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Melvin Mayfield, Judge.
This is an appeal from the trial court’s dismissal of a real estate broker’s suit to recover from another broker an amount alleged to be due under an agreement to divide the commission earned from the sale of a motel in Morrilton, Arkansas.
The complaint was filed on October 16, 1980, and the appellee filed an answer denying the allegations of the complaint. Ultimately the case was set for jury trial on June 22, 1983. On the day before trial appellant filed an amendment to his complaint alleging, for the first time, that he was licensed in Arkansas as a real estate broker. A provision of Ark. Stat. Ann. § 71-1502 (Repl. 1979) states:
No recovery may be had by any broker or salesman in any court in this State on a suit to collect a commission due him unless he is licensed under the provisions of this Act and unless such fact is stated in his complaint.
At an in-chambers conference on the morning of the day of trial, the appellee moved that the amendment to the complaint be stricken on the grounds that it was not timely filed. The motion was granted and the complaint dismissed.
On appeal the appellant argues that the trial court erred because the licensing requirement of section 71-1302 does not apply in the situation involved here where a nonresident broker is seeking to recover a share of the commission earned by an Arkansas broker for the sale of property in Arkansas. We do not have as much problem with the law as we do with the facts to which the law is to be applied.
The appellant cites the case of Folsom v. Young & Young, Inc., 216 F.2d 352 (5th Cir. 1954), where a Florida corporate broker and two individual brokers in Georgia agreed to refer prospective purchasers to each other and to divide any commissions made on any sales to the referred prospects. The Florida broker referred a prospective buyer to the Georgia brokers and the buyer purchased real property located in Georgia. The Georgia brokers refused to pay the Florida broker any part of the commission earned and a suit filed in Georgia by the Florida broker was met by a motion to deny recovery based on the fact that the Florida broker was not licensed in Georgia. The motion was denied and the appellate court affirmed on the following rationale:
The law of Georgia is clear that by referring a prospective purchaser to appellants, appellee was not engaged in the business of real estate broker in Georgia. A real estate broker earns his commission by bringing together a seller and a purchaser ready, able, and willing to buy property on the stipulated terms. Such was not the nature of appellee’s promised services, and since no act agreed by it to be done was performed in Georgia, then by the settled law of Georgia, which this court is bound to follow, appellee was not engaged in the business of a real estate broker in Georgia, notwithstanding the location of the land.
To support the same principle, the appellant also cites the following cases: Bell v. United Farm Agency, 296 P.2d 149 (Okla. 1956); Howell v. Steffey, 204 A.2d 695 (D.C. App. 1964); Hayes v. Reeves, 571 P.2d 1177 (N.M. 1977); and Pokress v. Tisch Florida Properties, Inc., 153 So.2d 346 (Fla. Dist. Ct. App. 1963). We agree that these cases support the appellant’s position. The Pokress case is cited in another Florida case and the difference in the two cases demonstrates the principle involved. In the case of Meadows of Beautiful Bronson v. E.G.L. Inv. Corp., 353 So. 2d 199 (Fla. Dist. Ct. App. 1978), the court held that members of an organization that made an agreement to “engage in and control the selling, marketing, advertising, and servicing of appellant’s Florida realty” could not recover on the agreement as there was no allegation that either the organization or its members were licensed or registered real estate brokers or salesmen in Florida. The obvious difference in the two cases is that the agreement in Meadows required the “rendition of real estate brokerage services in Florida” whereas the Pokress case involved a Florida broker who employed out-of-state brokers to assist him to find a purchaser — not in Florida — but in the states where the out-of-state brokers were licensed.
The only Arkansas case cited by the parties on this point is Circle Realty Co. v. Gottlieb, 257 Ark. 160, 589 S.W.2d 574 (1979). In that case two brokers licensed in Arkansas agreed to divide a commission, but it was later claimed that the agreement was void because the participation of one Arkansas broker “came through” a New York broker who was not licensed in Arkansas. This contention was rejected and the case is at least compatible with the principle that an out-of-state broker does not have to be licensed in Arkansas in order to enforce his contract in this state, provided the contract does not require the out-of-state broker to perform brokerage services in this state. We think a careful reading of our statute makes this clear. Ark. Stat. Ann. § 71-1301 (Repl. 1979) explicitly states that it is unlawful to act as a real estate broker or salesman in Arkansas without a license issued by the Arkansas Real Estate Commission.
While we think the law is clear enough, the facts to which we must apply that law are not clear. The appellant’s argument assumes that he was an out-of-state broker at the time the motel in Morrilton was sold, but his complaint alleges he is a resident of Arkansas and the amendment to the complaint alleges he is licensed in Arkansas as a real estate broker. Probably the explanation is found in statements by appellee’s attorney made in an argument to the trial court.
On the day before trial there was a hearing before the trial judge with the attorneys for both sides present. The hearing concerned a motion filed for appellant asking that a setoff and counterclaim filed for the appellee be stricken. The setoff and counterclaim were based on the allegation that appellant owed appellee a portion of the commissions received by appellant from the sale of motel properties in Rogers and Springdale, Arkansas. Appellee’s attorney explained to the court that at the time of the Morrilton, Rogers, and Springdale transactions both appellant and appellee were members of the NBAA Association; that this is a very select organization of brokers who specialize in motels; that is a nationwide organization which generally has one member in each state; and that, under the rules of the organization, if an out-of-state broker brokers a motel property in a state where there is a member of the NBAA, he uses that broker and they split the commission. Appellee’s attorney stated that the appellant came to Arkansas and sold the Rogers and Springdale motels and that the appellee was entitled to a portion of the commission on those sales.
Comparing the above statement with appellant’s argument that assumes the appellant was an out-of-state broker at the time the motel in Morrilton was sold, it is possible that both the statement and the assumption made in the argument are true. In his reply brief the appellant acknowledges that the facts involved are not clear and suggests that we “should remand this case for additional proof on the question of what acts were done in the State of Arkansas by the appellant non-resident broker, rather than merely affirm the trial court’s dismissal of the Appellant’s Complaint.”
We agree with this suggestion. After granting the motion to strike the amendment alleging appellant was licensed in Arkansas, the trial court dismissed appellant’s complaint. Civil Procedure Rule 12(c) provides: “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.. . .“Neither Rule 12 nor Rule 56 authorizes the trial court to summarily dismiss a complaint where there are matters before the court that show there is an issue of fact to be decided. We think such matters were before the court in this case and that the court erred in dismissing appellant’s complaint. Therefore, we reverse and remand for further proceeding in keeping with this opinion.
In view of the remand it does not appear that there is any issue concerning the setoff and counterclaim that we need to discuss. However, the case of Little Rock Crate & Basket Co. v. Young, decided by the Arkansas Supreme Court on December 21, 1984, might be of interest to the parties.
Reversed and remanded.
Cracraft, C.J., and Glaze, J., agree. | [
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Melvin Mayfield, Judge.
Insured Lloyds Insurance Company appeals the trial judge’s decision granting appellee judgment on a garage liability policy. The appellee is engaged in the repair and sale of used cars and in the sale of used automotive parts. The policy was purchased from a local insurance agency and obtained by it from Lloyds’ general agent, Arkansas All Risks, Inc. The policy provided. “Automobile Hazard 1” coverage as follows:
(1) the ownership, maintenance or use (including loading or unloading) of any automobile for the purpose of garage operations, and (2) the occasional use for other business purposes and the use for non-business purposes of any automobile owned by or in charge of the named insured and used principally in garage operations, and (3) the ownership, maintenance or use of any automobile owned by the named insured while furnished for the use of any person.
The garage liability master endorsement, expressly made a part of the policy, provides space for the listing of “furnished automobiles” and “service vehicles.” No vehicle is listed in the space allotted to either category and at the top of each space the words “no coverage is provided” have been typed. It is undisputed that appellee had no “service vehicles” at the time the policy was issued. The evidence does not establish whether appellee did or did not have any “furnished automobiles” at the time; apparently, this is because the parties were not concerned with the insurance coverage of “furnished automobiles.”
Appellee subsequently acquired a 1979 GMC wrecker and, during the period covered by the policy, the wrecker was involved in an accident when appellee’s driver was delivering some parts and turned in front of another truck. Lloyds denied that its policy afforded liability coverage for the damages to the other truck. Appellee paid that claim and brought this suit against Lloyds. The judge, sitting without a jury, found the policy ambiguous, resolved the ambiguity against Lloyds, and gave appellee judgment for the amount it paid to settle the claim, plus 12% penalty, and attorneys’ fees. It is Lloyds’ contention that the policy is unambiguous and that it did not afford liability coverage for the wrecker.
We start with appellee’s assertion that a garage liability policy is unique. The case of Morrison v. Anchor Casualty Co., 53 Wash.2d 707, 336 P.2d 869 (1959), is cited. The opinion in that case states:
An insurance company lawyer, writing in the Insurance Law Journal (October, 1954), p. 668, commences an article . . . with the following statement:
“The Automobile Garage Liability Policy is one of the most complex, and perhaps least understood, liability forms in use today. Its complexity is largely attributable to the breadth of coverage, that is, it embraces a multiplicity of hazards which otherwise are written under separate policies.”
The court’s opinion in Morrison also points out that a “very important distinction” between the automobile garage liability policy and standard automobile liability insurance is that the garage policy does not insure a particular automobile. The appellee says this distinction is very important in the instant case.
Turning to the master endorsement, to which we have referred, the appellee points to the fact that the space provided for the listing of “service vehicles” does not provide a column for the listing of the premium charge for such vehicles whereas the space for the listing of “furnished automobiles” does provide a column for the listing of the premium charge for those vehicles. Appellee then asks: “If a category is provided under furnished automobiles for a premium charge on the appellant’s form, why is there not a category under the service vehicle portion for a premium charge?” The appellee answers its own question as follows: “The answer is that a premium has already been charged for service vehicles under the advance premium provision of hazard 1 coverage which used a payroll basis to determine the extent of the exposure for which the appellant must charge.”
We have to agree with appellee’s answer. The Hazard 1 provision says it covers “(1) the ownership, maintenance or use (including loading or unloading) of any automobile for the purpose of garage operations. ...” It is undisputed that the wrecker involved in this case was owned by the appellee and was being used in appellee’s garage operations at the time it collided with the other vehicle. It is undisputed that an advance premium had already been charged and collected for the policy’s Hazard 1 liability coverage. It is undisputed that this advance premium was based on appellee’s payroll and that the payroll could be audited.
The appellee next points to the space on the master endorsement where service vehicles could be listed and calls our attention to the fact that printed under that space is the following: “Coverage is automatically extended to newly acquired Service Vehicles during the policy period so long as the Named Insured notifies the Company within 30 days of such acquisition and proper premium is charged therefor.” Since the evidence shows that the wrecker was acquired by appellee during the policy period and that appellee’s insurance agent promptly notified Lloyds’ general agent of that fact, the next question is whether the “proper premium” has been charged.
Appellee has the same answer to that question. The proper premium was charged when the advance premium based on the appellee’s payroll was charged. Appellee’s insurance agent testified to the same effect. On the other hand, a witness from Lloyd’s general agent, Arkansas All Risks, Inc., testified to the contrary. He would not say that a party who has Hazard 1 coverage and adds a service vehicle must, in every case, pay an additional premium, but he did say that Lloyds would charge an additional premium in that situation. The next question is: Did Lloyds have the right under its contract to charge this additional premium as a condition for coverage?
Lloyds places great emphasis on the following evidence. After the appellee acquired the wrecker, the local agent wrote Lloyds’ general agents stating:
Please add the following.vehicle to this policy:
1979 GMC Wrecker . . .
We want liability coverages & Fire, Theft, CAC & Collision - 250 deductible will be sufficient. Let me know if you need other information. I would appreciate a quote.
Lloyds’ general agent replied to that letter, according to appellee’s agent, with a quote of $1100.00. Appellee’s local agént testified that he told Lloyds’ general agent that the Hazard 1 coverage already afforded appellee liability insurance and that he was able to get the collision coverage with another company at a cheaper rate. Appellee’s agent admitted that he ultimately received a letter from Lloyds’ general agent stating that in order to provide liability coverage for the wrecker the appellee would have to buy a commercial automobile policy or add it to his garage policy and pay a premium of $820.00. It is also admitted that this quote was not accepted and that the premium quoted was not paid.
However, as we have said, the question is whether Lloyds had the right to charge this additional premium as a condition for liability coverage of the wrecker while used in the appellee’s garage operation. We have to agree with the appellee that the insurance policy is, at least, ambiguous in that regard. We have held that an ambiguity must be construed against the insurance company preparing the contract, and that the policy will be construed so as to provide coverage unless it is patently unreasonable to do so. MFA Mut. Ins. Co. v. State Farm Mut. Auto. Ins., 268 Ark. 746, 595 S.W.2d 706 (Ark. App. 1980). Applying that rule, the trial judge found for the appellee. We do not set aside the trial judge’s findings of fact unless clearly against the preponderance of the evidence. ARCP 52(a). We think his decision in this case must be affirmed.
Appellant argues, in the alternative, that if liability coverage is found to exist the amount recoverable should be reduced by the $250.00 deductible referred to on the master endorsement. While it is not clear, that this deductible applies to the coverage involved in this case, the short answer is that the issue was not raised in the trial court and cannot be raised here for the first time. Old American Life Ins. Co. v. Williams, 241 Ark. 250, 407 S.W.2d 110 (1966); Tompos v. City of Fayetteville, 280 Ark. 435, 658 S.W.2d 404 (1983).
Affirmed.
Cooper and Corbin, JJ., agree. | [
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Lawson Cloninger, Judge.
This is an action brought by appellee, Newport Wholesale Electric, Inc., to assert a materialman’s lien, alleging that materials furnished by appellee were used in the construction of a grain drier on property owned by appellants.
The construction job initially started when appellant, Jackson County Rice Drier, Inc., entered into negotiations with Jaco Construction Company for the construction work, with Jaco furnishing all labor and materials. Jaco sought a bid from Harold Rutledge, d/b/a Rutledge Electric, for the electrical work on the project. In turn, Rutledge Electric sought a bid from appellee for the materials necessary to perform the electrical work. Appellee submitted a bid to Rutledge Electric of $14,000. Based upon this bid, Rutledge Electric submitted a bid on the same day to Jaco for the complete electrical work of $56,000. Based upon this bid, Jaco entered into a contract with Jackson County Rice Drier, Inc. for the total contract job for $1,600,000.
A day or two later, after the execution of the written contract for the construction project, Benny Payne of appellee Newport Wholesale contacted Rutledge Electric and informed Harold Rutledge that Newport Wholesale had made a mistake and bid the job too cheaply. The facts are sharply in dispute from this point regarding what was told Mr. Payne of Newport Wholesale.
Mr. Payne testified that the materials he furnished cost him $3,500 more than his bid, and that he was assured by Wiley Albright of Jaco Construction Company that Newport Wholesale would be paid $3,500 above the original bid. Mr. Albright denied that any promise was made to Mr. Payne. Leon Rutledge, president of Jackson County Rice Drier, Inc., testified that he told Wiley Albright of Jaco that if Albright and Harold Rutledge of Rutledge Electric wanted to pay appellee $1,200 he would just give them $400 out of his own pocket. The $ 1,200 figure was not mentioned by any other witness, so presumably the trial judge relied upon this statement of Leon Rutledge to support the judgment of $1,200 for appellee.
Soon after the materials were furnished by Newport Wholesale, appellant Jackson County Rice Drier, Inc. went from a corporation to a cooperative, becoming Jackson County Grain Drying Cooperative. The change in structure is not relevant to the issues in this case.
The circuit court sitting without a jury found that it should apply the doctrine of unjust enrichment and find a quasi contract or constructive contract which required appellants to pay to appellee an amount which the court found to be fair under the circumstances, namely $1,200. The court further adjudged that appellee have a lien for that amount on the property of appellants.
We must reverse the judgment of the trial court.
Appellee candidly admits in his argument to this court that no one promised to pay appellee anything beyond the contract price of $14,000. Even Mr. Payne’s testimony is only to the effect that he was told by Wiley Albright of Jaco Construction Company that “they would make the difference between the cost up, but it would be done at the end of the job.” There was admittedly no contract between appellee and anyone. Appellee states:
No contract existed and the trial court so found. Therefore, the law of contracts is unavailable and only the principles of equity, justice and fairness are available to remedy the injustice which would otherwise result from the appellee paying to the manufacturer substantially more for the motor control than the appellant was charged. In effect, Payne’s — Newport Wholesale Electric Goods became irretrievably incorporated into the new rice drier without him receiving adequate compensation.
The trial court did in fact find that there was a quasi contract or a constructive contract upon which the doctrine of unj ust enrichment should be based.
In Dunn v. Phoenix Village, Inc., 213 F. Supp. 936 (Western District Ark. 1963), Judge John E. Miller stated:
Quasi or constructive contracts (commonly referred to as contracts implied in law) are obligations which are imposed or created by law without regard to the assent of the party bound, ‘on the ground that they are dictated by reason and justice, and which are allowed to be enforced by an action ex contractu. They rest solely on a legal fiction and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy, and the obligation arises not from consent, as in the case of true contracts, but from the law or natural equity. Such contracts rest on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another, and on the principle that whatsoever it is certain that a man ought to do, that the law supposes him to have promised to do.’
Judge Miller’s definition of quasi contracts is correct, although his parenthetical reference to them as contracts implied in law may be misleading. Justice Lyle Brown, speaking for the Arkansas Supreme Court in The Downtowner Corporation v. Commonwealth Securities Corp., 243 Ark. 122, 419 S.W.2d 126 (1967), attempted to clarify the distinction:
Confusion has resulted from the interchangeable use of the terms ‘implied contract’ and ‘quasi contract.’ Quasi contracts are not based on promises to pay or perform. They are obligations which are creatures of the law designed to afford justice. Generally, an indispensable element of a contract, expressed or implied in fact, is a promise.
The issue in this case is essentially the same as the question decided by the Arkansas Supreme Court in the case of Reynolds v. Texarkana Construction Co., 237 Ark. 583, 374 S.W.2d 818 (1964). In Reynolds, Texarkana Construction Company was the successful bidder on a construction job. Before bidding for the job Texarkana had first obtained bids for the electrical work involved. Reynolds was the low bidder for the electrical subcontract. Texarkana relied upon Reynolds’ figure in computing its own bid for the principal contract.
Before the principal bids were opened, Reynolds discovered that he had seriously underbid, and after the principal bids were opened Reynolds withdrew his offer. Reynolds refused to perform the subcontract and he appealed from a trial court judgment awarding damages to Texarkana. The judgment was affirmed by the Arkansas Supreme Court, holding that the better rule is that the subcontractor is bound to perform upon the terms of his bid. The court stated:
In this situation, despite the absence of a formal acceptance, the offer by Reynolds became binding under the principle of promissory estoppel. ‘A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if justice can be avoided only by enforcement of the promise.’ Rest., Contracts, Section 90. . . . Justice demands that the loss resulting from the subcontractor’s carelessness should fall upon him who was guilty of the error rather than upon the principal contractor who relied in good faith on the offer that he received.
The materials furnished by appellee were supplied under the terms of an express contract, and appellants, in reliance upon appellee’s bid, materially changed their position by signing a contract for work to be done on their property. Appellants had an undisputed right under the terms of its written contract for $1,600,000 to receive the materials in question from Jaco Construction Company, whether those materials were furnished by the appellee or by someone else. As the court observed in Worthen Bank and Trust Co. v. Franklin Life Insurance Co., 260 F. Supp. 1 (D.C. Ark. 1966), “Parties to business transactions are required to act justly and honestly, but they are not required to act unselfishly or altruistically.”
In Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906 (1971), the court, in discussing the theory of unjust enrichment, stated:
The maxim or doctrine appellees rely upon is that no one shall be allowed to unjustly enrich himself at the expense of another. The word ‘unjustly’ as so used means ‘unlawfully.’ . . . One who is free from fault cannot be held to be unjustly enriched merely because he has chosen to exercise a legal or contract right.
We hold that appellants were claiming no more than what they were legally entitled to, and since they were only asserting a legal right, the doctrine of unjust enrichment is not applicable.
The j udgment of the trial court is reversed and the cause is remanded with directions to dismiss appellee’s complaint.
Glaze, J., concurs.
Cooper, J., dissents. | [
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Lawson Cloninger, Judge.
The sole issue on this appeal is the commercial reasonableness of the sale of a repossessed mobile home. We find that the trial court erred in finding that appellee disposed of the mobile home in a commercially reasonable manner in accordance with the Uniform Commercial Code, Ark. Stat. Ann. § 85-9-504 (Supp. 1983). We reverse and remand.
Appellants entered into a conditional sales contract with appellee on May 8, 1976 for the purchase of a mobile home. Appellants agreed to pay $11,561.25 for the trailer; they later defaulted, owing appellee a balance of $4,341.85. Appellee repossessed the mobile home and on May 19, 1982 gave notice to appellants by certified letter that it would sell the property at “public auction” on June 1, 1982. On that date, at appellee’s offices, appellee’s manager purchased the mobile home for appellee for $2,500. Appellee sold the trailer in October 1982 to a third party for $7,032 after investing $991.95 for renovation. Appellee then filed a complaint for a deficiency judgment against appellants, and appellee was awarded a deficiency judgment in the sum of $2,608.05.
The Uniform Commercial Code provides that a secured party may, after default, dispose of repossessed collateral and apply the proceeds to the reasonable expenses of retaking and selling the property and to the satisfaction of the secured indebtedness. The secured party is accountable to the debtor for any surplus, while the debtor is liable for any deficiency. Ark. Stat. Ann. § 85-9-504 (1) and (2) (Supp. 1983). Subsection (3) further provides:
Disposition of the collateral may be by public or private proceedings, and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms, but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reason able 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. In the case of consumer goods, no other notification need be sent. In other cases, notification shall be sent to any other secured party from whom the secured party has received (before sending his notification to the debtor or before the debtor’s renunciation of his rights) written notice of a claim of an interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, he may buy at private sale.
Appellants argue that appellee held a private rather than a public sale, thereby violating the Code requirements regarding proper notice and the secured parties’ ability to purchase the collateral. The practical consequence of the different proceedings is indicated in § 85-9-504(3), supra, where limitations not present in a public sale are placed upon the secured party in a private sale; in the latter, the secured party may búy the collateral if it “is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations.” In Carter v. Ryburn Ford Sales, Inc., 248 Ark. 236, 451 S.W.2d 199 (1970), the Arkansas Supreme Court held that a secured party was not in compliance with the provisions of § 85-9-504(3) when it purchased a repossessed truck at its own private sale, because a used automobile is not considered “a type customarily sold on a recognized market.” See also Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966).
We are of the opinion that the disposition of a mobile home is, for the purposes of the Uniform Commercial Code, analogous to that of a car or truck, and that if the secured party is to become the purchaser a public sale is necessary to satisfy the requirements of the Code.
In this case, although appellee notified appellants that a public sale of the repossessed property would be held, there was in fact no public sale at all. The Code does not define either “public sale” or “private sale”, but in Union and Mercantile Trust Co. v. Harnwell, 158 Ark. 295, 250 S.W.2d 321 (1923), the Arkansas Supreme Court adopted the definition of a public sale as one made at auction to the highest bidder. In Harnwell, the court went on to say:
The parties could not have meant that, if the appellant elected to sell at public sale, no notice of the sale would have to be given to the public. Such a construction of the contract of pledge would render the same contradictory within itself, because a public sale could not be conducted unless the public were invited to participate therein. Such construction of the contract would render the same wholly meaningless.
In the instant case, the sale was held at appellee’s offices with only appellee’s manager, the bookkeeper, and a salesman present. No one else was notified of the sale or invited to participate in it. Appellee’s manager simply announced that the mobile home would be auctioned, and he bid $2,500 and sold himself the secured property. The absence of advertisement to the public, the conduct of the. sale at appellee’s offices, and the presence of only appellee’s employees, all strongly suggest a private sale, in spite of the label attached by appellee in its letter of notice to appellants. The purchase of the collateral by appellee at its own sale was improper, and the sale failed to meet the standard of § 85-9-504(3), supra.
In Norton v. National Bank of Commerce, supra, an action was brought to recover a deficiency judgment, as was done in the instant case. In Norton, it was held that since the creditor had failed to comply with the notice requirements of the Uniform Commercial Code, it would be presumed “the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law.” In Mayhew v. Loveless, 1 Ark. App. 69, 613 S.W.2d 118 (1981), this court held that unless this proof is made, the presumption will result in the failure to obtain a deficiency judgment. In Mayhew, we stated:
If this proof is made, judgment can be rendered for any deficiency that exists after the debt is credited with the amount that reasonably should have been obtained through a sale conducted according to law, Universal C.I.T. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970).
Appellee’s manager testified that in his opinion, $2500 was a fair value for the mobile hpme. The burden was upon appellee in this case to prove the amount that should reasonably have been obtained through a properly conducted public sale. Unless appellee makes that proof, it will be unable to obtain a deficiency judgment against appellants.
The j udgment of the trial court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
Cracraft, C.J., and Glaze, J., agree. | [
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Tom Glaze, Judge.
This Workers’ Compensation case involves a hernia claim. Appellant has had surgical repair for four different hernias, but the last two are the subject of this litigation. Appellees accepted these two hernia claims as compensable and paid benefits accordingly. Before the Commission, appellant argued his entitlement to permanent disability benefits because of complications he suffered resulting from his hernia surgeries. He also claimed he was entitled to vocational rehabilitation and to an award for nursing services. Although the Commission found appellant permanently disabled, it held he was limited to the twenty-six weeks of benefits provided for hernia injuries under Ark. Stat. Ann. § 81-1313 (e) (Repl. 1976). The Commission also denied his request for an award for nursing services. However, it remanded this cause to the Administrative Law Judge with directions to have appellant’s vocational rehabilitation potential evaluated, holding that he is not precluded as a matter of law from receiving a program of vocational rehabilitation at appellees’ expense simply because his disability results from a hernia. In this appeal, appellant argues the Commission’s rulings on these issues are contrary both to law and the evidence. We believe the Commission correctly limited appellant’s benefits claim to twenty-six weeks, but it erroneously found appellant permanently disabled and entitled to vocational rehabilitation benefits. We also hold the Commission erred in denying appellant an award for nursing services.
The relevant facts in this case are not in dispute. On December 29, 1980, appellant suffered an on-the-job injury, which was diagnosed and treated as a hernia. On March 2, 1981, he returned to his employment; on March 11, 1981, he incurred another hernia injury. As a result of these injuries, appellant suffered multiple stitch infections, because he was allergic to silk sutures used in the surgeries. Because of appellant’s allergic reaction, he underwent a third surgery in August, 1981, to remove those sutures. Because of these infections and complications, appellant’s hernia injury was not healed when the Commission heard this case. However, Dr. John Allen had released appellant to return to light duty employment. Another doctor, Charles H. Rodgers, stated appellant could perform no labor which involved straining, stooping or lifting. Appellant is fifty-three years old, has a twelfth grade education and has always worked on jobs requiring unskilled labor.
First, we consider appellant’s contention that his hernia claim should not be limited to the twenty-six weeks of benefits. His argument is two-fold: (1) his hernia inj ury was not covered by § 81-1313 (e) because the Commission found the injury was permanently disabling; and (2) even if § 81-1313 (e) covers the inj ury, he characterizes his inj ury as a “hernia plus,’’ or something more than a hernia injury, causing it to be a permanent partial disability governed by § 81-1313 (d) — a statutory provision that allows for more benefits than those set out in § 81-1313 (e).
While appellant’s argument is couched in terms of originality and able persuasion, it is essentially the same one that was made and rejected in Jobe v. Capitol Products Corp., 230 Ark. 1, 320 S.W.2d 634 (1959). Jobe, a laborer, suffered an extensive hernia inj ury for which he received full medical and compensation benefits under § 81-1313 (e). He later filed for additional benefits, contending that he was permanently, partially disabled. Three doctors said that Jobe suffered a permanent partial disability, rating it from 5% to 30% to the body as a whole. Jobe’s injury was described as a weakened fascia (tissues covering the muscle that lends strength to the abdominal wall), and doctors testified that Jobe would be unable to do any heavy lifting again. In support of his claim for additional benefits, Jobe argued his hernia was accompanied by complications, its being more painful and slower to heal than most. In rejecting Jobe’s claim for permanent partial disability benefits, the Supreme Court said:
It is, of course, obvious that benefits arising from hernia are to be determined by this subsection [§81-1313 (e)]; otherwise, there would be no need for a special section dealing this this particular type of injury. Section 1470, Volume 5, Permanent Edition, of Schneider’s Workmen’s Compensation Text relates that specific provisions respecting hernia as a com-pensable injury are found in thirty-two of the Workmen’s Compensation Acts in this country. A study of numerous decisions from various states whose laws make special provision for hernia cases, results in finding that the limitation placed on benefits in such cases is consistently adhered to.
Of course, we are so well committed to the policy of giving a liberal and broad construction to the provisions of the Workmen’s Compensation Act, as to require no citation of authority. However, this does not mean that the plain provisions of the Section can be ignored. Appellant says, “The Section under consideration provides for death benefits in the event death occurs either from the hernia or the operation thereof; we see no reason to exclude benefits for permanent partial disability.” Without discussing the logic of that assertion, let it be said that the best reason for excluding benefits for permanent partial disability is simply that the Section does not provide for them.
Id. at 4-5,320 S.W.2d at 636-37 (citations omitted) (emphasis supplied).
The Supreme Court’s ruling in Jobe clearly precludes the award of permanent disability benefits to appellant here. Appellant argues Jobe is distinguishable because there the claimant fully recovered from his hernia surgery, but here appellant has not. This argument fails for two reasons.
First, the medical evidence presented does not indicate that appellant’s failure to heal promptly caused him to suffer any greater disability than any other person sustaining a severe hernia injury. Neither Dr. Allen nor Dr. Rodgers opined the infections caused appellant any disablement separate or distinct from the hernia itself. They simply said that the appellant could perform no labor which involved straining, stooping or lifting, but that he was released to return to light duty employment. Such medical proscriptions given appellant are essentially the same as those given the claimant in Jobe or others suffering from a severe, slow-to-heal injury. Second, the language in § 81-1313 (e) imposes a duty upon the employer to pay all reasonable, necessary medical, surgical and hospital ex penses to effectuate a cure by radical operation of an employee’s hernia. Contrary to appellant’s argument, § 81-1318 (e) does not extend compensation benefits until a cure is effectuated. Instead, it limits such benefits to a maximum period of twenty-six weeks. In sum, we find no meaningful distinction between Jobe and the case at bar, and for that reason, we believe the Supreme Court’s decision there clearly precludes the additional compensation benefits requested by the appellant.
We now consider appellant’s claim for rehabilitation. Employees entitled to compensation benefits for a permanent disability may also be eligible for rehabilitation benefits. Ark. Stat. Ann. § 81-1310 (f) (Supp. 1981). Of course, we have already affirmed the Commission’s decision denying permanent disability compensation benefits to appellant. Thus, pursuant to the clear language in § 81-1310 (f), appellant simply is not entitled to the costs of a vocational rehabilitation program at appellee’s expense.
Finally, we review the Commission’s denial of appellant’s request for nursing services. In denying such benefits, the Commission adopted the following Administrative Law Judge’s findings:
The services performed for the claimant by Ms. Gilbert have certainly been helpful to the claimant. However, I do not feel that these services were the type envisioned by the framers of Ark. Stat. Ann. § 81-1311, pertaining to nursing service's. Ms. Gilbert testified that she did not expect payment initially when the duties were performed, but did it as a friend. Furthermore, she did not lose time from her regular full-time employment in carrying out duties, nor was any specialized knowledge required. I do not find indication from his treating physician that such services were prescribed.
The foregoing findings reveal neither the Law Judge nor the Commission considered the threshold question required under Ark. Stat. Ann. § 81-1311, viz., whether the nursing services provided the appellant were reasonably necessary for the treatment of his injury. See Pickens-Bond, Construction Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979). The Judge and Commission did determine that Ms. Gilbert, the neighbor who ministered to appellant, did not quit her employment in order to provide him the nursing services; nor did she possess the specialized training of a nurse. Neither of these factors, however, necessarily renders the services provided appellant noncompensable. See Pickens-Bond Construction Co. v. Case, supra; and Sisk v. Philpot, 244 Ark. 79, 423 S.W.2d 871 (1968). Indisputedly, Ms. Gilbert rendered services to appellant which could only be categorized as medical or nursing care. For example, some of her duties included changing bandages and cleaning appellant’s wound — a feat Ms. Gilbert and appellant stated that he could not do alone. Although the Commission found the treating doctor (Allen) did not actually prescribe nursing services, the record clearly reflects the doctor never addressed the question concerning the necessity of such services. From the evidence, it is obvious that appellant required daily medical attention and care, and we find nothing in the record that contradicts the evidence offered by appellant that another person was necessary in providing him that required medical care.
In conclusion, we find no substantial evidence indicating that the nursing services rendered appellant were not reasonably necessary for the treatment of his injury. Therefore, on this point, we reverse and remand with directions to the Commission to determine the amount of compensation to be allowed for the nursing services provided by Ms. Gilbert.
Affirmed in part and reversed and remanded in part.
Appellees assert and appellant concedes that all medical, surgical and hospital expenses have been (and will continue to be) paid until appellant’s injury is healed. | [
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Donald L. Corbin, Judge.
The Gene Reddick family was injured September 27, 1980, in an automobile accident when their car was rear-ended by a vehicle driven by Dean Mainberger. Mainberger, apparently intoxicated, failed to stop at the scene of the accident. In March, 1982, the Reddicks sued Mainberger. Mainberger failed to appear for trial but was defended by counsel hired by appellee, Cadillac Insurance Company, his liability insurer. The Reddicks were awarded $3,979.66 compensatory damages and $17,500.00 punitive damages. Appellee denied liability for the judgment against Mainberger claiming that he had breached the cooperation clause of his liability insurance policy by failing to attend the trial. The Reddicks then brought suit against appellant, Firemen’s Insurance Company, their uninsured motorist carrier, and appellee for the judgment. Appellant cross-claimed against appellee. A motion for summary judgment was granted in favor of the Reddicks against appellant for the amount of the j udgment. Appellant’s cross-complaint against appellee for the amount awarded the Reddicks was heard by the court upon stipulations. The trial court found that Mainberger’s failure to appear for trial constituted a material breach of his contract with appellee which substantially prejudiced its rights, justifying denial of coverage. The court further found that appellee had not waived its right nor was it estopped to deny coverage because of its actions at trial. We affirm.
On appeal, the trial court’s findings will not be set aside unless they are clearly erroneous. A.R.C.P. Rule 52(a). We examine the evidence in the light most favorable to appellee and sustain the trial court’s findings unless they are clearly against the preponderance of the evidence. Hvasta v. McGough, 276 Ark. 168, 633 S.W.2d 31 (1982). In examining appellant’s points for reversal we cannot say that the trial court’s findings were clearly against the preponderance of the evidence.
Appellant first contends that the trial court erred in finding that Mainberger’s failure to appear for trial was a material breach of his contract. Appellant relies on United States Fidelity & Guaranty Co. v. Brandon, 186 Ark. 311, 53 S.W.2d 422 (1932), as authority for the proposition that to constitute a breach of a cooperation clause an insured’s failure to appear for trial must be shown to be a material breach. Under this theory, appellee had the burden of proving that Dean Mainberger’s absence was deliberate or without good reason. We believe the evidence supports a finding that Mainberger lacked good reason for his absence from trial. A series of letters between Mainberger and appellee were introduced which demonstrated Mainberger’s reluctance to appear in Arkansas. Appellee’s concern that Mainberger would not cooperate was readily apparent from the correspondence. Appellee subsequently took actions to insure Mainberger’s appearance. It was established that appellee provided transportation, accommodations and compensation for time off work in order to insure Main-berger’s cooperation and consistently encouraged Main-berger to appear for trial explaining at length the consequences of any failure to do so. Mainberger’s attitude throughout his contact with appellee prior to trial was one of reluctant cooperation at best. Examining these circumstances leading up to Mainberger’s failure to appear for trial, we believe there was sufficient evidence to support the trial court’s finding that Mainberger’s absence was a material breach of the non-cooperation clause of the insurance policy.
Appellant contends that the trial court erred in finding that Mainberger’s failure to appear substantially prejudiced appellee’s efforts to defend Mainberger. Appellee presented evidence that Mainberger’s absence from trial prejudiced appellee’s efforts to defend him. The amount of the award and, more significantly, its division between compensatory and punitive damages was presented as some indication of the jury’s response to Mainberger’s absence. In addition, Mainberger’s attorney, admittedly an expert in insurance litigation and trial work, testified in detail and at length concerning the effect he felt Mainberger’s absence had upon the jury. In reviewing this testimony, we believe the trial court could agree with his analysis.
Simple logic and common sense would indicate the difficulty one would have in imagining the case in which a defendant’s failure to appear for trial would not be prejudicial to his defense. The failure of a defendant to appear surely has an intangible effect upon the jury. Additionally, unexpected developments in the plaintiff’s case cannot be rebutted or offset by the defendant’s explanations. The defendant’s absence leaves him open to unrebuttable innuendos and characterizations by the plaintiff. Inaccurate or exaggerated testimony by the plaintiffs cannot be properly challenged. See Beam v. State Farm Mutual Automobile Ins. Co., 269 F.2d 151 (6th Cir. 1959). Mainberger’s attorney testified that he found himself faced with several of these situations because Mainberger was not there to assist in his own defense. We cannot believe the jury was not prejudiced against Mainberger as a result of his failure to appear in light of the evidence.
Finally, appellant contends that the trial court erred in finding that appellee had not waived nor was estopped from denying liability by the actions of Mainberger’s counsel at trial.
Appellant contends that by admitting Mainberger’s liability and failing to withdraw when Mainberger failed to appear, appellee had waived its right to deny liability for non-cooperation or was estopped to do so. The trial court specifically found that appellee had not waived its right to deny liability nor was it estopped to do so. We agree.
The pitfalls of withdrawal are well noted in insurance case law. Take for example, U.S. Fidelity & Guaranty Co. v. Brandon, supra, where the attorney representing the insured withdrew as counsel upon the defendant’s failure to attend trial. The Court held there was no material breach and thereby made the insurer liable for judgment against which it had no opportunity to defend. Thus, we feel the option to withdraw was not in reality an option at all.
We think it a more logical rule that the insurer need not withdraw in order to preserve its defense of non-cooperation where the insured does not appear at trial. Any other rule would require the insurer to elect at its peril whether to proceed or withdraw, allowing it no recourse should it elect to withdraw and a later determination be made that there was no lack of cooperation. See DeRosa v. Aetna Insurance Co., 346 F.2d 245 (7th Cir. 1965), cert. denied, 382 U.S. 980 (1966).
In summary we find ample evidence to support the trial court’s findings and therefore affirm.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Jimmie Pate brings this appeal from an order of the circuit court denying his motion to quash a writ of garnishment issued on an award from the Arkansas Workers’ Compensation Commission and served upon a person having in his hands assets belonging to him. The sole issue presented by this appeal is whether an award of the Workers’ Compensation Commission entered against a partnership in its firm name only and which makes no reference to the individual co-partners may be enforced as a judgment by garnishment or execution against a co-partner. We conclude that it cannot.
In order to bring this narrow issue into focus a recitation of the events leading up to the issuance of the writ is necessary. In April 1978 Troy Martin notified the Arkansas Workers’ Compensation Commission by letter that he had been injured within the scope of his employment with “P & P Fabrication.” Upon receipt of the letter the Commission prepared and filed a “Dummy A-8” which designated the employer to be “P & P Fabrication.” Appellant’s counsel filed a controversion of the claim on behalf of “P & P Fabrication.” After a hearing the Commission affirmed the findings of the administrative law judge and awarded the appellant all medical expenses and accrued benefits in excess of $7500 against “the respondent.” The award and opinion identified the respondent only as “P & P Fabrication.” They made no reference as to whether it was a partnership or corporation, or, if a partnership, the identity of the co-partners. The appellee subsequently filed a copy of this award in the circuit court pursuant to Ark. Stat. Ann. § 81-1325(c) (Repl. 1976). There was nothing on the face or contents of the award that would connect or relate to the appellant Jimmie Pate when the writ of garnishment based on it was issued. At the suggestion of appellee’s counsel, the clerk placed the name of “Jimmie Pate” on the writ of garnishment as the judgment debtor.
It was undisputed that “P & P Fabrication” was a partnership in which Jimmie Pate and Jimmie Pate, Jr. were equal partners. It was also undisputed that both partners appeared in the hearings before the Workers’ Compensation Commission in defense of the claim and admitted that they were equal owners of the firm.
The trial court ruled that because the appellant had notice, appeared and defended before the Commission and was co-owner and partner in P & P Fabrication the circuit court had a right to consider the record before the Commission to determine his legal liability, even though appellant was not named as a party to those proceedings or in the award of the Commission.
In reaching its conclusion the trial court relied on Ethridge v. Brown & Associates, 258 Ark. 444, 527 S.W.2d 591 (1975). There Ethridge filed his claim against “Alexander Brown and Associates” and the proceedings before the Commission were styled “Edward Ethridge, Claimant, v. Alexander Brown and Associates, Respondents." Brown appeared and was represented by counsel who contended that the partnership, Alexander Brown and Associates, was not in existence at the time of the injury, and that the claimant was actually employed by Alexander Brown, Inc. There was evidence that the claimant was hired and paid by Mr. Brown and received all of his instructions from him. On conflicting evidence the Commission found that:
When the claimant filed his claim against Alexander Brown ir Associates, he was, in effect, filing a claim against Alexander Brown individually.
In the style of the award the respondent was referred to as “Alexander Brown and Associates’ ’ and the award was made against the “respondents.” On appeal the circuit court ruled that the entity designated as respondent was not a legal one against whom an award might be made and remanded the case for further proceedings. The Arkansas Supreme Court reversed the circuit court stating:
The circuit court apparently was guided more by the style of the claim before the Commission than by the substance of the Commission’s findings.
Whether Mr. Brown appeared at the hearing in response to notice served personally or by registered mail makes no difference in this compensation case. It is perfectly clear from the record that Mr. Brown was before the Commission and testified. It is also clear that the Commission’s findings were based on substantial evidence. As we read and interpret the Commission’s findings, the Commission simply found that Mr. Brown was doing business as Alexander Brown ir Associates at the time of the appellant's injury, long before the limited partnership by that name was formed, and that Alexander Brown was the appellant’s employer and the actual respondent in the case.
In Ethridge, although the claim was made against the partnership and the award was so styled, the body of the award shows that on conflicting evidence the Commission found that the actual employer and “respondent” was Alexander Brown individually.
It has long been the rule that in construing a judgment where the identity of a person against whom judgment is rendered is ambiguous or uncertain, resort may be had to the entire judgment or opinion for purposes of identification. In Ethridge the body of the award clearly identified the “respondent” against whom that award was being entered. Here, however, the claim was made against “P & P Fabrication” and the award was so styled. The award made no mention of appellant or his son and made no finding that they were the actual employers of the respondent. There was no finding by the Commission that the actual respondent was anyone other than “P & P Fabrication,” which was not designated as either a partnership or a corporation. We find it to be error for the circuit court to have made a finding not made by the Commission.
Nor do we find merit in the argument that one may be bound by a judgment even though not a party to the action where he has appeared and actually participated in the proceedings. While we agree that a court may enter a binding judgment against the individual parties under those circumstances, the Commission did not do so here. Nothing in the award or the opinion indicated an intent to make the appellant personally liable for the award.
Both parties agree that at common law a partnership is not an entity separate from its members and is nothing more than the aggregate of the individuals making it up. The partnership was not recognized as a legal entity separate and apart from the individuals owning it and had no capacity to sue or be sued. It was necessary to bring suit by or against a partnership in the names of the individuals comprising it rather than in the names of the partnership itself. The appellee argues, however, that this rule was abrogated by the Uniform Partnership Act and that a partnerhip may now be sued in the firm name and liability thereby imposed upon the members. We conclude that the enactment of the Uniform Partnership Act set forth in Ark. Stat. Ann. § 65-101 et seq. (Repl. 1980) did not embrace the entity theory as contended for by the appellee, but retained the common law rule that except in certain specific instances a partnership is not an entity separate and apart from its members and remains no more that the aggregate of the individuals forming it.
In Mazzuchelli v. Silberburg, 29 N.J. 15, 148 A.2d 8 (1959) the court gives a comprehensive history of the partnership act in that respect. In Mazzuchelli the court said:
The Uniform Partnership Law, adopted in this State in 1919, did not embrace the so-called “entity” theory. Lewis, “The Uniform Partnership Act,’’ 29 Harv.L.Rev. 158, 291 (1915); Mechem, Partnership (2d ed. 1920), § 6, p. 11. An early draft by Dean Ames for the commissioners was based on the entity theory and accordingly defined a partnership as “a legal person formed by the association of two or more individuals for the purpose of carrying on a business with a view to profits.” Crane, Partnership (2d ed. 1952), § 3, p. 18, n. 31. Dean Lewis, however, advocated the view “that with certain modifications the aggregate or common law theory should be adopted.” The history appears in the Commissioners’ prefatory note, 7 U.L.A. (1949), p. 2. As there revealed, the recommendation of Dean Lewis led to the adoption of a resolution rescinding any prior action which might limit the committee to "what is known as the entity theory.” In 1910 the committee and a group of experts recommended that the act “be drawn on the aggregate or common law theory with the modification that the partners be treated as owners of the partnership property holding by a special tenancy which should be called tenancy in partnership.” In 1911 Dean Lewis was requested to prepare a draft in "the so-called common law theory,” and in 1912 the committee reported a draft, “drawn on the aggregate or common law theory, with the modifications referred to.” With amendments not negating that basic thesis, the uniform act was recommended for adoption. In harmony with the decision thus reached, a partnership was defined to be "an association of two or more persons to carry on as co-owners a business for profit, "... as contrasted with the Ames proposal of “a legal person formed by the association of two or more individuals for the purpose of carrying on a business with a view to profits.”
In the adoption of our Uniform Partnership Act the legislature followed the recommendation of the drafters to retain the common law or “aggregate” theory. Ark. Stat. Ann. § 65-106 (Repl. 1980) defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” Our legislature did not, as did many other legislatures, accept the Ames definition of “a legal person formed by the association of two or more individuals for the purpose of carrying on a business with a view to profits,” or make provisions for liability of individual partners sued in the partnership name. Our Uniform Partnership Act adopts the common law approach with modifications consistent with the "entity” approach of the purposes of facilitating the acquisition and transfer of partnership property, marshalling of assets and protecting the business operation against immediate impact of perr sonal involvement of the partners. Mazzuchelli v. Silber burg, supra; McKinley v. Truck Insurance Exchange, 324 S.W.2d 773 (Mo. 1959).
The appellee contends that appellant should be precluded from arguing that the judgment is void and cites Spaulding Mfg. Co. v. Godbold, 92 Ark. 63, 121 S.W. 1063 (1909). In that case Spaulding Manufacturing Company, a partnership, brought suit and obtained judgment against Godbold in its firm name. They levied execution on a piece of property and Spaulding’s owners purchased the property at the sale and were given a deed naming Spaulding Manufacturing Company as grantee. Godbold excepted to the deed for the reason that there was “no grantee.” The circuit court agreed and ordered the deed stricken from the record. Spaulding had the case removed to chancery where Godbold argued that the judgment itself was void as rendered in the firm name. The chancellor said that this was a matter of form rather than substance and since the objection to the plaintiff’s capacity to sue was not taken earlier it was waived and the judgment became a valid one. However, Spaulding differs from the present case in several respects and is not controlling here. In Spaulding the judgment was against an individual, not a partnership. There was no necessity there for the court to take notice of who the partners were or to state that a judgment against the partnership name also constituted a judgment against the partners’ individual properties. It should also be noted in Spaulding that the suit was in equity. The court held that a conveyance to a partnership by its firm name which did not include the name of the partners did not vest legal title because the partnership is not recognized in law as a person. It held, however, that because a deed is void in law doesn’t mean that it cannot be corrected in equity. The individual members of the firm had testified that they were the purchasers of the land and the mistake was made in the draftsmanship of the deed. The court found that, as this was true and equity treats that done which ought to be done, the deed could be reformed and enforced. This case also states the proposition that a partnership is not recognized as a person.
We conclude that the award of the Workers’ Compen sation Commission against the partnership in its firm name only and which makes no reference to the individual partners may not be enforced at law as a judgment by garnishment or execution against a co-partner. This case is reversed and remanded to the circuit court with directions to enter an order not inconsistent with this opinion.
Cloninger and Corbin, JJ., agree. | [
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George K. Cracraft, Judge.
Lewis O. Green appeals from an order of the probate court declaring that a will executed by Erda Green on October 30, 1978 is a valid one. The testatrix was seventy-eight years old at the time the will was executed. The will provided for a bequest of $10.00 to appellant Lewis O. Green, her third husband, and named her nephew, Cliff Holland, as sole beneficiary of the residue of her estate. The appellant contends that the trial court erred in holding that he had failed in his burden of proving that the will was invalid because of mental incapacity and undue influence, and in finding that the will had been executed in the manner provided by law. We do not agree.
Appellant’s first contention is based on the charge of undue influence and mental incapacity of the testatrix. Generally, mental or testamentary capacity means that the testatrix must be able to retain in her mind, without prompting, the extent and condition of her property, to comprehend to whom she is giving it, the relation of those entitled to her bounty and the deserts of those whom she excludes from her will. Hiler v. Cude, Ex’r, 248 Ark. 1065, 455 S.W.2d 891 (1970). A testatrix’s old age, physical incapacity and partial eclipse of the mind will not invalidate a will if she had sufficient capacity to remember the extent and condition of the property and who her beneficiaries are. Griffin v. Union Trust Co., 166 Ark. 347, 266 S.W. 289 (1924). Complete sanity in a medical sense at all times is not essential to testamentary capacity provided that capacity exists at the time the will is executed, during a lucid interval. The test is whether the testatrix at the time the will was executed had a fair comprehension of the nature and extent of her property and to whom she was giving it. Scott v. Dodson, Executor, 214 Ark. 1, 214 S.W.2d 357 (1948).
The testimony in this voluminous record is conflicting. A number of witnesses, some of them kinsmen, testified that they were intimately acquainted with the testatrix and had noted a mental deterioration beginning as early as 1974 or 1975. Some of them testified that when the will was executed in 1978 she was mentally incompetent and did not have the requisite ability to retain without prompting the extent of her property and to whom she was giving it. On the other hand, there were a number of witnesses with equally long acquaintance and kinship who testified that the testatrix’s mental deterioration did not occur until at least a year after the will was executed and at the time the will was executed she was fully competent. Dr. Poff, who had been her doctor since 1971, testified that in 1977 she was in the hospital but his records showed no indication of incompetency although she was given medication for arteriosclerotic cardiovascular disease. He further testified that in August of 1979, almost a year after the will was executed, he again treated her and felt at that time that she was mentally incompetent but “I cannot pinpoint a definite date when I would consider that she became incompetent.” She was thereafter placed in a nursing home and a guardian of her person and estate was appointed.
A number of appellant’s witnesses stated that she had “good days and bad days” and that sometimes they felt her to be competent and at others incompetent. Some of those witnesses testifying positively to her competency or to her “lucid intervals” were those who were in a position to take an interest in the estate by the law of descent and distribution in the event the will be declared invalid.
The attorney who drafted the will testified that he first interviewed the testatrix alone in his office. He stated that it was his custom in dealing with elderly people to go over the matter with them completely to make certain that they knew what they wanted to do. He found nothing in that interview or at the time the will was executed that gave him any indication of incompetency. His secretary and the two other persons present in the office at that time concurred with his observation. There was no evidence to the contrary. The probate judge could easily have concluded that despite any existing mental impairment, the will was executed at a time when she was experiencing a lucid interval.
Ordinarily the party challenging the validity of a will is required to prove by a preponderance of the evidence that the testator lacked the mental capacity or was unduly influenced at the time the will was executed. The questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together. Oliver v. Griffe, 8 Ark. App. 152, 649 S.W.2d 192 (1983); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).
Appellant argues that he was aided in the discharge of his burden of proof by the fact that the testatrix was seventy-eight years old and had excluded a “living spouse and numerous blood relatives” at a time when it was shown that she was experiencing vascular changes which ultimately resulted in her incompetency.”
There was evidence that Lewis Green was her third husband and that their relationship was not good. There was testimony from several witnesses tending to establish other reasons why he might be excluded. The testatrix’s estate consisted primarily of real estate which had been in her family for many years. She had no children, but Lewis Green had four by a prior marriage. There was testimony that clearly manifested her intent that the ownership of this property remain in her blood line.
Nor is her preference of Cliff Holland over other relatives indicative of undue influence under the circumstances of this case. That undue influence which avoids a will is not the influence which springs from natural affection or kind offices but is such as results from fear, coercion or any other cause which deprives the testatrix of her free agency is disposing of her property and it must be directly connected with the execution of the will and specially directed toward the objective of procuring it in favor of particular parties. Sullivant v. Sullivant, supra.
Here there was no evidence that Cliff Holland exercised any influence over the testatrix to execute a will in his favor. To the contrary, the facts and circumstances indicate that she was influenced solely by a motherly affection toward him. The testimony shows that, although she had other kinsmen including nieces and nephews, her relationship with Cliff Holland was much closer than that with the others. Cliff Holland and his deceased brother, Jack, were the children of one of her sisters. Their father was the brother of the testatrix’s second husband. For this reason they were referred to as “double nephews.” After the death of their father Cliff Holland and his brother Jack had lived in the home with the testatrix and her second husband, Joe Holland, and had been raised by them as their own children. They both resided there until they left to enter military service and both returned after their discharge. Cliff Holland lived on the land until after the death of Joe Holland. In 1952 Cliff and his wife, Rachel, moved to California and the testatrix accompanied them there. While in California she married Lewis Green. In 1972 Cliff Holland and his wife and children returned to Cleburne County and continued to reside on the property. Erda and Lewis Green had also returned at that time and resided on Erda’s property.
There was an abundance of testimony that the testatrix had for many years declared that at her death all of the property would belong to Cliff Holland and his brother Jack. After Jack’s death she had executed a will leaving everything to Cliff Holland. A number of witnesses testified that the testatrix had exhibited that will to them and that they had read it. Others who had not read the will testified to having heard her mention it and still others testified that they had heard Erda say that at her death the property would belong to Cliff. There was direct evidence that the only reason the testatrix desired to execute a new will was because she had been told by Lewis Green that a will more than ten years old was not effective and that she wished to “renew it.”
Appellant also argues that the trial court should have shifted the burden of proof to appellee and required him to prove freedom from undue influence and mental capacity beyond a reasonable doubt because he was the procurer of the will. This argument is based upon the fact that the drafting attorney had previously represented Holland in other matters, Holland had made the appointment for the testatrix to see that attorney, and Holland’s wife had driven the testatrix to the attorney’s office and was present in the office at the time the execution took place.
It is true that if a beneficiary under the will either drafts or procures the making of it, there is a rebuttable presumption of undue influence and it becomes encumbent on the proponent of that will to show beyond a reasonable doubt that the testator had the required mental capacity and freedom of will. Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955); Oliver v. Griffe, supra.
However, the mere fact that a beneficiary or a beneficiary’s spouse is present while the will is made does not give rise to any presumption of undue influence where there is no evidence he or she induced or procured the execution of the will. Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971); Jones v. National Bank of Commerce, 220 Ark. 665, 249 S.W.2d 105 (1952). Appellee testified that the reason he made the appointment for the testatrix was because she did not know any lawyers in the area and asked him to do so. He stated that she did not discuss the will with him and that he made no suggestions to her. His wife Rachel testified that she did not discuss the matter with the testatrix at any time and that she waited in the lobby of the lawyers’ office while the transaction took place. She denied being in the inner office when any of the conversations between the testatrix and the attorney took place or when the will was executed.
Probate cases are tried de novo on appeal but will not be reversed unless clearly against a preponderance of the evidence. Since the question of preponderance of the evidence turns largely on the credibility of the witnesses we defer to the superior position of the trial court. ARCP Rule 52 (a); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981).
When all of the conflicting evidence is considered and after giving due deference to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be given their testimony we cannot say that his findings were clearly erroneous. The evidence appears abundantly sufficient to sustain them.
The appellant next contends that the trial court erred in holding the proffered will to be valid because the testimony does not establish that it was executed in the manner required by Ark. Stat. Ann. § 60-403 (Repl. 1971) which provides, among other things, “ . . . [T]he testator shall declare to the attesting witnesses that the instrument is his will and either sign it or acknowledge a signature already made... the attesting witness must sign at the request and in the presence of the testator.” We do not agree.
Dave Harrod, the drafting attorney, Susan Logan, his secretary, and Bryce Marler, a client of Harrod’s who happened to be in the outer office at the time, signed the attestation clause of the will in which they certified that all statutory requirements had been complied with. This trial was held four years later. Appellant’s argument is based upon statements of the attesting witnesses that they could not specifically recall all of the details of the occurrence.
The attorney testified that the testatrix made an appointment and came to his office for the purpose of drafting a will. After discussing with him the appropriate contents of her will, she waited in his office while his secretary typed it. He stated that she signed it and that he requested Susan Logan and Bryce Marler to serve as witnesses. The secretary testified that she recalled preparing the will and acknowledged her signature on the attestation clause. When asked on cross-examination if she saw Mrs. Green sign the will she said she could not positively recall but that the general procedure in their office was that each will was witnessed in the presence of the person executing it. Marler stated that, although he could not testify to a positive recollection of seeing Erda execute the will, he had witnessed many wills and never did so unless he had seen the person sign the document and request him to be a witness. He did recall going into the inner office to witness the will and “meeting the lady who said that she had signed the will.” Neither witness could positively recall the testatrix specifically requesting that they witness the will.
In one of our earliest cases our court rejected the requirement of strict compliance with these statutory requirements. It was held that although the testatrix shall declare it, no particular words or mode of communication was necessary. The fact of publication can be inferred from all of the circumstances attending the execution of the will. Rogers v. Diamond, 13 Ark. 474 (1852). A testator may acknowledge his signature by acts and gestures without expressing it in words. Hanel v. Springle, Admr., 237 Ark. 356, 372 S.W.2d 822 (1963); Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944).
Although no presumption of due execution of a will arises from the mere production of an instrument purporting to be a will, if it appears to have been duly executed and the attestation is established by the witnesses to its execution, although they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with the requirements of law including those as to attestation in the presence of the testator and affixing the testator’s signature prior to those of the witnesses. Anthony v. College of the Ozarks, supra; Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973). The requirements for establishing an attested will must be read together and construed to permit establishment of the will by any legally admissible evidence or requisite facts in order that the testatrix’s wishes may not be thwarted by straight-laced construction of statutory language where there is no indication of fraud, deception, imposition or undue influence. Walpole v. Lewis, supra.
The trial court found that the testatrix had the requisite testamentary capacity and was acting without undue influence. She went to the attorney’s office for the specific purpose of making a will and did so. No one questioned the genuineness of her signature. When all the facts and circumstances surrounding its execution are considered in light of the principles we have recited, we cannot say that the probate judge’s determination that the will was validly executed was clearly erroneous.
Affirmed.
Cloninger and Glaze, JJ., agree. | [
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Lawson Cloninger, Judge.
This is an appeal from an award of dependency benefits under the Workers’ Compensation Act to appellee Lana Hoover, for herself and her two minor children. Appellee is the widow of David Hoover who was killed in an automobile accident while in the scope and course of his employment with appellant, Southwest Pipe 8c Supply. We affirm the holding of the Commission.
The evidence established that on May 25, 1982, David Hoover was eastbound when his automobile collided head-on with a westbound tractor and trailer driven by Harry Thompson. An insurance adjuster and a state trooper investigated the accident, and their testimony indicated that Hoover’s automobile was probably across the center line of the highway and that the impact occurred in the westbound lane. Thompson also testified that Hoover was in the wrong lane. However, Lloyd Franklin, the state trooper who worked the accident, testified that one of the contributing circumstances to the collision was that Thompson was driving too fast for the existing conditions.
Hoover’s body was taken to a local hospital where, at the request of Trooper Franklin, a blood sample was drawn from Hoover’s heart. The medical technician who drew the blood testified that he put the blood sample in a vacutainer tube, labeled it, and put tape over the top with his signature on the tape and the glass combined. Officer James Singleton testified that he took the tube from the medical technician and put it in the refrigerator at the Chicot County Jail. Trooper Franklin testified that he took the tube out of the refrigerator and mailed it to the Arkansas Department of Health. Peter Sammartino, a chemist with the Health Department, testified that he received the tube in the mail and ran a blood alcohol test on its contents. His test results showed that the sample had a .11% blood alcohol content. However, Sammartino also testified that he did not recall seeing any tape over the top of the tube and that “I don’t recall specifically, but I’m pretty sure it wasn’t there, because we would have saved it.”
Ark. Stat. Ann. § 81-1305 (Repl. 1976) provides in pertinent part that “there shall be no liability for compensation under [the Workers’ Compensation Act] where the injury or death from injury was substantially occasioned by intoxication of the injured employee. ... .” At the hearing before the Administrative Law Judge, the appellant offered in evidence the results of the blood alcohol test which purported to establish that at the time of the accident, David Hoover had an alcohol blood level of. 11%, which, under the statute in effect at the time of the accident, was .01% over the percentage of alcohol that was presumed to show intoxication. Ark. Stat. Arm. § 75-1031.1(A)(3) (Repl. 1979) (amended 1983). The Administrative Law Judge found that Hoover was intoxicated based on the results of the blood alcohol test, but he awarded benefits because he found that Hoover’s intoxication did not “substantially occasion” his death.
The Workers’ Compensation Commission agreed with the Administrative Law Judge’s award of benefits but disagreed with his finding that Hoover was intoxicated. The Commission stated that the unexplained absence of the sealing tape with the technician’s signature raised “serious questions regarding the accuracy, reliability, and authenticity of the blood alcohol test” and so “the results should not have been admitted into evidence or should be accorded little weight. ’ ’ The Commission went on to affirm and adopt the Administrative Law Judge’s finding that the appellants failed to prove by a preponderance of the evidence that Hoover’s injury and death were substantially occasioned by intoxication.
On appeal, appellant’s first argument is that the Commission erred in finding that the blood alcohol test results should not have been admitted into evidence or should be accorded little weight. Appellant cites St. Paul Insurance Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980), where the Arkansas Supreme Court held that the Commission correctly admitted a similar blood test into evidence. In that case, the Arkansas Court of Appeals reversed the Commission, finding that the test was inadmissible because there had been no affirmative showing of strict compliance with Department of Health regulations for taking blood alcohol tests. The Supreme Court, in reversing the Court of Appeals, pointed out that “the Commission is not bound by technical rules of evidence or procedure, but may ‘conduct the hearing in a manner as will best ascertain the rights of the parties.’ ” Id. at 449 [citing Ark. Stat. Ann. § 81-1327 (Repl. 1976)]. The court held that the Commission had superior expertise in weighing the testimony and should be left to determine the probative value of proof that might not be admissible in a court of law. In the case at bar, the appellant argues that the Commission should have allowed the blood test into evidence because of its probative value and because the Commission is not bound by technical rules of evidence.
Although the court allowed the blood test into evidence in the Touzin case, it did so on the underlying premise that the Commission has discretion to determine admissibility of evidence in a manner that best ascertains the rights of the parties. In Touzin, the Commission allowed the test into evidence but it also received testimony that the claimant had smelled of alcohol and had several empty beer cans with him at the time of his death. In the instant case, the Commission received no other testimony which might lead to the conclusion that Hoover was intoxicated when he had the accident. More importantly,. there was evidence that the only item tending to show Hoover’s intoxication had been tampered with. There was substantial evidence to support the conclusion of the Commission that the blood test was not reliable evidence.
The Commission has broad discretion with reference to admission of evidence and we will not reverse absent a showing of abuse of that discretion. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). Here, we find no abuse of the Commission’s discretion. We believe that the Commission correctly excluded or limited the value of the blood alcohol test.
Appellant’s second argument is that the Commission did not address the issue of whether Hoover’s death was substantially occasioned by intoxication except in dictim; therefore, this court should remand for the Commission to consider this issue. We disagree. The Commission stated in its opinion: “[W]e affirm and adopt the Administrative Law Judge’s opinion insofar as it holds that respondents have failed to prove by a preponderance of the evidence that claimant’s injury was substantially occasioned by intoxication.” Clearly, the Commission made a finding that appellant failed to prove that Hoover’s intoxication substantially caused his injury.
Appellant’s final argument is that the Commission’s finding is not supported by substantial evidence. On appeal, we review the evidence in the light most favorable to the findings of the Commission and we give the testimony its strongest probative value in favor of the order of the Commission. Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982). Under this standard, we find that there was substantial evidence to support the Commission’s finding that appellant failed to prove Hoover’s injury was substantially occasioned by intoxication. We repeat that the only evidence of intoxication was the blood alcohol test which was of questionable reliability. Furthermore, there was testimony that Hoover was probably not intoxicated. Two of his acquaintances testified that Hoover was with them during the afternoon and early evening and that he did not smell of alcohol or appear to be under the influence of alcohol. They both testified that they did not see him drink anything. Appellee testified that she had never seen her husband drunk. There was substantial evidence to support the Commission’s conclusion that appellant did not prove that Hoover’s intoxication substantially occasioned his death.
Affirmed.
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John Mauzy Pittman, Judge.
Lynn Nelson Teague appeals from an order of the Arkansas Workers’ Compensation Commission denying him additional benefits, except spousal nursing care. Appellant contends that the Commission’s decision is not supported by substantial evidence and that appellee is estopped from denying benefits. We find no error and affirm.
Appellant sustained a compensable injury in an automobile accident on June 8, 1985. He contends that he is entitled to additional benefits for total loss of vision, dental problems and aggravation of his preexisting diabetes. Appellant also argues that he is entitled to treatment to his eyes and his feet and for a second cervical surgery. He also contends that he is entitled to benefits for spousal nursing care and reimbursement for home modifications.
Appellant was diagnosed with diabetes in 1971 and has been noncompliant with his treatment plan. Dr. Lawson Glover, an endocrinologist, examined appellant in May 1985 and noted complications attributable to his diabetes, such as vision changes and leg numbness. The Commission found that these complications preexisted the June 1985 accident. Dr. Glover opined that as of August 20, 1986, appellant was no longer suffering from diabetic residual effects from the accident, except for his ophthalmological problems. Dr. Thomas Ward agreed with Dr. Glover’s opinion. The Commission found that except for diabetic retinopathies, the medical records did not support the contention that the accident affected appellant’s diabetes or caused diabetic complications after August 1986.
Dr. J.J. Magie, an ophthalmologist, testified that in February 1985, appellant had diabetic retinopathies in both eyes, and that he saw appellant in February 1984 for iritis, an inflammation of the iris typically seen in advanced cases of diabetes. Dr. Magie testified that trauma can cause a progression of retinopathy if the trauma creates extra pressure on the eye. The Commission found that there was insufficient evidence of increased eye pressure from the accident. Finally, Dr. Magie testified that failure to comply with recommended treatment of the diabetes would also aggravate the reti-nopathy. The Commission found that appellant did not follow his treatment plan for diabetes before the accident. The Commission concluded that there was no causal connection between appellant’s retinopathies and vision loss and the accident.
Appellant also contends that his foot problems and ulcerations are due to an aggravation of his diabetes precipitated by the accident. The Commission found that appellant began to experience a loss of sensation in his feet due to peripheral neuropathy prior to the accident and that the earliest indication of foot ulcerations was in September 1988. Dr. Glover stated that residual complications to appellant’s diabetes caused by the accident did not continue beyond August 1986. Appellant also attributed the amputation of his right toe, caused by stepping on a nail in December 1990, to his vision loss which he contended was the result of an aggravation of diabetes precipitated by the accident. The Commission found that no causal connection existed and that a contrary finding would be based on speculation. The Commission cited appellant’s poor control of his diabetes and neglect of foot care prior to the accident.
Appellant underwent cervical surgery in February 1986 which was attributable to his compensable injury. In 1992, appellant had a subsequent cervical, surgery, and Dr. Tom Ward said the surgery was not related to appellant’s compensable injuries. The Commission declined to award benefits for the second surgery, finding that there was no causal connection to the compensable injury. The Commission noted that appellant testified that his three-wheeler had rolled over him at least twenty times. Appellant said that in October 1992 he first developed numbness and tingling in his arms.
Appellant also attributes his dental problems to his compensa-ble injuries. Prior to the accident, appellant had undergone dental procedures for dental extractions. Dr. James Flanagin testified that the trauma from the accident “may” have caused appellant’s dental problems occurring after the accident. The Commission found that appellant failed to prove that his dental problems were caused by or aggravated by the accident.
As to appellant’s hearing loss, Dr. Ward stated that appellant had a preexisting peripheral nerve injury which resulted from appellant’s poor control of his diabetes.
Appellant further sought benefits for modifications to his house and benefits for a four-wheeler, a walker, a page magnifier and a hot tub. The Commission declined to award benefits stating that none of the items were recommended by a physician except for the hot tub and that that recommendation was made after the hot tub was purchased.
The administrative law judge awarded compensation to appellant for his wife’s nursing services at the rate of $6.00 per hour. The Commission reversed and held that the services be paid at minimum wage. The abstract is devoid of any evidence concerning the current rate of pay for nursing services, and we decline to speculate as to the rate of pay. Administrative agencies such as the Workers’ Compensation Commission are better equipped by specialization, insight and experience to analyze and determine such issues. P.A.M. Transportation v. Miller, 24 Ark. App. 163, 750 S.W.2d 417 (1988); Allen Canning Co. v. McReynolds, 5 Ark. App. 78, 632 S.W.2d 450 (1982). Also, in determining a claim, we expect the Commission to utilize expertise, and we do not interfere with the Commission’s actions unless we find that it has acted without or in excess of its authority or that its decision is not supported by substantial evidence. Allen Canning Co., supra. Although appellant requested that the spousal services be reimbursed at $6.00 an hour, the Commission has the right to believe or disbelieve the testimony of the claimant or any other witness, and may accept and translate into findings of fact only that portion of the testimony that it deems worthy of belief. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). Thus, we find no error in the Commission’s decision to award compensation for nursing services at the minimum-wage rate.
Lasdy, appellant argues that appellee should have been estopped from denying benefits because it did not provide him with notice using form A-29. Additionally, appellant asserts, without any supporting authority, that appellee had a duty to advise him of all benefits available to him under the workers’ compensation laws. Appellant raises these arguments for the first time on appeal; thus, we decline to address them. Couch v. First State Bank, 49 Ark. App. 102, 898 S.W.2d 57 (1995). Nevertheless, we note that the administrative law judge found that appellant was provided with the A-29 notice.
When reviewing decisions from the Workers’ Compensation Commission, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision. Couch v. First State Bank, supra. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. If reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id. We also recognize that it is the Commission’s duty to weigh the medical evidence as it does any other evidence, and the resolution of conflicting evidence is a fact question for the Commission. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).
From our review of the record, we cannot conclude that the Commission’s findings and conclusions are not supported by substantial evidence.
Affirmed.
Jennings, C.J., and Stroud, J., agree.
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JOHN B. Robbins, Judge.
This is the second appeal in this action. In Coleman’s Service Center, Inc. v. Southern Inns Management, Inc., 44 Ark. App. 45, 866 S.W.2d 427 (1993), we dismissed the first appeal. This appeal follows the Monroe County Circuit Court’s entry of judgment for appellee Federal Deposit Insurance Corporation (FDIC) against appellant Coleman’s Service Center, Inc., in the amount of $123,135.29 as the result of Coleman’s breach of a lease. For the reasons expressed below, we affirm the circuit judge’s decision.
Royce Lee, J.M. Denton, Jr., Darrell Larker, and James Mc-Gowin decided to build a motel, truck stop, and convenience-store complex near the intersection of U.S. Highway 49 and Interstate 40 in Brinkley, Arkansas. Messrs. Lee, Larker, and McGowin incorporated D’Jer, Inc., for this purpose. D’Jer and Messrs. Lee, Larker, and McGowin borrowed over $4 million from Audubon Federal Savings & Loan Association on May 4, 1984, to finance the project. The note was secured by a deed of trust executed that same date which conveyed to Audubon a hen on two parcels of realty (one contained 15 acres and the other, 1.159 acres) and D’Jer’s leasehold interest dated June 24, 1971, in a contiguous one-acre tract. Also, on that date, D’Jer separately assigned to Audubon all of its interest in the one-acre lease. In October 1984, D’Jer leased the entire project to appellant. Separate leases were executed for the motel, the truck center, and the convenience store. On February 21, 1985, D’Jer assigned its interest in the convenience-store sublease to Audubon as additional security. The 1984 assignment of the 1971 lease and the February 1985 assignment of the sublease were recorded in Monroe County.
The project experienced serious financial difficulties, and no payments were made on the 1984 note. In the summer of 1985, Audubon instituted foreclosure proceedings against D’Jer in Monroe County. Later, rather than pursuing foreclosure, Audubon agreed to restructure the financing on the project and entered into a purchase and sale agreement with Messrs. Lee and Denton, Troy Coleman (appellant’s principal stockholder), Dr. Glen Wegener, and Dr. Herme Plunk. That agreement, dated December 31, 1985, provided that Audubon would provide enough money to permit completion of the project and that the individuals would assume the project indebtedness. This agreement also provided that the transaction was made subject to the terms, liens, and other encumbrances created by the original deed of trust, the 1984 one-acre lease assignment, and the 1985 assignment of the convenience-store lease. Although Mr. Coleman and Dr. Plunk withdrew from the project, the others completed the plan.
D’Jer transferred all interest it had in the project to Audubon on February 19,1986. On March 12, 1986, Audubon conveyed the real and personal property involved in the project to Messrs. Lee and Denton and Dr. Wegener. At the same time, Messrs. Lee and Denton and Dr. Wegener delivered a promissory note in the amount of $5,500,000 to Audubon. This note represented the original principal plus accrued and unpaid interest. Messrs. Lee and Denton and Dr. Wegener, and their spouses, executed to Audubon a mortgage on the 15-acre and 1.159-acre parcels. The next day, these individuals conveyed the property to Hercoleed, Inc., an Arkansas corporation formed by Messrs. Lee and Denton and Dr. Wegener. On June 19, 1986, another promissory note in the amount of $100,000 was executed by Messrs. Lee and Denton and Dr. Wegener to Audubon in consideration for additional funds. On June 20, 1986, the Federal Home Loan Bank Board put Audubon into receivership. The debtors made no payments on the May 4, 1984, or the March 12, 1986, notes. The Federal Savings & Loan Insurance Corporation (FSLIC), Audubon’s receiver, filed a foreclosure proceeding in federal district court on November 18, 1987; that case was ultimately settled. The FDIC succeeded the FSLIC as Audubon’s receiver in 1989.
On June 1, 1989, Hercoleed, through Mr. Lee, and appellant, through Mr. Coleman, entered into a written amendment to the convenience-store lease, which substantially reduced appellant’s obligation for rent. This was apparently done without any approval from, or notice to, Audubon or its receiver, even though all of the rents and profits under the lease had been assigned to Audubon.
In 1989, Marbella & Company of Arkansas, Inc., unsuccessfully tried to purchase the FDIC’s interest in the project. However, in December 1989, Marbella did acquire all of the stock of Hercoleed and D’Jer and, in March 1990, acquired the fee simple interest in the one-acre parcel of land.
In 1990, the FDIC sued in federal district court for foreclosure of the deed of trust. On June 11, 1990, the federal court appointed Southern Inns Management, Inc. (SIMI), as receiver for the property. Appellant was included as a defendant in the federal court foreclosure action. In its third amended complaint, the FDIC included the following allegations against appellant:
27. As part of D’Jer’s original agreement under the construction loan agreement with Audubon on the Quality Inn project, D’Jer was to assign as additional collateral any and all leases which were entered into by D’Jer on the property. On October 3, 1984 D’Jer and defendant Coleman Service Centers, Inc. entered into, inter alia, two (2) leases, one covering the convenience store facility on the subject property, and another conveying the truck repair facility on the subject property. Both leases were filed of record on November 5, 1984, and subsequently assigned to Audubon on February 21, 1985, with said assignments being filed on March 28, 1985 in the real estate records of Monroe County, Arkansas. Copies of said leases, with attached Assignments, are attached hereto as Exhibits “H” and “I”, and made a part hereof. A portion of the property conveyed under the lease and assignment attached as Exhibit I, is also conveyed under the June 24, 1971 lease, and therefore is actually a sublease from D’Jer to Coleman Service Center, Inc.
28. During the later part of 1985, the parties to the transaction realized the project was not going to survive under its existing structure, and the parties agreed to restructure the project, with Audubon providing additional funds. First, D’Jer agreed to convey all of its right, tide and interest in and to the real property, personal property, and leasehold to Audubon, subject to the June 13, 1984 Deed of Trust and assignments of February 21, 1985 and June 13, 1984, with Audubon agreeing to reconvey the said property to a new ownership group, while maintaining its Hen priority on the real property and leasehold, by not terminating or releasing the June 13, 1984 Deed of Trust, and assignment of leasehold, or the February 21, 1985 assignments. Further, the lien created by the Assignment of Leasehold pursuant to Exhibit “G,” was also preserved by a subsequent complete Assignment of Lease dated February 19, 1985, and filed of record in the Monroe County real estate records on July 28, 1986, a copy of said assignment is attached hereto as Exhibit “J”, and made a part hereof. The clear intention of all parties was to maintain the June 13, 1984 lien priority on the real property, personal property, and leasehold to secure the $5,500,000 and $100,000 notes of March 12, 1986 and June 19, 1986 (referred to in paragraphs 5 and 10 hereinabove).
29. The March 13, 1986 conveyance from D’Jer to Audubon, was by Warranty Deed, with the specific exception that the transfer was made “subject to” the Deed of Trust in favor of Audubon which had been filed in Mortgage Record Book 107, Page 278 of the records of Monroe County, Arkansas. A copy of said deed is attached hereto as Exhibit “K”, and made a party hereof.
30. In the alternative, as admitted on several occasions throughout the deposition of Troy Coleman, principal owner of Defendant, Coleman’s Service Center, Inc., Plaintiff’s decision to restructure the financing on the Quality Inn Project, in lieu of foreclosure, was made in reliance on representations and warranties made by Defendant’s Royce Lee and Coleman’s Service Center, Inc., through it’s [sic] agent Troy Coleman, that the convenience store lease attached hereto as an exhibit to Exhibit “I” to the Complaint, was in full force and affect [sic], and that no modifications or amendments had been made thereto. As provided in the March 12, 1986 mortgage attached hereto as Exhibit “B”, Plaintiff retained its lien on the leasehold including rents and profits, and a complete and full assignment of any and all interest of the lessor in and to the unmodified lease. As a result of said pledge of rents and profits, and the full and complete assignment of the leasehold, and the full knowledge of Defendant Coleman’s Service Center, Inc. of said pledge and assignment, there is privity of contract between the Plaintiff and the Defendant Lessee, Coleman’s Service Center, Inc., and, Plaintiff is a third party beneficiary of the convenience store lease which is the subject of this dispute.
31. Notwithstanding said representations and warranties of the Defendant’s Coleman’s Service Center, Inc. and Royce Lee, and Coleman’s full knowledge of the pledge and assignment, without any notice whatsoever to Plaintiff, some time after Plaintiff’s mortgage was filed on March 13, 1986, Defendants Coleman’s Service Center, Inc. and Hercoleed, Inc. (successor in interest of D’Jer as Lessor), by and through their duly appointed agents and representatives, Troy Coleman and Royce Lee, unilaterally entered into an agreement attempting to modify and amend the convenience store lease. A copy of said agreement dated June 1, 1989, is attached hereto as Exhibit “L”, and made a part hereof (the “Amendment to Lease”). At the time of said unilateral modification, Hercoleed, Inc. was in default under the terms of the restructured financing on the project. Said amendment is void ab initio, and without any force or affect [sic] whatsoever.
32. The Amendment To Lease resulted in a substantial reduction in rent, and therefore collateral, and has no economic basis in fact, and is a mere subterfuge between business associates and personal friends, while Defendant Hercoleed, Inc., nor its individual stockholders and Defendants, Royce Lee, Jack Denton, and Glenn Wegener, ever made even one payment under the restructured financing.
33. Notwithstanding the fact that the Amendment To Lease is obviously dated after Plaintiff’s Mortgage of March 12, 1986, and therefore subject to foreclosure under Plaintiff’s Mortgage of March 12, 1986, the Amendment To Lease was a material deviation from the original lease; and as a result of Defendant’s knowledge of the pledge and assignment, Plaintiff was entitled to notice of any amendments thereto, and therefore the Amendment To Lease is not binding on the Plaintiff and any and all interest of Defendant Coleman’s Service Center, Inc. in and to the convience [sic] store lease, and any amendments thereto, is subject to Plaintiff’s mortgage attached hereto as Exhibit “B”, and should be foreclosed, terminated and forever barred as a claim against the subject property. As a result of Defendant Coleman’s failure to properly pay in accordance with the terms of the original lease, Defendant Coleman’s Service Center, Inc. is in default under the terms of the original lease, and therefore should be ejected from the premises and the subject lease and any amendments thereto should be foreclosed, terminated and barred forever as a claim against the subject property.
34. In the alternative, if the Court finds that the convenience store lease is not subject to foreclosure and termination, and that Defendant Coleman’s Service Center, Inc., is not in default, but that the original lease should control, Defendant Coleman’s Service Center, Inc. should be required to account to Plaintiff for any and all rentals not paid as provided under the original convenience store lease, and a judgment in favor of Plaintiff should be entered for said sum.
While the federal action was pending, FDIC and SIMI filed this action for unlawful detainer against appellant in the Monroe County Circuit Court, seeking possession of the property and treble damages for appellant’s breach of the lease. On January 30, 1991, appellant objected to the jurisdiction of the circuit court and to the issuance of a writ of possession. Appellant argued that the filing of this action in circuit court would cause a multiplicity of actions involving the same issues.
On February 8, 1991, Federal Judge Elsijane Roy entered an order granting the FDIC’s motion for partial dismissal of paragraphs 33 and 34 of its third amended complaint. Judge Roy stated: “IT IS, HEREBY, ORDERED, DECREED, and ADJUDGED, after due consideration of the matters and Motion before the Court, that Plaintiff’s claim as set out in paragraphs 33 and 34 of its Third Amended Complaint concerning the default and breach of the Coleman Service Center, Inc., lease is hereby dismissed without prejudice.” On February 11, 1991, in response to appellant’s objection, appellees filed a copy of Judge Roy’s order with the circuit court and argued that, as a result of the federal court’s partial dismissal, the circuit court had jurisdiction of this action.
A hearing was set for 9:00 a.m. on February 12, 1991, in circuit court. Appellant’s counsel, however, was mistaken as to the time of the hearing and failed to appear. On February 13, 1991, the circuit judge held that appellees had presented prima facie evidence that they were entitled to judgment against appellant in the amount of $143,240.90 and entered a “judgment” directing the clerk of the court to issue appellees a writ of possession.
That same day, appellant filed a motion to set aside the judgment, arguing that its attorney had missed the hearing due to a misunderstanding. It also argued that the order of partial dismissal by the federal district court had been entered ex parte without the knowledge of appellant’s counsel. Appellant also filed its answer on February 13, 1991, wherein it stated that the lease had been orally amended in 1986 to provide that, in order to stimulate business, the lessor would bear one-half the cost of certain expenses and that, in 1989, the amendment was memorialized in a written document. Appellant denied that it was in arrears and asserted that it had simply paid rent according to the amended lease.
Appellant also filed a motion for stay of the writ of possession and requested that it be allowed to post a bond pending trial. On February 20, 1991, appellant filed a bond for $150,000.00. On February 22, 1991, the circuit court entered an order finding that the proposed bond was not filed within the five-day period required by Ark. Code Ann. § 18-60-307(e) and that it did not otherwise comply with that statute. In this order, the circuit judge directed the sheriff of Monroe County to complete appellant’s eviction from the premises.
On March 22, 1991, appellant filed a counterclaim against appellees and a third-party complaint against Don Dedman.
On October 28, 1991, the federal judge issued a memorandum opinion determining the rights of the parties in the one-acre tract and the lease agreement with respect to the convenience-store portion of the project. (It was undisputed that the FDIC was entitled to a judgment of foreclosure on the 15-ácre and 1.159-acre tracts.) Judge Roy made the following findings in her memorandum opinion:
The Court’s task here is made more difficult by the number of transactions and the lack of precision in the drafting of the accompanying documents. The Court finds that in balancing the equities of this web of transactions the scales tip considerably in favor of plaintiff. From all that has been presented, the Court finds that it was the intent of the parties to these transactions that plaintiff maintain its superior position with respect to its liens on the subject property. Although somewhat dated, and from a case involving different facts, the Court finds the following language of the Arkansas Supreme Court persuasive herein:
[I]n the absence of an agreement, or a plain manifestation of a contrary intention, the security of the original mortgage follows the note or renewal thereof. In other words, instead of there being a presumption of payment or setdement of the original indebtedness by the execution of the renewal note, and thereby a release of the security, the presumption is that, upon the execution of the new note or bond, the same security is available for its payment.
Simpson v. Little Rock—North Heights Water Dist. No. 18, 191 Ark. 451, 86 S.W.2d 423, 425 (1935), citing Oliphint v. Eckerley, 36 Ark. 69 (1880).
The Court finds that plaintiff’s rights in the one acre tract are prior and paramount to that of Marbella, and that Marbella acquired this property subject to plaintiff’s interests. Likewise, plaintiff’s rights in the lease on the convenience store are prior and paramount to that of Coleman’s. Plaintiff is entitled to Judgment of Foreclosure on its interests in both of these properties.
