Ark. 786, 590 S.W.2d 674 (Ark. App. 1979). As long ago as 1927, the Arkansas Supreme Court held that there was no error in the trial court’s permitting a chiropractor to testify as an expert, witness about a burn injury caused by the administration of x-rays. See Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S.W. 16 (1927). Dr. George, who routinely uses x-rays in his practice, testified that he received extensive training in the use of x-rays when he was in chiropractic school. If he had testified about his interpretation of the digital motion x-rays, we would agree with appellant. See Hill v. State Farm Mut. Ins. Co., 56 Ark. App. 67, 937 S.W.2d 684 (1997). However, he simply used the radiologists’ reports to supplement the x-rays that he took of Ms. Wood and to verify his own diagnosis. A physician may base his diagnosis on the reports of other medical sources. See Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997); Ark. R. Evid. 703. The trial court did not abuse its discretion in permitting Dr. George to testify as an expert witness.
C. The scientific reliability of DMX evidence
The trial court found that, assuming that the DMX reports were subject to a reliability challenge, Ms. Wood had sufficiently shown that DMX evidence is reliable and that it is accepted by the chiropractic and medical communities. The court also found that the value of the DMX evidence was not outweighed by the danger of unfair prejudice or confusion. Appellant argues that Dr. George was not qualified to give expert testimony about the DMX evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In a Daubert inquiry, the trial court must determine whether the evidence is relevant and reliable and whether the reasoning behind the scientific evidence is scientifically valid and can be applied to the facts of the case. Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003). A primary factor for a trial court to consider in determining the admissibility of scientific evidence is whether the scientific theory can be or has been tested. Arrow Int’l, Inc. v. Sparks, 81 Ark. App. at 51, 98 S.W.3d at 54. Other factors include whether the theory has been subjected to peer review and publication, the potential error rate, and the existence and maintenance of standards controlling the technique’s operation. Id. It is also significant whether the scientific community has generally accepted the theory. Id. The Arkansas Supreme Court adopted the Daubert analysis in Farm Bureau Mutual Insurance Co. of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the United States Supreme Court held that the trial judge’s basic gatekeeping function imposed in Daubert applies to all, and not just scientific, expert testimony. The requirements of Ark. R. Evid. 702 have also been held to apply equally to all types of expert testimony, not simply to scientific expert testimony. See Turbyfill v. State, 92 Ark. App. 145, 211 S.W.3d 557 (2005).
Appellant argues that DMX technology does not meet the Daubert test because it has not been proven to aid in diagnosing or treating any injury and that DMXs give no more information than standard x-rays. Appellant also asserts that the scientific community has not generally accepted the use of DMXs for diagnosing or treating any injury or ailment. We disagree.
Because the Daubert factors are applicable only to “novel” evidence, theory, or methodology, see Regions Bank v. Hagaman, 79 Ark. App. 88, 84 S.W.3d 66 (2002), a Daubert analysis is not appropriate in this case. As shown by Dr. George’s testimony and the documents filed by appellees, DMX technology is not novel; it is simply a technological advancement of established, reliable procedures, as are MRIs and CT scans. Appellees filed the affidavit of Dr. David Harshfield, who stated that DMX technology has been accepted by the chiropractic and medical communities and that it has government approval. Appellees filed supporting documents showing that DMX technology was approved by the U.S. Food and Drug Administration for patients with spinal and peripheral joint disorders and that the Arkansas Department of Human Services gave its approval in 2003. They also showed that DMX technology has received approval from the National Guideline Clearing House, the Arkansas Board of Chiropractic Examiners, the American Chiropractic Association Council on Diagnostic Imaging Physicians, the Arkansas Chiropractic Society, the American Academy of Pain Management, and the American College of Occupational and Environmental Medicine.
Appellant further argues that, even if the DMXs were reliable, the evidence based upon them should have been excluded because any probative value it had was significantly outweighed by the danger of unfair prejudice. Even though evidence is relevant, it may be excludable under Ark. R. Evid. 403, which provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
The trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice, and its decision will not be reversed absent a manifest abuse of that discretion. Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999). The mere fact that evidence is prejudicial to a party, however, does not make it inadmissible; it is only excludable if the danger of unfair prejudice substantially outweighs its probative value. See Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346, cert. denied, 540 U.S. 1012 (2003). The prejudice referred to in Rule 403 denotes the effect of the evidence upon the jury, not the party opposed to it. Id. Here, there is no question that this evidence was prejudicial to appellant’s position; however, we cannot say that it was unfairly prejudicial.
D. The nexus between the digital motion x-rays and the original accident
Appellant next argues that the trial court erred in admitting the DMX evidence because there was no proof as to which accident caused the ligament damage referred to in the radiologists’ reports. According to appellant, even if the DMXs indicated injury, there was no proof that it was caused by the January 2001 accident.
To establish a prima facie case in tort, a plaintiff must show that the defendant’s negligence was a proximate cause of the damages. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). Proximate cause is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737 (2002), cert. denied, 536 U.S. 940 (2002). When there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Id. Proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). The original act is not eliminated as a proximate cause by an intervening act unless the latter is in itself sufficient to stand as the cause of the injury, and the intervening cause must be such that the injury would not have been suffered except for the act, conduct, or effect of the intervening cause totally independent of the acts or omissions constituting the primary negligence. Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).
There was more than sufficient evidence to let the jury decide whether Ms. Wood’s injuries were caused by the 2001 accident. Appellees presented testimony that her symptoms began immediately after this wreck; that they continued over several years; that the 2003 accident did not exacerbate them; and that the pain and problems she was experiencing at the time of trial were the same as those that began right after the 2001 wreck.
III. Appellant’s motion for directed verdict
In her last point, appellant contends that the trial court should have granted her motion for a directed verdict on the issues of negligence and liability. A directed-verdict motion is a chai- lenge to the sufficiency of the evidence. King v. Powell, 85 Ark. App. 212, 148 S.W.3d 792 (2004). When reviewing the denial of a motion for a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Id. Under those circumstances, a jury question is presented and a directed verdict is inappropriate. Id. It is not our province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. Id.
To prove negligence, a party must show that the defendant has failed to use the care that a reasonably careful person would use under circumstances similar to those shown by the evidence in the case. Wagner v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007). Although the evidence that appellant failed to keep a proper lookout and followed too closely for conditions was not conclusive of negligence, it was sufficient to present a question for the jury. See Dovers v. Stephenson Oil Co., 354 Ark. 695, 128 S.W.3d 805 (2003). This is especially true when one considers appellant’s statements immediately after the crash that she was not paying attention and did not see that the vehicle ahead of her had stopped.
Appellant also argues that the evidence was inadequate to support the jury’s verdict as to damages because there was no proof that the injury was caused by the January 2001 accident. As discussed above, there was sufficient evidence to let the jury decide this issue.
Affirmed.
Robbins and Baker, JJ., agree. | [
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Tom Glaze, Judge.
This appeal arises from appellants’ action for specific performance, or, in the alternative, for return of $20,000 the appellants paid to appellee. Both below and on appeal, the parties have disputed the nature of the contract which was the basis for this action. The appellants, the Williams, contend the parties signed an offer and acceptance to purchase the appellee’s home; appellee, Cotten, contends they signed an option agreement whereby the Williams paid consideration for a nine-and-one-half month option to purchase Cotten’s home. The chancellor found that the parties had entered into an option agreement, that the Williams never exercised their option to purchase the property, and that they paid $20,000 consideration for the option which was to be applied toward the purchase price only in the event the option was exercised. The chancellor denied specific performance and ruled that Cotten was entitled to retain the $20,000.
On appeal, the appellants contend the chancellor erred in her findings and ask this Court to reverse and to order Cotten to return the $20,000 to the Williams.
Some of the facts are undisputed. Cotten is a general contractor and a real estate broker. Mr. and Mrs. Williams are husband and wife who, at the time the parties contracted, lived in Dhahran, Saudi Arabia, where Mr. Williams was a tool testing engineer with an oil company. The parties met in August, 1980, when the Williams were on vacation in the United States visiting Mrs. Williams’ sister in Fort Smith. The Williams were looking for a house to buy because they intended to return to Fort Smith in the summer of 1981 when Mr. Williams’ job in Saudi Arabia was to terminate. The Williams drove past Cotten’s home and saw a “For Sale” sign propped up against the house. They phoned the number on the sign and inquired whether the house was for sale. Cotten invited the Williams to his home to discuss a possible sale. At that initial meeting, Cotten agreed that he would be amenable to selling the house. The parties discussed a selling price of $120,000. The Williams revealed that they had $20,000 to invest, and Cotten told them that his equity in the house was $50,000. He was willing to take their $20,000 “down” and to carry a second mortgage for the $30,000 balance of his equity. The Williams decided they wanted the house.
At their first meeting, the parties discussed financing. At the time, uncertainty existed in Arkansas with respect to the enforceability of due on sale clauses. Interest rates were rising, and lending institutions were summarily raising interest rates when purchasers assumed loans secured by mortgages containing due on sale clauses — as was the situation here. Consequently, Cotten apprised the Williams that they might not be able to assume his loan with Superior Federal at the existing rate of nine-and-three-quarters percent.
The Williams left Cotten’s home after that first meeting with the understanding, according to Cotten’s testimony, that “they would get back with me later and let me kow if they were interested in going ahead and purchasing the house.” That same evening, the Williams returned to Cotten’s home, told him they had decided they wanted to purchase the house, and asked him how they could work it out. Cotten testified that he told them:
At that point what... I could do was take $20,000 down and carry the balance of it. . . for a ten year period of time.... [I]t was still up in the air as to whether or not they could ever assume that 9 and 3 quarter percent loan . . . because nobody knew what the savings and loans were going to do. Nobody knew what the courts were going to do. We . . . hoped that they would find that due on sale clauses were not enforceable for that specific reason. But... there’s no way I could guarantee them anything other than I would do everything for them I could at that point. And as according to the year, everything they said is very true, about me staying in the house there now. I said we could on a ... on an option. You have a one year option to purchase this home. That will allow me to stay in the home, continue to get the income tax benefits of home ownership. I don’t want to have to rent a place. So, we can do it under one year option. They’d already stated they’d be back June 1st, and we’d close the deal. . . . That’s how the option came about. . . .
The Williams were to return to Saudi Arabia within the week after the parties first met. Therefore, they were anxious to complete the paperwork before they left, and they agreed to meet the following morning, August 14, 1980, to fill out the necessary documents. They met at Cotten’s Century 21 real estate office. Cotten had filled out a preprinted form entitled “Offer and Acceptance” and it had all pertinent information typed in, except for a date and an amount of “earnest money.” Special provisions and conditions were completed. The parties did not sign this “Offer and Acceptance” form but did sign the back side of the form on which Cotten typed the following:
OPTION
In consideration of the payment by the undersigned optionee in the amount of $20,000.00, receipt of which is hereby acknowledged, optioner grants to optionee an option to purchase the real property described in the agreement of sale on the reverse side upon all the terms and conditions set forthe [sic] therein. If not exercised, this option shall expire June 1, 1981. The option shall be exercised by mailing or delivering written notice to the optionor prior to the expiration of this option. Notice, if mailed, shall be by certified mail, postage prepaid, to ghe [sic] optionor at the address set forth below, and shall be deemed to have been given upon the day following the day shown on the postmark of the envelope in which such notice is mailed.
In the event the option is exercised, the said sum of $20,000.00 shall be credited upon the purchase price.
In the event the option is exercised, the Agreement of sale on the reverse side shall be effective as if the offer and acceptance thereof had both been made upon the date the option is exercised.
After signing the above document on August 14, 1980, the Williams returned to Saudi Arabia. The parties maintained contact, primarily with respect to the financial situation and the interest rates in Arkansas in the months following the signing of the contract. It is undisputed that Cotten attempted to provide loan information to Williams. He had Superior Federal mail a loan application packet to the Williams in March, 1981, although the Williams contended at the hearing below that they did not receive that packet until late June, just before Mrs. Williams returned to the United States.
Theevents of June and July of 1981 are in dispute. What is clear is that Mrs. Williams returned to Fort Smith in early July, 1981, prior to the date her husband returned, around August 1,1981. It is also clear that Cotten twice extended the expiration date of their agreement, first to July 1, 1981, and then to August 22, 1981, conditioned upon the Williams’ paying the house notes and the utilities for July and August, 1981. It is undisputed that Cotten built a new home and moved from the subject property into the new house sometime in July, 1981.
After Mrs. Williams returned to Arkansas, she negotiated with Superior Federal for a loan. She applied for a loan at twelve-and-seven-eighths percent, even though the loan officer told her the current rate was four points higher than appellee’s existing loan rate, viz., thirteen-and-three-quarters percent. Superior Federal approved the Williams to assume Cotten’s loan, at that higher rate, but Mr. and Mrs. Williams decided they could not pay that much interest for their loan and told Cotten they were unable to go through with their deal. The Williams contend that it was at this point that Cotten apprised them of his intention to keep the $20,000 if they failed to exercise their option. Until this time, the Williams contend that Cotten had told them more than once that if the deal did not work out, he would return their $20,000. To the contrary, Cotten and his wife denied that any promise was made to return the $20,000. In fact, Cotten testified that he had read aloud to the Williams from his Realty Bluebook that consideration for an option is a nonrefundable payment one makes to purchase an option. This conflict in testimonies leads us to the central issue dispositive of this case: Whether the parties entered into an option agreement or an offer and acceptance agreement.
It is well settled that although we review chancery cases de novo on the record, we do not reverse a decree unless the chancellor’s findings are clearly erroneous or clearly against a preponderance of the evidence. Since the question of preponderance turns heavily on the credibility of the witnesses, we defer to the superior positon of the chancellor in this regard. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); Ark. R. Civ. Pro. 52 (a). If the chancellor is correct for any reason, we affirm the decision. Moore v. City of Blytheville, 1 Ark. App. 35, 612 S.W.2d 327 (1981). In the instant case, we find the chancellor’s findings clearly against the preponderance of the evidence for the reasons we shall set out below.
In reaching her decision, the chancellor heard testimony from the parties concerning the making of their agreement and the events surrounding it. The relationships of the parties and their dealings before and after they contracted is important to an understanding of exactly what their agreement was. In Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968), the Supreme Court set out the following rules:
In construing a contract the court must, if possible, give effect to the intention of the parties as far as that can be done consistently with legal principles, and this intention must be ascertained from the whole contract. Dent v. Industrial Oil & Gas Co., 197 Ark. 95, 122 S.W.2d 162; American Snuff Co. v. Stuckey, 197 Ark. 540,. 123 S.W.2d 1063.
To arrive at the intention of the parties to a contract, courts may acquaint themselves with the persons and circumstances and place themselves in the same situation as the parties who made the contract. American Snuff Co. v. Stuckey, supra. This is so the court can view the circumstances as they viewed them, so as to judge the meaning of the words and the correct application of the language to the things described. Taylor v. Taylor, 240 Ark. 376, 399 S.W.2d 498. The court should arrive at the sense in which the words used would naturally be understood, taking into consideration the circumstances surrounding the making of the contract, the situation and relation of the parties. Scrinopskie v. Meidert, 213 Ark. 336, 210 S.W.2d 281.
Schnitt v. McKellar, 244 Ark. at 385, 427 S.W.2d at 207.
The chancellor found that the Williams and Cotten made a valid option agreement for which the Williams paid $20,000 consideration. The Supreme Court has defined an option as follows:
Now, an option is not a sale. It is not a contract by which one agrees to sell and the other to buy. It is only an offer by one to sell within a limited time and a right acquired by the other to accept or reject such offer within such time. When this privilege is exercised by acceptance, then and not until then does it become a contract of sale. Instead of being a sale, an option excludes the right to sell during its life. In the case of Black v. Maddox, 104 Ga. 157, an option is defined to be “the obligation by which one binds himself to sell and leaves it discretionary with the other party to buy . . . simply a contract by which the owner of property agrees with another person that he shall have the right to buy the property at a fixed price within a certain time.” ... An option is, therefore, easily distinguished from a contract of sale. . . .
Swift v. Erwin, 104 Ark. 459, 148 S.W. 267, 269 (1912) (citations omitted) (emphasis supplied).
The major problem in this case is that the agreement signed by the parties is not easily distinguished from a contract of sale. In sum, one side of the written agreement is captioned “OPTION,” and the opposite side reflects a standard offer and acceptance form. The chancellor recognized that an ambiguity existed and permitted testimony to attempt to dispel that ambiguity. While we find the chancellor was correct in admitting such evidence, we fail to find in the record that the chancellor applied the well-settled rule that any ambiguity in a contract must be construed against the party who drafted it. Barrett Real Estate v. Land Mart of America, Inc., 3 Ark. App. 70, 73, 621 S.W.2d 889, 891 (1981). We find the rule particularly applicable when, as here, one party to the contract was a real estate broker, admittedly knowledgeable in transactions such as the one into which he entered with appellants. Cotten prepared the agreement, and it was he who suggested an option agreement and purportedly explained it to the Williams.
Looking at the circumstances surrounding the agreement, the parties’ actions subsequent to the agreement, and the agreement itself — both the “Option” and the “Offer and Acceptance” — we conclude that the parties, particularly the Williams, treated the transaction as an offer and acceptance. Although Cotten contends that he intended to sell an option for $20,000, his actions, evidenced by his own testimony, belie those contentions.
Even at the hearing below, Cotten referred to the money as a down payment. He referred to the Williams’ “purchase of the house.” He testified that he sought a financing plan for the Williams after they returned to Saudi Arabia, a seemingly premature action for one to take if a decision to purchase had not yet been made. Cotten also finished the garage and steps, and installed a French drain grating, which were conditions noted under paragraph thirteen of the offer and acceptance.
Cotten attempts to justify the $20,000 amount as consideration, arguing it was for an option based upon his having to build a new house in order to vacate his house for the appellants. However, the flip-side of that argument is that his having built a new house and vacating the old one are actions which also indicate an actual sale of the property.
Scrutinizing the relationship between the Williams and Cotten, we find the evidence reflects they were strangers until this real estate transaction. Cotten, a real estate broker, prepared the contract in question, and according to his and the Williams’ testimonies, Cotten acted on behalf of the Williams, assisting them in a number of ways. For example, he worked to attain financing for the Williams, and in so doing, had his lending institution send them a loan packet which included an application reflecting a “deposit” of $20,000. When Mrs. Williams returned to the United States in July, 1981, Cotten telephoned his lender to make an appointment for her, and he accompanied her to the meeting. Cotten gave Mrs. Williams a key to the house, and he also agreed to be the Williams’ agent in leasing the house when it appeared that they would remain in Saudi Arabia until the summer of 1982. When Mrs. Williams phoned Cotten to tell him they would not be buying his house, she even asked him at that point to help them find another house when they returned to Fort Smith the next year. Although he indicated Mrs. Williams’ request “stunned” him, he agreed to help find another home. In sum, Cotten ostensibly represented the Williams’ interests in selling his home, even though he testified he was working in his own behalf.
A well-settled equitable principle has been set out as follows by the Supreme Court:
“[E]quity regards the substance rather than the form, or . .. equity regards the substance and intent, not the form. ...”
Equity looks beyond the mere form in which the transaction is clothed and shapes its relief in such way as to carry out the true intent of the parties to the agreement, and to this end all the facts and circumstances of the transaction, the conduct of the parties thereto, and their relations to one another and to the subject-matter, are subjects for consideration.
Maners v. Walsh, 180 Ark. 355, 362-63, 22 S.W.2d 12, 14-15 (1929) (quoting 21 C.J. 204-05), aff’d after remand, 182 Ark. 885, 33 S.W.2d 718 (1930). See also Coleman v. Volentine, 211 Ark. 594, 201 S.W.2d 592 (1947).
In looking beyond the form of this transaction to the conduct of the parties and their relation to one another and to the property, Maners v. Walsh, supra, the evidence reveals the parties treated this entire matter as if it were a sale, not merely an option to purchase. Accordingly, we conclude the $20,000 that the Williams paid Cotten was not consideration for an option agreement which he is entitled to retain. On that point, we find the chancellor’s findings clearly erroneous and therefore reverse.
Our decision does not preclude the possibility of the award of damages for breach of contract. However, from our de novo review of the record, we are unable to determine whether appellee is entitled to damages because evidence on damages was not presented to the chancellor. Therefore, we remand this cause to allow the chancellor to hear evidence on the question of damages and to render a decision consistent with this opinion.
Reversed and remanded.
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WENDELL L. Griffen, Judge.
Don Acord appeals the judgment of the Johnson County Chancery Court in which the court found that Mark Acord had a life tenancy in certain real property located in Johnson County and that appellant had a remainder interest in the property. The judgment also awarded appellee Merle Acord $41,433.28 as reimbursement for monies spent to improve and pay property taxes on the property that her deceased husband, appellee Elbridge Acord, held in joint life tenancy with Mark Acord. For appeal, appellant argues that the chancellor erroneously awarded appellee the value of the improvements she made as a life tenant and property taxes that were paid. Also appellant contends that the chancellor erred in applying the betterment statute. We hold that the chancellor’s award to appellee for reimbursement of taxes and the value of improvements was clearly erroneous. Therefore, we reverse and remand for entry of an order consistent with our decision.
Facts and Procedural History
On May 17, 1986, Joe Acord conveyed land situated in Johnson County, Arkansas, hereinafter referred to as the “Workman Place,” to two of his sons, Harold Wayne Acord and Charley Don Acord. The deed contained a reservation that the conveyance was “subject to life estates in favor of Elbridge A.J. Acord and Mark Elbridge Acord, joint tenants with right of survivorship.” The deed was filed for record on May 27, 1986. Joe Acord executed another warranty deed in May 1986 conveying a life estate to Elbridge A.J. Acord and Mark Acord for the same property. Subsequent to the May 1986 conveyance, Joe Acord executed a Correction Warranty Deed recorded May 31, 1988, to Elbridge and Mark Acord, as joint tenants with the right of survivorship, that covered the same land as the deed contained in the deed to Harold and Charley Acord.
After the Corrected Warranty Deed was filed, Elbridge and Mark Acord executed a quitclaim deed, dated June 4, 1997, in favor of Elbridge and appellee Merle Acord, his wife. The couple initially brought an action to partition the land, claiming that they owned an undivided 4/5 interest in it. Appellees later amended their complaint and asked the chancellor to reform the deeds or, alternatively, to reimburse them for money they had spent on improvements and taxes.
Following a hearing, the chancellor set aside the quitclaim deed dated June 4, 1997, and vested title in the property to Mark Acord for life, with a remainder fee-simple interest to appellant. The chancellor then entered judgment against appellant for $41,433.28, which represented the fair market value of the improvements made by appellee on the land before appellant acquired any interest in it and reimbursement for real property taxes paid. It is from this judgment that appellant appeals.
Appellant’s Arguments
Appellant raises three arguments. First, he contends that the chancellor erred as a matter of law in awarding appellee the value of improvements made and taxes paid by her and her late spouse as life tenants of the property in question. Second, he argues that the chancellor erred in applying the Arkansas Betterment Statute to the dispute between the parties. Finally, appellant contends that the chancellor erred in calculating the value of the improvements.
Appellee responds that appellant is incorrect in his assertion that the chancellor found that appellee was a life tenant. She creatively asserts that because there was no evidence at trial that she held a life tenancy interest in her own right, the chancellor’s award of improvements and reimbursement of taxes to her should not be considered in a life tenant context. Thus, she concludes that she is entitled to reimbursement for taxes and improvements made on the land. Alternatively, she argues that life tenants may recover for improvements on land, and that the betterment statute applies so long as she had a good-faith belief that she owned the property in question. Appellee states that the chancellor did not err in calculating the amount of the value of the improvements made on the land in question.
Chancery decisions are reviewed de novo on the record. See Bennett v. Hollowell, 31 Ark. App. 209, 213, 792 S.W.2d 338, 341 (1990). This court does not disturb the chancellor’s conclusions of law unless the chancellor’s findings are clearly erroneous. See Ark. R. Civ. P. 52. Chancellors are in the best position to view the evidence presented at trial and assess the credibility of witnesses based on their demeanor and testimony. See Duchac v. City of Hot Springs, 67 Ark. App. 98, 104, 992 S.W.2d 174, 178 (1999). Although this court gives great deference to findings of fact by the chancellor due to the chancellor’s superior position to determine credibility issues, it does not give such deference to matters of law, in that the chancellor stands in no better position to apply the law than this court. See id. at 104, 992 S.W.2d at 178. When we find that the chancellor misapplied the law and that, as a result, an appellant has suffered prejudice, we will reverse the erroneous ruling. See id., 992 S.W.2d at 178.
Improvements and Taxes Paid by Life Tenants
The chancellor awarded appellee a judgment to reimburse her for improvements made to the land as well as taxes paid on the land by appellee and her husband while the couple resided on the land. The chancellor based his decision on the fact that appellee and her husband made substantial improvements to the land, including the construction of a dwelling house, outbuildings, clearing and landscaping. All of this was done with the appellant’s knowledge and tacit consent.
Life tenants hold a limited, restricted interest in the estate. Although life tenants are required to keep the property in repair, they are not required to permanently improve it. See Frazier v. Hanes, 220 Ark. 765, 769, 249 S.W.2d 842, 845 (1952). Indeed, life tenants ordinarily are not compensated by remaindermen when they permanently improve the estate. See Kelley v. Acker, 216 Ark. 867, 871, 228 S.W.2d 49, 52 (1950). Therefore, a life tenant who makes improvements to the property, notwithstanding her knowledge of her interest in the property, does so at her own risk. See Graves v. Bean, 200 Ark. 863, 868-69, 141 S.W.2d 50, 53 (1940) (holding that because the life tenant was aware of the title she held, she could not make improvements that would impair the interest of the title in fee simple).
Section 26-35-301 of the Arkansas Code Annotated mandates that everyone is liable and has a duty to pay taxes on land “seized for life” every year. See Ark. Code Ann. § 26-35-301 (a)-(b) (Repl. 1997). This includes life tenants, who are charged with the responsibility of paying taxes on land. See Hutchison v. Sheppard, 225 Ark. 14, 17, 279 S.W.2d 33, 36 (1955). It also includes persons who live with a life tenant, rent free. See Kelley v. Acker, 216 Ark. 867, 872, 228 S.W.2d 49, 53 (1950). These persons are not entitled for reimbursement of taxes paid, and monies paid by them to discharge the obligations of the life tenant are considered gifts to the life tenant. See id., 228 S.W.2d at 53.
There is no dispute that Elbridge Acord and his son Mark were originally granted a life tenancy with right of survivorship in 1986. The 1986 deed states on its face that the deed was “for their natural lives,” and includes a clause stating as follows:
Limitations: It is the purpose of this conveyance to convey a life estate unto both Elbridge A.J. Acord and Mark Elbridge Acord, for and during their natural lives. This conveyance is made on the condition that neither Elbridge A.J. Acord nor Mark Elbridge Acord, shall have the right to transfer, alienate, encumber or convey the hereinabove described lands.
The Correction Warranty Deed, recorded on May 31, 1988, purported to convey to Elbridge A.J. Acord and Mark Elbridge Acord and unto their heirs and assigns forever the same land involved in this appeal. However, the Correction Warranty Deed included the following limitation clause:
this conveyance is made on the condition that neither Elbridge A.J. Acord nor Mark Elbridge Acord shall have the right to transfer, alienate, encumber or convey the hereinabove described lands.
During the trial, appellee testified as to her understanding of the interest that she and her husband held in the Workman Place. Appellee testified that she and her husband received copies of the two 1986 deeds along with a letter from Joe Acord’s attorney. In addition, appellee testified, “[W]e understood Joe intended for us to just have the right to live there. We were having trouble signing the deed. I said, ‘[D]on’t put my name on it and Joe will sign it.’ ”
Appellee also testified that “we knew that all we had was the right to five there for Elbridge’s and Mark’s lifetime when we sold our property in Missouri.” She testified that she thought a life estate meant that once her father-in-law died, the property would belong to her and her husband.
Appellee further testified that although she thought in 1987 that she and her husband had a life estate interest in the Workman Place, once the correction deed was recorded in 1988 she thought that she and her husband owned the land. Appellant testified she was in possession of the 1986 deed and the 1988 correction deed. She stated that she and her husband began constructing their home in 1991.
In addition to the testimony of appellee, the chancellor also heard the testimony of Don Acord and Jeffrey Levin. Both men testified that it was Joe Acord’s intent to keep the property in the family to prevent it from being sold. Levin, the attorney who prepared the life estate conveyance testified that Joe Acord intended to avoid the selling of the property as a result of any marital problems that developed between Elbridge and appellee. Levin testified that he told Joe Acord that the only way to keep the property from being sold was to create a series of life estates, first in Elbridge Acord and then in Mark Acord. He stated that he sent a memo to Merle and Elbridge Acord dated May 5, 1986, which contained copies of the two 1986 deeds.
Appellee’s name is absent on the 1986 and 1988 deeds. In fact, it is not until 1997 that appellee’s name first appears on an instrument involving the property. This occurred when Elbridge and Mark Acord purportedly quitclaimed the property to Elbridge and Merle Acord. During the trial, appellee testified that the purpose of the 1997 deed was for her to have a place to live.
As life tenants of the Workman Place, Elbridge and Mark Acord were required to pay taxes on the property. It is undisputed that appellee lived on the land with her husband, and received the benefit of living on the land rent-free. Thus, appellee is not entitled to reimbursement for taxes. As mentioned previously, life tenants ordinarily do not receive reimbursement from remaindermen when improvements are made to the estate. Life tenants who improve property notwithstanding the uncertainty of reimbursement assume the risk they will not be reimbursed. Appellee and her husband took this risk when they sold their home in Missouri, relocated to Arkansas, and built a home on the property knowing that Joe Acord only intended for them to live there for Elbridge and Mark Acord’s natural lives.
Application of the Betterment Statute
A person may recover for improvements made to another’s land under the Arkansas Betterment Statute, if she 1) believes herself to be the owner of the property; and 2) holds under color of title. See Ark. Code Ann. § 18-60-213(a) (1987). A life estate interest does not confer color of title, and a deed that purports to be only convey a life estate is not sufficient color of title. See Perry v. Rye, 223 Ark. 594, 597, 267 S.W.2d 507, 509 (1954). In addition, a person may not recover for improvements that were made before color of title was acquired. See Anderson v. Williams, 59 Ark. 144, 146, 26 S.W. 818, 819 (1894).
Appellee testified that she knew at the time she moved from Missouri in 1986 that she and her husband only had a right to live on the Workman Place for the life of her husband and son. Her testimony that she thought she and her husband owned the place in 1988 contradicted her testimony that the purpose of the purported 1997 quitclaim deed was for her to have a place to live.
Even if appellee thought she owned the property, she still had to hold the property under color of title. The 1986 deed conveyed by Joe Acord to Elbridge and Mark Acord stated on its face that it was a life estate with a limitation that neither Elbridge nor Mark had the right to transfer, alienate, encumber or convey the land. The 1988 Correction Warranty Deed, also conveyed by Joe Acord to Elbridge and Mark Acord, contained language that limited the grantees from transferring, alternating, encumbering, or conveying the Workman Place. The limiting language in both conveyances prevented creation of a fee simple interest.
Appellee was not a grantee in the 1986 deed or 1988 Correction Warranty deed, and her name does not appear on any instrument of conveyance until June 1997. Based on the absence of appellee’s name from both the 1986 and 1988 deeds, appellee had no basis for a good-faith belief that she held the property under color of title at the time the improvements were made in 1991. Therefore, the chancellor erred in applying the betterment statute to appellee. Because the betterment statute is inapplicable to appellee, we need not reach the merits of appellant’s argument that the chancellor’s reliance on an appraisal was misplaced under the betterment statute.
The chancellor misapplied the law in awarding appellee a judgment against appellant. We reverse and remand for entry of an order consistent with this decision.
Reversed and remanded.
Robbins, C.J., Stroud and Neal, JJ., agree.
Koonce and Bird, JJ., dissent.
The conveyance was for the following:
The East Half of the Northeast Quarter of the Southeast Quarter (El/2 NE1/4) of Section Sixteen (16), Township Twelve (12) North, Range Twenty-five (25) West, containing 20 acres, more or less.
The East Half of the Southwest Quarter of the Southeast Quarter (Wl/2 NE1/4 SE1/4) of Section Sixteen (16), Township Twelve (12) North, Range Twenty-five (25) West, containing 20 acres, more or less.
The East Half of the Southwest Quarter of the Southeast Quarter of Section Sixteen (16), Township Twelve (12) North, Range Twenty-five (25) West, containing 20 acres more or less.
The Southeast Quarter of the Southeast Quarter (SE1/4 SE1/4) of Section Sixteen (16), Township Twelve (12) North, Range Twenty-five (25) West, containing 40 acres more or less.
Charley Don Acord and Elbridge Acord were brothers. Mark Acord is the son of Elbridge and Merle Acord. Harold Wayne Acord died, and his interest passed to appellant, Charley Don Acord.
Elbridge A.J. Acord died while this matter was pending.
We note that Ark. R. Civ. P. 25(a)(2) provides that when a plaintiff dies in a pending action to recover real property or an interest in real property, the Court may substitute the personal representative, heirs, or assigns. It has not been argued on appeal that appellee stood in the shoes of her late husband, and as a result, gained any interest he had in the land. Even so, Elbridge Acord’s interest was a life tenancy and nothing more. See Ark. R. Civ P. 25(a).
The language of the statute reads as follows:
If any person believing himself to be the owner, either in law or equity, under color of title has peaceably improved, or shall peaceably improve, any land which upon judicial investigation shall be decided to belong to another, the value of the improvement made as stated and the amount of all taxes which may have been paid on the land by the person, and those under whom he claims, shall be paid by the successful party to the occupant, or the person under whom, or from whom, he entered and holds, before the court rendering judgment in the proceedings shall cause possession to be delivered to the successful party.
See Ark. Code Ann. § 18-60-213(a) (1987). | [
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James R. Cooper, Judge.
The appellant was convicted by jury of driving while intoxicated (DWI) and of violating Ark. Stat. Ann. §41-3151 (Repl. 1979) (carrying prohibited weapons) in the Faulkner County Circuit Court. He was sentenced to thirty days and fined $500.00 for the DWI, and he was fined $250.00 for the weapons conviction. The appellant raises three points on appeal: (1) the trial court erred in refusing to instruct the jury on a defense to the charge of carrying a prohibited weapon; (2) the court improperly admitted into evidence the testing procedures used in administering the breathalyzer test, and the test results; and (3) the court improperly admitted statements made by the appellant to the police officer in violation of the fifth amendment of the United States Constitution. We affirm the conviction.
On his first point for reversal, the appellant contends that he was entitled to an instruction that being on a “journey” was a defense to the charge of carrying a prohibited weapon. The appellant is entitled to a correct instruction as to his theory of the case (/"there is any supporting evidence, and if it is not covered by other instructions given by the court. Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600 (1972). A journey has long been defined as
where one travels a distance from home sufficient to carry him beyond the circle of his neighbors and general acquaintances and outside of the routine of his daily business. . . . “The prohibition was designed to stop the carrying of weapons among one’s habitual associates; the exception was designed to permit it when necessary to defend against perils of the highway to which strangers are exposed, and that are not supposed to exist among one’s own neighbors.”
Ellington v. Denning, 99 Ark. 236, 237, 138 S.W. 453, 453 (1911) (quoting Hathcote v. State, 55 Ark. 181, 185, 17 S.W. 721, 722 (1891)). The court in Hathcote also stated that, “while we cannot state an unbending rule by which to define the scope of the exception, it should in every case be interpreted in the light of good sense and with regard to the spirit and intent of the statute.” 55 Ark. at 185. In this case, the appellant testified that he was on his way back from Morrilton, a distance of some twenty-six miles, after attempting to visit a friend who lived there. He indicated that he went to Morrilton frequently and testified that he did not consider driving to Morrilton to be a trip. There is no evidence in the record which indicates that, by driving to Morrilton and back, the appellant had traveled beyond the circle of his neighbors and general acquaintances, making it necessary to defend against the perils of the highway. There being no evidence to support the giving of the instruction, we hold that the court’s failure to do so did not constitute reversible error.
The appellant’s second point for reversal concerns the admission of the breathalyzer testing procedures and test results. The appellant contends that, because there was a period of three-months time in the log book where there was no indication of the daily calibration tests, any use, or any repairs of the machine until four days prior to the administering of the test to the appellant, the State failed to show proper compliance with the Arkansas Health Department Regulations for Blood Alcohol Testing, § 5.11(G). Only substantial compliance with Health Department regulations is required. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985). Here, the machine had been recertified by the Health Department on April 18, 1984, the end of the three- month gap, and records had been kept since that time. While the appellant’s argument would have merit if the certification had not occurred since the gap, the records kept since the recertification are complete and substantially comply with the regulations.
The appellant also contends that it was error to admit the test results into evidence, as the appellant had to blow into the machine three times before the machine received an adequate volume of air to register any results. The appellant contends this was error because the machine was not reset between each breath, and he alleges that the failure to reset the machine improperly increased the percentage of alcohol in the sample. The Health Department regulations do not require that a breathalyzer be reset if the first test attempt does not provide enough breath to be analyzed. The only regulation related to sample size is § 3.41, which provides that “[t]he quantity of breath shall be established by direct volumetric measurement or by collection of a fixed breath volume at a constant temperature.” The senior operator who administered the test, Officer Springer, testified that the machine had a light which would light up for a period of four to five seconds whenever the machine received a sufficient volume of air to analyze, and that this did not occur until the appellant’s third try. He also testified that, during his training, he was informed that when a suspect did not blow hard enough to obtain a sufficient sample of breath, he should have that person blow again. He said that at no time during this training was he advised that the machine had to be reset and that it was his understanding that, when multiple breaths were needed to obtain a sufficient air sample, they would not raise the alcohol content of the sample. The appellant made no attempt at trial, other than his own unsupported testimony, to show that such a procedure would, or could, increase the alcohol content of the sample. We find that the testing procedures and subsequent test results were in substantial compliance with the department regulations.
The appellant’s final point gives us the most problem. It is undisputed that the arresting officer had the appellant in custody and had failed to read him his rights before questioning him about the ownership of the guns. There is no doubt that the trial court erred in admitting the officer’s testimony that the appellant told him the guns were his. See Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985); Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985). However, the appellant also confessed on the stand that one of the guns did belong to him. The appellant’s statement in court was elicited on direct examination. We hold that, with this confession, the jury had conclusive proof that the appellant owned one gun, a prohibited weapon, and therefore, the admission of the confession, although erroneous, could not have been prejudicial. Trollinger v. State, 14 Ark. App. 184, 686 S.W.2d 796 (1985); Hays v. State, 268 Ark. 701, 597 S.W.2d 821 (Ark. App.) cert. denied, 449 U.S. 837 (1980); Mize v. State, 267 Ark. 743, 590 S.W.2d 75 (Ark. App. 1979).
There being no prejudicial error shown on the part of the trial court, we affirm the appellant’s conviction.
Affirmed.
Cloninger, and Mayfield, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, Susan C. Nix and appellee, Gary P. Nix were divorced on October 31, 1983. By agreement, each party was given joint custody of the two minor children. Appellee brought this action on February 13, 1985, seeking a change of custody and appellant responded, seeking a change of custody to her. On September 19,1985, the trial court ruled that the custody of the two minor children should be placed with appellee. We affirm.
Both parties agree that a material change in facts and circumstances occurred since the divorce because the joint custody arrangement resulted in an unstable environment for the children and was not in their best interests. The parties differ as to whom should be granted custody. The evidence summarized reveals that appellant began a sexual affair with a married man, Ralph Wiggins, shortly before her divorce from appellee in 1983. Subsequent to the entry of the divorce decree, appellant allowed Mr. Wiggins to stay overnight with her when he was in Little Rock. During the weeks the children were with appellant, Mr. Wiggins spent several nights a week with appellant. He was in the home when the children went to bed, but would be gone when the children got up in the morning. Appellant stated that when appellee filed his motion for change of custody on February 13, 1985, she voluntarily moved Mr. Wiggins out on March 9,1985, and since that time has not allowed Mr. Wiggins nor any other male to stay overnight in her home when the children were present. Mr. Wiggins testified that he had not spent the night with appellant in the presence of her children since prior to March 11, 1985. He stated he had taken appellant and her children on a camping trip that spring but he slept in a tent while appellant and her children stayed in the trailer. Both appellant and Mr. Wiggins testified that they did not plan to discontinue their relationship; however, neither made known any plans for marriage in the future. Both appellant and appellee had at one time smoked marijuana but alleged that activity had ceased. There was some testimony establishing that appellee and the children had spent an evening at the home of appellee’s former girlfriend. Although appellee admitted to a former sexual relationship with her, there was no testimony that he cohabitated with her when his children were in the home. Relative to the general care of the children, the evidence reveals that both parties were adequately responsive to the general care of the minor children, although appellant did not believe that appellee looked after them as closely as she did.
Appellant raises six points for reversal. All six assignments of error concern either the legal basis of the custody award to appellee or the sufficiency of the evidence supporting the award.
It is well settled that this court will not reverse the findings of a chancellor unless they are clearly erroneous or clearly against the preponderance of the evidence. ARCP Rule 52(a). Where the credibility of witnesses appearing before the chancellor js concerned, this court attaches substantial weight to the chancellor’s findings on material issues of fact. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). The primary consideration in awarding the custody of children is the welfare and best interests of the children involved, and other considerations are secondary. Id. These same standards are applicable in a change of custody case. Sweat v. Sweat, 9 Ark. App. 326, 659 S.W.2d 516 (1983). As noted in Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985), our courts have never condoned a parent’s promiscuous conduct or life-style when such conduct has been in the presence of the child. The supreme court has held in Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975), that the child’s welfare is the controlling consideration and custody is not awarded as a reward to, or punishment of, either parent.
In reaching his decision in the instant case, the chancellor cited applicable case law and detailed his findings of fact in a memorandum letter opinion. The chancellor determined that, but for the adulterous affair between appellant and Mr. Wiggins, both parties were essentially equivalent as far as their ability to care and provide for the children. He concluded that appellant’s ongoing relationship with Mr. Wiggins was immoral, failed to set a proper example for the minor children and resulted in harm to the children. We believe the chancellor’s decision was consistent with case law, and his findings concerning the facts and circumstances in this case are not clearly against the preponderance of the evidence. From our de novo review of the evidence adduced and the chancellor’s detailed findings, we cannot say that the trial court allowed the adhlterous conduct of appellant to so overshadow the proven facts and circumstances that it failed to consider the best interests of the children; that the chancellor’s decision was exclusively based on his own personal religious beliefs; that the award of custody to appellee was so made as to punish appellant; or that the chancellor placed a biblical standard on appellant to repent and reform rather than considering whether appellant’s conduct resulted in any harm to the children.
While we do not necessarily agree with the chancellor’s reliance upon language utilized in Polk v. State, 40 Ark. 482 (1883), such reliance cannot be said to constitute reversible error. The trial court’s memorandum letter opinion in the case at bar reflects that due consideration was given to the best interests of the children. Appellant relies upon our decision in a recent custody case, Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985), as controlling here. We do not agree inasmuch as custody cases present different factual situations and none of them represents a direct precedent which is absolutely controlling in another. See Harris v. Gillihan, 226 Ark. 19, 287 S.W.2d 569 (1956).
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, Carroll Dee Mallett, was charged and convicted by a Pulaski County jury of first degree sexual abuse and sentenced to a term of eight years in the Arkansas Department of Correction. The only issue raised by this appeal is whether the trial court erred in refusing to instruct the jury on the lesser included offense of attempted sexual abuse in the first degree. We affirm.
The record in the case at bar reflects that appellant requested and proffered an instruction on attempted sexual abuse first degree, which the trial court refused. Appellant’s argument below and now on appeal is that he was only guilty of an attempt to commit sexual abuse in the first degree because he touched the victim’s breast through her sleepwear. The basis of the trial court’s ruling on this question was that attempt was inappropriate and that under the evidence the jury could not reach a verdict on any other offense than first degree sexual abuse.
A person commits sexual abuse in the first degree if being eighteen years or older, he engages in sexual contact with a person not his spouse who is less than fourteen years old. Ark. Stat. Ann. § 41-1808(1 )(c) (Repl. 1977). “Sexual contact” means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female. Ark. Stat. Ann. § 41-1801(8) (Repl. 1977).
Appellant’s proffered instruction provided as follows:
A person commits the offense of Sexual Abuse, First Degree, if:
First: That the accused engaged in an act of sexual contact with another person; and,
Second: That the accused was 18 years old or older; and,
Third: That the other person was 13 years old or younger; and,
Fourth: That the other person was not the spouse of the accused.
To sustain the charge of Attempted Sexual Abuse, First degree the State must prove the following things beyond a reasonable doubt:
First: That Carroll Mallett intended to commit the offense of Attempted Sexual Abuse, First Degree;
Second: That Carroll Mallett purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in the commission of Attempted Sexual Abuse, First Degree; and,
Third: That Carroll Mallett’s Conduct was strongly corroborative of the criminal purpose.
“Sexual contact” means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female.
“Purposely.” A person acts purposely with respect to his conduct when it is his conscious object to engage in the conduct.
The victim in this instant case testified that she spent the night of November 16,1984, in the home of her aunt, the wife of appellant. She stated that she slept in her cousin’s room on the side of the bed by the door. She wore a nightgown which came to her thighs. She testified that her uncle, appellant Mallett, entered the room twice during the night. The second time appellant entered her bedroom “he got on his knees and he said something like he was going to hit me. He got on his knees and put his hand on my breast . . .” The victim also stated that appellant was squeezing her breast and his hand was over her nightgown.
It is reversible error to refuse to give a correct instruction on a lesser included offense and its punishment when there is testimony furnishing a reasonable basis on which the accused may be found guilty of the lesser offense. Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981). Where there is no evidence tending to disprove one of the elements of the larger offense the court is not required to instruct on the lesser one because absent such evidence there is no reasonable basis for finding an accused guilty of the lesser offense. In this type of case the jury must find the defendant guilty either of the offense charged or nothing. Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982). Where, however, there is the slightest evidence tending to disprove one of the elements of the larger offense, it is error to refuse to give an instruction on the lesser included one. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980).
Ark. Stat. Ann. § 41-701 (Repl. 1977), concerning the inchoate offense of criminal attempt, provides:
(1) A person attempts to commit an offense if he:
(a) purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believes them to be; or
(b) purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.
(2) When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpability otherwise required for the commission of the offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result.
(3) Conduct is not a substantial step under this section unless it is strongly corroborative of the person’s criminal purpose.
The Committee Commentary to § 41-701 states that sections (1) and (2) are framed so as to apply only to purposeful conduct, accompanied in subsections 1 (a) and (b) by a belief in attendant circumstances and in (2) by a knowing culpable mental state regarding a result. It is noted that these sections have overlapping coverage and are not set out in alternative form solely to pick up distinct kinds of conduct. Subsection 1 (a) is directed at the completed course of conduct while subsections 1 (b) and (2) are primarily directed at situations where substantial steps not amounting to completed courses of conduct have been taken, but have not culminated in the commission of the object offense. Under subsection (2), knowledge regarding a result will generate liability when coupled with purposeful conduct.
It appears from the wording of appellant’s proffered instruction previously quoted that he utilized the language from subsection (2) of § 41-701. He attempted to submit this instruction to the jury on the basis that he touched the victim through her nightgown and this conduct amounted to criminal attempt. We agree with the trial court that appellant’s conduct did not constitute criminal attempt to commit sexual abuse in the first degree and that the proffered instruction was inappropriate. As previously noted from the Committee Commentary following § 41-701, subsection (2) is primarily directed to situations where substantial steps not amounting to completed courses of conduct have been taken, but have not culminated in the commission of the object offense. The evidence clearly established that appellant touched the breast of his victim and the trial court did not err in refusing appellant’s proffered instruction.
In Walters v. State, 283 Ark. 243, 675 S.W.2d 364 (1984), the appellant argued in part that his conviction of kidnapping should be reversed because the trial court improperly refused to instruct the jury on the lesser included offense of attempted aggravated robbery. The Arkansas Supreme Court found no merit to this argument for two reasons. First, he did not ask for an instruction on what may have been the lesser included offense of aggravated robbery, but attempted aggravated robbery. Secondly, the Court found that the jury could not have returned a verdict of guilt to attempted aggravated robbery, only kidnapping. The evidence there established that the appellant stuck a knife to the victim’s stomach, held the back of her neck and ordered her where to drive. The Court noted that appellant’s conduct at that point went beyond any attempt and that his conduct constituted the offense itself, if anything.
Appellant relies upon the Arkansas Supreme Court’s decision in Kramer v. State, 283 Ark. 36, 670 S.W.2d 445 (1984), as controlling. The appellant there was tried and convicted of sexual abuse, first degree, and argued on appeal that the evidence was insufficient to support his conviction. The Supreme Court reversed, holding that the touching of the buttocks was not prohibited sexual conduct as defined in Ark. Stat. Ann. § 41-1801(8). Justice Purtle stated in his concurrence that “I do not understand how any sound thinking person could say the touching of the buttock by a hand through the clothing is expressly included in the foregoing statute [Ark. Stat. Ann. § 41-1801(8)].” Id. at 38, 670 S. W.2d at 446. This is the only reference made to the victim’s clothing and the majority in Kramer did not reverse the conviction on that basis. Thus, we believe appellant’s reliance on Kramer as dispositive of the issue here is misplaced.
In conclusion, we believe that appellant’s argument is without merit as his conduct did not fit within the definition of criminal attempt and under the evidence the jury could only have reached a verdict of first degree sexual abuse.
Affirmed.
Glaze and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
This is an appeal from an order of the Washington County Chancery Court, which modified the divorce decree of the parties by requiring the appellant to either sign a joint federal tax return for the year 1983 or pay one-half of the increased tax, interest, and penalty caused by her refusal to sign. The appellant contends that the court had no jurisdiction to modify the decree, that the court erred in making additional special findings when the appellee had waived his right to request them, and that the court’s decision was clearly erroneous. We find no merit in any of these contentions.
The appellant first contends that the court had no subject-matter jurisdiction to modify the decree because the ninety days allowed by Ark. R. Civ. P. 60 had expired, and the case did not fit into any of the exceptions set forth in Rule 60(q). Here, the original divorce decree, entered after a lengthy and contested trial, spelled out in detail the parties’ marital property and debts. In its final paragraph, the decree stated “[t]he court retains jurisdiction of this cause for the entry of other and further orders as may be necessary herein, including alimony and child support.” While the chancellor made no finding as to the tax liability of the parties in the original decree, by retaining jurisdiction in this matter, he expressly reserved the right to make any further orders regarding the decree, which includes the determination of tax liability. See Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984); Miles v. Teague, 251 Ark. 1059, 476 S.W.2d 245 (1972). In this situation, Rule 60 is inapplicable. See Miles, supra.
The appellant next contends that the court could not make additional findings of fact when the appellee waived his right to request such findings under Ark. R. Civ. P. 52(a). The appellant cites no cases to support her proposition where, as here, the chancellor has expressly retained jurisdiction to modify the decree; nor have we found any such holding. Indeed Bagwell, supra, indicates that, where jurisdiction has been retained by the chancellor, findings as to tax liability may be made at a later date.
The appellant’s final point on appeal is that the trial court was clearly erroneous in finding that the appellant stated she would sign a joint tax return for 1983, contending that the most the record would support is a finding that her agreement to sign such a return was conditioned upon the parties being married at the end of 1983. We disagree. While we review chancery cases de novo, we will not reverse the chancellor’s decree unless it is clearly erroneous, giving due regard to the chancellor’s superior position to determine the credibility and weight to be given a witness’s testimony. Rose v. Dunn, 283 Ark. 42, 679 S.W.2d 180 (1984); Ark. R. Civ. P. 52(a). The appellant was asked by her attorney if she would sign a joint income tax return in 1983, to which she replied yes. Upon continued questioning by her attorney, the appellant stated that she would also sign such a tax form in 1984 and 1985 if the parties were married at the end of those years. The appellant contends that the use of the word “would” rather than “will” means that her agreement was conditioned upon the granting of her counter-claim for separate maintenance. However, upon cross-examination, the appellant was asked if she was willingto sign a 1983 tax return, even though she could be held liable for any tax deficit. She replied yes, adding that “I still love [the appellee] and anything that will help him monitarily [sic] will not keep me from trying to help.” The chancellor found that these statements led him to believe the appellant would sign the tax Forms and affected his decision in drafting the original decree. We cannot say that the chancellor was clearly erroneous in so finding.
