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Donald L. Corbin, Chief Judge.
The facts of this case are largely undisputed. Appellant commenced this action against the appellee to replevy a soft drink machine. Appellant had delivered the soft drink machine to Chet Bonar for use at his driving range. Appellant and Bonar executed a document, which recited that the arrangement by which the machine was placed at Bonar’s business was a “loan” of the machine. No security agreement or financing statement was executed or placed of record with regard to the machine. Bonar ran into financial difficulties, and the assets of his driving range were at some point seized and sold at public auction in execution on a judgment against him. Appellee purchased the soft drink machine from an individual who purchased it at the sale. After appellant discovered that appellee had possession of the machine, it commenced this action. The trial court ruled that the appellee was a bona fide purchaser for value without notice and that, as such, took title clear of any claim of the appellant. Appellant contends this ruling is an incorrect application of the law. We agree and reverse and remand.
Arkansas follows the elementary common law rule that one cannot convey a better title than that which he has; a corollary to the general common law rule is that a purchaser cannot acquire a title better than that of his vendor. In recognition of this principle, our supreme court ruled in Superior Iron Works v. McMillan, 235 Ark. 207, 357 S.W.2d 524 (1962) that one who purchases from a thief acquires no title as against the true owner absent exigent circumstances. See generally R. Boyer, Survey of the Law of Property Ch. 33 (3d ed. 1981).
The Uniform Commercial Code, codified at Ark, Code Ann. Sections 4-1-101 through 4-10-104 (1987), builds and expands upon the general common law rule. Ark. Code Ann. Section 4-2-403 (1987) provides in part as follows:
(1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value.
(4) The rights of other purchasers of goods and of lien creditors are governed by the chapters on secured transactions . . . , bulk transfers . . . , and documents of title
The replevied soft drink machine in this case is not the subject of a secured transaction or a bulk transfer, nor did it involve any document of title. Comment One to the above cited section of the Uniform Commercial Code states that the section is intended to continue “[t]he basic policy of our law allowing transfer of such title as the transferor has . . . .”
While we can agree with the trial court’s finding that the appellee was innocent and purchased the soft drink machine in good faith, Ark. Code Ann. Section 4-2-403 controls, and the appellant must prevail. See generally Adkins v. Damron, 324 S.W.2d 489 (Ky. Ct. App. 1959); Slaton v. Lamb, 260 Ala. 494, 71 So. 2d 289 (1954). The uncontroverted evidence below was that Bonar never obtained title to the soft drink machine, nor was there any intention that title should ever pass to him. It has long been held that the rightful owner of personal property seized pursuant to judicial process may maintain an action in replevin against the officer he finds in possession thereof. Willis v. Reinhardt, 52 Ark. 128, 12 S.W. 241 (1889). Because it is undisputed that Bonar and his successors in possession to the soft drink machine never acquired title superior to that of appellant, and in light of the principles noted above, the decision is reversed and remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
Cracraft and Cooper, JJ., agree. | [
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JOSEPHINE Linker Hart, Judge.
Appellant, Bryant Manuel Flores, was charged with capital murder in the death of three-year-old Victor Stephens. At a jury trial, he was convicted of second-degree murder and sentenced to twelve years’ imprisonment in the Arkansas Department of Correction. On appeal, he challenges the trial court’s decision to admit hearsay over his objection. We reverse and remand.
Prior to trial, the State filed a motion in limine seeking the court’s permission to introduce at trial hearsay from Dr. Karl F. Wagenhauser, who treated Victor when he was brought to the emergency room at St. Joseph’s Hospital in Hot Springs by his mother, Karen Stephens. Wagenhauser’s testimony, in the form it was admitted at trial, was that when he spoke with Stephens at the hospital, she told him that “both she and [appellant] had struck Victor and that [appellant] had thrown Victor up against the wall.”
Prior to trial and after hearing evidence regarding the admissibility of Wagenhauser’s testimony, the court issued a letter opinion addressing the State’s motion in limine. Citing Rule 803(4) of the Arkansas Rules of Evidence, the court found that “the statement told by the doctor that there [were] multiple traumas to the child and that the child’s body had been thrown against a hard surface” was “reasonably pertinent to the treatment and diagnosis of the child at the time.”
On appeal, appellant challenges the admissibility of the hearsay under the exception to the hearsay rule provided in Rule 803(4). In response, the State argues (1) that appellant’s argument was not preserved for appellate review; (2) that the evidence was properly admitted under Rule 803(4); (3) that the evidence was admissible because the case concerns medical testimony regarding child abuse; (4) that, though not argued at trial, the evidence could also have been admitted under Rule 803(24) because the evidence had “equivalent circumstantial guarantees of trustworthiness”; and (5) that, though not argued at trial, the evidence could also have been admitted into evidence as an excited utterance pursuant to Rule 803(2). We examine the State’s arguments in that order.
Citing Huls v. State, 27 Ark. App. 242, 770 S.W.2d 160 (1989), the State argues that appellant’s argument was not preserved for appellate review. In Hub, this court concluded that a defendant’s argument challenging the admissibility of hearsay testimony under Rule 803(4) was not preserved for appellate review because the defendant’s argument to the trial court in his motion in limine was vague, and appellant failed to specifically argue that the hearsay was inadmissible because it identified him as the perpetrator of the crime. In the case at bar, however, the court’s letter opinion specifically recognized that what was at issue was whether the “statement was provided not to merely identify the perpetrators but to provide the doctor with information as to the cause and extent of his injuries.” Because the issue was squarely presented to the court, we conclude that Huh is inapposite and find that the issue was properly preserved for appellate review.
Next, the State argues that the evidence was admissible under Rule 803(4), which provides that hearsay is not excluded if it consists of “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” The State urges that the hearsay was admissible because Stephens believed that this information was crucial to her son’s treatment and because Wagenhauser testified that the information confirmed his diagnosis.
The Arkansas Supreme Court has previously noted that
where an injured party has described how his injury occurred, the basis for this hearsay exception is his strong motivation to be truthful in giving statements for diagnosis and treatment. Moreover, it has been suggested that, under these circumstances, a fact reliable enough to serve as the basis for diagnosis is also reliable enough to escape hearsay proscription. Thus, the trustworthiness of statements made to a physician and offered at trial under the exception may be tested by determining whether the information provided is of a type reasonably relied upon by a physician in diagnosis and treatment, and by determining whether the patient’s motive is consistent with this rule’s purpose.
Benson v. Shuler Drilling Co., Inc., 316 Ark. 101, 107-08, 871 S.W.2d 552, 555-56 (1994)(citations omitted). We have likewise observed that the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment, and the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis. Huls, 27 Ark. App. at 245-46, 770 S.W.2d at 162.
Because Stephens’s statement to Wagenhauser was not sufficiently trustworthy, we cannot conclude that the court properly admitted the hearsay. The hearsay originated not from the victim but rather from appellant’s codefendant, who in effect blamed appellant for Victor’s fatal injury, even though she admitted to Wagenhauser some culpability. In support of our conclusion that the hearsay was not trustworthy, we note that under Rule 804(b)(3) of the Arkansas Rules of Evidence, statements against interest are not excluded by the hearsay rule if the declarant is unavailable as a witness. Specifically excluded from this exception, however, is “[a] statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused. ...” That type of statement is precisely what is presented here. Given that such statements are specifically excluded from one exception to the hearsay rule, we cannot conclude that such statements are trustworthy enough to be considered admissible under Rule 803(4).
Moreover, we do not consider the hearsay, as required by Rule 803(4), “reasonably pertinent to diagnosis or treatment.” As Wagenhauser testified at the hearing on the motion in limine, Stephens’s statement did not make any difference in his treatment of Victor and that her statement “basically confirmed what we’d already suspected,” that is, that someone caused Victor’s injuries. Compare Carton v. Missouri Pac. R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990)(holding that, where plaintiff stated that her foot slipped, plaintiffs further statement that she accumulated diesel fuel on her boot, was not pertinent to diagnosis or treatment).
Citing United States v. Renville, 779 F.2d 430 (8th Cir. 1985), and cases from our court relying on Renville, the State argues that because this case involves a victim of child abuse, then the hearsay disclosing the identity of the abuser is admissible because appellant’s status as a household member of the victim is reasonably pertinent to a course of treatment including removal from the home. In Renville, the United States Court of Appeals for the Eighth Circuit held that statements of identity to a physician by a child sexually abused by a family member are of a type physicians reasonably rely on in composing a diagnosis and course of treatment. Id. at 438. The court, however, recognized that it must also focus on the “declarant’s motivation for giving the information” and that “this component reflects the premise underlying the rule that the patient’s selfish interest in receiving proper treatment guarantees the trustworthiness of the statements,” further noting that “[statements of fault traditionally have failed to meet the criterion” because such statements are made “without reasonable expectation that the information will facilitate treatment.” Id. Flere, we must conclude that, given Stephens’s status as a codefendant and that the statement came from Stephens and not the victim, the statement lacks the necessary guarantees of trustworthiness and is not admissible under the theory set forth in Renville.
We also conclude that, contrary to the State’s argument made for the first time on appeal, the evidence was not properly admitted under Rule 803(24), which permits as an exception to the hearsay rule the introduction of a
statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
For the reasons stated above, Wagenhauser’s testimony regarding what he was told by appellant’s codefendant, Stephens, lacks circumstantial guarantees of trustworthiness.
Finally, the State argues for the first time on appeal that the hearsay is admissible as an excited utterance. Rule 803(2) provides that “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” is not excluded by the hearsay rule. Several factors to consider when determining if a statement falls under this exception include the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Fudge v. State, 341 Ark. 759, 768, 20 S.W.3d 315, 320, cert. denied, 531 U.S. 1020 (2000) (citing United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)). Furthermore, it must appear that “ ‘the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.’ ” Id. (quoting Iron Shell, 633 F.2d at 85-86). Here, however, there is no indication that Stephens’s remarks were made under the stress of excitement. Compare Huls, 27 Ark. App. at 246, 770 S.W.2d at 162-63 (holding that the record was devoid of any testimony tending to show that the declarant was still under the influence of stress or excitement associated with the startling event when the statement was made).
Because we conclude that the hearsay was not admissible under any of the theories proposed by the State, we conclude that the court improperly admitted the hearsay into evidence. Further, there is no argument to be made that admission of the hearsay was harmless, as it was the only evidence presented by the State regarding who committed the murder. Consequently, we must reverse and remand this case for a new trial in which the hearsay statement is not admitted into evidence.
Reversed and remanded.
Stroud, C.J., and Jennings, J., agree. | [
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Wendell L. Griffen, Judge.
Northwest Arkansas Area Agency on Aging (“the agency”) and Risk Management Resources appeal from the order of the Baxter County Circuit Court that set aside an order allowing appellants to intervene in a negligence suit because the court determined that their petition to intervene was not timely. For reversal, appellánts argue that the trial court abused its discretion in holding that their petition to intervene was not timely. We agree and reverse and remand to allow appellants to intervene.
Norma Golmon, an appellee in this case, was working for the agency when she was injured in a car accident on October 6, 1995. As Golmon approached the intersection of Highway 210 and Old Military Road, appellee Charles McCarney entered the intersection and struck Golmon’s car, injuring her. In a letter dated October 20, 1995, the agency’s insurance carrier notified McCarney’s insurance carrier of its intent to claim its subrogation rights against them. Risk Management, the agency’s workers’ compensation carrier, eventually paid medical benefits, temporary total disability benefits, and permanent partial disability benefits to Golmon.
On September 17, 1998, Golmon filed a negligence suit against McCarney and his employer, Town and Country Discount Foods, and the rental company that owned the truck McCarney was driving. In a letter dated December 8, 1998, (received by appellants on December 21, 1998), appellants were given notice of the lawsuit. On December 16, 1998, appellee Golmon filed a motion to extend time for an additional sixty days, until March 16, 1999, to complete service upon McCarney. The court granted the motion on February 25, 1999.
Golmon died on January 19, 1999, and her husband, Harry Golmon, was appointed administrator of her estate. On January 20, 1999, appellee Town and Country Discount Foods filed a motion for summary judgment alleging that McCarney was not its employee. On January 26, 1999, Golmon and McCarney reached a tentative settlement agreement. On March 3, 1999, the parties in the negligence case filed a petition for approval of a settlement and sent notice of the petition to appellants. On March 10, 1999, appellants served notice to appellees of their motion to intervene. Judge Robert McCorkindale granted the motion to intervene on March 11, 1999, although the parties in this case were apparently unaware the order had been entered, and although Golmon’s extension for completing service on McCarney had not expired.
On March 19, 1999, Golmon filed an opposition to intervention. Each appellee filed an answer to the petition to intervene, and requested that the trial court dismiss appellants’ petition. Golmon’s answer was filed on April 13, 1999, and alleged that appellants waived their right to intervene by filing their motion in an untimely manner, and because the statute of limitations had expired on its cause-of-action. Judge Gary Isbell presided over the May 6, 1999 hearing on Town and Country’s motion for summary judgment and the objections to the motion to intervene. Judge Isbell granted Town and Country’s motion for summary judgment, and struck the order granting the petition to intervene because the parties were apparently unaware the order had been filed and no hearing on the matter had been conducted. He then heard testimony on appellants’ petition to intervene.
Golmon argued below that appellants had notice of their right to intervene since the date of Norma Golmon’s injury, October 6, 1995, and that appellants had notice of the pending suit in December 1998 but chose not to act until March 11, 1999. Golmon also argued that the statute of limitations had expired on the claim. Appellants argued that they did not receive timely notice of the lawsuit but had acted in timely fashion after they received notice.
The trial court considered how far the proceedings had progressed, the prejudice to other parties caused by the appellants’ delay in filing the petition to intervene, and the reason for the delay in filing. The court stated that appellants admitted that their right to pursue repayment began when Norma Golman was injured in 1995. The court found that the proceedings had progressed to the point of settlement and that there would be substantial prejudice to the rights and expectations of Golmon to have the terms of the settlement diluted by claims that were not in contemplation during the litigation or during settlement negotiations, and that no viable or reasonable reason was given for the delay. However, the court declined to rule on the statute of limitations issue, stating that sufficient facts had not been presented upon which the court could make such a ruling.
I. Law Governing Motions to Intervene
Arkansas Code Annotated section 11-9-410 (Repl. 1996), which allows a carrier to recover some of the funds expended on workers’ compensation benefits, provides:
(a) Liability Unaffected.
(1)(A) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make 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.
(B) If they, or either of them, join in the action, they shall be entitled to a first hen upon two-thirds (2/3) of the net proceeds recovered in the action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(Emphasis added.)
Rule 24 of the Arkansas Rules of Civil Procedure governs interventions, and provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(Emphasis added.)
It is clear under Arkansas law that a denial of a motion to intervene is appealable. See Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992). While a party may intervene to enforce his interest under section 11-9-410 as a matter of right, the intervention must nonetheless be timely. See Bank of Quitman v. Phillips, 270 Ark. 53, 603 S.W.2d 450 (1980). It is also clear that a party who does not intervene to assert his rights under section 11-9-410 waives those rights. See John Garner Meats v. Ault, 38 Ark. App. 111, 828 S.W.2d 866 (1992). Whether an intervention is timely under Rule 24 lies within the discretion of the trial court and will not be reversed absent an abuse of that discretion. See Cupples, supra.
Appellants argue they were denied both reasonable notice of the suit and an opportunity to intervene because Golmon did not provide notice of the lawsuit until December 21, 1998, three months after the suit was filed. Appellants maintain that they acted timely in that when they received notice, they retained counsel in this matter. Even so, appellants failed to act until March 11, 1999, and only after they were notified that the parties had reached a settlement. Appellants defend their failure to act until March 11 by noting that they relied on a letter from McCarney’s insurance adjuster in which the adjuster acknowledged their lien and stated that they would be a payee on Golmon’s settlement check when it was issued. Therefore, appellants argue they had no reason to think that settlement would be “quickly made.”
Appellees are correct that this letter from the insurance adjuster in no way relieves appellants of their obligation under section 11-9-410 or Rule 24. Moreover, it is true that appellants did not file their motion to intervene until after the parties had reached a tentative settlement and had petitioned the court for a date for the court to approve the settlement. However, we hold that appellants’ motion to intervene was not untimely and that the trial court abused its discretion in striking the motion.
First, we note that the trial court granted Golmon’s motion for extension of time from January 15, 1999, until March 16, 1999, to complete service upon McCarney. Appellants’ March 10, 1999 motion to intervene was brought six days before the end of the extended period for completing service on McCarney. The trial court noted appellants’ failure to act until after the parties reached a settlement, stating, “[T]he concept of joining-in does not to this Court contemplate riding along on the efforts of others and then sharing in the proceeds.” We do not share the trial court’s characterization of appellants’ actions. When appellants filed their motion, the court had neither' approved the settlement nor scheduled a court date for reviewing the setdement. Had that court date been set, appellants would have been entitled to three days’ written notice of that date and would have been entitled to a hearing on the issue of whether the court should approve the settlement. See Ark. Code Ann. § ll-9-410(c)(3)(Repl. 1996). The record contains no facts which support the conclusion that time was of the essence.
Second, we do not reach the merits of the statute of limitations argument because the trial court did not decide that issue. However, we note the incongruity of Golmon’s conduct and the argument that the motion to intervene was untimely. Golmon knew that appellants’ right to intervene might arguably expire on October 6, 1998, three years after the date of Norma Golmon’s accident. Yet,' Golmon neglected to notify appellant of the lawsuit until after that date had passed.
Further, it is inaccurate to maintain that Golmon will now be prejudiced by claims that were not in contemplation during the litigation or during settlement negotiations. Golmon plainly contemplated appellants’ right to intervene in this case while conducting settlement negotiations because he notified appellants of the suit before appellees reached a tentative setdement negotiation.
The trial court allowed Golmon an additional sixty days to serve McCarney. Golmon waited almost three months after filing the lawsuit before notifying appellants that they had sued. Given all of the foregoing factors, we hold that the trial court abused its discretion in denying appellants’ motion to intervene as untimely.
Reversed and remanded.
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Robert J. Gladwin, Judge.
Appellants Tonya and Jackie Nelms, husband and wife, appeal the Drew County Circuit Court’s October 21, 2004 judgment dismissing their complaint for malpractice pursuant to a motion for summary judgment filed by appellees Dr. Kenneth Martin and U.S. Orthopedic Surgical Center. Appellants contend on appeal that the trial court committed reversible error as a matter of law by granting the appellees’ motion. We affirm.
Appellant Tonya Nelms underwent arthroscopic surgery on her left knee on September 7, 1999. Appellee Dr. Kenneth Martin performed the surgery, and he inadvertently left the tip of a canula, which is a small flexible tube that encloses the scope or camera that is used to inspect the knee arthroscopically, in Mrs. Nelms’s knee. On September 14, 1999, Mrs. Nelms returned to Dr. Martin’s office and complained of mild pain, which is expected after undergoing arthroscopic surgery. On October 28,1999, Mrs. Nelms returned for another office visit complaining of pain in her knee, which Dr. Martin attributed to incomplete rehabilitation and significant muscle atrophy. On November 2,1999, Dr. Martin discovered that one of his nurses had taken an x-ray of Mrs. Nelms’s knee on October 28, 1999, which revealed the presence of a metallic fragment in the superior lateral aspect of the knee that appeared to be consistent with the tip of a canula. Dr. Martin located the type of canula that had been used during Mrs. Nelms’s surgery and discovered that the canula was not a solid piece of metal, but instead consisted of two pieces. Upon discovering this, Dr. Martin immediately called Mrs. Nelms and explained that the tip of the canula used during her arthroscopy had broken, and asked her to come in for arthroscopy and removal of the piece.
The canula had been provided by appellee U. S. Orthopedic Surgical Center, of which Dr. Martin was an owner and employee. Dr. Martin performed an additional arthroscopy on November 9, 1999, and removed the tip of the canula. Dr. Martin stated in his deposition that Mrs. Nelms was not charged for the surgery because “we weren’t supposed to charge or anything because that was just a-a mistake that we made.”
The appellants filed suit asserting that appellees were liable to them under theories of medical negligence. After filing the initial suit, the appellants amended their suit to add Stryker Corporation, the manufacturer of the canula that broke off in Mrs. Nelms’s left knee. Appellees filed a motion for summary judgment asserting that they were in no way negligent. Attached to the motion was Dr. Martin’s affidavit wherein he states that he did not violate the standard of care and that leaving the tip of the canula in the knee did not fall below the standard of care. In response, appellants presented affidavits of two laymen who assert that leaving the tip of a canula in someone’s knee does not require expert testimony to know that such falls below the standard of care, and that, therefore, it is their belief that Dr. Martin, and thereby appellees did not meet the standard of care required of a licensed physician.
The trial court granted the motion for summary judgment and dismissed the lawsuit against the appellees because appellants failed to meet proof with proof. The appellants appealed, and this court dismissed the case as not ripe since the summary judgment order did not dismiss all the parties to the case, leaving Stryker Corporation. The case between Stryker and appellants was settled and the case as to Stryker was dismissed with prejudice. The summary judgment order as to appellees dated September 30, 2004, became a final judgment, and this appeal followed.
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. Stoltze v. Ark. Valley Elec. Coop. Corp., 354 Ark. 601, 127 S.W.3d 466 (2003). 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. Gafford v. Cox, 84 Ark. App. 57, 129 S.W.3d 296 (2003). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). All proof submitted 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. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appeal, the reviewing court need only decide if the grant of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Liberty Mut. Ins. Co. v. Whitaker, 83 Ark. App. 412, 128 S.W.3d 473 (2003). In making this decision, we view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Saine v. Comcast Cablevision of Ark., Inc., 354 Ark. 492, 126 S.W.3d 339 (2003). Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
Expert testimony
Appellants argue that Dr. Martin was negligent in leaving the tip of the canula in Mrs. Nelms’s knee. Further, they claim that U. S. Orthopedic Surgical Center was negligent in not noticing that the canula was missing a tip after the canula was pulled out of Mrs. Nelms’s knee and given back to their personnel. Appellants claim that a jury’s comprehension is such that a jury will understand without the necessity of an expert that surgeons do not leave surgical implements in a surgical site, and to do so is negligence. They argue, therefore, that affidavits of two laypersons are the proof of medical negligence that counters Dr. Martin’s self-serving affidavit, and that proof was met with proof. See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996); and Watts v. St. Edwards Mercy Med. Ctr., 74 Ark. App. 406, 49 S.W.3d 149 (2001).
Appellees argue that the trial court properly granted the motion for summary judgment because the appellants failed to set forth any expert-witness testimony. Arkansas Code Annotated section 16-114-206(a) (Supp. 2003) requires expert testimony when the negligence asserted cannot be understood by a jury based upon common knowledge,- and states as follows:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
The Arkansas Supreme Court and Court of Appeals have held on numerous occasions that a plaintiff in a medical malpractice case must present expert testimony when the asserted negligence does not lie within the jury’s comprehension and when the applicable standard of care is not a matter of common knowledge. See Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002); Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002); Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996); Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995); Dodd v. Sparks Reg’l Med. Ctr., 90 Ark. App. 191, 204 S.W.3d 579 (2005).
Appellees argue that the common-knowledge exception does not apply in this case, and that expert testimony is required. We agree. The Arkansas Supreme Court stated in Mitchell v. Lincoln, 366 Ark. 592, 599, 237 S.W.3d 455, 460 (2006), “The vast majority of our cases to have considered this issue [whether expert testimony is necessary in negligence cases] hold that expert medical testimony is necessary because the alleged medical negligence is not within the comprehension of a jury of laymen.”
Appellees cite Robbins v. Johnson, 367 Ark. 506, 241 S.W.3d 747 (2006), as controlling here. In Robbins, our supreme court determined that even though expert testimony is not required in every medical malpractice case, but only in those where the standard of care is not within the jury’s common knowledge and when an expert is needed to help the jury decide the issue of negligence, it was required to assist the jury in determining whether the surgeon had breached the standard of care during a cervical diskectomy. The court concluded:
[I]n order for a jury to decide whether Dr. Johnson was negligent, the jury must understand what a cervical diskectomy and fusion is, what instruments are used to perform the procedure, what procedures and risks are involved, and whether Dr. Johnson’s actions proximately caused the injury alleged by the Robbinses. Dr. Johnson’s letter makes it clear that, according to his version of the events, more was involved in this alleged negligence than simply dropping a sharp surgical instrument. We agree with the circuit court that an expert was required for Mr. and Mrs. Robbins to meet their statutory burden of proof.
Robbins, 367 Ark. at 513, 241 S.W.3d at 752.
As in Robbins, “in order for the jury to decide whether Dr. [Martin] was negligent, the jury must understand what an [arthroscopic knee surgery] is, what instruments are used to perform the surgery, what procedures and risks are involved, and whether Dr. [Martin’s] actions proximately caused the injury alleged by the [appellants].” Id.
In Haase, supra, our supreme court stated:
The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.
Haase, 323 Ark. at 269, 915 S.W.2d at 678. Here, appellees contend that the inadvertent leaving of the canula tip in a patient’s surgical wound is distinguishable from leaving a sponge in the patient’s surgical incision. We agree. Placing a surgical sponge in a patient’s incision and failing to remove it when surgery is completed is an obvious act of negligence that a jury can determine without expert testimony. In this instance, however, Dr. Martin placed a canula into Mrs. Nelms’s knee and in fact retrieved the same canula from the surgical site. The inadvertent leaving behind of the canula tip begs the question of whether Dr. Martin breached the standard of care in doing so.
Appellees claim that the jury would need to know the extent to which the standard of care required Dr. Martin to inspect the knee after surgery, whether the standard of care required him to take x-rays of the knee prior to closing the incisions, and whether the standard of care required him to thoroughly inspect each and every medical instrument utilized during the surgery. We agree. Also, the jury would need help from an expert to understand whether the surgical technique used by Dr. Martin fell below the standard of care and to understand the difference between the condition of Mrs. Nelms’s knee after the second surgery as compared to the condition it would have been in had the second surgery not been required. We hold, therefore, that the appellants were required to present expert testimony, and failed to meet proof with proof.
Res ipsa loquitur
Appellants assert that the doctrine of res ipsa loquitur establishes that appellees were negligent, and that the burden in trial shifts to appellees to prove that they were not negligent. In Sherwood Forest Mobile Home Park v. Champion Home Builders Co., 89 Ark. App. 1, 3, 199 S.W.3d 707, 710 (2004), we noted that the res ipsa loquitur doctrine was “developed to assist in the proof of negligence where the cause of an unusual happening connected with some instrumentality in the exclusive possession and control of defendant could not be readily established.” We went on to cite the four essential elements that must be established before the doctrine of res ipsa loquitur is applicable: (1) the defendant must owe a duty to the plaintiff to use due care; (2) the accident must be caused by the thing or instrumentality under the control of the defendant; (3) the accident that caused the injury must be one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality used proper care; (4) there must be an absence of evidence to the contrary. Id. at 3-4, 199 S.W.3d at 710. In addition, it must be shown that the instrumentality causing the injury was in the defendant’s exclusive possession and control at the time of the injury. Id. This doctrine may apply in medical malpractice cases if the essential elements are present. See Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991).
Appellants argue that the requirements of res ipsa loquitur have been met. First, they argue that appellees owed a duty to Mrs. Nelms. See Ark. Code Ann. § 16-114-201 (Supp. 2003). Second, appellants claim that the canula was under the control of appellees while Mrs. Nelms was under anesthesia. Third, appellants claim that the accident which caused Mrs. Nelms’s injury is one that in the ordinary course of things would not have occurred if appellees had used proper care. Appellants note that Dr. Martin examined the surgery site when surgery was completed. When he later discovered that the canula tip was left in Mrs. Nelms’s knee, he went back into the knee and withdrew it from the original surgery site. Therefore, appellants argue that had the doctor taken the time in the ordinary course of things and looked thoroughly at the surgical site the first time he performed the surgery, he would have or should have noticed the piece of metal in Mrs. Nelms’s knee.
Also, appellants argue that had the staff of U. S. Orthopedic Surgical Center properly maintained their surgical equipment, then the missing tip would have been noticed and removed in a timely manner. Fourth, appellants argue that there is an absence of evidence to the contrary. Appellants refute appellees’ claim that the appellants’ products liability allegations constitute “evidence to the contrary.” Appellants argue that Dr. Martin did not discover the broken tip when he looked inside Mrs. Nelms’s knee during the first surgery nor did he discover the fact of the missing tip when he extracted the canula. Likewise, U. S. Orthopedic Surgical Center staff did not notice the damaged canula. Appellants claim that but for the appellees’ failure to notice the broken canula there would not be an injury in this case.
Appellees argue that res ipsa loquitur does not apply to the facts and circumstances of this case because the appellants failed to satisfy the third requirement that “the accident that caused the injury must be one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality used proper care.” See Sherwood Forest Mobile Home Park, supra. We agree.
In Taylor v. Riddell, 320 Ark. 394, 896 S.W.2d 891 (1995), Ms. Taylor alleged that Dr. Riddell negligently punctured her bladder during surgery and failed to discover the puncture or to repair it before the incision was enclosed. The jury returned a verdict in favor of Dr. Riddell. On appeal, Ms. Taylor argued that the trial court should have given a res ipsa loquitur instruction to the jury. In finding that the third requirement of res ipsa loquitur could not be met, the court held that “there was clear and unequivocal testimony that Dr. Riddell had met the requisite standard of care.” Id. at 404, 896 S.W.2d at 896. The court relied on testimony by Dr. Barclay, the physician who repaired the puncture, who stated that “Dr. Riddell did not deviate from the standard of care in performing the surgery.” Id. The court held that Ms. Taylor failed to establish that “the accident that caused the injury was one that, in the ordinary course of things, would not have occurred if those having control and management of the instrumentality had used proper care.” Id.
Here, appellants failed to show that the accident would not have occurred if those having control and management of the instrumentality used proper care. All relevant evidence on this issue points to the conclusion that Dr. Martin used proper care. Dr. Martin’s affidavit stated that he never noticed the tip of the canula break off. He did not find the tip during his final inspection of the knee. Furthermore, he claimed that had he seen the canula tip, he would have immediately removed it from the knee. He also stated that his treatment of Mrs. Nelms did not fall below the standard of care. Because Dr. Martin is the only person who gave testimony in this matter who is competent to testify as to the standard of care of an orthopedic surgeon, it is left undisputed that he used proper care. Therefore, the doctrine of res ipsa loquitur is not applicable.
Affirmed.
Pittman, C.J., and Robbins, J., agree.
The canula tip measured approximately 4 millimeters in length.
Res ipsa loquitur is a “doctrine providing that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case.” Black’s Law Dictionary 1336 (8th ed. 2004). | [
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GeorgeK. Cracraft, Judge.
Troy Collins and Jennilu Collins, his wife, appeal from their conviction of the manufacture of controlled substances for which they were each sentenced to a term of 8 years and a fine of $8,000. They maintain that the trial court erred in not suppressing evidence of 350 potted marijuana plants found to be growing in their residence. They advance several arguments that the warrant pursuant to which the search was conducted was both constitutionally and statutorily defective. Additionally, Jennilu Collins contends that the evidence was insufficient to support a finding that she was a participant in the illegal activity. We find no merit to these arguments.
Appellants first contend that the evidence obtained during the search of their residence should have been suppressed because the warrant was issued on information of an informant obtained while within the curtilage of their home at a time when he was acting as an agent of the sheriff and not as a private citizen. We do not agree.
Deputy Sheriff Decker testified that he first received information that the appellants were in possession of marijuana plants through a confidential informant. When he found out that some time had passed since the informant had obtained his information he told him that he could not act on it unless he knew that the marijuana plants were still there. About a week later the informant returned to the Sheriff’s office and confirmed that the plants were still at the house where he had seen them the first time. Acting on this information the officers obtained a search warrant. Appellants contend that the informant was an agent of the State when he observed the marijuana plants the second time and was not acting as a private individual. It is recognized that the search and seizure clauses of the Federal and State Constitutions restrain only the government and its agents and not private individuals. The rule, however, differs where the search is instigated or encouraged by the police and in such instances the restraints do apply, “as a con struction to be attached to the fourth amendment does not permit of an evasion by circuitous means.” The protection thus afforded may be violated just as effectively through the intervening agency of one who is not a policeman. Smith v. State, 267 Ark. 1138, 594 S.W.2d 255 (1980).
We agree with the principle relied upon but do not agree that the facts in the case before us bring that principle into play. The deputy merely told his informant that his information was stale and that he could not act on it without more recent information. He did not give the informant any instructions or accompany him to the appellants’ house. The informant was not an employee of the Sheriff’s office and according to Officer Decker he had furnished the Sheriff’s office with reliable information on but two prior occasions.
This argument is actually based on one statement of Deputy Decker. On cross-examination the officer testified that his informant had been to the appellants’ house on several occasions and that he ‘‘partied a lot and knew a lot of people. He was there strictly on a friendly basis.” He testified that the informant went to their house as a guest. Later in the cross-examination counsel again questioned him regarding the informant. He asked the officer if he “sent your informant out there a second time to check it out again?”
A. At the time he told me of it, I said, well, ask him how long and he said, seems to me like it was more than I thought it would have been, you know, admissible for me to jump up and make a search warrant. So, that’s why I sent him back a second time, yes, sir.
Q. What did you tell him to do?
A. I just said, I told him, — I didn’t actually tell him to do nothing. I said, if it’s still there, I said, I’ll file for a search warrant, but I said, I can’t just up and file on something you seen a long time ago, I’ve got to have it in recent times. As I recall, the second time, I believe my informant saw it through the window, as I understood. I don’t remember it directly, but I know that’s how it was. (Emphasis added)
The trial court specifically found that the informant was acting as a private citizen and not as an agent of the State at the time of the second observation. Appellants argue that the officer’s statement that he sent him there mandates a different conclusion. Throughout his entire testimony the officer had always maintained that he gave the informant no instructions and there was no indication that he “sent him” back. The only reference to it was in response to counsel’s questions suggesting that he had done so. The trial court considering all of his testimony concluded that he did not send the informant to the Collins home on any instructions. We cannot say the trial judge abused his discretion in denying the motion to suppress based on this contention.
The appellants next contend that the affidavit on which the search warrant was issued was not specific as to time in that it gave no positive statement as to when the informant saw the marijuana growing at the appellant’s home. We agree that the proof which must be made before a search warrant can be issued must be of facts which justify a finding that probable cause exists at the time the warrant is issued and not at some remote time. Whether the proof meets this test must be determined by the circumstances of each case. The issuing magistrate must be able to reasonably infer the existence of probable cause at the time of issuance. In Cardozo & Paige v. State, 7 Ark. App. 219, 646 S.W.2d 705 (1983) the majority of this court followed the rules announced in Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977) that affidavits for search warrants must be tested and interpreted by magistrates and courts in a “common sense and realistic fashion.” The likelihood that evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock, for example the characters of the crime, of the criminal, and of the thing to be seized. The length of delay is to be considered along with the nature of the unlawful activity in the light of common sense.
As stated in Cardozo & Paige, the growing of marijuana is an illegal activity of a continuing nature. The magistrate could easily believe that the information contained in that affidavit indicated “an on-going business rather than a mere isolated violation,” United States v. Johnson, 461 F.2d 285 (10th Cir. 1972).
The appellants next contend that the search warrant was issued exclusively upon the hearsay testimony of a confidential informant whose reliability was not established. We do not agree. In Baxter v. State, supra, the court in applying the common sense and realistic approach to assessing of affidavits of this nature said that magistrates should base their judgments upon a common sense reading of the entire affidavit in determining the probability of finding contraband in a particular place.
The affidavit contained the following statements:
That a confidential informant contacted me and told me he had been in Troy Collins’ residence and had seen marijuana growing in the subject’s home; that my informant has seen marijuana growing before and knows what it is. My informant has proved his reliability in the past with information he gave me on other occasions. He is afraid of great bodily harm if his name be used. His information has always proved to be true and reliable.
The reliability of said informant has been previously established by:
The fact that he has given us information in the past that has proved out to be true and helped to solve cases.
This information established the underlying circumstances on which the informant based his conclusion that the object of the search was where he said it was. He was familiar with the appearance of marijuana and had seen it in the appellants’ home. Also included were the circumstances in which the officer concluded that the informant was credible and reliable. Rule 13.1 (b), Arkansas Rules of Criminal Procedure requires that if the affidavit is based on hearsay the affiant 1) shall set forth particular facts bearing on the informant’s reliability and 2) shall disclose as far as practicable the means by which the information was obtained. We conclude that this affidavit met the requirements of that rule and of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964). We find no merit to this contention.
Appellants next contend that the search warrant did not contain a sufficient description of the premises to be searched. They argue that the description merely referred to a 7.6 acre tract within a larger 40 acre one. After the officer determined to apply for a search warrant, he drove to the Collins residence, carefully determining the actual mileage between it and the courthousé and observing the names of all streets and highways leading to it. The affidavit, after describing the 40 acre tract in which the residence was located, contained the words “further information on map attached.” Attached to the affidavit was a detailed map that showed the location of the Troy Collins residence with reference to roads and highways. It contained the following:
Take Highway 7 South out of Jasper. Stay on Hwy. 7 South approximately 14 miles to Cowell. As you come into Cowell there will be a white house on your left and about 200 yards further on the right will be a trailer house. Across from the trailer on the left is a dirt road with a sign that says ‘Knights in the Ozarks Camp Ground.’ Turn left there, go about 500 feet or first house on right and this will be the Troy Collins residence.
The sufficiency of such a description was addressed in Nichols v. State, 273 Ark. 466, 620 S.W.2d 942 (1981). In Nichols the court held that an affidavit which gives such detailed directions for leaving the courthouse and traveling specified roads to reach the area to be searched that the officer who executes the warrant would have no problems in following the directions and finding the property was a sufficient description. We find no error.
The appellants next contend that there were many “smaller deficiencies in the procedure.” They argue that there was no evidence showing that the warrant had been returned to the municipal court. There was no return endorsed on the warrant and nothing to show that it was received by the court because the blanks provided for the day of return and the signature line for the judge or clerk were blank. They also contend that the warrant does not state when it was to be returned. Officer Decker testified he believed that a return was made but did not know when.
They argue that the cumulative effect of non-compliance with the rules of criminal procedure governing search warrants constituted such a substantial violation of their constitutional rights that the motion to suppress should have been granted. We do not agree. Rule 16.2 (e), Arkansas Rules of Criminal Procedure provides that a motion to suppress evidence should be granted only if the court finds that the violation upon which it is based was substantial or otherwise required by the constitution. The rule further provides that in determining whether a violation is substantial the court should consider all of the circumstances including:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violation of these rules;
(vi) whether, but for the violation, the things seized would have been discovered; and
(vii) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceedings in which the things seized are sought to be offered in evidence against him.
Although appellants point out to us these smaller deficiencies they do not point out to us in what manner they were substantial enough to warrant suppression of evidence. The clear wording of Rule 16.2 (e) and Baxter State, supra commits us to a realistic approach in determining if there has been substantial compliance with detailed rules which were promulgated in order to protect practical constitutional rights. As stated in Baxter a commonsense and realistic approach is appropriate because such warrants are ordinarily "drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” We find no merit to this contention.
The appellants finally contend that the testimony of the laboratory technician who analyzed the marijuana should have been stricken. We do not agree. They base this contention on the fact that the laboratory technician did not receive the test from the Sheriff and could only testify from records of one who had previously had custody. The medical witness testified that he believed that it had been delivered to an employee of the laboratory who was no longer working there. The evidence establishes clearly that Sheriff Watkins carefully collected the contraband and took samples and packaged them himself. He personally delivered these samples to a person at the laboratory who labelled them showing they had been received from Sheriff Watkins. The medical witness testified that the samples he tested were delivered to him in a sealed envelope which bore that notation. We conclude that the chain of custody was sufficiently established. In Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978) the court stated:
We do not say that the chain of custody of the tapes is insignificant, but when there is little likelihood that there has been any tampering with an exhibit, admission into evidence is not an abuse of discretion.
We find no error in the trial court’s determination that the chain of custody of these samples was sufficiently established.
Appellant Jennilu Collins contends that the court erred in not directing a verdict in her favor. Ms. Collins argues that there was no testimony that she had been living in the residence for any length of time and that she had denied to the officers both that she lived there and that she owned the marijuana. We do not agree. The evidence shows that Ms. Collins was present at the residence when the search was undertaken, that she was married to the appellant, Troy Collins, and that at the time she was arrested she stated to the officers “I’ve got to get my clothes.” According to the officers she then took clothes from a closet in the bedroom containing women’s clothes that seemed to fit her. Although there was no testimony offered by the defense the jury could reasonably infer that a wife ordinarily resides with her husband. We conclude that the evidence of her marriage to Troy Collins, the fact that she was in the residence at the time of the arrest and had her clothing there, and the fact that there were about 350 marijuana plants growing in plastic containers in various parts of the house including the bedroom were sufficient evidence to support the jury’s finding that she was an active participant in the possession and manufacture of this controlled substance.
Affirmed.
Cooper, Corbin and Glaze, JJ., dissent. | [
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D.P. Marshall Jr., Judge.
Benjamin Lackey, a Conway police officer, was involved in two automobile accidents in the span of about six weeks. He sued several of the parties involved in the accidents, and the litigation has continued for some time. Several years ago, Lackey petitioned the supreme court for a writ of certiorari or mandamus about a severance issue. Lackey v. Bramblett, 355 Ark. 414, 139 S.W.3d 467 (2003). The facts about the accidents are recounted in detail in that opinion, which dismissed Lackey’s petitions. Lackey’s appeal comes now to this court on the merits. We do not reach the merits, however, because his briefs do not comply with our Rules. Ark. Sup. Ct. R. 4-2(b)(3). We describe the defects in Lackey’s briefs in detail for two reasons: to give him a map for preparing compliant briefs and to remind the bar about our briefing rules.
This is not the first time that Lackey’s briefs have been deficient. After he filed his first set of briefs in late 2006, Lackey moved to submit a substituted addendum, abstract, and brief to add inadvertently omitted and important material to his abstract and addendum. This court granted that motion. In due course, the Clerk rejected Lackey’s substituted briefs because they did not comply with Arkansas Supreme Court Rule 4-2. The docket reflects that, in those briefs, Lackey incorrectly numbered his pages, failed to list the witnesses in the table of contents, and abstracted pleadings and other court papers instead of copying them in the addendum. In early 2007, Lackey moved again to file a substituted brief, addendum, and abstract, this time as separate bound documents. This court granted that motion. The Clerk then accepted and filed Lackey’s substituted briefs, which are the ones we have before us. They are still deficient. Here are the particulars.
In his abstract, Lackey should have condensed impartially the hearings and testimony in the record that are necessary to our understanding of the issues on appeal. Ark. Sup. Ct. R. 4-2(a)(5). He did not do so. First, Lackey italicized and bolded many words and phrases, embellishing the transcript rather than summarizing it without emphasis. Abstracting requires an even hand, not a thumb on the scale. Second, Lackey should have distilled the exchanges between the circuit court and the lawyers at the many hearings. Instead, Lackey’s abstract of the hearings is mostly a retyped transcript of them. Third, Lackey retained the transcript’s question-answer format throughout much of his abstract of the trial. This was wrong. The abstract must give the essence of each witness’s testimony in an impartial first-person narrative, the witness’s story shorn of the immaterial details, redundancies, and hiccups that characterize testimony under questioning. The transcript’s question-answer format must fall away — except in those instances where the exchange simply cannot be condensed without losing something important. Page after page of questions and answers does not hit this mark. Fourth, Lackey abstracted the documents admitted as exhibits at the hearings. This was wrong too. Since 2003, our Rules have not required that documents be abstracted. With one exception, all documentary exhibits should be copied in the addendum, with helpful identifying references in the abstract to those exhibits. The exception is for exhibits that are transcripts, such as the deposition transcripts in this case, and this brings us to the fifth mistake. Lackey mishandled the deposition transcripts: some of them are in the abstract, but they remain in question-answer format; and summaries of some depositions are in the addendum. This was a compound error. Transcripts — whether of testimony at trial or on deposition or of hearings — must be converted into an impartial first-person narrative in the abstract. Transcripts should not be in the addendum.
Lackey’s addendum is unusual. He arranged the documents thematically by issue, rather than chronologically. His decision to organize his addendum in this way does not violate the letter of any Rule, but it concerns us nonetheless. This tactic makes it appear that Lackey is trying to persuade this court by organizing the documents to his advantage, giving emphasis by placement. The addendum — like the abstract — must be impartial. Arranging the documentary part of the record chronologically is the best practice.
Lackey’s briefing errors extend beyond his abstract and addendum. Lackey titled his replacement briefs as “supplement” briefs. They are not supplements; they are substituted briefs. His informational statement and the statement of the case are argumentative, peppered with bolded, underlined, and italicized words. This was improper. The argument section of the brief is the only place for argument. Ark. Sup. Ct. R. 4-2(a)(6). Because Lackey designated less than the full trial record as the record on appeal, he was required to file a list of his points on appeal with his notice of appeal. Ark. R. App. P.-Civil 3(g). This filing gives the other parties the information they need to designate other parts of the record that they believe are material to Lackey’s arguments for reversal. Lackey’s argument on appeal, however, includes at least one argument that he did not mention in the points he filed. This was likewise improper. Jones v. Adcock, 233 Ark. 247, 248, 343 S.W.2d 779, 780 (1961).
Given the prior opportunities to cure, Lackey’s errors seem willful, not inadvertent. And we caution him about the possibility of sanctions for disregarding the briefing rules. King v. State, 312 Ark. 89, 91, 847 S.W.2d 37, 38-39 (1993). We order rebriefmg and give Lackey thirty days to file an abstract, brief, and addendum that comply with the Rules. We will not extend this deadline except for some extraordinary reason. This case has been pending long enough. We direct Lackey’s attention to the model abstract, brief, and addendum on the Arkansas Judiciary website — http://courts.state.ar.us/ — under Publications 8c Forms. The appellees shall have thirty days after Lackey files his opening substituted abstract, brief, and addendum to file substituted response briefs if they wish to do so. And Lackey may file a reply brief within fifteen days thereafter if the appellees file any such brief. (Because Lackey’s missteps have required the appellees to file two briefs already, and perhaps a third, we will consider these circumstances in assessing brief costs if Lackey’s appeal is affirmed on the merits.) If Lackey fails to correct his papers, then we will consider whether to affirm the judgment because of repeated noncompliance with the Rules. Calaway v. Dickson, 360 Ark. 463, 464-65, 201 S.W.3d 931, 932 (2005).
Rebriefing Ordered.
Pittman, C.J., and Griffen, J., agree.
Here Lackey proceeded correctly. In a case with a long abstract or a voluminous addendum, it may make good sense to separate those reference materials from the rest of the brief. This is easily done with the addendum because it comes last in the brief, or next to last if counsel certifies service in the brief. Ark. Sup. Ct. R. 4-2(a)(8). Binding an addendum separately merely creates a multi-volume brief. This requires no motion. Binding an abstract by itself, however, departs from the prescribed order of contents for a brief. Ark. Sup. Ct. R. 4-2(a)(l)-(8). This kind of deviation requires a motion that shows good cause for this step. | [
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PER CURIAM.
In January, a three-judge panel of this court decided that appellant’s convictions should be reversed and the case dismissed on grounds that the trial court erred in denying appellant’s motion to dismiss for lack of a speedy trial. See LeClere v. State, CA CR99-294 (January 26, 2000). The State filed a motion to supplement the record and a petition for rehearing, alleging that our decision was based on a material mistake of fact. We agreed with the State, granted the petition for rehearing, and issued a substituted opinion by which we affirmed appellant’s convictions. See LeClere v. State, CA CR99-294, substituted opinion on grant of rehearing (May 10, 2000).
In its original brief on appeal, the State contended that we could not reach appellant’s speedy-trial argument because appellant had failed to bring up or to abstract the transcript of an August 11, 1998, hearing held by the trial court on appellant’s motion to dismiss. See Dixon v. State, 314 Ark. 378, 863 S.W.2d 282 (1993). The State referred us to the docket sheet showing that, on August 3, the speedy-trial time was tolled and a hearing was set for August 11 on appellant’s motion to dismiss. However, the August 11 docket entry made no mention of any hearing being held. It simply showed that appellant’s speedy-trial motion was denied on that date. In his reply brief, appellant’s trial and appellate counsel, Mr. John Wesley Hall, Jr., essentially argued that no hearing had been held on the motion to dismiss and that there was therefore no record to bring up or to abstract. He argued that his notice of appeal and designation of record “state [d] that every court appearance was required” (emphasis in original) and “[i]f there was such a hearing, the court reporter failed in her duty.” (Emphasis added.) Counsel affirmatively stated that “no evidence was presented by either party for the judge to rely on in a hearing on the motion” and “[s]ince no evidence was presented at any hearing, what more is there to abstract?” (Emphasis added.) He also affirmatively asserted that “[t]he motion was summarily denied on the docket” and was “simply denied on the face of the motion and the State’s response.” (Emphasis added.)
In fight of what we had before us, we decided to reach the merits of the issue in the following language:
On appeal, the State makes no argument on the merits of appellant’s speedy-trial contention. Instead, it argues only that appellant’s argument cannot be considered because he did not abstract an August 11, 1998, hearing on appellant’s motion to dismiss. To support its position that such a hearing was actually held, the State points only to an August 3, 1998, docket entry that indicates that a hearing was contemplated for August 11. However, the August 11 docket entry makes no mention of a hearing. It merely states, “Speedy-trial motion denied; defendant taken into custody, no bond.” Appellant alleges that the court simply denied the motion on the face of the pleadings, with no evidence being taken. Moreover, appellant’s notice • of appeal designated as the record on appeal “every court appearance from his first appearance to the trial,” yet no hearing on appellant’s motion appears in the record. Further, after the transcript was filed in this court, a writ of certiorari was issued to the trial court’s court reporter. In response to the order that any diminution of the record be corrected, the trial court entered an order in which it stated, “This court finds that the transcript in the above-captioned case reflects a true and accurate record of the proceedings in this case.” Under these circumstances, we cannot conclude that a hearing was held, and we will address the merits of appellant’s argument. [LeClere v. State, CA CR99-294, slip op. at 2-3 (January 26, 2000).]
As is plain from the above, we addressed the merits only because we could not determine that a hearing had been held on appellant’s motion. However, after that opinion was handed down, the State secured a transcript of an August 11, 1998, hearing held on appellant’s motion to dismiss, and we allowed the record to be supplemented with this hearing. This transcript shows that attorneys for both parties were present (including Mr. Hall), that the subject of the hearing was appellant’s motion to dismiss on speedy-trial grounds, that three witnesses testified, that several exhibits were introduced, that argument taking up several pages of transcript was entertained, and that the trial court stated findings and conclusions in denying the motion. Had we known that a hearing had been held but not brought forward or abstracted, we would have written the initial opinion to reject appellant’s speedy-trial argument in accordance with Dixon v. State, supra. There, the supreme court stated:
[Appellant] then filed a motion asking for a dismissal for lack of a speedy trial. The trial court heard arguments and apparently examined the docket sheet and various orders and denied the motion to dismiss.
Appellant’s abstract does not summarize the proof at that hearing, nor does it summarize the findings of fact by the trial court, nor does it summarize the written order, if any, by the trial court. We cannot know, without examining the transcript, the periods of time that the trial court found to be excluded. In sum, we have no way of knowing whether the trial court erred without examining the transcript. As we have often pointed out, there is only one transcript and there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). We are hesitant to affirm a criminal case for failure to comply with Rule 4-2, but we must do so in this case because the abstract wholly omits the hearing and ruling on the motion that is the basis of the appeal.
Dixon v. State, 314 Ark. at 378-79.
It was appellant’s burden to bring up a record sufficient to demonstrate error, yet, while he designated every court appearance as the record on appeal, he not only failed to abstract the crucial hearing, he failed even to bring up a record of the hearing. When faced with the State’s argument that a hearing had been held but not brought forward, counsel did not avail himself of Ark. Sup. Ct. R. 3-5 or Ark. R. App. P. — Civ. 6 (the latter of which is made applicable to criminal cases by Ark. R. App. P. — Crim. 4(a)), which provide methods to have record errors or omissions corrected. Nor did he admit the default or merely stand mute. Instead, he filed a reply brief containing the arguments referred to above, misleading us into thinking that no hearing had been held.
Pursuant to Canon 3(D)(2) of the Arkansas Code of Judicial Conduct, we hereby refer Mr. John Wesley Hall, Jr., to the Committee on Professional Conduct for such proceedings as the Committee may deem appropriate regarding whether Mr. Hall violated his duties, including his duty of candor toward this court. See Model Rules of Professional Conduct 3.3. The following matters are of particular concern to the court, but of course the Committee is not limited in what it may wish to consider:
I. Counsel made misleading statements of fact in his reply brief.
A. He argued, in essence, that there must not have been any hearing because he designated the entire record but no such hearing appeared in the transcript. In fact, the supplemental record shows that a hearing was held at which counsel was present and participated. Moreover, counsel effectively concedes in his response to the petition for rehearing (see, e.g., paragraph 10) that he knew at the time that he filed his reply brief that a hearing had been held. Further, he states in his affidavit that he “remembered nothing extraordinary about the hearing” and that he “felt the record [originally presented to this court] was adequate to resolve the issue on appeal.”
B. He stated that no evidence was presented to the trial court on the speedy-trial motion when the supplemental record shows that several exhibits were introduced and three witnesses testified.
C. He stated that the trial court summarily denied the motion on the docket and on the face of the pleadings when the supplemental record shows that a formal hearing was held at which evidence was presented, arguments were heard, and the trial court explained its reasoning.
II. Counsel made questionable statements in his response to the petition for rehearing. While counsel no longer appeared to be trying to convince us that no hearing had been held, he did assert that “[i]t was unknown to [him] whether the . . . pretrial hearings were taken down by the court reporter.” However, the supplemental transcript shows that, at the close of the hearing, appellant’s counsel questioned the court about the details of its ruling. Counsel stated at that time, “So, we’re making a record for appellate review,” to which the court responded, “Bight.”
III. Certified Court Reporter Linda Dyer has submitted to this court an affidavit in which she swears that appellant’s counsel, despite having designated every court appearance in his notice of appeal and despite counsel’s argument referred to in I. A. above, specifically instructed her not to transcribe the August 11, 1998, speedy-trial hearing. Counsel has filed an affidavit denying the reporter’s averments.
We wish to make it clear that we make no judgment as to the truth of the affidavits referred to under III. or as to the question of whether the statements referred to under I. and II. were misleading by design or for some other reason. Copies of this opinion, the substituted opinion on grant of rehearing issued this date, our January 26 opinion, the briefs, the State’s petition for rehearing and attachments, and appellant’s response and attachments will be forwarded to the Committee. The Committee may check out the record from the clerk’s office if it sees fit.
ROAF, J., concurs.
HART, J., dissents.
1 Appellant’s attorney did not point to this writ of certiorari and subsequent order by the trial court as support for the proposition that no hearing had been held. Rather, these items were found by this court when searching the record for something to support the State’s assertion that a hearing had been held. See Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993) (we have the authority to go to the record to affirm a trial court’s decision). What was not in the record, but which has subsequendy been found in our clerk’s office, is the motion that caused us to grant the writ. That motion was concerned with the correctness of the record as to a separate and unrelated point of the case, and it is that motion that the trial court was responding to when it entered the broadly worded order referred to. | [
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James R. Cooper, Judge.
In this unemployment com - pensation case, the appellant was awarded benefits by the agency and the Appeal Tribunal. The Board of Review reversed, based on a finding that the appellant had been discharged for misconduct in connection with the work. From that decision, comes this appeal.
The appellant, Frankie Exson, was employed by the appellee, Siemens -Allis, as a boring machine operator. On August 13, 1982, the appellant was discharged for making defective parts. The appellee contended that the appellant was discharged because he had repeatedly failed to follow the required procedure for checking his machine for a concentricity measurement at the beginning of each of his shifts. The failure to check in this case resulted in $2,500.00 worth of defective parts being produced. The parts were salvageable, but it was at considerable cost of time and money to the appellee. The appellee argued that since the appellant had been working for the company for over four years and had twice before been reprimanded, he was familiar with the proper procedures, but continually failed to use them.
The appellee has a progressive disciplinary policy. The first error by an employee warrants a verbal warning. The second error results in a three-day suspension. If a third error is committed by the employee, a discharge may be ordered. In the case at bar, the appellant had been given both the verbal warning and the three -day suspension before the last incident occurred.
The appellant claims that the first parts he ran during the relevant period of time were checked and approved by quality control personnel, and therefore he was unaware of any defects. Although the appellant admitted that it was his responsibility for making a daily check of his machinery, he argued that he had made an inadvertent error on the days involved because of the increased demand for the parts by the appellee.
Arkansas Statutes Annotated § 81-1106 (b) (1) (Repl. 1976) provides that an employee is disqualified from receiv - ing 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 best interests, or a disregard of the standard of behavior which the employer has a right to expect of his employees. Brewer v. Everett, 3 Ark. App. 59, 621 S.W.2d 883 (1981); Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W.2d 495 (Ark. App. 1980).
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 employ - er’s interests of or an employee’s duties and obligations. [Citation omitted.]
Whether an employee’s action constitutes misconduct in connection with the work or merely results from inefficiency, unsatisfactory conduct, or unintentional failure of perform - anee is a question of fact for the Board of Review. Arlington Hotel v. Employment Security Division, 3 Ark. App. 281, 625 S.W.2d 551 (1981).
In Ham v. Daniels, 270 Ark. 961, 606 S.W.2d 604 (Ark. App. 1980), this Court stated:
The employer testified the appellant had been at least indifferent to his duties and had stated it really did not matter that he mixed up typewriter deliveries. That testimony shows actions by the employee which were not in his employer’s best interest. It was supportive of the finding the employee was disqualified from benefits, having been discharged for misconduct. Ark. Stat. Ann. § 81 -1106(b) (1) (Repl. 1976). Havingfound substantial evidence in support of the board’s decision, we must affirm. [Citations omitted.]
On appeal, this Court is required to review the evidence in the light most favorable to the decision reached by the Board of Review and to affirm the decision if it is supported by substantial evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). Substantial evidence has been defined as such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Victor Industries Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981). In the case at bar, we find substantial evidence that the appellant’s recur - rent errors concerning his machinery constituted a substantial disregard of the employer’s best interests and the appellant’s own duties and obligations.
Affirmed.
Cloninger & Glaze, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, Phillip Wayne Harris, was charged and convicted of the crime of rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977). We affirm.
Mary, the seven -year -old victim, testified that while she was at her grandmother’s house, appellant made her get on the floor and pull down her panties. Appellant then pulled down his pants and got on top of her. Mary stated that appellant put his private place, what she called his "twinkle”, in her private place and that it hurt between her legs. When Mary complained of stomach pain, her mother took her to the Arkansas Children’s Hospital. The Examining physician, Dr. Joe T. Robinson, testified that Mary’s genital area was irritated, the lower region of the hymen appeared to be torn, and there was a yellowish discharge from the vaginal area. He reported that the torn hymen was consistent with sexual penetration. Dr. Robinson diagnosed that tests run on Mary were positive for gonorrhea.
Appellant contends that the evidence presented at trial was insufficient to prove rape. The thrust of his argument is that the State failed to adduce evidence of the anatomical definitions of the ambiguous terminology used by the victim.
We find the evidence to be sufficient. The record reveals that Mary’s testimony left no doubt in the jury’s mind that she was raped by appellant. The State clearly proved appellant penetrated Mary’s vagina with his penis. In Stevens v. State, 231 Ark. 734, 332 S.W.2d 482 (1960), the victim, described as “a little girl”, stated appellant put his private parts in her private parts. The jury, as well as this Court, can consider the evidence in light of their common knowledge. See, Canard v. State, 278 Ark. 372, 646 S. W.2d 3 (1983).
This court, on appeal, views the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support the conviction. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983).
Affirmed.
Mayfield and Cooper, JJ., agree. | [
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George K. Cracraft, Judge.
David T. Gregory appeals from his conviction of two counts of theft by receiving as provided in Ark. Stat. Ann. § 41-2206 (Repl. 1977). He advances three points of error which we discuss separately. We find no error and affirm the conviction.
During the trial Larry Bradley, a witness for the State, testified that he had stolen most of the items charged in the indictment and that he had told appellant they were stolen before appellant purchased them. Counsel cross-examined the witness with regard to his ability to identify appellant as the person to whom he had sold the stolen goods and the amount he had received for them. The witness maintained that he was certain as to both. Counsel then asked:
Q. Now Larry it is a fact well known to you and to others that you do indulge in smoking the obnoxious weed marijuana, isn’t it?
The State objected to this question and defense counsel argued:
Your Honor, this is for the purpose of impeachment, which has nothing to do with relevance ... . Your Honor, I have simply asked this witness whether or not he is a user of marijuana. And I believe as far as his credibility goes I should be permitted to ask that, receive an answer and to explore further. It is possible that if he is, he very well may have been high and not recall who he sold it to.
The fact that the witness was known to have “indulged in smoking the obnoxious weed” was not relevant to any issue in the case or admissible under the Uniform Rules of Evidence for the purpose of impeachment. There was nothing to show that the instances of marijuana use were sufficient in number to warrant a finding that the habit existed or that the practice was so routine as to become semi-automatic or completely involuntary to bring it within the exceptions of Unif. R. Evid. 406. Henry v. Cline, 275 Ark. 44, 626 S.W.2d 958 (1982). Nor was the question phrased so as to elicit such an answer. Appellant does not point out to us any rule of evidence under which he contends that he should have been permitted to show that this witness was known on occasion to have smoked marijuana.
The appellant argues that he was not permitted to bring the credibility of the witness into issue by showing that he was under the influence of the controlled substance at the time of the events reported in his testimony. Our review of the record discloses that the appellant was in fact permitted to ask questions about the witness’s use of drugs on these occasions and the effect it might have had on his perception. Counsel asked him on several occasions if at the time of these transactions he was under the influence of any drugs. The witness answered “I recall I was pretty straight all the way.” He did admit that it was possible that he might have been under the influence but felt that he was not.
We conclude that the court’s ruling on the question as phrased was a correct one.
One of the counts for which he was convicted charged the appellant with receiving “one .357 revolver” belonging to Leon Oxford knowing or having good reason to believe that it was stolen. Leon Oxford testified that in September 1981 a .357 magnum pistol was stolen from his place of business. He stated that it had been purchased for $119 eight years earlier, had only been fired once and had been kept in the house without being used for that period of time. At the close of all the testimony the appellant moved for a directed verdict, contending that the State had failed to introduce proper proof of the market value of the weapon. He argues that the purchase price paid for the weapon eight years earlier was too remote to establish value at the time of the commission of the crime.
We need not address the question of whether the evidence was sufficient to establish the market value of the weapon. Ark. Stat. Ann. § 41-2206 (Repl. 1977) establishes the elements of theft by receiving and then classifies the range of punishment according to the value of the stolen goods. Ark. Stat. Ann. § 41-2206 (5) (b) (ii) and (iii) make different classifications for theft of credit cards and firearms. There is no provision for the valuation of credit cards and theft by receiving of a firearm is a Class C felony if the weapon is valued at “less than $2500.” The commentary states “it makes theft by receiving a firearm at least a Class C felony regardless of the weapon’s value. Such indiscriminate treatment of both credit cards and firearms is amply justified by the need to deter trafficking in such stolen property.” Under this section the State was not required to establish the value of the weapon in order to obtain a conviction.
In his closing argument appellant’s counsel stated to the jury that in order to be convicted of crime one must have possessed ‘ ‘what I would call, and they call mens rea, a guilty state of mind.” The court sustained the State’s objection that mens rea was not an evidentiary fact in the case and was not mentioned in the instructions given by the court. The State argued that the Latin term had many definitions which had been eliminated in the adoption of our criminal code. Appellant now argues that this ruling of the court deprived him of the right to argue that the appellant had not acted with knowledge of the fact that the property was stolen. We do not agree.
The court had already properly instructed the jury that in order to find the appellant guilty the State must prove beyond a reasonable doubt that the appellant acquired possession of or disposed of stolen property of another person knowing or having good reason to believe it was stolen. This instruction was given in the form prescribed in AMCI 206 and included the definition of “knowledge” contained in that approved instruction.
Upon the court’s ruling the defense counsel without asking for any other action made a lengthy argument that the appellant could be convicted only if the jury found that he had knowledge that the property was stolen. He then requested to be furnished with the court’s instruction on “knowledge” and read it to the jury and argued from it. We do not need to determine whether the court was correct in not permitting the use of a Latin term which means in general “a criminal intent or guilty mind.” Counsel was given ample opportuni ty to argue, and in fact did argue, that knowledge constituted an element of theft by receiving which the State was required to prove beyond a reasonable doubt.
The appellant has failed to point out to us and we have been unable to find how he was prejudiced by that ruling. We do not reverse for non-prejudicial error. State v. Vowell, 276 Ark. 258, 634 S.W.2d 118 (1982).
Affirmed.
Cloninger and Glaze, JJ., agree. | [
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Donald L. Corbin, Judge.
This is an appeal from a decision of the Union County Circuit Court denying appellant’s claim against appellees for damage to appellant’s equipment as a result of the alleged negligence of appellees’ son. The case was tried without a jury and the question on appeal is whether there is sufficient evidence to support the trial judge’s decision.
In June 1984, appellees’ son, Robert Richard, damaged appellant’s gas pump while driving a car registered in the name of appellees’ business. A few days later, appellant’s employee, C. W. Kinslow, informed appellee Ray Richard of the damage. Mr. Richard told Kinslow that his insurance would take care of the loss. The parties disagree as to whether Mr. Richard also stated that Robert was working for him when the accident occurred. Within a few days after the incident, appellees learned that they did not have insurance to cover the loss, and Kinslow was informed of this when he spoke with Mrs. Richard by telephone a few days later. Since the appellees had worked for appellant in the past, Kinslow called Mrs. Richard two or three times to discuss the possibility that they might work off the debt, but in January 1985, Mrs. Richard informed Kinslow that they were not going to pay it.
Appellant filed suit in February 1985 against appellees and their son, Robert Richard. However, service was never perfected upon Robert Richard, who had moved to California in the fall of 1984. Appellant proceeded against appellees on two theories: (1) as principals liable for the negligence of their agent; and (2) in contract resulting from appellant’s forbearance to sue in reliance upon appellees’ promises and representations that the debt would be paid. Without stating its reasons, the court entered judgment for the appellees.
On appeal, the appellant argues three points:
(1) the trial court erred in failing to find that Robert Richard was appellees’ agent and that appellees had ratified his negligent act;
(2) the trial court erred in failing to find that appellees were liable to appellant in contract because of appellant’s forbearance from filing suit against all three defendants; and
(3) under the holding in Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), the appellant’s contract and tort theories partially support each other, and taken together, should allow recovery.
With regard to appellant’s contention that Robert was appellees’ agent, the evidence was sharply in conflict. The burden was upon appellant to prove the existence of the agency relationship. B.J. McAdams, Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519, 579 S.W.2d 608 (1979). Appellant’s argument that “the possession of the agent is the possession of the principal” and that “appellees ratified the acts of their son” is premature, because the agency relationship must first be shown to exist. The doctrine of ratification is inapplicable when no agency relationship is proved. Runyan v. Community Fund of Little Rock, 182 Ark. 441, 31 S.W.2d 743 (1930). In Evans v. White, 284 Ark. 376, 378, 682 S.W.2d 733, 734 (1985), the Arkansas Supreme Court said:
We have adopted the definition of agency contained in the Second Restatement of the Law of Agency, Section 1, comment a, which provides that the relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control. Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968). The two essential elements of the definition are authorization and right to control.
Agency can be proved by circumstantial evidence, if the facts and circumstances introduced in evidence are sufficient to induce in the minds of the jury the belief that the relation did exist and that the agent was acting for the principal in the transaction involved. B.J. McAdams, Inc. v. Best Refrigerated Express, Inc., supra. If the facts are in dispute, agency is a question of fact. Evans v. White, supra. On appellate review of a trial judge’s decision we must give due regard to his opportunity to judge the credibility of the witnesses and we will not set aside his findings unless clearly against the preponderance of the evidence. ARCP Rule 52(a); Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980). We cannot hold that the trial judge’s decision was clearly against the preponderance of the evidence on this point.
Appellant’s second point is that appellees became liable in contract because they initially agreed to pay the debt and, in reliance on that promise, appellant waited approximately six months to bring suit. Appellant is correct in its assertion that the waiver of a legal right (such as forbearance to sue) is sufficient consideration to support a promise to pay the debt of another. Jonesboro Hardware Company v. Western Tie & Timber Company, 134 Ark. 543, 204 S.W. 418 (1918). In Rohrscheib v. Helena Hospital Association, 12 Ark. App. 6, 9, 670 S. W.2d 812, 815 (1984), this court explained:
It is also settled that where the original debt has already been incurred, an oral promise by a third party to discharge a preexisting debt without new consideration is a collateral promise and within the statute [of frauds]. However, both an original undertaking under which benefits are initially obtained, and a promise to discharge a preexisting debt which is founded on new consideration are enforceable and deemed to be outside the statute. Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S. W.2d 623 (1982); Long v. McDaniel, 76 Ark. 292, 88 S.W. 964 (1905); Kurtz v. Adams, 12 Ark. 174, 7 Eng. 174 (1851).
Accord, The Fausett Company v. Rand, 2 Ark. App. 216, 619 S.W.2d 683 (1981).
The determination of whether an oral contract is an original undertaking or a collateral one is a question of fact, and is dependent upon all of the relevant facts:
It is also well settled that in determining whether an oral contract is original or collateral the intention of the parties at the time it is made must be regarded and in determining that intention the exact words of the promise, the situation of the parties and all of the circumstances surrounding the transaction should be taken into consideration. This deter mination ordinarily is one of fact and not of law. Missouri Pacific Railroad Co. v. Havens, 164 Ark. 108, 261 S.W.31 (1924).
Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 4, 631 S. W.2d 623, 625 (1982). Accord, Millsaps v. Nixon, 102 Ark. 435, 144 S.W. 915 (1912).
“It is also well settled that mere forbearance from exercising a legal right, without any request to forbear, or circumstances from which an agreement to forbear may be implied, is not a consideration which will support a promise.” Federal Compress & Warehouse Co. v. Hall, 209 Ark. 274, 280, 189 S.W.2d 922, 925 (1945). A review of the evidence in the instant case fails to reveal any request by appellees to forbear from suit or sufficient circumstances from which such agreement may be implied. In view of this, the trial judge was not clearly wrong in rejecting appellant’s second point.
Appellant’s third point for reversal must also be rejected. Relying upon Jim Halsey Co., Inc. v. Bonar, supra, appellant contends that “even if such errors were not separate grounds for reversal, the combined effect of the two errors is grounds for reversal.” The case, however, does not support the argument. Instead, it simply underscores a plaintiff's right to proceed under two consistent theories of recovery when a defendant denies liability. “Contract and tort theories have been determined to be consistent when both seek the same relief and the evidence to support recovery on one theory partially supports it on another.” Id. at 465, 683 S.W.2d at 902. The case simply does not stand for the principle for which it is cited by appellant.
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant Danny Spencer was convicted by a jury of battery in the third degree. He was sentenced to one year in jail and fined $1,000.
The charge against appellant involved his girl friend’s two- and-a-half-year-old daughter, Nikki, and arose after a babysitter noticed what appeared to be bite marks on the child’s buttocks, and pinch marks and apparent fingerprints on the child’s face. Upon being questioned, the child said that Danny had bitten and hurt her. The babysitter contacted SCAN and an investigation by the Barling Police Department ensued.
Appellant’s sole argument for reversal is that the state failed to prove the existence of a physical injury. Battery in the third degree is committed if a person purposely or recklessly causes physical injury to another person. Ark. Stat. Ann. §41-1603(1) (Repl. 1977). Physical injury is defined as the impairment of physical condition or the infliction of substantial pain. Ark. Stat. Ann. § 41-115(14) (Repl. 1977). Appellant contends the state has produced no evidence that Nikki suffered an impaired physical condition or substantial pain.
The appellant relies on Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), where the majority concluded that the victim’s testimony that he believed the cut he received went through his clothes but was not sure because it had been so long ago, and the testimony of a witness that the injury was like a “fingernail scratch” did not constitute enough evidence of substantial pain to support a conviction of third degree battery. Appellant contends that bite marks on the child’s buttocks and pinch marks on her face are not sufficient to constitute physical injury as interpreted by controlling case law.
We do not agree. We think this case falls in a category with Middleton v. State, 14 Ark. App. 92, 685 S.W.2d 182(1985), and Hall v. State, 11 Ark. App. 53, 666 S.W.2d 408 (1984), which the appellant tries to distinguish. In both of those cases, as here, only bruises were shown, but it was held that there was evidence of the infliction of substantial pain. In Hall, that evidence was testimony that the appellant had hit a six-year-old child, knocking him down, and in Middleton, it was a statement that the appellant had grabbed and squeezed a baby’s chin and left bruises on her. Here, there is testimony by the babysitter, Mrs. Crowson, that Nikki appeared to be terrified of appellant; that there were occasions when the child reacted strongly to his presence; and that once, when Danny and Mrs. Crowson’s husband were alone with Nikki in the Crowson house, Nikki started screaming and ran to Mrs. Crowson’s husband and would not let go of him. The jury could reasonably find from this testimony that the infliction of the bruises was accompanied by the infliction of substantial pain.
Our criminal code scales battery in degrees of first, second, and third, with the severity of punishment based in part on the harm done to the victim. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976), Hall v. State, supra. We think there is a distinct difference between the pain sustained by a man who couldn’t remember the incident and a child who showed fear of an adult who had bitten her.
We find no merit in appellant’s argument that the state failed to show substantial pain.
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Jimmy Wright appeals his conviction of driving while intoxicated, a felony for which he was sentenced to three years in the Department of Correction and fined $3,000. We find no error.
The appellant first contends that the trial court erred in not granting his motion to suppress evidence of a breath analysis which he argued was administered pursuant to an unlawful arrest. We find no merit in this contention. The deputy sheriff, Lloyd Schirmer, testified that he observed the appellant driving a vehicle into a parking lot. When the appellant got out of the vehicle it was apparent that he was under the influence of alcohol. Some difficulty arose between the appellant and the other1 occupants of the vehicle which Schirmer believed might result in a public disturbance. He stated that he would have arrested the appellant but did not want to involve a deputy who was with him because he had not fully recovered from an operation and was on limited duty. He therefore called for assistance.
A patrolman of the Fort Smith Police Department responded to the call. He had not seen appellant drive the vehicle but was told by the deputy sheriff what he had observed. The patrolman testified that it was obvious to him that the appellant was intoxicated and, based on the additional information furnished by Schirmer, arrested him for driving a vehicle while intoxicated.
A.R. Crim. P. Rule 4.1(a)(ii)(C) provides that an officer may make an arrest without a warrant if he has “reasonable cause to believe that the person has committed . . . driving a vehicle while under the influence of any intoxicating liquor or drugs.”
Reasonable cause exists where fa.cts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient within themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984). Here the officer had personal observations sufficient to warrant his belief that the appellant was intoxicated. He had reasonably trustworthy information from a deputy sheriff that he had observed the appellant operating a motor vehicle in that condition a few minutes earlier. Under the circumstances of this case we cannot conclude that the arresting officer did not have reasonable cause for the arrest without a warrant.
Appellant next contends that the trial court committed prejudicial error in permitting an amendment to the information on the date of trial. We have not been favored with an abstract of the original information, the proffered amendment, or the ruling of the court on appellant’s objection. Rules of the Supreme Court and Court of Appeals, Rule 9(d), imposes on the appellant the duty of furnishing the court with such an abridgment of the record as will enable the court to understand the issues presented on appeal. Without an abstract of the proceedings on the motion to amend the information we cannot tell if there was error or, if so, whether it was prejudicial. The court is not required to explore the transcript in search of error and will not do so. References to the transcript contained in argument is not a substitute for a proper record. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980).
The appellant next contends that the trial court erred in refusing to permit him to argue the issue of a suspended sentence to the jury. Although in most instances the jury may recommend mercy or the imposition of a suspended sentence, its recommendation is advisory only and not binding on the trial court. The trial court alone has the authority in a proper case to impose a suspended sentence. James v. State, 11 Ark. App. 1, 665 S.W.2d 883 (1984); Clayton v. State, 247 Ark. 643, 447 S.W.2d 319 (1969). Under the Omnibus DWI Act, however, the sentences and fines are mandatory and even the trial court lacks authority to reduce or suspend them. Lovell v. State, 283 Ark. 425, 681 S.W.2d 395 (1984). We find no error in the trial court’s ruling.
The appellant finally contends that the court erred in denying his request to permit the jury to decide whether he had been represented by counsel on each of his prior DWI convictions. During the trial the court considered oral and documentary evidence for the purpose of determining whether the appellant had been represented by counsel on each of the prior convictions and whether the documentary evidence was otherwise admissible. The trial court found that the appellant had been represented by counsel on all four prior convictions and the certified copies of those convictions were admissible. The appellant insisted that the trial court erred in not submitting the issue of whether he had been represented by counsel to the jury. Prior convictions for the same offense is a material element of felony DWI and must be proved to the satisfaction of the jury. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). The court did submit that evidence to the jury for their consideration in reaching their verdict. We do not agree that the determination of whether the evidence of those convictions was admissible was a question for the jury. Preliminary questions as to the admissibility of evidence are to be determined by the trial court. Unif. R. Evid. 104(a). In Peters the court stated that trials for DWI, felony, should be bifurcated and that after a defendant is found guilty of the underlying DWI charge the jury should hear evidence of previous convictions. The court stated that the trial judge will still determine whether the accused was represented by, or entered a valid waiver of, counsel in the previous convictions alleged and will exclude evidence of any conviction not meeting the counsel requirements.
We conclude that the trial court properly decided the question of admissibility of the documentary evidence of prior convictions. In this case the proceedings were not bifurcated as set forth in Peters. No objection was made to the absence of bifurcated proceedings and that issue will not be considered for the first time on appeal. Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985); Young v. State, 14 Ark. App. 122, 685 S.W.2d 823 (1985).
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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Judith Rogers, Judge.
This appeal involves a dispute over the ownership of a certificate of deposit purchased by D.J. Jones from appellee Pine Bluff National Bank. D.J. Jones died on February 25,1987, and his widow, appellant Betty Castle Jones, is contesting the chancellor’s decision determining that a mutual mistake had been made and reforming the certificate of deposit to indicate that the decedent’s son, appellee Roger Jones, was the payee instead of appellant. Appellant raises six points for reversal. We find no error and affirm.
On March 29,1985, D.J. Jones purchased three certificates of deposit from Pine Bluff National Bank: (1) #9649 in the sum of $8,000 and payable to D.J. Jones or Betty Jones; (2) #9650 in the sum of $8,000 and payable to D.J. Jones or Roger Jones; and (3) #9651 in the sum of $2,000 payable to D.J. Jones or Betty Jones. All three certificates of deposit matured on March 29,1986, and D.J. Jones returned to the bank on March 31,1986. He left with three certificates of deposit: (1) #10912 in the sum of $8,000; (2) #10913 in the sum of $8,000; and (3) #10915 in the sum of $2,000. All three of the originals that he took with him were in the names of D.J. or Betty Jones.
Appellant went to the bank to cash in the certificates of deposit on April 27, 1987. The bank refused to pay #10913, the replacement of #9650, since its records indicated that Roger Jones was the payee. The bank filed this action for interpleader in chancery court for the determination of the rightful ownership of certificate #10913.
Appellant’s first argument on appeal is that the evidence was insufficient to support a decree for reformation. Reformation is an equitable remedy which is available when the parties have reached a complete agreement but, through mutual mistake, the terms of the agreement are not correctly reflected in the written instrument purporting to evidence that agreement. Delone v. U.S.F.& G., 17 Ark. App. 229, 707 S.W.2d 329 (1986). In reformation cases, the burden of proof is by clear and convincing evidence. Turner v. Pennington, 7 Ark. App. 205, 646 S.W.2d 28 (1983). However, we review the evidence to determine whether the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Akin v. First Nat’l Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988); Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987).
In a well-reasoned and thorough opinion, the chancellor found that a mutual mistake was made by D.J. Jones and the bank. The chancellor quoted extensively from the deposition of Emma Lou Bennett, the bank employee who waited on Mr. Jones on March 31,1986. Ms. Bennett testified that Mr. Jones came in and stated that he wanted the certificates of deposit renewed. Ms. Bennett further testified that this was his only instruction and that he did not tell her of any changes that he wanted made in them. Ms. Bennett further stated that the name change from D.J. or Roger Jones to D.J. or Betty Jones on #10913, which replaced #9650, was evidently a typographical error. She related that she went to lunch after Mr. Jones left, and upon her return from lunch, she was told to see her supervisor, Jan Mills. Ms. Bennett stated that Ms. Mills told her that she had typed the wrong name on one of the certificates of deposit and that Mr. Jones would bring it in the next day and have it corrected.