On January 24, 1992, Judge Roy issued a supplemental opinion to reflect that Marbella’s unsuccessful efforts to purchase the interest of the FDIC in the subject properties terminated in March 1990; that Marbella acquired the fee simple interest in the one-acre parcel in a series of transactions between December 20 and 28, 1989; and that Marbella acquired by quitclaim deed the leasehold interest of Messrs. Lee and Denton and Dr. Wegener in the one-acre tract on March 30, 1990.
In the supplemental opinion, Judge Roy stated:
Finally, in its Motion for Clarification, Marbella asks the Court to clarify its holding concerning the interest and rights of the FDIC in and to the one-acre tract. Upon reflection, the Court should have set out its findings and conclusions with greater precision and specificity. It was not the Court’s intention to place plaintiff in a greater position than it otherwise occupied by virtue of its interest in certain leases on this property and any mortgages thereon. However, the Court did intend to put plaintiff in the position it would have occupied had all of its rights been honored. The following shall constitute the supplemental findings and conclusions of the Court and shall have same force and effect as the terms of the original Opinion.
By assignment from D’Jer, Inc., plaintiff acquired an interest in the lease on the one-acre tract between Fred McDonald, special administrator of the Estate of Julian Leland Rutherford, deceased, and Baldwin Petroleum Company, Inc. dated June 24, 1971, which ran until July 6, 1991. As assignor, plaintiff had the right pursuant to paragraph 11 to renew or extend the lease for a period of five years. In addition, paragraph 18 provides that “[i]n the event the grantor desires to sell the above described real property during the initial and extended term of this agreement the grantee shall have the first option to purchase said property for the highest bona fide purchase price offer ...” Rather than offer the property to plaintiff, the owners sold it to Marbella in December of 1989, clearly within the initial term of the lease.
Upon consideration of all the pleadings and evidence presented, the Court finds that plaintiff was wrongfully denied its first option to purchase the property under the lease. After plaintiff has tendered the 1989 sale amount, plus interest at ten percent per annum, to Marbella, within three business days thereafter Marbella shall convey its interest in the one-acre tract to plaintiff.
On March 25, 1992, Judge Roy issued a judgment of foreclosure and held that all interest claimed by appellant, whether pursuant to the lease, amendment to lease, or otherwise, is subject and subordinate to the interest of the FDIC and thereby subject to foreclosure. Judge Roy specifically adopted her findings in the October 28, 1991, memorandum opinion and stated: “[T]he June 1, 1989, Amendment To Lease was procured and entered into without any approval from, or notice to, Audubon or its receiver, the FDIC, formerly the FSLIC, in spite of the assignment and pledge to Audubon of all rents and profits under the Lease.” In this judgment, Judge Roy decreed that its filing in the real estate records of Monroe County would constitute a complete and absolute conveyance to the FDIC of all of Marbella’s interest in the one-acre parcel. She also directed Marbella to execute and deliver a special warranty deed to the FDIC and to negotiate a check in the amount of $89,306.85 which was tendered pursuant to court order. She held that all of the FDIC’s rights in the one-acre parcel were thereby vested absolute and paramount to Marbella.
Appellant appealed Judge Roy’s decision to the Eighth Circuit Court of Appeals and argued three points:
(1) Audubon had notice of and gave approval to the amendment of the lease agreement entered into by Coleman and Lee, (2) the court did not possess jurisdiction to decide the issue of whether Coleman breached the lease agreement because the court has previously dismissed that issue, (3) the district court erred in determining that the sublease was subordinate and subject to foreclosure by the FDIC because Audubon’s rights under the 1984 deed were destroyed when it restructured the loan in 1986.
Federal Deposit Insurance Corporation v. Lee, 988 F.2d 838, 841 (8th Cir. 1993). Apparendy, appellant did not argue that Judge Roy had erred in dismissing paragraphs 33 and 34 of the third amended complaint. Appellant did argue that, by dismissing paragraphs 33 and 34, the district court could not make any findings as to whether the lease was breached. The Eighth Circuit Court of Appeals disagreed:
Coleman argues, however, that the district court’s finding on the issue of notice and approval is also legally erroneous. Coleman contends that the ruling is legally erroneous because the court, on February 8, 1991, dismissed portions of paragraphs 33 and 34 of plaintiff’s third amended complaint that dealt with the default and breach of the lease. This dismissal, Coleman asserts, precluded any findings the court could make at the foreclosure proceedings with regard to whether the lease was breached. Therefore, Coleman contends, because the issue of notice and approval relates to the issue of whether the lease was breached, the trial court lacked jurisdiction to decide the issue.
We acknowledge that the trial court dismissed certain portions of the complaint which addressed whether there was default and breach under the lease. However, we also note that portions of the complaint that the trial court did not dismiss presents the issue of whether the lease was amended without notice to or the approval of Audubon or its receiver. Specifically, paragraph 31 states that “without any notice whatsoever to Plaintiff” the defendants Coleman and Hercoleed “unilaterally entered into an agreement attempting to modify and amend the convenience store lease.” That paragraph further alleges that at the time of this attempted modification, Hercoleed was in default “under the terms of the restructured financing on the project.” Plaintiff then alleges that the amendment is void ab initio. As this paragraph was not dismissed, the issue of notice and approval was properly before the court. Accordingly, the trial court had jurisdiction to decide the issues.
988 F.2d at 842.
On January 23, 1992, the circuit court dismissed appellant’s counterclaim and third-party complaint based upon lack of subject-matter jurisdiction under Ark. R. Civ. P. 12(b)(1). The circuit court entered an order under Rule 54(b) of the Rules of Civil Procedure on February 7, 1992, and held that it would be highly prejudicial for appellees to proceed to trial and obtain judgment against appellant without appellant first having a final adjudication of its right to assert its counterclaim and third-party complaint.
Appellant then filed a notice of appeal, reciting that it appealed from “all orders and judgments entered herein.” On appeal to this Court, however, appellant failed to challenge the dismissal of its counterclaim and third-party complaint. Instead, it argued the following four points: (1) this court had no jurisdiction of the subject matter because the dismissal of the issues relating to the D’Jer-Coleman lease from the federal case did not permit refiling of these issues in a state court; (2) the trial court erred in refusing to set aside the “judgment” rendered in favor of appellees against appellant at the hearing; (3) the restructuring of the original indebtedness to FDIC by Audubon was a novation; and (4) the order of the court finding that the supersedeas bond proffered by appellant was not timely filed and did not otherwise comply with the statute was clearly erroneous.
In our opinion, we noted that appellant had argued issues that were totally unrelated to the interlocutory order from which it had been given permission to appeal:
The issues Coleman’s raises, however, are totally unrelated to the interlocutory order that it has been permitted to appeal. All of the issues raised relate to the primary cause of action, the suit for unlawful detainer, which is still pending in the circuit court. In the language of Rule 54(b) no “final judgment as to” this “claim” has been entered by the trial judge. Our view is that when the trial court permits an interlocutory appeal under Rule 54(b) the issues raised must be reasonably related to the order or orders appealed from. A Rule 54(b) order may not be used as a vehicle to bring up for review matters which are still pending before the trial court.
Because there is no contention that the trial court erred in dismissing the appellant’s counterclaim and third-party complaint, the decision of the trial court is affirmed.
44 Ark. App. at 49.
The Arkansas Supreme Court granted appellant’s petition for review in part and stated: “The result of the case is corrected and modified to the extent that it is dismissed rather than affirmed.” Coleman’s Serv. Center, Inc. v. Southern Inns Management, Inc., 93-1285, slip. op. (Ark. January 10, 1994).
Upon remand, the circuit court granted the FDIC’s motion in limine to prevent appellant from introducing evidence respecting the purported amended lease as a defense to the FDIC’s claims because Judge Roy had found that the amendment to the lease was done without any approval from, or notice to, FDIC or its receiver. The FDIC’s claim for damages resulting from appellant’s failure to pay rent according to the original sublease was tried to the circuit court on October 28, 1994. On January 11, 1995, the circuit judge held that the FDIC was entitled to damages against appellant in the amount of $123,135.29. He denied the FDIC’s request for treble damages.
On appeal, appellant raises four points: (1) the circuit court erred in holding that it had subject-matter jurisdiction because the dismissal of the issues relating to the D’Jer-Coleman lease from the federal case did not permit refiling in state court; (2) the circuit court erred in refusing to set aside the “judgment” rendered against appellant pursuant to the 1991 hearing; (3) the circuit court erred in finding that the supersedeas bond proffered by appellant did not comply with the applicable statute; and (4) the circuit court erred in refusing to admit evidence of appellant’s unjust-enrichment defense.
In its first point on appeal, appellant contends that appellees should have brought all of their claims for relief in one action against appellant. It argues that the FDIC improperly split its cause of action by pursuing the unlawful-detainer action in addition to the original federal foreclosure action. However, we conclude that this case falls within an exception to the general rule against splitting a cause of action: because Judge Roy specifically, stated that she dismissed paragraphs 33 and 34 of the FDIC’s third amended complaint “without prejudice,” the FDIC could file this unlawful-detainer action and obtain a judgment for rent arrearages in circuit court.
Under the claim-preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Magness v. Commerce Bank, 42 Ark. App. 72, 78, 853 S.W.2d 890 (1993). Res judicata bars not only the relitigation of claims which were actually litigated in the first suit but also those which could have been litigated. Id. Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Magness v. Commerce Bank, 42 Ark. App. at 78; Swofford v. Stafford, 295 Ark. 433, 435, 748 S.W.2d 660 (1988). The cases dealing with this issue do not draw a distinct line beyond which the principle of res judicata invariably applies and where it does not; the very nature of litigation makes that impossible. Golden Host Westchase, Inc. v. First Serv. Corp., 29 Ark. App. 107, 119, 778 S.W.2d 633 (1989). The doctrine of res judicata applies only when the party against whom the earlier decision is being asserted had a fair and full opportunity to litigate the issue in question. Cater v. Cater, 311 Ark. 627, 632, 846 S.W.2d 173 (1993).
The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by parties in the first suit. John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 635-36, 855 S.W.2d 941 (1993); Arkansas Dep’t of Human Servs. v. Dearman, 40 Ark. App. 63, 66, 842 S.W.2d 449 (1992). When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. at 636. Collateral estoppel is based upon the policy of limiting litigation to one fair trial on an issue and is applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Arkansas Dep’t of Human Servs. v. Dearman, 40 Ark. App. at 66. For collateral estoppel to apply, the following elements must be met: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 581, 864 S.W.2d 244 (1993). In Finch v. Neal, 316 Ark. 530, 538, 873 S.W.2d 519 (1994), the supreme court stated that the test in determining whether res judi-cata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein.
In Carter v. Owens-Illinois, Inc., 261 Ark. 728, 729, 551 S.W.2d 209 (1977), the supreme court stated that identical cases between the same parties can be pending in a federal district court and a state court at the same time. In such a situation, the first forum to dispose of the case by trial enters a judgment that is binding on the parties. Id. at 729-30. See also Country Pride Foods, Ltd. v. Medina & Medina, 279 Ark. 75, 78, 648 S.W.2d 485 (1983).
It should be noted that an unlawful-detainer action is quite limited in scope. Arkansas Code Annotated § 18-60-308 (1987) provides: “In trials under the provisions of this subchapter, the tide to the premises in question shall not be adjudicated upon or given in evidence, except to show the right to the possession and the extent thereof.” See also Cortiania v. Franco, 212 Ark. 930, 934, 208 S.W.2d 436 (1948); Williams v. Prioleau, 123 Ark. 156, 161, 184 S.W. 847 (1916). Additionally, Ark. Code Ann. § 18-60-312(a) (1987) provides: “Neither the judgment to be rendered by the court in matters brought pursuant to the provisions of this subchapter nor anything in this subchapter shall bar or preclude the party injured from bringing any cause of action for trespass or ejectment, or any other action, against the offending party.” A final judgment was first rendered, however, in the federal court action. Our focus, therefore, must be upon the res judicata effect of that judgment on this action.
A person having only a single cause of action is usually not permitted to split up the cause of action and maintain more than one suit for different parts of the action; if this rule is violated, it is held that the adjudication reached on the first action is, under the doctrine of res judicata, a bar to the maintenance of the second suit. 1 Am. Jur. 2d Actions § 110 (1994). In Eiermann v. Beck, 221 Ark. 138, 252 S.W.2d 388 (1952), it was held that a plaintiff-buyer who had obtained rescission of a contract to purchase a restaurant plus consequential damages could not later sue for other damages resulting from the defendant-seller’s fraud. The court stated:
Our cases do not draw a distinct line beyond which res judicata invariably applies and within which it does not. The very nature of litigation makes that impossible. The rule, however, seems to be that if the forum selected by the plaintiff has jurisdiction of the person and the subject-matter, and the parties in each instance are the same, and if claims that were made or could have been made grew out of the same transaction, then it is the duty of the aggrieved party or parties to include in one action all rights subject to judicial determination at the time suit was brought, thus preventing multiple litigation.
221 Ark. at 141.
In Lisenbey v. Farm Bureau Mutual Insurance Co. of Arkansas, Inc., 245 Ark. 144, 431 S.W.2d 484 (1968), the supreme court held that claims resulting from the loss of personalty and realty in one fire covered by one insurance policy constituted one cause of action:
Needless to say, the rule against the splitting of a single cause of action is intended to keep defendants from being harassed by a multiplicity of suits and to lighten the already overcrowded dockets of the trial courts. In finding the existence of a single cause of action we have placed some emphasis upon the fact that the several claims arise from a single transaction. Eiermann v. Beck, 221 Ark. 138, 252 S.W.2d 388 (1952). In the case at bar we are firmly of the view that the fire created only one cause of action and that the plaintiffs ought not to be permitted to subdivide that cause of action, thereby burdening the defendant and the courts with the waste of time and expense that attends a needless jury trial.
245 Ark. at 146.
In his treatise, Arkansas Civil Practice and Procedure (1993), Justice David Newbern states:
[A] claimant may not split a claim or cause of action by attempting to bring a portion of it in one action and a portion in another. According to the rule of res judicata, the second attempt will be considered merged in the first or barred by it.
The purposes underlying this rule are to protect those against whom split causes of action would be levied from having to defend twice and to protect court dockets from unnecessary burdens.
Id. at § 3-7.
It has been said that, in order to determine whether a second action is for the same cause of action as the first, one should consider the identity of facts essential to their maintenance, and whether the same evidence would sustain both. See Chiotte v. Chiotte, 225 Ark. 101, 102, 279 S.W.2d 296 (1955); Lee v. Westbrook, 208 Ark. 914, 917, 188 S.W.2d 141 (1945). “Whether a factual grouping constitutes a ‘transaction’ for purposes of res judicata is to be determined pragmatically, by considering whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit and whether treatment of the facts as a unit conforms to the parties’ expectations for business understanding or usage.” 46 Am. Jur. 2d Judgments § 533 (1994). “In the context of res judicata, a contract is typically considered to be a ‘transaction’ so that all claims arising from the breach of the contract must be brought in the original action, as well as all defenses.” Id. at § 529.
The Restatement (2d) ofjudgments has adopted a “transactional” approach in determining whether a claim is barred by res judicata:
(1) When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
(2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.
Restatement (2d) ofjudgments § 24 (1982).
In Section 25, the Restatement (2d) ofjudgments provides exemplifications of the general rule concerning splitting:
The rule of § 24 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action
(1) To present evidence or grounds or theories of the case not presented in the first action, or
(2) To seek remedies or forms of relief not demanded in the first action.
This section is explained in comment e:
State and federal theories or grounds. A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should be held not precluded.
The doctrine of res judicata, however, does not bar a subsequent action where, in an earlier action, a court has made an express reservation of right as to future litigation or where a party was actually prohibited from asserting a claim. Cater v. Cater, 311 Ark. at 632. See also Thornbrough v. Barnhart, 232 Ark. 862, 866, 340 S.W.2d 569 (1960). It has been held that an express reservation of rights as to litigation on a certain item preserves that subject for future adjudication. Miles v. Teague, 251 Ark. 1059, 1061, 476 S.W.2d 245 (1972). See also Kulbeth v. Purdom, 305 Ark. 19, 22, 805 S.W.2d 622 (1991); 50 C.J.S. Judgments § 641 (1947).
Section 26(l)(b) of the Restatement (2d) of Judgments sets forth an exception to the general rule concerning splitting that controls our disposition of this appeal. It provides:
(1) When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
(b) The court in the first action has expressly reserved the plaintiff’s right to maintain the second action....
This subsection is explained in comment b as follows:
Express reservation by the court (Subsection (l)(b)). It may appear in the course of an action that the plaintiff is splitting a claim, but that there are special reasons that justify his doing so, and accordingly that the judgment in the action ought not to have the usual consequences of extinguishing the entire claim; rather the plaintiff should be left with an opportunity to litigate in a second action that part of the claim which he justifiably omitted from the first action. A determination by the court that its judgment is “without prejudice” (or words to that effect) to a second action on the omitted part of the claim, expressed in the judgment itself, or in the findings of fact, conclusions of law, opinion, or similar record, unless reversed or set aside, should ordinarily be given effect in the second action.
Under Section 24 of the Restatement (2d) of Judgments, this unlawful-detainer action would normally be barred under the rule against splitting a cause of action. However, because Judge Roy dismissed paragraphs 33 and 34 of the FDIC’s third amended complaint in federal court against appellant “without prejudice,” we conclude, pursuant to Section 26(1)(b) of the Restatement (2d) of Judgments, that appellees could entertain this action for unlawful detainer in circuit court. We therefore reject appellant’s first point on appeal.
In appellant’s second point on appeal, it argues that the “judgment” that followed the hearing on February 12, 1991, addressed all issues in the case and awarded a monetary judgment to the FDIC. This is not correct. As we noted in the first appeal, aii action for unlawful detainer under Ark. Code Ann. § 18-60-307 (Supp. 1991) is a two-step process. Coleman’s Serv. Center, Inc. v. Southern Inns Management, 44 Ark. App. at 48. The statute contemplates that the right to possession will be preliminarily determined and, if appropriate, a writ of possession will be issued; however, the question of damages will be left for a subsequent hearing. Id. at 48- 49. The statute expressly provides that an order directing the issuance of a writ of possession shall not be a “final adjudication of the parties’ rights in the action.” Id. at 49. See Ark. Code Ann. § 18-60-307(d)(1). We stated: “In the case at bar, the parties are in the middle of the primary lawsuit. While the circuit court has directed the issuance of a writ of possession, its orders clearly contemplate a further hearing on the question of damages. A money judgment has not yet been entered.” 44 Ark. App. at 49. In fact, the February 13, 1991, “judgment” specifically stated that appellees had presented “prima facie evidence” that they were entitled to judgment against appellant.
In any event, we need not address the second and third points on appeal because they are moot. A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Stair v. Phillips, 315 Ark. 429, 435, 867 S.W.2d 453 (1993). See also Martin Farm Enters., Inc. v. Hayes, 320 Ark. 205, 210, 895 S.W.2d 535 (1995). With few exceptions, the appellate court will not address moot issues. Leonards v. E.A. Martin Machinery Co., 321 Ark. 239, 246, 900 S.W.2d 546 (1995); Wright v. Keffer, 319 Ark. 201, 203, 890 S.W.2d 271 (1995); Kinkead v. Union Nat’l Bank, 51 Ark. App. 4, 19, 907 S.W.2d 154 (1995). An exception is made to the mootness doctrine for cases that are capable of repetition yet evading review because the justiciable controversy will necessarily expire or terminate prior to adjudication. Wright v. Keffer, 319 Ark. at 203. This is not one of those cases. Even if we were to hold that the circuit judge erred in refusing to set aside the February 12, 1991, decision or to accept the supersedeas bond, no meaningful relief could be granted. Because of the decisions of the federal district court and the Eighth Circuit Court of Appeals, appellant can not be put back into possession of the property covered by the sublease.
In its fourth point on appeal, appellant argues that the circuit court erred in refusing to admit evidence of appellant’s unjust-enrichment defense. Appellant asserts that it should have been allowed to introduce evidence of its performance pursuant to the amended lease in order to establish its “negative defense” to appel-lees’ claim for back rent. Appellant does not argue that the amended lease is controlling; instead, it argues that evidence of its performance under the amended lease was admissible to prove that the FDIC would be unjustly enriched by receiving judgment for the entire amount of damages due under the original sublease. Appellant, in anticipation of a response by the FDIC that it failed to properly plead the unjust-enrichment defense, argues that this defense did not have to be affirmatively pled. Appellant states that it is not making a claim for affirmative relief, but is merely setting forth its performance under the amended lease as a “negative defense.”
We disagree. Here, appellant has attempted to utilize its unjust-enrichment defense as a set-off against the FDIC’s award for back rent due under the original sublease. Under Ark. R. Civ. P. 8, set-off is an affirmative defense, which must be pled. The abstract contains no indication that appellant pled this set-off.
Appellant also argues that, even if it was required to affirmatively plead unjust enrichment as a defense, the parties impliedly treated it as having been pled. Appellant also asserts that it asked the circuit court to amend the pleadings to conform to the proof. Appellant states in its brief that, at the final hearing, it conceded that the amended lease was void but asked the circuit court to admit evidence of its performance under the amended lease to support its unjust-enrichment defense and cites pages 684-705 of Transcript Volume II. These pages of the transcript, however, are not abstracted by appellant.
Because appellant failed to abstract this part of the transcript, we need not address appellant’s fourth point. Supreme Court Rule 4-2(a)(6) provides that the appellant’s abstract of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the court for decision. Rule 4-2(b)(2) provides that, if this court finds the abstract to be flagrantly deficient, the judgment or decree may be affirmed for noncompliance with the rule. See D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 438, 909 S.W.2d 640 (1995); Chrysler Credit Corp. v. Scanlon, 319 Ark. 758, 761, 894 S.W.2d 885 (1995); Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 142, 875 S.W.2d 851 (1994). In Hunter v. Williams, 308 Ark. 276, 277, 823 S.W.2d 894 (1992), the supreme court stated that it had pointed out repeatedly, “for a hundred years ... that there being only one transcript it is impractical for all members of the court to examine it....”
Even if we were to address this argument, however, we would affirm. To find unjust enrichment, a party must have received something of value, to which he was not entitled and which he must restore. Dews v. Halliburton Indus., Inc., 288 Ark. 532, 536, 708 S.W.2d 67 (1986). The basis for recovery under this theory is the benefit that the party has received, and it is restitutionary in nature. Id. at 536-37. The doctrine of unjust enrichment had its origins in the action for money had and received, which was based upon the theory that there was an implied promise to pay. Frigillana v. Frigillana, 266 Ark. 296, 307, 584 S.W.2d 30 (1979).
One who is free from fault cannot be held to be unjusdy enriched, however, merely because one has chosen to exercise a legal or contractual right. Guaranty Nat’l Ins. Co. v. Denver Roller, Inc., 313 Ark. 128, 138, 854 S.W.2d 312 (1993). One is not unjustly enriched by receipt of that to which he is legally entitled. Smith v. Whitener, 42 Ark. App. 225, 228, 856 S.W.2d 328 (1993). It is generally held that, where there is an express contract, the law will not imply a quasi- or constructive contract. Lowell Perkins Agency, Inc. v. Jacobs, 250 Ark. 952, 959, 469 S.W.2d 89 (1971); Friends of Children, Inc. v. Marcus, 46 Ark. App. 57, 61, 876 S.W.2d 603 (1994). It has been held that the quasi-contractual principle of unjust enrichment does not apply to an agreement deliberately entered into by the parties. Lowell Perkins Agency, Inc. v. Jacobs, 250 Ark. at 959. “[T]he law never accommodates a party with an implied contract when he has made a specific one on the same subject matter.” Id. In Moeller v. Theis Realty, Inc., 13 Ark. App. 266, 268-69, 683 S.W.2d 239 (1985), we stated that the concept of unjust enrichment has no application when an express written contract exists.
Affirmed.
Rogers and Griffen, JJ., agree.
The trial court dismissed those portions of the paragraphs because the issues of default and breach related to an Unlawful Detainer suit that was pending in state court in Monroe County, Arkansas. | [
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John Mauzy Pittman, Judge.
This appeal arises from a will contest brought by appellant. The probate court found that appellant did not have standing to contest the will of Charles Nelson Spicer, appellant’s grandfather, because he was not an “interested person” as defined in Ark. Code Ann. § 28-1-102 (1987). On appeal, appellant argues that the probate court’s decision is clearly erroneous because he has a legal interest in the estate. We agree and reverse and remand.
Charles Nelson Spicer left a holographic will, holographic codicil, and typewritten codicil. Charles Spicer bequeathed to his surviving son, Don Charles Spicer, his personal residence and to his surviving daughter, Donna Sue Spicer Meredith, properties of equal value. The will also created a trust for the benefit of Charles Spicer’s grandchildren. Appellant was listed as one of four grandchildren entitled to one-eighth of the distribution of the trust, and three other grandchildren were also listed and entided to one-sixth of the distribution of the estate. Appellant was to receive $750 per month. Charles Spicer’s first codicil amended his will to create out of his properties a memorial foundation in the memory of his parents. In his second codicil, Charles Spicer added his daughter, Sue Meredith, as a beneficiary of the trust. This change reduced appellant’s share in the trust to $600 per month.
The issue before us is whether appellant is an “interested person” as defined at Ark. Code Ann. § 28-l-102(a)(ll) (1987), thus having standing to contest Charles Spicer’s will. Arkansas Code Annotated § 28-l-102(a)(ll) defines “interested persons” as “any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary.” An interested person may contest the probate of a will, or any part thereof, by stating in writing the grounds of his objection and filing them in the court. Ark. Code Ann. § 28-40-113(a) (1987). The probate court reasoned that appellant had no standing to contest the will because he would not take as an heir if no will existed. However, the court erroneously overlooked the portion of Ark. Code Ann. § 28-l-102(a)(ll) which defines “interested persons” as those having an interest in the estate. The evidence is undisputed that appellant is specifically named in Charles Spicer’s will as a beneficiary of a trust which would have distributed $750 per month to appellant. The second codicil affected appellant’s interest in the trust by reducing his share to $600 per month. The facts that appellant was a beneficiary of the trust and that the second codicil affected his beneficial interest clearly establish that appellant has an interest in the estate of Charles Spicer. Therefore, we reverse the probate court’s decision that appellant does not have standing to contest Charles Spicer’s will.
Reversed and remanded.
Stroud and GRIFFEN, JJ., agree.
Robbins, J., concurs.
Mayfield and Neal, JJ., dissent. | [
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JUDITH Rogers, Judge.
The appellant, Glen Curt Reavis, was found guilty by the trial court sitting as the trier of fact of the offenses of simultaneous possession of drugs and firearms and criminal use of a prohibited weapon, for which he was sentenced to a total of fourteen years in prison. At trial, the court also took up the matter of appellant’s motion to suppress evidence. In this appeal, appellant raises two issues challenging the trial court’s denial of the motion to suppress. Because of the pronounced deficiencies in appellant’s abstract, we affirm.
In light of our view of this appeal, we set out only those facts necessary for an understanding of our decision. Wayne Gibson, a patrolman with the Beebe Police Department, testified that he was directed to respond to a disturbance call at a residence on Cypress Street on the evening of March 22, 1995. He was advised that a Carol Reavis had reported that her husband, appellant, was at the home in violation of a restraining order. While en route, he was further advised that the suspect had left the home in a white pickup truck. Officer Gibson testified that he met the vehicle travelling in the opposite direction about three blocks from the house. He said that the truck stopped on the side of the street as he was turning around and that appellant was walking towards him as he exited the patrol car. Gibson said that he conducted a protective search of appellant’s person and found a pair of brass knuckles in appellant’s pocket. Because of this discovery, he arrested appellant and placed him in the back seat of the patrol car. He then called for a wrecker to impound the vehicle.
Officer Gibson testified that it was department policy to impound vehicles upon an arrest when there is no one else at the scene to take responsibility for the vehicle. He also testified that, for the protection of the department, it was their policy to inventory the contents of impounded vehicles to make sure that there are no valuable items or money that might later turn up missing.
Gibson testified that, during the roadside inventory, he found a key box on the floor board. He said that he picked it up to see if there was an extra key to the vehicle and that, when he opened it, he found a small, plastic bag containing a green, leafy substance and two other bags that contained off-white, powdery material. Gibson testified that he also found a pistol wrapped in a towel on the front seat of the vehicle.
In his two issues on appeal, appellant contests the validity of the inventory of his truck. He first contends that the officer used the inventory as a pretext for rummaging through his vehicle. Second, he argues that the inventory was invalid because the police department had no policy concerning the opening of closed containers. From our review of the abstract, we learn that, in his written motion to suppress, appellant argued only that the search was founded upon an unlawful arrest. The abstract also contains an “abstractor’s note,” which states:
Defendant made a Motion for á Directed Verdict and a Motion to Suppress Evidence. The basis of the Motion was that the key holder that was found was not listed on the inventory list, the inventory wasn’t complete, and there was no policy on the inventory list, (emphasis supplied).
It can readily be seen that there is no mention in this abstract of the two arguments raised in appellant’s brief.
The record on appeal is confined to that which is abstracted. Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996). Parties have an affirmative obligation to abstract those portions of the record relevant to the points on appeal. Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996). We do not examine the transcript of a trial to reverse the trial court. Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996). Our supreme court has said that the argument made to the trial court and the trial court’s ruling are “vital” to a review of the ruling by the appellate court. Id.; Moncrief v. State, supra; Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). The abstract in this case does not reflect that appellant raised either of the issues advanced in this appeal at trial. Under our longstanding rules, it was the responsibility of the appellant to provide an abstract such that this court could determine the arguments made without resort to an examination of the record.
When an abstract is deficient, the lower court’s judgment must be affirmed. Owens v. State, 325 Ark. 93, 924 S.W.2d 459 (1996). Accordingly, the judgment of conviction is affirmed, and we express no opinion, one way or the other, on the merits of the issues argued in this appeal.
Pittman and Robbins, JJ., agree.
Neal, Stroud, and Griffen, JJ., dissent.
Appellant had also been charged with the offenses of possession of a controlled substance (methamphetamine) with intent to deliver and possession of a controlled substance (marijuana), but those charges were dismissed on motion of the prosecution. | [
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Wendell L. Griffen, Judge.
Appellee, an attorney, filed suit to recover an attorney’s fee based on the theories of quasi-contract and unjust enrichment. On cross-motions for summary judgment, the circuit court judge granted the appellee’s motion and awarded the fee. We conclude that the grant of summary judgment was in error; therefore, we reverse and remand.
Joe H. Bell underwent major surgery at Sparks Regional Medical Center, one of the appellants herein. Bell was a beneficiary on his wife’s health-insurance plan, which was self-funded by her employer, Crawford Memorial Hospital, and administered by Health Management Associates (“HMA”). One of the cost-saving features of the health plan called for all surgeries to be performed at Crawford Memorial. HMA refused to pre-certify Bell for admission to Sparks. For reasons unclear in the record, he was admitted anyway and incurred medical expenses totaling $53,983.54. Bell also incurred an additional $2,847.27 in medical expenses at the Holt-Krock Clinic, the other appellant herein. HMA denied payment for both the Sparks and Holt-Krock bills totaling $56,830.81.
Soon after his discharge from the hospital, Bell retained the appellee to represent him in a suit against HMA for the denial of his medical claim. Bell and the appellee eventually signed a one-third contingency-fee agreement. On October 17, 1991, within five weeks of Bell’s discharge from the hospital, the appellee filed a complaint in Bell’s behalf against HMA in federal district court. Over the next few months, Bell’s wife made at least two contacts with Sparks, offering assurances that the bill would be paid by HMA. On March 27, 1992, Bell’s wife informed Sparks that HMA would not pay the outstanding amount, and she suggested that Sparks file a claim with Medicare. On March 30, 1992, Sparks filed a claim with Medicare and received partial payment in the amount of $11,155.00. By accepting this Medicare payment, Sparks evidently waived any action it might otherwise have had against Bell for the balance of the bill.
Just before the trial in federal court, Bell and HMA setded the case for $56,830.81 — the precise amount owing to Sparks and Holt-Krock. When a dispute arose over who should be included as payees on the settlement checks, HMA filed an interpleader action. The district court held that the money in question was properly characterized as “insurance proceeds” and, because Bell had executed viable assignments of any insurance proceeds received to Sparks and Holt-Krock, the entire amount of the setdement should go to them. This characterization of the settlement money as insurance proceeds was also confirmed in a related bankruptcy action , and both the district court and the bankruptcy court were affirmed by the Eighth Circuit Court of Appeals. In an unpublished per curiam opinion, the Eighth Circuit had this to say about attorney’s fees:
In the District Court, counsel took the position that the fee matter was not properly an issue in these cases, and we agree. Our action in these appeals is without prejudice to whatever rights the parties may have with respect to the fee matter. Unless the parties can come to an agreement, these rights will have to be determined in some other appropriate proceeding.
In re Joe Hughes v. Sparks Regional Medical Ctr., et. ah, Nos. 93-4051WA, 93-4055WA, slip op. at 3 (8th Cir. June 28, 1994).
The appellee then filed the action that is the subject of this appeal in the circuit court of Sebastian County. In his complaint, the appellee contended that he was entided to a reasonable attorney’s fee “for securing payment” of his client’s indebtedness to Sparks and Holt-Krock. In its summary judgment decision, the trial court reasoned that the appellants were subject to a quasi-contract because they failed to pursue their own claims against HMA and knowingly accepted the benefits of the appellee’s legal services, which were solely responsible for producing the recovery. Sparks and Holt-Krock were, therefore, held to have been unjusdy enriched and were ordered to pay their pro rata amounts of a $15,225.27 fee to appellee.
The standard of review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. Nat’l Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). The appellate court views all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. Here, none of the material facts are in dispute; however, we cannot say that the appellee was entitled to judgment as a matter of law. Resolving all doubts in favor of the appellants, we are convinced that, to the extent they were enriched by the appellee’s legal services, the enrichment was not unjust.
In the case of consensual contracts, the agreement defines the duty, while in the case of quasi-contracts the duty defines the contract. Road Improvement Dist. No. 7 v. St. Louis-San Francisco Ry. Co., 172 Ark. 368, 288 S.W. 884 (1926) (emphasis in original). The duty which thus forms the foundation of a ^nasi-contractual obligation is frequently based on the doctrine of unjust enrichment. Id. (emphasis in original).
A quasi-contract is not a contract; it is an equitable remedy. We have defined quasi-contracts this way:
Quasi or constructive contracts (commonly referred to as contracts implied in law) are obligations which are imposed or created by law without regard to the assent of the party bound, ‘on the ground that they are dictated by reason and justice, and which are allowed to be enforced by an action ex contractu. They rest solely on a legal fiction and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy, and the obligation arises not from consent, as in the case of true contracts, but from the law or natural equity. Such contracts rest on the equitable principle that a person shall not be allowed to enrich himself unjusdy at the expense of another, and on the principle that whatsoever it is certain that a man ought to do, that the law supposes him to have promised to do.’
Jackson County Grain Coop. v. Newport Wholesale Elec. Inc., 9 Ark. App. 41, 652 S.W.2d 638 (1983) (citing Dunn v. Phoenix Village, Inc., 213 F. Supp 936 (W.D. Ark. 1963). The doctrine of “unjust enrichment,” that a person shall not be allowed to profit or enrich himself inequitably at another’s expense, is not contractual, but is equitable in nature. Klein v. Jones, 980 F.2d 521 (8th Cir. 1992). The appellee reminds us in his brief that unjust enrichment and quasi-contract are equitable remedies founded upon an implied agreement to give reasonable value for services performed, and upon the principle that it would be unjust to allow the party receiving the benefit of such services to accept them without paying for them. See Purser v. Kerr, 21 Ark. App. 233, 730 S.W.2d 917 (1987).
Unjust enrichment is
a general principle underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.
66 Am. Jur. 2d, Restitution and Implied Contracts, § 3 (1973).
The phrase “unjust enrichment” does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so. Id. (1996 Supp. citing Lauriedale Assoc., Ltd. v. Wilson, 7 Cal. App. 4th 1439, 9 Cal. Rptr. 2d 774 (1992). To find unjust enrichment, a party must have received something of value to which he was not entitled and which he should restore. Duckworth v. Poland, 30 Ark. App. 281, 785 S.W.2d 472 (1990). However, there must be some operative act, intent, or situation to make the enrichment unjust and compensable. Id. The courts will imply a promise to pay for services only where they were rendered in such circumstances as authorized the party performing them to entertain a reasonable expectation of their payment by the party beneficiary. Id. One who is free from fault cannot be held to be unjustly enriched merely because he has chosen to exercise a legal or contract right. Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906 (1971).
The facts show that the appellee and his client executed a contingency-fee agreement covering “all amounts recovered.” The agreement also provided that “[a]ll medical expenses and charges of any nature made by doctors in conjunction with the above-mentioned claim are not ‘litigation costs’ and will be paid by client out of his recovery.” The appellee, presumably with his client’s approval, setded the federal lawsuit against HMA for the exact amount of his medical expenses: $56,830.81. This setdement made no allowance for attorney fees. When this amount was subsequendy interpled, the federal judge made no allowance for attorney fees. The U.S. Court of Appeals for the Eighth Circuit mentioned attorney’s fees, but failed to reach the merits of that issue. All told, three federal courts (the bankruptcy court, the district court, and the Eighth Circuit Court of Appeals) agreed that the appellants were simply creditors who deserved to receive frill payment of their debt, given the fact that a setdement was reached for the full amount and that assignments had been executed in the appellants’ favor.
In the instant action, the trial court agreed with the appellee’s unjust-enrichment theory and granted summary judgment, relying, in part, on the appellants’ failure to become involved in the federal litigation. We disagree because several undisputed facts are sufficient to raise the evidentiary posture of this case out of the realm of summary judgment for the appellee. First, the appellants’ failure to become actively involved in the litigation initiated by appellee is understandable. They were told more than once by Bell’s wife that the unpaid bill would be soon resolved. More importandy, their position as a creditor was protected, at least to some extent, by the assignments executed by Bell. In addition, the appellee conceded in his pleadings below that the federal lawsuit was initiated not to benefit the appellants, but to relieve his client of a substantial financial burden. In that sense, the appellee won his case: he succeeded in enabling his client to avoid a large debt. As the subsequent bankruptcy proceeding revealed, the appellee’s client was evidently in no position to pay a $56,000 medical bill out-of-pocket. For purposes of the fee agreement between the attorney and his client, there was no amount “recovered” by the client. As a result of the interpleader action, the settlement money flowed straight to the appellants.
Courts should be hesitant to employ a quasi-contractual theory of recovery where an underlying express contract already exists and fairly distributes the risks among the parties involved. See Moeller v. Theis Realty, Inc., 13 Ark. App. 266, 683 S.W.2d 239 (1985). As with all litigation, there also existed the risk of no recovery at all. Therefore, the appellee here obtained a good result — indeed, the best result — for his client. Because the case was settled, it cannot be said the attorney, who must have been somewhat skilled in negotiations of this kind, was somehow unfairly denied a fee. He simply failed to protect his own interest in obtaining a fee while he was also protecting his client’s interest.
The summary judgment must also fail because any enrichment enjoyed by the appellants was not unjust. As creditors, the appellants were entitled to their recovery and they were not, in some equitable sense or otherwise, bound to restore it. There was no operative act, intent, or situation on the part of the appellants to make the enrichment unjust, and, as just discussed, their failure to act is an unsatisfactory basis for this theory of recovery. Duckworth, supra. The contingency-fee arrangement was executed with Bell, not the appellants; thus, the appellee had no reasonable expectation of payment from the appellants. Id. The appellants cannot be considered at fault for not intervening in the federal lawsuit prior to the interpleader action; in fact, they were well within their legal rights to stand aside while the appellee and his client initiated the suit, even though the appellants stood to gain from it as well. Whitely, supra.
The appellee cites several cases purporting to uphold the application of unjust enrichment and quasi-contract in cases involving subrogation and the common-fund doctrine. Most of these cases are inapposite because they do not rest on the principles of unjust enrichment or quasi-contract at all. The attorney’s fee issues in the subrogation cases turn on the application of an attorney’s lien, which is specifically provided for by statute. See e.g., Hatten v. Little Rock Dodge, 47 Ark. App. 147, 886 S.W.2d 891 (1994); Continental Cos. Co. v. Sharp, 312 Ark. 286, 849 S.W.2d 481 (1993); Daves v. Hartford Accident & Indem. Co., 302 Ark. 242, 788 S.W.2d 733 (1990); Northwestern Nat’l Ins. v. American States Ins., 266 Ark. 432, 585 S.W.2d 925 (1979). As for the common-fund cases, one case never mentions quasi-contract, unjust enrichment, quantum meruit or any other similar theory upon which the attorney’s fees were awarded. Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991). In a second cited common-fund case, although a quantum meruit theory was upheld by the Arkansas Supreme Court to support an award of attorney’s fees, it is clear that the court relied on the unusual nature of common-fund cases to justify the result. Powell v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980). Perhaps most impor-tandy, Powell centered on the question of the proper amount of attorney’s fees, not whether a fee should be paid in the first instance. The court in Powell noted that that case was a class action involving thousands of electric ratepayers and a substantial amount of money, and further that a reduction in the fee could discourage attorneys from accepting these unusual but important cases. 267 Ark. at 488, 592 S.W.2d at 109. The dynamics of the instant case are quite different. We believe the application of rules from common-fund cases stretches the analogy too far.
The Arkansas case most on point to the situation before us is Ford Motor Credit Co. v. Exchange Bank, 251 Ark. 881, 476 S.W.2d 208 (1972). There, the supreme court reversed the application of unjust enrichment to a creditor because the creditor had a legal right to the proceeds of the sale of collateral. Although the appellants here were not secured creditors, the general principle of Ford Motor Credit is no less applicable. Sparks and Holt-Krock had an undeniable legal right to the insurance proceeds in the amount specifically negotiated to pay the debt in full. Apparently, this is why the proceeds were assigned to them.
Finally, our conclusion in this case is in accord with the well-setded American rule that attorney’s fees are not allowed except when expressly provided for by statute. Continental Cas. Co. v. Sharp, supra. The appellee has directed us to no statutory authority to support his fee award and, based on our discussion above, the facts of this case cannot support an award based on a quasi-contractual theory, especially under our standard of review for summary judgment. We need not address the appellants’ other points. We reverse and remand for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Pittman and Robbins, JJ., agree.
In September, 1992, Bell filed a voluntary bankruptcy action. He was represented by the appellee in the bankruptcy proceeding and there contended that the interpled monies belonged to the bankruptcy estate rather than Sparks or Holt-Krock.
We note here that although the appellee sought what is essentially equitable relief in a court oflaw, neither party raised a jurisdictional challenge in the circuit court or on appeal. Nor do we choose to raise it now even though it is within our prerogative to do so. See Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988); Estate of Puddy v. Gillam, 30 Ark. App. 238, 788 S.W.2d 957 (1990) gennings, J., dissenting).
In another case with very similar facts, two attorneys filed suit seeking to recover a fee based on a quantum meruit theory. They represented two police officers who were acquitted of wrongdoing in separate jury trials. The attorneys then sued the city and various city officials claiming that the officers’ acquittals also benefitted the city. An Ohio appellate court rejected their claim, holding that the two police officers were the real beneficiaries of the legal services performed by the attorneys; any benefit flowing to the city was “incidental.” Norton v. City of Galion, 573 N.E.2d 1208 (1989).
While the benefit received by the appellants here may be more than “incidental,” the point of the Norton holding is that, for quantum meruit purposes, the primary beneficiary of an attorney’s work is the client, not some third party who also happens to gain from the outcome. The attorney still must look primarily to his client for his fee. | [
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OLLY NEAL, Judge.
Appellants, Environmental Supply, Inc. (ESI), and Wesley Roberts, a former business partner of appellee David Feltman, appeal a Judgment and Order For Satisfaction of Judgment entered against them in the St. Francis Chancery Court on August 10, 1995. We find no error in the chancellor’s ruling and therefore affirm.
The original judgment that is the subject of this litigation resulted from a foreclosure lawsuit filed by the Arkansas Industrial Development Commission (AIDC) on July 10, 1992, against Planters National Bank, appellant Wesley Roberts, appellee Feltman, and Roberts’s and Feltman’s joint enterprise, D&W Textiles (D & W). The AIDC sought by its complaint to foreclose the $128,000 outstanding balance plus 5% interest remaining on an original $170,000 promissory note and mortgage executed by Feltman and Roberts and filed with the St. Francis County Circuit Clerk in January 1987. The AIDC requested that any judgment in its favor be declared a first and exclusive lien against certain real property located in St. Francis County upon which Feltman and Roberts had executed a mortgage in favor of the AIDC concurrendy with the promissory note, and that a Commissioner be appointed to conduct a sale of the subject property. The complaint asserted that any interest claimed by Planters National Bank based on Deeds of Trust filed in the St. Francis County Circuit Court was subordinate to the AIDC’s mortgage on the subject property.
After receiving notice and filing his separate answer to the AIDC’s complaint, appellee Feltman filed a cross-complaint against Roberts, alleging that Roberts had received all the proceeds from the AIDC loan and converted them to his personal use, to the exclusion of Feltman and D&W The chancellor ruled in favor of the AIDC on its complaint and in favor of Feltman on his cross-complaint by decree entered April 29, 1994. The chancellor also ordered that the subject property be sold at public auction in the event that Planters National Bank, Feltman, Roberts, and D&W failed to discharge the judgment entered against them within ten days from the date of judgment.
On July 28, 1994, after defendants below failed to pay the judgment within the decreed time and proper notification was given, the real estate in question was sold at a Commissioner’s sale for the sum of $50,000, reducing the balance of the judgment by an equal amount. On January 11, 1994, in consideration of the sum of $40,000 posted by appellant Wesley Roberts, the AIDC assigned all its rights in the April 29, 1994, judgment to Roberts.
After learning of the AIDC assignment to Roberts, appellee Feltman filed in the chancery court a Petition for Satisfaction of Judgment, naming Roberts and AIDC as necessary parties. Feltman alleged in his March 13, 1995, petition (which he amended March 16, 1995, and April 13, 1995) that he was entitled to reimbursement from Roberts for $66 that had been taken from his bank account pursuant to an order of garnishment that had been issued in favor of AIDC. Feltman also claimed that the AIDC assignment resulted in the merger of AIDC’s and Roberts’s interests in the judgment and prayed that any judgment against Feltman and D&W be declared extinguished by virtue of the judgment Feltman held against Roberts. The court scheduled a hearing for March 30, 1995, on Feltman’s petition and subsequendy, after learning during the course of the hearing that Roberts had executed an assignment of the judgment in favor of Environmental Supply, Inc., a Tennessee corporation, ordered the proceedings suspended pending notification of ESI. Both assignments were filed and recorded May 31, 1995. At the reconvened hearing on May 18, 1995, all parties appeared by counsel, and the chancellor entered a Judgment and Order for Satisfaction of Judgment in Feltman’s favor by which it awarded Mr. Feltman his attorney fees and a $66 judgment against Roberts, and nullified the April 29, 1994, judgment against Feltman and D&W
On appeal, appellant argues first that the chancellor erred in ordering the judgment ESI held satisfied, “even though the judgment had not been paid.” The gravamen of that argument is that set-off of the judgments was an inappropriate remedy because ESI, who held the judgment at the time the final decree was entered, owed no obligation to appellee Feltman. In deciding appeals from the chancery courts, we review the evidence de novo, only reversing where the chancellor’s findings of fact are clearly erroneous. Clark v. Bank of Bentonville, 308 Ark. 241, 824 S.W.2d 358 (1992).
Here, the chancellor found that the competing or adverse judgments held by Roberts and Feltman were for the same amount and therefore, offset each other. The court’s finding that the Roberts-ESI assignment was ineffective was precatory to that ruling. The chancellor articulated that his ruling did not address the relative rights of Roberts and ESI vis a vis each other, specifically finding that “the validity of the assignment as it affects Mr. Roberts and ESI is not before the court.” The court also found that the assignment was “an attempt to establish a distance between the judgment and Mr. Roberts so that Mr. Feltman would be forced to honor and pay the judgment.” That finding was supported by Roberts’s admission that he was an incorporator of ESI and the fact that Roberts relinquished all his rights in the approximately $100,000 debt in exchange for ESI forgiving his debt which totaled $3,500 or 3.5% of that amount. Also, the court noted, at the hearing on Feltman’s motion that Roberts did not know the exact amount of the debt he owed ESI, and Danny Newland, president of ESI, did not know the exact amount of the judgment ESI received on assignment. Although these facts were sufficient to support the invalidation of the assignment under Ark. Code Ann. § 4-59-204 (a)(1987) as a fraudulent transfer, the court based its decision on the fact that ESI could not acquire any rights greater than those of its assignor. See Ark. Code Ann. § 4-58-101 (1987).
The chancellor was also correct in his ruling that Feltman was entitled to a setoff of his judgment for reimbursement and contribution against Roberts. Ark. Code Ann. § 16-65-603 provides:
(a) Judgments for the recovery of money may be set off against each other, having due regard to the legal and equitable rights of all persons interested in both judgments.
(b) The set off may be ordered upon motion after reasonable notice to the adverse party, where both judgments are in the same court, or in an action by equitable proceedings in the court in which the judgment sought to be annulled by the set off was rendered.
Ark. Code Ann. § 16-65-603 (1987).
Here, the chancellor took adequate steps to ensure that the rights, of all parties interested in the judgment were protected by first ordering a hearing on Feltman’s original petition and secondly by suspending the proceedings until such time as ESI could be notified and appear to contest the matter. Both the AIDC judgment against Feltman and the Feltman judgment against Roberts resulted from the same proceeding and Feltman’s petition was an equitable action brought in the same court. Because Feltman’s judgment against Rpberts and the judgment Roberts acquired on assignment from AIDC were rendered in the same court and the chancellor, in all respects, complied with Ark. Code Ann. § 16-65-603, we cannot say the findings of fact upon which the set-off was based were clearly erroneous.
Appellant’s argument that the court erred in finding that Feltman’s judgment against him “automatically” gave Feltman a right to set-off is also without merit. Ark. Code Ann. § 16-65-602 states in relevant part:
(b)(1) Whenever a judgment is satisfied otherwise than upon an execution, it shall be the duty of the party or his attorney within sixty (60) days thereafter, to enter satisfaction in the judgment book. . . .
(2)the court may, on motion and notice, compel an entry of satisfaction to be made.
* * *
(c)(1) If the person receiving satisfaction of any judgment or decree neglects or refuses to acknowledge the satisfaction of the judgment or decree within the time prescribed by subdivision (b)(1) of this section, the party interested may, on notice given to the adverse party or his attorney, apply to the court to have satisfaction entered.
(2) If the court is satisfied that the plaintiff . . . has received full satisfaction of the judgment or decree, an order shall be made directing the clerk to enter satisfaction on the judgment or decree, which shall have the same effect as if it had been acknowledged by the party.
(3) The costs attending the application shall be recovered of the party so refusing, by execution, as in other cases.
Ark. Code Ann. § 16-65-602 (1987).
It appears that, in this case, appellee Feltman petitioned the court under this section to have his judgment satisfied. The court conducted a hearing on the issue, giving appellant Roberts ample opportunity to dispute the proposed satisfaction. Upon the evidence presented, the court made the factual finding pursuant to section (c)(2) above that Feltman was entitled to satisfaction by virtue of his right to a setoff. While Ark. Code Ann. § 16-65-603 makes no provision for satisfaction of judgment, the chancellor used both the terms “setoff” and “satisfaction” in its final decree. The authority not expressly given by § 16-65-603 is provided in § 16-65-602. We will affirm the chancellor’s decision if it is correct for any reason, Pryor v. Raper, 46 Ark. App. 150, 877 S.W.2d 952 (1994). Because it follows from the court’s finding that Feltman was entitled to a complete setoff that he was also entitled to satisfaction of the adverse judgment, we cannot say the chancellor’s finding in this regard was clearly erroneous.
Mr. Robert’s final argument challenges the chancellor’s award of costs, including attorney fees to Feltman. The court was clearly authorized under Ark. Code Ann. § 16-65-602 (c) to award Feltman his costs, but cited no specific statute authorizing the award of an attorney’s fee. Under state law and our prior decisions, an award of attorney’s fees without express statutory authority is improper. See Ark. Dept. Hum. Serv. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995). Attorney’s fees are not “costs” within the meaning of Ark. Code Ann. § 16-65-602(c) and may not be awarded unless specifically provided for by statute. Damaron v. University Estates, 295 Ark. 533, 750 S.W.2d 402 (1982). Therefore, Feltman should have only been awarded the costs he incurred in pursuing his Petition for Satisfaction of Judgment. Accordingly, the chancellor’s decision is modified to reflect that Feltman is awarded $40 as his costs expended in the prosecution of his petition.
Affirmed as modified.
HAYS, S.J., agrees.
Griffen, J., concurs. | [
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JOHN B. Robbins, Judge.
Appellee Lee Goston was convicted by a jury of aggravated robbery and was sentenced to twenty-five years in the Arkansas Department of Correction. Mr. Goston now appeals, arguing that the trial court erred in denying his motion to dismiss for lack of a speedy trial. In addition, Mr. Goston contends that the trial court erred in denying him his constitutional right of confrontation by excluding him from the courtroom throughout his trial. We find no error and affirm.
The evidence shows that the victim, Eugene Lamb, was working at a convenience store on the night of September 30, 1991, when two men entered the store. One of the men picked up two twelve-packs of beer and proceeded to leave the store. When Mr. Lamb tried to stop him, the other man pointed a gun at Mr. Lamb, after which the two men exited the store with the beer. Mr. Lamb later viewed a photographic lineup, and from this lineup identified Mr. Goston as the individual who pointed a gun at him on the evening of the robbery. Based on this information, Mr. Goston was arrested on October 4, 1991.
Mr. Goston’s first argument for reversal is that he was denied his right to a speedy trial. Rule 28.1(b) of the Arkansas Rules of Criminal Procedure provides:
Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
In the instant case, Rule 28.2 mandates that the twelve-month period commenced running at the time of Mr. Goston’s arrest. It is undisputed that he was arrested on October 4, 1991, and was not tried until April 20, 1995. Mr. Goston acknowledges that, pursuant to Rule 28.3, some of the time between his arrest and trial was excludable for speedy-trial purposes. However, he contends that a total of 434 days was not excludable, and since this time period exceeds twelve months, the charge against him should have been dismissed.
In his argument, Mr. Goston asserts that three separate time periods combined to deny him a speedy trial. After his arrest on October 4, 1991, a trial was scheduled for March 4, 1992, but was later continued and the court ordered him to undergo a mental examination on March 10, 1992. Mr. Goston asserts that the 158 days between October 4, 1991, and March 10, 1992, were not excludable. Mr. Goston was found competent to stand trial on October 26, 1992, and a trial was then rescheduled for February 17, 1993. Mr. Goston asserts that this period of 114 days also counted towards the speedy-trial deadline. Finally, Mr. Goston concedes that his attorney waived a speedy trial on his behalf on February 17, 1993, and again on April 7, 1993. However, he asserts that after the April 7, 1993, waiver, another mental evaluation was conducted and he was again found competent to proceed on October 31, 1994. The trial was then set for April 11, 1995, which ultimately resulted in a mistrial and postponement until April 20, 1995. Mr. Goston argues that the 162 days between October 31, 1994, and April 11, 1995, were not excludable. The sum of the three time periods referred to by Mr. Goston is 434 days, and as a result he submits that his right to a speedy trial was violated.
From the abstract provided, we cannot agree that the trial court erred in refusing to dismiss for lack of a speedy trial. It is the duty of the appellant in a criminal case to abstract such parts of the record as are material to the points to be argued in the appellant’s brief. Manning v. State, 318 Ark. 1, 883 S.W.2d 455 (1994). In the case at bar, Mr. Goston has failed to abstract his motion to dismiss, which was presumably filed prior to the April 11, 1995, hearing that resulted in a mistrial. More importantly, he has failed to abstract the trial judge’s original ruling on the motion. The abstract of the April 20, 1995, hearing does not indicate that a motion for speedy trial was made at that time, although it does contain comments by the trial judge that pertain to the issue. The trial judge made reference to Mr. Goston’s speedy-trial waiver of April 7, 1993, when the appellant “may have been bonded out.” The trial judge then “affirmed” what the trial judge in the April 11, 1995, hearing found, and stated that “the speedy trial has not been violated in this case.” We find no error in this ruling.
It may be that the October 4, 1991, to March 10, 1992, and October 26, 1992, to February 17, 1993, periods were not excluda-ble for speedy-trial purposes. However, the sum of these periods is only 272 days, which fails to exceed the maximum period of twelve months. It is undisputed that Mr. Goston’s attorneys waived his right to a speedy trial both on February 17, 1993, and April 7, 1993. The abstract does not reveal that these waivers contained any conditions or limitations. Therefore, all of the time that elapsed between February 17, 1993, and the date of the trial appears to be excludable for speedy-trial purposes. The abstract does not support Mr. Goston’s contention that, despite the waivers, the period spanning October 31, 1994, through April 11, 1995, was not excludable.
In connection with his first argument, Mr. Goston also contends that, since the trial court did not set forth all excluded periods in writing as prescribed by Rule 28.3(i), his conviction should be dismissed. However, Mr. Goston failed to raise this issue before the trial court, and may not now raise it on appeal. See Keys v. State, 23 Ark. App. 219, 745 S.W.2d 628 (1988).
Mr. Goston’s remaining argument is that the trial court erred in excluding him from the courtroom during his trial. The trial judge ruled that because of Mr. Goston’s behavior at a pretrial hearing he could not be present in the courtroom during the trial. The Sixth Amendment to the United States Constitution and Article 2, section 10, of the Arkansas Constitution guarantee that an accused has the right to be present in a criminal prosecution against him. Mr. Goston now contends that he was erroneously denied this constitutional right.
Despite the constitutional right to be present at one’s criminal prosecution, this right may under certain circumstances be waived by a defendant’s belligerent or disruptive behavior. In Illinois v. Allen, 397 U.S. 337 (1970), the United States Supreme Court listed three possible ways for a trial judge to handle an obstreperous defendant: “(1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.” The Supreme Court further stated that “trial judges confronted with disruptive defendants must be given sufficient discretion to handle different situations which may arise in their courtrooms.” Id.
In the instant case, we find no abuse of discretion in the trial court’s handling of Mr. Goston’s disruptive behavior. During the pretrial hearing, the trial judge noted that Mr. Goston’s April 11, 1995, trial resulted in a mistrial because of his belligerent behavior. During the pretrial hearing, Mr. Goston repeatedly used grossly inappropriate language and profanity toward the trial judge. In addition, Mr. Goston threatened to kick a table over and proclaimed, “We are going to fight up in here.” After viewing this disruptive behavior, the trial judge stated, “There is no way that you can sit in this courtroom and act the way you are doing.” The trial judge then made the decision to try Mr. Goston in absentia.
It is significant that, after a jury was selected, the trial judge proceeded to the holding cell where Mr. Goston was being detained. At this time, the trial judge asked Mr. Goston if he would promise to behave in the courtroom, indicating that if he would make such a promise he would be allowed to be present for his trial. Mr. Goston remained silent and refused to speak to anyone. Thereafter, the trial proceeded in Mr. Goston’s absence. Because Mr. Goston was ultimately given a chance to display proper courtroom decorum during his trial but refused to do so, we find no merit to his contention that he was erroneously prevented from being present at his trial.
Affirmed.
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Melvin Mayfield, Judge.
This is the third appeal of this case in this court. It involves the continuing attempt of the appellee, Patricia Kathleen Hudson as Executrix of the Estate of Pat K. Savelle, to collect medical and life insurance benefits under a group insurance plan covering Pat Savelle who died on April 28, 1986.
In 1985, Pat Savelle filed a complaint seeking a declaratory judgment holding that her medical coverage benefits under a group policy issued by the Arkansas Nursing Home Employee Benefit Trust was valid and should be continued until she was no longer totally disabled. Summary judgment was entered June 12, 1986, in her favor. However, this judgment was later vacated because Ms. Savelle died prior to its entry.
On September 17, 1987, the present appellee was substituted as party plaintiff. Appellee then filed an amended complaint realleg-ing and adopting the allegations of the original complaint and seeking, in addition, death benefits as provided by the plan. On July 28, 1989, summary judgment was granted for appellee against “Maury Barnes, Kenneth K. Yarbrough, Ann Wiggins, Melvin Nussbaum, Perry Wilson, and any successors in interest thereto, as Trustees of the Arkansas Nursing Home Association Employee Benefit Trust.” (American Investors Life Insurance Company was not then a party.) The trial court granted the appellee’s complaint for declaratory judgment on the basis that Pat Savelle continued to be entitled to all health insurance coverage, including death benefit coverage, beyond the termination of her employment through the date of her death, April 28, 1986. On August 24, 1989, “Maury Barnes, et al” filed a notice of appeal, and in an unpublished opinion handed down June 27, 1990, this court affirmed the judgment in every respect except for an award of statutory penalty.
Subsequently, the appellee filed a motion asking the trial court for a money judgment, consistent with her declaratory judgment, for unpaid medical bills and life insurance benefits, plus interest, costs, and attorney’s fees. The defendants opposed the claim for some medical bills alleging entidement to certain offsets. A hearing was held in July 1991, on the actual amount due appellee and in an order entered April 8, 1992, the trial court found the appellee was entitled to the amount of the claim presented and granted appellee judgment in a specific amount, including attorney’s fees. The trial court’s finding was based in part upon the testimony of Robert Alexander, an attorney for American Investors Life Insurance Company, who appeared on behalf of the defendants. The trial court entered judgment not only against the trust as an entity, but also against the individual trustees, for all amounts. And the court also found that American Investors was the successor in interest to the trust and was also responsible for the judgment, and the court specifically reserved jurisdiction for the sole purpose of joining American Investors as an additional party for further proceedings against it which might be necessary in the event appellee was unable to collect the judgment awarded.
Thereafter, on May 7, 1992, a notice of appeal was filed which stated that “Maury Barnes, Kenneth K. Yarbrough, Ann Wiggins, Melvin Nussbaum, Perry Wilson, and any Successors in Interest Thereto, as Trustees of the Arkansas Nursing Home Association Employee Benefit Trust, Defendants” appeal the order entered April 8, 1992. In an unpublished opinion handed down June 30, 1993, this court affirmed the judgments against the trust and the individual trustees, but modified the amount of judgment by reducing it by an amount that had been written off by Cooper Clinic, and by eliminating post-judgment interest prior to April 8, 1992.
On September 9, 1993, the judgment not having been satisfied, appellee filed an amended complaint in which she asked that the appellant American Investors be added as an additional party, and for judgment against that appellant also as a successor in interest. American Investors was made a party and answered denying most of the allegations of the complaint stating, “Since American Investors was not previously a party to the litigation, American Investors is without sufficient information to admit or deny the material allegations,” and on March 14, 1994, it filed a motion for summary judgment on the basis that the order of April 8, 1992, was ineffective against it because it was not served with legal process or notice, and it was not a successor in interest to the trust or responsible for the trust’s liabilities.
After a hearing held March 25, 1994, the trial court entered a well-reasoned and comprehensive opinion holding that appellant was fully liable for all sums due the appellee. The trial court awarded judgment in favor of the appellee in the amount of $61,253.75, plus attorney’s fees and accrued costs. Because of its completeness, we quote extensively from the trial court’s decree and judgment. We also point out that the appeal from this judgment is only by American Investors Life Insurance Company (American Investors) and hereafter our reference to appellant without other designation will be to that appellant. The trial court’s decree states in part, as follows:
III.
Plaintiff obtained Judgment in this Court on August 2, 1989, as against all Defendants except American Investors Life Insurance Company, which was not then a party. The Judgment held in favor of the Plaintiff, granting her Complaint for declaratory judgment. The basis of the Court’s holding was that Plaintiff’s Decedent, Pat Savelle, continued to be entitled to all health insurance coverage, including death benefit coverage, beyond termination of her employment date through the date of her death, which was on April 28, 1986.
IX.
Defendant, American Investors insists that it is not responsible for any sums due and owing to the Plaintiff under the previously awarded judgments by the Court. On the Contrary, the Court concludes that Defendant American Investors is fully liable for all sums due and owing to the Plaintiff, previously affirmed by the Arkansas Court of Appeals. In so concluding, the Court has considered the testimony of the Plaintiff’s representative, James Hudson, and the Defendants’ representative, Robert Alexander, who had also previously testified for and on behalf of the other Defendants who are trustees of the Arkansas Nursing Home Association Employee Benefit Trust. The Court is persuaded, consistent with Mr. Alexander’s previous testimony in this matter, that American Investors assumed the claims that were outstanding as ofjanuary 1, 1989. Those claims necessarily included the claim of the Plaintiff’s decedent, Pat Savelle, which claim has been held valid by this Court in a previous proceeding, and which was affirmed by the Arkansas Court of Appeals. Thus the Defendant American Investors’ position that the claim is not valid because Ms. Savelle terminated her employment prior to the termination of the Trust, is wholly without merit, that issue having been conclusively determined by this Court, and the Arkansas Court of Appeals, in previous proceedings. Defendant, American Investors cannot collaterally attack those previous findings of the Court. That is particularly true here, since at all times, all Defendants have been represented by the same able attorneys, and have been represented at hearings by the same representative, namely, Robert Alexander.
X.
The Court is persuaded that American Investors, or persons acting on its behalf, knew at all relevant phases of this litigation, as did Fewell & Associates, as did Robert Alexander and his predecessor . . . that the claim of the Plaintiff’s decedent, and later the Plaintiff, was in existence, was being aggressively defended and litigated by the Nursing Home Trust, and that neither the nursing home Trust nor any of the Trustees had raised the claim that the Trust had been terminated on April 1, 1984. ... It would be unfair and inequitable for this Court to allow the Defendant to profit from a situation in which a Trust was terminated, over one year prior to the time that this lawsuit was filed, where the Plaintiff was never so informed. Defendant American Investors would be allowed to profit from that, if this Court were to find in its favor. Under these circumstances, the Defendant American Investors had a duty to speak, because at all times it had knowledge of the termination of the Trust, but failed to disclose it until after the decision by the Court of Appeals in the initial appeal.
XI.
It was clear at both the July, 1991 and March, 1994 hearings that Robert Alexander was at all times aware of the salient facts, and that personnel at American Investors knew the facts since the date of the initial Trust termination in April, 1984. The initial Trust Agreement for the Arkansas Nursing Home Association Employee Benefit Trust states that upon termination, trustees must pay all obligations of the Trust, and must use the fund to continue insurance on employees insured under the policies and the families of employees, and must act to protect the employees that were insured at the time of the termination of the policies. Further, the Trust instrument recites that the trustees shall pay all obligations of the Trust. Robert Alexander testified previously in this matter that the Trust accomplished this by providing for the assumption of certain liabilities upon termination.
XII.
. . . Under the circumstances presented by this case, Plaintiff’s claim is a liability which should have been assumed in the various assumptions entered into by certain entities after the April 1, 1984 termination of the Trust.
XIII.
Pursuant to the equitable doctrines of estoppel and waiver, American Investors is estopped to claim that it is not responsible for full satisfaction of the Judgment in favor of Plaintiff in this matter. At all times, Defendant, American Investors had knowledge of these transactions, and unquestionably had a duty to speak. Robert Alexander testified that he supervised this litigation matter from the time he became an employee. At any time during the course of the proceeding, he could have notified the Plaintiff, her Counsel, or his own attorneys, with respect to the termination of the Trust, but did not do so until September, 1990, after the first appeal to the Arkansas Court of Appeals. Robert Alexander admitted that his attorney in this matter has been reporting either to him or his predecessor at American Investors, throughout this matter. He further testified that Fewell & Associates, third-party administrator, is a sister company of American Investors.
In its appeal from the above decree and judgment, the appellant argues the chancellor’s order is clearly erroneous “because the record is barren of any facts that prove it was the successor in interest to the Trust and/or . . . assumed liabilities of the Trust for the claims made by Appellee.” Appellant argues that the trial court’s finding that it was the successor in interest to the Trust and the responsible party is clearly against the preponderance of the evidence.
The problem with appellant’s argument is that the trial court held appellant estopped to claim that it is not responsible for full satisfaction of the judgment.
In Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991), our supreme court stated:
Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Privity of parties within the meaning of res judicata means “a person so identified in interest with another that he represents the same legal right.” Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated. Collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit.
307 Ark. at 114, 817 S.W.2d at 432-33 (citations omitted).
And in Arkansas Department of Human Services v. Dearman, 40 Ark. App. 63, 842 S.W.2d 449 (1992), we discussed the doctrine of collateral estoppel. We stated:
The question of who may be bound by a judgment is considered in Freidenthal, Kane, and Miller, Civil Procedure § 14.9 (1985). In discussing the general issue underlying collateral estoppel, the authors state:
When an issue has been litigated fully between the par ties, spending additional time and money repeating this process would be extremely wasteful. This is particularly important in an era when the courts are overcrowded and the judicial system no longer can afford the luxury — if it ever could — of allowing people to relitigate matters already decided.
Id. at 658. The authors also state that this doctrine applies only to persons who were parties or who are in privity with persons who were parties in the first action and that persons in a privity relationship are deemed to have interests so closely intertwined that a decision involving one necessarily should control the other. Id. § 14.13 at 682-83.
It has been suggested that privity is merely a word used to say that the relationship between one who is a party and another person is close enough that a judgement [sic] that binds the one who is a party should also bind the other person. This is the view taken in 18 Wright, Miller, and Cooper, Federal Practice and Procedure § 4448 (1981) where it is stated:
As to privity, current decisions look directly to the reasons for holding a person bound by a judgment. This method should be adopted generally so that a privity label is either discarded entirely or retained as no more than a convenient means of expressing conclusions that are supported by independent analysis.
The Arkansas Supreme Court has said that privity within the meaning of res judicata means a person so identified in interest with another that he represents the same legal right. In Restatement (Second) of Judgments § 39 (1982) it is stated that “a person who is not a party to an action but who controls or substantially participates in the control of the present action on behalf of a party is bound by the determination of issues decided as though he were a party.” It has also been held that the identity of parties or their privies for res judicata purposes is a factual determination of substance, not mere form.
40 Ark. App. at 67-68, 842 S.W.2d at 451-52 (citations omitted).
Under the law as cited above, we do not think the trial court erred in holding that the appellant is estopped from claiming it is not responsible for full satisfaction of the judgment in favor of the appellee.
At this point, we want to note that the appellant filed a motion for summary judgment in this case; that the trial court advised the parties, by letter to their attorneys, that there were material facts at issue; but that no order was filed to that effect until after the evidentiary hearing had been held. Then, in the decree and judgment from which we have quoted above, the court stated that “it specifically finds that the Motion for Summary Judgment filed by the Defendant, American Investors should be denied.”
In response to American Investors’ motion for summary judgment, the appellee summarized the background of this litigation and stated that the court should hold the appellant estopped to deny liability in this matter.
Now, in light of that pleading, we want to also note that this case has had a long and tortuous history. A section of appellant’s brief entided “ABSTRACT OF PRIOR TESTIMONY” abstracts the testimony of Robert Alexander given at the July 1991 hearing on behalf of the Trustees long before American Investors was named as a party. At that time, Alexander testified that he had been an attorney for American Investors since September 1988. He testified that Fewell & Associates is a third-party administrator that administered the Nursing Home Association Trust, the Multiple Employer Trust that the nursing home people went into, the fully insured program for Paramount Life, and then Mr. Fewell purchased American Investors and Fewell & Associates administered the business of the new insurance company. Alexander testified that he also served as staff counsel for Fewell & Associates and went to work for them in September 1988.
Alexander again testified at the hearing held March 25, 1995, again as representative for the defendants, this time including American Investors. He testified that Pat Savelle was one of the beneficiaries of the Nursing Home Trust; that the “Employer Benefit Group” took over claims that occurred prior to April 1, 1984; and that another entity called Paramount Life Insurance Company came next. Alexander testified that Fewell & Associates was the third-party administrator for the Nursing Home Trust and that it is owned by Bob Fewell who is also the president of American Inves tors. He said that in July 1991, the party defendants were the trustees of the Nursing Home Trust; that he was employed then as now by American Investors; and that he came as a witness to “shed any light I could on the information that I had collected.” He said he came to the July 1991 hearing for Fewell & Associates and had been involved in the case at least from February 1991. He said he did not come for American Investors, but American Investors and Fewell & Associates are sister companies; that he had gathered information in preparation for the hearing; and came to give the information he had. Alexander went to great lengths to explain why Ms. Savelle claim was not covered. He testified her claim fell into the category of claims which were ineligible because they were incurred after April 1, 1984. He said the Employer Benefit Group (MET) assumed only claims incurred prior to April 1, 1984, that had not been paid, or so called “run-off” claims; that Ms. Savelle’s claim was not a run-off claim; that it assumed no claims incurred after April 1, 1984, unless the people continued to participate; that Ms. Savelle was disabled and not able to be employed; and that her claims were incurred after April 1, 1984, and their liability was not assumed. He testified further that American Investors had no connection with the Nursing Home Trust or the Employer Benefit Group, and it only assumed claims incurred under the Paramount Life Group Policy.
However, we think the appellant was involved in this litigation from its inception. Alexander, an employee of American Investors, was also employed by Fewell & Associates during this suit. He testified as a representative on behalf of the defendants even before American Investors became a party. He was at all times aware of the facts and testified that he was “the attorney responsible for this claim at American Investors since 1988.”
Under the law regarding collateral estoppel, as set out in the cases of Robinson v. Buie and Arkansas Department of Human Services v. Dearman, supra, and applying the requirements of Ark. R. Civ. P. 52(a) that we not set aside the findings of fact made by a judge in a trial without a jury unless they are clearly erroneous or against the preponderance of the evidence, we think that the trial judge’s decision in this case should be affirmed.
Affirmed.
Jennings, C.J., and Robbins, Rogers, and Stroud, JJ., agree.
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D.P. Marshall Jr., Judge.
Beverly Tate challenges the Board of Review’s decision that she was not entitled to unemployment benefits because the University of Arkansas fired her with cause for insubordination. Ark. Code Ann. § ll-10-514(a)(l) (Supp. 2007). Whether Tate’s actions constituted misconduct in connection with her work was a fact question for the Board to answer. Terravista Landscape v. Williams, 88 Ark. App. 57, 64, 194 S.W.3d 800, 804 (2004). The question for this court is whether substantial evidence supports the Board’s decision. Ibid. It does.
During the six months that Tate was in her last position at the University, she arrived late for work several times. At first, Tate wanted to make up for her tardiness, which was usually about fifteen minutes, by working during her break or her lunch time. Tate’s supervisor instructed her that she could not do so, and instead must use some of her leave time to cover the tardiness. Tate questioned this interpretation of University policy. Tate and her supervisor consulted with the Associate Vice-Chancellor for Human Resources, who confirmed the supervisor’s interpretation. When Tate was late again, her supervisor reminded her of the rules. Tate again sought to avoid using up her leave time and wanted to work during her breaks. Her supervisor refused, and suggested that Tate consult the supervisor’s boss under the University’s “open-door” policy. Tate did so. He declined to intervene, e-mailing Tate that she should sort the matter out with her supervisor.
A few weeks later, Tate was late two days in a row. When her supervisor told her to use leave time for this tardiness, Tate again said that she would just make up the time by working through her breaks. The supervisor refused, and told Tate that her attitude on this matter and others needed to improve. When Tate asked the supervisor to put that in writing, the supervisor discharged Tate.
This record contains substantial evidence that supports the Board’s decision. Asking questions about an employer’s policy is not insubordination. Asking the employer to change or interpret the policy is not insubordination. But after the questions are asked and the requested accommodation is rejected, then an employee who refuses to accept the employer’s decision about the rules for the workplace is insubordinate. Tate would not take no for an answer. She never indicated to her supervisor that she would comply with her instructions. Substantial evidence supports the Board’s decision that Tate’s repeated attempt to disregard the University’s time policies ripened into misconduct. Terravista Landscape, supra.
Affirmed.
Pittman, C.J., Gladwin, Robbins, Glover and Vaught, JJ-, agree.
Heffley, Baker and Miller, JJ., dissent. | [
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James R. Cooper, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission, which held that the appellee controverted liability for disability payments in excess of twenty-five percent to the body as a whole and awarded the appellant attorney fees of $ 1,000.00. The appellant’s sole contention is that the Commission’s award is insufficient. On cross-appeal, the appellee contends that the Commission erred in finding the claim controverted and that, if it were controverted, the amount awarded by the Commission as attorney fees is correct. We find merit in the appellee’s first point on cross-appeal, and we therefore need not reach the other points raised on appeal. The record shows that the appellant was injured on April 25, 1977, and the appellee paid various periods of temporary total and permanent partial disability, based on an anatomical rating of twenty-five percent to the body as a whole. The last payment of permanent partial disability was made on April 26, 1984, when the appellee sent the appellant his final check, stating in the attached letter that it was the final installment due the appellant for his permanent partial disability of twenty-five percent loss to the body as a whole (a period of 112.5 weeks), and asked the appellant to call if there were any questions.
On June 4, 1984, the appellee sent the appellant an A-11 form to sign as a receipt for the payments received. The appellant responded through his attorney on June 7th, asking for copies of all his medical records in the appellee’s possession which related to his workers’ compensation claim. The appellee replied on June 19th that it was its policy not to supply copies of an employee’s medical records, stated that it had paid the appellant everything that the law required, and asked if there was a problem with the claim. The appellee’s attorney, Patricia Nobles, closed the letter by stating she would be happy to discuss any problems with the appellant.
The next communication between the parties occurred on August 8,1984, when the appellant submitted interrorgatories to the appellee. In a letter dated August 13th, Ms. Nobles acknowledged receipt of the interrogatories and professed confusion as to why they were sent. She pointed out to the appellant’s attorney that the appellee had not received any notification of any claim that the appellant may have had pending before the Commission, and stated that the appellee’s records showed that the appellant had a twenty-five percent disability to the body as a whole, for which they paid the 112.5 weeks of benefits required (the last payment being made on April 26,1984). She again asked if there was a disagreement with the manner in which the appellee had handled the claim and stated that, if so, she would be happy to discuss it. She further stated that, without some sort of informal appraisal of the nature or basis of the appellant’s claim, the appellee was unwilling and unable to comply with the interrogatories.
The record further reflects that the appellee first found out the nature of the appellant’s claim on August 20th, after a hearing date had been set, by way of the administrative law judge’s response to its inquiry. The law judge informed the appellee that the claim was apparently for additional temporary total and permanent partial disability benefits. After receipt of the law judge’s letter, the appellee called the appellant’s attorney on August 30th to attempt to resolve the problem. In a letter dated August 30th, confirming this conversation, Ms. Nobles stated that the appellant was requesting permanent total (not temporary total and permanent partial) disability benefits and that the appellee did not contest that claim up to its statutory limit of liability. She stated that the appellee was not controverting, and had not controverted, the appellant’s claim and informed the appellant’s attorney that, if he had informed the appellee of the nature of the claim when that information had been requested on previous occasions, the claim could have been resolved many months ago.
A hearing was held on September 5th, at which time the appellee informed the law judge that it had only received the appellant’s medical records the day before the hearing and that the appellant had only informed it of the nature of his claim six days before the hearing. The law judge gave the appellee ten days in which to determine its position in regard to the appellant’s claim, in light of the appellant’s failure to give the appellee reasonable notice of his claim and medical records prior to the hearing. Within those ten days, the appellee agreed to pay total permanent disability benefits. Another hearing was held on November 7 th, to determine whether the appellee’s actions in regard to this claim constituted controversion, which would require the appellee to pay attorney fees to the appellant. The law judge found that such controversion existed and awarded the appellant the maximum attorney fees allowed by statute.
The Commission agreed that the appellee had controverted the award, but modified the amount of the attorney fee allowed to $1,000.00. It based its finding of controversion on the appellee’s refusal to provide medical reports and to answer interrogatories, and on the testimony of Ms. Pat Knowles, an employee of the appellee, that the appellee made no attempt to determine the full extent of the claimant’s permanent disability. The Commission found, in short, that the appellee “offered no cooperation to claimant or his attorney after permanent partial disability benefits were terminated.” The Commission pointed out that “[w]hen a respondent places a claimant into the position of having to employ the services of an attorney to prove disability benefits, once a claim has been accepted as compensable, and then, further, refuses to assist in the determination of the extent of disability, the claim is controverted.”
We have no problem with the definition of a controverted claim set forth by the Commission in its opinion. However, we find that there is no substantial evidence to support its conclusion that the appellee refused to assist in determining the extent of liability, thereby controverting the claim. Therefore, we reverse.
The determination of whether a claim is controverted is a fact question to be resolved from the circumstances of the particular case. Climer v. Drake’s Backhoe, 7 Ark. App. 148, 644 S.W.2d 637 (1983). The mere failure of the employer to pay benefits does not, in and of itself, amount to controversion, especially when the carrier accepts the injury as compensable and is attempting to determine the extent of the disability. Revere Copper & Brass, Inc. v. Talley, 1 Ark. App. 234, 647 S.W.2d 477 (1983). Here, the appellee told the appellant and his attorney that it would be glad to discuss any problems with the way the appellant’s claim had been handled and asked them more than once what, if any, additional claim was being made. The uncontradicted evidence shows that the appellant made no reply to these requests until August 30th, less than a week before the scheduled hearing. Furthermore, it is undisputed that the appellee continued paying medical bills during this time and only discontinued the permanent partial disability benefits after the statutory time period had run. Before the appellee can be found to have aided or not aided the appellant in determining the extent of liability, the appellee needs to be informed of what, if any, additional disability is being claimed. The appellant’s failure to cooperate with, and provide information about his claim to, the appellee is what caused the need for the hearing and the delay in benefits, not the appellee’s failure to provide medical records and answer interrogatories for a claim which, to its knowledge, did not exist. Cf., Turner v. Trade Winds Inn, 267 Ark. 861, 592 S.W.2d 451 (Ark. App. 1979).
There being no substantial evidence that the appellee had controverted the appellant’s claim, we reverse the Commission’s decision.
Reversed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Melvin Mayfield, Judge.
The Second Injury Fund appeals a decision of the Workers’ Compensation Commission holding it liable for a portion of the compensation due claimant who suffered a compensable back injury when he fell from scaffolding on August 2, 1982.
The administrative law judge held that, prior to the August 2nd injury, appellant had a permanent impairment of 5% to the body as a whole; that the August injury resulted in an additional impairment of 15%; and that a portion of the disability existing after that injury should be paid by the Second Injury Fund. The full Commission affirmed the law judge’s findings, except for his calculation of the amount of compensation owed by the Fund. That matter was remanded for “redetermination or clarification” by the law judge.
On appeal to this court, the Fund first argues that it has no liability to the claimant because he did not have a loss-of- earning-capacity impairment, pursuant to Ark. Stat. Ann. § 81-1313(i) (Supp. 1985), prior to his compensable injury on August 2, 1982. We agree.
The issue involved in this case has recently been considered by us in the cases of Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985); Second Injury Fund v. Girtman, 16 Ark. App. 155, 698 S.W.2d 514 (1985); and Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985). In those cases, we agreed with the Fund’s contention that the word “disability” in Ark. Stat. Ann. § 81-1313(i), supra, means loss of earning capacity due to a work-related injury, that “impairment” means loss of earning capacity due to a nonworkrelated condition, that the word “handicapped” means a physical disability that limits the capacity to work, and we now add that the words “anatomical impairment” mean the anatomical loss as reflected by the common usage of medical impairment ratings. We think these definitions are necessary to accomplish the purpose of the second injury statute and to fix the liability of the parties in accordance with the mathematical formula set out in that statute.
At the time of the first hearing in this case, the claimant was 46 years old. After completing high school and one semester in Arkansas State Teachers College, he entered the military where he was a paratrooper and made 32 jumps. Claimant began work for the appellee-employer in May of 1982 as a heavy equipment operator and was then reclassified to “construction carpenter.” At the time of his injury on August 2,1982, he was working on a scaffold when his crowbar slipped off of a nail and he fell backwards off the scaffold. He landed in a semisitting position, more or less on his tailbone, and was taken to a hospital where he received immediate medical treatment.
Claimant testified that when he went to work for the appellee-employer he was not aware that he had any back problem. He did admit, however, that 10 years before he had applied for a job with the City of Wichita, Kansas, and had a preemployment physical in which X rays of his lower lumbar spine revealed evidence of a spondylolysis involving L5. Claimant testified that he was shocked because he had never had any back problems and thought the doctor must have looked at someone else’s X rays. He was, however, turned down for employment by the City of Wichita because of the report from the doctor as to his back condition. He returned to see this doctor in 1973 after being involved in a rear-end automobile accident. He was off- work for three or four days at that time and said he had no back problems thereafter.
Subsequently, claimant went into business for himself, first as a commercial and residential paint and sandblast contractor, and then, in 1977, as a dirt contractor, installing septic systems, digging ponds, building driveways and private roads, and hauling dirt and gravel. Later, he worked as a welder on an offshore drilling rig. He passed the physical, and did all types of heavy lifting, climbing and hanging upside down. He testified it was the most demanding work in which he had ever been involved and that it gave him no problem with his back. After that, he did some part-time work for a sawmill operator, cutting and trimming logs, loading them on a truck, and unloading them at the sawmill. His next job was with the appellee-employer.
Claimant’s family doctor in Wichita, Kansas, testified by deposition that claimant was born with his back condition and that people with this condition were more susceptible to back injuries than people without it. A doctor who treated claimant after his August 1982 injury testified that it would not be unusual for the claimant to be unaware of his back problem and to attribute any discomfort to everyday hard work. But the doctor said that as the claimant gets older, he would have more problems with his back.
The Commission’s opinion states:
Claimant’s preexisting spondylolysis unquestionably caused claimant to be rejected for employment in 1972. As this preexisting condition did, at least on one occasion, adversely affect claimant’s earning capacity by causing him to be denied employment, we find it impossible to say that it was not a preexisting disability within the meaning of the law.