CA 85-145
705 S.W.2d 902
Although it is not necessary to the disposition of this case, we note that, in his order of December 17, 1984, the chancellor states that he “cannot compel the [appellant] to sign a joint federal income tax return for the year 1983.” A court of equity may mould any remedy that is justified by the proof. Keith v. Barrow-Hicks Extensions of Water Improvement District No. 85 of Pulaski County, 275 Ark. 28, 626 S.W.2d 951 (1982); State ex. rel. Peevy v. Cate, 236 Ark. 836, 371 S.W.2d 541 (1963). The chancellor may require a person to do a specific act by the issuance of a mandatory injunction. See Carter v. Oslin, 228 Ark. 629, 309 S.W.2d 328 (1958); Haberman v. Van Zandvoord, 1 Ark. App. 204, 614 S.W.2d 242(1981). Cf. Ark. R. Civ. P. 65(e) (requiring the terms and scope of mandatory and prohibitory injunctions to be set forth explicity); Ark. R. Civ. P. 70 (giving the court power to deal with those who refuse to obey and comply with orders to do specific acts). We see no reason that, if he had so desired, the chancellor could not have required the appellant to sign the joint income tax return.
There being no merit to the appellant’s contentions, we affirm the order of the chancellor.
Affirmed.
Cloninger and Mayfield, JJ., agree.
Supplemental Opinion on Denial of Rehearing Delivered April 2, 1986
James R. Cooper, Judge. The appellant’s petition for rehearing contends that we misapplied the law when we found a general reservation of jurisdiction sufficient to render Ark. R. Civ. P. 60 inapplicable. We do not agree.
The appellant contends that the Supreme Court, in Fullerton v. Fullerton, 230 Ark. 539, 323 S.W.2d 926 (1959), held that a specific identification of reserved issues is necessary to bypass the time limitations for modification of a decree. We do not read Fullerton to so hold. In Fullerton, the Court found that, because the parties had specifically stated in the pleadings that no property rights were at issue in the case and because the decree did not make any disposition of realty, the general reservation of jurisdiction (virtually identical to the one in the case at bar) could not apply to questions concerning real property. The Court went on to point out that the reservation properly reserved the issue of alimony for modification, as it had been raised before the court in the original action. Cf. Fullerton v. Fullerton, 233 Ark. 656, 348 S.W.2d 689 (1961) (holding that the same parties were not barred by res judicata from asserting property rights not adjudicated in the original decree). See also Horn v. Horn, 232 Ark. 723, 339 S.W.2d 852 (1960) (distinguishing Fullerton v. Fullerton, 230 Ark. 539, 323 S.W.2d 926 (1959), when it held that a general reservation of jurisdiction was sufficient to give the original court jurisdiction over an attempt to collect dower awarded in the original divorce decree from property transferred to a third party in a different county).
The other cases cited by the appellant, purporting to approve her definition of the holding of Fullerton, are likewise inapposite. In both Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42 (1967), and Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983), Fullerton was cited for the general proposition that a decree may not be modified after the expiration of the “term time” (now ninety days under Ark. R. Civ. P. 60), absent statutory grounds. Neither Collie nor Harrison were concerned with the reservation of jurisdiction by the court. Furthermore, Collie deals with an independent property settlement, which may not be modified by the chancellor even if jurisdiction is retained, and Harrison, like Fullerton, dealt with the disposition of property which was not involved in the original action.
Here, unlike the situations in the above cited cases, the chancellor reserved jurisdiction and had the issue of tax liability before him in the original action. The issue having been originally brought before the chancellor, his general reservation of jurisdiction was sufficient to allow him to modify the decree.
Petition denied.
Cloninger and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
This appeal is from an order of the Sebastian County Circuit Court denying the appellant’s motion to modify, set aside and vacate a writ of mandamus to the sheriff, which directed execution upon property claimed by the appellant to be his homestead.
In May, 1983, the appellee obtained a judgment of $13,750.00 against the appellant, which was not satisfied. A writ of execution was issued on December 6,1983, and served upon the appellant on February 6,1984. The property, which was to be sold on April 25,1984, was a residence and lot at 2813 South Houston in Fort Smith. At the time of service of the writ of execution, the appellant and his family were living at a home owned by the appellant at 8112 Cypress Street. However, in April 1984, the appellant and his family moved into the house on South Houston, paid off the mortgage on the Houston property and commenced construction work on it. On April 24, 1984, the appellant filed a petition in bankruptcy, which stayed the sheriff’s sale.
The bankruptcy proceedings were dismissed on August 13, 1984, and on September 13, 1984, the appellee requested the sheriff to schedule a sale of the property on Houston Street. After the sheriff refused to do so because the appellant and his family were living in the house, the appellee obtained a writ of mandamus directing a sale of the property. Shortly thereafter, the appellant moved to modify, set aside, and vacate the writ of mandamus on the ground that the property on Houston Street was exempt from execution as his homestead. At the conclusion of the hearing, the circuit court noted that the case was “very close” but found that the property was not the appellant’s homestead and directed that the property be sold. The only substantial question involved in this appeal is whether the circuit court’s finding that the property is not the appellant’s homestead is clearly erroneous.
The appellee has preliminarily argued that the order in question is not appealable. This argument, however, is without merit. The order denying the appellant’s motion to modify, set aside, and vacate the writ of mandamus ordered that the sale of the property, under levy of execution, proceed. Clearly this order falls within the ambit of Ark. R. App. P. 2. The test of finality and appealability of an order is not whether the order settles the issue as a question of law, but to be final, the order must also put the court’s directive into execution, ending the litigation or a separable branch of it. Scaff v. Scaff, 5 Ark. App. 300, 635 S.W.2d 292 (1982). Accord Morgan v. Morgan, 8 Ark. App. 346, 652 S.W.2d 57 (1983). As explained in Omni Farms, Inc. v. Arkansas Power & Light Co., 271 Ark. 61, 607 S.W.2d 363 (1980), appeal dismissed, 451 U.S. 935 (1981), an order is appealable if it would divest a substantial right in such a way as to put it beyond the power of the court to place the party in the party’s former condition.
It is undisputed that the appellant purchased the property on Houston Street and established a homestead there in 1966. However, the house was severely damaged by termites, and the appellant began nearly a total reconstruction of the house in 1977 or 1978. At that time, the appellant moved into a house which he owned on Iola Street, and in 1980, the appellant purchased and moved into a house on Cypress Street.
The testimony established that at some point, the electricity and gas to the house on Houston Street were shut off. According to the appellant, this rendered the house too cold to inhabit during the winter months. The appellant testified that between 1978 and April of 1984, he and his family lived in the house on Houston Street during the warm months. Repairs of service lines were made later. Appellant also claimed that he had never abandoned the residence as a homestead, had always intended to live there again, and that he had never attempted to sell the property. He claimed that numerous items of personal property were left in the house and never removed during their absence. The appellant further claimed that the house on Houston Street had never been levied upon before, and that if it had been, he would have invoked the homestead exemption. The appellant called Hollis Scott, the owner of a pest control company who was contracted by the appellant in April 1984 to inspect the property, as a witness. On cross-examination, Scott testified that, although there was some furniture stored in the rebuilt garage, as well as some dishes in the kitchen, there were no sleeping facilities, and it did not appear that anyone was living in the house.
The appellee introduced much documentary evidence (in the form of summonses and writs of execution) showing that the appellant and his family actually were in residence at the house on Cypress Street during many of the warm months falling in the period in question, contrary to the testimony of the appellant. Additionally, the exhibits reflected that the appellant did not reside at the Houston Street address in June or December of 1978, January of 1982, or March of 1984. The appellant had also listed his residence address in responses to interrogatories as 8112 Cypress Street.
The appellee further introduced evidence that, contrary to the appellant’s assertion, the house on Houston Street had been previously levied upon and that the appellant had not raised the homestead exemption, but had satisfied the judgment. Additionally, the appellee introduced the business records of the local gas and electric company to show that the service begun in the appellant’s home at the Cypress Street address was still continuing; that between September of 1981 and January of 1983, the service at the Houston Street house was listed in the name of another individual (the appellant’s son-in-law) and that, after the meter was removed in February of 1984, service was re-estab lished to the appellant at the Houston Street address on May 3, 1984.
Since there is no question that the appellant did in fact establish a homestead on Houston Street in 1966, the controlling issue is whether the appellant abandoned that homestead in 1977 or 1978. If he did in fact abandon the homestead, his return thereto after the levy of execution would not create a homestead exempt from execution. See Tillar v. Bass, 57 Ark. 179, 21 S.W. 34 (1893); Patrick v. Baxter, 42 Ark. 175 (1883).
Homestead laws are remedial and should be liberally construed to effectuate the beneficent purposes for which they were intended. City National Bank v. Johnson, 192 Ark. 945, 96 S.W.2d 482 (1936). However, “one must actually and in good faith occupy land as a residence, before the levy of an execution, to impress it with the homestead character and to make it exempt from the levy of the execution.” Bank of Quitman v. Mahar, 193 Ark. 1111, 1113, 104 S.W.2d 800, 801 (1937). In King v. Sweatt, 115 F. Supp. 215, 218 (W.D. Ark. 1953), the federal district court explained:
Although the law creating the homestead right should be liberally construed in the debtor’s favor, it should not be so applied or construed as to make the law an instrument for the accomplishment of fraud or imposition. Construction should not be so liberal as to depart from the plain and obvious meaning of the words used in the Constitution or to confer rights upon persons who have not brought themselves at least within the spirit of the Constitutional provisions.
The general rule is that the burden of proving a sufficient occupancy of the property to establish a homestead is upon the party claiming the right to the exemption. Arkansas Savings and Loan Association v. Hayes, 276 Ark. 582, 637 S.W.2d 592 (1982); Automotive Supply, Inc. v. Powell, 269 Ark. 255, 599 S.W.2d 735 (1980); Barnhart v. Gorman, 131 Ark. 116, 198 S.W. 880 (1917); Gibbs v. Adams, 16 Ark. 575, 89 S.W. 1008 (1906).
“[I]ntention to abandon [a homestead] is an issue of fact, and in such a situation, evidence is rarely clear. . . . However, the legal presumption is that the homestead right continues until it is clearly shown that it has been abandoned.” Vesper v. Woolsey, 231 Ark. 782, 785-86, 332 S.W.2d 602, 604-OS (I960). Accord City National Bank, supra. The burden is upon one claiming that a homestead has been abandoned to establish that fact. Melton v. Melton, 126 Ark. 541, 191 S.W. 20 (1917).
In City National Bank, supra, the Arkansas Supreme Court explained that the intention of the one claiming the exemption is central to the determination of such cases:
The Constitution provides for the homestead, and, when once established, the presumption is that it continues until it is shown by the evidence that it has been abandoned. The question of homestead and residence, being a question of intention, must be determined by the facts in each case, and the [trial court’s] finding of fact will not be disturbed unless it appears to be against the preponderance of the evidence.
192 Ark. at 949, 96 S.W.2d at 484.
In Caldcleugh v. Caldcleugh, 158 Ark. 224, 250 S.W. 324 (1923), the court dealt with the issue of intent in the context of abandonment of the homestead:
It is well settled that a removal from the homestead, where there is a fixed and abiding intention to return to it, will not constitute an abandonment of it as a homestead. An abandonment of a homestead is almost, if not entirely, a question of intent, which must be determined from the facts and circumstances attending each case. A removal from the homestead may be caused by necessity or for business purposes, and if the owner has an unqualified intention to preserve it as a homestead and return to it, his removal will not result in an abandonment of the land as a homestead.
158 Ark. at 230-31, 250 S.W. at 326. Accord Monroe v. Monroe, 250 Ark. 434, 465 S.W.2d 347 (1971); Harrison v. Rosensweig, 185 Ark. 281, 47 S. W.2d 2(1932); McDaniel v. Conlan, 134 Ark. 519, 204 S.W. 850 (1918); Melton, supra; Stewart v. Pritchard, 101 Ark. 101, 141 S.W. 505 (1911); Brown v. Watson, 41 Ark. 309 (1883); Euper v. Alkire & Co., 37 Ark. 283 (1881).
It has also been held, however, that one will be presumed to have abandoned his old home when he leaves it and acquires another, where he resides for a considerable time, in the absence of convincing testimony to the contrary. Gillis v. Gillis, 164 Ark. 532, 262 S.W. 307 (1924); Wolfs. Hawkins, 60 Ark. 262, 29 S.W. 892 (1895). “The facts that the absence extended over a period of six years, and that the debtor during that period occupied another house owned by him, tend to show a change of residence, but are not conclusive.” Robinson v. Swearingen, 55 Ark. 55, 58, 17 S.W. 365, 366 (1891). See also Brown, supra. Additionally, the abandonment of a homestead may be proved by conduct, circumstances, and actions, as well as by direct testimony. Harrison, supra; Lilly v. Lilly, 178 Ark. 324, 11 S.W.2d 765 (1928).
This Court recently considered the question of abandonment of a homestead in Ross v. White, 15 Ark. App. 98, 689 S.W.2d 588 (1985). In that case, we held that the trial judge’s decision that the debtor had impressed a homestead on his property and never abandoned it was not clearly erroneous. In Ross, the debtor had moved out of state, but had continued to make the mortgage payments on the property, and had occupied and worked on the house during his returns to Arkansas. He had also allowed his sister to move into the house without paying rent. He further continued to pay taxes and was registered to vote in Arkansas and claimed to have never abandoned his Arkansas homestead. However, unlike the instant case, wherein the evidence is conflicting, the debtor’s evidence in Ross upon the issue of abandonment was uncontradicted.
In the instant case, the evidence as to the appellant’s intent in leaving the house on Houston Street and in purchasing and establishing residences on Iola and Cypress Streets is clearly conflicting. However, given the discrepancy between the appellant’s claim that his family lived on Houston Street during warm weather and the documentary evidence showing the contrary, as well as the testimony of the pest control company owner and the electric and gas company accountant, it cannot be said that the circuit court was clearly erroneous in its factual determination that the property was not the appellant’s homestead. Further, the appellant’s credibility must also be considered in view of his statement that the house on Houston Street had never previously been the subject of a levy of execution when in fact it had been.
The question of homestead and residence, being a question of intention, must be determined by the facts in each case, and the trial court’s finding of fact will not be disturbed unless it appears to be against the preponderance of the evidence. City National Bank, supra. Our duty is to give due regard to the judge’s opportunity to observe the witnesses and affirm his findings of fact unless they are clearly against the preponderance of the evidence. Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980); Izard County Board of Education v. Violet Hill School District No. 1, 10 Ark. App. 286, 663 S.W.2d 207 (1984); ARCP Rule 52(a). We hold that the judge’s decision is neither clearly erroneous nor against the preponderance of the evidence, and therefore, we affirm.
Affirmed.
Cracraft, C.J., and Glaze, J., agree. | [
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Donald L. Corbin, Judge.
Appellant, James Charles Williams, was charged with the first degree murder of his brother and convicted of second degree murder by a Pulaski County Circuit Court jury. He was sentenced to thirty years imprisonment in the Arkansas Department of Correction. The only issue raised by this appeal is whether the trial court committed reversible error in refusing to instruct the jury on the lesser included offense of manslaughter. We reverse and remand.
Testimony adduced at trial established that appellant, Fred Williams, Elbert Townsend and Johnny Griffin played cards on October 14,1984, at Townsend’s apartment. Griffin testified that appellant and his brother, Fred Williams, argued about appellant cheating. He observed appellant walk over by Fred Williams and pull out a knife. Fred Williams then grabbed a chair to try to protect himself. Griffin also stated that Fred Williams was backing up and that he “wasn’t serious with the chair.” He further stated that he saw appellant stab his brother three to five times.
Townsend testified that an argument broke out between appellant and his brother. Fred Williams stated to appellant, “Shut your mouth before I put my foot in it.” Townsend stated appellant then told his brother that he would kill him first. Townsend testified that appellant had a knife in his hand and tried to swing at his brother. Townsend observed Fred Williams trying to block his brother’s advances with a chair.
Appellant took the stand and testified that he and his brother got into an argument and Fred Williams scooted from the table quickly. Appellant did not know what was going on and he stood up. His brother grabbed the chair and scooted back and appellant went into his pocket to get his knife out. Before he was able to get it out of his pocket, appellant stated his brother struck appellant with the chair on his left shoulder. Appellant testified he started swinging with the knife and upon observing blood coming from his brother, got scared and ran. He also stated that when he left the scene he observed that his brother had the chair and was on his feet. Appellant testified that he did not mean to kill his brother and that everything happened real fast.
Roy Jackson testified that on the night of October 14,1984, appellant came to his home and asked to talk to him. He observed some blood on appellant’s shirt and asked him about it. Appellant told him that he and his brother had gotten into a fight and that he had cut his brother. Appellant also told Jackson that his brother had picked up a chair and was going to hit him with it.
Frank Randolph testified that on October 14, 1984, appellant called him and wanted Randolph to pick him up. Appellant told Randolph that he had gotten into a fight with his brother and that he thought he had hurt him real bad. Randolph was subsequently stopped by the police on his way to pick appellant up.
Dr. Lee Beamer, the Associate Medical Examiner, testified that he performed an autopsy on Fred Williams. He stated that Fred Williams sustained five stab wounds to his person which were the cause of death. Toxicology tests performed established that Fred Williams had been drinking alcohol.
The record in the case at bar reflects that appellant requested and proffered an instruction on manslaughter which the trial court refused. The basis of its refusal was that an instruction on manslaughter was not justified under the evidence of the trial. Manslaughter is committed by one who recklessly causes the death of another person. Ark. Stat. Ann. § 41-1504(l)(c) (Repl. 1977). “Recklessly” is defined as follows:
“Recklessly.” A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
On the other hand, second degree murder is committed by a person if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life or with the purpose of causing serious physical injury to another person, he causes the death of any person. Ark. Stat. Ann. § 41-1503(l)(b) and (c) (Repl. 1977). The jury in the instant case was instructed on this basis.
As noted by the Arkansas Supreme Court in Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), no right has been more zealously protected than the right of an accused to have the jury instructed on lesser included offenses. “This is so, no matter how strongly the trial judge feels that the evidence weighs in favor of a finding of guilty on the most serious charge.” Id. at 93, 598 S.W.2d at 423, 424. It is reversible error to refuse to give a correct instruction on a lesser included offense and its punishment when there is testimony furnishing a reasonable basis on which the accused may be found guilty of the lesser offense. Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981). Where there is no evidence tending to disprove one of the elements of the larger offense the court is not required to instruct on the lesser one because absent such evidence there is no reasonable basis for finding an accused guilty of the lesser offense. In this type of case the jury must find the defendant guilty either of the offense charged or nothing. Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982). Where, however, there is the slightest evidence tending to disprove one of the elements of the larger offense, it is error to refuse to give an instruction on the lesser included one. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980).
In this case there was evidence presented on which the jury might have found that appellant recklessly caused the death of his brother. While it appears most unlikely, the jury could have believed appellant’s testimony and found that the criminal intent required for conviction of the larger offense was lacking. It is the jury’s sole prerogative to evaluate the conflicting evidence and to draw its own inferences.
In Savannah v. State, 1 Ark. App. 161, 645 S.W.2d 694 (1983), this Court reversed the appellant’s conviction and re manded for a new trial upon the trial court’s refusal to instruct the jury on the lesser included offense of robbery. There, the appellant participated in a liquor store robbery and testified at trial that he did not know his riding companion had a weapon until after the robbery or that his companion intended to rob the store. Upon abandoning the car, appellant stated that they went in separate directions but met later at appellant’s parents’ home. The appellant claimed his companion later left the pistol at the house. The pistol was recovered at that address by the police. We noted in Savannah that it was the jury’s sole prerogative to evaluate the evidence and draw its own inferences as to whether the appellant knew his companion had a pistol when the robbery was committed and why the pistol was recovered at appellant’s residence after the robbery. Finally, we stated there that if the jury believed the appellant’s version of the robbery, it could have found him guilty of robbery, not aggravated robbery.
In Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982), we held that the trial court had committed prejudicial error in failing to instruct the jury on the lesser included offense of criminal trespass. Appellant had testified at trial that he entered the building intending to borrow some gasoline and pay the owner for it the next morning. This testimony provided evidence on which the jury might have found the appellant’s entry was without the criminal intent required for conviction of the larger offense of burglary. We stated there that it was not impossible for the jury to have found the appellant guilty only of criminal trespass and reversed and remanded for a new trial.
We conclude that it was prejudicial error of the court in the case at bar to fail to give the proffered instruction on manslaughter and we therefore reverse and remand for a new trial.
Reversed and remanded.
Cooper and Glaze, JJ., dissent. | [
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James R. Cooper, Judge.
The appellants, Tammy Anglin and George Anglin, appeal from an order of the circuit court of Johnson County granting a deficiency judgment against them of $2,832.93 plus interest and court costs. The appellants contend that, because the notice of the sale that was sent to them did not adhere to the provisions of the Uniform Commercial Code, the appellee was not entitled to a deficiency judgment. We find no error and affirm.
In 1984, the appellants purchased a pickup truck from Casey Motor Company, Inc., by a retail installment contract which was later assigned to the appellee, Chrysler Credit Corporation. After the appellants defaulted on their payments, the truck was repossessed by the appellee. Notice that the truck would be sold by a private sale beginning August 25, 1986, was sent to and received by the appellants. The notice erroneously specified that the truck would be sold by the dealer, Casey Motor Company, but at the time the notice was sent, Casey Motor Company was no longer in business and the truck was sold by the appellee.
Kent Bradford, employee of the appellee, testified that, at the time the notice was sent, Casey Motor Company had ceased operation and the appellee was the only party who could sell the repossessed truck. He stated that the appellee was not accustomed to the dealer not being in business and mistakenly checked the box on the notice form which indicated the dealer would sell the vehicle. Bradford also testified that four bids were taken for the truck and it was sold to the highest bidder for $2,200.00. After applying the sale proceeds to the balance owed, there remained a deficiency of $2,832.93.
Appellant George Anglin testified that, after receiving notice of the sale, he went to Casey Motor Company to talk to them about the truck but discovered they were no longer in business. He admitted that he did not attempt to contact the person who sent the notice or take any other action to contact someone regarding the vehicle.
The appellants do not contend that they did not receive notice. They argue the notice they received was inadequate because it stated the truck would be sold by the dealer, Casey Motor Company. They rely on First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987), for the proposition that, when a creditor repossesses collateral without sending the debtors the proper notice as required by the Uniform Commercial Code, the creditor is not entitled to a deficiency judgment.
We do not agree that the notice in the case at bar failed to meet the requirements of the Uniform Commercial Code. That section of the Code is codified at Ark. Code Ann. Section 4-9-504(3) (1987), which provides in part:
Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.
Here, the notice stated that the truck would be sold at private sale and the time after which, the sale would take place. The notice was sent by the secured party, the appellee, as required by this section, and bore the appellee’s address, phone number, and the name and signature of its customer services supervisor. While the Code requires that, when disposition is to be made by public sale, notice of the place of the sale must be given to the debtors, no such requirement exists for disposition by private sale. In their treatise, Uniform Commercial Code, James White and Robert Summers note that:
[N]otice of a public sale must contain different information from that announcing an intent to sell privately. In the latter case, the notice need only state “the time after which” the collateral is to be sold; in the case of a public sale, it must state “the time and place” at which the sale will occur.
J. White & R. Summers, Uniform Commercial Code, Section 26-10, at 1113 (2ded. 1980). The distinction between private sale and public sale was also recognized by the Arkansas Supreme Court in Barker v. Horn, 245 Ark. 315, 316, 432 S.W.2d 21, 22 (1968), where the court stated that, although the statute requires notice of the time and place of public sale, only reasonable notification of the time after which a private sale will be made is required.
“When the code provisions have delineated the guidelines and procedures governing statutorily created liability, then those requirements must be consistently adhered to when that liability is determined.” First Nat’l Bank v. Hess, 23 Ark. App. 129, 134, 743 S.W.2d 825, 827 (1988) (quoting First State Bank v. Hallett, 291 Ark. at 41, 722 S.W.2d at 557). There is no evidence here that the appellee did not adhere to the notice requirements of the Uniform Commercial Code. The appellant’s argument is therefore without merit, and we affirm.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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James R. Cooper, Judge.
This is an appeal from the chancery court of Pope County. The appellees filed suit against the appellants who are the heirs of Ross Brown. In their complaint they alleged that they had purchased forty acres with Ross Brown, now deceased, and that they had signed a quitclaim deed in favor of Ross Brown in order to secure financing to repair their home. The appellees testified that Ross Brown subsequently became ill, and that they entered into an agreement with Brown to care for him during his illness, and he agreed to extinguish the debt if they did so. The chancellor found the quitclaim deed to be a mortgage and that the indebtedness was satisfied in full. Title to the disputed 18-acre tract was quieted in the appellees. The appellants argue on appeal that the trial court erred in finding that the quitclaim deed was not an absolute conveyance because the evidence to establish that the deed constituted a mortgage was not clear, satisfactory and convincing. We affirm.
On appeal, chancery cases are reviewed de novo, but the chancellor’s findings of fact and conclusions of law will not be reversed unless they are clearly erroneous. McDonald v. McDonald, 19 Ark. App. 75, 716 S.W.2d 788 (1986). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. RAD-Razorback Ltd. v. Coney, 289 Ark. 550, 713 S.W.2d 462 (1986). The question we must answer on appeal is whether the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly wrong. Akins v. First National Bank, 25 Ark. App. 341, 345, 758 S.W.2d 14 (1988).
The presumption arises that a deed is what it purports to be and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing. Ehrlich v. Castleberry, 227 Ark. 426, 299 S.W.2d 38 (1957). If there is a debt existing and the conveyance was intended by the parties to secure its payment, equity will regard and treat an absolute deed as a mortgage. Newport v. Chandler, 206 Ark. 974, 178 S.W.2d 240 (1944). The party claiming that the deed is in fact a mortgage has the burden of proof, both to show that there was an indebtedness and that the deed was intended to secure the debt. Id. Since the equity upon which the court acts arises from the real character of the transaction, any evidence, written or oral, tending to show the true facts is admissible. Newport, 206 Ark. at 979. In reviewing the decisions of chancery courts on questions of this nature, great weight should be given to the opinion of the trial court as the chancellor may be apprised of the existence of circumstances which but dimly appear to us from an examination of the record alone. Ehrlich, supra; Ruth v. Lites, 267 Ark. 752, 590 S.W. 2d 322 (1979).
The appellee, Peggy Cole, testified that in 1979 she, her husband, the appellee Corbin Cole, and Ross Brown purchased forty acres of land as tenants in common, with one half belonging to Ross Brown and the other half belonging to her and her husband. A warranty deed dated November 6, 1970, was introduced evidencing the transaction. According to Mrs. Cole, a mortgage in the amount of $7,900 was executed to secure financing for the purchase. Although she and her husband were listed as mortgagors in the mortgage, Mrs. Cole testified that Mr. Brown was to pay for the land and the appellees agreed to repay Mr. Brown. Mrs. Cole testified that in 1975 she and her husband attempted to obtain a loan to repair their mobile home located on the forty acres but the bank refused to accept a mortgage on the land because it was already mortgaged. According to Mrs. Cole, Mr. Brown agreed to pay off the land in order to clear the title, but he wanted some security and he agreed to accept a quitclaim deed to their twenty acres. He then deeded back to them the two acres surrounding the mobile home.
In March 1984, Mr. Brown became ill with cancer. Mrs. Cole stated that shortly after the illness was discovered, she and her husband sat down with Mr. Brown and they all agreed that the debt would be extinguished in return for the appellees caring for him. Although there is some dispute in the record as to exactly how much care was involved, it is clear that the appellees did care for Mr. Brown frequently in his last months and did chores for him such as housekeeping, shopping, and assisting him with personal grooming and hygiene.
Shortly before his death, Mr. Brown sold twenty of the forty acres to a third person not a party to this case. We find it to be relevant that Mr. Brown sold only twenty of the forty acres because it indicates that he did not claim any ownership to the other twenty acres. Although the appellees presented a witness who testified that Mr. Brown had offered to sell him 38.6 of the forty acres, there was nothing in writing, no offer was made, and apparently no price discussed. The witness stated that he did not pursue the matter because he only had about $200.00 in cash. To rebut the assertion that the Coles were unable to obtain financing due to an existing mortgage on the land, the appellants introduced into evidence a letter from the mortgagee bank which indicated that Mr. Brown had paid off the mortgage in 1971.
Deferring to the chancellor’s judgment concerning the credibility of the witnesses, as we must, we find sufficient evidence to support the chancellor’s finding that the deed was in fact intended as a mortgage, and we hold that the chancellor’s decision was not clearly erroneous.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Pulaski County Circuit Court, Fifth Division. Appellant, Wali Muhammed, appeals his conviction of theft of property by deception valued over $2,500.00, a violation of Arkansas Code Annotated Section 5-36-103 (Supp. 1987), and the sentence imposed therefor. We affirm.
Appellant was charged by information filed August 3,1987, with multiple offenses; however, this appeal concerns only appellant’s conviction on the count of theft by deception. With regard to that offense, the information alleged that appellant, with the purpose of depriving the true owner of its property, knowingly obtained the property of Allstate Insurance Company by deception, such property having a value of in excess of $2,500.00. Appellant was tried by a jury and found guilty as charged and sentenced to five years imprisonment. From the judgment, this appeal arises.
For reversal, appellant raises the following three points: (1) The trial court erred in refusing to grant defendant’s motion for mistrial because of the judge’s comment and conduct toward defense counsel during voir dire; (2) the trial court erred in permitting the state to excuse black veniremen from the jury panel without being required to show a sufficient racially neutral basis, thereby denying appellant the equal protection of laws and a fair trial; and (3) the evidence is insufficient to support the verdict on the charge of theft by deception.
Where the sufficiency of the evidence is challenged on appeal of a criminal conviction, the appellate court is required to review the sufficiency of the evidence prior to considerations of trial errors. McCraw v. State, 24 Ark. App. 48, 748 S.W.2d 36 (1988). This court considers the evidence in the light most favorable to the appellee and if there is substantial evidence to support the jury’s finding of guilt, we must affirm. Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). Circumstantial evidence can present questions to be resolved by the trier of fact and be the basis to support a conviction. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977). The fact that evidence is circumstantial does not render it insubstantial. Shipley v. State, 25 Ark. App. 262, 757 S.W.2d 178 (1988). Viewed in the light most favorable to appellee, the evidence reflects that prior to the incident in question, a conflict existed between appellant and another individual over ownership of a 1975 Mercedes Benz automobile which involved pending civil litigation. The car was reported stolen in November of 1985 and appellant, as insured, filed a claim for the stolen vehicle with the insurance company insuring the car. Pursuant to appellant’s claim, the insurance company initiated an investigation and spoke with appellant on several occasions. In February of 1986, the insurance company paid appellant $7,120.00 on the loss and appellant subsequently signed a release relinquishing all rights to the car, if found. In April of 1987, the car was found in the back yard of appellant’s brother’s home. Collectively, the testimony of appellant’s brother and sister-inrlaw revealed that they did not see who parked the car in their back yard; however, they testified that appellant asked for and received permission to park the car there. Additionally, they testified that they were not sure exactly how long the car was parked in their yard prior to its discovery but it had been there possibly for months. The car was not driven or moved while in this location.
Appellant’s testimony revealed that he used the insurance proceeds he received in February of 1986 from the theft of the Mercedes to purchase a 1986 Cadillac. He also testified that he became aware of the location of the Mercedes Benz in December of 1986 and arranged through his attorney for its delivery to his brother’s yard because he did not have space to store it at his home. Although appellant testified that he wrote a letter in December of 1986 notifying the insurance company of the car’s location and produced a copy of such a letter at trial, the insurance company’s representative testified that no such information was received by the company concerning the car’s location. Furthermore, the letter was not in the insurance company’s file produced in court. Thus, conflicting evidence was before the jury; however, decisions regarding the credibility of the witnesses are for the trier of fact, in this instance the jury, and the jury was not required to believe the explanation given by appellant, who was the person most interested in the outcome of the trial. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). Furthermore, the appellate court need only consider testimony lending support to the jury verdict and may disregard any testimony that could have been rejected by the jury on the basis of credibility. Sparks v. State, 25 Ark. App. 190, 756 S.W.2d 911 (1988).
Appellant argues that the above facts are insufficient to support his conviction and that the jury engaged in surmise and conjecture in finding him guilty of theft of property by deception. A person commits this crime if he knowingly obtains the property of another person, by deception or threat, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103 (Supp. 1987). The jury was instructed that the definition of deception is the failure to correct a false impression that the defendant knew to be false and that he created or reinforced. See Ark. Code Ann. § 5-36-101(3)(A)(iii) (Supp. 1987). The evidence revealed that appellant collected the insurance money for the Mercedes he reported stolen and relinquished all rights to the automobile at that time. Notwithstanding the above facts, appellant later found the car and arranged for it to be taken to his brother’s back yard where he allowed it to remain for four or five months until the police discovered its location. The jury could have concluded from the circumstances that appellant knowingly obtained the property of another by failing to correct a false impression that he knew to be false and that he created or reinforced. Viewing all evidence in the light most favorable to appellee, we find substantial evidence from which the jury could have reached its conclusion without resorting to speculation and conjecture.
Secondly, appellant argues the trial court erred in refusing to grant his motion for a mistrial because of the judge’s comment and conduct toward defense counsel during voir dire. After the state exercised two of its peremptory challenges to remove black veniremen, appellant’s counsel made an objection at the bench to the state’s use of the challenges. Batson v. Kentucky, 476 U.S. 79 (1986). The state gave its reasons for striking these two veniremen and pointed out that one black juror was in the panel. An exchange between the court and defense counsel then occurred at the bench regarding the objection which culminated with the court telling counsel to “stand down” and ordering him to counsel table. Voir dire continued and final jurors, including an alternate, were chosen. During this time several other conversations were had between the court and defense counsel regarding completion of the record on issues in the case. After the jury was selected, the court allowed defense counsel to complete his record with regard to the Batson peremptory challenge issues. Appellant then moved for a mistrial based on the court’s tone of voice denoting displeasure toward defense counsel at the initial bench conference indicating to the jury that counsel had been disrespectful. Also, it was contended that the court’s remarks could be heard throughout the courtroom. Thereafter, without waiving his motion, counsel requested that the court specifically admonish the jury that remarks of the court to the defense attorney which they may have overheard were not to be held against defendant or defense counsel. The court allowed evidence on the matter in chambers and defense counsel called a bystander who testified that he could not hear all of the conversation in question but he heard the judge say “sit down”; however, he was unsure that the court was directing the remark to only one attorney. The defendant was also called and stated that he heard the remarks by the court.
In the interest of a fair trial, the court granted defense counsel’s request and asked for a show of hands from the jurors regarding any remarks they may have heard him address to defense counsel during either bench conference. Five jurors responded affirmatively and the court explained to them that defense counsel’s credibility was not in issue and inquired if they felt prejudiced toward defendant or counsel after overhearing the remark. The court generally explained his role and that of the attorneys in the voir dire process, as well as the role of the jurors in the trial. The court then questioned each juror who raised their hand individually in chambers. The jurors related to the judge what they heard and their impressions. Each generally related that they heard the remark by the court telling defense counsel to sit down but each stated he or she was not prejudiced by the remark and stated it would not affect their decision in the case. Defense counsel’s renewed motion for mistrial was denied at that time by the court. Thereafter, in open court, the judge clarified another remark overheard by one of the jurors and admonished the jury.
The granting of a mistrial is a drastic remedy and should be resorted to only when justice cannot be served by continuing with the trial and when no other method exists by which the prejudice may be removed. Avery v. State, 15 Ark. App. 134, 690 S.W.2d 732 (1985). The trial judge is vested with considerable discretion in acting on motions for mistrial because of his superior position to determine the possibility of prejudice. Drew v. State, 8 Ark. App. 120, 648 S.W.2d 836 (1983). The judge’s exercise of that discretion will not be reversed absent manifest abuse. Id.
Here, appellant contends that his right to a fair trial was prejudiced by the remarks of the trial court to defense counsel. We disagree. After issue was taken with the remarks, the court diligently worked with defense counsel in allowing him to complete his record on the Batson issue. Additionally, the court complied with all of defense counsel’s requests for admonitions and explanations, and held lengthy discussions to clarify the matter. The court granted appellant’s request to question jurors both collectively and individually regarding the remarks made at the bench conference. The court denied appellant’s motion after satisfying himself that no prejudice resulted from his remarks. We agree with appellant’s contention under West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973) that the trial judge has the ability to influence the jury, and remarks by the trial judge may tend to prejudice a litigant; therefore, the judge should preside with impartiality and be cautious in his language. However, we also note that trial judges by necessity are granted great power and discretion to preserve the order of their courtrooms and have at their command an arsenal of sanctions to see that the rules are followed, including admonishment of the attorney at the bench or before the jury. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916(1988). In any event, even if it could be argued that appellant suffered some prejudice from the trial judge’s remark, reversal is not warranted in light of the convincing evidence of guilt and the judge’s total compliance with the numerous requests of defense counsel, including admonitions to the jury. We will not reverse for errors which do not affect the essential fairness of a trial. Id. A defendant is entitled to a fair trial, not a perfect one. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). On the record before us, we cannot say the trial judge abused his discretion in denying appellant’s motion.
Lastly, we address appellant’s contention that the court erred in permitting the state to excuse black veniremen from the jury panel without requiring the state to show a sufficient racially neutral basis, thereby denying appellant equal protection of the law and a fair trial.
This court recently stated the pertinent law with regard to this issue in Hodges v. State, 27 Ark. App. 154, 767 S.W.2d 541 (1989) as follows:
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 Gf racial discrimination in jury 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.
Kidd v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988), relies on Batson and generally establishes that the trial court has a duty to determine whether the state has rebutted the defendant’s prima facie case of purposeful discrimination and that such a finding is a question of fact turning largely on evaluation of credibility.
In the present case, the jury that found appellant guilty was composed of eleven white people and one black person. However, because the state used peremptory challenges to excuse two of the three black veniremen from the jury and appellant is black, appellant contends his constitutional rights were violated. The parties disagree as to whether appellant made out a prima facie case of purposeful discrimination as required by Batson. We do not agree that appellant made a prima facie case of purposeful discrimination; however, for purposes of this appeal, we will address the issue as if a prima facie case were made.
In response to the defendant’s Batson challenge, the court asked for a response from the state. The state responded with the following explanation regarding the basis upon which it utilized its peremptory challenges:
In order to protect the record for the State, in all due respect to the Supreme Court opnion [sic], and the State contends that it should be reconsidered. Secondly, that the Defense has not shown any pattern and practice of disparate treatment by the State or this particular Prosecutor. Third, I would note that we did strike a white juror, also we have left a black juror on this panel. Also, in reference to things that are work product with the State, we do keep notes from past trials. And Ms. York sat on a trial before that resulted in a not guilty verdict. And I talked about this matter with co-counsel and in our discretion, we struck her because of that. As to Mr. Guy Phillips, he did state that he knew Mr. Muhammed. He thought he did from school. Neither party went any further with that. But I think that’s within my discretion there.
Here, the trial judge was obviously convinced that the state gave racially neutral explanations and that it did not intentionally use its peremptory challenges to keep black people from the jury. The court required the state to explain why it excluded the two black veniremen and its determination that the challenges were made for racially neutral reasons was a permissible finding under Batson. Further, the evidence reveals that there was a black person on the panel, the state utilized a peremptory challenge to exclude a white person from the jury, the state had strikes remaining, and there is no indication of discrimination in the record. Therefore, deferring to the trial court’s presence during voir dire and its superior position to judge the credibility of the prosecutor’s statements, we conclude that appellant’s argument is without merit.
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
Cecil Shoptaw and Lucille Shoptaw appeal a decree of the Pope County Chancery Court finding appellees, Robert Shoptaw and Darlene Shoptaw, husband and wife, to be the owners of a parcel of real property in Atkins, Arkansas. We disagree with appellants’ contention that the trial court’s decision is not supported by the evidence and affirm.
This action originated with appellee Robert Shoptaw’s complaint for divorce against appellee Darlene Shoptaw. Darlene filed an answer and a counterclaim for divorce and later filed a third party complaint against appellants, Robert’s parents. In her third-party complaint, Darlene alleged that appellants had conspired to defraud her of her interest in a house and lot in Atkins, Arkansas, and that the property was originally purchased by Robert and herself from Cecil’s father, W.L. Shoptaw, but that the deed actually transferred the property to Lucille. Darlene also alleged in her third-party complaint that this failure to transfer the property to Robert and herself was part of a scheme to defraud her of her interest in the property.
At trial, the evidence was in sharp conflict. Darlene testified that the property was purchased in 1969 from Robert’s grandfather, W.L. Shoptaw, for $1,000.00; that the property was put in Lucille’s name without Darlene’s knowledge; that Robert told her the property was put in Lucille’s name because a lawsuit had been filed against him; that she and Robert had built the house with money borrowed from Cecil, and that this money was fully repaid; that she and Robert paid taxes on the land to Cecil; and that there was never any question as to whom the house belonged.
Robert testified that he had not paid his grandfather for the property; that the property was purchased in 1970 because Robert and his family were living with Cecil and Lucille at the time and Cecil wanted them out of the house; that Cecil paid for the material to build the house; that W. L. Shoptaw, Robert and Cecil built the house; that he had never paid Cecil any money for taxes on the property; and that the arrangement with Lucille was that she provide a roof over the heads of Robert and his family but that the property actually belonged to Cecil and Lucille.
Cecil Shoptaw testified that Lucille had always paid taxes on the property; that Robert and Darlene did not pay him anything for the purchase of the land or the materials to build the house; and that the house was put in Lucille’s name simply because she is a better business person than he (Cecil).
Lucille Shoptaw testified that the property was put in her name because Cecil’s mother, Mae Shoptaw, did not want the land to get out of the family’s ownership; that Cecil, Robert and W. L. Shoptaw helped build the house but that Cecil paid for it; that she (Lucille) paid taxes on the property every year; and that there was never an agreement that anyone else would own the property. On cross-examination, Lucille admitted that Cecil took care of the business and that she did not consider herself to be a good business person.
Defendant’s Exhibit “A,” which is a copy of the tax record regarding the property, indicates that the house on the property belongs to Robert Shoptaw and that it is on land which is leased and listed in the name of Lucille Shoptaw.
On August 11, 1988, the chancellor entered a decree in which he denied both petitions for divorce and found that Robert and Darlene are the owners of the property as tenants by the entirety. On appeal, appellants argue that the trial court’s decision is not supported by the evidence.
It is the province of the trier of fact to determine the credibility of the witnesses and resolve any conflicting testimony. First State Bank of Crossett v. Phillips, 13 Ark. App. 157, 681 S.W.2d 408 (1984). Cases on appeal from the chancery court are tried de novo, but we do not reverse unless the findings of the chancellor are clearly erroneous or clearly against the preponderance of the evidence, giving due deference to the trial judge’s superior position to determine the credibility of the witnesses and the weight to be given to their testimony. Day v. Day, 20 Ark. App. 48, 723 S.W.2d 378 (1987).
In the case at bar, the chancellor obviously believed Darlene’s testimony that appellees provided the money for the purchase of the property and that the property actually belonged to appellees. We, therefore, defer to the chancellor’s opportunity to personally observe the witnesses and to evaluate their credibility and the weight to be given their testimony. Accordingly, we hold that the chancellor’s finding that Robert and Darlene are the owners of the property is not clearly erroneous.
Affirmed.
Mayfield, J., dissents. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Boone County Circuit Court. Appellant, Rondal Campbell, appeals his conviction of possession of a controlled substance with intent to deliver, a violation of Arkansas Code Annotated Section 5-64-401(a) (1987), and the sentence and fine imposed therefor. We affirm.
Appellant was charged by information filed February 19, 1988, with the offenses of possession of a controlled substance and theft by deceiving. The theft charge was severed, and appellant was tried by a jury and convicted on the drug count. Appellant was sentenced to fifteen years in the Arkansas Department of Correction and fined $35,000.00. From the judgment of conviction and the fine comes this appeal.
For reversal, appellant raises the following two points: (1) The initial search was improperly conducted; and (2) the court erred in refusing the request for scientific tests.
The evidence reveals that a warrant to search appellant’s home was issued upon an affidavit by Terry Bruce who was previously arrested for burglary of a residence. Mr. Bruce informed the police that he sold three of the items taken in the burglary to appellant for $40.00 cash and a bag of marijuana. Mr. Bruce also stated that appellant knew the items were stolen. Based upon this information, a warrant was issued to search appellant’s residence for one Montgomery Ward color television, one Emerson video cassette recorder, and one Sanyo microwave oven. On February 11, 1988, nine or ten officers searched appellant’s residence pursuant to the warrant. The VCR and the microwave oven were found soon after the search was initiated; however, the portable television was never found. The search of appellant’s two-story home with basement was conducted over a two to three hour period. In the search, the police seized items not listed on the warrant in the belief that they were illegal or stolen; however, none of the items was introduced into evidence against appellant except the marijuana contained in a safe found in the course of the search. The officers testified that while searching the basement, a gun safe was discovered from which the smell of marijuana emanated. The officers involved in the search of that area testified that they smelled the marijuana and the safe was seized and removed from appellant’s home. A warrant was obtained the following day to search the safe which resulted in the discovery of 21.8 pounds of marijuana packaged inside 64 Ziploc plastic bags contained in 11 grocery sacks. Subsequently, the police obtained a third warrant to search the contents of appellant’s lock box.
Appellant filed a motion to suppress all evidence taken in the three searches. The motion was based upon appellant’s contentions that the affidavits and search warrants were improper, that there was no probable cause for any of the searches, that the second and third searches were based upon information improperly obtained in the first, and that the time and scope of the search was improper. After a hearing on the motion, the court denied appellant’s motion to suppress and found that the searches were lawful.
Appellant challenges the propriety of the initial search and argues that Officer Rodney Combs’ participation in the search renders it illegal. At the suppression hearing, Officer Combs generally testified that he understood that a search, pursuant to warrant, was going to be made of appellant’s home and that he went along as an assistant in the belief that there might be some illegally possessed controlled substances in the home. His testimony further revealed that he was told that appellant kept drugs in a safe in his home, but he was not told where the safe was located. Officer Combs testified that his primary impression was that methamphetamines were in appellant’s home. As a narcotics officer, Combs related that he wanted to “get” appellant because during processing narcotics intelligence for the last five years, appellant’s name had been mentioned to him many times as being a dealer. Appellant challenges the scope of the search. He alleges it was a “full-blown search” rather than one limited to the items set out in the search warrant.
Appellant cites Arkansas Rule of Criminal Procedure 13.3(c) as the governing authority for conducting a search. Appellant asserts that under this rule, the scope of the search shall be such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein. We agree with appellant that Rule 13.3(c) governs the scope of a search and, therefore, we set out below the latter portion of that rule not relied upon by appellant.
Upon discovery of the persons or things so specified, the officer shall take possession or custody of them and search no further under authority of the warrant. If in the course of such search, the officer discovers things not specified in the warrant which he reasonably believes to be subject to seizure, he may also take possession of the things so discovered.
Arkansas Rule of Criminal Procedure 10.1(i) defines “reasonable belief’ to mean a belief based on reasonable cause to believe. “Reasonable cause to believe” means a basis for belief in the existence of fact which, in view of the circumstances under purposes for which the standard is applied, is substantial, objective and sufficient to satisfy applicable constitutional standards. Ark. R. Crim. P. 10.1(h).
Here, although numerous items not listed on the warrant were seized, only evidence of the marijuana was used against appellant. Because appellant can show no prejudice with regard to any items seized except the marijuana, we understand his argument to be that the trial court erred in denying his motion to suppress the 21.8 pounds of marijuana found in his safe.
When this court reviews a trial court’s ruling on a motion to suppress evidence, it makes an independent determination based upon the totality of the circumstances and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony, and the court of appeals defers to the superior position of the trial court on those questions. Phillips v. State, 25 Ark. App. 102, 752 S.W.2d 301 (1988).
In this case, the officers were legally inside appellant’s home pursuant to a search warrant. Under Rule 13.3(c), the officers were required to discontinue the search when the persons or things specified in the warrant were found. Therefore, although the search was lengthy, it was not unreasonable based upon the totality of the circumstances because the evidence reveals that the portable television listed on the warrant was never found. Additionally, the rule allows for further search outside the warrant if what transpires during the search gives the officers reasonable cause to believe that the items are subject to seizure.
Collectively, the undisputed testimony of Officers Jerry Smith, Jerry Jones, Rodney Combs, and Robert Hicks revealed that they were experienced officers trained to detect the odor of marijuana. Further, each officer testified that he smelled the odor of marijuana emanating from the safe found in the basement of appellant’s home during the course of the search. Their testimony further reveals that after the odor of marijuana was detected, the safe was seized for subsequent search. The court stated that Officer Combs had little regard for the fourth amendment and recognized that if Combs had been in charge of the search, there was a likelihood that the searches would be declared improper. However, there is no indication that the court did not believe the numerous officers’ testimony regarding smelling the marijuana emanating from the safe.
Deferring to the superior position of the trial court to assess the credibility of the officers’ testimony, we find that based on the totality of the circumstances, the court’s denial of appellant’s motion to suppress the marijuana was not clearly against the preponderance of the evidence. Furthermore, even if the trial court disbelieved the officers’ testimony that they smelled the marijuana, their actions would have been justified in any event since the safe was found while the officers were still conducting their search for the television and the television could have been concealed inside the safe. Therefore, the officers would have been justified in seizing an item that they suspected contained contraband. See Arkansas v. Sanders, 442 U.S. 753 (1979).
Secondly, appellant argues that the court erred in denying his pre-trial motion for scientific tests. Appellant contends that it was impossible for the police officers to have detected the smell of marijuana from within the safe as their testimony indicated. To affect the credibility and weight to be given the officers’ testimony, appellant sought approval from the court to obtain at least two other identical safes, put the marijuana back in one of the safes in the condition in which it was found, leave it there for any time suggested by the state, and let one or more of the officers identify the safe in which the marijuana was located. The test was to be supervised by an independent party.
With regard to this issue, the Arkansas Supreme Court stated in Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983):
It is well settled that when a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the accident. Hubbard v. McDonough Power Equipment, 83 Ill. App. 3d 272, 404 N.E.2d 311 (1980); Payne v. Greenberg Construction, 130 Ariz. 338, 636 P.2d 116 (1981). We applied this same rule in Dritt v. Morris, 235 Ark. 40, 357 S.W.2d 13 (1962) where we held that although it was not necessary that conditions of an experiment be identical to those existing at the time of the occurrence, there must be a substantial similarity, and the variation must not be likely to confuse and mislead the jury.
The trial judge has discretion in deciding evidentiary issues and his decision will not be reversed on appeal unless he has abused his discretion. Baumeister v. City of Fort Smith, 23 Ark. App. 102, 743 S.W.2d 396 (1988).
In denying appellant’s motion, the court generally stated that it found all the officers’ testimony credible regarding being able to detect the smell of marijuana. Additionally, discussion was had that the test proposed by appellant could not validly or substantially duplicate the condition as it existed in the basement of appellant’s home on the night of the search. We cannot say that the trial court’s failure to allow the proposed test was an abuse of discretion.
Affirmed.
Cooper, J., agrees.
Rogers, J., concurs. | [
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James R. Cooper, Judge.
This appeal arises from the revocation of the appellant’s probation. On July 27, 1987, the appellant pled guilty to theft of property and theft by receiving. He was placed on five years probation for each charge. One condition of the appellant’s probation was that he not violate any federal or state law. On November 13, 1987, the prosecuting attorney filed a petition to revoke appellant’s probation alleging that the appellant had committed robbery. After a hearing on January 25,1988, the appellant’s probation was revoked and he was sentenced to five years in the Arkansas Department of Correction on the theft of property and five years on theft by receiving. The trial court ordered the appellant to serve the sentences consecutively. The appellant argues on appeal that the evidence is insufficient to support the revocation; that the trial court’s sentence was excessive; and that the appellant’s rights to due process and equal protection were violated to the degree that it shocks the conscience and sense of justice.
To revoke a probated sentence the State must prove by a preponderance of the evidence that the defendant violated a condition of his probation. 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. Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 Smith v. State, 9 Ark. App. 55, 652 S.W.2d 641 (1983). A person commits robbery if, with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (formerly Ark. Stat. Ann. § 41-203 (Repl. 1977)). Our review of the record reveals the trial court’s decision is not clearly against the preponderance of the evidence.