Mr. Jones never returned the certificate of deposit to the bank for correction. The copy of the certificate of deposit in the bank’s possession was changed to indicate that it was payable to D.J. Jones or Roger Jones, while the original in the decedent’s possession remained unchanged.
The chancellor considered extensive testimony and apparently believed that of Ms. Bennett. The mistake of a draftsman, whether he is one of the parties or merely a scrivener, is adequate grounds for relief provided only that the writing fails to reflect the parties’ true understanding. Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984). As the court stated in Akin, 25 Ark. App. at 346, 758 S.W.2d at 17 (1988), “[t] he fact that it was a bank employee who drafted the instrument wrong, does not render the mistake a unilateral one in a legal sense.” We defer to the chancellor’s superior position to evaluate the evidence and cannot say that he was clearly wrong in finding that a mutual mistake had been established by clear and convincing evidence. Ark. R. Civ. P. 52(a).
Appellant’s second argument for reversal is that the trial court erred in admitting evidence at trial to establish what the decedent intended, since the certificate of deposit was purchased pursuant to Ark. Code Ann. § 23-32-1005 (1987). At trial, evidence of the decedent’s intent was admitted without objection, specifically the deposition of Emma Lou Bennett. We have long held that assignments of error may not be raised for the first time on appeal. Wasp Oil Inc. v. Ark. Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). Even so, we note the statute cited by appellant refers to the creation of a survivorship interest in a deposit or certificate of deposit. No one has argued that a survivorship interest was not created and there is no authority indicating that the equitable remedy of reformation is barred by this statute.
Appellant’s third point for reversal is that the court’s decree is not supported by any pleadings of the parties. At trial, appellee Roger Jones moved to amend the pleading to conform to the proof to include the theory of contract reformation. The chancellor asked appellant if she had any objections. Appellant replied that she had none. Appellant cannot now complain after waiving any objection. It is well settled that an objection not raised in the trial court cannot be raised for the first time on appeal. Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967). Therefore, the decree is supported by the pleadings as amended.
Appellant’s fourth point of asserted error is that the bank is barred by the equitable doctrines of estoppel and laches from the relief given. Laches and estoppel are affirmative defenses which must be pled. Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984). From our review of the record before us, appellant neither pled nor even raised this defense before the chancellor and we need not consider this argument on appeal.
Appellant’s fifth point on appeal is that even if there was a mutual mistake, it was ratified as written. The chancellor found that there was no credible evidence that would indicate that D.J. Jones ever intended for anyone other than his son, Roger Jones, to have the disputed certificate at the time of his death. We cannot say that finding was clearly erroneous.
Finally, appellant argues that the court erred in failing to grant appellant’s motion testing the sufficiency of the evidence at the close of the appellee bank’s case. In equity cases, a party may challenge the sufficiency of the evidence at the conclusion of the opponent’s evidence by moving either orally or in writing to dismiss the opposing party’s claim for relief. Ark. R. Civ. P. 50(a). However, in a non-jury trial, a party who does not challenge the sufficiency of evidence does not waive the right to do so on appeal. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984). As we have already discussed, upon review of the sufficiency of the evidence, we cannot say that the chancellor’s decision was clearly erroneous. Ark. R. Civ. P. 52. In moving to challenge the sufficiency of the evidence, appellant seemed to argue that the appellee bank had offered insufficient evidence to support a finding that it was entitled to bring an action for interpleader. We note that the bank’s interpleader action was brought to avoid double liability for payment of the certificate of deposit. Such action was available under Ark. R. Civ. P. 22, which generally provides that persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. Therefore, we cannot say that an interpleader was improper for the bank to use to determine who was the correct payee, nor are we able to say that the chancellor’s decision granting reformation was clearly erroneous.
AFFIRMED.
Jennings and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
For his appeal, the appellant, Billy Don Kibler, contends the chancellor erred in finding him in contempt for failing to pay child support for the month of December 1987 and in awarding the appellee judgment against him in the amount of $7,076.00, which was the indebtedness remaining on the appellee’s Ford Bronco at the time it was traded on a 1986 Subaru. We affirm the trial judge’s finding on the issue of child support, but we reverse and remand the $7,076.00 judgment awarded to the appellee.
The parties were divorced in August 1986, the appellee was awarded custody of the parties’ minor daughter, and the appellant was ordered to pay child support of $175.00 per month. On February 3,1988, the appellee filed a petition seeking to have the appellant held in contempt for his failure to make child support payments as ordered by the court and seeking to have her support increased. The appellant responded and counterpetitioned, denying that he had violated the court’s order and seeking reimbursement for the monthly payments of $286.00 that he made toward the purchase of a 1986 Subaru for the appellee. After a hearing on the petitions, the chancellor found the appellant in contempt for nonpayment of child support for three weeks during the month of December 1987 and awarded the appellee judgment of $131.25. The chancellor also found the appellant in contempt for his failure to pay the sum of $7,076.00 to the appellee, the balance of the debt owed on the Ford Bronco at the time it was traded in on the Subaru, and gave the appellee judgment against the appellant for that amount. The judge further found the parties entered into an agreement to purchase a 1986 Subaru; that the Subaru had been repossessed; and that both parties were jointly and severally liable for any deficiency which might result from the foreclosure on the Subaru, over and above the $7,076.00 judgment the appellee has been awarded against the appellant.
On the issue of child support, the parties’ divorce decree provides:
[The appellant] shall be required to pay ONE HUNDRED SEVENTY FIVE DOLLARS ($175.00) per month in child support and shall in addition be responsible for the payment of extraordinary medical, hospital and dental expenses for the minor child. Child support payable on the 1st and 15th of each month. When the minor child is with the [appellant] for one week or more, child support shall be reduced to one-half, the same being EIGHTY SEVEN and 50/100 DOLLARS ($87.50). In the event [the appellee] wife should remarry, then child support shall be held in abeyance at any time that the [appellant] father has the minor child in his custody for one week or more.
The appellant asserts the trial court erred in finding him in contempt for nonpayment of child support during three weeks in December, and he relies on his interpretation of the divorce decree for this proposition. The appellant contends that, since the appellee had remarried and he had custody of the parties’ daughter for one week during December of 1987, he was relieved of his obligation to pay child support for that entire month.
One seeking reversal of a chancellor’s decree has the burden of demonstrating error in the chancellor’s findings; and we will not reverse such findings unless they are clearly against the preponderance of the evidence. Weber v. Weber, 256 Ark. 549, 508 S.W.2d 725 (1974). The appellant did not offer any evidence in support of his interpretation of the decree, he only argues that the chancellor’s interpretation is in error. The chancellor’s finding was that the appellant’s obligation to pay child support was only abated for each weekly period in which he had actual custody of the parties’ child and not for the remainder of the month. There is no evidence in the record demonstrating that the chancellor’s interpretation of the decree is clearly erroneous; therefore, his decision is affirmed. See Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983).
The appellant also asserts that the trial judge erred in finding him liable for the payment of $7,076.00 to the appellee. The parties’ divorce decree ordered the appellant to pay off the indebtedness due upon the Ford Bronco. In February 1987, the parties, apparently contemplating reconciliation, agreed to trade the 1985 Bronco toward the purchase of a 1986 Subaru vehicle, for which they both cosigned on the note. At the time of the trade $7,076.00 remained to be paid on the Bronco. The appellant made some of the monthly payments on the Subaru, but it was later repossessed by the finance company.
The appellant contends the parties’ decision to buy the Subaru was an oral modification of their property settlement agreement and the chancellor was bound by the terms of the oral modification. We do not agree with this contention. This is not a situation in which the chancellor attempted to modify a property settlement agreement entered into by the parties and which was incorporated into the decree, nor is it a situation where the chancellor was attempting to interpret the parties’ existing property settlement agreement. There is no evidence in the record that a property settlement agreement was entered into by the parties; in fact, the appellee testified they did not enter into an agreement but that the divorce decree required the appellant to pay off the Bronco. Furthermore, the appellee disputes the appellant’s contention that the parties agreed to a modification of this provision in the decree. The appellee testified that it was the appellant’s idea to buy the Subaru, that it was to be a gift to her, and that the appellant was going to make the payments.
The divorce decree clearly ordered the appellant to pay off the indebtedness represented by the Ford Bronco. The divorce decree provided that “[appellee] shall further receive the 1985 Bronco vehicle and the [appellant] shall pay the indebtedness due upon said motor vehicle.” There is no evidence in the record to suggest that the chancellor’s intent was other than to order the appellant to be responsible for a marital debt. We do not agree with the appellant that this marital debt was extinguished when the Ford Bronco was traded on the Subaru, but we find that the debt was merely transferred to another vehicle. We agree with the appellant’s contention, however, that he should be given credit against the $7,076.00 debt for the amount of payments he has made toward reducing the debt on the 1986 Subaru.
We hold that the chancellor was correct in finding the appellant liable for payment of a marital debt, which was secured by the Ford Bronco, but we also hold he erred in not offsetting that debt by the payments the appellant has made toward the 1986 Subaru. Because the record before us is not sufficiently developed so that we can determine that amount, we reverse and remand for a determination of this amount and a finding that the appellant is liable to the appellee in monthly payments of $278.00 until the $7,076.00 marital debt, less the amount of payments the appellant has made toward the Subaru, is paid in full.
Affirmed in part; reversed and remanded in part.
Corbin, C.J., and Rogers, J., agree. | [
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John E. Jennings, Judge.
This is an appeal from an order of the Arkansas Public Service Commission denying Arkansas Oklahoma Gas Company’s proposed surcharge under Ark. Code Ann. Sections 23-4-501 et seq. (1987) (Act 310 of 1981) for expenditures associated with asbestos removal from two of appellant’s buildings in Fort Smith, Arkansas. Appellant, AOG, filed an Interim Rate Schedule for a surcharge pursuant to Ark. Code Ann. Section 23-4-501 et seq. (1987) on September 30, 1987. The application sought permission to surcharge its Arkansas ratepayers a $106,869.00 jurisdictional share of asbestos removal and related costs for its main office building and a garage in Fort Smith, Arkansas. Appellant contends that it incurred those costs as a direct result of 40 C.F.R. Sections 61.140 through 61.153 and 29 C.F.R. Section 1926.58. Those federal regulations establish specific standards, procedures, and guidelines to be followed with regard to handling of asbestos materials.
The Commission established Docket Number 87-149-U for the purpose of considering the application, and hearings were held in December of 1987. Appellant amended its application to increase the amount it desired to surcharge its customers, and the Commission in May entered Order Number 9, which denied the application entirely. This appeal followed.
Arkansas Code Annotated Sections 23-4-501 through 23-4-509 (1987) were enacted for the following purposes, as stated in Section 23-4-501:
(a) It is recognized that legislative or administrative regulations impose certain legal requirements upon public utilities relating to the protection of the public health, safety, or the environment; and that:
(1) In order to comply with such legislative or regulatory requirements, utilities are required to make substantial additional investments or incur additional expenses with respect to existing facilities used and useful in providing service to the utility’s customers; and
(2) Although such additional investments and expenses are necessary in order to provide service to the utility’s customers, such additional investments and expenses are not included in the utility’s rate and cannot be recovered in a prompt and timely fashion under existing regulatory procedures.
(b) It is intended by the General Assembly that utilities be permitted to recover in a prompt and timely manner all such costs incurred by utilities in order to comply with such legislative or regulatory requirements through an interim surcharge which, if approved, shall be effective until the implementation of new rate schedules in connection with the next general rate filing of the utility wherein such additional investments or expenses can be included in the utility’s base rate schedules. However, the costs to be recovered through such interim surcharge shall not include increases in the cost for employment compensation or benefits as a result of legislative or regulatory action.
It is undisputed that the insulation material appellant spent money to remove was asbestos as that term is defined in 40 C.F.R. 61 Subpart M, Section 61.141. The parties agree that the primary point of controversy in this case involves a dispute about whether the asbestos was “friable.” Section 61.141 provides the definition: “/fjriable asbestos material means any material containing more than 1 % asbestos by weight that hand pressure can crumble, pulverize, or reduce to powder when dry.” Section 61.147 provides that friable asbestos material must be removed during “demolition” or “renovation” work (defined at 61.141), or that other measures be taken to prevent the release of asbestos fibers into the outside air during the renovation or demolition. Appellant argues that the insulation material was friable and, therefore, federal regulations mandated the expenditures to remove it. The appellee contends that the asbestos was not in fact friable and, even if it were, removal was not the only alternative available under the law and other less costly abatement procedures may have been available. The Commission’s order, however, does not address whether removal, as opposed to other abatement procedures, was a reasonable course of action.
Three witnesses for appellant testified at the hearing on the surcharge application. One witness testified for AOG as to the costs of the asbestos removal and the allocation of those costs based on customer class and jurisdiction. AOG’s attorney and risk manager, Michael J. Callan, testified as to the circumstances giving rise to the asbestos removal expenses. He said that AOG had employed an asbestos consulting firm to analyze insulating materials in its buildings and found that some of the materials contained up to thirty percent (30%) chrysotile, a form of asbestos.
There was evidence that AOG needed to install a new chiller for its main office building in order to keep its air conditioning unit working, and this project might necessitate disturbing asbestos insulating material on pipes and ducts. When asbestos insulation is disturbed, its particles or fibers can become airborne and, when inhaled or ingested, can cause cancer and other serious diseases. Callen testified that the asbestos was not in good condition and that the insulation was “friable,” which means that it could be pulverized by hand pressure. He said the asbestos removal was accomplished over the Thanksgiving weekend of 1987.
Thomas W. Rimmer, a consultant for AOG, also testified as to the necessity of removing the asbestos. He stated that the insulation was in “fair to good condition” in both buildings, but that it had been damaged in some locations and appeared to be coming loose and could fall in other spots. Rimmer testified in detail as to the various health hazards posed by exposure to asbestos fiber. He testified that removal of the asbestos material in conjunction with AOG’s renovation work was prudent and that it was his opinion that Section 61.147 of the National Emissions Standards for Hazardous Air Pollutants (NESHAPS) mandated removal.
An accounting witness for the PSC staff testified as to the proposed allocation of costs if the Commission allowed recovery, but stated her testimony was limited only to that issue and was not to be construed as support for the recovery thereof. An engineer for the PSC staff, Ralph W. Sandage, testified in opposition to the application. He said that there was no detectable level of asbestos found in air samples taken by appellant and, consequently, no danger. He also testified, in essence, that it was the renovation and repair work which necessitated the asbestos removal and that the removal was not a direct result of legislative or regulatory mandate. Sandage testified that some of the asbestos removed by the Company was not necessary at all in connection with the work. He testified that he had visited the renovation sites and had personally observed that the ACM did not disintegrate when touched and that it seemed solid. The witness testified that he had no problem with AOG removing the asbestos but objected to the recovery of expenses therefor under Act 310.
The PSC found in its order that the asbestos was not friable. The dispositive question before us in this appeal is whether that finding is supported by substantial evidence.
Arkansas Code Annotated Section 23-2-423(c)(3), (4), and (5) (1987) defines and limits our review of actions of the Public Service Commission as follows:
(3) The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.
(4) The review shall not be extended further than to determine whether the Commission’s findings are supported by substantial evidence and whether the Commis sion has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
(5) All evidence before the Commission shall be considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of any action at law or in equity.
On appeal, we give due regard to the expertise of the Commission, which derives its authority from the Arkansas General Assembly. City of Fort Smith v. Arkansas Public Service Commission, 278 Ark. 521, 648 S.W.2d 40 (1983). The Arkansas Public Service Commission has broad discretion in exercising its regulatory authority. Associated Natural Gas Co. v. Arkansas Public Service Commission, 25 Ark. App. 115, 752 S.W.2d 766 (1988); Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 19 Ark. App. 322, 720 S.W.2d 924 (1986); Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 18 Ark. App. 260, 715 S.W.2d 45 (1986); Walnut Hill Telephone Co. v. Arkansas Public Service Commission, 17 Ark. App. 259, 709 S.W.2d 96 (1986). Judicial inquiry terminates if the action of the Commission is supported by substantial evidence and its action is not unjust, unreasonable, unlawful or discriminatory. Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 24 Ark. App. 142, 751 S.W.2d 8 (1988). It is the province of the Commission as the trier of fact, to assess the credibility of the witnesses, the reliability of their testimony, and the weight to be accorded the evidence presented. Arkansas Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W.2d 645 (1978); Associated Natural Gas Co., supra; General Telephone Company of the Southwest v. Arkansas Public Service Commission, 23 Ark. App. 73, 744 S.W.2d 392 (1988).
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, [citation omitted] . . . [T]he question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.
Williams v. Scott, 278 Ark. 453, 455, 647 S.W.2d 115, 116 (1983). A decision of an administrative agency may be supported by substantial evidence even though this court might have reached a different conclusion had we heard the case de novo or sat as the trier of fact. Fouch v. State, Alcoholic Beverage Control Division, 10 Ark. App. 139, 662 S.W.2d 181 (1983).
On the record before us, we cannot say the finding of the Commission that the asbestos material in appellant’s buildings was not friable is not supported by substantial evidence. Since this issue is dispositive and we affirm the Commission’s finding in this regard, the other issues before us need not be reached.
Affirmed.
Rogers, J., concurs.
Cooper, J., and Corbin, C.J., dissent.
Related costs include consultant fees, air monitoring, some special equipment purchases, reinsulating costs, and attorney’s fees and witness fees for the Commission hearings.
Promulgated pursuant to the Clean Air Act and codified at 40 C.F.R. 61(m). | [
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John E. Jennings, Judge.
Delton Simpson, the claimant in this workers’ compensation case, began hauling wood on a contract basis with International Paper Company in 1982. Simpson did business as Simpson Logging Company, an unincorporated sole proprietorship. International Paper required workers’ compensation insurance, and referred Simpson to Davis-Garvin Insurance Agency in Columbia, South Carolina. A workers’ compensation insurance policy was issued by appellant, INA/Cigna Insurance Company. Thereafter, certificates of insurance were forwarded to Simpson each year although he never received the policy itself. Premium payments for the policy were withheld by International Paper and forwarded to Davis-Garvin, which deducted its brokerage fee and sent the balance to the carrier, INA.
Simpson Logging Company employed from three to five workers during the period in question. Delton Simpson managed the logging operation and drove the truck that hauled the timber. In 1986, he was injured when his truck overturned. INA paid benefits under the policy for approximately one year before taking the position that it had no liability because of Simpson’s failure to file written notice under Ark. Stat. Ann. § 81-1302(b) (Supp. 1985), now Ark. Code Ann. § 11-9-102(2) (1987), which provides in pertinent part:
The term “employee” shall also include a sole proprietor or a partner who devotes full time to the proprietorship or partnership and who elects to be included in the definition of “employee” by filing written notice with the Workers’ Compensation Commission.
The form established by the Commission regulations for such a filing is called an “A-18.”
The administrative law judge held that the claim for compensation was not precluded by the failure to file an A-18. The full Commission affirmed and adopted the ALJ’s conclusions and findings. On appeal, INA contends that the claim is barred. We disagree and affirm.
The question whether a sole proprietor must file an A-18 form to be eligible for coverage under the act was discussed in Gilbert v. Gilbert Timber Co., 292 Ark. 124, 728 S.W.2d 507 (1987), but the supreme court in Gilbert found it unnecessary to decide the issue. We too find it unnecessary to decide the question because we agree with the Commission that INA is estopped to raise the issue.
The certificate of insurance issued to Simpson Logging stated:
This policy for Worker’s Compensation protects all members of this organization, both employer, sole proprietor, a partner or bona-fide officer of the corporation and all employees. There is no exclusion, including contract labor.
The administrative law judge noted that although the carrier had collected premiums for four years, it had failed to produce the insurance policy itself in response to a request in discovery.
Although neither the administrative law judge nor the Commission used the word “estoppel,” it is clear that this was a basis for their decisions.
Estoppel is an equitable doctrine which is invoked in appropriate circumstances to prevent a party from prevailing on purely technical grounds after having acted in a manner indicating that the opposing parties’ strict compliance with the technicality would not be required. Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194(1985). We have applied the doctrine in workers’ compensation cases. Snow, supra. We hold that, under the circumstances presented, the Commission was correct in holding that INA may not rely on Simpson’s failure to file an A-18 form to defeat coverage.
INA relies on Carter v. Associated Petroleum Carriers, 235 S.C. 80, 110 S.E.2d 8 (1959) and Eaves v. Contract Trucking Co., 55 N.M. 463, 235 P.2d 530 (1951). In Carter, as in the case at bar, no written election was filed with the Commission, but in Carter no policy was ever issued. Eaves more clearly supports the appellants’ position. There, the New Mexico Supreme Court seems to have required strict compliance with a statute similar to ours. It held that the filing of the policy itself as opposed to a written election was insufficient. Although it appears that the general rule is that only substantial compliance with such statutory provisions is required, see Carter, supra, we need not decide that issue. Here there was clearly no compliance with the statute at all, but on these facts IN A is estopped to raise the issue.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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James R. Cooper, Judge.
Cliff Peck Chevrolet, a Little Rock automobile dealer, sold the appellee, Delois Brown, a used 1982 Camaro on January 5, 1984. The appellee filed suit in Pulaski County Circuit Court seeking damages and alleging fraud, deceit and breach of contract. The complaint alleged that the vehicle sold to her was represented to be a Berlinetta model when in fact it was a Camaro Sport Coupe, a less expensive model. The complaint also alleged that the vehicle had been wrecked and that fact had not been disclosed to her. The jury found in favor of the appellee and awarded her $5,500.00 in damages. The only issue on appeal is whether the evidence at trial supports the jury’s award of damages. We reverse and remand.
The measure of damages for misrepresentation is the difference between the market value of the automobile as represented and the actual value of the automobile at the time of the sale. Southern Equipment & Tractor Co. v. K & K Mines, Inc., 272 Ark. 278, 613 S.W.2d 596 (1981). Viewingtheevidence in the light most favorable to the appellee, we find that evidence of the actual value of the automobile at the time of sale is insufficient. See Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984).
At the trial, the appellee testified that she paid $10,980.56 for a car which was represented to her to be a Berlinetta. The emblem on the car indicated that the car was a Berlinetta, and the salesman told her it was a Berlinetta. She stated that she had contacted the salesman several times specifically requesting a 1982 blue Berlinetta. When the appellee attempted to a get a part for the car, she was told by a mechanic employed by the appellant that the car was actually a Sport Coupe. She also stated that she still owed $5,400.00 on the car and that she had not been able to sell the car because she was “upsided down in value” on it.
Two other witnesses testified that the car had been wrecked and a document was introduced into evidence which indicated the car had been sold as salvage. The car has been reconstructed by Larry Case, who is not a party to this appeal, and sold to Cliff Peck.
Bobby Ray Flint, an employee of Twin City Motors in North Little Rock, testified that he had been in the car business for thirty years and was presently employed as sales manager and buyer. He stated that in his opinion the difference in value in 1984 between a 1982 Berlinetta and a 1982 Sport Coupe was at least $2,000.00. He based his opinion on the 1987 “black book,” which indicated a difference in value of $ 1800.00. He stated further that the difference in value in 1984 would have been greater than the difference in value in 1987.
Hal Hampton, the used car manager employed by the appellant, testified that he has bought and sold cars for sixteen years in his employment. He opined that the difference in retail value in 1984 between the two 1982 model automobiles was between $1,000.00 and $1,500.00. In forming his opinion he referred to the 1984 Southwest version of the NADA official used car guide, which reflected a difference in value of $875.00.
The missing element in the evidence in the record is the actual value of the automobile the appellee purchased at the time she purchased it. All of the expert witnesses agreed that the fact that the automobile had been wrecked would increase the difference in value that they had testified to, but not one witness testified as to the value of the wrecked 1982 Sport Coupe purchased by the appellee in 1984. Southern Equipment and Tractor Co., supra; See Union Lincoln Mercury, Inc. v. Daniel, 287 Ark. 205, 697 S.W.2d 888 (1985). On this record, it was impossible for the jury to determine whether the vehicle purchased by the appellee did or did not have a market value less than the purchase price paid.
In her brief, the appellee urges us to accept the fact that the automobile she purchased had no value whatsoever at the time of trial. This argument is without merit. First, no witness so testified, and second, as noted earlier, the difference in value at the time of purchase, if any, rather than at trial, was the critical issue in the case.
The appellant requests that the damages be reduced to $2,000.00. However, because there is a lack of proof as to the value of the automobile at the time of purchase, the evidence will not support an award of $2,000.00. Because there has been a simple failure of proof, justice requires that this court remand the case to allow the appellee an opportunity to supply the defect. Only where the record affirmatively shows that there can be no recovery on retrial should the case be dismissed. Crisp v. Brown, 4 Ark. App. 208, 628 S.W.2d 596 (1982). In the present case we cannot say that the record affirmatively shows there could be no recovery and we therefore reverse and remand for a new trial.
Reversed and remanded.
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Judith Rogers, Judge.
This case involves a question of priority between two creditors who each held a security interest in certain restaurant equipment. Appellants, J.A. Womack and W.A. Beaver, appeal the decision of the trial court in favor of appellee, the Newman Fixture Company. Although the appellants’ financing statement was recorded prior to that of the appellee, the chancellor found that appellee’s security interest was superior because the financing statement relied upon by appellants failed to adequately describe the collateral.
Appellant urges the following points for reversal: (1) that the chancellor erred in ruling that the description found in appellants’ financing statement failed to give reasonable notice as to the appellee because appellee had actual notice of the lien, and that appellee was not barred by the doctrines of clean hands and laches; and (2) that the chancellor erred in reinstating the case after it had been dismissed twice for want of prosecution. We find no error and affirm.
In early 1983, Larry Stafford began making plans to open a restaurant, which was later named the Chick-N-Shack, in Camden, Arkansas. In furtherance of this plan, Stafford contacted Tommy Newman, vice president of appellee, which is in the business of selling restaurant equipment. On April 7, 1983, Stafford and Newman, along with Jim Lusby, a friend of Stafford’s who had experience with chicken restaurants, met for the purpose of discussing the equipment that would be required to operate the restaurant. Newman submitted an estimate in the form of an invoice, which contained a proposed list of equipment at a cost of $33,730.90.
On July 23, 1983, appellants leased Stafford the property where the restaurant was to be located. Stafford and his wife obtained a $30,000 loan from Merchants & Planters Bank of Camden to finance the purchase of equipment, and in turn gave the bank a promissory note in that amount. Stafford gave the bank the proposal with estimated costs for the equipment to be installed in the restaurant after the building was constructed. As collateral for the note, the bank retained a security interest in the restaurant’s equipment. A security agreement and financing statement were executed. The financing statement alone was filed on August 3,1983, with the County Clerk of Ouachita County, as well as with the Secretary of State on August 5, 1983. In the financing statement, the collateral was described as “[a] 11 equipment used in the business known as.”
Appellants obtained financing from Merchants & Planters Bank for the construction of the restaurant building. Appellants also agreed with the bank to guarantee payment of the Staffords’ note.
Construction of the restaurant began sometime in September of 1983. Appellee supplied and installed equipment during the course of construction of the building, and upon completion, Newman compiled a final invoice of the equipment that he actually sold to Stafford. The final invoice differed from the original estimate both in terms of the equipment that was listed and the cost, which was $23,117.92. Appellee took a security interest in the equipment that was sold. The financing statement and security agreement were filed with the County Clerk of Ouachita County on February 17, 1984, and with the Secretary of State on February 21, 1984. In describing the collateral, appellee’s financing statements made reference to attachments, which were copies of the final invoice.
The restaurant closed six months after it had opened in November of 1983, and the Stafford defaulted on their obligation to Merchants & Planters Bank. Appellants were obliged, pursuant to their guarantee agreement with the bank, to satisfy the remaining indebtedness on the note, totalling $31,135.99 in principal and interest, whereupon the bank made an assignment of the note, as secured by the equipment, to appellants on May 24, 1984.
In 1984, appellants originally filed suit in the Ouachita County Chancery Court, First Division, No. E-84-216. The case, which included appellee’s counterclaim, was dismissed for want of prosecution. On February 7,1986, appellee filed a complaint in chancery seeking the recovery of $4,617.92, plus interest, which remained due and owing on the purchase of the equipment. The chancellor granted appellee judgment in rem against the property for $5,896.88, representing the unpaid purchase price plus interest and costs, and ordered the equipment to be sold by public sale. In so holding, the chancellor declared that appellee’s security interest was superior because the description contained in appellants’ financing statement failed to reasonably identify the equipment.
In their first point on appeal, appellants contend that the chancellor erred in ruling that the description contained in the appellants’ financing statement failed to give reasonable notice as it relates to appellee. Ark. Code Ann. § 4-9-402(1) (1987) provides:
A financing statement is sufficient if it gives the names of the debtor and secured party, is signed by the debtor, gives an address of the secured party from which information concerning the security interest may be obtained, gives the mailing address of the debtor, and contains a statement indicating the types or describing the items, of collateral. (emphasis supplied)
Pursuant to Ark. Code Ann. § 4-9-110 (1987), any description of the personal property or real estate is sufficient, whether or not it is specific, if it reasonably identifies what is described. The commentary to this section states, “ [T] he test of the sufficiency of a description laid down in this section is that the description do the job assigned to it — that it make possible the identification of the thing described.” Commentary, § 85-9-110 (1961) (now codified as Ark. Code Ann. § 4-9-110).
In the instant case, the financing statement described the collateral as “[a] 11 equipment used in the business known as.” The chancellor found that -this description fell short of the minimum requirement as found in Ark. Code Ann. § 4-9-110. The chancellor stated in his letter opinion filed June 15, 1988, that “had the description contained an address where the collateral was located then perhaps a person searching the records could at least be given notice of what the collateral might be.”
Although chancery cases are tried de novo on appeal, the chancellor’s findings of fact will not be reversed unless they are clearly against the preponderance of the evidence. Reves v. Reves, 21 Ark. App. 177, 730 S.W.2d 904 (1987); Ark. R. Civ. P. 52(a).
A description is sufficient if it reasonably identifies or makes possible the identification of the collateral. The statement purports to cover “[a] 11 equipment used in the business known as,” which is not a complete sentence. As such, there is nothing in the description which would provide a key to the identity of the collateral. The description neither indicates where the equipment could be located, nor does it disclose the name of the business where the equipment was to be used. We cannot say that the finding of the chancellor on this issue was clearly erroneous.
Nevertheless, appellants argue that appellee had actual notice of the equipment in which appellants claimed a security interest, because appellee supplied and installed the equipment. Despite this contention, however, Tommy Newman testified that he not only did not know which bank Stafford was dealing with, but that he also was unaware of the specifics of the arrangements Stafford had made to obtain financing. The record reveals that there was conflicting testimony in this regard given by Stafford. However, disputed facts and the credibility of witnesses are within the province of the fact finder to resolve. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987).
Appellants also argue that appellee is precluded from gaining priority based on the equitable maxim of clean hands. This maxim provides that he who comes into equity must come with clean hands, and it acts as a bar to relief to those guilty of improper conduct in the matter to which they seek relief. Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957). In support of this argument, appellants allege that appellee, in collaboration with Stafford, inflated the cost of the equipment when he provided the initial estimate. Appellants contend that this was done to enable Stafford to mislead the bank and obtain a higher loan, thereby increasing appellants’ exposure pursuant to their agreement to guarantee payment of the note. As evidence of this, appellants point to the differences between the price and the equipment as listed in the original proposal and the final invoice. The chancellor found that there was no convincing proof presented to substantiate this allegation.
Stafford testified in reference to the estimate that it was “rough scratched.” There was testimony given by Newman that changes were made to tailor the equipment and furniture to the building as it was being constructed. For instance, Newman related that the restaurant’s seating space was smaller than anticipated which required adjustments to be made. He also testified that Stafford provided some of the equipment that was listed on the estimate on his own, and consequently was not on the final invoice. The credibility of witnesses and the weight to be given their testimony are matters for the determination of the trial court, and the appellate court is not at liberty to disregard any testimony which the trial court has accorded some weight. Herrick v. Robinson, 267 Ark. 592, 595 S.W.2d 647 (1980) (supplemental opinion denying rehearing). Based on the record before us, we cannot say that the chancellor’s finding was clearly wrong.
The appellants also assert laches as a bar to appellee’s claim. Appellants argue that this matter was pursued by appellee in a counterclaim in the original suit that was dismissed for want of prosecution, and that the instant suit instituted by appellee was also dismissed, although reinstated, due to inaction. Appellants also contend that in the interim there have been four owners of the business where the equipment was located, and that witnesses to the loan transaction to Stafford had become unavailable.
The doctrine of laches does not apply unless there is an unreasonable delay, coupled with some change of position which makes it inequitable to enforce the claim. Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984). The length of time after which inaction constitutes laches is a question to be answered in light of the facts and circumstances of each case. Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984). We cannot say that under the facts and circum stances of this case, the chancellor erred in finding that the delay was not so unreasonable as to preclude appellee from asserting its claim. Appellants are not in a position to complain because the original suit brought by them, their counterclaim in this case, was also dismissed due to their inaction.
In appellants’ final argument, it is argued that the chancellor erred in reinstating this action after it had been dismissed for want of prosecution. The case was dismissed without notice to either party, and the chancellor set aside the order of dismissal. Appellants contend that according to Rule 41 of the Arkansas Rules of Civil Procedure, this was a second dismissal as the original suit, which included appellee’s counterclaim, had also been dismissed. Thus, pursuant to Rule 41, appellant contends that the second dismissal served as an adjudication on the merits, and thus should not have been reinstated. We need not reach this issue because it does not appear that this argument was raised below. The record does not reveal that this argument was made at trial, and it does not appear the appellant filed a motion to set aside the order reinstating the case. An issue not raised in the trial court may not be raised for the first time on appeal. Ark. Burial Ass’n v. Dixon Funeral Home, Inc., 25 Ark. App. 18, 751 S.W.2d 356 (1988). We do note, however, that pursuant to Rule 60 of the Arkansas Rules of Civil Procedure, to correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be set aside, with or without notice, within ninety days of its having been filed with the clerk. Dismissal of a case without notice to all attorneys of record is not valid under Rule 10 of the Uniform Rules of Circuit and Chancery Courts. Peek v. Pulaski Federal Savings & Loan Ass’n., 286 Ark. 147, 690 S.W.2d 120 (1985).
JANUARY 31, 1990
_S.W.2d_
AFFIRMED.
Cracraft and Mayfield, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Benton County Chancery Court, First Division. Appellants, Ron Buckman d/b/a Buckman Construction Company (hereinafter Buckman) and Tim Terry, appeal from an order releasing their lien against property owned by appellees, Chuck and Patti Gay. We affirm.
Appellees filed a petition on October 20, 1987, seeking to have appellants’ laborer’s lien removed as a cloud upon their title to certain property located in Benton County, Arkansas. The petition alleged, among other things, that the lien was improper because it was filed outside the 120-day time limit prescribed by Arkansas Code Annotated Section 18-44-117 (1987). The matter was heard by the chancellor on March 28, 1988. The chancellor found, by order dated April 6, 1988, that appellants failed to meet their burden of proof that the lien was filed within 120 days from the date of the last work of labor done, and therefore released the lien as a cloud against title to property owned by the appellees. From that order comes this appeal.
For reversal, appellants argue that the trial court’s finding that there was no work performed by appellants within 120 days of their filing a mechanic’s lien is against the preponderance of the evidence. We disagree.
Arkansas Code Annotated Section 18-44-101 (a) (1987) provides in pertinent part:
Every mechanic, builder, artisan, workman, laborer, or other person who shall do or perform any work to or upon . . . any building [or] erection, . . . under or by virtue of any contract with the owner, . . . upon complying with the provisions of this subchapter, shall have, for his work or labor done, ... a lien upon the building [or] erection. . . and upon the land belonging to the owner ... on which they are situated ....
The issue before the chancellor was whether there was “work or labor done” by appellants on April 23,1987. If work or labor was done on that date the lien was valid; if not, the lien was filed 121 days after work, or labor was done and was thus invalid. The chancellor found that no labor was performed on April 23, 1987 because no improvements to appellees’ property were made. Although chancery cases are tried de novo, we will not set aside the chancellor’s findings of fact unless clearly erroneous or clearly against the preponderance of the evidence. Cuzick v. Lesly, 16 Ark. App. 237, 700 S.W.2d 63 (1985).
Appellees contracted with appellant Buckman to erect a garage and addition to their home. Appellant Terry was job superintendent and had no separate contract with appellees. William Thompson was employed by appellants to do carpentry work on appellees’ property. The contract between the parties was terminated by appellees on the evening of April 23,1987, and Thompson was subsequently hired by appellees independently.
Mr. Thompson testified that he was on the job site April 23, 1987 but performed no labor. He stated that he needed additional material and a radial arm saw and was told by appellant Buckman to remain at the site until the articles arrived. He also stated that appellant Terry came to the site to look at the broken saw and told him he would get another one or talk to appellant Buckman about it. Thompson testified that he was on the site for approximately nine hours but that the necessary articles never arrived and that he received no pay for that date because he never performed any labor.
Appellant Buckman disputed that Thompson had not been paid and introduced into evidence a time sheet which was signed by Thompson on April 23, 1987, but reflected no dates on which the work was performed. Buckman further testified that he saw Thompson working on April 23, but was unable to specifically state what work was done.
Conflicts in the testimony are to be resolved by the trier of fact and we defer to the chancellor’s superior position to evaluate the credibility of the witnesses. McCraw v. State, 24 Ark. App. 48, 748 S.W.2d 36 (1988). It is clear from his order that the chancellor believed Thompson’s testimony that no physical labor or improvements were performed on April 23, 1987, and we cannot say that the chancellor was clearly erroneous in that regard.
Appellants argue, however, that even if the chancellor was correct in finding that no actual physical labor was performed on that date, mental labor was performed and should be included within the definition of “work or labor done.” In support of their argument, appellants state that the job supervisor, appellant Terry, went to the site on April 23, 1987, and that although Thompson did no manual labor, he worked toward completion of the contract by his presence and his mental efforts.
There is little question that physical presence on a job site without more does not fall within the definition of “work or labor done.” We do not attempt to define what more is required to constitute work or labor, but merely hold that on the facts and circumstances of this case, the chancellor did not err in finding that the actions of the parties involved did not constitute work or labor done.
The record reflects that appellant Terry was at the site for only a short period of time and was unable to make any measurable contribution toward completion of contract. Likewise, the record does not reflect any mental efforts by Thompson contributing to completion of the contract. In fact, the record reflects that the only discussion of the work in process occurred between Thompson and appellee and was actually in derogation of the contract between appellants and appellees. The discussion resulted in appellees’ firing of appellants and hiring Thompson to complete the improvements independent of appellants. Under these facts, we agree with the chancellor that no work or labor was performed sufficient to support the lien.
Affirmed.
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Karen R. Baker, Judge.
A jury in Ashley County Circuit Court convicted appellant, Johnny Mann, of possession of methamphetamine with intent to manufacture and possession of drug paraphernalia and sentenced him to twenty years’ imprisonment in the Arkansas Department of Correction. Appellant has two arguments on appeal. First, appellant argues that the trial court erred in denying his motion to suppress. Second, appellant argues that the trial court erred during the trial of this cause by allowing the State to refer to his criminal history both during testimony in fhe guilt or innocence phase of the trial and during closing argument in that phase. We reverse and remand.
Postal Inspector Mitchell Webb advised Officer Dennis Roberts that pursuant to a federal warrant he had intercepted a package addressed to Clark Nuss in Hamburg that contained eighteen grams of methamphetamine. On appeal, appellant does not challenge the validity of this federal warrant. The return address on the package showed that it had been sent from Crescent City, California. Officer Roberts checked out the receiver’s address on the package and discovered that the residence at that address belonged to appellant. Roberts further discovered that both appellant and Nuss were former residents of Crescent City. The law enforcement agents decided to perform a controlled delivery.
Prior to the controlled delivery, appellant had approached his regular postal carrier and inquired about a package. Later, posing as a postal carrier, Inspector Webb advised appellant that he had packages too big for his mailbox and asked specifically whether the package from Crescent City belonged there. Appellant said that it did.
After appellant accepted the package and went back inside his residence, the officers waited five to six minutes to give appellant time to open the package. The officers then went through the door on the screened-porch addition and approached the front door to the trailer, which was already open. They heard someone running down the hallway on a wooden floor. They announced that they were police officers and continued further into the residence. Officer Roberts testified that after they entered the residence, they saw the package that had been torn open sitting on the kitchen bar. The officers pursued appellant down the hallway and found appellant in the bathroom sitting on a commode that had just been flushed. Appellant was taken into custody, and Officer Roberts read him his Miranda rights. Appellant then signed a consent to search form. The officers recovered the methamphetamine from the drain of the commode.
Following the suppression hearing, the trial court found that the officers had probable cause to believe that appellant was in possession of methamphetamine. The trial court also found that the officers could reasonably conclude by the fact that they heard running that appellant was about to destroy evidence. The trial court thus found that exigent circumstances existed to justify the officers’ warrantless entry into appellant’s residence. The trial court denied appellant’s motion to suppress his consent to search and the resulting evidence. The trial court also denied his motion to suppress his statement because the court found that the statement was voluntarily made with full knowledge of his rights.
Appellant argues that the trial court erred in denying appellant’s motion to suppress. When reviewing a denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. See Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999) (citing Welsh v. Wisconsin, 466 U.S. 740 (1984)). However, the Eighth Circuit has recognized that when police officers themselves create the situation of urgency generally protected by the exigent circumstances exception, those same exigent circumstances cannot justify their warrantless entry. United States v. Duchi, 906 F.2d 1278, 1283-85 (8th Cir. 1990). This fact situation is very similar to the facts in Duchi. In Duchi, the warrantless entry into the defendant’s residence was not supported by exigent circumstances even though the officers knew that the defendant had picked up a package containing what the officers knew to be cocaine, and the defendant had removed contraband from his residence prior to a previous search. See also United States v. Templeman, 938 F.2d 122 (8th Cir. 1991) (finding that exigent circumstances did not support police officers’ warrantless entry into defendant’s home where an informant delivered a package of cocaine to the defendant at his, home the defendant opened the package, the trailer home was under surveillance so that it was unlikely that defendant would escape, and there was no indication that the informant was in danger or that the defendant was about to destroy the contents of the package). The court further relied on the ease with which the officers could have started the warrant application process or even completed it by radio or phone when the package was taken to the defendant’s home. Duchi, supra.
Although the opportunity of an officer to obtain a warrant is not determinative, it is certainly relevant when exigent circumstances are claimed to be present. See Templeman, supra. If the independent evidence shows the delivery of contraband will or is likely to occur, an anticipatory search warrant can be obtained conditioned upon the delivery of the contraband. See Sims v. State, 333 Ark. 405, 969 S.W.2d 657 (1998) (citing U.S. v. Bieri, 21 F.3d 811 (8th Cir.1994)).
Instead, the officers in this case first entered a screened-in porch area that was under construction, through a closed screened door, and then proceeded through an open door into the trailer. It was not until after the officers had entered the screened-in porch that they heard “running.” The fact that the officers themselves created the sense of urgency in this case does not justify their warrantless entry into appellant’s home. The officers decided upon this investigative strategy, and they are responsible for its likely result. See United States v. Munoz-Guerra, 788 F.2d 295, 298-99 (5th Cir. 1986). We hold that this is a case of exigent circumstances manufactured by law-enforcement agents. Thus, the trial court erred in denying appellant’s motion to suppress.
Appellant’s second argument is that the trial court erred in failing to grant his motion for mistrial when the State elicited testimony concerning his prior criminal history during the guilt or innocence phase of the trial, and again referred to his criminal history during closing argument. Appellant argues that because his criminal history had no independent relevance, had no probative value, and was highly prejudicial a mistrial should have been granted. We do not address whether the trial court erred in failing to grant a mistrial, as we do not expect this mistake to recur on retrial.
We reverse and remand.
Pittman, Hart, and Roaf, JJ., agree.
Gladwin and Crabtree, JJ., dissent. | [
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James R. Cooper, Judge.
The appellee in this civil case brought an action to accelerate a note made by Lindell Square Limited Partnership and to establish liability under a bond guaranty executed by Richard L. Grant, the general partner of Lindell Square, and E.M. Bush, a limited partner. The trial court found Grant and Bush individually liable under the bond guaranty agreement. From that decision, comes this appeal and cross-appeal.
The record shows that Lindell Square obtained a $1,100,000.00 loan from Central Business Improvement District No. 1 of Hot Springs to finance renovation of an office building. The Improvement District obtained the funds loaned to Lindell Square by the sale of revenue bonds, and Lindell Square executed a promissory note in the amount of $1,100,000.00 to evidence the loan. The promissory note was secured by a mortgage, assignment of leases, and equipment security agreement. The Improvement District assigned the promissory note and its interest in the security instruments pertaining to the note to First National Bank of Hot Springs as trustee under a trust indenture agreement. The trustee bank received payments from Lindell Square for disbursement to the bondholders. Lindell Square also obtained from Savers Federal Savings and Loan Association, in connection with the bond issue, an irrevocable letter of credit in an amount sufficient to pay the principal and interest on the bonds in the event of default by Lindell Square. Finally, Grant and Bush, in their individual capacities, entered into a bond guaranty agreement with the trustee bank in which they severally guaranteed to the trustee full payment of principal, premium, and interest on bonds which should become due as a result of maturity, acceleration, or redemption.
Lindell Square defaulted by failing to pay an installment due on December 1, 1986. On December 8, 1986, the trustee bank drew $93,905.25 under the letter of credit, which Savers paid. Savers subsequently directed the trustee bank to take the steps necessary to effect redemption of the bonds prior to maturity. In a public notice published on January 9, 1987, the trustee bank announced that the bonds were to be redeemed on February 13, 1987. On February 11, 1987, the trustee drew $1,064,442.85 on Savers’ letter of credit to obtain the funds necessary to effect redemption of the bonds. The bond guaranty and other collateral subject to the trust indenture were assigned by the trustee to Savers on February 12,1987. Savers’ subsequent failure to obtain reimbursement from Grant and Bush as guarantors gave rise to the case at bar.
The appellants first contend that the chancellor erroneously extended the terms of the guaranty by: 1) failing to strictly construe the guarantors’ undertaking; 2) holding the guarantors liable beyond the strict terms of the guaranty; and 3) failing to accord the guarantors their favored status under the law by extending their liability beyond the express terms of the bond guaranty agreement. The essence of this argument is that the guarantors’ liability under the bond agreement terminated on payment or redemption of the bonds; that Savers elected to pay and redeem the bonds; and that the guarantors’ liability under the bond guaranty agreement had thus been discharged before the trustee assigned the bond guaranty to Savers.
The chancellor found Grant and Bush to be personally liable on the bond guaranty under §302 of the trust indenture, which provides that, in the event of default under the letter of credit agreement, Savers may direct the trustee to take the steps necessary to redeem the bonds prior to maturity. Section 302 states that after the trustee notifies the bondholders of the call for redemption,
[Savers] shall deposit with the trustee such funds as are necessary to effect the redemption of the bonds at least one business day prior to the date specified for the redemption. Upon such redemption, notwithstanding any other provision of the Indenture to the contrary, the trustee shall deliver to [Savers] the bonds so tendered for redemption without cancellation or other notation, together with all other matured and unmatured interest coupons attached thereto or otherwise tendered for payment, and shall assign to [Savers] all right and title to all properties and interests which are subject to this Indenture, including the Bond Guaranty, and the Indenture may thereafter be enforced by [Savers] in the place and stead of the trustee, as if [Savers] were the trustee. If an event of default under the letter of credit agreement shall have occurred and be continuing, [Savers] shall not be required to elect a redemption of all outstanding bonds, and may choose to make payments under the letter of credit. . . and shall be entitled to enforce all available remedies available at law or in equity whether by the right of subrogation herein granted, or otherwise, to recover from the Developer all sums due and owing under the Letter of Credit Agreement.
[Emphasis supplied]. The appellants contend that §302 of the trust indenture does not permit Savers to enforce the bond guaranty where, as here, Savers opted to redeem the bonds rather than leave the bonds outstanding. They argue that their obligations under the bond guaranty agreement terminated when Savers provided the trustee with funds for the redemption of the bond issue and that, although Savers may be entitled to recover under the note, mortgage, security agreement, and lease agreement, the personal liability of Grant and Bush was extinguished by redemption of the bond issue. This argument is based primarily on §2.2 of the bond guaranty agreement, which provides that:
The obligation of the Guarantors under this Guaranty shall be absolute and unconditional, and shall remain in full force and effect until the entire principal of, premium, if any, and interest on the Bonds shall have been paid or provided for under the Indenture ....
The appellants assert that, because paragraph 8(c) of the bond provides that the bonds should no longer be considered outstanding or subject to protection under the indenture after redemption from the proceeds of the letter of credit, the principal, premium, and interest on the bonds were “provided for” under §2.2 of the bond guaranty agreement, and the personal liability of Grant and Bush under the bond guaranty was therefore discharged before the bond guaranty was assigned to Savers. Because the trustee had no rights under the bond guaranty after funds for redemption of the bonds were provided by Savers, they argue, Savers acquired no rights by virtue of assignment of the bond guaranty.
Where, as here, the agreement of the parties is embraced in two or more instruments, all of the instruments must be considered together to determine the intent of the parties. Integon Life Ins. Co. v. Vandergrift, 11 Ark. App. 270, 669 S.W.2d 492 (1984). A construction which neutralizes any provision of the contract can not be adopted if the contract can be construed in a way which gives effect to all its provisions. North v. Philliber, 269 Ark. 403, 602 S.W.2d 643 (1980). Under the definition section of the trust indenture, the word “bonds” is defined in terms of the entire bond issue. Section 302 of the indenture clearly provides that Savers may, upon default, elect to redeem all of the bonds by depositing with the trustee the funds necessary for redemption, and that Savers would subsequently be assigned all properties and interest subject to the indenture, which could be enforced by Savers. The bond guaranty is explicitly included in the category of properties and interests enforceable by Savers after assignment. The appellants urge us to adopt a construction which would render meaningless the provision for assignment of the bond guaranty to Savers after funds for redemption of the bond issue had been deposited with the trustee, because, under the appellants’ construction, liability under the bond guaranty would be extinguished before the bond guaranty was assigned. Although it is true that a guarantor is entitled to have his undertaking strictly construed and cannot be held liable beyond the strict terms of his contract, Shamburger v. Union Bank of Benton, 8 Ark. App. 259, 650 S.W.2d 596 (1983), a guarantor is nevertheless bound by the clear wording of his agreement. See Vogel v. Simmons First National Bank, 15 Ark. App. 69, 689 S.W.2d 576 (1985). In the case at bar the bond indenture clearly provides for the assignment of the bond guar anty to Savers after funds for redemption of the bond issue have been delivered to the trustee, and for the subsequent enforcement of the bond guaranty. We may not adopt an interpretation which neutralizes this provision if the contract is susceptible to a construction that will make the provision valid. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). Section 302 of the bond indenture makes reference to “the right of subrogation herein granted,” and under the rules of construction cited above, we find that the intent of the parties was to grant Savers a right of subrogation in the trustee’s rights under the trust indenture, including the bond guaranty agreement. The appellants contend that the doctrine of subrogation is inapplicable because the written contract implicitly forbids the application of the doctrine under these circumstances. We disagree, for we find that the written agreement both expressly and implicitly requires the application of the doctrine under the facts of this case. See Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, 158 S.W. 1082(1913). Subrogation is an equitable doctrine which:
rests upon the maxim that no one shall be enriched by another’s loss, and may be invoked whenever justice and good conscience demand its application in opposition to the technical rules of law, which liberate securities with the extinguishmefit of the original debt. This equity arises when one not primarily bound to pay a debt, or remove an incumbrance, nevertheless does so; either from his legal obligation, as in case of a surety, or to protect his own secondary right; or upon the request of the original debtor, and upon the faith that, as against the debtor, the person paying will have the same sureties for reimbursement as the creditor had for payment.
Id., 108 Ark. at 559. Savers’ obligation to pay was not primary, but rather was secondary in that the obligation arose only in event of Lindell Square’s default. Moreover, the guarantors were not strangers to the transaction, but instead were partners in Lindell Square, and they executed a bond guaranty specifically stating that the guaranty was for Savers’ benefit, and it was executed as an inducement to Savers to extend its letter of credit. Finally, the trust indenture reflects an intent that Savers should have recourse to the bond guaranty upon Lindell Square’s default and redemp tion of the bond issue. Under these circumstances, we find that both equity and the written agreement require that Savers be subrogated to the trustee’s rights under the bond guaranty agreement, and that Savers’ rights under the bond guaranty survived extinguishment of the original debt. See Southern Cotton Oil Co v. Napoleon Hill Cotton Co., supra; 73 Am. Jur. 2d Subrogation, §110(1974).We hold that the chancellor did not err in finding that §302 provided for the personal liability of the guarantors after Savers provided the trustee with funds for the redemption of the bond issue.
The appellants next contend that the chancellor erred by failing to construe §302 of the trust indenture in a manner which would give effect to all the documents which comprise the parties’ agreement. The thrust of this argument is that Savers had several options upon default; that these options were inconsistent; and that, under the option selected, Savers was precluded from proceeding against the guarantors on the bond guaranty. We do not agree, because we find that Savers’ options under the letter of credit agreement and under the bond guaranty were not inconsistent. Section 8.05 of the letter of credit agreement specifically provides that Savers will not be precluded from exercising any right under the letter of credit agreement, “or the exercise of any other right, power or privilege,” by acting or failing to act upon its rights under the letter of credit agreement. Likewise, the bond guaranty agreement explicitly recites that the parties intended that the remedies available under the guaranty were not to be exclusive of any other available remedy at law or in equity. Moreover, as we have noted, §302 of the trust indenture provides that the bond guaranty would be assigned to Savers for enforcement in the event of default and provision of funds for redemption of the bond issue. We find that Savers’ remedy under the bond guaranty was cumulative to the remedies provided for in the letter of credit agreement.
Next the appellants contend that the promissory note was the final expression of the parties’ agreement and that, because the promissory note did not provide for personal liability, the note modified the agreement to preclude personal liability under the bond guaranty in an action to enforce the promissory note. The loan agreement is dated December 1, 1981, and the promissory note is dated January 26, 1982. However, from our review of the record it is clear that, although many of the instruments which comprise the contract are dated December 1, 1981, (the date the bonds began to accrue interest), the final closing on the bond issue did not take place until January 26, 1982. Moreover, the bond guaranty itself was not delivered to the trustee until January 26, 1982. Under these circumstances, we find no significance in the disparity in the dates on which the loan agreement and promissory note were executed, and hold that the note did not modify the loan agreement so as to preclude personal liability under the bond guaranty.
Finally, the appellants contend that the chancellor erred in refusing to rule on the trustee’s assertedly improper disbursement of fire insurance proceeds. The record shows that the project was damaged by fire while work was in progress, and that approximately $219,000.00 in fire insurance proceeds were paid by the insurer and deposited with the trustee. The appellants assert that the insurance funds were improperly disbursed by the trustee, that these proceeds should have been paid to Bush Construction Company, and that the appellant, E.M. Bush, as alter ego of Bush Construction Company, is entitled to set-off or credit for the amount of the proceeds. Under the loan agreement, the fire insurance proceeds received by Bush Construction Company were to be delivered to the trustee, and applied by the trustee to the cost of repair either on completion or as the repair work progressed, as directed by Lindell Square, the developer. The appellants contend that the trustee failed to set aside the fire insurance proceeds in a separate fund to be used for the sole purpose of satisfying the cost of repair as required by the agreement. We find no reversible error because, even if it is assumed that the fire insurance proceeds were not disbursed in the manner provided for in the agreement, it is nevertheless clear that all of the fire insurance proceeds were in fact disbursed. The record shows that Bush Construction Company was paid through monthly pay requests directed to Grant as general partner of Lindell Square. This procedure was used with respect to both regular construction and fire damage construction. Grant testified that Bush’s pay requests were sent by Grant to the trustee, were paid by the trustee, and that all funds held by the trustee were ultimately paid out. Moreover, the claim for set-off was not advanced by Bush Construction Company, or by Bush individu ally, but instead was pled in an amended answer and was asserted on behalf of all the appellants. The chancellor’s letter opinion clearly reflects that he considered the asserted right to set-off as a joint claim advanced on behalf of the appellants in general. Under these circumstances, we find that the appellants were not damaged by the trustee’s asserted failure to disburse the fire insurance proceeds in the specific manner provided for in the agreement, because all the proceeds were ultimately used to pay requisitions submitted by Lindell Square. Therefore, no prejudice resulted from the chancellor’s refusal to rule on the trustee’s allegedly improper disbursement of those proceeds, and any error which may have occurred was harmless. Ark. R. Civ. P. 61.
On cross-appeal, the appellee contends that the chancellor erroneously limited liability under the guaranty to a percentage of the deficiency remaining on the note after application of the proceeds of foreclosure. The chancellor found that the principal and interest due on the notes totalled $1,316,274.14. From this he subtracted foreclosure proceeds of $599,206.15, and determined the liability of the guarantors to be $717,067.99. He found Bush liable for 20% of $717,067.99, and Grant liable for 80% of $717,067.99. This finding was based on §2.4 of the bond guaranty which limits the liability of Bush and Grant to 20% and 80%, respectively, of the amount due under the note.
The cross-appellant concedes that its total recovery is limited to the $717,067.99 deficiency which remains unsatisfied after application of the foreclosure proceeds to the amount of the judgment, but argues that the ceiling of each guarantor’s liability should be calculated on the basis of the amount due under the note prior to foreclosure, rather than on the basis of the deficiency remaining after partial satisfaction of the judgment. Under the formulation advanced by the cross-appellant, Bush and Grant are personally liable under the bond guaranty for 20% and 80% of $1,316,274.14, although the cross-appellant’s recovery after application of the foreclosure proceeds is limited to $717,067.99 from all sources.
The question for this Court to resolve is whether the parties intended for the guarantors’ liability to be computed as a percentage of the amount due on the bonds at the time of default, or instead as a percentage of the deficiency remaining after resorting to other security. Under the bond guaranty, Bush and Grant guaranteed the full and prompt payment of principal, premium, and interest of any bond when it became due. Section 2.2 of the bond guaranty provides that the guarantors’ obligations are unconditional and absolute, and are to remain in effect until the principal, premium, and interest of the bonds has been paid or provided for under the trust indenture. These obligations are unaffected by:
the taking or the omission of any of the actions referred to in the Indenture and of any actions under this Guaranty ... [or by] any failure, omission, delay or lack on the part of the District, the Trustee, or [Savers] to assert or exercise any right, power or remedy conferred ... in this Guaranty, the Indenture or the Letter of Credit Agreement. . . .
Section 2.3 of the bond guaranty provides that:
No set-off, counterclaim, reduction, or dimunition of any obligation, other than payment, or any defense of any kind or nature which the Developer or the Guarantors have or may have against the District, the Trustee or [Savers] shall be available hereunder to the Guarantors against the Trustee.
The trustee is given the right, under §2.4 of the bond guaranty, to:
proceed first and directly against the Guarantors under this Guaranty without proceeding against any other person or exhausting any other remedies which it may have and without resorting to any other security. . . .
[Emphasis supplied]. These provisions show that the parties clearly intended for the guarantors’ maximum liability to be calculated as a percentage of the amount due on the bonds at the time of default. First, the bond guaranty recites that the guarantors’ liability is absolute. Under an absolute guaranty, the liability of the guarantor becomes fixed upon the debtor’s default. Bank of Morrilton v. Skipper, Tucker & Co., 165 Ark. 49, 263 S.W. 54 (1924). Next, we note that, under the unambiguous language of the contract, the bond guaranty can be enforced directly, without regard to the availability of other remedies or the existence of other security. We think this provision indicates that the guarantors’ liability was intended to be independent of and in addition to other security, and independent of any actions taken with respect to other security. See Crown Life Ins. Co. v. LaBonte, 111 Wis. 2d 26, 330 N.W.2d 201 (1983). Finally, in keeping with the weight of precedent established in similar cases, we hold that the chancellor erred in applying the foreclosure proceeds to reduce the guarantor’s contractual limit of liability, rather than merely to reduce the indebtedness. See Southern Bank & Trust Co. v. Harley, 292 S.C. 340, 356 S.E.2d 410 (1987); see also Woodruff v. Exchange National Bank, 392 So. 2d 285 (Fla. App. 1981); Telegraph Savings & Loan Ass’n v. Guaranty Bank & Trust, 67 Ill. App. 3d 790, 24 Ill. Dec. 330, 385 N.E.2d 97 (1978); Crown Life Ins. Co. v. LaBonte, supra. We find that the contractual liability of Bush under the guaranty is 20% of $1,316,274.14, and the contractual liability of Grant is 80% of $1,316,274.14, Savers’ recovery being limited to the outstanding deficiency of $717,067.99.
Affirmed on direct appeal; reversed on cross appeal.
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Terry Crabtree, Judge.
In a jury trial, Donald Ghoston was found guilty of first-degree murder, attempted first-degree murder, and committing a terroristic act for which he was sentenced to a total of fifty years in prison. For reversal, appellant contends that the trial court erred in refusing his instruction on self-defense, in refusing his instruction on manslaughter, and in refusing to allow'cross-examination of a witness in order to show bias. We find merit in the third issue raised and reverse and remand for a new trial.
This case involves a shoot-out that occurred at around 3:00 a.m. on Sunday June 24, 2001, on West 24th Avenue in Pine Bluff. The shooting occurred between persons positioned in front of the residence of Jamaul Savage and the occupants of an El Camino truck. No one at the house was injured. However, the driver of the truck, James Scott, was killed, and his brother, Michael Scott, who was riding in the back of the truck, was injured. William Taylor was a passenger in the truck, and he received an injury to his thumb.
According to William Taylor, he had been riding around with Michael Scott that evening when a tan Crown Victoria had fired shots at their vehicle. He and Michael then drove to the home of James Scott and told him of that occurrence. James Scott left for a short time, and when he came back, he had a shotgun and an SKS rifle. The three got into the truck and drove around looking for the Crown Victoria. James Scott and Taylor had the shotgun in the cab of the truck, while Michael Scott was in the back armed with the SKS rifle. Taylor said that they were headed for Jamaul Savage’s house looking for the Crown Victoria and that they drove past the house and saw people in the yard and then they went to his cousin’s house for a brief time. He said that they drove past Savage’s house again and that this was when the shooting erupted. He said that the shooting began before they reached the house while they were at the comer of 24th and Elm Streets and that no shots had been fired from the truck at that point. The truck was being fired upon on the driver’s side, and he tried to pull James Scott out of the truck. Taylor saw Michael lying down in the bed of the truck with his eyes closed. Taylor said that he fired once toward the house with the shotgun and that he grabbed the SKS rifle and ran. He got rid of the rifle during his escape, but he later led the police to where it could be found. On cross-examination, he admitted that he had told the officers that “I guess a shooting was going down” and that he had also told the police that some of the shots could have come from the back of the truck.
Roy Thompson testified that he arrived at the Savage’s house at around 2:30 a.m. and that he smoked marijuana with persons inside the house. He had seen that O.T. Watson was wearing surgical gloves so he went outside to see “what was happening.” Appellant told him that the occupants of the El Camino truck had jumped Savage’s brother the night before and said that “we’re going to get them.” Thompson said that appellant retrieved a gun and also gave one to,O.T. Watson and said “we’re gonna wait on them.” Thompson then saw the truck coming back down the street with its lights out, and he saw someone in the back of the truck. He related that shots were fired from the house before the truck got there. Thompson testified that appellant was on one knee firing at the truck and that appellant then ran toward the truck while firing the weapon. Thompson, appellant, and others went to Little Rock that night and stayed in a motel. He said that he had stayed with a woman at the motel. He went to the police station in Pine Bluff the next day and gave a statement. On cross-examination, Thompson said that there were so many gunshots that he couldn’t tell “who had shot at what.” He denied that he had participated in the shooting or that he was casting blame on the appellant to mask his own guilt.
Takeiya Hudson, Savage’s girlfriend at the time, testified that she had driven by the house and had seen the police and an ambulance there. She and her friend continued driving and saw appellant at a gas station wearing no shirt. Appellant flagged them down and got in the car. Appellant told Hudson that “they came by to do a drive-by on them, but instead we got them.” They drove to a friend’s house where appellant washed his face and hands with bleach to get rid of gunpowder. Ms. Hudson said that she, appellant, Savage, Roy Thompson, “Ked” and “Mun” drove to Little Rock that night to stay in a motel. According to her, she was the only female on the trip. She said that, when they heard the next day that Michael Scott had survived, appellant stated that there was no way that Michael Scott could have lived because he had shot him in the face. She further testified that appellant had threatened her and her children in an effort to get her to change her story.
Kashanda Gurley testified that she and appellant had a child together and that appellant had called her on either the 23rd or 24th of June. In this conversation, appellant told her that he had hidden some guns in her shed, and he asked her to get rid of them. Instead, she called the police who retrieved a .22 rifle and a .380 pistol. She also said that appellant asked her to give an alibi for him.
In addition to the SKS rifle Taylor retrieved for the police, officers recovered another SKS rifle from the home of the Kresses who lived next door to the Savages. Officers found a large quantity of shell casings at the scene of the shooting. The shotgun fired by Taylor was found under James Scott’s body. One shotgun shell casing was found, and ballistics showed that it was fired from the shotgun. Nine millimeter shell casings were found, but no weapon was recovered that matched any of the shell casings. Thirty-two 7.62 millimeter shell casings were submitted for testing. Fifteen of the shell casings were fired from the rifle that was recovered from the El Camino. Seventeen were fired from the one obtained from the Kress’s home. Ballistics did not match any of the shell casings recovered to the .22 rifle or .380 handgun turned over to the police by Ms. Gurley. Michael Scott’s hands were tested for gunshot residue and the test came back positive.
Dr. John Cone testified for the defense. He said that Michael Scott had an entry wound at the front of the mouth and an exit wound on his neck behind the ear. He had surgery to repair a broken jaw. Another witness, Edward Smith, testified that he lived on 24th Avenue and that he had heard the gunshots. He said that shots were being fired from both angles, meaning from the vehicle, as well as the street. He said that he also saw a red-and-white truck come to the scene and fire on the truck. Steve Kress, who lived next door to the Savages, testified that he saw the truck drive by ánd that there was an armed man in the back wearing something covering his face. He saw the truck drive by the first time and then went inside because he thought a shooting was about to occur.
Appellant first argues that the trial court erred in refusing to give an instruction on self-defense. We find no error. One who asserts the defense of justification for a homicide must show not only that the person killed was using deadly force, but that he responded with only such force as was necessary and that he could not have avoided the killing. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999). Deadly force is justified as self-defense only if the use of such force cannot be avoided, as by retreating. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992). Likewise, Arkansas Code Annotated section 5-2-607 (a) (Repl. 1997) provides that a person may not use deadly force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating, unless that person is in his dwelling and was not the original aggressor. Although the applicable instruction, AMCI 2d 705, makes provision for the requirement of retreating, the instruction appellant proffered did not include it.
Under the facts of this case, it should have been included since appellant was not at his own home and was by all accounts standing outside when the shooting took place. Where a defendant has offered sufficient evidence to raise a question of fact concern ing a defense, the instruction must fully and fairly declare the law applicable to the defense. Walton v. State, 53 Ark. App. 18, 918 S.W.2d 192 (1996). An appellant may not complain of the refusal of the trial court to give an instruction that is only partially correct, as it is his duty to submit a wholly correct instruction. Merritt v. State, 82 Ark. App. 351, 107 S.W.3d 894 (2003). Since appellant’s instruction did not contain a complete statement of the law, it was not error to refuse it.
Secondly, appellant contends that the trial court erred in refusing to give a lesser-included offense instruction on manslaughter that he recklessly caused Mr. Scott’s death. The jury, however, was instructed on capital murder, first-degree murder, and second-degree murder, and the jury returned a verdict for first-degree murder. Appellant thus suffered no prejudice. When a lesser-included offense has been the subject of an instruction, and the jury convicts of the greater offense, any error resulting from the failure to give an instruction on still another lesser included offense is cured. This is known as the skip rule. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996).
Appellant’s final argument is that the trial court erred in restricting his cross-examination of witness Roy Thompson by not allowing him to question the witness about an incident where he threatened and beat up Loleita “Nicki” Morris. Appellant’s proffer showed that Ms. Morris left the police station with Thompson after she had given a statement to the police about the shooting. Just after they left the police station, Thompson was seen by numerous persons dragging Ms. Morris out of a car and beating her, such that her shirt was torn off. Several of the witnesses came to Ms. Morris’s aid, and she was rescued. Ms. Morris told the police that Thompson was upset with her because he believed that she had not provided him with an alibi for the shooting as he had instructed her to do. Although the police interviewed the witnesses and Ms. Morris and made a report, Mr. Thompson was not charged with any crime as a result of the incident. Appellant argued that the matter was relevant on the issue of bias, but the trial court did not allow him to pursue the subject.
A trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent a manifest abuse of discretion. Pryor v. State, 71 Ark. App. 87, 27 S.W.3d 440 (2000). As was observed by the court in Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999):
As a general rule, all relevant evidence is admissible. Relevant evidence is any evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. A witness’s credibility is always an issue, subject to attack by any party. The scope of cross-examination extends to matters of credibility. A matter is not collateral if the evidence is relevant to show bias, knowledge, intent, or interest. Proof of bias is ‘almost always relevant because the jury, as the finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’s testimony.’ In other words, matters affecting the credibility of a witness are always relevant.
Id. at 219, 5 S.W.3d at 16-17 (citations omitted).
In this case, Roy Thompson was admittedly outside the home of Jamaul Savage when the shooting occurred. He denied firing a weapon and testified favorably for the State by implicating appellant and O.T. Watson as the ones who had shot at the truck. In the proffer, Thompson allegedly threatened and battered a woman in retaliation against her for not relaying the information he wanted her to impart to the police. Although the beating of this woman was quite brutal and witnessed by many persons, he was not charged with any offense.
We think these matters reflected upon the witness’s interest, his motives in testifying, and his bias and that cross-examination on this subject should have been allowed. See Henderson v State, 322 Ark. 402, 910 S.W.2d 656 (1995) (evidence of witness tampering is evidence of bias and consciousness of guilt and is thus admissible); Wood v. White, 311 Ark. 168, 842 S.W.2d 24 (1992) (hostility of a witness against a party admissible to show bias); Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978) (officer’s threat to make sure that the defendant went to prison if he did not become an informant relevant to the issue of bias and thus admissible); Morris v. State, 21 Ark. App. 228, 731 S.W.2d 230 (1987) (defendant’s attempt to have a witness change her testimony admissible under rule 404(b)); Tubbs v. State, 19 Ark. App. 306, 720 S.W.2d 331 (1986) (witness’s offer of money to another witness to get the witness to change testimony admissible as evidence ofbias); Hackett v. State, 2 Ark. App. 228, 619 S.W.2d 687 (1981) (threatening a witness in an effort to keep the witness from testifying against the defendant admissible on the issue of bias). We thus hold that the trial court abused its discretion. Because Thompson was a vital witness for the State, since he was the only eyewitness who actually placed a weapon in appellant’s hands, we cannot conclude that the trial court’s error was harmless. Therefore, we reverse and remand for a new trial.
Reversed and remanded.
Robbins and Vaught, JJ., agree. | [
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George K. Cracraft, Judge.
Arkansas Louisiana Gas Company and United States Fidelity & Guaranty Company, its carrier, appeal from a ruling of the Workers’ Compensation Commission that Jerry Grooms’ claim for disability benefits was not barred by the two year limitation of Ark. Stat. Ann. §81 -1318 (Repl. 1976). They contend first that the Administrative Law Judge erred in withdrawing sua sponte a stipulation of the parties as to the date of “injury” and in basing his decision on a principle of law not advanced or relied on by either party, and secondly that the Commission exceeded its authority in affirming these actions of the Administrative Law Judge. We agree.
The narrow issues presented in this appeal can be brought into focus only by a recitation of the course of the proceedings. The pertinent facts leading up to the hearing were not in dispute. On August 25,1977 the appellee hurt his lower back when he was pinned against a truck while unloading pipe for Arkla and the employer was immediately notified. The appellee was treated on one occasion by Dr. Paulk who gave him a shot of cortisone and he returned to work after two weeks. He was paid full wages during that two week period and the carrier promptly paid Dr. Paulk’s bill of $35.00.
The appellee then worked full time and received full wages from that date until September 21, 1979 when he was operated on by Dr. Adametz to remove a ruptured disk. The carrier promptly notified appellee that it denied liability for the surgery and other benefits under the Workers’ Compen - sation Act pursuant to Ark. Stat. Ann. § 81-1318 which provides that a claim for. disability on account of injury shall be barred if not filed with the Commission within two years of the injury.
The appellee returned to work in January 1980 but his back condition forced him to stop work completely on June 18, 1980. Despite the fact that he missed many days of work during this period he was paid full wages until that date. He did not file his claim for benefits under the Act until March 26, 1981 —more than three and a half years after the August 1977 incident.
At the hearing it was stipulated that appellee “sustained an injury on August 25, 1977,” the carrier had paid the medical bill of $33.00 and, if the Statute of Limitations had not run, appellee would be entitled to maximum benefits. The parties stated their respective contentions, which were accurately recited by the Administrative Law Judge in his opinion as follows:
Claimant contends: (1) he received an injury arising out of and in the course of his employment in August, 1977; (2) as a result of this injury he had back surgery, a laminectomy, in September, 1979; (3) a workers’ compensation claim was filed on March 26, 1981; (4) payment by or through respondent employer of sickness and accident insurance plan benefits in lieu of workers’ compensation benefits has tolled the statute of limitations; ...
Respondent contends: (1) Ark. Stat. Ann. § 81-1318 (Repl. 1976 and Supp. 1981) bars this claim; (2) claimant is now receiving $418.59 per month in sickness and accident insurance plan benefits; (3) under the policy terms claimant will receive this amount until May 1,2011; (4) if the statute of limitations does not bar this claim, respondents are entitled to a credit for all sickness and accident benefits already paid and to be paid in the future, so that no workers’ compensation benefits are now owed or will ever be owed to claimant; . . .
It was further stipulated that the only issue to be decided at this hearing was the question of the tolling of the Statute of Limitations by payment of sickness and accident benefits under the plan. If it was found that the statute had not run the parties would then present evidence on the remaining issues. The appellee testified that from the time of the 1977 incident to his operation in 1979 he had been treated weekly by Dr. Carter of Sheridan and that his bills for those services had been submitted to and were paid by a private employer/ employee benefits plan provided by Arkla under which 90% of the medical expense was paid by the plan and the balance by appellee. He testified that he received full pay from Arkla from the date of the 1977 incident until June 1980 when he received a monthly gratuity check in the amount of $388.00 under the private plan and that he began to draw “retirement pay’’ in the amount of $418.59 under that plan beginning December 1980.
Arkla offered evidence to prove that no bills, either for Dr. Carter or anyone else, were submitted to either the carrier or the Pension Plan from August 1977 through September 1979 when the operation was performed, and that the medical expense for the September 1979 operation was submitted to and paid by that Plan.
The appellee, relying on Mohawk Tire & Rubber Company v. Brider, 257 Ark. 587, 518 S.W.2d 499 (1975), contended that the payments during the 1977 to 1979 period from the private employer/employee benefit plan tolled the statute. Appellant argued that no such payments had been made by the Plan but that if payments had been made it was entitled to credit for all such payments against future compenstion as provided in Ark. Stat. Ann. § 81-1319 (m) (Repl. 1976).
The Administrative Law Judge ruled that appellant was not entitled to credit for any amounts paid claimant under the private employer/employee benefits insurance plan as there was no evidence that either party intended that these payments constitute payments of compensation in advance as provided by § 81-1319 (m). The Commission correctly affirmed the ruling of the Administrative Law Judge on this point. Emerson Electric v. Cargile, 5 Ark. App. 123, 633 S.W.2d 389 (1982); Southwestern Bell Tel Co. v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966); Looney v. Sears Roebuck, 236 Ark. 868, 371 S.W.2d 6 (1963). No appeal is taken from that ruling.
On the issue on which the controversy was submitted the Administrative Law Judge concluded that whether Dr. Carter’s bills had been paid by the employer was immaterial and made no finding on that issue. He based this conclusion on the finding that “although the accident in issue occurred in August of 1977 the in jury occurred less than two years before the March 26,1981 filing of the claim, so the Statute of Limitations had not run.” The Full Commission affirmed the Administrative Law Judge’s ruling in the following language:
Regarding the Statute of Limitations question, we are unable to distinguish this case factually or in principle from the cases cited and relied on by the Administrative Law Judge. Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 114 (Ark. App. 1980).
Donaldson and Woodard differ from each other both as to facts and principles applied. Donaldson deals with the question of when an injury becomes compensable and starts the period of limitations running. Woodard is concerned with the tolling of limitations once it has begun to run. We cannot tell from the opinion which of these cases was the basis for the Commission’s decision but we conclude that it was error to apply either of them in the circumstances of this case.
Reference to three sections of our Workers’ Compen - sation Act is required for an understanding of the decision in Donaldson. Ark. Stat. Ann. § 81-1318 (a) (Repl. 1976) provides:
Filing of claims. — (a) Time for filing. (1) A claim for compensation for disability on account of an injury (other than an occupational disease and occupational infection) shall be barred unless filed with the Com - mission within two [2] years from the date of the injury.
[At the time Donaldson was decided the limitations period was one year.]
Ark. Stat. Ann. § 81-1502 (e) (Repl. 1976):
(e) “Disability” means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.
Ark. Stat. Ann. § 81 -1310 (a) (Repl. 1976):
(a) Disability. Compensation to the injured employee shall not be allowed for the first seven (7) days disability resulting from injury, excluding the day of injury. If a disability extends beyond that period, compensation shall commence with the ninth (9th) day of disability. If a disability extends for a period of two (2) weeks, compensation shall be allowed beginning the first day of disability, excluding the day of injury.
In Donaldson the worker was hurt on the job on March 10, 1947 and he returned to work within one week. He was paid no compensation under the Act during that week’s disability as none was required under § 81-1310 (a). The employer did pay a $25.00 medical bill. He continued to work for the same wages until his deteriorating condition required that he be given a lighter job at lower wages in October 1948. In March 1949 surgery was performed upon him which was attributable to his initial injury of March 1947. His claim for compensation was filed on May 24, 1947. The court rejected the contention that the Statute of Limitations began to run from the date of the March 10,1947 incident pointing out that “injury” as used in § 81-1318 does not mean the date of the “accident” but the date on which the injury becomes a compensable one. The court there held that the worker’s injury did not become compensable on March 10, 1947 because his loss of ability to earn wages due to disability had not continued for the period required in § 81-1310. The statute did not begin to run until October 1948 when he suffered his first wage loss due to the injury by reduction in pay which did continue for the requisite period. With respect to the payment of an initial medical bill for a noncompensable injury the court said:
Obviously this medical payment was not and could not have been a payment of compensation... on account of such injury (compensable injury) ... .
This court reached that same result in Shepherd v. Easterling Const. Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983) where the worker injured his knee in May of 1978, received only first aid, and continued to work. His medical bill of $92.25 as paid by the carrier. He lost no wages until September 19, 1979 when he became unable to perform his regular job due to difficulty with his knee which required surgery. Following Donaldson we held that the appellant’s inj ury did not become a compensable one until he suffered a loss of earnings in September 1979 and that the two year Statute of Limitations did not commence running until that date. The clear holding in Donaldson and in Shepherd is that the Statute of Limitations provided in § 81 -1318 (a) does not begin to run until the true extent of the injury manifests and causes an incapacity to earn the wages which the employee was receiving at the time of the accident, which wage loss continued long enough to entitle him to benefits under § 81 -1310. x
In the case at bar the appellee, due to his August 25 injury, was incapacitated to earn the wages he was receiving at the time of his accident. This continued for a long enough period to entitle him to benefits under § 81 -1310 (2 weeks). The fact that he was paid full wages during this period does not compel a different conclusion. Disability which is compensable under our statute is based upon incapacity to earn because of injury. The payment of full wages during a compensable disability does not negate the incapacity to earn but may, in proper circumstances, dispense with the requirement that compensation benefits be paid under § 81-1319 (m) (Repl. 1976).