We fully recognize our duty to review the evidence in the light most favorable to the Commission’s decision and to uphold that decision if it is supported by substantial evidence, Georgia Pacific Corp. v. Ray, 273 Ark. 343, 619 S.W.2d 648 (1981); Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984). However, there is really no dispute as to the facts as set out above. The Commission’s decision simply relies upon the claimant’s rejection for employment in 1972. We do not think that is enough to constitute substantial evidence to support a finding that the claimant had a preexisting condition that was independently causing a loss-of-earning capacity prior to the second injury and continued to do so after that injury. The Rogers, Girtman, and Coleman cases, cited above, relied on previous decisions of this court and the Arkansas Supreme Court which make it clear that the solvency of the Second Injury Fund is important, that it is a limited and restricted fund, and that it is not liable unless the above stated preexisting condition exists. We think the following statement in appellant’s brief may well be correct:
There are very few, if any, Arkansas workers who are completely free of any degree of medical or anatomical impairment to every part of their body. Thus, to adopt Appellee’s contention and the decision of the Commission would warrant SIF exposure in virtually every Workers’ Compensation case, bankrupt the SIF, and not serve to encourage the employment of truly handicapped workers.
We hold there is no substantial evidence to support liability against the Second Injury Fund in this case. In all other respects, the Commission’s decision is affirmed. | [
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James R. Cooper, Judge.
This is an appeal from an award of $13,875.00 to the appellee in Phillips County Circuit Court for property taken in a condemnation proceeding. The appellant condemned 4.93 acres of the appellee’s land in 1980 to build Newman Drive within the City of Helena. On March 15,1985, a jury trial was held to determine the amount of compensation, if any, to which the appellee was entitled for the taking. The appellant contended at trial that the value of the remaining 35.07 acres exceeded the value of the entire tract prior to the construction of the road, and therefore, the appellee was entitled to no compensation. The appellant’s expert testified to that effect, stating that, prior to the taking, the land was worth $160,000.00 and that, after the taking, the remaining land was worth $173,500.00. The appellee testified that he did not feel that the property had increased in value, questioned the expert’s comparing the large tract of property to sales of small tracts of frontage on the new road, and testified that the city had offered him $ 13,874.00 for the property, but withdrew the offer before he had accepted it.
The appellant’s sole contention on appeal is that the jury’s verdict is not supported by substantial evidence. However, we need not reach this argument because the appellant did not move for a directed verdict, nor did it move for judgment notwithstanding the verdict. Rule 50(e) of the Arkansas Rules of Civil Procedure requires that one of the above motions be made to challenge the sufficiency of the evidence to support a jury verdict; by its failure to do so, the appellant waives the right to challenge the sufficiency of the evidence. B.J. McAdams, Inc. v. Doggett Leasing Co., 13 Ark. App. 162, 861 S.W.2d 406 (1984).
Even had the appellant preserved the right to challenge the sufficiency of the evidence, substantial evidence was presented to support the jury’s verdict. The appellee testified that the appellant had offered him $13,874.00 for the condemned land. While the appellant had previously objected to evidence of compromise during the cross-examination of its expert witness, as being inadmissible under Ark. Stat. Ann. § 28-1001, Unif. R. Evid. 408 (Repl. 1979), it was not a continuing objection. The appellant did not object to the evidence at the time of the appellee’s testimony, nor did it ask the court to admonish the jury. By its failure to renew the objection, the appellant waived the error. New Empire Insurance Co. v. Taylor, 235 Ark. 758, 362 S.W.2d 4 (1962). In New Empire Insurance Co., the Supreme Court stated:
In McCormick on Evidence (1954), we find,
“A failure to make a sufficient objection to evidence which is incompetent waives as we have seen any ground of complaint of the admission of the evidence. But it has another effect, equally important. If the evidence is received without objection, it becomes part of the evidence in the case and is usable as proof to the extent of whatever rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. Such incompetent evidence, unobjected to, may be relied on in argument, and in whole or in part may support a verdict or finding. This principle is almost universally accepted, and it applies to any ground of incompetency under the exclusionary rules.’'1
Our own court has so held on numerous occasions.
235 Ark. at 764-65. (Emphasis added.) Accord, McWilliams v. R & T Transport, Inc., 245 Ark. 882, 435 S.W.2d 98 (1968). We find that, because the error was not properly preserved, the appellee’s testimony provides substantial evidence to support the jury’s verdict.
Affirmed.
Cracraft, C.J., and Glaze, J., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Jackson County Chancery Court. Appellant, Charlotte M. Hodges, appeals from a decree granting divorce in favor of appellee, Jerry G. Hodges, and dividing the parties’ property. We affirm in part and reverse and remand in part.
Appellee filed a complaint on April 20, 1988, seeking absolute divorce from appellant on the grounds of general indignities. Appellant answered and counterclaimed for divorce. A hearing was held on June 13,1988, and a decree of divorce was entered on June 20, 1988, granting divorce in favor of appellee and dividing the parties’ property. From the decree comes this appeal.
For reversal, appellant raises two points: (1) The chancellor erred in granting a divorce to appellee on the grounds of general indignities; and (2) the court erred in its division of the property by: (a) ordering the capital stock of the business sold and by giving appellee exclusive possession of the business; (b) ordering appellant surcharged for moneys she received legally; (c) awarding possession of the marital home to appellee; and (d) awarding an automobile to a non-party to the case. We address her points in order.
First, appellant argues that the chancellor erred in granting a divorce to appellee on the grounds of general indignities. She essentially contends that appellee failed to introduce sufficient evidence to prove he was entitled to a divorce based upon general indignities. She also argues that the necessary corroboration was lacking as to residence, separation, and grounds.
Prior to the taking of testimony at the hearing, appellant’s attorney indicated that grounds for divorce would not be contested. However, despite the fact that grounds were uncontested, existing statutory law does not permit a spouse to stipulate to or waive grounds for divorce. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984). Regardless of whether a divorce is contested or uncontested, the injured party must always prove his or her ground(s) for divorce as set forth in Arkansas Code Annotated Section 9-12-301 (1987). Id. at 302, 664 S.W.2d at 482.
Appellee’s complaint for divorce was sought based upon Arkansas Code Annotated Section 9-12-301(4) (1987) which provides that divorce may be granted where either party shall offer such indignities to the other so as to render his or her condition intolerable. Appellee testified that much of the disharmony arose over appellant’s spending habits. He testified that on several occasions, appellant forged his name, without authorization, on checks drawn on a personal account held in his name only. Further testimony revealed that appellant purposely stubbed or recorded a check as $10.00, when the check had been written for $10,000 on the business account, and withdrew a total of approximately $16,200 from the business account causing overdrafts and placing a financial hardship on the family business. Other evidence was also introduced regarding irregular conduct by appellant in connection with the business. The parties’ twenty-four-year-old daughter testified that appellant made accusations in her presence on numerous occasions that appellee was having an affair with a third party, and of misconduct with yet another. Appellant offered no basis for the accusations made. It has been said that the charge of sexual promiscuity or infidelity is probably the most offensive charge one spouse can make against the other, and it has been held that to make such a charge without basis is an indignity entitling the person charged to a divorce. Relaford v. Relaford, 235 Ark. 325, 359 S.W.2d 801 (1962). Although the appellate court reviews chancery cases de novo, it will not set aside the chancellor’s findings of fact unless they are clearly erroneous or against the preponderance of the evidence. Cuzick v. Lesly, 16 Ark. App. 237, 700 S.W.2d 63 (1985). Upon our de novo review, we cannot say that the chancellor was clearly erroneous in finding sufficient proof of general indignities.
With regard to appellant’s arguments concerning corroboration, as noted above, the parties agreed that grounds for divorce would not be contested. In uncontested divorce suits, corroboration of plaintiffs grounds for divorce is not necessary or required. Ark. Code Ann. § 9-12-306(a) (1987).
Appellant also argues that because the parties continued to reside in the martial home until and after the divorce was granted, appellee’s testimony that they lived separate and apart under the same roof must be corroborated. We disagree. Corroboration of separation is not necessary in the instant case. Separation is not an element which must be affirmatively proved by the plaintiff for divorce based upon general indignities. The only grounds for divorce which require the plaintiff to make a prima facie showing of separation are found in subsections six and seven of 9-12-301. Subsection six provides as a ground for divorce, the separation without cohabitation of the parties for three consecutive years. Subsection seven has a similar requirement, but deals specifically with separation for three years caused by inexcusable insanity. None of the other grounds for divorce require a showing of separation. See Ark. Code Ann. § 9-12-301 (1987). Although section 9-12-306(c)(l) requires that proof of separation and continuity of separation without cohabitation be corroborated, we construe the reference to relate only to those grounds found in Arkansas Code Annotated Sections 9-12-301(6) and (7) in which separation without cohabitation is an element, or cases in which cohabitation is an affirmative defense.
Although we have established that appellee was not required to make a prima facie showing of separation under Section 9-12-301(4), the defense of condonation could have been asserted by appellant. Condonation is a conditional rather than an absolute defense. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954). Cohabitation after marital misconduct is evidence of condonation but standing alone is not conclusive. Elerson v. Elerson, 6 Ark. App. 255, 640 S.W.2d 460 (1982). “[M]arital relations between litigants does not create a jurisdictional deficit, but merely creates an affirmative defense in the hands of either party which must be raised.” Ford v. Ford, 270 Ark. App. 349, 605 S.W.2d 756 (Ct.App. 1980) (emphasis in original). Appellant neither pled the affirmative defense, nor raised it before the chancellor. Because separation without cohabitation was not an element of appellee’s prima facie case, and appellant did not raise an affirmative defense based on cohabitation, corroboration of separation was not required in the case at bar.
Finally, as to corroboration of residency, we agree that residency must be proven and corroborated in every instance, see Ark. Code Ann. §§ 9-12-307(a) and 9-12-306(c)(l) (1987), despite admission by a defendant. Ark. Code Ann. § 9-12-305 (1987). The purpose of the rule requiring corroboration is to prevent the procuring of divorces though collusion, and when it is plain that there is no collusion, the corroboration required only needs to be slight. Anderson v. Anderson, 234 Ark. 379, 352 S.W.2d 369 (1961). On the record before us we find no indication of collusion.
Appellee testified that he had been a resident of Jackson County, Arkansas, for more than sixty days prior to the filing of the action and that the parties owned one hundred acres of land in Jackson County, Arkansas, upon which the marital home sat. Deeds evidencing ownership and location of the property were entered into evidence. The parties’ twenty-four-year-old daughter also testified that she lived with her parents in the marital home throughout three years of disharmony, and until and after the filing of the action. The deeds showing that the parties’ only real property was located in Arkansas coupled with the daughter’s testimony that she resided in the marital home with both parties, was sufficient to corroborate appellee’s testimony that he was an Arkansas resident. We cannot say that the chancellor was clearly erroneous in finding that residence had been proven and corroborated.
In her second point for reversal, appellant raises several issues regarding the chancellor’s distribution of property. First, it is argued that the chancellor erred in ordering the capital stock of the business sold. We agree.
The record reveals that at the time of this action, each party owned fifty percent of the capital stock issued by Bill’s IGA Foodliner #2, Inc., which constituted marital property. The chancellor ordered that if the parties could not mutually agree to terms and conditions privately regarding the capital stock, that it was to be sold at public sale by the court clerk.
Arkansas Code Annotated Section 9-12-315 (1987) governs the division of marital property. Subsection (a)(4) of 9-12-315 provides as follows:
(4) When stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the sureties, may order and adjudge that the securities be distributed to one party on condition that one-half (xh) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.
This section states that the court shall (1) designate the specific property in securities to which each party is entitled; or (2) may order and adjudge that the securities be distributed to one party and the other party receive one-half of the fair market value of the securities in money or other property. The chancellor did neither and ordered sale of the stock if the parties failed to reach an agreement. Sale of the stock is not authorized by the statute and the chancellor’s decree must be reversed in that, regard. On remand, the chancellor must divide the stock in one of the two authorized manners, whether that division be equal or unequal. Ark. Code Ann. § 9-12-315 (1987).
[ 16] Appellant also argues that the court erred in awarding appellee exclusive possession of the business because no equitable reason existed for the court to take action regarding the parties’ business. We disagree. The record reflects that appellant was causing hardship upon the business by withdrawing substantial sums of cash from its account. Further, appellee testified that prior to the hearing appellant removed from the premises certain business records necessary to prepare quarterly tax returns, the business checkbook, and the records concerning sales history. We believe the chancellor’s finding that appellee should be put in exclusive control of the business is amply supported by the record.
Next, appellant argues that the chancellor erred in surcharging her for certain expenditures made from corporate funds prior to the filing of the divorce action. The chancellor has broad powers to distribute the property in order to achieve an equitable division, Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983), and may order credits and set-offs as appear equitable and just. See Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985). The record reflects that appellant withdrew approximately $16,000 from the corporate account, outside the ordinary course of business for personal use, during the two month period immediately preceding the filing for divorce. Although each party had a fifty percent interest m the corporation, that interest also constituted marital property. While we agree that appellant had a legally recognized interest to share in the profits, and arguably to make the withdrawals, that does not mean that the funds withdrawn cannot be surcharged against the interest in the marital property to which she was entitled. The surcharge by the chancellor was an attempt to comply with his intent to make an equal distribution of the marital property. The chancellor had extensive evidence before him regarding the financial condition of the business and the other marital property. We cannot say that he was clearly erroneous in finding that the surcharge was necessary to affect an equal distribution of the parties’ property.
Appellant also contends that the chancellor erred in granting possession of the marital home to appellee without stating its basis and reasons as required for an unequal division under Arkansas Code Annotated Section 9-12-315(a)(l)(B) (Supp. 1987). We cannot agree. The chancellor ordered that unless the parties mutually agreed to a sale of the home within six months from the date of the decree, the property would be sold at public sale by the court clerk. He further provided that, whether by public or private sale, proceeds from the sale were to be divided equally between the parties. Appellee was put in possession of the home pending sale. The fact that appellee was granted possession of the home does not result in an unequal division of property in the case at bar. The trial court has the discretion to award possession of the homestead to either spouse upon terms found equitable and just. Schaefer v. Schaefer, 235 Ark. 870, 362 S.W.2d 444 (1962). The award of possession made by the chancellor was a temporary measure pending sale, and we cannot say that the chancellor abused his discretion in finding that such an award was equitable.
Finally, appellant argues that the court erred in awarding an automobile to the parties’ daughter because she was not a party to the action. The chancellor heard testimony from both parties and the daughter regarding ownership of the automobile in question. In support of her position, appellant sets out in her brief the following language from Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981):
We also agree with appellant that the chancellor erred in awarding disputed items of personal property to the son of the parties who was not himself a party to the action. Third parties may be brought into, or intervene in, divorce actions for the purpose of clearing or determining the rights of the spouses in specific properties. [Citation omitted]. In this case neither was done.
However, had appellant read further, the court also stated, “The court might also have simply found that the disputed property belonged to neither contending spouse.”
In the instant case, the chancellor held that all property owned by the parties should be divided equally with the exception of certain property not part of this appeal, and “a Mercury automobile which, although titled in the plaintiffs name, is in truth and in fact, the property of Michelle Hodges, the adult daughter of the parties.” The chancellor did not “award” the automobile to the daughter. He merely found that the property belonged to neither contending spouse. We find no merit in appellant’s argument.
Affirmed in part; reversed and remanded in part.
Jennings, J., concurring in part and dissenting in part. | [
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Tom Glaze, Judge.
This is an appeal from a decision of the Board of Review awarding benefits to the claimant after finding that she was dismissed from her job for reasons other than misconduct in connection with the work. The appellant/employer raises two points for reversal:
A. The Board of Review acted in a manner contrary to law by failing to order a hearing to receive new evidence offered by Maybelline.
B. The Board’s decision is not supported by the evidence and is contrary to law.
We cannot say that the Board erred as a matter of law in not awarding a second hearing at the employer’s request, and we find substantial evidence in the record to support the Board’s decision. Therefore, we affirm.
The claimant was a factory line employee who was discharged October 23, 1982. The claimant filed for un employment benefits and stated on her application that she had been dismissed for “going to the bathroom without permission.” The employer responded that the reason for claimant’s separation from employment was for “violation of company rules.” The Agency found the claimant eligible for benefits and the employer appealed.
A hearing was conducted before an appeals referee; the claimant appeared in her own behalf and three representatives appeared for the employer: the personnel manager, the claimant’s supervisor, and the assistant production manager. The claimant testified that she was discharged for going to the restroom without permission; she admitted that she had been warned on prior occasions not to leave the line without permission for any reason. The claimant testified also that when the line was “down” — not operating for maintenance or repair — the employees were permitted to leave without permission. She testified that the line was down at the time she left her post on October 23, and that it was still down when she returned. The claimant also testified that she had had surgery in September, 1982, which had increased the frequency and urgency of her need to urinate.
Of the three witnesses who appeared for the employer, Mr. Acre, the Personnel Manager, did most of the talking. Acre denied any knowledge on the part of the company that the claimant had a medical problem which necessitated her going to the restroom frequently. He testified:
[W]e were never informed . . . that she had a physical condition initiated by surgery that required frequent urination and thus leaving the line, we were not aware of that. Additionally, there is [sic] several questions in my mind regarding her leaving the line, the line being down and so on. I would just say we would have taken that fact into consideration had we known about it. However, we would have still required her to follow the same procedures of notifying the service worker or clerk or supervisor. When a production line is down, that is it’s not functioning because it’s broken down under mechanical repair or something of that effect, the operators aren’t working the line isn’t running, and there is the possibility that the operators can go to the restroom without seeking permission during those times. We would not let an entire line leave and go to the restroom, but employees can, electing among themselves, to go to restroom while the machine is broken down. When the machine is running, that is not the procedure. Our employees are aware of this .... They are informed of it when they are employed, they are informed the first night they’re working on the job of the basic procedure for leaving the line for whatever reasons.
The referee affirmed the Agency’s decision that the claimant was eligible for benefits. The employer appealed that decision to the Board of Review and submitted additional evidence to show that on the day the claimant was dismissed, the line was not down as the claimant had testified. The Board affirmed the decision of the referee awarding benefits to the claimant, stating in its decision that, pursuant to Mark Smith v. Everett, 6 Ark. App. 337, 642 S.W.2d 320 (1982), it had not considered the evidence submitted by the employer with its letter of appeal to the Board.
In its first point for reversal, the appellant alleges the Board acted in a manner contrary to law by failing to order a hearing to receive new evidence proffered by the employer when it filed its appeal with the Board. Appellant relies upon previous cases decided by this Court which have “zealously protected the right of each party to the proceedings to notice of the other party’s evidence and a fair opportunity to rebut the evidence of the other party,” citing Mark Smith v. Everett, supra; Clay v. Everett, 4 Ark. App. 122, 628 S.W.2d 339 (1982); Ireland v. Daniels, 2 Ark. App. 44, 616 S.W.2d 33 (1981); and Brown Jordan v. Dukes, 269 Ark. 581, 600 S.W.2d 21 (Ark. App. 1980). However, these cases are distinguishable because the appellants were denied the opportunity to cross-examine witnesses or to rebut evidence against them because the adverse witnesses did not appear at the hearings.
In Mark Smith v. Everett, supra, the claimant appeared at the hearing. The employer was not represented, but presented testimony by affidavit. This Court reversed a decision adverse to the claimant and remanded to give the claimant an opportunity to submit evidence to rebut that contained in his employer’s affidavit.
In Clay v. Everett, supra, the claimant appeared at a hearing at which the employer was not represented and testified, without prior notice to the employer, that she had quit her job because of her supervisor’s sexual advances and harassment. The Appeal Tribunal awarded benefits to the claimant based upon that testimony. The employer wrote a letter to the Board of Review appealing the decision, and the Board relied upon that letter to reverse the Appeal Tribunal and deny benefits. This Court remanded to the Board and ordered that further evidence be taken because the employer had no notice that the claimant would allege sexual harassment and the claimant had no opportunity to cross-examine the employer based upon the letter he submitted to the Board.
In Ireland v. Daniels, supra, the employee’s claim was denied because the Agency found that she had quit her job because of illness without attempting to preserve her job rights. The claimant testified at the hearing that she had not quit her job, at all, but had been terminated while she was recuperating from a heart attack. The claimant asked the referee to contact her employer to verify that she had been discharged, but the referee refused. This Court reversed and ordered that the claimant be awarded benefits because all evidence was that she had been discharged.
In Brown Jordan v. Dukes, supra, the claimant was denied benefits for alleged misconduct in connection with the work. At the hearing, the claimant appeared along with other employees who testified that the claimant had not committed the act for which he was fired. Although his supervisor’s written statement was introduced into evidence, the supervisor did not appear. The Appeal Tribunal found the claimant ineligible for benefits. He submitted to the Board of Review a written statement from another employee who was allegedly a party to the misconduct, absolving the claimant of any wrong-doing. That statement apparently was the basis for the Board’s reversing the Appeal Tribunal and awarding the claimant benefits. This court reversed and remanded for additional evidence.
The instant case presents a very different set of facts than the cases on which appellant relies because here, the employer was represented at the hearing and had ample opportunity to cross-examine the claimant and to rebut her testimony. In fact, the appellant had three representatives at the hearing, each with a personal knowledge of the claimant and of the circumstances surrounding her dismissal. None of the employer’s representatives refuted the claimant’s statements or asked the referee for additional time either to check their records or to submit their records to the referee. The appellant offered no additional evidence until it appealed the adverse decision to the Board of Review. Although it is within the discretion of the Board of Review to direct that additional evidence be taken, Ark. Stat. Ann. § 81-1107 (d) (3) (Supp. 1983), nothing in the law requires a second hearing so long as each side has notice of and a fair opportunity to rebut the evidence of the other party. See Brown Jordan v. Dukes, supra. See also Mark Smith v. Everett, supra.
For its second point for reversal, appellant contends the decision of the Board is not supported by substantial evidence and must therefore be reversed. Appellant contends that the testimony was undisputed that the claimant was discharged for misconduct in connection with the work within § 5 (b) (1), and that as a consequence, she is ineligible for benefits. The testimony was undisputed that the claimant left her post without permission in order to go to the restroom. The claimant submitted medical evidence at the hearing that surgery which had been performed on her could result in her having to urinate more frequently than usual. The claimant testified that she was physically unable to take the time to get permission to leave her line. She also testified that she had been warned about leaving without permission, that the line was down when she left, and that when the line was down, the employees were free to leave their places without permission. All of that testimony was unchallenged by the three employer representatives who attended the hearing. Although Acre elaborated on the precise rule, he admitted that when the line was down, the employees could work out among themselves a schedule for going to the restroom or getting drinks of water.
Whether the findings of the Board of Review are supported by substantial evidence is a question of law; this Court will reverse when the Board’s findings are not supported by substantial evidence. St. Vincent Infirmary v. Arkansas Employment Security Division, 271 Ark. 654, 609 S.W.2d 675 (Ark. App. 1980). 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 of Review. Olson v. Everett, 8 Ark. App. 230, 650 S.W.2d 247 (1983); Arlington Hotel v. Employment Security Division, 3 Ark. App. 281, 625 S.W.2d 551 (1981). This Court will determine whether the Board could reasonably reach its results upon the evidence before it, but will not replace its judgment for that of the Board even though the Court might have reached a different conclusion based upon the same evidence the Board considered. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 943 (1978).
We find that substantial evidence supports the Board’s finding that the claimant was discharged for reasons other than misconduct in connection with the work and the Board’s award of benefits. We affirm.
Affirmed.
Cooper, J., agrees.
Mayfield, C.J., concurs. | [
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John B. Robbins, Judge.
Appellant Archie M. Donald was convicted of third-degree battery in West Memphis Municipal Court on May 4,1988. He was sentenced to one year in jail, fined $1000.00, and ordered to pay court costs, and he appealed the conviction to Crittenden County Circuit Court. On June 17, 2002, Mr. Donald filed a motion to dismiss the third-degree battery conviction, arguing that he had yet to be brought to trial and that such delay constituted a violation of his right to a speedy trial. On July 15, 2002, the Crittenden County Circuit Court entered an order “setting aside affirmance of lower court judgment and dismissal.” In its order, the trial court ruled that further prosecution of the case was barred by speedy trial rules and vacated the jail sentence imposed against Mr. Donald. The trial court also made the following ruling:
The Court declines to order refund of fine and costs in this case given that defendant, Archie Donald, at no time appealed from or took any other action as relates to this pending municipal appeal until the year 2002, after defendant, Archie Donald, had paid the fine and costs levied by both courts in connection with his incarceration on another charge several months ago, thereby rendering the issues as relates to fine and costs moot by virtue of payment and waiver[.]
On August 2, 2002, Mr. Donald filed a timely notice of appeal from the trial court’s July 15, 2002, order. On the same day, Mr. Donald filed a “motion for new hearing, or in the alternative, motion for reconsideration.” In this motion, Mr. Donald alleged that he was arrested on March 30, 2000, for a speeding violation, and was required to pay a fine of $1099.35 relating to his 1988 conviction before being released from custody. Mr. Donald asserted that due to the speedy trial violation the fine was improperly imposed, and requested that the trial court enter an order directing the county clerk to refund his payment. On August 8, 2002, the trial court denied this motion.
Mr. Donald now appeals to this court, arguing that the circuit court erred by refusing to refund his payment of the fine and costs. He again asserts that he was required to pay the fine in March 2000 before being released from jail for a speeding violation, and contends that since the prosecutor and judge knew at the time that the time for speedy trial had elapsed, their actions were malicious and illegal. Mr. Donald asserts that he has been deprived of property without due process of law in violation of his Fifth Amendment rights. He further argues that he is entitled to a refund pursuant to Ark. Code Ann. § 16-96-509 (1987), which provides, “If judgment is rendered for the defendant, any money paid into the circuit court which has been collected from the defendant on the original judgment shall be forthwith returned to the defendant.”
We agree that the trial court erred to the extent it held that Mr. Donald was not entitled to a refund of any money previously paid into the circuit court on the judgment. The trial court acknowledged in its order that Mr. Donald paid the fine and costs related to his 1988 conviction in municipal court, and yet found that he was not entitled to repayment. This finding was contrary to the plain language of the applicable statute. The trial court’s order of dismissal set aside the 1988 conviction, and constituted a “judgment rendered for the defendant” under Ark. Code Ann. § 16-96-509 (1987). As such, pursuant to the statute, any money paid by Mr. Donald into the circuit court that was collected on the original judgment should have been forthwith returned to him.
We affirm the trial court’s order to the extent that it vacates appellant’s 1988 third-degree battery conviction. However, we reverse the trial court’s finding that Mr. Donald is not entitled to a refund for money paid to the circuit court that was collected from Mr. Donald on the original judgment.
Affirmed in part; reversed in part.
Pittman and Roaf, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant in this unemployment-compensation case filed a claim for benefits. After a hearing, the Board of Review found that she voluntarily left her last employment without good cause connected with the work, and was thus disqualified for benefits pursuant to Ark. Code Ann. § ll-10-513(a)(l) (Supp. 2003). Appellant filed a timely appeal with this court. We affirm.
The Board concluded its opinion by stating that “[t]he claimant is denied benefits until, subsequent to filing the claim, the claimant has had at least thirty days of employment covered by an unemployment compensation law of this state, another state, or the United States.” See Ark. Code Ann. § ll-10-513(a)(3) (Supp. 2003). Appellant filed a petition for judicial review with this court quoting the above-mentioned language from the Board’s opinion and stating that:
I Gloria D. Allen have been employed with Employment Solution, 2900 Horizon Dr., Suite 18, Bryant, Arkansas Telephone (501) 847-5800 since April 22, 2003. I have had thirty days of employment covered by an unemployment compensation law of this State.
Notably, appellant does not assert that the Board’s decision was wrong, and therefore there is no question before us regarding the sufficiency of the evidence to support the Board’s decision. See Ark. Code Ann. § ll-10-529(a)(2)(A) (Supp. 2003). Instead, she asserts that certain facts occurred subsequent to the hearing before the Appeal Tribunal and appears to suggest that, by the terms of the Board’s decision, these subsequent facts (which she never attempted to present to the Board) entitle her to benefits. However, we cannot grant appellant the relief she seeks because her argument depends upon facts not in evidence that were presented for the first time in her petition for judicial review. Pursuant to Ark. Code Ann. § ll-10-529(c)(2)(A) (Supp. 2003), we are precluded from receiving additional evidence on appeal. Nor could we remand for the Board of Review to reopen its decision, even on a showing of good cause. This question was presented in Arkansas Employment Security Dep’t v. Mellon, 322 Ark. 715, 910 S.W.2d 699 (1995), where our supreme court said that:
[Section] ll-10-524(c) provides the Appeal Tribunal may reopen a decision upon a showing of good cause. But that procedure does not apply to the next tier of appellate review before the Board of Review. At that stage, there is no statutory provision for reopening a decision, but only a provision for judicial review:
The decision [of the Board of Review] shall be final unless within twenty (20) days after the mailing of notice thereof to the party’s last known address, or, in the absence of the mailing, within twenty (20) days after the delivery of the notice, a proceeding for judicial review is initiated pursuant to § 11 — 10— 529.
Ark. Code Ann. § 11-10-525 (1987). The letter received by the Board of Review on the twentieth day from its decision was a request for still another hearing based on allegations of good cause for missing the January 18, 1994 hearing. That is a remedy which the employment security statutes simply do not provide at the Board of Review level.
Arkansas Employment Security Dep’t v. Mellon, 322 Ark. at 718-19, 910 S.W.2d at 701. Because appellant does not challenge the correctness of the Board’s decision, and because we lack the authority to grant the relief she requests by reopening the Board’s decision for additional evidence, we must affirm.
Affirmed.
Hart, Gladwin, and Bird, JJ., agree.
Robbins and Griffen, JJ., concur. | [
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BIRD, Judge.
The Director of the Alcohol Beverage Control Division denied private-club permits to Chili’s of Jonesboro, Inc., and Outback Steakhouse of Jonesboro, Inc., both of which wished to locate in Jonesboro. The restaurants appealed to the Alcohol Beverage Control Board where the hearings on the applications were consolidated, with the evidence relating to one of the applications relating to both. The Board denied the permits, finding that issuing the permits was not in the public interest of Jonesboro citizens because of the strong opposition to the clubs, that the restaurants would not be operated for a private-club purpose, that the intersection near the proposed site was dangerous, and that Craighead County was a dry county. On appeal to the circuit court, the Board’s decision was affirmed and the restaurants now appeal, contending that the decision of the Board was not supported by substantial evidence. Because we find that the Board’s decision is supported by substantial evidence, we affirm.
On appeal, our review is directed, not toward the circuit court, but rather toward the decision of the agency. Arkansas State Hwy. & Transp. Dep’t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996). The decision of the Board should be upheld if it is supported by substantial evidence and is not arbitrary, capricious, or characterized by an abuse of discretion. Department of Fin. & Admin. v. Samuhel, 51 Ark. App. 76, 909 S.W.2d 656 (1995). An administrative decision should be reversed as arbitrary and capricious only when it is not supportable on any rational basis, not simply because the reviewing court would have acted differently. McKinley v. Arkansas Dep’t. of Human Servs., 311 Ark. 382, 844 S.W.2d 366 (1993). Determining whether the Board’s decision was arbitrary or capricious involves a limited inquiry into whether it acted with willful and unreasoning disregard of the facts and circumstances of the case. Fontana v. Gunter, 11 Ark. App. 214, 669 S.W.2d 487 (1984).
The reviewing court is to give the evidence its strongest probative force in favor of the agency’s ruling. State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). The question on review is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. Fontana, supra. The reviewing court cannot 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; and the question of whether the Board’s action was arbitrary or capricious is only applicable when the decision is not supported by any rational basis and is made in disregard of the facts and circumstances. Id. A reviewing court may not set aside a Board?s decision unless it cannot conscientiously find from a review of the entire record that the evidence supporting the decision is substantial. Id. To establish an absence of substantial evidence it must be demonstrated that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Kidder, supra.
The burden is on the applicant to show that he is “qualified” to hold the permit and that issuance of the permit is “in the public interest,” whereupon the Board “may” issue the permit. Arkansas Beverage Control Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1982). The threshold question that must be considered by the Board is whether the private-club applicant will be “qualified”; thus, necessarily it must be determined whether the proposed club will meet the definition of a private club. In order to qualify as a private club, a nonprofit corporation must be established for a recreational, social, patriotic, political, national, benevolent, athletic, or other nonprofit purpose other than the consumption of alcoholic beverages. See Ark. Code Ann. § 3-9-202(10) (Repl. 1996). Bruce Attinger, a joint venturer associated with Outback, testified that the common purpose of the private-club members would be “[sjocial eatery, I guess, enjoying food, and camaraderie.” Additionally, Kim Williams, senior development manager for Brinker International, the holding company for Chili’s restaurants, testified that the employees of Chili’s restaurants are permitted to choose a charity that the restaurant will support in the local community, and that, statewide, Chili’s restaurants serve as drop-off points for the Toys for Tots program. Bruce Attinger testified that Outback’s local partner selects a local charity to support and that Outback was very involved on the national level with the Boys and Girls Club, hosting fundraising dinners.
In King, supra, the supreme court affirmed the denial of a private-club permit because the private club did not meet the requisite statutory purpose. The purpose of that club was described in testimony as “[a] social gathering for people to come to, to enjoy food with a drink . . Id. The Board found that “[t]he proposed club . . . would have no other purpose other than the consumption of alcoholic beverages.” In King, the club argued that because its private-club charter recited the words of the statute as to the required purpose, the requisite purpose element of Ark. Code Ann. § 3-9-202(10) had been met. The supreme court disagreed, stating that “if we should hold that the mere compliance with the statute for the existence of the charter was sufficient to entitle the applicant to a mixed drink permit, then the Board has no discretionary powers and, therefore there is no need for the Board.” Id.
In the present case, appellants are making essentially the same argument that was made by the applicant in King. It is appellants’ contention that because the clubs would be created for the purpose of providing a social eatery, where its members could enjoy food and camaraderie, and because the clubs would be a nonprofit corporation whose employees would be civically involved through charitable donations, then the requisite purpose is met. Consistent with the supreme court’s holding in King, we reject “social eatery, enjoying food, and camaraderie” as a private-club purpose that complies with the requirements of Ark. Code Ann. § 3-9-202(10) (Repl. 1996).
We reject as well the appellants’ contention that its charitable contributions constitute a qualified purpose within the meaning of Ark. Code Ann. § 3-9-202(10). We note that the testimony of Kim Williams only established that the employees of Chili’s restaurant would be permitted to select a local charity to which the restaurant would contribute. We further note that the testimony of Bruce Attinger only established that Outback’s local partner would be permitted to select a local charity to which the restaurant would contribute. There was no testimony that the employees of Chili’s or the local partner of Outback, who would be making these charitable selections, would be members of the private clubs. Although this evidence establishes that Chili’s and Outback’s are actively involved in local charities, it fails to establish that the private-club entities, separate and apart from the restaurants, would be engaged in any charitable activities selected by the club members.
The appellants argue that it is speculative to determine whether an entity could lawfully operate as a private club before they are given the opportunity to do so and that such speculation is evidence of arbitrary and capricious action by the Board. We do not agree. To lawfully operate as a private club, the requirements of section 3-9-202(10), inter alia, must be met. It is neither arbitrary nor capricious for the Board to determine, before it issues a private-club permit, whether the club’s operation will fulfill a lawful purpose under section 3-9-202(10).
The appellants further argue that the private-club portion of the businesses would not operate at a profit. Pursuant to the reasoning of King, the mere fact that the entities responsible for the nonprofit affairs of the restaurants have been incorporated under the non-profit laws and will not operate at a profit does not necessarily entitle the restaurants to a private-club permit. Mere compliance with the statute’s mandate that a private club be a nonprofit corporation does not diminish the Board’s discretion to determine whether the nonprofit entity is designed for a private-club purpose. See King, supra.
Even if the Board had concluded that appellants had satisfied the “purpose” requirements of section 3-9-202(10), there is substantial evidence to support the Board’s decision to deny a private-club permit to appellant. There was evidence that the intersection of State Highways 49 and 63 near the proposed private-club site was dangerous, that there had already been thirty-eight automobile accidents at the intersection during 1999, that the intersection was confusing and drivers frequently entered upon the highway driving in the wrong direction, and that the traffic in the intersection was already congested as the result of a nearby Wal-Mart store. This is substantial evidence that supports the Board’s decision to deny appellants’ application for a private-club permit.
Because there was substantial evidence that the entities seeking the private-club permits were not qualified under Ark. Code Ann. § 3-9-202(10), and because the decision was not arbitrary or capricious, we affirm.
Affirmed.
Griffen, J., and Hays, Special Judge, agree. | [
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Wendell L. Griffen, Judge.
This case arises from a decision of the Arkansas Board of Review of the Employment Security Department (ESD), denying unemployment benefits to appellant, Darold L. Maxfield. On appeal, appellant argues that the Board’s decision denying unemployment benefits was not supported by substantial evidence and was contrary to the law. We agree; accordingly we reverse and remand so that the Board can enter an order that the unemployment benefits be paid.
Appellant filed a claim for unemployment benefits on September 4, 2002. His last employer was Cintas Corporation (Cin-tas). The ESD reviewed the case and disqualified appellant, finding that he had been discharged from his job for misconduct in connection with his work on account of dishonesty. Appellant then filed an appeal with the Appeal Tribunal on October 8, 2002. A telephone hearing took place on November 20, 2002. The Appeal Tribunal issued its decision on November 21, 2002, modifying the initial ESD determination inasmuch as appellant had not been discharged for dishonesty, but for misconduct in connection with his work. Benefits were denied for eight weeks. Appellant next filed an appeal with the Board of Review on December 3, 2002. The Board rendered its decision on January 30, 2003, affirming the Appeal Tribunal, holding that appellant had been discharged from his last work for misconduct connected with the work pursuant to Ark. Code Ann. § ll-10-514(a)(l).
■ The Appeal Tribunal’s hearing officer received the following evidence on November 20, 2002. Randy Lewis, General Manager at Cintas, testified that appellant had been hired in 1999 as a telesales partner, and that Cintas fired appellant on August 30, 2002. Specifically, Lewis testified that appellant called him in the morning of August 19, 2002, to inform him that he had been ordered to military duty that same day as well as Tuesday (August 20) and Friday (August 23) of that week. Lewis stated that appellant said he had not known about the order to report for duty until the Saturday before August 19. Lewis told appellant to fax his orders and that they would complete his leave-of-absence paper work on Wednesday, August 21. Appellant faxed the orders as instructed. Lewis also testified that he and appellant completed two leave-of-absence forms on August 21, for the previous Monday and Tuesday as well as for the following Friday.
According to Lewis, appellant worked at Cintas that Wednesday and Thursday and was out again that Friday. The next Monday afternoon, on August 26, 2002, Lewis received the payroll sheets for the sales department in which appellant worked. The employee handing the payroll sheets to Lewis alerted him to the fact that appellant “was out sick two days last week on August 19th and 20th, and he had a vacation day on August 23rd.” Lewis investigated the matter and found out that appellant had called the payroll clerk, another employee, on the afternoon of August 21 — the same Wednesday Lewis and appellant had filled out the leave-of-absence forms — and that appellant told the payroll clerk that he had been out sick that Monday and Tuesday and that he was taking a vacation day that Friday. The payroll clerk also informed Lewis that appellant had signed the payroll as prepared by the payroll clerk, reflecting the sick days and the vacation day, and sent the payroll to Lewis’s office manager.
At that point, Lewis suspended appellant and informed him of a pending investigation. Lewis testified that company policy requires that employees always request sick pay or vacation pay from their direct supervisors — in appellant’s case, from Lewis. Lewis considered appellant’s act one of dishonesty because he thought appellant had gone “around the system instead of going to your direct supervisor.” Lewis also deemed the act to be one of “gross misconduct” and a “policy violation.” Lewis stated that appellant knew the policies because he had been a supervisor at their company in the past. Soon after, Cintas terminated appellant’s employment.
Lewis further testified that company policy as to military leave required them to prepare leave-of-absence forms. He admitted that employees can choose to use vacation days or sick pay for military leave, but that they had never used sick pay in appellant’s case. Appellant had used vacation time for previous military leave. Lewis stressed that employees can request the use of vacation time for military leave, but that they have to do so in advance. He also stated that he would have had no problem if appellant had requested vacation time for the military leave on the Friday of the week in question, but that he had not done so.
Rick Johnson, the human resources manager for Cintas, also testified regarding the company’s sick and vacation leave policies. He stated that emergency leave and sick leave were considered the same thing. Such leave could be obtained not just for actual sickness, but also for family emergencies requiring the employee to seek leave. Johnson also stated that they have never denied employees’ use of accrued sick or vacation leave for military leave purposes, in compliance with federal laws. Johnson reiterated that all appellant had to do was actually request using sick or vacation leave and they would have granted it. Johnson stressed that appellant failed to do so, even though he knew the policy.
Appellant testified that he had been a telesale partner at Cintas from 1999 to the date of his employment termination. Appellant stated that he informed his supervisor, Lewis, of the emergency duty the Monday morning of the week in question and that he sent him the order by fax. He confirmed that he and Lewis met that Wednesday to complete military-leave-request forms. Concerning vacation requests, he testified that he had to make such requests to be forwarded to his supervisor for approval. However, he also testified that Lewis’s office manager directed him to talk directly to the payroll clerk. Appellant testified that he informed the payroll clerk that he wanted to use sick time for the Monday and Tuesday military service of that week, but that he wanted to use vacation time for the Friday military leave.
According to appellant, later the payroll clerk requested that he sign the payroll sheet prepared by her, as part of a “new policy.” Appellant stated that he had not been told that he had to take the payroll forms to his supervisor prior to giving them back to the payroll clerk. Appellant then stated that Lewis informed him that he was upset because appellant had used military leave as well as company leave. Appellant emphasized in his testimony that he had a right to use his accrued time for military leave purposes. He denies that he bypassed Lewis as his direct supervisor and that he incorrectly claimed sick and vacation time, because he had met with Lewis as early as he could to fill out leave-of-absence forms and because his “military leave” stated that he could use vacation or sick time to cover that time. Appellant also stated that Cintas did not pay him for military time.
Analysis
Our scope of appellate review in cases such as this is well-settled: On appeal, the findings of the Board of Review are conclusive if
they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Even when there is evidence upon which the Board might have reached a different decision, the scope ofjudicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.
E.g., Fleming v. Director, Ark. Emp. Sec. Dep’t, 73 Ark. App. 86, 88, 40 S.W.3d 820, 822 (2001); see also Ark. Code Ann. § 11-10-529(c)(1) (Repl. 2002) (stating that the Board’s findings are conclusive, absent of fraud, if supported by evidence). We further note that the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Niece v. Director, Ark. Emp. Sec. Dep’t, 67 Ark. App. 109, 992 S.W.2d 169 (1999).
Arkansas Code Annotated section 11-10-514(a)(l) (Repl. 2002) provides that an individual “shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work.” The employer has the burden of proving misconduct by a preponderance of the evidence. Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983). Misconduct is defined as: (1) disregard of the employer’s interests; (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; (4) disregard of the employee’s duties and obligations to the employer. Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981). There is an element of intent associated with a determination of misconduct on the part of the employee. Oliver v. Director, Ark. Emp. Sec. Dep’t, 80 Ark. App. 275, 94 S.W.3d 362 (2002). Therefore, mere unsatisfactory conduct, ordinary negligence, or good faith errors in judgment or discretion are not considered misconduct unless they are of such a degree or recurrence as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. Niece v. Director, Ark. Emp. Sec. Dep’t, supra. Whether an employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question to be decided by the Board. Id.
In this case, we hold that the Board of Review’s decision to deny unemployment benefits based on a finding of appellant’s misconduct in connection with the work is unsupported by substantial evidence. The testimony of Lewis and Johnson established that Cintas allows its employees to use accrued vacation or sick time for military leave. They also testified that appellant had used vacation time for military leave in the past. Lewis admitted that employees can request the use of vacation time for military leave. He admitted further that he would not have had any problem with appellant using accrued leave time for his military leave, if he had but requested such use in advance.
The only evidence to the effect that appellant actually had to obtain advance approval from his immediate supervisor came from Lewis and Johnson. Neither of the witnesses were able to produce any written company policy to that effect. Appellant, in his turn, denied knowing of that specific advance approval requirement. While we are mindful of our rule upon appeal to defer to the Board’s determination of witness credibility, we nonetheless note that the testimony of Lewis and Johnson demonstrates, at most, that appellant’s conduct in signing the payroll record was a mere misjudgment. There is no evidence that appellant acted intentionally, willfully, or with disregard for his employer’s interest. Our standard of review requires us to accept as substantial evidence such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Fleming v. Director, Ark. Emp. Sec. Dep’t, supra. We have found no relevant evidence in this case showing that appellant intentionally, willfully, or deceitfully acted with disregard for the employer’s interest.
Lewis and Johnson testified that employees could use accrued sick leave for military leave absences. Lewis and Johnson admitted that Cintas employees are free to use accrued time for sick leave, vacation time, and non-specific emergency leave. They also admitted that their employees are free to use that accrued time for military leave. Without any showing that Cintas’ interest was threatened, and despite the admission by Lewis that appellant made timely request for military leave and was entitled to use his sick-leave while on military leave, the Board of Review found that appellant’s conduct constituted an infraction of such a degree as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. See Niece v. Director, Ark. Emp. Sec. Dep’t, supra. Because mere unsatisfactory conduct, ordinary negligence, or good faith errors in judgment or discretion are not considered misconduct, Niece v. Director, Ark. Emp. Sec. Dep’t, supra, we would have to conclude that a one-time failure to seek advance approval for the use of accrued time — the use of which is the employee’s manifest right under company policy — is indeed illustrative of manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests.
We certainly cannot now say that non-compliance with existing company rules could never constitute intentional disregard of the employer’s interests. However, in the present case the employer failed to offer any, let alone substantial, evidence that would offer a valid basis for finding how appellant disregarded his employer’s interests when the employee sought the use of accrued time for military leave, where the employee had the right to do so, and where the employer knew that the employee had military leave, merely because he failed to seek direct, personal advance approval for one such use of accrued time. We are at a loss how any of this constitutes a disregard of the employer’s interests.
The employer also argues that because appellant at one point had been a supervisor, he knew that employees were required to request the use of accrued time in advance from their direct supervisors. There is no evidence to show us whether such a policy was in existence at the time appellant exercised supervisory functions.
Finally, we decide this case mindful that the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 App. U.S.C. Ann. §§ 501, et seq., obligates employers to protect the jobs of military reservists called to active duty. The federal law does not give workers a license to defy the interests and workplace rules of their employers. Where a worker attempts to fulfill his military service obligation and notifies the employer of the need to do so, we deem it more than slightly unhelpful that an employer would dismiss the employee for allegedly violating a policy that the employer does not introduce into the documentary record in the worker’s unemployment claim. Consequently, we reverse and remand with instructions to enter an order awarding benefits to appellant.
Reversed and remanded.
Neal and Crabtree, JJ., agree. | [
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John F. Stroud, Jr., Chief Judge.
In this one-brief appeal, appellants, Epoxyn Products, Inc., and its workers’ compensation insurance carrier, Lumbermen’s Mutual Casualty Company, appeal the Workers’ Compensation Commission’s grant of workers’ compensation benefits to appellee, Tim Padgett. On appeal, they contend, “The decision by the Full Commission that the appellee’s urine test results reflecting the presence of marijuana were insufficient to trigger the rebuttable presumption of an injury substantially occasioned by drug use is erroneous as a matter of law, and their finding of a compensable injury is not supported by substantial evidence.” We affirm the decision of the Commission.
On February 27, 2000, Padgett was severely burned on his arm while at work when he unclogged a pipe and some hot resin fell onto his arm. Fie admitted that when the injury occurred, he was not wearing a canvas sleeve, which would have kept the skin on his arm from being burned, and he said that he just was not using common sense. Fie also stated that prior to going to work that day, he had been with friends who were smoking marijuana. He said that he did not smoke any marijuana, but that he was in an enclosed garage with the friends while they were smoking. He said that he knew that he could get high from being in the closed room with his friends, and even though he opened the door, he still stayed in the garage and talked to his friends while they smoked the marijuana. Neither friend testified on Padgett’s behalf at the hearing.
After the accident, Padgett’s supervisor, Carl Head, took him to the hospital. Head testified that he noticed nothing unusual about Padgett’s behavior on the night of the accident that would indicate that he was intoxicated in any way. At the hospital, Padgett was given a urine drug test, and the results, which were confirmed using gas chromatography/mass spectrometry, tested positive for cannabinoids and the metabolites found in marijuana. However, prior to that test, Padgett had been given the medications Demerol and Compazine because of his severe pain. Furthermore, Padgett also testified that he took Depakote, an antiseizure medication, twice a day.
Deborah Williams, the Director of Laboratory Services at Baxter Regional Medical Center, testified by deposition that she had no reason to doubt the accuracy of Padgett’s drug test. She said that the testing lab should have been provided a list of medications that Padgett had taken, but she did not know what information they had received. She stated that Padgett’s chart indicated that he had been given medication prior to collection of the sample for the drug test. Williams stated that in her twenty-two years oflab work, she had not seen Compazine, Demerol, or Depakote cause a positive cannabinoids test, but that she could not say this with a reasonable degree of medical certainty because she was not a toxicologist. However, she did say that she was surprised that the test did not indicate a positive for one of the three other drugs.
Dr. Richard Burnett is the medical-review officer for appellant Epoxyn. He testified by deposition that he had seen Padgett’s drug test that indicated positive for cannabinoids and the metabolites found in marijuana. He said that although he was not a toxicologist, he did not believe that a person would have a positive drug test from inhaling second-hand smoke. He said that he did not know without researching the issue whether Depakote, Demerol, or Compazine would affect the drug test, but he did say that the hospital should not have administered the medications prior to collecting the urine sample for Padgett’s drug test.
In awarding Padgett workers’ compensation benefits, the Commission found
that claimant provided credible testimony of the circumstances surrounding his accident — the Commission finds that claimant sustained a compensable injury. Specifically, we find that claimant’s test was invalid and that the preponderance of the evidence simply fails to establish the presence of illegal drugs in claimant’s body at the time of his accident. Subsequently, because the test used by the hospital was invalid, the presumption that claimant’s injury was substantially occasioned by the illegal use of drugs never arose.
Appellants appeal, arguing that the Commission erred as a matter of law in finding that the rebuttable presumption had not been triggered by the positive drug test.
In workers’ compensation cases, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, affirming the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). On appeal, the issue for this court is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Geo Specialty, supra.
In Brown v. Alabama Electric Company, 60 Ark. App. 138, 141-42, 959 S.W.2d 753, 754 (1998); this court held:
A prima facie presumption existed under our prior workers’ compensation law that an injury did not result from intoxication of the injured employee while on duty. Ark. Code Ann. § 11-9-707(4) (1987). Act 796 of 1993 changed that presumption: Arkansas Code Annotated § ll-9-102(5)(B)(iv) (Repl. 1996) now reads in pertinent part:
“Compensable injury” does not include:
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(b) 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.
(c) Every employee is deemed by his performance .of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee’s body.
(d) 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.
See also Graham v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998). The employee has the burden of proving a compensable injury. Wentz v. Service Master, 75 Ark. App. 296, 57 S.W.3d 753 (2001). In Express Human Resources III v. Terry, 61 Ark. App. 258, 260-61, 968 S.W.2d 630, 632 (1998), this court noted:
Prior to the passage of Act 796 of 1993, it was the employer’s burden to prove that an employee’s accident was caused by intoxication or drug use.
. . . However, Act 796 shifted this burden of proof by requiring the employee to prove by a preponderance of the evidence that alcohol or drug use did not substantially occasion the injury, if alcohol or drags were found in his body after an accident.
It is the Commission’s responsibility to use its experience and expertise to translate medical testimony into findings of fact, and it is within the Commission’s province to accept or reject medical opinion and to determine its medical soundness and probative value. Williams v. Brown’s Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). Furthermore, it is the duty of the Commission to weigh the medical evidence and, if the evidence is in conflict, the resolution of such evidence is a question of fact for the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003).
In the present case, the Commission had before it a drug test that indicated that Padgett had tested positive for cannabinoids and marijuana metabolites. However, there was also testimony that Padgett was given pain medication prior to submitting a urine sample for testing, although there was no testimony that the improper procedure conclusively created a false positive on Padgett’s drug test. Nevertheless, we are bound by the Commission’s determination that the drug test was not credible evidence, and therefore the statutory presumption did not arise.
Not only do appellants argue that the statutory presumption was raised, they also contend that Padgett failed to rebut the presumption. However, due to our disposition on the first issue, it is not necessary to address this point of appeal because the statutory presumption never arose. We find that there is sufficient evidence to support the Commission’s award of benefits to Padgett.
Affirmed.
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J OHN E. JENNINGS, Judge.
The appellant, Ruby Jo Bellis, and appellee, Edward A. Bellis, are siblings, and this appeal arises out of their dispute over a music box, a family heirloom. The trial court found that the parties’ father had made an inter vivos gift of the box to appellee. For reversal, appellant contends that the trial court’s decision is not supported by the evidence. We disagree and affirm.
The music box in question was purchased by the parties’ grandparents in 1946. Their grandfather predeceased their grandmother, and when she died the box was.left to the parties’ father by will. No one disputes that it was understood by all in the family that it was their grandparents’ desire for the music box to pass to appel-lee, as the eldest and only son. The parties’ father died in a car accident in 1985, and he was followed in death by their mother in 1999. Appellee went to the family home to get the box shordy after their mother died, but found that appellant had removed it from the home. When appellant refused to relinquish the box to him, appel-lee filed this suit in replevin.
At trial, appellee testified that his father gave him the box in 1983, the same year that he had moved to North Carolina. Appellee said that he left the box in his parents’ home because he felt that it was secure there and because his mother enjoyed the box. Appellee introduced into evidence a copy of their father’s 1984 will, which contained the provision, “The trust estate shall be divided equally between all of my children except Edward A. Bellis III who shall receive a distribution from the trust estate which is $10,000.00 less than the other shares as I have heretofore made a gift of certain property to Edward A. Bellis III.” Appellee testified that the gift referred to in the will was the music box. He estimated that it had a present value of $25,000.
The parties’ sister, Elizabeth Ann Bellis Hanna, testified that, after their father died, her mother told her to come get a music box that her father wanted her to have because her father had given the music box in question to appellee. She explained that, like appellee, her sisters Mary and Harriet had been given music boxes by their father prior to his death and that she and appellant received boxes after his death. She said that the boxes she and her sisters received were small and worth less than the music box given to appellee, and she testified that the provision in their father’s will, leaving appellee $10,000 less in reference to a gift, was related to the music box in question. She stated that she and her sisters took their boxes but that appellee left his at the family home.
Another sister, Mary Dee Bellis, testified that it was always known that the music box was to go to appellee and that her father gave appellee the box sometime between 1983 and 1985. She said that her father told her that he had given appellee the box at the time her father gave her a music box. She also testified that she had had a discussion with her father about his leaving appellee less money in his will because he had given appellee the music box. The parties’ remaining sister, Stella Harriet Bellis Foster, testified that appellee owned the music box because their father had given it to him before he died. She said that she heard her father acknowledge that the box had been given to appellee and that their mother continued to acknowledge appellee’s ownership after their father’s death. She testified that appellee voluntarily allowed the box to remain in their parents’ home because their mother enjoyed it.
Kathy Elizabeth Gifford, their mother’s friend, testified that Mrs. Bellis had told her on numerous occasions that the music box belonged to appellee. Jack Smith also testified that, shortly before she died, Mrs. Bellis told him that he could not have the box because it belonged to appellee.
Appellant offered the testimony of Bridgett Province who had known Mrs. Bellis since 1990. She said that Mrs. Bellis told her at least a dozen times that the music box belonged to appellant. Ruby Reed, who had known Mrs. Bellis all of her life, testified that she had once asked Mrs. Bellis what she was going to do with the box and that Mrs. Bellis told her that it would belong to appellant when she was gone. Ms. Reed said that Mrs. Bellis told her that many times. Edna Gossage, a home health nurse who cared for Mrs. Bellis beginning in 1994, testified that Mrs. Bellis told her many times that she wanted appellant to have the music box when she died.
Appellant testified that she had no knowledge of her father giving the box to appellee. She said that she understood that appel-lee was supposed to inherit the box, but she said that her father had become disenchanted with appellee because he had moved out of state. Appellant did testify that she recalled her father saying that the music box had been given to appellee, but she said that her father took it back when appellee moved away. She testified that the provision in the will did not refer to the music box, but to a parcel of land their father had given appellee. Appellant testified that she began taking care of their mother in 1991 and that her mother told her sometime around 1996 that she could have the music box. Appellant said that her mother gave her the box during the last year of her life and that she removed the box from the home three days before her mother died.
In rebuttal, appellee testified that he had the right to take the music box any time he wanted. He said that he told his father that he would leave the box in the family home, but he said that he was not obligated to do so. Appellee said that the box was his property and that he left it at home for his mother’s enjoyment.
Arkansas law is clear that one seeking to sustain an inter vivos gift must prove 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. Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997). The test on appeal is not whether there is clear and convincing evidence to support the trial court’s findings, but it is whether we can say that the trial court’s findings are clearly erroneous. See Estate of Sabbs v. Cole, 57 Ark. App. 179, 944 S.W.2d 123 (1997). In our review, we will defer to the trial court’s evaluation of the credibility of the witnesses. See O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000).
On appeal, appellant stresses that the music box remained in the family home and contends that the trial court’s findings with regard to delivery and the donor’s release of dominion and control are clearly erroneous. We do not agree.
The rule with respect to delivery of gifts is less strictly applied to transactions between family members. Even so, delivery must occur for a gift to be effective. Chalmers v. Chalmers, 327 Ark. 141, 937 S.W.2d 171 (1997). The gravamen of delivery is a showing of an act or acts on the part of the putative donor displaying an intention or purpose to part with dominion over the object of the gift and to confer it on some other person. Bishop v. Bishop, 60 Ark. App. 164, 961 S.W.2d 770 (1998). The intention to give is not sufficient; there must be a delivery to consummate the gift and pass title. Gross v. Hoback, 187 Ark. 20, 58 S.W.2d 202 (1933). In this case, appellee testified that his father gave him the music box and that he had the right to take it away, but that he chose to leave it at home for safekeeping and for his mother’s enjoyment. The testimony of the parties’ sisters was just as unequivocal that their father had given the box to appellee and that they in turn had also received music boxes. Their father’s 1984 will reduced appellee’s share of the estate on account of a previous gift, and appellee and the parties’ sisters were in agreement that the music box was the gift referred to in the will. The trial court was entitled to credit the testimony of these witnesses that an actual, completed gift was made and to conclude that appellee simply left the music box with his parents, as was his prerogative to do. We cannot say that the court’s decision is clearly erroneous. See, e.g., Carlson, Adm’r v. Carlson, 224 Ark. 284, 273 S.W.2d 542 (1954). Accord Prater v. Frazier, 11 Ark. 249 (1850).
Affirmed.
Stroud, C.J., and Hart, J., agree. | [
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Neal, Judge.
Appellant, Duke Wholesale, Inc. (Duke), appeals from an award of summary judgment to appellees, Sharon Pitchford and Compass Bank, by the Saline County Chancery Court. Appellees filed suit seeking a declaratory judgment, arguing that title to a 1995 Chevrolet Camaro was in Pitchford’s name and that Duke be required to release the certificate of tide to Pitchford and Compass Bank. In their motion for summary judgment, appellees argued that Pitchford was a buyer in the ordinary course of business and as such, under Ark. Code Ann. § 4-9-307(a) (Repl. 1991), she took the car free of Duke’s security interest and that Compass Bank received the benefit of Pitchford’s protection under Ark. Code Ann. § 4-9-307(a). They also argued that Duke retained only a security interest in the proceeds from the sale of the car, but not the car itself. In his order granting summary judgment, the chancellor found there were no genuine issues of material fact and awarded Pitchford and Compass Bank attorneys’ fees and cost. We affirm the chancellor’s grant of summary judgment and reverse the award of attorneys’ fees and costs.
Appellant, Duke, is an automobile wholesaler. Compass Bank is an Alabama corporation and financier of automobiles. Duke sold and delivered a 1995 Chevrolet Camaro to Mike Woodall Auto Sales, Inc. d/b/a Mike Woodall Subaru (Woodall). In lieu of payment, Duke retained the certificate of title to the Camaro as security for payment of the purchase price of the car. In January of 1998, Woodall sold the Camaro to Pitchford for $11,900. Pitchford gave Woodall a $1,500 down payment and financed the remainder of the purchase price under a retail installment and security agreement that Woodall assigned to Compass Bank. In exchange for the contract and security agreement, Compass Bank paid Woodall the remainder of the purchase price. Woodall failed to pay Duke for the car and has since closed. On January 20, 1999, Compass requested that Duke release the certificate of title to Compass and Pitchford. Duke refused to relinquish title, alleging it had an interest superior to Compass Bank’s interest.
On March 30, 1999, appellees Compass Bank and Pitchford filed a complaint for declaratory judgement seeking a declaration that: (i) Duke sold and delivered to Woodall, or otherwise entrusted Woodall with possession of the automobile, (ii) at all times Duke was a merchant dealing in used automobiles, (iii) at all time relevant, Woodall was a merchant who dealt with new and used automobiles, and (iv) pursuant to Ark. Code Ann. § 4-2-403 (Repl. 1991), Woodall had the power and authority to transfer and convey all Duke’s right in the automobile to Pitchford. Pitchford and Compass Bank also sought a declaration that: (i) Duke was a merchant, (ii) Woodall was a merchant, (iii) Pitchford purchased the automobile from Woodall as a buyer in ordinary course, pursuant to Ark. Code Ann. § 4-1-201(9) (Repl. 1991), and (iv) that pursuant to Ark. Code Ann. § 4-9-307(1), Pitchford took the automobile free of any lien or interest created in favor of Duke by Woodall.
Appellees filed a motion for summary judgment on July 13, 1999. They asserted Pitchford was a buyer in the ordinary course of business, who took the Camaro free of Duke’s security interest and that Compass Bank was protected due to her protected status. They supported their motion with the affidavits of Lynn Boyles, Compass Bank’s Vice President, and Pitchford. Appellees also submitted the retail-installment contract and security agreement. Both Boyles and Pitchford stated they had no knowledge that the sale was in violation of Duke’s security interest. Duke responded to the motion alleging there were genuine issues of material fact with respect to Compass Bank’s rights. Duke questioned Compass Bank’s relationship with Woodall. Duke alleged that Compass Bank did not provide Pitchford purchase money, but merely purchased Pitchford’s loan from Woodall. Duke also counterclaimed for declaratory judgment, seeking that its Hen be declared the first Hen, that Compass Bank deHver all sums received under the installment sales contract, that their Hen be recorded on the certificate of tide, and that Duke be declared the owner of the retail-installment contract.
On November 15, 1999, Duke filed a supplemental response to the motion for summary judgment asserting (1) that Compass Bank and Woodall were closely connected and the close-connectedness doctrine prevented summary judgment in Compass Bank’s favor, (2) that the doctrine prevents Compass Bank from recovery, and (3) that there are genuine issues of material fact concerning the close-connectedness doctrine. Duke supported its response with the affidavit of Patrick CampbeH. Campbell stated he had been a sales manager at Woodall, and Compass Bank established the conditions for purchases based on the purchaser’s credit rating, type of car, and interest rate to be paid. He also stated that the contract was a printed form prepared by Compass Bank.
In his order filed August 22, 2000, the chanceHor found (1) no genuine issues of material fact, (2) that Duke delivered possession of the vehicle to WoodaH and was an entrustor of the vehicle, (3) that WoodaH was in the business of selHng vehicles of that kind, (4) that Pitchford was a buyer in the ordinary course of business and (5) that she purchased the vehicle in good faith and without knowledge of Duke’s interest. The chanceHor found that upon purchase, title passed to Pitchford and that Compass Bank’s rights were derived from Pitchford, not WoodaH. The chanceHor found the “close-connectedness” doctrine was inapplicable and had no relevance to the facts of the case. The chanceHor awarded Compass Bank $2,500 in attorneys’ fees and awarded Pitchford $1,000 in attorneys’ fees.
Summary judgment is appropriate when there is no genuine question of material fact to be Htigated. Watts v. St. Edward Mercy Med. Ctr., 74 Ark. App. 406, 49 S.W.3d 149 (2001). Once the moving party makes a prima facie showing of entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001) (quoting Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000)). On appellate review, we determine if 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. Wright v. City of Monticello, 345 Ark. 420, 47 S.W.3d 851 (2001). We view pleadings, affidavits, documents, and exhibits filed in support of a motion for summary judgment in the light most favorable to the nonmoving party. Tackett v. McDonald’s Corp., 68 Ark. App. 41, 3 S.W.3d 340 (1999). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Plant v. Wilbur, supra (quoting Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000)).
On appeal, Duke questions whether there is a genuine issue of material fact, which would indicate that its equitable vendor’s lien is superior to Compass Bank’s Hen on the retail-installment contract, created as a result of Woodall’s “close-connectedness” to Compass Bank, thereby imputing Woodall’s knowledge and conduct to Compass Bank. Duke rehes on Commercial Credit Co. v. Childs, 199 Ark. 1073, 137 S.W.2d 260 (1940), to support its argument that Woodall and Compass Bank were ciosely-connected. We decline to follow the holding of Commercial Credit Co. v. Childs, supra, as it is a pre-code case.
In order to resolve the conflict existing between the parties, we must proceed through a step-by-step analysis of each transaction using the current code. We begin with the transaction between Duke and Woodall. In the present case, Duke retained a security interest in the car it provided Woodall. Arkansas Code Annotated section 4-9-107(a) (Repl. 1991) provides that “a security interest is a ‘purchase money security interest’ (PMSI) to the extent that it is taken or retained by the seller of the collateral to secure all or part of its price.” See also Herringer v. Mercantile Bank, 315 Ark. 218, 866 S.W.2d 390 (1993). The facts indicate that Duke retained the certificate of title as security for payment of the purchase price of the car; therefore, under the current code, Duke had a PMSI in the car. The car is a good. Arkansas Code Annotated section 4-9-109(4) (Repl. 1991) states that “goods are inventory if they are held by a person who holds them for sale or lease.” Woodall was engaged in the business of selling cars; thus, Duke had a PMSI in inventory. Furthermore, a PMSI in inventory has “priority over a conflicting security interest in the same inventory and also has priority in identifiable cash proceeds . . . .” Ark. Code Ann. § 4-9-312(3) (Repl. 1991) (emphasis added).
We now move to the transaction between Woodall and Pitchford. A buyer in the ordinary course of business takes free of a security interest created by her seller even though the security interest is perfected and even though the buyer knows of its existence. Merchant & Planters Bank v. Phoenix Hous. Sys., 21 Ark. App. 153, 729 S.W.2d 433 (1987); see also Ark. Code Ann. § 4-9-307 (Repl. 1991). A buyer in the ordinary course of business is defined as “a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in the ordinary course from a person in the business of selling goods of that kind.” Ark. Code Ann. § 4-1-201(9) (Repl. 1991). The facts in this case indicate that Pitchford was a buyer in the ordinary course of business. She purchased the car in good faith and without notice of Duke’s interest. As stated earlier, Woodall was engaged in the business of selling cars; therefore, Pitchford purchased the car from someone in the business of selling goods of that kind. As a buyer in the ordinary course, Pitchford was afforded the protection of Ark. Code Ann. § 4-9-307 and took free of Duke’s security interest.
Pitchford gave Woodall a $1,500 down payment and Woodall financed the remainder of the purchase price using a retail-installment contract and security agreement. “A writing or writings which evidence both a monetary obligation and a security interest in . . . specific goods is considered chattel paper.” See Ark. Code Ann. § 4-9-105(b) (Supp. 1999). The retail-installment contract and security agreement are chattel paper.
Our code provides that “a security interest continues in collateral notwithstanding sale, exchange, or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds . . .” Ark. Code Ann. § 4-9-306(2) (Supp. 1999). Proceeds are defined as whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds. Ark. Code Ann. § 4-9-306(1) (Supp. 1999). The transaction between Woodall and Pitchford resulted in Duke having a security interest in the $1,500 down payment and the chattel paper.
Upon completing the transaction with Pitchford, Woodall assigned the installment contract and security agreement to Compass Bank, in exchange for Compass Bank paying Woodall the remainder of the purchase price. The contract and security agreement were chattel paper. Ark. Code Ann. § 4-9-308 (Repl. 1991) provides:
A purchaser of chattel paper or an instrument who gives new value and takes possession of it in the ordinary course of his business has priority over security interest in the chattel paper or instrument:
(b) Which is claimed merely as proceeds of inventory subject to a security interest (§ 4-9-306) even though he knows that the specific paper or instrument is subject to the security interest.
New value arises where a secured party (1) makes an advance, (2) incurs an obligation, or (3) releases a perfected security interest. Niedermeier v. Cent. Prod. Credit Ass’n, 300 Ark. 116, 111 S.W.2d 210 (1989). The new value in the present case was the payment of the remainder of the purchase price. Compass Bank, engaged in the business of financing cars, took possession of the chattel paper in the ordinary course of its business. Therefore, under section 4-9-308 Compass Bank had priority over Duke’s security interest.
The new value paid to Woodall by Compass Bank became a proceed of Duke’s original security interest. Duke’s PMSI attached to the funds received by Woodall. Compass Bank, as holder of the chattel paper, was entided to the certificate of tide.
We are of the opinion that there were no genuine issues of material fact. After careful review of the pleadings, affidavits, documents, and exhibits filed in support of the motion for summary judgment in a fight most favorable to Duke, we hold that reasonable men could not reach a different conclusion from that of the chancellor. The grant of summary judgment by the chancellor was proper.
Duke makes an issue of the fact that it was not allowed to complete discovery. This issue is without merit. The facts reveal that Compass Bank and Pitchford filed their initial complaint for declaratory judgment on March 30, 1999. They filed their motion for summary judgment on July 13, 1999. Duke filed a counterclaim for declaratory judgment on November 15, 1999. The chancellor entered his order granting summary judgment on August 22, 2000. Duke had over a year to initiate discovery; it simply failed to avail itself of the discovery process. We hold that Duke failed to do timely discovery; therefore, it waived discovery.
Duke also challenges the award of attorneys’ fees. Duke questions whether Ark. Code Ann. § 16-22-309 (Repl. 1999) applies, and if so, to what extent. Section 16-22-309(a)(l) (Repl. 1999) provides:
In any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court shall award an attorney’s fee in an amount not to exceed five thousand dollars ($5,000), or ten percent (10%) of the amount in controversy, whichever is less, to the prevailing party unless a voluntary dismissal is filed or the pleadings are amended as to any nonjusticiable issue within a reasonable time after the attorney or party fifing the dismissal or the amended pleadings knew, or reasonably should have known, that he would not prevail.
To obtain an attorney’s fee pursuant to section 16-22-309(a)(1), the prevailing party must show that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney. Chlanda v. Killebrew, 329 Ark. 39, 945 S.W.2d 940 (1997). Compass Bank has not shown a complete absence of a justiciable issue; therefore, we reverse the award of attorneys’ fees and cost.
Affirmed in part, reversed in part.
Pittman and Vaught, JJ., agree. | [
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George K. Cracraft, Judge.
The City of Fayetteville appeals from an order of the Workers’ Compensation Commission affirming the finding of the Administrative Law Judge that appellee has sustained permanent partial disability equal to 25% to the body as a whole. Appellant contends that the finding is not supported by substantial evidence and was the result of misapplication of the law. We do not agree.
At a hearing before the Administrative Law Judge it was stipulated that the appellee had received a compensable injury while in the employ of the appellant and that he had incurred at least a 10% functional impairment. The appellee contended that he has suffered wage loss disability in addition to his functional impairment.
After the injury a myelogram revealed a herniated disc and lumbar strain. Appellee was given a steroid injection and made remarkable symptomatic improvement without surgery. The doctor gave him a rating of 10% permanent disability to the body as a whole. He was released to his regular work the following month. There was testimony that the doctor had informed appellee when he returned to work that he should remain on light work duty for at least a year. Appellee testified that he had told the doctor that in view of the nature of his work this would be impossible. He stated that the doctor then told him to go back to his regular employment but to “be careful.”
Appellee’s job activities included lifting, standing, squatting, bending, kneeling, twisting, turning, and required moderate to heavy physical activity. The appellee testified that since his return to work he had lost strength in his back and his legs as a result of pain. He was unable to handle the air compressors, jackhammer, 90 pound bags of cement and sections of pipe as he had before his injury. He stated that he now requires the assistance of a helper in lifting objects. He stated that he could not tighten bolts as he had before, and that bending and shoveling affected him quickly. He had difficulty torquing clamps on water mains because of his pain and could not work in crouched positions on water mains for over twenty or thirty minutes at a time without resting. He testified that his additional rest breaks to get relief from pain and his physical limitations had affected his ability to complete his work on time. His pain was getting worse and he was concerned about not being able to carry his share of the workload with his crew. A supervisor testified that he would hesitate to assign some jobs to appellee because of his back problems and his having to “watch heavy lifting.”
Appellee was twenty-nine years old with a tenth grade education. He had formerly worked as a drill press operator, a delivery truck driver and in a power line construction crew. He was first employed by the City of Fayetteville as a laborer and at the time of his injury he was working foreman over a three man labor crew. After his injury he had returned to his job at the same wages and subsequently received, along with all other city employees, a 14% cost of living increase.
The Administrative Law Judge found that appellant had suffered wage loss disability in addition to the 10% functional loss and he had proved by a preponderance of the evidence that he had incurred permanent partial disability equal to 25% to the body as a whole. On appeal the Commission found that the Administrative Law Judge’s decision was supported by the preponderance of the evidence and affirmed his decision. This action by the Commission had the effect of adopting the findings and conclusions of the Administrative Law Judge as its own. Lybrand v. Ark. Oak Flooring, 266 Ark. 946, 588 S.W.2d 449 (1979).
On appellate review the decision of the Commission will be upheld if supported by substantial evidence. There is substantial evidence to uphold such an award if reasonable minds could have reached the same conclusion. This court reviews the evidence in the light most favorable to the findings of the Commission and gives the testimony its strongest probative value in favor of its order. Allen Canning Co. v. McReynolds, 5 Ark. App. 78, 632 S.W.2d 450 (1982).
It is well settled that a worker who sustains an injury to the body as a whole may be entitled to wage loss disability in addition to his anatomical loss. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). In determining the additional wage loss disability the Commission may take into consideration the worker’s age, education, work experience, medical evidence and other matters reasonably expected to affect the worker’s future earning power. A worker may be entitled to additional wage loss disability even though his wages remain the same or increase after the injury. Lion Oil Company v. Reeves, 221 Ark. 5, 254 S.W.2d 450 (1952).
Appellant contends, however, that in affirming the findings and conclusions of the Administrative Law Judge, the Commission considered factors which were improper in a determination of additional wage loss disability. He argues that the Commission shifted the burden to the appellant to produce “negative factors” which tend to diminish any wage loss disability instead of requiring the appellant to prove his disability factors. One conclusion of the Administrative Law Judge which was adopted by the Commission was as follows:
The Workers’ Compensation Commission in determining the amount of disability as opposed to functional impairment takes into consideration not only the claimant’s age, education and work experience, but other factors as well. Motivation to return to work, post-injury earnings, credibility, demeanor and a multiplicity of factors should be and are considered by the Law Judge in his determination.
His decision commented on the fact that appellee was found to be "highly believable, credible and one who is making a genuine and sincere effort in attempting to return to the work environment.” He found that the appellee had returned to full duties against the advice of his doctor, was attempting to perform many duties which he probably ought not perform and was doing everything possible to minimize the effects of his injury. He concluded, “[Tjhis basically translates that in my opinion there are not present any negative factors which would have a tendency to diminish a consideration of wage loss.”
Our reading of the Administrative Law Judge’s opinion does not lead us to the conclusion that the Commission was using his discussion of the absence of negative factors to reward appellee by giving him an unjustified additional wage loss disability, as contended by appellant. To the contrary we conclude that the Commission was saying that the absence of negative factors made appellee’s evidence of diminished earning capacity a more acceptable basis for its finding of fact. This is clear from the discussion by the Administrative Law Judge of recent opinions in which we upheld the Commission’s consideration of apparent negative attitudes on the part of some claimants to exploit full potential on entering the job market. We stated that a claimant’s lack of interest and negative attitude was an impediment to the Commission’s full assessment of a claimant’s loss and was a factor it could consider in determining that his wage loss was not as great as he stated it to be. Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). Here the Commission merely held that there was an absence of negative circumstances having a tendency to diminish those wage loss factors about which this appellee testified. It is clear to us that these factors were considered by the Commission, not in arriving at the amount of the award, but in determining whether the appellee had sustained his burden of proof that he had in fact sustained additional wage loss disability.
Although the Commission’s knowledge and experience is not evidence, once it has before it firm medical evidence of physical impairment and functional limitation it has the advantage of its own superior knowledge of industrial demands, limitations and requirements and can apply its knowledge and expertise in weighing the medical evidence of functional limitations together with other evidence of the manner in which the functional disability will affect the ability of an injured employee to obtain or hold a job and thereby arrive at reasonably accurate conclusions as to the extent of permanent partial disability as related to the body as a whole. Oller v. Champion Parts Rebuilders, supra; Rooney & Travelers Ins. Co. v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978). We find no error.
Glaze, J., agrees; Mayfield, C.J., concurs. | [
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Per Curiam.
Appellant’s court appointed attorney has filed a motion asking for an attorney’s fee for services rendered in the appeal of the above matter and we allow $450.00.
The decision in this case was rendered on September 21, 1983, and the motion for attorney’s fee was not filed until December 27,1983. It has been necessary for the court to find the briefs and review this matter in order to determine the fee.
In Cristee v. State, 4 Ark. App. 33, 627 S.W.2d 34 (1982), we said that motions for attorneys’ fees should be filed in this court in time for them to be considered at the time the case is considered on its merits. We now point out that failure to do this could prevent the allowance of an attorney’s fee. | [
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Tom Glaze, Judge.
In this Workers’ Compensation case, the Commission denied appellant’s claim for benefits. We do not reach appellant’s contention that the Commission’s findings and decision are not supported by substantial evidence because we reverse for another reason.
Appellee, Tyson Foods, initially accepted appellant’s claim that he suffered a compensable back injury. It later denied benefits after learning appellant had suffered a back injury before working for Tyson, but had applied for employment with Tyson without disclosing his prior in-j ury. Appellant subsequently filed his claim for benefits, but the administrative law judge, relying on Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232(1979), denied benefits, finding that appellant willfully misrepresented his physical condition, and that the misrepresentation was a substantial factor on which appellee relied in hiring appellant. The Commission reversed the judge’s decision, holding it had misapplied the Shippers Transport of Georgia v. Stepp decision and remanded the case for further proceedings on the entitlement of benefits issue.
At the second hearing before the law judge, appellant’s claim was again denied, but on this occasion the law judge considered two documents that had not previously been introduced into evidence. In fact, after the Judge conducted his final hearing in this case, he notified the parties that he intended to make the documents a part of the record and solicited their comments on the matter. In response, appellant objected, stating that the parties had agreed at the end of the last hearing that the record was complete; however, if the judge decided to admit the two documents into evidence, appellant requested a hearing to present additional evidence concerning them. The judge overruled appellant’s objection, including his request for a hearing. In support of his ruling, the judge reasoned that the Commission was not bound by technical or statutory rules of evidence and procedure, and besides, the documents had been in the Commission’s file for two years, readily available to both the appellant and appellee. Upon its de novo review, the Commission affirmed the law judge’s findings and denied appellant benefits.
The documents in question are a claim form and hospital insurance form; each has an “X” typed into a box indicating that appellant’s injury was not related to his job at Tyson Foods. In its argument, Tyson admits the documents are relevant to the work-relation issue but contends the law judge and Commission did not rely on those documents in their decisions. We simply cannot agree with that contention. Neither the judge nor the Commission indicated they did not consider the documents in denying benefits to appellant, and in fact, they indicated just the opposite. The Commission conducted a de novo review, and we must presume it considered all the evidence in the record. Also, as was the law judge’s, the Commission’s decision was based, at least in part, on the credibility (or lack thereof) of the appellant’s testimony. The documents clearly bore on that issue of credibility since the Commission apparently disbelieved appellant’s story that he suffered his back injury while employed at Tyson.
We agree, of course, that the compensation law provides that the Commission is not bound by technical rules of evidence or procedure, but may “conduct the hearing in a manner as will best ascertain the rights of the parties.” St. Paul Insurance Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980); and Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982); Ark. Stat. Ann. § 81-1327 (Repl. 1976). However, the fact-finders are expected to adhere to basic rules of fair play, such as recognizing the right of cross-examination and the necessity of having all the evidence in the record. St. Paul Insurance Co. v. Touzin, supra. Here, the appellant was effectively denied a hearing concerning the documents admitted and considered by the law judge and was thereby precluded from cross-examining the individuals who completed the two exhibits. It was only after the conclusion of the final hearing before the law judge that appellant was apprised that the two documents would be considered in the judge’s determination of appellant’s claim for benefits. Although these two exhibits had been in the Commission’s file, they had never been introduced or made a part of the record until the law judge’s belated decision to admit them.
In Potlatch Forests v. Funk, 239 Ark. 330, 389 S.W.2d 237 (1965), the Supreme Court upheld the admission of a doctor’s opinion letter, but it did so because the doctor subsequently appeared as a witness and the appellant was afforded the opportunity to cross-examine. In a later case, Browning’s Restaurant v. Kuykendall, 263 Ark. 374, 565 S.W.2d 33 (1978), the Court rejected appellant’s argument that the Commission erred in admitting into evidence a doctor’s letter written subsequent to the findings of the administrative law judge; however, it found no merit in appellant’s argument because the Commission specifically stated the doctor’s letter was disregarded for the purposes of arriving at its decision.
As we have previously noted, appellant was denied any opportunity to cross-examine or to be heard concerning the two relevant documents. The Commission did not indicate, nor can we assume, that it did not consider these documents in reaching its decision. Therefore, we reverse and remand this cause for further proceedings consistent with this opinion.
Reversed and remanded.
Cracraft and Cooper, JJ., agree. | [
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James R. Cooper, Judge.
The appellant, Kim (Bates) McKee, and the appellee, Michael Bates, were married in 1972 and lived together one day before they separated. One child, Patrick John Bates, was born of the marriage on January 29, 1973. They were divorced on October 5, 1973. Kim (Bates) McKee then married the appellant, Larry McKee, on February 11, 1974. One child, Charity, was born of this marriage. Patrick was in the sole custody of the appellants until January 8, 1979, when the appellants divorced. After their divorce, Kim McKee had custody of both children. Larry McKee supported both children during this period and visited the children on a regular basis. In October, 1980, both children went to live with Larry. Kim gave Larry custody of Charity and a Special Power of Attorney to authorize Larry to care for Patrick.
The appellee admittedly did not communicate with or support Patrick from 1973 through 1979. Although the appellee did see Patrick occasionally in 1980, he did not furnish any support. In 1981, the appellee did not see or support the child until October, when he filed a petition for change of custody. The appellants answered the petition and also filed a petition for adoption in probate court. Kim had given her written consent to Larry to adopt Patrick. The matters were combined for trial. On the day of trial, March 31, 1982, the appellants amended their petition to request that custody of Patrick be granted to Larry or, in the alternative, to Kim, should the adoption petition be denied. After hearing the evidence, the probate judge denied the adoption based on a finding that it would not be in the best interest of Patrick, but granted custody of the child to Larry, subject to reasonable visitation and child support payments by the appellee. The appellants appeal the denial of the petition for adoption. The appellee cross-appeals the denial of his custody petition.
For their first two points for reversal the appellants argue that the probate judge erred in denying the petition for adoption because they had proven by clear and convincing evidence that the appellee had failed, without justifiable cause, to support or communicate with the child, and thus the appellee’s consent was not required for the adoption. The appellants rely on Ark. Stat. Ann. § 56-207 (a) (2) (Supp. 1983), which provides:
Consent to adoption is not required of a parent of a child in the custody of another if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.
This statute will allow an adoption over the objections of a non-consenting parent, but only if all of the elements are proven by clear and convincing evidence. Since the probate judge determined that, considering the best interests of the child, the adoption should not be granted, he appears to have found it unnecessary to determine whether the appel-lee’s consent was necessary. Therefore, we need not address this issue. However, we note that even if the trial court had decided that the father’s consent was unnecessary, such a finding would not require that the adoption be granted. Before an adoption petition may be granted, the probate judge must find that the adoption is in the best interest of the child. See Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980). In this case, the probate judge found that, although the appellee had not supported or communicated with his son and by his conduct might deserve termination of his parental rights, he was unwilling to sever the appellee’s parental relationship with his son. The probate judge found that the child knew of his natural father and should have the opportunity to know his natural father. Therefore, it is evident that the trial court, after observing the parties, refused to grant the adoption because he believed to do so would not be in the child’s best interest, though he did grant custody to McKee.
In adoption proceedings, this Court reviews the record de novo, but we will not reverse the probate judge’s decision unless it is clearly erroneous or against a preponderance of the evidence, after giving due regard to his opportunity to determine the credibility of the witnesses. Rule 52, ARCP; Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981). After reviewing the evidence as required, we cannot say that the probate judge’s finding that the best interest of the child would be served by denying the adoption was clearly erroneous. As to the denial of the adoption, we affirm.
On cross-appeal, the appellee argues that the probate judge erred in granting custody of Patrick to Larry. The appellee contends that the probate judge applied the wrong burden of proof concerning custody and reversed the presumption that a child should be with his natural parent.