At the revocation hearing, James Dial, a security officer for K-Mart, testified that on November 5,1987, he saw the appellant enter the K-Mart store, go to the menswear department, take a coat and tie and place the tie in the pocket of the coat. The appellant then walked to the service desk and asked the clerk to page Thomas Terry. According to Dial, the appellant then began walking towards the front door. Dial stopped him in the foyer and asked him to go to the back of the store to discuss the situation. The appellant began walking with Dial, but stopped and stated that he had to go tell his mother where he was. Dial indicated that he wanted to speak with the appellant first. Dial testified that at that point, the appellant broke away from him and swung his right arm, striking Dial with enough force to knock him down. The appellant then ran out the front door with the coat and tie, jumped into a car, and sped away. The police were called, and after the appellant was apprehended, he was identified in a lineup by Dial.
Collette Dockett, the clerk at the service desk, identified the appellant as the person who asked her to page Thomas Terry, and stated that she witnessed the incident. Her testimony was essentially the same as Dial’s, with the exception that she believed that the appellant was stopped inside the store rather than in the foyer.
The appellant, testifying in his own behalf, stated that he went to the front of the store with the jacket to ask a friend’s opinion about it, and when he could not find the friend, he asked that he be paged. He stated that he broke and ran when Dial apprehended him because he was afraid he would not be believed and would be sent to jail. However, the trial court was not required to believe the appellant’s testimony especially in light of the fact that the appellant was the one most interested in the outcome. Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983).
The appellant relies on the case of Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979), for the proposition that the appellant’s actions in resisting apprehension did not amount to the force necessary to be convicted of robbery. In Jarrett, the appellant was apprehended while attempting to steal meat from a store. In resisting apprehension, a fight broke out between the appellant and the security officer, and eventually the officer’s gun discharged. While in the present case, the altercation between the appellant and the security officer was not as violent as the one in Jarrett, we hold that striking the security officer with enough force to knock him to the ground constitutes physical force as defined in Ark. Code Ann. § 5-12-102 (1987). The Code defines physical force as any bodily impact, restraint, or confinement or the threat thereof.
The appellant’s last two arguments are concerned with the alleged severity of his sentences.
If a sentence is within the limits set by the legislature, it is legal. Parker v. State, 290 Ark. 94, 717 S.W.2d 197 (1986). Both of the appellant’s convictions for theft of property and theft by receiving were class C felonies, with the sentencing range being from three to ten years. Ark. Code Ann. § 5-4-401 (a)(4) (1987) (formerly Ark. Stat. Ann. § 41-901 (Supp. 1985)), and whether multiple sentences are to be served concurrently or consecutively is a matter within the sound discretion of the trial judge. Chancellor v. State, 14 Ark. App. 64, 684 S.W.2d 831 (1985). Furthermore, punishment authorized by a statute is never cruel or unusual or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Parker, supra; Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). In light of the fact that the appellant committed robbery less than four months after pleading guilty to theft of property and theft by receiving, we do not find the appellant’s sentences to be either excessive or shocking to the conscience.
Affirmed.
Corbin, C.J., and Rogers, J., agree. | [
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James R. Cooper, Judge.
In this criminal case, the appellant appeals from the revocation of his suspended sentence. On August 11,1986, the appellant pled guilty to sexual abuse in the first degree. The imposition of his five-year sentence was suspended. A petition to revoke the appellant’s suspended sentence was filed on November 19,1987, and it alleged that the appellant had committed the offense of sexual abuse in the first degree. At the hearing to revoke, the only evidence the State put on was the testimony of Larry Deason, the deputy sheriff who investigated the complaint. On appeal the appellant argues that his constitutional right to due process was violated because he was denied the ability to confront and cross-examine witnesses against him. We find the appellant’s argument to be meritorious and we reverse and remand.
Larry Deason testified that he came into contact with the four-year-old victim at the hospital. The child had been taken to the hospital at Deason’s request. Deason testified that the child told him the appellant had shown him some pictures of naked women in some magazines. According to Deason, the child then told him that the appellant had put the magazines into a white station wagon behind his property. Deason stated that the magazines were retrieved from the car indicated by the child and these magazines were entered into evidence. Deason then said that the child told him the appellant had taken down his pants, and grabbed him and “shook it till it hurt.”
Although in a revocation hearing a defendant is not entitled to the full panoply of rights that attend a criminal prosecution, Morrissey v. Brewer, 408 U.S. 471 (1972); United States v. Strada, 503 F.2d 1081 (8th Cir. 1974), he is entitled to due process. Because due process is a flexible concept, each particular situation must be examined in order to determine what procedures are constitutionally required. Id.
In Gagnon v. Scarpelli, 411 U.S. 36 (1973), the United States Supreme Court held that in a revocation proceeding the accused is entitled to “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)”. This holding has been codified at Ark. Code Ann. § 5-4-310 (c)(1) (1987) which states:
The defendant shall have the right to confront and cross-examine adverse witnesses unless the court specifically finds good cause for not allowing confrontation.
In a probation revocation proceeding the trial court must balance the probationer’s right to confront witnesses against grounds asserted by the State for not requiring confrontation. United States v. Bell, 785 F.2d 640 (8th Cir. 1986). First, the court should assess the explanation the State offers of why confrontation is undesirable or impractical. Id. at 643. A second factor that must be considered, and one that has been focused on by a number of courts, is the reliability of the evidence which the government offers in place of live testimony. Id. at 643.
As was the case of the hearsay testimony given by a probation officer in Bell, no finding was made by the trial court as to why confrontation is not desirable or is not practical. Therefore, we are unable to assess whether producing the witness would have presented significant difficulty. Although the State argued that the child was only four years old, the trial court did not attempt to make an inquiry as to whether the child would be competent to testify. The trial court may well have been justified in not requiring the child to testify, but on this record we are unable to make that determination.
Furthermore, the State has not shown any particular reliability as to Deason’s testimony. As noted in Bell, police reports are significantly less-reliable evidence of whether the allegations of criminal conduct they contain are true. Bell at 643. We think the same can be said for hearsay testimony given by a police officer that is uncorroborated and unsubstantiated. We do not mean to impugn Officer Deason’s integrity or to suggest that his testimony should be excluded or that it is insufficient to support a revocation; we are merely saying that in order to use this type of hearsay testimony the trial court must make a finding of good cause for not allowing confrontation and the State must put on some evidence that gives the statement the indicia of reliability.
We are not persuaded by the State’s argument. The right to confront witnesses applies only to witnesses who testify; it does not compel the State to produce every possible witness. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). In this case, Lockett had made a confession that was used against him in his revocation proceeding. There were several witnesses to the confession who testified, but Lockett’s argument was that he was denied his right to confront all of the witnesses to the confession. In stating that the right only applies to witnesses who testify, the Arkansas Supreme Court was distinguishing between a revocation hearing and a Denno hearing in which the State must show that the confession was given voluntarily.
Although we concur with the State’s assertion that the rules of evidence do not apply in revocation proceedings, Lockett, supra, we do not believe that this rule is meant to deny a probationer his due process right to confront witnesses. In the case cited to us by the State, the right to confrontation either was not argued on appeal, Felix v. State, 20 Ark. App. 44, 723 S. W.2d 839 (1987), or was not preserved by an appropriate objection to the trial court. Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983). In the case at bar the issue was properly preserved.
We reverse and remand for a further proceeding consistent with this opinion.
Reversed and remanded.
Corbin, C.J., and Jennings, J., agree. | [
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James R. Cooper, Judge.
The appellee in this workers’ compensation case was injured on January 24, 1984, within the scope of his employment as a Stocker for his employer, the appellant County Market. The employer sent him to a doctor, who referred him to Dr. Blackwell, an orthopedic surgeon, for treatment. On April 4, 1984, Dr. Blackwell recommended that the appellee return to work. The appellee returned to work on April 9, 1984, but shortly thereafter filed notice that he was changing physicians to a chiropractor, Dr. Barbaree. Dr. Barbaree treated the appellant and subsequently referred him to Dr. Saer, who performed an orthopedic examination. The appellants refused to pay for the chiropractic treatments or the referral to Dr. Saer, alleging that the treatment provided by Dr. Barbaree was unauthorized and unnecessary, and that the provision of Act 444 of 1983 (codified at Ark. Code Ann. § 11-9-514 (1987)) permitting change to a chiropractic physician without approval by the Commission was unconstitutional. The administrative law judge found Act 444 of 1983 to be constitutional. The Commission, on review, likewise found the Act to be constitutional, but remanded the case to the administrative law judge to determine whether the change of physicians and resulting treatment were reasonable and necessary. The appellants then brought an appeal to this Court challenging the Commission’s conclusion that Act 444 of 1983 is constitutional. In an opinion not designated for publication, we dismissed the appeal for lack of an appealable order. County Market v. Thornton, No. CA85-494 (May 28, 1986). On remand, the administrative law judge found the services of Dr. Barbaree and Dr. Saer to be causally related to the injury, reasonable, and necessary, and again held the Act to be constitutional. These findings and conclusions by the administrative law judge were adopted by the Commission in an opinion filed on May 9, 1988. From that decision, comes this appeal.
The appellants do not contend that the Commission erred in finding the controverted treatment to be causally related, reasonable, and necessary, but instead assert that Ark. Code Ann. §11-9-514 (1987) is unconstitutional as special and local legislation; that § 11-9-514 violates the equal protection clauses of the United States and Arkansas constitutions; and that § 11 -9-514 is void for vagueness. On cross-appeal, the appellee contends that the Commission erred in finding that he was not entitled to additional temporary total disability benefits.
We first address the threshold issue of the appellants’ standing to challenge the constitutionality of Ark. Code Ann. §11-9-514, which in pertinent part provides that:
(a)(1) If the employee selects a physician, the commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying a change.
(2) If the employer selects a physician, the claimant may petition the commission one (1) time only for a change of physician, and if the commission approves the change, with or without a hearing, the commission shall determine the second physician and shall not be bound by recommendations of claimant or respondent. However, if the change desired by the claimant is to a chiropractic physician, the claimant may make the change by giving advance notice to the employer or carrier.
(b) Treatment or services furnished or prescribed by any physician other than the ones selected according to the foregoing, except emergency treatment, shall be at the claimant’s expense.
(Emphasis supplied.) The statute in question draws a distinction between chiropractic physicians and other physicians, making it simpler for a claimant to effect a change of physicians when the desired change is to a chiropractor. Both before the Commission and on appeal, the appellants have contended that statute is invalid as an impermissible distinction between chiropractors and other physicians. We do not reach the constitutional issues, however, because the appellants — a retail store and insurance company — lack standing to raise such issues.
Constitutional rights, including the guarantee of due process, are personal rights and may not be asserted by a third party. Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973), and Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953). A very narrow exception exists where the issue presented to the court would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the rights of the other party would be vigorously asserted and, thus, adequately represented.
Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617, 619 (1981). The Cox Court agreed that the appellant grandparents had standing to raise the question of their grandchildren’s right to counsel in an adoption proceeding because the issue would not otherwise be susceptible to review, but held that they lacked standing to assert the parents’ right to counsel because that right could be asserted by the parents themselves, and would easily be reviewable had the parents joined in the appeal to claim such a right. Id., 619 S.W.2d at 619-20. Clearly, physicians other than chiropractors are capable of asserting that the “chiropractic preference” provision of § 11-9-514 violates their constitutional rights, either by joining in the present litigation or bringing an action in their own behalf, and the issue is therefore readily susceptible of judicial review outside the context of the case at bar.
Moreover, the appellants have failed to show they suffered an injury as a result of the alleged unconstitutionality of the Act, as required by Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981). The injury must be concrete, specific, real, and immediate rather than conjectural or hypothetical. Estes v. Walters, 269 Ark. 891, 601 S.W.2d 252 (Ark. App. 1980).
Although there are cases in which financial injury has been sufficient to give standing to assert the rights of another, those cases are distinguishable because the financial injuries they involved were immediate and directly tied to the challenged statute. In Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), standing was based on a finding that the child heirs-at-law had a direct monetary interest in the outcome of the lawsuit because the estate would be substantially reduced if the widow took against the will. On the basis of this threat of “immediate monetary loss,” the Stokes Court held that the children had standing to challenge the statute which permitted the widow to elect to take against the will. A similar threat based on the same election statute was the basis for standing in Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981). In Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), a husband was found to have standing to challenge the constitutionality of a statute authorizing awards of permanent maintenance where he was obligated to make such payments under a decree rendered pursuant to the challenged statute. In all of these cases, the causal relationship between the threatened financial loss and the challenged statute is clear, direct, and immediate. In Stokes and Huffman, there would be no threat of loss but for the election statute allowing widows to take against the will; in Sweeney, the threatened loss was an award based on the challenged statute.
In the case at bar, however, the award is not based on the challenged statute, which is procedural, but is instead based on Ark. Code Ann. § 11-9-508 (1987), which imposes liability for reasonably necessary medical expenses. The appellants do not contest the validity of this statute or the Commission’s findings that the expenses incurred were reasonable and necessary. Instead,, they argue that the rule requiring Commission approval of physician changes in § 11-9-514(a)(1) serves to filter out frivolous and non-meritorious claims and that, but for the statutory provision removing chiropractors from the rule, the Commission might have disapproved the change, in which case § 11-9-514(b) would have exempted the appellants from liability.
This theory of injury requires us to assume that Commission approval of the change of physician, an essentially discretionary act in this case under § 11 -9-514(a)(2), would have been withheld. This assumption would be purely speculative on our part because the Commission did not find the medical expenses arising from the physician change to be frivolous or non-meritorious, but instead found them to be reasonable and necessary, a finding not challenged on appeal. Under these circumstances, the appellants’ theory of injury is conjectural, hypothetical, and lacking in immediacy. We hold that the appellants lack standing in this case to challenge the exemption of chiropractors from the approval requirements governing change of physicians in § 11-9-514, and we therefore do not address the constitutional arguments they advance.
Finally, it is worth noting that the standing requirements limiting the assertion of constitutional rights by a third party are not merely intended to prevent unnecessary pronouncement on constitutional issues and premature interpretation of statutes: they also have the function of insuring that the issues on appeal will be concrete and sharply presented. Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955 (1984). The case at bar involves a statute drawing distinctions between physicians and chiropractors, and evidence regarding the differences in training and practice between these health-care professionals will be crucial in determining whether the statutory distinction is founded on a rational basis. However, no such evidence is of record because no health-care professionals are parties. These issues would be more focused and more capable of resolution if we were presented with evidence bearing on the statutory distinction, and our holding that the appellants lack standing to assert these constitutional issues is therefore • in keeping with the purpose and underlying reasoning behind the rules governing standing.
On cross-appeal, the appellee contends that the Commission erred in finding that he was not entitled to temporary total disability benefits for a period beginning on April 10,1984. He argues that there is no substantial evidence to support a finding that his healing period ended on April 10,1984, and that the denial of temporary total disability benefits subsequent to that date was thus erroneous. We disagree. Temporary total disability benefits do not, in all cases, correspond to the healing period. Arkansas State Highway and Transportation Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). In cases controlled by Ark. Code Ann. § 11-9-519 (1987) (formerly codified at Ark. Stat. Ann. § 81-1313 (Repl. 1976)), such as the case at bar, temporary total disability is not based on the claimant’s healing period, but is instead awarded where the claimant is incapacitated because of injury to earn the wages he was receiving at the time of the injury. Breshears, supra; see Ark. Code Ann. § 11-9-102(5) (1987). Therefore, the issue for us to determine is whether the evidence supports a finding that the appellee was not incapacitated, subsequent to April 10,1984, to earn the wages he was receiving when injured.
In workers’ compensation cases, we review the evidence in the light most favorable to the Commission’s findings and affirm if those findings are supported by substantial evidence. Basford v. Weyerhaeuser Co., 21 Ark. App. 223, 730 S.W.2d 916 (1987). We may reverse the Commission’s findings only when we are convinced that fair-minded people, with the same facts before them, could not have arrived at the conclusion reached by the Commission. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). Here there was evidence that Dr. Blackwell released the appellee to return to work on April 4, 1984. The appellee did return to work for a few days, but saw Dr. Blackwell again on April 11 and reported that he experienced increased pain after working. Dr. Blackwell again recommended that the appellee continue performing normal activities. Although the appellee continued to be treated for his injuries for some time, we note that none of the physicians’ reports conclude that the appellee suffered a temporary total disability after April 10, 1984. We think that the Commission could fairly conclude that, although the appellee had not completely healed after that date, he was nevertheless not incapacitated, and we hold that the Commission did not err in denying the claim for additional temporary total disability benefits.
Affirmed on appeal and cross-appeal.
Corbin, C.J., and Rogers, J., agree.
771 S.W.2d 793
JUNE 21, 1989 | [
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Melvin Mayfield, Judge.
Appellant, Ricky L. West, was convicted in a jury trial of rape and was sentenced to ten years in the Arkansas Department of Correction. He argues on appeal that the trial court erred in failing to direct a verdict in his favor because the prosecution failed to prove “forcible compulsion,” and that the court erred in refusing to allow him to question the victim about a prior misdemeanor conviction for hindering apprehension. We affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). A trial court should grant a directed verdict only when there is no evidence from which the jury, without resorting to surmise and conjecture, could have found the defendant guilty. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983). We must affirm the jury’s verdict if it is supported by substantial evidence. Robinson v. State, 291 Ark. 212, 723 S.W.2d 818 (1987). Substantial evidence has been defined as evidence of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other. Honea v. State, 15 Ark. App. 382, 695 S.W.2d 391 (1985). There must, however, be substantial evidence to support every element of the offense. Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980).
At trial, the victim testified she had been to the Central Baptist Hospital and was walking home when appellant stopped his car and asked where she was going. Thinking she recognized appellant, she began talking to him before realizing she did not know him. However, she accepted a ride from appellant and he took her home. She testified she asked appellant if he would drive her downtown and he agreed, so after going into her house for a minute, she then got into appellant’s car again, but instead of going directly downtown, they decided to have a beer and smoke a “joint.” They stopped at a liquor store, where appellant bought a 40-ounce beer and two cups, then drove out Arch Street Pike.
Under the Interstate 30 bridge over Arch, the appellant pulled off the road and the car got stuck. He got out, taking the beer with him, and sat down under the bridge where the victim joined him. After sharing the beer and a marijuana cigarette, appellant became aggressive. According to the victim, appellant held her by the arm, struck her on the shoulder several times with his fist, then raped her. She testified that she was very frightened and felt if she did not do what he told her, “He probably would have killed me. I don’t know. All kinds of things just ran through my head.” The victim described in some detail the activity in which she was forced to engage, including both oral and vaginal sex. She said she finally got loose, ran to the road and flagged down a car. The lady driving the car opened a door and the victim got into the car. Shortly thereafter, a sheriffs car stopped, and the officer was told that a rape had occurred. He then arrested the appellant who was seen running from under the bridge.
Appellant first argues that a directed verdict should have been granted because the prosecution failed to prove forcible compulsion. It is argued that the doctor who examined the victim testified he did not find any bruises on her or other evidence of trauma and that she appeared calm, although bewildered.
In Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973), the Arkansas Supreme Court stated:
As long ago as 1878, this court, in Bradley v. State, 32 Ark. 704, said:
It is often a matter of great difficulty in trials for rape, and of assaults with intent to commit rape, to determine whether the act complained of was done with or without force, and whether with or without the consent of the party complaining, and this arises from the peculiar character and surroundings of the offense charged.
Force is an essential element in the crime of rape. The term is general, and in its application the quantum of force is not to be taken into consideration, provided the act be consummated against the will of the female.
255 Ark. at 261-62 (emphasis in Spencer). More recently in Canard v. State, 278 Ark. 372, 646 S.W.2d 3 (1983), the court said:
Forcible compulsion is defined in Ark. Stat. Ann. § 41-1801(2) (Repl. 1977) [now codified as Ark. Code Ann. § 5- 14-101(2) (1987)]: “ ‘Forcible compulsion’ means physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.” In Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973) we stated that the quantum of force need not be considered as long as the act is committed against the will of the victim.
278 Ark. at 374.
It has repeatedly been held that a rape victim’s testimony satisfies the requirement that there be substantial evidence that the defendant committed the crime. Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987). Also, the victim’s testimony that she was forcibly compelled, against her will, to submit to the rapist constitutes substantial evidence on which to base a conviction. Taylor v. State, 296 Ark. 89, 752 S.W.2d 2 (1988); Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). It is the province of the jury to decide the credibility of the witnesses. Taylor; Lewis. We find ample evidence to support the jury’s verdict.
Appellant also argues that the court erred in refusing to grant his motion in limine and allow him to impeach the credibility of the victim by questioning her about her conviction for hindering apprehension. Ark. R. Evid. 609(a) provides: “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) . . . or (2) involved dishonesty or false statement, regardless of the punishment.” Appellant contends that hindering apprehension involves dishonesty or false statement.
Hindering apprehension, as defined in Ark. Code Ann. § 5-54-105(a) (1987) may be committed in six different ways. Only one involves giving false information. Appellant’s counsel stated to the court in chambers, prior to convening in the courtroom, that he had a “motion in limine,” and explained he had discovered that the victim had been convicted in Little Rock Municipal Court of a misdemeanor for hindering apprehension. Counsel told the court that the victim had helped someone evade arrest and he wanted to ask the victim about that. When the court inquired whether the victim had made a verbal or physical deceitful response to a question or whether she had physically hindered apprehension, counsel stated, “It’s not clear.” Although counsel did state to the court that he knew no way “I can get into that other than to just start asking,” we see nowhere in the record as abstracted where counsel called any witness to ask about the factual circumstances involved in the victim’s conviction. Moreover, we do not see any place in the record where the court refused to let counsel ask a witness questions about this conviction. During the conference in chambers, the court told counsel:
But just the fact that she was convicted of hindering apprehension in and of itself does not prove or I cannot take judicial notice of the fact that in and of itself it is a deceitful act because there are several ways that you can be guilty and be convicted of hindering apprehension .... So, the burden is on you and if you want to use it, get busy and show me that it’s relevant and show me that you can prove that she was deceitful and that it has something to do with her credibility. If you can’t do that, I’m not going to let you get it in.
Since there was no offer of proof as to the factual circumstances involved in the victim’s conviction for hindering apprehension, we are unable to determine whether the conviction would have been admissible. See Ark. R. Evid. 103(a)(2).
Appellant does argue in his brief that it would be a mistake to require evidence of how the offense was committed before admitting the conviction into evidence. 3 Weinstein & Berger, Weinstein’s Evidence § 609[04] at 609-84, 85 (1988) is cited for authority; however, that statement in Weinstein is made in face of the fact that Weinstein admits “a number of courts” have held otherwise. See, e.g., United States v. Livingston, 816 F.2d 184 (5th Cir. 1987), where the court said:
Harrison, however, did not explain the nature of Collins’ crime or whether it involved the element of intent to defraud. Thus, Harrison did not show that Collins’ conviction involved “dishonesty or false statement.”
816 F.2d at 190. See also State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981), where the court said:
The defendant, in his offer of proof, having failed to show that the petit larceny offense of which the witness had been convicted involved deceit or deception so as to be classified as “crimen falsi,” the District Court was correct in prohibiting its introduction into evidence.
303 N.W.2d at 752. We believe that under the Arkansas statute on hindering apprehension, providing for six different ways in which the offense can be committed with only one involving dishonesty or false statement, evidence of a misdemeanor conviction for that offense was not admissible in this case for impeachment purposes until it was shown that the conviction was based upon an act of dishonesty or false statement.
Affirmed.
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Per Curiam.
This case is an appeal from an order finding the appellant, an Arkansas attorney, in contempt of court while serving as an attorney in an otherwise unrelated case. The appellant filed this motion to transfer the case to the Arkansas Supreme Court, asserting that jurisdiction is properly in the Supreme Court under Ark. Sup. Ct. Rule 29(l)(h) because the case involves the discipline of an attorney-at-law. We agree. The Arkansas Supreme Court stated, in Rosenzweig v. Lofton, 295 Ark. 573, 751 S.W.2d 573 (1988), that contempt cases involving attorneys are matters within their jurisdiction under Rule 29(1)(h).
Motion granted. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Arkansas Workers’ Compensation Commission. Appellant, Hope Brick Works, appeals from an order of the Commission filed June 17,1988. Appellee, Freddie Welch, now deceased, cross-appeals from only the portion of the Commission’s opinion which concerns the legal and factual effect of the Occupational Safety and Health Administration (OSHA) reports. For reasons stated below, we dismiss.
Appellee filed a claim for benefits in 1984 alleging that he contracted silicosis during the twenty-two year scope and course of his employment with appellant. Appellant controverted the claim and on September 7,1984, the case proceeded to a hearing before the Administrative Law Judge. By an opinion dated November 29,1984, appellee’s claim was denied upon the finding that he failed to show by clear and convincing evidence that there was a causal connection between his silicosis and employment with appellant. In a letter to the Administrative Law Judge dated December 3,1984, appellee’s attorney requested that an OSHA report based upon inspections of appellant’s plant bearing on the issue of presence of silica dust be included in the record. The evidence indicated that the report was not available at the time the hearing was held on appellee’s claim.
On appeal, the Commission allowed the OSHA report into the record. Its order filed October 7, 1985, set aside and vacated the opinion of the Administrative Law Judge, and remanded the case to allow appellant the opportunity of cross-examination on the OSHA report. During the pendency of the appeal, appellee died in July of 1985.
On remand, the Administrative Law Judge accorded the OSHA report no probative value because of appellant’s inability to cross-examine the OSHA employee who conducted the inspection and prepared the report. In its second opinion filed January 7, 1987, the Administrative Law Judge again found that appellant failed to show a causal connection between his illness and death and his employment with appellant. A second appeal was brought before the Commission by the dependents of appellee. On June 17, 1988, the Commission agreed that the OSHA report was entitled to no weight because of appellant’s lack of an opportunity under applicable federal regulations to cross-examine the OSHA employee who prepared the inspection report. However, the Commission reversed the Administrative Law Judge and found there was clear and convincing evidence to support appellee’s decedents’ claim without consideration of the OSHA report. In concluding its opinion, the Commission held:
[T]he Opinion and Order of the Administrative Law Judge filed January 7,1987 is hereby reversed. This case is remanded to the Administrative Law Judge with directions to hold a hearing and to take evidence as to the benefits to which Welch’s dependents are entitled and to enter an order and award accordingly.
We do not address appellant’s allegations of error because we agree with appellee’s argument on cross-appeal that appellant’s appeal is premature. We conclude that the order of the Commission is not a final order and, therefore, is not appealable.
For an order to be appealable it must be a final order. Ark. R. App. P. 2. To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. Epperson v. Biggs, 17 Ark. App. 212, 705 S.W.2d 901 (1986). This rule applies to appeals from the Workers’ Compensation Commission. See, Samuels Hide & Metals Co. v. Griffin, 23 Ark. App. 3, 739 S.W.2d 698 (1987) and Cooper Indus. Prod. v. Meadows, 269 Ark. 966, 601 S.W.2d 275 (Ark. App. 1980).
It is the general rule that orders of remand are not final, appealable orders. Samuels, 23 Ark. App. at 4, 739 S.W.2d at 699; Lloyd v. Potlatch Corp., 19 Ark. App. 335, 721 S.W.2d 670 (1986). In Samuels, the court cited with approval 3 Larson, Workmen’s Compensation Law, § 80.11 (1983), which states:
There is in compensation procedure, just as in any other judicial procedure, such a thing as a completely unreviewable matter, as in the case of interlocutory decisions that are unreviewable for lack of finality, or incidental decisions that involve details committed to the absolute discretion of the lower tribunal. Ordinarily an order is reviewable only at the point where it awards or denies compensation. Accordingly, review has been denied of an order allowing claimant to amend his claim, denying a motion to receive further evidence, remanding the case for further evidence or findings, directing the claimant to be medically examined, continuing the trial of a claim while a tort action was pending, and granting claimant’s petition for interrogatories on the facts surrounding her husband’s death. (Footnotes omitted.)
Adhering to the court’s holding in Samuels, the Commission’s remand in the instant case is not a final determination but merely remands the case for an additional hearing to receive further evidence; therefore, it falls within the general rule as set out above and is not a final, appealable order.
Dismissed.
Cooper and Jennings, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Searcy County Chancery Court. Appellant, Vincent Ronald Vairo, appeals from the decree of divorce entered April 11,1988 granting custody of the parties’ minor child to appellee, Marbea L. Vairo. We dismiss.
The parties were married on June 25, 1983 in Arizona and continued to live in Arizona until they separated on October 13, 1987. Appellee and the parties’ minor child moved to Marshall, Arkansas, where several members of her family live. Appellant remained in Arizona. Sixty days after her arrival, appellee filed for divorce in Searcy County and sought, among other things, custody of the child. Appellant entered two special appearances to challenge the court’s jurisdiction to decide the custody issue. Following a hearing on the court’s jurisdiction, at which both parties testified, the court held that due to an emergency situation of actual and threatened abuse, jurisdiction was proper pursuant to the Uniform Child Custody Jurisdiction Act. The chancellor granted temporary custody in favor of appellee by order dated February 29, 1988. A decree of divorce was granted in favor of appellee on April 11,1988 which stated that custody of the child was to remain with appellee pending further orders of the court. Appellant appeals only from that portion of the divorce decree which awarded appellee custody of the child.
For reversal, appellant argues:
I.
THE HONORABLE ANDRE E. MCNEIL ERRED IN HIS FINDING THAT THE CHANCERY COURT OF SEARCY COUNTY HAD SUBJECT MATTER JURISDICTION OVER THE ISSUE RELATING TO CUSTODY OF THE PARTIES’ MINOR CHILD BASED UPON THE EMERGENCY PROVISIONS CONTAINED IN THE UNIFORM CHILD CUSTODY JURISDICTION ACT AND THE ARKANSAS ADOPTION THEREOF.
II.
THE DEFENDANT WAS DENIED PROCEDURAL DUE PROCESS BY THE ADMISSION OF EVIDENCE RELATING TO THE ISSUE OF EMERGENCY WHEN THERE HAD BEEN NO JURISDICTIONAL ALLEGATIONS OF THE EXISTENCE OF AN EMERGENCY SITUATION IN ANY OF THE APPELLEE’S PLEADINGS.
We find both issues to be moot.
The decree of divorce entered April 11, 1988, states in pertinent part:
3. Temporary Custody of the parties’ minor child, Evan Vairo, was awarded to [appellee] on February 4, 1988. Custody shall remain in [appellee] pending further orders of this Court.
Appellant filed his notice of appeal from the decree on May 11, 1988. The abstract reflects that on August 22,1988, the chancellor entered an order for the purpose of final disposition of all matters pertaining to custody and visitation of the minor child, which stated:
3. The custody of the minor child, Evan Vincent Vairo, continues with and shall finally vest in [appellee].
No notice of appeal was filed relevant to the August 22, 1988 order.
It is clear, from the series of orders by the chancellor, that permanent custody was not vested with appellee until the final order of August 22, 1988. Although temporary custody orders are in some instances appealable despite their lack of finality, see Sandlin v. Sandlin, 290 Ark. 366, 719 S.W.2d 433 (1986); Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984); Pope v. Pope, 239 Ark. 352, 389 S.W.2d 425 (1965), a temporary order is terminated upon entry of a subsequent permanent order. See Trammell v. Isom, 25 Ark. App. 76, 753 S.W.2d 281 (1988). Thus, appellant appeals from an order which was terminated and is no longer in effect. Because appellant did not appeal from the award of permanent custody, the permanent award will be unaffected by any decision rendered with regard to the temporary custody provision in the decree. It has long been established that the policy of this court is not to decide cases which, by reason of intervening facts, are of no practical application. See Kirk v. North Little Rock Special School Dist., 174 Ark. 943, 298 S.W. 212 (1927). It is the duty of the courts to decide actual controversies which can be carried into effect, but not to give opinions upon controversies or declare principles of law which cannot be executed or which cannot have any practical effect in settling the rights under the decree rendered. Id. The rights of the parties in the present litigation have been settled by the final award of custody from which neither party appealed, and a decision on the merits of the temporary award would have no practical effect on the rights of the parties.
Appeal dismissed.
Cracraft and Cooper, JJ., agree. | [
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James R. Cooper, Judge.
On July 4, 1986, the appellee Lance Jackson, the seven-year-old grandson of the appellee Walter Gentry, was injured when the gas-powered three-wheel vehicle Gentry had allowed him to ride went out of control, left Gentry’s property, and collided with a vehicle driven by Jerry Miller. Lance Jackson, by his parents, filed a negligence suit against Gentry. The appellant insurance company filed a declaratory judgment action against Gentry alleging that there was no coverage under Gentry’s homeowner’s policy under the facts of the case as related by Gentry in a deposition. The trial court found Gentry had been negligent, that Lance Jackson had been injured in the amount of $25,000.00 as a result of Gentry’s negligence, and that Jackson’s injuries were covered under Gentry’s homeowner’s policy. From that decision, comes this appeal.
For its only point for reversal, the appellant contends that the trial court erred in concluding that there was coverage under the terms of Gentry’s homeowner’s policy. The issue involved is one of contract rather than tort, and our jurisdiction is proper under Ark. R. Sup. Ct. 29(1).
The record shows that Gentry acquired a Tricub three-wheeled motor vehicle in 1985. Gentry completely rebuilt the vehicle, including the engine, frame, and hand brake. There was no throttle on the three-wheeler when Gentry acquired it, and the throttle mechanism in place when the accident occurred had been built by Gentry. Gentry stated in his deposition that the accident took place at a Fourth of July gathering held at his home. Gentry permitted his grandson to ride the three-wheeler after inserting a screw in the throttle mechanism to prevent the throttle from being opened completely. The grandson was injured when the mechanism failed, the throttle opened completely, and the boy was unable to control the three-wheeler, which left the property, shot into the air across a highway, and was hit by Miller’s vehicle. Gentry admitted responsibility for the accident, and stated that, in his opinion, it occurred because the governing mechanism he designed and installed was defective: once the screw came out and the throttle opened wide, the mechanism prevented the boy from closing the throttle to slow the vehicle. Finally, the record shows that Gentry’s grandson was not a member of Gentry’s household at the time of the accident.
The homeowner’s policy in question provides, in pertinent part, as follows:
SECTION II
PERSONAL LIABILITY PROTECTION
PERSONAL LIABILITY — COVERAGE E
Subject to the limits of liability shown on your declaration, we will pay all sums, except punitive damages, arising out of any loss which you become legally obligated to pay as damages because of bodily injury or property damage covered by this policy.
MEDICAL PAYMENTS TO OTHERS — COVERAGE F
We will pay for the fair expenses because of an accident, for necessary medical [services].
Each person who sustains bodily injury is entitled to this protection when that person is:
1. on an insured premises with your permission or
2. elsewhere, if the bodily injury:
(a) arises out of a condition in the residence premises or the adjoining ways;
(b) is caused by the activities of you or any employee in the course of employment by you or in your care;
The appellant does not contend that the above-quoted provisions of the homeowner’s policy preclude coverage of Gentry’s liability for his grandson’s injuries, but instead argues that the claim is excluded by the following language:
EXCLUSIONS
Unless special permission for coverage is granted by endorsement, certain types of losses are not covered by your policy. Under Personal Liability Coverage and Medical Payments to Others, we do not cover:
1. bodily injury or property damage arising out of the ownership, maintenance, or use of:
(a) aircraft:
(b) a motor vehicle operated by, rented or loaned to you. This exclusion does not apply to golf carts while used for golfing purposes, or motorized law (sic) mowers when used to service your residence premises;
(c) watercraft not located on the residence premises when owned by or rented to you, powered by one or more motors with more than 25 total horsepower.
The policy definition of motor vehicle includes a “three-wheeler, quadracycle, all-terrain cycle (ATC), all-terrain vehicle (ATV) and any similar vehicle.” The words “you” and “yours” refer to the named insured, his spouse, and dependent relatives if living in the same household.
The appellant asserts that the trial court misconstrued the exclusion, adopting a construction under which the exclusion would apply only if Gentry had himself been operating the three-wheeler when the accident occurred. The appellant further argues that the clear purpose of the provision is to exclude coverage for liabilities arising out of the ownership, maintenance, or use of a motor vehicle by the insured without restricting the exclusion to cases in which the motor vehicle was operated by the homeowner. We do not agree.
Exclusionary clauses in insurance policies are strictly interpreted, with all reasonable doubts resolved in favor of the insured. State Farm Mutual Automobile Ins. Co. v. Traylor, 263 Ark. 92, 562 S.W.2d 595 (1978). Here the policy excludes coverage for injuries arising out of the ownership, maintenance, or use of certain conveyances under specified circumstances. Coverage for injuries arising out of the operation, maintenance, or use of aircraft is excluded absolutely. Coverage for injuries arising out of the ownership, maintenance, or use of certain powered watercraft is excluded when the watercraft is owned by or rented to the insured, and the watercraft is not located on the residence premises. Coverage for injuries arising out of the operation, maintenance, or use of motor vehicles is excluded when that motor vehicle is operated by, rented, or loaned to the insured.
We think it significant that the drafter of the policy specifically mentioned ownership as a circumstance excluding coverage with respect to watercraft, but omitted ownership from the circumstances excluding coverage for motor vehicles. Although the three-wheeler involved in the accident falls under the definition of “motor vehicle” and is therefore in the category of conveyances covered by the exclusion, the circumstances under which the policy excludes coverage for injuries arising out of the ownership, maintenance, or use of a motor vehicle do not exist: the record clearly shows that the three-wheeler was not being “operated by, rented or loaned” to Gentry when the loss occurred. The cases cited by the appellant involve the policy language which differs from the terms of the policy in the present case and are not on point. See Aetna Casualty & Surety Co. v. American Manufacturers Mutual Ins. Co., 261 Ark. 326, 547 S.W.2d 757 (1977) (excluded coverage for ownership, maintenance, or use of recreational vehicle owned by the insured where the injury occurred off the residence premises; exclusion applied where accident, arising out of the use of the vehicle, occurred off-premises); O'Quinn v. Wedlock, 428 So.2d 873 (La. Ct. App. 1983) (excluded coverage where the vehicle was owned or operated by, rented, or loaned to the insured; exclusion applied where the vehicle was owned by the insured). We hold that the trial court correctly concluded that the loss in this case was covered by Gentry’s homeowner’s policy, and we affirm.
Affirmed.
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James R. Cooper, Judge.
This appeal follows the entry of a judgment for the appellee, State First National Bank of Texar-kana, against the appellant, Paul David Mollenhour, on a promissory note and two revolving credit notes. On appeal, the appellant argues that the chancellor erred in holding him individually liable on the two revolving credit notes. We affirm.
In 1983, M. J. Rogers and the appellant agreed to go into business together. Rogers apparently sought Mollenhour’s involvement in the business, Arkansas Parts and Equipment Company, Inc., so that Mollenhour could obtain financing for the business from the appellee. A substantial portion of the financing provided by the appellee to Arkansas Parts and Equipment was evidenced by the two revolving credit notes dated April 1,1986, in the amount of $33,000.00, and February 19,1986, in the amount of $150,000.00. The April 1, 1986, note was signed as follows:
ARKANSAS PARTS & EQUIPMENT CO., INC.
by: /s / Mike Rogers_
Mike Rogers, President
by: /s/ Mike Rogers_
Mike Rogers, Individually
by: /s/ Dave Mollenhour V. Pres._
Dave Mollenhour, Vice President & Secretary
/s/ Dave Mollenhour V. Pres._
Dave Mollenhour, Individually
The signature on the February 19, 1986, note appeared as follows:
/s/ Mike Rogers_
Mike Rogers, Individually
/s/ Dave Mollenhour V. Pres. Dave Mollenhour, Individually
ARKANSAS PARTS & EQUIPMENT CO., INC.
by: /s/ Mike Rogers Pres. President Mike Rogers,
by: /s/ Dave Mollenhour V. Pres. Dave Mollenhour, Vice President & Secretary
Both notes stated that the signing parties were obligated “jointly and severally” to the appellee. The notes were not fully repaid, and the appellee sued Arkansas Parts and Equipment, Rogers, and the appellant for the balance due, alleging that Rogers and the appellant cosigned and guaranteed the notes. The appellee sought judgment against Arkansas Parts and Equipment, Rogers, and the appellant, jointly and severally. In his original answer, the appellant admitted that he had cosigned and guaranteed the notes, but he affirmatively stated that he was fraudulently induced to execute the instruments by the appellee. The appellant did not deny that he was individually liable on the notes, nor did he assert that he had signed the notes only in a representative capacity as vice president of Arkansas Parts and Equipment. The appellant filed a counterclaim alleging that he was fraudulently induced into executing the notes. He later filed an amended answer, but again he did not raise the issue of individual capacity.
At trial, the appellant attempted to raise the issue of lack of individual capacity in the execution of the notes through the testimony of the appellee’s witness, John Dalby, assistant vice president and commercial loan officer of the appellee, and through the testimony of Mike Rogers and Nell Nassoy. Each time the appellant sought to introduce evidence through these witnesses regarding his intent to sign the notes only in a representative capacity, the appellee objected, and the chancellor sustained the objection. The appellant made a proffer of evidence through the testimony of Mike Rogers. The substance of the proffer was that, the appellant informed him, prior to the execution of the notes, that he did not intend to sign them in an individual capacity. The appellant also made a proffer of evidence through Nell Nassoy to the same effect.
The appellant, over the appellee’s objection, testified in a proffer of evidence that he only signed the notes in his capacity as vice president and that he did not intend to sign them in an individual capacity. The chancellor, however, continued to rule that the evidence regarding the appellant’s capacity in executing the notes was inadmissible. The chancellor later reversed his ruling with respect to the appellant’s testimony regarding his signatures, and allowed the presentation of further testimony on the issue. At that time, the appellee offered into evidence a portion of the appellant’s deposition, dated May 2,1987, in which he was asked whether it was his understanding that he was personally responsible for each of the loans. He responded that he “assumed they would probably be.” The appellee also introduced the bank’s loan renewal documents maintained by the bank regarding the loans, which indicated that the notes were signed by the appellant in his corporate and individual capacities.
On June 2, 1988, the chancellor entered judgment for the appellee against Arkansas Parts and Equipment and the appellant for $33,000.00 and $150,000.00, plus attorney’s fees and costs, and denied the appellant’s counterclaim. In the judgment, the chancellor found that the appellant signed the notes in his corporate and individual capacities and that his designations of his corporate capacity, which he placed after his signatures on the individual signature lines, were merely descriptive designations or terms, because he had already signed in his corporate capacity on the appropriate lines. The chancellor also found that the appellant, having failed to affirmatively deny his individual liability by pleadings, conduct, or testimony, was estopped from denying his individual liability. From those decisions comes this appeal.
For his first point on appeal, the appellant argues that the chancellor erred in holding him individually liable on the two revolving credit notes; for his second point, he argues that the chancellor erred in holding that he failed to raise the issue of lack of individual liability. Because the view we take of the case makes it unnecessary to reach the second point, and because we do not find the chancellor’s decision on the first point to be clearly erroneous or against the preponderance of the evidence, we affirm the judgment.
As to the second point raised on appeal, it is true that, until trial, the appellant did not raise his defense of lack of individual capacity in the execution of the notes. As noted earlier, the chancellor first denied the appellant’s attempts to present evidence on this issue at several'points throughout the trial. Later in the trial, however, the chancellor reversed his ruling excluding the proffered testimony and allowed the appellant to introduce additional evidence on this issue. It does not appear that any of the appellant’s proffered evidence was excluded from the record. It is, therefore, arguable that the chancellor considered, at least at trial, that the pleadings had been amended to conform to the proof on this issue. See Mercer v. Nelson, 293 Ark. 430, 738 S.W.2d 417 (1987); Miller v. Jasinski, 17 Ark. App. 131, 705 S.W.2d 442 (1986); Hegg v. Dickens, 270 Ark. 641, 606 S.W.2d 106 (Ark. App. 1980); Ark. R. Civ.P. 15(b). The confusion arises from the holding in the judgment that the appellant was estopped from denying his individual liability. We cannot tell whether the chancellor, after trial, reversed his ruling concerning the originally excluded evidence and did not consider it, or whether, even if he considered it, he found, on all the evidence, that the appellant was individually liable. Accordingly, we have reviewed the record de novo, and we have considered all of the evidence proffered by the appellant, including that originally excluded by the chancellor. Even when all of the appellant’s proffered evidence is considered, however, we hold that the chancellor’s decision on the merits was correct.
Turning to the merits, the appellant argues that the chancellor erred-in holding him individually liable on the notes because, he asserts, under Ark. Code Ann. Section 4-3-403 (1987), adding the term “V. Pres.” after his signature on the line for his individual signature on the notes, established that he only signed the notes in his representative capacity. We do not agree.
In Cleveland Chemical Co. of Arkansas, Inc. v. Keller, 19 Ark. App. 7, 716 S.W.2d 204 (1986), an action was brought against the appellee based on a guaranty signed by the appellee to secure a corporate line of credit. The lower court dismissed the appellant’s complaint, finding that the appellee had signed the guaranty only in a corporate capacity and not individually. There, Keller, the primary shareholder and president of Keller Chemical Company, signed a guaranty as follows: “KELLER CHEM. CO., BY: M. G. Keller.” 19 Ark. App. at 8, 716 S.W.2d at 205. We reversed on the basis of Ark. Stat. Ann. Section 85-3-403 (2) (b) (Add. 1961) because there was no evidence, other than Keller’s own statement, that he intended to sign the guaranty in a representative capacity. We stated:
Additionally, the definition of a guaranty would indicate appellee signed in an individual capacity. A guaranty is a collateral undertaking by one person to answer for payment of a debt of another and the undertaking of the principal debtor is independent of the promise of the guarantor. First American National Bank v. Coffey-Clifton, Inc., 276 Ark. 250, 633 S.W.2d 704 (1982). If the appellee had signed in a corporate capacity, appellant would have had the guaranty of the corporation to pay its own debt for which it was already obligated; if such were the case, there would have been no need for the guaranty, nor would it have met the standard definition of a guaranty.
19 Ark. App. at 8-9, 716 S.W.2d at 205.
In the case at bar, the facts are distinguishable from those in Keller, and they are not specifically addressed by the code section. Section 4-3-403(2)(b) does not control a situation where a debtor’s clearly representative signature is supplemented by an additional signature designated “individually” by the lender but onto which the debtor has added his corporate title. Here, the appellant signed his name after the name of the company, in his corporate capacity, and he also signed on an additional line designated for his individual signature. On the line designated for his individual signature, he added the title “V. Pres.” The appellant argues that, because under Ark. Code Ann. Section 4-3-118 (1987), handwritten terms control typewritten and printed terms, the word “individually” is not controlling. We disagree.
As in Keller, it is different to understand why the appellee would have loaned the money to Arkansas Parts and Equipment only after the appellant was brought into the business as an additional investor if it was not intended that he be individually liable for the notes. Further, if it was not intended that the appellant be personally liable, there was no reason for the appellee bank to require his signature in two places on each note, once in a corporate capacity and once in an individual capacity.
We believe the case Bank of Corning v. Nimnich, 122 Ark. 316, 183 S.W. 756 (1916), is particularly helpful. In that case, the appellant bank sued the appellees, Joseph Nimnich and Earnest Hartwig, directors of Farmers Union Gin & Warehouse Company, for the balance due on a promissory note which provided:
$5,000.00 Corning, Ark., Sept. 27th, 1911.
Six months after date for value received, we promise to pay to the order of the Bank of Corning, Corning, Ark., Five Thousand Dollars.
With interest at ten per cent per annum from date until paid. The makers and endorsers of this note hereby severally waive presentment and payment, notice of nonpayment, protest, and consent that time of payment may be extended without notice thereof.
Payable at Bank of Corning, Corning, Ark.
Farmers Union Gin & W.H. Co.,
Per Henry Brown, Sec. & Treas.
Henry Brown, Director.
W. T. Griffith, Director.
Earnest Hartwig, Director.
Porter Larkins, Director.
G. A. Hoffman, Director.
J. T. Montgomery, Director.
H. D. Chappell, Director.
Joseph Nimnich, Director.
122 Ark. at 317-18,183S.W. at 757. The appellees Nimnich and Hartwig answered and denied that they had executed the note individually, and the chancellor agreed. The supreme court reversed on appeal and found that:
(1) . . . [TJhe rule is established by what appears to us to be the weight of authority that where the name of the corporation itself is signed and followed by the names of officers, giving their official title, indicating that they are signing in their official capacity for the purpose of attesting the signature of the corporation, the instrument constitutes the obligation of the corporation alone, [citations omitted]
(2) Instruments of that kind are held to be the promise of the corporation and the signatures of the officers to be official and not individual. The authorities are, as before stated, not harmonious on this subject, and appellant cites on its brief, cases which hold to the contrary. The real question in the present case is whether or not the established rule is applicable to the instrument involved in this controversy. An inspection of the instrument, as it appears in the records, shows that the name of the corpoidtion was attested by Henry Brown, the secretary and treasurer. The additional signature of Henry Brown follows his signature as secretary and treasurer, and after it is written the word “director,” and all of the other names are followed by the same word. We do not think that it can be said from the face of the instrument that those who signed as directors did so for the purpose of officially attesting the signature of the corporation, which had already been attested by the secretary and treasurer. The form of the signatures evidences an intention to add something more than a mere certification of the corporate name, and the addition of the word “director” is merely descriptive of the person who signed.
122 Ark. 318-19, 183 S.W.2d at 757.
In the case at bar, based on the wording and structure of the notes, we agree with the chancellor in his finding that the appellant’s additions of the handwritten title “V. Pres.” after his signatures on the lines designated “individually” were merely descriptive.
In addition to the language of the notes, the other evidence introduced at trial supports the chancellor’s finding that the appellant signed his name to both notes in corporate- and individual capacities. See United Fasteners, Inc. v. First State Bank, 286 Ark. 202, 691 S.W.2d 126 (1985). First, it is clear from the evidence presented that the bank would not loan the money to Arkansas Parts and Equipment or to M. J. Rogers without the appellant’s individual signature. Second, after the company defaulted on the notes, the appellant and Rogers unsuccessfully offered to pay out the indebtedness individually. Third, the bank’s renewal documents clearly indicate that the loans were made on the basis of the appellant’s individual and corporate signatures. Finally, in his deposition, the appellant admitted that he had considered himself individually liable on the notes. Because the chancellor’s finding, that the appellant signed the notes in both his individual and corporate capacities, is neither clearly erroneous nor against the preponderance of the evidence, we affirm the judgment.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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Melvin Mayfield, Judge.
This appeal was taken pursuant to Arkansas Rule of Criminal Procedure 24.3(b) which provides:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
On November 19, 1987, the appellants, Leroy and Judy Poage, entered pleas of guilty to manufacturing a controlled substance. Leroy Poage was sentenced to ten (10) years in the Arkansas Department of Correction, with five (5) years suspended, and ordered to pay a fine of $15,000.00 plus court costs. Judy Poage was sentenced to six (6) years in the Arkansas Department of Correction but the sentence was suspended and she was placed on supervised probation; she was also ordered to pay a fine of $8,000.00 plus court costs. On appeal, they argue that the trial court erred in refusing to suppress the evidence discovered at their home as a result of an alleged illegal search.
In March of 1987, four officers of the Baxter County Sheriffs Office and three civilians went to the home of the appellants to levy an execution on their property to satisfy an Oklahoma judgment against them in the amount of $320,511.62 and a Conway County, Arkansas, judgment against them for $78,583.30. At the suppression hearing, there was testimony that the reason so many men were involved was the anticipation that an extensive amount of property would have to be seized to satisfy the large judgments. Specific property listed to be searched for and seized, if found, included a three-office portable building, microwave oven, trash compactor, bathroom fixtures and mirrors, air conditioner compressor, dump truck, Lincoln Continental, assorted trailers, tanks, business band radio equipment, tractors, trucks, truck parts, machinery, 4200 feet of 6-inch water pipe mounted on trailer, assorted nipples, valves, tees and ells, four fifth-wheel plates for trucks, 16 trailer house rims, a set of car ramps, a 3-inch Bowie gear pump and a Cummins turbo for a 290 engine.
Major McPherson, a criminal investigator for the Baxter County Sheriffs Office, testified that upon their arrival at the Poage residence located near Mountain Home, Arkansas, Leroy Poage came outside and Deputy Sheriff Chuck Lovette read the execution documents to him. Poage immediately pointed out one of the dump trucks and the portable building they were looking for, and Judy Poage told one of the men that the Lincoln was behind the house. McPherson, Deputy Sheriff Phil Frame and another man went into the house while others went to the barn. Deputy Frame was searching the master bedroom for small items that would mount quickly in value. Under the bed he found two jewelry boxes, and when he opened them, he discovered marijuana. In the meantime, the men who had gone to search the barn found marijuana growing in a room in the barn. Major McPherson was made aware of these discoveries and he immediately ordered that the search cease. McPherson, with some other men, then went to Mountain Home where they obtained a search warrant from the municipal judge. McPherson, Officer Phil Frame, and a man named James Wylia signed the affidavit for the search warrant.