We conclude that this appellee sustained a compensable injury within the meaning of Ark. Stat. Ann. § 81 -1318 on August 25,1977 and that the Administrative Law Judge and Commission erred in holding to the contrary. The Statute of Limitations began running at that time.
The fact that the initial injury was a compensable one within the meaning of the Act does not necessarily mean that the Statute of Limitations bars the claim at the end of two years from that date. Where the full extent and nature of the injury are not known, nor reasonably ought to be known, until a later date, the running of the Statute of Limitations may be postponed under the “latent injury rule” in Woodard.
In Woodard the worker sustained a compensable inj ury for which he was paid benefits under the Act. The full extent of the injury, however, did not become known until the period of limitations had run from the date of the injury and the date of the last payment of compensation. There this court in allowing the claim applied the rule that the claimant is not required under this Statute of Limitations to file his claim until the substantial character of the injury becomes known or until the employee knows or should reasonably be expected to be aware of the full extent or nature of his injury. In the earlier cases of T. J. Moss Tie & Timber Co. v. Martin, 220 Ark. 265, 247 S.W.2d 198 (1952) and Sanderson & Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796 (1949) this latent injury exception had been recognized and applied. It was recognized most recently by the Supreme Court in Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983) where the court found the rule to be inapplicable to the facts.
If, as appellant suggests, the Administrative Law Judge and Commission relied on Woodard, we must agree with the appellant that this was erroneous for an entirely different reason. In Woodard the court held that the claim was not barred by the Statute of Limitations where it was not proved that the appellant knew or should have known the nature and extent of his injury more than two years prior to filing his claim. In Cornish Welding Shop v. Galbraith, supra, however, the Supreme Court held that the claim was barred where the evidence disclosed that the substantial nature of the injury was known more than two years before the filing of the claim. It is clear from these cases that if the employer can show to the satisfaction of the Commission that the appellee knew the substantial nature of the injury or that he should reasonably be expected to have been aware of the extent and nature of his injury for more than two years his claim would be barred.
It is also clear from the statements of counsel in the record and the contentions of the parties as recited by the Administrative Law Judge that the case was submitted on an agreement that it would be determined on a finding as to whether the Statute of Limitations was tolled by the payment of Dr. Carter’s medical expenses within the two years preceding the date of filing the claim. Whether the statute was tolled because of the latent nature of the injury and appellee’s lack of awareness of the extent and nature of it was not an issue and was not developed at the hearing. With the clear statement of counsel that the issue to be presented was whether the Statute of Limitations had been tolled by the payment of compensation within the statutory period, the decision by the Administrative Law Judge based upon a finding of fact on an issue not submitted or developed by either party effectively denied the employer the right to be heard on that issue. It is also clear from the record that the decision of the employer not to introduce evidence of medical witnesses allegedly treating appellee during the period in question was based on the stipulation to narrow the issues to those recited by the Administrative Law Judge in his opinion. When the diagnosis was made or became apparent or when the appellee knew or ought to have known the extent of his injury was not developed or submitted for determination.
Had the issue of latent injury been fully developed by the parties despite the stipulations narrowing the issues a different question would be presented. However, this record discloses that it was not. We fully recognize that the function of the Commission is to conduct a fair and impartial hearing in a manner that will best ascertain the rights of the parties and that pleading and practice before the Commission is less formal and not governed by the stricter rules of procedure applicable to courts. Ark. Stat. Ann. § 81 -1327 (Supp. 1983). Subject to its own rules the Commission is given great latitude in this area. We do not mean to imply otherwise but we hold only that the Commission erred under the circumstances of this case when it based its decision on a finding of fact which was clearly not in issue or developed by the evidence without notice to the parties of its intent to do so and no opportunity to offer proof on that issue was afforded. Glavin v. Michigan State Hwy. Dept., 269 Mich. 672, 257 N.W. 753 (1934); 100 CJS Workers’ Compensation § 648, p. 959.
Reversed and remanded.
Cooper and Glaze, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, Virgil Hayden Booth, Jr., was convicted by an Arkansas County jury of possession of a controlled substance with intent to deliver and sentenced to a term of seven years and fined $9,000.00. We reverse.
Appellant was a passenger in a car operated by Van - gilder. Police officers stopped the car about 2 a.m. because the car had no brake lights and an inoperative tail light. Vangilder got out of the car to speak with the police officers and when told of the defective lights, voluntarily opened the trunk of the car to repair the lights. While the trunk was open, one of the officers saw an unzipped bag lying in the trunk in which there were some plastic bags that appeared to contain marijuana. Upon closer examination of the plastic bags, the officers charged Vangilder and appellant with possession of a controlled substance and intent to deliver.
Appellant remained in the car until he was arrested. A search of appellant, Vangilder and the car turned up no further evidence of marijuana. Vangilder, but not appellant, had a sweet smell on his person when arrested but the officers could not identify the odor. The officers thought appellant may have been drinking prior to the arrest.
Appellant and Vangilder were tried together. Appellant asked for a directed verdict at the close of the prosecution’s case, which was denied. The defense rested without putting on further evidence at which time appellant renewed his motion for a directed verdict which was denied. Both appellant and Vangilder were convicted of possession of a controlled substance with intent to deliver.
Appellant appeals the trial court’s refusal to grant a directed verdict for the reason that there was insufficient evidence to sustain a conviction. Appellant contends that there was no evidence presented at trial linking him to the marijuana upon which the jury could have based its verdict.
Where the sufficiency of the evidence is challenged on appeal, the evidence must be viewed in the light most favorable to the appellee and affirmed if there is any evidence to support it. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976). If a jury could have reached its conclusion without resorting to speculation or conjecture, its verdict must be upheld. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982). However, if, when viewed in the light most favorable to the appellee, the evidence is such that a reasonably-minded juror would have a reasonable doubt as to the existence of any of the essential elements of the crime charged, the jury’s verdict must be set aside. U.S. v. Brim, 630 F.2d 1307 (8th Cir. 1980), cert. denied, 452 U.S. 966 (1981).
In the instant case, appellee argues that there was sufficient testimony presented at trial to infer that appellant shared possession of the marijuana with Vangilder, since appellant and Vangilder were riding together in the vehicle. We disagree.
We recognize the principle of joint possession or joint occupancy of a place where contraband is discovered. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). But, when joint occupancy is the sole evidence against the defendant, there must be some additional link between the defendant and the contraband. See, Cary v. State, supra; Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). Another more recent case in point, cited by appellant, is Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). In that case, the defendant was convicted of possession of cocaine and possession of other controlled substances with intent to deliver. The cocaine was found on the defendant’s person, and the other drugs were found in various places within the defendant’s residence which he shared with his wife and three other persons. The Arkansas Supreme Court, in reversing that portion of his conviction relating to other drugs found in the residence, explained the joint occupancy rule as follows:
Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of posses - sion. (cite omitted) However, we have also held that joint occupancy of premises alone will not be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession, (cites omitted)
In arguing that appellant’s presence in the vehicle containing the marijuana was sufficient evidence to support the jury’s conclusion, the State in the case at bar relies upon an Arkansas Court of Appeals case, Llewellyn v. State, 4 Ark. App. 326, 630 S.W.2d 555 (1982). There, a shared vehicle was involved. However, we believe the case is distinguishable. The vehicle in which the drugs were found was a van, and the drugs were in the passenger compartment. Also, there was other evidence linking the defendant to the drugs. The defendant in Llewellyn was present when the drug deal was negotiated as well as when the drugs were delivered, thus supplying the necessary added links to the contraband.
In this case, there was no evidence linking appellant to the marijuana found in the trunk. There was no evidence of any prior involvement by appellant; there was nothing suspicious about his person or his actions; there was no evidence that he had keys to the car or its trunk when arrested; and there was no proof as to his relationship with the driver or the length of time they had been together.
Other than the fact that appellant was riding in the car, there was no evidence presented which would link him with the marijuana locked in the trunk. In the absence of such evidence from which the jury could infer possession by appellant, we find the Osborne case controlling. Accordingly, we reverse, finding that the jury could have reached its conclusion only by speculation or conjecture and that the trial court incorrectly denied appellant’s motion for a directed verdict.
Reversed and dismissed.
Cloninger and Cracraft, JJ., agree. | [
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E. JENNINGS, Judge.
Cheryl Paslay brings this appeal from an order terminating her parental rights in her son, L.B., who was born on August 26, 1999. For reversal of that decision, appellant contends that the chancellor erred in using the previous termination of her rights in another child as the basis for terminating her rights in L.B., because the prior termination was pending on appeal. We find no error and affirm.
This is the second appeal involving appellant and L.B. In the first, we affirmed the chancellor’s decision that L.B. was dependent-neglected based on a finding that appellant was unfit. Brewer v. Arkansas Dep’t of Human Servs., 71 Ark. App. 364, 32 S.W.3d 22 (2000). Appellant was deemed unfit because of severe physical abuse suffered by appellant’s daughter, M.P. On December 30, 1999, appellee filed a petition to terminate appellant’s parental rights in L.B. Termination was sought under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) (Supp. 1999), which provides that parental rights in a child may be terminated if the child’s parent has had her rights involuntarily terminated as to a sibling of the child.
At the hearing held on March 28, 2000, it was established that appellant’s parental rights in M.P. had been terminated by order dated December 6, 1999. Appellant argued, however, that the order terminating her rights in M.P. could not serve as the predicate for terminating her rights in L.B. because she had taken an appeal of that decision. She contended that, because the order had been appealed, it could not be considered “final.” The chancellor disagreed and entered an order on April 17, 2000, terminating her rights in L.B. based on the previous termination of her rights in M.P.
As argued below, appellant contends that the chancellor erred in basing his decision on the prior termination because it had been appealed. As an initial matter, the appellee argues that this case is now moot because we have since affirmed the termination of appellant’s rights in M.P. Paslay v. Arkansas Dep’t of Human Servs., CA00-268 (December 20, 2000). It is true that we do not ordinarily decide moot issues. However, there is an exception to the mootness doctrine for cases that are capable of repetition yet evading review. See Arkansas State Game & Fish Comm’n v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001). When a case involves the public interest, or tends to become moot before litigation can run its course, we have, with some regularity, refused to let mootness become the determinant. Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993). Because it is likely that this scenario may arise in future cases, we consider it appropriate to address the merits of appellant’s argument.
In making her argument, appellant refers to John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993), which states the rule that a judgment is considered final for purposes of issue preclusion, despite a pending appeal for a review of the judgment, unless the appeal actually consists of a trial de novo. As a corollary to that rule, appellant reasons that, because this court conducts a de novo review of chancery cases including those that involve termination, see Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001), it was error to rely on the previous termination because the decision had been appealed. This argument fails to recognize that there is a difference between a trial de novo, and a de novo review.
In Pinson, supra, the court cited Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203, 105 S. W. 77 (1907), where the court made the rule clear:
[T]he weight of judicial opinion, as well as sound reason, is that, when a case which is removed to an appellate court by a writ of error or an appeal is not there tried de novo, but the record made below is simply re-examined, 'and the judgment either reversed or affirmed, such an appeal or writ of error does not vacate the judgment below or prevent it from being pleaded and given in evidence as an estoppel upon issues which were tried and determined, unless some local statute provides that it shall not be so used pending an appeal.
Boynton at 213. While our appellate review is de novo, it is conducted on a record already made, and we may reverse, affirm, or modify the judgment either in whole or in part. See Ark. Code Ann. § 16-67-325 (1987). It is not a trial de novo, such as appeals from municipal to circuit court,, where cases appealed are tried anew. See Ark. Code Ann. § 16-17-703 (Repl. 1999). Thus, the rule appellant relies upon has no application here. We hold, then, that the chancellor did not err in basing his decision on the prior termination, even though it had been appealed.
Affirmed.
Crabtree and Baker, JJ., agree. | [
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JOHN B. ROBBINS, Judge.
In this child-custody proceeding, appellant Rodney McNair has filed a motion seeking an order that would unseal a portion of the record containing the testimony of two of the three minor children of the parties. The trial court directed that the transcript of the children’s testimony be sealed, in keeping with an agreement by the parties and representations made by the trial judge to these children at the time they were interviewed in chambers.
The issue raised by appellant in his appeal is whether there was sufficient evidence for the trial court to change custody of the children to appellee. Rule 6(b) of the Rules of Appellate Procedure — Civil provides in pertinent part:
If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or contrary thereto, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.
Rule 4-2 (a) (6) of the Rules of the Supreme Court then requires that the appellant include in his brief an abstract of this designated record, which would necessarily include the testimony of these children. While this rule recognizes an exception to the abstracting requirement for maps, plats, photographs, and other similar exhibits, which cannot be abstracted in words, the exception would not include the testimony of children given in camera.
Nor do the rules cited above make exception for testimony that has been sealed by order of the trial court. A meaningful de novo review to determine whether the trial court’s findings were clearly against the preponderance of the evidence is not possible unless all relevant evidence upon which the chancellor relied is presented to us. Consequently, there does not appear to be a method available under existing law to permit children to testify on the record, whether in chambers or open court, yet exempt such testimony from the appellate rule requiring abstracting if it is designated as part of the record on appeal. We properly grant appellant’s motion.
Some judges on our court would grant appellant alternative relief by waiving the abstracting requirement and would review directly the transcripts of the sealed testimony. If we did so, not only would we err, we would risk compounding that error. First, as noted above, we would contravene Rule 4-2(a)(6) promulgated by our supreme court; a rule we are not at liberty to disregard. Second, if we held that the merits of the appeal required reversal of the judgment under appeal, we would violate a doctrine of Arkansas appellate procedure that is so basic that citation to authority is not necessary, i.e., we will not go to the record to reverse. Those judges would have us pull aside the cloak of secrecy surrounding the sealed testimony, yet would not, in order to maintain this secrecy, permit us to disclose in our written opinion what we may have seen, even if pivotal to our decision. Surely, we should run from such a procedure.
As a postscript, we note that, while there was a record made in the instant case, Administrative Order Number 4, 305 Ark. 613 (Appendix) (1991), and Ark. Code Ann. § 16-64-129(a)(2) appear to countenance a waiver of a record by the parties. However, for the following reason this would not appear to be a satisfactory solution to the problem of allowing children to testify with confidentiality. If the parties agree to waive a record and permit the child or children to be interviewed privately by the trial judge, and the aggrieved parent desires to appeal, the absence of a record virtually renders the judge’s decision irreversible. A statement of evidence as contemplated by Civil Rule of Appellate Procedure 6(d) is not possible because, under these circumstances, counsel were not privy to the testimony that was taken in chambers. The consequence of an appeal in this posture is an affirmance, because it is presumed that the matters presented in the unrecorded proceeding support the trial court’s findings. See Argo v. Buck, 59 Ark. App. 182, 954 S.W.2d 949 (1997); Rush v. Wallace, 23 Ark. App. 61, 742 S.W.2d 952 (1988); Wagh v. Wagh, 7 Ark. App. 122, 644 S.W.2d 630 (1983).
Unsealing of the record is ordered.
Hart, Bird, Griffen, Neal, Vaught and Roaf, JJ., agree.
Stroud, C.J., Pittman, Jennings, Crabtree and Baker, JJ., dissent. | [
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B. ROBBINS, Judge.
Three actions are consolidated for this appeal. The appellants, Tony Smith Trucking, Southern Refrigerated Transport, and Tony and Kathy Smith, all filed amended complaints against appellee Woods & Woods, Ltd., on October 19, 1999. The complaints alleged breach of contract due to the appellee’s failure to exercise the required skill and workmanship of certified public accountants in the defense of audits of appellants’ 1991, 1992, and 1993 income-tax returns. The trial court entered summary judgment against each appellant, ruling that their causes of action were barred by the three-year statute of limitations applicable innegligence cases. The trial court further ruled that, even if the five-year statute of limitations applied as asserted by appellants, appellants’ claims were still time-barred because their complaints were filed more than five years after the fifing of the last relevant tax return. The appellants argue on appeal that the trial court erred in entering summary judgment. We affirm.
Appellants’ argument is twofold. First, they argue that the trial court erred in finding that the causes of action were in tort, rather than breach of contract, and as a consequence it applied the wrong limitations period. Next, they argue that, assuming the statute of limitations is five years and not three, the trial court erred in finding that their complaints were not timely. The appellants contend that, in addition to an action for breach of appellee’s earlier contract to prepare the subject tax returns, they also pled a cause of action for breach of appellee's contract to render services to appellants during the IRS audit of these returns. Because the audit occurred within five years of the filing of the October 19, 1999, amended complaints, their actions were not timé-barred.
Arkansas Rule of Civil Procedure 56(c)(2) provides for summary judgment when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” The moving party bears the burden of sustaining a motion for summary judgment; once the moving party meets this burden, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997). On appeal, we view the evidence in the light most favorable to the opposing party and resolve all questions and ambiguities against the moving party. Elder v. Security Bank, 68 Ark. App. 132, 5 S.W.3d 78 (1999). Summary judgment is proper when the statute of limitations bars the action. Alexander v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995).
In the amended complaints filed by appellants on October 19, 1999, it was alleged that the appellee breached its agreement with appellants in their preparation of the 1991, 1992, and 1993 income tax returns, which subsequently resulted in damages. Moreover, the complaints asserted that the appellee breached its contract with the appellants in representing them in the IRS audit. Donny Woods, representing Woods and Woods, Ltd., joined in execution of a power of attorney with respect to each of the appellants in 1994, authorizing him to represent the appellants before the IRS. The appellants asserted in their complaints that each power of attorney represented a contract, and that each contract was breached due to Mr. Woods’s deficient representation during the audit that occurred later. The complaints listed a variety of specific instances where Mr. Woods allegedly failed to raise the appropriate arguments or supply the correct documentation in his defense during the IRS audit. The appellants asserted that, as a result of the contract breach, they suffered damages including taxes, penalties, and interest assessed by the IRS, as well as “fees paid by Smiths to their accountants and attorneys to correct defendant’s negligence[.]”
The appellants argue that their actions against the appellees were for breach of contract, and that pursuant to Ark. Code Ann. § 16-56-111 (Supp. 1999), the applicable statute of limitations is five years. However, the trial court found that, even though each complaint purported to be an action for breach of contract, “the gist of the action is one for professional negligence.” The statute of limitations for negligence actions is three years. Ark. Code Ann. § 16-56-105 (1987); Gibson v. Herring, 63 Ark. App. 155, 975 S.W.2d 860 (1998).
In support of its argument, appellants attempt to distinguish this case from Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). In that case, the appellants sued for attorney malpractice, asserting both negligence and breach of contract. For its breach of contract claim, appellants maintained that the appellees contracted to represent them diligently and competently, but failed to do so for a number of stated reasons. The supreme court set out the following guidelines for determining which statute of limitations applied:
In 2 R. Mallen and J. Smith, Legal Malpractice § 21.5(4th ed. 1996), the authors explain that “for a contract statute of limitations to apply, there must be a breach of a specific promise.” To determine the cause of action, we look to the facts alleged in the complaint to ascertain the area of the law in which they sound. McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998). If two or more statutes of limitation apply, generally the statute with the longest limitations period will govern. Id. at 470; Loewer Farms v. National Bank of Ark., 316 Ark. 54, 870 S.W.2d 726 (1994).
Id. at 48, 977 S.W.2d at 220. The supreme court held that the three-year limitations period applied, stating:
The complaint in this case obviously contained a claim of breach of contract. The question thus becomes whether the reference to diligence in the contract is the sort of specific promise that transforms the gist of the action from one for negligence into one for breach of the written agreement. We hold that it does not. The obligation to act diligently is present in every lawyer-client relationship. The violation of that obligation is, by definition, nothing more than negligence. Our conclusion that the gist of the action in this case is negligence is further supported by the fact that the amendment of the complaint to state the contract claim was an obvious afterthought and was done apparently upon realization that, but for one, the negligent acts alleged all occurred more than three years prior to the filing of the complaint.
Id. at 49-50, 977 S.W.2d at 221.
The appellants assert that the case at bar is materially different than Sturgis v. Skokos, supra, because the powers of attorney required the appellee to perform specific promises. Appellants contend that the contracts required Mr. Woods to perform detailed duties to the best of his knowledge, skill, and ability, which included performing acts on behalf of the taxpayers such as signing agreements, consents, or other documents. Moreover, appellants point out that the powers of attorney stated that Mr. Woods is an enrolled agent under Treasury Department Circular No. 230, which requires representation concerning:
(a) all matters connected with a presentation to the Internal Revenue Service or any of its officers or employees relating to a client's rights, privileges, or liabilities under laws or regulations administered by the Internal Revenue Service.
(b) presentations including preparing and filing necessary documents.
(c) corresponding and communicating with the Internal Revenue Service; and
(d) representing a client at conferences, hearings, and meetings.
The appellants note that Mr. Woods’s breach of contract is alleged to have occurred through April 24, 1995, when his representation was terminated. This was less than five years prior to the filing of their amended complaints, and appellants argue that, since Mr. Woods was specifically authorized to take specific actions as noted above, a fact question existed as to whether the five-year statute of limitations was applicable.
We are unpersuaded by appellants’ argument and hold that, for purposes of determining the applicable limitations period, this case is indistinguishable from Sturgis v. Skokos, supra. Both cases involve a general agreement by professionals to exercise diligence in representing their clients. While the appellants submit that the powers of attorney outlined sufficient specific promises to trigger the five-year limitations period for breach of contract actions, we disagree. The forms authorized Mr. Woods to represent appellants before the IRS, and by way of example stated that he was authorized to sign agreements, consents, or other documents. However, the powers of attorney do not contain or contemplate specific promises, but at most represent a general duty to represent appellants with diligence. A violation of that obligation is, by definition, nothing more than negligence. See Sturgis v. Skokos, supra. Our conclusion that the gist of the action is negligence is further supported by the fact that the original complaints filed by appellants alleged only negligence, but were soon amended to include breach of contract. Id.
In Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989), the supreme court announced that in Arkansas malpractice cases concerning not only attorneys and physicians but also accountants, the three-year statute of limitations begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered. While the appellants in the instant case argued below that the appellees fraudulently concealed its negligence, this argument was rejected by the trial court and has not been raised as an issue on appeal. The three-year statute of limitations began to run no later than April 24, 1995, when the appellee discontinued its representation of appellants. Since the limitation period expired before appellants filed their 1999 complaints, the trial court correcdy entered summary judgment against appellants as there were no genuine issues of material fact remaining and appellee was entided to judgment as a matter of law.
Appellants’ remaining argument is that, if the five-year limitations period applies, then their claims are not time-barred because the appellee was defending the audit within five years of the fifing of their complaints. However, due to our disposition of the first issue, we need not address this contention.
Affirmed.
Bird and Vaught, JJ., agree. | [
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John B. ROBBINS, Judge.
Appellant Sherman Johnson was convicted by a jury of committing aggravated robbery and a terroristic act. He was sentenced to ten years in the Arkansas Department of Correction. Mr. Johnson now appeals, arguing that the trial court erred in failing to suppress a statement he made to the police, and that absent this statement there was insufficient evidence to corroborate his accomplices’ testimony and support his convictions.
When the sufficiency of the evidence is challenged on appeal, we review this issue before addressing other alleged trial errors. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998). Therefore, in deciding whether there was substantial evidence to support the verdicts against Mr. Johnson, we will consider all of the evidence, including the statement that he asserts was erroneously admitted.
At the jury trial, the victim, Phillip Isgrig, testified on behalf of the State. He stated that he was driving a mail route on June 30, 1999, when three men who were running toward him caught his attention. According to Mr. Isgrig, two of the men had bandanas covering their faces and one wore a ski mask. Shortly thereafter, Mr. Isgrig saw a person raise a pistol and fire two shots, one of which struck his vehicle.
Darcy Smith, an accomplice to the criminal activity, testified that it was Mr. Johnson’s idea to rob the mailman, and that he and Jerrod Watson agreed to assist. He testified that they all gave chase and that Mr. Johnson fired shots at Mr. Isgrig.
Mr. Watson, another accomplice, stated that it was Mr. Smith’s idea to commit the robbery. However, he acknowledged that he and Mr. Johnson both participated and carried guns. Mr. Watson testified that he heard two shots fired, although he did not see Mr. Johnson fire the shots.
Detective Lynda Keel also testified for the State. She indicated that, after signing a waiver-of-rights form, Mr. Johnson gave a taped statement. The statement was played for the jury, and in the statement Mr. Johnson acknowledged being with Mr. Smith and Mr. Watson when they were planning to rob the mailman. Mr. Johnson admitted that he went along with the plan to commit the robbery. He also admitted that he knew that what he was doing was wrong. However, Mr. Johnson denied having a gun, and maintained that it was Mr. Smith who fired the shots.
We first address Mr. Johnson’s argument that there was insufficient evidence to sustain his convictions. He correcdy asserts that, pursuant to Ark. Code Ann. section 16-89-lll(e)(l) (1987), a conviction cannot be had in any felony case upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Mr. Johnson argues that there was insufficient corroboration of his accomplices’ testimony, and consequently his convictions must be reversed.
A person commits aggravated robbery if, while armed with a deadly weapon, he threatens to immediately employ physical force upon another with the purpose of committing a theft. See Ark. Code Ann. § 5-12-103(a)(l) (Repl. 1997). A person commits a terroristic act if he shoots, with the purpose to cause injury to persons or property, at a conveyance which is being operated or occupied by passengers. See Ark. Code Ann. § 5-13-310(a)(l) (Repl. 1997). We hold that there was sufficient corroboration to support Mr. Johnson’s convictions for both offenses.
The test for determining the sufficiency of evidence to corroborate the testimony of an accomplice is whether, if the testimony of the accomplice were completely eliminated from the case, other evidence independently establishes the crime and tends to connect the accused with its commission. Pickett v. State, 55 Ark. App. 261, 935 S.W.2d 281 (1996). The corroborating evidence need not be sufficient standing alone to sustain the conviction; however, proof that merely places the defendant near the scene of a crime is not sufficient corroborative evidence of his connection to it. Id.
In the instant case, the corroborating evidence was primarily supplied by Mr. Johnson’s statement to the police. He admitted to participating in criminal activity, as opposed to mere presence at the scene. Without considering the accomplices’ testimony, the victim’s testimony and appellant’s statement established that the crimes were committed, and appellant’s statement connected him with the crimes. Mr. Smith testified that Mr. Johnson both planned the robbery and fired the shots, and when considered with the corroborating evidence, this testimony supports the jury’s finding that Mr. Johnson committed both aggravated robbery and a terroristic act. While Mr. Johnson submits that Mr. Smith’s testimony was unreliable because it was given in exchange for leniency and was inconsistent with that elicited from the other accomplice, we have repeatedly held that the determination of credibility issues is left to the trier of fact. See Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).
We next address Mr. Johnson’s argument that the trial court erred in refusing to suppress his statement to the police. At the suppression hearing, it was established that Mr. Johnson had warrants out for his arrest when he voluntarily presented himself to the police station nine days after the robbery. Detective Charles Ray testified that he read Mr. Johnson the waiver-of-rights form, which Mr. Johnson understood and signed. He then contacted Detective Keel, who arrived thirty-five minutes later and reread Mr. Johnson his rights, which he “appeared to understand.” After speaking with Mr. Johnson and listening to his version of the events, Detective Keel taped a statement. The pertinent portion of the tape recording is as follows:
KEEL: Sherman, I have in front of you our standard Little Rock Police Department Miranda rights form which was read to you at 2150 hours by Detective Charles Ray. You — the top portion of the form indicates that you have 12 years of education and you can read and write and he advised you of your rights. Do you understand those rights? I need you to speak.
JOHNSON: Yes ma’am.
Keel: Okay. Is this your signature on the form?
JOHNSON: Yes ma’am.
KEEL: Do you have any questions about your rights?
JOHNSON: Yeah, like uh, the right to remain silent.
Keel: Uh huh.
JOHNSON: (Inaudible) and he told me to come, well he told me that when I was going to turn myself in he told me to come up here, he said just tell y’all my name and my address.
KEEL: Why didn’t you say that earlier?
JOHNSON: No cause I ain’t find — I just went through when I turned myself in then I just went on and told y’all the statement.
Keel: Okay so you gave us a statement (Inaudible) okay that’s fine and this is your signature? Okay the bottom portion of the form is a waiver of rights which pertains to giving us a statement. You signed this form here indicating that you did want to give us a statement. You’ve been talking to us briefly about what happened.
JOHNSON: Yes ma’am.
Keel: You understand that we are taking a taped statement and you’re doing this on your own will, is that correct?
JOHNSON: Yes ma’am.
Keel: Okay, is this your signature on the form?
Johnson: Yes ma’am.
Keel: Okay. You do understand that we’re taking a recorded statement?
Ray: You’re nodding your head again.
JOHNSON: Oh, yes ma’am.
Ray: Okay.
Keel: All right. Start at the beginning and tell me where you were on the afternoon that this happened?
Following the above exchange, Mr. Johnson gave an account of the criminal activity that transpired on the day at issue.
Mr. Johnson argues that his statement should have been suppressed for two reasons. First, he argues that he invoked his Fifth-Amendment right to remain silent and the questioning by Detective Keel impermissibly continued. Second, he contends that any waiver of his right to remain silent was not given knowingly and intelligently.
Mr. Johnson asserts that he raised a question as to his right to remain silent when, after being asked whether he had any questions about his rights, he replied, “Yeah, like uh, the right to remain silent.” In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that if an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Mr. Johnson maintains that since Detective Keel continued the interrogation after he invoked his right to remain silent, his statement was erroneously admitted.
Mr. Johnson also cites Smith v. Illinois, 469 U.S. 91 (1984). In that case, while a police officer was reading Miranda rights to the appellant, he informed appellant of his right to have a lawyer present, to which appellant responded, “Uh, yeah, I’d like to do that.” The interrogation continued at the officer’s coaxing, and appellant gave incriminating statements. In reversing his conviction, the Supreme Court announced that the appellant invoked his right to counsel and held that an accused’s post-request responses to further interrogation may not be used to cast doubt on the clarity of the initial request for counsel. Mr. Johnson argues that the instant case is analogous to Smith v. Illinois, supra, and that for purposes of determining whether or not he invoked his right to silence, we are not permitted to consider any of his responses subsequent to when he initially asserted the right.
In the alternative, Mr. Johnson argues that even if he waived his right to remain silent, his waiver was not knowing and intelligent. He notes that statements made in police custody are presumed to be involuntary, and the burden is on the State to prove the statement was voluntary and that any waiver of rights was knowingly and intelligently made. See Miranda v. Arizona, supra. Mr. Johnson argues that the State failed to prove that he knowingly and intelligently waived his right to remain silent because, during his interrogation, Detective Keel continued the questioning without again explaining his rights to him or further inquiring into his uncertainty.
We review a trial court’s ruling on a motion to suppress by making an independent determination based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). The ruling will only be reversed if it is clearly against the preponderance of the evidence. Id. In the case at bar, we hold that the trial court’s denial of Mr. Johnson’s motion to suppress was not clearly against the preponderance of the evidence.
In Davis v. United States, 512 U.S. 452 (1994), the United States Supreme Court held that a suspect’s statement during interrogation that “Maybe I should talk to a lawyer” did not require cessation of the questioning because a suspect must unambiguously request counsel. In Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1996), the Arkansas Supreme Court held that there is no distinction between the right to counsel and the right to remain silent with respect to the manner in which it must be effected. In Smith v. Illinois, supra, the appellant specifically stated that he would like to have a lawyer; however, in the instant case, Mr. Johnson responded to Officer Keel’s question “Do you have any questions about your rights?” by stating, “Yeah, like uh, the right to remain silent.” This ambiguous response, viewed in the light most favorable to the State, as we are required to do, see Hill v. State, supra, was merely an acknowledgment by Mr. Johnson that he understood the kind of “rights” to which the officer was referring. But even if viewed in the light most favorable to appellant, this response was no more than an indication that appellant had a question, not that he was specifically asserting his right to remain silent. Consequently, the right was never invoked and there was nothing improper about continuation of the custodial interrogation.
Nor are we persuaded that the trial court erred in finding that Mr. Johnson gave a knowing and intelligent waiver of his rights. In making this determination, we review the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the defendant. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). The circumstances of this case show that Mr. Johnson, who had completed twelve years of education, came to the police station on his own volition and was twice read his rights from a waiver-of-rights form, and he signed the rights form and informed the police that he understood every right on the piece of paper. Mr. Johnson then gave a statement to Officer Keel, and after he agreed to have his statement recorded, Officer Keel inquired again as to whether he had any questions about his rights and he stated, “Yeah, like uh, the right to remain silent.” He then proceeded to explain that he was told by someone to turn himself in and give his name and address, and reaffirmed that he agreed of his own will to give a taped statement. Contrary to appellant’s argument, we may consider statements made during the interrogation that were made after appellant’s alleged inquiry into his rights because Mr. Johnson never expressly asserted his right to remain silent, and in deciding this issue, we must inquire into all of the circumstances surrounding the interrogation. See Fare v. Michael C., 442 U.S. 707 (1979). Under the totality of the circumstances, we find no error in the trial court’s finding that Mr. Johnson was aware of his right to remain silent and gave a knowing and intelligent waiver of that right.
Affirmed.
Bird and Vaught, JJ., agree. | [
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Andree Layton Roaf, Judge.
Appellant Lee Charles Lewis was convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. Lewis was sentenced to ten years’ imprisonment on the cocaine charge and four years’ imprisonment on the marijuana charge, with the sentences to be served concurrently. Lewis’s counsel previously filed a motion to withdraw, 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, alleging that an appeal from his convictions would be without merit; however, this court ordered rebriefing in an unpublished opinion entered on November 20, 2002, because counsel failed to abstract and discuss all adverse rulings. Lewis’s counsel then submitted a second Anders brief, which again failed to abstract and discuss all adverse rulings. After reviewing the record, this court found that Lewis’s Batson challenge to the voir dire of the jury may not be wholly frivolous and directed his counsel to rebrief the case on the merits of that issue in an unpublished opinion entered on May 14, 2003. Lewis’s counsel has now submitted a merit brief in accordance with this court’s directive.
On appeal, Lewis argues that the trial court erred in overruling his Batson challenge to the State’s peremptory removal of two black venirepersons from the jury panel. Specifically, Lewis argues that the trial court improperly cut off the State’s attempt to give a race-neutral reason for striking one juror and supplied a reason on behalf of the State for the second strike. Because Lewis’s argument concerning the trial court’s improper conduct was not raised below, we affirm.
Because Lewis does not challenge the sufficiency of the evidence supporting his convictions, a detailed recitation of the facts underlying those convictions is not necessary. During voir dire, the State used peremptory challenges to strike six black venirepersons from the jury panel. Lewis objected and argued that the State’s use of its peremptory challenges to strike all the remaining black venirepersons from the jury panel was in violation of Batson v. Kentucky, 476 U.S. 79 (1986). After the trial court ruled that Lewis had made a prima facie showing of racial discrimination, the State proceeded to give its racially neutral reasons for exercising each strike. With respect to venirepersons Wright and Harding, the following colloquy occurred:
State: Ms. Wright yesterday at the end of the trial, her and the Defendant...
Defense Counsel: The other defendant...
State: The other defendant who, and that causes me to ...
Court: That’s good enough. It’s racial neutral.
State: Okay. Mr. Harding was related to the Defendant yesterday.
Defense Counsel: That’s yesterday’s defendant. It’s not anything to do with this case.
State: It has to do with the same officers and all that.
Defense Counsel: No.
State: I believe that he’ll have a bias ...
Defense Counsel: Doesn’t make any difference.
State: ... against him.
Court: His brother had a relative arrested on a drug related offense.
State: - Okay.
Court: That’s enough. Racial neutral.
The trial court ruled that all of the reasons given by the State for striking each venireperson were racially neutral and overruled Lewis’s Batson challenge.
Lewis argues on appeal that the trial judge erred in overruling his Batson challenge to the State’s peremptory removal of blacks from the jury panel. However, before addressing the merits of Lewis’s argument, the sufficiency of his abstract must be discussed. Lewis has failed to abstract any portion of the jury trial. Instead, he has photocopied and placed in his addendum four pages from the transcript, which contain his Batson objection and the State’s race-neutral explanations for the removal of the two black venirepersons that he argues on appeal were improperly struck from the panel. In addition, Lewis has failed to include in his addendum both the judgment and commitment order and his notice of appeal.
According to Ark. Sup. Ct. R. 4-2(a)(5) (2003), an appellant shall include in his brief an abstract or abridgment of the transcript, consisting of such material parts of the testimony of witnesses and colloquies between the court and counsel as are necessary to an understanding of all questions presented to the appellate court for decision. Also, under Rule 4-2(a)(8), the appellant’s brief must include an addendum that contains photocopies of the order or judgment appealed from, as well as the notice of appeal. While the failure to abstract or include materials essential to the understanding of an argument on appeal has in the past been considered a bar to consideration of the merits of the argument, under the revised rule, this court must now allow rebriefing to cure deficiencies in the abstract or addendum. Spears v. State, 82 Ark. App. 376, 109 S.W.3d 139 (2003). Although this court could order rebriefing in this case due the deficiencies in Lewis’s abstract and addendum, because he has included in his addendum the material portions of the colloquy between counsel and the trial court discussing his Batson challenge, we instead address the merits of his argument. We also note that the record reflects that Lewis’s judgment and commitment order was filed on June 29, 2001, and that the notice of appeal was timely filed on July 12, 2001.
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the State from striking a venireperson as a result of racially discriminatory intent. The Court left it up to the states to develop specific procedures to follow in implementing Batson. Id. Our supreme court has established a three-step process to be used in evaluating Batson claims. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). First, the opponent of the peremptory strike must present facts that show a prima facie case of purposeful discrimination. Id. This can be done by showing (1) that the strike’s opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. Id.
Second, if the opponent has established a prima facie case, the burden of producing a racially neutral explanation then shifts to the proponent of the strike. Id. While this explanation must be more than a mere denial of discrimination, the explanation need not be persuasive or even plausible; indeed, it may be silly or superstitious. Id. The reason will be deemed race neutral unless discriminatory intent is inherent in the proponent’s explanation. Id. However, the trial court must not end the Batson inquiry at this stage. Id.
In step three, if a race-neutral explanation is given, the trial court must then decide whether the strike’s opponent has proven purposeful discrimination. Id. During this stage, the strike’s opponent must persuade the trial court that the expressed motive of the striking party is not genuine, but rather is the product of discriminatory intent. Id. The opponent may do this by presenting further argument or other proof relevant to the inquiry. Id. If the strike’s opponent chooses not to present additional argument or proof but simply relies on the prima facie case presented, then the trial court has no alternative but to make its decision based on what has been presented to it, including an assessment of credibility. Id. The court in MacKintrush emphasized that “it is incumbent upon the strike’s opponent to present additional evidence or argument, if the matter is to proceed further.” Id. at 399, 978 S.W.2d at 297. It is the opponent’s responsibility to “move the matter forward at this stage to meet the burden ofpersuasion, not the trial court.” Id. If the strike’s opponent does not present further evidence, no additional inquiry by the trial court is required. Id. However, if the “opponent presents additional relevant evidence and circumstances to the trial court for its consideration, then the trial court must consider what has been presented, make whatever inquiry is warranted, and reach a conclusion.” Id. at 400, 978 S.W.2d at 297.
Once the party striking jurors offers a race-neutral explanation, and the trial court rules on the ultimate issue of intentional discrimination, the preliminary issue of whether a prima facie case was shown then becomes moot. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003). Appellate courts will reverse a trial court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Id. The trial court is accorded some deference in making Batson rulings because it is in a superior position to observe the parties and to determine their credibility. Id.
The issue in this case involves the second step of the Batson procedure. Lewis argues that the State failed in its burden of offering a race-neutral explanation with respect to two of the venirepersons, Wright and Harding. Lewis asserts that it was error and improper for the trial court to “cut off’ the State’s race-neutral explanation as to venireperson Wright and that it was also error for the trial court to assist the State in supplying a race-neutral explanation for its removal of venireperson Harding.
We find that Lewis’s arguments are not preserved for appellate review. While we cannot discern what the State was attempting to assert with respect to venireperson Wright, and while the trial court on its own provided an additional reason for striking venireperson Harding, Lewis did not object when the trial court interrupted the State’s race-neutral explanation as to Wright, nor did he object when the trial court itself supplied a race-neutral reason as to Harding. In fact, Lewis failed to offer any additional argument or other proof to rebut the State’s and the trial court’s race-neutral explanations and to show that the State’s motives were not genuine, but were rather the product of discriminatory intent, as is required during the third stage of the Batson process. MacKintrush, supra. The burden of persuasion that there is purposeful discriminatory intent rests with and never shifts from the party opposing the strikes. Holder, supra.
It is well-settled that issues raised for the first time on appeal will not be considered. London v. State 354 Ark. 313, 125 S.W.3d 813 (2003). Because Lewis failed to raise to the trial court the arguments concerning the trial court’s conduct that he now makes on appeal, his arguments are not preserved for review. See id. (holding that defendant’s argument that it was error for the trial court to allow the State to proffer only two race-neutral explanations when three African-Americans were struck from the jury panel was not preserved for review Where defendant failed to raise the argument to the trial court); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) (holding that defendant’s argument that the State failed to provide a racially neutral reason for the removal of a venireperson was not preserved for appeal where it was not presented to the trial court). Thus, we affirm.
Affirmed.
Gladwin and Griffen, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellee, Charles Wayne York, was awarded workers’ compensation benefits. He testified that the press brake machine he was operating on September 14, 1981, on behalf of his employer, Central Maloney, Inc., appellant, “cycled through,” jerking him off his feet and causing an injury to his back. We affirm.
While there were conflicts in the testimony of appellee, his witnesses and that of the employer, appellants concede that there was substantial evidence to support a decision either upholding or denying appellee’s claim.
Attorneys for appellants and appellee have provided this Court with excellent briefs and participated in intelligent as well as stimulating oral arguments. The issue raised on appeal is narrowed in scope to: How do you reconcile the requirement that a claimant prove his injury by a preponderance of the evidence with the doctrine of liberal construction? This issue was apparently triggered by a statement contained in the administrative law judge’s opinion, which was adopted by a majority of the full Commission, to-wit:
After a review of the entire record in this claim it is my opinion that the claimant has proved by a preponderance of the evidence that he suffered a compensable injury on or about September 14, 1981. This decision is necessarily reached after drawing every legitimate inference possible in favor of the claimant and after following a liberal approach in determining whether or not the claimant received a compensable injury. This is as is mandated by the Arkansas Court of Appeals. [See Bunny Bread, et al. v. Shipman, 267 Ark. 926, 561 S.W.2d 692 (Ark. App. 1980).]
Appellants contend that this statement by the administrative law judge indicates that the administrative law judge was compelled to find for appellee. Appellants’ attorney further argues that the rule of liberal construction has reached the point where if the claimant adduces substantial evidence, the administrative law judge is compelled or required to find for the employee. He goes further and contends that a claimant would never lose a case if the doctrine is applied as he visualizes it. In support of this position, appellants rely on an opinion of Judge Newbern in Johnson v. Valmac Industries, 269 Ark. 626, 599 S.W.2d 440 (Ark. App. 1980), wherein it was stated:
[W]e have no quarrel with the philosophy of workers’ compensation, and certainly none with the notion that the act should be interpreted whenever there is doubt as to its meaning, in favor of the claimant. But to say that when there is doubt remaining as to a factual issue, and the doubt has been caused by conflicting or equivocal testimony, the resolution of that doubt by the commission must always favor the claimant, is to rob the commission of its fact-finding function which is definitely prescribed by the statute and not to be deprived by us. (Emphasis by the Court.)
A dissent by Justice George Rose Smith in Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W.2d 614 (1956), was noted by Judge Newbern and is relied upon by appellants. Justice Smith’s dissent in the Boyd case, supra, states in part as follows:
What, then, can be the explanation for the reversal of the Commission’s decision upon a question of fact? The answer apparently lies in the final words of the majority opinion, where it is said that compensation cases should be liberally construed and that doubtful cases should be resolved in favor of the claimant. It is undoubtedly true that the compensation law itself should be liberally construed in favor of the workman. It may also be true that the commissioners, within the limits of their consciences, should construe the evidence liberally in the claimant’s favor. But if the majority mean that it is reversible error for the Commission to fail to take a liberal view of the evidence in favor of the claim, the decision is demonstrably wrong for several reasons.
It is important to note that Justice Smith has since joined with a majority of the Arkansas Supreme Court in subsequent decisions dealing with this issue.
In writing for a unanimous court in American Red Cross v. Wilson, 257 Ark. 647, 519 S.W.2d 60 (1975), Justice Fogleman stated:
We agree with appellants that a claimant bears the burden of proving that his injury was the result of an accident that arose in the course of his employment, and that it grew out of, or resulted from the employment. We do not agree, however, with their argument that the Workmen’s Compensation Act does not mandate that the Commission view the evidence liberally in favor of the claimant. To the contrary, the Commission, in considering a claim, must follow a liberal approach and draw all reasonable inferences favorably to the claimant, (citation omitted.) It was the duty of the Commission to draw every legitimate inference possible in favor of the Claimant and to give her the benefit of the doubt in making the factual determination, (citations omitted.) The same rules apply, of course, in determining whether the accident grew out of and occurred within the course of the employment, (citation omitted.)
Again, four years later, Justice Fogleman in writing for a unanimous court in O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979), stated:
The appellants raise two points for reversal. The first of these relates to a statement in the final opinion of the Workmen’s Compensation Commission to the effect that, when all doubts are resolved in favor of the claimant, it must be concluded that the administrative law judge’s finding that the claimant is totally disabled is correct. The appellants contend that in resolving all doubts in the claimant’s favor the commission failed to weigh the evidence according to the accepted standard requiring the claimant to prove the compensability of his or her claim by a preponderance of the evidence. It is true, as appellants contend, that there is no presumption that a claim for workers’ compensation comes within the purview of the law, i.e., that it arose out of, and in the course of, the claimant’s employment. (citations omitted.) But, in a long line of cases, this court has held that, in light of the beneficent and humane purposes of the Workers’ Compensation Law (citation omitted), all doubtful cases should be resolved in favor of the claimant, (citations omitted.) This does not mean that a claimant does not have to meet the burden imposed upon him by a preponderance of the evidence, (citations omitted.) It does mean that, in determining where the preponderance of the evidence lies, the Workmen’s Compensation Commission must draw all legitimate inferences and resolve doubts in favor of the claimant, viewing and construing the evidence in favor of the claimant and the purpose of the statutes to compensate those, who, by reasonable construction, are within the terms of the Workers’ Compensation Law. (citations omitted.) The commission obviously did not err in resolving all doubts favorably to appellee.
The doctrine of liberal construction has evolved through precedent handed down by the Arkansas Supreme Court to its present state which is best summarized in O.K. Processing, Inc., supra.
A review of cases handed down by the Arkansas Court of Appeals leads us to the same conclusion. A few highlighted cases recognizing and adopting the doctrine of liberal construction include: Mountain Valley Superette v. Bottorff, 4 Ark. App. 251, 629 S.W.2d 320 (1982) [whether claimant was independent contractor rather than employee]; City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982) [whether injury causing claimant’s death arose out of and in course of employment]; Dedmon v. Dillard Dept. Stores, Inc., 3 Ark. App. 108, 623 S.W.2d 207 (1981) [whether claimant had shown by preponderance of evidence that she sustained accidental injury arising out of and in course of employment]; and Williams & Johnson v. Nat’l Youth Corps, 269 Ark. 649, 600 S.W.2d 27 (Ark. App. 1980) [whether joint employment occurred so that both employers liable for compensation].
The rule of liberal construction is not a substitute for a claimant’s burden of establishing an injury by a pre ponderance of the evidence. It has often been stated that the most important rule of the Workers’ Compensation Act is to carry out its humane purpose. The Commission is required by statute to make a determination of whether a claimant has established a compensable injury by a preponderance of the evidence. We believe that the doctrine of liberal construction can co-exist with the claimant’s burden of proof without robbing the Commission of its fact-finding responsibility. We do not agree with appellants’ contention that the application of the rule of liberal construction will always result in a decision in favor of claimant.
Turning to the facts of the case at bar, in addition to appellee’s testimony at the hearing, the record reflects that appellee presented the testimony of two fellow employees, his wife and brother-in-law in order to establish his entitlement to benefits as a result of an alleged on-the-job injury by a preponderance of the evidence. Appellee stated at the hearing that he had recurring problems with a “stiff back” which would normally “work itself out” after a short period of time and from which he suffered no pain. He further testified that the stiff back in no way interfered with his work and that he had a stiff back on September 14, 1981. Appellee stated that while running metal side panels into the press brake machine on this date, the machine suddenly slammed through, jerking him off his feet and hurting his back. Appellee’s witness and co-employee, Jimmy Ellis, testified that he saw the machine cycle through yanking appellee’s arms up. Ellis stated that he went over to appellee and appellee told him he was hurt. Ellis testified that the machine had cycled through before. Raymond Cox, another witness for appellee and a co-worker, testified that he did not witness the incident but that he heard appellee was hurt and he walked over to check. He stated that appellee told him what had occurred, was very pale and appeared to be in pain. He also testified to problems with the machine. Appellee’s wife testified that her husband was moving fine at home before leaving for work on September 14 and that he had a stiff back. Finally, appellee’s brother-in-law testified on rebuttal to the fact that appellee had never hurt his back while cutting or loading wood to his knowledge and that appellee had not been in the woods cutting or loading wood since the winter before.
Appellants offered the testimony of a co-worker, appellee’s supervisor, and vice president of personnel at the hearing. Charlie Ray Lunsford, a co-worker, testified that he did not remember seeing the machine cycle through and jerk appellee off the ground on September 14, 1981. He stated that he would have remembered it and that appellee did not mention anything to him about it. Lunsford recalled that appellee approached their supervisor, J. D. Hill, that evening to tell him that appellee was going home because he did not think he could make it the res t of the night. Lunsford testified that J. D. Hill came over and helped them with a problem with the machine which would prevent it from cycling through. He remembered Jimmy Ellis commenting that he had seen the machine jerk appellee up. Lunsford stated that he was not watching appellee at all times on September 14, 1981, and that he could have been out of the area. Appellee’s supervisor, J. D. Hill, testified that appellee arrived at work on September 14, 1981, with a stiff back and in pain. Hill stated that appellee told him that appellee had taken some shots and that his back was hurting badly. Shortly after the work buzzer rang, Hill testified that appellee hollered at him and said he had to call his wife because he was not able to continue. Hill offered to drive appellee home himself and stated that appellee did not say anything to him at any time about having hurt his back on the job. Hill denied talking to any of the other employees about the machine cycling through and also denied working on it that evening to prevent it cycling. Hill further testified that before appellee started work on September 14, 1981, appellee informed him that he and his son had gone to load wood and that appellee was not able to load any part of it. The vice president of personnel testified that he was present at an interview the week before the date of the hearing and he heard Raymond Cox being questioned. He heard Cox state that when he picked appellee up for work on September 14, appellee told Cox that his back was hurting and stated: “You know how it is when you’re handling one of those power saws, they’ll get your back.” Cox testified that appellee did not tell him on the way to work that he had cut wood with a power saw the previous weekend. Cox stated that he only remembered wood being mentioned in the conversation.
It is evident that there were conflicts in the testimony of the witnesses. However, it is well settled that questions of credibility and the weight and sufficiency to be given evidence are matters for the Commission to determine. It is also well settled that agencies such as the Commission are better equipped by specialization, insight and experience to analyze and determine issues and to translate evidence into findings of fact. Allen Canning Co. v. McReynolds, 5 Ark. App). 78, 632 S.W.2d 450 (1982). The Commission in the case at bar specifically found that appellee had established his entitlement to benefits by a preponderance of the evidence.
Under our limited standard of review, decisions of the Workers’ Compensation Commission must stand if supported by substantial evidence and, in determining sufficiency of evidence to sustain findings of the Commission, testimony must be weighed in its strongest light in favor of the Commission’s findings. Owens v. National Health Laboratories, Inc. and Liberty Mutual Ins. Co., 8 Ark. App. 92, 648 S.W.2d 829 (1983). This Court is committed to the rule that the findings of fact by the Commission are, on appeal, given the same verity that would attach to a jury’s verdict. Substantial evidence has been defined as more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is evidence of such force and character that it would with reasonable and material certainty and precision compel a conclusion one way or the other. DeFrancisco v. Arkansas Kraft Corp., 5 Ark. App. 195, 636 S.W.2d 291 (1982).
We cannot say that reasonable minds could not reach the conclusion of the Commission or that the application of the law to that conclusion was erroneous. Nor can we say that it is incorrect under the law as it currently exists for the Commissioners to construe evidence as well as interpret the Workers’ Compensation Act liberally in the claimant’s favor. The function of the Commission and the scope of review of its decision by this Court have been repeatedly announced by the numerous decisions of this Court as well as the Arkansas Supreme Court and we must decline to alter them.
Affirmed.
Mayfield, C.J., and Cracraft, J., concur. | [
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James R. Cooper, Judge.
In this criminal case, the appellant was convicted by a jury of first degree battery and manufacturing marijuana with intent to deliver. He was sentenced to five and ten years respectively, with the sentences to run consecutively. From that decision, comes this appeal.
On September 14,1982, Britt Coleman received a shotgun blast to the face in rural Clark County. Coleman alleged that at the time he was shot, he and the appellant were harvesting marijuana which they had been growing. Coleman was allegedly ambushed and shot by a close friend of the appellant, Mark Kaufman, who received wounds from a shotgun and knife at the hands of Coleman. The appellant was charged as an accomplice of Coleman in the marijuana growing operation and as an accomplice of Mark Kaufman in the battery upon Coleman.
For reversal, the appellant first argues that there was insufficient evidence presented at his trial to corroborate the accomplice testimony of Britt Coleman so as to. sustain his conviction for manufacturing marijuana with intent to deliver. We disagree.
Arkansas Statutes Annotated § 43-2116 (Repl. 1977) requires corroboration of accomplice testimony by other evidence which tends to connect the defendant with the commission of the offense. In Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), the Arkansas Supreme Court, referring to such corroborating testimony, stated:
It is unnecessary that the evidence be sufficient to sustain the conviction but the evidence must, independent from that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973)....
Where circumstantial evidence is utilized, all facets of the evidence can be considered to constitute a chain sufficient to present a question for the resolution by the jury as to the adequacy of the corroboration. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202, cert. den. 429 U.S. 846 (1976). The court does not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
In our review of the evidence which tends to corroborate the testimony of Britt Coleman, we find sufficient evidence to satisfy the standard enunciated above. It is significant that after contacting the Clark County Sheriff’s Department in the early morning hours of September 16,1982, in order to modify an earlier statement made to officers investigating the shooting and stabbing of Mark Kaufman, the appellant led the officers to where the marijuana was being grown. Also, the appellant testified at his trial that he and Mr. Coleman had enjoyed contacts together for sometime, that he was aware of what Coleman was doing in that area, that he was aware Coleman had grown marijuana for several years, and that he had even taken a friend, Mark Kaufman, to the area where the marijuana was being cultivated. Hence, the appellant, through his statements, acts, and subsequent testimony, supplied a large part of the corroboration necessary to sustain his conviction.
Next, the appellant argues that the admission of the hearsay statement of Mark Kaufman, as related by Officer Don Wesson, over the appellant’s objection, denied him the right to confront and cross-examine witnesses against him, in violation of his Sixth and Fourteenth Amendment rights.
The appellant’s trial counsel cross-examined Officer Wesson concerning a portion of his notes taken when interviewing Mark Kaufman at Ouachita Memorial Hospital in Hot Springs. On redirect, the prosecutor asked Officer Wesson to continue reading from his notes. Officer Wesson related Kaufman’s statement to the effect that the gun he had used in shooting Coleman was the appellant’s and the appellant was in the woods with him at the time he shot Coleman. Trial counsel for the appellant made a rather vague objection after this testimony was elicited. No ruling on the objection was made by the trial court. No motion to strike the testimony was made.
It is well-settled that one who opens up a line of questioning or who is responsible for an error should not be heard to complain of that for which he is responsible. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). Likewise, failure to timely object to a question results in a waiver of such right. Washington v. State, 276 Ark. 140, 633 S.W.2d 24 (1982). Also, the objection must be sufficiently specific as to the particular error to which the objection is made. Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981).
The substance of the hearsay statement of Kaufman had already been presented at the appellant’s trial through the testimony of Coleman and the fact that the appellant had loaned his. 16 gauge shotgun to Kaufman was later testified to by the appellant himself. The presence of the appellant’s pick-up truck near the scene of the marijuana patch and shooting as well combine to make the error, if in fact one exists, harmless. Also, the failure of the appellant to specifically object to the testimony or request corrective measures, leads us to conclude no reversible error occurred.
Finally, the appellant argues there was no evidence presented from which a jury could have concluded the appellant conspired with or assisted Mark Kaufman in shooting Britt Coleman. We find that Coleman’s testimony, as corroborated by the evidence set out above, is more than ample to support the appellant’s conviction. In criminal cases we review the evidence in the light most favorable to the appellee and if there is substantial evidence to support the verdict, we affirm. Phillips v. State, 6 Ark. App. 380, 644 S.W.2d 288 (1982). From our review of the record we find substantial evidence to support the verdict of the jury and therefore affirm.
Affirmed.
Glaze, J., agrees.
Mayfield, C.J., concurs. | [
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Karen R. Baker, Judge.
The appellant employee in this case, Mark Heptinstall, worked for the employer, As-plundh Tree Expert Company, trimming and cutting trees and brush, clearing fence rows, chipping brush, and anything generally involving trimming and cutting trees and brush. Appellant and his supervisor testified that appellant routinely received scratches to his arm in the process ofperforming tree trimming duties related to his work. On or about November 6, 1999, a Saturday, appellant began to experience pain and discomfort in his left arm. He testified that in addition to the pain, there was a mild redness around one of the scratches on his forearm.
The following Monday, appellant sought treatment at the emergency room of the hospital. The physician in the emergency room obtained a blood count on appellant that indicated a markedly elevated white-cell count, elevated at the time to 25,000, with about 8,000 being normal. After receiving the result of that test, the emergency room physician consulted Dr. Don Vowell, an orthopedic surgeon, who admitted appellant to the hospital and performed surgery that afternoon.
Dr. Vowell testified that the elevated white-cell count indicated the presence of infection. He was anxious to get appellant to the operating room before the pressure from the swelling could shut off the blood flow to the muscles and kill them. He explained that when a patient has something that causes pressure from swelling, such as pus or blood, the pressure from the swelling can build up greater than the arterial blood pressure pumping blood into the compartments of the arm. If that happens, then within six hours the muscle dies. Once the muscle dies, no treatment can bring it back. When Dr. Vowell operated on appellant, he found pus associated with a deep infection of the forearm. The entire forearm had to be opened to relieve the pressure and ensure that blood could get into the muscle. He testified that cultures taken from the arm subsequently grew an alpha strep (staph A), a particularly dangerous bacterial organism that sometimes does not respond well to antibiotics.
Dr. Vowell opined that within a reasonable degree of medical certainty, the scratches on appellant’s arm were the entry wound through which the staph A entered his body. He described the time frame and process through which the staph A would have entered the wound. He discussed the fact that staph A is an organism that’s around us on everything that we might come in contact with, but that it has to have some entrance into the body through some opening. He identified the entry time of the staph A into appellant’s body as anywhere from three to six days prior to the Monday that appellant entered the hospital. His opinion was based upon his application of the organism’s normal progression upon entering the body. Dr. Vowell explained that once the organism enters the body through a break in the skin, it starts growing within a day or two. It first starts growing into the soft tissues and after it is established, the patient begins to experience pain. The pain increases substantially within forty-eight hours of the its onset resulting in severe pain for the patient. Appellant’s history indicated that he had experienced pain on Saturday while lifting a battery. Dr. Vowell testified that this pain was consistent with an infection initiated a day or two before he experienced the pain while lifting. Approximately forty-eight hours after experiencing the first onset of pain, appellant sought treatment in the emergency room for excruciating pain and surgery was performed that afternoon. When asked if appellant might have received the scratches on his arm and later came into contact with the organism anywhere, Dr. Vowell confirmed that he could not say for sure where the organism was present and came into contact with the scratches on appellant’s arm. However, given the length of the incubation period and the location of the infection underneath the scratches, he could state to a reasonable degree of medical certainty that the infection entered through the scratches received at work.
Dr. Vowell further explained that approximately fifty percent of the people die from infections such as the one appellant acquired. Dr. Vowell had personally changed appellant’s dressing daily during the hospital stay and took appellant back to surgery a couple of times to clean the wound and close the wound. He testified that appellant would suffer some loss of strength resulting in a permanent impairment; however, he was still undergoing treatment and improving. He estimated that his permanent impairment rating would be ten-percent impairment to his upper extremity.
The Commission’s Decision
The Commission denied benefits saying that appellant “seeks compensation in the present claim for an occupational disease” and denied benefits finding that he had failed to prove by clear and convincing evidence that he sustained a compensable occupational disease. However, appellant did not argue that he sought compensation for an occupational disease and the Commission erred as a matter of law when it classified the injury as an occupational disease. Therefore, we reverse and remand for further finding of fact to be made on whether appellant established the requirements, we remand the case to the Commission to make a finding of fact on whether appellant established the requirements of a compensable accidental injury under Ark. Code Ann. § 11-9-102(4) (a).
Standard of Review
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).
The Commission also has the duty of weighing the medical evidence as it does any other evidence. Roberson v. Waste Mgmt., 58 Ark. App. 11, 944 S.W.2d 858 (1997). However, “[I]f the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award.” Hall v. Pittman Constr. Co., 235 Ark. 104, 105, 357 S.W.2d 263, 263 (1962). Furthermore, an employee is not required to prove the source of an infection with absolute certainty because that is a manifest impossibility. See Dega Poultry Co. v. Tanner, 259 Ark. 396, 399, 533 S.W.2d 207, 209 (1976) (“Unless a claimant must prove the source of an infection with absolute certainty — a manifest impossibility —Tanner’s proof amply supports the Commission’s award.”). In addition, the Commission cannot arbitrarily disregard any witness’s testimony. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).
Applicable Law
First, we address the Commission’s classification of appellant’s infection with the staph A bacteria as an occupational disease. Where the condition involved is a disease (as opposed to an accidental injury), the claim is compensable only if the disease is an “occupational” one as defined in our Workers’ Compensation Act and the claimant proves by clear and convincing evidence a causal connection between the employment and the disease. See Ark. Code Ann. § 11-9-102(4) — 601(e) (Repl. 2002); Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). An “occupational disease” is defined as any disease that results in disability or death that arises out of or in the course of the occupation or employment. Ark.Code Ann. § 11-9-601 (e)(1) (Repl. 2002).
The fact that the general public may contract a disease is not controlling; the test of compensability is whether the nature of the employment exposes the worker to a greater risk of the disease than the risk experienced by the general public or workers in other employments. Osmose Wood Preserving v. Jones, supra; Sanyo Mfg. Corp. v. Leisure, 12 Ark.App. 274, 675 S.W.2d 841 (1984). An occupational disease is characteristic of an occupation, process or employment where there is a recognizable link between the nature of the job performed and an increased risk in contracting the occupational disease in question. Sanyo Mfg. Corp. v. Leisure, supra. The increased risk test differs from the peculiar risk test in that the distinctiveness of the employment risk can be contributed by the increased quantity of a risk that is qualitatively not peculiar to the employment. Crossett School Dist. v. Gourley, 50 Ark.App. 1, 3, 899 S.W.2d 482, 483 (1995) (citing 1 Arthur Larson, The Law of Workmen’s Compensation § 6.30 (1994) (emphasis in original)).
The Commission’s analysis in denying benefits focused on the fact that the staph A organism can be anywhere in our environment and that anything that opens the skin can allow the bacteria to enter the body. In its opinion, the Commission relied upon the statute excluding liability of the employer unless the disease actually exists and is characteristic of and peculiar to the employment. Ark. Code Ann. § 11-9-601 (g)(1) (Repl. 2002). It then stated:
Dr. Vowell has opined that it was possible for the organism to enter the claimant’s body through the scratches that he received at work. However, an opinion stated in the term of possibilities is not sufficient to satisfy the requirement that medical opinions be stated within a reasonable degree of medical certainty.
Two problems with the Commission’s opinion are readily apparent. First, it is factually inaccurate. Dr. Vowell in fact testified that, within a reasonable degree of medical certainty, the scratches on appellant’s arm were the entry wound through which the staph A entered his body. Second, a finding of causation in a workers’ compensation case does not need to be expressed in terms of a reasonable medical certainty when there is supplemental evidence supporting the causal connection. Osmose Wood Preserving v. Jones, supra; see also Sneed v. Colson Corp., 254 Ark. 1048, 497 S.W.2d 673 (1973) (holding medical evidence is not necessary in establishing a causal connection).
The Commission’s analysis also focused on the injury as being the staph A infection, rather than the scratches on appellant’s arm. When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for any natural consequence that flows from that injury. McDonald Equip. Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). The fact that an injury sustained at work can make an employee susceptible to infection is not a new concept for this court. See Pekin Wood Products Co. v. Graham 207 Ark. 564, 181 S.W.2d 811 (1944) (finding that irritation to eyes made them more susceptible to gonorrheal infection where it appeared that an employee, sustaining injury to eyes, thereafter contracted a gonorrheal infection in eyes, though not having gonorrhea himself). In affirming the Commission’s award of benefits, the court reasoned:
While no witness testified that the irritation to appellee’s eyes made them more susceptible to gonorrheal infection, we think the Commission had the right, in the exercise of sound judgment and discretion, to make the finding in this regard that it did make. It seems to us, as it did the Commission, a reasonable assumption that an inflamed and irritated eye, a conjunctivitis as the doctor testified, would be a ready portal of entry for the germ he did get or some other destmctive germ that he might have gotten.
Id., at 567, 181 S.W.2d at 812.
The situation in Garrison Furniture Co. v. Butler, 206 Ark. 702, 177 S.W.2d 738 (1944), is also analagous to the circumstances in this case. There O. C. Butler received scratches on his hands while at work in the factory of the furniture company on April 16-17, 1942. On April 20, he went to see Dr. Scott, and on April 21, he went to the hospital where he died on April 29 from lockjaw as a result of tetanus infection which entered the bloodstream through the so-called superficial wounds. Compensation for death benefits was awarded to the widow and child. The bacteria that roused the tetanus infection entered the body of Mr. Butler through the scratches he received while working for his employer in the factory, just as the bacteria that causes a staph A infection entered the body of appellant through the scratches he received while working for his employer trimming brush.
Therefore, appellant was not required to prove that his staph infection qualified as an occupational disease. The appellant needed only to establish a causal link between the original injury and the subsequent complications for the injury to be compensable. See Bearden Lumber Co. v. Bond, 7 Ark.App. 65, 644 S.W.2d 321 (1983). While we do not defer to the Commission on questions of law, we also do not act as the fact finder. Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W. 2d 841 (1983). Because the Commission made no findings with regard to whether appellant sustained a compensable accidental injury, we remand the case to the Commission to make a finding of fact on whether appellant established the requirements of a compensable accidental injury under Ark. Code Ann. § 11-9-102(4) (a).
Accordingly, we reverse and remand for further proceedings.
Hart, Griffen, and Crabtree, JJ., agree.
Pittman and Vaught, JJ., dissent. | [
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Donald L. Corbin, Judge.
This case involves a determination of the validity of an antenuptial agreement which was at issue in a divorce action brought by appellee, James T. Gooch, against appellant, Violet B. Gooch. Venue of the action was also questioned by appellant. Judge Royce Weisenberger ruled that the proper venue was in Clark County rather than Garland County. Judge Weisenberger awarded appellant $1,250.00 temporary monthly support; found the antenuptial agreement was valid; that neither party was to have an interest in the property the other owned before the marriage, or any increase in its value during the marriage from its exchange or investments; that appellant’s earnings from his law practice should be excluded from marital property; and recused himself from hearing the divorce on the merits. Judge Henry Yocum, Jr. on assignment heard the merits of the divorce and awarded appellee a divorce and ruled that the provision of the antenuptial agreement relating to a payment of $50,000.00 was inoperative because appellee was granted the divorce. We affirm.
The question of proper venue in this case is primarily a factual question to be determined by the intent of the person seeking to maintain a residence and domicile. Among the factors looked at to determine whether a person has the requisite intent to establish a domicile in a particular place are: declarations of the parties; the exercise of political rights; the payment of personal taxes; a house of residence; and a place of business. Ellis v. Southeast Construction Co., 158 F. Supp. 798 (W. D. Ark. 1958). Such factors were examined in a divorce case reported in Morgan v. Morgan, 202 Ark. 76, 148 S.W.2d 1078 (1941), to establish thataperson was domiciled in Arkansas despite his physical presence in Missouri. The facts in the instant case were of at least equal weight as those found in Morgan, supra. Here, appellee testified extensively concerning his intent to retain Clark County as his domicile rather than Garland County where he and appellant resided in a lakeside home for the better part of the five years they were married. Appellee testified that he had practiced law in Arkadelphia, Clark County, Arkansas, since 1954. He further testified that he maintained a home in Caddo Valley, Arkadelphia, Arkansas, which was completely furnished with telephone, television, etc. He continued to maintain his voting rights in Clark County and was a director of the Elk Horn Bank in Clark County. He testified that he never considered Garland County, Arkansas, as his home and that he had no business, religious or any other association with Garland County, Arkansas, other than his ownership of the lake house. He testified that he declared his permanent residence to be Clark County since he moved there in 1947. Appellant stipulated that both parties, throughout the marriage, voted in Clark County, Arkansas. Appellee never severed any of his business connections in Clark County nor did he sell or dispose of any of his property. He continued his practice of law and service as an officer and director of the Elk Horn Bank in Arka-delphia. The evidence is overwhelming that Clark County was the proper venue for this action.
Chancery cases are tried de novo on appeal, and the appellate court does not reverse the chancellor’s findings of fact unless they are clearly erroneous (clearly against the preponderance of the evidence). A.R.C.P. Rule 52(a), Ballard v. Carroll, 2 Ark. App. 283, 621 S.W.2d 484 (1981). We must review the testimony in the light most favorable to the appellee, and indulge all reasonable inferences in favor of the decree. Ark. State Hwy. Comm. v. Oakdale Development Corp., 1 Ark. App. 286, 614 S.W.2d 693 (1981).
Concerning the validity of the antenuptial agreement which the parties entered into on May 27, 1976, we agree with the chancellor’s finding that it was a valid and enforceable agreement. In Arkansas, an antenuptial agreement is valid if it was freely entered into, and is free from fraud and not inequitable. Arnold v. Arnold, 261 Ark. 734, 553 S.W.2d 251 (1977). Further, the agreement must be made in contemplation of the marriage relation subsisting until death, rather than in contemplation of divorce. Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928). The evidence in this case clearly establishes that the agreement was freely entered into by the parties with no evidence of fraud, duress or coercion being exercised by either party. In view of the parties’ respective stations in life and their extensive experience, education and knowledge of financial and legal matters, the agreement was equitable and fair. Appellant was forty-nine years old at the time the agreement was executed. She had children who were 35 and 15 years of age. She testified that she had worked as a legal secretary; was employed as a court reporter for 14 years; worked as a secretary in construction and home building; and owned some Shakey’s Pizza Parlors. She testified that she had supported herself by buying and selling stocks and bonds. She further testified that she had three years of college. She testified that she had substantial assets of her own. She testified that when the agreement was mailed to her in Dallas that “there was no point in getting advice from a lawyer there” and “I wouldn’t think a lawyer could give me an opinion any more than Jim could give it to me.” She further testified that at the time they entered into the agreement that appellee was a practicing attorney who had indicated he was quite well off. On the other hand, appellee was sixty-two years old with two grown children by a previous marriage at the time the agreement was executed. He had a prosperous practice as an attorney, was a director of a bank and owned extensive property. He listed the bulk of his holdings in the agreement to an extent that substantially disclosed his wealth, particularly to anyone having the background and business experience of appellant. Appellant’s assertion that she was ignorant of the consequences of the agreement and that she failed to fully inform herself of the consequences of the circumstances of the parties because she was “in love” is no evidence of fraud, as was held in Babb v. Babb, Ex’r, 270 Ark. 289, 604 S.W.2d 574 (Ark. App. 1980). This case is very different from the Arkansas cases in which antenuptial agreements have been declared void because of fraud or the absence of a full and fair disclosure. For example, in Faver v. Faver, 266 Ark. 262, 583 S.W.2d 44 (1979), it was found that there was a complete lack of disclosure as to the extent or value of the husband’s property before execution of the contract as well as a disproportion between the provision for the wife and the means of the husband. Similarly, in Arnold, supra, it was found that the husband did not make a full disclosure to the wife and that the husband “obtained the agreement” through “design, studied planning and concealment, which constituted fraud and overreaching.” In contrast, appellant in the present case was made fully aware of the extent of appellee’s property before the agreement was executed; appellant had full opportunity to read the agreement and seek legal advice concerning it; and appellant knew that the agreement did not in express terms address the contingency of divorce.
Appellant testified that the only promises made by appellee to her prior to her signing the antenuptial agreement were that he would support her and that she would have a “nice, new life”. She further testified that he lived up to that promise in supporting her in a “very well” style. Appellant apparently understood at the time of the signing of the agreement that if she lived with appellee until he died, she would be entitled to none of his property except for the $50,000.00 mentioned in the last paragraph of the agreement. She also apparently understood that, by the same token, appellee would receive none of her property if she died. It is manifestly unreasonable for appellant to have expected a substantial share of appellee’s property if they divorced, but only $50,000.00 if she remained married to him until his death. With respect to the purpose of the agreement in this case, appellant testified that it was to protect each party and their separate children in the event of the death of one party, and she admitted that divorce was never mentioned in connection with the agreement. Hence, both parties agree that the requirement that such an agreement be made in contemplation of death rather than divorce is met. Appellant contends, nevertheless, that the agreement is “inequitable” because it did not in express terms provide for the contingency of a divorce. In other words, appellant apparently asks this Court to rewrite the contract so as to make it void ab initio, since antenuptial agreements in contemplation of divorce alone, which tend to induce divorce, are against the public policy of Arkansas. Hughes v. Hughes, 251 Ark. 63, 471 S.W.2d 355 (1971); Oliphant, supra. This we refuse to do.
We find no error in the trial court’s determination that appellant was not entitled to a portion of appellee’s law practice as marital property because of her contribution as a party hostess. Appellee’s practice had been established many years before his marriage to appellant. No showing was made that her serving as a party hostess in any way contributed to any growth of appellee’s law practice. Further, we see no evidence of a joint effort in the acquisition of the lake house in Garland County, Arkansas. Appellee used assets that he brought into the marriage to purchase the lake house and was explicit in his requirement that the title to the lake house be placed in his name solely. This is in keeping with the tenor of the antenuptial agreement and consistent with the maintaining of appellee’s assets separate and apart from that of appellant.
Accordingly, we cannot say the chancellor’s findings are clearly erroneous. Each party shall pay his own costs. Appellee is ordered to pay appellant’s attorney a fee of $750.00.
Affirmed.
Glaze, J., not participating.
Cloninger, J., dissents.
This would not be the rule for those agreements executed after the effective date of Act 705 of 1979 (Ark. Stat. Ann. § 34-1212). | [
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Lawson Cloninger, Judge.
This is an appeal from a decree of the chancellor, denying appellant’s quiet title action to a certain tract of land in an area known as Island 66. Appellant, River Land Company, alleged in its complaint that the disputed area was accretions to the State of Arkansas since the original survey of the government land office and the admission of the State of Arkansas to the union. Hence, when appellant acquired deeds from the state pursuant to Ark. Stat. Ann. §§ 10-206 — 207 it acquired title to all of the disputed property.
To this complaint, appellees filed their answer and counterclaim, praying that their title to the property under consideration be quieted and that the deeds of conveyance under which appellant claimed be cancelled. Appellees contended that the lands originated as accretions to the Arkansas shore and that appellees’ predecessors in title were the sole riparian landowners and acquired any additions to the property.
Appellant, at trial, also claimed that its predecessor in title, Beulah Sherman, was also a riparian landowner and further, that part of the disputed property originated by reason of an avulsion rather than an accretion. The chancellor found that the lands under consideration were formed as accretions to the Arkansas shore and quieted title in appel-lees. It is from this decision that appellant brings this appeal.
Appellant’s first point for reversal is that the trial court erred in finding that appellees had paid taxes on the land in this litigation. No authority is cited for this point, but it is merely argued that there is no indication on the tax books that any taxes were paid on the section of property in question.
It is a well settled rule that payment of taxes on original lands amounts to payment of taxes on the accretions. See Bryant v. Chicago Mill, 120 F. Supp. 463 (E.D. Ark. 1954), affirmed, 216 F.2d 727 (8th Cir. 1954). If the chancellor’s decision is correct that appellees acquired the property through accretions as riparian landowners, then it follows that payment of taxes on the property also amounted to payment of taxes on the accretions to the property.
Appellant’s second, third, and fifth points for reversal can be condensed into one broad issue: namely, whether the chancellor’s finding that appellees were the sole riparian landowners and that they acquired all of the disputed property through the process of accretions was clearly against a preponderance of the evidence. The chancellor based his decision in part on the fact that appellee and a non-party were the only owners of the island until Mrs. Beulah Sherman, appellant’s predecessor in title, acquired 335 acres from Chicago Mill by adverse possession. See Sherman v. Chicago Mill & Lumber co., 233 Ark. 277, 344 S.W.2d 345 (1961). In Sherman, supra, the Supreme Court, in a judgment on mandate, described her east and south boundary as the right descending high bank of Sherman Chute. Beulah Sherman has never had title south of the high bank of Sherman Chute.
The chancellor found that in 1940 a man-made avulsion known as the Sunflower Cut-off occurred upstream. Prior to that time the erosion had been southward and eastward into the State of Mississippi. The left descending bank of the Mississippi was caving into the river and consequently, the river progressively eroded and destroyed lands in the bend and formed accretions to the east end of the Island 66 peninsula. This finding was supported by maps, charts and the expert testimony of Austin Smith, an employee of the U.S. Corps of Engineers. Mr. Smith testified unequivocally that the lands under consideration were accretions to Sections 7, 18 and 19, Township 6 South, Range 3 East, Phillips County, Arkansas. We hold that there is ample testimony and evidence in the record to support the finding of the chancellor and would affirm the chancellor’s decision on this issue.
Further, there is ample evidence in the record to support the chancellor’s finding that appellant was not a riparian landowner. Appellant’s predecessor in title acquired her property through adverse possession, and the description of the property included a water line named as a boundary; to wit, the right descending bank of Sherman Chute. That line remains the boundary, no matter how it shifts. Therefore, the boundaries of the land remain at the water line and do not include any accretions which occur on the other side of the watercourse. Perry v. Sadler, 76 Ark. 43 (1905). See also 93 C.J.S. 376, Waters (1956); Sibley v. Eagle Marines Industries, 607 S.W.2d 431 (Mo. 1980); Dudeck v. Ellis, 399 S.W.2d 80 (Mo. 1966); Crandall v. Smith, 36 S.W. 612 (Mo. 1896). It follows that appellant cannot be considered a riparian landowner since all accretions were on the opposite side of Sherman Chute. Hence, appellee is the sole riparian landowner and is entitled to all accretions thereto.
Appellant finally argues that its predecessor in title was a riparian landowner on the basis of deeds obtained from the state land commissioner pursuant to Act 103 of 1945 and Act 126 of 1953 [codified as Ark. Stat. Ann. §§ 10-204, 10-207 (Repl. 1976)]. However, these acts provide only a means of confirming title in the adjacent riparian landowner of accretions to his or her property. Appellant must first prove its status as a riparian landowner before the deed is valid. See Gill v. Porter, 248 Ark. 140, 450 S.W.2d 306 (1970). Since we hold that the chancellor’s decision that appellant was not a riparian landowner is not against a preponderance of the evidence, it follows that the deeds which the state land commissioner gave to appellant’s predecessor in title were invalid.
We find there is ample testimony and evidence in the record to support the finding of the chancellor and his decision is affirmed in all respects.
Mayfield, C.J., and Corbin, J., agree. | [
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James R. Cooper, Judge.
In this criminal case, the appellant was charged with possession of a controlled substance with intent to deliver. The appellant was also charged as an habitual criminal who had been convicted of more than two felonies. After waiving a jury trial, the appellant was tried by the court, found guilty, and sentenced to eight years in the Arkansas Department of Correction. From that decision, comes this appeal.