The paramount consideration in child custody cases must always be the welfare and best interest of the child. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Daniel v. Daniel, 244 Ark. 899, 428 S.W.2d 73 (1968). However, it should be noted that there is a preference for a parent above all other custodians. In Perkins & Diggs v. Perkins, 266 Ark. 957, 589 S.W.2d 588 (1979), this Court, citing Baker v. Durham, 95 Ark. 355 (1910), stated:
. . . [A]s between the parent and the grandparent, or anyone else, the law prefers the former unless the parent is incompetent or unfit, because of his or her poverty or depravity, to provide the physical comforts and moral training essential to the life and well being of the child. It must be an exceptional case where the evidence shows such lack of financial ability or such delinquencies in character on the part of the father as to imperil the present and future welfare of his child before a court of chancery will deprive him of the duty and privilege of maintaining and educating his child, and of the pleasure of its companionship. See Also: Wofford v. Clark, 82 Ark. 461 (1907).
After carefully reviewing the evidence, we cannot say that the probate judge’s decision is clearly erroneous or against a preponderance of the evidence. In Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981), this Court stated:
In cases involving child custody a heavier burden is cast upon the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony and the child’s best interest. This court has no such opportunity. We know of no case in which the superior position, ability and opportunity of the chancellor to observe the parties carry as great weight as one involving minor children, [citations omitted]
In the case at bar, the probate judge found thatalthough the appellee’s situation has improved, the father has not shown sufficient ability to care for his child. We do not find this statement to indicate that the trial court shifted the burden of proof to the appellee or that he ignored the presumption that a child should be with his natural parent. Instead, we find that this statement demonstrates that the trial court’s overriding concern was with the child’s best interest. There was a substantial amount of evidence that Patrick is happy and content in Larry’s custody. We cannot find that the trial court’s decision is clearly erroneous or against a preponderance of the evidence. Therefore, as to the cross-appeal, we must affirm. Rule 52, ARCP.
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George K. Cracraft, Judge.
Joy Barrett appeals from a determination by the Workers’ Compensation Commission that she had failed in her burden of proving that her disability due to mental illness arose out of and in the course of her employment with Arkansas Rehabilitation Services. She contends that the decision of the Commission is not supported by substantial evidence, that a contrary conclusion was supported by both the lay and medical evidence, and that the Commission erred in failing to resolve all reasonable doubts in favor of the appellant. We do not agree.
In Owens v. Nat’l Health Laboratories, Inc., 8 Ark. App. 92, 648 S.W.2d 829 (1983) we declared the appropriate standard for determining compensability of nontrauma-tically induced mental illness which is alleged to have resulted from the individual’s work. Where psychological injury results from nontraumatically induced events, the worker must show more than the ordinary day to day job stress to which all workers are subjected. We also pointed out that whether the stress was more than ordinary and the psychological injury was causally connected to it or aggravated by it were questions of fact for the Commission to determine.
On appellate review of Workers’ Compensation cases the evidence is viewed in the light most favorable to the findings of the Commission and given its strongest probative value in favor of its order. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. The extent of our inquiry is to determine if the finding of the Commission is supported by substantial evidence. Even where a preponderance of the evidence might indicate a contrary result we would affirm if reasonable minds could reach the Commission’s conclusion. Bankston v. Prime West Corp., 271 Ark. 727, 601 S.W.2d 586 (Ark. App. 1981); Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1970).
The appellant was a forty-four year old woman with a twenty year history of mental illness. She was employed by the appellee as a case worker from the fall of 1980 until the spring of 1982. On several occasions in 1981 and in early 1982 the appellant was hospitalized for physical problems as well as for mental depression. She was terminated from her employment in April 1982 and then filed a claim for workers’ compensation benefits contending that she had suffered a compensable mental inj ury as a result of job stress endured as a case worker for the appellee. She contended that as a case worker she was under tremendous job stress, that her job duties were overwhelming, that she appealed to the supervisors for assistance but received none, that her case load increased so much that she could not keep up with it, and as a direct result of job stress and pressure her previous mental illness was so aggravated as to become disabling. The appellee contended that the illness was not job connected, that any problems appellant had were a result of her longstanding mental illness, and that current problems were nothing more than a continuation of earlier ones.
The appellant testified that her job duties were endless. She was responsible for picking up the patients at the hospital and placing them into training or other rehabilitation programs. In addition she had twenty children with open places in their spines who required monthly care and she had to visit the children’s crippled service monthly and “purchase everything from diapers to wheelchairs.’’ She stated that during the first year she had less than fifty clients and that the cáse load increased thereafter to almost a hundred. She complained about the paper work which required her to fill out from ten to thirty forms per client per month and this required her to work at home for a couple of hours at night and to make her visits to her clients at night. She stated that she had never had a complaint that she had not provided the proper services.
Her complaints were also aimed at her supervisor. She testified that during the first year he would “cuss at the male counselors” and that she had never worked in a situation where this occurred. She stated that after the first year her supervisor began to criticize her for traveling too much and told her to stay in the office more. She stated that after she stayed in the office he told her she didn’t travel enough. She stated that one of the supervisors had handled guns around her and she thought that he was becoming irritated with her and starting to harass her. She stated that on one occasion her supervisors had made her job more difficult by transferring her secretary who had been a great help to her. She stated that there was a great deal of tension between co-employees and that this too was stressful. When her case load increased she had gone to her supervisors for help but had received none. While admitting to family and financial problems, she stated that the job stress was “95 to 97% more stressful than any family or financial stress. I got swamped at work with all the rules and regulations, I received no help, there was constant tension in the office and there was harassment.”
There was testimony from her supervisor that her case load did not increase during the period she worked for the rehabilitation service. He testified that her case load was no more than that of twelve other case workers employed by the service and that all other case workers had the same job duties as the appellant. He stated that appellant did complain to him after about a year that she felt her job was more than one person ought to be asked to do. He then tried to assist her in developing methods of doing her job more efficiently. In November of 1981 an assistant was assigned to appellant to get her caught up but this was “because the work had simply not been done, not that the work load was unmanageable.” Additionally he had been receiving complaints from appellant’s clients that services were not being performed. With regard to the reassignment of the secretary the supervisor testified that this was done at appellant’s request and that he had immediately given her the secretarial replacement she had requested. There was an immediate confict between the new secretary and the appellant and she wanted her former one back; that secretary refused to come back. There was other testimony tending to establish that the allegations of harassment and tension in the office existed only in appellant’s mind and this was a manifestation of her illness, rather than a cause of it.
From our review of the lay testimony, of which the recited portion is merely a part, we cannot say that reasonable minds could not conclude that the appellant’s job stress was no more than the ordinary stress to which all workers are subjected. Particularly is this apparent when her testimony and that of her co-workers is coupled with the evidence of her other emotional problems which existed during the first year of employment and which she initially told her doctors were causing her mental deterioration. In reviewing this testimony it is significant to note that both the appellant and her supervisors and co-workers testified that during the “first year” of her emplQyment (fall of 1980 to the fall of 1981) she encountered little difficulty with her j ob duties and that her expression of those difficulties began “after the first year.”
Appellant was hospitalized in June of 1981 and on several occasions after that and was seen by a number of doctors. In Dr. Simmons’ report he recited that she had a history of depression of varying severity which extended over a period of twenty years, that she had been depressed for most of the past three years, and a few months ago the depression began to increase. He concluded that it was “apparently aggravated significantly by her fifteen year old daughter moving out of her house to the home of her ex-husband. She felt very rejected by this move ... .” In an exhaustive history recited in Dr. Simmons’ report he noted a strong family history of depression. No mention was made in this report of any expression by the appellant of j ob stress in connection with her depression.
Dr. Simmons referred her to Dr. Glover who recited again the history of her mental problems but stated that she seemed to have functioned for the past several years without therapy until the last several months where increasing amounts of depressive symptoms occurred. He recited that “a couple of weeks ago when her fifteen year old daughter and she had an argument and her daughter moved out with her father this sort of finally brought her depression to its full flower.” Again there was no recitation in the history given the doctor of any job stress or emotional problems resulting from it.
During the period of hospitalization she was also seen by Dr. Howell, whose report also made no mention of job stress. The first mention of her job was contained in Dr. Johnson’s report which contained a statement that she “is currently working as a counselor for the rehabilitation services at Hot Springs. She does not find this job satisfying either intellectually, emotionally or physically.” A report made by Dr. Wanda Stephens in August 1981 also diagnosed her as having severe depressive neurosis but made no mention of appellant’s job or any claimed job stress.
The appellant was again hospitalized for several weeks during July of 1981 and the history and discharge summary failed to reveal any claim of job stress although the diagnosis remained the same. The appellant was again hospitalized in January 1982. The report of Dr. Stephens indicated that she had been having difficulty “functioning on the job and had been under a lot of pressure due to financial difficulties.” There was no mention of any complaints about job stress. She was hospitalized again in February and again complained of not being able to function on the job but made no mention of job stress. The appellant relies heavily upon the depositions of Dr. Granger, Dr. Wanda Stephens and Dr. Jackson as establishing that the job stress aggravated the mental condition. The testimony of medical experts is an aid to the Commission in its duty to resolve issues of fact. It has a duty to use its experience and expertise in translating that testimony into findings of fact. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 322 (1983). We cannot conclude that the Commission did not do so here or that reasonable minds could not conclude from the testimony of these doctors as a whole that they were not using the word “aggravation” in the legal sense in which our cases impose liability.
Dr. Granger testified that he saw appellant for the first time during the February 1982 hospitalization at which time she stated that she had had problems with depression for over ten years and that on the third occasion he saw her she listed five problem areas that she was concerned about — bankruptcy, marriage failure, parenting failure with regard to her own children, friends that had let her down, and extensive job dissatisfaction. She had informed him that she was primarily upset about family relationships. With regard to job dissatisfaction, she expressed a distaste for the bureaucratic red tape and conflicts with her supervisor. The doctor stated, however, that from his observations of her he would expect her to have trouble with “interpersonal relationships among her co-workers.” He clearly stated that his opinion as to aggravation of the condition was based on having seen her and having obtained the information from her.
Dr. Stephens had stated that the condition was aggravated by her work but she also testified “while I’m not saying her work was strenuous, her condition did cause the work to become strenuous. While it is possible any kind of work would have aggravated Ms. Barrett’s problem, her job was demanding. I think, toward the end of the time Ms. Barrett worked, her job did aggravate her condition. Initially I don’t think the job caused the symptoms but at the end the working did aggravate her symptoms. Her symptoms were compounded by the stress of her job, her visual problems, any alcohol or drugs she may have been using. Over a period of time her job did aggravate a preexisting condition but it wasn’t the cause. The workload toward the end of her job aggravated her condition.”
Dr. Jackson’s conclusions were also based upon what she had told him as to the conditions under which she worked.
According to the medical reports mentioned herein and others contained in the record during her first three periods of hospitalization appellant was diagnosed has having a serious mental problem which was considered by the doctors to have resulted from family and financial problems, her physical condition of hypoglycemia and complications resulting from a prior hysterectomy. She apparently did not mention during this period any connection of job stress with her illness. Her only mention of her job was an expression of dissatisfaction with it and the red tape involved. It was not until the hospitalization immediately before her termination that she made mention in her history of job stress. This was subsequent to a time when her illness had developed to such a point that one doctor had described it as a “feeling of inadequacy which caused her to blame her shortcomings and failures on others.” The job stress factors to which these doctors used the word “aggravation” were those factors furnished to them by the appellant. There was substantial testimony from lay witnesses that these factors did not in fact exist.
From our review of the record as a whole we cannot say that reasonable minds could not have reached the conclusion reached by the Commission in this case.
Affirmed.
Corbin and Cloninger, JJ., agree. | [
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John E. JENNINGS, Judge.
On January 6, 2000, the law office of Bethel and Cromwell in Fort Smith was burglarized. The fingerprints of Keith Allen King were found on a piece of glass broken out in order to gain entry to the office. Based on this information alone, an arrest warrant was issued, and on January 11, Gary Hulsey, a Fort Smith police officer, arrested King.
King was handcuffed and frisked for weapons and was told that he was being arrested on a warrant for burglary. He was not given Miranda warnings. When they reached the patrol car, King asked if he could smoke and Officer Hulsey agreed. When King pulled a pack of cigarettes from his pocket, Hulsey noticed that they were the same brand as those missing from the Bethel and Cromwell burglary and asked King if the cigarettes were from the Bethel and Cromwell law offices. King said that they were.
Officer Hulsey then asked King if he would like to go to the police department and talk about this, and King said he would. On the way to the police department, Officer Hulsey told him he was curious as to where he had been staying, and King directed him to a building. Other officers entered the building and found a nylon gym bag containing a variety of incriminating evidence, including burglary tools.
When they reached the police station, Officer Hulsey read King his Miranda rights. After acknowledging his rights, King confessed to having burglarized the Bethel and Cromwell law offices as well as five other buildings in the area.
Before trial, King moved to suppress evidence, including his full confession, on the basis that the arrest warrant was invalid as not being based on probable cause and on the ground that the police had elicited inculpatory statements from him before giving him the required Miranda warnings.
The trial court held that the warrant for arrest was valid, suppressed the contents of the nylon bag under Miranda v. Arizona, 384 U.S. 436 (1968), and held that King’s subsequent, Mirandized statement given at the police station was admissible under the rule of Oregon v. Elstad, 470 U.S. 298 (1985). King was subsequently tried and convicted on six counts of burglary and sentenced to six years on each count. The court ran the sentences consecutively.
For reversal, King contends that the trial court erred in its ruling on the motion to suppress. We find no error and affirm.
Probable cause to arrest was discussed by the supreme court in Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986):
Probable cause is said to be only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that a crime has been committed by the person suspected. Probable cause does not require the quantum of proof necessary to support a conviction, and arrests are to be appraised from the viewpoint of a prudent and cautious police officer at the time the arrest is made.
On appeal, all presumptions are favorable to the trial court’s ruling on the legality of the arrest and the burden is on the appellant to demonstrate error. Determination of probable cause is said to be based on factual and practical considerations of everyday life upon which reasonable and prudent men, rather than legal technicians, act. Thus, a nontechnical approach has been said to afford the best compromise for accommodating the competing interests of the individual and of society, so that law enforcement-officers will not be unduly hampered, nor law abiding citizens left to the mercy of the whim and caprice of overzealous police officers. In making the determination of probable cause the reviewing court should be liberal rather than strict. (Citations omitted.)
When a conviction has been obtained based primarily upon fingerprint evidence, Arkansas courts have upheld or overturned the conviction depending upon the circumstances of the case. In any event, given the rule that probable cause does not require the quantum of proof necessary to support a conviction, we hold that the fingerprints found under the circumstances of this case constituted probable cause for the issuance of the arrest warrant.
King’s final argument is that because the police elicited inculpatory statements from him prior to giving him Miranda warnings, his subsequent confession obtained after Miranda warnings were given should have been suppressed. Clearly, the leading case on this issue is Oregon v. Elstad, 470 U.S. 298 (1985). There the United States Supreme Court said:
It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.
We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.
In Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995), the supreme court determined that, under the United States Supreme Court holding in Elstad, the failure to give Miranda warnings prior to obtaining an initial statement did not require the suppression of a subsequent confession made after proper Miranda warnings and a valid waiver of rights. Childress, 322 Ark. at 135. We reached the same conclusion in Dye v. State, 69 Ark. App. 15, 9 S.W.3d 539 (2000).
Appellant contends that the facts in the case at bar are similar to those in Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), in which the supreme court held that the subsequent Mirandized confession was tainted. We distinguished Shelton in our decision in Dye and find it distinguishable here for the same reasons. In Shelton the suspects were juveniles and there was a coercive element to the interrogation — factors not present in the case at bar. The trial court’s determination that Kang’s confession given at the police station was voluntarily made is not clearly against a preponderance of the evidence.
For the reasons stated, the decision of the circuit court is / affirmed.
STROUD, C.J., and Hart, J., agree.
The evidence was held sufficient in Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970), and Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985). The evidence was held insufficient in Standridge v. State, 310 Ark. 408, 837 S.W.2d 447 (1992), and in Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984). | [
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Donald L. Corbin, Judge.
Appellant, Waymon Kilan Brown, entered a plea of guilty to theft of property by deception on July 6, 1982, and was given a suspended imposition of sentence for a period of five years on conditions. One of the conditions was that he make restitution to the State of Arkansas in the amount of $2,725.00, payable at the rate of $50.00 per month beginning December 1, 1982. Appellant was arrested on March 7, 1983, pursuant to a petition for revocation based upon appellant’s alleged failure to make any payments toward restitution. On March 24, 1983, a hearing was held on the petition for revocation wherein the trial court committed appellant to the Arkansas Department of Corrections for a term of ten years with credit for jail time from March 7, 1983, to March 24, 1983. We affirm.
Appellant testified at the revocation hearing that he did not work in December of 1982 or in January and February of 1983. He stated that he had worked in September, October and November of 1982. Appellant was in jail from November 15, 1982, to December 16, 1982, because of his failure to pay the fine and costs assessed against him on the original theft by deception charge. He testified further that he was planning to go to work for his mother, although it was unclear at what time and for what wages. He offered no evidence to explain why he was not working, what job contacts he had made, or what his living expenses were. The record reveals appellant offered nothing in the way of explanation as to why he had failed to comply with the conditions previously imposed upon him by the trial court.
The provisions for revocation of suspended sentence are found in Ark. Stat. Ann. § 41-1208 (Repl. 1977). Subsection four of that statute addresses the showing that is required to revoke a suspended sentence, stating, “If the Court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.” Thus, the State must prove riot only that a condition was violated but also that there was nothing that could be said to fairly excuse the violation. These factors need only be proved by a preponderance of the evidence. Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978). On appeal, the appellant has the burden of proving that the court’s findings were clearly erroneous. Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977).
Bearden v. Georgia, _ U.S _, 103 S. Ct. 2064 (1983), indicates that the sentencing court must inquire into the reasons for the failure of a probationer to pay a fine or restitution. In the instant case, appellant was represented by counsel and little, if any, explanation was provided by appellant for his failure to pay restitution. In such proceedings where the probationer is represented by counsel, we do not believe the probationer can sit back and rely totally upon the trial court to make inquiry into his excuse for nonpaymet. The defendant should go forward with whatever evidence he has in an attempt to establish excusable reasons why he did not pay the fine or restitution. In the instant case, the record reveals that the State proved by a preponderance of the evidence that appellant had not made payment and that his failure was inexcusable. The facts of the case at bar are clearly distinguishable from those of Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984). In Drain, supra, the defendan t had applied for j obs everywhere he could think of, only had an 8th grade education, cut firewood when he could, and had been committed to a mental hospital for a period of time. Witnesses verified most of those facts and the State did not refute them.
Accordingly, we find the evidence sufficient to support the finding that appellant had inexcusably violated the conditions of his probation.
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Terry Crabtree, Judge.
This is a domestic-relations case. The appellant, Peggy Phillips Weir, petitioned the Lawrence County Chancery Court to increase the child-support payment from the appellee, John Phillips. Appellee filed a counter petition requesting that the court change the custody of their two children from appellant to him. The chancery court declined to increase appellee’s child-support obligation and ordered a change of custody of the parties’ younger child if appellant did not enroll that child in a certain school. Appellant agreed to the school arrangement and kept custody of both children. On appeal, appellant argues that the chancellor erred in: (1) declining to award her an increase in child support; (2) failing to make written findings in regard to his deviation from the family child-support chart; and (3) excluding appellee’s use of a company vehicle as “income” for child-support purposes. We agree with appellant that the chancellor must articulate his reasons in writing for deviating from the family child-support chart, and that the chancellor erred in excluding appellee’s use of a company vehicle as income. Therefore, we reverse and remand.
The parties are the parents of two minor children, R.P., born April 4, 1984, and J.P., born March 21, 1990. Pursuant to an order of January 28, 1998, appellee pays appellant $140 per week for the care, support, and maintenance of their two minor children. On appeal, the appellant argues that the chancellor erred in declining to find a material change of circumstances significant enough to warrant an increase in child support. She contends that appellee experienced a $114 per week increase in his salary, which equated to an overall 20% increase to his income.
Appellant argues that the chancellor erred in failing to award her an increase in child support. Ark. Code Ann. § 9-14-107(a) (Repl. 1998) provides:
A change in gross income of the payor in an amount equal to or more than twenty percent (20%) or more than one hundred dollars ($100.00) per month shall constitute a material change of circumstances sufficient to petition the court for review and adjustment of the child support obligated amount according to the family support chart after appropriate deductions.
A party seeking modification of the child-support obligation has the burden of showing a change in circumstances sufficient to warrant the modification. Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). The evidence is undisputed that appellee’s income has increased by $114 per week. Clearly, this increase in income is enough to be deemed a material change of circumstances as it exceeds a $100 per month change as referenced in the statute. Therefore, we believe that appellant successfully established the threshold issue that a material change of circumstances existed with regard to appellee’s income. However, we do not decide whether the chancellor erred in failing to award an increase in child support because the chancellor must first articulate his reasons for not awarding an increase in child support after appellant had proven a material change in circumstances.
Section I of Administrative Order No. 10 sets forth the rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the family support chart, promulgated by the Arkansas Supreme Court, is the amount of child support to be awarded in a judicial proceeding for child support. Although the amount of child support that a chancery court awards lies within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion, reference to the family support chart is mandatory. Guest v. San Pedro, 70 Ark. App. 389, 19 S.W.3d 62 (2000); see Ark. Code Ann. § 9-14-106(a)(1)(A) (Repl. 1998). The most recent revision of the child-support chart is found at In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998). Section I addresses the rebuttable presumption created by the chart:
The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case 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. Findings that rebut the guidelines shall state the payor’s income, recite the amount of support required under the guidelines, recite whether or not the Court deviated from the Family Support Chart and include a justification of why the order varies from the guidelines^]
Arkansas Code Ann. § 9-12-312 (a) (2) (Supp. 1999) also sets forth guidelines to be followed in setting the amount of child support:
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
Appellee concedes that the chancellor deviated from the family child-support chart. In his brief appellee states:
The chancellor’s statements on the record concerning his reasons for deviating from the family support chart were more than sufficient to support his finding with regard to child support. These statements were not reduced to writing or included in the court’s order, but they do indicate the chancellor’s justification for his deviation from the chart.
Clearly, both parties agree that the chancellor deviated from the family child-support chart. Because the chancellor chose to deviate from the family child-support chart, he must specifically articulate in writing his reasons for doing so. However, the chancellor’s “Order Modifying Decree” fails to contain any mention of appel-lee’s income, the amount of support required under the guidelines, whether or not the court deviated from the chart, or to include a justification of why the order varies from the guidelines. We reverse and remand to the chancellor to specifically articulate his reasons for deviating from the family child-support chart when appellee’s income increased more than $100 per month.
On appeal, appellant also claims that the trial court erred in excluding appellee’s use of a company vehicle as “income” for child-support purposes. The chancellor found that appellee’s use of a 1997 four-wheel-drive Ford truck inured to the benefit of appel-lee’s employer, First Community Bank, rather than to appellee. Appellee testified that he had the privilege of using the truck for his personal business if he supplied the gas, and that the bank supplied the gas for business purposes.
Our state supreme court specifically defined what constitutes income for child-support purposes. It stated in Rowlett v. Bunton, 68 Ark. App. 228, 6 S.W.3d 372 (1999) that income:
means any form of payment, periodic, or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions . . . The revised definition includes only employment earnings or payments based on employment benefits. Further the revised definition specifically provides that income must be a payment due to an individual.
We believe that appellee’s use of the truck was a sizeable benefit to him and should have been considered a form of payment to him. Appellee testified that he used the truck as his personal vehicle for driving to and from work and on vacations including hunting trips. We hold that the chancellor erred by excluding appellee’s use of his company truck as income for child-support purposes. On remand the chancery court should include appellee’s use of the 1997 four-wheel-drive truck as income when it considers awarding appellant an increase in child support.
Reversed and remanded.
Jennings and Baker, JJ., agree. | [
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Olly Neal, Judge.
Appellant, Wayne Gafford, appeals the Pulaski County Circuit Court’s grant of appellee Philip Cox’s motion for summary judgment. On appeal, he argues that the grant of summary judgment was improper because the exclusive remedy provision, of Ark. Code Ann. § 11-9-105 (Repl. 2002) does not apply to the facts of this case. We affirm.
Appellant and appellee worked for Sears, Roebuck and Company (Sears). On July 2, 1999, appellant was a passenger in a vehicle owned by Sears that was being driven by appellee to a service call. While en route, they were involved in an automobile accident when appellee failed to “yield” at a stop sign. As a result, appellant was injured. He filed suit against appellee seeking damages that he alleged were the result of appellee’s negligent operation of the vehicle. Appellee moved for summary judgment, alleging that he was immune from suit because he was performing the employer’s duty to provide a safe workplace and that Ark. Code Ann. § 11-9-105 provided that workers’ compensation was appellant’s exclusive remedy. Following a hearing on appellee’s motion for summary judgment, the trial court found that it lacked subject-matter jurisdiction and thereby granted appellee’s motion for summary judgment. Appellant now appeals.
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. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42 S.W.3d 443 (2001). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. On appellate review, we review the evidence in the light most favorable to the party resisting the motion for summary judgment, and resolve all doubts and inferences in the resisting party’s favor. Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997).
Appellant now argues that the grant of summary judgment was in error because the “exclusive remedy” provision of Ark. Code Ann. § 11-9-105 does not apply to the fact situation of this case and that the dismissal for lack of subject-matter jurisdiction was improper. Arkansas Code Annotated section 11-9-105 provides in pertinent part:
(a) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a co-employee shall not be imputed to the employer.
However, Ark. Code Ann. § 11-9-410(a)(1)(A) provides:
[t]he making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make a claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action.
(Emphasis added.) See also Wilson v. Rebsamen Ins., Inc., supra. Our supreme court has held that a negligent co-employee is a third party and that our workers’ compensation law does not prevent an employee from maintaining an action for the negligence of a fellow employee. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959).
In Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969), it was held that an employer can not delegate its duty to provide a safe work place to an employee. See also Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987). Our supreme court later adopted the majority view that a supervisory employee was immune from suit for failure to provide a safe workplace. Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). This immunity was later extended to non-supervisory employees who failed to provide a safe place to work when the injury occurred. Allen v. Kizer, supra. In Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996), our supreme court held that co-employees who are performing the employer’s duty to provide a safe workplace are immune from suit under Ark. Code Ann. § 11-9-105. Currently we recognize that in addition to the employer, Ark. Code Ann. § 11-9-105 extends immunity to the employer’s workers’ compensation carrier and to co-employees if at the time of the injury they were performing the employer’s duty to provide a safe workplace. Wilson v. Rebsamen Ins., Inc., supra.
In support of his motion for summary judgment, appellee submitted an affidavit in which he stated that, on the day of the accident, he was training appellant. He said that his duties included transporting equipment, and appellant to and from the service locations. In Rea v. Fletcher, 39 Ark. App. 9, 832 S.W.2d 513 (1992), we held that an employee responsible for transporting fellow employees to and from a work site involved the duty of providing a safe place to work. Here, appellant failed to contradict appellee’s affidavit. Although appellant makes a strong argument, under the doctrine of stare decisis we are bound to follow prior case law. Chamberlin v. State Farm Mut. Auto. Ins., Co., 343 Ark. 392, 36 S.W.3d 281 (2001). Thus, when we view the evidence in a light most favorable to appellant, there was no unresolved question of material fact, and the trial court did not err when it granted appellee’s motion for summary judgment.
Affirmed.
Griffen and Baker, JJ., agree. | [
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Donald L. Corbin, Judge.
The sole issue presented by this appeal is whether or not appellant, Terry Dean Dodson, had justifiable cause not to pay child support or communicate with his minor child for a period of one year. The trial judge found no justifiable cause existed and ruled that appellant’s consent to the adoption was not required pursuant to Ark. Stat. Ann. § 56-207 (a) (1) and (2) (Supp. 1983), which provides:
(a) Consent to adoption is not required of:
(1) a parent who has deserted a child without affording means of identification, or who has abandoned a child;
(2) a parent of a child in the custody of another, if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;
We find no error and affirm.
Appellant Terry Dodson and appellee Debra Kay Donaldson were married and are the natural parents of a daughter born on January 19, 1979. By an Oklahoma decree of divorce entered on October 26, 1979, appellee Debra Kay Donaldson was awarded custody of the minor child and appellee was ordered to make support payments in the amount of $35.00 per week through the office of the clerk of that court and was awarded visitation rights. Stipulated exhibit number 1 made part of the record of the proceedings below reveals that appellant’s support payments were paid to the clerk and forwarded to the parents of appellee who resided in Alma, Arkansas. Appellee remarried in June, 1980, and shortly thereafter both she, her daughter and appellee Melvin Gale Donaldson moved to Kansas City, Kansas. They resided there until April, 1981, when another move was made to Mountainburg, Arkansas. They subsequently moved to Fort Smith in February, 1982. Appellees filed a petition for adoption in the probate court of Sebastian County in May, 1982, to which appellant answered object-, ing to the adotion of his minor child by appellees.
It was stipulated at trial that appellant did not support or communicate with his child from January 13, 1981, until the day of the trial, September 8, 1982. This was a period of approximately one year and eight months. The failure of appellant to pay child support or communicate with his minor child was found by the probate judge to constitute abandonment, thus dispensing with the necessity of obtaining appellant’s consent to the adoption of his minor child by appellees.
Statutory provisions involving the adoption of minors are strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980). The holding of the Arkansas Supreme Court in Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979), places a heavy burden upon the party seeking to adopt a child without the consent of a natural parent of proving by clear and convincing evidence that the parent has failed significantly or without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree. In Kelly v. Kelly, 264 Ark. 865, 575 S.W.2d 672 (1979), the Supreme Court defined clear and convincing evidence as being:
Evidence by a credible witness whose memory of the facts about which he testifies is distinct and whose narration of the details thereof is exact and in due order and whose testimony is so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the facts related is clear and convincing, (cites omitted). This measure of proof lies somewhere between a preponderance of the evidence and proof beyond a reasonable doubt, (cites omitted). 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, (cites omitted).
While we review probate proceedings de novo on the record, it is well-settled that the decision of a probate judge will not be disturbed unless clearly erroneous (clearly against the preponderance of the evidence), giving due regard to the opportunity and superior position of the trial judge to judge the credibility of the witnesses. A.R.C.P. Rule 52 (a); Henson v. Money, 1 Ark. App. 97, 613 S.W.2d 123 (1981).
Judge Kimbrough thoroughly covered the evidentiary issues in his findings of fact. In summary, the court found from the facts and evidence that appellant and his family knew at all times where appellee’s mother’s family lived and made no inquiry or effort through them to learn of appellee’s whereabouts and that of the minor child except for one brief contact with appellee’s brother; that appellant was aware at all times that the child support payments went to appellee from the Clerk’s office to her mother’s home in Alma; that appellant knew appellee and the minor child went to Kansas City to live as appellee’s husband had a job there and this information was disclosed by word of mouth, by correspondence and by phone call to appellant’s sister to verify the address and phone number which appellee supplied to appellant; that there was no effort or intention on the part of appellee, her husband, family or otherwise to not make her whereabouts and that of the minor child known at any time to appellant; and that appellant had frequent contact by reason of his employment and union affiliation with the maternal grandfather. In addition, there was a specific finding by the trial court that the adoption was in the best interest and welfare of the minor child.
Appellant’s contention that he had justifiable cause not to pay child support or communicate with the minor child for more than twelve months is without merit. The thrust of his argument is that his justifiable cause came about as a direct result of appellee keeping the location of the child a secret. The record reveals that appellant made one attempt to inquire of his former in-laws as to his daughter’s whereabouts following the move to Kansas. Appellant was employed by the Whirlpool Corporation in Fort Smith and his former father-in-law was his union representative. The testimony was in conflict as to what occurred on that date between appellant and his former in-laws. Appellant testified that he went to their home at approximately 9:00 a.m. and was not allowed to speak to them. Appellant stated that he made no further efforts to contact appellee’s parents as he felt that “it would do no good”. Appellee’s mother testified that she was aware of her daughter’s whereabouts at all times following her remarriage. She further testified that appellant came to their home on one occasion at 6:30 a.m. to inquire about his daughter and they were still in bed. She stated she had no hostility toward appellant and that appellant had always known that he could telephone them at any time to inquire about his daughter. Appellee wrote a letter to appellant shortly before their move to Kansas informing him of her new address, phone number, and assuring him that he could visit with his daughter either in Kansas or Alma. Shortly thereafter, appellant and his attorney wrote to appellee in Kansas City and the letter was returned as “not deliverable”. Appellee testified that she never changed her address in Kansas City. Appellant testified that he then attempted to telephone appellee at the number she had provided and was unable to reach her as he either got a recording or static on the line. Appellee testified that she maintained the same phone number the entire time she resided in Kansas and that it was never disconnected. Appellant continued to pay child support to the clerk of the court for another month and a half. Appellant testified that he then consulted with his attorney in Oklahoma and made the decision to discontinue child support payments based upon his perception that he was being denied his visitation rights. It is important to note that the above events occurred during a two-month period commencing with appellees’ move to Kansas in November 1980, and ending in January 1981, when appellant made his last child support payment. Appellees both testified that at no time did they seek to keep appellant from seeing his child or keep her whereabouts a secret.
The asserted j ustifiable cause of appellant in his failure to support or communicate with the minor child is not supported by the evidence. In this regard, the probate judge found and stated the following in his decree:
That the Respondent contends that he had justifiable cause in ceasing to make the payments of child support, and was prevented from having contact with the minor child, for the reason that he did not know where the Petitioner mother and child lived; that his efforts for help from his attorney in the divorce case, or an opportunity to talk with the Court in that case, were not productive; and that he was reluctant to talk to the natural mother’s parents as they had said previously that they didn’t want to be involved; so he therefore unilaterally terminated the child support payments and waited for reasons known to himself until he learned where the child was, which knowledge he contends first came to him as a result of this adoption proceeding being filed and processed and notice being issued therein.
That the facts, testimony, and circumstances of this case demonstrate by clear and convincing evidence that Respondent natural father made no genuine or diligent effort to contact, locate, communicate with, support or assist his minor child herein concerned, from and since January, 1981. That his actions were voluntary and constituted abandonment, and a failure to communicate with or provide care and support for the minor child as required by law and j udicial Decree, so that his consent to this adoption is not required.
Giving due regard and deference to the superior position of the probate judge to determine the weight of evidence and the credibility of the testimony, we cannot conclude that his ruling that appellant did not have justifiable cause to not support or communicate with the minor child was error. Recognizing that the father’s duty to support his minor child cannot be excused on the basis of the conduct of others, unless that conduct prevents him from performing his duty, Green v. Green, 232 Ark. 868, 341 S.W.2d 41 (1960), we cannot say that the probate judge’s finding to the contrary is clearly against the preponderance of the evidence.
We believe the probate judge correctly found appellees met their heavy burden of proving by clear and convincing evidence that appellant had failed significantly and without justifiable cause to communicate with or to provide for the care and support of the minor child, so that the appellant’s consent to the adoption was not required.
Affirmed.
Glaze, J., dissents. | [
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Lawson Cloninger, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission which awarded disability benefits to appellee, George E. Moore. Appellee allegedly sustained an on-the-job injury on August 24, 1981, while employed by appellant, Roc-Arc Water Company.
The evidence shows that appellee collapsed and fell, striking his head on a concrete floor, while in the process of loading five-gallon mineral water bottles onto a delivery truck. The trauma from the blow to his head caused a brain injury requiring surgery, and resulted in disability.
The Commission found that appellee suffered an “unexplained fall” at work, that it was compensable, and that there was “no medical evidence that any internal condition personal to the claimant and unrelated to his employment caused claimant’s fall.” Appellant contends that the decision of the Commission has no basis under the facts or the law. We do not agree, and the decision of the Commission is affirmed.
Appellant urges that the decision of the Commission places the cause of appellee’s disability somewhere between an “unexplained fall” and an “idiopathic fall,” i.e., an occurrence caused by a non-occupational illness or weakness personal to the claimant. The administrative law judge based his finding of compensability upon the fact that “this incident followed weakness and dizziness while performing relatively strenuous work and in the absence of medical proof of internal contributing factors.” The law judge, then, as well as the Commission, ruled out an idiopathic cause. The law judge apparently did not rule out the possibility that the injury arose because of the working conditions, giving credibility to the evidence of appellee that he became hot, tired and dizzy just prior to falling; the Commission, however, squarely based its decision upon its finding that the fall was unexplained, and on this appeal we consider only the decision of the Commission. See Kearby v. Yarbrough Brothers Gin Company, 248 Ark. 1096, 455 S.W.2d 912 (1970).
There was evidence from which the Commission might have found that appellee’s fall arose out of a condition personal to appellee. There was testimony that appellee had suffered some type of seizure on a previous occasion and had been treated at the University of Arkansas Medical Center at that time. There was no medical evidence that appellee suffered any illness prior to his fall or that he was prone to seizures.
The rule is that an appellate court is to review the evidence and all reasonable inferences therefrom in the light most favorable to the Commission and must uphold the Commission’s findings if there is any substantial evidence to support them, even if the preponderance of the evidence would indicate a different result. Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980).
The Commission found by a preponderance of the evidence that appellee’s fall arose in the course of his employment and that it was unexplained, and there is substantial evidence to support that finding. The fact situation in this case is strikingly similar to the one in the case of Fairview Kennels v. Bailey, 271 Ark. 712, 610 S.W.2d 270 (Ark. App. 1981). In Fairview Kennels, this court affirmed the Commission’s finding that an unexplained fall was compensable, holding that the decision was supported by substantial evidence. In that case, the claimant had explained her fall as follows: “I was cleaning the kennels in back and disinfecting them, and I was going to the front to refill the disinfectant bottle, and I fell and couldn’t get up.” The court held that there was a sufficient explanation upon which the Commission could find that the claimant fell while doing the work her job required and that she thereby received an inj ury arising ou t of her employment. The court held that this was a question of fact and had been determined by the Commission.
Appellee, in explaining his fall, testified that the truck he was loading was behind schedule; that he had not taken his usual break because they were behind; that he became hot and fatigued and dizzy; that he had just told a fellow employee how tired he was; and that the next thing he knew he fell out and hit the concrete floor.
A question of fact was presented to the Commission, and although the Commission perhaps could have found that the injury was attributable to an idiopathic fall, which would not have been compensable, or to a fall arising out of appellee’s employment, the Commission chose to find that the fall was unexplained and there is sufficient evidence to warrant that finding.
Affirmed.
Corbin and Cooper, JJ., agree. | [
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Josephine Linker Hart, Judge.
John Ashley Magee appeals a decision of the Arkansas Board of Review (“Board”) that affirmed the Appeal Tribunal’s denial of unemployment insurance benefits and concluded that he was disqualified from receiving those benefits because he failed to take appropriate steps to prevent the mistreatment that gave rise to his leaving work when he did not discuss his work situation with Allan Magee (“president”), his father and president and a fifty-percent owner of U.S. Agricultural, Inc. (“U.S. Agricultural”). We reverse and remand this matter for additional findings of fact.
Appellant worked for U.S. Agricultural from 1996 until May 9, 2000. While employed by U.S. Agricultural as plant and sales manager, appellant’s salary was unilaterally decreased by Ed Howard, chief financial officer and the other fifty-percent owner of the company. Appellant resigned his position with U.S. Agricultural as a result of Howard’s repeated undermining of his authority and the reduction of his salary. On August 10, 2000, the agency determined that appellant was not entitled to unemployment insurance benefits, and appellant appealed to the Appeal Tribunal.
A hearing was held before an officer for the Appeal Tribunal on September 14, 2000. Appellant, the president, and Michelle Wallace testified on behalf of appellant, and Howard testified on behalf of U.S. Agricultural.
Appellant testified that in the position of plant manager at U.S. Agricultural, he was responsible for ordering plant supplies. He stressed that failure to acquire the needed supplies in a timely manner would interrupt production, which would cost the company money. Despite this, Howard would frequently interfere with this effort by either telling plant staff not to place the order or canceling orders already made. Furthermore, Howard also refused to finance projects that would protect inventory from flooding and failed to replace badly-worn forklift tires. These impediments, according to appellant, caused costly disruptions in the plant’s operations.
In addition, appellant explained the unwritten policies at U.S. Agricultural that governed pay increases and decreases, which gave appellant sole responsibility for the setting of an employee’s wage. Moreover, he stated that the salary increase he received in February 2000, was four months later unilaterally decreased by Howard. Following Howard’s decrease of appellant’s salary, appellant quit working for U.S. Agricultural.
The president then testified and stated that he agreed with appellant’s assessment that Howard had repeatedly undermined appellant’s authority and expressed the opinion that Howard wanted to get rid of appellant. In particular, the president recounted a specific incident in which Howard told the president while pointing at appellant, “the only thing wrong with this plant was that son-of-a-bitch up there. ...” Regarding the last incident that caused appellant to leave work, the president testified that prior to the date the salary increase was effective he had consulted with appellant and approved the earnings change. Furthermore, he stated that he and appellant had discussed the salary decrease, but he did nothing to rectify the problem. In his view, the only available solution was that he “could have filed suit and got lawyers.”
Wallace testified that she was the office manager at U.S. Agricultural and agreed with appellant’s testimony that his pay increase was done commensurate with the company’s unwritten policy concerning salaries. She also stated that Howard was not typically involved in the setting of salaries and that the undermining of appellant’s authority by Howard happened “on a regular basis.”
Finally, Howard testified that many of his actions were based on the company’s financial situation at the time and that he had stopped talking with appellant because every time they would discuss something, appellant would go “berserk.” He also stated that he had talked with the president about appellant’s salary increase and the impact the salary change was having on the company’s “bad” financial situation. The president agreed to discuss the matter with appellant, but failed to do so. Accordingly, Howard made the change to appellant’s salary.
On September 15, 2000, the Appeals Tribunal affirmed the agency’s denial of appellant’s application for unemployment insurance benefits, reasoning that appellant “did not take reasonable steps to straighten things out before he quit.” On appeal, the Board affirmed, concluding that even if it determined that appellant had good cause to quit, he failed to take appropriate steps to prevent the mistreatment from continuing, as required under Teel v. Daniels, 270 Ark. 766, 769, 606 S.W.2d 151, 152 (Ark. App. 1980). Specifically, the Board stated that it did “not understand why [appellant] did not discuss the situation with his father, the Owner/President, prior to quitting.” From the Board’s decision, comes this appeal.
Our scope of appellate review in cases such as this is wellsetded and oft-stated:
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Board’s findings. 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.
E.g., Fleming v. Director, 73 Ark. App. 86, 88, 40 S.W.3d 820, 822 (2001). Because we conclude the Board’s decision could not reasonably be reached based upon the evidence before it, we reverse and remand.
I. Substantial evidence
Appellant first argues that the Board’s decision was not supported by substantial evidence. Specifically, he argues that the overwhelming weight of the evidence demonstrates that his authority was routinely undermined by Howard, and that such efforts gave appellant good cause to leave work. In response, appellee argues that the Board’s decision was supported by substantial evidence because appellant failed to take appropriate steps to prevent the mistreatment from continuing. In particular, appellee argues that “[i]t is clear from the evidence that [the president] could have resolved the issue of the raise for appellant,” and that “[t]here is no evidence that [a]ppellant ever requested [the president’s] assistance in this matter.”
Pursuant to Ark. Code Ann. § ll-10-513(a)(l) (Supp. 1999), “[i]f so found by the Director of the Arkansas Employment Security Department, an individual shall be disqualified for benefits if he voluntarily and without good cause connected with the work left his last work.” The key term “good cause” is not defined by the General Assembly.
However, in Teel, 270 Ark. at 769, 606 S.W.2d at 152, we adopted the definitions of “good cause” as provided in James O. Pearson, Jr., J.D., Annotation, Unemployment Compensation: Harassment or Other Mistreatment by Employer or Supervisor as “Good Cause” Justifying Abandonment of Employment, 76 A.L.R.3d 1089 (1977). According to Pearson, supra at 1092-1095 (citations omitted):
Because the courts have employed an objective standard in determining “good cause,” it is not possible to state definitely that a particular type of conduct, such as harassment or other mistreatment by an employer, does, or does not,. constitute good cause. Rather, it is only possible to state definitely that the answer to this question depends on a consideration of all of the facts and circumstances in each case, since it is well estabhshed that “good cause” is a cause which would reasonably impel the average able-bodied, qualified worker to give up his or her employment. . . .
The “average employee” standard applied by itself would indicate that the courts would be interested only in the effects that the employer’s mistreatment would have had on an average employee. In other words, the effect that such treatment actually had on the employee in question would appear to be irrelevant under this standard, except as evidence allowing the trier of fact to determine if the average employee would have acted in the same way under such circumstances. . . . [However,] “good cause” is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved. In this context, good faith, which has been held to be an essential element of good cause, means not only the absence of fraud, but also the presence of a genuine desire to work and to be self-supporting. Under this concept, it would appear logical to admit evidence concerning the manner in which the claimant was actually affected by the mistreatment in order to determine if his claim for unemployment compensation was made in good faith.
The fact that good cause is dependent on both the reaction of the average worker and the good faith of the employee involved appears to lead to two basic results concerning eligibility for unemployment compensation. First, if an average employee would not have quit his job, the employee involved may not recover unemployment compensation even though his claim is made in good faith. Indeed, the courts, in determining whether harassment or other mistreatment constitutes good cause, have often stated that good cause is not to be measured by the needs of the super-sensitive employee and have implied that such an employee is not entitled to benefits merely because his claim is made in good faith. Second, even if the average employee would have left his employment under the circumstances of a particular case, no unemployment compensation can be recovered unless the employee in question acts in good faith in filing his claim. In other words, it appears that an employee who is not bothered by the mistreatment involved, and who is not, therefore, acting in good faith in presenting his claim, cannot recover compensation merely because the average employee would have quit his job under the same circumstances. . . .
Some of the courts considering whether a boss’ mistreatment of an employee gives the employee good cause to leave his employment have stated that one of the elements in determining good cause is whether the employee took appropriate steps to prevent the mistreatment from continuing. These courts have implied that it is only after the employee has appealed his case to a higher level of management and has received no satisfaction that he can quit with “good cause.”
In this case, the Board simply relied on one factor in their denial of benefits and excluded consideration of the remaining factors. Specifically, the Board merely stated that it found “that even if it determined that [appellant] had good cause to quit, [appellant] did not make reasonable efforts to resolve the situations prior to quitting.”
Contrary to the Board’s findings, the record plainly exhibits that there were long-held animosities between Howard and appellant, and that appellant had from time to time appealed to the president in order to find resolutions to the various incidents that fed the animosity. For whatever reason and despite the arguable authority to do so, the president did not resolve the matter. Appellant did, on many occasions, appeal his “case” to a higher level of management without obtaining resolution. A stalemate has evolved between two equal owners with equal control. Appellant was in an untenable situation where an appeal for resolution was an exercise in futility. The law does not require an employee to engage in an act of futility as a precursor to obtain employment benefits. Therefore, the Board’s finding that appellant did not take appropriate steps to resolve the mistreatment cannot be supported by substantial evidence. Thus, we reverse on this issue.
II. Good cause
Finally, appellant argues that the Board failed to consider whether appellant had good cause to leave work. As stated, the Board assumed, arguendo, that appellant had a “case,” and his error was the fact that he did not appeal that “case” to a higher level for resolution. On this point, we conclude that the Board has defined “good cause” in a manner inconsistent with Teel. The Board’s finding plainly requires that under all circumstances employees must take steps to prevent the mistreatment from continuing by appealing their complaint to a higher level of management before they are entitled to unemployment insurance benefits. That, however, is not the law.
Whether an employee fails to appeal mistreatment to a higher level of management for resolution before quitting is an appropriate factor to weigh when determining whether an employee was acting in good faith when he voluntarily left work. Good faith, of course, is neither the beginning nor the end of the analysis when determining whether an employee is entitled to unemployment insurance benefits — the statutory standard is “good cause,” not “good faith.” However, for reasons expressed by Pearson, a thoughtful examination of whether good cause existed requires that every action taken by an employee pertaining to the alleged mistreatment be measured against the good-faith standard. Therefore, while we agree that under the right circumstances an employee’s failure to comply with an employer’s established grievance procedure could be evidence of a lack of good faith, we hold that such a finding alone does not trump all other considerations when considering whether an employee had good cause to quit his employment.
Hence, what remains is the pivotal question of whether appellant had good cause to quit his employment. In order for us to affirm the Board’s decision, we must determine whether there is substantial evidence to support a finding that appellant did not have good cause to resign his employment with U.S. Agricultural. However, we are simply unable to make such a determination because the Board assumed that appellant had good cause to quit work and proceeded to find that his failure to appeal required a denial of benefits. While we hold that the Board erred by finding appellant’s failure to appeal justified a denial of benefits, the Board’s assumption does not constitute an addressable finding with regard to whether appellant had good cause to quit work. Thus, we are unable to undertake a meaningful review and determine whether the law was properly applied by the Board.
Despite a relatively complete record, we should not make the necessary findings to determine whether appellant is entitled to unemployment insurance benefits. See Ark. Code Ann. § ll-10-529(c)(l) (Supp. 1999) (“In any proceeding under §§ 11-10-523 — 11-10-530, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the court shall be confined to questions of law.”). As explained by our supreme court in Reddick v. Scott, 217 Ark. 38, 41, 228 S.W.2d 1008, 1010 (1950) (citations omitted), while addressing a failure by the Board to make essential findings of fact:
Where an administrative body is empowered to make findings of fact it is not the province of the courts to discharge that function merely because the administrative agency has not acted. For instance, it has been our consistent practice under the Workmen’s Compensation Act to remand the cause to the Commission if that body fails to make a finding upon a pertinent issue of fact. ... It is not the function of this court to decide such fact questions in the first instance.
Therefore, we remand this matter to the Board for findings of fact upon the issues that are still undecided and for further proceedings consistent with this opinion.
Reversed and remanded.
ROAF, J., agrees.
Pittman, J., concurs.
The relevant colloquy was as follows:
_ Hearing Officer: Well, as president of the company, did you have some power to exercise to make sure that John Magee got his proper salary?
President: I suppose I could have filed suit and got lawyers, but I think that we’re talking about is we’re — I think that’s — I think you’re the one that’s getting ready to determine whether I have that power or nót. And I don’t — I mean, I was the one that authorized the raise and Ed basically reduced his salary and ran him off.
Hearing Officer: How did Mr. Howard reduce his salary?
PRESIDENT: He called the (employee leasing) company and they did it.
Hearing Officer: Did he have authority to do this?
In my opinion he didn’t. President: | [
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Josephine Linker Hart, Judge.
Having been convicted of the crimes of manufacturing methamphetamine, possession of drug paraphernalia, second-degree endangering a minor, and possession of marijuana, appellant, Eddie E. Wyatt, Jr., was sentenced to a total of forty-five years’ imprisonment in the Arkansas Department of Correction. On appeal, he argues that the circuit court erred in refusing to suppress evidence seized during the search of the home where appellant resided because the affidavit supporting the search warrant included material misstatements of fact regarding the reliability of a confidential informant. Also, he argues that he should not have been sentenced for both the offense of possession of drug paraphernalia and the offense of manufacture of a controlled substance because the former is a lesser offense included in the latter. We affirm on the first point after reaching the merits. However, because the record is deficient, we are unable to reach the merits of the second point, and we affirm on this point as well.
The affidavit for the search warrant, dated June 9, 1999, and signed by Ken Whillock of the Arkansas State Police and by Afton Fletcher of the Fourteenth Judicial District Drug Task Force, provided that the officers had reason to believe that both methamphetamine and items used in the manufacture and consumption of methamphetamine were being concealed at the residence of Connie Ward. In support of their belief, the affiants stated that on May 2, 1999, as police approached the Ward residence, appellant fled. After appellant’s capture, a box containing a methamphetamine laboratory was found in the edge of the woods on the Ward property. The affiants further noted that on May 19, 1999, an officer received a signed statement from Carol Lackey, who stated that Ward had told her that appellant had a methamphetamine laboratory behind her house. Lackey further stated that Ward told her that she and appellant had purchased pills and anhydrous ammonia for the purpose of making methamphetamine.
The affiants then noted that on June 9, 1999, at approximately 3:15 p.m., a “cooperating individual” working under the supervision of law enforcement authorities went to the Ward residence to set up a methamphetamine purchase from appellant. The confidential informant reported that he believed that appellant was manufacturing methamphetamine in the back bedroom of the residence, noting that appellant kept entering the back bedroom, on one occasion carrying a bowl of ice cubes into the room and exiting with an empty bowl. The confidential informant also noted a strong, “fumy-type,” chemical odor that burned his eyes and nose. When he asked appellant if he could obtain some methamphetamine, appellant told him that it was not ready, but that “when it is, it’s gonna have legs,” meaning that it would be very good. At 5:45 p.m., the confidential informant called appellant at Ward’s residence, and appellant stated, “It’s not finished, but I’m working on it. When it’s done, I’ll bring it to you.” The affiants noted that a strong, “fumy,” chemical smell is consistent with a methamphetamine laboratory and that ice is often used in the manufacturing process to control certain stages of the reaction. The affiants further stated that appellant was a convicted felon out on bond for manufacturing methamphetamine and that he had “numerous drug violations.”
The affiants also stated as follows:
Reliability of said informant, has been established by:
This cooperating individual has provided Affiants with rehable information regarding illegal drug dealers, in Van Burén County, this information has proved to be accurate, in that numerous controlled drug buys have been made from these dealers. Arrests based on these drug buys, and information, are pending.
Based on the affidavit, a search warrant was issued on June 9, 1999, at 7:05 p.m., and was served approximately thirty minutes later.
At the hearing on the motion to suppress, however, Whillock testified that the informant had made only one buy for him and several buys for another narcotics officer. No arrest or conviction had occurred in his case, and he did not know if any arrests or convictions had followed the other buys. Whillock further testified that he was not sure who the other officer was and that of his “own personal knowledge,” he did not know if the informant had made any buys or sales for anyone else. Fletcher testified that he knew that the informant had made several controlled buys for two particular officers, and he checked with the officers to determine the reliability of the individual. He further testified that the individual had made a buy for him, Whillock, and another officer on June 2 for what was purported to be methamphetamine.
At the hearing on the motion to suppress, both appellant’s counsel and counsel for appellant’s codefendants argued that the affidavit contained false or misleading information because it provided that the informant had “provided Affiants with reliable information regarding illegal drug dealers” while both affiants testified that the individual had assisted them in only one buy. They argued that if the misleading information is disregarded, the remaining portions of the affidavit were insufficient to establish probable cause to issue a search warrant. The judge denied appellant’s motion to suppress, stating that while he agreed that the affidavit could have been worded more clearly, he did not find this to be a fatal flaw. The judge concluded that the affidavit still provided probable cause to issue a search warrant, noting particularly that “there had been recovered a drug lab before,” that “statements had been made about the drug lab,” and that appellant told the informant that methamphetamine was being cooked and the informant smelled chemicals.
On appeal, appellant argues that the “veracity of the confidential informant was attempted to be made on the basis of false statements that the informant had made numerous controlled buys from other drug dealers and supplied information of such on many occasions, when in reality one of the affiants had used the informant but once before this. . . .” He argues that statements made by the confidential informant should be stricken, and he further argues that without these statements, the affidavit does not supply reasonable cause to support the issuance of a search warrant.
Appellant’s argument requires that we examine the holding of Franks v. Delaware, 438 U.S. 154 (1978). There, the United States Supreme Court concluded that if a defendant shows by a preponderance of the evidence that the affidavit contained a false statement by the affiant that was made knowingly and intentionally or with reckless disregard for the truth, then the false material is excised, and if the remaining content does not establish probable cause to support a search warrant, then the search warrant must be voided and the fruits of the search suppressed. Franks, 438 U.S. at 155-56.
We note that appellant argues that the statements made by the confidential informant should be stricken in their entirety. However, contrary to appellant’s argument, we conclude that even if the first prong of the Franks test has been met and that the statement regarding the reliability of the informant should be excised, the affiants’ statement regarding what they were told by the informant would still be considered, as there is no evidence suggesting that the officers were untruthful in reporting what they were told by the informant.
As concluded by the trial court, the affidavit could have been written more clearly. Nevertheless, as found by the court, even if we do not consider the affiants’ statements regarding the reliability of the confidential informant, probable cause supported the issuance of the search warrant. The United States Supreme Court has stated as follows:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding] ” that probable cause existed.
Illinois v. Gates, 462 U.S. 213, 238-39 (1983)(citations omitted). Furthermore, a deficiency in the informant’s “veracity” or “reliability” and his “basis of knowledge” “may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Gates, 462 U.S. at 233. For instance, “even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.” Gates, 462 U.S. at 234.
Here, the informant provided an explicit and detailed firsthand account of the events of June 9, describing both the strong chemical odor and how appellant carried a bowl of ice cubes into a back bedroom and exited with an empty bowl. The informant also noted appellant’s remarks to him regarding his manufacture of methamphetamine. Corroborating this account is appellant’s flight from the residence as the police approached on May 2, 1999, and the signed statement of Carol Lackey from May 19, 1999, who stated that Ward had told her appellant had a methamphetamine laboratory behind her house and that Ward and appellant had purchased pills and anhydrous ammonia for the purpose of making methamphetamine. As set forth in Gates, given all the circumstances set forth in the affidavit before him, the issuing judge had a substantial basis for concluding that probable cause existed to support issuance of the search warrant.
In addition to other crimes, according to the judgment and commitment order appellant was sentenced for both the crime of manufacturing methamphetamine as a Class Y felony and the crime of possession of drug paraphernalia with the intent to manufacture as a Class B felony. At the sentencing hearing, appellant’s counsel (who was not the same as appellant’s counsel at trial) argued that appellant should not be sentenced for committing the crime of possession of drug paraphernalia with the intent to manufacture because that crime is a lesser-included offense of the crime of manufacturing metamphetamine. In denying appellant’s motion, the court noted that appellant also had in his possession a number of items, including needles, scales, spoons, and corners of baggies, that were “not necessarily required” to manufacture methamphetamine, and that as such, the crime constituted a separate offense.
“[I]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.” Ark. Code Ann. § 5-64-401(a) (Supp. 1999). Also, “[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine in violation of this chapter.” Ark. Code Ann. § 5-64-403(c)(5) (Supp. 1999). Commission of this latter offense is a Class B felony. Id. Further, “[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance,” and doing so constitutes a Class C felony. Ark. Code Ann. § 5-64-403(c)(l) (Supp. 1999).
A person may not be convicted of more than one offense if “[o]ne offense is included in the other. . . .” Ark. Code Ann. § 5-1-110(a)(1) (Repl. 1997). An offense is included in another offense if “[i]t is established by proof of the same or less than all the elements required to establish the commission of the offense charged. ...” Ark. Code Ann. § 5-l-110(b)(l) (Repl. 1997). Appellant argues on appeal that “[b]ecause the appellant could not have committed the offense of manufacture without also possessing drug paraphernalia used in the manufacture of that controlled substance, possession of drug paraphernalia used in manufacturing the drug is necessarily included in the offense of manufacturing here and cannot stand pursuant to [section] 5-1-110(a)(1).”
We are, however, unable to address appellant’s argument because it is not clear from the record whether he was convicted of violating section 5-64-403 (c)(1) or section 5-64-403(c)(5). We note that the information contained in the record is ambiguous, as is the unabstracted verdict form. Both note that appellant was charged with a Class B felony, which would suggest that he was charged with violating section 5-64-403 (c)(5), but the language contained in each suggests that appellant was charged with violating section 5-64-403 (c)(1). We also note that the unabstracted prosecutor’s affidavit clearly refers to section 5-64-403(c)(l). While the judgment and commitment order notes that appellant was convicted of a Class B felony and that he was convicted of “[possession of [d]rug [p]araphernalia w/intent to manufacture,” that order does not specify which particular subsection of the statute appellant violated. Without knowing which subsection of the statute he was convicted of violating, it is impossible to determine whether the crime was a lesser-included offense. It is appellant’s duty to provide a record demonstrating that reversible error occurred. See, e.g., McGhee v. State, 330 Ark. 38, 42, 954 S.W.2d 206, 208 (1997). Consequently, we affirm on this point. We also note that appellant argues that the crimes constitute a “continuing course of conduct.” See Ark. Code Ann. § 5-1-110(a)(5) (Repl. 1997). This specific issue was not raised below, and because we will not consider issues raised for the first time on appeal, we affirm this portion of his argument for this reason as well. See Brown v. State, 74 Ark. App. 281, 286, 47 S.W.3d 314, 319 (2001).
Affirmed.
Neal and Vaught, JJ., agree. | [
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Bird, Judge.
John D. Conner was charged with domestic battery in the third degree, fleeing, and endangering the welfare of a minor, resulting from allegations that he dragged his live-in girlfriend, Robin West, through and outside his house. West sustained scratches and abrasions to her skin but did not seek medical attention nor miss work. Conner properly and timely moved for a directed verdict on the domestic-battery charge on the sole basis that there was no evidence of a physical injury that met the definition of Ark. Code Ann. § 5-1-102(14) (Supp. 1999). The trial court denied this motion for directed verdict, and Conner was convicted of all three charges. Conner appeals, contending that the State failed to produce sufficient evidence of a physical injury to support the third-degree domestic-battery conviction. See Ark. Code Ann. § 5-26-305 (a)(1) (Repl. 1997). We affirm.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, which is evidence of such certainty and precision as to compel a conclusion one way or another. Family v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000). We review the evidence in the fight most favorable to the appellee, considering only the testimony that tends to support the verdict. Id.
Arkansas Code Annotated section 5-1-102(14) (Supp. 1999) defines “physical injury” as “(A) the impairment of physical condition; (B) infliction of substantial pain; or (C) infliction of bruising, swelling, or visible marks associated with physical trauma.” Conner asks us to analogize the case at bar to Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983). In Kelley, the victim, though cut by a knife, stated that the wound did not require medical attention because the wound was not severe. The victim’s injury was described by another witness as a “fingernail scratch.” Id. This court held that the evidence of a physical injury was insufficient to establish that his physical condition was impaired or that he was inflicted with substantial pain. Id.
As the State argues, however, Kelley was decided in 1983, and the definition of “physical injury” was amended in 1999 to include the additional definition of “infliction of bruising, swelling, or visible marks associated with physical trauma.” Ark. Code Ann. § 5-1-102(14) (Supp. 1999); see also Ark. Code. Ann. § 5-1-102(14) (Repl. 1997). In Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001), we recognized that this amendment “altered the definition of criminal conduct to such a degree as to make it easier for the State to show that appellant committed battery in the third degree.” We also note that even before the 1999 amendment, this court has stated that it was not necessary that a victim seek medical treatment in order for the trier of fact to determine that a physical injury was sustained. See Pettigrew v. State, 64 Ark. App. 339, 984 S.W.2d 72 (1998).
In the present case, West testified that Conner dragged her “through the kitchen, living room, down the stairs, through the front door, across the front porch, down the steps again, and to the side of the car.” She testified that there were scratches on her upper and lower hip. The State introduced photographs taken after the incident that evidence these scratches and abrasions. She testified that she was also bruised, but that the bruising did not show up in the State’s photographs. West further explained that she did not miss work because she was not scheduled to work the next day or two.
We hold that West’s testimony, coupled with the State’s photographs, provide substantial evidence that Conner dragged West through and outside the house and that such action resulted in West’s scratches and bruises. We further hold that the scratches and bruises inflicted upon West are encompassed by the amended statutory definition of physical injury. Therefore, we affirm.
Jennings and Roaf, JJ., agree. | [
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Josephine Linker Hart, Judge.
Perry Burton Holmes appeals the trial court’s denial of his motion to suppress certain items that were seized from his home. For reversal, appellant argues that under the Fourth Amendment he has a right to be free from unreasonable search and seizure, and the trial court’s conclusion that the officer’s warrantless entry was reasonable is clearly against the preponderance of the evidence. We reverse and remand.
While responding to a call that David Ellis had a gun and was possibly violating a no-contact order, Officer Keith Srite found Ellis’s vehicle parked at appellant’s residence and stopped to investigate. At that time, appellant and then Ellis exited the house, and Srite conducted a pat-down of Ellis. At least two additional officers had arrived at the scene, and Srite ordered these officers to take Ellis and appellant to separate police vehicles to talk. At this time, Srite noticed that a woman, Rosa Beth Allen, was inside appellant’s house, and she had come to the door. Srite told Allen that he needed to talk to her. According to Srite, she, without comment, opened the door, and he entered. After entering, he noticed the smell of marijuana and asked Allen “where’s the marijuana.” At that time, according to Srite, Allen pulled out a tray that contained marijuana and related materials. Srite then asked Allen whether she lived in the house, and she replied that she did not and that appellant lived there and it was his marijuana. Thereupon, Srite exited the house, found appellant, advised him of his Miranda rights, and sought a consent from appellant to search the house, which appellant gave. With the written consent secured, the officers reentered the house and seized butts of smoked marijuana cigarettes (i.e., roaches), marijuana seeds, “bongs,” and a “small amount of suspected” methamphetamine.
Appellant’s suppression motion sought to exclude the seized items from evidence. Following the hearing, the trial court denied the motion, reasoning that in light of the fact that Ellis was reported to have had a weapon, the officers were justified in entering the house in order to ensure their safety. Appellant then entered a conditional guilty plea commensurate with Ark. R. Crim. P. 24.3(b), and was sentenced to sixty months’ probation for possession of methamphetamine, drug paraphernalia, and marijuana. From the denial of the suppression motion, comes this appeal.
Our standard of review is well-settled: “If, following an independent determination based on the totality of the circumstances, we conclude that a denial of a suppression motion was clearly against the preponderance of the evidence, then we will reverse.” Mathis v. State, 73 Ark. App. 90, 94, 40 S.W.3d 816, 818 (2001) (citing Welch v. State, 330 Ark. 158, 164, 955 S.W.2d 181, 183 (1997)). In our view, the trial court’s finding that the search and seizure at issue was reasonable is clearly against the preponderance of the evidence. Thus, we reverse and remand.
The issues, as argued by the respective parties, touch on several rules of criminal procedure and concern the government’s warrant-less entry into appellant’s home. Specifically, the parties’ arguments center on Ark. R. Crim. P. 3.1, 3.4, first-party consent, and third-party consent. Finally, the State offers the alternative theory of “logical progression of events,” commensurate with Adams v. State, 26 Ark. App. 15, 758 S.W.2d 709 (1988), to justify an affirmance of the trial court’s denial of appellant’s suppression motion. We address each issue respectively.
I. Ark. R. Crim. P. 3.1, 3.4
Rule 3.1 of the Arkansas Rules of Criminal Procedure provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawful- ■ ness of his conduct.
Furthermore, Rule 3.4 provides:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.
The trial court’s denial of the suppression motion was based, at least in part, on the theory that the entry into appellant’s home was justified to ensure the officer’s safety, which might have been com-prorilised by the possibility that Ellis possessed a weapon. However, we conclude that while the law does provide for a limited search in order to protect the officers, Srite’s actions went beyond that which was reasonably necessary to ensure his safety.
Assuming that the officer believed that Ellis possessed a gun and the focus of concern was for the officer’s safety, Ellis was outside of the house when the officer came into contact with him and in the custody of another officer. As such, accepting as fact, arguendo, that Rule 3.1 was triggered, the officers could only search, under Rule 3.4, “the outer clothing of [Ellis] and the immediate surroundings.” Inasmuch as it is uncontroverted that Ellis was completely out of appellant’s house, to affirm based on these Rules would be contrary to the mandate in Rule 3.4 that “[i]n no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.” Accordingly, we conclude that the trial court’s decision was clearly against the preponderance of the evidence.
II. Unreasonable search and seizure
For his next point on appeal, appellant contends that the government’s actions constituted a violation of his rights under the Bill of Rights. Specifically, he argues that such actions violated the Fourth Amendment, which provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ...” See also Ark. Const, art. 2, § 15. Appellee, however, argues that the government’s actions did not violate the Fourth Amendment in light of appellant’s first-party consent or, alternatively, Allen’s third-party consent.
The question presented is whether the government’s actions constituted a search within the context of the Fourth Amendment and Ark. Const, art. 2, § 15. If not, then appellant cannot claim that his right to be free from unreasonable search and seizure was infringed. Cf. Maryland v. Macon, 472 U.S. 463, 468-469 (1985) (“Absent some action taken by government agents that can properly be classified as a ‘search’ or ‘seizure,’ the Fourth Amendment rules designed to safeguard First Amendment freedoms do not apply.”). According to Srite’s testimony, the principal reason for his first entry into appellant’s house was to speak with Allen regarding Ellis. In other words, Srite entered a home without a warrant for an investigative purpose, not for the purpose of searching the premises.
Rule 10.1(a) of the Arkansas Rules of Criminal Procedure defines a “search” as follows:
[A]ny intrusion other than an arrest, by an officer under color of authority, upon an individual’s person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intrusion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individual’s rights under the Constitution of the United States or this state.
The adopted commentary to this rule explains that:
The definition of “search” is of critical importance since it determines the substantive scope of [this article]. There is no Arkansas statutory precedent for a definition of search, and judicial attempts to develop a definition have been piecemeal since the issue whether particular action did or did not constitute a “search” seldom arises. The key word in the definition is “intrusion,” a term sufficiently broad to encompass any legally cognizable inteference with an individual’s right to privacy. The remainder of the definition limits the scope of this initial term. . . .
Most searches are challenged as intrusions upon an individual’s person or property. However, in Katz v. United States, 389 U.S. 347 (1967), the Supreme Court repudiated a Fourth Amendment analysis based on “constitutionally protected areas.” Consequently, the definition of “search” is extended to cover any intrusions upon the privacy of an individual.
(Emphasis added.)
Along these lines, the United States Supreme Court has defined this critical term as follows: “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). In resolving the question of whether such an expectation was infringed, we rely on Payton v. New York, 445 U.S. 573, 589-590 (1980), which stated:
“[At] the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 [(1961)]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Here, the officer’s purpose was to obtain information from Allen regarding Ellis, and in doing so, the officer intruded into appellant’s home, a place that society has long considered to be a location in which it was reasonable for a person to have an expectation of privacy. Thus, we hold that under Rule 10.1(a), the officer’s actions constituted a search within the meaning of the Fourth Amendment and Ark. Const. art. 2, § 15. Accordingly, we now consider whether the warrantless search was unreasonable.
As we recently stated in Goodman v. State, 74 Ark. App. 1, 9, 45 S.W.3d 399, 403-404 (2001):
The right to be free from unreasonable searches and seizures is guaranteed by both the Bill of Rights, U.S. Const., amend. 4, and the Arkansas Constitution, Ark. Const. art. 2, § 15. This right is personal in nature, Rakas v. Illinois, 439 U.S. 128, 133 (1978), and “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. . . .” Katz v. United States, 389 U.S. 347, 357 (1967). Specifically, “searches and seizures inside a home without a warrant are presumptively unreasonable [and] . . . [i]n terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm fine at the entrance to the house.” Payton v. New York, 445 U.S. 573, 586, 590 (1980). These principles are “subject only to a few specifically established and well-delineated exceptions.” Katz, 389 U.S. at 357.
The United States Supreme Court neatly summarized the relevant law: “With few exceptions, the question [of] whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, _U.S. _, 121 S. Ct. 2038, 2042 (2001) (citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Payton, 445 U.S. at 586).
Commensurate with its burden to demonstrate that the per se unreasonable search was reasonable, the State contends that exigent circumstances did exist to justify affirming the trial court’s decision. Namely, appellee argues that the warrantless entry was reasonable in light of appellant’s first-party consent or, alternatively, in light of Allen’s third-party consent. We address each subissue separately and hold that under the Fourth Amendment and Ark. Const, aft. 2, §15, the search was unreasonable.
1. First-party consent
While we agree with appellee that entries based on voluntary first-party consent can be considered reasonable, Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), we disagree with the notion that appellant’s consent is determinative in this case. Although appellant put forward testimony at the suppression hearing that the written consent was involuntary, we disregard that inasmuch as to conclude otherwise would be contrary to our general principle that we defer to the trial judge on issues of credibility. See Tabor v. State, 333 Ark. 429, 433, 971 S.W.2d 227, 230 (1998). More importantly, however, it is the initial entry, which took place before the written consent was obtained, that is of greater concern to us. In this regard, it is plain that the officer entered a private home without a warrant and, for the aforementioned reason, appellant’s consent was not an exigent circumstance upon which the State can sustain its argument that the entry complied with the law. Accordingly, we hold that a finding that the State met its burden of demonstrating exigent circumstances to justify a warrantless entry of appellant’s private home under the theory of first-party consent would be clearly against the preponderance of the evidence.
2. Third-party consent
As an alternative theory, appellee argues that Allen provided a valid third-party consent to justify the warrantless entry. Again, we agree that voluntary third-party consent can be considered reasonable, United States v. Matlock, 415 U.S. 164 (1974); however, we disagree with the State’s position that such consent was given in this case.
It is questionable as to whether Srite’s observations at the time he received Allen’s “consent” were sufficient to sustain a conclusion that he reasonably believed that the consenting party had common authority over the premises that was searched. Assuming, arguendo, that the officer reasonably believed Allen had authority to permit the consent, we do not reach the question of apparent authority until we are satisfied that Allen’s actions constituted consent. See Ark. R. Crim. P. 11.1 (“An officer may conduct searches . . . without a search warrant or other color of authority if consent is given to the search. . . .”).
When viewing the totality of the circumstances, it is arguable that Allen’s conduct should not be construed as consent. Here, the dispute centers on whether Allen’s non-verbal conduct constituted third-party consent to the government to enter appellant’s home. While we do not necessarily hold that consent must be oral or written to be effective, we are concerned about the general notion of courts speculating as to the meaning of a third-person’s nonverbal conduct to reach the conclusion that a warrantless search was reasonable. After all, as stated in Bumper v. North Carolina, 391 U.S. 543, 548—549 (1968):
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.
See also White v. State, 261 Ark. 23-D, 24, 545 S.W.2d 641, 642 (1977). In our view, it is self-evident that from the officer’s perspective there is little, if any, objective difference between acquiescence to a claim of lawful authority and implied third-party consent. This realization, coupled with the fact that we must view searches in cases such as this as per se unreasonable, form the basis of our concern. This problem is remedied, of course, if the third-party consent is oral or, even better, written.
Our supreme court touched on the issue of implied consent in Norris v. State, 338 Ark. 397, 409, 993 S.W.2d 918, 925-926 (1999), and quoted with favor United States v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996) (citations omitted), which stated:
We have previously noted our hesitancy to find implied consent (i.e., consent by silence) in the Fourth Amendment context and we agree with our colleagues in the Ninth Circuit that, whatever relevance the implied consent doctrine may have in other contexts, it is inappropriate to “sanction[ ] entry into the home based upon inferred consent.” As Judge Ferguson cogently explained:
The government may not show consent to enter from the defendant’s failure to object to the entry To do so would be to justify entry by consent and consent by entry. “This will not do.” We must not shift the burden from the government — to show “unequivocal and specific” consent — to the defendant, who would have to prove unequivocal and specific objection to a police entry, or be found to have given implied consent.
The facts of the case at bar provide a good illustration of potential problems with nonverbal third-party consent. Srite acknowledged that he might have drawn his weapon before entering appellant’s home and was certain that he had instructed two additional officers to take appellant and Ellis away for interrogation. Following these events, he and Allen were alone — he was on the porch and she was inside the house. Srite’s testimony plainly demonstrates that he did not solicit Allen’s consent to enter appellant’s home, and he acknowledged Allen did not give him oral permission to enter the house. Instead, he merely told Allen that he needed to talk with her and asked if there was a place that they could talk. Thus, what Allen intended is unclear — was she inviting the officer inside appellant’s home or was she reacting to the command of a law-enforcement officer who may have drawn his weapon and was accompanied by at least two other officers who had already taken away the person who resided in the house?
When viewing the totality of the circumstances, we conclude that a finding that Allen’s actions constituted a communication to the government to enter appellant’s home that was both “unequivocal and specific” and given “freely and voluntarily” is clearly against the preponderance of the evidence. Moreover, in light of the foregoing, we also conclude that it is unnecessary and, accordingly, decline to address the issue of whether the government’s warrantless entry into appellant’s home was lawful under the theory that Allen had either actual or apparent authority to consent to the entry to appellant’s home. Instead, we merely conclude that the trial court’s denial of the suppression motion constituted reversible error for the foregoing reasons and, therefore, reverse.
III. Logical progression of events
In its final argument, appellee argues that the officer’s actions constituted a “logical progression of events” that warrant an affirmance of the denial of the suppression motion. In support of this argument, the State relies upon Adams, which relied, in part, on the United States Supreme Court decision of New York v. Belton, 453 U.S. 454, 460 (1981), in which the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” However, both Belton and Adams concern Fourth Amendment and the search and seizure of items following the stopping and detaining of individuals who are in vehicles. We decline to accept the State’s ostensible invitation to adopt Fourth Amendment analysis of the searches of vehicles to the searches of a home in light of the well-developed precedents that specifically touch on these rights as they pertain to a person’s home.
However, it is instructive to note that in Adams, the court also relied upon Baxter v. State, 274 Ark. 539, 542, 626 S.W.2d 935, 936-937 (1982), which also dealt with the stopping and detaining of an individual in a vehicle and stated:
The crucial issue in this case is whether the initial stop of appellant was valid under state and federal law. If the stop is found to be valid, the logical progression of events which followed resulted in probable cause for the arrest. The subsequent search of appellant’s car after the arrest was a search incident to a lawful arrest and valid under the recent case of New York v. Belton, 453 U.S. 454 (1981).
Accordingly, if we were to adopt the State’s invitation to apply the foregoing authorities to the homes, our conclusion would be the same. The crucial issue in this case is whether the initial entry of appellant’s home was valid under state and federal law. If the entry is found to be valid, the logical progression of events which followed could have resulted in a valid warrantless search of the house. However, for the reasons already stated, we conclude that the initial entry was unlawful and the search was unreasonable.
In reaching our decision, we do not intend to undermine the general manner in which our law-enforcement officers interact with their fellow citizens. However, we are cognizant that these officers occupy a special role in our society inasmuch as their actions frequently represent the government’s first contact with individuals. Because our laws rightly value the rights of these individuals, even the most casual of contacts by police officers — particularly when such contact involves the entering of a person’s home during the course of exercising official duties — can raise profound constitutional questions. In our view, the officer here simply operated beyond established parameters, which necessitates a reversal. “[T]o conclude otherwise would exact too high a cost inasmuch as such a decision would be contrary to the principles embodied in the Fourth and Fourteenth Amendments to the United States Constitution.” Mathis, 73 Ark. App. at 96, 40 S.W.3d at 820.
Reversed and remanded.
Neal, Bailer, and Roaf, JJ., agree.
Bird and Vaught, JJ., dissent.
It might be tempting to argue that the officer’s actions did not constitute a search because appellant was not originally the subject of the officer’s investigation. After all, the evidence does not appear to demonstrate that the officer purposefully attempted to deprive appellant of his guaranteed rights. However, our rules of criminal procedure do not define a search so narrowly. More importantly, to adopt such a rationale would circumvent the Fourth Amendment guarantee that one is secure in one’s homes, and such a decision would be contrary to the instructions in Boyd v. United States, 116 U.S. 616, 635 (1886), that “illegitimate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure. ... It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon.” | [
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L. GRIFFEN, Judge.
After pleading guilty to three, counts of Class A misdemeanor sexual misconduct, Richard Marion Hamm was placed on supervised probation for thirty-six months, conditioned upon Hamm serving one year in the county jail and paying a $1,000 fine and court costs. Approximately one year later, Hamm filed a motion for discharge from probation, alleging that he had been on probation for the maximum period of time allowed by law. The State responded that appellant’s motion was untimely. The trial court agreed, finding that because appellant was sentenced to one year in jail, the ninety-day limitation on sentence modification applied and that it lacked jurisdiction to modify appellant’s sentence. We hold that appellant failed to timely file his motion within ninety days. Consequently, we affirm.
On November 19, 1998, appellant was charged by information for the rape of a minor less than fourteen years of age. He entered into a negotiated plea and pled guilty to three counts of Class A misdemeanor sexual misconduct. As a result of his guilty plea, appellant received an imprisonment of one year, a fine of $1,000 and thirty-six months of supervised probation. He was also required to register as a sex offender.
During the plea proceedings, the court queried whether jail was a condition of probation. The State responded yes, and stated that if appellant did not serve 365 days in jail, he would face one year imprisonment on each count. The court entered an Order and Conditions of Supervised Probation on November 10, 1999. This order deferred sentencing and placed appellant on supervised probation for thirty-six months contingent upon him serving one year in the county jail. The record reveals the following exchange at the proceeding:
The COURT: And do you lawyers concur in this plea?
Mr. Gibson: Yes, we do, Your Honor.
Ms. Bradshaw: Yes.
The COURT: The Court finds the plea voluntarily and intelligently made. I further find that there is a factual basis for the plea. In exchange for a plea o[f| sexual misconduct, there’s three counts, a class A misdemeanor, it’s the judgment and sentence of this court to defer sentencing and place the defendant on supervised probation for thirty-six months. You are to comply with all the conditions of supervised probation. Some of the conditions have an N/A. That’s not applicable?
Mr. Gibson: That’s correct. Your Honor, the plea was a year in the county jail and thirty-six months unsupervised. And the conditions of probation are geared towards somebody who is reporting on a supervised basis.
The COURT: Well, where is the other paperwork? I — do you have a commitment form?
Mr. CHAMBERS: I don’t do a judgment and commitment form for a misdemeanor.
The COURT: I need a judgment.
Mr. CHAMBERS: Here it is. That’s one of the orders and condition of supervised probation to serve 365 days in the Ashley County jail.
Mr. Gibson: Right.
The Court: So is jail a condition of probation?
Mr. Chambers: That’s correct. If he doesn’t serve his 365 days in jail he could be revoked and he’s got three counts of one year each that he could face. What he’s doing right now, he’s only going to serve one year in jail. . . . And that’s what it says, the order on top of the document directs him to serve 365 days in jail. That’s because it’s a misdemeanor. . . .We typically don’t do judgment and commitment orders.
The Court: Well, I can do — I think he should be — Is he being sentenced to one year in jail now?
Mr. Gibson: Yes.
Later in the proceedings, the court engaged in the following colloquy:
The COURT: I don’t like to do — I’m not going to — Let’s do a regular sentencing to the county jail as if —
So the sentence, you will be sentenced to the county jail for one year?
The Defendant: Yes sir.
Mr. Chambers: Correct.
The Court: Does the probation begin after that?
MR. CHAMBERS: Correct. There will be two years after that, two years probation. [Emphasis added.]
Mr. Gibson: Right. [Emphasis added.]
The trial court entered its findings and orders from the November 8, 1999, proceeding on November 12, 1999, which included the following language:
The defendant is sentenced to the county jail for twelve months. Defendant shall be permitted to remain out for two weeks and is to report to the Ashley County Sheriffs Office on November 22, 1999, at 5:00 p.m.
Next, the court entered an Amended Order and Findings on December 6, 1999. This order stated as follows:
Defendant is sentenced to the Ashley County Jail for a period of 365 days. Defendant shall report to the Ashley County Jail within two hours from the time he is off work and shall be released two hours prior to reporting to work.
All previous orders and conditions not specifically modified shall remain in effect.
On December 20, 2000, appellant filed a motion for discharge from probation, alleging that he had been on probation for the maximum period of time allowed by law. In response, the State argued that appellant’s motion was untimely pursuant to a ninety-day statutory limitation. Following a hearing, the trial court found that appellant was sentenced to one year of imprisonment in the county jail, with a portion of the sentence requiring him to be on probation and complying with certain conditions. It then found that because the ninety-day limitation to modify a sentence was applicable, it lacked jurisdiction to modify appellant’s sentence. This appeal follows.
The crux of appellant’s argument hinges on his contention that he was not sentenced by the trial court, but was instead placed on probation conditioned upon him serving 365 days in jail. In response, the State persuasively argues that regardless of the semantics used, appellant was convicted with the result being that the trial court lost jurisdiction.
Arkansas Code Annotated section 5-4-401 (b)(1) (Repl. 1997) provides that a Class A misdemeanor sentence shall not exceed one year. When the defendant is placed on probation, the period of probation must not exceed the maximum jail time allowable for the offense charged. See Ark. Code Ann. § 5-4-306(a)(l) (Supp. 1999). Also, multiple periods of probation must run concurrently. See Ark. Code Ann. § 5-4-307(b) (Repl. 1997).
Once a valid sentence has been put into execution, the trial court loses jurisdiction to modify or amend an original order. See Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). While a sentence of jail time constitutes a conviction, our courts have repeatedly held that a conviction also occurs when a plea of guilty, combined with a fine and probation or a suspended sentence, is executed, such that the trial court is deprived of jurisdiction to amend or modify the executed sentence. See id.
Rule 37.2 (b) of our Rules of Criminal Procedure provides in pertinent part that “all grounds for post-conviction relief from a sentence imposed by a circuit court, including claims that a sentence is illegal or was illegally imposed, must be raised in a petition under this rule.” Subsection (c) goes on to state that when a conviction results from a plea of guilty, the party claiming relief under Rule 37.2 must file a petition in the appropriate circuit court within ninety days of the date of the judgment.
Section 16-90-lll(a) (Supp. 1999) of the Arkansas Code Annotated, allows a circuit court to correct an illegal sentence at any time. This remedy is narrow and only applies when the trial court seeks to correct a sentence that was imposed in an illegal manner within ninety days or when the petitioner establishes that the sentence was illegal on its face. See id.
Although section 16-90-111(b) allows a trial court to correct an illegal sentence at any time, Rule 37.2(c) of the Arkansas Rules of Criminal Procedure provides a ninety-day time limitation. The filing deadlines contained in Rule 37.2(c) are jurisdictional in nature. See Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (1995). Consequently, our supreme court has held that the ninety-day statute-of-limitation period prescribed in Rule 37.2 governs Rule 37 petitions as well as petitions filed pursuant to section 16-90-111(a). See id.
The record demonstrates that appellant entered a plea of guilty and received a 365-day jail term, plus a $1,000 fine. Pursuant to Pike, supra, appellant was convicted. As a result of his conviction, appellant was ordered to serve one year of imprisonment, followed by a two-year term of probation. This sentence was illegal because, contrary to section 5-4-306, appellant’s probationary period exceeded the length of his jail imprisonment. However, appellant filed his petition seeking to modify his sentence approximately one year later. Because the motion was not filed within the ninety-day limitation prescribed by Rule 37.2, the trial court correctly determined that it lacked jurisdiction.