James Wylia, who was employed by the Arkansas judgment holder and was from Conway County, testified that he was aware that the appellant, Leroy Poage, had previously been suspected of being involved with drugs in Conway and Perry Counties but admitted he did not know whether Poage had been convicted of a drug violation. Wylia also admitted that he had exaggerated Poage’s previous drug record in the affidavit for the search warrant. McPherson testified that the men had discussed Poage’s Conway County drug activities before proceeding with the execution. However, he was emphatic that the only reason for going to the appellant’s house that day was to serve the executions.
The appellants concede that the officers were properly serving a judicial execution when they discovered the contraband. They contend, however, that the officers had no right to conduct a general, comprehensive search of their house and property in an effort to find items of value. They say there can be no argument that they had an “expectation of privacy” in the boxes under the bed and in a closed room in the barn. See Katz v. United States, 389 U.S. 347 (1967). The question, as they frame it, is “whether the service of a judicial execution by the Sheriff overcomes the expectation of privacy protected by the Fourth Amendment.” Appellants contend it does not, arguing that allowing an execution to provide the basis for a general search “opens the door” for authorities to use executions as excuses for “pretextual” searches which are illegal.
It does not appear that appellant’s argument has been considered in Arkansas. However, in United States v. Dadurian, 450 F.2d 22 (1st Cir. 1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1329, 31 L.Ed.2d 586 (1972), the argument was rejected. In that case, the court stated that when a law officer “inadvertently discover [s] evidence while acting in his capacity as an officer of the court in a civil action, he cannot be said to have conducted an illegal search and seizure.” 450 F.2d 24. This view seems in harmony with that expressed by the Arkansas Supreme Court in Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980):
It is not every search and seizure that is forbidden by the Fourth Amendment, but only the unreasonable ones. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Hosto v. Brickell, 265 Ark. 147, 577 S.W.2d 401 (1979); Milburn v. State, 260 Ark. 553, 542 S.W.2d 490 (1976). The central inquiry is the reasonableness, in all the circumstances, of the particular governmental invasion of a citizen’s personal security and that inquiry becomes a dual one — whether the officer’s action was justified at the inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, supra,
269 Ark. at 420.
In the instant case, the officers had the legal right to be in the house and the barn searching for anything of value to satisfy the judgment of over $400,000.00. At the first discovery of contraband, the search was halted and a search warrant was obtained. In determining whether the officers’ conduct was reasonable, we view the totality of the circumstances and make an independent determination of the validity of the search and seizure; however, we do not reverse the trial court’s finding unless it is clearly against the preponderance of the evidence. Webb v. State, supra. We find that the trial court did not err in refusing to suppress the evidence seized under the search warrant in this case.
Affirmed.
Cracraft and Rogers, JJ., agree. | [
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George K. Cracraft, Judge.
Joe Guinn appeals from his conviction of conspiring to commit multiple acts in violation of Ark. Code Ann. § 5-3-401 (1987) (formerly Ark. Stat. Ann. § 41- 707 (Repl. 1977)). See also Ark. Code Ann. § 5-3-403 (1987) (formerly Ark. Stat. Ann. § 41-709 (Repl. 1977)). We find sufficient merit in one point raised to warrant remand for further proceedings in the trial court.
The evidence presented at trial established that appellant offered to burn a dwelling belonging to Doyle Hall to enable him to collect insurance proceeds. Hall informed the authorities, and an undercover agent, posing as a relative of Hall’s, thereafter met with appellant to discuss the plan. An agreement was entered into under which the appellant would burn Hall’s buildings for the purpose of collecting insurance proceeds and would purchase from the undercover officer ten pounds of marijuana for resale at other places. Overt acts in furtherance of the agreement were thereafter committed.
MOTIONS TO DISMISS
Appellant first contends that the trial court erred in denying his motion to dismiss the conspiracy charge because the only alleged co-conspirators were police officers and their agents. This argument was presented and decided adversely to appellant on the first appeal of this case. See Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987). Our decision on the issue became the law of the case, and we will not address it again. Hickerson v. State, 286 Ark. 450, 693 S.W.2d 58 (1985); Mode v. State, 234 Ark. 46, 350 S.W.2d 675 (1961).
Appellant next contends that the trial court erred in denying his motion to dismiss because he had been charged by a felony information filed by the prosecuting attorney rather than by an indictment returned by a grand jury, and because no probable cause determination was ever made prior to the issuance of a warrant for appellant’s arrest. We find no error.
Appellant makes three separate arguments in support of his contention that his prosecution could not go forward in the absence of a grand jury indictment. Appellant’s first and third arguments are that the grand jury indictment requirement of the fifth amendment to the United States Constitution should be made applicable to the states by virtue of the due process clause of the fourteenth amendment, and that, even apart from the fifth amendment, allowing one to be charged by a prosecutor’s information without the safeguard of a grand jury indictment is “unconstitutional.” We could not hold in favor of either argument even if we were so inclined. The United States Supreme Court has specifically held otherwise with respect to both arguments. See Woon v. Oregon, 229 U.S. 586 (1913); Bolln v. Nebraska, 176 U.S. 83 (1900); Hurtado v. California, 110 U.S. 616 (1884). The Arkansas Supreme Court has also repeatedly upheld the constitutionality of this State’s practice of charging people by information. See Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980); McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979); Moore v. State, 229 Ark. 335, 315 S.W.2d 907 (1958) cert. denied 358 U.S. 946 (1959). Although a state court may interpret its own constitutional prohibitions and requirements more restrictively against the prosecution than its federal counterparts have under federal constitutional standards, it cannot impress a greater restriction as a matter of federal constitutional law when the Supreme Court of the United States has specifically refrained from doing so. Oregon v. Haas, 420 U.S. 714 (1975). See also Kidd v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988). Nor is it within our province to overrule decisions of the Arkansas Supreme Court.
Appellant’s second argument is that amendment twenty-one to the Arkansas Constitution, which specifically allows criminal charges to be brought by a prosecutor’s information, is unconstitutional under the Arkansas Constitution. We cannot agree. Appellant makes no contention that amendment twenty-one was not validly adopted, and, absent a showing of invalid adoption, a state constitutional amendment is the state constitution with regard to the subject matter it addresses.
Nor do we find merit in appellant’s contention that the issuance of a warrant for his arrest without a neutral magistrate’s determination of probable cause required that his prosecution be dismissed. In the first place, a law enforcement officer may arrest a person without a warrant if he has reasonable cause to believe that person had committed a felony. Ark. R. Crim. P. 4.1 (a). However, even were we to assume for the sake of this argument that appellant’s arrest was not based upon reasonable cause, that would not mandate dismissal of the charge against him. The appellant cannot challenge his own presence at trial or claim immunity to prosecution simply because his appearance was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or a defense to a valid conviction. United States v. Crews, 445 U.S. 463 (1980); Van Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987). In Crews, 445 U.S. at 474, the Supreme Court stated:
The exclusionary principle of Wongsun and Silverthorne Lumber Company delimits that proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. Respondent is not himself a suppressible “fruit,” and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by police misconduct.
Here, appellant does not contend that any evidence should have been suppressed because obtained as a result of an illegal arrest but only that the charge against him should have been dismissed.
SUFFICIENCY OF MIRANDA WARNINGS
Appellant next contends that the trial court erred in admitting evidence of incriminating statements he made to police because the Miranda warnings given him were constitutionally insufficient on their face. The rights forms used in this case included the following:
Q. Do you understand that you have the right to talk to a lawyer for advice before we ask you any questions and have him/her with you during your questioning?
A. Yes.
Q. Do you understand that if you cannot afford a lawyer, one will be appointed for you by the court before any questioning, if you so desire?
A. Yes.
(Emphasis added.) Relying on Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987), appellant contends that the above warning failed to inform him that an attorney would be appointed for him “free of charge” if he could not afford to hire one, and that that failure required that any statements he made be suppressed. We construe Mayfield to hold to the contrary.
In Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), the court did hold that Miranda warnings must inform an accused that, if he cannot afford one, ah attorney will be appointed at absolutely no cost to him and that warnings that do not so inform the accused are constitutionally defective. However, in subsequent cases culminating in Mayfield, the court stated that Trotter went too far. Mayfield holds that, while an accused person must be informed of his right to appointed counsel if he cannot afford to hire one, there are no magic words which must be used. There, the court concluded:
While we are not holding that specific words are required, we suggest that it would be very simple for the warning to say that the person being warned has the right to have an attorney present and that he may either retain one himself or, if he cannot afford one, have one appointed by the court.
Mayfield, 293 Ark. at 223, 736 S.W.2d at 15 (emphasis added). The warnings given here fully conform to that requirement.
VOLUNTARINESS OF APPELLANT’S CONFESSION
Appellant next contends that the trial court should not have admitted evidence of an inculpatory statement appellant made to police officers following his arrest because, despite appellant’s request, the trial court never held a Denno hearing to determine the voluntariness of that statement. See Jackson v. Denno, 378 U.S. 368 (1964); Ark. Code Ann. § 16-89-107(b)(1) (1987) (formerly Ark. Stat. Ann. § 43-2105 (Repl. 1977)). That statute provides that,- when a defendant raises an issue of fact concerning the voluntariness of a confession, the trial court is to conduct a hearing and determine that issue outside the presence of the jury.
On the day of trial, appellant orally moved to suppress the statement in question and requested a Denno hearing. The trial court refused to conduct a hearing at that time because the jury was already in the courtroom. As good cause was shown for the motion’s lack of timeliness, see Ark. R. Crim. P. 16.2, it was decided that a hearing might be had at some other point in the trial. Over appellant’s objection, evidence of his incriminating statement was subsequently introduced. The State concedes that no Denno hearing was ever held and that the trial court never ruled on whether the statement was voluntary.
We agree with appellant that this was error. However, this failure on the part of the trial court does not in and of itself entitle appellant to a new trial. Instead, the case should be remanded to the trial court with instructions to hold a hearing and rule on the issue of the voluntariness of appellant’s confession. Jackson v. Denno, supra; Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980). A new trial should be ordered only if the trial court finds the confession to have been involuntary. Id.
TESTIMONY OF DOYLE HALL
Over appellant’s objection, Doyle Hall was permitted to testify that in January of 1985, while residing in Tyler, Texas, he was approached on several occasions by appellant with regard to purchasing property owned by Hall in Van Burén County. He testified that appellant offered to buy the property and guaranteed payment within one year, indicating that he would obtain the funds with which to make payment by burning its structures. Hall informed him that he would have to think about it. Hall testified that the appellant then made the counter-proposal that he would burn the property for Hall for a price to be agreed upon. Hall stated that he would have to think about it. Appellant contends on appeal that the trial court erred in admitting this testimony because he was surprised that the prosecutor intended to use it, because the trial court had granted a motion in limine prohibiting its introduction prior to his first trial, and because it was hearsay, irrelevant, and highly prejudicial. We find no error in the trial court’s ruling.
At appellant’s second trial, he pled the affirmative defense of entrapment, which is said to occur when a law enforcement officer, or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause a normally law-abiding person to commit the offense. Ark. Code Ann. § 5-2-209 (1987) (formerly Ark. Stat. Ann. § 41-209 (Repl. 1977)). The conduct of a law enforcement officer or his agent which merely affords the accused an opportunity to do that which he is otherwise ready, willing, and able to do is not entrapment. Id.-, Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985). A defendant’s conduct and predisposition, both prior to and concurrent with the transactions forming the basis of the charges, are still material and relevant on the question of whether the government agents merely afforded the opportunity to commit the offense with which he is charged. Spears v. State, supra; Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982). Here, the evidence of the events that took place in Texas was relevant to the issue of appellant’s predisposition to commit arson and tended to show that the idea of the conspiracy was born in the mind of the appellant. We cannot conclude that the trial court abused its discretion in finding the evidence relevant and its probative value not substantially outweighed by any danger of unfair prejudice.
Appellant next argues that the evidence was inadmissible hearsay under Rule 801(a)(2)(v) of the Arkansas Rules of Evidence because the statements attributed to him were made before the alleged conspiracy began. We do not address this argument because appellant did not object to Hall’s testimony on hearsay grounds at trial and cannot raise the issue for the first time on appeal. Johnson v. State, 289 Ark. 589, 715 S.W.2d 441 (1986).
Nor can we agree with appellant that the trial court was required to exclude the evidence of appellant’s conversations with Hall because the prosecutor had previously indicated to appellant’s counsel that he would not seek to introduce it. Apparently, in light of entrapment becoming a defense, the prosecutor later decided to use the evidence and informed defense counsel of that fact on the day before trial. Appellant argues that he might have been able to secure a witness to rebut that appellant ever made such statements had he known earlier that they were to be used. Appellant has cited no authority and made no convincing argument as to why the court was required to exclude this evidence. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Counsel for the appellant concedes that he does not believe the prosecutor intentionally misled him. He is apparently arguing that the prosecutor committed a discovery violation. We cannot agree. Rule 17.1 of the Arkansas Rules of Criminal Procedure requires that, upon request, the prosecuting attorney must furnish defense counsel with a list of the witnesses he intends to call and the substance of any oral statements made by the defendant. Here, it is not denied that long before trial counsel was made aware of the content of these statements and that Hall would be called to testify.
However, even were we to assume that a discovery violation had been committed, we could not conclude that the trial court abused its discretion in refusing to exclude the evidence. Under Ark. R. Crim. P. 19.7, a number of options in addition to exclusion of evidence are open to the trial court, including granting a continuance. Here, it would seem that a continuance could have cured any prejudice appellant may have suffered. Appellant did not request a continuance in order to give himself time to locate the witness he thought could rebut Hall’s evidence but asked only that the evidence be excluded. He also conceded that he was unsure whether the witness he had in mind could rebut Hall’s testimony.
Appellant finally argues that the trial court had entered an order prohibiting introduction of this evidence at his first trial and that he had a right to rely on that ruling in his second trial. We cannot agree. Again, appellant has failed to make any convincing argument or cite any authority for his proposition. We note, however, that the evidence in question was not inadmissible per se\ it was excluded at the first trial because it was found to be irrelevant. Pleading and submitting to the jury at the second trial the affirmative defense of entrapment, however, made the evidence relevant. Furthermore, it is clear that:
[U]pon appellate reversal of a conviction the Government is. not limited at a new trial to evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence.
Pickens v. State, 292 Ark. 362, 370, 730 S.W.2d 230, 235 (1987) (quoting United States v. Shotwell Mfg. Co., 355 U.S. 233, 243 (1957)).
CROSS-EXAMINATION OF DOYLE HALL
Appellant next contends that the trial court erred in limiting the scope of his cross-examination of Doyle Hall. Appellant alleged that the jury in his prior trial had recommended that Doyle Hall be indicted. On cross-examination of Hall in the present case, the court would not permit appellant’s counsel to ask Hall if he was aware that “a previous jury recommended that he be indicted.” Appellant argues that he should have been permitted to ask the question in order to establish bias or a motive for Hall’s giving testimony favorable to the State. We find no prejudicial error in the court’s refusal to allow the question.
Evidence of grants of immunity, promises of leniency, and other consideration given to a witness to secure his testimony are proper subjects for cross-examination. See Giglio v. United States, 405 U.S. 150.(1972). Here, appellant was permitted to explore these issues before the jury and was permitted to ask the witness whether he had been granted immunity from prosecution in exchange for his testimony, whether he had had any discussions with the prosecutor regarding immunity, and whether he understood that he could be charged with conspiracy to commit arson. It is not, however, within the province of the members of a petit jury in one case to bring criminal charges against a witness testifying before them, and their private opinions as to Hall’s criminality would not be relevant to the issue of bias. We cannot conclude that the trial court abused its discretion in refusing to allow the witness to be asked if he was aware of such a recommendation or, if that ruling was error, that it was anything more than harmless in light of what appellant was allowed to ask the witness and the other evidence in this case. See Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).
JURY INSTRUCTIONS
Over appellant’s objection, the trial court gave Arkansas Model Criminal Instruction 108, which told the jury that the filing of an information by the State is not evidence and is not to be considered by the jury in “determining the guilt or innocence of the [appellant].” The trial court refused to give appellant’s modified instruction, which would have told the jury that it was not evidence and was not to be considered “in determining whether the State has proven the guilt of [appellant] beyond a reasonable doubt.” Appellant contends that the instruction given left the jury with the erroneous impression that it was required to find him either guilty or innocent and placed an unconstitutional burden on him to prove his innocence. We find no merit in this contention.
The court first charged the jury that the State must prove beyond a reasonable doubt each and every element of the offense charged, and “[o]n the other hand, the defendant is not required to prove his innocence.” The court then instructed the jury that the filing of the information was not to be considered in the determination of guilt or innocence. This instruction was followed by one stating that the appellant was presumed to be innocent, and that the presumption of innocence protects him throughout the trial and should continue to prevail in the jurors’ minds until they were convinced of his guilt beyond a reasonable doubt. The court also properly defined “reasonable doubt.” When all of the instructions are considered, we cannot conclude that there is any merit in the contention that the instruction objected to created an improper impression in the minds of these jurors.
CONCLUSION
As appellant has failed to demonstrate any error other than with respect to the required hearing and finding as to the voluntariness of his confession, the cause is remanded to the trial court for further proceedings on that issue. A new trial is to be ordered only if the trial court finds the confession to have been involuntary. Jackson v. Denno, 378 U.S. 368 (1964); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980).
Mayfield and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
In this appeal from the Garland County Chancery Court the appellant, William Wensel, contends that the chancellor erred in finding that the deed and note he gave to the appellees did not create an equitable mortgage. The appellant also argues that the chancellor erred in finding that the thirty-day grace period contained in the note was not applicable and in finding that he had waived his right to foreclosure. We affirm.
The appellant was building a 6500 square foot home on Lake Hamilton in Hot Springs, Arkansas. He had spent approximately $78,000.00 for the lot and building materials. When the suppliers began enforcing their materialmen’s liens, the appellant borrowed $100,000.00 from the appellees. The appellant executed a note and mortgage in return for the loan, and, when the appellant defaulted, the appellees filed a foreclosure action.
On December 11, 1987, five days before the scheduled judicial sale of the house, the appellant delivered to the appellees a warranty deed and an instrument dated December 11, 1987, titled “Note Secured by Real Estate” in the amount of $121,862.94. The note described the property contained in the first mortgage and in the deed to the appellees and provided that the entire amount was due on January 31, 1988. The appellant did not pay the note.
On February 1, 1988, the appellees took possession of the house and changed the locks. The appellant filed a complaint requesting access to the house and that ownership be returned to him. After a hearing, the chancellor found that the deed and note did not constitute an equitable mortgage. The appellant argues, in his first point for reversal, that this finding was erroneous.
The presumption arises that a deed is what it purports to be and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing. Ehrlich v. Castleberry, 227 Ark. 426, 299 S.W.2d 38 (1957). If there is a debt existing and the conveyance was intended by the parties to secure its payment, equity will regard and treat an absolute deed as a mortgage. Newport v. Chandler, 206 Ark. 974, 178 S.W.2d 240 (1944). The party claiming that the deed was a mortgage has the burden of showing that the deed was a mortgage, that there was an indebtedness, and that the deed was intended to secure the debt. Id. Since the equity upon which the court acts arises from the real character of the transaction, any evidence, written or oral, tending to show the real nature of the transaction is admissible. Newport, 206 Ark. at 979.
The appellee, Bill Flatte, testified that the first mortgage was to have been paid off in October 1987, and that the appellant made a payment on the interest but did not reduce the principal. He also stated that in September 1987 he had to pay the insurance, which the appellant was required to pay. According to Flatte, he and J. Sky Tapp, his attorney, were unable to contact the appellant until October 15,1987, when they had a three-way telephone conference. The appellant requested an extension until December 15,1987, but, because the appellant was in default and had not made any payments on the principal amount of the note, the appellee was reluctant to delay foreclosure. Flatte stated that he informed the appellant that he was going to foreclose.
On December 11, 1987, Flatte again talked with the appellant and told the appellant that he would extend the note until January 31,1988, if he would sign a deed as they had discussed in October 1987. Flatte stated that he told the appellant he wanted him to deed the property to him, and that if the total debt was paid by January 31, 1988, he would deed the house back to the appellant. The deed and a new note were executed.
At trial, the appellant testified that when he delivered the deed in question to the appellees’ attorney, J. Sky Tapp, it was his belief that Tapp was to hold the deed until he had paid the debt and then return the deed to him. He stated that, during the term of the note, he intended to arrange a loan with a bank to pay off the note. However, he was not able to obtain financing by January 31, 1988.
Tapp testified that two deeds were drafted. One deed conveyed the property to the appellees and listed the appellant as the grantor, and the other deed conveyed the property back to the appellant. He stated that he kept the deed conveying the house from the appellant to the appellees until they retrieved it from his office and filed it on January 12, 1988, and that the only deed being held in escrow by him with the one which conveyed the property back to the appellant. Tapp stated that the purpose of the deed being held in escrow was to convey the house back to the appellant if he fulfilled the condition that the indebtedness be paid in its entirety by January 31, 1988.
A letter written by Tapp was introduced into evidence which stated that its purpose was to conform the oral agreement reached by the parties on October 15, 1987. The letter comported with what Tapp testified to with regard to the intention of the parties. Tapp testified that he sent a copy of the letter to the appellant and requested that the appellant sign it and return it to him. The appellant testified that he received a copy of the letter, but that he did not sign it because, according to him, the letter did not reflect the agreement of the parties.
We are not convinced that the chancellor was clearly erroneous in finding that the appellant had not shown by clear, unequivocal evidence that the deed was intended to be a mortgage. In the original transaction, the appellant signed a mortgage and he therefore had notice that the second transaction differed since there was no new mortgage. Furthermore, the appellees testified that they did not intend for the deed to operate as a mortgage, but that the house was to be deeded to them outright, with the condition that it would be deeded back to the appellant if the debt was paid. It is unquestionably within the power of two individuals, capable of acting for themselves, to make a contract for the purchase of land, with a reservation to the vendor of a right to repurchase the property at a fixed price and at a specific time. If the transaction is security for a debt, then it is a mortgage; otherwise it is a sale. Monaghan v. Davis, 16 Ark. App. 258, 700 S.W.2d 375 (1985); Newport v. Chandler, supra. There is evidence from which the court could find that the parties intended for the deed in question to constitute a sale with the purchase price being the outstanding indebtedness (including costs of the foreclosure), and that this sale was conditioned upon the appellant having the right to repurchase the house for the same amount by January 31, 1988.
Furthermore, the appellant is not entitled to have the deed declared an equitable mortgage, since “he who seeks equity must do equity.” Byars v. Byars, 270 Ark. 874, 606 S.W.2d 595 (Ark. App. 1980). The appellant made only one payment on the original loan, he procrastinated until the last possible minute to arrange an extension on the original loan, he received several extensions over the life of the loan, and he admitted that he had not attempted to arrange alternate financing until after December 11, 1987. A person asserting an equitable mortgage must have paid the accompanying debt or tender such payment. Byars, supra. No payment has been made or tendered.
The appellant’s second argument concerns a term in the note which, he alleges, gave him a thirty day grace period to pay the debt. The note states:
In the event of default in the payments for a period of thirty days . . . holder of the indebtedness shall have the option to declare the entire indebtedness to be immediately due and payable. . . .
The chancellor found that this provision was intended to apply in a situation where there are periodic payments, and because this note was to be paid entirely in one payment, the thirty day provision did not apply. It is the appellant’s contention that the chancellor erred in this finding.
We concur with the chancellor’s finding. The paragraph immediately preceding the thirty day provision clearly states that the entire amount of the note is due on January 31, 198 8. The thirty day provision provides that, if the debtor remains in default for more than thirty days, then the total amount of the payments can be accelerated and the entire debt called due. Where clauses in a contract are irreconcilable with a former clause and repugnant to the general purpose and intent of the the whole instrument, it is not error for the chancellor to disregard the irreconcilable clause. Mitchell v. Mitchell, 236 S.W.2d 812, 368 S.W.2d 284 (1963).
It is clear that the intent of the whole instrument was to grant the appellant additional time, until January 31, 1988, to pay the entire indebtedness and allow him to recover the property. Interpreting the note to provide for an additional thirty days, with the appellees’ remedy being acceleration of a debt that was already past due in its entirety, is unreasonable and repugnant to the purpose of the instrument.
Lastly, the appellant argues that the chancellor erred in ruling that the appellant had waived his right to foreclosure because waiver is an affirmative defense which the appellees did not plead in accordance with Ark. R. Civ. P. 8(c). It is not necessary to address this argument in light of our holding that the transaction was not an equitable mortgage.
Affirmed.
Mayfield and Jennings, JJ., agree. | [
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Tom Glaze, Judge.
In this chancery court case, appellants filed suit seeking a mandatory injunction requiring appellees to remove a brick house which they mistakenly constructed on appellants’ land. In the alternative, appellants requested confirmation of title to the house or damages for the unauthorized taking of 1.86 acres upon which the structure and improvements were built plus damages to appellants’ remaining acreage. Appellees counterclaimed seeking damages under the Arkansas Betterment Statutes and under the theory of unjust enrichment. The trial court rendered alternative judgments: First, appellants were given the option to pay $43,180 to appellee for the house; second, upon appellants’ failure to exercise such option, appellants were entitled to a deed to the subject 1.86 acres upon the prompt payment of $1,875 for the land taken plus $1,650 to the remaining acreage. Furthermore, appellants were awarded $1,000 damages to a roadway on their property, $1,000 sentimental and/or distress damages and $1,000 attorneys’ fees and costs. Appellants appeal, contending the court’s holding is contrary to the law. Appellees cross-appeal, challenging the validity of the roadway and sentimental damages awarded by the court. The trial judge, applying equitable principles, attempted to resolve the parties’ unfortunate predicament, but in doing so, we believe he erred.
The relevant facts are virtually undisputed. Appellants live in California, and the appellees reside in Chicago, but both sets of parties own adjoininglandin Arkansas. In 1975, the appellees employed a surveyor, Charles Webb, to survey their acreage. Webb completed a survey in November, 1975, but that survey was inaccurate because it was based on misinformation given him by appellees’ cousin, a Mr. Johnson. As a result of this erroneous survey, appellees’ south line of their land extended onto 1.86 acres owned by appellants. Webb discovered this error, and in December, 1975, he correctly resurveyed the land. However, one of his original stakes fixed during the first erroneous survey remained in place, and that stake apparently was the point of reference from which appellees mistakenly constructed a brick veneer house on appellants’ land. Upon learning of the construction of appellees’ house, appellants brought this action.
At the conclusion of the trial, the trial judge took the case under submission and subsequently rendered a memorandum opinion setting forth his findings of fact and conclusions of law. In reaching his decision, the trial judge found that appellants were not negligent in looking after their property or in failing to warn appellees against starting — or stopping — the construction of the house. Also, he found that, while they may have been careless to some extent, appellees built the house in good faith. The judge also determined that the appellees’ house could not be moved without completely destroying it. Finally, the chancellor determined the Arkansas Betterment Statutes were not in issue because the appellees concededly lacked color of title in the property on which they built their house. See Ark. Stat. Ann. §§ 34-1423 et seq. (Repl. 1962).
In their arguments on appeal, appellees recognize the established line of cases wherein Arkansas courts have issued or directed mandatory injunctions requiring the removal of improvements placed upon the land of another. Dendy v. Greater Damascus Baptist Church, 247 Ark. 6, 444 S.W.2d 71 (1969) (a small church was mistakenly built upon adjoining landowner’s unfenced, wooded acre); McLendon v. Johnston, 243 Ark. 218, 419 S.W.2d 309 (1967) (a newly constructed house encroached a distance of 3.4 feet onto the adjoining landowner’s property); Beaty v. Gordon, 236 Ark. 50, 364 S.W.2d 311 (1963) (the eaves of a newly built house extended over the property line of the adjoining landowner); Fulks v. Fredeman, 224 Ark. 413, 273 S.W.2d 528 (1954) (a brick wall leaned over adjoining landowner’s property line); and Leffingwell v. Glendenning, 218 Ark. 767, 238 S.W.2d 942 (1951) (a stone and cement wall encroached upon a twenty-six foot strip owned by the adjoining landowner). Appellees argue these prior cases are factually distinguishable from the situation presented herein because the removal of appellees’ house would destroy it; they contend the application of the rule requiring the removal of the house as an encroachment is too harsh and inequitable. In support of appellees’ position, they cite two Michigan Supreme Court cases, Hardy v. Burroughs, 251 Mich. 578, 232 N.W. 200 (1930), and Rzeppa v. Seymour, 230 Mich. 439, 203 N.W. 62 (1925). The simple answer to appellees’ argument is that the rule applied by the Arkansas Supreme Court in such encroachment matters differs from the more lenient rule adopted by the Michigan court.
Under the strict common-law rule, a permanent improvement placed upon another’s land by mistake became a part of the realty and could not be removed. In 1921, our Legislature attempted to temper the harshness of the common-law rule by providing that the person who erroneously places an improvement on another’s land shall have twelve months’ time from the date of the discovery of the erroneous placing to remove it. See Ark. Stat. Ann. § 50-103 (Repl. 1971). Interestingly, this 1921 enactment, § 50-103, was not cited in any cases until Dendy v. Greater Damascus Baptist Church, supra, in 1969 and again in Hughey v. Bennett, 264 Ark. 64, 568 S.W.2d 46 (1978). The Supreme Court decided Shick v. Dearmore, 246 Ark. 1209, 442 S.W.2d 198 (1969), shortly before its decision in Dendy, but apparently § 50-103 was not brought to the Court’s attention. The Court, in Shick, to ease the harshness of the common-law rule, adopted the slightly more equitable principle of allowing the removal of the improvements in an equitable proceeding whenever that course can be followed without substantial damage to the land. See also Justice Fogleman’s concurring opinion in Dendy v. Greater Damascus Baptist Church, supra. Shick was a well driller who mistakenly drilled a water well on Dearmore’s property. Although the Supreme Court indicated Shick should be allowed to remove his well’s casingandrestore the land to its original condition, it remanded the case for further proceedings to determine if the removal could be accomplished without damage to the land that might fairly be considered substantial when compared to the pecuniary loss that Shick would otherwise sustain. Id. at 1214, 442 S.W.2d at 200-01.
About two months after Shick, the Supreme Court decided Dendy wherein the Court, finding the church building erroneously built on Dendy’s land should be removed, remanded the case for the chancellor to consider the court’s decision in Shick and the possible application of § 50-103. The Court further instructed the chancellor to fix the amount of any damages that Dendy may have suffered by the removal of timber from his land.
We believe the Court’s instructions to the chancellor in Dendy are applicable here, and accordingly, we remand this cause with directions to vacate the trial court’s decree for further proceedings consistent with this opinion. On remand, the trial court, when considering the damage issues, may also reconsider its award to appellants for damages to their roadway.
Reversed and remanded.
Mayfield, C.J., and Cooper, J., agree.
Chief Justice Harris and Justice Fogleman dissented, stating that the majority decision overruled a long-standing rule of property, i.e., that permanent fixtures become part of the realty and belong to the owner thereof.
In his concurring opinion in Dendy, Justice Fogleman suggested the second paragraph of § 50-103 is unconstitutional under Article 2, § 13 of the Arkansas Constitution. | [
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James R. Cooper, Judge.
In this workers’ compensation case, the appellant was denied any compensation on a finding that he had knowingly concealed a prior injury from the appellee employer. From that decision, comes this appeal.
The appellant sought compensation for a back injury which he allegedly suffered on August 25, 1982. He also sought a change of physicians. The appellant had suffered a work-related back injury in 1978, and, in August, 1980, he received a substantial settlement by way of a joint petition. Approximately eight months after that settlement, he sought employment with the appellee employer, and in the course of his application, he answered “no” to the following question:
Do you have any physical, mental or medical impairment or disability that would limit your job performance for the position for which you are applying?
The appellees claimed that the appellant was not entitled to either a change of physicians or temporary total disability for two reasons, first, because he had not sustained an accidental injury arising out of and in the course of his employment, and second, because of his false statement which would bar recovery under the doctrine announced in Shippers Transpsort of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). In that case, the Arkansas Supreme Court stated:
The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and wilfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.
The administrative law judge found that the appellant had not deliberately made a false representation concerning his physical condition, and that there was insufficient evidence on which he could find that there was a causal connection between the two injuries. He found that the appellant had suffered a compensable injury, ordered a change of physicians, but made no finding concerning temporary total disability. The Commission reversed the administrative law judge’s finding concerning the Shippers Transport doctrine, thus denying any recovery. The Commission never reached or considered the question of whether the appellant had sustained a work-related injury.
We agree with the Commission’s finding that the appellant’s statement on his job application constituted a deliberate false representation as to his physical condition. The work for which the appellant was applying involved substantial lifting, and, from a review of the appellant’s testimony, it is clear that he knew he had a disability at the time the joint petition was granted, and that he concealed his pre-existing disability on the new application. Although the appellant testified that he believed that he had recovered from his earlier disability, the Commission was not bound to accept his testimony. May v. Crompton-Arkansas Mills, Inc., 253 Ark. 1080, 490 S.W.2d 794 (1973). We find substantial evidence to support the Commission’s finding that the appellant knowingly misrepresented his physical condition.
As to the second requirement of Shippers Transport, reliance by the employer on the false statement, the appellant concedes that, if there was a false statement on the application, the employer relied on it, so we have no need to discuss this point.
However, we disagree with the Commission’s decision regarding a cau&al connection between the 1978 and 1982 injuries. The Commission found that “claimant’s symptoms from his alleged work related injury in the case at bar were completely consistent with this earlier injury. Under the circumstances we think a causal connection is clearly inferrable.’’ No witness, medical or otherwise, testified that there was any connection whatever between the two injuries. We do not find any substantial evidence to support the Commission’s finding on this point, and therefore we reverse and remand for the purpose of developing this critical factual question of causal connection between the 1978 and 1982 injuries. See, Mosley v. Heim Bros. Packing Co., 271 Ark. 722, 610 S.W.2d 276 (Ark. App. 1981); Foust v. Ward School Bus Mfg. Co., 271 Ark. 411, 609 S.W.2d 88 (Ark. App. 1980); Shock v. Wheeling Pipe Line, Inc., 270 Ark. 57, 603 S.W.2d 446 (Ark. App. 1980).
Of course, since the Commission did not reach the issue of whether the appellant suffered an injury which arose out of and in the course of his employment, that question is still open in the event the causal connection between the 1978 and 1982 injuries is not established by a preponderance of the evidence.
Reversed and remanded for further proceedings consistent with this opinion.
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James R. Cooper, Judge.
In this criminal case, the appellant was convicted by a jury of theft of property and was sentenced to four years and six months in the Arkansas Department of Correction. From that conviction, comes this appeal.
On December 24, 1982, the appellant allegedly broke into and entered Mengarelli’s store in Turrell, Arkansas, with the intent to commit theft. The appellant allegedly stole cigarettes valued at more than $100.00 with the intent to deprive the owner of them. After taking the cigarettes from Mengarelli’s, the appellant allegedly transported them to Ricky Jackson’s cafe in Turrell, then known as the Arcade, and attempted to sell them.
At the appellant’s trial, a witness for the State testified that an unidentified person standing next to the appellant said that the appellant had cigarettes for sale, and that the appellant did not deny or otherwise acknowledge the statement. Counsel for the appellant objected to this testimony on the ground it was inadmissible hearsay. The trial judge overruled the objection, holding that it was a tacit admission by the appellant due to the fact that he failed to deny that he had the cigarettes for sale when the statement was mde. Such a failure to deny serves as an adoption of the statement in certain circumstances.
The Uniform Rules of Evidence, Rule 801 (d) (2) (ii), Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides that a statement is not hearsay if the statement is offered against a party and is a statement in which that party has manifested a belief in its truth. Wilson v. City of Pine Bluff, 6 Ark. App. 286, 641 S.W.2d 33 (1982). This principle has been recognized in Arkansas prior to the adoption of the Uniform Rules of Evidence. See Burford v. State, 242 Ark. 377, 413 S.W.2d 670 (1967); Moore v. State, 151 Ark. 515, 236 S.W. 846 (1922). Before hearsay evidence of an implied admission can fit within this exception, it must have been shown that the accused heard the statement, that he understood it, and that he failed to deny it. Kagen and Tibbett v. State, 232 Ark. 189, 334 S.W.2d 865 (1960).
In Wilson v. City of Pine Bluff, we said:
The sole question in determining whether statements made by another person are admissible against a party as an admission by silence or acquiescence is whether a reasonable person, under the circumstances, would naturally have been expected to deny them, if the statements were untrue. Some of the factors which should be considered in determining whether a party has impliedly admitted the statements are:
(1) The statement must have been heard by the party against whom it is offered;
(2) it must have been understood by him;
(3) the subject matter must have been within his personal knowledge;
(4) he must have been physically and psychologically able to speak;
(5) the speaker or his relationship to the party or event must be such as to reasonably expect a denial; and
(6) the statement itself must be such that, if untrue, under the circumstances, it would have been denied.
Other factors besides these may need to be considered, depending on the facts of a particular case. See, 4 J. Wigmore, Evidence § 1071-1073 (Chadbourn rev. 1972); C. McCormick, The Law of Evidence § 270 (2d ed. 1972).
In the case at bar, the testimony indicated the appellant was present, and was standing within four feet of the person making the statement. Further, the appellant failed to object to the statement or otherwise deny that he was attempting to sell the cigarettes. On these facts, adequate foundational facts were presented to the trial court so as to render the statements admissible. The trier of fact could reasonably infer that the appellant heard and understood the statements, and that, had the statements been untrue, he would have responded with either a denial or an explanation.
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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J OHN F. STROUD, Jr., Chief Judge.
Robert Gwatney was convicted in a bench trial of possession of drug parapherna-Ha, for which he was sentenced to three years’ probation, ninety days in the county jail, and was assessed a $500 fine and court costs. Gwatney now appeals, arguing that the evidence is insufficient to support the verdict and that the trial court erred in refusing to grant his motion for a continuance. We reverse and dismiss on appellant’s first point of appeal.
At trial, Officer Kim Francisco, the only witness for the State, testified that on December 29, 1998, she received information from a confidential informant that appellant lived at 21304 Nebraska in North Litde Rock and was in possession of a large quantity of methamphetamine at that address. Officer Francisco and other officers proceeded to that address without a search warrant. When they arrived, Karen Bittinger, a resident of the house, answered the door. Officer Francisco told her why they were there and asked if appellant was at the house; Bittinger said that he was not there. Officer Francisco then asked if they could search the house, to which Bittinger agreed.
When the officers entered the first bedroom off the living room area, they found appellant, wearing only a pair of shorts. Officer Francisco testified that a sock containing a spoon with methamphetamine residue on it, a cotton ball, and two syringes were found in a large chest in the bedroom. She did not remember if the top of the chest was open or closed, but she did say that it was not locked. Officer Francisco was unable to lift any latent prints off the spoon.
For the defense, Jerry Bittinger, Karen Bittinger’s father, testified that he owned the house at 21304 Nebraska at the time in question, and although appellant was Karen’s boyfriend and sometimes spent the night with her at that house, he did not five there. He said that “literally dozens” of people had access to the house, including himself, as he split his time between that house and another house on Lake Conway. He said that the bedroom in which the paraphernalia was found was not his bedroom but Karen’s room.
Karen Bittinger testified that appellant was her “on and off again” boyfriend and even though he stayed with her several nights a week, he did not live with her. She said that she told the police appellant was not at the house when they asked because she was scared and was not sure if he was there or not. She acknowledged that the police found appellant in her bedroom, but she said that the officers told her that they had located the paraphernalia in the ceiling, not in the chest to which Officer Francisco testified. Bit-tinger said that the chest in the bedroom was hers; it had been there for about a week before officers searched the house; it had belonged to one of appellant’s acquaintances; and they had retrieved it from storage. Bittinger said that the contents of the chest had not been searched; she knew it had blankets in it, but she had not taken them out of the chest before the officers performed their search. She said that she had not seen the sock when she looked inside the chest, and unless it had been underneath the contents of the chest, that “more than likely” the sock had to have been placed in the chest after she brought it into the house. However, she also testified that she was not aware of appellant placing any items in the chest or in the ceiling. She stated that “lots” of people had access to her room during the time the chest had been in her room. Bittinger denied putting any needles in the chest, and she said that the spoon that tested positive for methamphetamine was not hers, although she did say that it could have come from her kitchen because she had “all kinds” of silverware.
Appellant testified on his own behalf. He said that he did not five with his girlfriend, Karen Bittinger, but he did occasionally spend the night at her house. He said that he believed that the door to the bedroom in which the officers found him was closed before the police entered the room, and that he had been sleeping until the police came. He said that the chest was either at the foot of the bed or against the wall. He explained that the chest had belonged to a girl named Tracy, and he had rented her a storage unit for her belongings when she “lost her place.” Appellant stated that he knew he and Tracy had access to the storage unit, but he did not know who else had access. When the storage fees were not paid, appellant retrieved all of the items in the unit and took them to Karen Bittinger’s house. He said that Bittinger and her family went through the things and picked out what items they wanted to keep. He claimed that he “had no idea” what was in the chest and had made no attempt to determine what was in it. Appellant also testified that the officers found a bag of needles in the ceiling; he said that he did not see the police recover any items out of the chest. He denied that any of the items found by the officers belonged to him.
At the close of the State’s case and again at the close of all the evidence, appellant made a motion to dismiss, arguing that the State had failed to prove that appellant knew or should have known that the items of contraband were in the chest or that he had any control over such items, and that numerous people other than appellant had access to the residence. Both motions were denied by the trial court.
When the sufficiency of the evidence is challenged, the appellate court considers only that evidence which supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id. There is no distinction between circumstantial and direct evidence in a review for sufficiency; however, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). While the issue of sufficient evidence is dependent upon the facts of the particular case, the issue is one of law. Id.
Actual or physical possession is not required to prove guilt of possession of drug paraphernalia, Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994); constructive possession, which is control or right to control the contraband, is sufficient. Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). In Mayo, supra, this court stated:
Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Where there is joint occupancy of the premises where the contraband is seized, some additional factor must be found to link the accused to the contraband. In such instances, the State must prove that the accused exercised care, control, and management over the contraband and also that the accused knew that the matter possessed was contraband.
70 Ark. App. at 456, 20 S.W.3d at 421 (citations omitted).
Appellant contends that Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986), supports his position. However, Williams was overruled by Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Furthermore, that case concerned the possession of marijuana in a vehicle, and this court, in Mayo, supra, stated that it was “not persuaded that cases involving the possession of contraband in automobiles are fully applicable to cases involving homes or apartments.” 70 Ark. App. at 457, 20 S.W.3d at 422. Nevertheless, we find merit in appellant’s argument.
We must analyze the present case under the requirements of joint occupancy set forth in Mayo, as it was clearly established at trial that appellant was not the only individual who had access to the bedroom in which the paraphernalia was found; that it was the bedroom of his girlfriend, Karen. To prove constructive possession of contraband in premises where there is joint occupancy, the State is required to prove that appellant exercised care, control, and management over the contraband and also that the accused knew that the matter possessed was contraband. Mayo, supra.
In the present case, although the trial judge indicated that he did not believe that appellant had never opened the chest, the State did not provide any evidence that appellant exercised care, control, or management over the contraband that was found in the chest. It is not known if the top to the chest was open or closed, and Officer Francisco testified that there were no prints taken from the spoon that contained methamphetamine residue. No drug paraphernalia was found on appellant. Although appellant had been the person who initially brought the chest to the residence, the testimony was that Karen Bittinger was the person who had determined that she wanted the chest in her room. Furthermore, the chest had been in her room for at least a week, and there was testimony that “lots” of people had access to that room during the time the chest was there. Even viewing these facts in the fight most favorable to the State, there is only speculation and conjecture that appellant exercised care, control or management over the paraphernalia found in the chest, which is not sufficient. Certainly the paraphernalia was not found in a place immediately and exclusively accessible to appellant to allow the implication of constructive possession. Furthermore, this is at best a constructive-possession case of premises jointly occupied, which requires some additional factor to fink the accused to the contraband, and we do not find proof of such additional factor. For these reasons, we must reverse and dismiss appellant’s conviction for possession of drug paraphernalia.
Appellant also contends that the trial court erred in denying his motion for a continuance. Because we reverse and dismiss the case based upon insufficiency of the evidence, it is not necessary to address this issue.
Reversed and dismissed.
Hart, Bird, Griffen, and Crabtree, JJ., agree.
Jennings, J., dissents. | [
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Lawson Cloninger, Judge.
The only issue on this appeal is whether the trial court was in error in awarding a directed verdict in favor of all the appellees, Robert and Janet Triplett, Foster Realty Company, Inc., and Columbia Exterminators, and against appellants, Arthur and Audria L. Willis.
Appellants filed their action for damages against appellees, alleging that appellants had purchased a house located on three half lots in Hope, Arkansas, from the Tripletts, through Foster Realty, for the sum of $24,000; that Columbia Exterminators made a report that there was no structural termite damage to the house; that the house was in fact so severely damaged by termites that the cost of repairs would exceed the worth of the house after repairs; and that as a proximate result of false and fraudulent representations made by or chargeable to each of the appellees, appellants suffered damages. Appellants prayed for $24,000 compensatory damages and $50,000 punitive damages. Appellants’ request for punitive damages was not pursued and is not argued on this appeal.
At the conclusion of appellants’ case, appellees moved for a directed verdict, contending that appellants had failed to establish any ascertainable measured damages, and that the jury would be required to resort to speculation and conjecture in determining damages. We reluctantly conclude that appellees were correct in their contention.
Viewing the evidence presented in this case, it cannot be determined with certainty what measure of damages appellants were asking the trial court to employ. In Lewis v. Phillips, 223 Ark. 380, 266 S.W.2d 68 (1954), the court stated:
In Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208, we said: ‘It is often difficult for a court to determine the true measure until all the evidence is in. ... If there be different modes of measuring the damages, depending on the circumstances, the proper way is to hear the evidence, and to instruct the jury afterwards according to the nature of the case.’
The only evidence presented in this case regarding measure of damages was the testimony of appellant Arthur Willis and his witness, T. L. Watson, a self-employed contractor. Mr. Willis testified at one point that it would cost as much to make the repairs as he had spent on the house. Mr. Watson testified that when he initially looked at the house, which was one year after the purchase and approximately one year before the trial, he had estimated the cost of repairing the house at $10,800. He testified that he had reservations about the figure at that time, and that if the walls were as eaten up as they seemed to be, it would run a lot more than that. He had examined the house a second time the day before the trial and testified that he had determined that it would cost more to repair the house than it was worth. However, neither Mr. Willis nor Mr. Watson testified as to the value of the house alone at the time of sale or at the time of trial. Appellants contend without citation of authority only that the evidence was sufficient to support a verdict for $24,000, the purchase price, plus closing costs.
The rule with respect to certainty of damages is stated in Missouri and Arkansas Railway Co. v. Treece, 210 Ark. 63, 194 S.W.2d 203 (1946). In that case the rule was stated that evidence must exist which affords a basis for measuring the plaintiff’s loss with reasonable certainty and the evidence must be such that the jury may find the amount of the loss by reasonable inferences from established facts, and not by conjecture, speculation or surmise.
There simply is no evidece in the record that the jury could look to without resorting to speculation or conjecture. Even if it could be said that $24,000 is considered the fair market value of the property which appellant had purchased, there is no evidence presented to show what the house itself was worth. The trial court was correct in granting the motion for a directed verdict.
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Cooper and Corbin, JJ., agree. | [
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R. Baker, Judge.
Appellant, Emerson Electric, brings this appeal challenging a decision of the Workers’ Compensation Commission awarding temporary total disability benefits for the period between January 27, 1998, and April 13, 1998. On appeal, appellant argues the following: the evidence was insufficient to support a twenty-six percent impairment rating; the evidence was insufficient to support a fifty-percent wage loss; and the evidence was insufficient to support temporary total disability benefits for the period between January 27, 1998, and April 13, 1998. Appellee cross-appeals on the issue of permanent total disability benefits. We affirm on direct appeal and on cross-appeal.
Appellee, Vera Gaston, has been employed by appellant for thirty-one years. Around 1992, appellee was transferred to the winding department. The winding department was an area of appellant’s plant in which varnish was coated onto the motor product. Appellee became exposed to varnish vats, varnish ovens, Sanders, and grinders, and she began experiencing respiratory difficulties for which she sought medical treatment.
Appellee first saw her family physician, who referred her to Dr. Robert Sanders, a pulmonary specialist. Dr. Sanders diagnosed appellee with occupational asthma, took her off work, and assessed her with a permanent-impairment rating of one hundred percent to the body as a whole. On August 21, 1998, appellee saw Dr. Joseph Bates. After performing a series of tests, Dr. Bates concluded that appellee had no objective abnormalities, normal pulmonary function, and assessed a permanent impairment rating of zero percent. On October 27, 1998, Dr. Sanders performed another series of tests, which resulted in the same diagnosis, a permanent-impairment rating of one hundred percent as to the body as a whole. On January 14, 1999, another physician, Dr. Paula Anderson, performed a series of tests on appellee and concluded that appellee had not sustained any permanent physical impairment to her pulmonary function.
The Administrative Law Judge (ALJ) found that appellee’s asthma was a compensable occupational disease and awarded additional wage-loss benefits in the amount of fifty percent. The Commission remanded the claim to the ALJ for more adequate findings on the issues of objective medical findings and permanent physical impairment. In a supplemental opinion, the ALJ found that the pulmonary tests performed by the treating physician were objective and that appellee sustained a twenty-six percent permanent physical impairment to the body as a whole in addition to other benefits in the previous opinion. The Commission affirmed the findings of the ALJ in the original and supplemental opinion. From that decision comes this appeal.
We affirm the Commission if its decision is supported by substantial evidence; substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). We view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission. Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999). If reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996).
First, appellant challenges the sufficiency of the evidence in regard to the twenty-six percent impairment rating awarded by the Commission. Appellant asserts that there are two reasons that the validity of the rating is not supported by substantial evidence. First, the rating was not based on objective medical findings. Instead, it was based on medical tests which could have come under the voluntary control of the appellee. Second, in assigning the twenty-six percent impairment rating, the ALJ failed to consider all relevant information as required by the AMA Guides in that the ALJ failed to consider appellee’s physical condition and ignored two impairment ratings assigned by physicians who did consider this information.
Arkansas Code Annotated section ll-9-704(c)(l)(B) (Repl. 1996) states that “any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” Moreover, Arkansas Code Annotated section ll-9-102(16)(A)(i) (Repl. 1996) provides that “ ‘objective findings’ are those findings which cannot come under the voluntary control of the patient.” During appellee’s treatment, both Dr. Sanders and Dr. Bates performed pulmonary-function testing. Both stated in their depositions that the test results depend on the patient giving maximum effort. Clearly, a patient’s breathing is at least partially within his or her control and potentially subject to manipulation. However, both doctors opined that appellee was giving maximum effort throughout her testing. Moreover, Dr. Sanders testified as to several factors which help determine whether the patient was performing maximal exercise. Two of those factors included studying the steady rise in oxygen-consumption data to see when the data reaches a plateau and studying the respiratory exchange ratio on the exercise test and the bicarbonate drop in the blood gas obtained at peak exercise to determine when the patient has become anaerobic. Thus, the pulmonary-function testing is clearly an objective test due to the objective data the test produces, in spite of the fact that a patient is at least partially able to control his or her breathing. We find that the Commission was correct in concluding that the oxygen-consumption data and the bicarbonate- drop data were both objective chemical data, which provide qualitative and quantitative analysis to determine whether the patient has in fact expended maximum effort during exercise, and that the chemical analysis itself is not under the voluntary control of the patient.
Appellant also challenges the twenty-six percent impairment rating because the ALJ failed to consider appellee’s physical condition and ignored two impairment ratings assigned by physicians who did consider this information. Contrary to appellant’s assertion, the specific degree of impairment was determined primarily by the physicians’ testimony, even though it was conflicting. The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997) (citing Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995)). The Commission is not required to believe the testimony of any witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998) (citing Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 215 (1987)).
Second, appellant challenges the sufficiency of the evidence as to the fifty-percent wage loss awarded by the Commission. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Eckhardt v. Wills Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. Id. (citing Ark. Code Ann. § 11-9-522(c)(1) (Supp. 1997)). In considering factors that may affect an employee’s future earning capacity, the court considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). Dr. Sanders’ diagnosis required that appellee refrain from working in any environment which would cause her to be exposed to excessive dust or chemicals. Since appellee has been in this line of work for thirty-one years, her employment opportunities may have been limited. In addition, appellee was fifty-seven years of age, and her level of education consisted of a GED; both of these factors would also inevitably limit her employment opportunities. We hold that substantial evidence supported the Commission’s award of fifty-percent wage loss.