Pursuant to a search warrant, several Johnson County deputy sheriffs searched a residence, surrounding grounds, and outbuildings. During the course of the search, they found several marijuana plants growing outside the residence, and other marijuana located in various containers and within the residence. At the time the search was conducted, the appellant was not present. The officers testified that they left a copy of the search warrant on the kitchen table inside the residence. Sometime later, the appellant was found on the premises, and he was arrested.
For reversal, the appellant argues that the evidence obtained pursuant to the search warrant should have been suppressed because the officers failed to comply with Rule 13.3 (b) of the Arkansas Rules of Criminal Procedure. That rule requires that, where the premises to be searched are unoccupied by any person in apparent control, the officers shall leave a copy of the warrant affixed to the premises. The appellant also argues that, because he was not served with a copy of the warrant when he was arrested, the evidence seized should have been suppressed. We find no merit to this argument. Rule 13 (b) and (d) deal with the problem of an unoccupied place which is to be searched and merely provide that, in that event, a copy of the search warrant and return are to be “affixed” to the premises. The trial court, after hearing the witnesses, found that the officers had, in fact, “affixed” the warrant and return to the premises by leaving copies of them on a table inside the premises. The appellant claimed he did not see the warrant or return, but the trial court found the officers’ method of affixing the warrant and return to the premises to be reasonable. We agree with the trial court that this manner of affixing the warrant and return was reasonable, complied with Rule 13.3 (b) and (d), and the Fourth Amendment to the United States Constitution. The search was not an unreasonable one by virtue of the manner of affixing the warrant to the premises. Further, we find that the appellant’s reliance on Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978) is misplaced. It is enough to say that in Harris there were numerous' defects which the majority found to warrant suppression, even though the court noted that none of the defects, standing alone, were sufficient to justify suppression of the evidence seized. No accumulation of defects is present in the case at bar, and, in fact, we find no defect at all in the manner in which the officers affixed the warrant and return to the premises.
Secondly, the appellant argues that the trial court, in considering the provisions of the habitual offender statute mandatory, erred in determining that eight years was the minimum prison sentence it could-impose on the appellant. We find no merit to this argument. The trial court indicated that, having heard all the evidence and finding the appellant guilty, it felt it had no choice but to sentence the appellant. This statement by the trial court does not clearly indicate that the court refused to consider the alternative fine provisions and considered a sentence to imprisonment as the only option it had. We believe the trial court exercised its discretion, and simply meant that, based on the appellant’s prior record, and the facts of the case at bar, it had no choice, considering its duty, but to sentence the appellant to imprisonment. Secondly, we believe the trial court was correct in determining that, having decided to sentence the appellant to prison, eight years was the minimum sentence which could be imposed. Certainly, the appellant is correct in pointing out that Ark. Stat. Ann. §§ 41-901. -1101, and -1001, all use the permissive word “may” in defining sentences which are available for various classes of crimes. The use of the word “may”, however, does not mean that in all habitual offender cases, both the provisions of Ark. Stat. Ann. § 41-901 and Ark. Stat. Ann. § 41-1001 are available, and that the court is required to choose from those two statutes. The sentences for habitual offenders are governed by Ark. Stat. Ann. § 41-1001, and the simple explanation is that the minimum sentences for habitual offenders are different than for persons who have not been convicted of two or more felonies. See Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982), where the Arkansas Supreme Court stated:
The trial was bifurcated and appellant was found guilty of burglary and to have committed four or more previous felonies, thus twenty years is the minimum sentence he could have received under § 41-1001 (2) (b) irrespective of the issue of the firearm, [emphasis supplied]
See also, Stocker v. State, 280 Ark. 450, 658 S.W.2d 879 (1983). The appellant cites Mathis v. State, 267 Ark. 904, 591 S.W.2d 679 (Ark. App. 1980), for the proposition that the stiffer sentences provided in the habitual criminal statute are not mandatory. We agree with that statement, since the trial court is not required to sentence a convicted habitual offender to prison at all. Unfortunately, the following sentence appears in Mathis:
The appellant could, however, permit the presiding judge to consider both possible sentencing statutes and impose the punishment.
That sentence can be read as implying that the non-habitual sentencing statutes are to be considered along with the habitual criminal sentencing statutes in determining what prison sentence, if any, a habitual felon is to receive. Our Supreme Court has clearly indicated, in at least the two cases cited above, that the minimum sentences for habitual offenders are different from other individuals. Therefore, to the extent that Mathis holds otherwise, it is expressly overruled.
This argument advanced on behalf of the appellant concerning sentencing fails for another reason. The appellant made no objection at the time sentence was imposed, and therefore, having accepted his sentence, he has no standing to complain. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).
Finally, the appellant argues that his conviction is not supported by substantial evidence.
Without going into exhaustive detail, it is enough to say that the appellant was found on the premises in the process of feeding his dogs, that his clothing and bank statements were found inside the residence, and that he owned the mobile home located upon the premises. The appellant testified that he was separated from his wife and knew nothing of the marij uana. In criminal cases, we affirm where there is substantial evidence to support the verdict. Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982). Substantial evidence has been defined as evidence which is of sufficient force that it will compel a conclusion one way or the other. The evidence must be more than mere suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In determining whether there is substantial evidence to support a verdict, we review the evidence in the light most favorable to the appellee, Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977), considering only the testimony which tends to support the guilty verdict. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). After reviewing the evidence in the light most favorable to the appellee, we conclude that there is substantial evidence to support the verdict.
Affirmed. | [
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Josephine Linker hart, Judge.
Appellant, James Hoay, pleaded guilty to the crime of possession of methamphetamine and was sentenced to eighteen months in the Arkansas Department of Correction to be followed by five years’ suspended imposition of sentence. Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, he appeals from the circuit court’s denial of his motion to suppress evidence seized from him, arguing that the court erred in concluding that the police had reasonable suspicion to stop his vehicle. Further, he argues that because he was arrested on an invalid arrest warrant after the stop, the items seized in the search incident to that arrest should be suppressed. We agree with appellant’s latter argument and reverse and remand.
Jeff Midgett of the Clay County Sheriff s Department testified that on July 9, 1999, during daylight hours, he followed a gray Chevrolet pickup truck for approximately two miles as it traveled south on Highway 135. While following the truck, he saw the truck move to the right of the fog fine, cross the center fine twice, and then drive to the right of and over the fog line for approximately one-half to one mile. Midgett testified that he stopped the truck because he believed that the driver could have been under the influence of intoxicants or a controlled substance.
As the truck pulled to the side of the road, Midgett saw the driver “doing a lot of frequent moving around, bending over . . . toward the floorboard. ...” Midgett walked up to the driver’s side of the truck and asked appellant, the sole occupant of the truck, for his license. Midgett did not “smell any odor of alcohol at that time.” Through his own dispatcher, Midgett checked appellant’s license with NCIC, which, according to Midgett, is a nationwide list of persons who have felony warrants for arrest, and found that a warrant for appellant’s arrest had been issued in Greene County. Midgett then contacted two different dispatchers for Greene County, one by telephone and one by radio, and Midgett was informed by both dispatchers that they possessed an arrest warrant for appellant based on his failure to appear on a felony charge for possession of a controlled substance.
Midgett asked appellant to step out of his truck because he had a warrant for his arrest. After Midgett handcuffed appellant, he saw a bulge in appellant’s sock near his ankle. He removed from the sock a clear plastic bag containing a smaller plastic bag that contained a rock-like substance he believed to be methamphetamine.
Midgett testified that this search was incident to appellant’s arrest on the warrant, and he arrested appellant only on the warrant. Midgett also testified that if it had not been for the warrant, he would have had appellant perform a field-sobriety test because appellant’s speech was slurred.
Appellant, however, introduced a docket sheet showing that the arrest warrant was issued on February 11, 1999, and set aside on April 20, 1999. Midgett testified that he did not know that the warrant was set aside, that this was his typical method for verifying warrants, and that he had no problems with Greene County in the past, as he had made several felony and misdemeanor arrests on Greene County warrants.
After hearing the arguments of counsel on appellant’s motion to suppress, the court determined that because of appellant’s erratic driving, Midgett properly stopped appellant’s truck. The court further determined that in making the arrest on the invalid arrest warrant and searching appellant incident to that arrest, Midgett acted in good faith. Consequently, the court denied appellant’s motion to suppress.
First, appellant argues on appeal that Midgett lacked reasonable suspicion to stop his truck, and therefore, the evidence seized during the search of his clothing should be suppressed. In reply, the State argues that appellant’s driving gave Midgett reasonable suspicion to believe that he was driving while intoxicated.
[ls 2] We conclude that, based on the totality of the circumstances, Midgett had reasonable suspicion to stop appellant for driving while intoxicated. Pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure, “[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 lawfulness of his conduct.” In reviewing the denial of a motion to suppress, this court makes an independent examination based on the totality of the circumstances. Frette v. City of Springdale, 331 Ark. 103, 108, 959 S.W.2d 734, 736 (1998). We conclude that appellant’s crossing of the center line and fog line provided reasonable suspicion to stop appellant to determine whether he was driving while intoxicated. Piercefield v. State, 316 Ark. 128, 133, 871 S.W.2d 348, 351 (1994).
Second, appellant contends that the substance seized should be suppressed because he was arrested on an invalid arrest warrant, and therefore, the search was not incident to a lawful arrest. In response, the State argues that the good-faith exception to the exclusionary rule applies, thus saving from suppression the evidence seized during the search incident to his arrest.
We conclude that the State’s failure to present evidence regarding why the invalid warrant remained outstanding, particularly, whether it was the fault of the police or the court, precludes application of the good-faith exception to the exclusionary rule. In United States v. Leon, 468 U.S. 897 (1984), the United States Supreme Court concluded that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable rebanee on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Leon, 468 U.S. at 922. And in Arizona v. Evans, 514 U.S. 1 (1995), the Court was faced with whether to exclude evidence seized during an arrest or apply the good-faith exception to the exclusionary rule when, because of an error by court employees with regard to computer records, the arrest was made on an arrest warrant quashed seventeen days earber. The Court concluded that “[i]f court employees were responsible for the erroneous computer record, thé exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction.” Evans, 514 U.S. at 14. The Court, however, specifically refused to address whether the good-faith exception should apply when the mistake is made by law enforcement officials. Evans, 514 U.S. at 16 n.5.
The prosecution carries the burden of estabbshing the applicability of the good-faith exception. United States v. Leon, 468 U.S. 897, 924 (1984); McGhee v. State, 25 Ark. App. 132, 136, 752 S.W.2d 303, 305 (1988); 1 Wayne R. LaFave, Search and SEIZURE § 1.3(f), at 71 n.65 (1996). However, even if we assume that Midgett did everything he could to determine the validity of the warrant, the State did not present any evidence explaining why the invahd warrant remained outstanding in the Greene County law enforcement records for nearly three months. Because we lack that information, it is impossible for this court to know whether the invalid warrant remained outstanding because of court error, which, according to Evans, permits application of the good-faith exception, or police misconduct, which precludes application of the good-faith exception because of the lack of objectively reasonable rebanee on the invabd arrest warrant. 1 WAYNE R. LaFave, SEARCH AND SEIZURE § 1.3(f), at 71 (1996)(“[B]ecause Leon rests upon the notion that the exclusionary rule is not impheated where there is no police misconduct to deter, that case does ‘not allow law enforcement authorities to rely on an error of their own making,’ as when they are at fault in faihng to update their own records to show that a vakdly-issued [search] warrant is no longer in effect.”); 2 WAYNE R. LaFave, Search and Seizure § 3.5(d), at 276 (1996)(“The Evans rationale would seem inappbcable whenever the mistake was instead attributable to the law enforcement agency.”); 2 WAYNE R. LaFave, Search and Seizure § 3.5(d), at 276 n.100 (1996)(“Then suppression of evidence obtained incident to that illegal arrest is called for ‘to deter [the pobce department] from debberately or negligently failing to keep its paperwork or computer entries up to date.’ ”). Thus, we conclude that the State failed to estabbsh that there was objectively reasonable rebanee on the invabd arrest warrant, and we must reverse and remand.
As an alternative basis for affirmance, the State argues that even though Midgett did not arrest appellant on a traffic violation and the sole basis for the arrest was the invabd arrest warrant, because there was probable cause to arrest the appellant for violating traffic laws in the presence of the arresting officer, there was an independent basis for appebant’s arrest. Citing Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the State therefore concludes that the arrest was vahd and the subsequent search was justified as a search incident to an arrest.
Specifically, the State argues that appebant violated Ark. Code Ann. § 27-51-301 (a) (Supp. 1999), which provides that “[u]pon ab roadways of sufficient width, a vehicle shab be driven upon the right half of the roadway. ...” and Ark. Code Ann. § 27-51-302(1) (Repl. 1994), which provides that “[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic, ... [a] vehicle shab be driven as nearly as practical entirely within a single lane and shab not be moved from the lane until the driver has first ascertained that movement can be made with safety. ...” We conclude, however, that the evidence presented at the suppression hearing was inadequate to determine whether there was probable cause to befieve that appebant violated the two statutes. Specificaby, there is no evidence that appebant did not first ascertain that movement could be made with safety. Lacking this evidence, we cannot say that the arrest and subsequent search may be justified under this analysis.
Reversed and remanded.
ROAF, J., agrees.
GRIFFEN and Vaught, JJ., concur separately.
Stroud, C.J., and Crabtree, J., dissent. | [
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James R. Cooper, Judge.
In this workers’ compensation case the Commission affirmed the administrative law judge’s findings that the appellee was an employee of the appellant Silvicraft rather than an independent contractor; that the appellants were estopped from denying coverage to the appellee; and the “vendor’s” provision in the appellants’ workers’ compensation insurance policy was in contravention of Ark. Stat. Ann. § 81-1338 (c) and therefore void as against public policy. From that decision, comes this appeal.
On September 8,1981, the appellee injured his legwhile cutting pulpwood for the appellant Silvicraft. The appellee had no written contract with Silvicraft. The appellee testified that he started to work for Silvicraft in April, 1980, and that until his accident, hauled pulpwood only for Silvicraft. He testified that he was directed to the timber he was to cut; that his promissory note for a pulpwood truck was cosigned by Silvicraft’s manager; and that when equipment broke down Silvicraft repaired it and held the repair charges out of his check. However, he also testified that he hired his own helpers, bought his own gasoline, owned his own equipment, and that Silvicraft did not tell him how to cut trees but only marked the ones which were to be cut.
Silvicraft’s manager testified that less experienced workers than the appellee would be more closely supervised; that Silvicraft did not direct the appellee to hire helpers; and that Silvicraft did not exercise control over the manner of cutting and hauling pulpwood. Further, Silvicraft purchases the timber from the landowners, designates the boundaries of the tracts to be cut, and marks the trees to be cut. In order to conduct its business of selling pulpwood to processors, Silvicraft has a business relationship with some thirty other persons who work similarly to the appellee. Also, Silvicraft did not withhold income or social security taxes from the appellee’s checks.
In reaching his decision that the appellee was an employee of the appellant, the administrative law judge considered a number of factors approved by this court in Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 635 S.W.2d 286 (1982). The administrative law judge found that the appellant exercised a great deal of control over the appellee’s performance of his work; that the appellant could have terminated the appellee, had co-signed a note on the appellee’s truck and would have called this demand note if the appellee had gone to work for another pulpwood broker; and that the appellee was engaged solely in the business of cutting pulpwood for the appellant. Also, the administrative law judge found the appellant’s sole business was that of purchasing pulpwood from private owners and that the appellant could not have performed its work without the services of the appellee and other similarly situated persons. Finally, the administrative law judge found that the appel-lee had been employed by the appellant for a substantial period of time and that he would have continued in the employ of the appellant had he not sustained his injury. The Commission adopted the findings of the administrative law judge. In finding that the appellee was the employee rather than an independent contractor, the administrative law judge relied heavily on the relative nature of the work test, as espoused by Professor Larson. See, Larson, Workmen’s Compensation Law §§ 43.42 et seq.
The appellants argue that, in determining whether an individual is an employee or an independent contractor, the most important test to apply is the control test. They cite Franklin in support of that argument. Franklin does not so state. Our opinion in Franklin does point out that, in applying the relative nature of the work test, the right to control may be sufficient to decide the employer/employee relationship question without consideration of other factors. The relative nature of the work is a combination of factors to be considered, all of which are utilized so as to give a clearer picture of the parties’ relationship than is possible when only control is considered. Control of the manner of performing the work is significant, but, if considered determinative or controlling, may lead to clearly wrong results. In Sandy v. Salter, 260 Ark. 486, 541 S.W.2d 929 (1976) the Arkansas Supreme Court upheld the Commission’s denial of benefits to Sandy, who was injured while remodeling a residence for the Salters, who were engaged in the trucking business. The Court stated:
The case at hand confirms the soundness of Larson’s approach to the problem. If the power to control is alone to be taken into account, the Salters might be found to have had that power, owing to their authority to dismiss the workmen at will. Yet there was certainly no actual power to control the men in the details of their work, for the Salters knew nothing about how to go about remodeling a home.
This Court approved the use of Professor Larson’s relative nature of the work test in Franklin, supra, another case involving timber haulers. The use of this test is consistent with the basic premise behind workers’ compensation laws. As stated by Professor Larson,
The theory of compensation legislation is that the cost of all industrial accidents should be borne by the consumer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection.
Larson, Workmen’s Compensation Law, § 4S.51.
The right to control includes several items such as the right to determine the manner of completing the work; right to terminate; right to hire or control the hiring of helpers; the method of payment; and the furnishing of, or the obligation to furnish, tools or equipment necessary to perform the work. In determining the relative nature of the work to the alleged employer’s business, some factors to be considered include whether the worker is engaged in a separate and distinct occupation or business, whether the work to be performed is an integral part of the employer’s regular business, and the duration of the employment.
All of these factors are intertwined in the case at bar, and, based on an analysis of both control and the relationship between Silvicraft’s business and the work being performed by the appellee, the administrative law j udge and the Commission found the appellee to be an employee of Silvicraft. The determination of whether, at the time of injury, a person was an employee or an independent contractor, is a factual one and the Commission is required to follow a liberal approach, resolving doubts in favor of employment status for the worker. Franklin, supra; Liggett Construction Co. v. Griffin, 4 Ark. App. 247, 629 S.W.2d 316 (1982); Purdy v. Livingston, 262 Ark. 575, 559 S.W.2d 24 (1977); Feazell v. Summers, 218 Ark. 136, 234 S.W.2d 765 (1950).
This Court’s standard of review requires that we view the evidence in the light most favorable to the Commission’s decision, and affirm if it is supported by substantial evidence. In order to reverse a decision of the Commission, we must be convinced that fair-minded persons, with the same facts before them, could not have arrived at the conclusion reached by the Commission. Office of Emergency Services v. Home Ins. Co., 2 Ark. App. 185, 618 S.W.2d 573 (1981); Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W.2d 692 (Ark. App. 1980).
On the facts of the case at bar, we find substantial evidence to support the Commission’s decision regarding the appellee’s status as an employee rather than an independent contractor.
The Commission also affirmed the administrative law judge’s finding that the appellants were estopped from denying workers’ compensation coverage to the appellee because of the method used to calculate workers’ compensation insurance premiums. Because of our decision on the appellee’s status, we do not reach this question. The appellant also argues that the Commission’s decision that a vendor endorsement in the appellant’s insurance policy is void as against public policy has no basis in fact or law. Because of our affirmance on the employment issue, we need not decide this question.
Affirmed.
Cracraft and Glaze, JJ., agree.
Franklin was remanded so that the Commission could consider matters in addition to control in deciding the employer/employee question. | [
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Larry D. Vaught, Judge.
Appellant appeals from the circuit court’s order determining the amount of attorney’s fees, costs, and interest due on a breach of contract judgment, which was previously appealed to this court in Holloway v. Riley’s Oak Hill Manor, CA02-74 (Oct. 9, 2002), and affirmed. Appellant contends that the trial court erred in modifying the original judgment. We affirm.
In the first appeal, we affirmed the trial court’s award of a judgment in favor of appellee Riley’s Oak Hill Manor based on a breach of contract claim filed against appellant Eric Holloway. The judgment involved in the first appeal was against appellant in the amount of $6,664.20, plus costs, attorneys’ fees, pre-judgment interest, and post-judgment interest. On December 3, 2002, the trial court entered a “modified final judgment,” which provided that appellants shall pay $6,664.20 in compensatory damages, $350 in costs, $7,672 in attorney’s fees, $2,333.42 in pre-judgment interest, and post-judgment interest at the statutory rate of ten percent on the amounts previously set forth or $4.6698 per day from June 26, 2001, until paid. Appellant filed a timely notice of appeal from the modified final judgment.
Appellant does not challenge the amounts established for the fees, costs and interest, but argues that the trial court erred in modifying the original judgment. It seems clear that the trial court did not modify the original judgment, but merely determined the dollar amount of costs, fees, and interest. Matters that are collateral to the trial court’s judgment are left within the trial court’s jurisdiction even though an appeal has been docketed. Harold Ives Trucking, Co, v. Pro Transp., Inc., 341 Ark. 735, 19 S.W.3d 600 (2000). An award of attorney’s fees and the accrual of interest on a judgment are collateral matters. See id.; U.S. Bank, N.A. v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003). Similarly, an award of costs is also a collateral matter. The original order, which concluded the rights of the parties to the subject matter at issue, was appealed and this court affirmed. The only issues that remained were the amount of the costs, fees, and interest to be awarded to appellees. Although the order appealed from is styled “modified final judgment,” it merely determined the amount of the costs, fees, and interest that appellant was to pay. Thus, the trial court did not erroneously “modify” the final judgment as appellant suggests.
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Robbins and Crabtree, JJ., agree. | [
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Donald L. Corbin, Judge.
This is an eminent domain case. Appellant, Ozark Gas Transmission System, appeals a jury verdict which awarded appellees, Tommy E. McCormick and wife, Anita McCormick, a judgment in the amount of $14,425.00. Of this figure, $510.00 was apparently awarded for the loss of a cow and $ 140.00 for the loss of a calf. The damages for the property actually taken was apparently $13,775.00. We affirm.
Appellees owned a 39 -acre tract of property in Franklin County. Appellant installed an underground pipeline across appellees’ land in a north/south direction dividing the 39 -acre tract into two parts, one 23 -acre tract east of the pipeline and the other 14 -acre tract west of the pipeline. The total amount of land taken for the pipeline itself consisted of a fifty-foot strip equaling approximately 1.03 acres. This case grew out of a disagreement over the amount of compensation appellees were due for the loss of their 1.03 acres and for the reduction in value (if any) of the 14-acre tract west of the pipeline.
Appellant argues that the court erred in refusing to strike the testimony of appellees’ expert witness, Eddie Anderson, because his testimony was speculative. It is well settled that opinion testimony by either the landowner or his value witness may be stricken on motion if there is no fair or logical basis for its support. Once the landowner or his qualified expert witness has expressed his opinion as to fair market values, the burden shifts to the condemnor to establish by cross -examination that the landowner or expert witness has no logical basis to support his opinion before such testimony is subject to being stricken from the record on motion. If the condemnor is unable on cross -examina - tion to draw more than a weak or questionable basis for the opinion, that fact has a bearing on the weight to be given the testimony by the jury, and the testimony should not be stricken on motion. Ark. State Hwy. Comm’n v. Jones, 256 Ark. 40, 505 S.W.2d 210 (1974); Ark. State Hwy. Comm’n v. Roetzel, 271 Ark. 278, 608 S.W.2d 38 (Ark. App. 1980). After reviewing the record before us, there appeas to be adequate testimony for the jury to have concluded that witness Anderson had substantial reasons for finding the property’s highest and best use was for industrial purposes. Testimony was presented at trial by appellees’ expert witness that he determined fair market value of the property before taking by considering the whole 39 acres as a potential industrial site. In determining the value of appellees’ property after taking, Anderson testified that he assessed severance damages to the 14-acre tract because of the restrictions inherent in having to cross appellant’s high-pressure gas pipeline in order to reach the highway, waterline, utilities and railroad spur. To support his testimony that industrial use was the land’s highest and best use, Anderson cited two comparable sales; the 90 -acre Great Carbon Lakes plant located directly across the road from appellees’ property with a date of sale of February, 1979, and the 2 -acre Cargill feed mill site located within two miles of the property in dispute with no date of sale provided. Anderson also testified to the 1981 sale of 6 acres located four miles from appellees’ property which sold for $3,000.00 per acre. He testified to the proximity of these parcels to appellees’ property and also to their similarity in topographical features and access to amenities necessary for industrial development.
In Arkansas Power & Light Co. v. Haskins, 258 Ark. 698, 528 S.W.2d 407 (1975), the Arkansas Supreme Court stated that in eminent domain proceedings, land is evaluated on the basis of the most valuable use to which it can be put, comprehending any use to which it is clearly suitable. The Court also stated that the pattern of land development in close proximity to the condemned land is a reasonable basis for determining the land’s best use. In Ark. State Hwy. Comm’n v. Pearrow, 1 Ark. App. 289, 614 S.W.2d 695 (1981), the Court of Appeals restated the above rule saying that the law was well -settled that the measure of compensation is the land’s market value at the time of taking for all purposes, comprehending the land’s availability for any use for which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring the most in the market.
In the instant case, there seems to be ample testimony from which the jury could have determined that the land’s highest and best use was for industrial purposes without having to resort to any sort of speculation or conjecture. Accordingly, the trial court properly ruled that Anderson’s opinion in this regard would go to his credibility and expertise in the eyes of the jury and that the testimony should not be stricken.
Appellant also argues that there was no basis for appellees’ expert witness’s testimony concerning severance damages. We have long recognized that one approach to determination of just compensation is a formula consisting basically of two elements, i.e., (1) value of the lands taken and (2) damage resulting to the remainder of the tract, usually referred to as severance damages. Furthermore, it has been said that in partial taking cases the testimony should be first directed to the value of the lands taken and then to the damage resulting to the remainder of the tract. Ark. State Hwy. Comm’n v. McAlister, 247 Ark. 757, 447 S.W.2d 649 (1969). It has always been recognized in this state that a landowner from whose lands a right -of -way easement has been taken has the right to continue using the surface of the right -of -way for farming or other purposes not inconsistent with the use of the easement after the improvement is constructed. Davis v. Ark. La. Gas Co., 248 Ark. 881, 454 S.W.2d 331 (1970).
In the case at bar, the testimony by appellees’ expert is somewhat confusing in one portion of the transcript. The expert Anderson testified that he thought that appellant’s taking resulted in appellant’s permissive control of the use of the 14 -acre tract as well as control of the 50 -foot strip on which the pipeline was actually located. While Anderson’s interpretation of the law on this point is in error, his erroneous belief did not negate the fact that there was some severance of the back 14 acres since all ingress and egress to the 14 acres was across appellant’s pipeline and appellant did control that portion. Anderson based his diminution in value of the 14 acres on the fact that any use of the 14 acres would necessitate crossing a high-pressure gas pipeline owned and controlled by appellant. However, the fact that appellees still had limited use of appellant’s strip and full use of the 14 acres beyond the strip was clearly made to the jury by appellant’s counsel. The jury had ample evidence from which to decide a severance still remained because of the limited uses the owners could make of the 14 acres since all ingress and egress was across the high-pressure gas pipeline. The testimony made it clear that appellant would not allow anything to be built across the pipeline which might detrimentally affect its access to the pipeline. Con - trary to Anderson’s confusion as to the law, it is obvious that some severance remained and that it may have been sub - stantial. Anderson testified that severance from 23 acres was what he based the reduced value of the 14 acres upon. Counsel for both parties stipulated that appellees would not have been allowed to build a building across the gas pipeline. There was some evidence that there would be restrictions on appellees’ future use of the property.
We disagree with appellant’s contention that there was no basis for Anderson’s testimony concerning severance damages.
Affirmed.
Cloninger and Cracraft, JJ., agree. | [
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JOHN MAUZY Pittman, Judge.
The appellant was charged with aggravated robbery and theft of property valued in excess of $2,500.00. The jury found him guilty of robbery and misdemeanor theft. This appeal followed.
For reversal, appellant contends that the evidence was insufficient to support his robbery conviction. Appellant’s argument is that the only evidence of force presented at trial was the testimony that appellant displayed a weapon during his flight, and that the jury, by finding him not guilty of aggravated robbery, conclusively found that no weapon was employed. This argument lacks merit for several reasons.
First, it was never presented below. At trial, there was evidence to show that appellant was seen shoplifting a $15.00 item at a Fred’s store, refused to return to the store when directed to do so, and was chased for a few hundred yards to a secluded area. Once in the secluded area, with his pursuers approximately sixty-five feet behind, appellant slowed from a run to a walk and pulled a gun which he displayed at his side. In challenging the sufficiency of the evidence below, appellant merely argued that the evidence presented at trial was insufficient to convict him. Although the proceedings continued for some time after the jury returned its verdict, appellant never asserted that his acquittal of aggravated robbery was tantamount to a finding that no weapon was employed, so that the sufficiency of the evidence should be determined without considering the evidence presented at trial to show that appellant displayed a weapon during his flight. Appellant is changing his argument on appeal, and this he cannot do. See Watts v. State, 68 Ark. App. 47, 8 S.W.3d 563 (2000) (a party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the argument made at trial).
Second, although the jury acquitted appellant of aggravated robbery, it does not necessarily follow that the jury found that no weapon was employed in the crime. It is equally likely that the jury’s verdict was the result of leniency. See United States v. Powell, 469 U.S. 57 (1984). In the absence of a request for special findings or to poll the jury to determine the basis for its decision, appellant’s argument that the inconsistency was based on a finding that no weapon was employed is based on pure speculation. See id. at 66.
Third, even when verdicts are not consistent, an appellant cannot complain of the jury’s having extended him greater leniency than he was entitled to. Cole v. State, 33 Ark. App. 98, 802 S.W.2d 472 (1991); see Benton v. State, 78 Ark. 284, 298-99, 94 S.W. 688, 693-94 (1906).
Affirmed.
Jennings and Crabtree, JJ., agree.
A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1997). A person commits aggravated robbery if he commits robbery as defined in § 5-12-102 and is armed with a deadly weapon or represents by word or conduct that he is so armed. Ark. Code Ann. § 5-12-103(a)(l) (Repl. 1997). | [
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Lawson Cloninger, Judge.
This case arises from a business dispute between appellant Strickland and ap-pellees Meuser and Boll. Appellant Strickland provided approximately $75,000 in capital and appellee Meuser provided the assets of a radiator shop he formerly owned to finance a radiator shop and salvage yard known as Square S Company. Appellant Strickland employed appellee Meuser as manager. A dispute arose concerning whether appellee Meuser’s salary consisted of wages or a draw against 40% of the profits. Another dispute arose concerning whether the initial agreement entitled appellee Meuser to receive 40% of the business or merely 40% of the profits.
The business ended in March, 1982, following an unsuccessful attempt to resolve conflicts, when appellees took all the assets of Square S Company and moved them to appellee Boll’s property, where they opened their own radiator shop and salvage yard. Appellee Meuser brought suit against appellants to recover $350,000 for appellant Strickland’s breach of promise to invest $250,000 into the partnership, and for 40% of the Square S partnership assets and 40% of the assets of appellant Waldron Metal Recycling Company. Appellants filed a counterclaim against appel-lees in which they sought to replevy the assets taken by appellees. At a replevin hearing, the court directed the sheriff to take certain specified property from appellees. When the matter came to trial, the jury returned a verdict in favor of appellee Boll in the amount of $8,200, and a verdict in favor of appellee Meuser which stated:
We, the jury, find in favor of the Plaintiff, James H. Meuser, and against the Defendants, Waldron Metal Recycling Company, Inc. and C. A. Strickland and award James H. Meuser damages in the amount of $20,300.00.
With the stipulation that all equipment and/or materials be returned to C. A. Strickland.
The trial court incorporated the condition in its judgment. Appellants filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial on the ground that the jury had rendered an improper verdict. The motion was denied by the trial court, and this appeal resulted.
We agree with appellants that the trial court erred in refusing to set aside the jury’s verdict, and we reverse and remand for a new trial. The trial court, in adopting the jury’s stipulation, entered a conditional judgment. Little discussion of conditional judgments appears in the case law of Arkansas. However, in Brotherhood of Locomotive Firemen and Enginemen v. Simmons, 190 Ark. 480, 79 S.W.2d 419 (1935), the Arkansas Supreme Court stated:
Judgments must be certain. Their validity and binding force must rest upon facts existing at the time of rendition. Judgments take their validity from the action of the court based on existing facts, and not from what may happen in the future after the court has rendered its judgment.
The Arkansas Supreme Court has flatly held conditional judgments void. Brown v. Maryland Casualty Co., 246 Ark. 1074, 442 S.W.2d 187 (1969). In Brown, the trial court entered judgment for a sub-contractor against the prime contractor, and for the prime contractor against its surety; then the court granted judgment in favor of the surety against the property owners and the architects for anything the surety might be required to pay the prime contractor. The Arkansas Supreme Court, in reversing and remanding, stated:
Inasmuch as the judgments in favor of Maryland and against Brown, Laird and the housing authority were made dependent upon the amount which was paid by Maryland on the judgment in favor of Con-Ark, those judgments must be reversed also, in spite of the fact that we could dismiss the appeal of the housing authority or affirm the judgment against it because of its failure to file a brief on cross-appeal. See Rule 10; Dunham v. Phillips, 154 Ark. 87, 241 S.W. 361; Day v. Langley, 202 Ark. 775, 152 S.W.2d 308. These judgments were void as conditional j udgments in any event. Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S.W. 803; See also Brotherhood of Locomotive Firemen and Engineers v. Simmons, 190 Ark. 480, 79 S.W.2d 419.
Appellants also argue that the court erred in refusing to direct a verdict on the issues of breach of contract with appellee Meuser and breach of contract with appellee Boll. The circumstances recited by both sides in the dispute were riddled with factual inconsistencies. A question was therefore properly formulated for a jury’s consideration. In Brotherhood of Locomotive Firemen and Enginemen v. Simmons, supra, the Supreme Court modified the decree of the trial court so as to eliminate the conditional element. That is not possible in this case thus, the cause must be reversed and remanded for a new trial.
Cracraft, C.J., and Glaze, J., agree. | [
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Tom Glaze, Judge.
This appeal involves the parties’ separation agreement and the trial court’s refusal to modify it to relieve appellant’s obligation to make payments on the parties’ marital residence. In essence, appellant contends the house payments were intended as additional child support which the trial court should have terminated as a result of changed circumstances. Consistent with the trial judge’s holding, appellee argues that the house payments were not for child support, and that they resulted from an independent contract between the parties which could not be modified or altered by the court. We affirm.
Appellant relies primarily upon the decisions of Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983), and Williams v. Williams, 253 Ark. 842, 489 S.W.2d 774 (1973). Both cases are distinguishable from the one at hand. The Williams case is significantly different in that the Court determined the parties’ agreement could be altered because it employed the terms “unless otherwise ordered by the Court.” In addition, the Court, finding the house payments agreed upon were to be made “in lieu of” child support, then rejected appellant’s argument that the house payment provision in the parties’ agreement was unrelated to child support. Next, the Nooner case is inapposite because it did not involve a house payment provision. Instead the Court in Nooner considered an independent contract provision obligating appellant to pay $100 per week for the support of his wife and their two chidren. Because the Nooner agreement failed to divide and allocate the $100 support into alimony and child support payments, the Court held the chancellor had authority to determine those respective amounts. Apparently, the Court reached this conclusion based upon the proposition that either party has a right to ask for a change in child support regardless of any independent contract entered into between them. Contra Backus v. Backus, 216 Ark. 802, 227 S.W.2d 439 (1950).
Unlike either Williams or Nooner, the parties’ agreement here contained separate paragraphs, one wherein they agreed appellant would pay $193 per month child support so long as the children resided at the marital home and another wherein they divided their properties. Under the property provisions, appellee remained in possession of the marital residence until the youngest child graduates from high school or reaches age twenty, whichever shall extend the longer; during this period, appellant agreed to make the house payments. In contrast to the Williams case, the parties here agree that their contract is independent and was duly incorporated into their divorce decree.
We believe the circumstances and agreement presented here are more closely aligned with those in McInturff v. McInturff, 7 Ark. App. 116, 644 S.W.2d 618 (1983). There, as here, the parties executed an independent contract, express ing the desire to settle their respective property rights as well as to establish their respective obligations to the children. Under the contract, the appellant wife was awarded custody of the parties’ children and the husband was credited with a lump-sum payment to cover his child support obligation by releasing his equity interest in the parties’ property. About two years later, both children had moved in with their father. He subsequently gained legal custody and asked the court at the same time to give him a pro rata referral of the lump-sum payment he made toward his child support obligation. We held that when parties executed an integrated property and support agreement which is incorporated into their divorce decree, the court cannot later alter or modify that decree unless the parties have provided for or agreed to such modification. In Mclnturff, we reviewed the record and found the parties’ independent agreement was integrated so that the property, debt, alimony and support provisions were reciprocal and were intended to be a final settlement with respect to all property, financial, alimony and support matters. Accordingly, we concluded the trial court could not modify such an agreement.
Here, the trial court terminated appellant’s obligation to pay the child support required by the parties’ agreement and divorce decree, because the oldest boy is eighteen years old and the youngest son is now in appellant’s custody. However, the court found that the appellant had a contractual duty to maintain payments on their former marital residence because such duty was a part of their property agreement and was not intended as child support. As in Mclnturff, the parties here expressed their desires to make a complete settlement of their respective property rights, both waiving their rights or claims in the other’s property as divided under their written agreement. By a separate paragraph captioned “DIVISION OF PROPERTY,” the parties described their rights and obligations involving their real and personal properties. This paragraph contains appellant’s duty to make payments on their marital residence. Under another paragraph captioned “CHILD CUSTODY,” appellant agreed to pay $ 195.00 per month as child support, but the parties agreed such support would terminate when each child reached eighteen years of age or in the event either of the children decide to live with the appellant. The parties made no mention that appellant’s house payments — required under their property division paragraph — would terminate because the children obtained majority or lived with appellant.
In sum, the trial court found the youngest son was only fifteen years old and under the property division provision of the parties’ contract, appellee is still entitled to retain possession of the marital home rent free. We agree. From our review of the parties’ agreement, we believe the conclusion is inescapable that appellee’s rent-free entitlement to the home was one basis of consideration for the manner in which the other properties were divided between them. This being so,. we agree with the trial judge’s decision finding this part of the parties’ agreement to be unmodifiable.
We affirm.
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JOHN MAUZY Pittman, Judge.
The claimant, Patricia A. Fuller, sustained a compensable back injury while working at a restaurant in 1975. As a result of this injury, the claimant underwent a laminectomy and diskectomy at L4-5 on the right and center, and sustained permanent impairment of 17.5% to the body as a whole. Claimant returned to the workforce and began working for Exxon Tiger Mart, Inc., in August 1991. The claimant again injured her back when she fell while mopping a floor in the course of her employment with Exxon Tiger Mart on June 19, 1993. As a result of her 1993 injury, claimant underwent a lumbar laminectomy and diskectomy at L4-5 on the left and sustained an anatomical impairment of 13% to the body as a whole. After a hearing to determine the extent of claimant’s wage-loss disability, and to determine whether such disability was the responsibility of her employer or of the Second Injury Fund, the Commission found that claimant sustained a 37% impairment to her wage-earning capacity attributable to her back condition, and that the Second Injury Fund was liable for those benefits. From that decision, comes this appeal.
For reversal, the Second Injury Fund contends that the Commission erred in finding that the claimant sustained a 37% impairment to her wage-earning capacity; in failing to make a specific finding regarding the claimant’s credibility; and in finding that a preexisting disability or impairment combined with claimant’s last injury to cause a greater degree of disability. We affirm.
We first address appellant’s arguments concerning the sufficiency of the evidence. In determining the sufficiency of the evidence to support the findings of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wal-Mart Stores, Inc. v. Vanwagner, 63 Ark. App. 235, 977 S.W.2d 487 (1998). The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).
The Commission found that the claimant was entitled to 37% wage-loss disability based on consideration of “all relevant factors,” including “the claimant’s relatively advanced age, her education and work experience, [and] the nature and extent of her back injury.” Viewed in the light most favorable to the Commission’s findings, the evidence showed that the claimant was fifty-seven years old at the time of the hearing; that she did not complete high school, but did obtain a G.E.D.; that she previously had been employed as cashier, factory worker, waitress, housekeeper, cook, and day-care aide; that she missed approximately two years of work as the result of her first back injury and had intermittent back and leg problems thereafter, but that after her second injury the claimant now experiences episodes where she is injured in falls caused by her legs giving way, that she has pain in her back and legs to such an extent that she feels unable to work, and that this pain manifests itself when she lifts, bends, stoops, stands, or sits.
Appellant asserts that, because there was evidence that claimant’s functional-capacity evaluation indicated that she was capable of performing work classified as “medium” by the U.S. Department of Labor, the Commission could not reasonably have found her to have sustained a 37% wage-loss disability. We do not agree. The Commission is not bound to accept the testimony of any witness, even if uncontradicted. Ester v. National Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Although expert opinion, such as that contained in the functional-capacity evaluation performed by the occupational therapist in the present case, is admissible and frequently helpful in workers’ compensation cases, it is not conclusive. See Weldon v. Pierce Brothers Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). The Commission has the duty of weighing such evidence as it does any other evidence, and its resolution has the force and effect of a jury verdict. See Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). In light of the evidence of claimant’s physical condition and wage-loss factors, there is substantial evidence to support the Commission’s finding of 37% wage-loss disability.
Appellant also asserts that the Commission erred in finding that a preexisting disability or impairment combined with claimant’s last injury to cause a greater degree of disability, contending that claimant’s testimony that she had a preexisting impairment as a result of her 1975 injury lacked credibility, and that, in any event, there was no substantial evidence to support the finding that claimant’s current disability status resulted from a combination of disabilities or impairments from her 1975 and 1993 injuries. We do not agree.
First, although there was in fact a degree of inconsistency in the claimant’s testimony regarding her recovery from her 1975 injury, the resolution of such inconsistencies is a matter within the sole province of the Commission, see Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998), and we are bound by the Commission’s findings upon such disputed questions of fact. Tyson Foods v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). It is the Commission’s duty to determine which portion of the testimony it deems worthy of belief and to translate that portion into findings of fact, see University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997), and the Commission’s finding of prior disability or impairment in the case at bar is amply supported by claimant’s testimony that she experienced difficulties following her 1975 injury that kept her from applying for factory or restaurant work.
Second, we note that, in finding that claimant’s current disability status resulted from a combination of disabilities or impairments from her 1975 and 1993 injuries, the Commission observed that the earlier injury and surgery were to the same level of the claimant’s lumbar spine as the previous injury and surgery, and that claimant’s physical limitations increased substantially following her second injury and surgery. As the Commission noted, the relevant facts of this case are indistinguishable from those presented in Second Injury Fund v. Furman, 60 Ark. App. 237, 961 S.W.2d 787 (1998), and we hold that the Commission did not err in finding that claimant’s preexisting disability or impairment combined with her last injury to cause a greater degree of disability.
Finally, appellant contends that the Commission was obligated under Patterson v. Frito-Lay, 66 Ark. App. 159, 992 S.W.2d 130 (1999), to make specific findings with respect to the claimant’s credibility. We do not agree that such findings are required. The Frito-Lay case, supra, imposed no new requirement on the Commission, but instead merely applied the longstanding rules that the Commission may not arbitrarily disregard testimony, and that the Commission’s opinion must include a statement of those facts the Commission finds to be established by the evidence in sufficient detail that the truth or falsity of each material allegation may be demonstrated from the findings. See id.; see also Wright v. American Transp., 18 Ark. App. 18, 709 S.W.2d 107 (1986). In the present case, there is no indication that the Commission arbitrarily disregarded any testimony, and its findings regarding the claimant’s testimony are apparent from its recitation' of those portions of that testimony that it deemed worthy of belief.
Affirmed.
Stroud and Hart, JJ., agree.
The Second Injury Fund made an additional argument concerning the sufficiency of the evidence to support a finding that claimant received a 17.5% permanent anatomical impairment rating for her 1975 injury. Because the Fund conceded in its reply brief that this additional argument is now moot, we do not address it. | [
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Andree Layton Roaf, Judge.
Sandra Hickmon appeals an order from the Saline County Chancery Court denying her petition for permission to move out of state with her seven- year-old daughter Miranda. Sandra had primary physical custody of the child and shared joint legal custody with her ex-husband, appel-lee Randy Hickmon. Since her divorce from Randy, Sandra had remarried and wanted to join her new husband in Phoenix, Arizona. Sandra’s sole point on appeal is that the chancellor used an incorrect legal standard in deciding the merits of her petition. We affirm.
On May 16, 1996, Sandra and Randy were divorced after just over ten years of marriage. By agreement of the parties, “joint custody” of their only child, Miranda, was ordered. Pursuant to that agreement, Sandra had primary physical custody and Randy had extensive visitation.
On August 21, 1997, Randy moved to modify the decree, seeking joint physical custody, to include additional time with Miranda. Sandra opposed the motion and filed a counter-petition alleging that Randy had not cooperated with her regarding decisions concerning Miranda’s welfare, asked for sole custody, and requested, in light of the fact that she had become engaged to be married to a resident of Phoenix, Arizona, that she be allowed to take Miranda with her to Phoenix. Randy then amended his motion to seek sole physical custody. By order entered October 28, 1997, the chancellor denied both parties’ petitions.
On June 15, 1998, Sandra again petitioned for permission to move Miranda to Phoenix, stating that she had now married Dr. Alex McLaren. Randy again counter-petitioned for sole physical custody. The chancellor subsequently ordered the parties to make themselves available to psychologists Dr. Paul Deyoub and Dr. Margarita Garcia, experts retained respectively by Sandra and Randy. Both psychologists submitted reports.
In his report dated January 25, 1999, Dr. Deyoub stated that he interviewed Sandra, Randy, both stepparents, and Miranda. He stated that although Sandra was very depressed in January of 1997, two years had elapsed and she genuinely appeared to be in remission. Nonetheless, Dr. Deyoub stated that he had concerns about moving Miranda to Phoenix. He noted that “there will be a price to pay for this.” Dr. Deyoub stated that if Miranda moved, by the time she was twelve, her formerly close relationship with Randy will be a “distant and possibly unretrievable memory.” He opined that while the move was in Sandra’s best interest, it was not in the best interest of preserving Miranda’s relationship with her father, and more to the point, it was in Miranda’s best interest to remain in Arkansas with her mother to preserve her relationship with her father. According to Dr. Deyoub, Sandra told him that she would not move to Phoenix if it would jeopardize her retaining primary physical custody of Miranda. He also agreed with Sandra that Randy seems to “over do it” with Miranda, and stated that except for a small increase in visitation for Randy, the status quo should be maintained.
In a subsequent evidentiary deposition on April 30, 1999, Dr. Deyoub reiterated his conclusion that Sandra’s depression was not currently a problem. He, however, did not retreat from the opinion that the proposed move to Phoenix would cause “some loss” in Miranda’s relationship with her father, even if Sandra flew Miranda back for visits every other weekend. He opined that it was “better for the child” if Miranda was able to maintain the relationship that she “now has with her father.” Dr. Deyoub noted that Sandra “has had her problems in the past,” and opined that it “changed this whole situation a little bit,” and accordingly, it “skewed a little bit more in the father’s favor, in terms of maintaining that parental involvement.” He also opined that Sandra’s desire to make the move to Phoenix was in part inspired by her desire to get away from Randy and noted that Sandra expressed concern about Miranda’s step-mother attempting to assume her role. Dr. Deyoub reiterated his concerns with the proposed move and stated, “if you only look at what Miranda needs, then I think she should stay here.” He further stated that this conclusion was based on the level of involvement that Randy had in Miranda’s life, and would not necessarily have the same opinion if Randy’s involvement were only “peripheral.”
Two documents authored by Dr. Garcia were entered into evidence. The first was a report, dated November 2, 1998, that was based on a series of office visits with Randy, his wife Devina, and Miranda. The report states that “Miranda is established in her community, she has family in Arkansas, friends at school, horses and other animals she dearly loves in her father’s backyard,” and has “a positive relationship with her father.” Dr. Garcia opined, “Miranda’s need for a stable childhood outweighs the mother’s need to uproot her from Arkansas to Arizona. Miranda would have to deal with more loss (i.e., her father, her home, her pets, her friends and teacher) which is unnecessary since Miranda has a very capable and devoted father who has succeeded in creating a stable home for her.” A second report, dated February 4, 1999, which stated that it was based on sessions with Miranda and Sandra, was also made part of the record. It noted that Miranda’s stated desire to stay in Arkansas or move with her mother to Arizona “shifted depending upon which parent she felt she needed to please on that particular visit.” Nonetheless, Dr. Garcia found both Randy and Sandra to be “better than adequate” parents, and in part because Sandra “made it clear” that she will not move to Arizona without Miranda, “maintaining the minor child’s current joint custody in Arkansas is in Miranda’s best interest.”
Also made part of the record was a deposition of Dr. George Hamilton, Sandra’s treating psychiatrist, taken on September 11, 1998. In it he stated that Sandra’s diagnosis was that of “Major Depressive Disorder, Recurrent, In remission.”
A full hearing on the petitions was held on June 24, 1999. Sandra testified that she has had primary physical custody of Miranda since the divorce. She claimed that she married Dr. McLaren, an orthopedic surgeon in Phoenix, a year ago, and that it was very hard to be away from her new husband in a long-distance marriage. Sandra stated that she had a home there and a job lined up as research coordinator in orthopedics that would be better than her current job at the University of Arkansas Medical Center in that it would give her more pay, require that she work fewer hours, and allow her to do some of her work at home. She stated that it would not be practical for her husband to move to Little Rock. Sandra also expressed resentment about Randy’s new wife Devina “trying to supplant” her role as Miranda’s mother, and the intrusiveness of Randy’s involvement with his daughter, particularly the frequency of his phone calls. She also expressed dissatisfaction with Randy’s taking Miranda to Dr. Garcia. Sandra opined that she had previously been denied permission to move Miranda because of her depression, but stated that she was better now. She conceded that Randy and Miranda “are close,” and she noted that Randy volunteered at Miranda’s school and served as Miranda’s soccer coach. Sandra also testified that she would fly with Miranda back to Little Rock every other weekend at her expense to enable Randy to maintain regular visitation, if the move were allowed.
Sandra’s new husband Dr. McLaren testified that he was an orthopedic surgeon, but worked as chief of orthopedics and the director of the orthopedic training program at the Americorp Medical Center because a shoulder injury prevented him from actively treating patients. He stated that this disability prevented him from simply moving to Litde Rock as there would not be a comparable position available. Dr. McLaren testified that he owned a nice but “modest home by a lot of professional standards” in Phoenix, and had two children, ages twelve and fourteen, that visit him from time to time and got along “very well” with Miranda when they met her.
Randy testified that he would withdraw his change of custody petition if Miranda stayed in Arkansas. He claimed that he always enjoyed a close relationship with Miranda. Randy stated that he was her soccer coach and regularly volunteered at her school. According to Randy, he tries to go to her school at least twice a week, to have lunch with her and talk to her teachers. Randy asserted that Miranda was also close to his parents and visits with them often, “about every other time we have her.” He stated that Miranda loves animals, so he bought her a dog, a cat, and a pony. He claimed that he has constantly asked for more time with Miranda, for opportunity to help raise her, and to be involved in every aspect of her life and “not just a visitor.” He generally denied Sandra’s allegations that he was overly intrusive in seeking contact with Miranda.
At the close of all the testimony, the chancellor announced from the bench that he was denying Sandra’s petition to take Miranda to Arizona. He noted that both experts stated that it was not in Miranda’s best interest to leave the state, and was particularly impressed by Dr. Deyoub’s methodology and conclusions.
On appeal, Sandra argues that the chancellor used an incorrect legal standard in deciding the merits of the custodial parent’s petition to relocate out of state with the parties’ minor child In this regard, Sandra contends that the chancellor erred in only considering the best interest of the child and not applying the guidance set forth in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994). She asks that this court reverse and remand for further proceedings in which the chancellor would apply the Staab factors in determining whether she should be allowed to move Miranda out of state. In the alternative, Sandra prays that this court apply the Staab factors on de novo review, which she contends will weigh in favor of her being allowed to move away with Miranda. This argument is without merit.
This court reviews chancery cases de novo and reverses the findings of the chancellor only if his findings are clearly against the preponderance of the evidence. Wilson v. Wilson, 67 Ark. App. 48, 991 S.W.2d 647 (1999). In deciding which parent should have custody of a child and what is in the best interest of the child, the chancellor has the burden of evaluating the witnesses and their testimony. Id.
Contrary to what Sandra suggests, Staab did not abolish the best-interest-of-the-child standard in cases where a custodial parent wishes to move a child out of state. As this court stated in Staab:
While we agree with the chancellor that achieving the “best interests of the child” remains the ultimate objective in resolving all child custody and related matters, we believe that the standard must be more specific and instructive to address relocation disputes. In particular, we think it important to note that determining a child’s best interests in the context of a relocation dispute requires consideration of issues that are not necessarily the same as in custody cases or more ordinary visitation cases.
44 Ark. App. at 133, 868 S.W.2d at 519. This court merely provided more guidance for chancellors when they are confronted with this situation. Id., see also Wilson v. Wilson, supra. In the instant case, there is no indication that the chancellor decided this case in a manner that was inconsistent with this court’s holding in Staab. We note further that Sandra did not, in accordance with Rule 52 of the Arkansas Rules of Civil Procedure, request specific findings of fact on the Staab factors. Accordingly, this case is analogous to Mega Life & Health Ins. Co. v. Jocola, 330 Ark. 261, 954 S.W.2d 898 (1997), where the supreme court held that the failure to ask for such findings constitutes a waiver of this issue on appeal. Therefore, Sandra’s prayer for further proceedings is procedurally barred.
However, because this court’s review is de novo, we must still address Sandra’s argument on the merits to determine if the trial court’s ruling was clearly erroneous. In Staab v Hurst, supra, this court set forth five factors that should be “included” in determining whether to allow a custodial parent to remove a child from the state. These factors are:
(1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.
Id. Before a chancellor is to consider the Staab factors, the custodial parent bears the threshold burden to prove some real advantage to the children and himself or herself in the move. Wilson v. Wilson, supra.
On the threshold question, Sandra argues that it has been “proved” because she is now married to an orthopedic surgeon who owns his own home, has other children who get along with Miranda, and has secured her a position that would “maximize” the time she could spend at home with Miranda. We do not agree that a real advantage to Miranda is proven by these facts.
Obviously, the move would have significant advantages for Sandra; she would be with her husband and she would be away from her ex-husband, whom she perceives as an antagonist in her life. Although the evidence was somewhat sparse in this regard, she also would apparently be moving to a better-paying job, requiring fewer hours, and the flexibility to work at home. However, it is not apparent that there would be any “real advantage” for Miranda.
Significantly, both Dr. Deyoub and Dr. Garcia only perceived the move to Phoenix as inflicting yet another “loss” on Miranda. Not only would she have lesser contact with her father, she would also lose contact with friends, teammates, extended family, pets, her teacher, and familiar home surroundings. Furthermore, in the instant case, we do not have a firmly rooted new family arrangement that is simply moving away. Cf. Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000). Sandra herself will be adjusting to life with a new husband. Finally, regarding the new family arrangement, although Sandra spoke of Dr. McLaren’s children as providing an advantage to Miranda, given the disparity of her age and theirs, and the testimony that they visit “from time to time,” it is not readily apparent how their potential relationship with Miranda would constitute an advantage for her.
We cannot say that there is compelling evidence of improper motive on Sandra’s part in wanting to move, or Randy’s part in opposing it; that any visitation order would not be complied with; or that the visitation Sandra offered would not be substantial. Nonetheless, we have before us a case in which Miranda’s father is highly involved in her life, to her obvious advantage, and a paucity of evidence of any real advantage for Miranda in moving to Phoenix. Significantly, both experts opined that the move was not in Miranda’s best interest. Under these circumstances, we cannot say that the chancellor’s decision was clearly erroneous.
Affirmed.
Crabtree and Koonce, JJ., agree.
We note that although the parties had “joint custody” by agreement, Sandra clearly had primary physical custody of Miranda, and consequently, this case should be analyzed as a request by the custodial parent to relocate and not as a change of custody. | [
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JOHN E. JENNINGS, Judge.
Charles Mayo was charged in Pulaski County Circuit Court with possession of marijuana, second offense, a class D felony, and simultaneous possession of firearms and drugs, a class Y felony. Following a bench trial on November 13, 1998, Mayo was found guilty of possession of marijuana, first offense, a class A misdemeanor. He was sentenced to one year in the county jail and fined $1,000.00. The sole issue on appeal is whether the evidence was sufficient to support the conviction. We hold that it was not and reverse.
Two witnesses testified at trial — Robert Hinman, a Little Rock Police Officer, for the State, and the defendant, Charles Mayo. Officer Hinman testified that he went to a house at 4020 Ludwig Street on a burglary call. With him were Officers Harland, Van Pelt, and Stankovitz. Hinman and Harland entered the house through the back door. Officer Hinman testified that as he walked down a hall he saw Mayo looking around the corner. He testified that although he did not see Mayo sitting on a couch it appeared to him that he was, based on Mayo’s position when he looked around the corner.
The officers ordered everyone to the ground and entered what seems to have been a living room. They found Mayo and another man in the room and Officer Hinman testified that Mayo was lying down with his feet between a couch and a coffee table. On the coffee table there were three “cigars” with marijuana in them, two of which had been smoked. There was also a small amount of loose marijuana. Officer Hinman testified that he could smell an odor of marijuana in the room, but agreed on cross-examination that he did not include that fact in his report of the incident. A loaded pistol was also found on the couch on which the officer believed Mayo was sitting. Officer Hinman testified that the house did not belong to the defendant and that there was nothing found to link him to the house.
Charles Mayo testified that he lived on West 42nd Street and had stopped by the house on Ludwig because he heard a football game on the television and wanted to get the score. He said he knocked on the door and “Andre” answered. He testified that when the police officers arrived he was not sitting on the couch but was standing in the room watching the game. He admitted that he saw the marijuana on the table but denied that it was his and denied having smoked any of it.
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 mere speculation or conjecture. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). The law makes no distinction between circumstantial and direct evidence in a review for sufficiency. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999). Whether the evidence excludes every such hypothesis is ordinarily for the trier of fact to determine. See Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). In determining the sufficiency of the evidence, we view it in the light most favorable to the State. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). The trier of fact is not required to believe the testimony of the defendant. See, Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999). While the question of the sufficiency of the evidence is dependent on the facts of the particular case, the issue is one of law. Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994).
It is not necessary to prove actual or physical possession in order to prove a defendant is in possession of a controlled substance. See Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993). Instead, a showing of constructive possession, which is the control or right to control contraband, is sufficient. See Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). Where there is joint occupancy of the premises where the contraband is seized, some additional factor must be found to link the accused to the contraband. Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). In such instances, the State must prove that the accused exercised care, control, and management over the contraband and also that the accused knew that the matter possessed was contraband. Parette, supra.
In the case at bar, the question is reduced to whether the State made a sufficient showing that Mayo “exercised care, control, and management over the contraband.” Although appellant argues that he was not sitting on the couch, we conclude that the trial judge could find that he was based on the testimony. Even so, we are not persuaded that the State proved that the defendant exercised control over the marijuana.
In Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986), the supreme court reversed the conviction of Gary Piercefield. Pierce-field was found hiding in a closet in an apartment containing drugs and drug paraphernalia. The court pointed out that the apartment was not Piercefield’s and that there was no evidence that he had any connection with it. In Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990), the court reversed a conviction on somewhat similar facts, even though the defendant was “a frequent (if not full-time) occupant and kept personal clothing there.” The court noted that the defendant made no effort to dispose of any incriminating matter and made no incriminating statement. In Mosley v. State, 40 Ark. App. 154, 844 S.W.2d 378 (1992), we reversed a conviction when the defendant was found with six other people in a small room in an apartment containing contraband and drug paraphernalia. We held that while control over the contraband may be inferred from the circumstances, the evidence was insufficient to permit that inference. We affirmed a conviction in Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993). In Sinks, the defendant was the only person in the residence when a search warrant was executed. He was found lying on a bed where cocaine was located. In Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991), the court found the evidence sufficient to sustain a conviction on possession of drugs where the defendant and three others were sitting around a kitchen table where cocaine and marijuana were in plain view. In Nichols, the court pointed out that the house belonged to the defendant.
The State relies on Bond v. State, 45 Ark. App. 177, 873 S.W.2d 569 (1994). First, we are not persuaded that cases involving the possession of contraband in automobiles are fully applicable to cases involving homes or apartments. Second, in Bond there was testimony that the officer smelled an odor of smoking marijuana and that the appellant appeared to have “glassy eyes.” In the case at bar, there was no evidence that the marijuana “cigars” were burning at the time of the officers’ entry. There is no evidence that the defendant was under the influence of drugs.
In the case at bar, the trial judge could find that the defendant was seated on a couch near a coffee table where marijuana was in plain view and the defendant admitted that he was aware of the presence of contraband. As against that, it is undisputed’that the defendant had no connection with the residence and-that there was another individual present when the police entered the room. On these facts, we conclude that the evidence presented the trial court with a choice so evenly balanced that the finding of guilt necessarily rested on conjecture. See Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
Reversed.
Hart, Pittman, Meads, and Crabtree, JJ., agree.
Roaf, J., concurs. | [
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Terry Crabtree, Judge.
Appellant Michael Roberts appeals the March 16, 1999, Decree of Divorce from his wife, Jennifer Roberts. On appeal he argues the following points: (1) the trial court erred in entering a final decree of divorce without distributing all marital property as required by Ark. Code Ann § 9-12-315 (a)(1)(A) (Repl. 1998), and (2) the trial court erred in ruling that the property which is to be distributed should be divided as of the date of the hearing of statutory grounds for divorce, rather than when the decree is entered. We dismiss.
Rule 2(a)(1) of the Appellate Rules of Procedure— Civil provides that an appeal may be taken from a final judgment or decree entered by the trial court. When the order appealed from is not final, this court will not decide the merits of the appeal. Arkansas Dep’t of Human Servs. v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990). Whether a final judgment, decree, or order exists is a jurisdictional issue that we have the duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Id. For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. Thus, the order must put the trial court’s directive into execution, ending the litigation, or a separable branch of it. K.W. v. State, 327 Ark. 205, 937 S.W.2d 658 (1997). Where the order appealed from reflects that further proceedings are pending, which do not involve merely collateral matters, the order is not final. Id.
The March 16, 1999, Decree of Divorce does not conclude the parties’ property rights in respect to a number of issues including but not limited to the following: the appellant’s entitlement to one-half of the amount of principal reduction from the date of marriage until the date of separation on the Foster Street home, division of the pension plans, division of the property on Johnson Road, and the disclosure of assets not included. This order does not dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Furthermore, where the record reflects that both parties did agree that no property division was to be made at the time the decree was entered, not distributing the property at that time was not error. Forest v. Forest, 279 Ark. 115, 649 S.W.2d 173 (1983). In this case, the parties acknowledged that they would have to determine what property was to be divided in kind or sold. Therefore, this order is not a final appealable order, and we dismiss this appeal.
Dismissed.
Robbins, C.J., and Bird, J., agree. | [
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Lawson Cloninger, Judge.
The appellant, Floyd Barker, was denied unemployment compensation benefits by a decision of the Arkansas Board of Review on the finding that appellant quit his job without good cause connected with the work. Ark. Stat. Ann. § 81-1106 (a).
The decision of the Board of Review is not supported by substantial evidence and we reverse.
Appellant had been a laborer for the employer, appellee Eichleay Corporation, for seven months prior to the day he quit on October 22, 1982. Appellant and his witness, who was also an employee of appellee, testified at the hearing before the Administrative Law Judge. No evidence was offered in behalf of the employer, either by written statement or by testimony at the hearing.
Appellant testified that he was getting more than his share of the unpleasant jobs. He talked to the foreman about it and the foreman told him “... that’s the way it is and that’s the way it’s going to be.” Appellant’s witness testified as follows:
Ah, Floyd Barker had a labor foreman, Bill Ledbetter, who was very prejudiced against colored people. When this incident happened, right after it happened I went up and talked to Bill Ledbetter to try to get Floyd on my crew. Bill Ledbetter said I’m surprised he last this long, he said I’ve given him every dirty job there is and I said well if you like to I’ll take him on my crew. He’s a good laborer and he can help carpenters. He said the only place his black ass is going is to the house, that’s what he said.
Ark. Stat. Ann. § 81-1106 (a), supra, provides that an individual is disqualified for benefits if he voluntarily leaves his last work without good cause connected with the work.
The standard in determining good cause is set out in Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (1980), as a cause which would reasonably impel the average able-bodied qualified worker to, in good faith, give up his or her employment. Teel also states that another element in determining good cause is whether the employee took appropriate steps to prevent the mistreatment from continuing.
The evidence indicates that appellant was singled out for the most distasteful jobs, and the clear inference is that his foreman was deliberately seeking to drive him from his job. Appellant’s evidence of mistreatment is unrefuted, and there is no evidence of bad faith on his part. Appellant attempted to prevent the mistreatment from continuing by talking to his foreman about it, but was rebuffed. He was given the choice of accepting continued mistreatment or being fired. We believe claimant reasonably determined that his situation was impossible to resolve.
The decision of the Board of Review denying claimant benefits is reversed.
Glaze and Cracraft, JJ., agree. | [
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Tom Glaze, Judge.
This appeal arises from a decree awarding appellees $10,522.06 for unpaid obligations incurred in connection with construction of a commercial, two flume water slide on appellee’s property. In addition, the chancellor found that by his failure to perform the parties’ contract in a satisfactory fashion, the appellant forfeited any rights he had in connection with the contract to share in the profits of the water slide. The court dissolved the parties’ partnership and terminated the appellant’s interest in it.
The appellant does not appeal from that part of the decree giving judgment to appellee for $10,522.06. Appellant contends the court erred, however, in ordering a forfeiture of his rights to share in partnership profits and in terminating appellant’s interest in the partnership. We agree the judge erred, and therefore reverse.
Appellee contends that no partnership existed between the parties and that even if the parties intended to enter into a partnership, appellant’s failure to perform the contract prevented the partnership from coming into existence. We find no merit in this contention, primarily because it was not presented below. Both parties proceeded at trial as if a partnership existed. In fact, they asked the chancellor to dissolve it, and he did so. Because appellee failed to question the parties’ partnership below, that issue canot be raised for the first time on appeal. Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982).
We do, however, find error in that part of the decree which dissolves the partnership and terminates appellant’s interest in it. The agreement between the parties makes no provision for termination of either party’s interest except upon two contingencies: (1) appellee’s sale or lease of the slide, and (2) appellant’s death. Because their agreement did not provide specifically for dissolution and termination of the interests of the parties, the Uniform Partnership Act applies. Ark. Stat. Ann. §§ 65-101 to -143; see specifically §§ 65-129, -138 (Supp. 1983). See also Osborne v. Workman, 273 Ark. 538, 621 S.W.2d 478 (1981).
The record clearly indicates that the chancellor failed to apply the Uniform Act. We therefore reverse that part of the judgment terminating appellant’s interests in the partnership and remand for a determination of the parties’ interests under the Act, specifically those provisions governing dissolution. See Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949) (remanded because tried upon erroneous theory; neither party offered proof on correct point of law); Moore v. City of Blytheville, 1 Ark. App. 35, 612 S.W.2d 327 (1981) (remanded because erroneous measure of damages was applied; remanded for presentation of proof on damages).
Affirmed in part and reversed and remanded in part.
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George K. Cracraft, Judge.
Edward A. Dolin appeals from an order of the Chancery Court of Perry County granting the petition of Betty Dolin to register a foreign divorce decree pursuant to Ark. Stat. Ann. § 29-801 et seq. (Repl. 1979), which was entered in the State of California. We find no merit in either argument advanced by the appellant and affirm the decision of the chancery court.
On the 27th of January, 1982 Betty Dolin filed her verified petition for registration to which were attached a copy of the California judgment, the date of its entry and a record of subsequent order entries which affected it, all of which were duly authenticated in the manner authorized by the law of this State and which contained a prayer that the judgment be registered, as required by Ark. Stat. Ann. § 29-803 (Repl. 1979). An “Interlocutory Judgment of Dissolution of Marriage” entered by the Superior Court of California, County of Santa Clara, dated November 14,1974, was one attachment. This order recited that the defendant had been duly served with summons on August 26,1974 and had entered his appearance in that action and was present on the date the court entered the interlocutory order. As authorized by California law it declared that a final judgment of dissolution would be entered on application of either party after the expiration of six months from the date of service on the defendant. It provided that pursuant to a stipulation in open court the care and custody of their minor child should be awarded to the wife (appellee). The order recited that all marital property rights were in issue and after hearing testimony it ordered the husband to pay the sum of $100 per month for the support of the minor child and $200 a month for “spousal support.” This order made disposition of all other property rights of the parties except a division of a Ford Motor Company Retirement Fund over which the court retained jurisdiction.
Another order of that same court declared that the vested Ford Motor Company Pension Fund was community property and awarded the wife one-half of all payments under it when they commenced. A “Final Judgment of Dissolution” dated April 1, 1975, made permanent and binding all provisions of the interlocutory judgment. An order of that same court dated April 12,1977 recited that both parties had appeared personally and with counsel and had presented evidence upon which the court modified visitation and increased child support to $150 per month, “respondent acknowledging that he is $100 in arrears in his present support obligations which will be paid forthwith. ’ ’ Another order denied a motion of the appellant to reduce child support payments upon a finding that, although his earnings had decreased, he had placed himself in that position by voluntary retirement at a time when the wife’s needs were increased.
The appellant answered the petition denying all of those allegations and affirmatively alleging that the California decree “was rendered contrary to constitutional requirements of due process and that the court did not have jurisdiction.” He further alleged that the judgment sought to be registered was not a final one.
The wife also filed a petition in Arkansas in which she alleged that the defendant was in arrears on child support, alimony and payment of medical expenses which the husband had been ordered to pay in the California decree, for which she prayed judgments. She additionally prayed that Ford Motor Company be made a party to the action so that the order of the California Court vesting her interest in the pension fund could be enforced in this State.
On March 11,1982 the court ordered a hearing set on the petition for registration of the judgment on July 7, 1982. That order recited that on July 7th the court would first determine whether the judgment should be registered and would then proceed to hear the petitions for relief and enforcement of it.
On the 7th of July the court entered an order registering the California decree in which it found that the statutes providing for registration of foreign judgments had been complied with and that all service and notices required by law had been had upon the husband. The court further found that the authenticated documents constituted a prima facie case for registration of the decree; that the husband “although appearing at this hearing by his attorney, had put on no evidence or testimony to refute the evidence of the plaintiff, and that all other matters mentioned in the March 11th order were premature and would not be considered at this time.”
The appellant first contends that making Ford Motor Company a defendant in this case “made this action one other than an action for registration of a foreign judgment against a defendant.” Although the wife’s petition prayed that Ford Motor Company be made a party, the court took no action on that petition and the order appealed from specifically states that all of those matters were premature and would be given further consideration.
Appellant next contends that because he had filed an answer the court was required to conduct a hearing at which the burden was upon the proponent to establish entitlement to registration. The Uniform Act requires only that the foreign judgment be regular on its face and duly authenticated to be subject to registration. The California decree was authenticated in the manner required and was entitled to full faith and credit in this State. The primary purpose of the Uniform Act is to provide a summary judgment procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found, thereby enabling the judgment creditor to obtain relief in an expeditious manner. Purser v. Corpus Christi State Nat’l Bk., 256 Ark. 452, 508 S.W.2d 549 (1974); Nunez v. O.K. Processors, 238 Ark. 429, 382 S.W.2d 384 (1964).
The proffered decree was regular on its face and recited all requisite jurisdictional facts. It could now be attacked only on grounds of fraud in the procurement of it or want of jurisdiction. Rodriguez v. Saucedo, 3 Ark. App. 42, 621 S.W.2d 874 (1981); Elliott, Ex’x. v. Hardcastle, 271 Ark. 90, 607 S.W.2d 381 (1980). These judgments are presumed valid until the contrary is shown. Frazier v. Merrill, 237 Ark. 242, 372 S.W.2d 264 (1963). An answer asserting lack of jurisdiction is not evidence of the fact and the burden of proving it is upon the one attacking the foreign judgment. Miller v. Brown, 170 Ark. 949, 281 S.W. 904 (1926). The order appealed from recites that appellant was present by his attorney and offered no evidence. Clearly under the Uniform Act this decree was entitled to registration in this state.
Ark. Stat. Ann. § 29-808 (Repl. 1979) provides that any defense, set-off or counterclaim which under the law of this state may be asserted by the defendant in an action on a foreign judgment may be raised in the proceedings on the judgment pursuant to the Uniform Act. It is clear from Purser that this section does not permit the relitigation of any issue finally determined in the California court, for those matters are foreclosed. The only defenses still available to the judgment debtor are satisfaction of the judgment in whole or in part, fraud in the procurement, or lack of jurisdiction. The trial court did not act on appellee’s petition for enforcement of monetary awards contained in the decree. Fraud in procuring the decree was not an issue. Appellant was afforded the opportunity to offer evidence in support of his allegation that the California court lacked jurisdiction but offered none. We find no error in the order of the trial court registering the decree.
Affirmed.
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JOHN E. Jennings, Judge.
Mrs. Olga Cusick had an automobile insurance policy issued by the appellee, Progressive Northwestern Insurance Company. On September 20, 1998, Mrs. Cusick and her husband, William, were involved in an automobile accident in which Mr. Cusick was killed and Mrs. Cusick was injured. Progressive filed suit for a declaratory judgment contending that the Cusick’s policy had been canceled effective September 6, 1998. The trial court granted summary judgment in Progressive’s favor and James Shoffey, administrator of the estate of Mr. Cusick, appeals. The sole issue is whether the court’s decision to grant summary judgment was correct. We hold that it was and affirm.
In connection with the motion for summary judgment, Progressive provided the affidavit of Leigh Anne Steinberg, which stated:
I,Leigh Anne Steinberg, having first been duly sworn, state:
1. I am a custodian of records for Progressive Northwestern Insurance Company.
2. On July 20, 1998, Olga Cusick paid a premium of $138.73 which provided coverage through September 1, 1998.
3. Olga Cusick was billed for additional premium, but failed to pay it.
4. On August 25, 1998, Progressive Northwestern mailed cancellation notices to Olga Cusick, to Jerry’s Affordable Insurance, and to the Lienholder, Sequoyah Credit, Inc. These notices specified that coverage would end and the cancellation would take effect on September 6, 1998. The notice to Olga Cusick was mailed to her at 921 Hillside Drive, Fort Smith, AR 72908-7654.
5. Since Olga Cusick had only paid a premium to cover the period through September 1, she received five days of coverage for which she had not paid a premium.
6. After cancellation on September 6, no subsequent premium was received and the policy was not reinstated.
7. In particular, the policy was not in effect on September 20, 1998, the date of the accident.
There is no dispute that Mrs. Cusick’s address was 921 Hillside Drive in Fort Smith. Also attached to the motion were excerpts from a deposition of Mrs. Cusick in which she said that she was unaware that the policy had been canceled until after the accident. Mrs. Cusick testified that she never made a payment to Progressive after July 20, 1998, and to her knowledge no one else did on her behalf. She testified that she never saw a cancellation notice from Progressive but that her memory was “real bad.” A notice of cancellation to Mrs. Cusick dated August 25, 1998, was submitted to the court as appellant’s exhibit 1. The notice provided that cancellation would take effect on September 6 unless payment was received.
Arkansas Code Annotated section 23-89-306 (Repl. 1999) provides: “Proof of mailing of notice of cancellation ... to the named insured at the address shown in the policy shall be sufficient proof of notice.” In Atlanta Casualty Co. v. Swinney, 315 Ark. 565, 868 S.W.2d 501 (1994), the supreme court held that whether the insured received the notice of cancellation was irrelevant under the statute. The court held that the trial judge was correct in granting summary judgment because the insured presented no evidence to challenge the proof of mailing.
Appellant attempts to distinguish Swinney by noting that there an insurance company employee responsible for mailing of notices of cancellation testified that the notice was sent, where as here there is no indication that the affiant, Leigh Anne Steinberg, was the person who actually mailed the notice. While we agree that this is a difference we do not regard it as critical. Mrs. Stein-berg’s affidavit does not state how she acquired the knowledge, but it does state on oath that the cancellation notice was mailed to Mrs. Cusick. But even if Mrs. Steinberg’s knowledge was based on her position as custodian of the records for Progressive, business records are deemed sufficiently trustworthy to be admissible as an exception to the hearsay rule. Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark. App. 169, 705 S.W.2d 897 (1986).
Appellant also notes that in Swinney there was a certification by a postal employee verifying the mailing. Again, we do not regard the lack of such a certification as controlling. Here, as in Swinney, there was unequivocal testimony that the notice of cancellation was sent to Mrs. Cusick. The appellee presented no evidence to contradict the proof of mailing. We conclude that the trial court’s decision was correct.
Affirmed.
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Tom Glaze, Judge.
Appellants brought suit against appellees alleging fraud. The trial court dismissed the action as to all the appellees because appellants failed, in their complaint, to state a cause of action and because their suit was barred by the statute of limitations. Here, on appeal, appellants argue that the trial court erred in dismissing their suit.
In their complaint, appellants stated that in 1968 they farmed three hundred fifty-five acres of land near Keo in Lonoke County. At that time, appellees James McCann, Charles Griffin and Henry Chambers offered to finance appellants’ business if they would farm an additional tract near Hope. Their agreement called for Northwestern Mutual Life Insurance Company (NMLIC), McCann’s principal, and Lonoke Production Credit Association (LPCA), the principal of Griffin and Chambers, to lend appellants enough money to operate both farms in return for land, crop and equipment mortgages on the two farms. In their complaint, appellants stated that appellee Griffin promised them that they would have five years to make their operations profitable. Appellants claim this promise was false and made with fraudulent intent. From 1968 to 1971, appellants further expanded their farming operations and continued to take ever greater loans from NMLIC and LPCA. Appellants claimed in their complaint that these two institutions made the loans to them to render them financially dependent. In 1971, appellee LPCA stopped lending money to the appellants. They claim LPCA did so to drive them into default on their loans, which would enable both LPCA and NMLIC to foreclose on the mortgages they held on appellants’ land, equipment and crops. Appellants assert in their complaint that LPCA and NMLIC forced them to sell the Keo and Hope parcels by threatening to foreclose on the mortgages if they did not sell. Appellants sold the Hope tract to a Mr. Carroll Ferguson, a buyer obtained by LPCA and NMLIC. According to appellants’ complaint, the assumption of their debt by Ferguson was part of LPCA’s and NMLIC’s scheme to defraud them in that: (1) Ferguson was inexperienced as a farmer and not otherwise qualified to assume their sizeable loan; (2) LPCA made loans to Ferguson, who was not within the jurisdiction of limits of LPCA to make loans; (3) LPCA made crop loans to Ferguson for five years when he failed to plant any crops in any of those years and continued to loan Ferguson money even after the loans were not repaid; (4) NMLIC lent money to Ferguson after he failed to repay earlier loans; and (5) LPCA and NMLIC had not permitted appellants to miss even one year’s worth of loan repayments. Appellants also note in their complaint that they were falsely promised that they could retain their Keo farm if they sold the Hope property — in fact, in the summer of 1971, LPCA and NMLIC forced appellants to sell the Keo tract. Appellants further alleged that they discovered the fraudulent scheme in 1980 by searching through public records in Hempstead County. In these records, appellants found (1) that Ferguson never repaid his loans to LPCA or NMLIC and that neither ever brought any legal action to force Ferguson, after he defaulted, to sell the property; (2) that LPCA made improper loans to Ferguson; and (3) farming operations were never conducted on any of the property. Appellants’ claim $9 million in actual and punitive damages as a result of appellees’ fraudulent scheme.
Appellees maintain that the trial court was correct in dismissing the appellants’ suit because their pleadings failed to state a cause of action and because the pertinent statute of limitations had run. While we may not agree with the trial court’s finding that appellants’ pleading failed to state a cause of action, we do agree that appellants’ action is barred by Ark. Stat. Ann. § 37-206 (Repl. 1962), which provides a three-year statute of limi- . tadons for actions sounding in fraud. As a consequence, we need .only address and discuss the statute of limitations issue.