Affirmed.
Bird and Crabtree, JJ., agree.
Appellant and his counsel may seek relief via a petition for writ of habeas corpus. See Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999). | [
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Layton Roaf, Judge.
Hawks Enterprises, Inc., d/b/a Hawks Mobile Homes, and Jim Morgan appeal from the denial of their motion to dismiss or to stay proceedings pending arbitration and to compel arbitration, in an action filed against them by the appellees, Phillip and Deborah Andrews, in connection with the purchase of a mobile home. On appeal, Hawks and Morgan argue that the trial court erred in 1) refusing to dismiss the action in favor of mandatory arbitration, and 2) refusing the alternative remedy of staying the litigation pending completion of arbitration. We affirm.
In December 1999, the Andrews contracted to purchase a mobile home from Hawks. Morgan was the agent who sold the Andrews the home. The Andrews traded in another mobile home, made a small down payment, and financed the remaining balance of $45,079. The Andrews signed a contract (“Sales Contract”), dated December 6, 1999, that contained the specifications of the mobile home and terms of the purchase.
The Andrews also executed a separate “Manufactured Home Retail Installment Contract Security Agreement” (“Installment Contract”) dated December 20, 1999, for financing of the unpaid balance. The Installment Contract contained an arbitration clause under which the Andrews agreed to settle any “disputes, claims or controversies arising from contract or the relationships which result from this contract” by arbitration. The clause also provided that the arbitration agreement was governed by the Federal Arbitration Act. The Sales Contract signed December 6, 1999, did not contain an arbitration clause.
On August 23, 2000, the Andrews filed suit against Hawks and Morgan for misrepresentation, negligence, and breach of contract. According to the complaint, the mobile home received by the Andrews did not meet the specifications they requested in the Sales Contract. The Andrews alleged, among other things, that Hawks and Morgan intentionally substituted a blank Sales Contract signed by the Andrews for the completed Sales Contract that contained the negotiated specifications.
On September 12, 2000, Hawks and Morgan filed a motion to dismiss with an alternative motion to stay the judicial proceeding and compel arbitration in which they contended that the court lacked jurisdiction and that the arbitration agreement governed the claims alleged in the complaint. They also asserted improper venue and failure to state a claim under Ark. R. Civ. P. 12(b)(6). The trial court denied the motion to dismiss and a subsequent motion to clarify, finding that Hawks and Morgan “had not explicitly made the [Sales Contract] subject to the arbitration clause,” that both the Sales Contract and Installment Agreement had integration clauses stating that they contained the entire agreement, that both appeared to be separate and separately enforceable and that “at best, this situation presents an ambiguity which would be construed against the party preparing the documents. ...”
On appeal,' Hawks and Morgan argue that the trial court erred in refusing to either dismiss the complaint or stay the litigation in favor of arbitration. In support of their arguments, they rely to a great extent on case law from federal courts regarding the construction of arbitration agreements. They assert, in essence, that the use of a broad arbitration clause in the Installment Contract indicates the intent of the parties to submit all disputes to arbitration, despite the absence of such a clause in the Sales Contract. Hawks and Morgan rely on two federal cases, Fleet Tire Serv. of North Little Rock v. Oliver Rubber Co., 118 F.3d 619 (8th Cir. 1997), and Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34 (5th Cir. 1990), in support of this argument. In Fleet Tire, the parties first entered into a licensing agreement containing a broad arbitration clause in 1990. In 1995, Fleet Tire prepared and obtained the signature of Oliver Rubber’s sales agent on a letter purporting to grant Fleet Tire an exclusive market with its licensed area. Fleet Tire subsequently sued Oliver Rubber for breach- of the 1995 agreement. The Eighth Circuit found that the broad arbitration clause contained in the original 1990 agreement governed all controversies and claims arising from and relating to it, and that the 1995 letter clearly related to the original agreement. The court reversed the district court’s denial of Oliver Rubber’s motion to stay Fleet Tire’s breach of contract suit pending arbitration.
Of course, Fleet Tire is not binding authority on this court; nor is it even persuasive authority in this instance. The Andrews’ action involved tort rather than contract claims and the initial Sales Contract had no arbitration clause while the subsequent Installment Agreement contained such a clause, the opposite of the situation in Fleet Tire. We also find Hawks’ and Morgan’s reliance on an Arkansas case, American Ins. Co. v. Cazort, 316 Ark. 314, 871 S.W.2d 575 (1994), likewise misplaced, and the case not dispositive of the issue of whether the Andrews may be compelled to arbitrate their tort claims because of Hawks’ reliance on the Federal Arbitration Act and federal case law. In Cazort, the plaintiff sued his brokers, for among other things, violation of the Federal Securities Act. The supreme court ruled that by alleging a violation of the Federal Securities Act of 1993, the appellee made a claim that was arbitrable and that claims alleging fraudulent inducement, intentional misrepresentation, and outrage are arbitrable under the federal act. This case clearly has no application to the kind of fraud allegations raised by the Andrews.
Moreover, since Cazort, our supreme court has reaffirmed that claims sounding in tort are not arbitrable, regardless of the language used in the arbitration agreement, despite the appellant’s attempted reliance on federal case law. Terminix Int’l. Co. v. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996). The case involved a suit against Terminix and others for fraud, deceit, and breach of a federal VA/HUD loan “contract” that arose from a faulty termite inspection and repair job, but there is no discussion in the opinion concerning the application of the Federal Arbitration Act to the dispute, and it is not clear that it was an issue in the case.
However, there is a further reason for our affirmance of the trial court’s ruling in this case. We will affirm the trial court where it reaches the right result, without regard to the reasoning employed by the trial court. Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997). In Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000), the supreme court held that an arbitration clause contained in the appellant check-cashing service’s agreement with its customers was invalid for want of mutuality, one of the essential elements of a contract, and affirmed the trial court’s denial of its motion to compel arbitration of a suit against it for violation of Arkansas usury laws. The arbitration clause at issue provided that all disputes should be submitted to arbitration, except for Showmethemoney’s actions to collect amounts due it, and further stated that Showmethemoney “cannot be sued in any court or on any controversy or dispute.”
In this instance, the arbitration clause employed by Hawks and Morgan suffers from the same infirmity. It provides that “all disputes arising under case law, statutory law, and all other laws, including, but not limited to contract, tort, and property disputes will be subject to binding arbitration.” Notwithstanding this language, the arbitration clause further states that Hawks retains the option to use judicial or nonjudicial relief to enforce a security agreement related to the collateral, to enforce the monetary obligation or to foreclose on the collateral, that such relief would take the form of a lawsuit, and that the Andrews would be precluded from filing a suit, including a counterclaim, in the event Hawks did file a lawsuit against them.
Pursuant to the supreme court’s ruling in Showmethemoney, this arbitration clause is clearly invalid for lack of mutuality, and we cannot say that the trial court erred in refusing to grant Hawks and Morgan’s motion to dismiss or stay litigation.
Affirmed.
Robbins and Baker, JJ., agree. | [
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Tom Glaze, Judge.
This appeal involves the property settlement provisions of a divorce decree rendered in appellee wife’s favor on June 10, 1982. Appellant husband contends the chancellor erred in two respects: (1) in using an award of alimony to effectuate an unequal division of the parties’ home held in tenancy by the entirety; and (2) in awarding excessive alimony.
The parties were married for twenty-one years and were about forty-one years old at the time of the divorce. Their three children were past majority and in college. The appellee did not work outside the home during the marriage except for two brief stints as a nurse’s aide, one in 1960 and the other in 1967 or 1968. At the time of the hearing, she testified that her only sources of support were from piano lessons she gave two days a week and food stamps. The appellant provided the sole financial support for the family throughout the marriage by working as a Methodist minister and as a carpenter. His income tax records for 1981 reflected a gross income of $12,000; he testified that was about as much as he ever earned. At the time of the hearing, he was a building contractor in Oklahoma, earning $8.00 an hour.
The chancellor awarded appellee a divorce and alimony of $150 a month for twelve months, to be reduced to $100 a month for the next twenty-four months, then to terminate. Appellant’s arguments on appeal concern the chancellor’s orders pertaining to both the real property which the parties owned as tenants by the entirety and the alimony award. The appellee resided on the subject property and neither party wanted it sold at the time of divorce. The chancellor awarded possession of the residence to the appellee for three years, provided she uses it as her principal residence. He ordered the appellant to pay all mortgage payments, taxes, and insurance; one-half of these were ordered to be reimbursed to him when the property is sold. Should appellee choose to vacate the residence before the three-year term ends, the chancellor ordered that she be paid $200 a month additional alimony — the apparent rental value of the property — for the balance of the designated term. In addition, the chancellor determined that $4,200 was the equity in the property, and the parties are to receive one-half of that equity amount if the property is sold. He further directed that, upon receiving that amount, the parties will share equally in any additional equity above $4,200, after appellant is reimbursed for his payments of the appellee’s share of mortgage, insurance, and taxes. Finally, the chancellor provided that any mortgage payments, insurance, and taxes not reimbursed are to be considered additional alimony, support, and maintenance.
Appellant first contends that the chancellor erroneously used an award of alimony to effectuate an unequal division of the property held as tenants by the entirety. We disagree. The law is well settled that it is within the discretion of the trial court to award the innocent party in divorce suits the possession, for a limited time or for life, of a homestead held by the entirety. Yancey v. Yancey, 234 Ark. 1046, 356 S.W.2d 649 (1962). The Supreme Court has 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. Schaefer v. Schaefer, 235 Ark. 870, 362 S.W.2d 444 (1962).
In Schaefer, the chancellor awarded possession of the homestead to the wife, who was given custody of the parties’ children at the time of divorce. Later, the husband attained custody of the children, but the wife retained possession of the home; the husband was ordered to keep the house in repair. On appeal, the husband contended the award of possession and payment on the home’s upkeep amounted to an impermissible award of alimony. In affirming the chancellor’s action, the court pointed out the disproportionate incomes of the two parties and said that if the wife were evicted from the property, the chancellor presumably would require the husband to make monetary payments to his wife. In the instant case, as in Schaefer, the parties had widely disproportionate incomes and earning abilities; accordingly, the chancellor went to great lengths to provide for the wife’s basic needs until she is able to provide for herself. In doing so, the chancellor awarded appellee possession of the property on terms both equitable and just. In fact, although the chancellor ordered appellant to pay the note, insurance and taxes on the house, the appellant will be reimbursed these payments before the final net proceeds are distributed equally between the parties. As was the case in Schaefer, the trial judge presumably could have given larger monthly monetary payments to the appellee to rent a home for the designated three-year term. Instead, the chancellor adopted an arrangement whereby appellant could ultimately receive part or all such payments made to temporarily provide a home for his wife of twenty-one years.
Before proceeding, we note appellant’s argument that the chancellor’s award violates the principles announced in Belanger v. Belanger, 276 Ark. 522, 637 S.W.2d 557 (1982), and Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). Neither Belanger nor Warren controls here. In Belanger, the contested properties were owned either by the husband or his parents; they were not homestead property held by the entirety. Thus, that case simply is not applicable here. The Supreme Court’s decision in Warren is applicable only to the extent that the instant case involves entirety property. Within that context, we find the trial court’s award totally consistent with the rules set forth in Warren. In this connection, the trial court determined the parties’ property was held by the entirety, and its decree provided for the equal division of the property when it is sold. As we pointed out earlier, the trial court otherwise had authority to place appellee in possession of the property until it is sold and to provide during this interim period for the appellant to pay the necessary monthly encumbrances.
Appellant also contends the chancellor abused his discretion by making an excessive and unreasonable award of alimony. Appellee was awarded $150 a month for twelve months to be decreased to $100 a month for the next twenty-four months, subject to termination at her remarriage. The evidence showed that appellee’s only income was derived from teaching private piano lessons. This income varied from $7 to $21 a week in the summer and from $50 to $70 a week during the school term. In addition, appellee testified she had been forced to collect food stamps in amounts ranging from $21 to $70 a month. She testified that her needs included food, utilities and gasoline for her car. She expressed her desire to work, but testified that her attempts had been thus far unsuccessful because of her lack of training and experience.
Although appellant was somewhat evasive in his testimony concerning his income and expenditures, the record indicates that his net income was about $11,000 a year, or $916 a month. He testified that he lives in a house owned by his aunt and that he pays no rent. His expenses include food, utilities, and gasoline for his car, totaling about $300 a month. At the time of the hearing, his children were living with him and sharing expenses, although he testified that all three children would be going to college soon and that he would help them with their expenses if he could. If we add to his expenses of $500 the $250 monthly mortgage payment and $24 monthly tax and insurance payments the chancellor ordered him to pay, his total expenditures are $574 a month, leaving appellant with approximately $342 a month. In view of these figures, we cannot say the chancellor was clearly erroneous in ordering appellant to pay alimony in the amount he set.
Affirmed.
Mayfield, C.J., and Cracraft, J., agree.
Appellant testified that $1,000 of his income was derived from his share in certain oil leases. Although he indicated there was no guarantee that he would receive such lease payments in the future, the leases were still in effect at the time of trial. | [
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John B. Robbins, Judge.
Appellant Myron Clay Nelson appeals his convictions for aggravated assault on a family or household member and felon in possession of a firearm after a bench trial in Pulaski County Circuit Court. The State also filed a petition to revoke appellant’s probation in another case, and appellant agreed to have this petition considered simultaneously with the bench trial. The trial judge found appellant guilty of the charges, and also found appellant to have violated the terms of his probation. The sentences given were run concurrently, effecting a six-year prison term. This appeal resulted. Appellant’s counsel has filed a motion to be relieved as counsel and a no-merit brief with regard to the convictions and a merit-based brief regarding the revocation. Appellant was notified of his counsel’s motion and brief but filed no pro se response. The State agrees with appellate counsel that there is no merit to any appeal of the convictions, but disagrees with appellate counsel that the revocation should be reversed. We affirm the convictions and revocation.
The basis for the assault and felon-in-possession charges was an incident that occurred in the home of appellant’s parents, Simon and Delores Nelson, on December 8, 2001. Simon and appellant began arguing, appellant’s three children were present, Delores believed that her son was intoxicated, a shotgun was brought out by one of the men, and Delores left the residence to call the sheriffs department.
Sheriffs deputies were dispatched. One of the deputies testified that Delores met him and his partner outside and told them that her son had a shotgun and was fighting with her husband. They talked to Simon, who stated to deputies that his son was “acting crazy,” that appellant then retrieved a shotgun from a bedroom, and that then appellant pointed the shotgun at him and the children, but that he (Simon) was able to wrestle the gun away from appellant. A loaded twelve-gauge shotgun was recovered from the residence. Another deputy testified that appellant’s parents were very upset.
Immediately thereafter, an incident report was prepared, commemorating their recollection of the event. Delores hand-wrote their statement, reiterating that appellant retrieved a shotgun from inside the house and threatened other family members with it. However, at the bench trial, their testimonies were that it was Simon, and not appellant, who had the gun at all times, and that somehow there had been a mistake in the written report following the incident. During the State’s examination of Delores, the prosecutor moved to admit the written statement given to the police and asked if he could have Delores declared a hostile witness so that he could lead her during examination. The trial judge permitted the request and admitted the report without objection from defense counsel. Appellant’s prior felony record was admitted without objection.
Defense counsel moved for directed verdict on both charges based upon the parents’ testimonies that appellant never had the gun. The motion was denied, the trial judge noting that the parents’ statements dictated otherwise. Appellant then took the stand and testified that he and his father argued that day, that he had been drinking a little bit and was acting wild, but that he never had the gun. Renewed motions for directed verdict were denied.
The trial judge found that the parents’ changed testimony was not credible, that their written statements following the incident were consistent with the deputies’ testimony, and that appellant was guilty of both offenses. Given the guilty finding, the trial judge revoked appellant’s probation. These appeals followed.
On the convictions, pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant’s counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal.
The only adverse rulings were the denials of his motions for directed verdicts. We test the sufficiency of the evidence to determine whether the verdict is supported by substantial evidence, direct or circumstantial. See Ark. R. Crim. P. 33.1(b) (2003); see also Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). We need only consider the evidence supporting the guilty verdict, and we view that evidence in the light most favorable to the State. Id. We examine all of the evidence, including any evidence that may have been admitted erroneously. See Cook v. State, 11 Ark. App. 20, 73 S.W.3d 1 (2002). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Credibility determinations are left to the fact-finder. Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995).
Arkansas Code Annotated section 5-26-306 (Repl. 1997) defines aggravated assault on a family or household member as one who, under circumstances manifesting extreme indifference to the value of human life, purposely engages in conduct that creates a substantial danger of death or serious physical injury to a family or household member. “Family or household member” includes parents. Ark. Code Ann. § 5-26-302(3). Given that the State established to the satisfaction of the finder of fact that appellant indeed possessed the firearm and threatened family members with it prior to having the gun wrested from his grip, this evidence supports a conviction for that crime. This court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002).
We must point out that appellant’s counsel failed to object to the use of the hearsay written report as substantive evidence of guilt, which is generally impermissible under Ark. R. Evid. 801 (d)(1) (i). Failure to object on the part of defense counsel waived any error that might be predicated on an erroneous use of that information. See Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). As we consider for sufficiency purposes all the evidence that was admitted properly or erroneously, we conclude that there is substantial evidence to support the conviction and that no meritorious argument could be raised on appeal.
“Felon in possession of a firearm” as defined in Ark. Code Ann. § 5-73-103 (Supp. 1991) provides that no person shall possess or own any firearm who has been convicted of a felony. Appellant challenged the State’s proof only as to actual possession of the gun. To possess means to exercise actual dominion, control, or management over a tangible object. Ark. Code Ann. § 5-1- 102(15) (Supp. 2001). Possession can be brief. See Johnson v. State, 306 Ark. 399, 814 S.W.2d 908 (1991); Turner v. State, 24 Ark. App. 102, 749 S.W.2d 339 (2000). Again, given the credibility determination made by the trial judge, and viewing all evidence received in the light most favorable to the State, there can be no meritorious argument on appeal that appellant did not possess the shotgun. The convictions are affirmed and counsel relieved.
We move now to the consideration of the merit-based argument presented on appeal regarding the revocation of appellant’s probation. Appellant argues for the first time on appeal that the State failed to produce proof at the consolidated proceeding that a written list of probationary conditions was given to him, and that therefore no revocation could be had. Appellant argues that even though he is raising this for the first time on appeal, the sufficiency of the proof to revoke is nevertheless open for review.
Appellant cites Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), for the proposition that defendants are not required to move for directed verdict in revocation proceedings in order to review the sufficiency of the evidence on appeal. Appellant asserts that because the State must provide defendants a written list of conditions of probation before one can be revoked for violation of a condition, Zollicoffer v. State, 55 Ark. App. 166, 934 S.W.2d 939 (1996), and because the State failed to put forth that proof at the revocation proceeding, there lacks sufficient evidence to support revocation. We disagree.
We acknowledge that the sufficiency of the State’s proof as to violating a condition of probation may be challenged on appeal of a revocation in the absence of a directed-verdict motion. See Barbee v. State, supra. However, the rule requiring one to make procedural and evidentiary objections known to the trial court is still a viable rule of law. At no time did appellant raise this issue by pointing out to the trial court that he had not been furnished a written statement of his conditions or by objecting to the revocation hearing on that ground. In fact, appellant stipulated that the evidence put forth in the bench trial would serve as the State’s basis to revoke his probation. This court will not consider issues raised for the first time on appeal. Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982).
The reason for the statutory requirement in Ark. Code Ann. § 5-4-303 (Repl. 1997) that probationary conditions be given to probationers in writing is to avoid misunderstanding by the probationer. Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981). This requirement comports with due process; otherwise, the trial courts have no power to imply and then later revoke on conditions that were not expressly communicated in writing to the defendant. Neely v. State, 7 Ark. App. 238, 647 S.W.2d 473 (1983). This is not an issue of jurisdiction that can be raised at any time; it is instead a procedural issue that is waived by appellant’s failure to raise it to the trial court. See Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987); Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984); Hawkins v. State, 270 Ark. 1016, 607 S.W.2d 400 (Ark. App. 1980). In Cavin v. State, supra, Cavin challenged the revocation of his probation on appeal arguing (1) that there was insufficient evidence to revoke, and (2) that he was never given a written statement of conditions in compliance with the statutory mandate to do so. Our court rejected both contentions on appeal, the second because it was a procedural matter that appellant failed to object to at the proper time, waiving the issue for consideration on appeal. Failure to object at the proper time waives rights otherwise afforded to a criminal defendant. Banning v. State, supra; Cavin v. State, supra; Hawkins v. State, supra. Appellant has failed to provide any convincing argument or authority to support his contention that this procedural matter is equivalent to a challenge to the sufficiency of the evidence to support finding a violation of one of those written conditions, and we therefore affirm the revocation.
Appellant’s convictions are affirmed and counsel relieved in the no-merit appeal. Appellant’s revocation on appeal is likewise affirmed on the merits.
Vaught and Crabtree, JJ., agree.
In the Kennedy case, appellant argued on appeal that the trial judge erroneously permitted the State to use a prior inconsistent statement as substantive evidence of guilt and not just for impeachment, in violation of Ark. R. Evid. 801.The supreme court rejected that argument for failure to preserve the issue for appeal, though had he objected to using the statement for that purpose, “the trial court would have undoubtedly sustained the objection.” | [
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Lawson Cloninger, Judge.
The issue on appeal is whether the trial court erred in refusing to enforce a property settlement and child support agreement. We are of the opinion that, under the circumstances, the minor’s service in the armed forces, followed by his enrollment in college nearly a year after his discharge, ended appellee’s obligation. Thus, we affirm the trial court’s decision.
Appellant and appellee were divorced in 1976. By agreement of the parties, appellant was granted custody of the couple’s minor child, Brian. A property settlement and child support agreement provided that appellee would pay $150 per month for support and maintenance of the child and would continue this support “through college if [the] child elects to attend an accredited college and so long as [he] works toward an accredited degree.” Provision was made for payments to continue through all twelve months of each college year. In 1977 monthly child support payments were increased from $150 to $200.
Brian, still a minor, enlisted in the United States Navy in November, 1980. He was discharged in March, 1982, at the age of eighteen, following an automobile accident. He received no benefits from the Navy. In the spring of 1983, the young man matriculated at the University of Arkansas at Fayetteville. He continued there through December 1983, and then transferred to the University of Arkansas at Little Rock for the next semester. The testimony indicates that between March, 1982, the date of Brian’s discharge from the Navy, and January 16, 1984 — the date of the hearing — a period of some twenty-one months, the young man had earned twenty hours of college credit. At the time of the hearing, the parties’ son was enrolled for sixteen academic hours and was employed part-time.
When appellee learned in December, 1980, that his son was serving in the Navy, he discontinued child support. After Brian’s release and subsequent enrollment in college, appellee continued to refuse to make payments, asserting that his son had emancipated himself by joining the Navy and that he was no longer obligated to provide support. Appellant filed a motion in December, 1983, seeking enforcement of the child support agreement. Appellee responded that a change of circumstances had occured because the child had held himself out as an adult on entering naval service. In January, 1984, appellee petitioned Saline Chancery Court, requesting that he be relieved from any duy to pay child support. A hearing was held, and the chancellor found that appellee was no longer obligated to provide child support to appellant for Brian’s support and education because any duty ceased at the time of the son’s enlistment.
A parent is not under an absolute legal obligation to support an able-bodied child who has reached the age of majority. Any order for support beyond that age must be responsive to the particular circumstances of the case. Hogue v. Hogue, 262 Ark. 767, 561 S.W.2d 299 (1978). See also Matthews v. Matthews, 245 Ark. 1, 430 S.W.2d 864 (1968); Jerry v. Jerry, 235 Ark. 589, 361 S.W.2d 92 (1962). In addressing the particular circumstances in this case, we must ask whether, at the time of the settlement, the parties contemplated the course of action pursued by their son.
It seems reasonable to infer that appellee was agreeing to provide child support under the ordinary pattern of enrollment for full time college study in the autumn semester following graduation from high school. Appellee surely did not envision obligating himself indefinitely. Fundamental principles of equity demand that appellee not be held liable for child support for the period during which Brian was away from home and receiving income from the Navy. On his discharge from the armed forces, Brian was no longer a minor and was no longer unable to pay his way at home. His academic career resumed approximately nine months after his naval career ended. Given these facts, we cannot fault the chancellor’s finding of emancipation.
Affirmed.
Glaze, J., concurs. | [
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Tom Glaze, Judge.
Appellees sued appellants in circuit court to recover the value of certain construction work they had done for appellants. The jury returned a verdict of $4,360.16 for appellee Cecil Edwards Construction Company (Edwards), and $19,862.48 for appellee Steve’s Plumbing and Heating. On appeal, appellants Dr. E. G. Dooley and Williams Chemical Company, Inc., contend the trial court erred: (1) in admitting testimony pertaining to another lawsuit pending between the parties in Oklahoma; (2) in permitting the permissive joinder of the appellees as plaintiffs; and (3) in giving certain instructions to the jury.
Appellee Edwards is a general building contractor. In May of 1980, appellants and Edwards agreed that Edwards would do certain construction work for appellants. Edwards hired appellee Steve Cooksey as a subcontractor to do plumbing. From May, 1980, to July, 1981, appellees worked on five construction projects for appellants in Arkansas and one in Oklahoma. The last project was the construction of a truck stop in Oklahoma. Because they became dissatisfied with the work the appellees had done on the truck stop, appellants terminated their relationship.
Appellee Edwards’ officials testified at great length about the nature of the construction work they had done for appellants. They admitted that appellants had paid them all they owed for the work done in Arkansas, except for $4,300 due on a construction job at Sebastian Lakes. Appellee Edwards stated that appellants owed his company approximately $85,000 for the Oklahoma project. Appellee Cooksey testified that even though he was Edwards’ subcontractor, he had a separate agreement with appellants whereby he was to directly bill appellants at the conclusion of all of the plumbing he did for appellants and that he did bill appellants, who never paid him for his work on the Arkansas construction projects. Appellee Cooksey admitted that slightly over a year passed between the start of his work for appellants and his presentation of a bill to appellants for the work done on the five Arkansas projects. Appellee Cooksey also stated that he worked on the Arkansas projects at the same time he worked on the truck stop in Oklahoma. Dr. Dooley testified for the appellants and admitted that both appellees had provided construction services for them at their request, but denied owing either appellee any money beyond what had already been paid to Edwards. He also denied having any direct billing agreement with appellee Cooksey and stated that if Cooksey was not paid, Edwards, Cooksey’s general contractor was liable.
Appellants’ first argument for reversal is that the trial court erred in admitting evidence pertaining to the construction of the truck stop in Oklahoma, which was the subject of a then-pending lawsuit between the parties in Oklahoma. According to appellants, the testimony describing the circumstances of the truck stop construction work and the existence of a resultant lawsuit was irrelevant and prejudicial and therefore should not have been admitted. Relevant evidence is, of course, evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. Unif. R. Evid. 401. Although relevant, evidence maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. Unif. R. Evid. 403. Before analyzing the relevancy of the testimony pertaining to the lawsuit in Oklahoma, we note that the trial court has discretion in ruling on the relevance of evidence, and we will not reverse in the absence of an abuse of discretion. Olson v. Riddle, 280 Ark. 535, 659 S.W.2d 759 (1983).
We agree with the trial court below that the testimony complained of is relevant. The testimony does go to the existence of some fact that is of consequence to the determination of this action — in this case, the evidence of the lawsuit in Oklahoma goes to the issue of whether or not appellants owed any money to appellees. This evidence makes the existence of the issue more or less probable because it suggests why appellants would refuse to pay appellees when they did, in fact, owe them. Edwards’ officials testified that the Sebastian Lakes project was completed in April of 1981, but that the final bill for the job, the $4,360.16 at issue, was not submitted to appellants until June 30, 1981. By July 1, 1981, appellants had become dissatisfied with appellees’ work on the truck stop in Oklahoma and had dismissed them — in fact, Edwards’ officials noted that they had been run out of appellees’ office in July of 1981.. When cross-examined about the Sebastian Lakes bill, appellant Dooley stated:
I couldn’t understand why we were billed, there, in June for a job where the store opened at Christmas time. It appears like all of these billings took place after the truck stop job was — was finished and we had difficulties on that last — problems over there.
From the foregoing evidence, appellants’ receipt of Edwards’ $4,360.16 bill for the Sebastian Lakes job coincided with the appellants’ dismissal of Edwards over Edwards’ workmanship on the Oklahoma truck stop job. Obviously, the jury could have concluded from these facts that even if appellants owed Edwards for the Sebastian Lakes job, they had no intention of paying Edwards any more monies after they severed their relationship, at least until they resolved their differences over the Oklahoma job-This evidence may be of slight relevance in this respect; however, as McCormick on Evidence notes, it is enough if the item of evidence reasonably shows that a fact is slightly more probable than it would appear without the evidence. McCormick on Evidence, at 540-48 (3d ed. 1984).
In addition, appellees testified that they did not complete the construction projects one after the other, but they worked on the Oklahoma job while they were busy with the Arkansas projects. Appellee Edwards’ secretary-treasurer stated during cross-examination that appellants’ failure to pay for the work Edwards did in Oklahoma “was the reason behind” their decision to sue to collect the debt owed on the Sebastian Lakes project. This testimony about appellees’ construction work for appellants in Oklahoma and the resultant lawsuit is background information necessary to enable the jury to fully understand the relationship between the parties. Such background information is relevant. See McCormick on Evidence, 541 (3d ed. 1984); and M. Graham Handbook on Federal Evidence, 147 (1981).
Even if the evidence at issue is relevant, it may be inadmissible because it is unfairly prejudicial. Ark. Unif. R. Evid. 403. The testimony pertaining to the truck stop construction in Oklahoma is not unfairly prejudicial to appellants. When questioned about the project, representatives of Edwards stated that the lawsuit that arose from the project in Oklahoma was merely pending. Appellants argue that the appellees’ testimony bearing on the Oklahoma action prejudiced them because such testimony presented appellants to the j ury as having not paid three claims, rather than only two claims. However, on cross-examination of Edwards’ president, appellants developed testimony pertaining to their counterclaims in the Oklahoma suit which suggested to the jury that appellee Edwards did inferior work and tried to defend them by charging for work his company did not do. If any party was prejudiced by the testimony, it was appellees, not appellants. In addition, appellee Cooksey’s testimony concerning his billing practices for the Oklahoma project actually supported appellants’ case in that Cooksey admitted that he did not bill apellants directly for this work, but instead billed appellants through appellee Edwards, his general contractor. Given the earlier testimony that the Arkansas projects and the construction in Oklahoma were all done at approximately the same time, appellee Cooksey’s admission lends support to appellants’ contention that they had no direct billing agreement with Cooksey.
Appellants next argue that the trial court erred in denying their motion for severance of the appellees, based on their improper permissive joinder. Arkansas Rule of Civil Procedure 20(a), which governs permissive joinder of parties, states, in part:
All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or rising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action . . .
The facts in this case, summarized above, clearly demonstrate that the appellees were involved in the same series of transactions — namely, the construction projects that they both worked on for appellants. At trial, the testimony revealed that there were questions of law and fact common to appellees that arose in their actions — for example, both appellees presented a great deal of testimony to explain appellee Cooksey’s billing practices and thereby to establish Cooksey’s reasons for directly billing appellants. Each appellee needed to establish the fact of Cooksey’s agreement with appellants regarding payment for his plumbing services — appellee Edwards to show that his company had received only money due to it, and appellee Cooksey to show that appellants had, in fact, agreed to pay him, rather than Edwards, his general contractor. The trial court’s decision to permit joinder of the appellees in this action was correct and prevented needless waste of scarce space on the court’s docket.
Appellant’s third allegation of error is that the trial court erred in giving certain instructions to the jury. The instructions appellants complain of were given for both appellees. The instructions provided that if the jury found a contract existed between each appellee and appellants but that the parties had stated no price term in the contract, and if the services were provided by one party and were accepted by the other, and if the party providing the services proved their reasonable value, then the jury should find for the party providing the services. The appellants argue that the trial court gave the jury instructions pertaining to the existence of an implied contract between appellees and appellants. According to appellants, this was error because the existence of such an implied contract was not an issue in the case, and no party presented any evidence that such a contract existed.
This argument is meritless. The instructions appellants complained of are not based on any implied contract theory. Rather, the instructions are based on Arkansas case law, which holds that if a contract makes no statement of the price to be paid for services, the law invokes the standard or reasonableness and fair value, and the fair value of the services is recoverable. Hawkins v. Delta Spindle of Blytheville, 245 Ark. 830, 434 S.W.2d 825 (1968). The instructions were justified because appellants admitted that they had a contract with appellee Edwards, that appellee Cooksey was a subcontractor of appellee Edwards, and that both appellees had provided services which appellants had accepted. Appellants disputed only whether they owed appellee Edwards the amount Edwards claimed and whether they owed appellee Cooksey any money at all. Clearly, these facts admitted by appellants justify the trial court’s giving the instructions at issue. Indeed, for the trial court to have refused to give these instructions would have been error because a jury should be instructed on all theories of recovery which the evidence warrants. Daniel v. Quick, 270 Ark. 528, 606 S.W.2d 81 (1980).
Affirmed.
Mayfield and Cooper, JJ., agree. | [
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ANDREE Layton Roaf, Judge.
The sole issue in this divorce case involves the unequal division of proceeds from the sale of the parties’ jointly owned marital homestead. Sharon Dennis appeals from the chancellor’s decision, which was based upon appellee James Dennis’s claim of an oral agreement, to award James the nonmarital funds he contributed toward the purchase of the home. She contends on appeal that the chancellor erred by 1) awarding James a greater interest in homestead property held in tenancy by the entirety, or, in the alternative 2) awarding James a greater interest in marital property without stating the reasons for the unequal division, as required by statute. We affirm the chancellor.
Sharon and James were married in 1986. At the time of the marriage, they both owned homes in Litde Rock. After the marriage, Sharon moved into the home owned by James; her home was subsequendy sold. Sharon testified that she netted approximately $4,000 from the sale, and that those proceeds were used to pay marital expenses.
In 1990, the parties purchased a home in Cabot, Arkansas. Prior to this purchase, James also sold his home in Litde Rock and netted approximately $31,000 as his share of the proceeds. James testified that this money was used for the down payment, closing costs, and moving expenses associated with the purchase of the home in Cabot. According to the testimony, the home in Cabot was titled in the names of “James A. Dennis and Sharon D. Dennis.” After the purchase of the home in Cabot, James and Sharon, pursuant to agreement, each paid one-half of the monthly mortgage payments until they separated in June 1996. After the separation, Sharon remained in the home and made the entire payment during the pendency of the divorce.
At the final divorce hearing on November 25, 1998, Sharon testified first. Her testimony was that the parties had agreed to each pay one-half of the monthly mortgage payments, that she lived up to that agreement, and that they owned the house jointly, in “equal names.” The only testimony offered by Sharon with regard to the agreement between the parties is as follows:
Q. Would you explain to the Court the arrangements which your husband had in regard to the payments that were made, the monthly mortgage payments?
A. The agreement that we had when we purchased the home in 1990 was that my contribution to the house would be half the house payment, and from that point in time, I began making half the house payment.
Q. You owned the house jointly?
A. Owned it jointly.
Q. Equal names?
A. Equal names.
Q. And you each made equal payments?
A. Yes, sir.
James testified after Sharon and concurred that the parties had agreed to divide the mortgage payments,, however he testified that they also agreed that if they divorced he would get the $31,000 back out of the sale of the house, and the rest would be divided between the parties, stating, “That was our agreement as well as she would pay half of the house payment because she was the one that was insistent on buying a new house. I was perfectly happy where I was. But that was our agreement.” When James was cross-examined by Sharon’s lawyer about whether the agreement was put in writing, he stated, “No, we have put nothing in writing as a matter of fact. Any of the things you’ve talked about so far haven’t been in writing. But that was our agreement also because she pressured so much to be there, and was so fanatic about it being her house.” Sharon did not offer any rebuttal to James’s testimony.
The trial court granted James’s request to trace the $31,000 back to him, holding that the $31,000 would be offset by the $4,000 Sharon received from the sale of her nonmarital home, and gave Sharon credit for the reduction of the principal owed on the home from the date of the final hearing until the house was sold. The remainder of any equity in the home was to be divided equally. Sharon appeals from this order.
The issue presented in this appeal deals with the division of property. In reviewing such cases, we affirm the findings of the chancery court unless they are clearly erroneous. Dunavant v. Dunavant, 66 Ark. App. 1, 986 S.W.2d 880 (1999), citing Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). Where matters of credibility are concerned, findings of those in a position to observe the witnesses (in this case, the chancellor), are given great weight. Box v. Dudeck, 265 Ark. 165, 578 S.W.2d 567 (1979). On appeal, we only reverse such a judgment if it is clearly against the preponderance of the evidence. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978).
When property is placed in the names of a husband and wife, by an instrument running to them conjunctively, and without specification of the manner in which they take, a presumption arises that they own the property as tenants by the entirety. Dunavant v. Dunavant, supra (citing Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988)). In Lyle v. Lyle, 15 Ark. App. 202, 691 S.W.2d 188 (1985), this court stated that when a husband and wife hold property as tenants by the entirety, there arises a presumption of a gift from the party furnishing the consideration. Lyle involved a husband and wife who made a down payment on forty acres and a house that was held as tenants by the entirety. In dividing the proceeds, the chancellor credited each party with the amount contributed toward the down payment on the forty acres. This court reversed and remanded, holding that although the contributions toward the down payment came from separate funds, the forty acres were held as tenants by the entirety, and, in such a situation, a presumption arises of a gift from the party furnishing the consideration.
Although this presumption is rebuttable, it is a strong one. In Ramsey v. Ramsey, 259 Ark. 16, 20, 531 S.W.2d 28, 31 (1975), the supreme court stated the following:
The presumption is strong, and it can be overcome only by clear, positive, unequivocal, unmistakable, strong and convincing evidence, partially because the alternative is a resulting trust the estab lishment of which, under such circumstances, requires that degree of proof. (Citations omitted.)
In McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991), this court held that the wife failed to overcome the presumption of a gift with regard to stocks, bonds, and securities purchased primarily with funds derived from her separate property, but held jointly, with her husband. The only evidence that the wife offered to rebut the presumption that she intended to make a gift was her testimony that she always thought of the stocks, bonds, and securities as being her property and that her husband was entided to the income or what it could buy only as long as he was married to her.
We find the present case to be distinguishable from Lyle, supra, and McLain, supra. First, the assertion of an oral agreement is not analogous to the claim made by appellee in McLain that she did not “intend” to make a gift. Second, although the issue here is likewise whether the testimony presented by James is sufficient to rebut the presumption, Sharon testified only that the parties orally agreed to divide the mortgage payments, and that they owned the home jointly, in “equal names.” To rebut the presumption, James testified that there was an additional aspect of the oral agreement providing for return of his nonmarital contributions when the home was sold. His testimony was also clear that the agreement was made to overcome his resistance to buying the new house. Sharon did not deny the existence of this aspect of the agreement; her statement that the home was in “equal names” is ambiguous at best and falls far short of a denial of the clear and specific testimony offered by James. Under these circumstances, we cannot say that the trial court was clearly erroneous in finding the testimony presented by James sufficient to overcome the presumption.
Affirmed.
Pittman, Jennings, and Neal, JJ„ agree.
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OLLY NEAL, Judge.
This is a slip-and-fall case. The jury entered a verdict in the amount of $30, 296.78 in appellant Dorothea Kopriva’s favor, but declined to make an award for Stanley Kopriva’s loss of consortium claim. Appellee subsequently moved for judgment notwithstanding the verdict (JNOV). This appeal is taken from the trial court’s order granting appellee’s motion for JNOV Appellants’ sole point for reversal is that the trial court erred in granting appellee’s motion for JNOV We find no error and affirm.
A trial court may grant a JNOV only if there is no substantial evidence to support the verdict of the jury and the moving party is entided to judgment as a matter of law. Unicare Homes, Inc. v. Gribble, 63 Ark. App. 241, 977 S.W.2d 490 (1998). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. Union Pac. R.R. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). On appeal, we will only consider the evidence favorable to the appellee, together with all its reasonable inferences. Home Mut. Fire Ins. Co. v. Jones, 63 Ark. App. 221, 977 S.W.2d 12 (1998).
Appellants argue that substantial evidence supports the jury’s verdict and that the trial court’s grant of JNOV should be reversed.
On May 12, 1997, Dorothea Kopriva arrived at appellee Burnett-Croom-Lincoln-Paden Clinic for a scheduled doctor’s appointment. Mrs. Kopriva entered the clinic’s restroom to collect a urine sample for her physician and fell on the restroom’s floor, fracturing her hip. She filed suit, alleging that she was injured as a result of the clinic’s negligence in failing to use ordinary care to maintain its premises in a reasonably safe condition. At trial and on appeal, Mrs. Kopriva’s theory of the causation of her accident was that the floors were shiny and slick, and that the condition of the clinic’s floor caused her fall.
A property owner has a duty to exercise ordinary care to maintain his premises in a reasonably safe condition for the benefit of an invitee. Kelly v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997). In order to prevail in a typical slip-and-fall case involving an invitee, the plaintiff must show either (1) that the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) that the substance had been on the premises for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Fred’s Stores v. Brooks, 66 Ark. App. 38, 987 S.W.2d 287 (1999).
This case is unlike the typical slip-and-fall case, in that appellants do not claim that Mrs. Kopriva’s fall was caused by the presence of a substance on the floor. Rather, appellants suggest that the floor’s condition resulting from the application of wax rendered the floor slick and shiny, causing Mrs. Kopriva’s fall. In National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W.2d 488 (1972), the supreme court adopted the following view expressed in Nicola v. Pacific Gas and Electric Co., 50 Cal. App. 2d 612, 123 P.2d 529:
If wax is applied to a floor it must be in such a manner as to afford reasonably safe conditions for the proprietor’s invitees, and if such compounds cannot be used on a particular type of floor material without the violation of the duty to exercise ordinary care for the safety of invitees, they should not be used at all. Of course slipperiness is an elastic term. From the fact that a floor is slippery does not necessarily result that it is dangerous to walk upon. It is the degree of shpperiness that determines whether the condition is reasonably safe. This is a question of fact.
Mrs. Kopriva testified that one of the clinic’s nurses named “Dawn” informed her after the accident that clinic employees had removed excess wax from the floors with alcohol and cotton swabs on prior occasions.
Dawn Pratt testified that she had removed substances from the clinic’s laboratory floor, but could not recall cleaning up excess wax from any of the clinic’s floors. She also testified that she never heard of anyone cleaning excess wax from the bathroom where Mrs. Kopriva fell.
Donna Burnett, the clinic’s administrator, testified that she had been informed of prior occasions where clinic employees had removed excess wax from the floors. She also testified that the last time the floors were waxed before appellant’s fall was May 28, 1996, and that the next time the floors were waxed was one week after appellant fell. She could not recall a patient ever having slipped on any of the clinic’s floors.
Lillie Harper, a clinic employee, testified that she had on occasion removed excess wax from the clinic floor. She did not recall the floor being very slick and shiny at the time of appellant’s fall. She also testified that she had never heard of anyone removing excess wax from the bathroom where appellant fell.
In granting appellee’s motion for JNOV the trial court reasoned:
In the trial of this matter, the plaintiff didn’t contend that there was any foreign substance on the floor, but that the floor was “shiny and slick.” She seemed aware of this before the fall. The court should have granted the Motion for Directed Verdict, but submitted the matter to the jury with the feeling that the jury would reach a defendant’s verdict as there was really no proof of defect or showing of notice that the floor was slippery. From the amount of the verdict one could surmise that the jury disregarded the instructions of law, felt sympathy for Mrs. Kopriva and awarded her the amount of the medical bills.
Appellants argue that there was substantial evidence, both direct and circumstantial, to support the jury’s verdict. They point out the fact that there was testimony to the effect that the clinic’s floors were shiny and slick. However, testimony to this effect was insufficient to show that the bathroom floor’s condition caused Mrs. Kopriva’s fall. See, e.g., Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). In fact, the evidence showed that the floors were buffed weekly, which, in our view, is the exercise of ordinary care in maintenance of the premises. Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986).
Upon completing our review of the abstracted record and appellant’s argument thereon, we cannot say that the trial court erred in granting appellee’s JNOV motion.
Affirmed.
Robbins, C.J., and Stroud, J„ agree. | [
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Donald L. Corbin, Judge.
Appellant, Sammy Joe Elmore, was convicted of fleeing and criminal attempt to commit capital murder and was sentenced to three years and ten years imprisonment respectively. On appeal, appellant alleges the following errors for reversal:
(1) That the trial court erred in ordering the case to be tried in one day and in refusing to order a new trial for that reason.
(2) That the trial court erred in suggesting before the jury that it would be defense counsel’s responsibility if they had to hold the trial over another day, and in threatening counsel with contempt if his witnesses from out-of-state did not appear.
(3) That the trial court erred in failing to record an exchange with a juror in the presence of appellant’s counsel.
(4) That the trial court erred in denying appellant’s motion to recuse in the hearing on the motion for a new trial when it became apparent that the trial judge would need to testify as a witness.
(5) That the trial court erred in requiring appellant to use AMCI 4104 on physical force in self-defense and ÁMCI 4105 on deadly force in self-defense or neither when appellant requested only AMCI 4104.
Appellant argues that the trial court erred in ordering that the trial be completed in one day. Appellant argues that it was prejudiced by the expedited nature of the trial, by the trial court’s suggestion to the jury that it was appellant’s fault if the trial required another day, and by the trial court’s threat to hold appellant’s counsel in contempt if he held the trial over and his witnesses failed to appear. A review of the facts is enlightening. Appellant’s case was set for Wednesday, September 14, 1983. Appellant’s counsel understood that three days had been set aside for appellant’s trial and had scheduled two out-of-state witnesses for the second day of trial. Sometime during the trial Wednesday, it became apparent that the trial court had set aside only one day for the trial. Appellant’s counsel, the trial judge and the prosecuting attorney discussed in chambers whether or not the trial would need to be carried over in light of the confusion. Appellant’s counsel argued that he had clearly understood he would have three days for trial and impressed on the court the need for additional time. The trial court denied knowledge of any three day setting and pointed out the disadvantages of making the jury return for an additional day. The trial judge indicated that the following day, Thursday, was unavailable as other matters were scheduled, and that Friday or Saturday morning were the only available options. Upon returning to the courtroom, the trial judge informed the j ury that they would need to return for a second day to hear two of appellant’s witnesses who were coming from out-of-state. He then inquired as to whether Friday or Saturday morning would be preferable. Two jurors had commitments on Friday and another juror had a commitment on Saturday. The trial judge told the jurors to remain available by phone on Thursday and he would notify them when to return.
After appellant’s last available witness was heard on Wednesday, the following exchange took place:
MR. SCOTT: (appellant’s counsel)
That’s all we’ve got except the two witnesses that are coming.
THE COURT:
Now, I want to have an understanding here so that this júry can depend on us. We’ve got what? Two witnesses?
MR. SCOTT:
Yes. I tell you what I would do. If it’s the preference of the jury to complete tonight, I’ll just forget about those two witnesses and we’ll go on and complete it tonight if you’d rather do that.
THE COURT:
I think the jury wants to get this over with.
MR. SCOTT:
If that’s what they want to do.
The prosecutor asked that the record reflect that the appellant knowingly waived the two witnesses and the following exchange took place:
MR. SCOTT:
Oh, yes. We’re waiving them: We’ve made a decision there.
THE COURT:
All right. Now, there was some request for more time and what have you because of two witnesses out of Texas. And it’s now my understanding that you want to forego their testimony and their presence. And you just want to go on and argue this and submit it to the jury.
MR. SCOTT:
Yes. That’s correct.
THE COURT:
Is that what you want to do?
THE DEFENDANT: (appellant)
That’s correct.
Appellant characterizes the situation which developed as one in which the j udge ordered that the case be tried in one day. We think this characterization is inaccurate. From the testimony set out above, we believe it is clear that the trial judge did not order appellant’s counsel to do anything, rather, appellant’s counsel chose not to call his remaining two witnesses and avoid having the jury return for an additional day of testimony. We can appreciate appellant’s argument that he was faced with an untenable choice in deciding whether to run the trial over another day or to forego his witnesses, but it is just such difficult decisions that attorneys are called upon to make daily. Appellant argues that the trial judge suggested it was appellant’s fault if the trial ran over and that this was prejudicial to appellant. We see no such suggestion on the part of the trial court. The trial judge merely explained the time schedule to the jury; something he could hardly avoid doing. Appellant’s counsel’s primary responsibility in deciding to forego his witnesses was to his client, not the jury. While the jury might not have wanted to return for an additional day, they surely could have understood the heavy responsibility that required them to do so. We cannot seriously consider that a j ury would be biased against a defendant due to the length of a trial. As for appellant’s contention that the judge threatened to hold him in contempt if he held the trial over and his witnesses failed to appear, we find nothing in the record to support such an allegation. What the trial judge did in this case is what many judges do daily: urge attorneys to make the most efficient use of jury time. Trial attorneys must necessarily steel themselves to judges’ entreaties to “hurry up” when they believe it is not in their client’s best interest. We cannot say that a judge’s encouragement to speed up proceedings is error. When time is at a premium attorneys are going to be urged to press forward. An attorney’s decision to comply or holdout for more time is just that: his decision. Here, we believe appellant’s counsel made the decision to pass his two witnesses based on what he believed was in his client’s best interest at the time. It was a judgment call. He cannot complain, upon deciding that the decision was wrong in retrospect, that someone else coerced him into making that decision. Appellant’s contention that the trial court erred in failing to grant a new trial on this issue is without merit for the same reasons discussed above.
Appellant argues that the trial judge erred in failing to make a record of an exchange between himself and a juror and in refusing to recuse himself when it became apparent that he would need to testify about the exchange on appellant’s motion for a new trial. The facts which led to this situation were developed in the hearing on appellant’s motion for new trial and are not in dispute. During the trial a juror approached the trial judge and told him that she recognized someone in the defendant’s family. The trial judge asked her if that would influence her judgment in the case. She said it would not. The trial judge made no record of this conversation at the time. After the verdict was rendered appellant’s counsel apparently learned of this exchange through another source. Appellant argued in his motion for a new trial that the trial judge’s failure to record the conversation and notify appellant’s counsel entitled him to a new trial. We do not believe that the trial court’s failure to record the conversation, nor his failure to notify appellant’s, counsel was reversible error in this particular case. A review of appellant’s counsel’s testimony at the hearing on the motion for a new trial reveals that counsel knew of the juror’s acquaintance with appellant’s family. Appellant’s counsel apparently did not believe it was a matter of concern as he failed to bring it to the court’s attention at that time. Too, there is no evidence whatsoever that the juror’s knowledge in any way affected her decision. The communication itself indicated no bias. See Bryant v. State, 254 Ark. 447, 494 S.W.2d 126 (1973), for a case with similar facts. The trial court’s failure to inform counsel of the communication and its failure to record it are not reversible errors here because of their harmless nature. We would point out however, that the practice should always be to record any communication with a juror and to notify counsel on both sides. The advisability of maintaining a record so that a j udge need not face the prospect of reconstructing the record from memory, or becoming a witness, has been noted by our Supreme Court. See Orman v. O. E. Bishop, 243 Ark. 609, 420 S.W.2d 908 (1967). We cannot overemphasize the advisability of this practice.
At the hearing on the motion for a new trial, it became necessary for the trial judge to testify to what had passed between himself and the juror. Appellant asked the trial judge to recuse himself from ruling on the motion for a new trial because he was going to testify in the hearing. The trial judge denied appellant’s motion to recuse. This put the trial judge in the position of ruling upon his own credibility and thus open to a charge of impartiality. This is one situation that the A.B.A. Code of Judicial Conduct cautions us against. Canon 3.C(1) of the Code states:
A j udge should disqualify himself in a proceeding which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has . . . personal knowledge of disputed eviden-tiary facts concerning the proceeding . . .
Our Supreme Court has recognized the need for a j udge to disqualify when he must appear as a witness for want of a record. Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972). Our j udicial system is founded upon the premise that j ustice is impartial. When a trial judge sits as judge and as witness, the appearance of impartiality is destroyed. It is clear that the trial judge should have recused himself when it became necessary for him to testify. However, we do not find that his failure to do so is reversible error under the facts of this particular case. While it was clearly error, we believe the appellant suffered no prejudice as a result. For the reasons discussed above, we do not believe that the trial court’s failure to record the juror’s communication or to inform counsel was prejudicial and therefore, appellant was not entitled to a new trial on that basis. Having reached that decision, the trial j udge’s failure to recuse himself becomes a moot issue. However, in the interest of maintaining the integrity of our judicial system, we would emphasize the need for trial judges to diligently avoid all appearance of impropriety.
Finally, appellant argues that the trial court erred in requiring appellant to use AMCI 4104 and 4105 or neither when only AMCI 4104 was requested. AMCI 4104 pertains to the use of physical force in self-defense while AMCI 4105 pertains to the use of deadly physical force in self-defense. In appellant’s case, there was sufficient evidence presented to warrant instruction on the use of both physical force and deadly physical force. Therefore, the trial judge was correct in his insistence upon giving AMCI 4105 if AMCI 4104 was given. It is the trial court’s responsibility to give wholly correct instructions. Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 324 (1982). The jury heard evidence from which it could have found that appellant used physical force or deadly physical force. Thus to instruct the jury upon the use of one without also instructing upon the use of the other would have resulted in incomplete instructions. For the above stated reasons we affirm.
Affirmed.
Mayfield and Glaze, JJ., agree. | [
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Lawson Cloninger, Judge.
In their appeal from the decision of the Workers’ Compensation Commission, appellants argue that appellee was improperly awarded benefits because she was not injured during the course and scope of her employment. They insist that the going and coming rule is applicable and that none of the exceptions apply. We agree, and we reverse the Commission’s award.
Appellee was employed by appellant American Red Cross as a nurse working in a mobile unit that traveled to various locations for the purpose of collecting blood donations. The Red Cross headquarters, at which the unit was stationed, is in Little Rock; appellee lived in North Little Rock. Ordinarily, appellee would report to the main office at 7:30 a.m. to begin work in the unit; occasionally, however, appellee would be required to meet the unit at another, more convenient, location, and from there travel in the mobile unit to the designated place of work.
On the morning of January 18, 1982, appellee was ordered to meet the mobile unit at Protho Junction in North Little Rock. From Protho Junction, appellee was to ride in the mobile unit to the Remington Arms Plant, the place of work for the day. En route to the rendezvous, appellee, while attempting to avoid a collision with a skidding truck, ran into a telephone pole and was injured. Appellants accepted her claim initially and made payments for over a year. When the matter was brought before an administrative law judge, the question was resolved in favor of appellee. The Workers’ Compensation Commission subsequently adopted the law judge’s opinion in affirming his decision.
Appellants contend that the going and coming rule precludes compensation for appellee. Injuries sustained by employees while going to and returning from their regular place of employment are not, as a general rule, deemed to arise out of and in the course of employment within the meaning of the Workers’ Compensation Law. Ark. Power & Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958). The rationale for the going and coming rule is the fact that all persons, including employees, are subject to the recognized hazards of travel to and from work in a vehicle. In City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S. W.2d 610 (1982), we stated:
In order for the injury to be compensable, the émployee must fall within one of the exceptions to the 'going and coming’ rule. . . .There are numerous exceptions to the ‘going and coming’rule: (1) where an employee is injured while in close proximity to the employer’s premises; (2) where the employer furnishes the transportation to and from work; (3) where the employee is a traveling salesman; (4) where the employee is injured on a special mission or errand; and (5) when the employer compensates the employee for his time from the moment he leaves home until he returns home. (Citation omitted).
The Commission held that the going and coming rule did not apply in the present case because (1) American Red Cross was aware of the hazards to which appellee was subjected; (2) American Red Cross had provided transportation because of the dangerous road conditions on at least one occasion a few days before appellee’s injury; and (3) appellee went on the Red Cross payroll from the time the mobile unit left the Little Rock headquarters.
In considering a claim, the Workers’ Compensation Commission must follow a liberal approach and draw all reasonable inferences favorably to the claimant. To further the beneficent and humane purposes of the Workers’ Compensation Law, all doubtful cases should be resolved in favor of the claimant. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). In the instant case, appellee’s testimony regarding the time she went upon the Red Cross payroll was somewhat inconsistent: at one point she stated that she was paid from the time the mobile unit left the Little Rock center, and at another she said that she would have been paid only from the time she would have entered the mobile unit. The Commission, however, in accepting the former version of appellee’s testimony, we believe, failed to consider the explanation later made by appellee with regard to the apparent conflict in her testimony. The following testimony of appellee on cross examination clearly indicates that appellee was not on the Red Cross payroll at the time of the accident:
Q. Were you an hourly worker? Were you paid wages by the hour?
A. Yes, sir, by the hour.
Q. What time did your hourly wages start? When would they start?
A. From the time the mobile left the unit, left the Center.
Q. Are you talking about from the time you reached the mobile site?
A. I’m talking about — No, I’m talking about from the time you would leave the Center, or wherever you were picked up, see, your hours would start. You got traveling time.
Q. So in other words, you were supposed to meet these nurses at Protho Junction, is that right?
A. Right. Yes sir.
Q. And Protho Junction to Remington you would have been paid?
A. Right, you’d been paid for your half hour traveling time, yes, sir.
Q. But you weren’t paid from your house to Protho Junction?
A. No, sir.
The employer was aware of the hazardous driving conditions on the day of the accident, but appellee was subject to no risks not common to an others on the streets and highways. There was no substantial evidence to support a conclusion that a customary practice of providing transportation during inclement weather had been established, although the employer had, on at least one occasion, provided transportation.
We reluctantly arrive at the conclusion that appellee was going from her home to the point, Protho Junction, where her employment would begin, and that she has not brought herself within one of the heretofore recognized exceptions to the going and coming rule. We decline to further extend the rule.
Reversed.
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JOHN F. STROUD, Jr., Judge.
Dejuan R. Trammell was adjudicated to be a juvenile delinquent by reason of terroristic threatening. On appeal he challenges the sufficiency of the evidence to show that he committed the offense of first-degree terroristic threatening, a Class D felony. The State responds that the issue was not preserved because appellant filed to renew his motion for directed verdict at the close of all the evidence. The abstract confirms that at the conclusion of the State’s case appellant moved for a directed verdict on the ground that the State had not proven the element of communicating the threat; the motion was not, however, renewed at the conclusion of all the evidence. Therefore, as explained below, we are prohibited by our rules of criminal procedure from addressing the merits of appellant’s argument.
A person commits the offense of first-degree terroristic threatening if, with the purpose of terrorizing another person, he threatens to cause physical injury to a teacher or other school employee acting in the line of duty. See Ark. Code Ann. § 5-13-301 (a)(1)(B) (Repl. 1997). At the adjudication hearing, the State presented evidence regarding actions by appellant when he was ten years old and a fifth-grade student at Sutton Elementary School in Fort Smith. Testimony was given by Linda Rupe, appellant’s teacher in both the fourth and fifth grades; by Nicole “Nikki” Shepard Misner, who taught in the room across the hall from Ms. Rupe; and by Charles Shipman, the school’s principal. Their testimony revealed that on January 22, 1999, Ms. Misner assigned “detention” to about twenty students, including appellant, who did not fine up properly at recess. Appellant protested, as did other students, that he “wasn’t doing anything,” and he seemed no more upset than the others.
Appellant said nothing further to Ms. Misner. He went straight to his desk when he entered his classroom, but he refused to get out materials for his mathematics assignment. Ms. Rupe, who had worked with him on anger management, could see that he was angry. Appellant began writing and drawing on a sheet of paper. She looked at his drawing about five times while she walked around and monitored the classroom. She let him cool down and continue drawing, but she approached him at some point, acting on information she had received, and asked for “the gun.” Nervously, he told her that the gun was not real. He produced a toy gun from his desk and gave it to her. At her request, he also gave her the paper on which he had drawn and written.
Ms. Rupe took appellant to Mr. Shipman, to whom she gave the note and toy gun. Mr. Shipman showed those items to Ms. Misner in the afternoon. Appellant was suspended from Sutton Elementary for five days, but he never returned. Appellant was not arrested that day even though a police officer was called to the school and informed about the incident.
The drawing that Ms. Rupe took from appellant, included in appellant’s addendum as State’s Exhibit No. 2, shows a person lying in a horizontal position. An arrow connects the figure to the words “that is Nikki!!” Another person stands over the first person, holding what appears to be a gun; words from his mouth appear to be “hu hu hu,” but are somewhat illegible. Above the drawing is written the following, reproduced as closely as possible with original punctuation and spelling:
I wich that all the teachers’ were dead who at Sutton. And some of the students’ I hit to! And I wich Nikki was dead to. Nikki the teacher who is across the hall.
I mean Nikki across the hall!!
The above testimony and evidence was presented during the State’s case-in-chief. On cross-examination, Mrs. Rupe denied telling appellant’s mother that appellant had thrown his note into a restroom trash can.
After the denial of his motion for directed verdict, appellant presented his defense in the form of testimony by his mother and Ms. Misner, which revealed the following version of events. Appellant began taking Ritalin in the fourth grade, but it had been stopped after about a year because it had not helped him. His mother had tried to get counseling for him, starting while he was at Sutton, but her insurance wasn’t covering it and nothing came of her requests for help at the school. Appellant transferred to another school after the incident at Sutton, and things got better. Appellant told his mother that he had received the toy gun from a Hide boy on the school ground in trade for a bicycle ride. Appellant was punished at home after the January incident by being kept inside for a month with no television. He told his mother that he wrote the note because he wanted to put his feelings on paper, and he told her that he didn’t mean any harm. Ms. Rupe told her that appellant had thrown the note into a trash can in the restroom. He was not arrested until March 29, 1999.
The rules of criminal procedure are applicable to juvenile delinquency proceedings. Ark. Code Ann. § 9-27-325 (Repl. 1998); L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998). The rule that controls our review of this juvenile adjudication, Ark. R. Crim. P. 33.1, was amended by per curiam order of the Arkansas Supreme Court less than a month before the date of the adjudication hearing, held on May 4, 1999. This seems an inadequate time for the trial judge and the attorneys to reasonably learn of the change.
It is the amended rule, regrettably made effective as of the date of the per curiam, that prohibits our addressing the merits of this appeal. The per curiam reads as follows:
We hereby adopt, effective immediately, these amendments and republish Rule 33.1 as set out below:
RULE 33A. Motions for Directed Verdict and Motions for Dismissal.
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal.
In Re Ark. R. Crim. P. 33.1, 337 Ark. 621 (1999) (emphasis added).
The reporter’s note to Rule 33.1 states that the requirement regarding bench trials, found in subsection (b), is a change in previous procedure and overrules prior case law. Although the incident leading to these proceedings was committed prior to the effective date of the rule’s amendment, application of the new requirement does not violate constitutional prohibitions against ex post facto laws because it does not criminalize conduct that was previously noncriminal, does not increase the severity or harshness of the punishment for the offense, and does not deprive appellant of a defense that was available to him at the time he committed the offense with which he was charged. See Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994). Thus, appellant’s failure to renew his directed-verdict motion at the close of all the evidence precludes appellate review of his challenge to the sufficiency of the evidence.
Affirmed.
Robbins, C.J., and Neal, J., agree. | [
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Donald L. Corbin, Judge.
Appellant, W. C. Lee Construction Company, the former employer of Kendall Hudson, appeals from the decision of the Board of Review allowing Hudson unemployment benefits. It is appellant’s contention that Hudson was not fired because of his religious beliefs but for misconduct connected with the work. We affirm.
Appellee Kendall Hudson is a member of the Seventh Day Baptist religion which religion observes its Sabbath on Saturday. Among the teachings of this religion is a proscription against work on the Sabbath. On Friday, May 6, appellant informed its employees that they would be required to work on Saturday, May 7. The employees were also told that if they did not show up for work on this date they would be fired. Appellee Hudson did not appear to work on Saturday and was discharged the following Monday. Appellee Hudson filed and was awarded unemployment benefits by the Agency pursuant to Ark. Stat. Ann. § 81-1106(b)(1) (Supp. 1983). Appellant appealed to the Appeal Tribunal and a hearing was held. It affirmed the Agency’s decision and appellant appealed to the Board of Review. Pursuant to an order of remand by the Board of Review, the Appeal Tribunal conducted two separate tele phone hearings to allow appellant an opportunity to submit additional evidence and to allow appellee Hudson the opportunity to rebut.
The employer testified that appellee Hudson was discharged for his refusal to work on a Saturday during an emergency. Appellee Hudson testified that his refusal to work was based upon his religious observance of Saturday as the Sabbath. Appellee Hudson stated that it was agreed at the time of his employment that he would work Saturdays only in cases of an emergency. Appellant testified that it was necessary for appellee Hudson to work on that Saturday because the construction of a facility for the immediate storage of twelve million pounds of fresh cucumbers was behind schedule.
The issue on appeal is whether there is substantial evidence to support the Board of Review’s decision that appellee Hudson was discharged for reasons other than misconduct in connection with his work. Whether there is substantial evidence to support the Board’s findings is a question of law. Cooney v. Daniels, 270 Ark. 930, 606 S.W.2d 615 (Ark. App. 1980). A reviewing court is not privileged to substitute its findings for those of the Board of Review even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the Board. Stagecoach Motel v. Krause, 267 Ark: 1093, 593 S.W.2d 495 (Ark. App. 1980).
Ark. Stat. Ann. § 81-1106(b)( 1) provides that an employee is disqualified from receiving unemployment compensation benefits if he is discharged from his last employment for misconduct in connection with the work. In order for an employee’s action to constitute misconduct so as to disqualify him, the action must be a deliberate violation of the employer’s rules, an act of wanton or willful disregard of the employer’s interest, or a disregard of the standard of behavior which the employer has a right to expect of the employees. Brewer v. Everett, 3 Ark. App. 59, 621 S.W.2d 883 (1981).
In Willis Johnson Co., v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980), this Court stated that:
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 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, [citation omitted.]
Whether or not the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct or unintentional failure of performance, is a question of fact for the Board of Review to determine. Arlington Hotel v. Emp. Sec. Div., 3 Ark. App. 281, 625 S.W.2d 551 (1981).
The Board of Review in the case at bar specifically found that appellee Hudson’s refusal to work on the Saturday in question was based upon a good-faith religious belief and that his actions did not contain the necessary element of willfulness in disregard of the employer’s interests. Appellant contends that appellee Hudson was not discharged because of his religious beliefs but because he refused to work when it was made known to him that he was needed on a Saturday. Appellant also argues that appellee Hudson never explained that not working on Saturday was a cardinal principle of his religion. Appellee Hudson testified to the contrary. It is well settled that the determination of credibility of witnesses and the drawing of inferences is for the Board and not for this Court. Willis Johnson Co., supra. In the case at bar the Board obviously resolved the conflicts of testimony and the credibility of the witnesses in favor of appellee Hudson and we find no error in this regard.
After a review of the record, we are satisfied that there is substantial evidence to support the Board’s decision awarding benefits to appellee Hudson on a finding that appellee Hudson was discharged for reasons other than misconduct connected with the work.
Affirmed.
Mayfield and Glaze, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Minnesota Mutual Life Insurance Company, appeals from an order awarding appellee, Gayle Looney, the penalties under Ark. Code Ann. § 23-79-208 (Repl. 1992). On appeal, appellant contends that the trial court erred in finding that it was subject to the statutory penalties and that the court erred in awarding an attorney’s fee of $7,500. We find no error and affirm.
The following facts are not in dispute. Joe Looney died on April 28, 1993, survived by appellee, who was his wife, and the children from his first marriage. At the time of his death, Mr. Looney had a life insurance policy with appellant in the face amount of $50,000. The named beneficiary of the policy was the deceased’s first wife, who had died. In this event, the policy provided that the proceeds would be distributed to the following persons in this designated order: the surviving spouse, then any surviving children, then parents, and finally the deceased’s estate, if none of the above were living. On June 4, 1993, appellant received written notification from the decedent’s estate informing appellant of Mr. Looney’s death and claiming entidement to the proceeds. Initially, on July 15, 1993, appellant denied that the policy was in effect, but it reversed this position on August 5th by admitting its liability in correspondence to appellee. In this letter, appellant in formed appellee that she was eligible to receive the benefits based on the priority set out in the policy, but it advised her that it would withhold payment because of the claim submitted by the estate. On August 9, 1993, appellee presented her written claim to the benefits, and on August 11, one of the deceased’s children made written claim to the proceeds. The estate submitted yet another claim to the proceeds on September 4. It was made known to appellant that the claims of the child and the estate were based on the contention that appellee was precluded from receiving the proceeds under the terms of an antenuptial agreement she had entered into with the deceased.
On October 1, appellant sent a letter to the parties acknowledging the dispute among the various claimants and stating that it would proceed with an interpleader action if the dispute were not resolved by October 18. The parties were unable to setde their differences and, .when no action was taken by appellant, the estate filed this lawsuit on November 30, 1993, in which all those claiming the benefits were joined, as well as appellant. On January 7, 1994, appellant answered the complaint and interpled the face amount of the policy, with interest.
On the day of trial, appellee and the family setded their dispute by agreeing that appellee was to receive the proceeds of the policy. Because of the setdement, the only issue remaining was appellee’s claim against appellant for the penalties allowed under Ark. Code Ann. § 23-79-208 (Repl. 1992). This issue was submitted to the trial court on cross motions for summary judgment with the arguments of the parties focusing on Ark. Code Ann. §§ 23-79-208 and 23-81-113. Arkansas Code Annotated § 23-79-208(a) (Repl. 1992) provides in pertinent part that in all cases where loss occurs and the life insurance company liable therefor shall fail to pay the losses within the time specified in the policy, after demand made therefor, the corporation shall be liable to pay the holder of the policy, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss. Arkansas Code Annotated § 23-81-113(b) (Repl. 1992) provides that the period for setdement by an insurer shall not exceed two months from the receipt of proofs. Appellee contended that appellant’s delay in paying the loss and its failure to take any action in sixty days subjected appellant to the statutory penalties. In response, appellant maintained that any delay was excusable in light of the conflicting claims presented to it for the benefits of the policy. The trial court ruled in favor of appellee, and this appeal followed.
In its first argument, appellant contends that its failure to take action is excused in this case under an exception which exists when there are conflicting claims made for the benefits of a policy. Appellant points out that, because it did not deny liability, the delay was not intended to defeat the right of recovery. Appellant also argues that the delay was reasonable in light of the multiple claims submitted, which would require judicial determination to resolve since the dispute was based on proof extraneous to the contract of insurance. In making these arguments, appellant relies primarily on the decisions in Clark Center, Inc. v. National Life and Accident Ins. Co., 245 Ark. 563, 433 S.W.2d 151 (1968); Dennis v. Equitable Life Assurance Society, 191 Ark. 825, 88 S.W.2d 76 (1935); and North British & Mercantile Ins. Co. v. Equitable Building & Loan Assn., 185 Ark. 476, 47 S.W.2d 797 (1932). We believe that appellant’s reliance on the principles espoused in those cases is misplaced given a critical factual difference between them and the case at bar. Here, appellant had full knowledge of the family dispute and set a self-imposed deadline for the parties to resolve their differences before it would resort to bringing an interpleader action. Appellant has offered no explanation as to why it failed to take any action after this deadline had passed with the result that, after another six weeks had elapsed, one of the claimants was forced to institute this litigation. We hold that appellant’s failure to act and the delay which it occasioned were unreasonable under the facts of this case. Contrary to appellant’s argument, appellant cannot entirely discharge its responsibility by placing the onus on those claiming the proceeds.
Appellant also cites Usable Life v. Fow, 307 Ark. 379, 820 S.W.2d 453 (1991), for the proposition that an insurance company can fall into peril by filing an interpleader action too quickly. However, this dispute came to a head in the month of August, and as of late November appellant had yet to take any action. In conclusion, we can find no merit in the arguments raised by appellant in this point.
Appellant further contends in this appeal that the trial court erred in awarding an attorney’s fee of $7,500, which it argues is excessive. This issue is not preserved for appeal. The trial court announced its decision and the fee it was awarding in a letter opinion. Appellant raised no objection to the fee set by the court. Consequendy, this argument was waived. Farm Bureau Mutual Ins. Co. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996).
Affirmed.
Stroud and Neal, JJL, agree.
Although appellant takes issue with other findings made by the court, we do not find them to be dispositive of this appeal; thus, we find it unnecessary to specifically address them. | [
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JOHN F. STROUD, Jr. Judge.
Rebecca B. Guest appeals a March 31, 1999, order of the Pulaski County Chancery Court that modified the child-support obligation of appellee, Gerry S. San Pedro, and granted him specific visitation. An order of September 26, 1995, reveals that the parties had agreed to entry of the following: appellee admitted paternity of a male child born to appellant on May 17, 1995; appellant was awarded custody, subject to reasonable visitation by appellee; appellee was to pay monthly child support of $737.50; and appellee, by April 15 of each year, was to furnish appellant proof of his income for the preceding year. The March 1999 order was issued after a hearing on a motion by appellant for increased child support and a motion by appellee for specific visitation. Appellant’s motion was based in part upon the changed circumstance that appellee was earning more money than at the time of the initial agreement.
Although granting an increase in child support, the chancery-court deviated downward from the amount set forth by Administrative Order No. 10 — Arkansas Child Support Guidelines upon finding that appellee had overcome the rebuttable presumption and that the chart amount in the guidelines was inappropriate under the facts of this case. The court set appellee’s monthly child-support obligation at $970.75, granted appellee eight weeks of summer visitation, abated child support during the eight weeks, and prorated ten months of child support over a twelve-month period. Appellant raises two points on appeal: that the court’s decision fails to comply with Section I of Administrative Order No. 10, and that it violates Section VI of the order. For the reasons set forth below, we affirm as modified.
Under the first point, appellant argues that the chancery order does not comply with Section I of Administrative Order No. 10 in that it fails to mention the child’s best interest, appellee’s income, or the amount of child support that would be required by the family-support chart. These three requirements are addressed by our statutes and case law as well as by administrative order.
Section I of Administrative Order No. 10 sets forth the rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the family-support chart, promulgated by the Arkansas Supreme Court, is the amount of child support to be awarded in a judicial proceeding for child support. Although the amount of child support a chancery court awards lies within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion, reference to the family-support chart is mandatory. Schumacher v. Schumaher, 66 Ark. App. 9, 986 S.W.2d 883 (1999); see Ark. Code Ann. § 19-14-106(a)(1)(A) (Repl. 1998). The most recent revision of the child-support chart is found at In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581, 582 (1998). Section I addresses the rebuttable presumption created by the chart:
The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.
It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case 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. Findings that rebut the guidelines shall state the payor’s income, recite the amount of support required under the guidelines, recite whether or not the Court deviated from the Family Support Chart and include a justification of why the order varies from the guidelines as may be permitted under SECTION V . . .
Id. at 582.
Section V, to which Section I directs us, is entitled “deviation considerations” and sets forth two lists of factors. There are twelve relevant factors to be considered in determining appropriate amounts of child support, and there are seven additional factors that may warrant adjustments to the support obligations. Relevant factors 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. 331 Ark. at 585-86 (emphasis added). Additional factors that may warrant adjustments to child-support obligations include the support required and given by a payor for dependent children, even in the absence of a court order. 331 Ark. at 586 (emphasis added).
Arkansas Code Ann. § 9-12-312(a) (2) (Supp. 1999) also sets forth guidelines to be followed in setting the amount of child support:
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a ivritten finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
(Emphasis added.)
In the present case, a letter opinion supporting the March 1999 order includes the language of section 9-12-312(a) (2) as well as language from Section V of Administrative Order Number 10. The letter includes a finding that a change of circumstances had occurred, but that the chart amount would be unjust considering appellee s finances and all his dependents. Calculation of the original child support and the increased amount was addressed as follows:
In the September [26], 1995 order, child support was set at $737.50 per month by agreement of the parties. Both parties were represented by different attorneys than current counsel. After reviewing the record and the settlement offered, this Court could not establish how the parties had arrived at the figure of $737.50 per month. A financial affidavit prepared by the defendant and signed on June 29, 1995 indicated a weekly take home pay of $1405.44. If that figure had been used in 1995, the chart amount would have been $906.23 per month. Both parties were given time to supplement the record to present testimony as to how the figure of $737.50 was established. However no evidence was presented.
The plaintiff’s argument as to a change in circumstances is that defendant is now earning more money. The defendant, Dr. Gerry San Pedro, moved from Little Rock and is now employed by the Louisiana Medical Center in Shreveport, Louisiana. The testimony of the defendant, his affidavit of financial means and his previous tax returns indicate an average weekly take home income of $1811.04 as compared to $1,405.44 in 1995. The sum of $1,811.04 weekly would place the child support amount at $271.65 per week or $1,168.00 per month according to the child support chart.
Appellant argues that neither the March 1999 order nor the letter opinion states appellee’s income or the amount required by the chart; that although the letter opinion seems to recognize the best interests of appellee’s other four children, the March 1999 order fails to mention the best interest of the child whose best interest was before the court; and that the record “just barely” supports the reasons given in the letter opinion that the amount would be unjust. Recognizing that the judge’s letter opinion is drafted by the judge, whereas the order is usually drafted by the prevailing attorney, we hold that in this case the letter opinion and the order can both be considered by this court.
Here, the letter opinion states that “[appellee’s] affidavit of financial means and his previous tax returns indicate an average weekly take home income of $1,811.04,” and that the chart amount for this pay is $271.65 weekly or $1,168.00 monthly; it concludes with a finding that the child-support amount was unjust considering appellee’s finances and all his dependents, and it notes that the newly-set amount of $970.75 is a monthly increase of $323.25. This increased amount clearly was awarded in the child’s best interest, as was further shown by the chancellor’s careful questioning of the parties, her recitation of the administrative order and relevant statutes, and her review of case law. We think the chancellor exhibited thorough knowledge of the requirements of the applicable rule and statute, and we will not require use of the words “best interest of the child” when it is obvious to us that the chancellor considered the child’s best interest in finding the guidelines to be unjust as applied to the facts of this case. Cf. Fitzgerald v. Fitzgerald, 63 Ark. App. 254, 976 S.W.2d 956 (1998) (reversing and remanding custody determination where neither the letter opinion, the order, nor the chancellor’s comments from the bench included a finding of what was in the child’s best interest). The fact that the chancellor mentioned some, but not all factors that are to be considered, reflects that those mentioned were out of the ordinary and were central to the pivotal issue, which was appellee’s ability to pay as a circumstance that had changed since entry of the earlier order. Finally, regarding the “unjustness” of the chart amount, it is clearly permissible to consider financial obligations of the payor spouse, including support of other children. Department of Human Services v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994); Administrative Order No. 10 — Arkansas Child Support Guidelines, Section V
Appellant’s second point of appeal is that the court violated Section VI of Administrative Order No. 10. This section states in part:
Excluding weekend visitation with the custodial parent, in those situations where a child spends in excess of 14 consecutive days with the noncustodial parent, the court should consider whether an adjustment in child support is appropriate. . . .Any partial abatement or reduction of child support should not exceed 50% of the child-support obligation during the extended visitation period of more than Í4 consecutive days.
581 Ark. at 331 (emphasis added). Appellant contends that total abatement of child support during appellee’s eight weeks of summer visitation is prohibited under Section VI. She requests this court to modify the chancery order and to provide for no more than a 50% abatement.
The interpretation of this section, which appears to be a question of first impression, turns upon the meaning of the word “should” in the phrase “[a]ny partial abatement or reduction of child support should not exceed 50% of the child-support obligation during the extended visitation period.” In Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977), the supreme court ruled that the trial court, giving an instruction on circumstantial evidence, had not misled the jury by using the word “should” instead of “must” in stating that circumstances should point to and be consistent with guilt but should be inconsistent with any other reasonable hypothesis. The Little court opined that use of the word “must” would have been preferable to the use of “should,” but the court noted that the words are often synonymous. 261 Ark. at 884, 554 S.W.2d at 324, citing Rodale, The Synonym Finder 780 (Special Deluxe Ed.).
Similarly, we hold that the word “should” is equivalent to the word “must” as used in the phrase “any partial abatement or reduction of child support should not exceed 50% of the child-support obligation during the extended visitation period.” We hold that the 50% limitation in Administrative Order No. 10 is mandatory: abatement or reduction of child support during an extended visitation period cannot exceed 50% of the child-support obligation during the extended visitation period.
The chancery court erred in abating the child support entirely for the eight-week period of summer visitation. Accordingly, we modify the abatement of child support for the period of summer visitation by setting it at 50%. The court may continue to prorate the child-support payments over a twelve-month year. We remand for entry of an order in keeping with this directive.
Affirmed as modified, and remanded.
Jennings and Griffen, JJ., agree.
Counsel for appellee acknowledges in his brief that “the better approach would have been to re-write the chancellor’s letter opinion.” | [
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John F. Stroud, Jr., Judge.
Appellant worked as a welder for Air Systems, Inc., which manufactures custom-made, stainless-steel equipment for commercial restaurants. He was diagnosed with carpal tunnel syndrome shortly before he quit working there on Octo ber 1, 1993. The administrative law judge found that his condition was a compensable injury. The Workers’ Compensation Commission reversed in a 2-1 decision, finding that he had failed to prove by a preponderance of the evidence that his carpal tunnel syndrome was caused by rapid repetitive motion. On appeal, Mr. Baysinger contends that the Commission erred in its interpretation of “rapid repetitive motion” under Ark. Code Ann. § ll-9-102(5)(A)(ii)(a), and in finding that he failed to prove that his carpal tunnel syndrome was caused by rapid repetitive motion. Air Systems cross-appeals, contending that the administrative law judge erred in admitting the deposition of appellant when appellant failed to appear at his own hearing. We reverse and remand because we agree with appellant that the Commission erred in its interpretation of “rapid repetitive motion.”
In deciding this case, the Commission examined the job duties of appellant. Testimony by three of appellant’s co-workers showed that his tasks included shaping, molding, finishing, and polishing stainless-steel equipment. His work with metal involved grinding, polishing, finishing curved edges, and removing burrs. The Commission found that although appellant’s duties varied during the day according to the particular item being manufactured, his duties required him to grip vibrating tools and to use a ball-peen hammer, and that each of the duties involved fairly constant stress and shock to the hands, wrists, and arms.
As the Commission noted, this case is controlled by Ark. Code Ann. § ll-9-102(5)(A)(ii)(a), which is a partial codification of Act 796 of 1993. The statute establishes categories of compensable injuries and includes the following language:
(5) (A) “Compensable injury” means:
(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 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;
Ark. Code Ann. § ll-9-102(5)(A)(ii)(a) (Repl. 1996). The burden of proof for such injuries shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment. Ark. Code Ann. § ll-9-102(5)(E)(ii) (Repl. 1996).
Finding that appellant did not meet his burden of proof, the Commission stated:
[T]he requirement that the condition be caused by rapid repetitive motion requires proof that the employment duties involved, at least in part, a notably high rate of activity involving the exact, or almost exacdy, the same movement again and again over extended periods of time.
In the present claim, while claimant’s duties involved hand intensive labor, the evidence shows that the job did not involve the exact, or almost exacdy, the same movement again and again. Instead, the description indicates that several steps were involved in performing the job, and there is no indication that the different steps involve the same movement again and again for prolonged periods of time. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that his carpal tunnel syndrome was caused by rapid repetitive motion.
The Commission erred in requiring appellant to prove that his carpal tunnel syndrome was the result of the exact, or almost exacdy, the same movement again and again. It appears from the findings of the Commission, quoted above, that although the evidence indicates that different portions of claimant’s job duties may involve rapid repetitive motion, he is precluded from recovery because “there is no indication that the different steps involve the same movement again and again for prolonged periods of time.” We feel that the Commission’s interpretation of the statute is too restrictive and precludes multiple tasks — such as the hammering and grinding motions performed by claimant — from being considered together to satisfy the requirements of the statute. We reverse and remand to the Commission for a new determination on the issue of appellant’s meeting his burden of proof.
The point raised by Air Systems on cross-appeal is that the administrative law judge erred in admitting claimant’s deposition when he failed to appear at his own hearing. The record reflects that Air Systems objected to claimant’s deposition in lieu of his testimony at the initial hearing and that the law judge at first refused the proffered deposition but, upon review of her order, decided that she had erred in doing so. She contacted both parties, notifying them that she would allow the deposition to be submitted into the record but would reopen the case so that Air Systems could cross-examine claimant. Subsequently, the deposition was admitted with claimant present and ready for cross-examination; Air Systems renewed its objection to the introduction of the deposition and declined to call claimant for cross-examination. The hearing was then concluded.
The Commission did not rule on Air Systems’s objection to the introduction of claimant’s deposition in fight of its decision that the evidence did not show that his job involved the exact, or almost exactly, the same movement again and again. It also noted that it had not relied on his deposition testimony in reaching its decision. Because the Commission’s opinion contains no findings relating to the admissibility of claimant’s deposition and did not rule upon it, the issue is not preserved for appeal and there is nothing before us to review. See Pine Bluff Warehouse v. Berry, 51 Ark. App. 139, 912 S.W.2d 11 (1995). The Commission must decide whether it is necessary to rule on this point when it reexamines the issue of appellant’s meeting his burden of proof.
Reversed and remanded.
Rogers and Neal, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Firestone Tube Com-J pany brings this appeal from a decision of the Workers’ Compensation Commission that appellant is responsible for an attorney’s fee to claimant Steve Potts after an appeal to the Commission by appellee Second Injury Fund. Firestone contends that the Commission’s assessment of attorney’s fees is not supported by substantial evidence and is contrary to applicable law. We agree, and we reverse.