Third, appellant challenges the sufficiency of the evidence as to the temporary total disability benefits for the period between January 27, 1998, and April 13, 1998. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996) (citing J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990)). Arkansas Code Annotated section 11-9-102(13) (Supp. 1995) defines “healing period” as that period for healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). The determination of when the healing period has ended is a factual determination for the Commission, which is affirmed on appeal if supported by substantial evidence. Carroll Gen. Hosp., 54 Ark. App. at 107, 923 S.W.2d at 881. In Dr. Sanders’s opinion, during the period from January 27, 1998, to April 13, 1998, appellee’s condition was so severe as to render her incapable of performing any of her regular employment duties; Dr. Sanders took appellee off work completely in January 1998. Appellee continued to receive medical care from January 1998 to April 1998, and on April 14, 1998, Dr. Sanders concluded that appellee had reached her maximum medical improvement. In view of Dr. Sanders’s testimony, we hold that substantial evidence supported the award of temporary total disability benefits firom January 27, 1998, to April 13, 1998.
On cross-appeal, appellee asserts that she has proven by a preponderance of the evidence that she is permanently totally disabled based on Dr. Sanders’s one hundred percent impairment rating; however, the Commission has the authority to accept or reject medical opinions. See Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). She further argues that she is entitled to permanent total disability because her work opportunities are restricted due to the fact that she is fifty-seven years old, has a GED, has worked for appellant for thirty-one years, and that she must abstain from working around dust and chemicals. However, the Commission stated that appellee’s work opportunities were not completely restricted. The Commission also considered her lack of motivation in finding employment. See Ellison, supra. We acknowledge that her argument resembles the odd-lot doctrine; however, that doctrine has been abolished by Act 796 of 1993, codified at Arkansas Code Annotated section 11-9-522(e) (Supp. 1999). See Goodwin v. Phillips Petroleum Co., 72 Ark. App. 302, 37 S.W.3d 644 (2001). Despite appellee’s physical restrictions, we hold that substantial evidence supported the Commission’s finding that appellee was not permanently totally disabled.
Pursuant to the Commission’s authority, it heard and weighed the conflicting evidence presented in this case and gave the evidence the weight it deemed appropriate. We hold that the Commission’s decision was supported by substantial evidence and affirm on direct appeal and on cross-appeal.
Jennings and Crabtree, JJ., agree. | [
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James R. Cooper, Judge.
This is an appeal from a decree dismissing the appellants’ petition to partition land willed to the appellee Luther Ellis by the mother of Luther Ellis, who was the grandmother of appellants Mike and Linda Ellis. Marion Edgar Ellis acquired two 80-acre tracts of land in Cross County in 1925. In 1917, his wife Dana Ellis died, leaving two children of their marriage, Forrest and Woodrow Ellis. Following the death of Dana Ellis, M. E. Ellis married Martha Ellis, by whom he fathered three children, Luther, Eugene and Pauline Ellis (Henderson). In 1931, M. E. Ellis died intestate and left surviving his widow, Martha Ellis, and the children referred to above.
The family continued to reside on the 160 acres and in 1931, one 80-acre tract forfeited to the state for nonpayment of taxes, followed by the other in 1932. In 1937, Jess Hunt acquired a deed to these lands at a tax sale and brought suit against Martha Ellis and the children of M. E. Ellis to expel them from the land and for a Writ of Possession. The Writ was granted on November 27, 1938, but the Ellis family never vacated the premises, though the Writ was to be effective December 27, 1938. Jess Hunt quitclaimed his interest in the lands to Mr. H. Steinberg on December 24, 1938, and on the same date Martha Ellis gave Mr. Steinberg a warranty deed to the 160 acres. Martha Ellis and her family remained in continuous possession of these lands and on November 25, 1942, Mr. Steinberg and his wife gave a quitclaim deed to Martha Ellis. Martha Ellis died in 1979 and left a will devising all of this land to her youngest son, Luther Ellis. Forrest Ellis is deceased, and survived by Lila Ellis Johns, Lewis (John) Ellis and Louise Ellis (Mitchell). Eugene Ellis is also deceased, and is survived by Mike Ellis and Linda Ellis.
The appellants herein brought this suit to partition these two 80-acre tracts, claiming to be co-tenants of the appellee. Their claim rests on the allegation that when M. E. Ellis died intestate in 1931, their mother Martha Ellis became a life tenant on these lands through her dower and homestead rights, and the children had a remainder interest in this land. They further allege that when Martha Ellis reacquired this land from H. Steinberg in 1942, this acted as an equitable redemption in favor of the children of Martha Ellis. The appellee contends that when Martha Ellis purchased her quitclaim deed from H. Steinberg, she purchased the fee simple title and that there was no equitable redemption. The chancellor found that there was no equitable redemption; that through her actions, Martha Ellis had acquired title to the land by adverse possession, and that the appellants were barred by laches from asserting their claim to these lands. For reversal, the appellants argue that the findings of the chancellor are not supported by substantial evidence. We will consider each point separately.
It is undisputed that in 1931, upon the death of her husband, M. E. Ellis, Martha Ellis had a life estate in these lands, and among her duties as the life tenant was the payment of the taxes on this land. If a life tenant allows the taxes on the land occupied to become delinquent and purchases the land at the tax sale, this acts as a mere redemption, as a life tenant in possession cannot acquire title thereto by permitting it to sell for the taxes and buying it at a tax sale. Findley v. Tyler, 227 Ark. 663, 300 S.W.2d 598 (1957). Likewise, a life tenant cannot allow the land to be forfeited for nonpayment of taxes and later purchase it from a third party who has purchased at a tax sale, thereby strengthening his title, as the law will not allow that to be done indirectly which may not be done directly. Inman v. Quirey, 128 Ark. 605, 194 S.W. 858 (1917). The appellant argues that these principles of equitable redemption are not relevant due to the fact that the purchaser at the tax sale, Jess Hunt, instituted an action that ultimately resulted in a Writ of Possession being awarded to Hunt against Martha Ellis and her minor children. The appellee reasons that this action had the effect of adjudicating title to the lands in question and ultimately cut off any claim that Martha Ellis or her minor children may have had to the lands. However, an action in ejectment is a mere possessory action and does not serve to adjudicate title unless title was made an issue in the action. Jimmerson v. Fordyce Lumber Co., 119 Ark. 413, 178 S.W. 381 (1915); 28 C.J.S. Ejectment § 119. From the record we cannot find where the action instituted by Jess Hunt did anything more than award possession to Jess Hunt upon the strength of his tax deed. Therefore, that action cannot be relied upon to cut off the rights of Martha Ellis or her children or the children of M. E. Ellis in the lands as the appellee would have us believe. Although Jess Hunt was awarded a Writ of Possession in these lands, it is clear from the record and testimony that he never took possession from Martha Ellis, and, in fact, had no interest in the land when the writ of possession became effective.
As has already been stated, Martha Ellis was under a duty to the remaindermen to pay the taxes on this land and a failure to do so is waste. Magness v. Harris, 80 Ark. 583, 98 S.W.362 (1906). The law is well settled “that a life tenant, whose duty it is to pay the taxes, cannot permit a sale of the land for taxes, and thus acquire the interest of the remainderman. Such purchases are regarded as mere redemptions.” Galloway, supra; Inman, supra. Thus, the subsequent purchase of the lands herein by Martha Ellis from H. Steinberg was an equitable redemption in favor of the remaindermen children of M. E. Ellis and did not strengthen the interest of Martha Ellis in the land.
The chancellor below also found that Martha Ellis had acquired title to the subject lands by adverse possession. In order for a life tenant whose interest arises out of a homestead right to acquire title by adverse possession against her remaindermen, the life tenant must first abandon her homestead right and bring this fact home to the remaindermen in order to set the statute of limitations into action. Ingram v. Seaman, 223 Ark. 414, 267 S.W.2d 6 (1954). There is no evidence in the record that Martha Ellis ever abandoned her homestead rights in this property or otherwise moved off this property until her death, thus there could be no adverse possession.
Finally, the court below found that the appellants were guilty of laches by not asserting their rights in the subject property sooner. It is clear that one in the position of a remainderman may not maintain any action for possession until the death of the life tenant. Luster v. Arnold, 249 Ark. Ark. 152, 458 S.W.2d 414 (1970). Since Martha Ellis, the life tenant did not die until 1979, there can be no laches on the part of the appellants.
Reversed and remanded for further proceedings consistent with this opinion.
Cloninger and Corbin, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, Reba Gorchik, appeals the decision of the chancellor in a divorce action which gave appellee, Ray Gorchik, a money judgment against appellant for $22,557.00 consisting of: (1) a $5,000.00 judgment against appellant to compensate ap-pellee for $5,000.00 he inherited during the marriage; (2) $15,000.00 for property appellee brought into the marriage as well as consideration for a tort claim arising out of appellant having shot appellee during the pendency of the divorce action, and (3) $2,557.00 to compensate appellee for appellant having withdrawn the sum of $5,000.00 from a joint bank account of the parties.
It is well settled that although we review chancery cases de novo on the record, we do not reverse a decree unless the chancellor’s findings are clearly erroneous or clearly against a preponderance of the evidence. Since the question of preponderance turns heavily on the credibility of the witnesses, we defer to the superior position of the chancellor in this regard. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); A.R.C.P. Rule 52(a). In the instant case, we find certain findings of the chancellor clearly against the preponderance of the evidence and, accordingly, reverse and remand.
In her first point for reversal, appellant contends that the court erred in awarding appellee a judgment for the $5,000.00 which appellee inherited from his father during the course of the marriage. Appellee testified that ‘ ‘upon the death of my father, I inherited $5,000.00 which I deposited in our joint savings account. Over a period of time, we withdrew the money and used it, I believe I used some of the money to purchase my tractor and trailer.” After reviewing the limited testimony and evidence on this issue, it appears that appellant helped appellee spend his inheritance from a joint account. We believe the rule formulated in Hayse v. Hayse, 4 Ark. App. 160-B, 630 S.W.2d 48 (1982), is applicable in the case at bar. In Hayse, supra, we announced:
Property received by bequest, devise, or descent is not ‘marital property’ subject to equal division upon divorce under Ark. Stat. Ann. § 34-1214 (Supp. 1981). The wife’s inheritance would not be subject to equal division in the divorce unless by some action she had destroyed its status as non-marital property by creating an interest therein in her husband.
We believe that the facts in the instant case clearly reflect a change in the status of appellee’s $5,000.00 inheritance. Appellee placed the money voluntarily in a joint account which both parties utilized during the course of their marriage. Accordingly, we reverse on this point.
Appellant alleges in her second point for reversal that the trial court erred in rendering judgment against her in the amount of $15,000.00 for property appellee allegedly brought into the marriage as well as for consideration of his tort claim. At the minimum, we must reverse and remand for the trial court to clarify its judgment by assigning specifically what amount was for the property brought into the marriage by appellee and what amount specifically was awarded appellee on the tort claim. Appellee’s contention that appellant waived any argument on appeal concerning the trial court’s findings is without merit. It is appellee’s position that appellant was obligated to request the trial court to find the facts specially and state its conclusions of law as a prerequisite to our reviewing the findings on appeal. A.R.C.P. Rule 52(a) provides that “requests for findings are not necessary for purposes of review.”
Turning to the issue that is most troublesome to this Court and one which we raise on our own motion is that of determining whether the chancery court had jurisdiction under the “clean-up doctrine” to determine the tort claim of appellee in this divorce action. It is well settled that subject matter j urisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this Court. Hilburn v. 1st State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976). There, the Arkansas Supreme Court stated as follows:
Subject matter jurisdiction cannot be conferred by consent of the parties, (cites omitted) We have said that it is not only the right but the duty of this court to determine whether it has jurisdiction of the subject matter, (cites omitted)
Accordingly, we may now raise the issue of subject matter jurisdiction on our own motion.
A spouse may maintain a tort action against his or her spouse. Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957). In Spitzer v. Barnhill, 237 Ark. 525, 374 S.W.2d 811 (1964), Justice George Rose Smith raised the following question in the opening paragraph of his opinion:
In this case the question which has given us the greatest concern is whether a chancery court, after having taken jurisdiction of a suit to restrain a tort defendant from denuding himself of his property, must then, as a matter of giving complete relief, retain jurisdiction and hear the common-law tort action on its merits.
Judge Smith, in writing for the majority, answered in the negative stating as follows:
If the Legislature had intended to bring about such a drastic change in our law as that of permitting personal injury actions to be tried in equity as a matter of right, we think that intention would have been stated in language too plain to be misunderstood.
Spitzer, supra, cited a Mississippi case, Jones v. Jones, 79 Miss. 261, 30 So. 651, wherein the plaintiff attempted to maintain in equity a suit for personal inj uries, relying upon statutes that permitted a creditor to attack a fraudulent conveyance without having first obtained a judgment at law. In rejecting this contention, the Mississippi court stated:
It was never the contemplation of the statutes invoked by appellant to authorize chancery courts to take cognizance of a suit for unliquidated damages arising out of a tort before there has been any judgment at law ascertaining the damages, the defendant being within the jurisdiction of the court.
See also, Chamberlain v. Newton County, 266 Ark. 516, 587 S.W.2d 4 (1979). Accordingly, we do not believe as appellee asserts in the case at bar that appellee was required to assert his tort claim for personal injuries as a compulsory counterclaim under A.R.C.P. Rule 13(a). Rule 13(a) provides that any cause of action which a party has against his opponent and which arises out of the same transaction or occurrence as the opponent’s claim must be pleaded as a counterclaim. However, this obviously was not a proper counterclaim inasmuch as appellee sought damages from appellant for an alleged intentional tort of which chancery court had no jurisdiction.
We reverse and remand on appellant’s second point with directions to the trial court to transfer appellee’s tort claim to circuit court. On remand, the trial court, pursuant to the authority of Ark. Stat. Ann. § 34-1214(A)(2) (Supp. 1983), is directed to return to the parties all property owned prior to the marriage unless the court makes some other division that it deems equitable, It appears from the record before us that the separate property of appellee was freely intermingled with marital property, It is important to note that the burden is upon the party who asserts ap interest in property to establish that it is ip fact separate property not subject to division.
Finally, appellant alleges the trial court erred in rendering judgment against her in the amount of $2,557.00 for funds withdrawn by her from a joint bank account. The only error we find on this issue is one of arithmetic. The evidence reflects that the account had a balance of $5,337.40 at the time the parties separated, all of which appellant withdrew. The decree should be modified to reflect that appellee is to have judgment in the amount of $2,668.70 against appellant for one-half of the sum she withdrew from the joint account in the Merchants and Planters Bank of Newport, Arkansas, op December 7, 1981. The withdrawal occurred three days after appellant filed her complaint for divorce and the joint bank account was clearly marital property.
The judgment is reversed and remanded, with directions to the trial court to enter an order in keeping with this opinion.
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Lawson Cloninger, Judge.
The question at issue on this appeal is whether the execution of a “Depositor’s Notice of Penalty for Payment of Time Deposit Before Maturity’’ constitutes substantial compliance with the “designate in writing” requirement of Ark. Stat. Ann. § 67-552 (Supp. 1981). We hold that there was no substantial compliance with the statute, and we reverse the finding of the trial court.
Ark. Stat. Ann. § 67-552 provides as follows:
Checking accounts and savings accounts may be opened and certificates of deposit may be issued by any banking institution with the names of two or more persons, either minor or adult, or a combination of minor and adult, and such checking accounts, savings accounts and certificates of deposit may be held:
(a) If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in ‘joint tenancy’ or in ‘joint tenancy with right of survivorship’ . . . The opening of the account or the purchase of this certificate of deposit in such form shall be conclusive evidence in an action or proceeding to which either the association or surviving party or parties is a party, of the intention of all of the parties to the account or certificate of deposit to vest title to such account or certificate of deposit and the additions thereto in such survivor or survivors.
On February 18, 1981, the decedent, Mae Pettyjohn, purchased a thirty month certificate of deposit from appellee, The Citizens Bank, which was issued in the name of “Mae Pettyjohn or Jimmie Lynn Ballard, either or survivor.”
Upon the death of the decedent, her estate instituted this action for a declaratory judgment seeking a declaration of the court that the certificate of deposit was an asset of the estate. Appellee, Jimmie Lynn Ballard, filed her cross complaint against appellee. The Citizens Bank, asserting that she is entitled to judgment against The Citizens Bank in the event that it is found that the certificate is properly payable to the estate of Mae Pettyjohn. The trial court found that the certificate was the property of Jimmie Lynn Ballard and did not reach the question of the alternate liability of The Citizens Bank.
It is uncontroverted that Mae Pettyjohn was the purchaser, and the testimony of bank officials established that at the time of the purchase Mae Pettyjohn stated to representatives of the bank that it was her desire that the proceeds of the certificate be payable to the survivor as between her and Jimmie Lynn Ballard. However, the only document executed by Mae Pettyjohn in conjunction with the issuance of the certificate of deposit was a “Depositor’s Notice of Penalty for Payment of Time Deposit Before Maturity,” which bore the number of the certificate of deposit.
We need not hold that there must be a strict and literal compliance with the wording of the Act, but we do hold that there must be a substantial compliance. See Ratliff v. Ratliff, Adm’x., 237 Ark. 191, 372 S.W.2d 216 (1963); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969); Carlton, Adm’r. v. Baker, 267 Ark. 949, 591 S.W.2d 696 (Ark. App. 1980).
In Corning Bank v. Rice, Adm’r., 278 Ark. 295, 645 S.W.2d 675 (1983), the Arkansas Supreme Court observed:
Ever since the Cook case was decided in 1969 we have consistently held that a payable-on-death certificate is not payable unless the holder signs some instrument to that effect.
In Gibson v. Boling, Sp. Adm’r., 274 Ark. 53, 622 S.W.2d 180 (1981), the court stated:
It is clear from the act and we have held that the depositor must designate the survivor in a separate writing, other than as payee, if the transaction is to be treated as one of joint tenancy with right of survivor-ship.
In Carlton, Adm’r. v. Baker, supra, this court held that a receipt signed by the depositor constituted substantial compliance with the statute. In that case, the certificate of deposit was prepared with three copies and the depositor signed one of the copies in a space provided for that purpose. See Baker v. Bank of Northeast Arkansas, 271 Ark. 948, 611 S.W.2d 783 (Ark. App. 1981). In the instant case, the instrument signed by Mae Pettyjohn bore the number of the certificate of deposit, but the instrument itself contained nothing to express the intent of Mae Pettyjohn to create a joint interest with right of survivorship.
In Ratliff v. Ratliff, Adm’x., supra, the Arkansas Supreme Court stated:
A joint account with survivorship is similar to a will in that both are statutory devices by which property may be disposed of at death. In each case certain minimum formal action in the exercise of the statutory privilege has been required by the legislature, doubtless to avoid the dangers of perjury and the uncertainties of parol evidence after death has sealed the lips of the person principally concerned.
There is ample evidence that it was the intention of Mae Pettyjohn to create a survivorship interest, but we must hold that the writing signed by Mae Pettyjohn does not constitute substantial compliance with the statute.
The decision of the trial court is reversed and the cause is remanded for determination of the issue raised by Jimmie Lynn Ballard in her cross complaint against The Citizens Bank.
Mayfield, C.J., and Corbin, J., agree. | [
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Tom Glaze, Judge.
In this divorce case, appellant argues two points for reversal, contending the court erred (1) in placing appellee in possession of the parties’ homestead and estate by the entirety rather than ordering it partitioned or sold; and (2) in making an unequal distribution of their personal property. On cross-appeal, appellee contends the chancellor erred (1) in granting appellant the divorce, and (2) in failing to award appellee any child support. After our review, we affirm the trial court on all points.
First, we consider appellant’s arguments in the order presented above. The appellee was decreed possession of the parties’ house and property so long as he lives in the house and does not remarry. He was also ordered to pay all taxes, insurance, maintenance and upkeep required on the property. Appellant contends the trial court’s failure to partition or sell the parties’ estate by the entirety prevented her receiving the one-half share of the property to which she was entitled. We find no merit in this contention. The trial court had two options in disposing of property held by the entirety: it could put one of the parties in possession of the premises, or it could order the property sold and the proceeds divided. See Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979). Our courts have also held that the trial court may award the possession of the homestead to either spouse, upon such terms as appear to be equitable and just. Hada v. Hada, 10 Ark. App. 281, 663 S.W.2d 203 (1984). Here, the parties have resided on this fifty-six acre farm since 1972. Before that time, appellee owned the property individually. After the parties’ home was built in 1972, appellee paid the house payments and appellant bought their furniture. During the course of the parties’ marriage, appellee became blind. His only sources of income are social security disability checks and earnings from the sales of cattle and hay from the farm operation. The appellant, on the other hand, has worked for twenty-five years and is presently employed by a lumber company. Appellee receives $470 disability pay per month for both himself and Royce, his sixteen-year-old son who lives with him; appellant earns $3.65 per hour, and takes home just over $100 per week. Given the law applicable to the disposition of homesteads held by the entirety and discussed in Lytle v. Lytle, supra, and Hada v. Hada, supra, the chancellor clearly had the authority to place the appellee in possession of the parties’ homestead; and after reviewing the record, we cannot say he was clearly wrong in doing so.
Appellant’s second point concerns the trial court’s unequal distribution to appellee of the farm equipment and other farm personalty, valued at $22,575; appellant was awarded only the Avon and Mary Kay products valued at $4,158.75. All other marital personalty was divided equally between the parties. Unquestionably, the chancellor had authority to make an unequal division of the parties’ personal property so long as he considered the factors set forth in Ark. Stat. Ann. § 34-1214 (Supp. 1983), and stated in writing his reasons for doing so. See Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981). Here, the trial judge, in his decree, based the unequal property distribution upon the fact that appellee is blind and unemployable, while appellant is employable and has always worked outside the home. The chancellor reasoned that appellee’s livelihood is dependent upon his farming the land, and the farm equipment, cattle, hay and other items awarded him are necessary for the farming operation. The judge further found that appellant had not contributed to the home expenses or payments and had not used her money for the family’s benefit. These findings and the evidence, we believe, support the unequal division of property awarded by the chancellor.
Next, we turn to appellee’s contentions on cross-appeal. Appellee first argues the appellant failed to prove and corroborate her grounds for divorce. Appellant alleged general indignities as her grounds, and, among other things, she presented evidence that appellee had accused her of infidelity with appellee’s nephew, Lyle Gann. Although appellee offered testimony placing appellant with Gann on different occasions, he conceded that he was unaware if they “have ever had any type of relationship.” In fact, none of the evidence established appellant was guilty of infidelity, and such unfounded assertions were in themselves indignities justifying a dissolution of the marriage. Dennis v. Dennis, 239 Ark. 384, 389 S.W.2d 631 (1965). In addition, appellant testified to instances when appellee argued with her and embarrassed her in front of friends and family members. She said that for several years prior to their separation, she was not allowed to write checks or to buy groceries. Appellee’s parents testified and corroborated such indignities. In view of the evidence presented, we cannot say the chancellor was wrong in granting the divorce to appellant.
Finally, we also conclude that the chancellor’s decision not to award monthly child support is not clearly against the preponderance of the evidence. The amount of child support to be awarded, if any, rests in the discretion of the court granting the divorce and is to be determined from the circumstances and the situation of the parties. See Upchurch v. Upchurch, 196 Ark. 324, 117 S.W.2d 339 (1938); and Biddle v. Biddle, 208 Ark. 777, 187 S.W.2d 720 (1945). We agree with appellee that gender, in itself, cannot serve as a basis or consideration for awarding or not awarding child support; however, the record clearly reflects that situation does not exist here. In fact, the parties’ son, Royce, receives a disability check in the monthly sum of $138, and because he lives with appellee, Royce will also benefit from any supplemental income that is gained from the farming operation. Obviously, appellant, under the court’s decree which places appellee in possession of the home and awards him the farm operation, is sharing in the support of Royce. In view of the circumstances in this case, we do not believe the chancellor erred in failing to award additional monthly child support.
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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JOHN E. Jennings, Judge.
George Wilcox was found guilty of battery in the first degree following a bench trial. Appellant moved for a new trial on the basis of newly discovered evidence, and the trial court granted the motion. Before he could be tried again, appellant filed a motion to dismiss on the basis of double jeopardy or, alternatively, for a judgment of acquittal, and that motion was denied. Appellant argues that the trial court erred in failing to dismiss pursuant to the prohibition against double jeopardy. We find no error and affirm.
During the summer of 1997, four young boys rode their bicycles in a field owned by appellant. According to the boys, they had misplaced one of the bicycles, and, because it was getting dark, one of them climbed onto a tractor and turned on its fights to help them locate the bicycle. The boys got scared when they saw a white truck approaching without its headlights on, so they hid. A man got out of the truck holding a gun and ordered them to turn off the engine and to get down off of the tractor. When they failed to do so, the man shot once toward the ground and fired a second time in the air. At some point, the boys began running but then obeyed the man’s orders to return to him. Seeing that it was only children involved, the man told the boys to go home. Unfortunately, pellets from the second shotgun blast had struck one of the boys in the neck and foot.
At trial, two of the boys positively identified appellant as the man who had fired the shotgun that night. Officers who had investigated the scene found golf tees laying on top of the dirt and found similar golf tees in appellant’s white truck. Officer Robert Brock noted that appellant’s truck had a flat tire but was warm to the touch as though it had recently been driven. Appellant consented to a search of his house, and, although a shotgun was found underneath the bed, the gun was dusty and had mold on the stock.
Appellant’s neighbor, John Patton, had been walking his dog that night when he heard a tractor running and children’s voices. He called appellant on the phone and then went over to the field himself. Although he spoke to the man in the field who had told the boys to go home, Mr. Patton’s testimony was that appellant was not the man he had seen by the tractor. Although appellant testified that he does not go anywhere without his glasses, the boys indicated that the man in the field that night was not wearing glasses. Appellant explained that he and his wife own eleven white trucks used in connection with their sod farm operation. He went on to say that golf tees are found in virtually every one of those trucks because they serve to plug water sprinklers all over the farm. According to the testimony of both appellant and his wife, after going to dinner with friends in the wife’s car, they went straight to bed and were awakened between 9:30 and 10:00 p.m. by the doorbell and the telephone.
The trial court found appellant guilty of battery in the first degree, but, before sentencing, appellant moved for a new trial based on newly discovered evidence. At the hearing on appellant’s motion, John Patton again testified on appellant’s behalf. This time Mr. Patton identified Boyce Cope as the man he had spoken to that night in the field. He testified that appellant would not have had time to get to the field before him following the phone call, as appellant lives two blocks away and the field is directly across the road from Mr. Patton’s house. Patton also said that the man he had spoken to in the field was not wearing glasses. Dr. Roy Ashebraner, appellant’s optometrist, prepared photographs showing appellant’s level of visual acuity with and without glasses. In addition, the transcript of Mr. Cope’s confession was introduced into evidence. Mr. Cope explained that, when he saw the tractor’s lights on at a time when no one is usually in the field, his first thought was that someone was stealing the tractor because there had been recent problems with theft. He fired the gun twice just to scare off the person on the tractor. Realizing it was just some children playing, he instructed them to go home. Mr. Cope said that he was unaware that a boy had been shot until the next day when he heard about it on the news. He then got scared and threw his shotgun over a bridge. Mr. Cope indicated that he had been driving a white pickup truck that night. He also stated that he had spoken to someone in the field as the boys were leaving to go home but that he did not know the man. Based on this newly discovered evidence, the trial court granted appellants motion for a new trial.
Appellant argues that the trial court’s granting of a new trial was tantamount to directing a verdict of acquittal. Appellant relies on the language in Misskelley that to prevail on a motion for a new trial based on newly discovered evidence, appellant must demonstrate that the new evidence would have impacted the outcome of the case. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Appellant argues that, by granting the new trial, the trial court must have found that the evidence would have impacted the outcome of his case, and the only logical impact would have been a judgment of acquittal based upon insufficient evidence to convict him. Furthermore, the State conceded that there would be no additional evidence at the new trial with the exception of more cross-examination. Appellant contends that this court must look to the substance of the trial court’s decision and not just its form. Appellant points out that a defendant does not waive his right to a judgment of acquittal based on insufficient evidence simply by moving for a new trial.
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. Burks v. United States, 437 U.S. 1 (1977). In addition, the Double Jeopardy Clause bars a second prosecution when a new trial has been granted due to insufficient evidence. Hudson v. Louisiana, 450 U.S. 40 (1981). However, in the case at bar, there was no suggestion by the trial court that the State had failed to prove its case. Significantly, the trial court did not grant appellant’s request for an outright acquittal. Moreover, in its ruling, the trial court pointed out that a new trial based on newly discovered evidence is not a favored remedy and that confessions should be approached with some skepticism but that, “the law provides for [a new trial] under appropriate circumstances.” Clearly, it was not implicit in the trial court’s granting of a new trial that the State’s evidence had been rendered insufficient due to appellant’s newly discovered evidence. The new trial simply provided appellant another chance for acquittal in fight of the newly discovered evidence. We find no error in the trial court’s denial of appellant’s motion to dismiss on double jeopardy grounds. See Carter v. State, 848 S.W.2d 792 (Tex. Ct. App. 1993) (where a defendant’s motion for a new trial is granted on grounds other than insufficient evidence, double jeopardy does not bar a new trial). Affirmed.
HART and Roaf, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
Appellant and appel-lee were married ini 960 and divorced in 197 6. In the divorce action brought by the appellee, he was awarded custody of the parties’ two minor children and possession of the family home. Title to the home was converted from a tenancy by the entirety to a tenancy in common. Appellant reopened the case in 1982 when she filed a petition for a change of custody of the remaining minor child and, in addition, requested partition of the home or, in the alternative, sale of the property and equal division of the proceeds. The custody matter was subsequently dropped and a hearing was held solely on the issue of partition. From a denial of her petition, appellant brings this appeal.
Appellant was not represented by counsel during the divorce proceeding although she was employed and presumably could have obtained an attorney. She filed a Waiver of Service and Entry of Appearance in which she specifically agreed that appellee was to have custody of the minor children; that he was to have possession of the family home; and that title to the home would be converted to a tenancy in common. The order denying partition is based on the finding that the agreement contained in the Waiver of Service and Entry of Appearance is a valid contract which the court cannot modify. The appellee has not filed a brief and our task is never made easier by a one-brief case.
We agree with the appellant’s contention that the agreement in the Waiver of Service and Entry of Appearance was not the formal independent agreement which could be enforced in a court of law and which the chancellor could not modify. It was signed by the appellant only and, in regard to possession of the home, it simply states, “It is further understood and agreed that the plaintiff is to be awarded possession of the home and that the home be made an Estate in Common.” It seems clear that this is intended merely as a means of dispensing with proof on this issue and by its very terms is not designed to constitute an enforceable, independent contract. Thus, the agreement merges in the court’s decree and could be changed. See Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970); Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953); Holmes v. Holmes, 186 Ark. 251, 53 S.W.2d 226 (1932).
This does not mean, however, that the court’s decree should be changed. The appellant testified that she signed the agreement because she wanted to make sure that her children — whose custody she also agreed would be awarded to appellee — would have a place to stay. At the time of the hearing on the partition question, the parties’ son was 13 years of age and still lived in the home with the appellee. There is no doubt that the chancellor had the right to place the appellee in possession of the home, even for life. See Yancey v. Yancey, 234 Ark. 1046, 356 S.W.2d 649 (1962). See also Russell v. Russell, 275 Ark. 193, 199, 628 S.W.2d 315 (1982) and Bratcher v. Bratcher, 5 Ark. App. 250, 635 S.W.2d 278 (1982). The court denied the appellant’s petition for partition and in our de novo review of the record we find no change in circumstances to warrant a change in possession of the home. For that reason, we affirm the chancellor’s decision.
Cooper and Glaze, JJ., agree. | [
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George K. Cracraft, Chief Judge.
The Fireman’s Insurance Company appeals from a declaratory judgment from the Circuit Court of Woodruff County that its homeowner’s insurance policy issued to Dudley C. Roane afforded coverage for liability and a duty to defend an action for the wrongful death of Herschel Wane Smith brought by his administratrixes against the insured’s estate, and that coverage was not precluded under a policy which excluded from coverage “bodily injury which is expected or intended by the insured” and placed a duty upon the insured to give written notice of an accident or occurrence “as soon as practicable. ” Appellant contends that the trial court erred in failing to direct a verdict and refusing to grant judgment notwithstanding the verdict on both points. Our conclusion that there was error in the first point makes it unnecessary for us to address the second one.
On March 4, 1982 Dudley C. Roane shot and killed Herschel Wane Smith in or beside a truck parked outside a tavern near Fair Oaks in Cross County. On March 26, 1982 Wanda Smith and Betty Wade as co-administratrixes of Smith’s estate, brought a wrongful death action against Roane alleging that the killing was '‘willful, malicious and intentional.” Roane employed his own counsel to represent him in that action and the insurance carrier was given no notice of either the event or the filing of the suit. On April 12, 1983 the appellant was notified of the killing and complaint for the first time in a letter from Roane’s counsel in a wrongful death action, saying that he understood that Roane had had a homeowner’s policy and asking that the complaint be evaluated by the appellant since the attorney did not know what the terms of the policy were.
Roane committed suicide on May 24, 1983 and the action was thereafter revived in the name of his estate. Appellant upon receipt of the copy of the complaint employed local counsel to defend the suit on reservation of its right to deny coverage either for failure of the insured to give notice of the event and complaint “as soon as practicable” as provided by the policy, or under a policy provision excluding coverage for bodily injury which is “expected or intended by the insured.” On July 12, 1983 the appellee amended the complaint to include an alternative plea that the killing resulted from Roane’s “ordinary negligence.” On April 12 appellant filed this action for a declaration of its obligations under both policy provisions.
Both at the close of the plaintiff’s case and after all the evidence was in, the appellant’s motion for a directed verdict was overruled. The matter was submitted to a jury on written interrogatories. The jury found that Roane did not intend to shoot Smith or intend or expect the result and that appellant was not prejudiced by notice of the occurrence not being given as soon as practicable. The court thereafter overruled appellant’s motion for judgment notwithstanding the verdict. This appeal followed.
The interpretation and application of an exception in an insurance policy which excludes coverage for personal injury which is “expected or intended” by the insured has been settled by this court in Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981) and CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984). In Talley the insured admitted firing the shotgun blast which severely inj ured two persons but denied that he knew they were in his line of fire or that he intended to cause them or anyone else an injury. There was evidence corroborating that testimony. The court held that if the insured intended to shoot the injured party there was no coverage, but if he did not and the injury was the result of mere negligence on his part, there was coverage.
In CNA Ins. Co. suit was brought against the insured for sexually abusing a small child over a period of years, the abuse having allegedly resulted in multiple injuries to her. There the insured admitted the conduct with which he was charged but denied that he intended any harm from his activities. There was evidence from a psychologist that males involved in similar activities do not intend or expect that the young females will sustain any injury. The trial court found that the insurer had failed in its burden of proving that although the act was intentional the result was expected. The Court of Appeals affirmed the trial court. CNA Ins. Co. v. McGinnis, 10 Ark. App. 234, 663 S.W.2d 182 (1984). On review the Supreme Court reversed, agreeing with the dissent in the Court of Appeais that for a stepfather in such a situation to claim that he did not expect or intend to cause injury “flies in the face of all reason, common sense and experience.” It cited with approval Clark v. Allstate Ins. Co., 22 Ariz. App. 601, 529 P.2d 1195 (1975) where there was a similar disclaimer of intent to do harm when one person struck another in the face causing serious injury. The Arizona court held that such an action is one which is recognized as one so certain to cause a particular kind of harm that we can say a person who performed the act intended the resulting harm. CNA Ins. Co. concluded that the language in an insurance policy such as this is to be construed in its plain, ordinary and popular sense and means that there is an exclusion from coverage for injuries which the average run of reasonable people would expect or intend to inflict by engaging in the conduct in question.
Under our rules of appellate review we will not reverse a jury’s verdict unless we find it to be unsupported by substantial evidence. From our review of the testimony in this case we conclude that the jury’s finding that Roane did not intend to shoot Smith and did not intend to inflict injury on him is not supported by substantial evidence.
Several witnesses established that Roane was a stranger to them who had arrived at the tavern around 10:00 p.m. on the evening of the killing. He bought a round of drinks for everyone in the tavern and was invited to join certain of them for a period of time. He became intoxicated and began flashing large sums of money which everyone observed. There was evidence that he went to sleep inside the tavern and at closing time was escorted by the owner and several others to his truck which was parked outside and told that he could sleep in the truck until morning. The evidence indicated that he entered the truck and went to sleep on the pillow he kept for that purpose.
The persons who escorted him out returned to the tavern until it closed. Douglas Ridgeway testified that when the tavern closed he left with Terry Armstrong and intended to drive home with him. As they walked past Roane’s truck they mention that he had quite a bit of money with him and one or the other suggested that they take his money while he was sleeping. Armstrong testified that although such a conversation did take place it was only in jest. For some reason, which is not explained by either of them, Armstrong got in Roane’s truck with him. According to Armstrong, Roane became unruly and abusive and Armstrong struck Roane several times on the nose causing excessive bleeding. Armstrong left the truck for a moment but he returned to it. His explanation was that he wished to apologize to Roane for having struck him. There was some testimony that while the altercation between Armstrong and Roane was taking place, Roane had reached under the seat as if to remove a weapon and someone heard Armstrong tell him not to reach under it. Armstrong stated that Roane did reach under the seat and he thought he had a gun and had told him not to do so.
Armstrong testified that before he got to the truck he saw Jake Morgan and Herschel Smith come out of the tavern together. Morgan grabbed Armstrong by the arm and told him to leave Roane alone because he was drunk and didn’t need to be bothered. At that time Herschel Smith was at the truck door and Morgan was heard to say that Roane had a gun. Morgan ran in one direction and Armstrong and ridgeway ran back to their truck. As they were leaving Armstrong heard a shot. Smith, the deceased, had last been seen by the door of the truck. There was no indication of why Smith went to the truck or what he did after he was last seen standing by the open door.
Dudley Roane testified by deposition which was read to the jury. He was a resident of Clarksdale, Mississippi and on March 3rd he cashed a check for $500 intending to go to Mountain Home, Arkansas to seek employment. He placed some of the money in his billfold and about $400 in his boot. When he passed through Fair Oaks he stopped at the tavern because he was tired and thought a beer might pick him up. While he was there some other occupants asked him to join them and he bought a round of beer with money which he took out of his boot. He admitted drinking three bottles of beer but denied that he was intoxicated. He stated that he was then told that he had to leave because the tavern was closing and he went to sleep in his truck due to his fatigue. The next thing he recalled was being awakened roughly by someone coming into the truck and demanding money. He stated that the gave the man a $20 bill which infuriated him because he said he knew he had more money than that. He testified that this person was trying to pull him out of the truck and threatened to get the money and cut his throat with a knife. Roane stated, “He kept coming after me and that’s when I fired the gun. He was just up inside the opened door of the truck. The person I shot at was the one that had been in the truck. I didn’t see or shoot at any other particular person. As far as I knew I was trying to defend myself. I didn’t know what else to do. I did not see another person.” Roane testified that he saw a knife in the hand of his assailant and that he had attempted to cut him on the throat with it. A knife was found on the ground beside the truck after the shooting which was delivered to the sheriff. The sheriff had been unable to determine the ownership of the knife and it had been misplaced in the sheriff’s evidence room and could not be produced at the trial.
There were no eyewitnesses to the killing. Roane’s testimony that he intentionally fired the pistol to repel what he believed to be an assault with a deadly weapon is undisputed. The intent to inflict injury can be inferred from the very character of the act. Any reasonable person would expect or intend serious injury to be inflicted by shooting another at point blank range with a .38 caliber pistol. Reasonable minds could not conclude otherwse.
The jury’s finding that Roane did not intend either the shooting or the result could only be reached by disregarding the testimony of Roane in which he admitted that he fired the shot intentionally and intended to harm his assailant. As there were no facts or circumstances contradicting that testimony it was arbitrary for the jury to disregard it entirely. Our courts have said many times that the jury is the judge ol the weight and credibility of the witnesses but it has no right to arbitrarily disregard the testimony of any witness which is consistent in its entirety and there are no facts or circumstances which contradict or conflict with it. St. Louis-S.F. Ry. Co. v. Harmon, 179 Ark. 248, 15 S.W.2d 310 (1929); St. Louis-San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S.W.2d 611 (1929). While it is true that as a general rule the testimony of an interested witness does not stand as uncontra-dicted, the rule is not inflexible. Where the uncontradicted testimony of an interested witness is unaffected by conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature or where there is no ground for hesitating to accept it as true there is no reason for denying the verity of that evidence. Knighton v. International Paper Co., 246 Ark. 527, 438 S.W.2d 721 (1969); McClarty Leasing Systems, Inc. v. Blackshear, 11 Ark. App. 178, 668 S.W.2d 53 (1984).
All the witnesses admitted that they had not known Roane before that night and that he had left the tavern and gone to sleep in his truck parked outside the tavern. Although Armstrong stated that his statement about “rolling the drunk’’ was in jest and he denied assaulting Roane with a knife, he did admit that for no apparent reason he entered the cab of Roane’s truck. It was not disputed that Armstrong had hit him and caused his nose to bleed profusely and that Roane was mad about it. Nor was it disputed that, within minutes of that encounter, Smith, also for no apparent reason, entered the darkened truck. These facts do not give rise to conflicting inferences that Roane accidentally fired the weapon or that he intended to injure a person other than the one entering his truck at the time. On the contrary they would be entirely consistent with Roane’s testimony. Roane’s testimony is not extraordinary, improbable or surprising in nature. It is also, to be noted that Roane’s testimony is actually adverse to his own interest in this proceeding. It would establish every fact required to denude him of insurance coverage in the wrongful death claim. As there were no facts or circumstances contradicting Roane’s testimony we conclude that the jury acted arbitrarily in totally disregarding it and the trial court erred in denying appellant’s motion for judgment notwithstanding the verdict. The case is reversed and remanded with direction that the trial court enter an order not inconsistent with this opinion.
Cooper and Mayfield, JJ., dissent. | [
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Tom Glaze, Judge.
This case involves two parcels of land locáted in western Little Rock. These parcels were the objects of several purchase agreements: (1) In February, 1975, and March, 1976, appellee James B. McDougal sold them to appellant Richard Abshire, (2) on July 11, 1980, Abshire contracted to sell the parcels to appellee Kandy Hyde, and (3) on May 21, 1981, McDougal agreed to convey title to the parcels to Kandy Hyde if Abshire defaulted on his earlier agreements with McDougal. In September, 1982, Kandy Hyde and her husband filed a quiet title action alleging, among other things, that Abshire had defaulted on his agreements with McDougal, that McDougal subsequently had conveyed the subject parcels to the Hydes and that Abshire’s purchase agreement with McDougal constituted a cloud on the Hydes’ title and such cloud should be removed by the court. Abshire answered and counterclaimed, setting forth certain defenses and claims against the Hydes and also filed a third-party complaint against McDougal, requesting the court to set aside McDougal’s conveyance to the Hydes. Finally, appellant I. E. Moore, Trustee, intervened claiming a security interest in the subject lands by virtue of an assignment agreement he had with Abshire. After the parties denied each others’ claim and all issues were joined and tried, the trial judge entered judgment in favor of the Hydes. Both Abshire and Moore bring this appeal, urging that the trial court erred in not voiding McDougal’s agreement with the Hydes and in failing to recognize and enforce their interests in the parcels. We find the court was correct and therefore affirm.
Before discussing further details surrounding those transactions outlined above, we note that appellants’ argument is largely premised on their belief that the May 21, 1981, agreement between McDougal and Kandy Hyde was improper and contrary to Arkansas law. On this point, we must disagree. Appellants rely on the rule anounced in Lewis v. Boskins, 27 Ark. 61 (1871), wherein the Court held:
A person in possession, under an executory contract of purchase, buying in a better title than his vendor’s, can derive no advantage from it against the vendor, and the same will inure to the benefit of the vendor under whom he entered, and all that he can conscientiously demand is the sum he paid for the better title, with interest.
Applying the foregoing rule, appellants argue that Kandy Hyde was in possession of the parcels by virtue of her purchaser’s agreement with Abshire and that the Hydes could not later disregard her obligation to Abshire by buying title to these same properties from McDougal, Abshire’s vendor. First, we note the Lewis, case was a bond for title case, which is significantly different than what we have before us. Here, we are confronted with executory contracts containing forfeiture clauses. See White v. Page, 216 Ark. 632, 226 S.W.2d 973 (1950). McDougal sold the parcels to Abshire under two purchase agreements dated February 8, 1975, and March 15, 1976, for a total of $48,000. In July, 1980, Abshire by purchase agreement sold these lands to Kandy Hyde for $95,000. In both the sales from McDougal to Abshire and from Abshire to Kandy Hyde, the agreements made time of the essence and, in addition, provided in pertinent part as follows:
[I]f BUYER defaults in the payment of any installment of principal and interest for a period of 60 days, or fails to pay any taxes, assessments or insurance premiums when due, SELLER, at its option, may either declare the entire debt with interest due and payable, or rescind this AGREEMENT, and in the event of rescission all moneys paid by BUYER shall be taken and retained by SELLER, not as a penalty, but as rent of the property and of the relation of the parties thereafter shall be that of landlord and tenant . . . and thereupon SELLER, after notice, may demand possession of the property, and BUYER agrees to surrender immediately peaceable possession. No delay in the exercise of any of the options herein shall be construed as a waiver of such right, but same may be exercised at any subsequent time.
Our appellate courts have upheld the type agreements employed by the parties here, recognizing that a purchaser’s rights under an executory contract affecting real estate may be forfeited pursuant to the contract and without proceedings in law or equity. See, e.g., White v. Page, supra; Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 33 (1964).
The trial court found in the instant case that on November 1, 1981, Abshire defaulted on his payment to McDougal, who, more than sixty days after the default, revoked his agreement with Abshire under the terms of their prior purchase agreements. If McDougal had sold the properties to Abshire under a bond for title — rather than an executory contract with a forfeiture clause — McDougal would have been required to foreclose Abshire’s equity of redemption. See Fairbairn v. Pofahl, 144 Ark. 313, 222 S.W. 16 (1920). Because the McDougal/Abshire sale agreements included forfeiture clauses, no foreclosure action was required when Abshire defaulted. See White v. Page at 637, 226 S.W.2d at 975. Accordingly, when McDougal elected to revoke their agreements, Abshire had no title, equitable or legal, under which Kandy Hyde held possession to the lands in question.
A closer question presented in this appeal is whether McDougal by his actions waived both Abshire’s contract breach and as a consequence, the forfeiture clause contained in the contracts. This issue requires a more detailed review of the facts. Abshire’s agreement with Kandy Hyde called for her to pay a $25,000 payment on November 1,1980, with her monthly payments to commence on the same date. After this agreement was made, Abshire and McDougal modified their earlier agreements, making Abshire’s two payments, i.e., $7,500 and $28,500 respectively, due on November 1, 1980 —the same date Kandy Hyde was to pay $25,000 — and on November 1, 1981. Abshire also assigned McDougal a security interest in Kandy Hyde’s note in the amount of $36,000. On November 1, 1980, both Kandy Hyde and Abshire defaulted on their payments, but neither McDougal nor Abshire took any legal action at that time. On January 2, 1981, Abshire assigned his remaining interest in thé Kandy Hyde note to appellant Moore for a loan of $20,000, but Abshire used none of this loan to pay McDougal. This assignment to Moore was made without notice to McDougal and Kandy Hyde. The record reflects that Kandy Hyde paid Abshire the $25,000 on or before July, 1981, but that sometime earlier, Kandy Hyde’s attorney had voiced concern to Abshire about whether Abshire had the ability to pay McDougal his $36,000. Because of this concern, Kandy Hyde entered into the May 21, 1981, agreement with McDougal wherein he promised to convey title to the parcels to Kandy Hyde in the event Abshire defaulted in his payments to McDougal. As consideration for this agreement, Kandy Hyde paid McDougal the $7,500 partial payment Abshire had failed to pay on November 1, 1980. Kandy Hyde’s attorney suggested this transaction because Kandy had possession of the properties only by virtue of her purchaser’s agreement with Abshire; if Abshire defaulted, Kandy was fearful she could not receive title to the lands. Her fear was realized — Abshire again defaulted on his November 1,1981, payment to McDougal.
Although it is undisputed that Abshire was in default, Moore and Abshire contend that they never received any notice that McDougal intended to revoke the McDougal/Ab-shire agreements and that the sixty-day grace period under their agreements should be extended because of the actions after Abshire’s default of the Hydes and, particularly, of McDougal. Appellant cites Berry v. Crawford, 237 Ark. 380, 373 S. W.2d 129 (1963), in support of this proposition, but it is inapposite. In Berry, the contract provided that the seller had to make a demand on the buyer after the due date — here, no such notice was required. In fact, in his promissory note executed at the time of his September 11,1980, modification agreement with McDougal, Abshire waived presentment for and notice of payment. Nonetheless, we believe the record sufficiently reflects Abshire was fully aware that McDougal intended to revoke their prior agreements if Abshire defaulted. Appellants’ contentions are contrary to the trial court’s findings, and from our review of the record, we are unable to conclude the court was clearly erroneous.
The court found that McDougal gave notice of revocation of his agreement with Abshire and after sixty days, revoked the agreement. McDougal signed a revocation agreement on January 7, 1982, the same date that he deeded the parcels to the Hydes. Kandy Hyde’s attorney testified that he had advised Abshire of his default, and he believed he had told Abshire that he had a sixty-day grace period. Hyde’s counsel said that Abshire responded, “he could make the payment.” Abshire was not heard from after January 1,1982. However, Moore’s attorney did contact McDougal and Kandy Hyde’s attorney, indicating Moore’s interest in protecting Abshire’s position. When these contacts were made is unclear. In a conversation with Moore’s attorney, McDougal expressed his uncertainty about his legal position if Moore chose to pay Abshire’s debt, especially in view of McDougal’s May 21, 1981, contract with Kandy Hyde. Moore’s attorney later discussed the matter with Kandy Hyde’s attorney, but Hyde’s attorney testified he did not recall the mention of Moore’s name; nor did he recall any offer by Moore to buy Abshire’s interest.
Although there is conflict in the testimonies regarding dates and what was said between the parties during November and December, 1981, the sixty-day grace period, it is clear that Moore never tendered the monies due on Abshire’s obligation to McDougal until after February 1, 1982. From our study of the record, we are unable to conclude that Abshire was not properly notified of McDougal’s election to revoke their prior agreements; nor can we find McDougal (or the Hydes) waived or somehow extended the sixty-day grace period which was a part of the Abshire/McDougal agreements. Because we find the trial court’s findings and conclusions are supported by the preponderance of the evidence, we affirm.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Per Curiam.
At the appellant’s request this case was set for oral argument on November 28, 1984. On November 26, 1984, the appellant filed a paper designated “Waiver of Oral Argument” to which the appellee filed a response stating it had no objection to the waiver of oral argument.
We have treated the appellant’s paper as a motion to waive the oral argument and the motion has been granted. The case is withdrawn from submission and will be resubmitted when it reaches its proper place on the docket.
Mayfield, J., dissents. | [
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Tom Glaze, Judge.
In this Workers’ Compensation case, the primary issue is whether the appellant is entitled to receive total disability benefits for a period of time following the end of her healing period and during which she was unable to work because the appellee employer could not provide her a job within the restrictions and limitations placed upon her by her physician. We affirm.
Appellant suffered a compensable injury to her neck on October. 17, 1977. She received certain temporary total disability benefits afterwards but part of those was disallowed by the Commission on September 20, 1982, and neither party appealed that determination. Before the Commission’s first decision was rendered, appellant entered another healing period, which undisputedly commenced after April 15, 1981, and ended on June 8, 1981. Appellee paid appellant temporary total disability benefits for this new period; no one contests these benefits in this appeal.
In this appeal, appellant contends she is entitled to current total disability benefits between June 8, 1981, and January 3, 1983, the period she was unable to work because her physician had restricted her to lifting not more than twenty-five pounds, and because during this period, appel-lee had no job for appellant. Appellant also asserts that she sought employment elsewhere without success. She argues that under the circumstances of her case and because she made reasonable efforts to seek other employment during this period, she is entitled to total disability benefits from June 8, 1981, through January 3, 1983, after which a job within her restrictions became available with the appellee.