According to appellants’ complaint, the appellees, fraudulent activity began at the latest in January, 1971, when appellees refused to lend them any more money. Appellants commenced this action in November of 1981. Clearly, the appellants’ cause of action is barred by § 37-206 unless the running of the statute of limitations was tolled. Appellants argue that the statute was tolled because appellees committed subsequent fraudulent acts to cover up the existence of their cause of action based on appellees’ representations concerning financing. Affirmative action on the part of the person charged with fraud to conceal a plaintiff’s cause of action will toll the running of the statute of limitations. Walters v. Lewis, 276 Ark. 286, 634 S.W.2d 129 (1982).
Appellants contend that they discovered appellees’ cover-up in late 1979 or early 1980 by searching public records in Hempstead County. In that search, the appellants found mortgages on the property near Hope that had been recorded to Mr. Ferguson from 1971 until 1976. From these records, appellants argue they learned that the appellees had Ferguson purchase appellants’ land near Hope and then used him to cover up appellees’ original scheme to defraud the appellants. Just how this cover-up operated is not made clear in appellants’ argument.
Becáuse the Ferguson mortgages were recorded, ap pellants were on constructive notice of such mortgages as far back as 1971 and no later than 1976 — five years prior to their filing this action. See Ark. Stat. Ann. § 16-114 (Repl. 1979). In Teall v. Schroder, 158 U.S. 172 (1895), the United States Supreme Court held that in fraud actions, for purposes of determining when the statute of limitations begins to run, parties alleging fraud are charged with knowledge of any pertinent real estate conveyances from the time such conveyances are placed in public records. Appellees urge that filing for public record and concealment are mutually exclusive. We agree.
Appellants do not argue that appellees committed any affirmative acts that kept them from examining these public records in Hempstead County before 1980. Had appellants examined those records, they could have made themselves aware as early as 1971 of appellees’ alleged cover-up of their original fraudulent action. Fraud does suspend the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. City National Bank v. Sternberg, 195 Ark. 503, 114 S.W.2d 39 (1938). Appellants’ failure to examine such records in Hempstead County must be attributed to their own lack of reasonable diligence. Because appellants have not shown that appellees committed any affirmative acts to conceal their cause of action from them, the three-year statute of limitations of Ark. Stat. Ann. § 37-206 was not tolled, and appellants’ action is thereby barred.
Affirmed.
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George K. Cracraft, Judge.
Weaver-Bailey Contractors, Inc. appeals from a judgment of the Circuit Court of Izard County holding it liable to Fiske-Carter Construction Company in the amount of $152,500. Appellant contends that the trial court erred in imposing liability on it for that amount under an indemnity agreement existing between the parties. We agree.
None of the facts were in dispute and the case was submitted to the trial court sitting without a jury on a stipulation of facts. Construction Advisors, a firm of general contractors, entered into a construction contract with Travenol Laboratories for the erection of a plant in Ash Flat, Arkansas. Construction Advisors then entered into a subcontract with Fiske-Carter Construction Company which was to perform a portion of the excavation, foundation and concrete work. In connection with that subcontract Fiske-Carter executed a separate agreement in which it agreed to hold Construction Advisors harmless against any claims arising out of, or occasioned by, the work done by Fiske-Carter. This agreement is not involved in this appeal.
Fiske-Carter in turn subcontracted with Weaver-Bailey Contractors for concrete work to be done on the plant. Weaver-Bailey likewise executed an indemnity agreement in favor of Fiske-Carter. Construction Advisors was not party to that agreement.
During the course of the construction an employee of Fiske-Carter was injured and brought an action for negligence against Weaver-Bailey Contractors, Inc. and Construction Advisors jointly and severally. By proper pleadings Construction Advisors sought judgment over from Fiske-Carter under their indemnity agreement for any liability imposed on it in the tort action. Fiske-Carter sought similar relief from Weaver-Bailey under their indemnifying agreement. Both of these claims for relief by way of indemnity were severed from the trial of the action for negligence..
A jury returned a verdict in that case for the injured employee in the amount of $450,000 and apportioned the liability of Construction Advisors at 90% and Weaver-Bailey Contractors at 10%. Judgment was entered accordingly and affirmed on appeal. Construction Advisors and Weaver-Bailey each satisfied the judgment against them in full.
After paying its apportioned amount of the judgment Construction Advisors pursued its claim against Fiske-Carter for reimbursement under their indemnity agreement. A settlement was reached under which Fiske-Carter paid Construction Advisors the sum of $152,500. The obligation of Fiske-Carter to pay that sum under that agreement was not questioned and is not an issue on this appeal.
Fiske-Carter then pursued its claim to obtain reimbursement from Weaver-Bailey Contractors for the $152,500 it had paid Construction Advisors. It based its claim on the following provision of the indemnity agreement existing between them:
Weaver-Bailey Company of North Little Rock, Arkansas hereby agrees to indemnify and save Fiske-Carter Construction Company harmless from and against any and all costs, loss and expense, liability damages, . . . or claims for damages ... on account of any injury to persons... arising or resulting from the work provided for or performed, or from any act, omission, or negligence of Weaver-Bailey Company and its agents or employees in the course of performing on Travenol Ash Flat job.
On the stipulated facts the trial court, sitting without a jury, entered judgment against Weaver-Bailey in the sum of $152,500 with interest and costs. We agree with appellant that these facts do not form a sufficient basis for imposing liability on Weaver-Bailey.
The sole question for our determination is whether the quoted language expresses in clear and unequivocal terms an intent that Weaver-Bailey indemnify Fiske-Carter against losses arising under independent agreements with third parties to such an extent that no other meaning can be ascribed to it. We conclude that it does not.
Where parties to a contract express their intention in clear and unambiguous language in a written instrument, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978). Subject to public policy considerations a party may voluntarily agree to hold another harmless against loss by whatever cause it might be sustained. It is well settled, however, that in contracts of indemnity the losses to be indemnified must be clearly stated and the intent of the indemnitor’s obligation to indemnify against them must be expressed in clear and unequivocal terms and to such an extent that no other meaning can be ascribed. Pickens-Bond, Const. Co. v. N.L.R. Elec. Co., 249 Ark. 389, 459 S.W.2d 549 (1970); Hardeman v. Hass Co., 246 Ark. 559, 439 S.W.2d 281 (1969). The intent to extend the obligation to losses from specific causes need not be in any particular language, but unless this intention is expressed in the plainest words it will not be deemed that the party undertook to indemnify against it. In Hardeman, Pickens-Bond and Southside Water Assoc. v. Hargan Const. Co., 270 Ark. 117, 603 S.W.2d 466 (1980) our courts have held that where the intent is clearly and unequivocally expressed a party may be held liable to indemnify another for losses resulting from its own negligence or that of a third party.
While the contract between Weaver-Bailey and Fiske-Carter may be broad enough to have afforded Fiske-Carter protection against its own negligence or that of Construction Advisors, that is not the protection for which it seeks to recover. Instead it asks this court to go a step further and to impose liability on Weaver-Bailey for its loss based upon an independent indemnity agreement with Construction Ad-visors, to which Weaver-Bailey was neither party nor privy. While the contract does not contain the specific words “directly or indirectly on account of injuries to persons arising or resulting from the work performed or provided, including liabilities imposed by separate indemnity agreements” or like expressions, appellee asks us to find this equivalent clear intent from the broad language of the instrument. It argues that although the liability was in fact a contractual and not a tortious one, that liability would not have been imposed “but for, and therefore, on account of an injury to the person” and therefore “resulted or arose from the work provided or performed.” Although this meaning might be considered a possibility it is not spelled out specifically in the contract and must be read into it.
In reaching our conclusion we are not called upon to determine who prepared the contract or to resort to the rule that it be construed more strictly against that person. We base our conclusion on a determination that Weaver-Bailey’s obligation to indemnify against such losses was not expressed in such clear, unequivocal terms that no other meaning could be ascribed to it and that this clause is lacking in that positive directness which our law regards as essential. As stated in Batson-Cook Company v. Industrial Steel Erectors, 257 Fed.2d 410 (5th Cir. 1958):
The purpose to impose this extraordinary liability on the Indemnitor must be spelled out in unmistakable terms. It cannot come from reading into the general words used from the fullest meaning which lexicography would permit.
Had Fiske-Carter intended to be indemnified for loss resulting from its separate contract of indemnity, it had the power and obligation to require that intention to be stated in clear and unmistakable language. We conclude that it did not do so and that the trial court erred in entering judgment against the appellant under this indemnity agreement. The judgment is therefore reversed.
Reversed and dismissed.
Mayfield and Corbin, JJ., agree. | [
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Josephine Linker Hart, Judge.
Appellants are lot holders in the Millwood Subdivision of Hot Springs. They appeal from a decree of the Garland County Circuit Court that quieted title in Lot 10 of that subdivision in appellees J.E. Mattingly and P.R. Prince (now Mattingly) and concomitantly extinguished the appellants’ right of common usage in the parcel. Appellees Mattingly and Prince acquired their interest in Lot 10 through a quitclaim deed pursuant to a tax sale and by redemption deed issued by the State of Arkansas. On appeal, the appellants argue that the trial court erred in ruling that the common-use restrictions granted to the other lot holders in the Millwood Subdivision were extinguished by the failure of the titleholder of record to pay taxes. We agree and reverse and remand.
On January 29, 1960, the survey and plat for the Millwood Subdivision, along with an amended Bill of Assurance, was filed for record in Garland County. The subdivision is located on Lake Hamilton in Hot Springs. Thirty lots were laid out on the plat. Twenty-nine were designated as residential lots and one, Lot 10, was designated “Park.” Only Lot 10 and four other lots had direct access to Lake Hamilton. However, included in the Amended Bill of Assurance were two provisions that stated:
10. That the lot designated “Park,” as shown on the attached amended plat, shall forever be restricted for the use and benefit of the owners of the lots and blocks of the residences of MILLWOOD SUBDIVISION as a picnic area and boat launching site and recreation area.
11. (a) The provisions as aforesaid shall mn with and bind the land and shall inure to the benefit of and be enforceable by any owner of land included and shown on said amended plat, their respective legal representatives and assigns forever.
In 1964, the owners of Lot 10, W.D. Austin Smith and Dorothy Smith, deeded it to the Millwood Sanitation and Park Company, Inc. The Birchwood Bay Sewer improvement District No. 20 acquired the lot by eminent domain. The improvement district subsequently constructed and maintained a sewage lift station on a portion of the lot.
Appellee J.E. Mattingly, a retired director of the Hot Springs Utility Company, had become familiar with Lot 10 in the course of his duties. He obtained a quitclaim deed from the Birchwood Sewer Improvement District when Lot 10 was auctioned off at a chancery court sale. The deed gave him ownership of the portion of Lot 10 that did not include the sewer treatment plant. Mattingly subsequently paid the back taxes from 1987 until 1994, and he received a redemption deed from the Arkansas Commissioner of Lands in May 1996. He continued to pay the property taxes on Lot 10 from that time forward. Mattingly admitted in the hearing that he purchased Lot 10 without researching the bill of assurance, and he never disputed the validity of the recorded documents that pertained to the Millwood Subdivision.
On November 21, 2005, Mattingly and Prince filed a petition to quiet title in Lot 10. The appellants were named as respondents. After a hearing, the trial judge entered an order that quieted title in Mattingly and Prince, and “extinguished” the appellants’ rights to use the property. The trial judge reasoned that the failure to pay taxes constituted an abandonment of the common-usage restrictions.
The appellants argue that the trial court erred in extinguishing the common-use restrictions regarding Lot 10 of the Millwood Subdivision based upon the failure to pay taxes. They assert that easements are not assessed and taxes are not paid on easements, and therefore, assuming that the tax sale was valid, the purchaser of the property at a tax sale acquires only the interest that was assessed and does not acquire the severed interest. Appellants concede that there is no Arkansas law directly on point, however they cite several cases from foreign jurisdictions, and they urge us to extrapolate from “principles” applied in “parallel situations.” Citing Huffman v. Henderson Co., 184 Ark. 278, 42 S.W.2d 221 (1931), appellants assert that severed timber or mineral interests are not included in a tax sale if the severance occurs prior to the assessment for taxation. Further, they cite Powell v. Coggins, 204 Ark. 739, 164 S.W.2d 891 (1942), for the proposition that if an interest in real estate is not subject to taxation, it cannot be lost as part of a tax deed pertaining to a separate interest in the same property. Appellants concede that the owners of real property are not excused from paying property taxes; they assert, however, that the common-use provisions and the associated easements should not be extinguished by the non-payment of taxes. We agree.
Quiet title actions have traditionally been reviewed de novo as equity actions. City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W.3d 627 (2005). We will not reverse the trial judge’s findings in such actions unless the findings are clearly erroneous. See id. However, a trial court’s conclusions of law are given no deference on appeal. Akins v. Mofield, 355 Ark. 215, 132 S.W.3d 760 (2003).
An easement is defined to be “a liberty, privilege, or advantage, which one man may have in the lands of another without profit.” Schuman v. Stevenson, 215 Ark. 102, 219 S.W.2d 429 (1949). Arkansas law has long recognized that restrictive covenants can create property interests that run with the land. See, e.g., City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333, 134 S.W.2d 582 (1939). The general rule is that a person who takes title to land with notice that it is subject to an agreement restricting its use will not be permitted to violate the restrictions. See Rickman v. Mobbs, 253 Ark. 969, 490 S.W.2d 129 (1973); see also Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984); Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46 (1940). If a bill of assurance is properly filed for record, it must be enforced by the courts. Dillingham v. Kahn, 188 Ark. 759, 67 S.W.2d 735 (1934).
We find persuasive appellants’ argument that the easement created in favor of the lot-holders in the Millwood Subdivision is in the nature of a severed interest that cannot be levied against and, therefore, cannot be extinguished in a tax sale. We therefore hold that the interest that appellees acquired is subject to the same bill of assurance that binds the others, replete with its benefits and liabilities. Accordingly, the trial court is reversed, and this case is remanded for entry of an order consistent with this opinion.
Reversed and remanded.
Griffen and Bird, JJ., agree.
We are not asked in this appeal to pass on the validity of either conveyance. | [
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Melvin Mayfield, Chief Judge.
The Southwestern Bell Telephone Company brought a suit to condemn a strip of land across the appellants’ property for the placement of buried telephone communication cables.
During the trial, a witness for appellants testified that he was a realtor and real estate appraiser. He said he had been in that business since 1969, was a certified FHA fee appraiser, and the last year was state director of the National Association of Independent Fee Appraisers.
The witness testified that he did work for mortgage corporations, community groups, housing authorities, Merrill Lynch, the State of Arkansas, Commercial National Bank, numerous attorneys, and individual landowners. His work included appraisal of raw land, residential work, farm, industrial, and commercial.
It was his evidence that the ownership of property involved a package of rights and any time you sell, lose, or disregard one of those rights, you affect the value of the property. For example, he said, if you take away the right to have access to your property, you decrease its value. He said there are times when easements for underground placement of utilities affect the value of property and to his knowledge, from time to time, they have.
He said the 173 acres involved in this case had a value of $259,500.00 prior to the taking of the telephone company’s easement and a value of $253,480.00 after the taking, for a difference of $26,020.00. He testified about a number of comparable sales used in determining these values.
On cross-examination, he was asked, “Do you have personal knowledge of, or know of, a single instance where the transmission line or a cable that was installed 40 inches below the ground had any effect on the market value of property?” His answer was, “I have no personal knowledge of a specific piece of property being sold for less after an easement, although I know of one that can’t be sold after an easement.” He also said he did have personal knowledge of instances where underground easements, such as Texas Eastern or Arkla Gas, had affected the sale of land.
At this point the court and attorneys retired to chambers and, after discussion, the court held that the witness’ testimony that the land had sustained damages in the amount of $26,020.00 did not have a sound and reasonable basis and could not be considered by the jury.
On appeal, the appellee relies upon the case of Arkansas-Missouri Power Company v. Sain, 262 Ark. 326, 556 S.W.2d 441 (1977). In that case, the appellant had condemned seven acres through a farm for an easement for an electrical transmission line. The opinion states that “an expert witness was called and testified that the difference between the value of the farm before and after the condemnation was $27,197.00.” Later on, the opinion states:
The expert’s opinion testimony, however, was not competent evidence and should have been stricken. The expert on cross-examination admitted that he could not think of a single instance where a transmission line had any effect on the market value of the property. Therefore, his testimony that the damages amounted to some $27,000 did not have a sound and reasonable basis. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W.2d 436 (1963).
We think the facts here distinguish this case from Sain. Here the witness testified that to his knowledge the underground placement of utilities had affected the value of the property; that he knew of a piece of property that could not be sold after an easement; and that he had personal knowledge of instances where underground easements such as Texas Eastern or Arkla Gas had affected the sale of land.
It has certainly been the rule for many years that the testimony of an expert witness should be stricken if cross-examination demonstrates that he has no reasonable basis for his opinion, Ark. State Highway Comm. v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966), but that case also holds that expert value testimony is competent even though based upon hearsay. It is also the rule that no two tracts of land are identical and that the court must allow reasonable latitude in evaluating the comparability of sales. Ark. State Highway Comm. v. Clark, 247 Ark. 165, 444 S. W.2d 702 (1969). And in State Highway Comm’n v. 1st Pyramid Life Ins. Co., 269 Ark. 278, 602 S.W.2d 609 (1980), the court said: “The opinion testimony of an expert witness can be considered, even though his opinion is not based entirely on comparable transactions. 5 Nichols on Eminent Domain, 253 § 18.42[1].”
Thus, in the case at bar, the witness’ testimony should not have been stricken. It may be that the cross-examination showed that he had a weak or questionable basis for his opinion, but this went to the weight given his testimony, Ark. State Highway Comm. v. Russell, supra, and did not mean that his testimony should be stricken.
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Donald L. Corbin, Judge.
This case involves an appeal of a judgment notwithstanding the verdict or a judgment n.o.v. Appellants, Allen and Chris Williams, brought suit against appellees, Charles Sloan, Inc. and Charles Sloan, individually, for breach of contract. Appellants sought $92,000 for breach of express and implied warranties, $15,000 damages for misrepresentations, and $50,000 punitive damages. The case went to a jury which found in favor of appellants and awarded them $28,000. Appellees submitted a motion for a judgment n.o.v. arguing that there was no substantial evidence of the proper measure of damages. The motion was granted by the court on the ground that there was not substantial evidence to support the jury’s verdict. Appellants appeal the judgment n.o.v. and assert that the jury’s verdict was supported by substantial evidence. We reverse and remand.
Appellants entered into a contract with appellees for the sale of a new house. The house was to be constructed by appellees and completed by December of 1977. The house was not ready for occupancy at that time. Appellants, in reliance on appellees’ representations, had informed their landlord that they would be moving out of their home. Although construction was not completed, appellants moved into the house sometime around the end of December. Before the sale of the house was closed, appellants made a list of defects which they wanted appellees to fix and appellee signed this list at the time of the closing. In October of 1979 appellants filed this suit against appellees alleging that the listed defects and other latent defects had not been corrected by appellees.
Appellants presented testimony indicating that there were numerous defects in the construction of the house. Appellants testified that, among other things, the foundation was “wavy”, there were hills and valleys in the floors, the walls and ceiling were cracking in places, the cabinets in the kitchen were coming off the walls, and there were cracks in the porch and driveway. The only evidence that appellant presented as to actual damages was the testimony of an appraiser who said that, in 1978, the difference in market value of the house as constructed with defects and the house as contracted for was $6,500. The appraiser also testified that it would cost more than $6,500 to repair the defects in the house. Specifically, James T. Johnson, the appraiser testified as follows: “I estimated that the house was worth $6,500 less than its fair market value in 1978. But I am not of the opinion that plaintiffs (appellants here) could spend $6,500 on the house and clear up the defects.” The appraiser testified that the difference in market value at the time of trial was $8,150. This was the only evidence presented by appellants pertaining to actual damages. Appellees presented no evidence on the cost of repairing the defects nor on the difference in market value.
There are two methods of determining damages where the breach of a construction contract results in incomplete or defective construction. The Restatement (Second) of Contracts, § 348(2) (1979), defines these methods as follows:
§ 348. Alternatives to Loss in Value of Performance
(2) If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on
(a) the diminution in the market price of the property caused by the breach, or
(b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him.
There are cases which indicate that the preferred measure of damages in breach of construction contract cases is cost of repairs, except in those cases where cost of repairs is unreasonable. The classic case is Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 129 N.E. 889 (1921). There the buyer requested “Reading” pipe and another brand of pipe was used in the building. The court found that it would be unreasonable to tear down the building to install “Reading” pipe when the pipe used was of comparable quality. In that case the court allowed the difference in market value measure of damages.
The question in this case is whether the judgment n.o.v. can stand on the basis that appellants failed to present evidence of actual estimates of the cost of repairs. We find that the judgment n.o.v. cannot stand on that basis.
Appellees are arguing that appellants should not be permitted to recover damages computed by the difference in market value measure because appellants did not put on testimony estimating the exact cost of repairing the defects. However, we find that the courts’ preference for the cost of repairs measure and the economic waste exception are devices to avoid the situation where the contractor is required to tear down a structure, or otherwise commit economic waste, to correct a defect that does not detract from the market value as much as it would cost to repair it. The preference for the cost of repairs measure and the exception do not limit the injured buyer to only one measure of damages. The court would be correct in applying the cost of repairs measure to determine the damages where the injured buyer asserts damages based on the difference in market value and the contractor presents evidence that the cost of repairing the defects would be less than the difference in market value. This was not done in the case at bar. In this case the injured buyers, appellants, presented evidence that the contract had been breached, that they had suffered damages as a result of that breach, and asserted, through the appraiser’s testimony, that it would cost more to repair the defects than it would cost to compensate them for the difference in market value of the house as contracted for and with defects. Appellees did not present evidence at the trial that cost of repairs was the correct measure of damages. Instead, appellees moved for a judgment n.o.v. following the presentation of evidence on the grounds that the proper measure of damages had not been used. Appellants presented evidence that the contract had been breached and utilized the difference in market value method of assessing the damages suffered because of the breach. If appellees believed that the difference in market value was not the proper measure of damages they had an opportunity to present evidence of cost of repairs. Appellees did not present evidence that appellants were not correct in their assertion that the difference in market value was the correct measure of damages in this case. Therefore, we find that appellees were not entitled to a judgment notwithstanding the verdict.
The jury awarded appellants damages of $28,000. We find that this amount was not supported by the evidence. The evidence presented at trial supported an award of $6,500, which is the difference in the market value in 1978, the time of the breach, between the house as constructed with defects and the house constructed in accordance with the contract. Implicit in ARCP Rule 59 is the trial court’s power to order a new trial where the damages are excessive, unless the party in whose favor the damages were awarded agrees and consents to a remittitur. While this power is not specifically expressed in the rule, the court has this inherent authority. Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941).
For the reasons stated above we reverse the trial court’s judgment n.o.v. and remand with instructions to reduce the jury’s verdict to conform to the evidence, if appellants agree. If appellants do not agree to a remittitur we remand for a new trial.
Reversed and remanded.
Cracraft, C.J., and Cloninger, J., agree. | [
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Donald L. Corbin, Judge.
Appellant, John LeFlore, was charged and convicted of committing the offenses of burglary and theft of property by a Sebastian County jury and sentenced to concurrent terms of five years with three years suspended. We find no merit to appellant’s six points for reversal and affirm.
Appellant first contends that the trial court erroneously permitted the introduction of his confession into evidence. The record reflects that between April 19,1984, and April 23,1984, a bank bag containing $4,675.20 was removed from a safe in the municipal clerk’s office of the Sebastian County Courthouse. Appellant was a maintenance worker for Sebastian County and had been so employed for approximately two years. Appellant was subsequently questioned about the burglary and theft by the police and gave a detailed confession. He testified at his trial to essentially the same facts as were contained in his confession. Appellant argues that his confession was not voluntary and that the trial court erred in denying his motion to suppress the confession.
Detective Larry Hammond testified that he read the Miranda warning to appellant and that appellant signed the Waiver of Rights form before being interviewed. Appellant did not have any questions, did not appear to be under the influence of alcohol or drugs, did not ask for an attorney and did not ask the officers to cease their questioning of him. Appellant initially denied any participation in the crime. Hammond suggested that appellant take a polygraph examination to which appellant agreed. Appellant was advised of his rights prior to the exam. Appellant dictated a three-page statement which Hammond typed after appellant was informed of the results of the polygraph examination. Hammond testified that nothing was offered appellant in exchange for submitting to the polygraph examination and that appellant was not threatened or coerced to give a statement. Hammond estimated that appellant was in custody for approximately five hours but was not questioned continuously during this period of time.
Appellant testified that he was advised on Monday by Bobby Collins, an employee of Sebastian County, that he should return to the courthouse. Upon his arrival there at approximately 10:00 a.m., he was informed that there was money missing and detectives wanted to interview him. Appellant was advised of his rights and he denied any involvement. He was told he could go to lunch and appellant went to the snack bar in the courthouse. He was subsequently told that the detectives wanted to interview him and the questioning began again at approximately 1:00 p.m. Appellant stated that Detective Chapman told appellant that it would be better for him to admit to the crime and produce the money and checks. He was not offered a specific deal. A polygraph examination was mentioned and appellant agreed to take it. He was informed following the test that the test revealed that appellant was not telling the truth. Appellant gave a statement and did not recall being advised of his rights again. He stated that he admitted to committing the offense because he knew that the officers had already interviewed his wife and he did not want her brought into it. Appellant admitted that he never asked for an attorney or for the questioning to stop and was not threatened or beaten. Appellant testified that he had read his statement and that it was fairly accurate.
Appellant LeFlore stated that he had been drinking all weekend prior to the questioning and that he was a diabetic. He had an 11th grade education. He further stated that if he drank, the insulin did not metabolize the liquor and that he was still feeling the effects of the three-day drunk on the Monday he was questioned. Appellant testified that in this condition he was not clear-headed and was more susceptible to pressure. He admitted that he had not drank in the twelve hours preceding his questioning.
Bobby Collins testified that he spoke to appellant the day appellant was questioned about the theft. He stated that appellant appeared clear-headed to him and did not smell of alcohol.
It is well settled that it is the duty of the state to prove by a preponderance of the evidence that a custodial statement was voluntarily given. Richardson v. State, 274 Ark. 473, 625 S. W.2d 504 (1981). In ascertaining on appeal the voluntariness of a confession, we make an independent determination based upon the totality of the circumstances, resolving all doubts in favor of individual rights and constitutional safeguards, and, after doing so, we affirm the trial court’s finding unless clearly against the preponderance of the evidence. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981).
Under the totality of the circumstances existing in this case, we are unable to say that the state has failed to meet its burden of proof by showing through a preponderance of the evidence that appellant’s statement was not voluntarily made. Therefore, we hold the trial court’s denial of appellant’s motion to suppress and the introduction of the statement did not constitute error.
Appellant’s second assignment of error concerns the admission of testimony by a deputy municipal clerk as to the amount taken from the safe. He argues that the testimony of Susan Pierce and the records of the municipal court clerk’s office “indicate a lack of trustworthiness” and should not have been admitted. The witness testified that she was an employee in the clerk’s office at the time the money was stolen and that she and another clerk had closed the office on the Thursday night before Good Friday. She further testified that when they arrived for work on the following Monday, they noticed that $4,675.20 was missing from the safe. Her tabulation of that amount came from the record of receipts regularly kept by the clerk’s office in its daily course of business. She stated that she made most of the entries she referred to and that she had equal access to the records as did the clerk or custodian.
Appellant contends that the admission of this evidence was not harmless error and that his conviction should be reversed and a new trial held on this basis. We do not agree. Ark. Unif. R. Evid. 803(8) provides the following hearsay exception even though the declarant is available as a witness: It is evident in the case at bar that the witness’s testimony was clearly admissible pursuant to Rule 803(8) and the trial court did not err in admitting this evidence.
To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.
Appellant contends on appeal that there was insufficient evidence to sustain his conviction of burglary. A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977). The essence of appellant’s argument here is that the state failed to prove appellant either entered or remained unlawfully in the courthouse. We find no merit to this contention.
The record reflects that on April 19 and 20, 1984, maintenance work was done at the courthouse. The maintenance supervisor, Bobby Collins, testified that appellant and two trustees painted the municipal clerk’s office and completed the work on Saturday. At approximately 1:00 a.m. on Sunday, appellant went to Collins’ house and asked to borrow his key to retrieve some tools appellant had left in the office. Collins stated that appellant returned in about ten or fifteen minutes.
From the statement appellant gave the police and from his testimony at trial, it is clear that appellant drove to the courthouse early Sunday morning and opened the safe. He placed the bank bag under his shirt and retrieved his tools in the maintenance office. He subsequently lost the bank bag after spending approximately $50 contained in it. On cross-examination, appellant stated that he knew taking the money was wrong and that he originally borrowed the keys to retrieve his tools but had been thinking about the money as well.
He argues that his entry into the municipal clerk’s office was not unlawful because he had been given the keys and the very nature of the work he performed required that it be lawful for him to make such an entry. “Enter or remain unlawfully” means to enter or remain in or upon premises when not licensed or privileged to do so. Ark. Stat. Ann. § 41-2001(3) (Repl. 1977). We agree with appellee’s statement that appellant’s license or privilege to go into one section of the courthouse for the purpose of retrieving his tools did not authorize him to go into other unauthorized areas for the purpose of committing theft. His license or privilege ended when he completed or failed to complete the purpose for which his license was granted to enter the maintenance office. See Sims v. State, 272 Ark. 308, 613 S.W.2d 820 (1981). We hold that there is substantial evidence to support appellant’s burglary conviction.
Appellant also alleges error in the trial court’s refusal to instruct the jury on the lesser included offense of criminal trespass. He contends that since he raised the affirmative defense of intoxication, it was within the power of the jury to find that he was so intoxicated that he could not form the requisite intent to commit burglary. A person commits criminal trespass if he purposely enters or remains unlawfully in or upon a vehicle or the premises of another person. Ark. Stat. Ann. § 41-2004 (Repl. 1977).
It is reversible error to refuse to give a correct instruction on a lesser included offense and its punishment when there is testimony furnishing a reasonable basis on which the accused may be found guilty of the lesser offense. Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981). Where there is no evidence tending to disprove one of the elements of the larger offense the court is not required to instruct on the lesser one because absent such evidence there is no reasonable basis for finding an accused guilty of the lesser offense. In this type of case the jury must find the defendant guilty either of the offense charged or nothing. Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982). Where, however, there is the slightest evidence tending to disprove one of the elements of the larger offense, it is error to refuse to give an instruction on the lesser included one. Brewer v. State, 111 Ark. 254, 608 S.W.2d 363 (1980).
We conclude that it was not prejudicial error by the court in the case at bar to refuse to give the proffered instruction on criminal trespass in view of appellant’s admission on the stand and in his statement that he intended to go to the courthouse to steal the money before he actually got there. See also Robinson v. State, 7 Ark. App. 209, 646 S.W.2d 714 (1983). .
Appellant argues that the state failed to prove that the value of the property taken was in excess of $200. He contends that because the state did not prove which portion of the $4,675.20 in receipts taken by him was cash as opposed to checks, he is entitled to a conviction of misdemeanor theft only. This argument is also without merit. It is well settled that the state has the burden of proving value. Robinson v. State, 10 Ark. App. 423, 664 S.W.2d 890 (1984), citing Lee v. State, 264 Ark. 384, 571 S.W.2d 603 (1978). Furthermore, value testimony must be based on facts in order to constitute substantial evidence, and testimony based on conclusions or hearsay is not substantial evidence. Hughes v. State, 3 Ark. App. 275, 625 S.W.2d 547 (1981). “Value” means in the case of written instruments, other than those having a readily ascertainable market value, the greatest amount of economic loss that the owner might reasonably suffer by virtue of the loss of the written instrument, if the written instrument is other than evidence of a debt. Ark. Stat. Ann. §41-2201(1 l)(c)(ii) (Repl. 1977).
In the case at bar the record reflects that appellant was charged and convicted of committing the offense of class B felony theft of property. Theft of property is a class B felony if the value of the property is $2,500 or more. Ark. Stat. Ann. § 41-2203(2)(a)(i) (Supp. 1985). As previously noted appellant argues that the state failed to prove the value of the property taken was in excess of $200. Theft of property is a class C felony where the property is valued at more than $200 but less than $2,500. Ark. Stat. Ann. § 41-2203(2)(b)(i) (Supp. 1985). Appellant’s argument is couched in terms of class C felony theft of property and is addressed by appellee on that basis as well. We will, however, address this assignment of error on the basis of whether or not the state proved the value of the property taken was in excess of $2,500.
Appellant does not contest that $4,675.20 in receipts was actually taken by him but asserts that the lack of certainty as to the type of receipts making up the $4,675.20 entitled him to a misdemeanor theft conviction instead of felony theft conviction. Susan Pierce, the deputy municipal clerk, testified from the daily journal sheets of her office which were entered in evidence that $4,675.20 was received on April 19,1984. She further stated that of that amount, $842.45 was collected in fees for the state and $3,632.75 was collected in fees for the city. Pierce was unable to state from the daily journal sheets how much of the total amount was made up of cash or checks. She also testified that the money had not been recovered or returned to her office and that the checks were never made good.
We believe the above constitutes substantial evidence of value in excess of $2,500 and we cannot say that the state failed to meet its burden of proof in this regard. In addition, we agree with appellee that although checks do not have a readily ascertainable market value, they can be valued for purposes of the theft of property statute under Ark. Stat. Ann. § 41-2201(1 l)(c)(ii).
Finally, appellant alleges as error the trial court’s refusal to instruct the jury on the lesser included offense of misdemeanor theft of property. Theft of property of less than $200 value is a class A misdemeanor. Ark. Stat. Ann. § 41-2203(2)(d) (Supp. 1985). The evidence adduced established that the municipal clerk’s office was deprived of property valued at $4,675.20. There was no evidence tending to disprove one of the elements of class B felony theft of property and the trial court properly refused to instruct the jury on misdemeanor theft of property. Accordingly, we find no merit to this argument.
Affirmed.
Cracraft, C.J., and Glaze, J., agree. | [
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Lawson Cloninger, Judge.
This is an appeal by the employer, Sanyo Manufacturing, from a determination of the Arkansas Board of Review that thirteen claimants are eligible for unemployment benefits. All of the thirteen claimants were placed on temporary layoff by appellant when they were medically restricted from performing their duties at work. All of the claimants’ restrictions were for specific duties, and they were physically able to perform other duties. The claimants testified that they hoped to be recalled by Sanyo when jobs that they were able to perform became available. Appellant argues, first, that since appellees planned to return to work at Sanyo, they were not available for work as required by Ark. Stat. Ann. § 81-1105(c) (Repl. 1976). Appellant also argues that the Arkansas Appeal Tribunal erred by not giving it the right to cross-examine the doctors who wrote the medical restrictions for the claimants. We disagree with appellant’s arguments and affirm.
In its first argument, appellant relies on the case of Loftin v. Daniels, 268 Ark. 611, 594 S.W.2d 578 (Ark. App. 1980). In that case we held that in a situation where a claimant and his employer hold a mutual expectation that the claimant will return to his job, then he is not eligible for unemployment benefits. Appellant argues that a mutual expectation existed here since all of the claimants testified that they did not intend to sever their relationships with appellant, since the claimants’ seniority continued to accrue and medical insurance was paid by appellant while they were on layoff, and since all of the claimants had the right to back pay if appellant wrongfully neglected to call them back.
In Loftin, supra, the claimants were employees of a Head-start Program and were laid off without pay for the summer recess. A tie of expectation existed because the employees were subject to being called to attend workshops during the summer recess, the employer assumed the claimants were still a part of the staff, and the claimants and the employer expected the employees to return to work on a specific date. This court later decided Haywood v. Everett, 5 Ark. App. 140, 633 S.W.2d 395 (1982). That case also involved employees of a Headstart Program who had been laid off for the summer. However, unlike the employees in Loftin, these claimants were not expected to attend any summer workshops and the employer refused to say whether the claimants would be able to return at the end of the summer recess. In Haywood, we said that the claimants had no more than a hope of employment, and stated that the ruling in Loftin should be confined to the facts of that case.
Like the employees in Haywood, the claimants in this case had no more than a hope of future employment with appellant. There is no evidence in the record that appellant informed the claimants of when, or if ever, they would be called back to work. All of the claimants testified that they expected or hoped to be called back to work by appellant, but that they had also looked for other work while laid off.
Statutes are to be construed with reference to the public policy which they are designed to accomplish. The public policy of the Employment Security Act, Ark. Stat. Ann. § 81-1101 et seq. (Repl. 1976) is to set aside reserves to be used for the benefit of persons who are unemployed through no fault of their own, Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). There is no indication in the record that these claimants were out of work due to any fault on their part. The evidence supports a finding that they became physically unable to perform their assigned tasks, and that appellant laid them off because there were no jobs available at the time within their abilities.
Appellant next argues that it was denied due process since it did not have an opportunity to confront and cross-examine adverse witnesses at the evidentiary hearings. Appellant argues that since the doctors who signed the work restrictions were not at the hearings, the statements were hearsay and they were denied an opportunity to confront them and cross-examine them.
There are two requirements which must be met before the admission of hearsay evidence will not violate a party’s right to confront and cross-examine adverse witnesses: (1) a party must have an opportunity to know what evidence is being considered; and (2) a party must have the right to a rehearing for the purpose of giving that party the opportunity to subpoena and cross-examine adverse witnesses, Swan v. Stiles, 16 Ark. App. 27, 696 S.W.2d 765 (1985). In this case appellant knew what evidence was being considered because it introduced some of the statements itself at the first hearing before the Tribunal. Furthermore, these are the same statements that appellant used when it placed the claimants on restricted layoff and they were placed in the company’s records. At the second hearing before the Tribunal appellant objected to the statements being introduced into evidence since they were hearsay; however, appellant did not request either a continuance or a remand in order to subpoena the doctors. Swan v. Stiles, supra.
At the hearings, appellant introduced several charts it had drawn up reflecting the increased use of medical restrictions by its employees. Appellant argues that these statistics are evidence of the fact that employees are requesting restrictions in order to avoid undesirable work assignments. We fail to see how this is relevant to the issue under consideration. Appellant urges that the doctor’s testimony would have revealed that the claimants’ medical restrictions were obtained for the purpose of avoiding less desirable work assignments. Appellant, at the second hearings, had full knowledge of what evidence was being considered and had an opportunity to subpoena witnesses for cross-examination or request a continuance. It did neither.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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George K. Cracraft, Chief Judge.
The appellants are landowners whose residences were located adjacent to and in the vicinity of a sanitary landfill operated by the appellees. The appellants brought this action alleging that the appellees’ collection and burial of garbage and industrial and hazardous waste, and use of heavy equipment, created obnoxious odors and excessive noises which interfered with the ordinary use of their properties. Appellants also alleged that they were damaged by diminution of property values and by the loss of use of their properties. They alleged that the operation of the landfill was both a public and private nuisance and prayed that its operation be abated by injunction, and for damages for the diminution of their property values. The appellees answered, denying that any hazardous waste had been placed on the property, asserting that it was in full compliance with all rules and regulations of the Department of Pollution Control and Ecology, that it operated under a permit issued by the agency, and denying all other allegations of the complaint. At the conclusion of the five day trial the chancellor filed a written opinion in which he discussed the evidence presented by both sides and found all of the controverted issues in favor of appellees. The complaint was dismissed on the chancellor’s conclusion that the operation of the landfill did not constitute a public or private nuisance.
Appellants bring this appeal contending that the chancellor erred in not finding the operation to be a public or private nuisance, in refusing introduction of evidence of an intended expansion of the landfill, and in refusing to award damages. We find no error.
At the trial the appellants offered evidence that the operation of the landfill was within an exclusively residential area and caused obnoxious odors, excessive noises, littering of the highways, and the creation of a traffic hazard. There was testimony that a change in land contour resulted in an increase in run-off of surface water onto their lands and that the burial of hazardous waste, and failure to adequately control the burial, contributed to appellants’ discomfort and created a fear that their water supply would become contaminated by decaying waste. The appellees’ witnesses testified that the landfill was operated under well-controlled conditions and regulations, did not generate offensive odors, litter, noise, or undue increases in traffic, and that the conditions of which the appellants complained did not exist and were not likely to occur in the future as a result of the operation of the landfill. There was also evidence that the opinions of appellants’ experts as to the effects of the landfill on appellants’ property had no reasonable basis. There was testimony that the area was a typical rural community, consisting of scattered private dwellings, with interspersed commercial business enterprises and two operating gravel pits.
A nuisance is defined as conduct by one landowner which unreasonably or unlawfully interferes with the use and enjoyment of the lands of another and includes conduct on property which disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Equity will enjoin the conduct which culminates in a private or public nuisance where the resulting injury to the nearby property and residents, or to the public, is certain, substantial, and beyond speculation and conjecture. The distinction between private and public nuisance is simply the extent of the injury, i.e. the number of the persons suffering the effects of the nuisance. City of Newport v. Emery, 262 Ark. 591, 559 S.W.2d 707 (1977); Ark. Release Guidance Foundation v. Needier, 252 Ark. 194, 477 S.W.2d 821 (1972).
In his thirty page memorandum the chancellor found (with one exception to be hereinafter discussed) all of the controverted allegations in favor of the appellees and concluded that the operation of the landfill did not constitute a nuisance. While chancery cases are reviewed de novo on the record, the findings of a chancellor will not be overturned unless they are found to be clearly against a preponderance of the evidence. ARCP Rule 52(a). Since the question of a preponderance of the evidence turns largely on the credibility of the witnesses, this court defers to the superior position of the chancellor to determine the credibility of the witnesses and the weight to be given their testimony. Bohannon v. Bohannon, 12 Ark. 296, 675 S.W.2d 850 (1984).
The trial of this case lasted more than five days, during which over forty lay and expert witnesses testified and numerous documents and exhibits were introduced. A recitation of all of the conflicting evidence would unduly lengthen this opinion. Suffice it to say that from our review of the record we cannot conclude that the chancellor’s finding that the operation of the landfill did not constitute either a public or private nuisance is clearly against a preponderance of the evidence.
During the trial, some of the appellants testified that the operation of the landfill had diminished the value of their properties and offered expert testimony as to the extent of that diminution. While the appellees offered testimony that the landfill had no effect upon land values and that the expert’s opinion as to the extent of the diminution had no reasonable basis in fact, the chancellor made no finding on the issue of diminution of values. The appellants contend that absent such a finding the chancellor’s conclusion that there was no nuisance is clearly erroneous. Appellants argue that even though the chancellor found on conflicting evidence that the activity conducted by appellees did not interfere with the use and enjoyment of their property, the depreciation in property value standing alone makes the activity constitute a nuisance which should be abated and forms the basis for an award of damages. We do not agree.
The chancellor found that the appellees’ operation of the landfill in a rural setting, under a permit issued pursuant to law, was not an illegal activity and hence not a nuisance per se. He further found that the landfill was operated under controlled conditions which did not result in an unreasonable interference with the peaceful use and quiet enjoyment of neighboring lands and was therefore neither a public or private nuisance. It is well settled that a landowner may make such use of his property as he chooses so long as he does not unlawfully or unreasonably interfere with or harm his neighbor. It is only the unreasonable use or conduct by one landowner which results in unwarranted interference with his neighbor which constitutes a nuisance and is subject to abatement. If the lawful use of one’s property does not create a private or public nuisance, that use cannot be enjoined merely because it renders a neighboring property less valuable. If there is no public or private nuisance created by the use of the property, no recovery of damages or relief by abatement is warranted for the diminution of value of property by the lawful and reasonable use of the lands of a neighbor. The harm or damage which becomes actionable or subject to abatement is that which results from an illegal or unreasonable activity which becomes a nuisance. Winget v. Winn-Dixie Stores, Inc., 242 S.C. 152, 130 S.E.2d 363 (1963); Bader v. Iowa Metropolitan Sewer Co., 178 N.W.2d 305 (Iowa 1970); Continental Oil Co. v. City of Wichita Falls, 42 S.W.2d 236 (Tex. Com. App. 1931); City of Amarillo v. Maddox, 297 S.W.2d 750 (Tex. Civ. App. 1956); 66 C.J.S. Nuisances § 19 at 771 (1950).
The appellants argue that Mitchell v. Bearden, 255 Ark. 888, 503 S.W.2d 904 (1974) compels an opposite conclusion. The opinion in Mitchell, and those in Blair v. Yancy, 229 Ark. 745, 318 S.W.2d 589 (1958) and Powellv. Taylor, 222 Ark. 896, 263 S. W.2d 906 (1954) which preceded it, make it clear that our courts now treat mortuaries which intrude into exclusively residential areas as an exception to the general rule that in order to constitute a nuisance the intrusion must result in physical harm (as distinguished from unfounded fear of harm) which must be proven to be certain, substantial, and beyond speculation and conjecture. In Powell, the court stated the decisions on which it relied were not based on a finding that the operation of a funeral parlor within an exclusively residential area was physically offensive, but on the premise that its continued suggestion of death and dead bodies tends to destroy the comfort and repose sought in home ownership. In Mitchell and Powell, it was the nature and location of the business rather than the manner in which it was operated that constituted the nuisance. Blair makes it clear that the mortuary exception to the general rule is restricted to exclusively residential areas and does not extend to rural or residential areas which are in a state of transition to a business district. All three cases limit the exception to mortuaries.
Here the activity objected to was the operation of a sanitary landfill rather than a mortuary. Although the manner of operation of an otherwise legal activity within a predominately residential area can constitute an abatable nuisance, the chancellor expressly found that the landfill was not operated in such a manner as to cause unreasonable harm to adjacent owners and that the area in which it was located was a rural one “with farm lands and scattered housing.”
The appellants next contend that the chancellor erred in refusing to accept evidence of a proposed expansion of the landfill across the highway from its present location, which they argue would have brought the landfill operation even closer to the residential property of some of the appellants. We find no merit in this contention for several reasons. The issue of the proposed expansion of the landfill was not raised as an issue in any of the pleadings. ARCP Rule 15 permits amendments to pleadings and amendments to conform to the proof, but that rule vests broad discretion in the trial court to allow or refuse to allow such amendments and the exercise of that discretion will be sustained unless it is manifestly abused. Kay v. Economy Fire & Casualty Co., 284 Ark. 11, 678 S.W.2d 365 (1984). Appellants have not pointed out in their argument and we have not found in the abstract that a proffer of the evidence sought to be introduced was made. Unif. R. Evid. 103(a)(2) provides that error may not be predicated upon a ruling which excludes evidence where the substance of the evidence sought to be introduced is not made known to the court by offer or apparent from the context in which the questions were asked.
A contemplated move and expansion of the landfill is an event to occur in the future. Abatement by injunction is permissible only when a preponderance of the testimony shows that the activity is certain to be a nuisance. City of Newport v. Emery, supra; Kimmons v. Benson, 220 Ark. 299, 247 S.W.2d 468 (1952). Without knowing what the evidence would have disclosed we cannot determine whether it might have established that the activity was certain to be a nuisance or that the effects of such a move were not based upon speculation and conjecture.
The appellants finally contend that the chancellor erred in refusing to award damages to the adjacent landowners for the continued operation of the landfill by balancing the equities. In view of our affirmance of the chancellor’s determination that the activities did not constitute a nuisance, we do not address this issue. Damages could be awarded only in the event that the activity was determined to constitute a nuisance.
Affirmed.
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Washington County Circuit Court. Appellants, Alfred and Helen Chadwell, appeal from an order granting summary judgment in favor of appellees, E.T. Pannell and the City of Prairie Grove. We reverse and remand.
Appellants purchased three lots in the Border Street Addition of Prairie Grove from appellee Pannell. Appellants contend that Pannell, acting both as owner/developer of the subdivision and as city building inspector, promised to complete improvements including installation of water and sewer lines, construction of paved streets and guttering, and construction of a cul-de-sac in conjunction with the contract and in exchange for their promise to purchase. The only writing evidencing the contract is the deed, executed in April of 1980, which makes no reference to the alleged promise to make the specified improvements. Appellants built a house and another structure on the property, after having obtained all necessary building permits from appellee Pannell, the city building inspector at the time. Appellants initiated this action in 1985 because the improvements were never made. Appellees set up both the statute of limitations and the statute of frauds as affirmative defenses and moved for summary judgment. By order filed April 19, 1988, the trial court granted summary judgment on both defenses. From that order comes this appeal. For reversal appellant raises the following points:
> — <
THE TRIAL COURT ERRED IN GRANTING APPEL-LEES’ MOTIONS FOR SUMMARY JUDGMENT BASED UPON FINDING APPELLANTS’ CLAIMS WERE BARRED BY THE STATUTE OF FRAUDS.
II.
THE TRIAL COURT ERRED IN GRANTING APPEL-LEES’ MOTIONS FOR SUMMARY JUDGMENT BASED UPON A FINDING APPELLANTS’ CLAIMS WERE BARRED BY THE STATUTE OF LIMITATIONS.
III.
THE TRIAL COURT ERRED IN GRANTING APPEL-LEES’ MOTIONS FOR SUMMARY JUDGMENT BASED UPON A FINDING THAT NO GENUINE ISSUES OF MATERIAL FACTS EXISTED TO BE DETERMINED BY THE TRIER OF FACT.
First, appellants argue that the court erred in finding their claims were barred by the statute of frauds. We agree. The trial court found that appellants’ claims were barred because the alleged oral promises could not be performed within one year from the making thereof.
Arkansas Code Annotated Section 4-59-101(a)(6) (1987) provides:
(a) Unless the agreement, promise, or contract, or some memorandum or note thereof, upon which an action is brought is made in writing and signed by the party to be charged therewith, ... no action shall be brought to charge any:
(6) Person, upon any contract, promise, or agreement, that is not to be performed within one (1) year from the making of the contract, promise, or agreement.
This provision has consistently been interpreted to include only contracts which are incapable of performance within one year. In Township Builders, Inc. v. Kraus Construction Co., 286 Ark. 487, 696 S.W.2d 308 (1985) (quoting Railway Co. v. Whitley, 54 Ark. 199, 15 S.W. 465 (1891)), the court stated “It is not sufficient to bring a case within the statute that the parties did not contemplate the performance within a year, but there must be a negation of the right to perform it within the year.” A contract does not come within the statute of frauds where the testimony shows it could be performed within a year, although there was a possibility or even a probability that it might require a longer time. Id. Here, there was no evidence that the contract could not be performed within a year. Although it may have been improbable, there was no evidence negating the right to install the water and sewer lines and construct the streets, guttering and cul-de-sac within one year. In any event, a question of fact existed as to the possibility of performing the contract within a year.
Appellees argue that the promises were part of a contract for the sale of realty and therefore were required to be in writing to be valid. Contracts affecting an interest in real property must be in writing to be enforceable. Ark. Code Ann. § 4-59-101(a)(4) (1987). However, partial or full payment of consideration together with taking of possession by the purchaser is sufficient to remove an oral contract from the statute of frauds. Langston v. Langston, 3 Ark. App. 286, 625 S.W.2d 554 (1981). We therefore find appellees’ argument unpersuasive.
The purpose of summary judgment is not to try the issue but to determine if there are issues to be tried. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979). Accordingly, the trial judge erred when he held that the oral contract could not have been performed within one year.
Next, appellants argue that the court erred in finding that the cause of action was barred by the statute of limitations for an oral contract. Actions founded upon any contract not under seal and not in writing shall be commenced within three years after the cause of action accrues. Ark. Code Ann. § 16-56-105(1) (1987).
The contract or agreement in question was entered into April of 1980, and suit was filed in 1985. However, the period of limitations runs from the point at which the cause of action accrues rather than from the date of the agreement. The nature of the agreement here is such that determining when the cause of action accrues is not without difficulty. Appellants argue that the limitation period began to run in 19 84 because until then they had been repeatedly reassured by appellees that the improvements promised and contracted for would be made. Appellees argue that if the contract could have been performed within one year, the limitation period would have begun to run at the end of that period or alternatively at the time demand for performance was made and refusal to perform was expressed.
This is not a case in which one party to an agreement is in default of an obligation due at a specified time, or has breached a duty on a certain date. In Rice v. McKinley, 267 Ark. 659, 590 S.W.2d 305 (1979), the court stated that where the parties have entered into an agreement which requires a series of mutual acts, some unilateral, some bilateral in character and have left the time of those acts open-ended, the cause of action does not accrue until one party has by word or conduct indicated to the other a repudiation of the agreement. We believe the holding in Rice is applicable to the agreement at bar. Here the agreement was both bilateral, wherein one party agreed to buy and the other to sell, and unilateral, as to appellees’ promise to make improvements. The agreement left open-ended the time of performance for making the improvements. Thus, we believe the limitations period began to run when appellees by word or conduct repudiated the agreement. However, on the record before us, the date on which the alleged repudiation occurred is unclear. Under these circumstances, the date the limitations began to run is a question of fact. Where a question of fact remains to be resolved, the granting of summary judgment is inappropriate. Ollar v. Spakes, 269 Ark. 488, 601 S.W.2d 868 (1980). We therefore find that the trial court erred in granting summary judgment on the basis that the claim was barred by the statute of limitations.
Finally, appellants argue that the trial court erred in finding that no genuine issue of material fact exists for determination by the trier of fact. Summary judgment is an extreme remedy which should be granted only when there is no genuine issue of material fact before the court. Township Builders, Inc. v. Kraus Constr. Co., 286 Ark. 487, 696 S.W.2d 308 (1985). The evidence 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. Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983).
Based upon our disposition of the previous points, issues of fact remain to be resolved with regard to appellees’ affirmative defenses of statute of frauds and statute of limitations. If those facts are resolved in a manner which does not preclude recovery, factual issues remain as to the merits of the claim. It must be determined whether the alleged promises or representation were made by appellee Pannell. Because appellants have joined the City of Prairie Grove, it must be determined whether an agency relationship existed between appellee Pannell and the City. Ordinarily, agency is a question of fact to be determined by the trier of fact. Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). Our law is well settled that an agent acting within the apparent scope of his authority, even though in violation of actual authority, may bind his principal if the one with whom he deals does not have notice of these restrictions. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). The question of whether or not an agent is acting within the scope of his actual or apparent authority has always been held to be a question of fact for the jury or trier of fact to determine. Id. See also Babbitt v. Gordon, 251 Ark. 1112, 476 S.W.2d 795 (1972).
Based upon the above conclusions, we find that the trial court erred in granting summary judgment and, therefore, we reverse and remand for a trial on the merits.
Reversed and remanded. | [
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Neal, Judge.
On August 17, 2000, a jury found appellant, Phillip Kelley, guilty of one count of obstructing governmental operations. He was sentenced to two days in the county jail and also received a fine in the amount of $100. It is from this conviction that the appellant brings this appeal.
On the evening of November 29, 1999, Officer Jared Pena of the Springdale Police Department observed an erratically driven van. The officer followed the van for several blocks. The vehicle stopped at a home on 705 Crutcher, Springdale, Arkansas. Officer Pena encountered Mr. Mendoza, the driver of the vehicle. Because he suspected that Mendoza was driving under the influence, Officer Pena began the routine field sobriety testing. Officer Chastain and Sergeant Lewis joined the officer at the scene. Their duties included securing the scene and providing back-up to the responding officer.
Appellant, Phillip Kelley, emerged from the home. Causing quite a disruption, appellant approached the driveway where the field sobriety tests were being administered. Sergeant Lewis detained appellant and requested his identification. Shortly after giving the officers his license, Kelley, shouting many profanities, demanded his license be returned at once.
Determining that appellant smelled of alcohol, Sergeant Lewis attempted to administer sobriety tests on him. Appellant refused to cooperate and attempted to flee inside of the home. He was subsequently arrested. On appeal, appellant argues that the trial court erred in denying his motion for directed verdict. We affirm.
Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001); see also Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in light most favorable to the State. Id. Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture and is sufficient to compel a conclusion one way or the other. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). It is not the appellate court’s place to try issues of fact; rather, the court simply reviews the record for substantial evidence to support the jury’s verdict. Ethyl Corp., supra. If there is substantial evidence supporting the conviction, it must be affirmed on appeal. Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998).
Appellant was charged with obstruction of government operations. A person commits the offense of obstructing governmental operations when he “knowingly obstructs, impairs, or hinders the performance of any governmental function.” Ark. Code Ann.§ 5-54-102(a)(l) (Repl. 1997). Arkansas Code Annotated section 5-2-202(2) (Repl. 1997) provides:
A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
Unless there is use of force or a threat to use force, obstructing governmental operations is a Class C misdemeanor. Ark. Code Ann. § 5-54-102(b) (Repl. 1997). A government function means any activity which a public servant is legally authorized to undertake on behalf of any governmental unit he serves. Ark. Code Ann. § 5-54-101(4) (Repl. 1997).
A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime; therefore, circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Stegall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Additionally, it is the responsibility of the trier of fact to determine the credibility of witnesses. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791(2001).
Appellant contends that the trial judge erred in denying his directed-verdict motion on the charge of obstructing governmental operations when the arresting officer testified he was on the scene to provide backup, and dealing with appellant’s conduct was the very thing that a backup officer is on the scene to provide. Officers Pena and Lewis both testified that the actions of the appellant hindered Pena’s ability to administer field sobriety tests on Mr. Mendoza. Appellant’s actions also interfered with Officer Lewis’s ability to provide security for Officer Pena. Officer Lewis was on the job to provide backup for Officer Pena, and it was his job as an officer to ensure the protection of his fellow officer. It was established that once Kelley exited the house, Mendoza stopped cooperating with Officer Pena and began shouting profanities.
Based on the testimony at trial and the jury’s assessment of the witnesses’ credibility, there is sufficient evidence to support appellant Kelley’s conviction for obstructing governmental operations. His actions obstructed, impaired, and Hindered the officers’ ability to perform their governmental functions as law enforcement officers during the investigation of a DWI traffic stop. We therefore affirm.
Stroud, C.J., and Griffen, J., agree. | [
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Josephine Linker Hart, Judge.
Appellants, Raymond M. Berta and James W. Berta, who were tried together by a jury, were both convicted of the crimes of manufacturing methamphetamine, possession of drug paraphernalia with the intent to manufacture methamphetamine, and misdemeanor endangering the welfare of a minor. Raymond Berta was also convicted of second-offense possession of marijuana, and James Berta was convicted of simultaneous possession of drugs and firearms. Raymond Berta was sentenced to a total of 144 months’ imprisonment and a fine of $1,000, and James Berta was sentenced to 300 months’ imprisonment and a fine of $1,000.
On appeal, both appellants argue that the circuit court erred in denying their motions to suppress items seized during a search of their residence, contending that the affidavit supporting the search warrant failed to establish a time frame for the events described in the affidavit. Raymond Berta further argues that the circuit court erred in denying his motion to sever his trial from James Berta’s trial. We find both issues meritorious and reverse and remand.
On May 31, 2001, Steve Rich, then of the Lonoke County Sheriffs Department, prepared an affidavit supporting his request for a search warrant to search appellants and their Lonoke residence. His conclusion that items subject to seizure were “now being concealed” was supported by four specific facts, which were as follows:
FACT #1: On 5-29-01 this officer was contacted by a citizen who advised that he was concerned about activity at [appellants’ residence] advising that the chemical odor and heavy traffic that usually followed. Subject also advised that there was lots of late night activity and traffic to the residence. He further stated that there was a small child (6 years of age) living at the residence.
FACT #2: This officer spoke to a reliable (used on several occasions that resulted in arrest) informant who advised that they had been to the residence and saw a meth lab in the bedroom of the home. They further stated that James Berta had a handgun and usually carried it on his person. They also confirmed the presence of the small child and stated that the components and paraphernalia were within reach of the child.
FACT #3: This officer went to the address and did see in plain sight assorted items commonly used to manufacture meth to include cans of camp fuel, empty peroxide bottles, iodine bottles, and a funnel (chemical odor), plastic tubing, and coffee filters with residue. Most of these items were in a burn pile in the rear of the mobile home.
FACT #4: An ACIC check showed Raymond and James both to have several outstanding warrants from local Law Enforcement Agencies. Both Parties also had criminal history for Controlled substance, theft of property and are convicted felons. Last February Little Rock narcotic officers served a search warrant at #30 Cofelt in Jacksonville and Mr. James Berta fled on foot. A meth lab was recovered at this search warrant.
Based on this affidavit, a search warrant was issued for the residence, and numerous items were found at the residence, resulting in various charges being brought against appellants.
In their challenge of the search, both appellants argue that because the affidavit failed to set forth when the observations described in the affidavit were made, the search warrant was defective and the items seized should be suppressed. Raymond Berta further argues that facts one and two failed to establish the reliability of the informants, that fact three was based on the officer’s unlawful entry onto the curtilage of appellants’ residence, and that fact four contained erroneous and unsubstantiated information regarding Raymond Berta’s criminal history. James Berta further argues that fact four cannot be relied upon to establish probable cause for the search.
In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). An affidavit for a search warrant must set forth facts and circumstances establishing probable cause to believe that things subject to seizure will be found in the place to be searched. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). Because a magistrate must know that at the time of the issuance of the warrant there is criminal activity or contraband where the search is to be conducted, a time reference must be included in the affidavit, and the time that is critical is the time during which the criminal activity or contraband was observed. Heaslet v. State, 77 Ark. App. 333, 74 S.W.3d 242 (2002). However, the absence of a reference to time in the affidavit will not render the warrant defective if we can look to the four corners of the affidavit and infer the time during which the observations were made. Smith v. State, 79 Ark. App. 79, 84 S.W.3d 59 (2002).
Here, Rich set forth four facts to support his conclusion that certain items were “now being concealed” at appellants’ residence. We conclude that the first three facts of the affidavit lack any reference to the time at which the informants and the officer made their observations, and none may be inferred. While the State argues it may reasonably be inferred that the events described were close in time to the signing of the affidavit, we conclude that there is no basis for this inference.
We are not unmindful of Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002), in which this court held that a time reference must be included in the affidavit for search warrant, but the time may be inferred from the information in the affidavit itself. In that case we affirmed the circuit court’s denial of a motion to suppress evidence because the affidavit provided that surveillance of Abshure’s residence, during which a strong chemical odor was noticed, was conducted on a specific date noted in the affidavit. In the case at bar, the affidavit states in the first fact that a private citizen contacted the officer on May 29, 2001, informing the officer that he had noticed a chemical odor, had witnessed heavy traffic and late night activity at the residence, and had seen a small child there. Although the affidavit states when the private citizen contacted the officer, it does not state when the private citizen made the observations. In the second fact, the affidavit states that a confidential informant advised the officer that he had seen a meth lab in the bedroom of the house, and that James Berta had a handgun and usually carried it on his person. The informant also confirmed the presence of the small child, further stating that the components and paraphernalia were within reach of the child. Again, unlike Abshure, where the date of the observations was stated in the affidavit, the affidavit does not contain a time frame as to when the observations were made. And, finally, in the third fact, the affidavit states that a police officer went to the address and did see in plain sight assorted items commonly used to manufacture methamphetamine. Again, no time is stated as to when the observations were made. Because we find that there is no time reference as to when the observations were made, we find the case at bar distinguishable from Abshure.
We note further that in determining whether the affidavit established probable cause, the circuit court specifically eliminated the third fact from the affidavit, concluding that the remainder of the affidavit established probable cause. Finally, the State argues that because the first three facts establish probable cause, any misleading allegations in the fourth fact regarding appellants’ criminal history did not render the warrant invalid. In view of our previous conclusions, the State’s premise is incorrect. Moreover, a known criminal averment is insufficient to support a finding of probable cause, is not entitled to any weight in a decision on a warrant, and is rejected as not giving rise to any credible inference. Yancey, supra. We reverse and remand on this point.
Raymond Berta further argues that the circuit court erred in denying his motion to sever appellants’ cases. At trial, his defense was that even though the items were seized at his residence, the drug paraphernalia associated with the manufacture of methamphetamine belonged to James Berta, and it was James Berta who was involved in the manufacture of methamphetamine. He argued that because the circuit court granted James Berta’s motion to preclude evidence of prior conduct of James Berta related to the manufacture of methamphetamine, then Raymond Berta was limited in presenting evidence that it was not him, but rather James Berta, who possessed the seized items and was manufacturing methamphetamine at the residence. On appeal, he again urges that appellants’ antagonistic defenses demanded severance of their cases.
The circuit court has the discretion to grant or deny a severance of multiple defendants, and on appeal we will not disturb the ruling absent an abuse of that discretion. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Severance is appropriate when it is necessary for a fair determination of the guilt or innocence of a single defendant. Id. When making a decision on severance, the court should consider a number of factors, including whether the defenses of the defendants are antagonistic. Id. Antagonistic defenses arise when each defendant asserts his innocence and accuses the other of the crime, and the evidence cannot be successfully segregated. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). However, when there is no reason the jury could not have believed both defenses, the defenses are not antagonistic. Id. A trial court is not required to grant a severance of multiple defendants unless their conflicting strategies go to the essence of their defenses and the conflicting strategies are such that their defenses cannot be accommodated by the jury. Id.
In sum, Raymond Berta attempted to introduce testimony regarding James Berta’s prior conduct involving the manufacture of methamphetamine, while James Berta sought its exclusion, requiring the circuit court to make decisions on what of this evidence would be admissible in assisting Raymond Berta in his defense without prejudicing James Berta. Thus, Raymond Berta was unable to foster his defense that it was James Berta alone who was culpable, while the exclusion of this evidence assisted James Berta by excluding the same evidence of culpability. Thus, their conflicting strategies went to the essence of their defenses, and the conflicting strategies were such that their defenses could not be accommodated by the jury. Consequently, we conclude that the circuit court abused its discretion in denying Raymond Berta’s severance motion and reverse on this point as well. Reversed and remanded.
Bird and Vaught, JJ., agree. | [
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George K. Cracraft, Judge.
Ozark Gas Transmission Systems appeals from a judgment entered in the Circuit Court of Faulkner County on a jury verdict which awarded Carroll Barclay and his wife Janet the sum of $30,700 as compensation for their lands taken by eminent domain for a pipeline easement. Three points of error are advanced by appellant, all of which involve objections to appellee’s expert witness’s testimony.
Carroll Barclay was fifty-six years of age and had been born and raised on a family fruit farm in New Jersey. After his marriage he continued to operate the family farm and purchased several others. In the earlier years his operation was primarily in the wholesale market. This business grew until he was handling over 150,000 bushels of fruit a year in his own business and was on the board of directors of a cooperative which handled in excess of a million bushels.
In 1958 due to higher taxes and rising wage rates he started a direct marketing operation he referred to as a “you pick them” retail sale where the customer picked his own fruit in the orchard. This undertaking continued to grow and he established several other such orchards in different commercial areas. In 1977 he determined to established another orchard and began to look for a location in the Carolinas, Oklahoma and Arkansas. At that time the appellee was a member of the Board of Trustees and President of the New Jersey Apple Council which was involved with the promotion of apples and research work for improved production techniques. He was also President of the Board of Managers of Rutgers University at its experiment station.
In 1979 appellee found what he considered the ideal topographic location for the establishment of a peach and apple orchard near Guy, Arkansas and purchased a 120 acre tract. At the time of purchase this was raw, overgrown land which had not been cultivated since the 1930’s. He cleared it, built ponds for irrigation, put down wells, subsoiled, tilled and fertilized the land and placed six tons of lime per acre on the orchard areas. He planted 2500 peach trees and 2000 apple trees on the property. The irrigation system provided a nozzle at the base of each tree for watering during dry spells and drainage was provided from each tree to avoid what he called ‘‘wet feet” in wet periods. An expert agricultural economist from the University of Arkansas Cooperative Extension Service described the appellee’s orchard as one in which he had put together “the most recent technology that we had in planning and beginning the production of fruit.” He referred to appellee as “the best [horticulturist] I’ve ever seen,” and stated that all of appellee’s employees possessed similar expertise.
In 1981 the peach orchard produced its first peaches which were described as “exceeding our highest expectations.” The apple orchard produced no fruit because the trees were not mature enough. In the fall of 1981 appellant took a strip of land 70 feet in width and consisting of 3.12 acres for an underground pipeline. This strip included a small area of woodland but took 2.17 acres of the orchard. It was stipulated that the highest and best use to which this property could be put was as a peach and apple orchard.
The appellee’s expert appraiser Mr. Collins testified that he could not, in reaching his market value before and after the taking, utilize the market value approach because there was only one other orchard in Faulkner County and none had ever been sold. Nor could he utilize sales of comparably sized properties in the vicinity by making necessary adjustments for best use because the differences in use were so great the adjustments would be meaningless. He stated that it would be like comparing a $10,000 piece of property to a $1,000,000 one. Under this approach the witness capitalized the anticipated income from each acre of orchard over the recognized life expectancy of the trees. These figures were utilized to establish the market value attributable to the orchard. He appraised those lands not in orchard on an entirely different basis, and added the two arriving at his opinion of the market value of the property before the taking. Capitalization of income approach was also used in determining the value of the lands actually taken.
The appellant first contends that profits from a business enterprise may not be used as a factor in assessing damages for the taking of land relying on Ark. State Hwy. Comm. v. Carpenter, 237 Ark. 46, 371 S.W.2d 535 (1963); Ark. State Hwy. Comm. v. Wilmans, 236 Ark. 945, 370 S.W.2d 802 (1963); Ark. State Hwy. Comm. v. Addy, 227 Ark. 768, 318 S.W.2d 595 (1958); Hot Spring County v. Crawford, 229 Ark. 518, 316 S.W.2d 834 (1958). We agree that although this is a correct general statement of the law applicable to the consideration of profits of a business conducted on the premises it has no application to the facts in this case.
Our courts have recognized a distinction in this regard between opinion testimony based on profits derived from a business enterprise conducted on the condemned lands and those derived from the land itself. The so called "business profits rule” excludes evidence only as to profits from the former. In Ark. State Hwy. Comm. v. Wilmans, supra, the court excluded capitalization of profits derived from a tavern operated on the condemned land. In Hot Spring County v. Crawford, supra, and Ark. State Hwy. Comm. v. Addy, supra, evidence of the profits derived from a truck stop and a race track conducted on the premises was excluded for that same reason.
Housing Authority of Little Rock v. Rochelle, 249 Ark. 524, 459 S.W.2d 794 (1970) and North Little Rock Urban Renewals. Van Bibber, 252 Ark. 1248, 483 S.W.2d 223 (1972) recognize an exception to the rule which permits capitalization of income in arriving at fair market value of income producing rental property. The distinction was clearly pointed out in Ark. State Hwy. Comm. v. Lone Star, Inc., 4 Ark. App. 103, 628 S.W.2d 23 (1982) where it was declared permissible to capitalize the value of the leasehold interest in a store located on the condemned property but not the profits derived from its operation.
In Ark. State Hwy. Comm. v. Dupree, 228 Ark. 1032, 311 S.W.2d 791 (1958), Ark. State Hwy. Comm. v. Addy, supra, and Ark. State Hwy. Comm. v. Ormond, 247 Ark. 867, 448 S.W.2d 354 (1969) our court recognized the general rule that this exception extended to capitalization of profits derived from the land when used for agricultural purposes.
We conclude from a review of these cases that capitalization of income is a recognized method of arriving at the fair market value of real estate where the income is derived from the land itself rather than from a business operated upon the land. The reason for this distinction is that there can be no compensation for the loss to a business being operated on the property because it would permit consideration of too many intangibles, such as the extent to which the owner could have transferred his business to a new location and the relative degree of commercial skills. Ark. State Hwy. Comm. v. Wilmans, supra. In the case of farming operations or rental property, however, the prospective revenue is derived from the use of the property itself and the anticipated profits are matters that a willing buyer would consider in estimating the market value of the property. Housing Authority of Little Rock v. Rochelle, supra. We find no error in permitting the capitalization of income approach in arriving at fair market value in this case.
The appellant next argues that the appellee’s expert’s testimony should have been stricken because the expected profits testified to had no relation to the land in question, which had produced only one peach crop, and were too speculative to be admissible and because they were based on fruit farming as a whole. Ark. State Hwy. Comm. v. Ormond, supra. We see a distinction between the factual situation here and that in Ormond. There the landowner who was a realtor and farmer testified that the highest and best use of his land was for catfish farming and based his opinion as to the market value on capitalization of income. The landowner testified that his opinion was based entirely on “income he had anticipated upon the basis of his own estimates of market prices, yields and costs.” The court noted that the landowner had no experience in this business or anything relating to it, that there was “no reasonable basis for Ormond’s opinion as to the value of the entire tract before the taking,” and stated:
Even if we should consider that evidence of income and production from commercial catfish farming is admissible under the recognized exception in cases of agricultural property, as appellees urge, there is no exception which permits such values to be based on pure speculation, as must be the case when the testimony is given by one without experience or expertise in the undertaking about which he testifies, when there is no history as to the particular land upon which to base anticipated income or production.
In the case at bar even though this was a new orchard with no income history the appraiser had a reliable and trustworthy basis for his estimates of anticipated annual income. Some of his information was derived from appellee, whose expertise in fruit farming was established. Primary reliance, however, was placed on an exhaustive study made by the University of Arkansas Cooperative Extension Service in which anticipated profits for peach and apple orchards were determined on an annual basis during the life expectancy of the trees. These figures were determined by comparison of income over a period of years with varying locations in Arkansas, weather conditions, insect infesta tions and other factors affecting production. There was evidence that these figures also took into consideration the cost of production and marketing and relative skills of the individual farmers. Adjustments were made for all of those factors affecting income in order that the figures projected would reflect the estimate of anticipated annual income of the average orchard during its expected life. There was evidence that both appellee’s orchard and his skill were far above average. It was testified that these studies were applicable to appellee’s location. We conclude that there was a reasonable basis for the expert’s opinion and there was no error in refusing to strike his testimony. Appellant’s objection goes merely to the weight of it and not to its admissibility.
Appellant next contends that the trial court erred in refusing to strike the testimony of the expert witness as to the damage resulting to the remainder of the tract by the taking. We do not agree. Mr. Collins, after determining the value of the fee simple title of the acreage actually taken in the amount of $23,821.00, determined that the value of the remaining lands was reduced as a result of the easement by an additional $42,316.00. The witness testified on cross-examination that if there were two farms identical in every respect except that one had a pipeline running through it and the other did not, that an unobligated buyer would purchase the one without the pipeline because its existence diminished the value of the other property. He was asked if he had ever been involved with a buyer in that situation or to state an instance in his experience where a pipeline crossed on a piece of property and had depreciated its value. He answered that he could not — that he had never seen an instance where he had two identical farms, one with a pipeline and one without. Appellant argues that because the witness had no comparable sales his opinion was without reasonable basis. He stated, however, that his opinion was based upon his expertise and knowledge that the farm with a pipeline was not as attractive as one without from an economic point of view.
It has been the rule for many years that the testimony of an expert witness should not be stricken unless it is demonstrated that he has no reasonable basis for the opinion and that opinion testimony of an expert witness can be considered even though not based entirely on comparable transactions. Fulmer v. Southwestern Bell Tel. Co., 9 Ark. App. 92, 654 S.W.2d 603 (1983); Ark. State Hwy. Comm. v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966). In his testimony he said that he determined the effect on the remaining lands of the removal of the 70 foot strip by considering the increased production expenses on the remaining orchard occasioned by the gap. Irrigation pipes would have to cross the areas with no trees to irrigate, spray rigs which cannot be turned off for a 70 foot gap would use chemicals and fuel in crossing the area, and other time and expense would be wasted in other horticultural practices required to be done on a row basis. He further testified that these additional agricultural expenses .occasioned by the existence of the pipeline would cause a willing buyer to stop and consider that these extra costs could be avoided by purchase of the other land. It was his view that a reduction of probable income occasioned by the extra expenses resulting from the gap between the orchards as a result of the taking were matters which would be fully considered by a prospective purchaser in determining the market value and the price he would be willing to pay for the property. The appellee also testified without objection to these same additional expenses and some others which would be occasioned by the taking and agreed that they would cause a purchaser to ponder. We cannot say that Mr. Collins did not give a fair and reasonable basis for his opinion that creating a gap between the orchards would affect the market value of the remaining acreage. Again we think appellant’s argument goes more to the weight to be given this testimony than to its admissibility.
Appellant finally contends that the trial court erred in instructing the jury that damages were recoverable for the full market value of the lands taken for the easement without regard to the permissive use of the surface by the condemnee since the condemnor acquires the right to make use of the right-of-way as future needs may require for the purposes for which the right-of-way was acquired. Appellant recognizes that this is a well settled rule establishing the measure of damages for the taking of easements. Baucum v. Ark. Power & Light Co., 179 Ark. 154, 15 S.W.2d 399 (1929). It argues, however, that it took the easement under a “Certificate of Public Convenience and Necessity” created by an act of Congress which conferred on it the right of eminent domain and, therefore, the measure of damages for the taking of easements applied in federal courts (which he argues differs from our own) should apply. We do not agree.
15 U.S.C. § 717f(h) (1976) provides that when the holder of such a certificate cannot acquire the easement by agreement, it may acquire it by the exercise of the right of eminent domain in the United States District Court for the district in which the land lies or in the state courts. It further provides that where the proceedings are instituted in the United States courts, “The practice and procedure . .. shall conform as nearly as may be with the practice and procedure in similar action or proceeding in courts of the State where the property is situated.” We find nothing in the language of this enactment which requires in either court the application of rules of substantive law differing from those applicable in similar proceedings under State law. We find no error.
Affirmed.
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George K. Cracraft, Judge.
Colonial Life and Accident Insurance Company appeals from a jury verdict awarding long term disability benefits to Ruth Whitley under a policy of insurance. It advances a number of points for reversal but we find sufficient merit in only one of them to warrant reversal. In view of the disposition we make of this case, however, we will address some of the other issues advanced because of the likelihood that they will arise in a retrial.
The policy in question insured appellee against loss resulting from accidental bodily injuries. The conditions of payment contained in the policy were as follows:
PART A — TOTAL DISABILITY
If injuries as described in this policy are sustained by the Insured and within 30 days from the date of accident, independently of all other causes, wholly and continuously disable the Insured from performing any and every duty pertaining to his occupation, the Company will pay an indemnity for the period and at the rate shown in the Policy Schedule for “Initial Disability;” and thereafter, if the Insured is thereby continuously and totally disabled and prevented from engaging in any and every occupation or employment for wage or profit for which he may be qualified by reason of education, training or experience, the Company will pay a monthly indemnity for the period and at the rate shown in the Policy Schedule for ‘ ‘Long-Term Disability.”
The policy schedule referred to above provided for the payment of $100 per month. The “initial period” prescribed was six months. The “long-term disability” was to be paid in the same amount for the next 10-1/2 years.
Under such policy provisions total disability benefits are provided for two separate and distinct conditions, i.e., 1) benefits are to be paid for a maximum of six months while the insured is totally and continuously disabled from performing the duties of his current occupation; 2) benefits are payable thereafter for so long as the insured is continuously disabled from performing the duties of any occupation for which he is reasonably qualified by reason of education, training and experience. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). It is settled in this state that the words “wholly disabled” in his occupation do not mean that the insured must be absolutely helpless or unable to perform all of the substantial and material acts of his occupation. Our courts have adopted the rule that in determining whether one is wholly disabled it is only necessary that it be shown that he is unable to perform any one or more of the substantial or material acts of his occupation in his usual and customary manner. Continental Casualty Co. v. Davidson, supra; Avemco Life Ins. Co. v. Luebker, 240 Ark. 249, 399 S.W.2d 265 (1966). Nor does the mere fact that one continues to work at his regular job establish a lack of disability. It is only a factor to be considered, and where an insured is able to continue his employment with the aid of his fellow employees or in some manner other than his usual and customary one, he may still be “disabled.” Franklin Life Ins. Co. v. Burgess, 219 Ark. 834, 245 S.W.2d 210 (1952); Benefit Ass’n of Ry. Employees v. France, 228 Ark. 765, 310 S.W.2d 225 (1958).
Similar rules have been adopted with regard to the words “Wholly or totally disabled” in any occupation. It has been declared that one may be wholly disabled to perform the duties in any occupation if he is unable to perform any one or more of the substantial and material acts necessary to the prosecution, in the customary manner, of any occupation or business for which the insured is reasonably qualified by reason of his education, training and experience. Continental Casualty Co. v. Davidson, supra.
It is also well settled that policy provisions conditioning the right to payments for disability, to disability resulting within a specified time from the date of injury are valid, and that the issues of whether an insured is totally disabled and whether that disability resulted within the specified period are jury questions. Business Men’s Assur. Co. v. Selvidge, 187 Ark. 1040, 63 S.W.2d 640 (1933); Benefit Ass’n of Ry. Employees v. France, supra. Under the policy here in issue the obligation to pay either the initial or long-term disability benefits did not arise unless the disability resulted within thirty days of the injury. On this point the appellant contends that, while there might have been sufficient evidence to support a finding that the appellee became disabled as a result of her accidental injury at some time, there was none to support a finding that it resulted within the time specified in the policy. It contends that the trial court should have granted its motion for directed verdict and erred in submitting that issue to the jury. We agree.