It was stipulated that Mr. Potts sustained a compensable neck injury while working for Firestone on February 27, 2004. Firestone paid benefits for the claim, including medical expenses, temporary total disability benefits through April 8, 2005, and benefits for a five-percent anatomical impairment. While Firestone maintained that it was not responsible for any further benefits, Mr. Potts claimed that he was entitled to additional temporary total disability benefits through August 8, 2005, as well as permanent and total disability benefits. Because Mr. Potts had sustained two prior cervical injuries resulting in impairment ratings of ten percent and seven percent, Second Injury Fund was joined as a party to the case.
After a hearing, the administrative law judge found that Mr. Potts proved entitlement to additional temporary total disability benefits through May 5, 2005. The ALJ further found that Mr. Potts’s prior impairments combined with his compensable injury to produce a seventeen-percent permanent partial disability, for which Second Injury Fund is liable. Finally, the ALJ directed both Firestone and Second Injury Fund to “hold in reserve for a period of five years a sum equal to the potential subrogation claims regarding the claimant’s pension plan payments subject to offset under Ark. Code Ann. § 11-9-411.”
Firestone took no appeal from the ALJ’s order. However, Second Injury Fund appealed to the Commission, arguing that the ALJ erred in finding that Mr. Potts proved entitlement to permanent wage-loss disability benefits, and further erred in his interpretation of Ark. Code Ann. § 11-9-411. The Commission affirmed the seventeen-percent disability award against Second Injury Fund, but vacated the ALJ’s directive that each respondent hold sums in reserve for five years. The Commission awarded an attorney’s fee of $500 to the claimant’s attorney for prevailing on appeal, but the order was silent as to who was responsible for the fee. Subsequently Second Injury Fund filed a motion for clarification and reconsideration, arguing that the Commission erred in awarding wage-loss disability benefits, and asking the Commission to designate which party or parties is responsible for the attorney’s fee. The Commission denied the motion to reconsider, and ordered Second Injury Fund to pay the $500 attorney’s fee. Second Injury Fund then filed another motion for clarification and reconsideration, contending that it should not be responsible for the claimant’s attorney’s fee. In response to that motion, the Commission entered an order requiring Firestone and Mr. Potts to equally pay the attorney’s fee. It is from that order that Firestone now appeals.
The statute applicable to this case is Ark. Code Ann. § 11-9-715 (Repl. 2002), which provides in relevant part:
(a)(1)(A) Fees for legal services rendered in respect of a claim shall not be valid unless approved by the Workers’ Compensation Commission.
(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for indemnity benefits payable to the injured employee or dependents of a deceased employee. Attorney’s fees shall not be awarded on medical benefits or services except as provided in subdivision (a)(4) of this section.
(2) (A) Whenever the commission finds that a claim against the Treasurer of State, as custodian of the Second Injury Trust Fund or as custodian of the Death and Permanent Total Disability Trust Fund, has been controverted, in whole or part, the commission shall direct that fees for legal services be paid from the fund, in addition to compensation awarded, and the fees shall be allowed only on the amount of compensation controverted and awarded from the fund.
(B)(i) In all other cases whenever the commission finds that a claim has been controverted, in whole or in part, the commission shall direct that fees for legal services be paid to the attorney for the claimant as follows: One-half (14) by the employer or carrier in addition to compensation awarded; and one-half (14) by the injured employee or dependents of a deceased employee out of compensation payable to them.
(ii) The fees shall be allowed only on the amount of compensation for indemnity benefits controverted and awarded.
(b)(1) If the claimant prevails on appeal, the attorney for the claimant shall be entitled to an additional fee at the full commission and appellate court levels in addition to the fees provided in subdivision (a)(1) of this section, the additional fee to be paid equally by the employer or carrier and by the injured employee or dependent of a deceased employee, as provided above and set by the commission or appellate court.
(2) The maximum fees allowable pursuant to this subsection shall be the sum of five hundred dollars ($500) on appeals to the full commission from a decision of the administrative law judge and the sum of one thousand dollars ($1,000) on appeals to the Court of Appeals or Supreme Court from a decision of the commission.
We agree with Firestone’s argument that the above provision does not entitle the claimant’s attorney to a fee from his employer under the circumstances of this case. In Furman v. Second Injury Fund, 336 Ark. 10, 983 S.W.2d 923 (1999), our supreme court held that § 1 l-9-715(b)(1) does not authorize attorney’s fees to be paid to a claimant by Second Injury Fund where a claimant prevails against the Fund in an appeal. The supreme court wrote:
On reading this statute, it is clear that this subsection does not mention the Second Injury Fund, nor can it be construed so as to be included definitively within the terms “employer or carrier.” We reject Furman’s argument to interpret the statute to hold the Fund Hable for attorney’s fees on appeal in deference to our long-standing rule that attorney’s fees cannot be awarded unless specifically provided for by statute. Arkansas Okla. Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998).
We respectfully invite the General Assembly to consider this matter and enact such legislation as may be appropriate to address the discrepancy in section 11-9-715, which currently provides for attorney’s fees from the Fund at the hearing level, but makes no similar provision for such fees on appeal.
Id. at 11, 983 S.W.2d at 923-24. Despite the supreme court’s invitation, the discrepancy identified in Furman, supra, has not as of yet been addressed by our legislature.
However, the Commission in the instant case erroneously found that the Furman holding requires attorney’s fees to be assessed against Mr. Potts’s employer. There was no indication in Furman that any fees were or could be assessed against the employer; only that they could not be assessed against the Fund. In the case at bar, as in Furman, the appeal was between the claimant and the Second Injury Fund. Firestone did not appeal the ALJ’s decision and did not contest the ALJ’s award, and was not a party to the appeal before the Commission. While Mr. Potts did prevail in that appeal as contemplated by § ll-9-715(b)(l), in order for the employer to be responsible for an attorney’s fee under that subsection, the employer at a minimum must have been a party to the appeal. In its opinion the Commission correctly stated that one of the purposes of the attorney fee statute is to put the economic burden of litigation on the party that makes litigation necessary. See Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). However, whatever additional expense may have been caused by the appeal to the Commission, this expense was not made necessary by Firestone, who paid substantial benefits to the claimant and then prevailed before the ALJ on its claim that any permanent disability benefits to which Mr. Potts was entitled was not its responsibility but rather the responsibility of the Second Injury Fund.
Reversed and remanded.
Vaught and Baker, JJ., agree. | [
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D.p. Marshall Jr., Judge.
Brian Misenheimer stole a Ford F-350 dually pick-up truck from the parking lot of an Exxon station in Pulaski County. Two days later, while he was high on methamphetamine, Misenheimer drove the truck to Walgreens. When he left the store, a police car was partially blocking the parking-lot exit. Misenheimer drove the truck over the front-end of the police car and led police officers on a high-speed chase through Little Rock, during which one officer’s car ran into a retaining wall. Misenheimer eventually drove to the airport, where he knocked down a gate and drove onto the airport grounds. The chase then continued into Saline County. Misenheimer was apprehended there after a head-on collision that severely injured a state trooper.
Misenheimer was charged with various felonies in both Pulaski County and Saline County. Fie first pleaded guilty to five felony charges in Pulaski County and was sentenced by the circuit court there. The prosecutor in Saline County then amended his information and sought to sentence Misenheimer as an habitual offender under Ark. Code Ann. § 5-4-501 (Supp. 2007). Misen-heimer pleaded guilty to the Saline County charges, while objecting to the application of the sentencing enhancement. The Saline County circuit court rejected Misenheimer’s arguments. He was sentenced as an habitual offender to 125 years in prison to be served concurrently with his Pulaski County sentence. Misenhe-imer now appeals his sentence. We review this question of statutory interpretation de novo. State v. Sola, 354 Ark. 76, 84, 118 S.W.3d 95, 99 (2003).
I.
Misenheimer makes three arguments why Ark. Code Ann. § 5-4-501 should not apply to what he describes as his continuous criminal episode stretching across two counties. Two of Misenhe-imer’s arguments fail at the threshold.
First, we have doubts about whether he preserved his due-process point in the circuit court. He had two sentences about it in his trial brief, and did not mention it during his oral argument to the circuit court. Compare Standridge v. State, 357 Ark. 105, 118, 161 S.W.3d 815, 822 (2004). Even assuming that the point is preserved, we affirm on it. Misenheimer had more than two months’ notice — from the amended information — of the State’s intention to seek the enhancement before he pleaded guilty in Saline County. And for the reasons explained later, we discern no fundamental unfairness in the application of the enhancement statute here.
Second, Misenheimer cannot be heard to complain in this appeal that the Pulaski County circuit court did not advise him before his guilty plea that his conviction might subject him to an enhanced sentence on the pending Saline County charges. Misen-heimer was represented by counsel in both counties. He chose not to appeal his conviction in Pulaski County. He cannot belatedly assert error in his Pulaski County plea in this Saline County case.
II.
Coming to the hub of the case, Misenheimer argues that he is not an habitual criminal in the ordinary sense of the word “habitual.” He committed, he maintains, one continuous series of connected crimes, and thus the circuit court should not have enhanced his sentence. The purpose of Ark. Code Ann. § 5-4-501 is to punish repeat offenders severely. Original Commentary to Ark. Code Ann. § 5-4-501 (Repl. 1995). We must give the words of Ark. Code Ann. § 5-4-501 their ordinary meaning. Benson v. State, 86 Ark. App. 154, 157, 164 S.W.3d 495, 496 (2004). When applying a criminal statute, we must also follow the rule of lenity: we strictly construe the statute and resolve any doubt about its meaning in Misenheimer’s favor. Boveia v. State, 94 Ark. App. 252, 257, 228 S.W.3d 550, 554 (2006). Under the governing statute and precedent, we conclude that § 5-4-501 (b) applies to the convictions arising from Misenheimer’s two-county, multi-act episode.
Misenheimer first argues from the statute’s title: “§ 5-4-501 Habitual Offenders — Sentencing for felony [.]” We agree that the title ill fits what happened here. But the title does not control, as our cases make plain. Baker Refrigeration Systems, Inc. v. Weiss, 360 Ark. 388, 400-01, 201 S.W.3d 900, 907 (2005). The statute’s words control. The introductory section states: “A defendant meeting the following criteria may be sentenced [to an enhanced penalty].” Ark. Code Ann. § 5-4-501(b)(l). The criteria applicable to Misenheimer are:
(A) A defendant who:
(i) Is convicted of a felony other than a felony enumerated in subsections (c) and (d) of this section committed after June 30, 1993; and
(ii) Has previously been convicted of four (4) or more felonies or who has been found guilty of four (4) or more felonies;
(C) A defendant who:
(i) Is convicted of any felony enumerated in subsection (d) of this section committed after June 30, 1997; and
(ii) Has previously been convicted of four (4) or more felonies not enumerated in subsection (d) of this section or who has been found guilty of four (4) or more felonies not enumerated in subsection (d) of this section.
Ark. Code Ann. § 5-4-501 (b)(1)(A)(i)-(ii) & (C)(i)-(ii).
This statute is unambiguous. Cf. Benson, 86 Ark. App. at 158, 164 S.W.3d at 497 (2004) (so holding as to Ark. Code Ann. § 5-4-501(d)). Thus we have no need to resort to the rules of statutory interpretation. 86 Ark. App. at 157, 164 S.W.3d at 496. And Misenheimer met the statutory criteria: he was convicted in Saline County of first-degree battery — a listed felony — after June 30, 1997, and theft-by-receiving, fleeing, and criminal mischief — non-listed felonies — after June 30, 1993. He had “previously been convicted” of four or more non-listed felonies in Pulaski County. Because Misenheimer’s convictions satisfied the criteria, the statute applied to him even though the statute’s title describes a class of persons that does not seem to include him.
Our decision is guided by Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989) and Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003), where our supreme court addressed similar issues. Misenheimer argues that Tackett governs his situation. We are persuaded, however, that Smith is more in point.
Tackett’s vehicle struck another vehicle, causing it to crash. Tackett, 298 Ark. at 24-25, 766 S.W.2d at 411. One passenger died instantly. Tackett was charged and convicted of manslaughter for this death and of leaving the scene of an accident. After lingering in a coma, another passenger died several years later. Tackett was then charged with a second count of manslaughter. Our supreme court rightly rejected the State’s attempt to apply the habitual-offender statute during the prosecution for the second death because all the crimes arose out of Tackett’s single act of recklessly crashing his vehicle. 298 Ark. at 25-26, 766 S.W.2d at 412-13. The court held that “there is nothing habitual about the commission of a single criminal act resulting in multiple charges and convictions.” Ibid.
In Smith, our supreme court distinguished Tackett and upheld a § 5-4-501 enhancement for multiple convictions arising from a crime spree. Smith committed an aggravated robbery in Desha County, then drove to Drew County, where he committed kidnapping, rape, and other felonies. 351 Ark. at 470-72, 95 S.W.3d at 802-03. He was convicted of the Drew County crimes first. He was then convicted of the robbery in Desha County and was sentenced there as an habitual offender. Ibid. Smith appealed, cited Tackett, and argued that “because these ‘prior’ convictions arose out of the same course of conduct as the aggravated robbery, . . . the Drew County convictions could not be used to enhance his sentence.” Smith, 351 Ark. at 477, 95 S.W.3d at 806. Our supreme court rejected this argument. The court held that the circuit court did not err in sentencing Smith as an habitual offender because “Smith’s multiple criminal acts were not a ‘continuing course of conduct,’ nor did they arise out of the same transaction.” 351 Ark. at 478-79, 95 S.W.3d at 807 (quoting Ark. Code Ann. § 5-1-110(a)(5)).
Smith, not Tackett, controls here. First, two days separated Misenheimer’s theft of the pick-up truck and his crimes during the chase from Walgreens. Second, though Misenheimer’s acts on the day of the chase may have been a continuous series of crimes, they were not “a continuing course of conduct.” That phrase is a statutory term of art. Ark. Code Ann. § 5-1-110(a) (5) (Repl. 2006). The crimes to which it applies are self-defined as continuing offenses; therefore, a person may not be convicted of more than one offense even though he commits what seem like multiple criminal acts. Smith v. State, 296 Ark. 451, 454, 757 S.W.2d 554, 555-56 (1988). By statute, Misenheimer’s crimes are not defined as continuing crimes. Ark. Code Ann. §§ 5-13-201, 5-36-106, 5-38-204 (Repl. 2006) and 5-54-125 (Repl. 2005). Finally, unlike in Tackett, we do not face a single act that resulted in two crimes.
Like in Smith, Misenheimer’s crimes involved multiple acts; his crimes harmed different people; and his crimes occurred at different locations in different counties. His theft, moreover, occurred two days before his other crimes. That all but one of Misenheimer’s crimes arose from a continuous series of events is not dispositive. The determining factor is the multiplicity of acts, victims, and locations. Smith, 351 Ark. at 478, 95 S.W.3d at 807. We are bound to follow Smith, and we do so. The Saline County circuit court therefore made no error in sentencing Misenheimer as an habitual offender.
Affirmed.
Baker and Miller, JJ., agree.
This court has also called into question the continued viability of Tackett in light of a post-decision amendment to the statute. Benson, 86 Ark. App. at 160, 164 S.W.3d at 498 (2004). Because that amendment changed part of § 5-4-501 that is not involved in this case, we do not rest our application of Tackett on the statutory change. | [
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Robert J. Gladwin, Judge.
Appellant Connie Bell appeals the June 28, 2006 judgment, of the Union County Circuit Court, finding that the last will and testament of decedent Alvin R. Hutchins, dated September 15, 2005, is invalid and setting aside the order admitting it to probate. Appellant contends that the circuit court erred in finding that she procured the will and that she had unduly influenced Alvin R. Hutchins to make the will. We reverse the circuit court’s finding of procurement and remand for proceedings consistent with this opinion.
Mr. Alvin R. Hutchins lived in Arkansas for fifteen years prior to his death. During that time, his daughter, who lives out of state, did not visit him, but Mr. Hutchins made it known that his daughter would inherit all that belonged to him upon his death. Mr. Hutchins hired appellant Connie Bell to be his housekeeper in early 2005 after he had suffered some falls and had become too feeble to care for himself and his home. Mr. Hutchins did not own a washing machine or dryer prior to his hiring appellant, but bought a set and had them installed in appellant’s home in order that she might wash his clothes. Mr. Hutchins did not drive, but after he hired appellant, he bought a brand new GMC pick-up truck, which appellant drove. Mr. Hutchins also loaned appellant money for a deposit and first-month’s rent on a house.
According to trial testimony, these purchases and financial transactions were out of the ordinary for Mr. Hutchins, who was said to have been frugal. His small house had no running hot water and no toilet facilities indoors. A wood-burning stove provided heat for the house. However, it was established at trial that Mr. Hutchins was generous with his church and helped people in need. Friends became concerned about Mr. Hutchins’s spending when the washing machine, dryer, and truck were purchased.
Appellant made an appointment for Mr. Hutchins with attorney Teresa Wineland for September 15, 2005. On that date, appellant drove Mr. Hutchins to Ms. Wineland’s law office and waited in the truck. Mr. Hutchins asked Ms. Wineland to draft a new will, leaving the washing machine, dryer, truck, and half of the remainder of his estate to appellant, with the other half of the estate going to his daughter. After Mr. Hutchins executed the will, appellant kept it in her possession.
Friends who picked Mr. Hutchins up for church on Sunday mornings testified that appellant would help him get dressed for church. However, the last few Sundays of his life, appellant did not help Mr. Hutchins get ready for church. On Sunday, October 2, 2005, Mr. Hutchins was found on the floor of his home by a friend. He had apparently fallen and had lain on the floor for several days. He was taken to the hospital where he died a week later. Three days after his death, appellant filed a petition to probate the September 15, 2005 will. The will was admitted to probate on October 12, 2005, and a motion to contest the will’s admission was filed on November 28, 2005, by Merrie Hutchins, Mr. Hutchins’s daughter.
After a hearing, the trial court found that appellant had procured the will, effectively shifting the burden from the will challenger, Merrie Hutchins, to the proponent of the will, appellant. Because of the finding of procurement, the trial court found that a rebuttable presumption of undue influence arose and that the burden of proof was on the appellant to prove beyond a reasonable doubt that the testator had both the testamentary capacity and the freedom from undue influence to execute a valid will. The trial court found that Mr. Hutchins had the mental capacity to execute the will on September 15, 2005. However, the trial court found that, based upon the facts, appellant failed to rebut the presumption of undue influence and declared the will invalid. This appeal follows.
We review probate proceedings de novo, but we will not reverse the trial court’s decision unless it is clearly erroneous. Moore v. Sipes, 85 Ark. App. 15, 146 S.W.3d 903 (2004). A decision is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Moore, supra.
In a typical will contest, the party contesting the validity of the will has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). However, where a beneficiary under the will actually drafts or procures the will, a higher burden of proof is applied under Arkansas law:
In Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), we held that the proponent of a will who is a beneficiary and who drafted the will or caused it to be drafted has the burden to prove beyond a reasonable doubt that it was not the result of undue influence and that the testator had the mental capacity to make the will. We again held in Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980), that where a beneficiary procures the making of a will, “it is incumbent upon those who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and actions as are requisite to render a will legally valid.”
Park v. George, 282 Ark. 155, 159, 667 S.W.2d 644, 647 (1984). See also Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965).
Appellant contends that the circuit court erred when it found that she procured the will and thereafter shifted to her the burden to prove beyond a reasonable doubt that on September 15, 2005, Alvin Hutchins had both the testamentary capacity to execute a valid will and freedom from undue influence. She argues that under Looney, supra, she did not procure the will, as procurement requires actually drafting the will for the testator or planning the testator’s will and causing him to execute it. She maintains that there was no evidence that she actually drafted the will or that she planned it or caused Mr. Hutchins to execute it.
Appellee contends that the instant case is similar to Looney, wherein the procurer of the will, Ms. Looney, was the administrator of the nursing home wherein the elderly Ms. Wade resided. Ms. Wade feared that no one would care for her in her declining years. The court noted that the proponent of the will was Ms. Wade’s caregiver and that she had a fiduciary duty to protect Ms. Wade and not to gain financially from her advanced age and weakened physical condition. Appellee argues that, here, Mr. Hutchins relied upon appellant as a cook and housekeeper, and rather than protect him, appellant took advantage of him financially by helping him secure a will that favored her in derogation of all prior representations as to what his natural disposition of his property to his daughter would have been.
The circuit court found that appellant’s acts of procurement were that she was a beneficiary under the will who called the lawyer’s office to make the appointment for Mr. Hutchins, drove Mr. Hutchins to the appointment, and waited in the truck for him while he kept the appointment. Further, appellant kept the will in her possession following the appointment. The trial court did not find credible her testimony that she did not know the content of the will or why the decedent went to the lawyer’s office.
Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984), is similar to the instant case, but has a different result. There, Mr. Dunn drove the testator to the lawyer’s office and participated in the initial discussions concerning making a will. However, the court held that the testator freely and voluntarily executed his own will, and that Mr. Dunn did not procure the making of the will. The court relied upon the case of Park, supra, in determining what it means to procure a will, and stated as follows:
In the case of Park v. George, Pers. Rep., 282 Ark. 155, 667 S.W.2d 644 (1984), an attorney who named himself as a beneficiary in the amount of $10,000.00 drew a will for an 88 year old woman who had been hospitalized and sedated and who appeared confused and upset. In the case at bar, Delma Dunn merely drove Mr. Pierce to the attorney’s office and participated in the initial discussions concerning making a will. The court found that Mr. Pierce was possessed of both testamentary capacity and freedom of will. Where a competent individual freely and voluntarily executes his own will, it cannot be said that another procured the making of that will.
Rose, 284 Ark. at 47, 679 S.W.2d at 183.
Here, appellant merely called the lawyer’s office to make the appointment for Mr. Hutchins. Subsequently Ms. Wine-land, the attorney, contacted Mr. Hutchins personally to make sure he wanted the appointment. Appellant was not present in the office when the will was executed. Further, Ms. Wineland testified that Mr. Hutchins explained to her the reasoning behind dividing his estate between his daughter and appellant. Ms. Wineland stated that she was convinced that Mr. Hutchins had the proper mental capacity to do what he did. Therefore, based upon Rose, we hold that the trial court erred in finding that appellant procured the will and shifting the burden of proof to her.
Further, we hold that the trial court made a proper finding of testamentary capacity as follows:
As to testamentary capacity, the testimony of Teresa Wineland, who prepared and witnessed the Will, and Martha Kellum, the second witness, clearly established that Alvin Hutchins possessed the capacity to execute the Will on September 15. Decedent knew what he wanted to do, appeared coherent, and answered counsel’s questions in a manner that indicated sufficient capacity on that day. The testimony of Martha Kellum confirmed the observations and conclusions of counsel.
Once testamentary capacity is established, the question of whether the testator was unduly influenced must be answered. We do not find error in the trial court’s finding that Mr. Hutchins had the testamentary capacity to execute a will; however, because the trial court erroneously shifted the burden of proof to appellant, we reverse and remand for the trial court to act consistently with this opinion.
Reversed and remanded.
Bird and Heffley, JJ., agree. | [
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Judith Rogers, Judge.
Appellant, Dewayne Williams, was found guilty by a jury of second-degree murder and was sentenced to a term of twenty years in prison. Appellant raises three issues for reversal of his conviction. Because we find merit with his first point, we reverse and remand for a new trial.
Shane Kidwell was fatally shot while sitting in his car at a housing project in Blytheville, Arkansas, and appellant was charged with first-degree murder in connection with Kidwell’s death. Appellant filed a pretrial motion to prohibit the State from impeaching its own, as well as defense, witnesses with prior statements made to the police. Appellant again raised objections to the State’s impeach ment of the witnesses at trial, which the trial court overruled. Appellant assigns the trial court’s rulings as error.
We recently considered this issue in Hinzman v. State, 53 Ark. App. 256, 922 S.W.2d 725 (1996). There, we recognized that unsworn statements made by a witness are hearsay, and thus cannot be introduced as substantive evidence to prove the truth of the matter asserted therein. We also acknowledged that, under Rule 613 of the Arkansas Rules of Evidence, extrinsic evidence of a prior inconsistent statement made by a witness can be admitted if the witness is afforded the opportunity to explain or deny the statement, and does not admit having made it, and the other party is afforded the opportunity to interrogate the witness about the statement. Conversely, if the witness admits giving a prior inconsistent statement, then extrinsic evidence of that statement is not permitted. Id. In Hinzman v. State, we determined that the trial court had erred by allowing the State to impeach the prosecuting witness, who candidly admitted that she had previously given false statements to the police and others, by quoting excerpts from the prior statement detailing the accusations she had made against the defendant. We reached that decision in reliance on the settled principles mentioned above and previous case law, particularly the supreme court decision of Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), where it was held that a prior inconsistent statement could not be quoted into evidence as part of the impeachment process.
In the case at bar, Shawn Jefferson, a witness for the defense, testified on direct examination that appellant was standing in a crowd drinking when the shooting occurred and that the only person near the victim’s vehicle was Jerome Woodard, who had since been killed. During cross-examination, the State asked Mr. Jefferson if he had given a statement to police officers soon after the murder of Shane Kidwell. The witness responded that he had voluntarily given a statement to the police. The following then occurred:
Q: You told them in that statement that “[appellant] went to shooting at the dude,” didn’t you?
A: I can’t remember.
Q: Would you like to have a copy of your statement to look at?
A: Yes, sir, I would.
Q: (HANDING) I refer you to page two. The last few questions on page two. Did you make that statement to police officers?
A: (EXAMINING) I believe so.
Q: That was in a tape recorded statement?
A: Yes, sir, it sure was.
Q: That was some one or two days after this murder had taken place — the murder of Shane Kidwell. Did you in fact at that time make a statement that [appellant] had shot Shane Kidwell some four to five times?
A: Yes, sir, I did.
In its examination of the witness, the State did more than question the witness as to whether he had given a statement which was not consistent with his testimony at trial. As in Hinzman v. State, the State sought to impeach the witness with the prior statement by quoting from the statement, thereby revealing the content of the assertions which had been previously made. Moreover, the witness was not given the opportunity to explain or deny that he had given an inconsistent statement. See Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994). In keeping with Hinzman v. State and the case law discussed therein, we conclude that the State’s attempt to impeach the witness was improper. The dissent asserts that Shawn Jefferson did not unequivocally admit the statement. It is clear from the record that Mr. Jefferson admitted making a statement but was not given the opportunity to admit or deny making a prior inconsistent statement as Rule 613 requires.
For much the same reason, we also conclude that error occurred in the State’s impeachment of its own witness, Kimberly Smith.
Appellant also argues that the trial court erred in denying his motion to suppress evidence because his custodial statement was not given voluntarily but was obtained in violation of his Miranda rights. We disagree.
In reviewing the trial court’s denial of a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse the trial court only if the decision was clearly against the preponderance of the evidence. Dickerson v. State, 51 Ark. App. 64, 909 S.W.2d 653 (1995).
Custodial statements are presumed involuntary, and the State has the burden of proving otherwise. McClendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994). The State must therefore make a prima facie showing that the accused knowingly, intelligendy, and voluntarily waived his right to remain silent. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). In determining whether a statement is voluntary, consideration is given to the accused’s age, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993). The credibility of the witnesses who testify to the circumstances surrounding the defendant’s custodial statement is for the trial court to determine. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991).
The record reveals that appellant was twenty-one years old, had an eleventh grade education, and was working on a GED. Ralph Hill, Chief of Police in Blytheville, arrested appellant on Friday, July 18, 1992, at 6:30 a.m. Chief Hill testified that he advised appellant of his Miranda rights. Chief Hill said that appellant acknowledged that he understood his rights, but he did not take a statement from appellant at that time because appellant was intoxicated. Mary Ann Lampe, a detective sergeant, testified that she was present at the time appellant was arrested and that he was advised of his rights. She also said that appellant was not questioned at that time because he was intoxicated.
Vernon Gann, a detective with the Blytheville police department, testified that he interviewed appellant at 9:00 a.m. on Monday, July 20, two days after his arrest. He said that he advised appellant of his rights and read the rights form to appellant. Detective Gann testified that appellant refused to sign the rights form, but that appellant indicated that he understood his rights and would cooperate and answer any questions. He said that he tape recorded their conversation, and appellant gave his statement of his own free will and was not threatened, hit, struck, or beaten. Detective Mike Marshall was also present during the interview, and he testified that appellant voluntarily waived his rights and agreed to give a statement.
Appellant testified that he was intoxicated when he was arrested. He said that Chief Hill got violent with him and began kicking his chair. Appellant testified that he requested an attorney several times over the course of the weekend and that he was struck and threatened. Appellant admitted that he refused to sign the rights form.
After reviewing the evidence, we cannot say that the trial court’s finding that appellant voluntarily waived his Miranda rights was clearly against the preponderance of the evidence.
Appellant also maintains, however, that there was no valid waiver of his Miranda rights because he did not sign the written waiver. There is no requirement that an accused sign a written waiver prior to making a statement. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993).
Lastly, appellant argues that he was not prompdy brought before a magistrate following his arrest pursuant to Ark. R. Crim. P. 8.1. We decline to address appellant’s final point because he failed to make this argument below, and we do not address issues raised for the first time on appeal. Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995).
Reversed and remanded.
Robbins, Mayfield and Neal, JJ., agree.
Jennings, C.J., and Pittman, J., concur in part and dissent in part. | [
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Tom Glaze, Judge.
On January 8, 1980, appellee was granted a divorce from appellant and awarded custody of the parties’ minor son, Jason. Two years, eight months later, appellant initiated this action to obtain custody of Jason, and the trial court denied her request. The sole question on appeal is whether the court’s decision was clearly against the preponderance of the evidence.
The primary consideration in awarding the custody of children is the welfare and best interest of the children involved. Other considerations are secondary. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). The same standard applies to a change in custody. Watson v. Watson, 271 Ark. 294, 608 S.W.2d 44 (Ark. App. 1980). See also Malone v. Malone, 4 Ark. App. 366, 631 S.W.2d 318 (1982). As this court pointed out in Kimmons v. Kimmons, 1 Ark. App. 63, 613 S.W.2d 110 (1981):
While chancery courts possess a continuing power over the matter of custody of a child which has been awarded to one of the parents, it does not follow that an order changing the status can be made without proof showing a change in the circumstances from those which existed at the time the original order was made. The original decree constituted a final adjudication that appellant, and not appellee, was the proper one to have the child, and before an order can be made changing the status there must be proof on the subject justifying the change.
Id. at 65, 613 S.W.2d at 112 (quoting Weatherton v. Taylor, 124 Ark. 579, 187 S.W.2d 450 [1916]).
At trial, appellant showed her situation has changed in two respects since custody of Jason was awarded appellee: (1) She now is employed, and (2) she presently lives in a two-bedroom house rather than an apartment she shared with others at the time appellee divorced her. From the evidence, the only clear change in appellee’s circumstances is that he recently lost his job. He and Jason live with appellee’s sister and her ex-husband in a two-bedroom trailer. The sister cares for Jason when he comes home from elementary school and during the time appellee works. Jason’s kindergarten reports reflect that he is making good progress in school, and there is no indication that his basic needs are not being met. As we noted in Malone v. Malone, supra, we are aware of no cases in which custody was changed merely because one parent had more resources or income than the other. Based on the minimal proof offered by appellant, we are unable to say that the changes in the parties’ circumstances are sufficient to warrant or dictate a change in custody. Certainly, we cannot conclude the trial judge was clearly wrong in so holding.
In conclusion, we acknowledge appellant’s reference to testimony reflecting that appellee and his sister smoke marijuana. Appellant denied that he presently uses marijuana but admitted using it in the past. Apparently, the appellant did not convince the chancellor that she offered any better custodial care situation than that being presently administered by the appellee. In fact, the chancellor voiced his concern about “bouncing” a child from one environment to another when one environment has not been shown to be basically any worse than the other.
At the conclusion of the trial, the j udge admonished the parties that they should not permit their child to be subjected to their use of marijuana in his presence. The chancellor has the right to retain control of this case, and he is in a superior position to ensure that Jason’s welfare and best interests are protected. To this effect, see Phifer v. Phifer, 198 Ark. 567, 129 S.W.2d 939 (1939). Thus, if the parties fail to heed the chancellor’s admonitions, he may choose to take more drastic steps to ensure Jason is provided a proper custodial environment.
Affirmed.
Cracraft and Cloninger, JJ., agree. | [
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PER CURIAM.
This appeal from the Carroll County Chancery Court must be dismissed because the appellant did not file a timely notice of appeal.
This case was tried on October 3, 1995. On October 12, 1995, the appellant filed a motion for a new trial under Ark. R. Civ. P. 59, even though the decree had not yet been filed. In fact, the decree was filed on November 2, 1995. The chancellor denied the motion for new trial on November 14, 1995. On December 11, 1995, the appellant, stating that she was appealing from the November 2, 1995, decree and the November 14, 1995, order denying the motion for new trial, filed the notice of appeal. For the reasons expressed below, we hold that, because the appellant’s motion for new trial was filed prior to the entry of the decree, it was not timely and was, therefore, ineffective. Further, because the appellant failed to file a timely motion for new trial, the notice of appeal was due on Monday, December 4, 1995. Accordingly, we hold that the notice of appeal that was filed on December 11, 1995, was untimely and of no effect, and therefore, this Court is without jurisdiction to hear this appeal.
Arkansas Rule of Appellate Procedure — Civil 4(a) (formerly Ark. R. App. P. 4(a)) provides that, except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty days from the entry of the judgment, decree, or order appealed from.
Arkansas Rule of Appellate Procedure — Civil 4(b) provides that, upon the “timely filing” in the trial court of a motion for new trial under Ark. R. Civ. P. 59(b), the time for filing the notice of appeal shall be extended as provided in Rule 4. Arkansas Rule of Appellate Procedure — Civil 4 provides:
If a timely motion listed in section (b) of this rule [such as a motion for new trial under Rule 59(b)] is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing.
The failure to file a timely notice of appeal deprives this Court of jurisdiction. Williams v. Hudson, 320 Ark. 635, 638, 898 S.W.2d 465 (1995); Rossi v. Rossi, 319 Ark. 373, 374, 892 S.W.2d 246 (1995); Schaeffer v. City of Russellville, 52 Ark. App. 184, 186, 916 S.W.2d 134 (1996).
In this case, we must determine whether the appellant’s motion for new trial was “timely” under Ark. R. Civ. P. 59(b) and Ark. R. App. P. — Civil 4. Because it was filed before the decree was entered, we are convinced that it was not timely. Arkansas Rule of Civil Procedure 59(b) provides: “A motion for a new trial shall be filed not later than 10 days after the entry of judgment.” In Hicks v. State, 324 Ark. 450, 452, 921 S.W.2d 604 (1996), and Webster v. State, 320 Ark. 393, 394, 896 S.W.2d 890 (1995), the Arkansas Supreme Court held that a motion for new trial filed prior to the entry of judgment is not effective and does not extend the time for filing the notice of appeal.
In Webster v. State, the appellant was convicted of several crimes and was sentenced to six years in prison. He filed a motion for a new trial before the judgment and commitment order was entered. The supreme court held that, under Ark. R. Civ. P. 59 and Ark. R. App. P. 4(b), the motion for new trial was untimely and ineffective. It also held that, because the motion for new trial was ineffective and the appellant’s notice of appeal was based on the motion for new trial and filed more than thirty days after the judgment, the notice of appeal also was of no effect. The supreme court stated, however, that the appellant’s attorney had assumed responsibility for not verifying that the judgment and commitment order had been filed prior to the filing of the motion for new trial. The court reasoned that it would therefore treat the appellant’s motion for rule on the clerk as a motion for a belated appeal. It granted that motion and directed that a copy of its order be filed with the Committee on Professional Conduct.
In Hicks v. State, the appellant was convicted of several crimes on December 4 and 5, 1995, and was sentenced to ninety-five (95) years in prison. Before the judgment and commitment order was entered, the appellant’s counsel filed a motion for new trial on December 11, 1995. The judgment and commitment order was entered three days later, on December 14. The trial court did not rule on the motion for new trial. On January 19, 1996, the appellant’s counsel filed a notice of appeal from the judgment “entered against him on December 5, 1995.” 324 Ark. at 451. The supreme court clerk refused to accept the record because the notice of appeal was filed late. The appellant then filed a motion for rule on the clerk.
Citing Webster v. State, supra, the supreme court held that the motion for new trial was untimely and ineffective because it was filed before the judgment and commitment order was entered. 324 Ark. at 451. The court further stated: “Because the motion for new trial was ineffective and because the notice of appeal was filed more than thirty days after the judgment was entered, the notice of appeal was also of no effect. Webster, 320 Ark. 393, 896 S.W.2d 890.” 324 Ark. at 452. The supreme court denied the appellant’s motion for rule on the clerk because his counsel had not admitted responsibility for filing the notice of appeal untimely. The court, however, directed the appellant’s attorneys to file, within thirty days, a motion and affidavit accepting full responsibility for not timely filing the notice of appeal and held that, upon such filing, or for other good cause shown, it would grant the motion and send a copy of the opinion to the Committee on Professional Conduct.
Although Hicks v. State and Webster v. State are criminal cases, they are not distinguishable in this context. In Webster v. State, the supreme court specifically relied upon Ark. R. Civ. P. 59 in holding that the notice of appeal was of no effect because it was based upon a motion for new trial filed before the entry of the judgment and commitment order and because it was filed more than thirty days after the judgment. In Hicks v. State, the supreme court specifically relied upon Webster v. State in making its decision. Further, both of those decisions cited Ark. R. App. P. 4. Although the Revised Rules of Appellate Procedure became effective on January 1, 1996, the pertinent sections of Rule 4 of the Rules of Appellate Procedure — Civil track former Appellate Rule 4 without change.
Additionally, in civil cases, the appellant is not given an opportunity to file a belated appeal as criminal appellants may do when their attorneys admit responsibility for filing an untimely notice of appeal. In civil cases, we have consistently held that the failure to file a timely notice of appeal deprives this Court of jurisdiction and requires dismissal of the appeal. See Snowden v. Benton, 49 Ark. App. 75, 76, 896 S.W.2d 451 (1995); Glover v. Langford, 49 Ark. App. 30, 31, 894 S.W.2d 959 (1995).
The only clear authorities regarding the timeliness of the notice of appeal in the present case are Hicks and Webster, supra, and these cases require dismissal. Any other course would require us to construe the supreme court’s procedural rules, which is outside our jurisdiction, see Supreme Court Rule l-2(a)(3), or alternatively, to overrule Hicks and Webster. Because we are clearly obliged to follow, and are without authority to overrule, the decisions of the Arkansas Supreme Court, see Dean v. Colonia Underwriters Ins. Co., 52 Ark. App. 91, 99, 915 S.W.2d 728 (1996); Scarbrough v. Cherokee Enters., 33 Ark. App. 139, 143, 803 S.W.2d 561 (1991), aff’d, 306 Ark. 641, 816 S.W.2d 876 (1991), the latter alternative is not a viable option. Therefore, on the strength of Hicks and Webster, we dismiss this appeal.
Dismissed.
MAYFIELD, J., concurs in part and dissents in part. | [
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JUDITH Rogers, Judge.
This is an appeal from a declaratory' judgment in which the trial court held that an insurance policy issued by appellant to appellee was in full force and effect at the time of appellee’s loss, even though the policy had been canceled due to the nonpayment of the premium. Appellant raises two issues for reversal. It contends that the trial court erred in finding that the policy had been reinstated and in failing to find that appellee had perpetrated a fraud. We find merit in the first point raised and reverse.
On April 19, 1991, appellee purchased automobile liability insurance from appellant through its agent Lewis Allen Edrington on a 1983, four-door Cadillac Sedan DeVille. For a premium of $150, the policy extended coverage for a six-month period ending on October 19, 1991. Appellee remitted $80 at once, leaving a balance on the premium of $70. On June 4, 1991, appellant mailed a reminder notice to appellee advising him that payment of the remaining balance was due on June 18. Appellee failed to pay the balance due and a notice of cancellation was mailed on July 8 informing him that the policy would be canceled as of July 21, 1991, if payment were not received. Payment was not made, and a final notice of cancellation was mailed to appellee stating that the policy was canceled on July 21. This notice further advised that, if reinstatement were desired, appellee was to send the full amount due “now” and that he would be informed “whether [the] policy has been reinstated, and if so, the exact date and time of reinstatement.”
On October 5, 1991, appellant was involved in an automobile accident in the Cadillac. Two days later, on October 7, appellee went to Edrington’s office and remitted $70. In July of 1993, suit was filed against appellee for damages arising out of the October 5 collision. Appellee then filed this suit for declaratory judgment seeking a determination of whether coverage existed under the policy for the accident. In the complaint, appellee alleged that he had not received any notices of cancellation and that appellant had accepted payment on the premium both before and after the accident. After a hearing, the trial court ruled that appellant had presented sufficient proof of the mailing of the cancellation notices to satisfy the requirements of Ark. Code Ann. § 23-89-306 (1987), but found, however, that appellee’s payment of $70 on October 7, 1991, was for the balance of the term ending on October 19, 1991, and thus effected the reinstatement of the policy. Consequently, the court ruled that the policy was in full force and effect at the time of the accident and that it was, therefore, a covered event.
We do not set aside the findings of fact by a circuit judge sitting as a jury unless they are clearly erroneous. Ark. R. Civ. P. 52(a); American States Ins. Co. v. Tri Tech, Inc., 35 Ark. App. 134, 812 S.W.2d 490 (1991). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987). Appellant contends that the trial court erroneously found that the policy was reinstated to its original term when payment of the premium was made after cancellation. We agree.
There is no question but that the policy was canceled effective July 21, 1991. The receipt evidencing the payment made on October 7 by appellee clearly recites that the policy was “renewed,” not reinstated. As was said by Mr. Edrington, the policy was carried forward from that day to January 2, 1992, when it again lapsed because the payment was not sufficient to provide coverage after that date. Despite this evidence, the trial court reasoned that the payment reinstated, not renewed, the policy because no application was required, the policy number had not changed and no second policy was issued. However, with all due respect to the trial court, we are not persuaded by its reasoning because those circumstances are equally consistent with the renewal of a policy. Moreover, there is no indication that the procedure for reinstatement as outlined in the cancellation notice was ever accomplished. Based on the evidence, we are convinced that the trial court’s decision was clearly in error, and we reverse on this issue. Consequendy, it is not necessary for us to reach appellant’s second argument that appellee perpetrated a fraud by failing to inform its agent of the accident when the October 7th payment was made.
Reversed.
Robbins and Griffen, JJ., agree. | [
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Lawson Cloninger, Judge.
The sole issue in this appeal is whether the decision of the Board of Review that appellee Jerry D. Smith was not discharged from his employment with appellant Shipley Baking Company for misconduct in connection with his work pursuant to Ark. Stat. Ann. § 81-1106(b)(1) (Supp. 1985) was supported by substantial evidence. We find that the record does not provide evidence of such substance to support the Board’s ruling, and we reverse its decision.
Appellee Smith filed his claim for unemployment benefits in February, 1985, indicating that he had been discharged for failing to write a report on an air leak in a tractor’s brake system. In its initial determination, the Employment Security Division of the Department of Labor disqualified him from receiving benefits under Ark. Stat. Ann. § 81-1106(b)(1) (Supp. 1983) on a finding that he was discharged for misconduct in connection with his work. Smith appealed the decision, and, in April, 1985, the ESD Appeal Tribunal reversed the agency determination, allowing him benefits. In May, 1985, the Board of Review affirmed the Appeal Tribunal’s decision and found that appellee Smith had been discharged for reasons other than misconduct in connection with his work. From that ruling appellant brings this appeal.
In order for an employee’s action to constitute “misconduct,” it must be an act of wanton or willful disregard for the employer’s interests, a deliberate violation of the employer’s rules, or a disregard of the standard of behavior that the employer has a right to expect of his employees. St. Vincent Inf. v. Ark. Emp. Sec. Div., 271 Ark. 654, 609 S.W.2d 675 (Ark. App. 1980). Mere inefficiency, unsatisfactory conduct, failure of good performance as the 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. Dillaha Fruit Co. v. Everett, 9 Ark. App. 51, 652 S.W.2d 643 (1983); Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981).
On appeal, the findings of fact of the Board of Review are deemed conclusive if they are supported by substantial evidence. Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). Even though there is evidence upon which the Board might have reached a different result, 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. Id. This is not to say, of course, that our function on appeal is merely to ratify whatever decision is made by the Board of Review. 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.
In the present case, the Director of Labor concedes that appellee Smith at times may have exercised poor judgment in connection with his work but denies that his actions were of a willful, deliberate nature. We must examine the record in the case to determine whether this view of the matter can be sustained.
Appellee Smith was hired as a tractor-trailer driver by appellant in May, 1984. He delivered bakery products to Ozark, Russellville, and other communities outside the Fort Smith area. He received instructions regarding various responsibilities, such as loading the truck, inspecting it upon completion of his deliveries, and notifying his employer of any problems.
The record reveals that appellee Smith received four letters of reprimand before finally receiving a letter of termination. In August, 1984, Smith received a written warning concerning his refusal to load his truck despite his having been specifically instructed to do so by his sales supervisor. Smith received another letter of reprimand in September, 1984, when he took home paperwork that was supposed to remain at the bakery. When told by a fellow employee that this action created a problem at the bakery, he was reported as having said, “So what if it gives them a little extra work?” Also in September, 1984, Smith received a letter of reprimand for having failed on one occasion to report to work and to notify appellant that he would be absent, and for having been one to two hours late for work on seven different occasions. This letter further advised him that if his record did not improve he would be given a three day layoff without pay. In November, 1984, Smith received a letter of reprimand and disciplinary layoff for failing to report a flat tire on his trailer to his supervisor. He received notice of termination in February, 1985, through a letter that called to his attention his failure to notify appellant that he had continued to drive his tractor and trailer after the tractor brake had broken off, causing a rupture and leak in two air lines on the tractor.
The plant superintendent also testified that on four different occasions, despite his having instructed Smith not to do so, appellee persisted in stopping his engine while using his hydraulic lift to unload his truck, thus causing the battery to run down. As a result, appellant had to call a tow truck to move Smith’s tractor and trailer so that other waiting vehicles could be unloaded. Although the plant manager had issued a general directive requiring engines to be shut off when company vehicles were parked, appellee had received specific orders from the superintendent to continue running his motor when unloading. Moreover, on four separate occasions Smith had allowed the battery to run down; such conduct suggests at the very least a willful disregard for his employer’s interests. Cf. Hall v. Daniels, 269 Ark. 748, 600 S.W.2d 436 (1980).
We believe, with the accumulated evidence of appellee Smith’s behavior before it, that the Board of Review could not reasonably have reached its decision. Without departing from the bounds limiting the scope of our review, we hold that the Board’s finding that Smith had been discharged for reasons other than misconduct in connection with work is not supported by substantial evidence. The conduct of the claimant was of such nature and of such degree and recurrence as to manifest intentional and substantial disregard of his employer’s interests and of claimant’s duties and obligations as an employee. The Board of Review’s decision must be reversed.
Cracraft, C.J., and Cooper, J., dissent. | [
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Per Curiam.
Appellants’ motion for Rule on the Clerk is granted.
Mayfield, J., dissents. | [
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Tom Glaze, Judge.
John Wooten appeals from a Workers’ Compensation Commission decision which affirmed the administrative law judge’s finding that appellant was not entitled to temporary total disability benefits, but reversed a finding that the record was not sufficiently developed to determine the extent of permanent disability. For reversal, appellant contends that the Commission acted without power, or in excess of its powers, in ruling that the law judge could not hold in abeyance the issue of permanent partial disability and deciding appellant failed to prove any permanent disability. We remand.
Appellant sustained a compensable back injury on April 4, 1984. He contended he was entitled to both temporary total and permanent partial disability benefits. Appellant was the only witness called at the hearing, although letters written by two medical doctors and a chiropractor were introduced. After several months of treatment, Dr. Carpenter, the chiropractor, gave appellant a permanent impairment rating of 25% to the body as a whole. In July 1984, Dr. Saer, an orthopedist, performed a CT scan which showed a mild bulge at L5-S1. Dr. Saer reported that appellant did not want to undergo a myelogram at that time. On December 27,1984, appellee submitted to the administrative law judge a letter from Dr. Wilson, an orthopedist, in which he suggested appellant undergo a myelogram. Dr. Wilson also stated that “[t]he medical findings that are present indicate a herniated nucleus pulposus. . . .” Appellant testified that he was afraid to undergo a myelogram because he did not like needles. However, he stated that “if it came down to it, I would take a myelogram if I get worse.”
At the hearing before the law judge on October 11, 1984, appellee reserved the right to take depositions of doctors Saer and Carpenter, and the law judge took the case under advisement pending the taking of those depositions. On January 2,1985, the law judge issued his opinion denying temporary total benefits but reserving a finding on the permanent disability issue because “the degree of [appellant’s] permanent partial impairment could not be determined at this time.” The law judge, noting appellant’s remark that he would take a myelogram, stated that it is only reasonable to assume that if the appellant, after having a myelogram, is diagnosed as having a herniated nucleus pulposus, either with or without surgery, appellant would have an anatomical rating of permanent partial impairment.
Appellant appealed the law judge’s decision and filed with the Commission a motion to submit new evidence, including certain medical depositions. The Commission denied the motion, upheld the law judge’s denial of temporary total benefits and found the appellant had failed to meet his burden of proof on the issue of permanent partial disability.
In support of its opinion, the Commission cited Hill v. White-Rodgers, 10 Ark. App. 402, 665 S.W.2d 292 (1984), and Hay good v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982), which list the prerequisites for remands by the Commission for the taking of new evidence. Those cases, however, involved requests by appellants to reopen their cases to submit additional evidence after the law judges decided the disability issues. Here, the law judge, after denying temporary disability benefits to appellant, expressly reserved his decision on the permanent disability claim. While the Commission found fault with the law judge in withholding his decision on the permanency issue until that issue was fully developed, we are unaware of any reason why he could not do so. Clearly, the law judge, under Ark. Stat. Ann. § 81-1327(c) (Supp. 1985), had discretion to order further hearings for the purpose of introducing additional evidence even though that same provision directs that each party must present all evidence at the initial hearing. Thus, if the law judge can order additional evidentiary hearings, a fortiori, the judge necessarily should have the power and discretion to reserve his or her decision on a related issue which might be affected by any additional evidence.
We can appreciate the Commission’s interest in encouraging a prompt resolution of pending claims, but the law judge, under the circumstances here, had the discretion to reserve his ruling on the permanent disability issue. Until the law judge hears and decides that issue, the Commission is in no position to conduct a de novo review regarding appellant’s permanent disability claim. Therefore, we remand this cause with direction to permit the law judge to hear and decide that issue.
709 S.W.2d 412
Remanded.
Cracraft, C.J., and Cooper, J., agree.
Rehearing Denied May 21, 1986
Per Curiam.
Petition for Rehearing is denied.
Mayfield, J., dissents.
Cloninger, J., and Wright, Sp. J., not participating.
The administrative law judge found that appellant was not entitled to temporary total disability benefits because he continued to draw his full salary during his healing period. That finding was affirmed by the Commission, and it is not in issue here. | [
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George K. Cracraft, Chief Judge.
On February 18,1985 the administrative law judge entered an order finding that Jack Martin D/B/A Young’s Iron Company had more than three employees and was subject to the Arkansas Workers’ Compensation Act when Richard Young received a compensable injury during the course of his employment. The order directed appellant to pay all accrued benefits and an attorney’s fee. A copy of this order was sent to appellant by certified mail on March 8, 1985.
After more than thirty days expired from the date of the mailing of that order the appellee caused an execution to be issued on the money award. On April 23, 1985 the appellant filed a notice of appeal to the full Commission and a petition alleging that he did not have three or more employees at the time of the injury and that the Commission was therefore without jurisdiction. He further alleged that he had never received notice of injury, the filing of the claim, or the hearing, and prayed an order setting aside the order of the administrative law judge and affording him an opportunity to appear and present evidence in opposition to the claim.
He further argued that he had not received a copy of the order of the administrative law judge until he had been served with the writ of execution on March 27,1985, and that the order appealed from did not become final until thirty days after he had received a copy of it. Ark. Stat. Ann.§81-1325 (a) (Supp. 1985). The Commission incorporated the entire file and testimony at the hearing for the purposes of reviewing the motion. It found that the notice of the claim and fifteen day response letter was sent to the employer on December 4,1984, at his correct address, and were not returned. It found that notice of the February 13, 1985 hearing was sent by certified mail and returned unclaimed, but that there was no indication that the postal service failed to notify the employer of the mailing or that the certified mail hearing notice had not been tendered to the appellant. The Commission further found that a copy of the February 18, 1985 opinion was sent to the appellant at his correct address by certified mail on March 8,1985. It found that the return receipt bore no signature but that the opinion had not been returned to the Commission undelivered. The Commission found that these mailings created a presumption that appellant did receive the documents mailed to him and concluded:
The employer contends that he did not receive notice of the filing of the claim, the hearing, or copy of the order until execution was served on him. To believe this we must adopt the position that the U. S. Postal Service failed or refused to deliver duly stamped and addressed mailings on at least four separate occasions. We are not persuaded that the mailings sent to the respondent were never delivered.
When a letter properly addressed and stamped is shown to have been mailed, there is a presumption of fact that the letter was received by the addressee in due course. This presumption, however, ceases where the addressee denies having received the letter, whereupon it becomes a question of fact whether the letter was written or received. Old Republic Ins. Co. v. Martin, 229 Ark. 1064, 320 S.W.2d 266 (1959).
On appellate review of workers’ compensation cases the evidence is reviewed in the light most favorable to the findings of the Commission and given its strongest probative value in favor of its order. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. The extent of our inquiry is to determine if the finding of the Commission is supported by substantial evidence. Even where a preponderance of the evidence might indicate a contrary result, we will affirm if reasonable minds could reach the Commission’s conclusion. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
Although the appellant denied receiving notice of injury or notice of claim, there was evidence it had been mailed to him at an address at which he received his mail. There was evidence adduced at the February 13, 1985 hearing, and in support of the motion to dismiss the notice of appeal, that appellant had independent knowledge of these events.
Although the appellant denied having received the notice of hearing before the administrative law judge, there was evidence from two witnesses that they saw a letter from the Workers’ Compensation Commission, with a “green card” attached, on appellant’s desk prior to that hearing. The fact that it was subsequently returned to the Commission does not negate the Commission’s finding that there was no indication that it had not been tendered to him and he chose to reject and ignore it. Nor does the fact that the return receipt attached to the certified mailed copy of the administrative law judge’s opinion establish that it was not received by the appellant. When all the facts and circumstances are considered we cannot conclude that reasonable minds could not reach the conclusion that the order appealed from had been mailed and was received more than thirty days before the notice of appeal and petition were filed.
Appellant finally contends that the administrative law judge’s finding that appellant had more than three employees at the time of the injury is not supported by substantial evidence. In view of our conclusion that the appeal from that order was untimely, we do not address that issue.
Affirmed.
Glaze and Cooper, JJ., agree. | [
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Robert J. Gladwin, Judge.
On June 25, 2001, appellant pled guilty to possession of cocaine, a Class C felony, and was placed on five years’ probation by the Pope County Circuit Court. On December 2, 2002, the trial court granted the State’s petition to revoke appellant’s probation, sentencing appellant to serve thirty-six months in the Arkansas Department of Correction, with imposition of an additional thirty-six months’ suspended sentence conditioned upon appellant living a law-abiding life. Appellant con cedes that there was sufficient evidence to support the trial court’s finding that she inexcusably failed to comply with the terms and conditions of her probation. Appellant’s only argument on appeal is that the trial court erred in entering a judgment and commitment order reflecting the additional thirty-six months’ suspended imposition of sentence because it differed from the sentence pronounced in open court. We affirm.
Because appellant concedes that there was sufficient evidence to support the revocation of her probation, we need not discuss the conditions that were imposed and the proof of the subsequent violation of those conditions. At the December 1, 2002, revocation hearing, the court found that the State had met its burden of proof that appellant inexcusably failed to comply with the conditions of her probation. In regard to sentencing, the State recommended thirty-six months in the Arkansas Department of Correction with an additional period of thirty-six months’ suspended sentence. Following some discussion with the parties, the court stated to appellant that the prosecutor’s recommendation for a thirty-six-month sentence was not at all unreasonable, and noted that the court would not have had any problem imposing more time. The court stated, “A judgment of conviction shall be entered sentencing [appellant] to thirty-six months in the Arkansas Department of Correction.” The court then took up the issue of an appeal bond, and the proceedings were concluded.
On December 4, 2002, a judgment and commitment order was filed of record, stating that appellant was found guilty of possession of a controlled substance and sentenced to serve thirty-six months in the Arkansas Department of Correction with imposition of an additional thirty-six months’ suspended sentence conditioned upon defendant living a law-abiding life (not committing any offense punishable by imprisonment). Appellant appeals that portion of the judgment that imposed an additional suspended sentence.
Appellant contends that the court erred in incorporating into the written judgment and commitment order the additional thirty-six months’ suspended imposition of sentence because at no time in the proceedings did the trial court impose a suspended imposition of sentence. Appellant contends that she was entitled to be present for all portions of the proceedings concerning her case pursuant to Ark. Code Ann. § 5-4-310 (Repl. 1997), and that there were no further proceedings where the trial court changed its ruling from the ruling announced at the revocation hearing.
We note that appellant was present for all portions of the proceedings concerning her case and that the trial court was not required to conduct further proceedings to implement the addition of a suspended imposition of sentence to the judgment and commitment order. The State is correct in its contention that the judgment and commitment order was effective when entered of record, not when orally pronounced in open court.
In Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003), the trial court pronounced judgment in open court, sentencing the defendant to five years each on three separate felonies, to be served concurrently. Eight days later, the court ordered the defendant to appear for resentencing, whereupon it sentenced the defendant to five years on each of the charges, to be served consecutively. The defendant argued on appeal that he was entitled to rely upon the sentence he received in open court, citing Ark. Code Ann. § 16-65-121 (Supp. 2001), which provides: “All judgments, orders, and decrees rendered in open court by any court of record in the State of Arkansas are effective as to all parties of record from the date rendered and not from the date of entry of record.”
Our supreme court responded by noting that a judgment and commitment order is not effective until it is entered of record, and that while it is true that Ark. Code Ann. § 16-65-121 reads that a judgment rendered in open court is effective from the date it is rendered, it is also true that the statute has been superseded in civil matters by Ark. R.. Civ. P. 58, which provides that a judgment is effective upon entry of record. The court cited its decision in Price v. Price, 341 Ark. 311, 315, 16 S.W.3d 248, 251 (2000), where it said that in order to “protect what we hold' inviolate we now declare that we will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule’s primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.” The Bradford court went on to hold that judgment and commitment orders are effective upon entry of record in accordance with Administrative Order No. 2, and that § 16-65-121 was superseded because it directly conflicted with our rules, our Administrative Order, and our case law. The supreme court concluded that the trial court was well within its authority to modify the sentence pronounced in open court prior to entry of judgment as long as it complied with other pertinent criminal rules. 351 Ark. at 401-402, 94 S.W.3d at 909.
Following the reasoning set forth in Bradford, we hold that the trial court had authority to modify the sentence pronounced in open court prior to entry ofjudgment because the oral order was not effective until set forth in writing and filed of record. Accordingly, we affirm.
Affirmed.
Griffen and Roaf, JJ., agree. | [
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Olly Neal, Judge.
Appellant was charged and convicted of theft by receiving. He was sentenced by the trial court to five years’ probation. On appeal, appellant argues that the trial court erred because the State failed to prove that the trailer in question was actually that of the victim and that appellant possessed the trailer knowing it was stolen or having good reason to believe that it was stolen. We affirm.
In 1996, Lonnie Allen purchased a white utility trailer manufactured by Wells Cargo for approximately $4,500 in Mt. Pleasant, Texas. The trailer was registered with the Arkansas Department of Finance and Administration Office of Motor Vehicles on May 21, 1997, and its Motor or Vehicle Identification Number (VIN) is 1WC200F25T2030005. Allen reported the trailer stolen on August 13, 1999.
In his report to Officer Murphy Taylor of the Fairfield Bay Police Department, Allen described his utility trailer as having several identifying marks, including a “bubble” on the front of it and a dent in the top where he had “hit it with [his] Bobcat several months before it was stolen.” Further, Allen noted that he had made several alterations to his trailer that would help him in identifying it. Those alterations included drill holes in specific places for wiring of the emergency brakes and drill holes for a nose cone over the tongue .of the trailer and a tool box.
While on patrol on October 10, 2000, Officer Taylor noticed a trailer at a construction site where Norman McElroy was building a house. He saw that the trailer had a “bubble on it,” and was painted a “dingy, grayish looking black.” Taylor also noticed that there was a “factory-baked type white” on the trailer. Taylor decided to investigate the trailer after determining that the trailer looked strange because the colors “did not go together.” He noticed holes in the tongue and observed a single door on the trailer, which he found unique since most had double doors. Taylor ran the license plate, which was registered to appellant. The plate, however, was for a 1999 homemade black utility trailer. The vehicle identification number he discovered on the tongue came back “nonexistent,” meaning “not in file.” Taylor testified that he had enough suspicion about the trailer that he contacted the police department and requested Allen’s presence. At the site, Allen identified the trailer as his. Thereafter, appellant was linked to the trailer and charged with it theft by receiving. This appeal followed appellant’s subsequent conviction.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Slater v. State, 76 Ark. App. 365, 65 S.W.3d 481 (2002). Where the issue is sufficiency of the evidence in a criminal case, the test is whether there is substantial evidence to support the verdict. See Austin v. State, 26 Ark. App. 70, 760 S.W.2d 76 (1988). Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other; it must force or induce the mind to pass beyond suspicion or conjecture. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997).
In determining the sufficiency of the evidence, it is necessary to ascertain only the evidence favorable to the State, and it is permissible to consider only that testimony that supports a verdict of guilt, without weighing it against other evidence favorable to the accused. See id. Circumstantial evidence may constitute substantial evidence; when circumstantial evidence alone is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis. Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). Once the evidence is determined to be sufficient to go to the fact-finder, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the fact-finder to decide. Ashe v. State, supra.
On review, it is the appellate court’s job to determine if the evidence excludes every other reasonable hypothesis; it is only when circumstantial evidence leaves the finder of fact solely to speculation and conjecture that it is insufficient as a matter of law. Lindsey v. State, supra. Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Slater v. State, supra.
“A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.” Ark. Code Ann. § 5-36-106(a) (Supp. 2003); Slater v. State, supra. “Receives” means acquiring possession, control, or title to the property or using the property as security. Ark. Code Ann. § 5-36-106(b) (Supp. 2003); Smith v. State, 34 Ark. App. 150, 806 S.W.2d 391 (1991). The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen. Ark. Code Ann. § 5-36-106(c) (Supp. 2003).
Proof of actual possession is not necessary in order to establish theft by receiving; proof of constructive possession will suffice. Smith v. State, supra. A person constructively. possesses property when he has the power and intent to control it. Id. A person may be found guilty of theft by receiving if he is knowingly in possession of stolen property, even without proof that he took the property himself or acquired it from the actual thief. Slater v. State, supra; Fortson v. State, 66 Ark. App. 225, 989 S.W.2d 553 (1999).
Relying on King v. State, 250 Ark. 523, 465 S.W.2d 712 (1971), appellant first asserts that, in order to convict him, the State must prove that the trailer belonged to Allen. However, as the State points out, King involved a possession of stolen property charge, a crime which involved an intent to deprive the true owner of the property. In order to prove theft by receiving, the State does not have to prove a defendant intended to deprive the “true owner” of the property as was required to sustain a conviction for possession of stolen property. Thus, appellant’s reliance on King is misplaced. The State is only required to prove that appellant received, retained, or disposed of this trailer, which was owned by someone other than appellant, knowing it was stolen or having good reason to believe that it was stolen.
The State adequately met its burden in showing that this particular trailer had been stolen and that it belonged to Allen. That evidence included Allen’s testimony that the trailer was in fact his and the identifying marks of Allen’s trailer, such as the “bubble,” the dent in the top of the trailer, the nose cone, and the drill holes found where Allen said they would be. Further, Kerry Brown, Fairfield Bay Chief of Police, testified that he participated in the investigation. Fie testified that he impounded the trailer and inventoried it. Once the trailer was emptied, Fairfield Bay Police found a panel in the front of the trailer that was removed and painted with a serial number. The numbers seen on the panel were “30005.” Allen testified that these numbers were from the VIN on the trailer and the numbers were placed on the panel by the manufacturer.
The question that remains is whether or not appellant knew or had good reason to believe that the trailer was stolen. Norman McElroy testified that appellant worked for him at the house construction site and that the trailer belonged to appellant, although McElroy might have pulled it there with his truck. McElroy testified that appellant told him that the trailer belonged to his brother Daron Doubleday.
Daron Doubleday, appellant’s brother, testified at trial that he purchased the trailer in Conway “probably in October of 1999” for $1,200. When he purchased the trailer, Daron testified that it was stripped on the outside and was “in pretty rough shape.” Fie testified that he put new tires on it and that he did not remember from whom he purchased the trailer and that he did not get a bill of sale from that person. He testified that the trailer was titled to his mother.
Appellant contends that the State relied on the presumption of Ark. Code Ann. § 5-36-106(c) (Supp. 2003), which again sets forth that “[t]he unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen.” We hold that the State does not receive the benefit of this presumption because Allen’s trailer had not been recently stolen and because, even if the trailer was valued by Allen in excess of its purchase price, the evidence at trial gave no indication of its value a year and a half after it was stolen.
The license plate found on the trailer at the construction site did not belong to the trailer. Officer Taylor ran the license plate, which was registered to appellant; however, the plate was for a 1999 homemade black utility trailer. The trailer to which the plate was attached was a manufactured white utility trailer.
Appellant testified on his own behalf that he, his brother, and his father all used the trailer and that he had no reason to believe that the trailer was stolen. He acknowledged that his boss brought the trailer to the job site where it was found. Prior to that, appellant testified that because the trailer was five times bigger than the Honda Civic he owned at the time, his brother pulled the trailer to the previous job site.
Further, appellant testified that on October 10, 2000, the day that the trailer was discovered by Officer Taylor, he checked the registration inside the trailer and learned that it did not match the tags on the trailer. Appellant explained that the registration matched the tags that he had for his double-axle trailer. He stated that he therefore went home and retrieved the other tags off the double-axle trailer and put them on the trailer in question. Appellant testified that he showed Police Chief Brown the registration and the tags that were supposed to be on the trailer and showed that it was not registered in his name. Nevertheless, appellant testified that he did not have a copy of the registration because it was not his trailer. Appellant acknowledged that, although he did not purchase the trailer, he did possess it.
We conclude that the evidence presented undoubtedly indicated that the trailer belonged to someone other than appellant. Further, the evidence is sufficient to prove that appellant knew or had good reason to believe that the trailer was stolen. The license plate on the trailer was registered to appellant; however, it did not match the trailer. Appellant’s explanation was that there had been some sort of mix-up. Neither the bill of sale nor the registration papers were introduced for this trailer. Certainly, the court, sitting as fact-finder, could conclude that the trailer in question belonged to someone other than the appellant and that appellant knew or had good reason to believe that the utility trailer in his possession had been stolen. The trial court was not required to believe appellant or his brother, see Slater v. State, supra, and the court must have determined that appellant’s improbable explanation of the circumstances sufficiently established his guilt. See Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003) (holding that a defendant’s improbable explanations of suspicious circumstances may be admissible as proof of guilt). Accordingly, viewing the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and giving due deference to the trial court’s assessment of credibility as fact-finder, we affirm.
Affirmed.
Stroud, C.J., Gladwin and Crabtree, JJ., agree.
Vaught and Roaf, JJ., dissent.
Possession of stolen property, Ark. Stat. Ann. § 41-3938 (Repl. 1964), is no longer a crime under Arkansas law.
Although we only recognize the similarities between the trailer stolen and that found at the construction site„ we do note that there were some dissimilarities between them, including Allen’s testimony that somebody had spray-painted the magnesium wheels and had installed windows in the side of the panels, things that were not there prior to the theft.
Although the registration for the trailer in question was listed as Defendant’s Exhibit No. 1, it was not introduced at trial and is therefore not provided in the record.
Unlike a manufactured utility trailer that is assigned an affixed VIN by its manufacturer, the Department of Finance and Administration (DFA) issues vehicle identification numbers for homemade trailers. DFA requires that the assigned number, which is embossed on a metal tab, be permanently affixed to the homemade trailer. | [
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Terry Crabtree, Judge.
The Workers’ Compensation Commission affirmed and adopted the opinion of an Administrative Law Judge, who found that the appellant, Charles Whitiatch, failed to prove that he was permanently and totally disabled. The ALJ found that appellant was entitled to only 50% wage-loss disability benefits beyond the 9% anatomical rating assigned by appellant’s physician. On appeal, appellant claims that substantial evidence does not support the Commission’s decision; we agree. Therefore, we reverse and hold that appellant is entitled to permanent total disability benefits.
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Daniels v. Arkansas Dep’t Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002); Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). When a claim is-denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).
On February 2, 1998, appellant sustained a compensable injury to his low back when he was involved in a head-on motor vehicle accident while returning with supplies to his workplace, Southland Land & Development. At the time of appellant’s injury, Southland Land & Development, the appellee, had employed appellant for seven years as a maintenance man. Appellant described his job duties as requiring him to refurbish mobile homes when a tenant moved, maintain the grounds, and perform minor plumbing and electrical jobs. Prior to working for appellee, Coker Building employed appellant in construction work, and International Paper employed him as a forklift driver. Appellant described all of his past work experience as manual labor.
In an effort to overcome his injuries and return himself to work, appellant underwent numerous procedures, tests, and treatments over a four-year period. Appellant initially came under the care of Dr. Richard McCarthy, with the Arkansas Spine Center. On April 22, 1998, Dr. McCarthy conducted an evaluation of appellant, and based upon the severity of appellant’s injuries, the doctor reported:
He has been in a good state of health until February 2, 1998, at which point he was involved in a motor vehicle accident. . . Mr. Whitlatch wound up underneath his steering wheel with the steering wheel up against his chest. Since then the pain has gotten worse... The pain is felt in his back and hip on the left. His leg pain is significantly worse than the back pain. The primary pain has been felt around the anterior aspect of his left hip into the left testicle along the medial side of his left thigh and has now settled at it’s worst point pressed again the medial side of his left knee. There is some component of pain and numbness along the posterior aspect of the leg but this is much less than the thigh pain. There is some pain that extends along the medial side of the left calf as well. The pain is present throughout all of the day, and it is constant. He sleeps very poorly at night, often having to get up for pain relief... Walking or bending makes his pain worse. He really has a lot of difficulty even standing in one place. . . Although he desires going back to work, there is some question as to whether or not he will be able to go back to physical labor.
Dr. McCarthy performed surgery on appellant’s back in june of 1998. Dr. McCarthy found the nerve root to be, “quite taut” and it appeared to be “under pressure from beneath.” The postoperative diagnosis was, “herniated nucleus pulposus, L3-4, with extra tyrami-dal nerve root compression.” The surgery relieved some of appellant’s lower leg pain, but appellant’s lower back, hip, and upper back pain remained. As a result of appellant’s continuing pain, Dr. McCarthy ordered a follow-up MRI on August 27, 1998, which revealed significant scarring around the L3 nerve root. The report following the MRI states:
No significant disc bulge or herniating is identified. Enhancing epidermal scar is identified in the left L3-4 foramen and extends back posteriorly and laterally from prior surgery. This may partially surround the L3 root within the foramen.
By September 9, 1998, appellant reported “intolerable” pain, and Dr. McCarthy referred appellant to Dr. Carl Covey for pain management. At that time, Dr. McCarthy wrote in his progress note:
I will ask for him to be evaluated by the pain service and allow them to see what can be done for his problem. At this point he is unable to return to work, its too early to rate him and I would say that at this point he has a poor prognosis for being able to return to work. At this point, I don’t have much else to offer him to be able to help him with his problem.
Dr. Covey implanted, first a trial and then a permanent, spinal cord stimulator to alleviate appellant’s pain. Appellant testified that the stimulator made the pain bearable; however, it did not eliminate it. In addition, appellant was prescribed narcotic medication, OxyContin, twice daily and a Duragesic patch that he changes every forty-eight hours. In his medical reports, Dr. Covey indicated that the OxyCon-tin was prescribed for appellant’s “break through pain.”
By December of 2000, appellant reported increasing pain, complaints of his legs falling asleep, and loss of bladder control. Dr. Covey wrote in a progress note on December 8, 2000:
[Appellant] says that when he sits for a period of time or when he is sleeping many times at night, he legs will fall asleep so much that he can’t get up or stand and loses control of his bladder at that time. It is positional related. . . Assessment: patient with contractible back and left lower extremity pain, now with complaints of some numbness and incontinence, intermittent related to position, specifically sitting or laying for long periods of time. . .
Ultimately, appellant was referred for a functional capacity evaluation with Dr. Kevin Collins. On August 3, 2001, appellant underwent the testing, and the report confirmed that he was unable to complete many of the tests and exercises normally performed and that he was “crying” in pain while lifting only eight pounds. In spite of appellant’s “crying” pain, the report concluded that appellant “displayed the functional abilities of working in the sedentary category for an eight-hour day. Frequent position changes should be afforded as needed.”
Following the functional capacity evaluation, Dr. Collins issued a letter report dated September 19, 2001, and concluded that appellant was totally and permanently disabled, and unable to perform any work-related activities on a sustained basis. Dr. Collins specifically noted appellant’s “good effort” during the course of the evaluation and diagnosed him with “failed back syndrome.” Dr. Collins opined that appellant was totally and permanently disabled as a result of a combination of his “physical findings” and appellant’s “narcotic usage.” He also assigned appellant a 9% permanent impairment rating to the body as a whole.
On March 11, 2002, in a follow-up report, Dr. Collins wrote that appellant continued to suffer with severe pain in his left leg and low back. Appellant described his pain to Dr. Collins as “sharp and burning,” as if he is on “fire,” and as if “a piece of burning charcoal is inside his back.” Appellant also reported to Dr. Collins that the leg and back pain were constant and that the narcotic medications only make the pain “bearable,” at least to the point where he was not crying all of the time.
As a result of his severe pain, appellant is not able to sleep at night. During the day, he tries to lay down and rest. Due to his lack of sleep, he reports that he stays “irritable, jittery, and angry.” According to appellant, he suffers side effects from the medications, which make him “feel groggy, down, and not there all the time.” Appellant stated that he spends his days getting “up and down” to get comfortable. He testified that the most comfortable position for him is lying on his left side with his left leg pulled up towards his body with his right leg straightened. He said that during the day he watches television, reads, and lies on his bed playing with his dog, a small toy fox terrier. Between the working hours of 8 a.m. and 5 p.m., he estimates that he spends four to five hours lying down and trying to cope with his pain. As a result of his pain, he is no longer able to take care of his household responsibilities, and a neighbor helps with his housework. He is unable to vacuum, cook, or wash dishes.
Before his compensable injury, appellant worked full time and reported that he liked his job. Now, however, as a result of his severe pain and the side effects he suffers from his medications, he does not believe that he would be able to concentrate or focus on a job. Appellant also suffers from memory loss associated with the medications. Yet, in an effort to address his ability to return to work, appellant underwent a vocational assessment on February 23, 2002, with Bob White, a vocational expert. White stated in his report:
[Appellant] appears much older than his stated 44 years of age. He is very deconditioned, has wide circles under his eyes, and has a limp of the left leg. He stated that he had not slept in five days prior to this interview. He had to hold his left leg out in an extended position while sitting, leans forward in his chair propping himself up with his hands. He verbally expressed a need for help. . . I know of no unskilled jobs that offer the ability to alternately sit and stand... The effects of pain, medication, and depression and anxiety all can impact judgment, attention and concentration, persistence and pace which are required to complete the eight hour work day and the forty-hour work week. . . It is the opinion of this specialist that [appellant] is not a candidate for any type of employment and is unable to physically and mentally meet the demands of sedentary work. . .
At the time of the hearing, appellant was forty-four years old. Appellant completed the eleventh grade, but he had not obtained his GED. Appellant sustained an injury to a portion of his body that is not scheduled under workers’ compensation laws. Therefore, appellant’s entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522 (Repl. 2002), which states in pertinent part:
(b) (1) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Workers’ Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity.
Pursuant to this statute, when a claimant has been assigned an anatomical impairment rating to the body as a whole, the Commission has the authority to increase the anatomical rating, and it can find a claimant totally and permanently disabled based upon wage-loss factors. Cross v. Crawford County Memorial Hospital, 54 Ark. App. 130, 923 S.W.2d 886 (1996). The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). 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. Eckhardt v. Wills Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998). 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).
In spite of the opinions of Dr. McCarthy, Dr. Collins, and Bob White, the Commission concluded that appellant was not totally and permanently disabled, and found that he had only established by a preponderance of the evidence that “he sustained a decrease in his wage earning ability equal to 50% to the body as a whole, for a total permanent partial disability rating of 59% to the body as a whole.” The Commission was persuaded by the fact that:
[Appellant] is relatively young and has sustained a physical impairment rating of only 9% to the body as a whole. [Appellant] contends that his pain prevents him from returning to the work force, but he has not even attempted to seek any type of employment to determine the tme extend of his wage loss disability.
The Commission also noted that appellant underwent a functional capacity evaluation, which determined that he “displayed the func tional abilities of working in the sedentary category for an eight-hour day. Frequent position changes should be afforded as needed.”
Appellant argues that the Commission’s analysis was flawed and that reasonable minds could not reach the decision that the Commission reached. Appellant’s argument is well taken. Appellant maintains that he is totally and permanently disabled as the result of the combination of the severe pain he suffers from in his back and legs along with the severe side effects he suffers associated with the narcotic medication he takes daily.
In short, when taking into consideration appellant’s limited education, manual-labor employment skills, severe pain in his back and legs, coupled with the side effects of necessary prescription pain medication, in addition to the testimony of his doctors and vocational expert, we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission, finding that appellant was anything less than permanently and totally disabled. See Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328 (2000). For these reasons, we are compelled to reverse the Commission’s decision.
Bird and Griffen, JJ., agree. | [
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John F. Stroud ,Jr., Chiefjudge.
Appellant Anderson Gas & Propane, Inc., sells and distributes gasoline, gasoline tanks, propane, propane tanks, and fertilizer; appellant Don Anderson is a shareholder and an officer of the company. (We will refer to both parties as “Anderson.”) Anderson appeals from the award of summary judgment to Westport Insurance Corporation in its action seeking a declaration that Westport owed it a defense of several lawsuits filed by third parties against Anderson and reimbursement for the damages incurred therein. In granting summary judgment, the trial court held that the insurance policy’s pollution exclusion unambiguously barred recovery. We hold that the exclusion is ambiguous and that this case must be reversed and remanded for trial.
Factual and Procedural History
Coppermine Lodge, a fishing resort on Beaver Lake in Benton County, was one of Anderson’s customers. The lodge had a gasoline-distribution system that included an above-ground tank that was connected to a dispensing pump by an underground pipe. In January 2000, the owners of the lodge discovered gasoline percolating out of the ground and called the Arkansas Department of Environmental Quality, which found a leak in the underground pipe. The leaked gasoline migrated to the wells of adjoining landowners, who sued the lodge’s owners, its former owners, and Anderson for bodily injury and property damage.
Anderson had a general commercial-liability insurance policy with Westport during the relevant time period. The policy obligated Westport to pay Anderson those sums that Anderson became legally obligated to pay as damages because of bodily injury or property damage to which the coverage applied and to defend Anderson against any suit seeking such damages. The policy contained the following exclusion, on which Westport relied to deny coverage:
This insurance does not apply to:
f. Pollution
(1) “Bodily injury” or “property damage” which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants” at any time.
(2) Any loss, cost or expense arising out of any:
(a) Request, demand or order that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of “pollutants”; or
(b) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of, “pollutants.”
The policy defined the term “pollutants” as follows: “ ‘Pollutants’ mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”
Anderson requested that Westport defend the lawsuits filed against it by the neighboring landowners and that it provide coverage for the loss. Relying on the pollution exclusion, West-port refused to provide Anderson with a defense or coverage. According to Anderson, it has settled fifteen of the sixteen lawsuits filed against it and is currently defending one remaining lawsuit. Anderson sued Westport for breach of contract and sought a declaratory judgment affirming Westport’s duty to defend and provide coverage for this loss. It also sued the insurance agent that sold the policy but later nonsuited that claim. In granting summary judgment to Westport, the circuit court stated:
1. That the Total Pollution Exclusion in the policy is applicable and enforceable consistent with its plain and ordinary meaning as the Court finds it not to be ambiguous.
2. That the Total Pollution Exclusion is applicable as the damages at issue are resultant from the dispersal, seepage and migration of gasoline which is a “pollutant” as defined by the policy.
It is from this order that Anderson has appealed.
Standard of Review
In reviewing summary-judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Alberson v. Automobile Club Interins. Exch., 71 Ark. App. 162, 27 S.W.3d 447 (2000). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. All proof submitted with a motion for summary judgment must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Schs., 58 Ark. App. 293, 951 S.W.2d 315 (1997).
Construction of the Exclusion
In reviewing an insurance policy, the appellate court follows the principle that, when the terms of the policy are clear, the language in the policy controls. Castaneda v. Progressive Classic Ins. Co., 83 Ark. App. 267, 125 S.W.3d 835 (2003). The language in an insurance policy is to be construed in its plain, ordinary, popular sense. Id. If a policy provision is unambiguous, and only one reasonable interpretation is possible, the court will give effect to the plain language of the policy without resorting to rules of construction. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). If the policy language is ambiguous, the policy will be construed liberally in favor of the insured and strictly against the insurer. Castaneda v. Progressive Classic Ins. Co., supra. Under Arkansas law, the intent to exclude coverage in an insurance policy that has been drafted by the insurer without consultation with the insured should be expressed in clear and unambiguous language. Pizza Hut of America, Inc. v. West Gen. Ins. Co., 36 Ark. App. 16, 816 S.W.2d 638 (1991). Whether the language of a policy is ambiguous is a question of law to be resolved by the court. Castaneda v. Progressive Classic Ins. Co., supra. If ambiguity exists, parol evidence is admissible and the meaning of the ambiguous term becomes a question for the fact-finder. Deal v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 48 Ark. App. 48, 889 S.W.2d 774 (1994).
An insurer may contract with its insured upon whatever terms the parties may agree upon that are not contrary to statute or public policy Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001). Absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. Id. The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk that is plainly excluded and for which it was not paid. Id.
The Arkansas decision most relevant to the question presented here is Minerva Enterprises, Inc. v. Bituminous Casualty Corp., 312 Ark. 128, 851 S.W.2d 403 (1993), wherein the supreme court held that a pollution exclusion in an insurance policy (similar to the one at issue here) was ambiguous and that the trial court had erred in granting summary judgment to the insurance company. The court held that it was unclear from the policy language that the single back-up of a septic tank in a mobile-home park was necessarily the kind of damage that the clause was intended to exclude. The parties’ disagreement concerned the interpretation of the word “pollutants” as it was used in the exclusion, which stated:
It is agreed that the exclusion relating to the actual, alleged or threatened discharge, dispersal, release or escape of pollutants is replaced by the following:
(1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.Waste includes materials to be recycled, reconditioned or reclaimed.
312 Ark. at 129-30, 851 S.W.2d at 404.
The insured argued on appeal that the definition of pollutants was intended to exclude industrial wastes, not common household wastes, and at best, the definition was ambiguous. The supreme court reviewed several decisions from other states that dealt with this issue and stated:
The pollution exclusion is a recent innovation of the insurance industry that has spawned considerable litigation. Among the cases we find a group that deals with the definition of pollution.This line of cases supports the premise that the exclusion is intended to prevent persistent polluters from getting insurance coverage for general poEuting activities, whether the insured or a third party, and was never intended to cover those who are not active poHuters but had merely caused isolated damage by something that could otherwise be classified as a “contaminant” or “waste.”
We are persuaded by these cases and their rationale and find the pollution exclusion in the case before us is, at least, ambiguous. It is not clear from the language of the policy that the single back-up of a septic tank in a mobile home park is necessarily the kind of damage the clause was intended to exclude. We find appellant’s interpretation that it was intended for industrial polluters to be a plausible one. Further, while the word “waste” is used as one of the examples of pollutants in the policy definition, as mentioned in' [Molton, Allen & Williams, Inc. v. St. Paul Fire & Marine Ins. Co., 347 So.2d 95 (Ala. 1977)], under the rule of ejusdem generis, the term “waste” must be considered within the context of the entire fist, all of which are pollutants related to industrial waste.
We hold there was an unresolved disputed issue of fact. See Tillotson v. Farmers Insurance Co., 276 Ark. 450, 637 S.W.2d 541 (1982). The initial determination of the existence of an ambiguity rests with the court, and if ambiguity exists, then parol evidence is admissible and the meaning of the ambiguous terms becomes a question for the fact finder. Pizza Hut of America Inc. v. West General Insurance Co., 36 Ark.App. 16, 816 S.W.2d 638 (1991).
312 Ark. at 130-34, 851 S.W.2d at 404-06.
Citing Minerva Enterprises, Inc. v. Bituminous Casualty Corp., Anderson argues that, as a matter of law, the term “pollutants” does not include gasoline because pollution exclusions like the one involved here áre aimed at industrial, persistent polluters. Also relying on that case, Westport asserts that the gasoline leak that occurred was exactly the type of situation to which such exclusions apply. That case, however, does not hold that, as a matter of law, either position is correct. The court found the term “pollutants” to be ambiguous and remanded the case for trial. We believe that the samé result must occur in this appeal.
The general rule is that the pleadings against the insured determine the insured’s duty to defend. Madden v. Continental Cas. Co., 53 Ark. App. 250, 922 S.W.2d 731 (1996). The duty to defend is broader than the duty to pay damages, and the duty to defend arises where there is a possibility that the injury or damage may fall within the policy coverage. Id. The insurer must defend the case if there is any possibility that the injury or damage may fall within the policy coverage. Id. See also Murphy Oil USA, Inc. v. Unigari Sec. Ins. Co., 347 Ark. 167, 61 S.W.3d 807 (2001). At this point, there is a possibility that the injury or damage may fall within the policy coverage.