Appellee argues the appellant offered no evidence that she was “incapacitated” after June 8, 1981, from earning wages in some employment or that her loss of earnings resulted from “incapacity” as required by the statutory definition of disability. In other words, appellee contends the proof shows that appellent’s lack of earnings resulted from unavailability of work and not from incapacity to earn. We must agree.
Appellant testified that when her physician released her on June 8,1981, appellee had nothing for her to do although she contacted appellee several times. She stated that the Employment Security Division could not find her work and when she checked with Wal-Mart, Campbell’s Outlet and Air-Therm, those businesses had no jobs and were not accepting applications. In January, 1983, appellant returned to work for appellee, performing work within her twenty-five-pound lifting restriction, but she indicated that she was not sure whether such work was previously available at the appellee’s.
Appellant concedes that she does not fall within the odd-lot category. Under the odd-lot doctrine, total disability may be found in the case of workers who, while not altogether incapacitated from work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. In M. M. Cohn v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979), our Court, quoting from Larson, Workmen’s Compensation Law, stated:
If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant’s mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. [2 Larson. . . § 57.61, pp. 10-136 and 10-137].
Because appellant undisputedly fails to come within the odd-lot category, the burden remains hers to show that she is incapacitated because of her injury to earn, in the same or any other employment, the wages she was receiving at the time of the injury. See Ark. Stat. Ann. § 81-1302(e) (Repl. 1976); Cf. Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The Commission, adopting the administrative law j udge’s opinion, found that appellant was not incapacitated because of injury from earning wages, but rather she was merely unable to find employment. In fact, appellant’s own testimony indicates, according to the contacts she made with other employers, that those employers would not have hired her even if she had been free from any physical restrictions. Based upon the record before us, we cannot conclude the Commission erred or that its decision was not based upon substantial evidence. Appellant simply failed to show she is entitled to total disability benefits after June 8, 1981.
In conclusion, we add that the appellant is not precluded from seeking permanent partial disability benefits— a fact acknowledged by the appellee. Apparently, the appellee paid the appellant benefits based upon a ten percent anatomical rating given by her physician; but the record reflects that the Commission has not considered nor has appellant sought any additional permanent partial benefits to which she may be entitled. This decision merely affirms the Commission’s holding that the evidence fails to show appellant has any entitlement to total disability payments after her healing period.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree.
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George K. Cracraft, Chief Judge.
Appellant appeals from the trial court’s refusal to grant his post trial motions to conform the pleadings to the proof and to reform the jury verdict. We. find no error.
Jessie O. Merryman owned approximately 90 acres of woodland which he wished to put into pasture. He orally contracted with Kenneth Snow to clear the land. Under an oral agreement with Snow, Jack Caudill participated in the bulldozing operations. After the work was completed a dispute arose between the parties. Appellant Caudill brought an action against Snow as the general contractor and Merryman as owner of the land based upon two alleged oral contracts — one with Snow to clear the north half of the property at an hourly rate for which he claimed the sum of $800 to be due, and one with Merryman for clearing the south half for a contract price of $3,050 for which he claimed a mechanics lien.
Merryman denied any contract with Caudill and asserted that he had made a contract only with Snow. Merryman counterclaimed against Caudill for damages to his real estate and cross-claimed against Snow for damages for breach of contract. Snow admitted the two oral contracts to clear Merryman’s land but denied causing any damage to the property or breaking the contract in any way. Snow cross-complained against Merryman for $2100 which he alleged he still owed him on the contract.
At the trial there was testimony offered by the parties in support of their respective positions. Caudill testified that he had an independent contract with Merryman for clearing the land and that there was due him the sum of $3,050 on the contract price. He further testified that he had an agreement to do work for Snow at an hourly wage for which he was entitled to $800. Merryman testified that he had no contract with Caudill and that his only contract was with Snow, even though he knew that Caudill was working under some arrangement with Snow. He offered testimony with regard to his damages which was contradicted. Snow stated that he had an arrangement with Merryman to clear the entire tract and had subcontracted one-half of it to Caudill on agreement that he would give him one-half of the contract price. He stated that there was due him under the contract the sum of $4200, half of which he felt he owed to Caudill, and admitted that he was indebted to Caudill for $800 for additional clearing done by him.
The court directed a verdict in favor of Caudill against Snow for the sum of $800. All other issues were submitted to the jury. The jury returned verdicts for Caudill on Merryman’s claim against him for damages, in favor of Snow as to Merryman’s cross-complaint against him for breach of contract, and for Merryman in Caudill’s claim against him on the independent contract for clearing. On the cross-claim of Snow against Merryman the jury returned a verdict for Snow in the amount of $4200. The jury, however, added in longhand on the verdict form submitted to them the following words: “With stipulation that Kenneth Snow will pay Jack Caudill the amount of $2100.” At that time the court instructed the jury that they were not permitted to put a condition on a verdict and sent them back to the jury room with instructions to reconsider their verdicts and to return them in court without stipulations or conditions.
After reconsideration the jury deleted the stipulation with regard to the $2100 in their verdict on the cross-claim of Snow against Merryman and made no changes in any other verdicts. These verdicts were received and recorded by the court.
The appellant thereafter filed a motion with the trial court in which he asserted that even though the right of Caudill to recover $2100 from Merryman was not raised in his pleading, the issue was tried with theimplied consent of the parties and the court ought to now amend the pleadings to conform to the proof. Appellant also asserted that the jury, by their initial conditional verdict, expressed an intention that Caudill recover $2100 from Merryman and therefore the verdict ought to be amended to conform to the true intention of the jury. The trial court denied both motions and entered judgment in accordance with the verdicts after ordering a remittitur of $2100 as the jury verdict was in excess of the amount Snow sued for. Snow does not appeal from the order of remittitur.
Caudill contends on appeal that the trial court erred in denying his post trial motions to amend the pleadings to conform to the proof and to conform the verdict to the clear intent of the jury. We first address appellant’s contention that the verdict should be reformed to reflect the jury’s intention.
Under the circumstances which arose there were several options open to the court. The trial court does have power to determine what the jury’s intention is when the verdict may be fairly interpreted or where it is obvious and manifest although incorrectly expressed under a mistake of law. When the jury’s intention can be ascertained the trial court is accorded the power to modify the verdict to conform to the jury’s intent. Traylor v. Huntsman & Allis-Chalmers, 253 Ark. 704, 488 S.W.2d 30 (1972). Where the jury’s intent is not manifest or the verdicts are inconsistent with each other the trial court has authority to poll the jury to determine their intention or to resubmit the issue on proper instruction, as was done in this case. Mattingly v. Griffin, 235 Ark. 1028, 363 S.W.2d 919 (1963).
Appellant did not request that the jury be polled or that on resubmission it be instructed on, or furnished a verdict form which would have permitted recovery on, appellant’s amended claim. The case was resubmitted to the jury on the original verdict forms without objection. The jury then returned an entirely new verdict which made no reference to Caudill. The second verdict then became the jury’s verdict. We conclude that the proper rule to apply is stated in 89 C.J.S. Trial § 512 (1955) as follows:
Effect of Reconsideration or Change of Verdict. Where the jury have been sent back to correct a verdict which has not become final and the jury, on reconsidering, are unable to agree on a verdict, and are, therefore, discharged, the original defective verdict cannot be accepted and treated as the verdict of the jury; and after the court has permitted the jury to retire and return a changed verdict it is error for the court to reject this verdict and enter judgment on the verdict firstreturned since the verdict subsequently returned may properly be accepted and used as the basis for judicial action, unless the second verdict is in some manner defective.
Cited as authority for the rule is Bino v. Veenhuizen, 141 Wash. 18, 250 P. 450, 49 A.L.R. 1297 (1926) which states:
In Grant v. State, [33 Fla. 291, 14 So. 757 (1894)] this same question was urged upon the court. The court there said: ‘The judge refused to receive the verdict when given by the jury, and they were instructed to retire, and present a verdict in proper form. Thereupon they retired, and brought in another and different verdict. The first verdict was never recorded, nor does it appear from the record before us that it had ever been affirmed as the unanimous finding of the j ury. The jury having retired and brought in a different verdict, which was recorded, it cannot be held that the first is the verdict of the jury, or that it has any validity whatever. The case was still in the hands of the jury upon their second retirement, and, not being bound by their former action, they were at liberty to review the case, and bring in an entirely new verdict.’
We think the trial court committed no error in refusing to record this defective verdict, and enter judgment thereon.
See also Whitehead v. City of Tulsa, 624 P.2d 65 (Okla. 1980); Roth v. Meeker, 27 Ill. Dec. 840, 389 N.E.2d 1248 (1979); Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 263 S.E.2d 171 (1979); Sweeney v. Wiggins, 350 So.2d 536 (Fla. App. 1977).
We conclude that while the trial court had several alternatives there was no error in opting, without objection, to refer the matter to the jury for its reconsideration and correction, and when this was done the jury had a right to return an entirely different verdict, which then became its only verdict, the one on which the judgment should be entered.
In view of our conclusion on this point we do not address the issue of the power of the court to amend the pleadings to conform to the proof at this stage of the proceedings or its power in any event to reform the verdict after the jury has been discharged.
Affirmed.
Mayfield, J., concurs. | [
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George K. Cracraft, Chief Judge.
Debra Jones appeals from an order of the chancery court awarding custody of her minor son to Ross and Glenda Jones. Appellant was divorced from her husband in 1979 and was awarded custody of the minor by that decree. Appellees are the minor’s aunt and uncle in whose custody the minor had subsequently been placed by the juvenile court. While the case was pending in j uvenile court appellees filed this action in the chancery court seeking custody of the child. This case was not heard until after the j uvenile court proceedings were dismissed. Appellant contends that the chancery court lacked subject matter jurisdiction and that the court erred in removing custody from appellant.
The appellant first contends that the trial court was without subject matter jurisdiction. The complaint of the appellees alleged that the appellant was not a proper person to have custody of the minor and the best interest of the child required that he be placed in appellees’ custody. By subsequent amendment appellees alleged that the minor had originally been placed in their custody by an order of the juvenile court which was later abated. They further alleged that the minor had been beaten and abused while in appellant’s custody and if returned to her home would be subjected to further abuse, and that the child’s condition had improved while in their care and custody and that he should remain there. The appellant contends that these allegations in effect maintain that the minor is a “dependant-neglected child” within the meaning of Ark. Stat. Ann. § 45-403(4) (Repl. 1977) and that “original and exclusive jurisdiction” of such cases is vested in the juvenile court under § 45-406(a)(Supp. 1983). We find no merit to this contention.
It has long been settled that minors are wards of the chancery court and it is the duty of those courts to make all orders that will properly safeguard their rights, including the awarding of their custody to persons other than natural parents if circumstances warrant. Richards v. Taylor, 202 Ark. 183, 150 S.W.2d 32 (1941); Kirk v. Jones, 178 Ark. 583, 12 S.W.2d 879 (1928); State v. Grisby & Wife, 38 Ark. 406 (1882). The enactment of the Arkansas Juvenile Code of 1975 in no way interferes with that jurisdiction. The purpose of the juvenile code was to empower the State in its public guardianship capacity to act in emergency situations involving the safety and welfare of dependent, neglected and abused minors and to designate the forum in which determinations of the necessity of temporarily placing those minors under the care of the State is to be made. The juvenile court has special jurisdiction to temporarily protect minors in emergency situations.
The chancery courts retain general jurisdiction over the persons and the properties of minors. Robins v. Ark. Social Services, 273 Ark. 241, 617 S.W.2d 857 (1981); Ex Parte King, 141 Ark. 213, 217 S.W. 465 (1919). Both cases carefully point out that the juvenile courts are to exercise special subject matter jurisdiction solely on the basis of the State’s public guardianship over minors as a class and that the constitutionally created courts retain all of their traditional jurisdiction over individual minors.
In Ex Parte King, the court in discussing the constitutionality of an earlier Juvenile Act vesting jurisdiction in the county court stated:
In reaching this conclusion, we are not unmindful of the jurisdiction conferred by the Constitution upon courts of chancery, which is the same jurisdiction that courts of equity exercise at the time of the adoption of the Constitution. Art. 7, § 15, Const. Courts of equity at the time of the adoption of our Constitution had general jurisdiction over the persons and property of minors. Bowles v. Dixon, 52 Ark. 92; Myrick v. Jacks, 33 Ark. 425; State v. Grisby and Wife, 38 Ark. 406; Watson v. Henderson, 98 Ark. 63.
In the last case we said: “But it was not intended by the Constitution to take away from the chancery courts their ancient original jurisdiction over the persons and estates of minors so far as such jurisdiction may be necessary for the protection of the infant or to protect his property from waste or spoliation through the carelessness, fraud, mistake or imposition of his parents, guardians, or others. These are distinct grounds of equitable jurisdiction which have existed since the establishment of courts of chancery, and have been recognized in the jurisprudence of our English-speaking people for centuries.”
. . .This jurisdiction of chancery courts, as the jurisdiction of probate courts in matters relating to guardians, deals solely with the person and the estate of the individual infant and has reference to the interests of the particular individual rather than to a class. It deals with matters of private guardianship and not with that public guardianship over infants as a class, such as was contemplated by the framers of the Constitution by the jurisdiction conferred upon county courts, as parens patriae, to assume custody and control over infants as wards of the State whenever their condition, or their conduct, makes it necessary that this should be done for the public welfare. [Emphasis supplied]
In Robins the court, in discussing the present Juvenile Code, cited Ex Parte King with approval and declared:
Juvenile court has no jurisdiction to hear custody cases between private litigants. Juvenile courts hear cases involving temporary care of infants as wards of the State, while chancery courts hear custody cases between private litigants.
The appellees’ complaint in the chancery court did not purport to provide for temporary care of a minor who was neglected or abused in his present whereabouts. That had already been done by the State over a year earlier in the juvenile court which placed the child in appellees’ care. This action was brought to obtain legal and parental custody of a minor already in appellees’ physical custody on allegation that his natural parent was unfit and that it would be in the minor’s best interest that he remain there. It is also noted that when appellees attempted to intervene in the j uvenile proceedings and present evidence of appellant’s unfitness, appellant moved to dismiss the action “because it involves a dispute between two private parties and is thereby beyond the jurisdiction of juvenile court,’’ citing Robins. The juvenile court granted that motion.
The appellant next contends that the chancellor based his determination solely on the superior ability of appellees to attend to the material needs of the child and ignored the rule that as between the parents and strangers the law prefers the former even though the latter may be more affluent. She argues that the evidence would not sustain a finding that she was guilty of immoral conduct or had failed to properly support the child in accordance with her abilities and that her right to custody should have taken preference even though his condition in life was materially improved while in the appellees’ care.
We agree that the State should not interfere with a parental right simply to better the temporal welfare of the child as against an unoffending parent. Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953); French v. Graves, 205 Ark. 409, 168 S.W.2d 1108 (1943). We do not agree, however, that moral fitness and financial ability are the only criteria by which to judge the right of a parent to the control and custody of children. In Tucker v. Tucker, 207 Ark. 359, 180 S.W.2d 571 (1944) it was declared that the prime concern and controlling factor is the best interest of the child, and the court in its sound discretion will look into the peculiar circumstances of each case and act as the welfare of the child appears to require. Parental rights are not to be enforced to the detriment or destruction of the happiness or well being of the child. The rights of parents are not proprietary and are subject to their related duty to care for and protect the child and the law secures their preferential rights only so long as they discharge their obligations. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Kirk v. Jones, supra; State v. Grisby, supra. The unfitness for which this preferential right to custody may be forfeited can result from a parental failure to discharge any of the correlated duties of parenthood. In Grisby it was stated that this preference for natural parents is based on a presumption that they will take care of their children, bring them up properly and treat them with kindness and affection, and when that presumption has been dissipated chancery will interfere and place the child where those parental duties will be discharged by another.
A complete recitation of the evidence presented in this voluminous record would serve only to unduly lengthen this opinion. We recite only a portion of that evidence in stating our conclusion that findings by the chancellor that the appellant was an offending parent, had failed to discharge those related duties of a parent stated in Richards, Grisby, and Watkins, and that the interest of this child would best be served by placing him in the care of the appellees were warranted.
There was evidence that while his parents were still married the child was severely abused and beaten by his father on numerous occasions. On one occasion the child was taken to a doctor who notified SCAN, an organization which involves itself in families where there is suspected child abuse or neglect. SCAN then monitored the family for a period of five years. The appellant stated that prior to her divorce in 1979 the child was abused only by his father. There was evidence, however, that the physical abuse continued after the divorce. In 1981 he was hospitalized by a doctor as the result of a beating which the child initially said had been administered by his mother. He later accused his grandmother as the guilty party. As the result of that incident the child was removed from the mother’s home by order of the juvenile court and placed in the custody of SCAN for a period of six months before being returned to his mother, still under the observation of the organization. Although the physical evidence of bruises about his body and face were observed by the doctor, social worker and other lay persons, the mother denied that she ever saw the evidence of abuse on that occasion and attributed the accusation to fabrication.
In the spring of 1982 the child was again removed from the mother’s custody by order of the juvenile court on her own complaint of delinquency resulting from behavior problems which she stated she was unable to handle by herself. The juvenile court placed him in the Paragould Children’s Home and subsequently removed him to the appellees’ home where he remained for more than a year prior to the hearing in this case.
Social workers, special education teachers and the appellees testified that although the boy had emotional, social and academic problems while in the mother’s care, those problems were immediately relieved on both occasions when he was removed from her custody and placed in foster care. The social workers and teachers also stated that upon his return to his mother after release from the first juvenile order he immediately regressed in all areas. His social behavior regressed to such an extent after returning to his mother that even she could not handle him and sought the aid of the juvenile court.
If, in fact, only the father and grandmother had been guilty of physical abuse there was no indication that the appellant interfered to protect him. There was evidence, however, that appellant admitted to both SCAN and the social workers that she saw characteristics of the father in the boy and had taken out her hard feelings on him. There was evidence that there was a vast difference in the manner in which appellant treated her son and the way she treated his sister. Appellant was unduly harsh on the son and would not let him do many of the things being ordinarily done by children his age. On one occasion she punished him by requiring him to stand before his first grade class and suck on a baby bottle. The teacher ordered her to leave and contacted Social Services, who have monitored the child since that time. They state that as a result of her treatment the child became withdrawn, unhappy and developed his emotional, social and academic problems. The sister, on the other hand, was permitted to do what all other children were permitted to do and was found to be normal and well adjusted in all areas.
The child testified that the happiest time in his life had been when he was living with the appellees and he hated living with his mother because he was beaten in her home. He likes the appellees and his school and the way his life is presently going. He thinks that his grades would improve if he is permitted to stay where he is and has threatened to run away if he is forced to return to his mother’s residence.
There were home study reports made available to the court without objection which stated that from conversations with the mother and grandmother it was determined that the minor was unhappy at home, ran away often and would set fires in the house and break valuable things. These incidents were said to have occurred when he felt he was not loved and not receiving attention. It was shown that the grandmother was the authority figure in that home, and appellant took no responsibilities, and permitted her mother to make decisions about her life and those of her children. The appellant shared a two bedroom home with her mother and her brother, and her sole income was from aid to dependent children. There was other evidence including testimony of the family doctor that the mother was emotionally unstable and could not adequately deal with the stresses of life.
The social worker recommended that the child remain with the appellees. The home study reports reflected that appellees’ home was much larger, in a more desirable location near his school and parks, and that appellees do not believe in severe discipline of children. Ross Jones was employed at Union Carbide with a monthly take-home pay in excess of $1,000. Glenda Jones had ceased her former employment when the child came into their home in order to spend more time tending to his needs. This report also recommended that the child remain with the appellees until the appellant proved to be responsible enough to care for him or was willing to remove him from the grandmother’s residence. The mother gave no indication that she was willing to do so.
From our review of the entire record and consideration of all of the surrounding circumstances we cannot conclude that the chancellor’s findings that the appellant had not discharged her obligations of parenthood to this child and that his welfare and interest would best be served by placing him in the custody of appellees were clearly erroneous.
We affirm.
Corbin and Cloninger, JJ., agree. | [
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Lawson Cloninger, Judge.
This appeal arises from a suit by appellant, Patrick Joseph Lyons, to set aside a deed from him to his wife, appellee Lois Lyons, on the basis of fraud, overreaching, undue influence, and harassment by the wife. Appellant amended his complaint to pray for divorce on the grounds of three years continuous separation. At trial, a divorce was awarded appellant. The court found that appellant had failed to carry his burden of proof and refused to order the deed set aside. The court held that the couple’s property was not marital property capable of division under Ark. Stat. Ann. § 34-1214 (Supp. 1983), and allowed appellee to retain all the property acquired during the course of the marriage.
Appellant argues two points for reversal: (1) The trial court erred in refusing to set aside the deed; (2) and the trial court erred in distributing all of the property of the marriage to appellee. We do not find appellant’s arguments persuasive, and we affirm.
For his first point, appellant contends that his mental condition rendered him susceptible to duress, undue influence, and overreaching on the part of appellee. Appellant had, several years earlier, lost his left eye as a result of an industrial accident. He subsequently lost his job because of his inability to meet the physical demands of his employment. Severe depression followed, and appellant left his Arkansas home for San Francisco, where he underwent psychiatric treatment. While he was living in California, appellee and appellant communicated by telephone and letter concerning the residence of the parties owned by the couple as tenants by the entirety, which appellant eventually agreed to deed to appellee. A quitclaim deed, prepared at appellee’s direction, was sent to appellant, who executed and returned it to appellee, who recorded it.
Appellant claims that a confidential relationship existed between him and appellee. We have held that once one spouse has shown that a confidential relationship existed with the other, and that the other was the dominant party in the relationship, it is presumed that a transfer of property from the former to the latter was invalid due to coercion and undue influence. In such a case, the spouse to whom the property was transferred bears the burden of rebutting the presumption by producing evidence showing that the transfers of property were freely and voluntarily executed. Chrestman v. Chrestman, 4 Ark. App. 281, 630 S.W.2d 60 (1982); Marshall v. Marshall, 271 Ark. 116, 607 S.W.2d 90 (Ark. App. 1980).
In the instant case, however, appellant has failed to demonstrate the existence of a confidential relationship in which appellee was the dominant party. The divorce granted to appellant was based upon evidence that there had been a three year continuous separation without cohabitation. Beyond that, appellant failed to convince the chancellor that any duress or undue influence was exerted upon him by appellee. There was evidence that appellant was depressed, but there was no allegation or proof of incompetence. Although we review the record in 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. A.R.C.P. Rule 52(a); Chrestman v. Chrestman, supra; Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). We cannot say, on the basis of the record before us, that the chancellor’s findings were clearly against the preponderance of the evidence or that they were clearly erroneous.
For his second point, appellant urges that the parties’ residence was marital property which should have been divided under Ark. Stat. Ann. § 34-1214. We do not agree with this contention. The property was initially an estate by the entirety and thus exempt from the statutory scheme. Appellant testified that he executed the quitclaim deed in order to get some peace and quiet from appellee’s demands. The chancellor found that appellant voluntarily executed the deed, and although the court did not specifically find that there was a gift intended, it would have been justified in so doing. There was ample evidence from which the chancellor could have found that there was an actual delivery of the subject matter of the gift with a clear intent to make an immediate, unconditional and final gift accompanied by an intent to release all future dominion and control. See Ragland v. Commercial Bank of Arkansas, 276 Ark. 418, 635 S.W.2d 258 (1982). A gift acquired by either spouse subsequent to the marriage is excluded from the definition of martial property by the provisions of Ark. Stat. Ann. § 34-1214 (B) (1) (Supp. 1983). If the decision of the trial judge is correct for any reason we will not reverse his decision. White v. Gladden, 6 Ark. App. 299, 641 S.W.2d 738 (1982).
Appellant also argues that the chancellor erred in failing to recognize appellant’s interest in the personal property acquired during the marriage. We believe the trial court acted within the bounds of its discretion. Evidence had been presented which indicated that appellant had voluntarily relinquished his claim on the various articles he left in Arkansas when he moved to California. The chancellor found as follows:
4. There is no basis to require Defendant to account to Plaintiff for any funds collected by her from the business or as rental income from 1979 when Plaintiff left until the institution of this lawsuit, that the Plaintiff first left defendant in May of 1978 withdrawing one-half of the funds which the parties had on deposit in Worthen Bank, that the defendant thereafter deposited her half into a separate account, that plaintiff left again in June of 1979 and with the stated intent never to return to the State of Arkansas; that thereafter, Defendant remodeled the dog kennel into a tenant property and used the proceeds gained from same for her support and maintenance and to pay joint obligations, the Plaintiff having sent a total of $500.00 to defendant from 1979 to date.
5. That all the remaining personal property accumulated in the marriage was abandoned by the Plaintiff as reflected from his letters to the Defendant introduced into evidence as Exhibits 5 in which Plaintiff indicated he was never coming back to Arkansas; that he had no interest in the disposition of the personal property which he had left behind and that defendant could dispose of it in any manner she desired. . . .
The findings of the court are supported by the evidence, and we will not disturb those findings on appeal.
Affirmed.
Cooper and Corbin, JJ., agree. | [
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Tom Glaze, Judge.
This appeal arises from the appellants’ convictions of third degree battery, for which Carter was sentenced to sixty days and Thompson to one hundred twenty days in the Pulaski County jail. Appellants rely upon one point for reversal: that the trial court erred in not finding appellants justified in resisting an unlawful intrusion into their home and an attack upon their persons by police officers.
According to testimony at trial, three Little Rock police officers went to appellant Carter’s home on the morning of May 24, 1982, looking for her son, who was suspected of a crime. Mrs. Carter told the policemen that her son was not there, and she offered to bring him to the police station later if he came to the house. As the policemen began to leave the house, they observed that someone had pulled down a curtain upstairs. When the officers mentioned that fact to Mrs. Carter, she offered to allow them to search her home. Detective Dunnington and Officer Garrison entered the house; Detective LeMaster remained outside the back door.
Officer Garrison stayed downstairs in the living room while Detective Dunnington went upstairs with Mrs. Carter. When the two had gotten halfway up the stairs, Mrs. Carter’s daughter, appellant Thompson, came out of a bedroom “screaming” that the officers had no search warrant and no right to be there. Mrs. Carter then asked the officers to leave. Detective Dunnington testified that he continued up the stairs behind Mrs. Carter, touching her arm to move around her. At that point, Mrs. Thompson reached over and began scratching him on the face. Then Mrs. Carter “jumped” him. Officer Garrison came to his aid and the four of them struggled. Then Dwight Jones came out of an upstairs bedroom with something in his hand and said, “Duck, Momma, I’ve got a gun.” Officer Garrison drew his gun, and Jones ran back into the bedroom. Detective LeMaster came into the house to assist the other two officers. Jones came down the stairs again with a twelve-inch piece of wood or metal pipe in his hand, which he drew back as if to hit Officer Dunnington. Detective LeMaster drew his revolver to stop Jones, and the scuffle ended. Both police officers were taken to the hospital where they were treated for minor wounds and given tetanus shots.
The appellants rely upon the justification statute, Ark. Stat. Ann. § 41-507.1 (Supp. 1983), which provides:
The right of an individual to defend himself and the lives of persons, or property, in his home against harm, injury, or loss by persons unlawfully entering or attempting to enter or intrude thereupon is hereby reaffirmed as a fundamental right to be preserved and promoted as a public policy in this State, and there shall be a legal presumption that any force or means used to accomplish such purpose was exercised in a lawful and necessary manner, unless the same is overcome by clear and convincing evidence to the contrary.
The above-stated public policy shall be strictly complied with by the courts, and appropriate instructions thereof shall be given to juries sitting in trial of criminal charges brought in connection therewith, (emphasis supplied).
Appellants contend that once Mrs. Carter revoked her consent to search, the police officers assumed the posture of illegal intruders against whom the appellants had the right to defense themselves by virtue of the statute. Appellants relied upon. Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982), for the propositions that a person has a right to use reasonable force to protect himself and a right not to retreat when in his home.
In Doles, the appellant had been convicted of second degree murder for shooting an acquaintance who was in appellant’s home threatening to kill him, despite appellant’s repeated requests that he leave. The Supreme Court found that the trial court erred in refusing to give a jury instruction on j ustification when sufficient evidence existed to support such an instruction. See Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). The facts at bar present a very different case than Doles.
The police officers went to Mrs. Carter’s home in their official capacity and in the course of an investigation. They entered at Mrs. Carter’s invitation, not as intruders. Although she unquestionably had the right to revoke her consent to search, A.R.Cr.P. Rule 11.5, her revocation necessitated only that the officers cease their search. It does not follow, as appellants contend, that from the moment of revocation the officers became illegal intruders who were no longer serving in their official capacity as police officers.
Section 41-507.1, supra, gives one the right to defend himself and others and his property against unlawful intrusion, but not the right to be an aggressor. Sufficient evidence existed for the trial court to find that the appellants acted as aggressors rather than in defense of their persons or property. The evidence did not indicate that the police officers attempted in any way to harm or injure the appellants or their property.
This court has dealt recently with two cases involving a person’s right to use force against law enforcement officers. Both cases involved officers who were making arrests. Both also involved Ark. Stat. Ann. § 41-512 (Repl. 1977), which prohibits the use of physical force to resist arrest. We pointed out in Barnes v. State, 4 Ark. App. 84, 628 S.W.2d 334 (1982), that § 41-512 does not deprive one of the defense of justification if a law enforcement officer uses excessive force in making an arrest. One may use such force as he reasonably believes necessary to defend against any unlawful force he reasonably believes a law enforcement officer is about to inflict upon him. We reiterated this proposition in Lucas v. State, 5 Ark. App. 163, 634 S.W.2d 145 (1982).
In the case at bar, there is no evidence the police officers used force at all, let alone unlawful force sufficient to j ustify appellants’ attacks upon them. The fact that the officers remained on the premises after Mrs. Carter revoked her consent to search does not equate with the officers’ use of excessive force in Barnes and Lucas. The testimonies of the appellants were not abstracted for the Court, but Detective Dunnington testified that he placed his hand on Mrs. Carter’s arm to step around her on the stairs. That was the only physical action exerted by any of the officers until the attack on Detective Dunnington commenced. The trial judge pointed out:
Now, whether the officers were right or wrong in entering or staying in the residence is not the most important consideration in this case. The most important fact is that these officers were attacked... while performing their duty, whether they’re officers or citizens they should not be attacked.
We agree.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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JOHN F. STROUD, Jr., Judge.
This is a foreclosure action in which appellant, Mid-State Trust III, sought judgment against the appellees, Johnny and Ida Avriett, on a promissory note and foreclosure of the mortgage securing the note. The chancellor found in favor of the appellees. Appellant’s sole point of appeal is that the trial court erred in holding that it was not entitled to accelerate the debt. We disagree and affirm.
In reviewing chancery cases, we will not set aside a chancellor’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. Mid-State Trust II v. Jackson, 42 Ark. App. 112, 854 S.W.2d 734 (1993). Moreover, principles of justice permit a court of equity to protect the debtor against an inequitable acceleration of the maturity of a debt. Id. In his decree, the chancellor found in pertinent part: 1) that appellees had complied with the terms of the mortgage by providing insurance in the amount of $20,000, and that consequently appellant’s demand for reimbursement of premiums paid by it in excess of $20,000 had no contractual basis; and 2) that, therefore, appellant’s conduct was inequitable in conditioning its acceptance of house payments upon an additional requirement that it be reimbursed for its premium costs. We find neither clear error in the chancellor’s finding of fact with respect to the insurance coverage, nor an abuse of discretion in the chancellor’s conclusion that it would be inequitable to allow foreclosure under the facts of this case.
In 1989, the appellees executed a promissory note and mort^ gage in connection with their purchase of a home from Jim Walter Homes, Inc. The sum of all payments under the note was $67,560, payable in 240 monthly installments of $281.50. However, the amount financed was $29,180. Through various assignments, .appellant eventually became holder of the note and the lien securing it. The terms of the note provided in pertinent part that the holder had the right to declare the entire balance due and collectible if appellees failed to make a monthly payment for thirty days. In addition, appellees were required under the terms of the note to reimburse the note holder for any amounts it might have to advance in order to protect the property. Under the terms of the building contract and mortgage, the appellees agreed to maintain insurance on the property in an amount equal to the lesser of the actual cash value of the house or the unpaid balance of the cash price of the house. Finally, under the terms of the mortgage, appellees were to deliver original insurance policies to the holder of the note. If appropriate insurance was not maintained, then the holder had the right, but not the obligation, to purchase coverage and add that cost to the appellees’ indebtedness or demand reimbursement of that cost.
Appellee Ida Avriett testified that she knew that she and appel-lee Johnny Avriett were supposed to maintain insurance on the property. She also stated that “we were late on our July 1997 payment, . . . one payment late and half of another.” She gave a representative of the company a check for $563, the amount of two payments, in July. She said that they made the next payment in August 1997; that she did not believe that they were behind at that point because the representative called her and told her they were caught up; and that they did not make a September payment, but sent two payments in October, a money order and a check. She said that those two payments were returned by a man who said they needed to pay “a whole bunch of money, $2,000 and something.” She said she tore the check up and sent two more payments, which was three payments in all in October and November, but that the company sent them back to her.
She also testified that they did not have insurance with anyone from 1989, when they moved into the house, through 1990; that they got insurance in 1991 or 1992; and that the “insurance lady” told them $20,000 was as much coverage as they could get on the house. She said they had insurance on the house from 1992 to 1999, and at some point, the amount of coverage was increased to $27,000. She said that she assumed the insurance company would provide the appellant with copies of the policy, and that appellant never informed her that they weren’t getting proof of her insurance.
Tom Emerson, a representative for appellant, testified that until trial he had not been aware that the appellees had insurance on the house. He stated that the payment received on August 28, 1997, was applied toward the July 15, 1997, installment; and that the amount expended by appellant for insurance was $2,064.87. He said that he had conflicting documentation, but that it appeared the appellees owed for August 1997 forward. With respect to the insurance purchased by appellant, Emerson’s testimony and appellant’s Exhibit 5 indicate that around 1993 the premiums paid by appellant dropped from over $200 to $140, and coverage dropped to $9,400. Emerson stated that “[w]hen my company forces coverage on a piece of property that is uncovered, it would be for the amount financed, the cash price of the house, and at all times in this case, that is more than $9,400. I never understood until today that the Avrietts had coverage.” Appellee Johnny Avriett testified that he did not think that at any time after the house was completed it was worth more than $20,000.
In support of its point of appeal, appellant contends that the trial court was clearly erroneous in finding that the appellees’ account “was placed in foreclosure . . . based on the claim for reimbursement of insurance premiums rather than the delinquency in the monthly payments.” We find no such clear error. In returning the checks to the appellees, the company representative told them that they owed more than that amount, which was attributable to appellant’s claim that the appellees owed for insurance premiums. Moreover, appellant contends alternatively that “[o]ne payment behind is still sufficient grounds for it to declare the entire balance due and payable pursuant to the promissory note and mortgage.” Even if appellant’s foreclosure action was based upon one delinquent payment, rather than the claim for insurance premiums, we find no abuse of discretion in the chancellor’s determination that it would be inequitable to allow foreclosure under the facts of this case.
Appellant also contends that appellees’ failure to obtain insurance coverage during the approximate two years immediately following the purchase of the property provided a sufficient basis for seeking foreclosure. We find no abuse of discretion in the chancellor’s failure to allow such a basis for foreclosure. Under the facts of this case, it would clearly be inequitable to allow appellant to rely upon a claim that was so distant in time in order to claim default, accelerate payment, and foreclose upon the property.
Furthermore, appellant’s contention that appellees did not provide adequate proof of insurance and notification of same to appellant for the remaining years, i.e., through 1999, is not convincing. In fact, appellant’s own proof established that around 1993 the company-provided insurance on the house was reduced to approximately $9,400, which could be fairly inferred to show that they were aware of the $20,000 coverage purchased by appellees, and consequently purchased only the amount of insurance to bring coverage to the amount financed, $29,180. In addition, the chancellor was not clearly erroneous in determining that $20,000 of coverage was sufficient under the terms of the parties’ agreement. Again, under the terms of the building contract and mortgage, the appellees agreed to maintain insurance on the property in an amount equal to the lesser of the actual cash value of the house or the unpaid balance of the cash price of the house. Appellee Johnny Avriett testified that he did not consider the property to have a value of more than $20,000. Appellee Ida Avriett testified further that they were only able to procure coverage for $20,000 because their insurance agent did not consider the property to be worth more than that amount. Appellant presented no proof on this issue.
Finally, the chancellor extended the rights and duties of the parties with reference to the note for a period of twenty months past the original payoff date. Appellant asks this court, if it does not reverse, to remand this case for the chancellor to refashion the manner in which payments are made by the appellees. Appellant contends that appellees “have essentially been allowed to live in the home which is mortgaged and encumbered to [appellant] for 20 months during the pendency of this litigation without being required to make payments for those months.” Appellant’s argument in this regard is not persuasive as the twenty-month delay was actually attributable to appellant’s premature attempt to accelerate the debt and foreclose on the mortgage.
Affirmed.
JENNINGS and Griffen, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Ronald G. Smith appeals from the May 31, 1995, decision by the Board of Review which found that appellant was discharged from his last work for misconduct connected with the work, resulting in his disqualification for unemployment benefits for a period of eight weeks pursuant to Ark. Code Ann. § ll-10-514(a)(3) (Repl. 1996). Appellant contends on appeal that the Board’s decision disqualifying him from benefits is not supported by substantial evidence. We disagree and affirm.
In January 1995, appellant was employed as a truck driver for Land O Frost, Inc. He requested to be off work for two weeks beginning January 22, 1995, so that he could be with his son and daughter-in-law for the birth of their baby in February 1995. That request was denied by his employer, but appellant was given permission to take one week off after January 27, 1995. Appellant went to California to be with his daughter-in-law anyway, arriving there on January 25. On February 1, 1995, appellant telephoned his employer and informed the manager that he did not believe that he could be back to Arkansas by February 5, the last day of the two-week period. He returned to work on February 10, 1995, but his employer deemed him to have resigned when he did not appear for work the week of January 22, 1995. The Arkansas Employment Security Department denied appellant benefits pursuant to Ark. Code Ann. § 11-10-513 (Repl. 1996), finding that he voluntarily left his last work without good cause connected with the work. Appellant appealed that decision to the Board of Review, resulting in the modification already mentioned whereby appellant was held to have been discharged on account of misconduct connected with the work.
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Pendrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Greenberg v. Director, 53 Ark. App. 295, S.W.2d (1996). Our review is limited to determine whether the Board could reasonably reach its results upon the evidence before it, and we will not replace our judgment for that of the Board even though this court might have reached a different conclusion based upon the same evidence the Board considered. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987).
Arkansas Code Annotated section ll-10-514(a)(l) (Repl. 1996), provides that an individual shall be disqualified from benefits if he is discharged for misconduct in connection with the work. “Misconduct,” for the purposes of unemployment compensation, involves: (1) 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 of his employees, and (4) disregard of the employee’s duties and obligations to his employer. George’s, Inc, v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). The element of intent must also be determined when assessing whether or not misconduct has occurred. In Nibco, Inc. v. Metcalf & Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981), this court stated:
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 error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.
1 Ark. App. at 118, 613 S.W.2d at 614. The issue of misconduct is a question of fact for the Board to determine. Greenberg v. Director, supra.
In our opinion, the decision of the Board of Review finding that appellant was discharged from his last work for misconduct in connection with the work is supported by substantial evidence.
There was proof in the record before the Board that appellant had requested to be off work for two weeks to be with his daughter-in-law, who was having a baby. There was also evidence that appellant’s request was denied as to the first week he wanted off, but that he would likely be permitted to take the second week. Notwithstanding the employer’s response, appellant took off both weeks. The Board could find that this conduct constituted an intentional or deliberate disregard of appellant’s duties and obligations to his employer. See George’s Inc. v. Director, supra; Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995); and Nibco, Inc. v. Metcalf & Daniels, supra.
Appellant was required by Ark. Code Ann. § 11-10-529(a)(2)(A) to state the ground upon which he sought our review of the Board of Review’s decision. In his petition for review appellant acknowledged that he had not quit, but had been discharged from his last job. His complaint is that the Board of Review erred in not receiving the additional evidence of the family emergency that he requested to introduce.
Assuming, arguendo, that the Board of Review erred in denying appellant’s request to introduce into evidence the two letters that he proffered, such error was harmless. One of these letters was from appellant’s son and basically stated the same family information that appellant testified to before the Appeal Tribunal. The other letter was from Dr. Richard L. Alexander, the obstetrician who attended appellant’s daughter-in-law. Dr. Alexander stated that appellant’s daughter-in-law had “a slightly elevated blood pressure.” This could hardly constitute a family medical emergency which would justify an employee to defy an employer’s refusal to give the employee time off to be with the expectant daughter-in-law. Consequently, even if the Board of Review should have received these letters into evidence, it did not constitute prejudicial error.
Because the Board’s decision is supported by substantial evidence, we affirm.
Affirmed.
Pittman and Rogers, JJ., agree.
Mayfield, Stroud and Griffen, JJ., dissent. | [
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Tom Glaze, Judge.
This is an eminent domain case involving three adjoining residential tracts of land owned by three separate landowners: the Cottrells, the Robertsons, and the Waschkas. All three had direct access to Highway 82 in El Dorado until that highway was widened to four lanes; then these three properties lost direct access and became situated on a service road constructed across the front of the properties. The jury gave a verdict for each of the landowners as follows: the Cottrells — $5,240; the Robertsons — $2,796; the Waschkas — $3,940. The appellant, Arkansas State Highway Commission, appeals those verdicts and raises the following three issues:
I. The trial court erred in not granting appellant’s motion in limine to exclude evidence of circuity of travel.
II. The trial court erred in not granting appellant’s motion in limine to prevent the attribution of damages from an alleged increase in noise which resulted from the construction.
III. The trial court erred in not striking for cause six jurors who had served on one or more juries with one of the appellees during the term.
At the jury trial, Russell Cottrell, Caroline Robertson, and Lawrence Waschka, appellee landowners, testified that the differences in before and after values of their properties were: Cottrell — $11,000; Robertson — $8,000; and Waschka — $10,000. All three landowners apportioned their asserted devaluations between (a) a loss in the value of the land itself as a result of the taking, and (b) losses resulting from their inconvenience of access to Highway 82, the creation of a drainage problem on the subject properties, the diminished appearance of the properties and an increase in noise because large trees were cut between their houses and the highway.
Larry Du Pree and Norman Bledsoe, real estate appraisers, testified for the appellant and the appellees, respectively. Du Pree testified that the differences between the before and after values of the properties were as follows: Cottrell’s — $1,340; Robertson’s — $1,100; and Waschka’s — $2,200. Du Pree testified that in his opinion the before and after per acre values of the properties were the same. He valued only the taking itself and did not attribute any damage to the remaining properties. He also testified that he did not take into consideration the drainage problems which the appellees claimed to have experienced since the construction was done. Bledsoe testified that the differences between before and after values of the properties were as follows: Cottrell’s — $4,040; Robertson’s — $2,196; and Waschka’s — $3,150.
Carl Linds trom, a hydraulic engineer for the Highway Department, also testified for the appellant about the alleged drainage problems on the properties. He related what was done before and during construction to eliminate drainage problems; in his opinion, the properties were not significantly affected. He testified that he had based his opinion upon all calculated data; he made no field measurements. He stated that it was possible, but not probable, that the steps taken by the Highway Department were not sufficient to ensure that the properties drained properly.
The rule is well settled that the measure of damages, if any, in an eminent domain case is the difference between the fair market value of the lands immediately before the construction of the highway and the fair market value immediately after such construction. Herndon v. Pulaski County, 196 Ark. 284, 117 S.W.2d 1051 (1938). The principle is equally well established that a landowner may testify to the value of his lands, despite his lack of knowledge of property values, if a satisfactory explanation is given for his conclusion. Arkansas State Highway Commission v. Kennedy, 248 Ark. 301, 451 S.W.2d 745 (1970).
The appellant’s first two points for reversal are based upon the trial court’s denial of appellant’s motions in limine to exclude certain evidence, specifically, testimony by the landowners of (1) their circuity of travel resulting from construction, and (2) the increase in noise from the highway resulting from destruction of their trees. After a careful consideration of the cases cited by both parties, we conclude that the court did not err in denying the motions. In permitting the landowners to present testimony which appellant argued was inadmissible, the judge limited the testimony as follows:
It was a contention of the Highway Department that no damages could be awarded for circuity of travel, in that substitute access was provided by means of an access road.. .. [T]he Court determined that the landowners could present evidence of the diminution in value of their remaining land by virtue of the substituted access, but cautioned the landowners not to get into extraneous factors, such as traffic on the highway and hazards that are common to the traveling public. . . .
[T]here was objection ... to any consideration of diminution in the value of the remaining lands by virtue of noise from the highway. The Court denied that motion ... [because]. . . additional noise from the highway... due to the reduction in the number of trees which screened the highway noise from the residences of the landowners ... is a factor which a willing buyer would consider. . . .
Appellant contends the trial court’s limiting instruction contravenes the rule that circuity of travel is not compensable. However, this rule applies when a landowner whose land is not being taken claims that he is entitled to damages. Wenderoth v. Baker, 238 Ark. 464, 382 S.W.2d 578 (1964). See also Risser v. City of Little Rock, 225 Ark. 318, 281 S.W.2d 949 (1955). In Risser, supra, the appellants brought an action to enjoin the city from abandoning old roads in favor of new ones. The Court stated:
None of the plaintiffs own property abutting the portions of the streets being closed, but even if it is conceded that appellants have been damaged by the relocation of the roads, they have suffered no peculiar or special damages which could give rise to a cause of action. Travelers on 10th Street, as relocated, must turn two corners and travel a little farther, which requires less than a minute in additional time. This slight inconvenience, however, is not peculiar to appellants alone. This street is an outlet from the city to one of the most thickly populated sections of the county. Every person that travels the street suffers the same inconvenience as the appellants.
Risser, supra at 324, 281 S.W.2d at 953.
In Wenderoth v. Baker, supra, the appellants owned homes in a residential district of Fort Smith and alleged damages for their additional travel time necessitated by construction of a new highway. The Court said:
Any diminution in property values that may result from an inconvenience of this kind is not compensable. . . . [S]uch damages are not special or peculiar to the complaining landowners. As we said [in Risser v. City of Little Rock]: "Every person that travels the street suffers the same inconvenience as the appellants.” Thus the case falls within the rule that “a landowner whose land is not being taken is not entitled to compensation for damage of the same kind as that suffered by the public in general, even though the inconvenience and injury to the particular landowner may be greater in degree than that to others.” Ark. State Highway Comm. v. McNeill, 238 Ark. 244, 381 S.W.2d 425.
Wenderoth v. Baker, supra at 465, 382 S.W.2d at 579.
Appellant relies upon Arkansas State Highway Commission v. Lusby, 251 Ark. 940, 475 S.W.2d 707 (1972); Arkansas State Highway Commission v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965); and Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W.2d 728 (1960). Our study, however, reflects that Kesner and Bingham are distinguishable from the case at bar and Lusby actually supports the trial court’s decision. In Kesner, the Supreme Court noted the general rule that circuity of travel is not compensable. Unlike the situation here, the landowners in Kesner suffered no actual taking of their land. Even so, the court held the evidence established the landowners suffered damages peculiar to themselves and therefore it awarded compensation. The Bingham case is also inapplicable. Although the landowners in Bingham suffered an actual taking of their land, the damage issue there involved the landowner’s claim for loss of business profits caused by the rerouting of a highway located in front of their service station. On the other hand, the Lusby case, supra, is factually similar to the case at bar and supports the actions of the court below. The Supreme Court in Lusby cited the rule in Wenderoth v. Baker, supra, that alteration of a highway which imposes circuity of travel on the general public is not a compensable damage. But the Court pointed out that when there is a partial taking of land and the landowner is inconvenienced by the taking of his ingress and egress to the remainder, the inconvenience is compensable and should be considered in assessing the landowner’s damages. Arkansas State Highway Commission v. Lusby at 942, 475 S.W.2d at 708.
Appellant asserts that another general rule in eminent domain cases is that noise is not compensable. See Arkansas State Highway Commission v. Kesner, supra; see also Campbell v. Arkansas State Highway Commission, 183 Ark. 780, 38 S.W.2d 753 (1931). But see Arkansas State Highway Commission v. Manning, 252 Ark. 10, 477 S.W.2d 176 (1972) (no error not to strike testimony relating to damages because of noise from traffic and hazards from trucks); Arkansas State Highway Commission v. Kennedy, 248 Ark. 301, 451 S.W.2d 745 (1970) (Supreme Court “unanimously observed” that it would re-examine this rule when it was appropriately presented, and stated a general rule that loss of rights which renders property less valuable is compensable when not suffered by the public in general; Little Rock, Mississippi River & Texas Railway Co. v. Allen, 41 Ark. 431 (1883) (proper element of damage includes the sounding of whistles, the ringing of bells and the rattling of trains; these diminish the vendible value of residence property).
The appellees in the case at bar did not attempt to assign a dollar amount to damage attributable to increased noise which they claimed to experience after appellant cut down large trees on appellees’ properties. Instead, the appellees offered the evidence as one of many factors which a willing buyer would consider before purchasing appellees’ prop erties. See, e.g., Arkansas State Highway Commission v. First Pyramid Life Insurance Co., 269 Ark. 278, 602 S.W.2d 609 (1980); Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S.W.2d 535 (1963).
In the instant case, the trial court gave a limiting instruction to the jury to consider the cutting of the appellees’ trees and any resulting noise only as factors a willing buyer would consider when purchasing their properties. Under the circumstances of this case, we find the court did not err.
For its last point, appellant alleged that the trial court erred in not striking for cause six jurors who had served on one or more juries with Caroline Robertson, one of the appellees who was also a witness at trial. Appellant contends the harm resulted, not from the jurors being influenced by their prior association with Mrs. Robertson, but by Mrs. Robertson’s “unusual and unfair knowledge of the personalities and the decision making mechanics of this jury panel.” Appellant cites no authority for this argument, and we are unaware of any. We cannot presume that the appellees had an unfair advantage over appellant at trial as a result of Mrs. Robertson’s knowledge of the jurors, and nothing in the record establishes such an advantage. The trial court specifically inquired of the jurors whether their prior service with Mrs. Robertson would influence their decisions, each juror said no and the court denied appellant’s request to strike them for cause.
Affirmed.
Cracraft and Cloninger, JJ., agree. | [
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Tom Glaze, Judge.
This case involves a guardianship termination proceeding in which the appellant requested the trial court to adjudicate and restore her competency. The court refused to grant her request, and the appellant argues here that the court’s decision is clearly against the preponderance of the evidence. We agree.
After her last parent died in 1941, appellant was adjudged an incompetent and a sister, Mrs. Brown, was appointed the guardian of appellant’s person and estate. In 1969, Mrs. Brown died and another sister, Ms. Rorex, was named appellant’s successor guardian. Ms. Rorex served until 1981 when the court appointed a bank the guardian of appellant’s estate and a friend, Mr. Earl Wardell, the guardian of her person. Shortly after these two appointments, appellant filed this termination proceeding. Appellant’s cousin opposed appellant’s action and a hearing was held in December, 1981. The cousin did not appear at the hearing, but he was represented by counsel. Appellant, Mr. Wardell, and his wife were the only witnesses who testified; however, the statement of a psychiatrist was admitted into evidence.
The record shows the appellant has lived alone since Mrs. Brown’s death in 1969, caringfor herself and her home. In this connection, she shops for and prepares her own food. Appellant also socializes most every day at the Adult Center in Morrilton, Arkansas. Appellant testified that she owns farmland in Atkins, Arkansas, which is cared for by Jack Randolph. However, when asked the amount of money she had, she said that she did not know because her last guardian, Ms. Rorex, would never say when appellant asked.
The Wardells testified they were next door neighbors to appellant when they first met her nearly seven years ago. Even though the Wardells have moved across town, they still continue their friendship with appellant and assist her in different ways. Both Wardells testified that they provide transportation for appellant, when necessary. Mr. Wardell said that he has also had to assist her in getting the guardian bank to pay her bills. The Wardells testified further that appellant takes care of her personal affairs but indicated she needs some assistance in managing her money because she has had no experience in such matters.