A directed verdict is proper only when there is no substantial evidence from which a jury might determine an issue of fact. In determining whether there is substantial evidence to preclude the direction of a verdict the trial court must view the testimony and all reasonable inferences arising from it in the light most favorable to the party against whom the verdict is sought. Dickerson Const. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979). In determining the sufficiency of evidence to sustain a verdict the same test is applied on appellate review.
When we view the testimony in that light we agree with the appellant that, although there was substantial evidence on which a jury might find that the appellee was ultimately disabled as a result of her injury, there was none to support a finding that it resulted within the initial thirty day period specified in the policy.
The appellee was a practical nurse employed at a state facility providing care for the aged. Her job required considerable lifting of patients, climbing stairs and other heavy physical labor such as lifting and stooping. She testified that before August 18, 1978 she was able to perform all of the duties without difficulty. On the night of August 18,1978 while she was lifting an aged patient from his bed he fell on her, causing her to injure her knees. She experienced immediate pain and was seen at work that night by a staff doctor. She completed her shift arid returned to herjob on the next workday. As she continued to have pain in her knees another staff doctor prescribed a painkilling drug which she continued to take. She hoped that she would get better and continued to work her regular schedule at full wages. She stated, however, that her condition did not get better but “became progressively worse.”
In March 1979 her condition had worsened to such an extent that she consulted Dr. Thompson who found that the fall had aggravated the symptoms of preexisting osteoarthritis to such an extent that she could not perform her customary duties and advised her to terminate her employment. She immediately resigned and gave notice of her claim of injury to the appellant. The appellant promptly denied the claim, contending that her present disability had not resulted within thirty days of the accident as provided in the policy.
Appellant then brought this action in which she did not seek recovery of the initial benefits “because she had received full wages during that period.” She sought only to recover those benefits which had accrued since she terminated her employment in March 1979. There was evidence that after her visit to Dr. Thompson her disabilities had progressed to a point where she is not unable to perform household duties or to engage in any employment.
Two of her supervisors testified that after her fall in August 1978 she returned to work and worked regularly until she quit work altogether. They testified that they observed her constantly during the workday and that she always satisfactorily performed all of her usual, customary duties.
Dr. Thompson testified that he first saw her in March 1979, and after his initial examination it was his opinion that she was disabled from the performance of her occupational duties as a result of osteoarthritis which is a progressive disease. It was his opinion that the osteoarthritis had preexisted the injury but was not symptomatic until the fall in August. Dr. Thompson, however, could say only that the condition which he diagnosed in March had become disabling at some time subsequent to the accident. He could not testify that appellee was disabled from the performance of her ordinary and customary duties in her usual manner during August and September of 1978 or that the disability resulted within thirty days of her injury.
If substantial evidence of that fact is to be found in the record it must be found in the testimony of appellee, who was the only other witness who testified. Counsel has not pointed out to us any testimony of the appellee which supplies this deficiency; our review of the record discloses none. Although she testified to many things she could do before the accident that she could not now do there was nothing in her testimony indicating that her present disability resulted within the thirty day period. Her testimony was in essence that she continued to work in the belief that she would get better, but that her condition became progressively worse until she couild not do her work. In the absence of substantial evidence tending to establish, or from which a jury might draw a reasonable inference, that the ultimate disability suffered by the appellee resulted within thirty days of the accident, the jury’s award is speculative and without reasonable basis.
Our ruling, however, does not necessarily require that the case be reversed and dismissed. In similar situations this court has adhered to the rule that where there is a simple failure of proof, justice requires that the court remand the case to allow the appellee an opportunity to supply the defect. Only where the record affirmatively shows that there can be no recovery on retrial should the case be dismissed in the appellate court. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108 (1892); Follett v. Jones, 252 Ark. 950, 481 S.W.2d 713 (1972); Continental Geophys. Co. v. Adair, 243 Ark. 589, 420 S.W.2d 836 (1967); Crisp v. Brown, 4 Ark. App. 208, 628 S.W.2d 596 (1982). We cannot say here that the record affirmatively shows that there could be no recovery.
We find no merit to appellant’s argument that the trial court erred in not directing a verdict in its favor on grounds that appellee had failed to prove compliance with the notice provisions of the policy. The policy in question contained a requirement that written notice of claim be given to the company within sixty days after the occurrence or commencement of any loss covered by the policy, “or as soon thereafter as is reasonably possible.” Appellant contends that the accident on which appellee bases her claim occurred in August 1978 and she did not give written notice of that claim until May 1979. Appellee testified that she experienced immediate pain as a result of the accident and saw a doctor at the hospital at that time. The doctor examined her but took no x-rays and did not inform her that she had received a serious injury. She testified that although she was taking painkillers and the pain was severe she continued to work “because I thought I would get better where I could carry on my work but I got worse, continued to get worse.” She testified that during the entire period from the date of the accident until she gave notice, she was unaware that she had received a disabling injury and did not know of it until it was diagnosed by Dr. Thompson. It was her testimony that after being notified of the true extent of her injury she immediately notified the appellant.
In Benefit Ass’n of Ry. Employees v. France, supra, our court declared that it was self evident that one could not give notice of a claim until he had learned of it. If it can be proved that during a specified period the insured did not know that he was suffering from a disabling injury until it was made known to him by his physician, the failure to notify within the stated time period is excused under a clause such as that contained in this policy. In Pacific Mutual Ins. Co. v. Dupins, 188 Ark. 450, 66 S.W.2d 284 (1934) and Mutual Benefit Health & Accident Ass’n v. Bird, 185 Ark. 445, 47 S.W.2d 812 (1932) the court stated that the purpose of the inclusion of the exception “or as soon thereafter as reasonably possible” is to excuse the filing within the prescribed period where it is shown that the insured was not aware of the full nature and extent of his injuries during that period. The question of whether a claimant gives notice “as soon thereafter as is reasonably possible” is a question of fact for the jury to determine. Benefit Ass’n of Ry. Employees v. France, supra. We find no error in the refusal of the trial judge to direct a verdict and in properly instructing the jury on this issue.
The appellant also contends that the trial court erred in refusing to direct a verdict in its favor for failure of the appellee to prove that she furnished timely proof of loss. The policy provided that the company would, upon receipt of notice of claim, furnish to the claimant forms for filing proof of loss. It further provided that if such forms were not furnished within fifteen days after giving notice the claimant shall be deemed to have complied with the requirements of the policy as to proof of loss within the time fixed in the policy upon furnishing written proof of the occurrence and character and extent of the loss for which the claim is made. We find no error for two principal reasons. On May 9, 1979 after having seen Dr. Thompson appellee filed her notice of claim in which she gave written proof of the occurrence and the character and extent of the loss. The appellant promptly denied the claim but furnished no forms. An insurance company by its conduct or by written provision of its contract may waive the requirements of proof of loss. Farmers Mutual Ins. Co. v. Denniston, 237 Ark. 768, 376 S.W.2d 252 (1964). There was evidence from which the jury could have found that the filing of formal proof of loss had been excused under the provisions of the policy. Additionally we note that upon receipt of the notice filed by appellee the appellant promptly denied liability. It is settled that the denial of liability by the insurer is effective as a waiver of formal proof of loss. Federal Life & Casualty Co. v. Weyer, 239 Ark. 663, 391 S.W.2d 22 (1965).
Appellant also contends that there was error in other instructions given by the court. When we view the instructions as a whole, we find that there was no error. The cause is reversed and remanded for new trial.
Mayfield, C.J., and Glaze, J., agree. | [
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Wendell L. Griffen, Judge.
This case arises from a no-contact order issued by the White County Circuit Court, preventing appellant, John Clark, from exercising filial visitation rights granted by the Pulaski County Circuit Court. Appellant now argues that the White County Circuit Court (1) did not possess subject-matter jurisdiction to issue the order of protection; (2) erred in examining appellant concerning testimony that that trial court had previously ruled inadmissible; and (3) erred by making a finding that was clearly erroneous and unsupported by substantial evidence. Ap- pellee, Tara Hendrix, did not file a response. We reverse and dismiss for lack of subject-matter jurisdiction.
Appellant and appellee were married and divorced in the early 1990s. They have one daughter from that marriage who was ten years of age at the time of the incident involved in this case. Appellant is a resident of the State of Texas; appellee is a resident of Pulaski County, Arkansas. On October 22, 2002, appellee filed a petition for an order of protection against appellant in the White County Circuit Court. In that petition, she alleged that on May 27, 2002, appellant had been seen at a restaurant in Searcy, White County, Arkansas, while on visitation with their ten-year-old daughter, severely berating her, beating her on the buttocks and legs while holding her in the air, and getting involved in verbal fights with intervening restaurant patrons. The local police intervened but did not pursue an investigation. The Arkansas Department of Human Services (ADHS) also investigated, but concluded that evidence of child abuse was insubstantial. Several witnesses submitted notarized affidavits of what they had seen at that restaurant.
Upon appellee’s petition, the White County Circuit Court issued an ex parte temporary order of protection on October 22, 2002. That order restrained appellant from committing any acts of domestic abuse and excluded him from the dwelling of appellee and her child in Little Rock as well as from the places of appellee’s employment and the child’s school, both in Little Rock. Specifically, the order restrained appellant “from harassing, assaulting, threatening, physically abusing, mentally abusing, molesting,” or otherwise bothering either- petitioner or the child. The order commanded, appellant to appear at the White County Circuit Court on November 20, 2002, for a show-cause hearing.
On November 20, 2002, the parties convened at the White County Circuit Court. Appellee, acting pro se, tried to testify about the alleged child abuse incident of May 27, 2002. When she repeatedly tried to refer to letters and affidavits from potential witnesses, counsel for appellant objected and the trial court sustained the objection on the basis of hearsay. The trial court also instructed appellee that she must have those witnesses present in court to get their statements into evidence.
Appellee then continued to testify that they have been “in and out of court in Pulaski County maybe three times now.” She stated that she was trying to obtain supervised visitation at the Pulaski County Circuit Court because she was afraid that appellant might harm the child during visitation.
In subsequent testimony, appellee referred to e-mails from appellant, in which he acknowledged that he had spanked the child. -She stated further that she had waited until October 22, 2002, to file a petition for a protective order because she did not know that such a step was available to her. She admitted that she had not told the White County Circuit Court that she had been scheduled for a contempt hearing in the Pulaski County Circuit Court on October 24, 2002, two days after filing the petition in White County.
Appellee testified about the contempt hearing in Pulaski County. The trial judge in Pulaski County granted a continuance', but also ordered that visitation resume on October 24, 2002, or thereabout. Appellee also stated that “all of the witnesses” concerning the Searcy restaurant incident had come to Pulaski County Circuit Court to testify. The Pulaski County Circuit Court subsequently referred appellant and appellee into mediation, during which time visitation had to continue as originally ordered — which involved dropping off the child at appellant’s mother’s residence in Searcy.
Appellee next testified that the ADHS investigated the Searcy incident and that she received a notification that the evidence did not support an allegation of child mistreatment. Appellee admitted that she did not notify the White County Circuit Court of the ADHS notification because she was “fighting them and I think what the [ADHS] did was wrong.” She stated that she was “looking for some kind of supervised visitation.”
Counsel for appellant moved to dismiss the case in White County Circuit Court. He stated:
I move to dismiss for two reasons. Jurisdiction is one. I believe the proof has shown, this matter and these facts are before the Court in Pulaski County. Not only is the Court dealing with the contempt and the ongoing battle between these parties, but the Court is dealing specifically with the incident specified in this Order of Protection, and after hearing that entire evidence, the Court continued visitation, so that is the jurisdiction objection for, or jurisdictional basis for this.
The trial court denied the motion with the following statement:
I believe any Court can hear a domestic abuse case at the same time another Court is hearing all the same issues in a divorce case or in the aftermath of the divorce case, so as a jurisdictional thing I think this court has a right to hear the case if it wants to. Now, I could easily defer to that Court if I chose to do so, but I don’t believe that I’m required to defer. That is my understanding of this new law.
Counsel for appellant then argued, as an alternate reason to dismiss the case, that the timing of the petition for a protective order was suspicious in that it occurred two days before a contempt hearing in another court, five months after the alleged incident. Again, the trial court denied the motion to dismiss.
Appellant then presented his case to the White County Circuit Court. During his testimony appellant repeatedly accused appellee of failing to cooperate with him in visitation and child-rearing matters and generally cast a negative light on appellee. He mentioned that appellee had not informed him of a new medication for their daughter until shortly before the alleged incident and that he may have erred in his judgment by withholding that medication because he did not then believe that their daughter truly needed it. Appellant, too, referred to testimony in Pulaski County Circuit Court, where he admitted that he probably should have continued the medication.
Specifically, appellant testified about the Searcy restaurant incident. According to him, the child became very unruly during the restaurant visit. Appellant testified that he took the child outside because of her conduct. When a little “scuffle” ensued, he spanked her “three times.” He expressed understanding for other restaurant guests becoming upset, even to the point of intervening, but he also admitted that at the time he felt very agitated by the circumstances. He denied throwing objects inside the restaurant, as some of the witness affidavits had stated. He also denied lifting the child into the air.
The White County Circuit Court then continued the case until November 27, 2002, to afford appellee time to present witnesses instead of affidavits. The first witness was Greg Harnden, the Director of Athletics at Harding University, Searcy. He stated that appellant was yelling at the child inside the restaurant. He testified that he saw appellant’s shoes “come flying over the table on the floor,” followed by a bill-holder. According to Harnden, appellant picked up the child and carried her out. Harnden followed appellant outside and saw appellant “holding her kind of like you’d hold a log and he was whaling on her.” Harnden agreed with appellant, however, that his fist was not closed and that he was hitting her from her waist down. Harnden stated that he and two other men then intervened. He testified that appellant was particularly upset with one younger man who tried to stop the beating. According to him, appellant used profanity.
Rodney Rains had also been eating lunch at the Searcy restaurant. He testified that he observed appellant “fussing at his daughter first,” then yelling at the two women who also sat at appellant’s table — his mother and his fiancee. Rains explained that he and his party left early to get away from the noise, but that they saw appellant “dragging” the girl as they were getting ready to drive off, “pulling her by the arm,” and having her in a “headlock” at one point. During that time, appellant was trying “to swat at her and hit her several times,” using “some awful bad language.” Rains called the police and intervened along with the others.
After that, Robert Edison testified. He was a police officer with the North Little Rock Police Department. He testified that he was ordered to serve an order of protection on appellant, on October 23, 2002. Edison further testified that he saw that appellant was agitated about it, but that appellant by and large kept his temper. Edison stated that, at that point in time, he had not been aware of the fact that appellant and appellee were at the location where he served the order of protection in order to undergo court-ordered mediation.
Another witness, Denise Cobb, a friend of appellee, testified that the child at one point told her that appellant sometimes does not allow her to wear eyeglasses because he does not think she needs them.
Evelyn Clark, the mother of appellant, also testified. Her testimony concurred with appellant’s in that they had not known about the child’s new medication until shortly before the Searcy restaurant incident. Evelyn Clark also confirmed that the child acted very abnormally in the restaurant and was extremely agitated. She stated that she never saw any spanking because she had stayed inside.
During his final remarks, the trial judge specifically stated that appellant had done “nothing but vilify [appellee] by the other evidence.” The trial court continued to state that it does not “know whether those things are true or not, but she hasn’t responded in kind, and it really doesn’t matter because I believe that you are a threat to this child and I don’t think you ought to be around this child.” The trial court entered an order of protection valid for one year. Appellant then brought this appeal.
Subject-Matter Jurisdiction
Appellant first and foremost argues that the White County ■Circuit Court was without subject matter jurisdiction to decide the order for protection because the order pertained to an ongoing matter in Pulaski County Circuit Court. We agree.
It is well settled in Arkansas that a trial court presiding over visitation issues maintains continuing jurisdiction over visitation, modification, or vacation of such orders. Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000). Specifically, our supreme court has held that when a case is brought in a court of competent jurisdiction, the authority and control of that court over the case continues until the matter is disposed of in the appellate court. Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996) (citing in support, inter alia, Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922); Doss v. Taylor, 244 Ark. 252, 424 S.W.2d 541 (1968)). In the Tortorich case, a wife obtained a limited divorce in Pulaski County, for which an appeal was still pending. Id. The Pulaski County Circuit Court, at that time still the Chancery Court, specifically had retained jurisdiction for further orders. See id. Her husband then moved to Saline County and filed for an absolute divorce there, before the appellate revision had become available. Id. The wife moved to dismiss the action in Saline County because of pendency of the Pulaski County action between the same parties arising out of the same occurrence. Id. The trial court in Saline County denied dismissal and- granted the husband an absolute divorce, with terms differing from the order from the Pulaski County trial court. Id.
The Tortorich court based its decision in part on Ark. R. Civ. P. 12(b)(8), which provides that a cause may be dismissed because of “pendency of another action between the same parties arising out of the same transaction or occurrence.” Id. In addition, the Tortorich court referred to another case in which one party had brought a suit to foreclose on property in chancery court, while at the same time bringing an action in replevin in circuit court, as two separate causes of action on the same subject matter. Id. (citing Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934)). The Moore court held that the chancery court, being the first to acquire jurisdiction, had jurisdiction to bring adequate and complete relief, and that the party could not bring an action for replevin in circuit court as well. Id. Relevant for the analysis of the instant case, the 1934 reasoning-employed by our supreme court was:
This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.
Id. at 131, 919 S.W.2d at 214 (citing Moore v. Price, 189 Ark. at 121-22, 70 S.W.2d at 565) (emphasis ours).
Here, the Pulaski County Circuit Court had ongoing jurisdiction over the visitation dispute between the parties. Even though appellant did not include any documentation of the Pulaski County Circuit Court proceedings in the addendum of his brief and even though none of the Pulaski County proceedings became part of the record of the White County proceedings, the record makes it abundantly clear, by testimony of both appellant and appellee, that the Pulaski County Circuit Court had a proceeding ongoing concerning their visitation dispute. It also becomes clear that the Pulaski County court had available the same testimony concerning the Searcy restaurant incident. Notably, the record reflects that the trial judge in White County was on notice that the Pulaski County court either had dealt with the matter or was in the process of dealing with it.
Consequently, we hold that the trial judge erred when he assumed jurisdiction over the matter. It is true that, strictly speaking, the Pulaski County Circuit Court did not have before it a protective order. However, it had before it appellee’s continuous desire to have visitation modified. The protective order from November 2002, while certainly going to the heart of an incident that occurred within the jurisdiction of the White County Circuit Court, primarily dealt with the issue of whether appellant could exercise his right to visitation for another year. In light of the fact that the Pulaski County court dealt with anything that might affect the valid and ongoing Pulaski County Circuit Court visitation order in the parties’ case, the White County Circuit Court should have refrained from exercising its jurisdiction. Therefore, we reverse and dismiss. As such, it becomes unnecessary to discuss appellant’s remaining points on appeal.
Reversed and dismissed.
Pittman and Hart, JJ., agree. | [
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John F. Stroud, Jr., Chief Judge.
This is a workers’ compensation case in which appellant, Calvin Dooley, sustained a back injury while working for appellee, Automated Conveyor Systems, Inc. Appellee and its workers’ compensation carrier, appellee Fremont Compensation, refused to pay appellant’s medical expenses. Consequently, those expenses were partially paid by appellant’s health-care-plan provider. Following a hearing on his workers’ compensation claim, the ALJ determined that appellant’s injury was compensable and awarded benefits. Appellant subsequently sought a clarification of the ALJ’s ruling concerning the issue of whether appellees were entitled to an offset for the medical expenses that were paid by the health-care-plan provider. The record was supplemented to show that the employer was self-insured with respect to the employees’ health-care plan and that both the employer and the employees contributed to the cost of the plan. The ALJ then ruled that appellees were entitled to an offset for the benefits paid by the health-care plan, pursuant to Arkansas Code Annotated section 11-9-411 (Repl. 2002), and that the constitutional argument raised by appellant was not timely made. The Commission affirmed the ALJ with respect to the offset, but determined that the constitutional issue had been timely made. Even so, the Commission found that the constitutional challenge was without merit. This appeal followed. We affirm.
For his first point of appeal, appellant contends that the Commission “erred in concluding that the offset provisions of Arkansas Code Annotated section 11-9-411 apply to group health plan benefits regardless of whether the premiums therefor are paid by the employer or the employee.” We find no error.
Our review is de novo because it is for our appellate courts to decide what a statute means. South Central Arkansas Elec. Coop. v. Buck, 354 Ark. 11, 117 S.W.3d 591 (2003). Arkansas Code Annotated section 11-9-411 (Repl. 2002) provides:
11-9-411. Effect of payment by other insurers.
(a) Any benefits payable to an injured worker under this chapter shall be reduced in an amount equal to, dollar-}or- dollar, the amount of benefits the injured worker has previously received for the same medical services or period of disability, whether those benefits were paid under a group health care service plan of whatever form or nature, a group disability policy, a group loss of income policy, a group accident, health, or accident and health policy, a self-insured employee health or welfare benefit plan, or a group hospital or medical service contract.
(b) The claimant shall be required to disclose in a manner to be determined by the Workers’ Compensation Commission the identity, address, or phone number of any person or entity which has paid benefits described in this section in connection with any claim under this chapter.
(c)(1) Prior to anyfinalawardorapprovalofajointpetition.the claimant shall be required to furnish the respondent with releases of all subrogation claims for the benefits described in this section.
(2) (A) In the event that the claimant is unable to produce releases required by this section, then the commission shall determine the amount of such potential subrogation claims and shall direct the carrier or self-insured employer to hold in reserve only said sums for a period of five (5) years.
(B) If, after the expiration of five (5) years, no release or final court order is presented otherwise directing the payment of said sums, then the carrier or self-insured employer shall tender said sums to the Death and Permanent Total Disability Trust Fund.
(Emphasis added.) In developing his argument, appellant acknowledges that subsection (a) does not specify that any such policy or plan must be funded solely by the employer before an offset can occur. He argues, however, that it is the only reasonable construction of the statute. We do not agree.
In American Standard Travelers v. Post, 78 Ark. App. 79, 82, 77 S.W.3d 554, 555 (2002), we explained the basic rules of statutory construction:
[W]e recognize that the basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). Arkansas Code Annotated section 11-9-704(c)(3) (Repl. 1996) states that we are to construe the workers’ compensation statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). The doctrine of strict construction is to use the plain meaning of the language employed. Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Where the language of a statute is unambiguous, we determine legislative intent from the ordinary meaning of the language used. Leathers v. Cotton, 332 Ark. 49, 52, 961 S.W.2d 32, 34 (1998). In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Locke v. Cook, 245 Ark. 787, 434 S.W.2d 598 (1968).
The language of section 11-9-411(a) is clear. It is evident that the legislature intended for the amount of workers’ compensation benefits payable to an injured worker to be reduced “dollar-for-dollar” by the amount of benefits that the worker has previously received for the same medical services under any of the listed group plans. Appellant’s construction of this section would reqtiire that we find an intention to allow offsets only in cases where the employer alone funded the plan ■ — ■ something that is not clearly expressed in the statutory language. Moreover, appellant notes that the initial clause in section 11-9-411(a) provides, “benefits payable to an injured employee . . . .” He contends that a strict construction of this language precludes an offset for medical expenses that were paid directly to a medical provider instead of to the injured employee. Again, we do not agree. Using the plain meaning of the language employed in this clause, it is clear that medical expenses that are paid directly to a medical provider are paid on behalf of the injured employee and are thus “payable” to the employee.
The case law relied upon by appellant in support of his position preceded the 1993 amendment of our workers’ compensation laws, and, in particular, preceded the enactment of section 11-9-411 (a). He relies upon pre-1993 cases, i.e., those decided prior to the enactment of section 11-9-411 as part of a comprehensive revision of the Arkansas workers’ compensation laws. In the pre-1993 cases, no offset was allowed for payments made from private insurance or plans unless the employer could establish clearly that the claimant had received payments from insurance provided by the employer and that sums paid to the injured employee were intended as advance payments of compensation. See, e.g., Riverside Furn. Co. v. Loyd, 42 Ark. App. 1, 852 S.W.2d 147 (1993); Southwestern Bell Tel. Co. v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966). A critical factor in these cases was whether the premiums were paid by the employees or the employer. Here, the health plan was funded by contributions from both the employer and the employee. Appellant contends that the Commission’s decision is therefore clearly contrary to the cited case law. Appellant’s reliance upon these pre-1993 cases is misplaced because they are simply no longer controlling.
Appellant next argues under this point that construing section 11-9-411(a) to allow an offset for group health or disability benefits contributed to by the employee is, in effect, contributing to the cost of his workers’ compensation benefits in violation of Arkansas Code Annotated section 11-9-109 (Repl. 2002). However, appellant’s reliance upon section 11-9-109 is misplaced. Section 11-9-109 provides:
Agreement to pay premium void.
(a) No agreement by an employee to pay any portion of the premium paid by his or her employer to a carrier or to contribute to a safety program as provided under § 11-9-409 or a benefit fund or department maintained by the employer for the purpose of providing compensation or medical services and supplies as required by this chapter shall be valid.
(b) Any employer who makes a deduction for those purposes from the pay of any employee entitled to the benefits of this chapter shall be guilty of a Class D felony.
The short answer to appellant’s argument in this regard is that there was neither an agreement by appellant to pay a portion of the workers’ compensation premium nor a deduction for that purpose from his paycheck. Moreover, we do not agree that allowing offsets pursuant to the clear language of section ll-9-411(a), in effect, violates section 11-9-109.
For his last subpoint under this point of appeal, appellant contends that section 11-9-411 “contains inconsistencies that prohibit an offset.” The alleged inconsistency lies in 11 — 9— 411(c)(1), which requires the claimant to furnish the respondent with a release of all subrogation claims for the benefits described in this section. Appellant argues that the only way the claimant can provide for such a release is for the respondents to pay the group-medical-expense provider all sums it may have paid, which precludes it from being granted an offset. We disagree.
In its opinion in this case, the Commission addressed this portion of appellant’s argument as follows:
As we understand operation of the statute ... a workers’ compensation carrier will hold in reserve and ultimately reimburse a group carrier for those medical benefits paid for by the group carrier. The workers’ compensation carrier will also take a dollar-for-dollar offset (i.e., not pay the claimant or the medical provider) for benefits described in Section 411(a), and the group carrier will provide a release of any potential subrogation claims once it has been reimbursed by the workers’ compensation carrier for those medical benefits already paid for by the group carrier. Consequendy, we see no merit in the claimant’s argument on appeal that the requirements of Ark. Code Ann. § ll-9-411(c)(l) render impossible the dollar-for-dollar offset provided to the workers’ compensation carrier under Ark. Code Ann. § ll-9-411(a).
The interpretation given a statute by the agency charged with its administration is highly persuasive, and while not conclusive, it should not be overturned unless it is clearly wrong. Death & Perm. Dis. Trust v. Anderson, 83 Ark. App. 230, 125 S.W.3d 819 (2003). We find nothing clearly wrong with the Commission’s interpretation of section 11-9-411(c).
For his second point of appeal, appellant contends that the Commission “erred in concluding that Arkansas Code Annotated section 11-9-411 is constitutional as applied in allowing an employer and its workers’ compensation carrier to claim an offset for group health plan benefits contributed to by the claimant employee.” Again, we find no error.
As explained in Ester v. National Home Centers, Inc., 335 Ark. 356, 364, 981 S.W.2d 91, 96 (1998):
All statutes are presumed constitutional and we resolve all doubts in favor of constitutionality. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). The party challenging a statute’s constitutionality has the burden of proving that the act lacks a rational relationship to a legitimate objective of the legislature under any reasonably conceivable set of facts. Arkansas Hosp. Ass’n v. Arkansas St. Bd. of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). See also Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990). It is not our role to discover the actual basis for the legislation. Arkansas Hosp. Ass’n, supra; Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). We merely consider whether there is any rational basis which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of arbitrary and capricious government purposes. If we determine that any rational basis exists, the statute will withstand constitutional challenge. See Arkansas Hosp. Ass’n., supra.
Appellant’s constitutional challenge lies in the Commission’s interpretation of section 11-9-411 to allow employers an offset for medical benefits partially paid by group plans, which have been funded in part by employee contributions. He contends that if the Commission correctly interpreted the statute in that manner, then it is unconstitutional. He argues that workers’ compensation benefits are provided by employers in exchange for employees’ forbearance from suing the employer in tort; that as such they are valuable benefits; that those benefits cannot be denied or taken away for constitutionally impermissible reasons; that property interests are constitutionally protected and no state can deprive one of his property without due process of law; and that if those rights are so denied, Article 2, Section 13, of the Constitution of Arkansas entitles the aggrieved party to a remedy in the law.
In addressing appellant’s constitutional challenge, the Commission explained:
[W]e understand the provisions of Section 411 to protect third-party payors of medical benefits, and to provide a means for those third-party payors to recover their payments from the workers’ compensation carrier who is ultimately liable for payment of those medical benefits under the statutory provisions cited by the claimant’s brief. We find that Ark. Code Ann. § 11-9-411 is rationally related to a legitimate governmental interest in providing a means for third-party payors of medical benefits to recover their payments from the workers’ compensation carrier who is obligated under the workers’ compensation law to pay for those medical benefits, as well as a legitimate governmental interest in controlling insurance costs by eliminating the double recovery of medical costs that the claimant apparently seeks in the present case. We point out that, by explicitly providing a means for reimbursement to group carriers from workers’ compensation carriers for injuries ultimately determined to be work related, Section 411 also appears to, at least in part, remove a disincentive group carriers might otherwise have had under prior law to avoid making any medical payments until after an injury has been adjudicated either work related or nonwork related.
Appellant simply did not meet his burden of proving that the act lacks a rational relationship to a legitimate objective of the legislature, and the Commission’s explanation of the statute’s purpose demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of arbitrary and capricious government purposes. We find that a rational basis exists for the statute, and that it therefore withstands appellant’s constitutional challenge.
Affirmed.
Pittman, Gladwin, and Robbins, JJ., agree.
Baker and Roaf, JJ., dissent.
As noted by the Commission in its opinion, the ALJ did not award any temporary disability benefits, and appellant did not appeal the ALJ’s decision in that regard to the Commission. Consequendy, as found by the Commission, appellant failed to estabhsh that he was harmed by section 11-9-411 as it may apply to disability benefits, and his constitutional challenge in that regard has been rendered moot by the lack of any award of disability benefits. Therefore, to the extent that appellant may include disability benefits in his arguments on appeal to this court, they are not preserved and we do not address them. | [
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Robert J. Gladwin, Judge.
Claimant Charles Garth suffered a fatal injury on July 14, 1999, that was admittedly compensable. His representatives sought workers’ compensation benefits for his widow and two minor sons, Tavarie Lamar Stewart and Tavorie Lamar Garth. The Administrative Law Judge (ALJ) awarded benefits to the minor children, but denied benefits to the widow on the grounds that she was not dependent on claimant. The widow did not appeal. The respondents appealed as to the benefits awarded to the children. The Commission affirmed the ALJ’s award of benefits. Appellants argue on appeal to this court that the Commission’s decision that the minor children were wholly and actually dependent on claimant at the time of his death is not supported by substantial evidence. We affirm.
The Commission gave the following history of events leading up to the claim for benefits. Tiffany Stewart began a relationship with claimant in 1988, when they lived next door to one another in Las Vegas, Nevada. Their child, Tavarie Lamar Stewart, was born on August 26,1989. Claimant had moved from Las Vegas before Tavarie was born, but later returned for about one year. Ms. Stewart testified that Tavarie spent alternating weeks with his father until the claimant moved back to Arkansas in late 1992 or early 1993. She stated that although their visits became sporadic after that, claimant maintained consistent contact with Tavarie, regularly sending money and gifts through his brother and other family members. She further testified that claimant occasionally telephoned Tavarie, his last call being approximately one week before his death. Ms. Stewart said that claimant’s family allowed Tavarie to attend claimant’s funeral with them, that they continue to acknowledge him as claimant’s son, and that they have maintained a relationship with him following claimant’s death. Ms. Stewart applied for, but never received, formal child support. Although claimant’s name does not appear on Tavarie’s birth certificate, Ms. Stewart testified that he had always acknowledged Tavarie as his son and that he had asserted paternity of Tavarie on forms he filled out for the Social Security Administration when he had applied for disability benefits.
Tavorie Lamar Garth was born on April 4, 1991, in Monroe, Louisiana, a few weeks after claimant had married the boy’s mother, Felecia Garth. Claimant and Mrs. Garth separated in December of 1991, and claimant moved back to Arkansas, where he died in 1999. Mrs. Garth remained in Louisiana, and the parties never divorced. Mrs. Garth testified that Tavorie visited his father once or twice each month in either Arkansas or Louisiana and that Tavorie spent time with claimant and claimant’s mother when claimant came to Louisiana. Mrs. Garth applied for, but never received, formal child support. However, she testified that claimant did give his son money and buy food and clothing for him when they were together.
Arkansas Code Annotated section 11-9-527 (Supp. 2001) provides death benefits for dependents of workers who die in work-related accidents. It states, in pertinent part, that “compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee ....” Appellants contend that a finding that the children were “wholly and actually dependent” is not supported by substantial evidence.
Before the adoption of Act 1227 of 1976, which added the requirement ofbeing “actually dependent,” benefits were payable to persons “wholly dependent.” In Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958), the supreme court stated its belief that the Legislature used the term ‘wholly dependent’ in the sense of applying to those ordinarily recognized in law as dependents, and thus created a conclusive presumption that a minor child is wholly dependent upon a parent. See Doyle’s Concrete Finishers v. Moppin, 268 Ark. 167, 594 S.W.2d 243 (1980).
In interpreting the effect of the 1976 amendment, the supreme court noted in Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979), that by inserting the phrase “and actually,” the legislature apparently intended to change the conclusive presumption of dependency established under prior case law. The court concluded that when a widow and child are not living with the employee at the time of his death, there must be some showing of actual dependency. Because the widow in Roach had elected to support herself and made no effort during her husband’s eleven-month absence preceding his death to enforce whatever legal right to support she may have had, the court affirmed the Commission’s finding that she had failed, in the language of the amended statute, to “establish in fact some dependency” upon her husband at the time of his death. However, the court also affirmed the Commission’s finding that with respect to the parties’ minor child, who was being supported by her mother, the same time period without legal action did not demonstrate that there was no longer any “reasonable expectation of support” from the father to the child.
In Doyle’s Concrete Finishers, supra, the supreme court addressed the issue of whether a minor child, not living with the claimant-parent and receiving only a part of his support from that parent, was entitled to maximum death benefits. The claimant in Doyle's Concrete had been obligated to make child support payments, and there was testimony that he also provided child care on occasion, bought clothing and gifts for the child, and paid for the child’s medical expenses. The court noted that the child’s sole source of income since his father’s death was a monthly social security check; that his necessary expenses would naturally increase as he grew older; and that the widow had become unable to work due to severe health problems. In affirming the Commission’s decision to award maximum benefits to the child, the court stated, “Certainly, if, as in Roach, the child who received no financial support was entitled to maximum benefits, it must be said that a child, as here, who receives some financial support, should be entitled to no less than the maximum benefits.” 268 Ark. at 171, 594 S.W.2d at 245.
In Porter Seed Cleaning, Inc. v. Skinner, 1 Ark. App. 230, 615 S.W.2d 380 (1981), we affirmed the Commission’s award of maximum dependency benefits to the child where the deceased employee was voluntarily contributing $100 a month to the support of the child, who resided with the deceased’s estranged wife, and was also providing insurance for the child. We summarized the definitions of “wholly dependent” and “actually dependent” as follows:
Under the holding in Chicago Mill, and Roach, . . . persons who are ordinarily recognized in law as dependents, including a wife and children, and to whom the employee owes a duty of support, are “wholly dependent” under our Workers’ Compensation Law.
“Actually dependent,” in light of the prior cases, does not require total dependency. All that is required is a showing of actual support or a reasonable expectation of support.
1 Ark. App. at 234, 615 S.W.2d at 382 (1981).
Subsequent to the passage of Act 796 of 1993, the supreme court decided Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998), in which the Commission had awarded death benefits to a deceased employee’s three children where the deceased did not have custody and did not pay child support, but was found to have contributed to the children’s support in other ways, such as buying food, school clothes and supplies, and helping pay for their travel arrangements. The respondent employer and insurer appealed, arguing that the strict construction of the workers’ compensation statutes, as required by Act 796 of 1993, compelled a holding that the children were not “wholly and actually’.’ dependent on the deceased at the time of the injury, and that they were therefore not entitled to dependents’ benefits.
Appellants in Lawhon sought to have the court define the words “wholly” and “actually” according to their dictionary definitions. The supreme court stated that appellants’ view of a strict construction of this part of the statute would require the children to prove that, at the time of their father’s death, they were entirely or completely dependent upon him for support. The court concluded that “[a]pplying the dictionary definitions urged by Lawhon would mean that a minor child would never be entitled to the death benefits specified in ll-9-527(c)(3) where the parents were divorced and the child received any support whatever from the surviving parent. That would be an absurd result, and we will not adopt such an interpretation.. .. We are confident our General Assembly could not have intended the result suggested by [appellants].” 335 Ark. at 281, 984 S.W.2d at 5 (1998).
Appellants in Lawhon further contended that our case law dealing with dependents’ benefits was in conflict with Ark. Code Ann. § 11-9-527 and should not be applied to cases arising after the effective date of Act 796, which was July 1,1993. Our supreme court held that the previous decisions interpreting the statutory language in question were not inconsistent with Act 796 of 1993 and remained controlling as the wording of Ark. Code Ann. § 11-9-527 was not changed by the Act.
The court in Lawhón also noted that the General Assembly is presumed to be familiar with the court’s interpretations of its statutes, and if it disagrees, it can amend the statutes, as it did when the word “actually” was added to the provisions of Ark. Code Ann. § 11-9-527 subsequent to the court’s decision in Chicago Mill & Lumber Co. v. Smith, supra. Without such amendments, however, the appellate courts’ interpretations of the statutes remain the law. Lawhon Farm Servs., supra.
Appellants herein contend that the finding of the Commission is not supported by substantial evidence. Dependency is a fact question to be determined in the light of the surrounding circumstances. Robinson v. Ed Williams Constr. Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992). When the Commission makes a finding of fact, that finding carries the weight of a jury conclusion. Bankston v. Prime West Corp., 271 Ark. 727, 610 S.W.2d 586 (Ark. App. 1981). The decision of the Commission must stand if supported by substantial evidence. Id. The issue on appeal is not whether this court would have reached the same results as the Commission on this record or whether the testimony would have supported a finding contrary to the one made; the question is whether the evidence supports the findings made by the Commission. Robinson, supra. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have reached the same conclusion reached by the Commission. Id.
Here, it was shown that the deceased had acknowledged both boys as his sons; that he had visited with them or maintained telephone contact with them; and that he had contributed, albeit sporadically, to their welfare by spending money for gifts and for certain needs such as food and clothing. The fact that the boys’ mothers did not secure child-support payments or more consistent and substantive contributions from the boys’ father did not mean that the boys no longer had any reasonable expectation of support from the father. See Roach Mfg. Co., supra. As noted in Robinson, supra, the test of “actual dependency” does not require a showing of total dependence; a finding of some measure of actual support or a reasonable expectation of support will suffice.
In light of all the attendant circumstances, we conclude that there was substantial evidence to support the finding of the Commission that Tavarie Lamar Stewart and Tavorie Lamar Garth were wholly and actually dependent upon the deceased claimant, Charles Garth. Accordingly, the award of dependency benefits pursuant to Ark. Code Ann. § 11-9-527 is affirmed.
Affirmed.
Griffen and Roaf, JJ., agree. | [
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Tom Glaze, Judge.
This appeal arises from the trial court’s decision to enforce a separation and property settlement agreement. The court found the parties had agreed that their property, held by the entirety, should be converted to a tenancy in common and sold, with the proceeds to be divided equally between them. Relying on Killgo v. James, 236 Ark. 537, 367 S.W.2d 228 (1963), appellant argues that she and her husband, Floyd Rucks, never intended by their property settlement agreement to terminate immediately their estate by the entirety. Because Mr. Rucks died only eighteen days after he and the appellant consummated their agreement, his estate is represented in this cause by his daughter, appellee Martha Taylor. Mr. Rucks died before he and appellant were divorced and before their property, the subject of the agreement, was sold. Consequently, appellant contends she is the sole owner of the property by virtue of surviving Mr. Rucks, who predeceased her while they were still lawfully married. Appellee, of course, seeks affirmation of the trial court’s decision that the subject property be sold and the net proceeds divided between appellant and Mr. Ruck’s estate.
Because appellant’s contention is based on Killgo v. James, id., we first review the facts and holding in that case. In 1949, the Killgos bought a home as tenants by the entirety; in 1954, they divorced, and the court approved a property settlement by which the parties agreed to sell the home later on and divide the proceeds. Four years later, and before the parties’ home was sold, Mr. Killgo died. Mr. Killgo’s heirs brought suit against his former wife, claiming that the properly settlement agreement converted the estate by entirety into a tenancy in common and arguing further that they owned a one-half interest in the property. The trial court held that the estate by the entirety continued after the Killgos’ agreement, and title vested by survivorship in the former wife. The Supreme Court affirmed the lower court on this point, stating that whether the estate changed into a tenancy in common turned upon the construction of the language in the settlement agreement. That agreement, signed by both parties, was a part of Mr. Killgo’s appearance and waiver entered in the parties’ pending divorce action; it provided as follows:
It is understood that the decree to be entered herein is to provide that Charlie C. Killgo is to have possession, use and control of the [home] . . . together with the furniture therein, until such time as the parties to this case may agree on a sales price for such, at which time, on such agreement, the proceeds are first to be used to reimburse Charlie C. Killgo for all monies he has paid or will pay on the mortgage on same after date of August 1953, after which the balance of the proceeds is to be divided between the parties hereto equally.
Id. at 541, 367 S.W.2d at 230-31.
In holding that the above language failed to change the parties’ estate into a tenancy in common, the Supreme Court stated:
We cannot find one sentence or even one word, in the agreement or in the decree, to support the conclusion that the parties had an affirmative intention to bring about an immediate termination of the tenancy by the entirety. It is desirable that titles to real property rest in certainty and stability. For a couple to declare that they will sell a piece of property at some future date and divide the proceeds is not even a roundabout way of saying that they will also become tenants in common at once. The language that the Killgos selected, with the advice of counsel, is perfectly consistent with a desire on their part to leave the estate untouched until a sale should be completed.
Id. at 539, 367 S.W.2d at 230.
In the instant case, appellee extracts the following provision from the Rucks’ separation and property agreement and, citing Killgo as controlling, argues the language in the provision manifests no intent by the parties to change their estate into one in common:
That the residence of the parties hereinafter more completely described, should be sold at fair market value, and following the deduction of all reasonable costs from the sale, the proceeds be divided equally between the parties.
In comparing the foregoing provision with the agreement in Killgo, we note three significant differences: (1) the Killgos provided that Mr. Killgo would retain possession, use and control of their home, together with the furniture therein, until the home was sold; on the other hand, the Rucks failed to provide that either of them would remain in possession of their home; (2) the Killgos, contemplating Mr. Killgo’s continued possession of the home, provided he would be reimbursed for all monies paid on the mortgage; the Rucks’ agreement had no provision for possession or reimbursement to the party in possession; and (3) the Killgos agreed to sell their property at such time as the parties "may agree on a sales price”; whereas the Rucks agreed to sell at fair market value. These differences underscore one important point, viz., the Rucks — in contrast to the Killgos — did not provide for either spouse to continue in possession of their home, and consequently, they deemed a reimbursement provision unnecessary. Although no sale date was specified in their agreement, the Rucks provided the home would be sold at fair market value, which presumably could have been accomplished within a reasonable time from when they executed their settlement. Thus, the situation is distinguishable from the one in Killgo; we believe the trial court correctly construed the agreement in finding the Rucks intended the instrument to have an immediate effect. Furthermore, we find sufficient evidence to support the trial court’s conclusion that the parties intended to convert their estate to a tenancy in common.
In considering whether the Rucks intended to change their estate to a tenancy in common, we must refer to other pertinent provisions contained in their agreement. Before doing so, however, we briefly note that since Killgo was decided, a significant statutory change has occurred involving the dissolution of estates by the entirety in divorce actions. At the time Killgo was decided, the trial court was required specifically to dissolve an estate by entirety in its decree in order for the parties to be treated as tenants in common after their divorce; if such action was not requested or ordered, they continued holding their property be the entirety. See Ark. Stat. Ann. § 34-1215 (Repl. 1962). In 1975, the Arkansas General Assembly enacted Act 457 [now compiled as Ark. Stat. Ann. § 34-1215 (Supp. 1983)], which provided that unless the court’s decree provided otherwise, property held by the entirety was automatically dissolved at divorce, and the parties would be treated thereafter as tenants in common. Again, we are faced with a meaningful distinction — this time in the law — between the Killgo decision and the one which we must make here. As the court stated in Killgo, “the language the Killgos selected, with the advice of counsel, is perfectly consistent with a desire on their part to leave the estate untouched until a sale should be completed.” Id. at 539-40. Of course, in the instant case, a divorce proceeding was pending between the Rucks, and upon the rendition of a divorce in that action, their estate by the entirety would have dissolved automatically because they had not provided in the agreement for their estate to be treated otherwise. Thus, consistent with the language the Rucks selected, they would have become tenants in common when their divorce was granted.
As noted earlier, other provisions in the Rucks’ agreement support the conclusion that they intended to be treated as tenants in common. For example, the parties expressed that all rights, interests, liabilities and relations with respect to property and financial matters would be finally and conclusively fixed and determined by their agreement. Additionally, the Rucks provided (a) their agreement would be incorporated in any decree granted in any subsequent divorce action, and (b) they would execute all instruments necessary to “effectuate the provisions of the agreement.” Obviously, these requirements are consistent with the parties’ intent to hold their property in common, especially when viewed in light of their further stipulation that all of the provisions of their agreement “shall be binding upon their respective heirs, next of kin, executors and assigns.” To state the obvious, an estate held by entirety cannot be an estate of inheritance. Roulston v. Hall, 66 Ark. 305, 50 S.W. 690 (1899). Thus, to give meaning to the provision employed by the parties to bind their personal representatives and assigns, we must assume — at least as the agreement pertains to the subject property — that they intended to hold their property in common — not by the entirety — after the agreement was consummated.
In sum, we believe the trial court construed the parties’ agreement correctly and the findings made by it are not clearly erroneous. Therefore, we affirm.
Affirmed.
Mayfield, C.J., and Cooper, J., agree.
In Killgo, the entire agreement is that which is set out in this opinion. | [
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Lawson Cloninger, Judge.
Appellant was convicted by jury verdict of forgery in the second degree and sentenced to five years in prison. Appellant urges five points for reversal of his conviction, but we find no reversible error.
Appellant’s first point for reversal is that the trial court erred in ruling that appellant’s statement to the police was voluntarily given.
Appellant’s version of the events transpiring after his arrest was that he first gave a tape recorded statement, was then advised of his rights, and the next day signed a transcribed copy of his statement. The only threat or intimidation claimed by appellant was that a police officer threatened to give him a “Southern haircut.” Appellant testified that if the tape were played the recording would be identical to the transcribed statement. He stated that he had been advised of his right to remain silent before he signed the transcribed statement, but not prior to the giving of the recorded statement.
Officer Claude Wells testified that appellant was advised of his rights prior to the giving of the recorded statement and that appellant signed a standard waiver of rights form. The bottom portion of the rights form consisted of a waiver of rights, stating that appellant had read the statement of his rights, understood them, was willing to make a statement and answer questions, and did not want an attorney. Officer Wells testified that the recorded statement was transcribed, and that on the next day appellant read it, stated that there were no corrections needed, and signed it. Officer Wells testified that no promises or threats were made and specifically denied threatening to cut appellant’s hair.
Where the voluntariness of a confession is in issue, any conflict in the testimony of the witnesses is for the trial court to resolve. Williamson v. State, 277 Ark. 52, 639 S.W.2d 55 (1982). There was a conflict in the testimony of Officer Wells and appellant, and this court must defer to the superior position of the trial judge to make such a resolution. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980).
Appellant’s second point for reversal is that the trial court erred in admitting into evidence the transcribed copy of appellant’s confession and refusing to require the state to introduce into evidence the recording of the statement. Appellant argues that the best evidence rule was violated by the introduction into evidence of the transcribed statement, citing Rule 1002 of the Uniform Rules of Evidence. Rule 1002 provides in pertinent part as follows:
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required. . . .
We do not perceive the issue here to involve the best evidence rule. What we have is a new statement, signed by appellant after he was admittedly advised of his rights. In any event, there is no showing of prejudice, because all the evidence, including the testimony of appellant, was that the recording and the transcribed statement were identical.
Appellant’s next point for reversal is that the trial court erred in overruling appellant’s objection to the prosecutor’s closing argument that (1) appellant intended to commit additional criminal violations and (2) appellant could not pay a fine.
The general rule is that the prosecutor may not assert that the defendant’s character is questionable where there is no adequate justification in the evidence. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (Ark. App. 1979). It is also a fundamental rule that the closing arguments of counsel must be confined to the questions in issue, the evidence introduced at the trial and all reasonable inferences and deductions which can be drawn therefrom. Simmons & Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961). The trial judge, however, has a very broad latitude of discretion in supervising and controlling arguments of counsel, and his action is not subject to a reversal unless there is manifest gross abuse of that discretion. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). Not every comment, though improper, is of such magnitude as to constitute reversible error. See Gustafson v. State, supra, where the prosecutor referred to certain persons as “rats”; Miller v. State, 250 Ark. 199, 464 S.W.2d 594 (1971), where the prosecutor referred to the defendant as a con artist; Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970), where the prosecutor remarked that the defendant apparently made a livelihood from crime.
Both comments by the prosecutor in this case were logical inferences that could be drawn from the evidence. Appellant admitted that he had the alleged victim’s entire checkbook on him which had eight additional checks in it, and there was no evidence that appellant had attempted to return the checks to the owner. Appellant stated that he had no mailing address or residence, and that he had arrived in Texarkana, Arkansas, where he was arrested, at 2:30 a.m. the day he was arrested, on a freight train.
Appellant contends that the trial judge was in error when he failed to give any admonition to the jury regarding the prosecutor’s remarks, but the record reflects that no request was made for an admonition. Appellant made no request that the trial court take any specific action, and he cannot now complain that no action was taken. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).
The trial court instructed the jury that “closing arguments of the attorneys are not evidence” and that “any arguments, statements or remarks of attorneys having no basis in the evidence should be disregarded by you.” Those instructions by the court were sufficient to cure any impropriety on the part of the prosecutor. See Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981).
Appellant’s final point for reversal is that the statutory sentence for forgery in the second degree, and the five year sentence in this case, are violative of constitutional provisions against cruel and unusual punishment.
Forgery in the second degree is a class C felony under the provisions of Ark. Stat. Ann. § 41-2302(5) (Repl. 1977), and Ark. Stat. Ann. § 41-901 (Supp. 1981), provides that the sentence for a class C felony is from four to ten years.
It is within the power of the legislature to classify crimes and to determine punishment. Stout v. State, 249 Ark. 24, 458 S.W.2d 42 (1970). The Arkansas Supreme Court has consistently held that if a sentence comes within the limits imposed by statute, it is not cruel and unusual. See Stout v. State, supra; Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981). The fact that punishment is severe does not make it cruel or unusual. Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976).
In this case appellant did not receive the maximum punishment authorized by law but instead received only one year above the minimum of four years.
The judgment of the trial court is affirmed.
Cooper and Corbin, JJ., agree. | [
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Andree LAYTON Roaf, Judge.
Ronald Owen was convicted in a Craighead County jury trial of possession of methamphetamine with intent to deliver, possession of drug paraphernalia with intent to manufacture, possession of marijuana with intent to deliver, and misdemeanor possession of paraphernalia with intent to use, for which he received concurrent sentences of 120, sixty, seventy-two, and twelve months, respectively, in the Arkansas Department of Correction. On appeal, Owen challenges a finding by the trial court that he lacked standing to challenge the validity of the search of a motel room where he was staying as a “guest occupant.” We affirm.
At a hearing on Owen’s suppression motion, Jonesboro Best Western desk clerk Mary Cheney testified that on July 30, 1999, Room 222 was rented to Teresa Johnson of Paragould. Cheney stated that on the day in question she was sent to the room by the manager to rectify a telephone problem. According to Cheney, she knocked and was admitted to the room by a gentleman who was there alone. In the course of changing the phone from one jack to another, she noticed a large amount of cash on the bed and a “really bad smell . . . like ether.” Cheney called the police, who arrived at the motel approximately thirty minutes later.
Jonesboro officers Tommy Crawford and Kevin Foust responded to Cheney’s call. Officer Crawford testified that while Officer Foust knocked on the door, he stood at the window. Owen answered the door and stepped out of the room to speak with the officers, closing the door behind him. Officer Crawford stated that he turned his attention to the window itself and through a three-inch gap in the curtains, he observed loose marijuana on a tray that was sitting on a table that was just inside the room. He also observed a digital scale and a two-quart mason jar that contained a clear liquid. Officer Crawford asserted that based on his experience as a law-enforcement officer, the scales were commonly used for weighing narcotics. Additionally, he detected the smell of ether, which from his experience and training, he associated with the manufacture of methamphetamine. The next thing he observed was a female and a male quickly gathering the suspected contraband from the table. Officer Crawford feared that evidence would be destroyed and alerted Officer Foust of this fact. Officer Foust entered the room while Officer Crawford arrested Owen. Officer Foust secured the two suspects and called in drug task force officers. According to Officer Crawford, the officers made a quick sweep of the room for other suspects, during which he discovered in plain view what appeared to be methamphetamine, as well as coffee filters, tubing, and an open cooler that contained chemicals that were commonly used in the production of methamphetamine. Upon the arrival of drug task force agents, Officer Crawford transported the three suspects to the county jail and returned to await the return of Teresa Johnson.
Officer Foust corroborated the testimony of Officer Crawford and further testified that he observed the female suspect pouring out a two-quart jar of liquid, and confirmed that there was an ice chest in plain view that contained several chemicals that he knew were commonly used in the manufacture of methamphetamine. He also observed some glassware, a blender, and some rubber tubing. When he arrested Owen, Officer Foust searched him and found a baggie containing what he believed was methamphetamine. When Johnson arrived, the officers confronted her and explained that three individuals had been arrested in the room she had rented and the police had observed what they believed was drug paraphernalia. Johnson then signed a consent-to-search form.
Drug task force officer Jerry Roth testified that when he arrived at the motel, Officers Foust and Crawford were already in Room 222 with the three suspects. He confirmed that there was a possible methamphetamine lab in plain sight in the room. He stated that he and Officer Foust were en route to get a search warrant when the officers on the scene got consent to search. Officer Roth stated that marijuana was found on the floor of the bathroom along with some residue in the toilet. He also stated that he detected an odor of ether in the room and, based on his experience and knowledge of the process, that the odor would be present during the later stages of cooking methamphetamine.
Testifying on his own behalf, Owen stated that when the police arrived, he had been in the room “no longer than an hour,” and he admitted that the room was not his. He denied seeing any loose marijuana or digital scales, but admitted that he had seven bags of marijuana zipped up in an overnight bag. He disputed the police’s ability to see inside the room, asserting that the blinds were closed. He also stated that he did not remember any smell of ether in the room and that he had never been present when methamphetamine was being made. According to Owen, he knew that Teresa Johnson had rented the room, and he got a key to the room so that he could stay with Johnson’s sister, Erin Lizinby. Owen recalled that a man, who was dating Johnson at the time, and another female acquaintance were also present. Owen stated that Johnson had told him the night before that she would have the room and that she had brought her sister. At the close of all the evidence, the court found that Owen did not have standing to challenge the search of the premises and denied the motion to suppress.
Before we take up Owen’s argument on appeal, we must first dispose of the State’s assertion that this appeal is procedurally barred because Owen has not included trial proceedings in his abstract or transcript. Citing Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996), the State claims that this omission is dispositive because it denies the court the ability to “ ‘assess the impact of the allegedly’ illegally seized evidence ‘on the trial and determine whether prejudice resulted[ ]’ from the denial of the motion to suppress.” We find this argument unpersuasive, and the State’s reliance on Davis clearly misplaced.
In the first place, the instant case is clearly distinguishable from Davis. The suppression issue in Davis involved a pretrial and in-court identification of the defendant, whereas the issue here is whether Owen had standing to challenge the search of the motel room that he was occupying. The appellant in Davis argued that the pretrial and in-trial identification should be suppressed because the mug shot that was used to initially identify him was made pursuant to an arrest on an unrelated charge that was later declared invalid. In declining to reach the merits of that issue in Davis, the supreme court reasoned that with such a tenuous assignment of error, it required more of the proceedings to be abstracted for it to determine if the appellant was prejudiced. Conversely, we have no difficulty determining the importance of the evidence in question — without the items seized in the motel room, there is no case. Furthermore, the motion to suppress the identification in Davis was made at the trial, and apparently none of the proceedings were abstracted. In the instant case, the motion was made before trial, and the suppression hearing is completely abstracted. Rule 4-3 (g) of the Rules of the Supreme Court and Court of Appeals states: “In all felony cases it is the duty of the appellant ... to abstract such parts of the record, but only such parts of the record as are material to the points to be argued in the appellant’s brief.” Owen has fully and fairly abstracted all material parts of the suppression hearing; to require more would be contrary to our own rules.
As his only point on appeal, Owen asserts that the trial court erred in finding that he did not have standing to assert a violation of his Fourth Amendment protection against an unreasonable search by the police who searched the motel room where Mr. Owen was staying as a guest occupant. Owen contends that he had standing as defined in Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997), where this court stated that the “pertinent inquiry regarding standing to challenge a search is whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable.” He asserts that he had a subjective expectation of privacy in the motel room in that, at the invitation of Ms. Johnson, he packed an overnight bag and left his home town to stay with Ms. Lizinby, Johnson’s sister, whom he already knew. He notes that he arrived at the motel, got a key from the desk clerk, and was waiting in the room for Ms. Lizinby when the police arrived. He also states that when he answered the door, he stepped outside and shut the door behind him to speak to the officers. He contrasts his actions with the appellant in Rankin v. State, supra, where there was no showing that the appellant maintained any control over premises searched. Citing Minnesota v. Olsen, 495 U.S. 91 (1990), Owen argues that a motel room is entitled to the same constitutional protection as a home and that his prior relationships with Ms. Lizinby and Ms. Johnson suggested a “degree of acceptance” into the premises. He urges this court to find that it is of no moment that the room was not registered in his name. Finally, he contends that the trial court was simply wrong in basing its decision on standing on a finding that there was “no proof in the record of whether there was an attempt to stay overnight.” We find merit in Owen’s argument; nonetheless, we still must affirm.
When we review a ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances, viewing the evidence in the light most favorable to the State, and reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996). The Fourth Amendment protects an individual’s legitimate expectation of privacy against unreasonable searches and seizures, and entry into a dwelling in which an individual has a reasonable expectation of privacy must be viewed as illegal unless the State established the availability of an exception to the warrant requirement. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). When a person owns or is in possession of the property searched, he has standing to challenge the legality of the search. See Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648 (1999).
The trial judge erred in finding that Owen lacked standing to challenge the search. The United States Supreme Court only requires a subjective expectation of privacy. See Minnesota v. Olsen, supra; see also Rankin v. State, supra. In Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), under a subsection of the opinion entitled “Standing,” the supreme court cited Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), for the proposition that an individual had no standing to contest a warrantless search and seizure because there was no showing that the person owned or leased the searched premises and there was no showing the person maintained any control over the premises; yet the court went on to hold that the mere fact that appellant stayed at his mother’s home did not give him a reasonable expectation of privacy in the premises. In the instant case, we have clear evidence that Owen exercised control over the room. According to the testimony of police, although three persons were present, it was Owen who answered the door, and he pulled it closed behind him when he spoke with police. Moreover, Teresa Johnson was not on the premises, and although we are required to view the evidence in the light most favorable to the State, Owen’s testimony that he had retrieved a key to the room and intended to spend the night, apparently with Johnson’s consent, was not disputed. Accordingly, we hold that the trial judge erred in fading to find that Owen had standing to challenge the search.
Nonetheless, we affirm the trial court because it reached the right result. Kimery v. State, 63 Ark. App. 52, 973 S.W.2d 836 (1998). Entry into the motel room was made after Officer Crawford observed contraband in plain view through the window and became aware that persons in the room were likely disposing of the evidence. Pursuant to the plain-view exception to the Fourth Amendment’s warrant requirement, when police officers are legitimately at a location and acting without a search warrant, they may seize an object in plain view if they have probable cause to believe that the object is either evidence of a crime, fruit of a crime, or an instrumentality of a crime. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Additionally, the subsequent reentry of the motel room by police was made with Johnson’s consent. Owen does not argue, nor could he reasonably do so, that Johnson, the person who rented the room, did not have the authority to consent to the search.
Affirmed.
Bird and Baker, JJ., agree.
Opinion delivered October 24, 2001
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
CA CR 00-820
53 S.W.3d 62
Supplemental opinion on Denial of Rehearing.
Miller Law Firm, by: Randel Miller and Brenton Bryant, for appellant.
Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
Andree Layton Roaf, Judge.
On September 5, 2001, we affirmed the convictions of Ronald Owen for various drug charges. The State subsequently filed a petition for rehearing, requesting only that we correct a misstatement of the law within our opinion. We deny the State’s petition, but issue this supplemental opinion on rehearing to avoid any misinterpretation of our original holding.
In our opinion, we cited Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997), for the proposition that a person has standing to challenge a search “if he manifested a subjective expectation of privacy in the area searched and society is prepared to recognize that expectation as reasonable.” The State takes issue with our subsequent statement, “The United States Supreme Court only requires a subjective expectation of privacy.” It is implicit in the body of our opinion that the proper inquiry includes both whether there was a subjective expectation of privacy and whether society is prepared to recognize the expectation as reasonable. See Minnesota v. Olsen, 495 U.S. 91 (1990); Rankin v. State, supra.
Pittman, Robbins, Bird, Griffen, and Baker, JJ., agree. | [
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Wendell L. Griffen, Judge.
David Eric Wood was convicted by a jury of raping his two stepsons and sentenced to forty years’ imprisonment Department Correction. Wood now challenges the rulings of the trial court to 1) grant the State’s motion to exclude the testimony of his expert witness, and 2) deny his motion for a continuance to secure another expert witness. The trial court did not abuse its discretion in excluding Dr. Tracy’s testimony or in denying appellant’s motion for continuance. Therefore, we affirm.
Factual and Procedural History
On March 8, 2000, the State filed a felony information alleging that appellant committed two counts of rape of a person less than fourteen years of age. The matter was set for trial on May 22, 2000. Appellant subsequently raised the defense of mental disease or defect, and on May 19, 2000, the court granted a continuance until June 20, 2000. Another continuance was granted following a defense motion on June 19, 2000, which reset the trial to July 12, 2000.
Appellant underwent a court-ordered psychiatric evaluation at the Ozark Guidance Center. In a letter to the court dated May 26, 2000, Dr. Travis Jenkins, the chief medical officer of the Ozark Guidance Center, wrote that appellant had the capacity to understand the proceedings against him and to effectively assist in his own defense. Dr. Jenkins also opined that appellant had the capacity to appreciate the criminality of his conduct and could have conformed his conduct to the requirements of the law.
In response to a discovery request filed by the State on June 29, 2000, appellant formally informed the State on the last day before trial —July 11, 2000 — that he intended to introduce Dr. Ann B. Tracy as an expert witness to testify about the effect of the prescription drug Paxil as part of his defense. Later that day, the State filed a motion to exclude the testimony of Tracy, arguing that Tracy had not conducted laboratory research on neurotransmitters, or conducted laboratory research on the effects of any drug on human beings.
The State also filed a motion to exclude evidence and testimony that appellant planned to offer to show that his use or disuse of Paxil was an affirmative or general defense to the crimes with which he was charged. The State argued that the evidence was based on a novel scientific theory that had not been accepted by the relevant scientific community or subjected to serious scientific analysis. The State also contended that the evidence was not sufficiendy tied to the facts and would only confuse and mislead the jury.
The next day, July 12, 2000, a hearing was held on the State’s motion to exclude. The State conducted a voir dire examination of Dr. Tracy, who testified that she received a bachelor’s degree in psychology and biblical studies from Coral Ridge Baptist University in Utah. She also holds a Ph.D. degree in health sciences, with emphasis on psychology, from George Wythe College. Dr. Tracy testified that she wrote a book entitled Prozac: Panacea or Pandora? The Rest of the Story, and that half of her research was based on drug experience reports, and the other half reviewed medical literature. She testified that she did not conduct the clinical studies herself, and that she had done no laboratory research. Dr. Tracy opined that Paxil, Zoloft, Prozac, and other SSRI antidepressants were terribly dangerous and should be discontinued.
At the conclusion of the hearing, the trial court granted the State’s motion to exclude Dr. Tracy’s testimony. The court ruled that her intended testimony was not reliable and that the methodology she used was suspect.
Appellant also argued that Rule 702 allowed someone with specialized knowledge to testify as an expert, and that Dr. Tracy had specialized knowledge that would be helpful to the finder of fact. Counsel for appellant noted the court’s displeasure with late filings by both parties, and observed that the State was aware of appellant’s defense strategy and of his plans to use Dr. Tracy for over a month prior to trial. Appellant’s counsel told the court that the State filed its motion to exclude the previous day, and that if an expert was not allowed to testify, appellant would have no defense to present and would be prejudiced in his right to a fair trial. Counsel for appellant asked the court to grant a continuance to allow the defense to find an expert with different qualifications that the court would find acceptable.
The State agreed that the parties discussed appellant’s defense and plans to use Dr. Tracy. However, the State noted that appellant never replied to the State’s several requests for Dr. Tracy’s resumé until July 11, 2000. Counsel for appellant asserted that he informally provided information about Dr. Tracy to the State prior to the State filing its motion for discovery, including Dr. Tracy’s name, phone number, the title of the book she had written, and the name of her publisher. After noting that the case had been continued on two separate occasions at the request of the defense, the court denied appellant’s motion for a continuance and a jury trial commenced.
Appellant testified in his defense that he was taking Paxil when he raped his stepchildren in 1999. He initially began taking the drug without a prescription in September 1997, after he moved to Springdale, and continued using it until November 1997. Appellant began taking Paxil again in September 1998. In March 1999, appellant saw a physician who prescribed Paxil. Appellant had the prescription filled, refilled the prescription on six occasions, but discontinued using Paxil after his arrest. Appellant testified that while taking Paxil, his alcohol consumption changed dramatically, that he had difficulty sleeping, became more aggressive with people, quickly lost his temper, and seemed more sensitive to fight. Appellant testified that he never molested children before taking Paxil.
In rebuttal, the State presented testimony from Dr. Jenkins, who testified that he conducted a psychiatric interview on appellant. Dr. Jenkins testified that appellant told him that he was taking Paxil when he raped his stepsons. However, Dr. Jenkins opined that, in general, the side effects of Paxil in men and women included decreased sexual interest and decreased sexual ability. Dr. Jenkins also testified that some men who took Paxil became impotent, and that he knew of no studies saying that taking Paxil or discontinuing the use of Paxil would cause a person to engage in deviant sexual activity. On cross-examination, Dr. Jenkins acknowledged that the insert included in the packaging of Paxil fisted increased interest in sexual activities as a possible side effect of Paxil.
Following deliberations, the jury returned with a verdict of guilty of two counts of rape and sentenced appellant to forty years’ imprisonment for each count. Appellant now argues that the trial court erred in prohibiting Dr. Tracy’s testimony and erred in refusing to grant his motion for continuance.
Admissibility of Expert Witness Testimony
Generally, whether expert testimony is admissible depends on whether the testimony will aid the fact finder in comprehending the evidence presented or resolving a fact in dispute. See Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). The weakness or strength of an expert’s testimony goes toward the weight and credibility to give the testimony and not toward the admissibility of the testimony. See Killian v. Hill, 32 Ark. App. 25, 795 S.W.2d 369 (1990).
In Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), our supreme court adopted the holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which set out the following guidelines for trial courts to use when considering expert scientific testimony:
[T]he trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 592-93 (footnotes omitted).
The Foote court noted that a primary factor for a trial court to consider in determining the admissibility of scientific evidence is whether the scientific theory can be or has been tested. See Foote, supra. Other factors include whether the theory has been subjected to peer review and publication, the potential error rate, and the existence and maintenance of standards controlling the technique’s operation. It is also significant whether the scientific community has generally accepted the theory. See Foote, supra.
In her proffered testimony, Dr. Tracy testified that her intended testimony was widely accepted within the scientific community and was included in medical literature. She testified that her opinion that the side effects of Paxil caused deviant sexual behavior was documented in medical research and throughout medical studies. As proof, Dr. Tracy referred to the insert provided by the manufacturer of Paxil that listed increased libido as a significant side effect of using the drug. Dr. Tracy testified that the insert discussed the possible effect of serotonin re-uptake inhibitors causing problems with sexual performance and also the paradoxical effect of an increased compulsion for sex.
When asked what particular field of science her book addressed, Dr. Tracy replied that it discussed pharmacology and the effects of SSRI antidepressants, Prozac, Zoloft, Paxil, Luvox, and serotonin and how it affects people. She told the court that half of her research was based on drug experience reports and the other half on reviewing medical literature. Dr. Tracy acknowledged that she did not personally conduct the clinical studies, but she reviewed the clinical studies. She testified that she did not use double-blind or single-blind placebo controls in the research of her book. Also, she did not conduct laboratory research. In response to whether she felt that antidepressant SSR.I drugs were terribly dangerous, whether the pharmaceutical companies who produced the drugs had misled the public, and whether the drugs ought to be done away with, Dr. Tracy responded yes.
As part of the proffer, Dr. Tracy also testified that one of the most dangerous things to do to the brain and to the body was to increase serotonin levels. She stated that her research revealed a correlation between increased serotonin levels and sexual misbehavior. Dr. Tracy testified that another side effect was amnesia. She also testified that she visited appellant and received his medical history. After listening to the testimony offered at trial, Dr. Tracy opined that appellant was acting out his worst nightmare while on Paxil. She was not surprised that appellant could not remember what happened. Dr. Tracy testified that appellant had many symptoms of someone with increased levels of serotonin, such as cravings for alcohol, sensitivity to light, irritability, aggression, memory loss, and insomnia. She testified that she had no doubt that appellant’s conduct was affected by ingesting Paxil.
The record contains no testimony or evidence that Dr. Tracy cited to demonstrate that the use of Paxil would cause a person to engage in deviant sexual activity or that Paxil specifically caused appellant to rape his stepsons. Moreover, the record demonstrates that the trial judge considered the factors enumerated in Foote in making his decision to exclude Dr. Tracy’s testimony. The court noted that Dr. Tracy’s methodology in conducting studies and reaching her conclusions were suspect and did not follow any accepted scientific method. The court further stated that Dr. Tracy’s proffered testimony displayed prejudice toward an entire series of drugs or classification of drugs, and that Dr. Tracy appeared to be on a crusade to eliminate the use of certain drugs, including Paxil. The court concluded that Dr. Tracy’s testimony would not be reliable or relevant and that even if the evidence were relevant, the testimony would mislead and confuse the jury.
Trial judges serve as evidentiary gatekeepers for ensuring the reliability of proposed expert testimony. In this case, appellant failed to demonstrate 1) that the scientific community generally accepted Dr. Tracy’s theory that Paxil would cause a person to engage in deviant sexual activity, 2) that the theory could be or had been tested, 3) that the theory had been subject to peer review and publication, 4) the potential error rate of the theory, and 5) the existence and maintenance of standards of control. We hold that the trial court did not abuse its discretion by excluding Dr. Tracy’s testimony after finding that her methodology in conducting studies and reaching the conclusions on which her testimony was based were suspect and likely to mislead or confuse the jury.
Denial of Motion for Continuance
When considering a trial court’s denial of a motion for continuance that is premised on a lack of time to prepare, we review the totality of the circumstances. See Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). The moving party bears the burden of proving prejudice, and we will not reverse absent a showing of abuse of discretion. See id. Prejudice is demonstrated by showing “what [an] attorney failed to do that could have been done, or what [an attorney] did that would not have [been] done, if. . . afforded more time.” See id. at 216, 885 S.W.2d at 294. An absence of due diligence will suffice as grounds to deny a continuance. See id. Rule 27.3 of our Rules of Criminal Procedure mandates that a trial court grant a motion for continuance for as long as necessary after a party demonstrates good cause.
We hold that the trial court did not abuse its discretion in denying appellant’s request for a continuance. The parties appear to agree that appellant did not provide Dr. Tracy’s resum to the State until the day before trial. However, appellant argues that approximately one month before trial, the State knew that he planned to use Dr. Tracy’s testimony and that his alleged drug reaction was the crux of his defense. He contends that without a continuance, he was severely prejudiced because he could not present his only defense. The State conceded at the hearing that it was aware of the defense strategy and that the defense planned to use the testimony of Dr. Tracy. It argued that although it requested Dr. Tracy’s resumé several tjmes, the defense failed to submit it until the day before trial. The State acknowledged that it filed a late discovery request, but stated that its late fifing was the result of appellant not responding to its informal requests for information on Dr. Tracy.
The record indicates that the State formally requested a disclosure of appellant’s experts, along with the nature and source of their information and testimony, on June 29, 2000. Appellant did not provide this information until July 11, 2000, the day before the trial. This fact, combined with the trial court’s observation that it had granted two previous continuances at the request of the defense, support the conclusion that the trial court did not abuse its discretion in denying appellant’s motion for continuance.
Affirmed.
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JOHN F. Stroud, Jr., Chief Judge.
Appellant, Carrie Southerland, and appellee, John Southerland, were divorced on February 2, 1999. The divorce decree provided that appellee, in addition to a weekly stated amount, was also to pay to appellant as child support fifteen percent of the net of any bonuses that he received. On July 10, 2000, appellant filed a Motion to Enforce Decree, followed by an amended motion. Appellant’s motions were prompted by a lump-sum payment that appellee received in connection with a stock-option agreement with his employer. At the time of the divorce both parties worked for the same company, United Medical, Inc. Each had his/her own stock-option agreement that had not yet vested; each considered the stock-option agreements to be worthless; and each merely kept his/her own stock-option agreement and did not pursue their division as marital assets. Following the divorce, however, a larger company, Len Care, Inc., became interested in buying United Medical, the company with which the parties had their stock-option agreements. As a part of the negotiated sale of the business, employees who had stock-option agreements were paid lump sums that, in effect, gave them the same amount of money that they would have received if they had actually owned stock in the company. In order to receive the funds, however, they had to sign a new covenant not to compete. Appellant and appellee signed the non-compete agreements and received lump-sum payments in accordance with the formula applicable to the specific stock-option agreement. Appellee received $118,750, and appellant received $43,905.
The trial court determined that the lump-sum payment that appellee received in connection with his stock-option agreement was not a bonus for child-support purposes under the divorce decree; that the court had not anticipated that the fifteen percent bonus provision of the decree would be “applied to any other lump sum passive payment such as what occurred in this instance”; that the parties received money from Len Care based upon their stock-option agreements and also in exchange for value received, i.e., the covenants not to compete; and that the court would have had to speculate as to the value of the covenant not to compete because there was no evidence presented to establish that value. Consequently, the trial court denied appellant’s motion to enforce. For her sole point of appeal, appellant contends that “the trial court erred by failing to classify the $118,750 received by the appellee from his employer as a bonus for child support purposes.” We disagree and affirm.
Appellee testified that he entered into an employment agreement with United Medical when he started to work for them; that he was granted a stock-option agreement as part of his employment; that appellant, his wife at that time, also worked for United; and that she, too, received a stock-option agreement that was offered only to key employees. He said that he and appellant were still working for United at the time of their divorce. He stated that under the agreement, he would not have a stock option until he had worked there for three years, and that he had not been there for three years when the company sold. He explained that the United CFO said, “We are accelerating everyone that was given a stock option agreement[,]” and that he “got a piece of paper saying that your options are being accelerated and ffilly vested,” but that he never had a piece of paper that said, “stock option.” He stated that he was subsequently paid pursuant to that particular agreement; that the amount paid was the difference between the option price and the market price; that he received a separate check for $118,775; and that no taxes were deducted. Appellee further testified that he received two or three bonuses for the year 2000, and that he paid the additional fifteen percent child support with respect to those bonuses.
Mr. Michael Johnson, the attorney who represented United Medical when it was acquired by Len Care, also testified. He stated that in 1996 or 1997, United Medical adopted a qualified stock-option plan whereby certain key employees were entitled to receive stock options subject to a vesting period; that when United Medical decided to sell to Len Care, none of the options had vested, meaning that the options terminated and the company had no obligation to do anything. He stated, however, that management decided that the fair thing to do was to give those employees a cash payment in lieu of the stock options they would have received if the options had vested; and that, in effect, those employees received the same price per share that the other shareholders received even though they did not actually own stock. He also testified that the whole transaction revolved around tax issues and that the payment would be classified as ordinary income to the employees. He stated that the parties never tendered any stock to the company; that the payment was stricdy classified as a bonus; and that he did not know of any tax attorney or accountant that would classify the payment as anything other than ordinary income. He also testified, however, that he was not sure if this was basically an acceleration of the stock options, even though the company did not treat it as such; and that he tries not to give tax advice.
Appellee stated that the value of the stock as of December 1998, the period selected by the parties for valuation, was $15.66 per share, and that the price for the option was $15.77, giving it a negative value. He stated that the stock-option agreements were discussed during the divorce, and that it was decided that each party would keep their respective shares because of the zero value.
Appellant characterizes the issue involved in this appeal as “whether a lump sum payment based on a formula received from a stock option agreement should be classified as income for child support purposes.” In making her argument, she relies upon Supreme Court Administrative Rule Number 10, which provides:
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. . . .
She also cites the cases of Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000) (holding that the trial court cannot set and establish a sum certain amount of support where the receipt of a bonus is contingent upon the profitability of a business), and Rowlett v. Bunton, 68 Ark. App. 228, 6 S.W.3d 372 (1999) and Halter v. Halter, 60 Ark. App. 189, 959 S.W.2d 761 (1998) (holding that an inheritance cannot be considered as income for child-support purposes). Obviously, these cases, in and of themselves, do not support appellant’s position. Rather, she relies upon them as support for her position by distinguishing them from the facts involved here. That is, she notes that Kelly is distinguishable because, here, appellee had already received his lump-sum payment, and there were no contingencies. She implicitly distinguishes Rowlett and Halter in that the instant case does not involve an inheritance.
Appellant’s cited authority and her argument are simply not convincing. Even if the stock-option agreements ceased to be of value in accordance with their original terms, the subsequent sale of the business boosted their value. Only the key employees that possessed the agreements received a lump-sum payment from Len Care, and the payment was clearly tied to the stock-option agreements and calculated as if those employees held shares. Moreover, there was testimony that Len Care would not have written the checks if these employees had not also signed a new covenant not to compete. We recognize that Mr. Johnson testified that he regarded the payment as income and that he doesn’t know of any tax attorney or accountant that would classify it as anything other than ordinary income. However, in our opinion, with respect to this issue involved in this case, the stock-option agreement was more akin to a marital asset that increased in value after the divorce, than bonus income that would be subject to the fifteen percent child-support provision in the divorce decree. As with any marital property that increases in value after a divorce is final, the parties cannot come back and claim a portion of the increased value. Consequendy, based upon the unique facts of this case, we hold that the trial court was correct in finding that the money was not a bonus for child-support purposes.
Affirmed.
Pittman and Griffen, JJ., agree. | [
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Olly Neal, Judge.
This is a workers’ compensation action. Appellant, Erika Wentz, from the decision of the Workers’ Compensation Commission (the Commission) denying her claim for additional benefits. The Commission adopted the administrative law judge’s (ALJ) finding that appellant failed to prove she sustained a compensable physical injury to the brain because the medical evidence was not supported by objective findings. On appeal, appellant argues there was no substantial evidence to support the Commission’s decision that the medical opinion in this case was not based on objective findings, and there was no substantial evidence to support the Commission’s determination that appellant failed to prove by a preponderance of the evidence that she is entitled to temporary total disability and medical benefits after June 9, 1999. We reverse and remand the decision of the Commission for further proceedings.