In the policy involved in this action, Westport failed to include the term “gasoline” in the policy’s definition of “pollutants.” Also, the terms “irritant” or “contaminant” can reasonably be construed as including “gasoline” — or not including it. We believe, therefore, that the language of the exclusion is fairly susceptible to more than one reasonable interpretation and, thus, is ambiguous. Accordingly, a genuine issue of material fact remains for trial, and the summary judgment for Westport must be reversed.
Reversed and remanded.
Pittman and Bird, JJ., agree. | [
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Andree Layton Roaf, Judge.
Lonnie Copeland has appealed from an order of the Faulkner County Circuit Court dividing the parties’ retirement and pension plans in a divorce. On appeal, Lonnie Copeland argues that the trial court erred in (1) failing to divide the retirement and pensions equally and, (2) failing to give reasons for an unequal division. We agree that the trial court erred, and therefore, reverse and remand.
Lonnie Copeland and Barbara Copeland divorced on April 11, 2002, after twenty-four years of marriage. Prior to the divorce, the parties entered into a property-settlement agreement on March 13, 2002, purporting to distribute all marital property equally, except for their retirement accounts. Paragraph six of the agreement states:
The parties have reserved the issue of the division of the Plaintiffs SBC Savings and Security Plan; the Plaintiffs SBC Pension/Retirement Benefit; the Southwestern Bell Stock; and any retirement, 401K and/or pensions benefits the Defendant may have earned until the parties can gather some more information on these benefits.The Defendant shall make a good faith effort to determine whether he has retirement benefits and provide this information to his attorney so that it may be provided to the Plaintiffs attorney within thirty (30) days of the date of this hearing. Upon receipt of this information, if the parties cannot agree on the division of the retirement benefits herein referred to, they shall seek relief from the Court and the Court retains jurisdiction until this matter is adjudicated.
The pension plans that are the subject of this appeal include an annuity that will pay Barbara $946.68 per month upon retirement; Barbara’s SBC Savings and Security Plan worth approximately $32,000; Barbara’s Paysop Plan valued at approximately $2,000; and an annuity from Safeway Stores that would pay Lonnie $250.13 per month. The trial court also considered pension funds of approximately $93,000, which Lonnie took as an early withdrawal in 2000, prior to the filing of the divorce action.
At the hearing on the division of the retirement and pension plans, Barbara testified that she had worked for Southwestern Bell (SBC) for twenty-five years. She stated that through her employment with SBC she has earned the retirement benefits, to which she does not have access until she retires. She stated that she has not withdrawn anything from the funds and does not have any other retirement or stock-option benefits. Barbara also testified that for the majority of the marriage she was the primary provider, supplying medical insurance, providing “most of the monthly income for financial stability” and payment for bills, and that this allowed Lonnie to “pursue his other interests.” She asked that the court allow her to keep all of her retirement benefits in light of the above circumstances and the fact that Lonnie received a meat business in the settlement, and because the pension that she receives at retirement will be her only source of income. She also has custody of the parties’ minor daughter, and the parties’ older daughter and grandchild also currently reside with her. Barbara also indicated that Lonnie had not been forthcoming about his retirement benefits from his previous employment with Safeway Stores, Inc., and that only after the divorce did she discover that he was entitled to retirement benefits from Safeway Stores.
Lonnie also testified at the hearing. He testified that he has an annuity benefit from his employment with Safeway that will provide him with $250.13 per month upon retirement. He also stated that he does not have any other retirement funds that he had not disclosed. Lonnie testified that he took early distribution from a retirement fund in 2000 from his employment with Tinken Company, where he worked for thirteen years until the company closed and moved its operations to Mexico. He testified that after federal taxes, the $93,000 distribution amounted to “seventy something,” and that the couple paid an additional $14,000 in state taxes on the funds. He testified that of what was left, seventy-five percent of it was used to pay off “our stuff that my ex-wife now has possession of, her Jeep, the furniture, two credit cards that she had possession of, uh, two Sears bills, and, I kept five thousand ($5,000) for my business, and I paid off my three thousand dollar ($3,000) truck, and the rest of it, we spent.” Lonnie stated that he had always held ajob throughout his twenty-four years of marriage. He requested an equal division of the pension funds remaining after the divorce was filed, “considering [his] was divided equally.”
After hearing the testimony, the trial court purported to divide all plans “equally,” including Lonnie’s early distribution. The court first stated that the property division statute does not require mathematical precision, but requires an equitable division of the marital property. The court then explained that it had added the two retirement funds ($90,000 and $30,000) and divided them evenly, and that a fifty-fifty split would thus be $60,000. The court stated that after considering taxes and the use of 75% of the $90,000 for marital debt, the retirement funds would in effect be equally distributed if each party retained their remaining separate retirement funds. The court concluded that Barbara was therefore entitled to keep her roughly $30,000 in pension funds and that Lonnie had, essentially, received the benefit of his half from the early distribution. The court noted that after taxes Lonnie was left with $60,000 net, that the parties had paid some marital debts and that Lonnie retained $15,000 for himself, and finally concluded that “everybody walks out of here like they walked in today.” The trial court made no reference whatsoever to the parties’ two vested annuities, and when asked for findings as to why there should be an “inequitable division,” the trial court stated:
Oh, I’m thinking it is equitable. That’s what I’m ruling that I do think, after it’s all said and done, it was an equitable division of the ninety thousand dollars. I added the ninety thousand plus the thirty-two thousand. If you split that fifty fifty, that’s sixty thousand apiece. She takes her thirty thousand. After taxes, he had sixty thousand out of the ninety thousand is what I’m coming up with. And, so I do think they’re equal. It may not be exactly to the penny, but I think it’s an equitable division as it is now. I think he used the money to acquire marital assets prior to the divorce, which were split and agreed in a property settlement. So, I think that issue’s out of there. I think they used that money to acquire- and that leaves us with— where we are today, and I think that’s — I guess my ruling is that I think it’s an equitable split. [Emphasis added.]
I can give you a more formal ruling, later on, if you want that, and findings of fact. I’ll be happy to do that. But, I think that’s where I am right now. I do think it’s an equitable division.
The trial court did not make formal findings of fact, however, the order entered by the trial court states in pertinent part:
That each party shall keep as their own separate property their respective retirement and pension plans. This Court specifically finds that this is an equitable division of the marital property, considering all of the facts, including but not limited to the fact that the Defendant withdrew his pension plan prior to the dissolution of the marriage.
Lonnie Copeland appeals from the trial court’s order purporting to equitably divide the parties’ retirement and pension funds.
On appeal, Lonnie argues that the trial court abused its discretion in failing to divide the funds equally, and in failing to give its reasons for making such an unequal division. In this regard, Lonnie contends that the trial court used the terms “equal” and “equitable,” interchangeably, and that it included his retirement funds, already divided in the parties’ agreement and no longer in existence, in its calculations in such a way as to count those funds twice. Lonnie further contends that the trial court gave Barbara her $34,000 retirement funds plus the $946.68 monthly annuity, and only the $250.13 monthly to him, called it “equitable” yet gave no reason for the unequal division. We agree with all of Lonnie’s contentions.
This court reviews division of marital property cases de novo. Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982). The trial court has broad powers to distribute property in order to achieve an equitable distribution. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). The overriding purpose of Arkansas Code Annotated section 9-12-315 is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Id. Arkansas Code Annotated section 9-12-315 (Repl. 2002) provides that marital property is to be divided equally unless it would be inequitable to do so. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). If the property is divided unequally, then the court must give reasons for its division in the order. Ark. Code Ann. § 9-12-315(a)(l)(B) (Repl. 2002); Harvey v. Harvey, supra. The code also provides a list of factors the court may consider when choosing unequal division. Ark. Code Ann. § 9-12-315(a)(l)(A)(i)-r(ix) (Repl. 2002). This list is not exhaustive. A trial judge’s unequal division of marital property will not be reversed unless it is clearly erroneous. Keathley v. Keathley, supra.
Arkansas Code Annotated section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). The trial court is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. Id. (Emphasis added.) The trial court is given broad powers, under the statute, to distribute all property in divorce cases, marital and non-marital, in order to achieve an equitable distribution. Id.
From our review of the record, we cannot say whether the trial court intended to make an equal, or unequal and equitable, division of the parties’ pension funds. Although the trial court’s written order states that allowing the parties to keep their respective retirement and pension plans is an “equitable” division of the marital property, we note that the trial court, in making his calculations, first purported to make the parties’ cash funds “equal,” and did so by including Lonnie’s funds withdrawn prior to the filing of the divorce. The trial court’s written order did state that it considered the early withdrawal of Lonnie’s pension as a factor. However, the trial court in its oral ruling stated that Lonnie’s funds were “split and agreed to in a property settlement. So I think that issue’s out of there.” Further, the trial court included all of the federal and state taxes assessed for early withdrawal in its calculations, and, inexplicably, made no mention of or attempt to factor in the wide disparity in monthly benefits between the parties’ two vested annuity plans. Lonnie’s monthly annuity was approximately one-fourth of the value of Barbara’s, and it appears that the trial court simply ignored the disparity in these benefits in its findings and in making its calculations.
Furthermore, the retirement benefits remaining to be divided by the court comprised only part of the total amount of marital property owned by the parties. The parties’ settlement agreement purported to divide all marital property equally except Barbara’s retirement benefits, and any benefits Lonnie “may have earned,” in connection with which Lonnie was to make a good faith effort to determine whether he had any retirement benefits. It is undisputed that both parties were aware that Lonnie’s benefits through his employment with Tinken Company had been disposed of prior to the filing of the divorce and were not among the assets to be divided by the trial court. Barbara instead sought an unequal division in her favor of the remaining funds. In this respect, there is no evidence in the record to establish the value of the substantial amount of marital property divided between the parties by agreement, including businesses and race horses, and little evidence on the parties’ respective incomes or the other factors that the trial court is to consider pursuant to Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 2002) when it makes a distribution other than one-half to each party.
On de novo review of a fully developed record, when we can plainly see where the equities lie, we may enter the order that the trial court should have entered. Reaves v. Reaves, 63 Ark. 187, 975 S.W.2d 882 (1998). However, from the record before us, we cannot say whether it was error for the trial court to make what was essentially a grossly disproportionate distribution of the marital retirement assets remaining after the settlement in favor ofBarbara. The record is simply not fully developed. Accordingly, we reverse and remand this case for further proceedings. On remand, the trial court may permit the introduction of such additional evidence as is necessary to make findings regarding the valuation of all of the parties’ assets and the factors to be considered pursuant to Ark. Code Ann. § 9-12-315 (Repl. 2002). We also remand in order that the trial court may clearly articulate whether it is making an equal or unequal distribution of assets, and if unequal, the reasons why such distribution is equitable.
Reversed and remanded.
Pittman and Robbins, JJ., agree. | [
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Donald L. Corbin, Judge.
On January 9, 1979, appellant, Timothy Drain, pleaded guilty to burglary and theft of property and received a three-year suspended sentence on conditions. One of the conditions was that appellant pay court costs of $43.00 and a fine of $500.00 payable $50.00 per month beginning February 10, 1979. On July 7, 1980, a year and a half later, appellant had paid the $43.00 in court costs but only $15.00 toward the $500.00 fine. On July 7, 1980, appellant was arraigned for revocation. He made a pauper’s oath and the trial court appointed the Washington County Public Defender to represent him. At this time, the court granted appellant an additional 60 days to pay the $485.00 balance after accepting a plea of guilty to having failed to make payments on the fine. In an order dated September 10, 1980, defense counsel and the State agreed that appellant would be granted until November 15, 1980, to pay his fine, due to appellant’s having been civilly committed to the Arkansas Mental Hospital. On December 11, 1981, the State again petitioned the court to revoke appellant’s suspended sentence but appellant was not arrested until October 18, 1982. A hearing was finally held on February 18, 1983, when appellant’s suspended sentence was revoked and he was sentenced to serve three years in the Department of Corrections. Appellant’s original suspended sentence would have ended on January 9, 1982.
The only issue raised by appellant is whether or not under the testimony at the hearing, appellant was indigent so that the court should not have incarcerated him for nonpayment of his fine. Stated more succinctly, was appellant’s nonpayment of the fine deliberate or was it because of his inability to pay? It is well settled that we will not overturn a decision in the trial court to grant a petition to revoke unless it is clearly against the preponderance of the evidence. Cureton v. State, 266 Ark. 1034, 589 S.W.2d 204 (Ark. App. 1979).
Appellant contends that Ark. Stat. Ann. § 41-1103 (Repl. 1977) applies, which provides in part:
(2) Unless the defendant shows that his default was not attributable to a purposeful refusal to obey the sentence of the court, or to a failure on his part to make a good faith effort to obtain the funds required for payment, the court may order the defendant imprisoned in the county jail or other authorized institution designated by the court until the fine or costs or specified part thereof is paid. The period of imprisonment shall not exceed one (1) day for each ten dollars ($10.00) of the fine or costs, thirty (30) days if the fine or costs were imposed upon conviction of a misdemeanor, or one (1) year if the fine or costs were imposed upon conviction of a felony, whichever is the shorter period.
This statute basically codifies the principles established by the cases of Tate v. Short, 401 U.S. 395 (1971), and Williams v. Illinois, 399 U.S. 235 (1970), both of which stand for the proposition that a sentence to imprisonment for nonpayment of a fine works an invidious discrimination against indigent defendants in violation of the equal protection clause of the Fourteenth Amendment.
The State, on the other hand, contends that this case is governed by subsections 4 through 6 of Ark. Stat. Ann. § 41-1208 (Repl. 1977). Those subsections read as follows:
(4) If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
(5) The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.
(6) If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on defendant that might have been imposed originally for the offense of which he was found guilty, provided that any sentence to pay a fine or to imprisonment when combined with any previous fine or imprisonment imposed for the same offense shall not exceed the limits of sections 901 [§ 41-901] or 1101 [§ 41-1101], or, if applicable, section 1001 [§ 41-1001]. [Acts 1975, No. 280, § 1208, p. 500.]
The State contends that “an inexcusable failure to comply with a condition of suspension” was shown pursuant to subsection 4, arguing that appellant was given a fine to pay as a condition of his suspended sentence. The State further argues that appellant was not imprisoned because he did not pay his fine but because he violated one of the conditions of his probation. The State believes this revocation was not the invidious discrimination envisioned in Tate, supra. It is unnecessary to decide which of the above statutes is applicable as we reverse and dismiss on the following basis.
We believe the recent case of Bearden v. Georgia, 102 S. Ct. 3482 (1983), is dispositive of the issue in the case at bar. The probation of the defendant in Bearden, supra, was revoked after a hearing on the grounds that the defendant had failed to pay a fine and restitution upon which his probation had been conditioned. The defendant had borrowed funds to pay part of the amount owed but subsequently lost his job. Despite repeated efforts, the defendant was unable to pay the balance of his fine and restitution within the set time period. On appeal, the Georgia Court of Appeals rejected defendant’s claim that imprisoning him for his inability to pay the fine and make restitution violated the equal protection clause of the Fourteenth Amendment. The Georgia Supreme Court denied review and on certiorari to the United States Supreme Court, the case was reversed and remanded. Justice O’Connor, in writing for the majority, stated:
We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.
Justice O’Connor, in discussing the facts of the case, went on to state:
At the parole revocation hearing, the petitioner and his wife testified about their lack of income and assets and of his repeated efforts to obtain work. While the sentencing court commented on the availability of odd jobs such as lawn-mowing, it made no finding that the petitioner had not made sufficient bona fide efforts to find work, and the record as it presently stands would not justify such a finding.. . . The State argues that the sentencing court determined that the petitioner was no longer a good probation risk. In the absence of a determination that the petitioner did not make sufficient bona fide efforts to pay or to obtain employment in order to pay, we cannot read the opinion of the sentencing court as reflecting such a finding. Instead, the court curtly rejected counsel’s suggestion that the time for making the payments be extended, saying that ‘the fallacy in that argument’ is that the petitioner has long known he had to pay the $550 and yet did not comply with the court’s prior order to pay. App. 45. The court declared that ‘I don’t know any way to enforce the prior orders of the Court but one way,’ which was to sentence him to imprisonment. Ibid.
The focus of the court’s concern, then, was that the petitioner had disobeyed a prior court order to pay the fine, and for that reason must be imprisoned. But this is no more than imprisoning a person solely because he lacks funds to pay the fine, a practice we condemned in Williams and Tate. By sentencing petitioner to imprisonment simply because he could not pay the fine, without considering the reasons for the inability to pay or the propriety of reducing the fine or extending the time for payments or making alternative orders, the court automatically turned a fine into a prison sentence.
The facts in Bearden, supra, and in the instant case are similar. Here, appellant testified that he was just barely making it, that he was laid off, had no job, and was behind on child support payments. He further testified that he was cutting and selling firewood when he could and looking for a job. He testified that he only had an eighth grade education. His brother-in-law, Johnny Sylvester, testified that there was not much money in cutting wood, that he had been cutting wood with appellant, and they had not been making much money. He said he had never seen appellant with more than $20.00 at one time. In response to questions concerning his looking for work, appellant said he had made application everywhere he could think of, mostly at roofing companies because all he knew how to do was roofing or construction work. He admitted that he smoked and that his sister had given him a pack of cigarettes that morning. When asked when he last purchased a pack himself, he said it was over a week ago, “cause I don’t have no money.”
The following remarks were made by the State in its closing argument at the revocation hearing of February 18, 1983, pertaining to its concern in regard to appellant’s failure to pay the fine:
Your Honor, as this Court realizes, the Judgment in this case came down January 29th, of ’79, and that has been over four years ago. On the $500.00 fine, Defendant has paid a grand total of $15.00, and the State just can’t believe in four years a person couldn’t make a good faith effort to pay off that fine. It’s a reasonable fine, yet he has only come up with $15.00. We would ask the Court to enforce its Order and send Mr. Drain down to the penitentiary.
The above appears to be the same conclusion reached by the trial court in sentencing appellant.
As stated in Bearden, supra, the decision to place the defendant on probation reflects a determination by the sentencing court that the state’s penological interests did not require imprisonment. The trial court below originally found no purpose would be served by sentencing appellant to serve a prison term but instead elected to fine appellant and suspend the sentence. Appellant conducted himself appropriately during his probationary period but was involuntarily unable to pay his fine. At earlier revocation proceedings, the trial court should have explored alternatives to the fine when it became apparent that appellant was unable to earn the funds necessary to pay the fine. We believe the record reflects bona fide efforts on appellant’s part to obtain employment. Justice O’Connor in Bearden, supra, emphasized that the trial court could have reduced the fine, or directed that the probationer perform some form of labor or public service in lieu of the fine. We recognize that the State has an interest in punishment and deterrence, and likewise, is justified in pursuing a revocation of probation and the sentencing of a probationer for nonpayment of a fine when the defendant has willfully failed to pay the fine or failed to make bona fide efforts to do so. Pursuant to the authority of Bearden, supra, we normally would reverse and remand with directions to the trial court to make inquiry into alternative means of enforcement; however, the trial court, pursuant to the authority of Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981), no longer has authority to revoke the probation. In that case the Arkansas Supreme Court reversed the trial court for revoking a 5-year suspended sentence on a date more than five years after the guilty plea was accepted and the suspended sentence was imposed.
Here, appellant’s plea of guilty was accepted on January 9, 1979, and he was sentenced to three years which were suspended on condition. The sentence was not in accordance with the law in effect at that time, see Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), but the issue has not been raised by appellant. However, his original sentence ended on January 9,1982, and under the authority of Easley, supra, it is now too late to revoke the suspended sentence which ended on January 9, 1982. Therefore, there is no reason to remand, so this matter is reversed and dismissed.
Reversed and dismissed.
Cloninger and Glaze, JJ., concur. | [
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Donald L. Corbin, Judge.
This appeal is from a decision of the Board of Review which held appellant ineligible to receive unemployment compensation benefits. The Board’s decision was based on the finding that appellant left her last work voluntarily and without good cause connected with the work. [Section 5 (a) of the Arkansas Employment Security Law, Ark. Stat. Ann. § 81-1106 (a) (Supp. 1983)]. The Board of Review affirmed and adopted the Appeal Tribunal’s decision which contained the following findings of fact and conclusions of law:
The claimant quit her part-time job with this employer because she was not getting enough hours to pay for her driving to and from work. She indicated when she was first hired she was told her hours might fluctuate and she might have to work some evening hours. In fact, this happened and the claimant was requested to work one four hour shift in the day-time and two evening shifts consisting of two hours each. She indicates she lives approximately 10 miles one-way from her job and this would not be economically feasible to drive this distance. She does admit she was told though her hours would fluctuate and she would have to work some evenings. She also indicated that she was hired on a part-time basis and knew this could possibly happen.
This appeal raises two issues. The first is whether there is substantial evidence to support the Board’s finding that appellant voluntarily left her part-time work without good cause connected with the work. And secondly, whether an individual who is receiving unemployment compensation benefits may be totally disqualified from receiving benefits attributable to their prior full-time employment because they voluntarily quit their subsequent part-time employment. The first issue raised, dealing with good cause to leave employment, has been dealt with many times by this Court. However, the second issue raised by this appeal is one of first impression in this state.
As to whether appellant had good cause to leave her employment, the testimony and record support the finding that appellant was aware at the time she was hired that “her hours would fluctuate and she would have to work some evenings.” This Court has stated in Broyles v. Daniels, 269 Ark. 712, 600 S.W.2d 426 (Ark. App. 1980): “We agree with the board of review’s conclusion that general economic conditions which lead to seeking higher wages or lower living costs do not constitute ‘good cause connected with the work,’ as contemplated in the statute.’’ And in Armstrong v. Daniels, 270 Ark. 303, 603 S.W.2d 481 (Ark. App. 1980) this Court held: “While we will consider allegations of substantial decrease in wages as good cause for voluntary departure from employment, we will not say that complaints based primarily upon economic conditions beyond the control of the employer fit the statutory exemption for disqualification.” Based upon the evidence and testimony, we cannot say the Board’s decision that appellant voluntarily left her part-time work without good cause is not supported by substantial evidence or that it is contrary to law. See, Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978).
We now turn to the second issue raised by this appeal. The record reveals that appellant’s eligibility to receive unemployment benefits was not affected by her acceptance of part-time work and that the amount of her benefit check was only slightly reduced on two occasions because of her part-time wages. The statutory provision governing the amount of weekly benefits awarded during partial employment is Section 3 (c) of the Arkansas Employment Security Law [Ark. Stat. Ann. § 81-1104 (c) (Supp. 1983)] which provides in part:
For all claims filed on and after July 1, 1971, any insured worker who is unemployed in any week as defined in subsection 2 (m) [§ 81-1103 (m)] and who meets the eligibility requirements of Section 4 [§ Sill 05] shall be paid, with respect to such week, an amount equal to his weekly benefit amount less that part of the remuneration (if any) payable to him with respect to such week which is in excess of forty percent (40%) of his weekly benefit amount.
The California Court of Appeal was presented with a similar issue in Tomlin v. California Unemployment Ins. Appeals, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978). The California court held that voluntary quitting of part-time work without good cause did not disqualify appellant from receiving benefits accruing to her by reason of prior full-time employment. The California court reached its decision by interpreting the meaning of the phrase “most recent work” used in the statute precluding recovery of unemployment compensation benefits if employee left “most recent work” voluntarily without good cause. The court’s opinion in Tomlin, supra, states:
We conclude that the phrase “most recent work” should not be construed to mean merely the last employment of any kind prior to filing for benefits. It must refer to significant or regular employment in order to effectuate the purposes of the act. The most reasonable meaning for the term “most recent work,” taken in the context of the entire Unemployment Insurance Code and the purposes and policies behind it, is the most recent primary or principal or full-time employment of the individual. . . . Therefore, if an individual had a full time job, on the basis of which he is now eligible for unemployment insurance benefits, his qualification for benefits is not totally eliminated because he voluntarily leaves a part-time job.
The Supreme Court of Nebraska in Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983), cited the following language found in the Tomlin, supra, case:
If the claimant qualifies for full benefits in the absence of part time work, and for at least partial benefits when the claimant has part time work, then it makes no sense that should the optional part time work cease, for any reason, the claimant would become disqualified from any and all benefits.
The Nebraska Court went on to say, “We do not believe that the act requires an all or nothing interpretation as urged by the commissioner.”
And, likewise, in Unemployment Comp. Board of Review v. Fabric, 24 Pa.C. 238, 354 A.2d 905 (1976), the Commonwealth Court of Pennsylvania held that when a claimant voluntarily leaves part-time employment, he is rendered ineligible for further benefits only to the extent that his benefits were decreased by virtue of his part-time earnings. The Pennsylvania court reached its holding through an interpretation of the statute which disqualifies a claimant whose “unemployment” is due to voluntarily leaving work without cause of necessitious and compelling nature and the statutory definition of “unemployment”. The court concluded that:
[T]he part-time job must have... decreased the amount of the weekly benefits payable before a claimant can be denied any benefits because of a voluntary separation. Under the statutory definition, a claimant is only “unemployed” due to his voluntary separation to the extent of the wages he was earning; and we see no provision in the Act which requires or authorizes the Board to deny all of claimant’s benefits.
The District Court of Appeal of Florida relied upon the Pennsylvania Court’s decision in Fabric, supra, to reach its decision in Neese v. Sizzler Family Steak House, 404 So.2d 371 (Fla. 1981). The court in Neese enunciated three reasons for its liberal interpretation of the governing statute:
(1) The statute should not be interpreted in such a manner that it discourages part-time employment since part-time wages help to provide for claimants and their families during a time of unemployment and because part-time wages, in some instances, reduce the amount of benefits a claimant is entitled to and therefore reduces the compensation fund’s liability.
(2) The legislature clearly stated that the purpose of the act is to lighten the economic burden on unemployed worker and his family. The elimination of benefits solely because a claimant voluntarily accepts a part-time job which he later quits does not further this purpose.
(3) To deny all benefits to claimants who would otherwise be eligible to receive them except for the fact that they voluntarily left a part-time job would result in an unwarranted benefit to a claimant’s former full-time employer in the form of reduced contribution rate.
We are in agreement with the rule expressed in the above-cited cases. Therefore, we hold that a claimant who voluntarily leaves part-time employment is ineligible for further unemployment benefits only to the extent that his benefits would have been decreased by his part-time wages.
Turning to the case at bar, appellant testified that she quit her work when her hours were changed to three hours on Monday and two hours on two evenings a week for a total of seven hours a week. Appellant also stated that she could work up to eleven hours a week without having her part-time wages cause a reduction in her unemployment benefits. She did, however, testify that her benefits were reduced during two weeks of her five weeks of part-time employment. The employer-representative testified as follows at the hearing:
The first four [weeks] that she worked were considered training, and they always... allow you more hours for training periods than what the person would normally work during the rest of the time.
It, therefore, appears from the record that had appellant continued her part-time employment, she would have worked an average of seven hours a week at minimum wage ($2.95 per hour as of March, 1983) which would have earned her a total of $20.65 per week. The record contains a copy of appellant’s monetary benefit determination showing that appellant was entitled to receive $95.00 per week in extended benefits. It follows that appellant could earn up to $38.00 ($95.00 x 40%) without causing a reduction in her benefit amount. Since appellant could have expected to earn only $20.65 a week, her part-time wages would have had no effect on her unemployment benefits.
We therefore reverse and remand this case for the entering of an order awarding appellant benefits in accordance with this opinion.
Affirmed in part, reversed and remanded in part.
Cloninger and Cracraft, JJ., agree. | [
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MARGARET Meads, Judge.
This case concerns a breach-of-contract/promissory estoppel lawsuit filed by appel- lee Nabholz Construction Corp., a general contractor, against appellant MDH Builders, Inc., a subcontractor. The chancellor found in favor of appellee and awarded $90,998 in damages, plus $22,500 in attorney fees. Appellant raises several points of error on appeal, none of which merit reversal. Therefore, we affirm.
On March 9, 1994, appellee Nabholz submitted a $6,000,000-plus bid to Wal-Mart Stores, Inc., to act as general contractor on a construction project. Earlier the same day, appellant MDH, through its vice-president Ricky Marise, had submitted a $245,777 subcontract bid to appellee to perform the following work on the project: metal stud framing, gypsum board/tape and finish, rough carpentry, roof blocking, millwork installation, acoustical ceding, ER.P. panels, installation of door and frame hardware, toilet compartments, toilet accessories, and batt insulation. Appellee used appellant’s subcontract bid in computing its own general-contract bid.
By March 11, Wal-Mart informed appellee that it had been awarded the general contract. On or about that same day, appellee’s senior vice-president, Earl Ballentine, called Ricky Marise of MDH and informed him that “he [Marise] was the low bidder and we were going to do a job with him.” According to Ballentine, Marise had been anxious to hear about the job and was very excited. On March 23, Marise faxed a completed subcontractor information form to appellee, and on April 5, he attended appellee’s precon-struction meeting. However, on April 7, appellant’s president, Mike Hill, called appellee’s CEO, Dan Nabholz, and informed him that Marise would no longer be associated with MDH. He also asked that the subcontract be allowed to go with “an employee who was starting up his own firm.” Mr. Nabholz told Hill that the contract was in the name of MDH and that MDH must honor the contract, but also told Hill that he would have to talk to Ballentine. Ballentine spoke with Hill soon thereafter and was told that appellant did not want to perform the subcontract. As a result, appellee acquired substitute performance and executed a $287,669 contract with Systems Painters, Inc. Additionally, some of the work included in appellant’s bid was performed by appellee, using its own labor and materials, at a cost of $50,156.
On May 2, 1996, appellee sued appellant in Pulaski County Chancery Court for its failure to perform the subcontract. The complaint asserted the theories of breach of contract and estoppel and sought damages of approximately $90,000. A trial was held on the matter, and the chancellor entered an order awarding appellee $90,998. This sum represented the total amount of costs expended by appellee ($337,825), less appellant’s bid price ($245,777), less $1,050 deducted as the result of a change order issued during the construction process. Appellant appeals from that order.
Chancery cases are tried de novo on appeal. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). However, we do not reverse a chancellor’s findings of fact unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.
Appellant’s first argument is that appellee did not prove that a contract existed between Nabholz and MDH. The essential elements of a contract are: 1) competent parties; 2) subject matter; 3) legal consideration; 4) mutual agreement; and 5) mutual obligations. Hunt v. McIlroy Bank & Trust, 2 Ark. App. 87, 616 S.W.2d 759 (1981). According to appellant, the element of mutual agreement is lacking in this case. It contends that the chancellor erred in finding that appellee accepted appellant’s bid offer based upon appellee’s mere use of the bid. However, appellee’s use of appellant’s bid was not the only evidence of mutual agreement in this case. The words and conduct of Ballentine and Marise manifested a mutual assent to the contract. Acceptance of a contract may be accomplished by words or conduct. See Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995). In this case, Earl Ballentine communicated to Ricky Marise on or about March 11 that Marise was the low bidder and that they would be doing a job together! According to Ballentine, this meant that appellee had accepted appellant’s bid. Marise obviously understood because he was excited to get the job. Further, Marise submitted a subcontractor information sheet to appellee on March 23 after receiving Ballentine’s call, and attended a preconstruction meeting on April 5 after being invited along with other subcontractors and suppliers. Given this evidence, we cannot say that there is error on this point.
Appellant also contends that mutual assent was lacking because appellee did not accept MDH’s bid in accordance with its terms. According to appellant, appellee attempted to vary the terms of the bid by deleting the millwork from it and awarding that part of the bid to another subcontractor. Appellant cites Drennan v. Star Paving Co., 51 Cal.2d 409, 333 P.2d 757 (1958), for the proposition that a general contractor cannot reopen negotiations with the subcontractor and at the same time claim a continuing right to accept the original offer, and cites R.J. Daum Constr. Co. v. Child, 122 Utah 194, 247 P.2d 817 (1952), for the proposition that to create a binding contract, an acceptance must unconditionally agree to all the material provisions of the offer. Arkansas law is in accord with these general statements of law. Our supreme court has recognized that, to be effective, an acceptance must be identical with the terms of the offer. Rounsaville v. Van Zandt Realtors, 247 Ark. 749, 447 S.W.2d 655 (1969). Additionally, while the introduction of new terms may indicate a willingness to negotiate further, such a response is a counteroffer, not an acceptance. See id.
The evidence in the case at bar shows that, on bid day, appellee completed a bid sheet that listed not only the full amount of appellant’s bid, which included millwork, but the full amount of a bid made by another prospective subcontractor, Challenge Construction, which also included millwork. Further, a written contract prepared for appellant’s signature, but which was never executed, did not mention millwork. Appellant contends that this evidence, and evidence that appellant had changed the terms of bids on other, unrelated subcontracts, shows that appeEee’s acceptance did not mirror the offer. However, Earl Ballentine explained at trial that, on bid day, subcontract bids are submitted in various forms, requiring the placement of bid amounts under certain categories. He said he was not aware of an overlap on the millwork at the time he spoke with Mike Hill, nor did he attempt to renegotiate the price of the subcontract bid with Hill. His testimony indicates that the overlap was inadvertent. Further, the unexecuted written contract with MDH was for $245,777, the exact amount of MDH’s bid. Thus, the contractor here did not reopen negotiations with the subcontractor, nor attempt to add new, material conditions by submitting a contract with terms that were directly contrary to the original bid. We find no reversible error on this point.
Appellant’s next argument is that appellee did not prove it was entitled to recover on the theory of promissory estoppel. Under the promissory-estoppel theory, a subcontractor’s bid may become binding when its promise, which it should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the general contractor, does induce such action or forbearance and injustice can be avoided only by enforcement of the promise. See Reynolds v. Texarkana Constr. Co., 237 Ark. 583, 374 S.W.2d 818 (1964). Appellant contends that because there was evidence at trial that MDH did not meet certain specifications that Wal-Mart required all subcontractors to meet, appellee could not have reasonably relied on MDH’s bid. We need not reach this issue. Promissory estoppel may be used as a basis for recovery when the formal elements of a contract do not exist. See Reynolds v. Texarkana Constr. Co., supra. We have held that the trial court was correct in finding that a contract existed between .appellant and appellee. Therefore, there is no need to explore whether appellee proved entitlement to relief on an extra-contractual theory. Along these same lines, we need not address the chancellors declaration that he saw no difference between the contract and estoppel theories. We believe the chancellor was referring to the fact that, under either theory, appellee’s monetary recovery would be the same. In any event, we have affirmed the chancellor on his finding that a contract existed, and a trial court’s ruling will be affirmed if it is correct for any reason. Rager v. Turley, 68 Ark. App. 187, 6 S.W.3d 113 (1999).
We now turn to appellant’s claim that Ricky Marise did not have the authority to enter into a contract with appellee. Ricky Marise was the vice-president of MDH. Mike Hill admitted that Marise’s duties included submitting prices on bids. Although he claims that Marise’s employment was terminated between March 14 and March 30, the evidence is conflicting on that point. There is no evidence that Marise was not employed on March 9 when he submitted the bid or on March 11 when Ballentine accepted the bid. Further, Hill admits that he had discussions with Marise regarding this bid and another, similar Wal-Mart bid. He did not indicate in his testimony that he objected to Marise submitting these offers. It is also noteworthy that Marise submitted the subcontractor information sheet to appellee on March 23 with the assistance of appellant’s comptroller and attended the preconstruction meeting on April 5 with another MDH employee and signed in as a representative of MDH.
Whether an agent is acting within the scope of his apparent or actual authority is a question of fact. Hot Stuff, Inc. v. Kinko’s Graphic Corp., 50 Ark. App. 56, 901 S.W.2d 854 (1995). Apparent authority is such authority as a principal knowingly permits an agent to assume or which he holds the agent out as possessing. See Mack v. Scott, 230 Ark. 510, 323 S.W.2d 929 (1959). It is such authority as an agent appears to have by reason of actual authority that he has and such authority as a reasonably prudent person, using diligence and discretion, in view of the principal’s conduct, would naturally suppose an agent to possess. See id. Marise was vested with the title of vice-president and had the actual authority to prepare and submit bids on projects. A reasonable and prudent person could thus conclude that he had the concomitant authority to receive communications regarding the acceptance of a project that he had bid upon. We find no error on this point.
The next set of issues concerns items of evidence that appellee introduced to prove damages. Appellant contends first that appellee should not have been allowed to prove its damages by merely introducing a copy of its $287,669 contract with Systems Painters, the substitute subcontractor. It claims that proof of what the job actually cost Systems should have been introduced, preferably through a representative of Systems. Appellant cites Advance Constr. Co., Inc. v. Dunn, 263 Ark. 232, 563 S.W.2d 888 (1978), in support of its argument. However, that case is inapplicable. In Dunn, a subcontractor sued the general contractor that prevented him from completing his subcontract. As damages, the subcontractor sought the amount of its contract price, less what it would have cost to do the job. To refute the subcontractor’s evidence of cost, the general contractor offered proof of what it had paid the substitute contractor. The appellate court held that the proper way to refute the subcontractor’s evidence of cost would be to prove what the job actually cost the substitute subcontractor. The case before us, however, does not involve the type of damages sought in Dunn; it involves damages sought against a subcontractor for the subcontractor’s failure to perform.
Our research has not revealed any Arkansas authority directly on point regarding the proper measure of damages in such a case, nor have the parties cited us to any. However, in Capital Steel Co. v. Foster & Creighton Co., 264 Ark. 683, 574 S.W.2d 256 (1978), our supreme court impliedly recognized that, when a general con tractor sues a supplier for failure to perform, his damages are the difference between the contract price of the materials and what the contractor had to pay elsewhere. Other authorities have held under similar though not identical circumstances that when a contractor refuses to perform, damages may be recovered against him for the difference between his bid and the cost of having the work performed by others. See Westland Constr. Co. v. Chris Berg, Inc., 215 P.2d 683 (Wash. 1950); Sorenson v. Ewing, 8 Ariz. App. 540, 448 P.2d 110 (1968). See also 17B C.J.S. Contracts § 594 (1999), recognizing that a general contractor that is forced to complete a subcontractor’s work because of the subcontractor’s abandonment of the project may recover for expenses incurred in completing the work less the amount it would have paid the subcontractor had no breach occurred. That is precisely the proof that was offered in this case. Appellee offered evidence of the difference between MDH’s bid and the cost of obtaining substitute performance. Therefore, we find no error in the evidence introduced by appellee to prove its damages and hold that the correct measure of damages was used.
Appellant argues next that appellee’s evidence did not constitute a reliable computation of items of labor and material to be attributed to MDH due to the breach. The evidence offered by appellant to make this point is complex and difficult to follow. Nevertheless, upon careful review of it, we are persuaded that the chancellor did not err in assessing damages. During appellant’s examination of Earl Ballentine regarding improper items purportedly charged to MDH, the chancellor declared that Earl Ballentine testified that “nothing was charged against MDH for those. And I don’t know how it can be said any clearer or plainer.” The chancellor apparently believed Ballentine’s testimony that no charges were made to MDH for work not attributable to the subcontract. On matters of credibility, we defer to the .chancellor. Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982). Regarding appellant’s related argument that Ballentine was not the proper custodian of the records introduced to prove damages, appellant cites no legal authority for its claim. Arguments made without citation to authority or convincing argument will not be addressed on appeal. Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999).
Finally, appellant asks us to reverse the attorney fees awarded under Ark. Code Ann. § 16-22-308 (Repl. 1999) because the chancellor awarded damages based upon promissory estoppel rather than breach of contract. Without deciding whether promissory estoppel would support a fee award, we uphold the award based upon our interpretation that the chancellor’s decree awarded damages for breach of contract.
Affirmed.
Robbins, C.J., and Bird, J., agree. | [
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Tom Glaze, Judge.
The appellant, Charles Barton, appeals from the Workers’ Compensation Commission’s denial of certain expenses he claims to have incurred as a result of a compensable injury he sustained on August 14, 1976. He contends on appeal that substantial evidence does not support the Commission’s findings that he was not entitled to certain expenses. We affirm.
After his injury in 1976, the appellant was awarded permanent partial disability benefits of thirty-five per cent to the body as a whole. As a result of the original order in this case, the appellees were to be responsible for all reasonable hospital and medical expenses and mileage arising out of appellant’s compensable injury. This appeal arises from a hearing on September 14, 1983, when appellant sought payment of medical and mileage expenses that the appellees had controverted. The administrative law judge set out with specificity the claims that were allowed and those that were disallowed. The law judge ordered the appellees to pay $5,773.32 in medical expenses and $2,374.02 in mileage expenses. The Commission affirmed the order of the law judge. The appellant appeals from some of his claims that were disallowed.
On appeal, the appellant claims that substantial evidence did not support denying him: (1) mileage expenses for trips to Dr. Eric Nelson and to pharmacies in Fort Smith, (2) reimbursement for medical treatment and medicines prescribed by Dr. Kutait and mileage expenses, and (3) reimbursement for payment of $105 to Dr. Stanton and $204 to Central Baptist Hospital in Little Rock. We find substantial evidence to support the Commission’s decision in each instance.
Appellant’s claim for mileage expenses to Dr. Nelson, a therapist in Fort Smith, was allowed for thirty-three visits verified by a statement from Dr. Nelson’s office showing specific dates the appellant had received treatment. Appellant claimed mileage for an additional forty visits that were not verified, except by a piece of paper on which the claimant had listed forty dates. Appellant’s argument on appeal is that appellees did not deny or contradict that claimant made the additional trips to Dr. Nelson, that appellant had “verified” the office visits by his own record, and that the appellees had, in fact, paid all of Dr. Nelson’s bills so they ought to pay the present claim for mileage. Whether appellant was entitled to mileage expenses for thirty-three or seventy-three visits was a fact question for resolution by the Commission, which has the responsibility to draw inferences when the testimony is open to more than a single interpretation. McCollum v. Jones Truck Lines, 244 Ark. 762, 427 S.W.2d 18 (1968). Although appellant argues that his testimony was uncontradicted, testimony of a party is never considered uncontroverted. Velder v. Crown Exploration Co., 10 Ark. App. 273, 663 S.W.2d 205 (1984).
We likewise find no error in the Commission’s denial of mileage to two pharmacies in Fort Smith. The Commission found that it was not “necessary” or “reasonable” for appellant to drive seventy miles round-trip to buy medicine when he could have used a pharmacy in Greenwood, thirty- five miles round-trip from his home. What was necessary or reasonable was a fact question for the Commission to resolve; we believe substantial evidence supports its finding.
In denying appellant’s claim for payment of medical treatment by and mileage expenses to Dr. Kutait and medication he prescribed, the Commission found that Dr. Kutait was treating appellant for high blood pressure unrelated to his compensable injury. The appellant contended that, by his testimony, Dr. Kutait connected the blood pressure problem with the compensable back injury. Appellant further contended that he was referred to Dr. Kutait by Dr. Stanton so that Kutait’s bills were the responsibility of appellees. We agree that Kutait’s charges and those related to his treatment would be compensable had appellant been referred to him by Dr. Stanton. However, Stanton’s testimony fails to reveal that he referred appellant either to Kutait or to a general practitioner. We believe the testimony supports the Commission’s determination that Dr. Kutait’s services were not authorized and therefore not compensable. It follows that if Dr. Kutait’s treatment was not compensable, neither the medication he prescribed nor the mileage expenses for treatment or for medicine were compensable.
Appellant’s last contention is that the Commission erred in not paying $105 to Dr. Stanton and $204 to Central Baptist Hospital. Dr. Stanton’s bill was for two medical reports, at $15 each, furnished to appellant’s counsel and $75 for a deposition given at the behest of appellant’s counsel. The Commission found that these were not compensable items. Appellant has cited us to no authority to the contrary, and we are aware of none.
The last item for which appellant seeks reimbursement is a $204 payment that the Commission found was a duplication of charges included in another Central Baptist Hospital statement which the appellees were ordered to pay. When appellant was admitted to the hospital on August 3, 1981, the Director of Patient Accounts signed a memorandum stating that the hospital would accept Medicare payments less $204 until appellant’s workers’ compensation claim was settled or until appellant paid the balance. That memorandum and a past due statement for $204 dated February 8,1983, were the only evidence appellant presented on this item. Appellant did now show that he had actually paid the $204 deductible amount, nor did he show the amount that Medicare paid. With that figure, the Commission could have determined with certainty whether the itemized hospital bill totaling $2,519.70 did or did not include the $204. The appellant himself was not clear about what, if anything, he or Medicare had paid. Under the circumstances, we believe the evidence was substantial to support the Commission’s findings.
We are aware of the multitude of evidence submitted in this case. The law judge made a conscientious effort to sort out all the papers and to ascertain to the penny the amount the appellees were obligated to pay. In adopting the opinion of the law judge, the Commission determined that the final figures of the law judge were accurate. We believe substantial evidence supports the Commission’s decision. Therefore, we affirm.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
Eva Denny purchased three certificates of deposit from appellant bank payable to herself or Mrs. LaVonne Comstock or Eva Jo Browne, her daughters. Shortly after Denny’s death, Browne went to the bank and asked that they not cash the certificates without notifying her. Authorities of the bank agreed although the bank was not given a written notice of an adverse claim. Subsequently, Mrs. Comstock presented the certificates to the bank for payment. The bank agreed to pay only if Mrs. Comstock would sign an indemnity agreement. She executed such an agreement and was paid $4,559.34, the face value of the certificates plus interest. Thirteen months later Mrs. Browne demanded payment from the bank of “her share” of the certificates and was paid $2,468.37. When Mrs. Comstock refused to reimburse the bank for that amount under the indemnity agreement, this action was brought. At the close of the bank’s case, the trial court granted Mrs. Comstock’s motion to dismiss. The bank has appealed.
Ark. Stat. Ann. § 67-552 (Repl. 1980), which is Act 78 of 1965, provides:
Checking accounts and savings accounts may be opened and certificates of deposit may be issued by any banking institution with the names of two [2] or more persons, either minor or adult, or a combination of minor and adult, and such checking accounts, savings accounts and certificates of deposits may be held:
(d) If an account is opened or a certificate of deposit is purchased in the name of two (2) or more persons, whether as joint tenants, tenants by the entirety, tenants in common, or otherwise, a banking institution shall pay withdrawal requests, accept pledges of the same, and otherwise deal in any manner with the account or certificate of deposit upon the direction of any one (1) of the persons named therein, whether the other persons named in said account or certificate of deposit be living or not; unless one (1) of such persons named therein shall by written instructions delivered to the banking institution designate that the signature of more than one (1) person shall be required to deal with such account or certificate of depost [deposit].
Ark. Stat. Ann. § 67-521 (Repl. 1980), which is Act 444 of 1965, provides:
When a deposit shall have been made in the names of two [2] or more persons and in form to be paid to any of the persons so named, such deposit . . . shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any of said persons. Such payment and the receipt or acquittance of the one to whom such payment is made shall be a. valid and sufficient release and discharge of said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by any one of said joint tenants not to pay such deposit in accordance with the terms thereof.
The Supreme Court of Arkansas considered both § 67 552 and § 67-521 in Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969). The Court pointed out that the two acts should be construed together and that the legislative intent was clearly not to modify the first act by enacting the second. And in Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979), the court held that where there are alternative payees for certificates of deposit, the sums represented by the certificates are payable by the issuing bank to any one of the designated payees.
Appellant contends that by orally agreeing with Mrs. Browne to refuse payment on the certificates without her authorization, it became obligated to her and when appellee induced the bank to pay her the face amount of the certificates plus interest by signing the indemnity agreement, she became liable to the bank when it later paid Mrs. Browne under the oral agreement. On the other hand, the appellee maintains that the statutes quoted above relieved the bank of any liability to make payment to Mrs. Browne because Mrs. Comstock had the certificates in her possession, was named as one of the three owners on the face of the certificates, and when she received the proceeds of the certificates the bank was discharged from any further liability on them. Thus, appellee says that the payment made to Mrs. Browne was merely a voluntary act by the bank.
Appellant also'argues that it suffered a loss within the scope of the indemnity agreement which Mrs. Comstock signed. However, the appellee contends that the indemnity agreement was void for lack of consideration since the bank was already legally obligated to make payment to her if she presented the certificates to the bank for payment.
We agree with the appellee’s position. When one pays money on a demand that is not legally enforceable, the payment is deemed voluntary. Absent fraud, duress, mistake of fact, coercion, or extortion, voluntary payments cannot be recovered. Gautrau v. Jan’s Realty, 271 Ark. 394, 609 S.W.2d 107 (1980); Boswell v. Gillett, 226 Ark. 935, 295 S.W.2d 758 (1956); Ritchie v. Bluff City Lumber Co., 86 Ark. 175, 110 S.W. 591 (1908). We think the payments to Mrs. Browne were voluntarily made.
Also, it is necessary that there be consideration in order to have a valid, enforceable contract. Minyard v. Daking Mill, Inc., 269 Ark. 266, 599 S.W.2d 742 (1980). It has been said that consideration is any benefit conferred or agreed to be conferred upon a promisor to which he is not lawfully entitled, or any prejudice suffered or agreed to be suffered by a promisor other than such as he is lawfully bound to suffer. 17 Am. Jur. 2d Contracts § 96 at 439 (1964). We find no consideration for the indemnity executed by the appellee.
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Lawson Cloninger, Judge.
The crucial issue on this appeal is whether the trial court erred in ruling that, as a matter of law, an attorney may not bind his client by an agreement to settle his client’s claim. We believe that the court ruled incorrectly, and we must reverse and remand.
Appellee sued appellant and another defendant, R.G. Parham, Jr., on a promissory note in the principal amount of $25,100. On February 10, 1983, appellant’s attorney, Jack Young, wrote a letter to appellee’s attorney, James H. Penick III, in which he suggested a settlement of the case involving appellee’s payment of a total of $5,000 in monthly installments over a period of thirty-six months in exchange for (1) a full release of appellant or a covenant not to sue, and (2) a full release of appellant by Parham of any right of contribution against appellant. Another element of the proposed settlement, arising from contemporaneous oral conversations between the two attorneys, was a second mortgage on appellant’s house.
In a letter dated March 1, 1983, Mr. Penick wrote Mr. Young: “I hope that the agreement which we discussed earlier is in the making, and if it is not, I would appreciate your putting it on a priority of things to do.” Mr. Young assumed from the language of the letter that Mr. Penick had appellee’s authority to agree to the proposed settlement terms and was merely awaiting the detailing of terms and settlement documents. Mr. Penick, however, had not yet submitted the proposed settlement to appellee and was awaiting further documentation from Mr. Young before doing so.
On March 4, 1983, Mr. Young sent Mr. Penick a draft covenant not to sue and changed the terms from a note to cash payment. Mr. Penick then discussed with Mr. Young some problems concerning the language of the covenant not to sue. On March 10, 1983, Mr. Penick communicated appellant’s offer to appellee, which then rejected the offer. Mr. Penick informed Mr. Young of the rejection orally on March 15.
Appellant thereafter filed an amended answer pleading settlement and accord and satisfaction. Both Mr. Young and Mr. Penick resigned as attorneys in order to testify as witnesses. The case was tried before the circuit judge acting as jury. The court ruled for appellee, awarding it judgment for the full amount of the $25,100 note plus accrued interest, costs, and attorney’s fee. The judgment, filed on August 2, 1983, states: “That as a matter of law an attorney may not bind his client by an agreement to settle his client’s claim.” No finding of fact was made regarding the exchange of proposals between the two attorneys.
Appellant argues that the trial court erred in holding that, as a matter of law, an attorney may not bind his client by an agreement to settle his client’s claim. He insists that an examination of the letters and the behavior of Mr. Penick indicates that the attorney had implied authority to bind appellee to the purported agreement. Although we do not in this opinion either endorse or reject appellant’s view that Mr. Penick was clothed with authority, we must agree with his contention that the trial court erred in stating that as a matter of law an attorney may not bind his client by a settlement agreement.
Appellant relies upon the case of Laird v. Byrd, 177 Ark. 1114, 9 S.W.2d 800 (1928), as authority for a determination by the reviewing court of the existence and extent of an attorney’s authority by inference from his correspondence and statements. As the Supreme Court noted, however, in distinguishing Laird in Ashworth v. Hankins, 248 Ark. 567, 452 S.W.2d 838 (1970), the evidence in the earlier case suggested that the attorney had been “clothed with authority” by his client, whereas no evidence of such authorization by a client was apparent in the latter case. We make no decision with respect to the scope of authority suggested by Mr. Periick’s letter, but we commend to the trial court’s notice the distinction in Ashworth.
According to appellee, the controlling cases on this appeal are Cullin-McCurdy Const. Co. v. Vulcan Iron Works, 93 Ark. 342, 124 S.W. 1023 (1910), and McCombs v. McCombs, 227 Ark. 1, 295 S.W.2d 744 (1956). In the former case, the appellant attempted to establish at trial that one of the appellee’s trial attorneys had entered into an agreement with the appellant to compromise the appellee’s claim. The Arkansas Supreme Court upheld the trial court’s exclusion of evidence of the alleged settlement because no testimony had been offered to show that the attorney had any authority to act for the appellee other than to prosecute the action. Speaking of the lawyer, the court said “it was not within the scope of his authority as attorney to compromise with appellant, or to release the latter from liability, or to shift that liability by making a new contract with another to assume it.”
In the McCombs case, supra, the Supreme Court cited Cullin-Murdy Const. Co., supra, with approval and stated:
The law is well settled that an attorney, as here, employed to conduct litigation involving property, has no implied or apparent authority by reason of his employment, to bind his client in regard to the subject matter of the litigation except with respect to matters of procedure.. . . ‘It is a general principle that an attorney cannot by virtue of his general authority as attorney, bind his client by any act which amounts to a surrender or waiver in whole or in part of any substantial right of the client. . .’
As recently as Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981), we endorsed the holdings in both of the above-cited cases, noting:
It is well settled that an attorney’s contract of employment implies that he is authorized to take those procedural steps deemed by him to be necessary and proper in the conduct of the litigation whether in pursuit or defense of the claim. His actions in those matters, in the absence of fraud, are regarded as the acts of his client who is bound by those actions, but the mere fact that counsel is retained does not, in and of itself, carry an implication of authority to compromise his client’s claim and to hold otherwise would vest the attorney with far more power than his retainer requires or implies.
The language of these two quoted cases indicates the degree to which an attorney’s authority to act outside procedural bounds is circumscribed by the facts in any given case.
It is precisely at this point that the trial court committed reversible error. The judge’s choice of words in his statement that “as a matter of law” a lawyer may not bind his client by an agreement to settle his client’s claim is simply too broad, for, as the cases above indicate, a client may clothe his attorney with as much or as little authority as he deems appropriate for the satisfactory conduct of his affairs. In arriving at its conclusion of law, the trial court made no finding of fact concerning the character of the relationship between attorney and client. In Laird v. Byrd, supra, the Arkansas Supreme Court concluded that the trial court had properly submitted the question of the scope of the attorney’s authority to the jury. Here, however, the issue was foreclosed by the trial court’s failure to determine whether, under the facts of the case, a settlement had in fact been made by an attorney vested with adequate authority.
The Court of Appeals cannot act as a factfinder. Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S. W.2d 841 (1983). We must therefore reverse and remand this matter to the trial court so that a further hearing may be held to determine whether a settlement had been made and whether Mr. Penick was authorized to make a settlement.
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James R. Cooper, Judge.
The appellant was charged with the delivery of a controlled substance, and the State also charged that his sentence should be enhanced because he was a habitual offender, having been convicted of two or more felonies. The jury found the appellant guilty of the offense charged, determined that he was a habitual offender, and sentenced him to twenty years in the Arkansas Department of Correction. From that decision, comes this appeal.
For reversal, the appellant first argues that the trial court erred in refusing to instruct the jury on this affirmtive defense of entrapment. We must review the facts.
In the spring of 1983, Officer Jimmy Morris of the Arkansas State Police was participating in an undercover operation designed to purchase drugs in the Texarkana area. In the course of this investigation, Officer Morris made contact with Anthony Scott, who agreed to arrange for Morris to make a buy. The record reflects that Scott was not aware of Officer Morris’ status as a police officer, that he was not paid for his efforts, and that no promises were made to induce him to cooperate with the police. On March 1, 1983, Scott and the appellant went to a motel room in Texarkana which was occupied by Officer Morris, and, according to the police officer’s testimony, the appellant sold him one-fourth of a pound of marijuana for $278.00. The substance was identified as marijuana by a chemist from the Arkansas State Crime lab. The appellant did not put on any proof, but he did request that the trial court instruct the jury on the affirmative defense of entrapment. The court refused, noting that there was no evidence before the jury which would give rise to the defense of entrapment. We agree with the trial court’s decision.
Entrapment is an affirmative defense which must be proved by a preponderance of the evidence. Ark. Stat. Ann., Section 41-110 (Repl. 1977); Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983). “Entrapment exists where thecriminal designs originate not with the accused, but with the officers of the law, and the accused is lured into the commission of an unlawful act by persuasion, deceitful representation or inducement by the officers..” Sweat v. State, 5 Ark. App. 284, 635 S.W.2d 296 (1982). Officer Morris’ testimony was insufficient to require that the jury be instructed on entrapment. He testified that he did not induce the appellant’s actions, but that the appellant was at all times willing to engage in the sale of marijuana. The appellant’s argument is premised on the allegation that Officer Morris, acting in concert with Anthony Scott, concocted a plan to induce the appellant to sell marijuana to Morris. The argument clearly is without merit, since Scott was not working with Officer Morris as a true informant, paid or not, since he did not know Morris’ true identity. There is no evidence that Officer Morris promised anything to Scott in exchange for his cooperation, and it is worth noting that Morris had observed the appellant and Scott engaged in similar illegal activity in the past. In fact, Scott was later convicted of delivery of marijuana himself. The appellant offered no evidence which supported his claimed affirmative defense, and he has failed to sustain his burden of proof.
Instructions in the law should be given to the jury if there is evidence to support the giving of that instruction, Lucas v. State, 5 Ark. App. 168, 634 S.W.2d 145 (1982), but where no evidence exists to support the giving of an instruction, it is noterror to refuse to give it. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).
Secondly, the appellant argues that the trial court erred in applying the habitual criminal statutes, Ark. Stat. Ann., Section 41-1001 et seq., (Supp. 1981), to him, because his prior convictions were on appeal at the time of sentencing. The delivery of thé marijuana in the case at bar occurred on March 1, 1983, and the enhanced punishment statute applicable to this crime was the 1981 amendment to the statute, as the substantive law in effect as of the date of the offense governs. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982). The State’s amended information alleged that the appellant had two or more prior convictions, and, according to the applicable statute, the State was required to prove that he had more than two convictions. Of the appellant’s three convictions, two are appealed under A.R.Cr.P., Rule 37, seeking post-conviction relief, and the other conviction is a direct appeal to this Court. The appellant argues that, since his convictions are on appeal, they are not final, and, therefore cannot be used to enhance his punishment. We disagree.
Adopting the theory advanced by the appellant would result, as a practical matter, in rarely ever being able to apply the habitual criminal statutes, since criminal defendants have numerous avenues through which to seek relief, including direct appeal, petitions under Rule 37, and federal habeas corpus petitions. We do not believe that the legislature intended the result urged by the appellant. For enhancement purposes, the appellant’s three convictions, though pending on some sort of appeal, were final. See, Rogers v. U.S., 325 F.2d 485 (C.A., 10th Cir. 1963); Jackson v. State, 418 So. 2d 827 (Miss. 1982); People v. District Court, Etc., 559 P.2d 235 (Colo. 1977); Sutton v. State, 519 S.W.2d 422 (Tex. Crim. 1975); People v. Sarnblad, 26 Cal. App. 3d 801, 103 Cal. Rptr. 211 (1972).
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Donald L. Corbin, Judge.
Appellant, Arkansas State Highway Commission, appeals from a j udgment entered on a jury verdict assessing compensation in the amount of $50,000.00 for the taking of the lands of appellants, Harold D. and Bertha E. Schell. Appellant contends that the trial court erred in refusing to adopt its statement of the evidence, in refusing to grant its motion for a new trial and in refusing to allow appellant to inquire into the basis of the opinion of witness Neil Palmer. We reverse and remand.
Appellant condemned part of a forty-acre tract of appellees’ land for construction of the Highway 71 Relocation project. Appellees raised poultry in four poultry houses located on the property. The area of taking acquired by appellant consisted of 4.44 acres and divided appellees’ forty-acre tract into two parts, leaving the west residual with 27.58 acres and the east residual with 7.98 acres. Due to the construction of the controlled access facility, appellees’ east residual was landlocked following the taking. The record reflects that after construction of the new highway, appellees’ easternmost poultry house would be approximately 250 to 270 feet from the nearest traffic lane of the highway.
Mark Risk, an expert witness who testified at the trial for appellees, determined the amount of damages from the taking to be $61,000.00. Appellee Bertha E. Schell testified that the damages from the taking amounted to $75,000.00. Larry Dupree and Neil Palmer, expert witnesses for appellant, testified that the amount of compensation owed appellees was $20,600.00 and $25,800.00, respectively.
As a result of a mechanical failure of the court reporter’s recording equipment, the parties attempted to reconstruct the record pursuant to Ark. R. App. P. 6. Appellant’s first assignment of error concerns the trial court’s refusal to adopt appellant’s statement of the evidence and proceedings and its denial of appellant’s motion for a new trial. Since there is little or no likelihood of another mechanical failure of the recording equipment upon the new trial of this cause, we do not address this issue.
The issue of concern to this Court and the one which we hold constitutes reversible error is the refusal of the trial court to allow appellant to inquire into the basis of the opinion of witness Neil Palmer. Neil Palmer was a real estate appraiser for appellant and was called by appellees as their second witness.
The record reflects that Neil Palmer was asked on direct examination by counsel for appellees to tell the j ury how he went about making his appraisal. He was further questioned as to whether he considered any severance damages to the property. Neil Palmer responded by stating that he was involved in a study and determined that severance damages were improper. During his questioning of the witness, counsel for appellant attempted to go into the basis of Neil Palmer’s opinion that no severance damages were assigned by him to the fourth poultry house by virtue of its proximity to the highway. Counsel for appellees objected and the following exchange took place:
MR. PEARSON (counsel for appellees): Your Honor, I, — I object. Ugh, — who he talked to is totally irrelevant, and he can’t testify as to what they said. This, I believe, is for the purpose of trying to prejudice the jury without going into the parties’ qualifications.
THE COURT: Well, I think you’re right, Mr. Pearson. I’ll sustain the objection. He may testify that he talked to people he considered knowledgeable, and that’s it.
MR. PUTMAN (counsel for appellant): Your Honor, aren’t we going to be allowed to show the nature and depth and extent of his investigation?
THE COURT: Ugh, — No, because, I think you’d be, — ugh, — I think you’d be lending weight to their opinion. Ugh, — he may testify that he made an investigation —
Counsel for appellant then made the following proffer:
MR. PUTMAN: Let the record show that if he were allowed to answer, the witness would testify that the nature of his study about whether or not there were any severance damages to the poultry house number four, or what’s been referred to as poultry house number four; he consulted with a poultry expert at the University of Arkansas in the College of Agriculture; that he consulted with people who were involved in the poultry industry who have, I believe, the designation of integrators, who organize and present overall poultry programs, and place poultry in certain particular locations .... And, also, he talked to poultry raisers; the people in the field, who raise both chickens and turkeys; that he went on site, and examined the poultry houses in which both chickens and turkeys were being raised at distances ranging from fifteen feet to two hundred and over from the highway, and determined in each case that there were no deleterious effects, and further, had the benefit of a particular study conducted by the University of South Carolina in a field called poultry hysteria, dealing specifically with the effects of noise and other such phenomena on the raising of poultry, and from all of these, determined that the proximity of the highway would have no effect whatsoever on the raising of the poultry in the house in question.
THE COURT: Well, the Court’s ruling is that the witness would be permitted to testify that he talked to people he considered to be experts in the field, — ugh, — including poultry raisers and, — ugh, — including, — ugh, — people, — ugh, — who are considered expert in the area; but, if you go any further than that, you are lending weight to his conclusion. You’re bringing in testimony of experts when they are not here.
MR. PUTMAN: Well, I think it’s true what Your Honor says. It does lend weight to his testimony; but, I think it’s the type of weight which the jury is entitled to know about.
THE COURT: I don’t think so.
The questions that were asked of Neil Palmer were proper and his answers were admissible. It is well settled that an expert may base his opinion on facts learned from others despite their being hearsay. Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978); Ark. State Hwy. Comm’n v. Bradford, 252 Ark. 1037, 482 S.W.2d 107 (1972); Ark. State Hwy. Comm’n. v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966). When an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather presents a jury question as to the weight which should be assigned the opinion. Stated another way, Neil Palmer’s method of gathering the data he utilized in forming his opinion should have been explained in order for the jury to weigh his opinion. The rule for admission, of expert testimony does not depend on the relative certainty of the subject matter of testimony, but rather on the assistance given by the expert testimony to the trier of fact in understanding the evidence or determining a fact in issue. Ark. Unif. R. Evid. 702. Moreover, the relative weakness or strength of the factual underpinning of the expert’s opinion goes to the weight and credibility, rather than admissibility. Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907 (1976).
Ark. Unif. R. Evid. 703 provides:
Basis of opinion testimony by experts. — The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Under this rule an expert must be allowed to disclose to the trier of fact the basis facts for his opinion, as otherwise the opinion is left unsupported in midair with little if any means for evaluating its correctness. E. Cleary, McCormick on Evidence (3d ed. 1984). § 324.2, p. 910. Underlying Rule 703 is the idea that an expert is likely to understand better than a court the quality and nature of data essential to support an opinion in his own field. This rule does not, however, abdicate judicial responsibility to the expert for it leaves room for rejection of testimony if reliance on the facts or data is unreasonable. The rule directs the trial judge to accord deference to the expert’s explanation of what is reasonable, but it does not require the trial judge to accept what amounts to wishful thinking, guesswork, or speculation. The reasonable reliance standard set by Rule 703 obviously, points toward broad admissibility of expert testimony. D. Louisell and C. Mueller, Federal Evidence (1979), § 389, p. 658. Once the evidence is admitted, adequate safeguards remain to deal with this evidence such as cross-examination of the expert.
Ark. Unif. R. Evid. 705 has simplified the manner in which expert testimony may be presented by eliminating mandatory preliminary disclosure of the facts or data underlying an expert’s opinion. Rule 705 provides:
Disclosure of facts or data underlying expert opinion. — The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Requiring the jury to be informed of the basis of the expert’s opinion makes sense. The opinion would be irrelevant if grounded on facts found by the trier of fact not to exist in the particular case; but obviously the trier of fact cannot assess the validity of the assumed facts without knowing what they are. J. Weinstein, Weinstein’s Evidence Commentary on Rules of Evidence for the United States Courts and State Courts (Vol. 3 1982), § 705[1], pp. 705-4, 705-5. Emphasis is placed upon the function of cross-examination by this rule and the burden is put upon the opponent of the calling party to demonstrate that the conclusion of the expert lacks adequate support in order for the testimony to be subject to being stricken by the trial court. D. Louisell and C. Mueller, supra, § 400, p. 709. See, Martin v. Arkansas Arts Center, 627 F.2d 876 (8th Cir. 1980); United States v. 1,014.16 Acres of Land, 558 F. Supp. 1238 (W.D. Mo. 1983); Rounsaville v. Ark. State Hwy. Comm’n, 258 Ark. 642, 527 S.W.2d 922 (1975); Annot., 49 A.L.R. Fed. 363 (1980); Annot., 12 A.L.R. 3d 1064 (1967). Rule 705 does not limit the disclosure of facts or data underlying an expert’s opinion to cross-examination. This rule merely removes any legal requirement to develop in the beginning the basis for an expert’s conclusions. Instead, he may state his conclusions straight away. The pressures of orderly presentation will often lead to. divulgence of at least some of the supporting data. J. Weinstein, supra, § 705[1], p. 705-7. An expert may be asked on direct examination to state the grounds of his opinion, i.e., the general data which form the basis of his judgment upon specific data observed by him. J. Wigmore, Evidence in Trials at Common Law (Vol. 2, 1979), § 562, p. 759.
From our review of the record, we believe that the court’s erroneous ruling on the admissibility of expert Neil Palmer’s basis for his opinion unduly circumscribed appellant in its examination of the witness. Further, we believe that there is a reasonable likelihood that the limitation imposed by the court could have affected the jury’s impression as to the basis of the expert testimony and the credibility of the witness. We cannot conclude that the court’s erroneous limitation was harmless, and accordingly, we will remand for a new trial.
Reversed and remanded.
Cooper, J., agrees.
Mayfield, J., concurs. | [
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James R. Cooper, Judge.
The appellant was denied Federal Supplemental Compensation Benefits on a finding that he had been discharged from his last work for misconduct and that he had not met the federal employment criteria necessary to render himself eligible. From that decision, comes this appeal.
In August, 1981, the appellant was discharged by Reynolds Metals Company for misconduct. He filed for unemployment compensation benefits and was found to be disqualified because of the discharge for misconduct. He did not appeal that ruling which was mailed October 19, 1981. The appellant also filed a grievance, and, in March, 1982, the grievance officer found that he had been wrongfully discharged. He was ordered to be reinstated with full back pay and no loss in seniority. The settlement as to back wages covered the period from August 21, 1981 through January 18, 1982. January 18, 1982, was the date on which the appellant would have been laid off, based on his seniority. It is undisputed that he performed no work from August 21, 1981 through the date of the hearing on the supplemental benefits, October 20, 1982.
In April, 1982, the appellant filed for, and received, several weeks of regular unemployment compensation benefits. He then filed for extended benefits and supplemental benefits under Ark. Stat. Ann. § 81-1124 (Supp. 1983). He was denied supplemental benefits on a finding that he had not satisfied the requirement that he be employed so as to remove the disqualification.
Arkansas Statutes Annotated § 81-1106 (b) (1) (Supp. 1983) provides that a worker who is discharged for misconduct may satisfy the penalty disqualification by work, or by not working and claiming benefits, or by a combination of the two for a period of eight weeks. Arkansas Statutes Annotated § 81-1124 (k) (8) (Supp. 1983), however, provides that a worker discharged for misconduct can only satisfy the penalty disqualification by employment as far as extended benefits are concerned.
Based on these two statutes, the agency awarded the appellant regular benefits, apparently finding that he had satisfied the disqualification by completing the eight weeks of claiming. The Board of Review, however, denied supplemental benefits.
The appellant argues that, because the grievance officer determined that he was wrongfully discharged, and because he was ordered reinstated with full back pay and seniority, through January 18,1982 (when he would have been laid off anyway) the discharge for misconduct as of August 19,1981, upheld by the Agency October 19, 1981, was erased. We find no merit to this argument.
First, the determination by the grievance officer that the appellant was not discharged for misconduct is not determinative of whether, for unemployment compensation purposes, he was discharged for misconduct. There is a final order, not appealed from, holding that the appellant was discharged for misconduct.
Secondly, the appellant was not laid off at Reynolds. Because of his seniority he would have been laid off on January 18,1982, had he been working, because of a general slowdown in production. That is the reason for the use of the January 18,1982 date for the purpose of calculating the back wages to which the appellant was entitled.
Therefore, since, for unemployment compensation purposes, the appellant was discharged for misconduct rather than being laid off, the disqualification under Ark. Stat. Ann. § 81-1106 (b) (1) (Supp. 1983) stands unless the appellant has satisfied it by meeting the employment requirement of Ark. Stat. Ann. § 81-1124 (k) (8) (Supp. 1983). The appellant does not claim that he has actually worked since his discharge, nor does he claim that his award of back wages satisfied the employment requirement of Ark. Stat. Ann. § 81-1124 (k) (8) (Supp. 1983), although the appellee does address that issue.
Although the findings of fact by the Board of Review are confusing, particularly with reference to the discharge, reinstatement, and alleged layoff, we find substantial evidence to support the Board’s denial of supplemental benefits. We are required to affirm the Board’s decision if we find it to be supported by substantial evidence. Terry Dairy Products, Inc. v. Cash, 224 Ark. 576, 275 S.W.2d 12 (1955). Further, we find that the Board has correctly applied the law to the facts of this case.
Affirmed.
Mayfield, J., agrees.
Corbin, J., concurs.
The determination that the appellant was eligible for regular benefits is not included in this record, but it is undisputed that he did draw regular benefits for several weeks. | [
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JOHN F. Stroud, JR., Judge.
In this one-brief case, appellant Marilyn (Moody) Schwarz appeals from a chancery court order entered on October 27, 1993. The order, among other rulings, denied her motions to change custody from appellee, Randy Lee Moody, and to terminate child support. After appellant filed her notice of appeal, she requested and was granted various stays of appeal by this court while other matters were addressed by the chancellor. On November 17, 1994, the chancellor entered two additional orders. In one, he denied appellant’s motion to recuse and supplemented a March 11, 1992, supplemental order by making definite the amount of attorney’s fees appellant and her husband, Karl “Bill” Schwarz, had previously been ordered to pay appellee’s attorney, David H. Williams. In the other, he sanctioned appellant, her husband Bill Schwarz, and their attorney T.B. Patterson, Jr., jointly and severally, for violations of ARCP Rule 11. Appellant filed her amended notice of appeal on November 28, 1994, in which Mr. Schwarz and Mr. Patterson joined pursuant to Rule 3(c) of the Rules of Appellate Procedure. We affirm the chancellor’s rulings.
The background facts of this case are too long and tortuous to recount in great detail. It is sufficient to state that the parties were divorced in 1984. Custody of the two minor children was originally granted to appellant and then subsequently awarded to appellee. Their daughter, Brandi, was five years old at the time of the divorce. She is now seventeen. Appellant and appellee subsequendy married each other’s ex-spouses. The intervening years have been filled with vitriolic motions and hearings, culminating in this appeal.
CHANGE OF CUSTODY
In her first point of appeal, appellant argues that the chancellor erred in denying a change of custody with respect to Brandi. There was no error.
On June 4, 1991, appellant filed a motion for change of custody. At that time, appellant and her husband, Bill Schwarz, were living in Virginia. Brandi made allegations of sexual abuse against her father, the appellee; however, she also subsequendy recanted the allegations, explaining that her stepfather, Mr. Schwarz, had threatened to harm her mother, appellant, if Brandi did not make the allegations. There were also proceedings concerning these sexual-abuse allegations in the juvenile division of chancery court. The juvenile court dismissed the petition for lack of sufficient evidence. Brandi had also made allegations of sexually inappropriate conduct against Mr. Schwarz. The chancellor held approximately three days of hearings on the change of custody request and other pending motions. The chancellor’s March 11, 1992, order left custody with appellee, and ordered that Brandi remain temporarily with her paternal grandparents.
On May 17, 1993, appellant filed yet another motion “renewing” her motion for change of custody of Brandi. In it she alleged appellee was not cooperating in scheduling counseling for Brandi and consequently her therapeutic needs were not being met. Hearings on the motion were held June 7, 1993, and October 14, 1993. Brandi was represented by an attorney ad litem. Dr. Janice Church, a clinical psychologist, testified at the hearings on this motion. In the June 7, 1993, hearing she testified that she did not believe Brandi had received, nor would she receive, support for treatment while living with appellee; that, ideally, a more neutral living situation would allow Brandi to work on issues regarding appellant; that she did not feel it would be in Brandi’s best interest to be -with her mother, appellant, at that time; and that Brandi had never recanted to her the allegations of sexually inappropriate conduct involving Mr. Schwarz.
In the October 14, 1993, hearing Dr. Church testified that appellee had cooperated with counseling in the beginning but not recently; that she had not seen Brandi since April; that she was in a difficult position to answer where Brandi should be placed; and that she was not certain custody should be suddenly changed to appellant. After the October hearing, the chancellor entered his October 27, 1993, order. In it he determined that no sufficient change in circumstances existed to require a change in custody.
In deciding a petition for change of custody, the chancellor must first determine whether there has been a significant change in the circumstances of the parties since the most recent custody decree. If a significant change has occurred, then the chancellor determines custodial placement with the primary consideration being the best interest of the child. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). Although we review chancery cases de novo, we do not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence. Id. Since the question of the preponderance of evidence turns largely upon the credibility of the witnesses, this court defers to the superior position of the chancellor to make such determinations. Id. Child custody cases cast a heavier burden upon the chancellor to utilize to the fullest extent all powers of perception in evaluating the witnesses, their testimony, and the children’s best interests. Clark v. Reiss, 38 Ark. App. 150, 831 S.W.2d 622 (1992). We have reviewed this case de novo. The chancellor’s finding that there was no significant change in the parties’ circumstances was not clearly against the preponderance of the evidence. We defer to his superior position in this case to determine the credibility of the witnesses and the best interests of the child.
CHILD SUPPORT
In her second point of appeal, appellant argues that the chancellor erred in refusing to terminate child support. In the March 11, 1992, order the chancellor ordered appellant to pay child support in the amount of $30.00 per week and one-half of medical expenses not covered by insurance. He did so despite the fact that she was unemployed. Appellant asserts that although she was unemployed when such support was awarded in 1992, she had become unable to work by the time the October 27, 1993, order was entered. She maintains that those circumstances represent a significant change which warranted the termination of support. We disagree.
A change in circumstances must be shown before a court can modify an order regarding child support. Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994). A chancellor’s determination as to whether there are sufficient changed circumstances to warrant a change in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. Id. Appellant was unemployed when the support amount was first set. She remained unemployed when the chancellor refused to terminate support. The chancellor’s finding that appellant’s inability to work did not represent a significant change in circumstances is not clearly erroneous. See Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992) (finding no error when chancellor set support at the minimum level required of an unemployed person). In fact, if appellant is now unemployable rather than merely unemployed, there exists the possibility she may be entided to monetary benefits that would not previously have been available to her.
ATTORNEY’S FEES
The third point of appeal challenges the chancellor’s award of attorney’s fees, arguing that they should be set aside as an abuse of discretion, as outside of the chancellor’s jurisdiction with respect to Bill Schwarz, and as lacking proof of amount. Furthermore, the chancellor’s finding that the fees were so intertwined with custody and support issues as to be directly related to support is challenged. The arguments have no merit.
We have recognized the inherent power of a court of equity to award attorney’s fees in domestic-relations proceedings. Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994). Whether to allow such fees and in what amounts are matters within the chancellor’s discretion. Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989). In the absence of a clear abuse of discretion in fixing the fee, we will not disturb the chancellor’s decision on appeal. Id. After carefully reviewing the voluminous record in this case, we find no clear abuse of discretion.
The chancellor awarded attorney and other professional fees in the supplemental order filed March 11, 1992. Specific dollar amounts were entered for the other professional fees, but not for attorney’s fees. However, the percentage basis of the award and the persons charged with its payment, the Schwarzes, were set forth. During the December 1991 hearing that resulted in the March 11, 1992, order the only issue raised with respect to the court’s award of attorney’s fees challenged any connection of those fees to child support. No other issue argued here was raised at that hearing. Ordinarily, we would dispose of those issues on that basis alone. However, subsequent events in this unique case make it necessary to set forth additional facts and other bases for our affirmance.
At the time of the December 1991 hearing, two cases were being tried together before the chancellor. One was the instant case, which involved appellant, Marilyn (Moody) Schwarz, and appellee, Randy Moody. The other case involved Bill Schwarz and Lois (Schwarz) Moody, appellee’s wife. Mr. Patterson represented both Marilyn and Bill Schwarz in their respective cases.
The Schwarzes subsequently filed for bankruptcy. Mr. Williams was listed as a creditor in the Chapter 7 bankruptcy filed by appellant and her husband, even though the exact amount of his fees was not then known. One of the pleadings from the bankruptcy proceedings was entitled, “Stipulation by the Parties.” Included in the stipulations was the fact that Mr. Floyd Healy, the Schwarzes’ bankruptcy attorney, had examined Mr. Williams’s files and records concerning his services rendered in the chancery case and in the juvenile proceedings, and that they contained sufficient documentation to support Mr. Williams’s affidavit for services in the amount of $16,794.56. By order entered September 12, 1994, the bankruptcy court ruled on a motion filed by the debtors, Bill and Marilyn Schwarz:
After hearing arguments, this Court finds that the motion is without merit and will deny the same. The chancery court by previous order determined that 80% of the plaintiff’s legal services were in the nature of support. This Court conducted an evidentiary hearing on July 29, 1994 and at this hearing, the parties stipulated that the plaintiff’s files and records contained sufficient documentation to sustain the plaintiff’s request for 80% of $16,794.56 and is entitled to an award and judgment of $13,435.65 which is non-dischargeable.
The parties subsequently returned to chancery court and, following two hearings, the chancellor entered the November 17, 1994, order that set forth the specific amount of attorney’s fees owed by the Schwarzes to Mr. Williams, $13,435.65. An amended notice of appeal was then filed in which Bill Schwarz joined pursuant to Appellate Rule of Procedure 3(c).
We first address the argument that Bill Schwarz was outside the chancellor’s jurisdiction regarding attorney’s fees. Not only has Mr. Schwarz provided us with no authority or convincing argument regarding this issue, we cannot discern any. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977) (assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken). The cases were tried together, and both Marilyn and Bill Schwarz were represented by the same attorney. Furthermore, we endorse the chancellor’s following determination:
[OJn the basis that I’m tired of dancing around about this thing that I’ve been doing since I took this office several years ago. That Bill Schwarz has driven this thing from the start. That he doesn’t want to pay. He’s trying to dodge it. It’s unjust. It’s unfair. It causes a lot of trouble for a lot of people. It clogs up the docket in this court. He has lost, and he can’t accept it.
The arguments regarding the chancellor’s abuse of discre tion and an alleged failure of proof regarding the amount of fees are without merit. Any problems with the March 1992 supplemental order regarding the lack of a specific dollar amount were cured by the subsequent events in this case. The debt was recognized and listed in the subsequent bankruptcy proceedings. Bill and Marilyn Schwarz stipulated through their attorney via pleadings submitted in the bankruptcy case that “Mr. Williams’ files and records did contain documentation sufficient to sustain his affidavit for services rendered in the sum of $16,794.56.” The bankruptcy court relied upon those stipulations in determining the amount of the fees. In the absence of fraud, a client is bound by the acts of his attorney within the scope of his authority. White v. White, 50 Ark. App. 240, 905 S.W.2d 485 (1995). The chancellor entered the same amount as the bankruptcy court in the chancellor’s November 1994 order, following additional hearings on the matter in chancery court. Bill and Marilyn Schwarz cannot now deny the accuracy of this stipulated amount. See Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991); Womack v. Womack, 73 Ark. 281, 83 S.W.2d 938 (1904).
Finally, the chancellor’s finding that the attorney’s fees were so intertwined with custody and support issues as to be directly related to support is challenged. Once again, the argument has no merit. A chancellor is not limited to support issues in awarding attorney’s fees in a domestic-relations proceeding. Moreover, the chancellor’s use of the phrase, “so intertwined” does not necessarily mean the fees represented a majority of time devoted exclusively to support. Rather, it can as easily mean merely that the fees were “so intertwined” as to directly relate to support.
SANCTIONS
The fourth point of appeal asserts that the chancellor erred in awarding sanctions under ARCP Rule 11 against Marilyn Schwarz, Bill Schwarz, and Mr. Patterson, joindy and severally. There was no error.
ARCP Rule 11 provides in pertinent part:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
When a violation of Rule 11 occurs, the rule makes sanctions mandatory. Crockett v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995). Whether a violation of Rule 11 occurred is a matter for the court to determine, and this determination involves matters of judgment and degree. Id. In reviewing a trial court’s determination, we do so under an abuse of discretion standard. Id.
In addressing this point we note again the protracted nature of this case. Brandi was five years old at the time of her parents’ divorce and she is now seventeen. The intervening years have been filled with various allegations, pleadings, and hearings. The pleading that resulted in sanctions may well be regarded as the straw that broke the camel’s back. The backs of many camels would have broken much sooner. The brief submitted in this case acknowledges that the provisions of ARCP Rule 11 are designed to stop the needless delay and expense of pleadings interposed without a good faith belief in their validity. The brief also acknowledges that the pleading in question raised “what may be considered technical defenses,” including standing, laches, jurisdiction, and inequitable enforcement. There was no abuse of discretion in the chancellor’s award of sanctions in this case.
RECUSAL
Appellant’s final point of appeal is that the chancellor should have recused. The argument has no merit.
The chancellor disclosed early in the proceedings that he knew appellee’s brother, an attorney, and that the brother’s office had been located close to that of the chancellor’s. Disqualification is discretionary with the judge, and the court’s decision in that regard will not be reversed absent an abuse of discretion. Korolko v. Korolko, 33 Ark. App. 194, 803 S.W.2d 948 (1991). The party seeking disqualification bears a substantial burden to prove partiality. Id. There was no abuse of discretion in the chancellor’s refusal to recuse on this basis.
Appellant acknowledges that no prejudice could be shown with respect to any particular ruling, but argues that the “cumulative effect” demonstrated bias. Only external matters are considered for purposes of recusal. Otherwise, antagonizing judges would become a tool of trial strategy. The development of opinions, biases, or prejudices during a trial does not make the trial judge so biased as to require his or her disqualification from further proceedings. Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987). See also Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).
ABSTRACTING ABUSES
We cannot ignore the abstracting abuses of appellant’s counsel. Excessive abstracting is as violative of our rules as omissions of material pleadings, exhibits, and testimony. Saint Paul Fire & Marine Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995). Appellant’s abstract consisted of three volumes, totaling 575 pages. Much of this information could have been abridged or deleted for purposes of this appeal. This court’s efforts to resolve this matter on appeal would have been aided considerably by the scrupulous adherence to our abstracting rule. See Sup. Ct. R. 4-2(a)(6).
MOTION
Mr. David H. Williams filed a motion to dismiss this appeal. We considered and denied the motion.
Affirmed.
Robbins and Griffen, JJ., agree. | [
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John Mauzy Pittman, Judge.