Dr. Vale Harrison, a psychiatrist, submitted his written evaluation of appellant which related she was probably never quite average in intelligence. He said that she quit public schools in the sixth grade but completed two more years at a St. Louis boarding school. Harrison’s evaluation indicated appellant was without psychosis and that she is in good contact with reality. He said that appellant did not have complete knowledge of the extent of her holdings but that this was because she was never told what she owned and was “too passive to make it her business to find out.” Dr. Harrison’s recommendation to the court was that appellant be considered competent to care for her person but a guardian should be appointed to manage her financial affairs.
No evidence was offered to contradict that offered by the appellant. Nevertheless, the trial court continued appellant’s incompetency, maintaining the bank and Mr. Wardell as guardians.
The rule is settled that once a person’s incompetency is established, that incompetency is presumed to continue until a change has been established by proof. Lester v. Pilkington, 225 Ark. 349, 282 S.W.2d 590 (1955). In reviewing the probate court’s finding on whether a change has been established, we affirm unless the court’s decision is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. See Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); Ark. Stat. Ann. § 62-2016 (g) (Repl. 1971), and Ark. Rules of Civ. Pro. 52 (a). An incompetent for guardianship purposes (except for those under age) is defined as one who is incapable by reason of insanity, mental illness, imbecility, idiocy, senility, habitual drunkenness, excessive use of drugs or other mental incapacity, of managing his property or caring for himself. See Ark. Stat. Ann. § 57-601 (c) (2) (Supp. 1981); and Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979). In Keenan, the Supreme Court held the probate court’s jurisdiction in guardianship matters is limited to persons of unsound mind. Explaining further, it noted that inability which permits the appointment of a guardian is limited to some form of mental incapacity. The Court quoted the Commentary to § 57-601:
This Code does not authorize the appointment of a guardian for a person who may be incapacitated physically as long as a person has mental faculties sufficient to understand the nature of his property and to protect it by agent even though he may be unable to do so in person.
Id. at 235, 590 S.W.2d at 269.
In the instant case, appellant’s competency to care for herself was clearly established by the proof. On the other hand, this same evidence indicates the appellant is unable to manage her estate, although her inability to manage it appears to be caused by her inexperience in such matters and her ignorance of the extent of her holdings. In sum, the evidence shows appellant’s trusting nature and lack of assertiveness, but we find nothing in the record to indicate that she suffers from the requisite mental incapacity or unsoundness of mind required under our present Guardianship Code to necessitate the appointment of a guardian for her estate or person. In fact, appellant’s actions manifest clearly the opposite. She has cared for herself for over twelve years, and she exhibits a knowledgeable understanding of at least that property she does possess and about which she has been told.
Although we reverse the trial court for the reasons stated, we remand this case for further proceedings. The appellant has had little experience in handling money. In continuing appellant’s guardianship, the trial judge voiced a genuine concern that someone might take undue advantage of her inexperience in financial matters. At the conclusion of the hearing, the judge urged the parties to consider a conservatorship. Of course, a conservatorship, assuming appellant’s incompetency, would have been inappropriate, but because of our holding here, such a proceeding may now prove worthy of consideration. Another alternative, providing even greater flexibility, is Arkansas’ new Limited Guardianship Law set out in Act 345 of 1983. Because it was previously unnecessary for the trial court to consider the application of other alternatives to appellant’s situation, we reverse and remand with directions to do so now.
Reversed and remanded.
In its findings, the court mentioned that the appellant has $72,000 in an account at the bank, but the bank gives her only $10 per month, ostensibly for “incidental expenses.”
July 4, 1983, is the effective date of Act 345. | [
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Melvin Mayfield, Judge.
This is an appeal from a Workers’ Compensation Commission decision holding the Second Injury Fund liable for all of claimant’s disability in excess of the amount previously paid by the employer for a 15% permanent disability to the claimant’s left leg.
The record reveals that in 1946 the claimant, Harry L. Brown, began working for the appellee, Riceland Foods. In 1955, he was critically injured when he inhaled toxic gas while performing his duties for Riceland. Although it was first thought that he would be unable to return to work, or even survive, he made a miraculous recovery and returned to work in April of 1956. However, he was left with several debilitating conditions including toxic hepatitis, and as a result, he was required to take heavy medication and eat a highly restricted diet. He did not file a workers’ compensation claim for his injury and received no compensation for it, although the company did pay his medical bills and buy his medicine for several years. Over the years, claimant’s physical condition gradually deteriorated, and by 1981, he was suffering from heart, liver and lung diseases and was in such a weakened condition that he had to use a walking cane.
In March 1981, while at work for Riceland, claimant fell and severely sprained his ankle. He was medically rated as having a 15% disability to the left leg below the knee and received compensation for that disability. At a hearing to determine whether claimant was entitled to additional compensation, an administrative law judge found him totally and permanently disabled and held under the provisions of Ark. Stat. Ann. § 81-1313(i) (Supp. 1985), which is Section 4 of Act 290 of 1981, the payment of compensation for all disability in excess of the 15% previously paid by Riceland was the responsibility of the Second Injury Fund. That decision was affirmed by the full Commission.
On appeal to this court, the Fund argues that since all the claimant’s injuries occurred while in the employ of Riceland, the Commission erred in finding that section 81-1313(i) applied. The Fund contends that this section of the compensation act was enacted by the Arkansas General Assembly to encourage the employment of handicapped workers by insuring that an employer would not be required to pay for a greater amount of disability than that which actually occurred during the time the employee was working for the employer. Riceland contends that, because section 81 -1313 (i) states in the second paragraph that it applies to “all cases of permanent disability or impairment where there has been a previous disability or impairment,” it applies even in situations where the employee receives more than one injury while working for the same employer. However, the first sentence of section 81-1313(i) states:
The Second Injury Fund established herein is a special’ fund designed to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment. (Emphasis added.)
The administrative law judge, whose opinion the Commission adopted, based his finding of Second Injury Fund liability on paragraph three of the statute which provides: Although it is possible to make the interpretation made by the law judge and Commission, we do not think “previous disability or impairment” refers to a condition which occurred while in the employment of the second-injury employer. Obviously, if as provided in the very first sentence of the statute — the sentence stating the reason and purpose for the statute — the employer employing a handicapped worker is to be liable only for the disability or impairment that occurs when the worker sustains an injury during that employment, then it must follow that such employer will be liable for all the disability or impairment that occurs when the worker is injured while in that employment. We hold that the Second Injury Fund is not liable where all of the claimant’s disability or impairment results from injuries occurring while in the employment of the same employer.
If the previous disability or impairment or disabilities or impairments whether from compensable injury or otherwise, and the last injury together result in permanent total disability, the employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself; ....
In addition to the language used in the second injury statute, as discussed above, we think it also proper to consider the following language used by the Arkansas Supreme Court in Arkansas Workmen's Compensation Commission v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950):
This fund, called the “Second Injury Fund,” is a limited and restricted fund. . . . While Workmen’s Compensation Acts are generally to be liberally construed the solvency of this special “Second Injury Fund” requires that the provisions and requirements thereof be fully and strictly complied with. . . . To hold otherwise would open this special fund to the point of insolvency and provide no benefit to those who do comply with its provisions and who are entitled to benefits thereunder.
And in this connection, we also take note that the last sentence of Ark. Stat. Ann. § 81-1348(a) (Supp. 1985), provides:
If, on or after July 1, 1983, the balance in the Second Injury Trust Fund becomes insufficient to fully compensate those employees to whom it is obligated, payment shall be suspended until such time as the Second Injury Trust Fund is capable of meeting its obligations,. . . in no event shall there be an reverter of responsibility to the employer or carrier on or after July 1, 1983.
Riceland argues that employers will be encouraged to dismiss disabled workers after they are injured on the job if we hold that the Fund is not liable when all of the claimant’s disability results from injuries occurring while employed by the same employer. We are not convinced. In the first place, the Workers’ Compensation Act itself contains sanctions against any employer who retaliates against an employee for filing a workers’ compensation claim. See Ark. Stat. Ann. § 81-1335(b) (Repl. 1976). In addition, we think an employer is much more likely to retain an employee who has a good work record than to hire a new worker he knows nothing about. Furthermore, an injured worker who is dismissed because of his injury and has difficulty finding comparable work at comparable wages might be found to be totally disabled thus subjecting the employer at the time of injury to greater liability than otherwise. And, in any event, as we said in Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985), and Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985), it is not the purpose of the second injury statute to give a windfall or subsidy to employers who employ handicapped workers.
Riceland also points to the law judge’s finding that claimant is permanently and totally disabled “as a result of his March 30, 1981, compensable injury, as well as his general physical condition,” and argues that the 1955 injury was not a cause of claimant’s additional disability. This argument overlooks the fact that the law judge’s opinion, adopted by the Commission, contains the following language:
[I]t is apparent from both the lay testimony and the medical evidence that claimant was substantially disabled or impaired as a result of a previous injury, as well as the deterioration of his general physical condition.
Finally, appellee argues that, if it alone is held liable for the claimant’s disability, we must remand the case to the Commission to determine the extent of this liability because the Commission did not pass upon the employer’s liability for disability over and above the 15% disability to claimant’s left leg. We do not agree because the Commission affirmed and adopted the law judge’s opinion. Therefore, the law judge’s finding of total and permanent disability became a finding of the Commission. We affirm that finding, but reverse the finding that the Second Injury Fund is liable for the payment of any part of the compensation due, and hold that payment of the compensation due is an obligation of appellee Riceland Foods, Inc.
Affirmed in part and reversed in part.
Glaze and Cloninger, JJ., dissent. | [
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James R. Cooper, Judge.
This is an appeal of an order of the Circuit Court of Sebastian County, entered upon a Petition for Review of the Insurance Commissioner’s decision. The Insurance Commissioner had found that the appellee, a company which handled primarily credit life insurance policies, (a) engaged in unfair claims settlement practices, by promptly paying the credit beneficiary but not the secondary beneficiary, in violation of Ark. Stat. Ann. § 66-3005(9)(b-d) (Supp. 1985), (b) violated Ark. Stat. Ann. § 66-2830(1) (Repl. 1980), by paying commissions to unlicensed agents, (c) violated Ark. Stat. Ann. § 66-3206 (Repl. 1980) and Ark. Ins. Dept. Rule and Reg. 12, § 3.3, by accepting unsigned applications for credit life policies, and (d) violated Ark. Stat. Ann. §§ 66-2605(4) (Repl. 1980), -2628(6) (Supp. 1985), and -2637(2) (Supp. 1985), by having a larger percentage of its assets invested in common stocks, real estate, and mineral interests than allowed by law. The Commissioner fined the appellee $6,000.00 for the unfair claims settlement practices and an additional $5,000.00 for the other violations. Upon review, the trial court, citing Ark. Stat. Ann. § 5-713(g) (Supp. 1985), took additional evidence over the Commissioner’s (the appellant’s) objection. It held that the Commissioner’s finding that the appellee engaged in unfair trade practices was not supported by substantial evidence and, while the Commissioner’s findings that the appellee violated §§ 66-2605(4), -2628(6), -2637(2), .-2830(1), and -3206 were supported by substantial evidence, she abused her discretion in levying an unspecified portion of the $5,000.00 fine for those violations.
The Commissioner raises four issues on appeal. She claims that the court erred in (1) permitting and considering additional evidence, (2) determining that the Commissioner’s finding that the appellee engaged in unfair claims settlement practices was not supported by substantial evidence, (3) determining that the Commissioner abused her discretion in fining the appellee for the payment of commissions to unlicensed agents, and (4) determining that the Commissioner abused her discretion in fining the appellee for its over-investment in certain types of assets.
The State Insurance Commissioner, when she acts as a hearing officer, is governed by the Administrative Procedure Act. Woodyard v. Arkansas Diversified Insurance Co., 268 Ark. 94, 594 S.W.2d 13 (1980). The rules regarding judicial review of decisions under this Act are clear. As we said in Carder v. Hemstock, 5 Ark. App. 115, 623 S.W.2d 384 (1980),
[t] he rules governing judicial review of decisions of administrative agencies are settled and are the same for both the circuit and appellate court. This review is limited in scope and such decisions will be upheld if supported by substantial evidence and not arbitrary, capricious or characterized as an abuse of discretion. . . .
The substantial evidence rule applicable to these cases requires a review of the entire record and not merely that evidence which supports the Board’s decision. Substantial evidence is more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . . Although hearsay evidence is admissible in hearings before administrative bodies, hearsay alone is not substantial evidence. . . . On numerous occasions in recent years our court has reaffirmed its earlier declarations that the questions of credibility of witnesses and weight to be accorded evidence presented to a board is the prerogative of the board and not of the reviewing court, and that courts must rely on their findings because they are better equipped by specialization, insight and experience in matters referred to them. The reviewing court may not displace the Board’s choice between two fairly conflicting views even though the court might have made a different choice had the matter been before it de novo. The reviewing court may not set aside the board’s decision unless it cannot conscientiously find from a review of the entire record that the evidence supporting the decision is substantial. . . .
The question of whether a board’s action is arbitrary and capricious is a narrow one, more restricted than the substantial evidence test. To set aside an agency decision on that basis, it must be found to have been willful and unreasoning and in disregard of the facts and circumstances of the case. This standard applies only where the board’s action was unreasoned; its decision was not supported by any reasonable basis, and was made in willful disregard of the facts and circumstances.
5 Ark. App. at 118-19 (citations omitted).
Here, the Commissioner found that the appellee had a practice of paying the credit beneficiary promptly, but not the secondary beneficiary, in violation of § 66-3005(9)(b-d). She based her decision upon the presentation of three specific cases, found in a sample of fifty of the 216 cases handled by the appellee. (There was testimony that the number of cases in the sample was picked in accordance with the National Association of Insurance Commissioners’ (NAIC) guidelines for samples to use in Market Conduct Examinations.) The Commissioner noted that the appellee’s vice-president admitted that it owed the beneficiary in two of those three cases and did not know about the other. He also testified that this was company policy in cases of questionable claims. The Commissioner based her decision not only on the above testimony, but also on the fact that this very same practice had been called to the appellee’s attention in 1976, without objection, and that this was a matter of public record. No evidence was presented before the Commissioner to contradict the inference that, based on the sample, it was likely more cases of this type existed. While we may not have decided this issue in the same manner, we cannot say that this decision was not supported by substantial evidence.
The finding of the court that the Commissioner abused her discretion in fining the appellee for its continued over-investment in certain assets in violation §§ 66-2605(4), -2628(6), and -2637(2) is likewise error. While the Commissioner’s failure to provide a hearing on the denial of a request for an extension of time would have been arbitrary and an abuse of discretion if the appellee had asked for a hearing, there is no showing or allegation in the record that such a hearing was requested, either before or after the denial. In light of this fact, and of the fact that the appellee had still not brought itself into compliance with the statutory requirements nearly a year after the divestiture was to have been completed, we cannot say that the Commissioner abused her discretion in fining the appellee for its continued noncompliance with the law.
The court found that there was substantial evidence to support the Commissioner’s decision that the appellee violated § 66-2830(1), but found that the unspecified portion of the fine relating to this violation was an abuse of discretion, because (1) the appellee was not given notice of the Market Conduct Examination, though none was required; (2) the appellee was not given an opportunity to conference with the Insurance Department prior to the examination, an opportunity given other companies; and (3) the examiners did not discuss the Department’s Bulletin 8-83 with the appellee. (This Bulletin indicated that previous Market Conduct Examinations found that possible confusion regarding licensing requirements existed.) The court further pointed out that it felt that fairness and reasonableness would appear to require that notice and a conference, as had been given other companies, be given to the appellee, as then it would have a chance to correct the deficiencies prior to the examination. The appellant points out the court’s first two grounds are based on its consideration of evidence presented before it. The appellant did not abstract this testimony, contending that it was wrongly admitted. These two reasons go towards alleged procedural irregularities in the administration of the Market Conduct Examination, the results of which formed the basis of the Commissioner’s finding on this matter, and are not matters of record before the Commissioner. Therefore, the court could take evidence about these matters under § 5-713(g), as they go towards alleged irregularities in procedure not in the record and could support a showing of discriminatory treatment of the appellee. Because the appellant has failed to abstract the evidence which would be relevant to these reasons, we have no way of determining whether the evidence presented indicated that, had these procedures taken place, the outcome of the examination or of the hearing would have been different. However, we reverse on this point for the reasons stated below.
The appellant’s final contention is that the court erred in taking additional evidence. The appellant declined to abstract this evidence, contending that it was unnecessary to do so as it was all improperly admitted. However, as stated above, the court is allowed to take additional evidence as to procedural irregularities that do not appear in the record. The testimony taken before the court should have been abstracted, so that we could determine whether the court’s decision was based on such properly admitted evidence. See Ark. R. Sup. Ct. 9(d). While normally such a failure to abstract would be grounds for affirmance, in this case it is apparent upon a review of the court’s decision that it considered improperly admitted evidence. For example, the court referred to the fact that the applications examined for signatures were from only five of the 160 banks taking applications, that only five of the 160 banks did not routinely require signatures, and that two of those five were part of the five banks examined by the Department — all matters which, absent any allegation that this was done purposely so as to discriminate against the appellee, are not related to procedural irregularities. This evidence was not, although it could have been, presented to the Commissioner. Therefore, we agree with the appellant that at least some of the evidence taken before the court was improperly admitted, although, because the appellant failed to properly abstract the record, we cannot tell how much was so admitted. Accordingly, we reverse and remand points three (concerning the failure to meet licensing requirements) and four (concerning the failure to obtain properly signed applications) of the court’s decision for reconsideration, directing that the court consider only that evidence related to alleged procedural irregularities, pursuant to Ark. Stat. Ann. § 5-713(g).
We reverse and remand the court’s order insofar as it concerns the unfair claims settlement practices and the over-investment practices of the appellee, directing the court to reinstate the Commissioner’s order as to these matters. We reverse and remand the remainder of the court’s order, because of improperly admitted evidence, for reconsideration, pursuant to the limitations set forth in the previous paragraph.
Reversed and remanded.
Cracraft, C.J., and Cloninger, J., agree. | [
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Tom Glaze, Judge.
Rawick Manufacturing Company, Inc., appeals from a chancellor’s decree which found (1) that a construction project — developed by appellee Phillips Development Corporation (Phillips) — to which Rawick supplied materials was a public project not subject to a materialman’s lien, and (2) that Rawick also could not recover its claim for unpaid supplies as a third-party beneficiary under a bank’s letter of credit issued to Phillips to protect the purchaser of the project, appellee White River Regional Housing Authority (Housing Authority), against any liens filed under Arkansas law. We believe the chancellor clearly erred in finding the project was public and not subject to Rawick’s materialman’s lien.
The facts giving rise to this litigation on appeal are undisputed. On June 26, 1981, appellees Talisman, Inc. (Talisman) and Phillips entered into a contract whereby Talisman would construct twenty-five public housing units on land owned by Phillips. The project was financed with private funds. On July 7, 1981, Phillips entered into a “Turnkey Contract of Sale” with the Housing Authority, and that contract provided that Phillips would sell the project upon its completion to the Housing Authority. On July 9, 1981, Rawick submitted to Talisman a proposal to supply materials for the project, which Talisman accepted on July 22, 1981.
Rawick delivered the last of its materials for the project to Talisman in February 1982. Phillips, by warranty deed dated March 29, 1982, and recorded April 6, 1982, conveyed the “turnkey project” to the Housing Authority. On April 7, 1982, Rawick notified Phillips that it was claiming a materialman’s lien on the project, because Talisman had not paid Rawick for the materials Rawick had furnished. On July 11,1983, Rawick filed an action to enforce the lien against appellees Phillips, Talisman, the Housing Authority and its director. After the issues were joined, the chancellor dismissed Rawick’s complaint.
Rawick contends the project was privately owned and funded during the period it supplied materials for the project’s construction, and its materialman’s lien validly attached and could not be impaired by Phillips’ subsequent sale of the turnkey project to the Housing Authority. Appellees counter, arguing the evidence clearly showed the project was a public one and, therefore, Rawick could have no liens against the subject public improvement. We believe Rawick’s argument unquestionably is correct.
Rawick’s entitlement to a materialman’s lien and its enforcement is rooted in both Arkansas’s statutory and case law. Too, while Arkansas courts have not decided the exact legal issue presented here, the Missouri Supreme Court has, and it held contrary to the decision the trial judge reached below and to what the appellees ask us to do here. See Home Building Corp. v. Ventura Corp., 568 S.W.2d 769 (Mo. 1978). Because the factual situation in Ventura is almost exactly on all fours with the one here, we discuss that holding first.
In Ventura, as here, a private developer, Ventura Corporation, had contracted to sell a “turnkey” housing project to a local housing authority. The project was to be constructed on property owned by the developer. There, like the case here, a material supplier was unpaid and, after the completed project had been conveyed to the housing authority, the supplier sought to perfect and enforce its lien against the property comprising the housing project. There, as here, the housing authority urged that the property was public property not subject to a mechanic’s or materialman’s lien. The Missouri Supreme Court disagreed, stating:
[T]he first question to be resolved is whether this property was municipally owned property at the time the lien attached. We conclude that it was not. As previously noted, Authority became the equitable owner when it contracted to buy the tract and to receive a deed thereto after the housing units had been erected. However, Ventura retained possession of the property and under its contract with Authority was to erect housing units thereon. It retained control over the tract until the units were completed and a deed executed. It continued to be an owner which had the authority to contract for erection of improvements which resulted in the statutory lien which HBC [Home Building Corporation] claims under the provisions of Chapter 429 [dealing with establishment of mechanic’s liens]. This was not municipal property at this point.
Id. at 775.
In the instant case, Phillips, like Ventura Corporation, was a private developer who retained ownership (1) while the housing project was constructed, and (2) after the Housing Authority acquired an asserted equitable interest in the project by virtue of its “Turnkey Contract of Sale” executed on July 7, 1981. All appellees concede the project was privately owned and funded during the entire period Rawick supplied materials to the project. As was true in Ventura, the project was simply not public when Rawick’s lien attached. On this point, we need only note that in Arkansas, the lien of a materialman attaches when the materials are used in the improvement, Eudora Lumber Co. v. Neal & Jones, 263 Ark. 40, 562 S.W.2d 294 (1978), and the lien relates back to the commencement of construction of the improvement. Wiggins v. Searcy Federal Savings & Loan Association, 253 Ark. 407, 486 S.W.2d 900 (1972). Again, it is undisputed that Phillips owned and funded the project when its construction commenced and when Rawick furnished supplies that were incorporated into the improvement.
Relevant to another argument made by appellees here, the Missouri court in Ventura further held the local authority’s purchase of a project upon which a lien exists does not destroy that lien bécause the project was municipally owned. Under a Missouri statute, an authority’s real property is exempt from levy and sale and no execution or judicial process can issue against the property nor can judgment against an authority be a charge or lien upon its property. See Mo. Ann. Stat. § 99.200 (Vernon 1971); cf. Ark. Stat. Ann. § 19-3022 (Repl. 1980) (identical provision).
Although an authority’s real property is exempt from liens under § 99.200, the Missouri Supreme Court determined it would be unjust to permit a municipality, by purchasing property which is subject to claims for mechanic’s lien rights, to defeat those liens simply because the property has been acquired for municipal purposes. In support of its holding, the court cited Crane Creek Irrigation District v. Portland Wood Pipe Co., 231 F. 113 (9th Cir. 1916); City of Salem v. Lane & Bodley Co., 189 Ill. 593, 60 N.E. 37 (1901); Findorff v. Fuller & Johnson Mfg. Co., 212 Wis. 365, 248 N.W. 766 (1933); and Meads v. Dial Finance Co., 56 Ala. App. 84, 319 So.2d 281 (Ct. App. 1975).
The Missouri court’s Ventura decision makes sense, especially when we consider its applicability to the facts here. Not only did Phillips continue ownership and funding of the project, but also, in its July 7, 1981, contract of sale with the Housing Authority, Phillips agreed to furnish the Authority with an irrevocable, unconditional letter of credit to protect the Authority against any liens or encumbrances. Thus, contrary to its argument now, the Housing Authority clearly contemplated a lien might ensue during the project’s construction and protected itself against such an eventuality. We note, as well, that Talisman, the contractor, provided a labor and material payment bond, naming Phillips and its bank which furnished the letter of credit, the obligees under the bond. Undoubtedly, the parties negotiating and contracting for the construction of this project were fully aware that a lien might attach and thereby affect clear title to the project.
Phillips and the other appellees attempt to distinguish the Ventura decision from the instant case by arguing that Ark. Stat. Ann. § 51-632 (Supp. 1985) requires the general contractor to provide a bond for any public project covering the contract amount of the project. This statutory bond, they argue, is required when public construction is involved because such projects are not subject to liens. In sum, appellees argue that because Talisman provided such a bond here (albeit the surety became financially irresponsible), appellees are not subject to Rawick’s lien. Appellees rely on National Surety Co. v. Edison, 240 Ark. 641, 401 S.W.2d 754 (1966).
Appellees argument is wrong for at least three reasons. First, appellees’ reliance on § 51-632 is misplaced, because that provision requires a bond only when the public authority enters into a contract to repair, alter or erect a public building, structure or improvement. Here, the Housing Authority entered into a contract to purchase the public housing units after the units were constructed. Second, the Ventura decision is not distinguishable based upon Arkansas’s statutory bond requirements because Missouri, too, requires every contractor to provide a bond for public works of any kind. See Mo. Ann. Stat. § 107.170 (Vernon 1966). Third, the Edison case is factually nowhere close to the facts presented here or in Ventura. In Edison, the court properly concluded the project was public, not private, and held that National Surety was obligated on its bond for labor and material and machinery rentals which National Surety issued to cover “a public works project.” There, the electorate of the City of Texarkana and Miller County passed a public bond issue on February 13,1963, to erect and equip a building for manufactur ing purposes, to be located on land owned by a nonprofit corporation — Texarkana Industrial Foundation, Inc. Texarkana Industrial, however, transferred title to its land to the City of Texarkana on or about February 9, 1964, which was prior to Edison’s leasing of certain equipment used in constructing the building, thereby making the equipment covered under National Surety’s bond. Unlike the situation here and in Ventura, the project in Edison was publicly funded and city owned during the period Edison leased its equipment to the City of Texarkana. As suggested by Justice George Rose Smith in his concurring opinion, it appeared that the parties had created Texarkana Industrial to hold the property initially in an effort to circumvent the mandatory-bond requirement under § 51-632. Here, the parties contracted for a turnkey project which was both privately funded and owned and was never intended to become publicly owned by the Housing Authority until all of the construction was completed.
Consequently, Rawick perfected its materialman’s lien in the time and manner provided by Arkansas law, and the subsequent conveyance of the project to the Housing Authority did nothing to divest Rawick of its lien. Therefore, we reverse.
As counsel for the parties noted in oral argument, our holding, giving effect to Rawick’s lien, renders it unnecessary to discuss and decide Rawick’s right as a third-party beneficiary to enforce its claim under the letter of credit issued to the developer, Phillips. However, we do reach the argument of appellee, John Baker, Executive Director of the Housing Authority, who urges the chancellor was correct when he dismissed Baker as a party defendant. We agree that part of the chancellor’s decision should stand, and at oral argument, Rawick came just short of conceding the point. Undisputedly, the Housing Authority purchased and owned the project, and Baker had no interest in it. Therefore, we affirm the chancellor’s dismissal of Baker from this cause.
Reversed in part and affirmed in part.
While other parties and separate actions were involved at different stages of litigation between the parties, we limit our recitation of events to those matters required for understanding and disposition of the legal issues and arguments presented in this appeal.
The surety issuing the bond was dismissed without prejudice from this cause.
We note here Dow Chemical Co. v. Bruce Rogers Co., 255 Ark. 448, 501 S.W.2d 235 (1973), which cites with approval the case of Tropic Builders, Ltd. v. United States, 52 Hawaii 298, 475 P.2d 362 (1970), wherein the private prime contractor and builder held a 55-year lease and agreed to construct military housing on a site owned by the United States. From the outset, the builder’s (lessee’s) capital stock was to be transferred to the United States immediately upon completion of the project. The court upheld a mechanic’s lien against the builder’s leasehold-interest even though the government held a fee simple interest in the site. It further held the builder’s subsequent transfer of its stock and ownership to the government after completion of the project did not affect the validity of the mechanic’s lien which attached during private ownership. | [
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George K. Cracraft, Chief Judge.
Bobby Epperson, Special Administrator of the Estate of Leon L. Thompson, deceased, brings this appeal from an order of the circuit court denying his motion to dismiss an action for damages brought by Phoebe Biggs against the estate of Leon L. Thompson. We do not reach any of the arguments for reversal because we find that the order appealed from was not appealable.
On August 3, 1979 Phoebe Biggs was involved in an automobile accident with Leon Thompson and later filed suit against Thompson in circuit court to recover damages for injuries allegedly received as a result of that accident. Upon discovering that Thompson was then deceased, appellant was appointed special administrator, but his authority was restricted to accepting process in the pending damage action. Service was had upon the special administrator in that action, but appellee subsequently took a voluntary nonsuit.
Several months later, appellee again filed suit against the Estate of Leon L. Thompson and caused service of summons to then be served on appellant, who appeared and filed an answer. Thereafter, appellant filed a motion to dismiss the action alleging that as his appointment as special administrator was for the limited purpose of receiving process in the earlier action, he was not authorized to receive process in the second one, and that service therefore had not been properly had upon the Estate of Leon L. Thompson. He further alleged that as both the three-year statute of limitations and the one-year statutory period following the nonsuit had then passed, the cause of action should be dismissed with prejudice. The trial court denied that motion and this appeal follows.
We decline to address any of the arguments advanced by the appellant in support of his appeal because the denial of a motion to dismiss an action is not a final judgment from which an appeal may be taken. Rules of Appellate Procedure, Rule 2. In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Roberts Enterprises, Inc. v. Arkansas State Hwy. Commission, 277 Ark. 25, 638 S.W.2d 75 (1982); Roy v. International Multifoods Corp., 268 Ark. 958, 597 S.W.2d 129 (Ark. App. 1980). The only matter disposed of by the order appealed from was that the case should proceed to trial, and those matters put in issue are not lost by continuing through a trial of the matter. Heber Springs Lawn & Garden, Inc. v. F.M.C. Corp., 275 Ark. 260, 628 S.W.2d 563 (1982).
The appeal is dismissed and the case remanded to the circuit court.
Cooper and Glaze, JJ., agree. | [
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James R. Cooper, Judge.
This is an appeal of the chancellor’s denial of the appellant’s motion to set aside an order entered on October 30, 1984, requiring him to pay delinquent child support in the amount of $23,200.00. The Drew County Chancery Court’s order noted that the appellant, by his failure to file an appearance bond, was deemed to be in default and held him liable for the entire amount prayed for by the appellee, pursuant to the terms of a previous order entered on October 11,1984. Weaffirm the chancellor’s decision.
We first note that the appellant has designated a limited record on appeal, consisting only of the Final Decree of Divorce, dated November 29, 1977, the Petition for Contempt Citation, dated August 23, 1984, a copy of the return of service showing service on the appellant, a copy of each and every document reflecting the method of service of said Petition upon the appellant, and a copy of the Order entered on March 4, 1985, denying the appellant’s motion to set aside the order. Among other things, the appellant did not designate the orders entered on October 11 th and 30th (the first setting forth the requirements for a continuance and the second being the order the appellant is seeking to have set aside), the oral proceedings on October 8th (the original hearing on the contempt citation), his motion to set aside the Order, and the testimony taken at the hearing on that motion. However, he has provided a transcript that apparently includes all of the proceedings, except the hearing on October 8th, and has abstracted much of the undesignated material. The appellee properly points this out, together with the fact that the appellant failed to designate any points for appeal in his notice of appeal, but she did not move to require the appellant to supplement the record; nor has she attempted to show any prejudice from the appellant’s unorthodox and unapproved methods. Furthermore, she does not limit her abstract and arguments to the record as designated, but instead, she dealt with the record that was provided. Therefore, we treat the matter as if the entire record had been designated, since it apparently has been provided.
The appellant contends that the chancery court erred in entering the orders of October 11th and October 30th, alleging that they amount to judgments, and in failing to grant his motion to vacate those orders. In support of these contentions, he alleges that the chancellor entered a default judgment without a hearing as to the amount and without the written notice of the application for default judgment that Ark. R. Civ. P. Rule 55 requires to be issued at least three days prior to the hearing. The appellant further claims that the chancellor abused his discretion in requiring that a continuance be conditioned upon the posting of an appearance bond, alleging that service was had only six days prior to the hearing, whereas Ark. R. Civ. P. Rule 6(c) requires that notice be given at least ten days before the hearing on a motion.
In this case, the appellant filed his motion to set aside the judgment within 90 days of the filing of the order he seeks to have set aside. However, the order denying his motion was not entered until after the 90 days had expired, raising some question as to whether Ark. R. Civ. P. Rule 60(b) would even have been an available means of setting aside the judgment. See State Farm Fire and Casualty Co. v. Mobley, 5 Ark. App. 293, 636 S.W.2d 299 (1982) (Mayfield, C.J., concurring). We do not need to decide whether Rule 60(b) can be used in this case, as the appellant’s claim that he was denied the three-day notice required by Rule 55 constitutes sufficient grounds for setting aside the judgment under Ark. R. Civ. P. Rule 60(c)(7), which provides that a judgment may be vacated after 90 days for “unavoidable casualty or misfortune preventing the party from appearing or defending.” Magness v. Masonite Corp., 12 Ark. App. 117, 671 S.W.2d 230 (1984).
The appellant contends that the judgment should have been set aside because he did not receive the three-day notice required when an application for a default judgment is made under Rule 55. Assuming, without deciding, that the notice requirement applied here and had not been complied with, the appellant must also make a prima facie showing that he has a valid or meritorious defense to the action before he is entitled to have the judgment set aside. Magness, supra; Ark. R. Civ. P. Rule 60(d). The motion itself must assert this defense. Taggart v. Moore, 8 Ark. App. 160, 650 S.W.2d 590 (1983). The only time that a valid defense need not be shown is when the judgment is void, not voidable, such as when the appellant has received no notice whatsoever, actual or constructive. See White v. Ray, 267 Ark. 83, 589 S.W.2d 28 (1979).
In this case, the appellant does allege in his reply brief that he did not receive a copy of the October orders. However, he did not raise this issue below, and the record indicates that he was present at the hearing on October 8th, that he knew of the requirements, and that the orders were sent to the persons whom the appellant indicated he was going to try to hire as his attorney, one of whom was actually hired by him as his attorney. Therefore, in order to prevail under either Rule 60(b) or 60(c), the appellant was required to show that he had a meritorious defense. A meritorious defense is
evidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.
Tucker v. Johnson, 275 Ark. 61, 66, 628 S.W.2d 281, 283-4 (1984). This the appellant failed to do.
The appellant’s motion to set aside the order merely alleged that the appellee “is not entitled to the amount entered and the [appellant] has a justifiable and good defense to the amount owed.” The appellant gave the following testimony at the hearing on his motion:
Q. Okay, now did you have a hearing as to the amounts of money owed?
A. Well, one time she said I owed her $6000.00 and another time she said I owed sixteen and then the last time she said twenty something so I don’t know what she is talking about in the way of money. . . .
Q. Do you owe her the $23,200.00?
A. Well, she said she hadn’t received anything in five years. Now she says she has. Her — her—her recollection of funds received is kind of like the governor of Louisiana. I mean, her memory seems to come and go at will.
Q. You claim to have paid her substantial sums . . .
A. Yes sir, I certainly have.
We find no substantial difference between the facts of this case and those of Meisch v. Brady, 270 Ark. 652, 606 S.W.2d 112 (Ark. App. 1980), which we held to be insufficient to constitute a prima facie showing of a valid defense.
The appellant also contends that the chancellor improperly awarded the appellee the full amount she asked for without holding a hearing as to the amount. If this were indeed the case, and if the appellant had made the requisite showing of a meritorious defense, the appellant would be entitled to have the judgment set aside. Rice v. Kroeck, 2 Ark. App. 223, 619 S.W.2d 691 (1981). Here however, not only has the appellant not presented a meritorious defense, but the order of October 30th, which the appellant is trying to have set aside, specifically states that it is “based upon oral proceedings in open Court on October 8, 1984, at which proceedings both [appellee] and [appellant] were present in person.” Where there is anything in the record which would indicate that oral proof was heard and not preserved, we conclusively presume the decree is correct and affirm. Id. Here, the oral proceedings were not preserved by the appellant, and it was his duty to do so. Therefore, we assume that the chancellor correctly awarded the appellee the entire amount for which she prayed.
Because the appellant has failed to raise a valid defense to the contempt proceeding, we need not address his final issue. Suffice it to say that we find that the appellant received proper timely notice by mail, in accordance with Ark. R. Civ. P. Rule 5(b), and that the chancellor did not abuse his discretion in conditioning the continuance upon the filing of an appearance bond.
The appellee alleges that the appellant’s abstract is deficient and in violation of the Ark. R. of the Sup. Ct. Rule 9; she therefore asks to be awarded the costs she entailed in preparing her supplemental abstract. After reviewing the record as submit ted and abstracted by the appellant, and not as designated, we agree that the supplemental abstract was necessary. We find that the appellee is entitled to $400.00 as attorney fees for the additional abstracting required by the appellant’s failure to comply with Rule 9.
Affirmed.
Corbin, J., agrees.
Cracraft, C.J., concurs. | [
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Melvin Mayfield, Judge.
The first question in this appeal involves the right of a mortgagee to require that other mortgaged property be sold and the proceeds applied to the indebtedness due, before a mortgaged homestead is sold.
On June 6,1977, Larry Lee and his wife executed to Corning Savings and Loan Association a note in the amount of $38,500.00 secured by a mortgage upon commercial property owned by them. On November 13,1981, Larry Lee and his wife executed to Corning Savings and Loan a note in the amount of $43,500.00 secured by a mortgage upon residential property owned by them.
On October 23,1984, Lee’s National Pump & Supply Co., Inc., an Arkansas corporation owned by Larry Lee and his wife, executed to the Mercantile First National Bank of Doniphan (Missouri) a note in the amount of $256,800.00 secured by a deed of trust on the same commercial property which secured the $38,500.00 note to Corning Savings and Loan. Also, on the same day, Lee’s National Pump & Supply executed to the Bank of Doniphan a note in the amount of $100,000.00 secured by the same deed of trust which secured the bank’s $256,800.00 note.
On February 4,1987, Corning Savings and Loan assigned its notes and mortgages to the Bank of Doniphan. In July of 1987, the bank filed suit against Larry and Sonia Lee, and against Lee’s National Pump & Supply, seeking judgment for the amounts due on the notes executed and assigned to it and seeking foreclosure of the mortgages and deed of trust securing the notes.
The appellants, Larry and Sonia Lee, filed an answer to the complaint alleging that their personal liability had been discharged in bankruptcy. They also alleged that the residential property described in the mortgage which secured the $38,500.00 note to Corning Savings and Loan was their homestead, that this property was exempt, and that it had been claimed as exempt in the bankruptcy proceedings. Appellants further alleged that this property was exempt from foreclosure by the Bank of Doniphan and alleged that the bank could not better its position in that regard by the purchase and assignment of the notes and mortgages from Corning Savings and Loan. Appellants affirmatively alleged they were entitled to marshal the two properties mortgaged to Corning and assigned to the Bank of Doniphan, so that the commercial property would be sold first and any sum received in excess of the indebtedness due on the notes secured by the mortgages executed to Corning be delivered to appellants.
Judgment was entered finding the amount due on the June 6, 1977, note to Corning, secured by mortgage on commercial property, to be $26,390.13; the amount due on the November 13, 1981, note to Corning, secured by mortgage on residential property, to be $50,071.42; and the total amount due on the notes of October 23,1984, to the Bank of Doniphan to be $236,346.03. The judgment was filed on December 15,1987, with the amounts due calculated as of November 13,1987, and interest at 10% to run on those amounts from that date. The appellee’s personal obligation having been discharged in bankruptcy, judgment for the amounts due were in rem against the mortgaged property.
Both tracts (commercial and residential) were ordered sold and the proceeds applied on the amounts due. The judgment also provided:
That should there be any overplus above $50,071.42 [the amount due on the note secured by the residential property] from the sale of [the residential property] all such overplus shall be applied to the use and benefit of Defendants Larry K. Lee and Sonia Lee herein, being the homestead of said parties.
On appeal, the appellants point out that there was only one mortgage on the residential property; that Larry Lee testified this was his and his wife’s homestead; and that the trial court found this property was their homestead. Therefore, appellants contend, the commercial property should have been ordered sold first with the proceeds therefrom to be applied first against the amount due on the obligations secured by the mortgages executed in favor of Corning Savings and Loan. We agree.
Except for items not involved in this case, the Arkansas Constitution exempts a homestead from forced sale to collect debt. A rural homestead of less than 80 acres is exempt regardless of its value. Ark. Const, art. 9, § 4. In this case, the trial court obviously found that all the residential property mortgaged by appellants was homestead property. There is no appeal from that finding. The mortgage executed by appellants was, of course, a waiver of their homestead exemption as to the debt secured by that mortgage. See Ragsdell v. Gazaway Lumber Co., Inc., 11 Ark. App. 188, 668 S.W.2d 60 (1984). However, because of the exempt status of the homestead, it is generally held that “if the obligation is secured by the homestead premises and also by other property of the debtor, the latter may require the creditor to satisfy his demand by resort to the other property before having recourse to the homestead land.” 40 Am. Jur. 2d Homestead § 91 (1968).
This is also the rule in Arkansas. In the early case of Littell v. Jones, 56 Ark. 139, 19 S.W. 497 (1892), the court’s ruling on this point is summarized in headnote 4 as follows:
Where minor children claim a homestead in a part only of the land left by their mother, all of which was subject to a mortgage executed by her, the part not claimed should first be sold to satisfy the lien to which the right of the children was subject.
Grimes v. Luster, 73 Ark. 266, 84 S.W. 223 (1904), relied upon Littell v. Jones and summarized the holding of that case in these words:
In Littell v. Jones, 56 Ark. 139, an action was brought by next friend of minors to select and set apart to them a homestead in a tract of 240 acres, and to require a creditor holding a mortgage upon the whole to be limited to the part not selected as homestead. The selection was held proper to be made, and the mortgage, which was subject to their rights, enforced only against the surplus over the homestead.
73 Ark. at 269. In Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S.W.2d 1099 (1932), the court held that a widow and children, who claimed a homestead in part of a tract which was subject to a mortgage, were entitled to have the remaining land sold first in satisfaction of the mortgage. In reaching that decision, the court summarized its reliance upon the Grimes v. Luster interpretation of Littell v. Jones, in the following conclusion:
As we have already seen, the whole theory of our homestead laws is based upon the idea of giving a family home to debtors, which is exempt from the liens of judgments and executions levied upon them except in certain specified cases. The policy of the statute is to preserve the home to the family, and we think the interpretation put upon the case of Littell v. Jones, 56 Ark. 139, 19 S.W. 497, in the later case of Grimes v. Luster, supra, is applicable to this case, and should govern.
184 Ark. at 1071. The Bank of Hoxie v. Graham case was cited in Sims v. McFadden, 217 Ark. 810, 233 S.W.2d 375 (1950), for the holding that “one whose homestead is mortgaged along with other property is entitled to demand that the mortgagee proceed first against the other property.” 217 Ark. at 813. And in McMillan v. Palmer, 198 Ark. 805, 131 S.W.2d 943 (1939), the opinion concludes by stating: “The homestead property may not be sold unless the other or remaining property be insufficient to pay the indebtedness.” 198 Ark. at 811. Finally, all of the above cases are cited with approval in Alston v. Bitely, 252 Ark. 79,477 S.W.2d 446 (1972), at 252 Ark. 99-100.
Under the authority of the cases cited above, we think the appellants were entitled to have the commercial property sold first and the proceeds applied first to the indebtedness due on the mortgages executed in favor of Corning Savings and Loan. However, the decree entered by the trial court ordered both the commercial and the homestead properties sold. This is not what the cases cited above hold. The decree in this case should have required that the commercial property be sold first and the proceeds therefrom be applied first to the indebtedness due to Corning.
The second question in this appeal is raised by assuming that the sale of the commercial property does not produce enough money to pay the amount due Corning on its mortgages. Obviously, the homestead property would then be sold. The question is — what if that sale produces more than enough to pay the indebtedness due on the mortgages to Corning? We think the answer is — the balance would go to appellants as proceeds of the sale of exempt homestead property. The trial court’s decree is, at least, unclear in this regard.
In some situations, the doctrine of marshaling assets would allow the balance assumed in the above paragraph to go to the Bank of Doniphan. That doctrine is defined in 53 Am. Jur. 2d Marshaling Assets § 1 (1970) as follows:
Marshaling is an equitable principle, in accordance with which assets and securities of a debtor are resorted to or apportioned in such a manner as to secure protection to the rights of each of two or more creditors, or of a creditor and some person other than a creditor having an interest in such assets and securities.
The court in Bank of Bentonville v. Swift & Co., 233 Ark. 808, 348 S.W.2d 881 (1961), quoted this definition with approval. However, in the instant case, the Bank of Doniphan cannot rely on this doctrine. The reason for this is clearly explained in the following quotation from Sims v. McFadden, 217 Ark. 810, 233 S.W.2d 375 (1950).
This decree would ordinarily be a proper marshaling of the assets, since the general rule is to require a secured creditor to proceed first against that part of his security that the common creditors cannot reach. But when a homestead is involved there is a well recognized exception to this rule. One whose homestead is mortgaged along with other property is entitled to demand that that mortgagee proceed first against the other property. Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S.W.2d 1099. In this situation a common creditor cannot invoke the ordinary rule that requires the secured creditor to look first to that part of his security that the other creditors cannot reach. Bank of Luverne v. Turk, 222 Ala. 549, 133 So. 52; Mounce v. Wightman, 29 Ariz. 567, 243 P. 415. The law is so solicitous of the homestead right that the secured creditor will be required to exhaust his non-exempt security first, even though this procedure entails a loss to the common creditors. Nolan v. Nolan, 155 Cal. 476, 101 P. 520; Kerens Nat. Bank v. Stockton, 120 Tex. 546, 40 S.W.2d 7.
217 Ark. at 813 (emphasis added).
The appellee, Bank of Doniphan, contends that the rule in Sims does not apply to it since it is not a common creditor. The case of Marr v. Lewis, 31 Ark. 203 (1876), holds otherwise. There, Herbert Marr had mortgaged several tracts of land to James Lewis and afterward mortgaged some of the same land to Lorinda Marr. Herbert Marr died and his widow and children continued to occupy as a homestead some of the land described in the first mortgage, but this homestead property was not included in the second mortgage. Because of the widow’s homestead exemption claim, the Arkansas Supreme Court held the doctrine of marshaling assets was not available to the holder of the second mortgage. The court said this doctrine was an equitable doctrine that was not available when it would operate inequitably on the interests of others. To require the property covered by the first mortgage to be sold before the property covered by the second mortgage would have deprived the widow of her homestead claim, the court said, and “for this reason” the application of the second mortgage holder to marshal the assets should have been refused. See also Hughes, Arkansas Mortgages § 411 (1930). This is also the general rule. See 53 Am. Jur. 2d Marshaling Assets § 25 (1970). Thus, the rule against marshaling assets when it would cause a homestead to be sold, applies when the second creditor holds a mortgage that does not include the homestead as well as when he is a common creditor.
Neither are we impressed with the appellee’s contention that its assignment of Coming’s mortgages gives appellee the right to prevail over appellants’ claim of homestead exemption. The assignment certainly cannot give the appellee greater rights than Corning had. Moreover, in regard to equitable considerations, we note that an assistant vice-president for the appellee, Bank of Doniphan, testified that when the bank purchased the notes and mortgages from Corning it was aware that one note and mortgage covered appellants’ residential property and that appellants’ homestead exemption claim had been previously made in the bankruptcy proceedings.
We reverse and remand this case for further proceedings not inconsistent with this opinion.
Corbin, C.J., and Cooper, J., agree.
In some volumes of 56 Ark., this case appears at page 130. | [
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SAM BIRD, Judge.
Appellants Gerald Johnston and Bebe Dare Johnston bring this appeal from the Circuit Court of Lonoke County contending that the court erred in finding that the parties orally modified a written real-estate contract and that their non-performance of the contract was not excused. Appellees Glen Curtis and Deanna Curtis have cross-appealed, stating that the court should have awarded them “expectancy” and punitive damages. We affirm the decision of the trial court on direct appeal and cross-appeal.
On October 9, 1997, the parties entered into a written real-estate contract, whereby the Curtises offered to sell and the John-stons agreed to buy a house in Cabot for $114,000. A real estate agent was not involved. Under the terms of the contract, the transaction was subject to the Johnstons obtaining a home loan of $102,600, which was 90 percent of the purchase price. Specifically, the contract provided that the Johnstons’ obligation was subject to:
The Buyer’s ability to obtain a loan secured by the property in an amount no less than $102,600, with Jan Turbeville at Arkansas Fidelity Mortgage Co., payable over a period of not less than Years, with interest not to exceed_% per annum.
Deanna Curtis testified that after the Johnstons told her and her husband that they had been pre-approved for their loan, the Curtises purchased a home in Searcy, and they moved out of the home in Cabot after they signed the contract with the Johnstons. However, because the house appraised for only $110,000, the mortgage company denied the loan to the Johnstons. Thereafter, the parties entered into an oral agreement whereby the Johnstons agreed to buy and the Curtises agreed to sell the house for $110,000. On November 3, 1997, after the lease on the Johnstons’ home in Hot Springs expired but before the parties closed on the house in Cabot, the Johnstons paid the Curtises $500, took “early possession” of, and moved into, the home in Cabot. Deanna Curtis testified that she and her husband allowed the Johnstons to move into the home before closing only after they had made “some kind of a show of good faith.” The Johnstons tendered a check for $500 to the Curtises for the Curtises to hold until closing.
Jan Turbeville, a mortgage loan originator, testified that she had a difficult time obtaining a loan for the Johnstons, but that a loan for ninety percent of the purchase price was finally approved at the reduced price of $110,000, and the transaction was set for closing on November 17. She testified that when the loan was approved, the Johnstons were informed of the terms. She also testified that one of the terms of the loan was that Bebe Dare Johnston’s name would not be on the title of the home, but that the title of the home would be in Gerald Johnston’s name only. She also testified that during the initial meeting that she had with the Johnstons, Gerald Johnston did not put any parameters on the type of financing that he would accept. In addition, she testified that he accepted the terms of the final loan for which he was approved. She stated that had Gerald Johnston not approved the terms of the loan, she would have neither set a closing date nor ordered any of the documents needed for closing.
Deanna Curtis testified that the parties were to close on the house on November 17, but that they were informed that day that the Johnstons had refused to close. Thereafter, the Curtises demanded that the Johnstons vacate the premise. The Curtises then listed the home with a realtor and sold the property in March 1998 for $100,000. Deanna Curtis testified that after deducting the six-percent commission, they received $94,000, less closing costs.
Gerald Johnston testified that the parties had entered into a real-estate contract, but stated that the terms of the agreement were that he purchase the home for $110,000 if he could obtain a loan at an acceptable rate of interest and acceptable closing costs. He stated that he had been led to believe by a mortgage lender that the interest rate would be between nine and ten percent. However, he admitted that the written real-estate contract did not state that the offer was contingent upon obtaining a loan with an interest rate between nine and ten percent. Johnston testified that he and his wife were originally set to close on the house on November 8 or 9, and that they showed up at the office to close, but that the papers were not ready. He said that he was told on November 17 that the closing would take place that afternoon, but at that time the mortgage company did not know the amount of the closing costs or the interest rate. He said that someone by the name of Brown called him later that afternoon and told him the interest rate and the amount of the closing costs and that they were beyond what he had discussed. Gerald Johnston told Brown that he and his wife were not interested. He said that he was quoted an interest rate of 10.75%, but that it was too high and that he was only interested in purchasing the house if he would obtain an acceptable interest rate. Gerald Johnston also stated that he was never informed, until the trial, that his wife was not going to be named on the deed, and he said that he would not have purchased the home without her name being included on the deed. He denied that Turbeville had several conversations with him concerning the transaction. Gerald Johnston stated that the $500 check he wrote to the Curtises when they moved into the home was not earnest money, but was given to cover any damages that they might cause to the home. He stated that he stopped payment on the check because the Curtises were not acting in good faith.
The trial court found that the parties had orally modified their agreement to reduce the price from $114,000 to $110,000, but subject to all the other terms of the original contract, that the oral modification to the contract was not subject to the requirements of the statute of frauds, and that the Johnstons had breached the contract by their failure to close. Damages were awarded to the Curtises in the amount of $10,000, representing the difference between the modified contract price and the amount for which the Curtises later sold the house to someone else.