Appellant was employed by appellee, Service Master, as a service partner cleaning and servicing machines at Planter’s Peanuts. On the evening of December 30, 1998, she was cleaning the floor, and when she came out from underneath a line, her feet came out from under her and she fell head first, hitting her head and the right side of her face on a concrete floor. Although appellant suffered a concussion as a result of the fall, she did not immediately seek medical attention.
On January 5, 1999, appellant was treated in the emergency room of Sparks Regional Medical Center by an internist, Dr. Lance Hamilton. After performing X-ray and MRI testing on appellant, he opined that appellant was suffering from symptoms secondary to the fall. Due to delirium, appellant was admitted to the hospital in February. At this time, she reported to Dr. Hamilton that since the fall, she had been suffering from severe headaches and changes in her mental status. Dr. Hamilton referred appellant to Dr. Douglas Brown, a neuropsychologist. After performing a neuropsychological evaluation on appellant, Dr. Brown diagnosed appellant as having an organic brain disorder, secondary to closed-head injury, mild. Appellant’s workers’ compensation case manager, Yolanda Kimbrough, asked Dr. Michael Morse to see appellant. Dr. Morse diagnosed appellant as having post-traumatic headaches, along with a post-traumatic encephalopathy and depression. Prior to appellant’s visit with Dr. Morse, appellee acknowledged that the injuries to appellant’s head and face were compensable and paid temporary total disability benefits and medical benefits through June 9, 1999. However, after Dr. Morse’s diagnosis, appellee denied liability for additional benefits.
The ALJ found that the injury to appellant’s right jaw and face were compensable injuries. However, the ALJ found that appellant failed to prove by the greater weight of the credible evidence that her jaw/head injuries caused her to be rendered temporarily totally disabled after June 9, 1999. The ALJ also found that appellant failed to prove she sustained a compensable physical injury to the brain as the result of her fall. The Commission affirmed and adopted the decision of the ALJ. Appellant argues there was insufficient evidence to support the Commission’s decision.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence in the light most favorable to the Commission and affirm the decision if it is supported by substantial evidence. Rice v. Georgia-Pacific Corp., 72 Ark. App. 149, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Rice, supra.
The purpose of our workers’ compensation law is to pay benefits to legitimately injured workers who suffer an injury arising out of and in the course of their employment. Baker v. Frozen Food Express Transp., 63 Ark. App. 100, 974 S.W.2d 487 (1998); see also Ark. Code Ann. § 11-9-101 (b) (Repl. 1996). The employee has the burden of proving a compensable injury. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). “A compensable injury must be established by medical evidence supported by ‘objective findings.’ ” Ark. Code Ann. § ll-9-102(4)(D) (Supp. 1999). “ ‘Objective findings’ are those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 1999). Appellant argues on appeal that there was no substantial evidence to support the Commission’s decision that the medical opinion in this case was not based on objective findings. Specifically, appellant argues that neuropsychological testing is objective.
In his testimony, Dr. Morse stated that “[a] neuropsychological evaluation is objective testing for brain function.” He explained that “neurological examination will show you if there is any big problem like paralysis or numbers or vision problems or coordination problems, and then the neuropsychological evaluation looks at the mental function of the brain; the ability to do calculations, memory, organize thought, learn, carry out activities.”
Dr. Brown admitted that with neuropsychological testing, the patient controls her response. He explained that the “ultimate diagnosis is based upon [the] results of [the patient’s] responses which are compared with results of thousands and thousands of others who have done the exact same tests for many years before.” He also explained that when assessing the test results “[he] specifically checkfs] to see whether there [are] any indicators that would cause [him] to conclude that [the patient] was attempting to manipulate the test results.”
The evidence establishes that appellant had only a ninth-grade education. On March 18, 1999, she saw Dr. Brown for neuropsychological testing. The testing was not finished until March 24, 1999, because appellant suffered exhaustion after the first testing session. Dr. Brown testified that the fatigue factor. determines whether psychological examinations are done on one day or two separate days. He explained that administering the examination on one day or two separated days does not affect the validity of the testing. Dr. Brown testified that different tests were administered on each occasion. Dr. Brown further testified that he did not believe that:
Ms. Wentz’-s intellectual level or her memory capacity were high enough to manipulate the neuropsychological test. Also, given the broad spectrum of testing that we administer to people such as Ms. Wentz for neuropsychological evaluations, its [sic] virtually impossible to manipulate them to come out the way you want them to, because you don’t know what each and every piece of the testing means.
We hold there was no evidence that suggested appellant manipulated the testing.
The Pennsylvania courts have found that neurological testing is not generally accepted in the scientific community as a reliable method for diagnosing an encephalopathy when there is no other objective evidence of an encephalopathy. Skoogfors v. Haverstick-Borthwick Co., 44 Pa. D. & C.4th 1 (2000). However, in the case at bar, there is other objective evidence that indicates appellant suffered an injury to her brain. It is uncontroverted that when appellant fell, she landed on the right side of her face on a concrete floor. Dr. Morse opined that appellant suffered nausea and vomiting, and that light made her symptoms worse. He also noted that she did not have any of these symptoms prior to the fall. Furthermore, Drs. Brown and Morse testified that appellant suffered a closed-head injury as a result of the fall. Dr. Brown stated in his report that appellant is suffering from behavioral and cognitive agitation. He also stated that cognitive agitation is often seen with injuries to the cortical processes. Dr. Brown testified that prior to the fall, he estimates that appellant’s intellectual capacity was in the range of ninety-five to one hundred, and now it is in the low eighties. In addition to Dr. Brown’s testimony that appellant’s memory is deficient, Dr. Hamilton stated that since the fall, appellant has suffered from memory problems, periodic headaches, anxiety, and emotional changes. In his final discharge diagnosis, Dr. Hamilton diagnosed appellant as suffering from a concussion. A concussion is defined as a jarring injury of the brain resulting in disturbance of cerebral function. Webster’s Ninth New Collegiate Dictionary 212 (1990). Appellant describes herself as weighing 135 pounds and approximately 5’6” in height. She testified that:
I was cleaning up the floor, standing in some water and chemicals, and my feet came out from underneath me at a side angle. I fell. My feet came up above me. I came down on the right side of my face and head and that’s what hit first. My head and the right side of my face actually hit the floor first. It was a cement floor.
When a person of that size and stature falls head first onto a concrete floor, it is conceivable that her brain will suffer some jarring.
Objective findings are also defined as medical opinions stated with a reasonable degree of medical certainty. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001); see also Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999). Our supreme court has held that medical evidence supported by objective findings is not essential in every case, but if medical opinions are offered, they must do more than state that the causal relationship between work and the injury is merely a possibility. Id. Our supreme court has gone on to say that, if a doctor renders an opinion that goes beyond possibilities and establishes that a work-related accident was the reasonable cause of the injury, this will establish a reasonable degree of medical certainty. Id. Furthermore, if the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the Commission’s refusal to make an award. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997) (quoting Hall v. Pittman Constr. Co., 235 Ark. 104, 357 S.W.2d 263 (1962));
Appellant testified that on November 13, 1998, she was kicked in the chin, and the blow caused her to hit her head on the edge of a couch. Appellant testified that her mother took her to the emergency room because she experienced blurred vision and a concussion. She testified that, after this incident, everything was fine. Appellant also testified that after her fall on December 30, 1998, she began experiencing panic attacks and fainting spells, her writing skills changed, and she could no longer drive. Dr. Brown testified that he was unaware of the November 13 incident, but believes that because appellant received no further treatment after the November 13 incident, it was of no significance. He further testified that “in [his] opinion within a reasonable degree of medical certainty it is more likely than not that the December 1998 fall is the cause of [appellant’s problems].” Dr. Morse also testified that he believed within a reasonable degree of medical certainty that the fall on December 30, 1998, was the cause of appellant’s current problems.
The evidence clearly establishes, that appellant began experiencing her current problems after her fall at work. The medical opinions are sufficiendy certain and definite that her injuries are the result of her fall at work. Therefore, a causal relationship exists between the resulting injury and her work activity. Based on the evidence, we hold that fair-minded persons could not have reached the same conclusions as the Commission if presented with the same facts.
Appellant also asks us to hold that there was no substantial evidence to support the Commission’s determination that she failed to prove by a preponderance of the evidence that she is entitled to temporary total disability and medical benefits after June 9, 1999. Temporary total disability is awarded when the claimant shows she is within her healing period and is totally incapacitated from earning wages. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). The healing period is that period for healing of an injury which continues until the claimant is as far restored as the permanent character of the injury will permit. Byars Constr. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000). Whether a claimant’s healing period has ended is a factual question that is resolved by the Commission. Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001).
Dr. Morse testified that appellant suffered from post-traumatic encephalopathy and depression. He believed her post-traumatic encephalopathy and depression prevented her from returning to work. The other physicians did not address whether appellant was unable to work. Appellant testified that she has not worked since the accident. She testified that as a result of the fall, she no longer drives for fear of blacking out and she suffers from dizziness. Based upon the evidence, there was no substantial evidence to support the Commission’s determination that appellant failed to prove by a preponderance of the evidence that she was entitled to temporary total disability and medical benefits after June 9, 1999; therefore, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
STROUD, C.J., agrees.
GRIFFEN, J., concurs. | [
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JohnF. Stroud Jr., Chief Judge.
Appellant, Terry Whittier, was tried by a jury and found guilty of the offense of first-degree murder. He was sentenced to forty years in the Arkansas Department of Correction. His sole point of appeal is that the trial court erred in denying his requested manslaughter instruction. We agree and therefore reverse and remand.
Officer David Reynolds testified that around 4:00 a.m. on August 22, 2002, he was dispatched to the 500 block of South 13th Street in West Memphis to respond to a call of multiple gun shots. He stated that he located “a downed subject,” Austin Kirkwood, on the front porch of 507 South 13th Street. He said that he did not find appellant at the scene.
Detective Ken Mitchell testified that he and Detective Smith arrived at the scene between 4:30 and 5:00 a.m. He said that the only persons they talked to that morning were the victim’s uncle and the uncle’s girlfriend, who both lived at the house and were inside the house at the time of the shooting. Neither the uncle nor the girlfriend had any information about what had happened. Mitchell said that over the next few weeks, however, appellant was developed as a suspect. He further explained that a man named Steven Briscoe came to his office and said that he could get some incriminating information for Mitchell. Mitchell said that they wired Briscoe for the purpose of recording a conversation between Briscoe and appellant. He said that after a taped conversation between Briscoe and appellant was obtained, appellant was arrested. Mitchell testified that appellant initially denied any involvement, but that after they played a portion of the taped conversation for him, he acknowledged shooting Kirkwood.
Mitchell recounted that appellant told him that he and Kirkwood approached each other on the street; that Kirkwood had a firearm and fired the gun twice; and that it then seemed as if Kirkwood’s gun jammed. Appellant told Mitchell that he pulled out a gun at that point and fired a shot at Kirkwood as Kirkwood turned and was running toward his house. Mitchell said that appellant told him that he had gotten the gun from another person and did not want to involve anyone else in the situation. Mitchell further explained that he was present at the scene when Kirkwood’s body was turned over; that a semiautomatic pistol was in his waistband; and that it was completely empty when they found it.
Detective Brian Shelton testified that he was involved in the investigation, that they found a sock containing live ammunition in one of the bedrooms of the residence at 507 South 13th Street, and that those bullets would have fit the gun carried by Kirkwood. He acknowledged that they did not conduct a gunshot-residue test on Kirkwood’s hands.
After both sides rested, the defense made its record on the request to have the jury instructed on manslaughter. Defense counsel contended:
The prong which I am submitting is that Terry Whittier, Jr., caused the death of Austin Kirkwood under circumstances that would be murder, except that he caused the death under the influence of extreme emotional disturbance for which there was a reasonable excuse. To determine the reasonableness of the excuse from the viewpoint of a person in Terry Whittier’s situation, under the circumstances as he believed them to be. If I can incorporate that I think I won’t have to submit any instruction, and I will submit the instruction based on the facts in the case.
The facts in the case are that Terry Whittier, Jr., had a gunshot in his direction, the gun then clicked and he reacted. I think that there is evidence in the record that suggests that Terry Whittier,Jr., was acting in the heat of the moment, after being shot at to justify, and a reasonable juror could conclude that due to the state of mind, that his reaction to what had happened as opposed to be able to reflect and formulate the mental state, and acted in a heightened type situation after having gunshots fired toward him.
The trial court denied the request to instruct on manslaughter.
Our supreme court has frequently stated that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003). The supreme court has further made it clear that we are to affirm a trial court’s decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id. In Rainey v. State, 310 Ark. 419, 421, 837 S.W.2d 453, 454 (1992), the supreme court recited the following pertinent facts of the case:
Upon walking into the front room, Rainey testified he saw Kirkpatrick pointing the pistol at him. He grabbed her hand, pointed the gun toward the ceiling, and a shot fired. Police later recovered a bullet from the ceding. Rainey then took the gun away from Kirkpatrick and shot her four times in the head as she was falling to the floor. He testified that after the first shot he was so hysterical that he kept firing. The entire incident, according to Rainey, took one or two seconds.
Rainey admitted he did not shoot Kirkpatrick in self defense. He stated, “I just went hysterical,” and “I was already mad and I just took the gun away from her and shot her.” Rainey said he killed Kirkpatrick out of anger because she had threatened to tell his wife about their affair and had tried to shoot him.
The court further explained in its opinion that the trial court instructed the jury on first- and second-degree murder but refused to instruct on manslaughter, and that in the process of reaching the decision that a manslaughter instruction was unnecessary, the trial court stated that the killing was not motivated by self defense and that Rainey intended to kill the victim. The supreme court concluded in Rainey that the trial court erred in refusing to give the manslaughter instruction because there was a rational basis for giving it. The court explained:
Rainey’s proffered manslaughter instruction is based upon Ark. Code Ann. § 5-10-104(a) (1987), which provides in part:
(a) A person commits manslaughter if:
(1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is a reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be;
(3) He recklessly causes the death of another person; ....
When there is a rational basis for a verdict acquitting a defendant of the offense charged and convicting him of an offense included in the offense charged, an instruction on the lesser included offense should be given, and it is reversible error to fail to give such an instruction when warranted. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991); Ark. Code Ann. § 5-1-110(c) (1987). When there is the slightest evidence to warrant an instruction on a lesser included offense, it is error to refuse to give it. See, e.g., Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980) (emphasis added).
In this case, there was evidence which would support a finding that, although Rainey admittedly purposely killed Kirkpatrick and thus committed what would otherwise have been murder, he did so under the influence of extreme emotional disturbance for which there was a reasonable excuse. The jury was presented with evidence that Kirkpatrick had attempted to kill Rainey just before he shot her. There was testimony that Kirkpatrick had threatened to tell Rainey’s wife about his affair. Rainey testified that at the time of the shooting he was “hysterical,” “upset,” and “mad.” There was thus some evidence to support the manslaughter instruction.
In a recent case, Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992), Frazier admitted killing the victim but stated he did so because the victim teased him. The Trial Court denied Frazier’s request for a manslaughter instruction, and we affirmed. There was no evidence that Frazier was acting under the influence of an extreme emotional disturbance. His irritation over being teased did not constitute evidence of an extreme emotional disturbance for which there was a reasonable excuse.
The Frazier case is readily distinguishable from this one. Here, evidence indicated that Rainey had been threatened with a gun before the killing occurred which, combined with the ongoing argument and the threat to ruin his family relationship, could well have been considered by the jury to have caused him to suffer extreme emotional distress, especially when viewed from his perspective as the statute requires. There is a substantial difference between the emotional effect of being teased and being threatened with a gun.
Id. at 422-23, 837 S.W.2d at 455-56 (emphasis added).
Here, there was evidence that Kirkwood had fired at appellant twice before Kirkwood’s gun jammed and appellant pulled his own gun and shot Kirkwood. We find that there was a rational basis for giving the manslaughter instruction in the instant case and that the trial court erred in refusing the instruction.
The State does not really dispute error in this regard. Rather, it relies upon the “skip rule,” contending that without respect to whether the jury should have been instructed as to manslaughter, “[appellant] cannot prevail because he was convicted of first-degree murder, and not of the lesser-included offense of second-degree murder with which the jury was instructed and that it would have had to consider before considering manslaughter. Thus,. . . any error in failing to instruct the jury as to manslaughter is cured . . . We disagree with the State’s position in this regard.
The State relies upon Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). While Winbush states the general rule that “[w]hen the jury convicts of a greater offense and ‘skips’ a lesser-included offense, there can be no error in failing to instruct on other even lesser-included offenses,” id. at 370, 107 S.W.3d at 885, it is important to note that the opinion cites Rainey v. State, supra, as support for that proposition. In Rainey the supreme court gives a more complete explanation of the “skip rule”:
A remaining issue is whether the Trial Court’s failure to instruct on manslaughter was prejudicial. As a general rule, when the jury convicts a defendant of first degree murder, even though an instruction on the lesser included offense of second degree murder has been given, any error resulting from the failure to instruct on the still lesser included offense of manslaughter is cured. See, e.g., Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991); Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990).This is commonly referred to as “the skip rule.”When the jury convicts of a greater offense and “skips” a lesser included offense, there can be no error in failing to instruct on other even lesser included offenses.
Rainey argues the skip rule should only apply when the lesser included offense for which an instruction was denied refers to a mental state one step less culpable than the instructed offenses. In other words, the skip rule only applies when the instructed and non-instructed offenses are described in degrees of culpability, and the lesser are indeed “included” in those for which the punishment is greater.
No doubt we have applied the skip rule when a trial court failed to instruct the jury on manslaughter, and the jury returned a verdict of murder in the first degree, thereby skipping the lesser included offense of murder in the second degree. We have done so without reference to the type of manslaughter instruction involved or the mental state necessary for the offense. See, e.g., Easter v. State, supra; Taylor v. State, supra. Our opinions in those cases, however, do not show that the argument being made here was raised. This is our first opportunity to consider it.
Had Rainey requested an instruction asking the jury to consider whether he was guilty of “recklessly causing the death of another person,” another offense included in the manslaughter statute, we would probably hold that the skip rule applied. That is so because recklessness is a less culpable mental state than purposefulness, and it fits within the chain. It is a truly lesser included offense. His argument is, however, that having requested an instruction based on purposely causing the death ofanother person "under the influence of extreme emotional disturbance,” the skip rule does not apply. He confesses to having purposely killed the victim, but the manslaughter law, in one of its aspects, adds another element which does not fit in the chain — that of extreme emotional disturbance. One can kill purposely or knowingly, as in first and second degree murders, and yet be guilty only of manslaughter because of extreme emotional disturbance for which there is a reasonable excuse. We agree with his argument.
The rationale given in the cases which developed what we now refer to as “the skip rule” was that no prejudicial error results from failing to instruct the jury on a lesser included offense if the jury found a state of facts to which the instruction would be inapplicable. Farris v. State, 54 Ark. 4, 14 S.W. 924 (1890); Jones v. State, 102 Ark. 195, 143 S.W. 907 (1912); Newsome v. State, 214 Ark. 48, 214 S.W.2d 778 (1948). In other words, even if the lesser included offense instruction had been given, the jury would still have convicted the defendant of the greater offense.
The fact that the jury found Rainey guilty of first degree murder and skipped the lesser included offense of second degree murder does not necessarily mean they found a state of facts to which his requested man slaughter instruction would be inapplicable. Whether we say that manslaughter as defined in 5-10-104(a)(l) is not a lesser included offense in first and second degree murder because it adds an element or conclude that there is an exception to the skip rule, the result is the same. The evidence before the court entitled Rainey to the manslaughter instruction. The jury could have found that although Rainey purposely killed Kirkpatrick, he did so under the influence of extreme emotional disturbance for which there was a reasonable excuse. The failure to give the jury the opportunity to consider the manslaughter instruction, which we conclude to have been justified by the evidence, was thus prejudicial.
Rainey v. State, 310 Ark. at 424-26, 837 S.W.2d at 456-57 (emphasis added).
We find the situation presented in the instant case to closely resemble that in Rainey. Appellant requested the manslaughter instruction based upon the premise that he caused Kirkwood’s death under the influence of extreme emotional disturbance for which there was a reasonable excuse. The evidence before the court entitled appellant to the manslaughter instruction, and the failure to give the jury the opportunity to consider it was prejudicial.
Reversed and remanded.
Hart and Gladwin, JJ., agree. | [
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LARRY D. VAUGHT, Judge.
Dr. Omar Jaraki appeals from an /order of the Craighead County Chancery Court enforcing a covenant not to compete and enjoining him from the practice of medicine within a seventy-five mile radius of Jonesboro, Arkansas, for a period of two years from the date of entry of thé order. Appellant contends that the covenant is void and unenforceable because (1) it violates the public policy of this state that prohibits unreasonable restraints on trade, (2) there is no valid interest in need of protection, (3) the geographic restriction is too broad, and (4) the temporal limitation is unreasonable. Appellant also argues that the chancellor erred in finding that he breached the notice provision contained in his employment contract. Finally, appellant raises an evidentiary objection. We find that the injunction is unreasonable and reverse.
Cardiology Associates of Northeast Arkansas (CANEA) is a medical corporation that employs doctors specializing in the field of cardiology. Dr. Omar Jaraki is a cardiologist who has completed a fellowship in electrophysiology (E.P.). An E.P. cardiologist tests, evaluates, and treats rhythm disturbances of the heart. E.P. cardiology services are most often performed after a primary care physician refers a patient to a cardiologist, after which a cardiologist refers the patient to an E.P. cardiologist.
It takes approximately seven general cardiologists to provide referrals sufficient to justify the presence of one E.P. cardiologist. Prior to Dr. Jaraki being employed by CANEA, there were no practicing E.P. cardiologists in Jonesboro. It was the practice in Jonesboro to refer cardiology patients in need of E.P. services to Little Rock or Memphis.
In order to acquire the services of an “in-house” E.P. cardiologist, on or about April 17, 2000, CANEA employed Dr. Jaraki. CANEA and Dr. Jaraki entered into an employment agreement (“Employment Agreement”), which was to continue for two years unless terminated by ninety days’ written notice given by either party. CANEA agreed to pay Dr. Jaraki $265,000 a year in salary, plus a bonus. In the Employment Agreement the parties also agreed that, in the event that the agreement was terminated prior to its expiration, Dr. Jaraki would not practice within a seventy-five mile radius of CANEA’s principal office for a period of twenty-four months (the “non-compete”).
On December 5, 2000, Dr. Jaraki gave written notice to CANEA that he was resigning on January 5, 2001. On December 21, 2000, Dr. Jaraki’s access to CANEA (and its charts, file materials and the database) was terminated. Thereafter, on December 27, 2000, CANEA filed an action in the Chancery Court of Craighead County seeking a temporary restraining order, a preliminary injunction, a permanent injunction, declaratory relief, and damages.
The chancellor entered an ex parte order on December 28, 2000, restraining Dr. Jaraki from “competing with plaintiff in violation of the employment agreement, from entering plaintiffs place of business, from contacting plaintiff s patients, referring physicians and/or medical suppliers within the geographical location described in the employment agreement, or from taking any action to the detriment of plaintiff.” At a hearing on January 8, 2001, the chancery court considered and rejected Dr. Jaraki’s motion to set aside the ex parte order.
On Januáry 19 and 23, 2001, the chancellor heard the petition for temporary injunctive relief, and entered his opinion and order upholding the non-compete in the Employment Agreement as valid and enforceable. The court reasoned that Dr. Jaraki was fully aware of the covenants in the Employment Agreement, that CANEA had complied with its obligation, and that CANEA had a legitimate interest to be protected by the non-compete over and above merely prohibiting ordinary competition. The chancellor further found that enforcing the non-compete did not violate public policy. From the granting of CANEA’s petition for injunction comes this appeal.
We first consider whether the chancery court’s failure to include a certification in its order dealing with the non-compete injunction, as set forth in Rule 54(b)of the Arkansas Rules of Civil Procedure, precludes our consideration of this appeal. This question presents a jurisdictional issue, which the court may raise on its own motion. Barr v. Richardson, 314 Ark. 294, 862 S.W.2d 253 (1993). The injunction clearly was treated as separate from the other issues raised and held in abeyance by the chancery court for development at a later time. Because issues relating to bonus fees and contempt were not disposed of, the chancery court’s order did not conclude the rights of all of the parties and was not final.
Nevertheless, the appeal before us is one from an injunction, and our rules of appellate procedure provide for an appeal from:
6. An interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused.
Ark. R. App. P. 2(a)(6). The supreme court has stated that a mandatory injunction is appealable under Rule 2(a)(6), Tate v. Sharpe, 300 Ark. 126, 777 S.W.2d 215 (1989), and has held as we also hold that the specific authority of an appeal from an injunction controls over the general requirement for finality contained in Rule 54(b). See East Poinsett Cty. Sch. Dist #14 v. Massey, 317 Ark. 219, 876 S.W.2d 573 (1994). We, therefore, proceed to address the merits of this case.
A chancery court’s cases are reviewed de novo on appeal, and the appellate court will not reverse unless the chancellor’s findings are clearly erroneous or clearly against the preponderance of the evidence. Dillard v. Pickier, 68 Ark. App. 256, 6 S.W.3d 128 (1999). A chancery court’s finding of fact is clearly erroneous when after reviewing all the evidence, the court is left with a definite and firm conviction that a mistake has been committed even though there is evidence to support the chancery court’s decision. Id. Because the question- of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the chancellor’s superior position to assess the credibility of witnesses and the weight to be accorded to their testimony. Moon v. Moon Enters. Inc., 65 Ark. App. 246, 986 S.W.2d 134 (1999).
Covenants not to compete are not looked upon with favor by the law. Federated Mut. Ins. Co. v. Bennett, 36 Ark. App. 99, 818 S.W.2d 596 (1991). In order for such a covenant to be enforceable, three requirements must be met: (1) the covenantee must have a valid interest to protect; (2) the geographical restriction must not be overly broad; (3) a reasonable time limit must be imposed. Id. The Arkansas Supreme Court has recendy discussed covenants not to compete:
Arkansas has followed the trend in this area by requiring a party challenging the validity of a covenant to show that it is unreasonable and contrary to public policy. Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999). Without statutory authorization or, some dominant policy justification, a contract in restraint of trade is unreasonable if it is based on a promise to refrain from competition that is not ancillary to a contract of employment or to a contract for the transfer of goodwill or other property However, the law will not protect parties against ordinary competition. Id. This court has recognized that covenants not to compete in employment contracts are subject to stricter scrutiny than those connected with a sale of a business. We review cases involving covenants not to compete on a case-by-case basis. Id.
Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 417, 994 S.W.2d 468, 472 (1999).
Public Policy
Appellant first asserts that covenants not to compete violate the public policy of our state. Appellant correctly argues that Duffner v. Alberty, 19 Ark. App. 137, 718 S.W. 2d 111 (1986), establishes that it is contrary to public policy to unduly restrict the public’s right of access to the physicians of their choice. Therefore, we must determine if the contract provision prohibiting appellant from practicing medicine within seventy-five miles of Jonesboro, for a period of two-years, constitutes an undue interference with the interests of the public right of availability of the cardiologist it prefers to use and if the covenant’s enforcement would result in an unreasonable restraint of trade.
The burden is on the party challenging the validity of the covenant to show that it is unreasonable and contrary to public policy. Madison Bank and Trust v. First Nat’l Bank, 276 Ark. 405, 634 S.W.2d 268 (1982). Further, covenants not to compete in employment contracts are subject to a stricter scrutiny than those connected with a sale of a business. Hyde v. C M Vending Company, 288 Ark. 218, 703 S.W.2d 862 (1986).
Covenants not to compete are not a per se violation of our state’s public policy. We are mindful of the Duffner requirement that the validity of each covenant be examined on a case-by-case basis. Therefore, we must examine the interest that CANEA is attempting to protect, and then determine to what extent, if any, the non-compete prohibits ordinary trade.
Interest to Protect
We begin our analysis by considering what, if any, valid interest CANEA has that is in need of protection.
Where a covenant not to compete grows out of an employment relationship, the courts have found an interest sufficient to warrant enforcement of the covenant only in those cases where the cove-nantee provided special training, or made available trade secrets, confidential business information or customer lists, and then only if it is found that the associate was able to use information so obtained to gain an unfair competitive advantage.
Federated Mut. Ins. Co., 36 Ark. App. at 102, 818 S.W.2d at 598. The primary interest that appellee argues is in need of protection is its substantial patient base and network of referring physicians throughout the non-compete territory. CANEA argues that a network of referring physicians is akin to customer lists and trade secrets, and these relationships are protected by CANEA in order to maintain goodwill and reputation. In response, Dr. Jaraki argues that appellee’s referring physicians could be identified by looking up the names of physicians in the telephone book or observing the patient’s hospital chart, and that when a customer fist can be readily ascertained, the list is not protected. Allen v. Johar, Inc., 308 Ark. 45, 823 S.W.2d 824 (1992).
In the case at bar, the fact that Dr. Jaraki’s patients were referred to him by appellee is persuasive evidence that he has benefitted from his relationship with CANEA. An extensive referral base established over a fifteen- to sixteen-year period is reflective of CANEA’s goodwill and reputation; however, we are not convinced that it is an interest in need of protection. The physicians that are included on the CANEA list, presumably, are not cardiologists. If the non-compete did not exist, there is nothing that would prevent those physicians from referring their patients (in need of general cardiologist services) to CANEA, and then CANEA referring the patients to either an in-house E.P. cardiologist or to an E.P. in Memphis or Little Rock. Additionally, appellee admitted that it would no longer refer patients to Dr. Jaraki and that the seven cardiologists on staff would provide enough referrals to support a full-time E.P. cardiologist.
Appellee responds that there are only ten practicing cardiologists in Jonesboro, and that if Dr. Jaraki were permitted to remain in Jonesboro, it may be difficult for CANEA to recruit another E.P. However, any incoming E.P. (associated with CANEA) would be well provided for, and Dr. Jaraki would be without the requisite cardiologist referral base. If there are too few remaining cardiologists to supply referrals for Dr. Jaraki to exclusively practice E.P., he may then engage in general cardiology.
We next consider whether Dr. Jaraki received any special training in general cardiology from the doctors at CANEA. The president of Cardiology Associates, Dr. Roger Hill, did perform some general procedures with Dr. Jaraki observing. However, there is no evidence that during these procedures Dr. Jaraki received “special” training that would allow him to gain an unfair competitive advantage over CANEA. Dr. Jaraki is a cardiologist with a subspeciality in E.P. cardiology, and any general practice of cardiology he engages in would amount to no more than “ordinary competition.”
Geographic Area
We are also persuaded that the geographic area included in the non-compete is too broad. The geographic area in a covenant not to compete must be limited in order to be enforceable. The restraint imposed upon one party must not be greater than is reasonably necessary for protecting the other party. Federated Mut. Ins. Co. v. Bennett, 36 Ark. App. 99, 818 S.W.2d 596 (1991). In determining whether the geographic area is reasonable, the trade area of the former employer is viewed. Where a geographic restriction is greater than the trade area, the restriction is too broad and the covenant not to compete is void. Compare All-State Supply v. Fisher, 252 Ark. 295, 483 S.W.2d 210 (1972) (statewide restriction valid where employer and employee conducted business statewide).
The trade area included in the non-compete enforced against appellant covers (at least some of) the city of Memphis, Tennessee, and many of the E.P. cardiology facilities in Memphis. In response, appellee argues that none of the E.P. facilities in Memphis are within seventy-five miles “driving distance” from Jonesboro. Additionally, appellee admits that Memphis is not part of its referral base, but counters that appellant testified that he has no intention of moving to Memphis.
It is simply not reasonable to restrict Dr. Jaraki (regardless of his current intent) from practicing in a large market like Memphis, especially when Memphis is not part of CANEA’s referral base. The non-compete does not contemplate “driving distance” and refers only to a “seventy-five mile radius.” Therefore, at least part of Memphis is included in the restriction. By including the city of Memphis in the scope of the non-compete’s geographic restriction, appellee more broadly limited appellant from practicing medicine than is reasonably necessary to protect appellee’s trade area.
The non-compete is unenforceable because no valid interest exists that is in need of protection and the geographic limitations are too broad. The injunctive order is reversed, and all other questions and controversies are remanded for final resolution.
Reversed and remanded.
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ANDREE LAYTON Roaf, Judge.
Teresa Lynn Miner appeals from an order of the Sebastian County Circuit Court revoking her probation and sentencing her to five years in the Arkansas Department of Correction with an additional five years suspended. On appeal, she argues that there was insufficient evidence that she violated the terms and conditions of her suspended sentence. We affirm because Miner failed to preserve her argument for appellate review.
On March 3, 1993, Miner pled guilty to felony overdraft and received a five-year suspended sentence and was placed on probation for two years. She was also ordered to make restitution in the amount of $2,243.94, and pay fines and court costs of $639.75, in monthly payments of $100. On March 16, 1995, Miner again pled guilty to felony overdraft, received a five-year suspended sentence and two years’ probation, and was ordered to make restitution in the amount of $2,638.58, and pay fines and court costs of $1,145.75, in monthly payments of $75. After Miner failed to make several payments, the State petitioned to revoke her suspended sentences. A hearing on the petition was held on August 11, 1999. In its case-in-chief, the State only introduced ledgers that showed Miner had failed to make payments on either the court costs and fines or the restitution for both the 1993 and 1995 convictions. However, Miner entered into evidence a receipt from the prosecuting attorney dated June 23, 1999, that showed that she made a fifty-dollar payment towards money owed as a result of her 1993 conviction and that her balance was only $1,480. Further, Miner testified that she was unable to work until a month prior to the hearing because she lacked transportation and was trapped in an abusive relationship in which her boyfriend did not let her “go anywhere.” She testified that she had left her boyfriend the month before and obtained employment in order to “try to get this taken care of.” Miner claimed that at the present time, she only earned $373 every two weeks and it, along with $200 per month in child support, was all that she had to support herself and her two children, ages seven and twenty months. According to Miner, she was not receiving any state aid. She brought with her to court $63 that she offered to pay toward her arrearage and stated that she hoped she could resume payment of her restitution and fees on an amended payment plan that would require her to pay $125 per month.
Miner, however, admitted that her father held Wal-Mart stock in her name and it had not been sold to pay her arrearage, but claimed that her father doubted that it would be enough to significantly help her case. She also conceded that she had not asked the court to reduce her monthly paymeñts. On cross-examination, Miner further admitted that she had three counts of felony overdraft and that she owed a total of $9,321.27 in restitution on the three charges. Miner also admitted that she did not make a payment between February 1997 and June 1999 and that she failed to make the payments of $500 and $1,200 that she had promised to make in two prior court appearances.
On appeal, Miner argues that the trial court erred in granting the State’s petition to revoke because there is insufficient evidence that appellant violated the terms and conditions of her suspended sentence. She asserts that the instant case is analogous to Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990), in which this court reversed a probation revocation where the appellant presented testimony that he was financially unable to fully pay his court costs and restitution or report in person to his probation officer despite making a significant effort to do so. Further, she contends that her ability to secure the assistance of her family by selling stock was foreclosed as a reason for revoking her suspended sentences by Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997). The State, however, asserts that Miner failed to move for a directed verdict at either the close of the State’s case or the close of all the evidence, and therefore she is procedurally barred from challenging the sufficiency of the evidence on appeal, and we agree.
Rule 33.1 of the Arkansas Rules of Criminal Procedure was amended on April 8, 1999, to require a motion for directed verdict in a non-jury trial and now states in pertinent part:
(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. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
Conversely, we note that the rules of civil procedure do not require a directed-verdict motion to preserve a challenge to the sufficiency of the evidence for appellate review. Ark. R. Civ. P. 50.
Although the supreme court has stated that a revocation hearing is “not the same as a criminal proceeding” for the purpose of granting a continuance to secure a psychiatric evaluation, Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990)(citing Minnesota v. Murphy, 465 U.S. 420 (1984)), in Cook v. State, 59 Ark. App. 24, 952 S.W.2d 677 (1997), the court of appeals used Rule 1.4 of the Arkansas Rules of Criminal Procedure, because it “applies to statutes governing criminal proceedings,” to determine that the sixty-day speedy-hearing rule was not violated, and we recognized that the right to counsel applied to revocation proceedings because it was a “stage” in criminal proceedings. Furthermore, in Crouch v. State, 62 Ark. App. 33, 968 S.W.2d 643 (1998), this court interpreted Rule 33.3 of the Arkansas Rules of Criminal Procedure to require a hearing to be set, if requested, for a “Motion for Arrest of Judgment and for New Trial” filed after a probation revocation. Accordingly, we hold that a specific directed-verdict motion is required by Rule 33.1 to preserve a sufficiency-of-the-evidence challenge in revocation proceedings, and Miner’s failure to make such a motion requires that we affirm without reaching the merits of her argument.
Affirmed.
Jennings and Hart, JJ., agree. | [
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WENDELL L. GRIFFEN, Judge.
This case concerns a breach-of-contract and fraud lawsuit filed by appellants Ultracuts Ltd. and Ultracuts Franchises, Inc. (hereafter Ultracuts), against appellees Wal-Mart Stores, Inc., and Wal-Mart Canada, Inc. (hereafter Wal-Mart). The suit was based upon a purported oral agreement whereby Ultracuts was granted the right to operate its hair salons as “stores-within-a-store” in various Wal-Mart locations in western Canada. The circuit judge granted summary judgment in favor of Wal-Mart. We reverse and remand because genuine issues of fact remain to be tried.
In 1994, Wal-Mart acquired the assets of more than one hundred retail stores from Woolworth Canada, Inc. Until that time, a company called Magicuts had provided hair-care services in the Woolworth stores. However, after the buyout, Meril Rivard, the president of Ultracuts, contacted Wal-Mart about the possibility of Ultracuts placing hair salons within the new Wal-Mart stores. According to Rivard, he was informed by Brad Messer, Wal-Mart’s international property manager, that Magicuts would be removed from the stores. Later, Messer contacted Rivard through a realty agent to inform him that there was an opportunity for a hair-care provider to be placed in forty-three stores in western Canada. When Rivard expressed interest, Messer sent him four proposed lease agreements concerning four different Wal-Mart locations.
Rivard quickly executed the lease for one store in Winnipeg. However, he encountered two problems. First, the Winnipeg store manager was unhappy with the lease agreement. Secondly, he was told by Brian Luborsky, president of Magicuts, that Magicuts hair salons would be placed in some of the new Wal-Mart stores. In light of these events, Rivard requested an immediate meeting with Mes-ser. The two met in Bentonville on October 12, 1995, and, according to Rivard, entered into the oral agreement that is the subject of this case. The purported agreement contained four parts and essentially provided that: 1) Ultracuts hair salons would occupy space in certain Wal-Mart stores in western Canada; 2) Wal-Mart would not place any other hair salons in those stores without first giving Ultracuts the right to occupancy; 3) in any market in which Ultracuts occupied space in a Wal-Mart store, Wal-Mart would not enter into a business relationship with any other salon in the market; and 4) Wal-Mart would offer space in its existing stores to Ultracuts before offering space to any other “store-within-a-store” licensees.
After the October 12 meeting, Rivard signed lease agreements for two additional stores. Ultracuts then began preparing for its entry into other Wal-Mart stores and incurred expenses for equipment, staffing, and travel.
In November 1995, Messer learned that another Wal-Mart executive named Mel Redman had made an oral agreement in 1994 promising to give Magicuts the opportunity to place its hair salons in the new Wal-Mart stores in Canada. However, neither Messer nor any other Wal-Mart representative communicated this information to Rivard. In fact, on December 4, 1995, Messer sent a letter to Rivard’s realtor enclosing a fist of seventeen stores in western Canada “which could have available tenant space.” Rivard was instructed to contact Messer if he was interested, and Messer stated that he would “operate under the assumption that we are able to put Ultracuts in the stores.” Approximately two weeks later, Rivard wrote to Messer expressing interest in some of the listed stores and providing sketches for four others.
Still unaware of any possible conflicting agreement between Wal-Mart and Magicuts, Rivard executed a written contract with Wal-Mart in early 1996 entitled, using the British spelling, “Licence Agreement.” The agreement did not contain the terms of the oral agreement entered into between Messer and Rivard on October 12. However, its stated purpose was to establish the framework within which Wal-Mart would grant Ultracuts licenses to operate hair-care salons in its stores. The agreement contained no set terms for payment or duration of the licenses, but it had schedules attached for that purpose. Schedules A and D set out the specific terms for four particular stores. Schedule B, entitled “New Store Licence Schedule” was left open for completion as further licenses were granted in other Wal-Mart stores.
By mid-1996, it became clear to Wal-Mart executives that conflicting agreements had been entered into between Ultracuts and Magicuts. A meeting was held in July 1996 during which Rivard asked that his agreement be honored. At some point he was told by David Ferguson of Wal-Mart that the Magicuts agreement preceded the Ultracuts agreement. Thus, on September 18, 1996, Ultracuts sued Wal-Mart in Benton County Circuit Court. The complaint set out the purported October 1995 oral agreement between Rivard and Messer and alleged that Wal-Mart had breached the agreement and had committed fraud by fading to disclose its conflicting agreement with Magicuts. Wal-Mart moved to dismiss the complaint on the grounds that the oral agreement, if it existed, violated the statute of frauds and the rule against perpetu-ities. The motion was denied, but Ultracuts later amended its complaint to characterize its agreement as a license rather than a lease to avoid the specter of those defenses.
On June 10, 1998, Wal-Mart filed its motion for summary judgment with numerous attachments, to which Ultracuts responded in kind. Wal-Mart contended that the purported oral agreement was too indefinite to enforce because it was simply an “agreement to agree.” Further, it noted that, because it had not actually placed any competing hair salons in its western Canadian stores, it had not breached the agreement. The statute of frauds and rule against perpetuities defenses were raised again as they had been in the motion to dismiss. Additionally, Wal-Mart claimed that a merger clause in the 1996 written contract negated any prior oral agreements or representations.
The motion was the subject of three separate hearings and, in the interim between the hearings, the parties continued to file affidavits, discovery responses, and excerpts from depositions. On October 16, 1998, two months before the final hearing, Ultracuts amended its complaint to set out the fourth component of the alleged oral agreement, which had not been recited in its earlier complaint, i.e., that Wal-Mart had agreed to offer store space to Ultracuts before offering it to any other licensees. After the final hearing, the circuit judge granted summary judgment in favor of Wal-Mart on the breach of contract claim for the following reasons: 1) the oral agreement was too indefinite to be enforced; 2) the oral agreement had not been breached; 3) the oral agreement violated the statute of frauds and the rule against perpetuities; and 4) the oral agreement was merged into the later written contract. Summary judgment was granted on the fraud claim based on the doctrine of merger and on the absence of any reasonable reliance by Ultracuts. Additionally, the trial judge struck Ultracuts’s second amended complaint. This appeal followed.
Summary judgment, while no longer considered a drastic remedy, is only approved when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to his day in court. Guidry v. Harp’s Food Stores, Inc., 66 Ark. App. 93, 987 S.W.2d 755 (1999). The burden of sustaining a motion for summary judgment is on the moving party. Id. On appeal, we view the evidence in a light most favorable to the nonmoving party. Id. It is our task to decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Hawkins v. Heritage Life Ins. Co., 57 Ark. App. 261, 946 S.W.2d 185 (1997).
We address first the issues regarding the merger clause. The 1996 “Licence Agreement” contained a clause which recited that it constituted the entire agreement between the parties regarding Ultracuts’ use of the “Licensed Premises.” The clause further stated that there were no agreements or representations other than the ones contained therein and that all prior agreements or statements were superseded. Wal-Mart contends that, as a matter of law, this clause precludes any action by Ultracuts on a prior oral agreement. Ultracuts claims that the terms of the Licence Agreement were limited to the four particular stores expressly mentioned in the agreement.
We hold that a genuine issue of fact remains to be decided on the interpretation of the merger clause. Generally, a written contract merges with and thereby extinguishes all prior and contemporaneous negotiations, in the absence of fraud, accident, or mistake. Farmers Cooperative Ass’n, Inc. v. Garrison, 248 Ark. 948, 454 S.W.2d 644 (1970). The same is true regarding prior representations that are alleged to be fraudulent. Stevens v. Arkansas Power & Light Co., 197 Ark. 798, 124 S.W.2d 972 (1939). Although the merger clause in this case states unequivocally that there are no agreements or representations, oral or otherwise, other than those contained in the written contract and that all prior understandings, arrangements, agreements, statements, or communications are superseded, it cannot be said as a matter of law that the contract governs all of Wal-Mart’s agreements with Ultracuts on each store-within-a-store arrangement. On the one hand, the stated purpose of the agreement is to provide a framework within which the licensing operation will take place. However, the term “Licensed Premises” is defined in the contract to mean either one store or all the stores collectively. Further, the only specific terms or payment schedules contained in the Licence Agreement are for the four individual stores. Where a contract is susceptible to different interpretations, it is ambiguous. See Lee v. Hot Springs Village Golf Sch., 58 Ark. App. 293, 951 S.W.2d 315 (1997). If an ambiguity exists, there is a question of fact as to the contract’s meaning. See First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992), cert. denied, 507 U.S. 919 (1993).
We also take into account the fact that, prior to signing the Licence Agreement, Ultracuts had already executed three other written agreements for individual stores, which at least raises the possibility that the arrangement between Wal-Mart and Ultracuts was not going to be governed by one master agreement. Further, Wal-Mart’s conduct after the Licence Agreement was executed in January 1996 may be seen as inconsistent with the notion that the contract fully integrated its agreement with Ultracuts. In mid-1996, Wal-Mart attempted to work out a compromise whereby it would give some stores to Magicuts and some stores to Ultracuts. For these reasons, we hold that the trial judge erred in granting summary judgment on both the contract and fraud claims based upon the merger clause contained in the Licence Agreement.
The next issue concerns the trial court’s ruling that the October 1995 oral agreement was too indefinite to be enforced. To have a valid contract, all terms should be definitely agreed upon. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). See also Kinkead v. Estate of Kinkead, 51 Ark. App. 159, 912 S.W.2d 442 (1995). The terms must be “reasonably certain.” ERC Mtg. Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990). Wal-Mart claims that the alleged oral agreement in this case was simply an agreement to engage in future negotiations and so was not a definite contract. Generally, such a contract would be void for indefiniteness. See Hatch v. Scott, 210 Ark. 665, 197 S.W.2d 559 (1946); Lonoke Nursing Home, Inc. v. Bennett Family Partnership, 12 Ark. App. 282, 676 S.W.2d 461 (1984); Phipps v. Storey, 269 Ark. 886, 601 S.W.2d 249 (Ark. App. 1980). However, whether this oral contract was simply an agreement to agree in the future is a fact question. Although the actual rental/license prices and terms were not set in October 1995, the agreement, when viewed in the fight most favorable to Ultracuts, was more in the nature of a general agreement that Ultracuts would be the exclusive hair salon in Wal-Mart stores in western Canada and would have right of first refusal regarding available space in those stores. Considering the purpose of the agreement, a factfinder could determine that it contained all terms necessary to establish a contract.
Next, we consider the trial judge’s ruling that WalMart did not breach the oral agreement. Wal-Mart argues that no breach occurred because, undisputedly, it has not placed any hair salons in its western Canadian stores other than Ultracuts. However, Wal-Mart executives made statements to Rivard indicating that they felt bound by the company’s agreement with Magicuts. These statements could constitute anticipatory repudiation. It has been said that, to prove anticipatory repudiation, one must show a present, positive, and unequivocal refusal to perform. See Kellum v. Gray, 266 Ark. 996, 590 S.W.2d 33 (Ark. App. 1979). It has also been said, less strictly, that a breach occurs when one party by words or conduct indicates that the agreement is being repudiated or breached. See Oaklawn Bank v. Alford, 40 Ark. App. 200, 845 S.W.2d 22 (1993). Wal-Mart’s failure to wash its hands of the Magicuts deal coupled with a Wal-Mart executive’s deposition testimony that the Magicuts deal preceded Ultracuts deal and Mel Redman’s deposition testimony that he felt the Magicuts deal was binding all serve to create a fact question on the issue of anticipatory repudiation. Likewise, a fact question exists regarding whether Wal-Mart breached the fourth component of the alleged agreement, which was that Wal-Mart would offer space in its stores to Ultracuts before offering it to any other licensee. Ultracuts interprets this to mean any licensee, including non-hair salon licensees. It is undisputed that there are other licensees such as photographers or jewelers in Wal-Mart stores where Ultracuts was not offered space first. Viewing the evidence in the light most favorable to Ultracuts, a fact question remains on the point.
We now turn to the complicated issue of whether Ultracuts’ cause of action for breach of contract was barred by either the statute of frauds or the rule against perpetuities. Wal-Mart contends that the October 1995 oral agreement is unenforceable because it is not in writing. Indeed, the statute of frauds provides that a contract for the lease of lands for a term of longer than one year is unenforceable unless it is in writing. Ark. Code Ann. § 4-59-101(a)(5) (Repl. 1996). Wal-Mart also contends that the agreement violates the rule against perpetuities because it gives Ultracuts a perpetual right of first refusal. Indeed, the rule against perpetuities provides that an interest in property must vest within a period measured by a life in being plus twenty-one years. Comstock v. Smith, 255 Ark. 564, 501 S.W.2d 617 (1973). However, neither the statute of frauds nor the rule against perpetuities applies to license agreements. See Mikel v. Development Co., Inc., 269 Ark. 365, 602 S.W.2d 630 (Ark. App. 1980); Comstock v. Smith, supra; First Nat’l Bank & Trust Co. v. Sidwell Corp., 234 Kan. 867, 678 P.2d 118 (1984). Wal-Mart argues in this case that the purported oral agree ment between it and Ultracuts is a lease, not a license. However, a genuine issue of material fact remains to be decided on this issue. A lease divests the owner/lessor of possession and the right to possession and gives the right to possession to the tenant. Harbottle v. Central Coal & Coke Co., 134 Ark. 254, 203 S.W. 1044 (1918). A license, on the other hand, conveys no interest in land but is simply an authority or power to use land in some specific way. Id.
Arkansas courts have never addressed this distinction in the case of a hybrid lease/license like we have here. However, courts from other jurisdictions have done so. It has generally been held that one who occupies space in another’s business is a licensee rather than a lessee. See Union Travel Associates, Inc. v. International Associates, Inc., 401 A.2d 105 (D.C. App. 1979); Bewigged by Suzzi, Inc. v. Atlantic Dept. Stores, Inc., 49 Ohio App. 2d 65, 359 N.E.2d 721 (1976); Schloss v. Sachs, 63 Ohio Misc. 2d 457, 631 N.E.2d 212 (1993). But see Stevens v. Rosewell, 170 Ill. App. 3d 58, 523 N.E.2d 1098 (1988) for a contrary holding. As the Ohio court recognized in Schloss v. Sachs, with today’s commercial complexities, the ability to distinguish between a license and a lease is difficult. Generally, the issue is one of fact. Union Travel Associates, Inc. v. International Associates, Inc., supra.
The oral agreement in this case contains elements of both a license and a lease. Further, the parties have, at one time or another, referred to their arrangement as both a lease and a license. Clearly, a fact question is presented that would preclude summary judgment.
Wal-Mart also argues that its purported agreement with Ultracuts comes within the statute of frauds because it is a contract that cannot be performed within one year of its making. See Ark. Code Ann. § 4-59-101 (a)(6) (Repl. 1996). This portion of the statute of frauds has been interpreted to apply only to contracts that are incapable of being performed in one year. Chadwell v. Pannell, 27 Ark. App. 59, 766 S.W.2d 38 (1989). It does not apply if the contract can be performed in one year, even though there is a possibility or even a probability that it may take longer. Id. It is possible in this case that the oral agreement could have been performed in one year, including that part of the agreement in which Ultracuts was given right of first refusal on store space. Therefore, Wal-Mart would not have been entitled to summary judgment on this point.
Next, we address the trial judge’s determination that Ultracuts did not reasonably rely on representations made by WalMart. Whether reliance is reasonable is a question of fact. Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996). It is arguable that Ultracuts’s reliance was reasonable for two reasons. First, it received a letter from Brad Messer two months after the agreement that implied that the agreement was intact (the December 4 letter). Secondly, some of the Wal-Mart executives felt that they had a binding agreement with Ultracuts. In a June 1996 letter, Messer confirmed by his signature that he had agreed with Rivard in October 1995 just as Rivard now contends.
Finally, we address Ultracuts’ contention that the trial judge erred in striking its amended complaint. Arkansas Rule of Civil Procedure 15(a) provides that, upon motion of an opposing party, a trial court may strike an amended pleading based upon a determination that the amendment would result in prejudice or undue delay. A trial judge has broad discretion in allowing or denying an amendment. Stoltz v. Friday, 325 Ark. 399, 926 S.W.2d 438 (1996). However, an order striking an amended pleading may not be reversed absent a finding of undue delay or prejudice. Harris v. First State Bank of Warren, 22 Ark. App. 37, 732 S.W.2d 501 (1987). When the trial judge in this case decided to strike Ultracuts’ amended complaint, he specifically found that Wal-Mart knew of the additional allegation set forth in the complaint and was not surprised by it. Further, he made no finding that the amendment would unduly delay the lawsuit. Therefore, we reverse on this point.
Reversed and remanded.
Hart, Stroud, and Neal, JJ., agree.
Pittman and Jennings, JJ., dissent.
The trial judge did not base his decision on this portion of the statute of frauds. Wal-Mart asserts this ground as an alternative reason for affirmance. | [
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Tom Glaze, Judge.
Appellant appeals from the chancellor’s order that he remove a carport he had constructed on the parking lot of Scully Pointe in Garland County, Arkansas. Appellant’s primary arguments are that the chancellor erred (1) in finding that the Board of Administration did not have authority to approve the construction of carports, and (2) in considering whether the designation of parking spaces at Scully Pointe amounted to a taking of common property. We affirm.
Scully Pointe is a horizontal property regime within the Horizontal Property Act, Ark. Stat. Ann. §§ 50-1001 to -1025 (1971 Repl. and Supp. 1985). Appellant and appellees are owners of apartments and members of the Homeowners’ Association of Scully Pointe. Appellees brought this action on June 10,1982, alleging that appellant’s construction of a two-car carport in the common area violated provisions in both the Master Warranty Deed and the Property Owner’s By-laws. The chancellor found that the parking area where the carport was built is within the general common elements, that the Board of Administration had no authority to authorize appellant to construct the carport, and that even if the Board were authorized to approve construction, the carport was not in compliance with the Board’s requirements. The chancellor found that construction of the carport created an exclusive appropriation of the general common area by appellant without proper approval by the property owners pursuant to the Master Deed and the By-laws.
Both the appellant and the appellees agreed that, according to the Regime’s Master Deed, parking areas and carports are general common elements. Unlike appellees, however, appellant, in his first major point, contends that because the Regime’s By-laws give the Board exclusive control and management of the Regime, the Board was authorized to approve the construction of the appellant’s carport. We cannot agree.
The Regime’s Master Deed, as amended, and its By-laws restate most of the provisions contained in Arkansas’ Horizontal Property Act. For example, both set forth the manner in which the apartment owners can use common elements, and tracking the same language in Ark. Stat. Ann. § 50-1008 (Repl. 1971), the By-laws provide that each co-owner may use the elements held in common in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other co-owners. The Regime’s By-laws also incorporate in pertinent part Ark. Stat. Ann. § 50-1007 (Repl. 1971) by providing the common elements shall remain undivided and shall not be the object of an action for partition or division of the [co-]ownership.
Here, the Board’s action amounted to a division of common property by permitting the appellant to construct a private carport on the common parking area. Such Board action constituted the creation of a limited common element — which is an act that can only be accomplished by the approval of all co-owners. See Ark. Stat. Ann. § 50-1002(e) (Repl. 1971). In sum, only the co-owners — not the Board— were empowered to give appellant the permission to construct a private carport.
As a part of his first point for reversal, appellant urges that his construction of the carport did not necessarily appropriate common property to his exclusive use. He contends that testimony reflected that other owners had parked in the carport after its construction and that because he is a Texas resident, appellant is rarely at Scully Pointe. We find no merit in this contention. Appellant testified that he assumed when he paid for the carport that he would have the right to use it when he was there. He further said:
If I had thought anyone else owning a unit at Scully Pointe would have used the carport that I constructed so that I would not be able to use the carport when I was in Arkansas, I would not have spent $4,000 to build it.
The carport under the facts of this case would be no less a limited common element merely because appellant’s exclusive use of the carport is only part-time rather than full-time.
Appellant also argues that even if all co-owners were required to approve his carport’s construction, the co-owners — at their 1981 membership meeting — evidenced their intention to delegate this issue to the Board. Again, we must disagree. Although the owners discussed the construction of carports at their 1979 and 1981 membership meetings, the owners never voted on this issue. The only action taken by the membership is recited in the minutes of the 1981 meeting, which reflect that a short discussion was had concerning proposed carports and “that those property owners directly concerned should achiéve a consensus of need, then come back to the board with a plan.” The owners neither approved carports nor authorized the Board to do so.
Finally, the appellant contends the trial court erred in considering whether the mere designation of parking spaces at Scully Pointe amounted to a taking of common property. This issue was not pled by the parties, and in reading the record, we fail to find that either party requested a conclusive ruling on this point. The trial court ruled only that the construction of the carport in conjunction with the numbering of parking spaces .coinciding with condominium unit numbers creates an exclusive appropriation of the general common area to appellant without proper approval by the property owners. This action, the court concluded, was not in accordance with the Master Deed, By-laws or Arkansas law; therefore, the court ordered the appellant to remove the carport. We in no way construe the trial court’s order to deal with the issue of whether the designated parking spaces alone amounted to a taking of common property.
Affirmed.
Cooper and Mayfield, JJ., agree.
The Master Deed provides that no apartment owner shall make any use of the common elements which would interfere with the use and enjoyment of such elements by all other owners or which would interfere with the use for which they are designed and intended.
Ark. Stat. Ann. § 50-1002(e) (Repl. 1971) defines limited common elements to include those common elements which are agreed upon by all the co-owners to be reserved for the use of a certain number of apartments to the exclusion of the other apartments. | [
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Melvin Mayfield, Judge.
The New Hampshire Insurance Company has appealed from a decision of the Workers’ Compensation Commission. In order to understand the issue involved, it is necessary to know some details of the largely undisputed factual background.
The appellee, Martin Logan, sustained an injury to his right leg on August 15, 1979, while working for Affiliated Food Stores. After being treated symptomatically for a period, a total knee replacement arthroplasty was performed and appellee continued to see the doctor at regular intervals. At the time of this inj ury, Maryland Casualty Company was the employer’s insurance carrier and the injury was accepted as compensable. Maryland paid the medical bills and some temporary total disability but as of July 12, 1981, had not paid any permanent partial disability.
On July 12, 1981, the appellee sustained another injury while at work. This resulted in surgery on both knees and it is likely that he will need more surgery in the years to come. At the time of this second injury, the employer had changed insurance carriers from Maryland to New Hampshire. The employer notified Maryland that another operation was being considered and asked if that company would still be liable for the medical bills. Maryland replied that it thought appellee’s present problems were caused by his new injury and that it would not pay for the medical bills resulting from this new injury.
Upon being advised as to Maryland’s position, New Hampshire began to pay the medical bills for appellee’s treatment, but notified Maryland it was making demand for reimbursement, and requested a hearing before the Workers’ Compensation Commission.
A hearing was had on September 21, 1982. New Hampshire told the administrative law judge it contended that the incident on July 12, 1981, was a recurrence of the earlier injury and that Maryland should be responsible for all expense and disability incurred in connection with that injury, or alternatively that the expenses should be prorated between the two carriers. Maryland said there had been a new inj ury, nota recurrence, and also took the posi tion that it had no liability because it had paid no compensation for over a year and, under Ark. Stat. Ann. § 81-1318 (b)(Repl. 1976), the statute of limitations had run as to any claim against it.
New Hampshire’s attorney then pointed out to the law judge that the appellee was present but not represented by counsel and suggested that it might be proper that appellee be advised about the right to have counsel since New Hampshire was paying the medical expenses under protest and had not paid any temporary total disability, Maryland was contending that limitations had run on any claim for further compensation against i t, and appellee would need to make a claim against the Second Injury Fund if Maryland was successful in its contention. The law judge advised appellee of these matters and when appellee said he would like to retain counsel, the hearing was recessed.
Another hearing was had on January 17, 1983, and the law judge subsequently held that Maryland should pay all disability and medical benefits arising from the August of 1979 injury up to the date of the second injury on July 12, 1981; this was to include payment of 50% permanent partial disability to the right leg. The injury in July of 1981 was held to be either an aggravation or recurrence of the August of 1979 injury and all benefits after July 12, 1981, were to be paid equally by both carriers. It was also held that Maryland should reimburse New Hampshire for all payments made by it that were not made in accordance with the law judge’s decision; that Maryland had controverted the permanent partial disability benefits which arose prior to July 12, 1981; and that both carriers had controverted all benefits subsequent to July 12, 1981, and the attorney’s fees resulting from that action should be paid equally by both of them.
The Commission affirmed the law judge’s decision and the only issue presented to this court is New Hampshire’s appeal from the holding that it controverted all benefits subsequent to July 12, 1981.
The appellant first points to the Commission’s opinion that states “appellant should be commended” for providing the claimant with needed medical benefits after Maryland refused to do so, and appellant says if by claiming repayment from Maryland it is held to have controverted the appellee’s claim, there will be no incentive for a carrier to act in such a commendable manner in the future. Appellant also says that the Commission attempted to j ustify its action by reasoning that appellant put appellee in the position of having to obtain an attorney, but appellant argues this is not correct because its dispute with Maryland did not threaten ap-pellee’s interest. Appellant cites Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976), where the court said the allowance of attorney’s fees where claims have been controverted discourages oppressive delay in re cognizing liability and deters arbitrary or capricious denial of claims, and appellant says those reasons do not apply to its actions in this case.
On the other hand, the appellee takes exception to appellant’s argument that it was not necessary for appellee to obtain an attorney to represent his interest. Appellee says:
The fatal flaw in this argument is clearly demonstrated by the following hypothetical. Assume that Mr. Logan had not hired an attorney . . . Assume further that Appellant had been successful in its contention that his [appellee’s] subsequent injury was a “reccur-rence.” Assume also that Maryland prevailed in its Statute of Limitations defense.
Where would Mr. Logan be now? New Hampshire would have no responsibility at all and the claim against Maryland would have been barred. Appellant’s argument . . . that Mr. Logan’s interest was not “threatened” by its position in this case is specious.
We have to agree with appellee’s position. It should be remembered that the primary liability for workers’ compensation is upon the employer and that insurance coverage does not relieve the employer of that liability. Ark. Stat. Ann. § 81-1305 (Repl. 1976). Whether a claim has been controverted is a question of fact and is not to be determined by a mechanical approach. Aluminum Co. of America v. Henning, supra; Revere Copper & Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). In the Henning case, the court said:
A liberal construction favoring the claimant mandates a holding that the question whether a claim is controverted be one of fact to be determined Atom the circumstances of the particular case, only one of which is the status of the formal proceedings before the commission, and that, as in other such determinations, the commission’s finding should not be reversed if there is substantial evidence to support it, or [unless] it is clear that there has been a gross abuse of discretion.
260 Ark. at 709.
It seems clear to us that the combined actions of the two carriers in this case constitute substantial evidence to support the Commission’s decision that the appellant’s claim was controverted. However, in view of appellant’s argument that an affirmance will lessen a carrier’s incentive to supply needed medical benefits that it claims are the responsibility of another carrier, and, in order to clarify the Commission’s award, it is noted that we agree that the appellant did not controvert the medical expenses already paid by it on September 21, 1982, the date of the first hearing in this matter. We do not think a contrary finding would be supported by the evidence in this case, or that the statute allowing attorney’s fees on controverted claims would be served by such a finding. Assuming such a finding was made, it is hereby eliminated by a modification of the award.
Affirmed as modified and remanded for further proceedings
Cloninger and Corbin, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant Lee Goston was found guilty by a jury of the second-degree battery of a police officer and sentenced to six years in the Arkansas Department of Correction. Appellant was excluded from the courtroom during the trial and denied the right to represent himself because, in the 60 days preceding this trial, he had been violent and disruptive in court several times. On appeal he argues that (1) the trial judge erred by excluding him from the courtroom during his jury trial in violation of his constitutional right to be present and to confront the witnesses against him, and (2) the trial judge erred by denying him the right to conduct his trial pro se. We agree with appellant’s first assignment of error and, therefore, reverse and remand.
Before the trial began, the judge informed appellant that he was going to be excluded from the courtroom because on a previous occasion he had to be carried into the courtroom because he refused to walk, and he had been disruptive in court.
Appellant objected and told the judge that when he had caused the previous disruptions, he had been under deep emotional stress and was having hallucinations; that he had been on “major drugs”; and that his mind was telling him that all white people are devils and to do the things he was doing.
Appellant also told the judge that he did not want his attorney to represent him, he wanted to represent himself, and at the very least he wanted to sit in the courtroom and assist his attorney.
The judge again explained to appellant that he was being excluded from the courtroom because the last time he was in court he lay “on the table there and didn’t speak,” and at another time appellant had given the judge his word that he would behave if his shackles and handcuffs were removed, but when they were removed, appellant had “cursed at the jury.”
Defense counsel then told the judge that, because of appellant’s threats to “strike past counsel,” he would be very uncomfortable sitting next to appellant in court if appellant was not shackled. Appellant insisted that since counsel was afraid to sit beside him without him being shackled, he wished to fire counsel and represent himself. Nevertheless, the judge denied appellant’s request to proceed as his own counsel and ordered appellant excluded from the courtroom.
Appellant first argues that a defendant has a right to be present at every essential part of his trial. He contends that during the in-chambers conference the morning of his trial in the instant case, he was not violent, threatening, or disruptive. Under these circumstances, he maintains, it was error to exclude him from the courtroom during his trial.
The Sixth Amendment to the United States Constitution and Article 2, section 10, of the Arkansas Constitution provide that the accused has the right to be present and confront the witnesses against him. This gives him the right to be physically present and the opportunity to conduct effective cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985); Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).
In Lewis v. U.S., 146 U.S. 370 (1892), the Court reversed a criminal conviction due to jury selection being conducted by listing the challenges, as opposed to the defendant seeing the potential jurors face to face. The Court said:
A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner . . . ,[I]n felonies, it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial.
146 U.S. at 372.
In Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978), the defendant was accused of assault to commit murder of a prison guard, and was acting as his own attorney with stand-by counsel, when he was expelled from the courtroom three times. The first time, appellant had taunted the court, held up a clenched fist, and argued with the judge. The appellate court found expulsion at that time to be appropriate. The next two times, however, appellant had only been argumentative with the judge and the witnesses he was questioning. The appellate court held that it was error to exclude appellant from the courtroom simply because he asked irrelevant, repetitious and argumentative questions.
In Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990), the Arkansas Supreme Court said:
In Illinois v. Allen, 397 U.S. 337, 338 (1970), the United States Supreme Court was faced with the issue of “whether an accused can claim the benefit of this constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.” The Court concluded that a defendant can lose his right to be present at trial if, after being warned that he will be removed from the courtroom, he nevertheless conducts himself in such a manner that his trial cannot proceed. The Court further held that the right to be present at trial could be reclaimed as soon as the defendant is willing to conduct himself in a manner that is consistent “with the decorum and respect inherent in the concept of courts and judicial proceedings.” Id. at 343.
Appellant’s right of confrontation under the sixth amendment to the Constitution of the United States was not violated. He became disruptive, and ignored the court’s warnings to return to his seat. Although the court did not specifically warn appellant that he might be removed from the courtroom before he was actually removed, the court immediately suspended the trial and, along with other essential persons, went to appellant’s cell to try to convince him to return to the courtroom without being opprobrious, warned appellant that the trial would proceed with or without him, and informed him that he could return at any time as long as he did so without contumacy. Appellant clearly relinquished his right to be present at his trial because of his own actions. He subsequendy reclaimed the right by conducting himself in a manner consistent with the decorum that is essential in judicial proceedings.
303 Ark. at 272, 796 S.W.2d at 334.
The State points out that in previous trials before this judge, and before another Pulaski County judge, appellant had promised to behave but had then caused such disruptions that forty jurors and ten witnesses had to be paid and dismissed. Furthermore, appellee notes, this judge had knowledge that, in evaluating appellant’s mental condition and fitness to stand trial, doctors at the State Hospital thought appellant had attempted to feign mental illness. Therefore, appellee argues, it was reasonable for this judge to exclude appellant from the courtroom, thereby depriving appellant of the opportunity to disrupt another trial.
In support of this argument the State relies upon U.S. v. Stewart, 20 F.3d 911 (8th Cir. 1994), in which the appellant was forced to go to trial in leg irons. The court held that it was permissible for a trial court to rely upon the presiding judge’s knowledge of the defendant’s prior misbehavior in court as the factual basis for restricting the defendant’s constitutional right to be present during his trial. 20 F.2d at 915.
We think the United States and Arkansas Constitutions require the judge at every trial to give the defendant the opportunity to be in the courtroom with the witnesses and jury, regardless of his or her previous conduct. See Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990). For that reason, we reverse and remand the instant case for a new trial. However, we note that a trial judge does not violate the defendant’s right of due process when, because of the defendant’s disruptive behavior in the courtroom, the trial judge orders the defendant removed. Illinois v. Allen, supra; Terry v. State, supra; Morris v. State, 249 Ark. 1005, 462 S.W.2d 842 (1971).
Appellant also argues that it was error for the trial court to deny his request to proceed pro se. Since we are remanding this case for a new trial the issue may arise again. Therefore, we direct the trial judge to the law as stated in Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), and Barnes v. State, 15 Ark. App. 153, 691 S.W.2d 178 (1985).
Reversed and remanded.
Robbins and Griffen, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
Appellant Chester Brunson was convicted in a jury trial of two counts of passing forged Internal Revenue Service refund checks. On appeal, he alleges three points for reversal. We find no error and we affirm.
The evidence at trial showed that on May 2, 1979, and on April 18, 1980, appellant had in his possession IRS refund checks issued in the name of his brother, Charles Brunson, who was then incarcerated in the Arkansas Department of Correction. Appellant endorsed the checks with both his name and his brother’s name and cashed them. Charles Brunson filed a claim with the IRS for non-receipt of the checks and replacement checks were issued and cashed. A federal agent testified that, in the course of his investigation of these claims, the appellant said his brother had given him permission to sign and cash the checks. At trial, however, the brother denied having given such permission.
Appellant’s first point for reversal is that the trial court erred in overruling his motion for mistrial based on a remark made in opening statement when the prosecutor said: "I believe Chester Brunson is going to get up here and tell you that he did in fact sign those checks.”
At appellant’s request, the parties approached the bench and appellant made a motion for mistrial based on the prosecutor’s suggestion that appellant would testify in the case. Immediately after the prosecutor’s comment, the trial court admonished the jury and informed them that appellant did not have to testify in his defense and the fact that he did not testify could not be held against him. After discussion and after the state had rested its case, the court denied the motion for mistrial, stating that the comment was harmless and non-prejudicial under Weaver v. State, 271 Ark. 853, 612 S.W.2d 324 (Ark. App. 1981).
In Weaver it was pointed out that comment on the failure of a defendant to testify in a criminal case is a violation of the self-incrimination clause of the Fifth Amendment of the United States Constitution, made applicable to the States by the Fourteenth Amendment. However, the court in Weaver noted that this is not always reversible error. If the state can show that the comment did not contribute to the verdict, the error will be held to be harmless.
In this case, the trial court based its ruling in part on the fact that appellant’s counsel had raised the issue during voir dire, when the following question was asked: Has any member of the jury panel ever given another person authority to sign your name to a check? It seems apparent that the only possible inference to be drawn from this question is that appellant intended to testify in his defense that he had been given permission to sign the checks.
We think this case is similar to Petty v. State, 245 Ark. 808, 434 S.W.2d 602 (1968), wherein the prosecutor made reference in his opening statement to Petty’s prior convictions. In that case the denial of the motion for mistrial was upheld on the grounds that Petty’s counsel had informed the jury of his client’s prior convictions during voir dire of the panel.
When we view the nature and extent of the remark in this case and consider the ample evidence of guilt before the jury, we conclude that there is no reasonable possibility that the prosecutor’s opening statement remark contributed to the jury’s verdict.
Appellant’s second point of error concerns the sentencing procedure followed by the trial court. The jury was unanimous in its determination of appellant’s guilt on both counts, but was unable to agree on punishment. The trial judge, in accordance with Ark. Stat. Ann. § 41-802 (2) (c) (Repl. 1977), then discharged the jury and sentenced appellant. Appellant asserts that this sentencing procedure violated his constitutional right to a jury trial. We find no merit in that argument.
The issue of the court’s imposing sentence has been settled in this state for many years! In Froman and Sanders v. State, 232 Ark. 697, 339 S.W.2d 601 (1960), it was held that such sentencing was not in conflict with our constitutional provisions regarding jury trials. Appellant argues, however, that Froman should be overruled. Prior decisions should not be overruled unless it can be shown that an injustice will result. Mannix v. State, 273 Ark. 492, 621 S.W.2d 222 (1981). Appellant has failed to demonstrate that an injustice has resulted here.
Appellant appears to raise as error the fact that the trial j udge did not give the j ury an A llen instruction, AMCI6004, before removing the sentencing issue from the j ury. We note simply that such an instruction was not requested at the time by appellant, and this court cannot consider the issue for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Finally, the appellant argues that the trial court erred in sustaining the state’s objection to appellant’s question concerning the motives of the state’s chief witness, Charles Brunson. When appellant testified in his own behalf, he was asked by counsel: Do you have any explanation as to why your brother would do you this way [testify against you]? The state objected on the grounds that the question called for speculation, and the objection was sustained by the trial court. Appellant then rested his case.
We cannot say the trial court was in error in sustaining the objection. The proper procedure when testimony is excluded is a proffer of the evidence that would have been presented, unless this is apparent from the context in which the questions are asked. Uniform Evidence Rule 103 (a) (2). Here, no such proffer was made and we do not think the answer to the question asked was obvious. In his brief on appeal, appellant states that “insofar as this issue was concerned, the defense was he would have testified that his brother was repeating a pattern of bad behavior in recanting his consent,” but this proffer comes too late for appellate review. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980).
Affirmed. | [
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Tom Glaze, Judge.
This is an Employment Security case in which the claimant was awarded benefits. On appeal, the employer contends the claimant is disqualified for benefits because he was discharged for misconduct in connection with the work. Because the Board of Review held claimant was terminated for reasons other than misconduct, the issue before us is whether there is substantial evidence to support the Board’s decision.
In Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980), our Court delineated the factors necessary to show misconduct:
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.
Id. at 799-800, 601 S.W.2d at 892-95.
Furthermore, 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. Poff v. Everett, 8 Ark. App. 83, 648 S.W.2d 815 (1983). 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. Arlington Hotel v. Employment Security Division, 3 Ark. App. 281, 625 S.W.2d 551 (1981). On appeal, the Board’s findings are conclusive if they are supported by substantial evidence. Parker v. Ramada Inn, 264 Ark. 472, 572 S.W.2d 409 (1978). 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. See Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W.2d 495 (Ark. App. 1980). Guided by the foregoing principles, we now review the evidence which was before the Board.
The claimant was employed as a truck driver and drove a route three days a week between Little Rock and El Dorado. His schedule required him to work Monday, Wednesday and Friday, and to be off each Tuesday and Thursday. Sometime before Monday, May 17, 1982, the claimant received a note from his supervisor instructing claimant to call regarding a change in his route. The new route was in Little Rock and required claimant to work six days a week. On May 17, he called the supervisor as directed. In talking with his supervisor about the new route, the claimant said that he wanted to discuss the matter with the president of the company. Claimant also indicated that he would be unable to work on Tuesday, May 18. In fact, it it undisputed that claimant called the employer daily, Monday through Thursday, advising the supervisor on each occasion that claimant would not be in the next day because of “personal business.” By letter dated Friday, May 21,1982, the supervisor notified the claimant that he was terminated.
Before the Appeal Tribunal and Board of Review, the employer argued the claimant’s actions amounted to misconduct, thus disqualifying him for benefits. In essence, the employer contended the claimant’s refusal to appear for work for four consecutive days was just cause connected with the employment to discharge him. Claimant countered, arguing that he merely had followed established procedure when absenting himself from work. He testified that to be absent from work all he had to do was call in advance and say he could not come in because he had personal business.
Claimant’s supervisor admitted that the employer had no written or stated policy concerning employee absences. On the other hand, Mr. O. L. Thompson, a co-employee who worked for the company sixteen years, corroborated the claimant’s testimony. Thompson said that when employees planned to be absent, the employer only required them to call in advance so it could arrange for substitute drivers. He further stated that employees were not compelled to explain why they would be absent. Expounding further, Thompson related that when his father died, he informed the employer that he would be “off a week ... on personal business.” He never called the employer again that week.
The employer offered evidence indicating that it never accepted “personal business” as a valid reason for missing work. In its argument, the employer also contends that claimant’s actions (and inactions) infer that he refused to accept any change in his work schedule and intended to quit his job. While the evidence might reasonably support the inferences argued by the employer, there is ample evidence that directly and inferentially favors the claimant as well. For instance, claimant testified that he did not actually protest the new route assignment but did express that he wanted to talk to Mr. Lavender, the company president. Claimant also stated that, according to established procedure, he gave advance notice to his employer concerning each day he would be absent. He said that his absences were caused by problems he was experiencing due to an earlier job-related injury. Because employees had never been required to give specific reasons for absences, claimant testified he merely told the supervisor he had personal business instead of mentioning his physical ailment.
Although we may well have reached a different result on the evidence presented, we must give the successful party the benefit of every inference which can be drawn from the testimony, viewing it in the light most favorable to the successful party. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). Here, the Board was presented substantial evidence from which it found that the claimant’s actions were not misconduct. Accordingly, we affirm the Board’s decision and award of benefits.
Affirmed.
On appeal to the Board, the employer submitted affidavits and other documents never presented to the Appeal Tribunal. In Smith v. Everett, 6 Ark. App. 337, 642 S.W.2d 320 (1982), we held the Board could not consider such new evidence because the opposing party was never afforded the opportunity to cross-examine adverse witnesses. In the instant case, the Board, without an additional hearing, reviewed and considered the employer’s new evidence. However, the Board, in affirming the Tribunal’s decision, held in favor of the claimant; thus, we conclude no prejudice resulted from the improperly submitted evidence. | [
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Wendell L. Griffen, Judge.
This case involves a challenge to a chancellor’s decision that the appellants procured a trust and related warranty deed from Wesley E. Noland, deceased, and failed to prove beyond a reasonable doubt that Noland possessed the requisite mental capacity and acted without undue influence when he created the Wesley E. Noland Irrevocable Trust and conveyed his one-third interest in a family farm to it. The chancellor also determined that a joint tenancy with right of survivorship could not be destroyed by conveyance. Although we hold that the chancellor erred on the latter issue, his error was harmless because his decision that appellants failed to meet their burden of proof of mental capacity and lack of undue influence concerning conveyances between Wesley Noland and the Wesley E. Noland Irrevocable Trust was not clearly erroneous. Therefore, we affirm.
Wesley Noland and his wife Elsie had four children (daughters Anita Shaver and Helen Hooton, and sons Jerry and Claude No-land). On January 21, 1974, Wesley Noland and Elsie Noland executed a deed that created a joint tenancy with right of survivor-ship to their eighty-two-and-one-half-acre family farm in themselves and their sons (Jerry and Claude). Apparendy, this conveyance was made to keep the husband of one of the daughters from becoming involved in the family estate, and made in the belief that the sons would treat their sisters equitably insofar as the farm was concerned. Wesley Noland is alleged to have later become concerned that Claude Noland would not share the farm with his sisters. Wesley Noland was told by an attorney that the joint tenancy could not be dissolved without the agreement of all the joint tenants, including Claude Noland.
In August 1991 another lawyer concluded that a joint tenant with a right of survivorship could convey his interest to a third entity, thereby converting the joint tenancy with right of survivor-ship into a tenancy in common. Acting on this advice and the encouragement of Jerry Noland and Anita Shaver (after the death of Elsie Noland), Wesley Noland established the Wesley E. Noland Irrevocable Trust on September 27, 1991. Wesley Noland also executed a warranty deed that transferred his one-third interest in the farm to Jerry Noland and Anita Shaver as Trustees of the Trust (which had as its beneficiaries Jerry Noland, Anita Shaver, and Helen Hooton). Jerry Noland then executed a warranty deed that transferred his one-third interest into the Trust. The Trust also provided that Claude Noland (who lived with Wesley) would have a life estate in the farm residence and lands, and an undivided one-third interest in the remainder.