On July 2, 1993, the appellant, Johnny L. Zollicoffer, pleaded guilty to the offense of criminal attempt to obtain a controlled substance by fraud. He was sentenced to six years in the Arkansas Department of Correction, with the last three years of the term suspended. On April 3, 1995, the prosecuting attorney filed a petition to revoke the suspended portion of appellant’s sentence, alleging that he had violated its conditions by committing another criminal offense. After a hearing, the trial court revoked appellant’s suspension, ordered that he serve ninety days in the Arkansas Department of Community Punishment, and suspended imposition of an additional term. On appeal, appellant contends that the trial court erred in revoking his suspension because he never received any written conditions and erred in admitting into evidence medical records and statements that appellant made to physicians and pharmacists. Because we find merit in appellant’s first argument, we reverse the order of revocation and dismiss the case. Consequently, we need not address appellant’s second point.
At the hearing on the State’s petition, appellant moved to dismiss the revocation proceeding, arguing that there was no proof that appellant was ever given any written conditions of his suspended sentence. Therefore, he argued, the trial court was without authority to revoke his suspension. The trial court acknowledged that there was no evidence and nothing in the file to indicate that appellant received any written conditions. The State did not respond to the motion, seek to re-open its case, or proffer any evidence to show that appellant was so informed in writing. Never theless, the trial court denied the motion to dismiss.
We agree with appellant that the trial court erred. Arkansas Code Annotated § 5-4-303 (Repl. 1993) provides that, if the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released. In Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), the supreme court was faced with a similar set of facts. There, the court held as follows:
[Ajll conditions for a suspended sentence, including any requirement of good behavior, must be in writing if the suspended sentence is to be revokable. Therefore, courts have no power to imply and subsequendy revoke [for violation of] conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence.
268 Ark. at 191, 594 S.W.2d at 853; see Neely v. State, 7 Ark. App. 238, 647 S.W.2d 473 (1983).
Reversed and dismissed.
Griffen and Robbins, JJ., agree. | [
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Donald L. Corbin, Judge.
This is an appeal of an overpayment determination by the Board of Review. On September 29, 1982, the Employment Security Division issued an overpayment determination holding that appellant was liable to repay $1,547.00 to the fund because he had received extended benefits to which he was not entitled. Appellant appealéd to the Appeal Tribunal and after a hearing was held, the appeals referee affirmed the agency determination that appellant had received benefits to which he was not entitled and was liable to reimburse the fund. Appellant appealed the decision to the Board of Review and presented a memorandum brief contending that appellant’s testimony before the appeals referee supported a finding that the overpayment was received without fault on the part of appellant and its recovery would be against equity and good conscience. Appellant’s brief argued, in the alternative, that the Board of Review should remand to the Appeal Tribunal for additional evidence on the issue of whether recoupment of the benefits would be against equity and good conscience. The Board found that the Appeal Tribunal’s decision was correct and affirmed. We remand.
The pertinent statute in this appeal is Ark. Stat. Ann. § 81-1107 (f) (2) (Supp. 1981), which provides in part as follows:
If the Director finds that any person has received any amount as benefits under this Act to which he was not entitled by reasons other than fraud, willful misrepresentation, or willful nondisclosure of facts, such person shall be liable to repay such amount to the Fund or in lieu of requiring the repayment, the Director may recover such amount by deduction from any future benefits payable to such person under this law unless the Director finds that the overpayment was received without fault on the part of the recipient and its recovery would be against equity and good conscience. (Emphasis added.)
Although appellant’s brief to the Board of Review dealt exclusively with the issue of equity and good conscience, and the testimony before the Appeal Tribunal included evidence of appellant’s economic position and other facts pertinent to a finding on whether the principles of equity and good conscience would be violated by requiring appellant to repay the benefits, the Board failed to make a finding on that issue.
It appears from the language of the above-quoted statute that the Legislature intended that the principles of equity and good conscience be considered before the Board of Review requires repayment or recoupment of erroneously-received benefits where the error occurred without fault on the part of the recipient. Without a finding on this issue, it is impossible to determine if these factors have been considered in the Board of Review’s decision in this case, and therefore, this case cannot be disposed of until such a finding is made.
When an administrative agency fails to make a finding upon a pertinent issue of fact, the courts do not decide the question in the first instance; the cause is remanded to the agency so a finding can be made on that issue. Reddick v. Scott, 217 Ark. 38, 228 S.W.2d 1008 (1950).
Hays v. Batesville Mfg. Co., 251 Ark. 659, 473 S.W.2d 926 (1971).
Remanded. | [
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Tom Glaze, Judge.
This is a Uniform Commercial Code case involving repossession of collateral (a car) by the appellant bank, subsequent disposal of the collateral by private sale, and an action by the bank to recover a deficiency. The appellee counterclaimed for damages resulting from the allegedly defective repossession and disposal of the car. The trial court dismissed the appellant’s original complaint, gave judgment on its amended complaint for $500, and gave j udgment to appellee on his counterclaim for $1,627.92, finding that the repossession occurred without notice to the appellee and prior to a default.
Appellant contends that the court erred in four respects: (1) in requiring appellant to go to trial without notice of the cause of action; (2) in proceeding with the cause when it was restrained by the U.S. Bankruptcy Court, (3) in finding the repossession wrongful; and (4) in finding the resale of the collateral inadequate and inconsistent with the Uniform Commercial Code. We affirm the trial court.
The appellee signed two promissory notes with the appellant bank:
One for $500, dated September 6, 1979, due in one installment on November 5, 1979;
One for $5,600, dated October 12, 1979, payable in forty-two monthly installments with payments to begin November 15, 1979.
Appellee borrowed the $5,600 to purchase a car from Bale Chevrolet; the note was secured by the car. The balance of the purchase amount was paid by appellee’s giving the bank a check drawn on his personal account with appellant bank. The notes were in appellee’s name alone and reflected his post office box address in Beebe, Arkansas. Appellee took possession of the car on about October 12,1979. At that time, he was in the process of getting a divorce from his wife. According to his testimony, he was afraid his wife would withdraw the money from their account in appellant bank; thus, on October 17, 1979, he withdrew the money and placed it in a North Little Rock bank account bearing his name only. He claimed he did so with the knowledge of his loan officer at appellant bank. The bank had not yet used funds from his account to cover the check he wrote for the down payment on the car because, according to appellee’s testimony:
I had offered to the day that I withdrew the money [to make the down payment] and she [his loan officer] said there was a title mix up, which shouldn’t be and she wanted me to hold everything until Bale Chevrolet did get the title straightened out and some days later, they repossessed the car.
As a result of appellee’s withdrawing his money, Mr. Wheeler, collector for the appellant bank, repossessed the car on October 23, 1979. Mr. Wheeler, the only witness for the bank at the hearing, testified that after repossessing the car, he mailed notice to appellee to a post office box number in Cabot, an address he copied from cancelled checks which were in the car at the time Wheeler picked it up. Wheeler testified that he ran an ad in the Cabot newspaper announcing the car for sale. On December 13, 1979, a used car dealer in Cabot sold the car for $4,800, for which the bank paid him a $100 commission.
The bank’s action against the appellee was for the deficiency, i.e., the difference between the amount appellee borrowed and the amount for which the car was sold — $2,583.24. The appellee contended at the hearing below that he did not owe the bank a deficiency because the bank wrongfully repossessed the car on October 23, 1979, prior to the November 15 date the first payment was due on his note.
Appellant’s first two points for reversal deal with notice, and we will consider them together. Appellant contends that it was deprived of sufficient notice on two counts: first, that it never received notice its cause of action was going to trial when it did; and second, that it never received notice a restraining order issued by the Bankruptcy Court had been released eight days before this cause of action was heard. Appellant cites no legal authority for either point; it offers no argument supporting the first point and limited argument supporting the second. Although this Court need not consider allegations of error absent citation to authority or convincing argument, Harrison v. Benton State Bank, 6 Ark. App. 355, 642 S.W.2d 331 (1982), we dismiss appellant’s contentions for a more compelling reason. To prevent prejudice resulting from lack of notice, appellant’s proper remedy was to request a continuance of the trial court. See Tippitt v. State, 6 Ark. App. 26, 637 S.W.2d 616 (1982). The record shows that counsel for appellant apprised the court at trial that he was proceeding without notice and without adequate time for preparation. He did not lodge a formal objection or request a continuance. The trial judge offered appellant’s counsel thirty minutes to confer with his client, but counsel replied that he would take just five minutes. Under these circumstances, we believe the court’s decision to proceed was correct. See id. at 28, 637 S.W.2d at 617.
Appellant’s third point for reversal is that the trial court erred in holding that the appellant wrongfully repossessed the car at a time when the account was not delinquent or in default. Appellant contends that appellee was actually in default before his first payment was due because he failed to furnish his portion of the purchase price of the car on the front end of the transaction. Appellant maintains that appellee committed anticipatory breach of the contract, citing Wendt v. Ismert-Hincke Milling Company, 107 Ark. 106, 154 S.W. 194 (1913). However, in Arkansas, the doctrine of anticipatory breach does not apply to contracts which have as their unperformed part merely the duty to pay money at specified times. Manufacturers’ Furniture Co. v. Read, 172 Ark. 642, 290 S.W.2d 353 (1927). See also 17 Am. Jur. 2d, Contracts §§ 448, 455 (1964). We find the Manufacturers’ Furniture Company case and those which follow it dispositive of this point.
Appellant’s final allegation is that the court erred in holding that the notice of intended resale of the property was inadequate and not consistent with the Uniform Commercial Code. Appellant argued that the notice sent to appellee after the bank repossessed the car was adequate to satisfy the mandates of Uniform Commercial Code provisions and Arkansas cases. However, we find it unnecesary to reach the question of the adequacy of the notice because we find the trial court was correct in holding the repossession wrongful because it occurred prior to default. The facts are undisputed that Wheeler repossessed the car on October 23, 1979, when by the plain terms of the promissory note appellee’s first payment was not due until November 15, 1979. The pertinent provisions of the Code do not give a creditor the right to repossess or to dispose of collateral until after default. Here, appellee simply never defaulted.
We find the judgment of the trial court correct in all respects. Therefore, we affirm.
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Melvin Mayfield, Judge.
Appellants Jesse and Verda Winchel appeal from a judgment entered against them and Winchel Enterprises, Inc., joindy and severally, in the amount of $19,250, plus costs. The damages were assessed for an injury sustained by the appellee caused, in part, by Winchel Enterprises, Inc. The appellants were found liable under the doctrine of “piercing the corporate veil.” On appeal the appellants argue only two points: (1) the trial court lacked subject-matter jurisdiction to decide the issue of piercing the corporate veil; and (2) the trial court erred in denying their motion for judgment notwithstanding the verdict as there was no substantial evidence to support the jury’s decision to pierce the corporate veil.
Robert Craig, who was employed by Mike Traylor to operate an apparatus, used to spread fertilizer, which was manufactured by Winchel Enterprises, Inc., was injured on April 16, 1992, when he stuck his hand into the sprocket and chain area of the spreader motor while it was operating. On December 17, 1992, Craig filed a complaint in circuit court against Traylor and Winchel Enterprises alleging strict liability, negligence, and breach of an implied warranty of merchantability.
In June 1993, the appellants resigned as officers of Winchel Enterprises and the corporation was officially dissolved by filing a certificate of dissolution in the office of the Secretary of State on December 7, 1993. Thereafter, on May 16, 1994, Craig filed a “Second Amended and Substituted Complaint” adding the appellants as defendants and asking for judgment jointly and severally against Traylor, Winchel Enterprises, and the appellants. The complaint alleged, among other things, that because the corporation was a sham corporation, because it was inadequately capitalized, and because of the way its business was transacted and its records were kept its corporate veil should be pierced.
After a trial held April 25 and 26, 1995, a jury returned a verdict on interrogatories. The jury found against Winchel Enterprises as to liability, that it was 55% at fault, and that the affairs of the corporation were conducted in such a manner that the corporate entity should be disregarded and the appellants held personally liable. On May 2, 1995, the trial court entered the judgment from which this appeal comes.
At trial, Jesse Winchel testified that he bought the spreader business in 1983; that they incorporated for the purpose of manufacturing spreaders; and that he and his wife were the sole incorpo-rators, stockholders, and officers. They purchased inventory, which they eventually sold to the corporation, and equipment, which they leased to the corporation. The corporation paid them $3,000 per month for the equipment and they drew a salary. For a period of time, the corporation held annual meetings, kept records, paid corporate taxes, paid Arkansas franchise tax, and was in good standing with the state.
In January 1992, the appellant Jesse Winchel stopped drawing wages because the company was in bad financial straits and could not afford to pay him. Between 1990 and 1993 he loaned money to the corporation in an attempt to keep it afloat. He testified that he always made a promissory note to himself when he loaned the company money, and the company paid some of the notes. He said the company had no assets and could not afford liability insurance. Winchel testified further that when the lawsuit was filed against Winchel Enterprises on December 13, 1992, he had already taken steps to close down the company; that they should have closed down two years previously, but they were trying to make it work. He said that they did not provide for any payment to Craig because they did not know at that time that they had any liability to him. At liquidation the company had assets of some $12,000 in the form of a forklift which was sold and the proceeds went to pay off the bank indebtedness on the forklift. Appellants received no assets at dissolution.
On May 20, 1993, appellants formed a new corporation, Shamrock Spreaders, Inc. Although the Articles of Incorporation stated that the purpose of this new corporation was to manufacture spreader beds, Winchel testified that it could not manufacture the beds because it had no equipment, and the corporation never went into business.
Dan Downing, appellants’ accountant, testified that his accounting firm had done the bookkeeping for Winchel Enterprises since 1983 when appellants came to him for advice on how to operate the business they had acquired. Downing said his counsel was to incorporate primarily for income tax purposes. Downing said that the corporate structure had never been abused; that Winchel Enterprises was a solid entity from 1983 through liquidation; and that the corporate records were kept at his office. He testified that the company was bankrupt, had no operating funds, and its dissolution had nothing to do with Craig’s lawsuit. Downing said the liquidation plan was a standard plan “taken right out of the Internal Revenue manuals,” and the appellants received no money when the company was dissolved. However, he also testified that there was a transfer of assets upon liquidation, but he said the purpose was to clean up the books in order to file a final income tax return showing zero assets.
In regard to the Articles of Incorporation of Shamrock Spread ers, Inc., Downing testified that he assisted appellants in setting up the corporation; that it was never activated; that its purpose was to market parts and supplies; and that the Articles of Incorporation contained a clerical error regarding the manufacture of spreaders.
I. Circuit Court Jurisdiction
On appeal, appellants first argue that piercing the corporate veil is an equitable remedy, and the circuit court lacked subject-matter jurisdiction to decide that issue.
Appellants contend chancery has exclusive jurisdiction in areas of substantive law developed by equity and cite In re Long Trust v. Holk, 315 Ark. 112, 864 S.W.2d 869 (1993), and J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992), in support of this argument. However, the exclusive jurisdiction in those cases involved trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity, Hoik, supra, and courts of equity have inherent and exclusive jurisdiction of all kinds of trusts and trustees, Spradling v. Spradling, 101 Ark. 451, 142 S.W. 848 (1911).
Appellants also cite Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988). But, the equitable jurisdiction in that case was based upon a statute, that authorized an action “by equitable proceedings” to be filed in aid of execution for the discovery of assets that could be subjected to payment of the judgment on which the execution was issued. The court held that the appellees had “instituted this action to satisfy their judgment through a remedy which, under the circumstances presented, required an equitable proceeding as authorized under [the statute].” 296 Ark. at 281, 753 S.W.2d at 868. And the court remanded for the circuit court to transfer the cause to chancery court. The instant case, however, was not brought in aid of execution and the statute involved in Cummings is not involved in the case at bar.
In Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990), our supreme court discussed the issue of jurisdiction. The court said this must be assessed within the “narrow confines of equity jurisdiction under the Constitution of Arkansas.” It explained:
Article 7, section 11 provides: “The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution.” This provision means that unless a cause of action is confided by the Constitution exclusively to another court, it belongs exclusively, or concurrently, to the circuit court. In other words “[a]ll unassigned jurisdiction under the Constitution is vested in the circuit court. . . .” Article 7, section 15, provides: “until the General Assembly shall deem it expedient to establish courts of chancery the circuit court shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court, in such manner as may be prescribed by law.” By Act 166 of 1903, Ark. Code Ann. § 16-13-301 (1987), separate courts of chancery were established by the General Assembly. However, the General Assembly is without authority to give chancery courts any jurisdiction other than that which the equity courts could exercise at the time of the adoption of the Constitution of 1874.
303 Ark. at 91, 793 S.W.2d at 790 (citations omitted).
And, in Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985), the appellants argued the circuit court lacked subject-matter jurisdiction because the complaint sought injunctive relief and an accounting. We said:
Under the Arkansas Constitution, circuit courts are the reservoir of unassigned judicial power; they have original jurisdiction in all cases where jurisdiction is not expressly vested in another court. The correct way to determine the circuit court’s jurisdiction is to first determine what class of cases are expressly entrusted to the jurisdiction of other tribunals, with the great residuum belonging concurrently or exclusively to the circuit court. In order to successfully attack the circuit court’s jurisdiction, it must be shown that another court has been granted exclusive jurisdiction of the subject matter.
16 Ark. App. at 153-54, 698 S.W.2d at 312 (citations omitted).
Here, appellant has not shown that chancery court has been granted exclusive jurisdiction in matters regarding piercing the corporate veil. To the contrary, our supreme court has indicated that “piercing the corporate veil” may be an issue in circuit court.
In Black and White, Inc. v. Love, 236 Ark. 529, 367 S.W.2d 427 (1963), an appeal from circuit court, the appellants appealed from the trial court’s action in allowing certain testimony to be presented. Our supreme court found no error, and said that “the plaintiffs were making an effort to pierce the fiction of the corporate entities of Black & White, Inc., and Checker Cab Company; and that the way the two corporations operated — like a joint venture — was a cogent fact which the plaintiff were entitled to show.” The appellants also objected to an instruction given by the trial court. Our supreme court found no error regardless of whether the instruction complained of was given on the theory of joint venture or the theory of piercing the corporate veil. The supreme court held that the giving of the instruction was justified and found “no error in the entire case.”
Therefore, we cannot agree that the circuit court was without jurisdiction to decide the issue of piercing the corporate veil.
II. Substantial Evidence
Appellants also argue that the trial court erred in denying their motion for judgment notwithstanding the verdict because there was no substantial evidence to support the jury’s decision to pierce the corporate veil.
By jury verdict, returned upon interrogatories, the jury found “from a preponderance of the evidence that the corporate affairs of Winchel Enterprises, Inc., were conducted in such a manner that the corporate entity should be disregarded so as to render Jesse R. Winchel and Verda Winchel personally Hable for Robert Craig’s damages.” The trial court subsequently denied appellants’ motion for judgment notwithstanding the verdict on the basis that the jury was correcdy instructed on the issue of piercing the corporate veil, and there was substantial evidence to support the jury’s verdict in that regard. In the court’s letter decision, the court said there was also substantial evidence to support a finding that Arkansas law was violated when the shareholders took no steps to provide for the contingent liabiHty resulting from the filing of the suit for personal injuries against the corporation and which was pending at the time of its dissolution. Moreover, the court said, evidence regarding the formation of the new corporation, Shamrock Spreaders, Inc., constituted substantial circumstantial evidence concerning the intentions and motives of the shareholders.
On appeal, the appellate court will uphold the trial court’s denial of a motion for judgment n.o.v. if there is any substantial evidence to support the jury’s verdict. Arkansas Power and Light Co. v. Adcock, 281 Ark. 104, 661 S.W.2d 392 (1983). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996).
Appellants argue that there was no evidence of illegal or fraudulent abuse of the corporate form; no evidence that the dissolution of the corporation came about because of the filing of the appellee’s personal injury lawsuit; no evidence that the corporation was undercapitalized; and no evidence that a new corporation was formed with the intention of avoiding the liability of the old one. We do not agree. The appellants’ problem is that the jury did not accept the appellants’ explanation of the evidence, but the weight and value of the evidence lies within the exclusive province of the jury. Garrett v. Brown, 319 Ark. 662, 666, 893 S.W.2d 784, 787.
As to the law, in Humphries v. Bray, 271 Ark. 962, 611 S.W.2d 791 (1981), the Workers’ Compensation Commission had combined all the employees who worked at the appellant’s separate businesses to hold that the appellant had enough employees to be subject to the workers’ compensation law. When the appeal of the holding reached our supreme court, it said the issue was whether there was substantial evidence to find that a corporation was the alter ego of the appellant, and that it was so managed and controlled by him as to constitute a sole proprietorship. The court stated that the conditions under which the corporate entity may be disregarded or looked upon as the alter ego of the principal stockholder vary according to the circumstances of each case.
In Fausett Co. v. Rand, 2 Ark. App. 216, 619 S.W.2d 683 (1981), this court considered the issue of piercing the corporation veil and said that all three cases cited by one party contained the statement: “It is only when the privilege of transacting business in a corporate form has been illegality abused to the injury of a third person that the corporate entity should be disregarded.” And we said that all three cases cited by the other party held that such liability will be imposed only where the corporate structure has been illegally or fraudulendy abused to the injury of a third person. All six cases are listed in the Fausett Co. v. Rand opinion. See 2 Ark. App. at 221, 619 S.W.2d at 686.
In Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994), our supreme court held that the insurance commissioner did not err in piercing the corporate veil. Although that case involved a parent corporation and its subsidiaries, the principle is the same. In that case, our supreme court discussed the case of Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 594 S.W.2d 13 (1980), a case in which our supreme court held that courts will ignore the corporate form of a subsidiary where “fairness” demands, and said that this is usually where it is necessary to prevent wrongdoing and where the subsidiary is the mere tool of the parent.
In the instant case, one of the jury instructions said:
You are instructed that under Arkansas law, after dissolution and after paying for or adequately providing for the payment of its liabilities, the corporation, if authorized at a meeting of shareholders, may sell its remaining assets and distribute the same among the shareholders according to their respective shares.
The instruction is taken directly out of the Arkansas Business Corporation Act, specifically Ark. Code Ann. § 4-26-1103 (Repl. 1991), which provides that after dissolution:
(3) After paying or adequately providing for the payment of its liabilities:
(A)(i) The corporation, if authorized at a meeting of shareholders which is to be held on notice to all shareholders, whether or not entitled to vote, by a vote of a majority of all outstanding shares entided to vote thereon, may sell its remaining assets or any part thereof for cash or for shares, bonds, or other securities of another corporation, or pardy for cash and pardy for such securities, and distribute the same among the shareholders according to their respective rights.
In the instant case, there is evidence that the appellee was injured by a spreader manufactured by the corporation Winchel Enterprises; that appellants were its sole incorporators, stockholders, and officers; that the corporation had no liability insurance in case someone was hurt by its equipment; that the appellants dis solved Winchel Enterprises and sold or transferred its assets subsequent to appellee filing suit against the corporation; that about a month before the appellants resigned as officers of Winchel Enterprises, they formed a new corporation whose Articles of Incorporation stated that the purpose of the new corporation was to manufacture spreader beds — and this is the same kind of equipment that was manufactured by the first corporation; and that appellants made no provision upon dissolution of the old corporation to provide for payment of any liability it might have to appellee as a result of this suit which was pending at that time.
Judgment notwithstanding the verdict is proper only where there is no substantial evidence for the jury verdict and one party is entided to judgment as a matter of law. Findley v. Time Insurance Co., 269 Ark. 257, 599 S.W.2d 736 (1980). There is substantial evidence to support the jury verdict, and we affirm the judgment of the circuit court.
Robbins, Stroud, Neal, and Griffen, JJ., agree.
Rogers, J., dissents. | [
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Tom Glaze, Judge.
This is an Employment Security Division case in which the Appeal Tribunal and the Board of Review held the claimant was entitled to benefits. The employer appeals the Board’s determination, arguing that the claimant is not entitled to benefits because he was discharged for misconduct. We affirm.
The law establishing what constitutes “misconduct in connection with the work” is well settled. Recently, in Dillaha Fruit Co. v. Everett, 9 Ark. App. 51, 652 S.W.2d 643 (1983), we said:
Arkansas case law requires that misconduct must be on account of wanton or willful disregard of the employer’s rules and a disregard of the standard of behavior which the employer has a right to expect. Whether the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct, or unintentional failure of performance is a question of fact for the Board of Review. On appeal, the Board’s findings are conclusive if they are supported by substantial evidence. Stated in different terms, this Court cannot substitute its findings for those made by the Board even though we might reach a different conclusion on the same evidence which was before the Board.
Id. at 52-53, 652 S.W.2d at 644 (citations omitted).
Here, the employer terminated claimant because he breached a confidentiality. The narrow issue is whether the breach was willful or unintentional. If claimant’s actions were willful or wanton, he was not entitled to benefits; if his qualitative conduct was neither willful nor wanton, he was entitled to benefits. In viewing the evidence in the light most favorable to the successful party (claimant), Dillaha Fruit Co. v. Everett, supra, we believe the evidence substantially supports the Board’s finding that the claimant’s actions were unintentional and not misconduct under existing Arkansas case law.
The claimant was employed as one of three store clerks whose duties included receiving packages or mail sent to the company. After receiving items,, the clerks forward the packages or envelopes to the designated person or department. The item precipitating the present controversy was a large envelope delivered by Federal Express. No employee’s or department’s name appeared on the envelope; nor did the air freight bill designate a specific addressee. The claimant accepted and receipted the envelope, and according to the company’s standard procedure, opened it to examine the contents to determine where the envelope should be forwarded. A co-worker, Richard McNear, asked claimant to whom the papers inside the envelope were addressed, and claimant replied, “It looks like it’s for Larry Detwiler.” He continued to leaf through the papers and saw more names, including his own. After seeing his name, claimant said that he guessed it was not for Larry Detwiler, and then he read the words, “Position eliminated,” and asked, “Well, why is this for me?” After reading further, he related the papers reflected his position had been eliminated. He also discovered the papers were intended for John Cressman, the company’s Industrial Relations Manager. Claimant discussed the matter with McNear, subsequently placed the papers back into the envelope and personally delivered the envelope to Cressman’s secretary. Sometime prior to delivering the papers to Cressman’s office, the claimant and his co-workers discovered the envelope had been stamped “confidential,” but the stamp had been obscured by the bill of lading which was placed over it. Later the same day, claimant was terminated because he had revealed the contents of the envelope to his co-workers.
The evidence before the Board clearly reflects that four co-workers were within hearing range of where the claimant was positioned when he received the envelope and read that part of its contents indicating that he and some other employees would be laid off. The testimony is undisputed that claimant’s interception of the envelope was both inadvertent and coincidental. The employer argues, however, that as soon as claimant read and discovered the confidential nature of the papers, he should have re-inserted the papers into the envelope and delivered it to his super visor. The claimant counters, arguing that his supervisor was not present at the time the incident occurred, and claimant’s discussion of the matter with McNear was proper and normal procedure in view of their supervisor’s absence. He also testified that he was in shock and did not fully understand the confidential nature of what he had read until he was discharged later by his supervisor and Mr. Cressman. In support of claimant’s version of what occurred, other co-workers testified that they did not know if claimant, after opening the envelope, was reading its contents to himself or to another co-worker. Undisputedly, the claimant appeared upset at the time. Claimant asserted that he did not purposely discuss the matter with anyone except McNear. From this evidence, the Board could (and did) reasonably infer claimant’s actions were not willfully designed to relate confidential company information to others. Such a factual inference was a proper one for the Board to make, and even though we may have found otherwise, we cannot say the decision reached by the Board was not supported by substantial evidence.
In conclusion, we note the employer’s reliance on two Pennsylvania cases wherein unemployment benefits were denied because the claimants breached their employers’ trust and confidentiality. See Petery v. Unemployment Compensation Board of Review, 42 Pa. Commw. 464, 400 A.2d 1372 (1979); and Parsons v. Unemployment Compensation Board of Review, 50 Pa. Commw. 378, 397 A.2d 842 (1979). Neither Petery nor Parsons is applicable to the facts here. In both Pennsylvania cases, the claimants held management-level positions and had access to (or were given) confidential information. In Petery, the claimant disclosed such information in direct contravention to her supervisor’s mandate not to do so. In Parsons, the claimant pirated payroll information and stealthily divulged it to others. These cases in no significant manner compare with or control the situation posed at bar.
Affirmed.
Cooper and Cloninger, JJ., agree.
Agrico Chemical Company argues claimant violated an earlier agreement he signed entitled “Employee Invention and Confidential Agreement.” The substance of this agreement appears to cover inventions, improvements and discoveries. However, assuming arguendo the agreement covered the information divulged here, such a conclusion does not in itself require a finding claimant willfully or wantonly divulged the information. Thus, either the Board found the agreement was not relevant to the confidential information involved here or the Board, having found it was, concluded the claimant did not willfully or wantonly breach the agreement. | [
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James R. Cooper, Judge.
The appellant was convicted by a jury of theft by receiving in violation of Ark. Stat. Ann. § 41-2206 (Repl. 1977) and terroristic threatening in violation of Ark. Stat. Ann. § 41-1608 (Repl. 1977). He received sentences of fifteen years and six years, respectively. For reversal, the appellant argues that the trial court made four errors warranting reversal: 1) by not granting his motion for a directed verdict on both counts; 2) by admitting some of the State’s evidence; 3) by failing to declare a mistrial after a witness referred to the appellant’s prison record; and 4) by admitting certain testimony of the appellant’s accomplice. We find no merit in any of these assignments of error and therefore we affirm his convictions.
The State’s version of the facts of this case and the appellant’s version are in total conflict. According to the State’s witnesses, the appellant participated in the theft of a pickup truck in Missouri with an accomplice, Kenneth Reed. At trial, Reed, testifying for the State, stated that the appellant recruited him into the operation. He stated that in August, 1982, the appellant drove him to Springfield, Missouri to steal a pickup truck. According to Reed, the appellant dropped him off at a Kawasaki dealership where he convinced a salesman to permit him to test drive a Toyota truck. Reed stated that he drove the stolen truck back to Arkansas and parked it near the appellant’s home. Reed said that he later sold the Toyota truck and delivered half the proceeds to the appellant who accepted the money. Unknown to Reed, the buyers of the Toyota truck were undercover State Police officers. Reed acknowledged that although his negotiations with the buyers.of the stolen Toyota occurred within 150 feet of the appellant’s home, the appellant was not present at the sale. Reed also testified to the details of two other truck thefts he and the appellant committed jointly, and he testified that the appellant masterminded the entire car theft operation.
To corroborate Reed’s testimony pertaining to the theft charge, the State introduced a tape recording, made by the police officers, of conversation between the officers, the accomplice Reed, and the appellant. The conversation dealt generally with arrangements for future sales of stolen trucks. At one point in the conversation the following exchange occurred with regard to the stolen Toyota truck, which was the basis of the charge in the case at bar:
HENDERSHOTT: Me and him done some business, and there wasn’t no heat behind it and everything went down fine, I made some money on it, and I wouldn’t hold that little old unit for 24 hours, and that sone (sic) of a bitch was gone boy
REED: (inaudible)
HENDERSHOTT: And that was a nice little piece of equipment and it went
REED: There is a lot heat floating around Coal Hill about that.
HENDERSHOTT: About what?
REED: About, just around Coal Hill
HENDERSHOTT: About that truck?
WALKER: Yeah, it’s gone isn’t it?
HENDERSHOTT: Oh, unless that sone (sic) of a bitch can speak Spanish, we haven’t got any problems. I doubt if it even looks the same anymore
WALKER: (inaudible) Is that the one I drove
REED: Yeah
It was during this taped conversation that the appellant allegedly threatened to kill the officers by declaring:
WALKER: I’ll tell you what I done partner, you set here and let me tell you something. They charged me in Tulsa, Oklahoma and there was a whole bunch of people and I went by my_self and the judge, when they started sentencing me, said Mr. Walker, we’ll put you on a plane and you’ll land in California, your family’s there, he said, we want 3 names and I said, I can’t give them to you. You ask any_that turns me around,_, I’m an old man, I’m subject to chop his head off. You dig me? You blame me? . . .
WALKER: I’ll tell you what and I’m not bull _ you, I don’t care if you are the man, and I go down and do a_5, I’ll come out, I’m going to kill you, cause I’m too old to go . . .
WALKER: I’m too old to go, I don’t blame you, but if they bust me, I’ll tell you what, I every one of my kids fall dead if I look at you and don’t kill you, I said I never seen your (inaudible) before in my life.
The officers testified that they felt the threats were real and that they were frightened by the appellant’s promises to kill them.
The appellant took the stand and denied having anything to do with the sale or theft of the Toyota truck. He admitted to being present at the conversation taped by the undercover police officers, but denied asking Reed if he had driven the Toyota truck. He admitted that he might have threatened the officers because he was angry with one of them, but said th^t he did not have any intention of actually killing them.
The appellant first argues that the trial court should have granted his motion for a directed verdict on the theft by receiving charge. Directed verdict motions are challenges to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). The appellant bases this argument on Ark. Stat. Ann. § 43-2116 (Repl. 1977) which requires that the testimony of an accomplice be corroborated by other independent evidence which tends to connect the defendant with the crime. It is the appellant’s contention that the State adduced no evidence which corroborated the theft by receiving charge and, therefore, the trial court should have granted his directed verdict motion.
The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). After a careful review of the abstracted testimony, excluding the accomplice Reed’s direct testimony, we find that the State’s tape recording of the appellant is sufficient corroboration of Reed’s direct testimony pertaining to the theft by receiving charge. The appellant’s question regarding the Toyota truck, “Is that the one I drove” and Reed’s affirmative response, tend to connect the accused with the commission of the crime. This exchange between the appellant and Reed, in the context of the discussion regarding the Toyota truck, independently establishes the crime of theft by receiving. The appellant’s remarks independently establish that he had control of the Toyota truck and that he knew it was stolen. Of course, this evidence of itself would not be enough to sustain a conviction, however, it need not be — it need only tend in some degree to connect the accused with the crime, Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976).
With respect to the appellant’s motion for a directed verdict on the terroristic threatening charge, the appellant argues that the State’s evidence does not prove that he directly threatened the undercover officers; instead, the appellant contends that the State proved, at most, that he conditionally threatened to kill the officers when he promised to kill them if they arrested or informed on him. The appellant’s construction of the statute is that it only criminalizes present, but not future, death threats. This argument was rejected in Richards v. State, 266 Ark. 733, 585 S.W.2d 375 (1979).
Next, the appellant argues that the trial court erred in admitting into the State’s case-in-chief three tapes, two audio and one video, made by undercover police officers, written transcripts of the audio tapes, and photographs of two pickup trucks. At a pre-trial suppression hearing, the appellant objected to the introduction of the audio tapes and the transcriptions of them because the tapes were generally inaudible and because the parties to the conversation were not identified on the tape. The appellant objected to the introduction of the written transcription because they were prepared by the State. He objected that the video tape was irrelevant as to proof of his guilt because the tape showed only Reed, the accomplice, selling the truck to the undercover officers. There were no objections at the pre-trial hearing nor at trial to the introduction of the photographs of the truck.
At the suppression hearing the trial court listened to the audio tapes, read the transcriptions of them and watched the video tape. The court admitted the audio tapes and the video tape into evidence on the basis of their relevancy. The jury was allowed to read the transcripts merely to assist them in understanding the audio tapes, however, the transcripts of the audio tapes were not admitted into evidence and the j ury was instructed, in case of a variation between the tapes and the transcripts, to be guided by the tapes and not by the transcripts. The trial court also instructed the jury to disregard any parts of the audio tapes that were inaudible.
The appellant’s objection to the State’s introduction of the audio tapes is a challenge to their authenticity. At trial, an undercover police officer, who was present when the tapes were recorded, testified as to their accuracy and authenticity. This testimony was sufficient to authenticate the tapes. Ark. Unif. Rule of Evidence 901(b)(1). In determining the authenticity of taped statements, the trial court has some discretion and in the absence of evidence indicating tampering with the evidence we will not reverse the trial court’s ruling unless we find an abuse of discretion. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). We find no such abuse in the trial court’s decision to admit the audio tape.
The appellant also objected to the admission of the audio tapes because they were inaudible. The trial court listened to the tapes and found that they were sufficiently audible to be understood. The admissibility of tape recordings containing inaudible portions is a matter within the sound discretion of the trial court, and we will not reverse unless there has been an abuse of that discretion. U.S. v. Bell, 651 F.2d 1255 (1981). See, 57 ALR 3d 749-54. We find no abuse of discretion here.
There were no objections to the introduction of the photographs of the stolen trucks, therefore, we will not consider this point. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). As for the video tape, the appellant argues that it is irrelevant but he does not show how the introduction of the video tape, showing Reed selling the Toyota truck to an undercover police officer, prejudiced him. The appellant has the burden of demonstrating error, and that burden is not met by showing the mere possibility of error. Butler v. State, 264 Ark., 243, 570 S.W.2d 272 (1978). The appellant has demonstrated no prejudice. The transcripts of the audio tapes were not introduced, and were only to be used as an aid to the jury. Therefore, we fail to see how the appellant was prejudiced.
Next, the appellant alleges that the trial court erred in refusing to declare a mistrial when one of the undercover officers stated that the appellant told them he had previously been to the penitentiary. He argues that the officer’s answer was not responsive and was so prejudicial that his motion for a mistrial should have been granted. On cross-examination, the appellant’s attorney asked one of the undercover officers “how did that (appellant’s threat to kill the officers) happen?” The officer’s statement that the appellant had been to the penitentiary was responsive to the question because it explained the appellant’s motivation behind his threats: he had been in prison once before and he was determined not to go again, or, if he went, he was determined to kill those who were responsible.
Finally, the appellant alleges that the trial court should not have allowed testimony by Reed concerning the theft of other trucks by Reed and the appellant. The trial court ruled that the testimony concerning other crimes committed by the appellant and his accomplice was admissible under Ark. Unif. Rules of Evidence 404 (b) as evidence of intent and plan. The trial court’s ruling was correct. The appellant denied that he had any knowledge of the sale of the Toyota truck. To prove the appellant’s guilty knowledge, evidence of other criminal acts under similar circumstances is admissible to show a system, design, or guilty knowledge. Vernon v. State, 2 Ark. App. 305, 621 S.W.2d 17 (1981).
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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Tom Glaze, Judge.
This appeal is from an action for damages resulting from appellee’s sale of a used generator to appellants. Appellants Cay Tenwick and George Dart alleged below that the goods deliverd were non-conforming within the meaning set out by the Uniform Commercial Code, and that they were entitled to damages for their costs in curing the defect in the goods pursuant to Ark. Stat. Ann. § 85-2-712 (Add. 1961). The trial court found that the appellee, Jesse Byrd, had neither expressly nor impliedly warranted the sale of the goods to the appellants, that the sale was an “as is” transaction, and that appellee consequently was not liable for any defects. On appeal, Tenwick and Dart contend that substantial evidence did not support the trial court’s finding that the transaction was an “as is” sale.
Whether substantial evidence exists to support a verdict is not a question of fact, but one of law. Butler v. Arkansas State Highway Commission, 6 Ark. App. 267, 640 S.W.2d 467 (1982). In testing the trial court’s ruling, we view the evidence in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict, it cannot be disturbed by this Court. Id. Because a witness testifies to a conclusion on his part does not necessarily mean that the evidence given by him is substantial. Id.
The appellants are in the business of buying and selling used heavy equipment in Moscow, Iowa. The appellee sells heavy equipment in Little Rock. In early 1980, appellants contacted appellee and asked about buying a used generator from him; they later travelled to Little Rock to inspect the machine. At the time of the inspection, the generator was, for the most part, disassembled and spread over an area approximately fifteen feet square at Byrd’s place of business. The parts were partially covered with visqueen. Both Tenwick and Dart testified that Byrd told them the generator was complete except for the crankshaft and a turbo. After returning to Iowa, appellants phoned Byrd and agreed to pay $10,000 for the generator. Thereafter, they had their truck driver load and transport the generator to Iowa. About six weeks later, appellants inventoried the equipment and found that parts other than the crankshaft and turbo were missing. Appellants testified that they apprised appellee of the missing parts, that appellee promised to look around his place of business to see if he could find them, and that nothing was ever replaced. Appellants claim they spent $9,258.55 for replacement parts pursuant to Ark. Stat. Ann. § 85-2-712 (Add. 1961) and that they are entitled to reimbursement because Byrd expressly warranted to them that everything was there except for the crankshaft and a turbo.
I. SALE WAS AS IS/WHERE IS
After the conclusion of the trial, the judge entered a detailed, nine-page memorandum opinion, containing his findings and conclusions. The judge misstated that the appellant, Tenwick, testified the sale of the used generator was on an “as is” basis. Tenwick did refer to an “as is” sale, but his statement was made in reference to an earlier sale between the parties involving the appellants’ purchase of a stone crusher. Nonetheless, the judge correctly found that Dart, Tenwick’s partner, indicated in his testimony that the generator sale was “as is.” Dart, testifying regarding the generator, said:
Q. And he didn’t try to hide anything from you?
A. I don’t think so.
Q. He said there it is?
A. Yes, he — except that he guaranteed except for the crank and the turbo. Beyond that he said everything was there.
Q. Well didn’t he tell you that you were buying it as is, where it was?
A. Well, as is/where is but with the guarantee that the balance of the parts were there.
From Dart’s foregoing statement and the fact that appellants had previously done business with appellee on an “as is” basis, the trial judge had every right to infer and find the appellants’ later purchase of the generator was an “as is” sale. At the same time, the judge, as fact finder, had the right to disbelieve both Tenwick’s and Dart’s testimonies indicating that an express warranty was made.
The crucial issue to be decided here is whether appellee made the express warranty attributed to him. More specifically, even if the evidence supports the court’s finding that the parties’ transaction was an “as is” sale, such a finding still fails to dispose of this case because only implied — not express — warranties are excluded in “as is” transactions. See Ark. Stat. Ann. § 85-2-316 (3); see also J. White and R. Summers, Uniform Commercial Code § 12-6 (2d ed. 1980).
II. NO EXPRESS WARRANTY WAS MADE
Appellants testified that Byrd told them the generator was complete except for the crankshaft and a turbo. Because his deposition testimony was excluded by the trial court, Byrd did not testify regarding any aspect of the sale, including the express warranty issue. Nonetheless, appel-lee’s failure to testify has no import under the circumstances existing in this case. The settled rule is that the testimony of an interested party may not be taken as uncontradicted because his testimony is contradicted as a matter of law. Nipper v. Brandon Co., 262 Ark. 17, 553 S.W.2d 27 (1977). Thus, appellants’ testimony concerning any expressed warranty was certainly not binding on the trial judge. This is especially true here because a study of the record reveals other facts and circumstances indicating that no such warranty was made by the appellee. See Eudora Lumber Co. v. Neal, 263 Ark. 40, 562 S.W.2d 294 (1978). In fact, the judge so found when he said, “Under the circumstances, the court is hard pressed to accept the assertion that [appellee] guaranteed to [appellants] that every part of a 1972 D34B generator except for the turbo and crankshaft would be sold.” Those circumstances to which the court referred (or upon which it could have relied) in finding no express warranty are the following:
1. Appellants and appellee were professional, experienced businessmen who deal in used equipment.
2. The parties previously had dealt in an “as is” sale of a cone crusher, and appellants similarly claimed a missing part when the crusher was delivered to Moscow, Iowa. The fact a part was missing was never brought to appellee’s attention because the appellants stated they chose to ignore it.
3. Dart indicated this sale was “as is” and admitted that generator parts were spread out over an area covering approximately fifteen feet square.
4. Because the generator parts were covered, the appellants did not observe and could not say whether any of the missing pieces had been actually present at the time appellants were on appellee’s business premises to check the generator prior to the sale.
5. Nor could appellants say, conclusively, whether the missing parts had been lost once the parts were en route to Moscow, Iowa.
6. Although appellants contend they expended $9,258.55 to replace the missing parts, that sum plus their purchase price of $10,000 was still substantially less than the generator’s estimated value of between $40,000 and $45,000 when it was later traded by the appellants.
In view of the foregoing circumstances, the trial judge stated his belief that “all [appellee] could have guaranteed in such an ‘as is’ transaction was that what was on the ground would be sold. ” Thus, because no one knew what was on the ground, the judge did not believe appellee asserted or warranted that all generator parts except the turbo and crankshaft were present. In making this finding, the judge knew the parties were experienced and knowledgeable businessmen who had done business with one another on an earlier occasion. He also knew the appellants made a substantial profit following their purchase of the generator in spite of the claims they now assert in this action. In weighing the evidence, the judge was not required to set aside his common sense and knowledge and blindly accept the assertions made by the appellants.
Viewing this evidence in the light most favorable to the appellee, we find substantial evidence to support the verdict, and therefore we affirm.
Affirmed.
Cloninger, J., dissents. | [
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Sam Bird, Judge.
On March 9; 1999, following the trial court’s denial of a motion to suppress evidence, Randy Wayne Mangrum entered an unconditional plea of guilty to manufacturing a controlled substance, methamphetamine, and was sentenced to 144 months in the Arkansas Department of Correction. After entry of the plea but before sentencing, Mangrum obtained a new attorney and filed a motion to withdraw the guilty plea. Following a hearing on April 20, 1999, the trial court refused to set aside the guilty plea. However, the judge did agree to treat Man-grum’s unconditional guilty plea as a conditional plea of guilty, thereby permitting Mangrum to appeal the denial of his motion to suppress, pursuant to Ark. R. Crim. P. 24.3(b).
Mangrum argues two points on appeal: (1) that the trial court erred in failing to suppress the evidence obtained in a nighttime search, and (2) that the trial court erred in denying his motion to withdraw his guilty plea. We affirm.
Arkansas Rule of Criminal Procedure 24.3(b) 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.
Rule 24.3(b) provides the only procedure for an appeal from a guilty plea. Eckl v. State, 312 Ark. 544, 851 S.W.2d 428 (1993). But if the express terms of Rule 24.3(b) are not complied with, the appellate court acquires no jurisdiction to hear an appeal from a conditional plea of guilty. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994). Accordingly, the Arkansas Supreme Court has required strict compliance with Rule 24.3(b) to convey appellate jurisdiction. Burress v. State, 321 Ark. 329, 902 S.W.2d 255 (1995).
In Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996), the defendant appealed from a plea of guilty to three charges, arguing that the trial court erred in denying his motion to suppress statements he had given to police. The State moved to dismiss for failure to comply with Rule 24.3(b), and the court of appeals granted that motion. Thereafter, Tabor moved to reinstate the appeal, and it was stipulated that Tabor had, in fact, entered a conditional plea, and the court reporter had recorded it. The court of appeals remanded the case to the trial court to settle the record. The Arkansas Supreme Court granted the State’s petition for review. In its decision reversing the court of appeals, the supreme court stated:
In the case now before us, there was no contemporaneous writing by Tabor reserving his right to appeal. Hence, Rule 24.3(b) was not strictly followed, and the Court of Appeals obtained no jurisdiction of the matter. Without jurisdiction, the Court of Appeals had no authority to remand the case to the trial court to settle the record. Moreover, the subsequent order by the trial court with the attached signed plea statement by Tabor entered after remand cannot breathe life into a moribund appeal where no jurisdiction originally vested.
326 Ark. at 55, 930 S.W.2d at 322.
We must affirm as to Mangrum’s first argument because there has been no compliance with Rule 24.3(b). Mangrum entered an unconditional guilty plea on March 9, 1999, that the trial court refused to set aside. After hearing the testimony presented at the hearing on Mangrum’s motion to set aside his plea, the court made the following ruling:
Motion to withdraw plea is denied. The Court’s of the opinion'and belief from the record and the testimony that Mr. Mangrum fully understood the — the — act of entering a plea of guilty. That he fully comprehended what he was doing and that from his testimony here today that — that he — he obtained other counsel during that thirty day interval because he thought he could reverse what he had done. And I’m not gonna allow it. It’s clear that in his questions to the Court and — his responses to the Court, rather — he knew and understood what he was doing at the time and believed it to be in his best interest and that it was voluntarily made.
I don’t care, Mr. Holifield. In fact, I’ve had lawyers reserve a right after an adverse ruling on a suppression motion to appeal on that issue. That’s — that’s perfectly permissible whether you realize it or not. And in view of the assertion you make that there’s new law, I will go back and allow you permission to appeal, if you choose to do so, the adverse ruling that this Court made [at] the suppression hearing. So I’m gonna permit that. But I’m not going to allow what I find to be and believe to be a perfectly knowing and voluntary entry of a guilty plea. There’s no doubt in this Court’s mind that this is just an effort to play for more time. That it — it’s a — a — lawyer swapping tricks and I’m not gonna bite.
After refusing to set aside Mangrum’s March 9 unconditional plea of guilty, the trial court had no authority to approve a condi tional plea arrangement under Rule 24.3(b). There is no language in Rule 24.3(b) that could be construed to mean that a trial court can accept an unconditional plea of guilty that it refuses to set aside, and then approve an appeal from that plea as if it was conditional.
Furthermore, the attempt to preserve an appeal under Rule 24.3(b) was also ineffective because, although the trial court’s order provides that “the guilty plea entered herein, shall be deemed conditional pursuant to Arkansas Rules of Criminal Procedure 24.3,” the record contains no writing by which Mangrum reserved the right to appeal under that rule.
That brings us to Mangrum’s second argument, that the trial court abused its discretion in refusing to allow him to withdraw his guilty plea. Arkansas Rule of Criminal Procedure 26.1(a) provides:
A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right before it has been accepted by the court. A defendant may not withdraw his or her plea of guilty or nolo contendere as a matter of right after it has been accepted by the court; however, before entry of judgment, the court in its discretion may allow the defendant to withdraw his or her plea to correct a manifest' injustice if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his or her motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea. A plea of guilty or nolo contendere may not be withdrawn under this rule after entry of judgment.
Subsection (b)(i) states that, if the defendant proves to the satisfaction of the court that he was denied effective assistance of counsel, withdrawal of a plea of guilty shall be deemed to be necessary to correct a manifest injustice. In his motion to withdraw his plea Mangrum alleged that:
At the time of the entry of the unconditional plea of guilty, the Defendant and Defendant’s attorney were in substantial conflict as to the procedures to be followed in this case. Such conflict led to a breakdown in the attorney/client relationship between the Defendant and Defendant’s attorney to the point that the Attorney and Defendant both requested that the Attorney be relieved as attorney of record in this matter.
The Defendant believes that because of the conflict between the Defendant and Defendant’s then attorney, ... a manifest injustice would result in Defendant’s not being allowed to withdraw his guilty plea.
Both Mangrum and his previous attorney testified at the withdrawal hearing that there was a conflict between them: Mangrum wanted a jury trial, but defense counsel thought he should plead guilty. Mangrum admitted that he had told the court when he entered the plea that he had no complaints about his attorney. However, at the hearing, he testified that he did not really understand what was going on, it was all happening too fast for him, he felt he was being railroaded, and he did not remember being told that by entering the guilty plea he waived any right to challenge the validity of the search warrant on appeal.
At the withdrawal hearing, counsel acknowledged the conflict between them and admitted that he was not prepared to try the case on March 9, 1999, the date set for trial. However, he testified that he discussed Mangrum’s options, and their consequences, with him many times. He thought Mangrum understood the words, but that Mangrum was under a lot of stress because, in addition to the criminal charges, he had also recently lost a brother, and counsel thought Mangrum was incapable of really appreciating the seriousness of the charges and the consequences of his options. However, counsel admitted that he did not voice his concerns to either the prosecution or the court.
On appeal, Mangrum contends that there has been a manifest injustice, that he had ineffective assistance of counsel in entering his plea, and that he entered his plea without knowledge of the charges and sentence ranges.
Where a factual basis exists for the plea and the defendant initially admits that the plea is voluntary, the defendant faces an “uphill climb” to overcome the consequences of the plea. Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973); Hall v. State, 51 Ark. App. 1, 906 S.W.2d 692 (1995). Pleas of guilty are designed to avoid the necessity of trial, with advantages both to the State and to the defendant. A plea of guilty is not to be lightly disclaimed days later, and the trial judge was not required to accept appellant’s repudiation of his earlier statements regarding the voluntariness of his pleas. Hall, and Stone, supra. See also Pettigrew v. State, 262 Ark. 359, 556 S.W.2d 880 (1977).
When Mangrum and his counsel returned from a brief recess, during the trial on March 9, the following exchange occurred:
THE COURT: All right, Mr. Mangrum, your attorney informs me that you wish to change your plea at this time. Is that correct, sir.
The Defendant: Yes, sir.
The COURT: Now, do you understand what you’re charged with? You’re charged with manufacturing a controlled — Schedule Two controlled substance. Do you understand that?
The Defendant: Yes, sir.
THE COURT: How do you plead to that charge?
The Defendant: Guilty.
The COURT: Are you pleading guilty because in truth and fact you are guilty?
The Defendant: Yes, sir.
The COURT: Has anyone made any threat or promise to you to cause you to plead guilty to this charge?
The Defendant: No, sir.
The COURT: And are you pleading guilty to the Court without recommendation of the state?
The Defendant: Yes, sir.
THE COURT: Unconditionally?
The Defendant: Yes, sir.
The COURT: Have you discussed your case, your defenses and your constitutional rights with ... your attorney?
The Defendant: Yes, sir.
TtíE COURT: Are you satisfied with his service and advice?
The Defendant: Yes, sir.
The COURT: Do you have any complaint or criticism or anything at all that you want to make known to the Court?
The Defendant: No, sir.
The COURT: And are you pleading guilty totally and completely of your own free will?
The Defendant: Yes, sir.
The COURT: All right, the Court finds that you know and understand what you’re doing, [and] that your plea is voluntarily and knowingly made and will be accepted.
From our review, we find no abuse of discretion in the trial judge’s decision that the withdrawal of Mangrum’s plea was not necessary to correct a manifest injustice.
Affirmed.
Robbins, C.J., and Crabtree, J., agree. | [
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James R. Cooper, Judge.
Bill Albert Baskette was insured under a policy issued by the appellee, Union Life Insurance Company, which provided triple indemnity coverage for any accidental death which occurred from the use of a pleasure car, subject to certain exclusions set forth in the policy. The appellant, Anise Lee Baskette, wife of the insured, was the named beneficiary under the policy.
On the date of the accident, the insured had removed the bed from the frame of his pickup truck to allow easier cleanup of the rust which had accumulated on the truck’s frame. While the insured was in the process of cleaning the rust off, the truck suddenly rolled back and pinned the insured between the chassis and the truck bed. The insured suffered serious injuries which ultimately caused his death. The appellee admitted the policy was in effect and paid the appellant $20,000, less the amount of a policy loan, but denied coverage under the triple indemnity clause because, inter alia, the vehicle which crushed the insured was not a covered vehicle under the policy terms. As a result of the denial of coverage, the appellant filed this action to recover the additional $10,000, plus the statutory penalty and attorney’s fee.
Both the appellant and the appellee filed motions for summary judgment, alleging that no genuine issues of fact existed. The trial court granted the appellee’s motion, finding that the exclusionary language of the policy was unambiguous and applicable to the facts presented. On appeal, the appellant argues that the trial court erred because the language of the policy is ambiguous and should be construed against the appellee.
The policy provision at issue provides:
ADDITIONAL ACCIDENTAL DEATH BENEFIT. In any case where the General Accidental Death Benefit is payable under the provisions of Benefit I, above, and such death is, (a) in consequence of being struck, rundown, or runover by an automobile, or (b) a proximate result of operating, driving, riding in or on, demonstrating, adjusting an automobile, or (c) proximately caused by the burning or explosion of an automobile (the automobile ... being restricted to ... the pleasure car type excluding ambulances, trucks, police or fire department vehicles and except that no benefits provided by this Benefit II will be paid if the accident occurs while the Insured in engaged in any race or speed contest, or while performing the duties of a “mechanic or garage employee” in repairing, overhauling, or testing an automobile). Or if any such injury was received while riding as a fare-paying passenger on a regular licensed public conveyance operated by a common carrier for the regular transportation of passengers, such as train, airplane, bus, streetcar, or taxicab, the Company, subject to the General Provisions and Limitations contained in this rider, will pay the beneficiary the Amount of Insurance of the Policy IN ADDITION TO THE AMOUNT PAYABLE UNDER BENEFIT I.
Under Arkansas law, the intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language. Farm Bureau Mutual Ins. Co. v. Milburn, 269 Ark. 384, 601 S.W.2d 841 (1980). See also Foremost Ins. Co. v. Sheppard, 610 F.2d 551 (8th Cir. 1979). An insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. Geurin Contractors, Inc. v. Bituminous Casualty Corp., 5 Ark. App. 229, 636 S.W.2d 638 (1982); Travelers Ins. Co. v. Cole, 3 Ark. App. 183, 623 S.W.2d 848 (1981). If, however, the terms of an insurance contract are not ambiguous, it is unnecessary to resort to the rules of construction and the policy will not be interpreted to bind the insurer to a risk which it plainly excluded and for which it was not paid. Southern Farm Bureau Casualty Ins. Co. v. Williams, 260 Ark. 659, 543 S.W.2d 467 (1976). When the policy language is clear and unambiguous, the court should decide the issue as a matter of law. National Life and Accident Ins. Co. v. Abbott, 248 Ark. 1115, 455 S.W.2d 120 (1970).
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. Henricks 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 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 interrogatories, 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).
The appellant argues that because the truck was operated by the insured for personal pleasure only that the exclusionary language is inapplicable. In National Life and Accident Ins. Co. v. Abbott, supra, the Arkansas Supreme Court stated that “ ‘use’ does not govern whether the vehicle . . . was included in the coverage; rather, liability is determined by the ‘type’ of vehicle involved. See Horn v. Imperial Casualty and Indemnity Co., 5 Ark. App. 277, 636 S.W.2d 302 (1982).
In the case at bar, we are not asked to determine whether a truck comes within the definition of a “private passenger automobile”. See Coleman v. MFA Mutual Ins. Co., 3 Ark. App. 7, 621 S.W.2d 872 (1981). The policy language presented clearly excludes trucks from coverage and is unambiguous. The trial court correctly granted the appellee’s motion for summary judgment.
Affirmed.
Glaze, J., not participating. | [
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John Mauzy Pittman, Chief Judge.
This is an appeal from the dismissal of a tort action on the grounds that it was barred by the statute of limitations. Appellant argues that the trial court erred in dismissing her claims sua sponte and in determining that the statute of limitations had expired. We affirm.
The appellant was injured in a multi-vehicle accident on June 9, 2000, that was causfcd by appellee Howell’s negligent burning of field stubble, which created a great deal of smoke and obscured the roadway. Appellant was represented by counsel at all times except for a three-day period after she discharged her second attorney and before she retained her third attorney in February 2002. During this three-day period, appellant settled her claim against Howell, executing a release and obtaining $46,763.88 from his insurance carrier, Southern Farm Bureau. More than a year after executing the release, appellant filed a tort claim against all the alleged tortfeasors except Howell. Although appellant had been represented by counsel for more than a year since executing the release, Howell was not sued along with the others, and appellant did not allege that the release she executed was invalid. The three-year limitation period for suit against Howell expired on June 9, 2003.
More than one year afterward, appellant filed suit against Howell for negligence, and against the insurers and their agents alleging that the release was procured by fraud because an agent obtained appellant’s consent to the release when she was under the influence of medication, and because the agent “advised her of her legal right and expected recovery from other potential claimants in her claim.” Appellees raised the statute of limitations as a defense. After requesting briefs, the trial judge ruled that the expiration of the statute of limitations mooted her claim of fraud and dismissed.
We do not agree that the trial court erred in dismissing appellant’s claims in the absence of a formal motion to dismiss by appellees. Appellees raised the defense of statute of limitations, which would present an absolute bar to appellant’s claims, and because the complaint, on its face, was filed outside the statute of limitations, the trial court at a pretrial hearing requested briefs on that issue. After considering the briefs, the trial court found that the claims were barred and dismissed them. This situation is factually indistinguishable from that presented in Generation Products Co. v. Van Hoye, 24 Ark. App. 81, 748 S.W.2d 353 (1988), where we held it was within the trial court’s authority to dismiss a complaint on its own motion on the basis of affirmative defenses after his review of the pleadings and in-chambers statements of counsel showed that those defenses barred the complaint.
When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense, as was done in the present case; moreover, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003). Fraudulent concealment suspends the running of the statute of limitations, but the suspension remains in effect only until the party having the cause of action discovers the fraud or should have discovered it by the exercise of due diligence. Id.; see Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000); Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999). In order to toll the statute of limitations, a plaintiff is required to present evidence creating a fact question related to some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff s cause of action concealed, or perpetrated in a way that it conceals itself. Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001). Furthermore, if the plaintiff, by the exercise of reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it. Curry v. Thornsberry, supra.
Appellant argues that the release was fraudulently procured, thus tolling the statute of limitations. As noted above, the appellant’s argument that the release was procured by fraud and was thus invalid was premised on the factual assertions that an agent of appellee insurers obtained appellant’s consent to the release when she was under the influence of medication, and that this agent “advised her of her legal right and expected recovery from other potential claimants in her claim.” Clearly, appellant failed to allege facts that would avoid the statute of limitations defense raised by appellee.
Even assuming appellant’s factual allegations to be true, she could not justifiably have relied upon the agent’s alleged misrepresentations to her detriment because, within three days of her execution of the release, she was again represented by counsel who were aware of the release at the time suit was filed, as evinced by their failure to sue Howell along with the other alleged tortfeasors. Appellant could have brought this suit against Howell within the time period allowed by the statute of limitations simply by arguing that the release instrument should be cancelled as fraudulently obtained, or by countering a defense of release with the counter-defense of invalidity by virtue of fraudulent inducement. It is only concealed fraud that suspends the running of the statute of limitations, and the suspension remains in effect only until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002). Appellant, represented by counsel, should by reasonable diligence have discovered any of the assertedly fraudulent statements of law or likely outcomes within the period of more than one year that elapsed between appellant’s execution of the release and the timely commencement of her action against the other tortfeasors.
Likewise, it is clear that no independent action for the tort of fraud or deceit against the insurers and agents would lie, even if filed within three years of the alleged fraudulent statements. The essential elements of deceit are: (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. Aon Risk Services v. Mickles, 96 Ark. App. 369, 242 S.W.3d 286 (2006). Even assuming that appellee’s agent misrepresented the law to appellant, this would not constitute a false representation of a material fact:
As a general rule, fraud cannot be predicated upon misrepresentations as to matters of law, nor upon opinions on questions of law based on facts known to both parties alike, nor upon representations as to what the law will not permit to be done, especially when the representations are made by the avowed agent of the adverse interest. Reasons given for this rule are that every one is presumed to know the law, both civil and criminal, and is bound to take notice of it, and hence has no right to rely on such representations or opinions, and will not be permitted to say that he was misled by them.
Adkins v. Hoskins, 176 Ark. 565, 575, 3 S.W.2d 322, 326 (1928) (citation omitted).
The only other fraudulent statements alleged to have been made by the agent consisted of apprising appellant of her “expected recovery from other potential claimants in her claim.” However, appellant’s “expected recovery” is a future event, and fraud cannot be predicated on a prediction of a future event:
In the context of negotiating a contract, a misrepresentation sufficient to form the basis of a deceit action may be made by one prospective party to another and must relate to a past event, or a present circumstance, but not a future event. An assertion limited to a future event may be a promise that imposes liability for breach of contract or a mere prediction that does not, but it is not a misrepresentation of that event.
South County, Inc. v. First Western Loan Co., 315 Ark. 722, 727-28, 871 S.W.2d 325, 327 (1994).
Finally, as we stated in our discussion of fraud or concealment as a defense to formation of the release contract, appellant had more than ample time and opportunity after she should by reasonable diligence have discovered the asserted fraud to bring suit against Howell and to counter the defense of release with the present allegation that it had been fraudulently obtained. Consequently, appellant cannot show that she was damaged by that fraud, and false representations not resulting in injury are not actionable. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002).
Affirmed.
Gladwin and Robbins, JJ., agree. | [
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James R. Cooper, Judge.
The appellee, Dora Louise Pope, was granted a retail liquor permit by the Alcoholic Beverage Control Board. From that decision, comes this appeal.
On August 3, 1981, Ms. Pope applied to the appellee, the Alcoholic Beverage Control Division of the Arkansas Department of Finance and Administration (hereinafter referred to as the ABC), for a liquor permit. This was Ms. Pope’s fourth application since 1976 for her establishment known as The Depot, which already had a retail beer permit. The Depot is located in Texarkana, Arkansas. In accordance with the ABC regulations, a newspaper published a public advertisement notifying all interested parties that Ms. Pope had filed an application for a liquor permit. The appellant, who operates an off-premises beer and liquor outlet near Ms. Pope’s proposed establishment, wrote the Board opposing the issuance of her permit.
On October 22,1981, the Director of the ABC denied Ms. Pope’s application for a permit, but the ABC Board subsequently reversed and granted the permit on the condition that Ms. Pope remove the seafood business located in the proposed establishment. The appellant filed a petition for judicial review in the Miller County Circuit Court. The decision of the ABC Board was affirmed and the appellant filed his notice of appeal to this Court, arguing that there is no substantial evidence to support the granting of a retail liquor permit to Ms. Pope.
On appeal of administrative decisions, this Court must review the entire record and determine whether there is substantial evidence to support the administrative findings. Citizens Bank v. Arkansas State Banking Board, 271 Ark. 703, 610 S. W.2d 257 (1981). See also ABC Board of the State of Arkansas v. Blevins, 5 Ark. App. 107, 633 S.W.2d 380 (1982). In Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983), the Arkansas Supreme Court stated:
An administrative agency, like a jury, is free to believe or disbelieve any witness. Meyer v. Seismograph Service Corp., 209 Ark. 168, 189 S.W.2d 794 (1945). We give the evidence its strongest probative force to support the administrative decision. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W.2d 689 (1972). To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded men could not reach its conclusion. Ibid. Finally, the question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Campbell v. Athletic Mining & Smelting Co., 215 Ark. 773, 223 S.W.2d 499 (1949).
In the case at bar, Rick Michaels, a market analyst, testified that the intersection located near the establishment for which Ms. Pope sought a liquor license was “probably the busiest intersection north of Houston, Texas” and submitted “traffic counts” to substantiate his claim. Ms. Pope’s establishment is located on State Line Avenue which serves as the borderline between Arkansas and Texas. Several highways intersect this avenue in the vicinity of Ms. Pope’s building. Mr. Michaels further testified that there were 37 permits for the sale of liquor in Miller County and that their average income was $171,000.00 per year, which is $60,000.00 per year more than the average income for other such businesses in the State of Arkansas. On cross-examination, the appellant, whose establishment is closest in proximity to the proposed location of Ms. Pope’s business, testified that the income from his store was $650,000.00 to $750,000.00 per year, or at least four times the Miller County average. Although the overall population of Texarkana, Arkansas, has slightly declined, Ms. Pope testified that the growth of Texarkana was in the direction of the interstate, which is toward the location of her business. Ms. Pope testified that the majority of the liquor stores in Texarkana were located downtown and that most of her customers preferred not to drive downtown. Ms. Pope stated that many of her customers requested, that she apply for a liquor permit so that she could sell both liquor and beer and keep them from having to make two stops. From a review of the evidence, we cannot find that the ABC Board’s decision is arbitrary or in total disregard of the facts. White County Guaranty Savings and Loan Ass’n v. Farmers and Merchants Bank, 262 Ark. 893, 562 S.W.2d 582 (1978). It is in the discretion of the ABC Board to determine whether the public convenience and advantage will be promoted in issuing a liquor permit, Ark. Stat. Ann. § 48-301 (Repl. 1977), and we find substantial evidence to support its decision to grant the liquor license to Ms. Pope.
Affirmed. | [
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Melvin Mayfield, Judge.
This is an appeal by the Second Injury Fund from a decision by the Workers’ Compensation Commission.
The claimant was employed by appellee Munro-Clear Lake Footwear when she sustained a compensable injury to her lower back in October of 1979. The administrative law judge found she sustained an anatomical impairment of 5% to the body as a whole as a result of that injury. On August 4, 1983, the claimant sustained a compensable injury to her right shoulder, arm, and hand while working for the same employer. The law judge found she sustained an anatomical impairment of 5% to the body as a whole as a result of this second injury. Finding the claimant’s overall disability as a result of both injuries to be 30%, the law judge held the Fund liable for 20% of that 30% disability. The full Commission affirmed.
On appeal to this court, the Fund argues that it has no liability to the claimant because (1) the claimant did not have a loss-of-earning disability or impairment at the time she sustained her second injury, and (2) both injuries were sustained while in the employment of the same employer.
The law involved in the first point has been resolved in keeping with the Fund’s contention in the cases of Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985); Second Injury Fund v. Girtman, 16 Ark. App. 155, 698 S.W.2d 514 (1985); and Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985). Those cases were decided after the Commission’s decision in the present case. The Commission in this case took a different view of the meaning of the statute, Ark. Stat. Ann. § 81-1313(i) (Supp. 1985), and held that Second Injury Fund liability did not require a preexisting loss-of-earning capacity at the time of the second injury. Therefore, the Commission’s factual findings in the instant case are not specific enough to be reconciled with the law of the Rogers, Girtman, and Coleman cases. However, our view on the second point renders the first point moot.
We agree with the Fund’s second contention as set out above and are today issuing an opinion in another case holding that the Fund is not liable where all of a claimant’s disability or impairment results from injuries occurring while in the employment of the same employer. In the other case, Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 704 S.W.2d 635 (1986), this point is fully discussed; however, a portion of the oral argument made by the employer’s able counsel in this case deserves further comment.
Our holding on this second point results from our interpretation of the language used in Ark. Stat. Ann. § 81-1313 (i), supra. The first sentence of that section very plainly states that the Second Injury Fund is established to insure that an employer employing a handicapped worker will not be liable for a greater disability or impairment than actually occurred while the worker was in his employment. It is argued that the statute not only serves to encourage employers to hire handicapped workers but also to encourage employers to retain or rehire employees who are injured while in their employment. It is said it would frustrate the underlying intent of the statute to create an artificial distinction between retaining an injured worker as compared to hiring a new one that has been injured or is handicapped. The problem with this argument is that the statute, in our opinion, simply does not apply where both injuries occur while in the employment of the same employer.
Not only does the language of the statute prevent the interpretation urged by the employer in this case, but there are reasons that negate against stretching the language to make it convey that meaning. As our opinion in Second Injury Fund v. Riceland Foods, Inc., supra, points out, the Arkansas Supreme Court said in Arkansas Workmen’s Compensation Commission v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950), that the solvency of the Second Injury Fund requires that its provisions be strictly complied with. In that regard, the last sentence of Ark. Stat. Ann. § 81-1348(a)(Supp. 1985), provides that if after July 1,1983,the balance in the Fund becomes insufficient to meet its obligations, payments shall be suspended until the Fund is able to meet those obligations and, in no event, shall there be a reverter of responsibility to the employer or carrier. An article by W. W. Bassett, Jr., in the July 1983 issue of The Arkansas Lawyer had this to say about this statutory provision:
[T]he Legislature has said . . . that in the event of fund insolvency, any payment due a claimant will be “suspended until such time as The Second Injury Fund is capable of meeting its obligations.” Let’s pray that doesn’t happen but I, for one, fear it. It doesn’t take much intelligence to comprehend that if the legislature fails to adequately finance The Second Injury Fund, or if through decisions of the administrative process reinforced by the courts, The Second Injury Fund is substantially invaded, that serious problems for injured workers in Arkansas lie ahead.
Bassett, Second Injury Law, Old and New, The Arkansas Lawyer, July 1983, at 122, 124.
Nor do we think the statute should be stretched in an attempt to encourage employers to retain employees injured while in their employment. The legislature expressly stated that the purpose of the statute is to insure that an employer employing a handicapped worker will not be required to pay for a greater amount of disability or impairment than that which the worker sustains while in the employment of that employer. Stretching the statute to require the Second Injury Fund to assume liability for part of the disability or impairment sustained by a handicapped worker while in an employer’s employment relieves that employer of part of his statutory liability and grants him a windfall or subsidy. It was not, in our opinion, the legislature’s intent to give employers that type of encouragement to hire or retain handicapped or injured workers.
The Commission’s finding of liability against the Second Injury Fund is reversed, and this matter is remanded for the Commission to assess the claimant’s disability against the employer after giving it credit for any portion of that disability it has already paid.
Reversed and remanded.
Glaze and Cloninger, JJ., dissent. | [
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Tom Glaze, Judge.
Appellant, then nineteen years old, was injured on August 8,1981, in an automobile accident in California. She qualified for medical and hospital benefits under a group health insurance policy her mother had with appellee through the Arkansas Public School Employees Committee. On December 14,1981, appellant, represented by her attorney-father, settled a tort claim for $39,000.00 against one of the tortfeasors. Appellee filed suit for reimbursement and, based upon a jury verdict, was awarded a judgment of $3,234.00. For reversal, appellant contends that the trial court erred in (1) denying her motions to dismiss and for a directed verdict, (2) allowing testimony regarding the sum of the settlement, (3) excluding photographs taken of appellant following the accident, and (4) allowing into evidence one of appellee’s exhibits. We affirm.
On November 23,1981, appellee made its first payment on behalf of the appellant under the policy. On January 16, 1982, appellee sent an accident questionnaire to appellant’s mother. Appellant’s father testified that he probably saw the questionnaire and assisted his wife in preparing it. The questionnaire, signed by appellant’s mother, was returned to appellee. In response to a question whether she intended to make a claim against the responsible party or his insurance company for damages arising from the injury, appellant’s mother answered “no.” There was also a question, left unanswered, as to whether an attorney had been retained. Appellee contended that these responses were misleading, and were intended to deter its discovery of the settlement.
In May 1982, appellee learned about the settlement, and in July 1982, it contacted appellant’s father, requesting reimbursement. His response was that there indeed had been a settlement with one of the tortfeasors but that there was still a claim that could be made against a second tortfeasor. He suggested that appellee pursue that claim. Appellee declined, and in March 1983, filed its complaint.
In its complaint, appellee contended that, under the insurance contract, it was entitled to reimbursement under the following provision:
In the event any benefits or services of any kind are furnished to a Member or payment made or credit ex tended to or on behalf of any Member for a physical condition or injury caused by a third party or for which a third party may be liable, the Plan shall be subrogated and shall succeed to such Member’s rights of recovery against any such third party to the full extent of the value of any such benefits or services furnished or payments made or credits extended. The Member shall, at the Plan’s request, take such action, furnish such information and assistance, and execute such documents as the Plan may require to facilitate enforcement of its rights hereunder. In the event of the Member’s failure to comply with such request, the plan shall be entitled to withhold benefits, services, payments, or credits due under this contract. The Member shall do nothing after acceptance of benefits hereunder to prejudice the subrogation rights of the Plan.
Appellee also contended that, under Arkansas law, it had subrogation rights.
In her motions to dismiss and for a directed verdict, appellant argued that, because she was not a party to the contract between her mother and appellee, she was not bound by its terms. We disagree.
It is undisputed that, under the provisions of the policy, appellant was a “member” who was entitled to and, indeed, accepted benefits under the policy which appellee continued to pay until June of 1982. As a member entitled to benefits, appellant would have an action against appellee if it refused to pay her claims, and in fact, appellant did counterclaim against appellee for certain unpaid claims she had made. Appellant’s position, however, is that even though she may be bound by some provisions of the contract, for example, the requirement to submit proof of loss, she has no reciprocal duty to comply with the other terms of the contract because of lack of privity of contract. Appellant cites no authority for the proposition she urges, and from our independent research, we know of none.
We find the factual issue here is controlled by the rule of law enunciated in Williams Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S. W.2d 500 (1958), and reiterated in Ray v. Pearce, 264 Ark. 264, 571 S.W.2d 419 (1978). In these cases, the Arkansas Supreme Court held that a party cannot accept benefits under a contract, and at the same time, avoid his obligations under such agreement, even in spite of a breach of contract by the other party. Although appellant’s attorney correctly points out that Williams and Ray involve disputes between the contracting parties, we know of no valid reason why the principle should not apply here. Appellant was entitled to the benefits paid by appellee pursuant to its contract with appellant’s mother, and upon payment of medical benefits on appellant’s behalf, appellee was entitled under the contract provisions to recoup those payments. While appellant had the option to decline any benefits as a member under the contract, she simply chose not to do so.
Appellant’s last three points address the trial court’s actions in admitting or excluding certain evidence. Appellant contends the trial judge first erred in allowing appellee to present testimony regarding the amount of appellant’s settlement with the third party tortfeasor. Once having committed that error, however, she argues the judge further erred when he excluded photographs she offered in an attempt to show the extent of her injuries.
While we tend to agree with appellant that the settlement amount had no relevance concerning appellee’s right to reimbursement under the insurance contract, the critical question is whether there was prejudicial error. As the court held in its supplemental opinion in Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 473-C, 688 S.W.2d 275, 276 (1985), error is no longer presumed to be prejudicial, and based upon appellant’s theory of the case and the evidence presented, we fail to see how she was prejudiced. To succeed in its action against appellant, appellee had to prove (1) that its insurance contract with appellant’s mother was also binding on appellant, (2) that appellee paid medical bills on behalf of appellant and (3) that appellant settled her claim against the third-party tortfeasor for injuries for which she had received medical payments from appellee. Appellant has never denied that she had settled her claim against the third-party tortfeasor and that claim involved the same injuries for which appellee paid medical benefits on her behalf. In fact, appellant stipulated she settled her claim in an amount in excess of the sum the appellee sought to recover in this cause. In addition, the amount of medical benefits paid by appellee on appellant’s behalf — $3,234.05—was undisputed. Thus, appellant’s case at trial was premised on the sole legal issue that appellee had no standing to sue appellant because she was not a party to the insurance contract entered into between her mother and the appellee. Of course, we already have rejected appellant’s theory, holding she indeed was liable to appellee once she accepted benefits as a member under the insurance contract. Given the essential facts to which the parties either stipulated or left undisputed, and what we believe was a correct statement of the law, the jury was duty bound to return a verdict, as it did, in the amount of $3,234.05. Thus, regardless of the trial court’s ruling concerning appellant’s settlement amount and her photographs, we believe the record clearly demonstrates she was not prejudiced on either the issues regarding liability or damages.
Finally, appellant urges, again on relevancy grounds, the trial court erred in admitting into evidence the accident questionnaire which had been completed and executed by appellant’s mother. She also claims that even if the questionnaire was relevant, the trial court should have excluded it under Rule 403 of the Uniform Rules of Evidence. Once again, appellant’s argument is premised upon her earlier contention that appellee had no right of recovery against appellant. In rejecting appellant’s argument that she had no obligations under the insurance contract even though she accepted benefits under it, we cannot agree that her mother’s actions concerning that contract had no relevancy or were in any way confusing to the jury. We affirm.
Affirmed.
Cracraft, C.J., and Corbin, J., agree. | [
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James R. Cooper, Judge.
The appellees Bryant and Ella Meadows, residents of Ohio, were injured when they were involved in an automobile accident with an Arkansas driver in Clay County, Arkansas. The Meadowses were employed by the appellee Bendix Corporation, an Indiana corporation, and they collected worker’s compensation benefits from Bendix Corporation pursuant to Indiana law. The Meadowses hired the appellant, attorney Richard Orintas, to pursue a third-party liability claim against the estate of the Arkansas driver for a 35% contingency fee. Determining that the estate of the Arkansas driver had no substantial assets, except for an automobile liability policy, the appellant and the attorney for Bendix Corporation agreed to accept the $50,000 automobile policy limit in settlement of their claims. A dispute then arose between the parties as to how the $50,000 settlement proceeds would be distributed. The appellees contended that, pursuant to Ark. Stat. Ann. Section 81 - 1340 (Repl. 1976), Bendix Corporation was entitled to two-thirds of the $50,000 settlement ($33,334), the Meadowses were entitled to one-third ($16,666) ,and appellant should receive a fee of 3 5% of the $ 16,666 settlement received by the Meadowses. The appellant contended that he was entitled to a fee equal to 35% of the entire $50,000 settlement and that the Indiana Workmen’s Compensation Law should be applied to determine how the settlement should be divided. The trial court concluded that Arkansas Workers’ Compensation law applied to the distribution of the settlement proceeds, awarded two-thirds of the settlement proceeds to Bendix Corporation and one-third to the Meadowses, and determined that the appellant was entitled to a fee of 35% of the $16,666 settlement received by the Meadowses.
For his appeal, the appellant argues three points for reversal: (1) the court erred in not applying Indiana law to the distribution of the settlement proceeds; (2) the court erred in not finding that, under Ark. Stat. Ann. Section 81-1340 (Repl. 1976), attorneys fees are included in costs of collection; and (3) the court erred in failing to find that the appellant is entitled to an attorney fee of 35% of the entire $50,000 settlement. We find no merit to the appellant’s alleged points of error and, therefore, affirm.
The appellant argues it was error for the trial court to apply Arkansas Workers’ Compensation law because the appellees made a binding election when they made and accepted payments pursuant to Indiana law, and further, there were no significant contacts with Arkansas which would permit Arkansas to apply its laws. In Wallis v. Mrs. Smith’s Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977), the court listed five factors to be considered in determining whether to apply Arkansas law or the law of the foreign state, emphasizing the forum’s governmental interest and the better rule of law. In its letter opinion, the trial court specified Arkansas’s contacts with this cause of action.
The accident took place in Arkansas, indeed the cause of action arose in Arkansas, and if any lawsuit was filed as a result of the accident, it would have been brought here. The third party tortfeasor was an Arkansas resident. Arkansas counsel was employed to resolve the tort claim.
We are not persuaded that the trial court erred in finding significant contacts with Arkansas to apply its laws. Furthermore, we do not agree that, by accepting Indiana Workmen’s Compensation benefits, the appellees made a binding election to accept the third-party settlément pursuant to Indiana law. McAvoy v. Texas Eastern Transmission Corp., 187 F. Supp. 46 (W.D. Ark. 1960), held that it is a settled principle of Arkansas law that the right of an injured employee to recover in tort is to be determined by the law of the state where the injury occurred and, further, the acceptance by an employee of payments under the Louisiana Workmen’s Compensation Statute did not amount to an election to have his right to maintain an action determined by Louisiana law.
The appellant further implies that the court must apply Indiana law because the Indiana Workmen’s Compensation Act provides the employer and employee are bound by the provisions of the Indiana Workmen’s Compensation Act when injury occurs in some other state. Ind. Code Ann. Sections 22-3-2-2,22-3-2-20 (Burns 1974 and Supp. 1985). We do not agree that we are bound by Indiana law. Carroll v. Lanza, 349 U.S. 408, 412 (1955), stated that “the Full Faith and Credit Clause does not require a State to substitute for its own statute, applicable to persons or events within it, the statute of another State reflecting a conflicting and opposed policy.”
In Carroll, a Missouri resident, employed in Missouri, was injured in Arkansas. The employee received benefits under the Missouri Compensation Act, which provided exclusive remedies for injuries received inside or outside Missouri under contracts made in Missouri, even as against the general contractor. The Arkansas Worker’s Compensation Act allowed a suit against the general contractor for common law damages. The employee sued the general contractor in Arkansas and obtained a judgment. The United States Supreme Court held the Arkansas judgment did not deny full faith credit to the Missouri law.
Next, the appellant argues that, although Indiana law should be applied to the division of the settlement proceeds, under Ark. Stat. Ann. Section 81-1340 (Repl. 1976), attorneys fees are included under reasonable costs of collection. Therefore, his 35% attorney fee should be deducted from the entire $50,000 settlement before the proceeds are divided between the parties. In Burt v. Hartford Accident & Indemnity Co., 252 Ark. 1236, 483 S.W.2d 218 (1972), the court refused to allow the employee’s attorney fee to be considered costs of collection under Ark. Stat. Ann. Section 81-1340. Citing Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S. W.2d 923 (1954), the court in Burt stated that, in the usual situation, the question of an allowance of fees to the employee’s attorney as part of the costs of collection would not likely arise, because the intervening carrier would either retain the employee’s counsel for a fee mutually agreed upon or the employer would employ another attorney of his own choice. Under these circumstances, the court would simply apportion the recovery, leaving each to pay his own attorney. 252 Ark. at 1240-1; Nickles, 223 Ark. at 900. Accord, St. Paul-Mercury Indemnity Co. v. Lanza, 131 F. Supp. 684 (W.D. Ark. 1955); Phillips v. Morton Frozen Foods, 313 F. Supp. 228 (E.D. Ark. 1970). In the case at bar, Bendix Corporation employed its own attorney to pursue the estate of the third-party tortfeasor, and in view of the circuit judge’s superior ability to evaluate the situation, we cannot say the trial court committed error in refusing to allow the appellant his attorney fees as costs of collection under Section 81-1340.
Finally, the appellant argues that the court erred in refusing to enforce his contingency fee contract with the Meadowses by awarding him 35% of the entire $50,000 settlement proceeds received by the appellees. The appellant’s contract with the Meadowses read in part, “The party of the first part [Bryant J. and Ella Meadows]. . . agrees to pay the party of the second part [the appellant] thirty-five percent (35%) of any and all sums received by compromise before suit is instituted.” The trial court interpreted this contract to mean the appellant was entitled to a fee of 35% of any settlement proceeds received by the Meadowses. The trial court reasoned that, if the appellant’s position were correct, he would be entitled to receive his clients’, the Meadowses, full recovery under the settlement with the third party tortfeasor, and his clients would still owe him $834.00. The trial court concluded that it would seem reasonable and logical that the Meadowses would receive one-third of the settlement, and that Bendix Corporation would receive two-thirds, after reasonable costs of collection are taken off the top, then both would pay their respective attorneys out of the proceeds. We believe the trial court correctly interpreted the contingency fee agreement between the appellant and the Meadowses.
On appeal, we cannot overturn the findings of the circuit judge sitting as the fact-finder unless we find them to be clearly erroneous or clearly against the preponderance of the evidence. 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). From our review, we conclude the court’s findings of fact were not clearly erroneous and its conclusions of law were correct. We therefore affirm.
Affirmed.
Cloninger, and Glaze, JJ., agree. | [
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