For appellants’ first point on appeal, they argue that the court erred in finding that the parties had orally modified the written contract and that the oral modification was not barred by the statute of frauds. Appellants argue that there was not a meeting of the minds between the parties because they had not agreed on an acceptable loan amount, interest rate or closing costs. In the alternative, they argue that even if an oral contract existed, it violated the statute of frauds.
A meeting of the minds, or what is more commonly known as an objective indicator of agreement, see Fort Smith Serv. Fin. Corp. v. Parrish, 302 Ark. 299, 789 S.W.2d 723 (1990), does not depend upon the subjective understanding of the parties, but instead requires only objective manifestations of mutual assent for the formation of a,contract. Hagans v. Haines, 64 Ark. App. 158, 984 S.W.2d 41 (1998). The meeting of the minds is essential to the formation of a contract and is determined by the expressed or manifested intention of the parties. Id. The question of whether a contract has been made must be determined from a consideration of the parties’ expressed or manifested intention determined from a consideration of their words and acts. Id.
The Johnstons argue that the oral contract between the parties provided that they would purchase the home for $110,000 if they were given an acceptable interest rate and closing costs. After a consideration of the parties’ words and acts, it is clear that the contract was modified from $114,000 to $110,000. Through their testimony, both parties admit that they changed the terms of the agreement from the purchase prices of $114,000 to $110,000. They also state that those were the only terms changed. The original real-estate contract was silent as to what would constitute an acceptable rate of interest or acceptable closing costs. In addition, Turbeville testified that the Johnstons did not discuss with her what interest rate or amount of closing costs would be acceptable to them.
The Curtises argue that the statute of frauds is an affirmative defense and that the Johnstons are barred from arguing it as a defense because they did not specifically plead such in their answer. While it is true that the statute of frauds is an affirmative defense, see Ark. R. Civ. P. 8, the court in this case amended the pleadings to conform to the proof. Arkansas Rule of Civil Procedure 15(b) states, “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.” In the case at bar, after the Curtises presented their case, the Johnstons made a motion to dismiss the case, the court denied .the motion, stating that the pleadings were amended to conform to the proof, and it considered the issues of the applicability of the statute of frauds. Therefore, even though it was not raised in the Johnstons’ answer, this court can address the defense of the statute of frauds.
A contract for the sale of land comes within the statute of frauds and must be in writing to be enforceable. Ark. Code Ann. § 4-59-101 (Repl. 1996). A material modification of a contract comes within the statute of frauds and must be in writing in order to be valid and binding. Shumpert v. Arko Telephone Communications Inc., 318 Ark. 840, 888 S.W.2d 646 (1994). Such a contract cannot be modified in essential parts by parol agreement so as to be valid against a plea of invalidity under the statute of frauds. Id. See also Arkmo Lumber Co. v Cantrell, 159 Ark. 445, 252 S.W. 901 (1923); J.W. Davis v. Patel, 32 Ark. App. 1, 794 S.W.2d 158 (1990). The court found that the statute of frauds did not apply in this case because a written agreement may be modified by an oral agreement. We disagree, but we affirm the court because, even though the trial court applied the wrong reason, it reached the correct result. Van Camp v. Van Camp, 333 Ark. 320, 969 S.W.2d 184 (1998).
In the case at bar, the statute of frauds is not applicable because of the Johnstons’ part performance of the contract. In order to remove an oral agreement from the statute of frauds, it is necessary to prove both the making of the oral agreement and its part performance by clear and convincing evidence. Langston v. Langston, 3 Ark. App. 286, 625 S.W.2d 554 (1981). A requirement that the evidence be clear and convincing does not mean that the evidence be uncontradicted. Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987). Partial performance of a contract by payment of a part of the purchase price and placing a buyer in possession of land pursuant to an agreement of sale and purchase is sufficient to take the contract out of the statute of frauds. Sossamon v. Davis, 271 Ark. 156, 607 S.W.2d 405 (1980). In the case at bar, the parties orally modified the contract by changing the purchase price from $114,000 to $110,000. The Johnstons admit that they took possession of the home, and they admit to tendering a check to the Curtises for $500. In addition, Deanna Curtis testified that when the Johnstons requested to take possession of the home prior to closing, she and her husband asked the Johnstons to show their good faith by tendering the check for $500 before they allowed the Johnstons to take early possession of the home. The Johnstons’ acts of taking possession of the property and paying a portion of the purchase price are sufficient to take the oral modification to the contract out of the statute of frauds.
For appellants’ second point on appeal, they argue that the court erred in not finding that the contract between the parties was subject to conditions precedent that appellants obtain acceptable financing and acceptable closing costs. In addition, they argue that because Mrs. Johnston’s name was not going to appear on the deed, another condition of their contract was not satisfied. They contend that because all of these conditions precedent were not satisfied, their failure to perform was excused.
Whether a provision of a contract amounts to a condition precedent is generally dependent on what the parties intended, as adduced from the contract itself. Stacy v. Williams, 38 Ark. App. 192, 834 S.W.2d 156 (1992). When the terms of a written contract are ambiguous and susceptible to more than one interpretation, extrinsic evidence is permitted to establish the intent of the parties and the meaning of the contract then becomes a question of fact. Id. Furthermore, evidence of a parol agreement that a written agreement is being delivered conditionally constitutes an exception to the parol evidence rule. Id.
For this argument, the Johnstons rely on Stacy v. Williams, supra. However, that case is distinguishable from the one at bar because in Stacy, the parties made obtaining financing a condition precedent to the contract, and the appellees were never approved for any financing. In the case at bar, the Johnstons were approved for financing, but refused to close because they found the rate and the closing costs unacceptable. However, the original contract stated only that the Johnstons would receive a loan for $102,600, which was ninety percent of the purchase price. Although the contract form that the parties used contained a blank space where a limitation on the interest rate of their loan could have been inserted, it was left blank. The contract contained no mention of any limitation in the amount of the closing costs.
The Johnstons also argue that they should be excused from performing the contract because Mrs. Johnston’s name was not going to be on the deed. However, the Johnstons did not become aware of that fact until the day of the trial, more than a year after they refused to perform the contract. They cannot rely on a fact of which they were unaware at the time of their breach as an excuse for their failure to perform. See Barbara Oil Co. v. Patrick Petroleum Co., 566 P.2d 389 (Kan. Ct. App. 1977).
The Curtises have cross-appealed, contending that the court erred in not awarding them special and punitive damages. The court found that the Johnstons had breached the contract, and it awarded the Curtises $10,000, which represented the difference between the $110,000 purchase price agreed upon between the two parties and the $100,000 sale price that the Curtises accepted from another buyer several months later. The Curtises argue that they should also have been awarded damages for the $6,000 realtor’s commission fee that they paid when their house eventually sold, that they should recover damages for interest on the mortgage, as well as taxes, hazard insurance and mortgage insurance that they were obligated to pay on their Cabot house until it was eventually sold, and that they should recover the rent they expended on their new residence in Searcy up until the time the Cabot house was sold.
The measure of damages for a vendee’s breach of an executory contract for the sale of land is the difference between the contract price of the land and its market value at the time of the breach, less the portion of the purchase price already paid. Williams v. Cotten, 14 Ark. App. 80, 684 S.W.2d 837 (1985) (citing McGregor v. Echols, 153 Ark. 128, 239 S.W. 736 (1922)). In McGregor, the court wrote:
In actions against a vendee on a contract for the purchase of real estate, we had supposed it to be a well settled rule that when a party agreed to purchase real estate at a certain stipulated price and subsequently refuses to perform his contract, the loss in the bargain constitutes the measure of damages, and that is the difference between the price fixed in the contract and the salable value of the land at the time the contract was to be executed.
153 Ark. at 132, 239 S.W. at 736.
The court in Williams v. Cotten, supra, went on to state that the general rule does not prevent a party from ever recovering other damages flowing directly from a breach, and cited the expenses of abstracts of title and title opinions as examples of expenses that might be incurred in preparation for the sale for which a seller might recover damages. But the court specifically excluded expenses connected with the resale to third parties, such as a real-estate commission, monthly house payments, and utilities. The court in Williams v. Cotten, supra, found that these types of damages were not directly connected with a party’s breached sale and were remote and speculative in that the ultimate or total amount for these items depends solely upon when the party consummated a resale. Because the Curtises were awarded the difference between the contract price with the Johnstons and the amount for which the Curtises eventually sold their Cabot house, we do not find that the Curtises are entitled to any other damages.
Regarding the Curtises’s argument on cross-appeal that they should recover punitive damages, their complaint contained no prayer for punitive damages, they made no argument in the trial court that punitive damages should be awarded, and no authority is cited to this court why punitive damages should be awarded in an action for breach of contract. We do not consider arguments made for the first time on appeal, Dobie v. Rogers, 339 Ark. 242, 5 S.W.3d 30 (1999), or arguments not supported by convincing authority, National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999).
Affirmed on direct appeal and on cross-appeal.
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ANDREE LAYTON Roaf, Judge.
Ritchie Grocery (Ritchie) appeals from an order of the Arkansas Workers’ Compensation Commission that awarded one of its employees, Sherry Glass, who was the victim of an armed robbery, medical benefits for treatment of post-traumatic-stress disorder (PTSD). On appeal, it argues that the Commission erred in its decision because it misinterpreted the Diagnostic Statistics Manual of Mental Disorders-IV (DSM-IV). We affirm.
On the night of January 14, 1998, Sherry Glass was attempting to lock the door to one of Ritchie’s convenience stores, Rainbow Food Mart #3, where she worked as a night clerk, when a gun-wielding assailant surprised her from behind, forced his hand over her mouth, and ordered her not to scream. The assailant prodded her into a dark corner outside the store and pressed her into the corner with his body. A second man approached and demanded Glass’s purse and keys. When the sound of an approaching vehicle caused her to look up, Glass’s assailant placed his gun against her temple and ordered her to look down again. The second assailant unlocked Glass’s car door and took Glass into the store. He ordered her to turn off the alarm and open the safe. When he found out that she could retrieve only $300 and could not access the floor safe, he threatened her. She put her hands over her face, turned away from the robber, and silently prayed for her life. Glass heard the robber leave the store and turned around in time to see the tail lights of her car as it left the parking lot.
Glass started having nightmares about the robbery, and on February 9, 1998, she went through an intake appointment at a psychological counseling center, Neuropsychiatry Associates of South Arkansas. She was subsequently diagnosed with, and treated for, PTSD. Ritchie controverted her claim for workers’ compensation benefits, denying that she had suffered a compensable injury.
At a July 31, 1998, hearing before an administrative law judge (ALJ), Glass’s treating psychologist, Dr. Taryn Sue Van Guilder, testified that she began treating Glass for PTSD on a weekly basis, beginning on February 16, 1998. According to Dr. Van Guilder, Glass has experienced several of the symptoms associated with PTSD. She also stated that there was no other triggering event in Glass’s history, and although Glass was treated for alcohol abuse some seven years before, she opined that alcohol abuse could not cause symptoms of PTSD, although it could “exacerbate” the symptoms. She also stated that Glass was still symptomatic and in treatment as of the day of the hearing, and she could not predict when Glass’s symptoms would abate.
On cross-examination, Ritchie’s attorney questioned Dr. Van Guilder at length about whether the symptoms that Glass exhibited conformed to the criteria required by DSM-IV. Dr. Van Guilder stated that Glass exhibited markedly diminished interest or participation in significant activities, although that symptom “remitted pretty quickly . . . [after] a month, maybe,” but noted that'Glass started feeling “a little bit better about that as things progressed.” Dr. Van Guilder further noted that Glass exhibited a restricted range of affect, but conceded that this finding was relative to the general population and that she was not familiar with Glass’s range of affect prior to the robbery. Finally, Dr. Van Guilder stated that Glass exhibited persistent avoidance of stimuli associated with the trauma, and she disagreed that the fact that Glass had visited the convenience store would detract from the validity of this diagnostic find ing because returning to the store was a specific part of Glass’s therapy. Dr. Van Guilder concluded her testimony by stating that the nature of Glass’s condition had changed over time, at least in part because of the more than five months of treatment that Glass had undergone.
Glass’s husband, John Wayne Glass, testified that she began experiencing nightmares immediately after the robbery, which he considered “normal.” He eventually urged her to seek help, however, when it seemed to be getting worse. John Glass further testified that after the robbery, “there definitely was a change. Sherry didn’t want nobody touching her, you know. I mean, she was just acting strange.”
In addition to testifying about the robbery, Glass stated that she had dreams about the incident, overreacted to benign situations such as when a person bumped into her, and was only looking for day-time employment. On cross-examination, she admitted to going back to the store “just a few times” including once to get her last paycheck, “a few times to purchase cigarettes or whatever,” and an unspecified number of times to purchase beer. She noted however, that she was required to go to the store as part of her therapy.
John Benson, vice-president of Ritchie Grocery Company, testified that he obtained surveillance video that showed Glass in the store during the early evening hours on March 26, 1998, April 7, 1998, and April 14, 1998. Glass subsequently viewed the video tapes and noted that on April 7, 1998, she was accompanied by her daughter who also appeared on the tape. Glass’s supervisor, Carol Dyson, testified that Glass had been in the store “two or three times” since the robbery. Dyson also stated that she worked “days” and that she only waited on Glass one of the times that she came to the store. Dyson also stated that store clerk Bobby Green waited on Glass the other times, and that she was present when Green was working “most of the time.” Bobby Green, who stated that she only worked mornings, testified Glass may have been in the store as many as five times, but only twice by herself. Janice Gold, a clerk who worked the 2:00-to-ll:00 shift at Rainbow, testified that she was present when Glass came into the store on March 26, 1998, and described the visit. On cross-examination, Gold stated that she was familiar with the times that Glass came into the store because Benson told her to keep a record of each visit. Gold was unable, however, to explain why only three of the visits were depicted.on video tape. She also admitted that it was apparent from the video that the April 7, 1998, visit was conducted during daylight hours.
Ritchie argues on appeal that the Commission misinterpreted and misapplied the diagnostic criteria in DSM-IV to conclude that Glass was suffering from post-traumatic stress disorder. It contends that although some of the symptoms required to diagnose PTSD were arguably present, Dr. Van Guilder’s testimony regarding the symptom of “markedly diminished interest or participation in significant activities” lasting “a month”, maybe,” was insufficient to establish the presence of the indicator for the requisite one-month period . Further, regarding the symptom of restricted range of affect, it contends that Dr. Van Guilder had no basis to know how Glass’s affect had changed. Finally, regarding the indicator of avoiding activities, people, and places that arouse recollections of the traumatic event, Ritchie contends that the videotape showing Glass’s presence in the store and other eye-witness testimony contradicts Glass’s own account that she was avoiding the store. This argument is without merit.
Arkansas’s Workers’ Compensation law states in pertinent part that: “No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.” Ark. Code Ann. § 11-9-113(a)(2) (Repl. 1996). When we review appeals from decisions of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id.
Regarding Ritchie’s argument that the duration of Glass’s “markedly diminished interest or participation in significant activities” was not sufficiently long to satisfy Diagnostic Criteria E, the standard of review in workers’ compensation cases prevents reversal on this issue. As noted above, we are required to view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision. While it is true that Dr. Van Guilder’s assessment of the duration of the symptom in question was somewhat equivocal, to reach Ritchie’s conclusion, this court would have to disregard Dr. Van Guilder’s testimony that Glass was diagnosed in accordance with DSM-IV, which implies that the symptom was present for more than a month, and then conclude that the Commission erred as a matter of law in interpreting the phrase “a month, maybe” as meaning less than a month. The Commission is empowered to conduct such a de novo review; this court is not.
Similarly without merit is Ritchie’s contention that because Dr. Van Guilder had no basis to know how Glass’s affect had changed, restricted range of affect could not be counted as valid diagnostic criteria. In making this argument, Ritchie ignores the fact that Dr. Van Guilder is a trained professional who was qualified to recognize a flat affect and give an opinion as to its presence. Moreover, DSM-IV states as an example of restricted range of affect, “e.g., unable to have loving feelings.” As noted above, the Commission had before it the testimony of Glass’s husband of eighteen years who stated that he sought treatment for Glass after the robbery because she would not allow anyone to touch her, which certainly would support. a conclusion that Glass was not demonstrating loving feelings.
Finally, Ritchie’s assertion that the indicator of avoiding activities, people, and places that arouse recollections of the traumatic event was not present simply because Glass was observed going to the store, is disingenuous at best. Not only was Ritchie’s testimony regarding the number of times that Glass actually visited the store not clearly inconsistent with what Glass had reported, Dr. Van Guilder testified that part of Glass’s therapy was to make such visits. Moreover, Dr. Van Guilder testified that Glass’s condition was improving; as noted above, under DSM-IV, the symptom need only to be present for one month to be a valid diagnostic criteria.
Affirmed.
Hart and Jennings, JJ., agree.
Under DSM-IV, the diagnostic criteria for PTSD is organized in six sections, all must be present for a diagnosis of PTSD. Ritchie only challenges the diagnostic criteria in one of the sections, Section C. Section C states:
Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2) efforts to avoid activities, places, or people that arouse recollections of the trauma
(3) inability to recall an important aspect of the trauma
(4) markedly diminished interest or participation in significant activites
(5) feeling of detachment or estrangement from others
(6) restricted range of affect (e.g., unable to have loving feelings)
(7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
Dr. Van Guilder only found symptoms 2, 4, and 5 supported the diagnosis.
In DSM-IV, one of the diagnostic criteria for PTSD requires that the symptoms listed in Sections B, C, and D be present for “more than 1 month.” | [
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WENDELL L. GRIFFEN, Judge.
Gordon Stellpflug appeals from the order of the Benton County Chancery Court in which the chancellor reduced his summer visitation with his children. His sole argument on appeal is that the chancellor erred in modifying visitation even though he expressly found there was no change in circumstances to warrant a modification. We agree that appellee did not demonstrate a change of circumstances warranting a modification of visitation. Therefore, we reverse the chancellor’s order reducing appellant’s visitation.
Appellant and his ex-wife, appellee Vickie Stellpflug, were divorced on September 30, 1996. They had three daughters during their marriage: Megan Stellpflug, born November 10, 1987, Morgan Stellpflug, born September 19, 1990, and Caitlen Stellpflug, born June 24, 1992. The parties’ visitation arrangements were modified twice, on May 22, 1997, and on October 10, 1997, before the modification petition was filed in this case. On May 26, 1998, the Benton County Chancery Court approved another order that modified visitation between the parties. Under the terms of this order, the parties agreed that appellant’s visitation with his three daughters would begin one week after the school year ended and would end one week prior to the commencement of the next official school year, for a total of thirteen weeks during the summer. Appellee was to have alternate weekend visitation.
On April 23, 1999, appellee filed a petition to reduce appellant’s visitation. She alleged in her petition that 1) the children desired to see their mother more frequently during the summer; and 2) the visitation arrangement created undue hardship for her and the children because she is unable to exercise her alternate weekend visitation during the summer. The chancellor conducted a hearing on the petition for modification on August 26, 1999, and entered an order reducing appellant’s visitation.
Appellee admits that when she signed the visitation agreement, she knew that it meant her husband would have the children for the entire summer, but she did not realize “how it was going to affect my children.” She maintains that a change of circumstances was shown by her testimony that the summer visitation was difficult on her children, especially Caiden, the youngest, because appellee was unable to make the lengthy trip from Pea Ridge, Arkansas, to Morris, Illinois, to exercise her weekend visitation during the summer. She also testified that, because her child support was abated while the children were with their father, she had to work two jobs to support herself financially, which also made it difficult for her to exercise her weekend visitation during the summer. She maintains that Caiden cries whenever appellee returns the girls to their father, and asks to come home when they talk on the phone during their summer visitation.
During the hearing, the following colloquy took place:
COURT: If I [would] have been notified that they have agreed that she was giving visitation all summer, I would not have signed the order.
Appellant’s Counsel: I do believe that when I brought the order to the Court I did point that out to you.
COURT: It should have been pointed out. I give six weeks in the summer in my routine stuff. The kids are going up there for some time longer than that and the kids have a little time off and it is hard to be involved in things.
Appellant’s Counsel: I will assert to the Court that I brought it to the Court’s attention, I did it for the specific purposes that she was not represented when she entered into this agreement and I was protecting myself by bring it to the Court and saying, this contains all summer visitation.
COURT: Well, anyway.
COURT: When the children come back just the week before school starts, all that time certainly has to be spent getting ready for school. There’s not a lot of time for vacation.
Appellant’s Counsel: She agreed to this order last year. He agreed to this order last year. The fact that she is asking for this to be changed, yet there are no change of circumstances to warrant a change in this order — there are none. There is no testimony that the kids are being mistreated up there or that the kids are lacking in education or that they are lacking in anything to do up there. There is not testimony about that and there has not been any allegation of the change in circumstances.
COURT: I know, but it’s contrary to the Court’s ideas of what is right and mong.
Appellant’s Counsel: When this order was signed, before it was signed, I made sure the Court knew and talked to the Court about it.
COURT: Well, you may have. But as far as I’m concerned there has to be a statement that the court agrees with the factual basis. You may have mentioned it to me and I may have been thinking of something else, but that’s not the right answer as far as I’m concerned. I just don’t agree with it, there’s too much time. She gets no time to visit with the children in her free time, or arrange a vacation or take a few days off or something. It just doesn’t happen.
Appellant’s COUNSEL: The point is, and my argument is, since she agreed to this there has been no change in circumstances, none whatsoever, and she’s coming in here asking the Court to just change it because she doesn’t like it and that’s not the standard for changing visitation.
COURT: Well, I’m going to order it changed. He’ll have six weeks in the summer....
(Emphasis added.)
Appellant maintains this exchange demonstrates that the chancellor specifically found that there had been no material change in circumstances, but nonetheless modified the visitation because the agreement was “contrary to the Court’s ideas of what is right and wrong,” and because the chancellor “do[es not] agree with it.”
On appeal, although we review chancery cases de novo on the record, we do not reverse unless the chancellor’s findings are clearly against the preponderance of the evidence or are clearly erroneous. See Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996). This court has stated that we know of no case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries as much weight as those cases involving minor children. See Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989).
It is well settled that the chancery court maintains continuing jurisdiction over visitation and may modify or vacate such orders at any time on a change of circumstances or upon knowledge of facts not known at the time of the initial order. See Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). It is also well settled under Arkansas law that reversal is warranted where a chancellor modifies visitation where no material change in circumstances warrant such a change. See Tillery v. Evans, 67 Ark. App. 43, 991 S.W.2d 644 (1999) (reversing where the court modified visitation but conceded the party had no basis upon which to modify custody by stating, “If you want to try again and have some factual basis for your claim, a change of circumstances, then you will be free to do that within ten days”); see also Leonard v. Steadman, 59 Ark. App. 5, 95 S.W.2d 189 (1997) (reversing where the chancellor candidly stated that no material change in circumstances had taken place but radically modified visitation on the ground that he was clarifying his earlier decree by defining the meaning of the clause “other reasonable time arranged by the parties”).
We hold that the chancellor erred in modifying appellant’s visitation because it is clear that the only change that occurred in this case was appellee’s attitude regarding summer visitation. It appears that the chancellor either signed an order that he did not read, or did not ascertain that the arrangement that he was approving would grant substantial summer visitation to the appellant. The chancellor’s concern that appellee did not get any “vacation time” with the children was a matter he should have addressed in his prior order.
Appellee, as the party seeking the modification, had the burden below to show a material change in circumstances warranting the change in visitation. See Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998). She also had the burden to show that the modification is in the best interest of the children. See Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990). Although we are sympathetic to the difficulties alleged by appellee, tie., transportation difficulties, financial difficulties, and homesick children, we must find that appellee simply failed to meet her burden below. Appellee merely testified that her children expressed a desire to see her during the summer, that her youngest daughter gets homesick, and that she has financial difficulty exercising her summer visitation rights. However, she fails to cite any authority to show that these difficulties constitute a material change in circumstances to warrant modification of the visitation arrangements. Nor does she show why reducing appellant’s visitation from thirteen weeks to six weeks, a substantial reduction, is in the best interest of the children.
By contrast, the testimony of all parties confirms that the children want to visit their father, and suggests the children are well-adjusted. The attorney ad litem for the children testified that the children stated they enjoyed staying with their father, but they wanted him to be more flexible in allowing them to enjoy summertime activities, such as basketball camp. He further stated that Caitlin likes to spend time with her father but gets homesick. He also indicated the children “do not seem to have any animosity toward anybody and ... seem to have a good relationship with their stepmother.”
In sum, appellee requested a change in visitatio" without demonstrating that a material change in circumstances had occurred. This is tantamount to collaterally attacking the order to which she had agreed. While visitation is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children, and to discourage repeated litigation of the same issues. See Jones v. Jones, 328 Ark. 97, 940 S.W.2d 881 (1997). Because the chancellor modified visitation where there was no material change in circumstances, we reverse and dismiss his order reducing appellant’s visitation.
Reversed and dismissed.
Bird and KOONCE, JJ., agree.
She also argued that the visitation arrangement should be changed because appellant made unreasonable demands as to the time and location regarding the exchange' of the children. The chancellor did not change the transportation arrangements, but did admonish the parties to be reasonable regarding the pick-up and return times. | [
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JOHN B. ROBBINS, Chief Judge.
In our original opinion in this appeal, Freeman v. Con-Agra Frozen Foods, 70 Ark. App. 306, 19 S.W.3d 43 (2000), we reversed the Workers’ Compensation Commissions decision that denied appellant benefits. Appellee timely filed a petition for rehearing and argues that we erroneously evaluated the evidence and came to an erroneous conclusion. In light of two supreme court cases that were decided after we issued our original opinion, we conclude that appellee’s petition is well founded. We have granted the petition for rehearing and reinstate the appeal. In this substituted opinion, we affirm the Commission.
The evidence presented by the parties revealed the following facts, and we reiterate them here. Appellant testified that she began working for appellee on November 27, 1995, assembling frozen dinner trays. She generally worked more than forty hours per week. Fler duty on the moving production fine was to place the correct portion of food into the frozen dinner tray, making certain that there was neither too much nor too little food in each triangle portion of the tray. Two to four employees worked each line, usually with two on each side of the line. In her estimation, she was responsible for filling approximately sixty-five dinners per minute. The employees rotated the duties of putting in a vegetable, an ice-cream scoop of rice, or the frozen meat. This was a job that required extensive use of her hands, wrists, and arms.
Her symptoms began about six months prior to leaving her employment, and she described the symptoms as aching and numbness in her hands and elbows accompanied by a loss of grip strength. The aching was severe enough to wake her at night. At that time, she was in her late forties. She admitted that she did not notify her employer of these problems until she left on November 21, 1997, because she thought that aching and pain was just “part of the job.” On that date, she testified that before she reported to work, she was at home and, while wiping up tea that she had spilled on the kitchen counter, she experienced a shooting pain in her wrists. When she arrived at work that day, she reported to the nurse’s station and requested that they wrap her wrists. After being on the job for about an hour, she could not work any longer due to the pain. She was sent, not to the company doctor, but to her family physician.
She consulted with her physician, Dr. Jones, and his notes indicated a patient history of these problems for the past two to three months with an increase in the last week or two. Nerve conduction studies confirmed that she had bilateral carpal tunnel syndrome, worse on the left than the right. Fie diagnosed her with bilateral carpal tunnel syndrome and bilateral “tennis elbow.” His notes dated November 25, 1997, stated “[t]his overuse syndrome type picture is consistent with the job description she gives me.”
Appellant reported to her employer that these conditions were work-related after her diagnosis by Dr. Jones. Appellee contested the claim since appellant had not initially reported that her symptoms were related to her work. Appellant completed an application for employer-sponsored disability, and in those forms she indicated that her condition was work-related but that she was receiving no benefits. Appellant testified that the insurance coordinator at Con-Agra informed her not to fist the injury as work-related, or she would not receive disability insurance benefits. In her visits for medical care, she assigned benefits under her group medical plan.
She was referred to Dr. Nix, a Little Rock orthopedic surgeon, who concurred in Dr. Jones’s diagnosis. After unsuccessful conservative treatment, Dr. Nix performed carpal tunnel release on January 2, 1998. She continued to experience problems with the A-l pulley on the right thumb, and Dr. Nix performed a release of the A-l pulley on April 21, 1998. Along with her surgeries, appellant underwent a course of physical therapy to restore the use of her hands and elbows.
In response to a letter from appellant’s counsel, Dr. Nix categorized appellant’s problems as “usage related type injuries, often associated with repetitive motion and are most commonly seen in women.” However, “whether this particular repetitive usage is associated with production fine work or other outside activities, I cannot comment on with a reasonable degree of medical certainty. I expect your investigation could help clarify this.” She was released to return to work on May 21, 1998, and continued in that employment until she found other work on October 12, 1998. Appellant denied engaging in any other rapid or repetitive activity and denied that she had any other injuries to her hands or arms before she developed carpal tunnel syndrome and tennis elbow.
Appellant sought benefits asserting that these conditions arose out of and in the course of her employment with appellee Con-Agra Frozen Foods. Appellant contended that because of her overuse syndrome that developed over her two-year tenure as an assembly line employee, she had to discontinue working on November 21, 1997, was temporarily totally disabled until May 21, 1998, and was entitled to medical benefits for treatment of her conditions. Appellee contended that appellant’s injuries were not causally related to her work and that her conditions were not proven to be related within a reasonable degree of medical certainty. The administrative law judge and the Commission concluded that these conditions did not arise out of her employment.
The Commission, which adopted the opinion of the ALJ, found that appellant failed to carry her burden of proof to demonstrate a causal connection between her employment and her injury because she did not indicate that her symptoms were work-related until after she had seen her family physician and realized that her treatment might include seeing a specialist and undergoing surgery. In addition, the Commission found it significant that appellant experienced a dramatic increase in symptoms at home while wiping her kitchen countertop, and it was only after that incident that she could no longer work. The Commission also noted that Dr. Nix declined to render an opinion on the nexus between her condition and her work, and Dr. Jones’s notes, while stating that her conditions were “consistent with” her job duties, were barren of any report of the kitchen-cleaning incident. Therefore, the Commission denied benefits.
When we review a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if the decision is supported by substantial evidence. White v. Frolic Footwear, 59 Ark. App. 12, 952 S.W.2d 190 (1997). Substantial evidence is that evidence a reasonable mind might accept as adequate to support a conclusion. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). A decision of the Commission is reversed only if we are convinced that fair-minded persons using the same facts could not reach the conclusion reached by the Commission. Id. In our review, we recognize that this court defers to the Commission in determining the weight of the evidence and the credibility of the witnesses. Id. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). Where the Commission’s denial of relief is based on the claimant’s failure to prove entidement to benefits by a preponderance of the evidence, the substantial-evidence standard of review requires affirmance if the Commission’s opinion displays a substantial basis for the denial of relief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).
When a claimant requests benefits for an injury characterized by gradual onset, Ark. Code Ann. § 11-9-102(5) (A) (ii) (Repl. 1996) controls, defining “compensable injury” as follows:
(5)(A)(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by the time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition!.]
The supreme court has interpreted this statutory language such that a claimant is not required to prove that her condition was caused by rapid repetitive motion when the diagnosis is carpal tunnel syndrome. Kildow v. Baldwin Piano and Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). We recognize that epicondylitis, or “tennis elbow,” has not been designated as a specifically recognized injury under “rapid repetitive motion.” Consequently, appellant bears the burden of proving that rapid repetitive motion caused the bilateral tennis elbow.
A claimant must also prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of her employment; (2) the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) the injury was a major cause of the disability or need for treatment; and (4) the injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(5). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § ll-9-102(16)(B) (Repl 1996).
We hold that there is a substantial basis for the denial of relief in this case. On June 8, 2000, the supreme court decided Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). This decision narrowed the acceptable language that will support a causal connection between the injury and the work within a reasonable degree of medical certainty. Therein the supreme court reversed our decision, Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), and announced that:
[Ejxpert opinions based upon “could,” “may,” or “possibly” lack the definiteness required to meet the claimant’s burden to prove causation, phasis added.] Accordingly, we modify and overrule the Court of Appeals’ decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), to the extent that it may be read to permit expert opinion evidence under section 11-9-102(16)(B) to be satisfied by the use of terms such as “can,” “could,” “may,” or “possibly.”
We also note that although Atwood seemingly rejects an expert’s use of the word “could” when stating an opinion within a reasonable medical certainty, it validates an expert’s use of the word “can.” Given this inherent contradiction, ... we apply our limited overruling of Atwood retroactively.
The supreme court handed down yet another decision on this subject on July 7, 2000. Crudup v. Regal Ware Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). In it the supreme court reversed our decision upon a grant of review. In Crudup v. Regal Ware Inc., 69 Ark. App. 206, 11 S.W.3d 567 (2000), we had held that the following physician’s opinion on causal connection had been stated within a reasonable degree of medical certainty:
I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however ... it is likely this activity could precipitate, or aggravate, his symptoms.
Id., 69 Ark. App. at 209. (Emphasis added.) In reversing our decision, the supreme court stated that this physician’s opinion was nothing more than a statement of theoretical possibility and therefore lacked the requisite definiteness.
We recognize that the supreme court rendered an earlier opinion, Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999), which supported our first opinion in this case. Ms. VanWagner suffered an injury to her chest and breast implant, and the Commission found that she had proven a causal connection between her injury and her employment. The supporting evidence was her testimony of what happened coupled with her doctor’s notes that substantiated that the right implant was displaced and ruptured. The employer, Wal-Mart Stores, Inc., appealed, arguing that medical evidence was necessary not only to establish the existence of any injury, but also to establish that a work-related accident caused the injury. Therefore, Wal-Mart contended that objective medical evidence of causation is elemental to proper proof of a compensable injury. The supreme court disagreed, holding that objective medical evidence is necessary to establish the existence and extent of an injury but is not essential to establish the causal relationship between the injury and a work-related accident. The supreme court specifically adopted our reasoning in Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997), and Aeroquip, Inc. v. Tilley, 59 Ark. App. 163, 954 S.W.2d 305 (1997), and stated:
The plethora of possible causes for work-related injuries includes many that can be established by common-sense observation and deduction. To require medical proof of causation in every case appears out of line with the general policy of economy and efficiency contained within the workers’ compensation law. To be sure, there will be circumstances where medical evidence will be necessary to establish that a particular injury resulted from a work-related incident but not in every case.
337 Ark. at 447. We agree with this analysis. Flowever, we are bound to apply the most recent statement of the law as announced by our supreme court. See, e.g., Alcoa v. Carlisle, 67 Ark. App. 61, 992 S.W.2d 172 (1999); Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998). Consequently, unless VanWagner was overruled by implication in Frances and Crudup, it appears that the present state of the law in this area could be summed up as follows: Medical evidence is not ordinarily required to prove causation, i.e., a connection between an injury and the claimant’s employment (VanWagner), but if an unnecessary medical opinion is offered on that issue, the opinion must be stated within a reasonable degree of medical certainty. Qualifying words such as “could,” “may,” “possibly,” and “likely” will cause the opinion to lack the requisite certainty and will defeat the claimant’s claim.
Applying these mandates from our supreme court, we hold that appellant’s family physician’s opinion, wherein he opined that appellant’s work was “consistent with” her injuries, does not meet the requisite definiteness to prove a causal connection between the injury and the work. We need not address whether Ms. Freeman’s testimony on the causation issue was credible.
Affirmed.
Jennings, Griffen, and Meads, JJ., agree.
Bird and Stroud, JJ., dissent. | [
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K.MAX KOONCE, II, Judge.
Appellant entered a conditional plea of guilty to manufacturing a controlled substance pursuant to Arkansas Rule of Criminal Procedure 24.3. He was sentenced to fifteen years in the Arkansas Department of Correction. On appeal, appellant argues the trial court erred in denying his motion to suppress. We affirm.
When reviewing the trial court’s denial of a motion to suppress, the appellate courts make an independent determination based on the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997).
Officer Phillip Hubbard of the Atkins Police Department testified that on November 13, 1998, he responded to a call of a possible fire at around 10:00 p.m., and subsequently observed smoke coming from a small storage building or tool shed at the Atkins Housing Authority, a state-owned facility. Officer Hubbard witnessed appellant exit the storage building and close the door. Appellant told the officer he was fumigating the building. Officer Hubbard testified that he heard a voice inside and asked appellant if he could search the building. Officer Hubbard further testified that appellant agreed and started to open the door with a key when another individual exited the building. Officer Hubbard then entered the building. He testified that he smelled a strong odor of ether and observed a fog or vapor inside. The building contained tools and cleaning supplies, as well as numerous items used in the manufacture of methamphetamine.
Tracy Spencer, a narcotics investigator with the Arkansas State Police, testified that inside the shed he found two HCL generators that consisted of two twenty-ounce plastic bottles sealed with plastic tubing. These items were found underneath a work bench along a wall. He testified that the HCL generators were emitting a heavy white vapor. He further stated that prolonged exposure to the fumes can cause health problems and that there was a danger of explosion. Officers also found two-gallon water jugs, empty ephedrine tablet bottles, coffee filters, heating elements, syringes, muri-atic acid, sulfuric acid, denatured alcohol, and funnels, all in plain view inside the building.
At the hearing on his motion to suppress, appellant testified that he did not give Officer Hubbard consent to search the shed. Appellant admitted he was aware that methamphetamine was being manufactured inside the building.
Appellant’s mother testified that she was the executive director of the Atkins Housing Authority where appellant was employed as a part-time maintenance person. She testified that the storage budding was used by the housing authority to store tools and complete repair work. She testified she and appellant had keys to the building.
The trial court found that appellant lacked standing to challenge the search. Appellant contends that he had standing to challenge the search because he controlled the building as his workplace.
Fourth Amendment rights against unreasonable searches and seizures are personal in nature. Rakas v. Illinois, 439 U.S. 128 (1978). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998). It is well settled that the defendant, as the proponent of a motion to suppress, bears the burden of establishing that his Fourth Amendment rights have been violated. Id. A person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by a search of a third person’s premises or property. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). One is not entitled to automatic standing simply because he is present in the area or on the premises searched or because an element of the offense with which he is charged is possession of the thing discovered in the search. Ramage, supra. The pertinent inquiry regarding standing to challenge a search is whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Id.
We have found no cases from our court or our supreme court addressing the specific issue raised in the case at bar. However, it has been recognized that employees may have a reasonable expectation of privacy in their offices against intrusions by police. See Mancusi v. DeForte, 392 U.S. 364 (1968). The United States Supreme Court has stated that the expectation of privacy in commercial premises is different from, and indeed less than, a similar expectation in an individual’s home. New York v. Burger, 482 U.S. 691, 700 (1987). Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. O’Connor v. Ortega, 480 U.S. 709, 718 (1987).
Courts that have addressed similar issues have considered whether the employee had a property or possessory interest in the thing seized or the place searched, had a right to exclude others from that place, exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, took precautions to maintain privacy, and was legitimately on the premises. See United States v. Cardoza-Hinojosa, 140 F.3d 610 (5th Cir.), cert. denied, 525 U.S. 973 (1998) (holding that the defendant lacked a reasonable expectation of privacy in shed where he operated a part-time welding business because he kept shed unlocked, arranged for participants in drug transaction to meet there, did not object when the transaction was conducted inside the shed, and was not on the premises at the time of the search); United States v. Anderson, 154 F.3d 1225 (10th Cir. 1998), cert. denied, 526 U.S. 1159 (1999) (holding that the defendant had standing to seek suppression of evidence obtained as a result of the search of a vacant room in the office building of a corporation in which defendant was a corporate officer).
In the case at bar, appellant did not own the shed, nor did he have the right to exclude others from the government-owned storage shed; he was only a part-time employee and the director of the housing authority also had a key to the building. Anyone else entering the shed could observe, in plain view, the various items of paraphernalia; thus the items were not stored in a manner indicating anything of a private or personal nature. The building did not house an office environment; there was no desk or phone. It was used mainly for storage, and appellant was provided access to the shed for the purpose of facilitating work on behalf of the Atkins Housing Authority. Appellant has also not shown that he was legitimately on the premises at the time of the search. While appellant no doubt intended the planned activities within the shed to remain private, the United States Supreme Court has explicitly stated that the “subjective expectation of not being discovered” while conducting criminal activities is insufficient to create a legitimate expectation of privacy. Rakas, 439 U.S. at 143-44 n. 12. We conclude that appellant did not have a reasonable expectation of privacy in the storage building, and thus did not have standing under the Fourth Amendment to challenge the warrantless search.
Affirmed.
Bird and Griffen, JJ., agree. | [
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JOHN MAUZY Pittman, Judge.
This is an appeal from an order of the Miller County Chancery Court denying appellant Beal Bank’s petition to foreclose on a deed of trust securing a promissory note on which appellees Larry Thornton and Edwina Thornton defaulted in 1988. We find merit in one of appellant’s points for appeal, and we affirm in part and reverse in part.
On May 9, 1986, appellees signed a promissory note to Texana Savings and Loan Association and gave a deed of trust to secure the debt. Appellees made their last payment on the note in May 1988, and later that summer, the bank accelerated the unpaid balance. On July 8, 1996, appellant filed suit against appellees to foreclose on the deed of trust, claiming that the note and deed of trust had been assigned to it by its subsidiary, Loan Acceptance Corporation (“LAC”), on November 3, 1995. According to appellant, LAC had received an assignment of the documents from the Resolution Trust Corporation (“RTC”) while acting as conservator and receiver of Sunbelt Federal Savings, F.S.B. (“Sunbelt”). Appellant could not produce the note but did have a copy of the deed of trust.
Appellant sought to introduce exhibits demonstrating the assignments through the testimony of Mark Bauer, a loan officer for appellant. Mr. Bauer was appellant’s only witness at trial. Appellees did not deny signing the note and defaulting on it in 1988 but asserted that the statute of limitations had run and resisted appellant’s attempted introduction of documents relating to the assignments on the grounds that they were not authenticated and were hearsay. Appellant was successful in getting its assignment from LAC into evidence under the business records exception to the hearsay rule set forth in Arkansas Rule of Evidence 803(6) but could not get into evidence a copy of the assignment from the RTC to LAC (Plaintiff’s Exhibit F), a copy of a letter from the Office of Thrift Supervision (“OTS”) to Sunbelt notifying it that the RTC had been appointed as its conservator, or a copy of the April 25, 1991, order of the OTS relating to the appointment of the RTC as Sunbelt’s receiver and conservator (Plaintiff’s Exhibit D). Appellant proffered Plaintiff’s Exhibits D and F, and the chancellor kept the record open for appellant to supplement it with a certified copy of Plaintiff’s Exhibit D. With its posttrial brief, appellant filed additional OTS documents.
In his order denying foreclosure to appellant, the chancellor found that appellant had “failed to sustain its burden of proof that it is the legal owner to the property that is the subject of this suit”; that appellant had wholly failed to establish that it is a proper party to this litigation; that the statute of limitations began to run in May 1988; that, because no admissible evidence was introduced that the RTC ever had ownership of the property, Arkansas’s five-year statute-of-limitations controlled; that appellees had established adverse possession of the property; and that the documents filed with appel lant’s posttrial brief and Plaintiffs Exhibit F were not admissible into evidence. It is from this order that appellant brings this appeal.
Appellant argues that the federal six-year statute of limitations set forth in 12 U.S.C. § 1821(d)(14) of the Financial Institutions Reform Recovery and Enforcement Act (FIRREA), enacted in 1989, applies to this case. Appellant also asserts that the documents filed with its posttrial brief, Addendum Exhibits 3, 4, 5, and 6, should have been admitted into evidence. Because, as explained below, the chancellor’s finding that appellant failed to prove that it is the owner of this note and deed of trust is not clearly erroneous, we need not decide the statute-of-limitations and evidentiary arguments.
Appellant argues that the chancellor erred as a matter of law in finding that appellees adversely possessed the property covered by the deed of trust. We agree. As appellant points out, appellees are the legal owners of this property and, even after default, appellant had no automatic right of entry to it. One must have the right of entry before another can hold adversely to him. Smith v. Kappler, 220 Ark. 10, 245 S.W.2d 809 (1952).
In its fourth point on appeal, appellant contends that, because appellees’ responses to its requests for admissions were untimely, the matters of which it requested admission should have been deemed admitted and the chancellor should have granted it foreclosure. However, appellant did not make this argument to the chancellor. We do not address an issue that is raised the first time on appeal. Giles v. Sparkman Residential Care Home, Inc., 68 Ark. App. 263, 6 S.W.3d 140 (1999).
Appellant also contends that, in their responses to appellant’s interrogatories, appellees admitted all facts that would entitle appellant to relief, or that the trial should at least have been limited to the statute-of-limitations and adverse-possession issues. After presenting its case-in-chief, appellant moved, without objection, for appel-lees’ answers to interrogatories to be admitted into evidence. After appellees called Mr. Thornton as a witness, appellant argued that appellees’ responses to Interrogatory Number 2 should bar any testimony “put on as a defense of foreclosure....” Appellees responded that they had never waived any issue and that, should there be any question about their position, they would request an amendment at that time. The chancellor then asked appellant’s counsel if his objection was premised on the idea that the statute of limitations was waived by that response. Appellant’s counsel answered that it was. The chancellor replied: “[S]ince the same document clearly indicates the other intent, I will note it, but I will overrule it.”
Thus, without citation to authority, appellant is asking us to hold that a response to an interrogatory has the same legal effect as an answer to a request for admission. We do not address an argument in the absence of citation to authority or convincing argument. Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). Additionally, appellant failed to obtain a ruling on this question at trial; the only ruling made by the chancellor in this regard was whether appellees had waived the statute-of-limitations defense. Without such a ruling, we will not address an issue on appeal. Robinson v. Winston, 64 Ark. App. 170, 984 S.W.2d 38 (1998). Even had appellant preserved this issue, we would not need to interpret the Rules of Civil Procedure, as it asks us to do, to decide the question presented in this case. The trial judge essentially decided that appellees’ answers to the interrogatories were conflicting and therefore, ambiguous, and that, in light of this ambiguity, appellees did not waive their defenses to this suit. Whether a waiver occurred is a question of intent, which is usually a question of fact. Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999). We do not reverse the chancellor’s finding of fact unless it is clearly erroneous. Id. Here, considering appellees’ answer to appellant’s complaint, all of their responses to interrogatories, and their evidence and argument at trial, we cannot say that the chancellor clearly erred in finding that they had not waived their defenses to this suit.
We now turn to the chancellor’s finding that appellant failed to provide ownership of the note and mortgage. With the exhibits admitted at trial, appellant proved that (1) appellees signed a note and gave a deed of trust to Texana in 1986; (2) that the note has been lost; (3) and that LAC assigned whatever rights it held under the lost note and the deed of trust to appellant on November 3, 1995. Appellees stipulated to the note’s essential terms and that they have not made a payment since May 1988. If the documents denied admission into evidence had been admitted, appellant would have proven that the RTC was appointed as receiver for Sunbelt on April 25, 1991, and that the R.TC assigned its rights under the lost note and the deed of trust to LAC on August 10, 1995. However, appellant introduced no evidence of any assignment of the note and deed of trust from Texana to Sunbelt. Therefore, it would make no difference what statute of limitations might have applied or whether the chancellor should have admitted the proffered documents into evidence, because appellant did not establish a Texana-to-Sunbelt link in the chain of successive assignments.
Unless the defendant admits the assignment under which the plaintiff claims, the plaintiff has the burden of proving that there was a valid assignment in order to show that he or she has a cause of action. 6 Am. Jur. 2d Assignments § 191 (1999). “Whether an assignment of contract rights has occurred is determined by the intent of the parties; the assignor must intend to transfer a present interest in the subject matter of the contract.” Id. at section 135. The intent of parties to an assignment is a question of fact derived from the instruments and the surrounding circumstances; therefore, whether an assignment occurred is a question of fact for the trial court. Id. at sections 136 and 190.
The assignee’s burden of proving the existence of the assignment is met by evidence that is satisfactory in character to protect the defendant from another action by the alleged assignor, and which shows that there was a full and complete assignment of the claim from an assignor who was the real party in interest with respect to the claim.
Id. at section 193. A trial court’s finding as to whether an assignment occurred will not be reversed unless it is clearly erroneous. See Northwest Nat’l Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 25 Ark. App. 279, 757 S.W.2d 182 (1988).
We note that Ark. Code Ann. § 4-58-109 (Repl. 1996) provides:
The assignee of any instrument in writing made assignable by law, on bringing suit on any assigned paper, shall not be required to prove the assignment, unless the defendant annexes to his answer an affidavit denying the assignment and stating in the affidavit that he verily believes that one (1) or more of the assignments on the instrument of writing was forged.
This statute, however, only applies if written documentation of an assignment has been produced by the plaintiff. Here, there is no such documentation of any assignment from Texana to Sunbelt or of Sunbelt’s acquisition of Texana’s assets.
At trial, appellant attempted to introduce into evidence an affidavit by Charles S. Blaylock, attorney-in-fact for the RTC, stating that the note had been lost or misplaced. Appellees successfully objected to this affidavit’s admission into evidence, but did stipulate as to the note’s terms and that it had been lost. The loss of the note, along with appellant’s failure to introduce evidence of the purported assignment of Texana’s rights in the note and deed of trust to Sunbelt, require us to hold that the chancellor’s finding that appellant failed to prove that it owns the note and deed of trust is not clearly erroneous.
Reversed as to the adverse possession issue; affirmed in all other respects.
Crabtree and Meads, JJ., agree. | [
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Lawson Cloninger, Judge.
Appellant raises two points for reversal on this appeal of his conviction on the misdemeanor charge of possession of marijuana. We reverse on the first point and remand for further proceedings not inconsistent with this opinion.
At about 2:00 a.m. on April 13, 1983, an officer of the Stuttgart Police Department appeared before the circuit judge to obtain a search warrant for appellant’s house and vehicle. After hearing oral testimony, which was not recorded, the judge issued a warrant. Police officers entered appellant’s residence at about 2:30 a.m. and seized marijuana and various items described as drug paraphernalia.
Appellant admitted that the marijuana was his. He was charged with several crimes but all were subsequently dismissed except for possession of marijuana with intent to deliver. Before the trial, appellant filed a motion to suppress the evidence seized on the basis of a lack of probable cause and a faulty warrant. The State agreed to suppress all evidence seized from appellant’s vehicle, but the court denied the motion with respect to items seized from the house. A jury found appellant guilty of possession of marijuana, a misdemeanor, and sentenced him to one year in prison and imposed a one thousand dollar fine.
In his first point for reversal, appellant contends that the trial court erred in denying his motion to suppress the evidence because the warrant was improperly and illegally authorized. The record of the hearing reveals that (1) the testimony of the officer requesting the warrant was not recorded and no affidavit was prepared; (2) although the issuing judge recalled an oath having been administered, the officer himself stated that he had not been sworn.
Rule 13.1(b) of the Arkansas Rules of Criminal Procedure requires that:
The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer par ticularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. [Emphasis added.]
In the present case neither an affidavit nor recorded testimony under oath was taken.
The Arkansas Supreme Court held in Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977), that the State bears the burden of establishing that a search warrant relied upon by it was issued in compliance with the law by producing the required written evidence considered by the issuing magistrate to establish probable cause. The court went on to say that it regarded the “failure to record the testimony on which a search warrant is issued to be a substantial violation of proper safeguards in procedures for obtaining a search warrant.” Hence, said the court, a motion to suppress the evidence seized should have been granted when the record was silent as to whether the facts recited to a municipal judge by a sheriff concerning the concealment of marijuana in a mobile home were “recorded testimony under oath” as required by Rule 13.1(b).
The facts in the instant case necessitate reversal under the provisions of Rule 13.1(b) and under the Lunsford decision. The lack of compliance with the requirement of either an affidavit or recorded testimony under oath is fatal to the sufficiency of the warrant under Rule 13.1(b).
Regarding appellant’s second point for reversal, we find no error. Appellant argues that the trial court erred in admitting into evidence items allegedly used as drug paraphernalia. The record reflects, however, that the items in question were relevant to the crime with which appellant was charged and therefore admissible under Rule 402, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). Whether evidence is relevant is a matter addressed to the sound discretion of the trial court, and, absent an abuse of that discretion by the lower court, the Court of Appeals will not disturb its ruling. Pruitt v. State, 8 Ark. App. 850, 652 S.W.2d 51 (1983). We find no abuse of discretion here. A police officer, who had established his familiarity with the subject matter, explained the use of each article of paraphernalia as it was introduced into evidence. Such testimony concerning the items enabled the trial court to view the paraphernalia as relevant within the terms of URE Rule 401: ‘‘[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
The judgment is reversed and the cause remanded.
Mayfield and Cooper, JJ., dissent.
Cracraft, C.J., concurs. | [
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