Claude Noland did not know about the Trust and related conveyance until he went to pay taxes on the property after Wesley Noland died. He then brought suit to set aside the Trust and related conveyance, arguing that Wesley Noland lacked mental capacity to establish the Trust, and that the Trust and related conveyance resulted from undue influence by Jerry Noland and Anita Shaver. Following a hearing on April 20, 1994, the chancellor held that Jerry Noland had procured the Trust so that he had the burden of proving beyond a reasonable doubt that Wesley Noland had mental capacity and was not under undue influence concerning it and the related conveyance. The chancellor held that Jerry Noland failed to meet that burden, so the conveyance was set aside. He also ruled that even if he held that the defendants had met their burden on the mental capacity and undue influence issues, a joint tenancy with right of survivorship cannot be destroyed by conveyance.
Jerry Noland and Anita Shaver, Trustees of the Wesley E. Noland Irrevocable Trust, and as beneficiaries with Helen Hooton, have appealed the chancellor’s decision voiding the Trust and related conveyance. They argue that the chancellor erred by holding that the Trustees had procured the Trust and warranty deed from Wesley Noland, and that the chancellor erred by shifting the burden of proof to them on the issues of lack of mental capacity and undue influence regarding the Trust and related warranty deed by Wesley Noland. Appellants also argue that the chancellor applied the incorrect legal standard for analyzing the mental capacity issue. Appellants finally argue that the chancellor erred in holding that a joint tenant may not convey his interest to a stranger and defeat the survivorship rights of other joint tenants as to the conveyed interest.
Most of the abstract and record deals with the mental capacity and undue influence issues, allegations by appellants that Claude Noland was abusive toward Wesley Noland during his last years, and Claude Noland’s counterallegations that appellants were not around Wesley Noland enough to appreciate the extent of his alleged incompetency. The record certainly demonstrates that these siblings appear to be living out hostilities and long-held conflicts dating back many years. Suffice it to say that the chancellor had considerable conflicting proof concerning Wesley Noland’s mental state in 1991, the allegations of mistreatment and verbal abuse by Claude Noland (which in some instances clearly appear to have been substantiated by his own conduct and testimony), and proof concerning tactics employed by Jerry Noland and Anita Shaver concerning the creation of the Wesley E. Noland Irrevocable Trust and the conveyance of Wesley Noland’s one-third joint interest in the farm into it.
However, the threshold issue is whether Jerry Noland procured the Trust and warranty deed from Wesley Noland to the Trust. In an ordinary challenge to the validity of a will, the party contesting its validity must prove by a preponderance of the evidence that the testator lacked mental capacity or was unduly influenced at the time the will was executed. Baerlocker v. Highsmith, 292 Ark. 373, 730 S.W.2d 237 (1987). This principle also applies to other testamentary instruments. However, where a beneficiary of a testamentary instrument actually drafts or procures it, Arkansas law applies a higher burden of proof and shifts the burden onto the proponent of the instrument. In Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), the Arkansas Supreme Court held that a proponent of a will who is a beneficiary and who drafted the will or caused it to be drafted must prove beyond a reasonable doubt that it was not the result of undue influence and that the testator had the mental capacity to make it. In Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980), the supreme court again held that where a beneficiary procures the making of a will, it bears the burden of showing beyond a reasonable doubt that the testator had both mental capacity and such freedom of will and actions as are required to render a will legally valid. See also Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992).
Under the clearly erroneous standard of review, we are unable to reverse the chancellor’s finding of procurement. A de novo review of the record shows that Jerry Noland arranged all of the meetings between his father and counsel regarding creating the Trust. The trust documents were prepared by counsel selected by Jerry and were delivered to Jerry rather than to Wesley Noland. The lawyer who drafted the trust documents explained them to Jerry rather than to Wesley Noland. Jerry, in turn, explained the Trust documents to Wesley Noland and appears to have coached him regarding the documents before covertly arranging with Anita Shaver to take Wesley Noland to the lawyer’s office where the documents were executed.
Because the Court of Appeals reviews equity appeals de novo, we will affirm a chancellor’s decision if it is correct for any reason. Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984). In Park v. George, 282 Ark. 155, 667 S.W.2d 644 (1984), the Supreme Court of Arkansas reversed a decision by a probate judge who admitted a will to probate and held that the probate court erred in placing the burden of proof regarding lack of mental capacity and undue influence on the will contestants rather than its proponents. Hence, the chancellor’s ruling that the burden shifted to appellants to prove beyond a reasonable doubt that Wesley Noland was mentally competent and acted with free will when the Trust was created and he executed the warranty deed conveying his joint interest into it should be affirmed.
It is inconsequential that Jerry Noland’s interest in the farm was reduced from a one-third joint interest with right of survivor-ship to a two-ninths interest as a tenant in common by the trust and warranty deed. The crucial factor is that he was a beneficiary of an instrument that he caused to be drafted, whatever his pro rata interest happened to be and for whatever purposes he may have procured its drafting. Although Jerry Noland’s pro rata interest in the family farm decreased from one-third to two-ninths under the purported transactions, the two-ninths interest would have been held as a tenant in common. As such, Jerry Noland would have attained an arguably preferable position because his two-ninths interest did not depend upon the right of survivorship. Whether he outlived Wesley and Claude Noland or not, the purported transactions meant that he had two-ninths of the land, and that he and Anita Shavers would have controlling voice in its disposition because of their positions as Trustees of the Wesley E. Noland Irrevocable Trust, which would have owned two-thirds interest in the land as tenant in common with Claude Noland. When one considers that Anita Shavers had no legal interest in the land and no voice in its management under the joint tenancy arrangement that Wesley Noland originally established with Jerry and Claude Noland, it is undeniable that Jerry Noland and Anita Shavers were beneficiaries of the warranty deed and trust instruments, both in the legal and practical senses.
We find no Arkansas authority that restricts the principle that the proponent of a testamentary instrument who is a beneficiary of that instrument must obtain a larger interest in property than he would otherwise hold before the burden of proof shifts regarding the mental capacity and free will of the testator. Rather, we understand the law to be that if the proponent is a beneficiary, the duty to prove that the instrument was created free of undue influence and by a person competent to do so shifts to the benefiting proponent, and that the quantum of proof rises from preponderance of the evidence to proof beyond a reasonable doubt on those issues.
We further hold that the chancellor’s finding that appellants did not prove beyond a reasonable doubt that Wesley Noland possessed mental capacity and acted without undue influence regarding the Trust and related conveyance of his joint interest was not clearly against the preponderance of the evidence. There is great disagreement between the parties concerning Wesley Noland’s capacity after his wife died in 1991, but it is not our duty to decide this issue de novo. We conduct a de novo review of the record to determine whether the chancellor’s ruling on this point is clearly against the preponderance of the evidence. Whatever Wesley No-land’s mental state may have been in 1974, or between 1974 and 1991 when the Trust was created and the challenged conveyance took place, the controlling question is whether he possessed mental capacity and acted without undue influence when the Trust was created and he conveyed his joint interest into it in September of 1991. Given the considerable proof that Noland was unable to be trusted with even menial tasks around his house and farm, the chancellor’s ruling that appellants failed to prove beyond a reasonable doubt that he acted with the requisite mental capacity and without undue influence is not clearly erroneous.
Although the chancellor did err as a matter of law when he held that a joint tenant cannot convey his joint interest to a stranger to the joint tenancy, that error was harmless. Granted, the conveyance of Wesley Noland’s undivided one-third joint interest to the Trust would have dissolved the survivorship rights of his joint tenants as to that conveyed interest (assuming that Noland was competent and acting of his own free will when he conveyed his interest to the Trust). Even so, Arkansas law does not prohibit a joint tenant from conveying his interest to a stranger, and we have not been cited to any authority holding that such a conveyance requires the assent of the other joint tenants. Rather, had Noland acted with requisite competency and freedom of will, his one-third joint interest in the farm would have been conveyed to the Trustees as a tenancy in common pursuant to Ark. Code Ann. § 18-12-603 (Repl. 1987). Given that Jerry Noland conveyed his one-third interest in the farm to the Trust as well, the effect of both transactions would have been that Claude Noland would have held a life interest (pursuant to the other conveyances and the original 1974 deed creating the joint tenancy) in the farm, and his undivided one-third interest in the remainder. That one-third interest would not have been with right of survivorship, however, because the unities of tide, time, and interest would not have been present between Claude Noland and the Trust. The practical effect of the purported conveyances in this instance would have been to dissolve the joint tenancy and create a tenancy in common between Claude Noland and the Trust. Given the invalidity of the conveyance by Wesley Noland to the Trust, the chancellor’s mistaken view of the law amounts to harmless error.
The chancellor’s decision is affirmed.
Pittman and Rogers, JJ., agree.
Robbins, Mayfield, and Stroud, JJ., dissent. | [
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John B. Robbins, Judge.
Appellant Keith Crawford filed a workers’ compensation claim, alleging that he injured his back while working for appellee Pace Industries on the evening of November 2, 1993. The Administrative Law Judge found that he was entitled to benefits. However, the Commission reversed, finding that Mr. Crawford failed to prove that he sustained a compensable injury. Mr. Crawford now appeals, raising three points for reversal. First, he argues that the Commission erred in requiring him to identify a specific time and place of his injury. Next, Mr. Crawford contends that the Commission erred in refusing to recognize a CT scan as objective medical evidence. Finally, Mr. Crawford argues that the Commission erred in determining that he failed to prove a compensable injury by a preponderance of the evidence. We find no error and affirm.
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
In the instant case, Mr. Crawford testified on his own behalf. He stated that he worked the 3:00 p.m. to 11:00 p.m. shift for the appellee and that his job included lifting stacks of aluminum castings weighing from 60 to 100 pounds. Mr. Crawford testified that, on the evening of November 2, 1993, he was performing his duties when his back started hurting. Mr. Crawford finished his shift that night and worked an eight-hour shift the next day. Then, on November 4, 1993, he first informed his supervisor that he had suffered a work-related injury on November 2, 1993. Mr. Crawford subsequently sought medical treatment, including visits to the hospital emergency room on November 4, 1993, and November 9, 1993.
Mr. Crawford’s supervisor, David Rudisel, recalled that he was first informed of Crawford’s alleged back injury on the evening of November 4, 1993. He testified that he did not fill out an accident report, because the injury was not reported on the day that it occurred. Steve Flynn, personnel manager for Pace Industries, also testified on behalf of the appellee. He was informed of the alleged back injury on November 5, 1993. At that time, Mr. Flynn determined that the injury was not compensable. Mr. Flynn stated, “I based this conclusion on the lag time between when Crawford allegedly hurt himself, the fact that he could point to no specific incident, and based on [Crawford] stating to me, and his supervisor that he wasn’t sure how he hurt himself.”
Mr. Crawford’s first argument on appeal is that the Commission misapplied the law in requiring him to identify the time and place that his injury occurred. Arkansas Code Annotated § 11-9-102 (Repl. 1996) provides, in pertinent part:
(5)(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence;
(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:
* * *
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence [.]
Mr. Crawford asserts that, because he was claiming an injury to his back, he was not obligated to prove the time and place of the injury.
Mr. Crawford’s first argument fails because the Commission’s decision to deny benefits was not based on his failure to prove the time and place of his back injury. In its opinion, the Commission mentioned that, under Act 796 of 1993, a claimant must show that an injury is caused by a specific incident identifiable by time and place unless the alleged injury falls under an exception to this general rule. However, in denying Mr. Crawford’s claim the Commission gave the following explanation:
In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment on November 2, 1993, as he alleges. Other than the claimant’s own testimony, there is no evidence to support his contention that he sustained an injury on November 2, 1993. Furthermore, his actions and statements to others are not consistent with his contention that he sustained a work-related injury on that date. In this regard, he did not report his alleged back problems until he had almost completed his shift on November 4, 1993, and, when he did report the problems, both Mr. Rudisel and Mr. Flynn testified that he indicated that he did not know whether he had injured his back at work or elsewhere. Notably, despite the severity of the condition described by the claimant, he did not seek any medical treatment whatsoever from November 9, 1993, to March 1, 1993 [sic]. Consequently, any conclusion that the claimant injured his back at work would be based on speculation and conjecture, and speculation and conjecture can never be substituted for credible evidence, no matter how plausible. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980).
From the Commission’s opinion, it is clear that it made no finding as to whether or not Mr. Crawford proved the time and place of an injury. Rather, it found his testimony that he sustained a work-related injury to be incredible, and further found that his claim was barred because he failed to support his claim with objective medical evidence.
Mr. Crawford next takes issue with the Commission’s finding that his claim of injury was not met with objective medical findings. Specifically, Mr. Crawford asserts that a CT scan provided objective evidence of his back injury.
We find substantial evidence to support the Commis sion’s finding in this regard. The records from Mr. Crawford’s emergency room visits indicate nothing more than subjective complaints of pain. In addition, the CT scan that was performed on March 1, 1994, also failed to confirm any objective signs of injury. The postoperative report stated that “[n]o disc protrusions suggestive of disc herniation are recognized.” The report concluded with the following impression:
No significant abnormalities identified. The minimal degree of disc bulging noted at the three levels covered, is probably within the limits of normal.
After examining Mr. Crawford and reviewing the report from the CT scan, Mr. Crawford’s family doctor noted “no marked abnormalities” and suggested that Mr. Crawford return to work. Upon review of the medical evidence presented, we cannot find that the Commission erred in its determination that Mr. Crawford’s claim was not supported by objective medical findings.
Mr. Crawford’s remaining argument is that the Commission erred in its assessment of the facts and in finding that he failed to prove a compensable injury. He asserts that he was a credible witness and that his account of his injury was uncontradicted. He submits that the Administrative Law Judge was in a better position than the Commission to judge credibility, and that we should defer to the Administrative Law Judge’s findings.
We first address Mr. Crawford’s assertion that the Commission and this court should defer to the credibility determinations that were made by the Administrative Law Judge. It is well-settled that the Commission reviews an ALJ’s decision de novo, and it is the duty of the Commission to conduct its own factfinding independent of that done by the ALJ. See Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). Moreover, in reviewing workers’ compensation cases, this court reviews only the findings of the Commission and ignores those of the ALJ. Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991); Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989); Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). Therefore, any reliance by Mr. Crawford on the findings of the ALJ was misplaced.
We have often stated that the weight and credibility of a witness’s testimony are exclusively within the province of the Commission, and the Commission does not have to believe the appellant over other evidence presented. See Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). In the instant case the Commission noted that Mr. Crawford’s testimony was uncorroborated and the Commission was presented with evidence that Mr. Crawford failed to report any injury until two days after it allegedly occurred. Moreover, the Commission was not convinced from the medical evidence presented that Mr. Crawford had, in fact, suffered any injury. The Commission was entitled to weigh the evidence presented and conclude that Mr. Crawford failed to prove that he injured his back in the manner described, and we find that this conclusion is supported by substantial evidence.
Affirmed.
Stroud and Griffen, JJ., agree.
We direct appellant’s counsel to Rule 4-2(a)(6) of the Arkansas Rules of the Supreme Court and Court of Appeals, which provides that “[t]he appellant’s abstract or abridgment 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.” (Emphasis in original.) In the present appeal, appellant’s counsel was grossly deficient in abstracting the opinion of the Commission. Appellant’s abstract was misleading in that it purported to reflect that the Commission required appellant to prove the time and place of his back injury, while the record clearly demonstrates the contrary. | [
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Melvin Mayfield, Judge.
Appellant Daniel Chronister appeals from his conviction of driving while intoxicated, first offense.
On May 4, 1994, appellant was convicted in Russellville Municipal Court of DWI, first offense, and driving left of center. He appealed his conviction to Pope County Circuit Court, and the case was submitted to the circuit judge, sitting without a jury, on a stipulation of facts and appellant’s objection that the city attorney, who was handling the case in circuit court, did not have authority to prosecute a state misdemeanor violation.
In a letter to the attorneys dated May 2, 1995, the circuit judge found that the Russellville City Attorney had authority to prosecute the case and that the appellant was guilty of driving while intoxicated in violation of Ark. Code Ann. § 5-65-103 (Repl. 1993). By judgment entered May 15, 1995, the appellant was sentenced to pay $542.15 as fine and costs, his driver’s license was suspended for ninety days, he was directed to attend defensive driving school and an alcohol rehabilitation program, and was sentenced to serve one day in jail, suspended.
Appellant argues on appeal that the case should be remanded because the city attorney was without legal authority to prosecute him. Appellant argues that the city attorney of a first-class city, such as Russellville, is authorized to perform only such duties as are assigned to him by city ordinance, and Russellville City Ordinance No. 988 authorizes the Russellville City Attorney to prosecute municipal violations, but makes no mention of state law violations. Moreover, according to appellant, Ordinance No. 1411 prohibits the city attorney from engaging in the practice of law except for his duties as city attorney, and the Russellville City Council meant for the city attorney to take care of the city’s business only.
Appellant also argues that the prosecuting attorney’s written authorization, in compliance with Ark. Code Ann. § 16-21-115 (1987), authorizing the city attorney to prosecute misdemeanor violations of state law occurring within the Russellville city limits was without effect because the city had expressly limited the city attorney’s authority.
We affirm the judgment of the trial court because we find that the city attorney was acting as a defacto official.
A de facto official is one who by some color of right is in possession of an office, and performs its duties with public acquiescence, though having no right in fact; the acts of defacto officials may not be questioned based upon of the lack of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or when the person himself attempts to build up some right, or claim some privilege by reason of being the official he claims to be; in all other cases, the acts of an officer de facto are as valid and effectual while he retains the office as if he were an officer by right, and the same legal consequences will flow from them for the protection of the public and third parties. Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279 (1918).
The rule governing validation of acts of a defacto official is based upon public policy, and its origin and history show it is founded in comparative necessity; the doctrine rests upon the principle of protection of the public and third parties, and was engrafted upon the law as a matter of policy and necessity to protect the interest of the public and individuals involved in the acts of persons performing the duties of an official without actually being one in law. Landthrip v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980).
In State v. Roberts, 255 Ark. 183, 499 S.W.2d 600 (1973), the appellee moved to dismiss the charges against him because the information charging him with the crime was filed by a deputy prosecuting attorney who had not been duly appointed pursuant to statute. The trial court granted the motion and the State appealed. In reversing the trial court, our supreme court discussed what constituted a “collateral attack,” and quoted from a Tennessee case as follows:
“From the above quotations can be gleaned several guidelines for determining whether a particular attack upon the title of a public official is ‘collateral.’ By the very definition of the word if the attack is secondary, subsidiary, subordinate, i.e., related to the main matter under consideration but not strictly a part thereof, the attack is indirect and collateral. If the official’s title is questioned in a proceeding to which he is not a party or which was not instituted specifically to determine the validity of his tide the attack is collateral. If the title of the officer is questioned in a proceeding in which he is a party merely because he is acting in his official capacity the attack is collateral. Lasdy if the attack is made because it is necessary to show the officer’s want of tide to lay a basis for some other relief the attack is collateral. . . .”
255 Ark. at 186, 499 S.W. 2d at 602.
In the instant case, the prosecuting attorney authorized the city attorney to prosecute misdemeanors in accordance with Ark. Code Ann. § 16-21-115 (1987); the city attorney acted under that authorization; and the circuit court recognized the city attorney’s authority.
Therefore, under the authority cited above, we think that the city attorney was a defacto official, and the attack made upon his authority in this case constitutes a collateral attack and cannot be maintained.
Affirmed.
Robbins and Griffen, JJ., agree. | [
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D.P. Marshall Jr., Judge.
This case is about a criminal defendant’s right to a speedy trial. Jonathon Miller was arrested on 12 September 2005 on drug charges. His case was set for trial on three dates in the spring and summer of 2006, but was not tried on any of those dates. On 4 October 2006, one year and twenty-two days after he was arrested, Miller had his day in court. A jury convicted him of the drug charges. He now appeals that conviction, arguing that the State violated his right to a speedy trial. After our de novo review, Cherry v. State, 347 Ark. 606, 609, 66 S.W.3d 605, 607 (2002), we agree.
Because Miller was released on bond before trial, his arrest date started the one-year, speedy-trial clock. Ark. R. Crim. P. 28.2(a). In Miller’s motion to dismiss, he showed that his case did not go to trial until more than one year after he was arrested. Miller thus presented a prima facie case of a speedy-trial violation. The burden shifted to the State to show that the delay resulted from Miller’s conduct or was otherwise justified. Ferguson v. State, 343 Ark. 159, 167, 33 S.W.3d 115, 120 (2000); Ark. R. Crim. P. 28.1(b).
The circuit court first concluded that two periods of delay were excludable because they resulted from pretrial motions. Before Miller’s case went to trial, the State moved for a speedy-trial exclusion stating that the case did not go to trial on 27 June 2006 because of a congested docket. Miller also moved to reveal the identity of a confidential informant, to sever his offenses, and for sanctions. In its order denying Miller’s motion to dismiss, the circuit court excluded thirty days for the State’s motion, and held that Miller’s motions had also “tolled speedy trial for at least thirty days.” Either exclusion, if proper, would bring Miller’s trial within the required one-year period.
The State, however, did not demonstrate that any delay resulted from any of the pretrial motions. The words of Rule 28.3(a) make clear that actual delay is the criterion. That Rule excludes:
The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.
Ark. R. Crim. P. 28.3(a) (emphasis added).
In Ferguson, supra, our supreme court discussed the meaning of “hearings on pretrial motions.” It stated that “the excluded period contemplated by the rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard by the court and not more than thirty days thereafter.” 343 Ark. at 170, 33 S.W.3d at 122. In Ferguson, for example, the parties filed numerous pretrial motions, and the circuit court granted at least one continuance so the parties could obtain information relevant to the pretrial motions. After various hearings, the circuit court took the motions under advisement and requested briefs from both parties before issuing its rulings. The proceedings on the motions delayed the trial. 343 Ark. at 171, 33 S.W.3d at 123.
This case is different. Here, no delay resulted from the pretrial motions. The State did not respond to Miller’s motions, nor did the court rule on them, until the day of Miller’s trial. Miller did not respond to the State’s motion until two days before the trial. No pretrial hearings about the motions took place. There is nothing in the record to indicate that the circuit court granted any continuance as a result of these pretrial motions. The circuit court never took any of the motions “under advisement,” and therefore the Rule’s 30-day maximum exclusion for the court’s consideration of motions simply does not apply.
The act of filing a pretrial motion does not toll the speedy-trial period. Some delay attributable to the defendant must actually result from the motion. If we were to hold otherwise, then the State could postpone a defendant’s trial for more than a year any time the State or the defendant filed any motion — even if the motion caused no delay. Ferguson, 343 Ark. at 170-71, 33 S.W.3d 122-23. The circuit court’s reading of Rule 28.3 would undermine the State’s obligation to bring Miller to trial within twelve months of the date of his arrest absent the limited circumstances outlined in the Rule. Zangerl v. State, 352 Ark. 278, 288, 100 S.W.3d 695, 701 (2003).
The circuit court also concluded that a period of time was excludable because the court’s trial calendar was congested. The court’s decision on this issue, however, does not satisfy Rule 28.3(b)’s requirements. Though the order describes the circuit court’s busy schedule during part of the summer in 2006, it does not address any prejudice that might have resulted to Miller from this delay, nor does it explain why Miller was not brought to trial on any of the open days on the trial calendar. The court’s ruling about docket congestion was therefore insufficient. Berry v. Henry, 364 Ark. 26, 30-32, 216 S.W.3d 93, 96-97 (2005); Ark. R. Crim. P. 28.3(b)(1)-(3).
Miller was not required to “bring himself to trial or to bang at the courthouse door.” Gwin v. State, 340 Ark. 302, 306-07, 9 S.W.3d 501, 504 (2000). The State did not show that its delay in trying Miller either resulted from his conduct or was otherwise justified. The circuit court’s contrary conclusion was error. We therefore reverse Miller’s conviction, and dismiss this case. Ark. R. Crim. P. 28.1(c) and 30.1.
Vaught and Miller, JJ., agree. | [
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JOHN E. JENNINGS, Judge.
In the summer of 1996, Helen Vant was a passenger in a van driven by her daughter, Paymela Long, in Dallas, Texas. In heavy traffic, Ms. Long collided with the rear of the car in front of her and Mrs. Vant was injured.
Mrs. Vant brought this action against her daughter, alleging negligence. After depositions were taken Ms. Long moved for summary judgment and the trial court granted the motion. The only issue on appeal is whether the trial court erred in granting summary judgment. We hold that it did and reverse and remand.
The special circuit judge who heard the case concluded that the decision was governed by the supreme court’s holding in Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997). In that case Tammy Sublett was traveling south on Interstate 430 in Little Rock when she struck a pickup truck driven by Sharon Hipps from the rear. Sublett sued on a theory of negligence alleging that Hipps abruptly moved in front of her and decelerated rapidly. When her deposition was taken Sublett conceded: (1) that appellee Hipps did not cut her off, although traffic ahead was already stopped; (2) that there was approximately fifty feet between their vehicles when Hipps entered her lane; (3) that she had already applied her brakes when Hipps signaled to enter her lane; (4) that she briefly took her foot off the brake pedal to contemplate a maneuver into the next lane but did not attempt to do so; (5) that she subsequently applied more pressure to the brakes and began sliding on the wet pavement; (6) that there was adequate space for Hipps’s vehicle to pull into her lane; and (7) that she was not aware of anything Hipps did wrong.
On these facts the supreme court held that the trial court correctly granted summary judgment.
In the case at bar the trial court had before it Mrs. Vant’s deposition in which the following questions and answers were shown:
Q: Tell me what you recall about that accident, Mrs. Vant.
A: It just happened so quick. We were just driving along and we had seen a lot of accidents. The traffic was ...
Q: Bumper to bumper?
A: Yes, so we were really trying to be careful.
Q: Do you know of anything your daughter did to cause the accident down in Dallas?
A: No. All I know is, traffic was bumper to bumper.
The court also had before it, however, the deposition of Mrs. Long in which she said:
I was in the far lane, left lane of traffic, traffic was heavy and the guy in front of me kept hitting his brakes, hitting his brakes and I told my mom, I need to get around this guy, and I looked over in my mirror to see what the other lane was like and when I looked back he was stopped, completely stopped, so I steered to the outside safety lane, I couldn’t get clear — wide enough for the van and I hit just the left hand side of his vehicle.
We do not understand Sublett to stand for the proposition that any time there is a statement by the plaintiff that she does not know how the defendant caused the accident, summary judgment must follow. The decision in Sublett was based on the series of statements made by the plaintiff in her deposition. The court’s final sentence notes that the plaintiff, Sublett, failed to meet proof with proof. In contrast, the trial court had before it a virtual admission of negligence by the defendant, Ms. Long. And although both Sublett and the case at bar involved rear-end collisions it was the plaintiff in Sublett who struck the forward vehicle — here, it is the defendant, Ms. Long, who struck another car from behind.
Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as matter of law. Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997). All proof submitted must be viewed in a fight most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992). In the case at bar we cannot say there is no genuine issue of fact as to the question of Ms. Long’s negligence. Accordingly, the trial court’s order granting summary judgment must be reversed.
Reversed and remanded.
Pittman, Hart, and Neal, JJ., agree.
Stroud and Griffen, JJ., dissent. | [
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Wendell L. Griffen, Judge.
It is undisputed that the appel lant, Jane Ahrend, voluntarily quit her work at the Arkansas Industrial Development Commission (“AIDC”). She had worked for the AIDC for seventeen years. For about eleven years her immediate supervisor was Rob Middleton, a boss in whom she confided and with whom she shared her frustrations about what she considered harassment from others within the AIDC. In 1988 or 1989, Middleton suggested, and the appellant began to receive, psychiatric help for her stress that was undisputedly job-related. The stress and the harassment appear to have stemmed from what the appellant deemed misappropriation of funds within the AIDC and her unsuccessful attempts to point out and correct the problems.
In 1993, Middleton was fired and replaced by Kathryn Leapheart. On Friday, January 7, 1994, the end of the first week of reporting to her new boss, the appellant had a meeting with Leapheart during which the appellant questioned the purchase of some office furniture as well as other expenditures. According to appellant, Leapheart condoned the questioned purchases. Leapheart denied sanctioning any unlawful expenditures. The next day (Saturday, January 8) a friend (Deborah Pipkins) found appellant sitting in a fetal position at home in a chair, tearful and almost incoherent. Pipkins eventually gave notice to the director of the AIDC of the appellant’s inability to work and her intent not to come back, and it was Pipkins who actually cleaned out appellant’s desk at work.
The appellant applied for unemployment benefits and was denied. Both the Appeal Tribunal and the Board of Review affirmed the denial of benefits, finding that she voluntarily left her last work without good cause under Ark. Code. Ann. § 11-10-513 (1987). She filed a timely appeal to this court raising five points for reversal. We find no merit in any of the five points and affirm.
In her first point, the appellant challenges the voluntariness of her decision to quit. She argues that she was incapable of making a rational decision due to her extreme emotional distress. Her testimony, however, belies this argument. Appellant testified that she sent word to her employer through Pipkins that she was quitting due to emotional distress and the strain of harassment. Although her emotional state may have been extremely poor, she has never contended, until now, that this somehow affected the voluntariness of her decision. Rather, it seems that her emotional distress, heightened by her January 7 meeting with Leapheart, helped solidify her decision to leave. We do not address arguments made for the first time on appeal. Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993).
The appellant contends in her second point that she should have been excused from attempting to resolve her problems at work through the available grievance procedures because the same individuals responsible for her harassment were in charge of the grievance procedure. This violates the clear statutory language of the Arkansas Employment Security Law.
No individual shall be disqualified under this section if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification or if, after making reasonable efforts to preserve job rights, he left his last work because of illness, injury, pregnancy, or other disability.
Ark. Code Ann. § 11-10-513(b) (Repl. 1996) (emphasis added). The Board of Review adopted the findings and conclusions of the Appeal Tribunal and specifically added a new conclusion that “the evidence fails to establish that the claimant made reasonable efforts to preserve her job rights.”
The undisputed proof was that, while appellant shared her concerns with her new boss, she never asked for a leave of absence, actually turned down an offer for a different job within the department, and left after working only one week under her new boss. In addition, in the final meeting with appellant, Leapheart encouraged her to put her concerns in writing and told her they would be shared with the director of the AIDC and the governor. Leapheart testified that she never received the appellant’s complaints in writing.
We hold that an attempt at the employer’s grievance procedure is part and parcel of the “reasonable efforts to preserve job rights” under the statute. This is so even if the prospects for resolution under the available grievance procedure may not appear promising from the employee’s perspective. The Board of Review held that the appellant had failed to make these reasonable efforts. Applying the substantial evidence standard of review as we must to the Board’s decision, we cannot say the Board erred on this point. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636(1993). The appellant has not directed us to any new facts or law that convinces us otherwise.
In her third point, the appellant contends that there is no substantial evidence to support the Board’s conclusion that the AIDC was not misappropriating funds. Therefore, appellant further contends, there is no substantial evidence to support the conclusion that she left the AIDC without good cause. As an initial matter, we note that neither this court nor the Board of Review need decide in this unemployment matter whether the AIDC’s actions were legal. Our sole focus is on the Board of Review’s decision and, in this particular case, its decision with respect to good cause.
Good cause has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (1980). It is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting. Id. (Emphasis added.) What constitutes good cause for leaving employment is ordinarily a question of fact for the Board to determine from the particular circumstances of each case. Perdrix-Wang, supra.
Whether the appellant perceived that illegality had occurred, or continued to occur, at the AIDC, and whether her reaction to that perception was within the parameters of good cause was a question of fact. We find no reason to overturn the conclusion from that factual inquiry by the Board under the substantial-evidence standard. The taking of appropriate steps to prevent a perceived misconduct from continuing is an element to be considered in determining whether an employee had good cause to quit work. Brown v. Director, 54 Ark. App. 205, 924 S.W.2d 492 (1996). The Board appeared to base its holding not only on the appellant’s failure to invoke the grievance procedure, but also on her ten-year delay in taking any action other than speaking to her supervisor. These factors seemed to weigh at least as heavily in the good-cause determination as any perception the appellant might have had of wrongdoing within the AIDC.
Fourthly, the appellant argues that her situation constituted a “personal emergency” or an “illness” contemplated by Section ll-10-513(b). We disagree. A condition precedent to both exceptions is that the employee must make reasonable efforts to preserve her job rights. The Board of Review expressly amended the Appeal Tribunal’s opinion to include a finding that appellant did not make reasonable efforts. As discussed above, there is substantial evidence to support this legal conclusion. If, for example, we consider appellant’s illness or emergency to have begun when her psychiatrist diagnosed her with depression (at least three years before she left her employment), her only efforts to preserve her job rights after that point was to talk with her supervisor. If we consider her illness or emergency to have begun on January 7th (her last meeting with Leapheart) or January 8th (when Ms. Pipkins discovered her emotionally distraught at home), she did nothing after either date to preserve her rights. Instead, she quit without notice. Accordingly, we do not reach the question of whether the appellant’s plight rises to the level of an emergency or an illness because the Board of Review’s finding that she did not first make reasonable efforts to preserve her job rights is supported by substantial evidence.
Finally, appellant urges that her good cause for leaving and her good-faith effort to preserve her job is proven under a totality of the circumstances. We are cited to no employment security cases that employ a totality-of-the-circumstances test, and we are aware of none. The standard of review is substantial evidence. We hold that substantial evidence exists in this case to support the Board’s decision regarding good cause, good faith, and every other issue raised on appeal. Brown, supra; Perdrix-Wang, supra.
Affirmed.
Robbins and Stroud, JJ., agree.
The appellant failed to cite any authority whatsoever for her first three points on appeal. For her last two points, the appellant cited no Arkansas authority, but instead directed us to cases from other jurisdictions, none of which were recent. This court has long held that assignments of error unsupported by convincing argument or authority will not be considered on appeal. Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994). All of the points on appeal, particularly points one, two and three, could have been affirmed on this basis alone. | [
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SAM BIRD, Judge.
Chon Lonell Johnson was convicted in Little Rock Municipal Court of misdemeanor terroristic threatening, resisting arrest, disorderly conduct, and public intoxication. He appealed to circuit court and was convicted of failure to submit to arrest and disorderly conduct, for which he was given probation and fines. On appeal he argues that the evidence was insufficient to support the conviction of disorderly conduct. "We affirm.
Two Jacksonville police officers testified at the trial. Officer Mark Swagerty testified that he was patrolling May Í, 1998, about 11:30 p.m., when he saw Johnson standing on the corner. As the police car approached him, Johnson became more and more nervous, started pacing, and looking back at the patrol unit. When the police car stopped and Swagerty asked Johnson’s name, he said Johnson yelled, “Why are you f_harassing me?” Officer Swagerty said he did not know Johnson but he had heard of him, and for that reason he called for backup. Swagerty said Johnson smelled of alcohol and was standing in the roadway shouting, cursing, and gesturing in a violent manner.
Officer Thomas Mayberry testified that he knew Johnson and, when he arrived, he immediately began to try to talk Johnson down, hoping to calm him. He said Johnson was flailing his arms around, yelling, and cursing. At one point Johnson took an aggressive stance toward Officer Swagerty, stripped off his shirt, and clenched his fists. Officer Mayberry said he maintained his distance from Johnson because of his prior experiences with him. Two other officers were called to assist.
Mayberry said he was still trying to talk Johnson down, with little success, when Johnson began walking toward a house. Johnson was told to come back to the street, but he kept going. The officers followed, and as soon as Mayberry got close enough, he sprayed Johnson with pepper spray. Johnson then wrapped his arms around a post on the porch, and it took all four officers and hitting Johnson in particularly fleshy-tissue pressure-control spots to make him loosen his grip. The officers finally got Johnson on the ground and handcuffed him.
Johnson testified that he had been visiting his aunt when he got a page from his girlfriend who told him she was stranded on Valentine Road. He said that he had called a taxi, and that when Officer Swagerty first encountered him, he was simply waiting outside his aunt’s house for the taxi. Johnson denied that he was violent, unruly, cursing, belligerent, or that he had tried to flee. He insisted that he spoke calmly to the officers and explained to them that he had an emergency situation with his daughter (earlier he had said his girlfriend) and that he was trying to" get to her and help her. During cross-examination, he admitted that he had been convicted during the past ten years of aggravated assault on a police officer.
Johnson’s great-aunt testified that it was her house to which Johnson had retreated, that he had been visiting her when he was paged, and that he had immediately called a taxi. She testified that Johnson is partially paralyzed from a previous gunshot wound, and that she tried to get the officers to stop hitting him and let her talk to him, but they would not. They told her to go back inside the house.
The trial court found Johnson guilty of disorderly conduct for cursing the officers in a public place, standing in the street shouting, flailing his arms around, cursing, and yelling, and stripping off his shirt and making a fist while taking an aggressive stance against Officer Swagerty. Arkansas Code Annotated section 5-71-207 (Repl. 1997) provides in pertinent part:
(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof, he:
(1)Engages in fighting or in violent, threatening, or tumultuous behavior; or
(2) Makes unreasonable or excessive noise; or
(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response or....
On appeal, Johnson argues that the evidence was insufficient to support his conviction for disorderly conduct. We find that the evidence is sufficient to support the conviction, and we affirm.
When the sufficiency of the evidence is being challenged on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence that tends to support the verdict. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997); Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). The evidence, whether direct or circumstantial, must be of sufficient force that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). We do not weigh the evidence on one side against the other; we simply determine whether the evidence in support of the verdict is substantial. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Neither do we pass on the credibility of witnesses. That duty is left to the trier of fact. Mann v. State, 291 Ark. 4, 722 S.W.2d 268 (1987).
The dissenting opinion strains in its attempt to suggest that the trial court’s only basis for finding Johnson guilty on the charge of disorderly conduct was that Johnson cursed the police officers. This suggestion is simply not supported by the record. While it is true that Mayberry testified that the “cursing out loud in the street was the basis of this disorderly conduct charge,” in determining Johnson’s innocence or guilt on that charge, the court was not obligated to limit its inquiry to only the evidence that, in Officer Mayberry’s opinion, was sufficient to charge Johnson with that offense. It is clear from the record that Johnson’s crude inquiry to Officer Swagerty during their initial encounter was only a small part of the conduct on Johnson’s part that the court considered in determining whether Johnson had committed disorderly conduct. Officer Mayberry testified that when he arrived on the scene, Johnson was “flailing his arms around, yelling, cursing,...” and that while he tried to talk to Johnson in an effort to calm him down, Johnson took off his shirt and clenched his fists, action that he recognized as “preassaultive cues” on Johnson’s part. All of this conduct by Johnson can be fairly characterized as conduct that is prohibited by Ark. Code Ann. § 5-71-207 (a)(1), (2), and (3).
When the evidence is considered in the light most favorable to the State, as we are required to do, the officers’ testimony supports the trial court’s finding that Johnson violated sections one, two, and three, of the disorderly conduct statute, because he engaged in threatening or tumultuous behavior, because he made unreasonable or excessive noise, and because he, in a public place, used abusive or obscene language in a manner likely to provoke a violent or disorderly response.
Affirmed.
KOONCE and STROUD, JJ., agree.
Robbins, C.J., concurs.
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Lawson Cloninger, Judge.
The appellants, Ronnie and Virgie Heifner, brought this action in chancery court against appellee, Clara Hendricks, for rescission of a real estate contract. The court granted the rescission but ordered that appellee, the seller, should be given credit on the sales price for the fair rental value of the property for the period of use and occupancy by the appellants. On appeal the appellants contend that the chancellor erred in not awarding the appellants interest on the purchase money for the time during which the purchase money was in appellee’s possession. Appellants also contend that the court should have awarded them special damages. We agree with the appellants on their first contention, and we reverse and remand.
The evidence established that in March of 1981, the appellants purchased for cash a mobile home and a tract of land from the appellee for the sum of $17,000. Several witnesses testified that the parties understood and agreed that the appellants would share a well and septic tank on an adjoining tract of land which the appellee owned. During the months following the sale, the appellants had various problems with the well and the septic tank. It became evident that neither was adequate to serve both the appellants’ mobile home and the house on appellee’s adjoining tract of land. The appellee testified that the sharing arrangement was understood by the parties to be temporary and that the appellants should have acquired their own well and septic tank. The appellants contended that the árrangement was to be permanent. The chancellor ordered rescission based on his finding that the arrangement was to be permanent but that the system was not adequate to serve both pieces of property. The chancellor entered his order subject to the appellants’ payment to the appellee of the rental value of the property for the time they were in possession.
We think the chancellor should also have awarded the appellants interest on the purchase money which was in appellee’s possession during the same period. The Arkansas Supreme Court has recognized that in an action for rescission the court applies equitable principles and attempts to restore the status quo or place the parties in their respective positions at the time of the sale. See Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292 (1976). In Bates, the chancellor granted rescission of a real estate contract, and considering the payments made under the contract as rent, did not award either party any judgment. The Supreme Court, applying equitable principles, held that the seller should have been awarded rental payments and that the purchasers were entitled to recover the purchase money paid, with interest, from the date of each payment. The court there stated:
Since appellants were seeking a rescission, the parties were entitled to be placed, as nearly as circumstances would permit, in their respective positions at the time of the sale.
Applying equitable principles, appellants are entitled to recover the purchase money paid, with interest from the date of each payment.
In Bates, the court did not explain its reasoning in its award of interest, but that reasoning has been set forth in cases involving specific performance. In Loveless v. Diehl, 236 Ark. 129, 364 S.W.2d 317 (1963), the court ordered specific performance of a real estate contract. The court found that the purchasers were entitled to the rental value of the land while the sellers remained in possession and the sellers were entitled to interest at the legal rate upon the unpaid purchase price during the same period. The court explained:
The court was right in charging the sellers with the rental value of the land while they were in possession, but he should have gone farther and charged the purchasers with interest at the legal rate upon the unpaid purchase price during the same period. The two charges are equitably offsetting and should go together. The sellers are charged with the rental value because they have had the use of the buyers’ land, and the buyers are charged with interest because they have had the use of the sellers’ money. Both charges are ordinarily made in situations where the creditor, such as á mortgagee, for example, has been in possession of the debtor’s property. [Citations omitted]. To make either charge without the other is evidently unwarranted, for it gives the favored party the use of both the land and the money. On this point the decree must be modified to require the purchasers to pay interest upon the purchase price and to require the sellers to pay interest upon each monthly installment of rent from its accrual.
We agree with the reasoning in Loveless and remand to the chancellor to modify his decree accordingly. If appellants are required to pay the rental value of the property from the time they took possession, we believe that equity requires that appellee should be required to pay interest upon the purchase money. To do full equity, the appellants should also be charged interest on the rental payments from the date each accrued.
Appellants also argue that they are entitled to special damages. These include $520.15 for the purchase and installation of a water pump and $331.50 for Arkansas sales tax and license tags for the mobile home. Appellants characterize these as improvements and argue that the court must make compensation for these improvements in order to do full equity.
We think that the evidence is insufficient to award special damages as requested by the appellants. The measure of damages for improvements placed on property is the amount such improvements have increased the property’s value. See Burns v. Meadors, 225 Ark. 1009, 287 S.W.2d 893 (1956); Williams v. Jones, 239 Ark. 1032, 396 S.W.2d 286 (1965). Practically no evidence of increase of value was introduced and we cannot say that the chancellor erred in not awarding these elements of damages to the appellants. The parties agree that the chancellor intended to place the parties as nearly as possible to the position each was in at the time of the transaction and to avoid unjust enrichment. The chancellor also declined to award special damages for abuse of the property by appellants as requested by appellee, and the court’s refusal to award special damages to either party is not clearly against the preponderance of the evidence. Arkansas Rules of Civil Procedure, Rule 52(a).
Reversed and remanded.
Cracraft, C.J., and Corbin, J., agree. | [
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STEELE Hays, Special Judge.
The appellant appeals from a decision of the Workers’ Compensation Commission finding that he failed to prove that he sustained a compensable injury. On appeal, the appellant argues that the Commission’s decision is not supported by substantial evidence and that Arkansas Code Annotated § ll-9-102(5)(B)(iv)(b) (Repl. 1996) violates his constitutional right to equal protection and due process. The Commission did not rule on the constitutionality of the statute; thus, we remand for the Commission to consider the constitutional issue raised by the appellant. See Green v. Smith & Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996).
The appellant was injured on April 6, 1994, while working as a die-cast machine operator for the appellee. His injury resulted in the amputation of several of his fingers. A subsequent drug test revealed positive results for the presence of marijuana and cocaine.
Arkansas Code Annotated § ll-9-102(5)(B)(iv)(b) provides:
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.
Pursuant to the statute, the Commission found that the appellant failed to overcome the rebuttable presumption that his injury was substantially occasioned by the use of illegal drugs.
Constitutional issues must be raised before the Commission in order to preserve them for appeal. Green, supra. The appellant challenged the constitutionality of the statute before the Commission; however, the Commission determined that the issue could only be decided by a court of law. In Green, we clarified the manner in which constitutional issues are to be preserved for review by this Court by holding that the Commission is required to rule on constitutional questions that are properly before it. Therefore, we remand to the Commission for further proceedings consistent with this opinion.
Remanded.
Neal and Griffen, JJ., agree. | [
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Lawson Cloninger, Judge.
The issue in this workers’ compensation appeal is whether the Commission erred as a matter of law in its interpretation of Ark. Stat. Ann. § 81 -1318 (b) (Repl. 1976) when it held that appellant’s claim for additional medical benefits was barred by the statute of limitations. Upon review, we have determined that the Commission erroneously applied the law to the facts of the present case, and we reverse its decision and remand the matter for proceedings not inconsistent with this opinion.
Appellant, Bertha Sisney, was employed by appellee, Leisure Lodges, Inc., on March 8,1979, when she fractured her right hip at work. Temporary total disability benefit payments were made through March 20,1980, and payments on an impairment rating of 25% to the right lower extremity were made through May 6,1982. Appellant filed a claim for additional disability and rehabilitation benefits on May 19, 1980, upon which claim no action was taken. By a letter from her attorney dated August 26, 1983, she requested additional medical and disability benefits.
Following a hearing before an administrative law judge in October, 1983, appellant was denied additional benefits on the basis that her claim was barred by the limitation on actions imposed by Ark. Stat. Ann. § 81-1318(b) (Repl. 1976). On July 3, 1985, the full Commission, in a divided two-to-one decision, affirmed the law judge’s opinion. From that order appellant brings this appeal.
Section 81-1318(b), supra, provides as follows:
In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of the injury, whichever is greater. The time limitations of this subsection shall not apply to claims for replacement of medicine, crutches, artificial limbs and other apparatus permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies.
The administrative law judge, in reaching his decision that this section of the Workers’ Compensation Act erected a barrier to appellant’s claim, relied on the Commission’s holding in Bledsoe v. Georgia-Pacific Corp., WCC Claim No. C613937 (February 1,1984), which in turn was based upon the rationale of Petit Jean Air Service v. Wilson, 251 Ark. 871, 475 S.W.2d 531 (1972).
In Petit Jean, supra, the claimant argued, and the Commission agreed, that the statute of limitations did not bar a claim for additional compensation filed thirteen months after the last payment of compensation and more than two years after the date of the last injury because the earlier claims were never finally disposed of. On appeal, the Arkansas Supreme Court reversed the Commission, observing that “Apparently, the commission viewed the claims, in those circumstances, as being analogous to cases pending in court, as to which the statute of limitations is suspended.” The court went on to dismiss the analogy, noting, in distinction, that “[cjourt cases, almost without exception, are contested,” while “hardly one compensation case in fifty is controverted.”
After the administrative law judge rendered his opinion in the present case and before the Commission took up the appeal, this court overturned the Commission’s decision in Bledsoe. We held, in Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 675 S.W.2d 849 (October 3, 1984), that the filing of a claim for additional workers’ compensation benefits within the statutory period tolls the statute of limitations. We distinguished Petit Jean and Bledsoe on the basis that, where in Petit Jean the claimant contended that the original claim tolled the statute, the appellant in Bledsoe had simply argued that her claim for additional benefits, which fell well within the one year statutory period, tolled the statute. We said: “We must agree. Otherwise, the statute has no meaning. If the statute is not tolled when the claimant filed a claim for additional benefits, what could possibly toll the statute? We prefer to think the statute means what its plain language implies.”
In its opinion in the instant case, the Commission majority noted a distinction between this appeal and Bledsoe: “[Tjhe claimant here filed a request for rehabilitation benefits and additional permanent disability benefits on May 19, 1980. Not until 3 years later, August 26, 1983, did the claimant request additional medical benefits. In Bledsoe the claimant requested the same type of benefits, i.e., additional permanent partial disability.” (Emphasis in the original.) The majority rejected appellant’s position that the May 19, 1980, filing tolled the statute for all purposes, stating that she should have filed within one year of the last compensation payment of May 6, 1982.
The Commission also cited our decision in Terminal Van & Storage v. Hackler, 270 Ark. 113, 603 S.W.2d 893 (Ark. App. 1980), in which we held that payment for replacement medicine does not revive a claim for additional benefits once the statute of limitations has run against other forms of compensation. The majority acknowledged that the case was not clearly on point because it dealt with replacement medicine and corrective shoes instead of what the majority in the present case perceived to be two separate claims for additional benefits. We find it difficult to understand why Terminal Van was enlisted to reinforce the Commission’s order; as the majority conceded, it has little application to the current matter, dealing as it does with categories expressly set apart by § 81-1318(b).
We find striking factual parallels between Bledsoe, supra, and the instant case. Both claimants were injured in 1979; Bledsoe received temporary total disability and medical benefits through February, 1980, and appellant received the same through March, 1980; Bledsoe received her last benefits on March 9,1982, and appellant hers on May 6,1982; Bledsoe filed her claim for additional benefits in October, 1981, and appellant hers in May 1980; Bledsoe’s hearing was held in June 1983, and appellant’s in August, 1983. It should be emphasized that appellant’s 1980 claim, like the 1981 claim in Bledsoe, supra, and unlike that in Petit Jean, supra, was for additional benefits, and the subsequent claim related to the prior claim for additional benefits rather than to the original claim.
To draw distinctions between, on the one hand, additional rehabilitation and permanent disability benefits and, on the other, additional medical benefits, as the Commission majority has done, is to invoke a measure of precision uncalled for by the broad language of the statute and unsupported by the case law of this state.
We hold that, under the standard established in Bled soe v. Georgia-Pacific Corp., supra, the Commission erred as a matter of law in holding that appellant’s claim for additional medical benefits was barred by the statute of limitations.
Reversed and remanded.
Cooper and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was convicted by a Boone County Circuit Court jury of possession of marijuana, second offense, and of being a felon in possession of a firearm. He was sentenced to serve six years on each charge in the Arkansas Department of Correction, with the sentences to run consecutively. On appeal, he alleges three points of error: (1) the court erred’in admitting evidence relevant to a charge of possession of marijuana with intent to deliver, claiming that the evidence is irrelevant to his charge of simple possession; (2) the court erred in failing to direct a verdict of acquittal on the charge of being a felon in possession of a firearm; and (3) the court erred in failing to suppress the items seized in the search of the appellant’s home, claiming that the affidavit provided an insufficient basis for the issuance of a search warrant. We find no merit in any of the appellant’s contentions.
The appellant first contends that the court erred in admitting evidence of drug paraphernalia found during the search. He argues that this evidence is irrelevant to a charge of simple possession, second offense, as described by Ark. Stat. Ann. § 82-2617(c) (Supp. 1985). (The appellant had originally been charged with possession with intent to deliver, under Ark. Stat. Ann. § 82-2617(a)(iv) (Supp. 1985), but because of some confusion as to whether that crime constituted a felony or misdemeanor, the information was amended to charge him with possession.) The evidence to which the appellant objected consisted of testimony, photographs, and a hypodermic syringe and needle. Lieutenant Riggs, of the Harrison Police Department, testified that:
[w]hen we entered the room, we discovered sheets spread over the floor in the room and mounds of vegetable material, there was quite a bit and it was apparent that it was Marijuana; three large grow lights; an electric heater; an electric box fan and other Marijuana paraphrenalia [sic] .... We also seized a large set of scales ... We found the scales, as I recall in that [master] bedroom. . . It’s a wooden box we found in the. . . master bedroom and . . . contains a couple different items. One is a small pipe that Marijuana is smoked in and the same here [another pipe], also a syringe, a needle and its got a few other little items in it.
During Lt. Riggs’s testimony, pictures of the lights, heater, fan, scales, and box (along with pictures of the marijuana) were introduced into evidence, as were the hypodermic syringe and needle. Mr. James, a chemist for the State Crime Laboratory, testified that the needle and syringe contained no controlled substances and that the wooden pipes found in the box tested positive for Tetrahydracannabol (THC — the active ingredient in marijuana), although he could find no identifiable traces of marijuana on them under the microscope.
While evidence of other crimes not charged in the indictment or information is generally inadmissible, evidence of other criminal activity is admissible under the res gestae exception to that general rule, in order that the facts and circumstances of the offense may be established. Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980). Therefore, the Supreme Court in Young found testimony by an undercover officer, that the defendant had told him during a sale of phencyclide (PCP) (the basis of the charge against the defendant) that he had already sold thirty hits of PCP that night, admissible as part of the res gestae of the transaction. In so doing, the Court noted that this evidence was not necessary to establish identity, plan, or intent of the defendant as to the offense charged, as that had been established by the officer’s testimony. Likewise, in Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981), the Court held that evidence of a rape committed during an aggravated robbery was admissible in a trial concerned solely with the charge of aggravated robbery, even though the aggravated robbery could be proven without evidence of the rape. The Court stated that “all of the circumstances of a particular crime are part of the ‘res gestae’ of the crime [and] . . . that all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction.” 273 Ark. at 54 (emphasis in original).
“Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. They are proper to be submitted to a jury, provided they can be established by competent means, sanctioned by law, and afford any fair presumption or inference as to the question in dispute . . . .Now circumstances and declarations which were contemporaneous with the main fact under consideration or so nearly related to it as to illustrate its character and the state of mind, sentiments or dispositions of the actors are parts of the res gestae.”
Freeman v. State, 258 Ark. 496, 503, 527 S.W.2d 623, 627 (1975)(quoting Carr v. State, 43 Ark. 99 (1884))(emphasis added). Accord, Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).
Here, all of the evidence objected to was found at the same time as the marijuana, most of it in close proximity thereto. The only exception is the syringe and needle, which were found in close proximity to pipes with traces of THC on them. This evidence, in addition to being part of the res gestae of the crime of possession, is also relevant in determining the motive of the appellant for possession of marijuana. “Even if motive is not an element of the crime charged, it may be proven.” Lackey v. State, 288 Ark. 225, 229, 703 S.W.2d 858, 861 (1986). See also Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976).
Furthermore, there is overwhelming evidence in this case that the appellant possessed marijuana. The State proved the appellant’s possession by the testimony of the officers and the introduction of the 2.4 pounds of marijuana seized from the appellant’s home. Additionally, the appellant told the officers, after waiving his Miranda rights, that he owned the marijuana. Determining whether the probative value of the evidence is outweighed by its prejudicial impact is within the sound discretion of the trial court, and we will not reverse its decision absent a showing of an abuse of that discretion. Pruitt v. State, 8 Ark. App. 350, 652 S.W.2d 51 (1983). Because the evidence is part of the res gestae of the crime and is relevant in determining the motive of the appellant, and in light of the overwhelming evidence of possession in this case, we do not find any abuse of the trial court’s discretion in admitting the evidence.
The appellant next claims that the court erred in failing to direct a verdict of acquittal on the charge of being a felon in possession of a firearm (Ark. Stat. Ann. § 41-3103 (Repl. 1977)). A directed verdict is only proper if there is no issue of fact for the jury to decide; in reviewing this issue we look at the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Mooring v. State, 11 Ark. App. 119, 666 S.W.2d 720 (1984). The appellant states there is no evidence to show that he either owned or possessed the weapon. However, the evidence shows that the gun, a .357 Magnum, was found in the appellant’s bedroom, directly under a window in which the police officers had observed the appellant looking out when they drove up. The officers saw no other person in that room. While one of the officers testified that he saw the appellant fumbling around with something that could have been a gun, it is undisputed that no one ever saw the gun in the appellant’s hand or on his person. However, actual physical possession is not necessary for conviction, nor is ownership. While Ark. Stat. Ann. § 41-3103 does not define possession, Ark. Stat. Ann. § 41-115(15) (Repl. 1977) states that “ ‘Possess’ means to exercise actual dominion, control, or management over a tangible object.” The Arkansas Supreme Court has construed this statute:
Dominion implies wide latitude and is defined as including even the “right to possession.” . . . Nor does the word “actual” reduce the usage to one of literal or physical possession . . . Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), [held] that actual, physical possession is not required, but that “constructive possession of a controlled substance means knowledge of its presence and control over it.” [Quoting] People v. Williams, 95 Cal. Rptr. 530, 485 P.2d 1146 (1971), . . . [Cary} states:
* * * Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively subject to his dominion and control, or to the joint dominion and control of the accused and another.
Glover v. State, 273 Ark. 376, 380, 619 S.W.2d 629, 631 (1981). The evidence is sufficient if it is shown, by either direct or circumstantial evidence, that the appellant had the right to exercise control over the object. Cary, 259 Ark. at 518. Where possession is shown by joint occupancy only, an additional link between the accused and the object must be shown. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). That additional link is provided here by the appellant’s appearance in the window, below which the gun was found, just minutes before the search took place, together with the fact there was no other person seen in the room. We find that there is substantial evidence from which a jury could infer that the appellant had knowledge of the gun’s presence and a right to control it.
The appellant’s final contention is that the court erred in not suppressing the evidence seized under the search warrant, as the affidavit, based on information from a confidential informant, does not provide any legal justification for the issuance of the warrant. We do not agree.
The Arkansas Supreme Court, in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), adopted the more flexible totality of the circumstances test, set forth in Illinois v. Gates, 462 U.S. 213 (1983), for use instead of the previously used two-prong test of Aguilar v. Texas, 378 U.S. 108 (1964), in judging the sufficiency of an affidavit based on information received from an informant. Under the new test
the magistrate issuing the warrant must make a practical, common sense decision based on all the circumstances set forth in the affidavit. . . . “the duty of the reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding’ that probable cause existed” to issue the warrant. . . . However, conclusory statements in affidavits which give no substantial basis for determining the existence of probable cause will not be accepted. There must still be enough information presented to the magistrate to allow him to determine that there exists probable cause.
Wolf v. State, 10 Ark. App. 379, 381, 664 S.W.2d 882, 883 (1984) (quoting Gates, 462 U.S. at 238-9). Probable cause for the issuance of the search warrant can only be determined upon the basis of the information given, under oath, to the issuing judicial officer. Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977). Therefore, we cannot take into account the fact that the identity of the confidential informant was revealed in an in camera hearing to the trial judge, as it was not revealed to the municipal court judge who issued the warrant.
The affidavit in this case states that the affiant, Lieutenant Riggs, was contacted by a confidential informant whom the affiant had known for five years. This person was described as a citizen and business person in the community of Harrison, without any known ties to drug trafficking or use. The officer stated that he believed that the informant wished to remain confidential solely out of fear that the identification of the informant could jeopardize the well-being of the informant or the informant’s family. The affiant stated that he knew of no reason that the informant would have for giving him false information.
Lieutenant Riggs related that the informant told him that on October 15,1984, the informant had a legitimate reason for going to the appellant’s residence. The informant said that, upon entering the lower level of the house, the informant noticed an unsavory odor, which became stronger upon opening a door to a room directly across from the outside entrance to the lower level. Upon entering this room, the informant found sheets spread upon the floor with a large quantity of green vegetable material on top of the sheets. The informant described the material as partially leafy and partially ground up, dried, and tobacco-like (only greener), and as not appearing to contain any stalks or stems. The informant further stated that, upon observing this material, the informant concluded that it was marijuana, became frightened, and left without ever going upstairs. The informant stated familiarity with most of the vegetation grown in the region, and based on the material’s appearance and odor, it was not any of the legitimate materials grown in the area. In addition to the above, the informant described in detail how to get to the appellant’s residence and the layout of the lower level of the house.
The officer stated that, in order to corroborate this information, he contacted the real estate agency renting the house and determined that the appellant and his family were the current tenants and were in the process of moving, their lease having expired on the first of October. The realtor told Lt. Riggs that she thought the appellant travelled for a living. Riggs said in the affidavit that, after receiving this information, he checked the appellant’s prior criminal history, which revealed four prior marijuana-related arrests (three in Arkansas and one in Colorado). He stated that, of the two most recent arrests, a conviction was obtained in one case and charges were pending as a result of the other. Riggs stated he then contacted Sergeant Combs of the Arkansas State Police, who confirmed the status of the last two arrests. In addition, Sgt. Combs informed Lt. Riggs that, within the last ninety days, he had received independent information from authorities in Nebraska and Illinois, who informed him that, after raids on marijuana fields in those states, some of the persons arrested told them that a David Harper of Arkansas was the planner of the operation.
We find this affidavit sufficient under the totality of the circumstances test. The informant’s information that the appellant was involved with marijuana was corroborated in part by the two independent reports from Illinois and Nebraska, both of which implicated the appellant as the planner of marijuana growing operations. It is unnecessary that every detail of an informant’s tip, particularly a non-professional informant as we have here, to be corroborated, even under the more stringent Aguilar two-prong test. See United States v. Ward, 703 F.2d 1053 (8th Cir. 1983). In Ward, the court found that the police’s observation of Ward entering into a barn, whose windows had been covered with black paper, described by the informant as the place he saw Ward growing marijuana, was sufficient corroboration to demonstrate the reliability of the informant’s tip under the Aguilar test. Here, the house is not only independently determined to be occupied by the appellant, as the informant stated, but the appellant’s current involvement with marijuana was independently shown. Probable cause requires only enough evidence to show circumstances indicating there is a probability of criminal activity; a prima facie showing of such activity is not necessary, nor is it necessary to show such by evidence beyond a reasonable doubt or even by a preponderance of the evidence. Gates, 462 U.S. at 235. The informant’s personal observation of the vegetable matter, standing in the community as a business person with no known ties to drugs, and the independent corroboration of the appellant’s current involvement with marijuana, are sufficient under the totality of the circumstances test, or even under the old Aguilar test, to support a finding of probable cause.
The appellant makes much of the fact that the informant apparently entered the house when no one was at home, alleging that such an entrance could not be on legitimate business. The affidavit does not indicate whether anyone was at home. However, even if the informant had entered the house illegally, that fact cannot be used to strike down the warrant, as the constitutional safeguards of the fourth amendment do not apply to the actions of private citizens. Smith v. State, 267 Ark. 1138, 594 S.W.2d 255 (Ark. App. 1980).
The appellant has failed to demonstrate any reversible error, and therefore, we affirm his conviction.
Affirmed.
Glaze, J., disagrees with point one of the majority opinion and, therefore, dissents.
While the hypodermic syringe and needle are arguably not probative of the appellant’s motive for possession of marijuana, the chemist did indicate that he would not have been surprised to find THC in them. Furthermore, they are part of the res gestae of the crime, and any prejudicial impact that they would have is minimal, as the evidence indisputedly showed that there were no controlled substances in them.
Therefore, we need not reduce the appellant’s sentence to the minimum allowed by law, as would have been the case, in light of the overwhelming evidence of possession, if we had found the evidence to be irrelevant and so improperly admitted. See Philmon v. State, 267 Ark. 1121, 593 S.W.2d 504 (Ark. App. 1980). | [
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George K. Cracraft, Chief Judge.
M. S. Delone, Delone Operating Company, and Maxwell Drilling Company, Inc. appeal from an order of the chancery court denying their petition to reform an insurance policy issued by United States Fidelity & Guaranty Company. We find no error.
Appellant companies were involved in producing oil on lands owned by appellant Delone and in drilling wells for others under contract. For several years the appellants obtained automobile liability insurance coverage from the United States Fidelity & Guaranty Company through Bob Brown, president of United States Insurance Agency in El Dorado. Prior to 1980 appellants had in effect an automobile liability policy for a fleet of vehicles with limits of $500,000, for each occurrence.
In 1980 appellants entered into a contract with Branch Investment, Inc. for the drilling of a well. That contract specifically required appellants to keep in effect automobile liability coverage which afforded protection for personal injuries of $250,000 for each person, $500,000 for each occurrence, and $250,000 for personal property damage. Delone sent the contract to United States Insurance Agency with instructions to Brown to do what was necessary to make certain that appellants had the insurance coverage required by that contract. U.S.F. & G. issued an endorsement which provided automobile liability coverage of $250,000/$500,000/$250,000 which was not limited to the Branch Investment contract, but afforded that reduced coverage to appellants’ entire fleet without regard to any particular activity or job.
Delone testified that he was not aware of the extent of the change until April 28,1981, when one of his vehicles was involved in a fatal collision. In September of 1982 a complaint was filed against appellants in the Circuit Court of Bradley County for wrongful death. The appellees assumed responsibility for the defense of that action under the policy. A settlement was subsequently reached for $336,120, of which amount the appellee tendered $250,000, the limit of its policy. The appellants then brought this action in equity for reformation of the policy so as to provide limits of $500,000 and recovery of the amounts expended by them in settlement of the wrongful death claim. In the alternative, appellants prayed for judgment against United States Insurance Agency for failing to provide coverage of $500,000. The action against United States Insurance Agency was transferred to circuit court and the claim for reformation proceeded to trial. The chancellor found there was no mutual mistake which would warrant reformation and dismissed the plaintiffs petition. Appellant brought this appeal contending that the trial court erred in so ruling. We agree with the chancellor that, based on the facts of this case, reformation was not an available remedy for appellants’ loss.
In July of 1980 appellant entered into a written drilling contract with Branch Investment, Inc. which contained specific liability insurance requirements of $250,000/$500,000/ $250,000. Copies of the contract were sent to Brown with instructions that he do what was necessary to make sure that the appellants met the insurance requirements of the contract. Delone had no further conversation with Brown about the contracts or the insurance policies until after the fatal accident had occurred. Although Delone stated he had no intention of reducing his coverage from the $500,000 single limit other than for the Branch job, it is not clear that this intention was communicated to anyone.
Brown testified that when he received the contract from appellant, he was asked to obtain a certificate of insurance to reflect that the requirements of the contract had been met. He sent the contract to the appellee requesting an amendment of the general liability and automobile policy to conform to the requirement of that contract. The appellee responded, asking Brown whether he wanted to change the limits to $250,000/$500,000/ $250,000 or increase to a $750,000 single limit policy. Brown circled the $250,000/$500,000/$250,000 and returned the letter to appellee. He testified that in doing so he intended to change the policy only as to the particular drilling contract but not for appellants’ entire fleet of vehicles. He stated that he had no intention of reducing the $500,000 single limit coverage other than as to that specific contract at that time.
Brown admits, however, that he was informed by appellee that it could not, and would not, write a policy of insurance which afforded one coverage limit for vehicles while engaged in a particular activity and another limit for those same vehicles while engaged in other activities. When the policy was delivered to the agency, there was a notation typed on it that the policy limits were changed from $500,000 combined single limits to split limits of $250,000/$500,000/$250,000 because of the contract requirements, but that the same limits would apply to all activities. When the policy was delivered to the appellants, the notation had been removed. Appellant Delone admitted receiving the endorsement, but stated that it was not examined. Brown testified:
As of September 19, 1980,1 knew that what I thought I was doing in July couldn’t be done and as of then I would have to say that it was my intention that the policy limits be $250,000/$500,000/$250,000 for all risks. U.S.F. & G. issued exactly what I asked on the Branch contract. There was no mistake on the part of U.S.F. &G.. . .1 made a mistake. I did change to the $250,000/$500,000 without discussing it with him. It was my intent... to change to the split limits of $250,000/$500,000/$250,000. Nancy Brown advised me that if the Branch job was finished we needed to change the limit back to the $500,000.1 did not do anything to change the Branch contract. . . .
... I was not notified when the Branch contract was complete. There was no arrangement for me to be advised when the Pickens contract was undertaken or completed. . . . After September, 1980, there was never any request made to U.S.F. & G. to change [the] endorsement... to $500,000 single limit. When I responded to Nancy Brown I requested $250,000/$500,000 and that is what U.S.F. & G. issued. . . .
. . .There is no doubt in my mind that if I had been in contact with Mr. Delone and found the Branch contract had been completed I would have done whatever was necessary to make sure full coverage was restored.
It is clear that at the time the policy was issued it contained precisely what the appellee intended it to contain. Brown knew at that time that he did not have authority to bind the company to a contract other than the one delivered to him and he accepted it without communicating those facts to the appellants, even though he might have had the intention of reestablishing the prior limit when the current contract was completed. Under these circumstances reformation is not an available remedy.
Reformation is an equitable remedy which is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence that agreement. A mutual mistake is one shared by both parties at the time their agreement is reduced to writing and it must be shown clearly and decisively that the parties intended their written agreement to say one thing and, by mistake, it expressed a different thing. Yeargan v. Bank of Montgomery County, 268 Ark. 752, 595 S.W.2d 704 (Ark. App. 1980); Corey v. Mercantile Ins. Co. of America, 205 Ark. 546, 169 S.W.2d 655 (1943). An order reforming a written instrument cannot be based upon a unilateral mistake unless there is a mistake on one side and fraud or inequitable conduct on the other. Arnett v. Lillard, 245 Ark. 939, 436 S.W.2d 106 (1969). It is apparent from the evidence in this case that any misconception on the part of the appellants as to what the policy contained was a unilateral mistake on the part of appellants and was not shared by the appellee. There is no basis for reformation.
Appellants argue in the alternative that, if there was no mutual mistake at the time the policy was issued, it should be reformed because of the second mutual mistake — Brown’s failure to reinstate the higher limits when the Branch contract was completed. The record reflects that appellee had informed Brown that when the Branch contract was completed the limits could and would be increased if requested. Brown testified that he was aware of this and intended to have the limits increased, but did not because he did not know when the Branch contract was completed and had not discussed it with appellants. We do not construe this as an agreement on the part of the appellee to do anything. It was only a suggestion of what might be done by appellee and of intention on the part of Brown. Furthermore, reformation deals with the reforming of written instruments to conform to the intent of the parties at the time they are executed. There was no second written instrument to reform. Nor could it relate back to the original writing for purposes of reformation because it was not part of the agreement at the time that agreement was reduced to writing.
Our decision in Equity General Agents, Inc. v. O’Neal, 15 Ark. App. 302, 692 S.W.2d 789 (1985) discusses the decisions relied upon by appellants. However, that decision is clearly distinguishable. In O’Neal, the insured owned two automobiles which were insured under a policy issued through a local agency. When that policy was cancelled and coverage placed with another company, both the insured and the agency intended for the new policy to provide coverage for both vehicles. Through an admitted error of the agency, one of the vehicles was omitted from that policy. We held that reformation of the policy was warranted because: (1) the insured and agency both intended that the policy cover both vehicles; (2) the failure to provide that coverage was due to an admitted error of the agency; (3) the agency had the authority to bind the insurer on both vehicles; and (4) the risk was of the type the insurer would normally accept. Here, although both the appellant and the agent testified that they intended the policy change to affect only the one activity, failure to provide separate coverage was not due to a mutual error. The policy was issued precisely as the agent had ordered and after any misconception on his part had been corrected by U.S.F. & G. In this case, the agent did not have authority to bind the appellee to issue the intended contract and the company would not normally have accepted such a risk.
Affirmed.
Corbin, J., dissents. | [
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Karen R. Baker, Judge.
Appellant Byme, Inc., which operates under the name RE/MAX International Relocation Services, Inc. (hereafter RE/MAX), appeals from a summary judgment ordering it to specifically perform a contract to buy property from appellees. We reverse and remand.
On May 21, 1997, RE/MAX entered into a contract with Huntco Steel, Inc., to provide relocation services for Huntco’s employees. Under the terms of the contract, when so authorized by Huntco, RE/MAX would obtain an appraisal value of the employee’s home and prepare a marketing-strategy report, recommending to the employee the list price of the home and strategies for obtaining a fair market value for the home. Then, RE/MAX would send the employee a contract of sale and other documents, offering to purchase at the appraised value. Upon receipt of the executed documents from the employee, RE/MAX would take the home into its “inventory” and list it for sale on the open real-estate market. At that point, RE/MAX would submit to Huntco an invoice equal to 7% of the home’s appraised value. An additional invoice for 4.5% of the appraised value would be sent to Huntco at the end of each quarter that the home remained in inventory. If the home was sold, RE/MAX would receive from Huntco reimbursement of certain costs, plus various fees.
Appellee Jackie Ivy was an employee of Huntco. On September 10, 2001, RE/MAX sent Ivy and his wife Connie a letter “offering to purchase” their home at its appraised value of $612,500. Attached to the letter was a warranty deed showing the Ivys as grantors and a blank line for the grantee; an irrevocable limited power of attorney and affidavit of delivery and acceptance of warranty deed, which basically stated that the deed to the Ivy property had been delivered to RE/MAX and that RE/MAX had the power to negotiate and deliver sales contracts and all other documents needed to close the sale of the property; and a contract of sale for the property.
The contract of sale provided that RE/MAX agreed “to purchase” and the Ivys agreed “to sell and convey to RE/MAX or its nominee” the Ivy home for $612,500. The Ivys’ equity would be paid to them based on a contract formula and based on “your company’s relocation policy” after receipt by RE/MAX of all executed documents.
Paragraph 6(f) of the contract of sale is the clause at issue in this case. It reads:
6. EXPRESS CONDITIONS: As express conditions of this Contract, it is specifically understood and agreed that:
f. RE/MAX is relying upon the Sellers’ [Ivys’]employer to make certain payments to it and, therefore, each and every obligation of RE/MAX under this contract is expressly contingent upon the Sellers’ employer fulfilling all of its obligations to RE/MAX. Sellers agree that RE/MAX is released from any and all obligations of this Contract should the Sellers’ employer fail to perform any of its duties with RE/MAX.
On September 12, 2001, the Ivys executed the deed, the power of attorney and affidavit of delivery, and the contract of sale. Thereafter, RE/MAX paid the Ivys $24,066.11 for their equity in the property and began making monthly mortgage payments on the home in the amount of $4,700.
On February 12, 2002, the Ivys received a letter from RE/MAX, stating that, as of February 6, 2002, “your employer is indebted to RE/MAX on your property in the amount of $70,437.50 in acquisition and quarterly deposits.” The letter reminded the Ivys that the contract of sale was “expressly contingent upon your employer making certain payments to RE/MAX and fulfilling all of its obligations to RE/MAX.” In light of Huntco’s failure to pay, RE/MAX advised the Ivys that it would make no further payments on the property and demanded reimbursement of the equity and mortgage payments already made, a total of $55,858.81.
The Ivys filed suit on June 7, 2002, and alleged that they understood that the sale of their property to RE/MAX was complete. They demanded specific performance of the contract of sale. RE/MAX, relying on paragraph 6(f) of the contract, answered that, because Huntco did not make certain payments under its contract with RE/MAX, RE/MAX was released from any and all obligations under its contract with the Ivys.
On October 25, 2002, the Ivys filed a motion for summary judgment, arguing that paragraph 6(f) of the contract was unenforceable due to vagueness. The trial court granted the motion for summary judgment, ruling that paragraph 6(f) was unenforceably vague and that, therefore, RE/MAX was not released from its obligation to purchase the Ivys’ home. The court ordered RE/MAX to specifically perform the contract of sale to purchase the property, to pay the Ivys $58,694.62 to compensate them for the amounts they had paid on the house since February of 2002, and to pay the Ivys $7,206.25 in attorney fees. Following entry of a final order, RE/MAX filed a timely notice of appeal.
The issue to be determined is whether paragraph 6(f) of the contract is so vague as to be unenforceable. The terms of a contract must be reasonably certain. ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990). A contract is sufficiently certain if it provides a basis for determining the existence of a breach and for giving an appropriate remedy. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). The law does not favor destruction of contracts because of uncertainty. Id. However, a court cannot enforce a contract that it cannot understand. Barnes v. Barnes, 275 Ark. 117, 627 S.W.2d 552 (1982).
We do not believe paragraph 6(f) is incapable of being understood. It states clearly that RE/MAX is relying on Ivy’s employer to make certain payments and that the contract is contingent on the employer fulfilling its obligations to RE/MAX. The clause also clearly states that RE/MAX will be released from its obligations under the contract of sale should the employer fail to perform its duties. Thus, although the clause does not state what particular duties are owed by Huntco to RE/MAX, it is clear enough to provide a basis for determining whether a breach occurred. As for the specific duties owed by the employer to RE/MAX, these are matters that may be ascertained by viewing the Huntco contract, i.e., resorting to extrinsic evidence as is done in the case of ambiguous contracts. See Stacy v. Williams, 38 Ark. App. 192, 834 S.W.2d 156 (1992). Further, the supreme court stated in Shibley v. White, 193 Ark. 1048, 1052-53, 104 S.W.2d 461, 464 (1937):
If, with the aid of the usual tests and principles of construction, the court is able to ascertain and to enforce the intention of the parties, their agreement will not be held uncertain.
See also Dziga v. Muradian Bus. Brokers, Inc., 28 Ark. App. 241, 773 S.W.2d 106 (1989) (holding that absolute certainty is not required, and that that is certain which may be rendered certain); 1 Arthur Linton Corbin, Corbin on Contracts § 4.1 at 543-44 (Rev. ed. 1993) (stating that extrinsic evidence may be sufficient to fill the gaps and to remove doubts in a contract).
Paragraph 6(f) of the contract of sale in this case is in the nature of a condition subsequent. Such a condition, which follows liability on a contract but provides for a contingency which, if it occurs, will defeat a contract already in effect, is a condition subsequent. See Nichols Bros. Investments v. Rector-Phillips-Morse, Inc. and Bill Haupt, 33 Ark. App. 47, 801 S.W.2d 308 (1990) (citing 17 Am. Jur. 2d Contracts § 323 (1964)). Here, the intention of the parties to this contract was clearly expressed. Appellees agreed to release appellant from all obligations of the contract should appellee’s employer fail to perform its duties to appellant. The condition made is aleatory, but that does not affect its validity or enforceability. An aleatory contract is defined as “a mutual agreement, of which the effects, with respect both to the advantages and losses, whether to all the parties or to some of them, depend on an uncertain event.” Black’s Law Dictionary 70 (6th ed. 1990). The trial court found the paragraph to be “unenforceably vague”; however, the paragraph imposes no obligations or duties upon the parties to be enforced or that either of the parties could breach. It merely identifies the condition subsequent that relieves RE/MAX of further obligations under the contract. Whether or not the condition subsequent occurred was a question of fact; thus, summary judgment was inappropriate in this case.
Reversed and remanded.
Hart and Neal, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Arkansas Board of Review holding that the claimant, Deborah L. Rogers, was ineligible for unemployment compensation benefits because she was discharged from her last work for misconduct connected with the work.
Appellant was a radio dispatcher and j ailer for the Sherwood Police Department. She was terminated effective February 27, 1987, for writing “hot” checks for which an arrest warrant had been issued. Appellant’s employment record showed she had been counseled in April 1985 for the same problem.
The evidence in the record also shows that in August 1985 appellant had been suspended for ten days for conduct unbecoming an officer; that in October 1986 she was suspended for three days for failing to report to work on time; and that in January 1987 she was suspended for twenty days for neglect of duty, inattention to duty, and making a false official report. Lowell Kincaid, Sherwood Chief of Police, testified that at the time of the last suspension he warned appellant it would be her last one and that any future violation of departmental rules and regulations would result in her termination.
In regard to the incident for which she was discharged, the record shows that appellant wrote two checks to Sears for which there were insufficient funds in her checking account. Sears turned the checks over to the municipal court for prosecution, and a warrant was issued for appellant’s arrest on January 21, 1987. The two checks totaled $76.00 and when appellant was notified by her employer that a warrant had been filed for her arrest, she paid $40.00 on the checks. A court date was set but a continuance was granted, and appellant paid the balance on the checks and her case was dismissed without trial. Appellant testified that she was unaware that the funds in her checking account were not sufficient to cover the checks when she wrote them and that she had not received the ten-day notice the Hot Check Division of the Sherwood Municipal Court usually sends out to allow the maker of the check to pay it before an arrest warrant is issued.
The agency denied the appellant benefits, the appeal tribunal reversed and allowed benefits, and the Board of Review reversed the appeal tribunal. The Board found that the appellant’s actions were a willful or wanton disregard of the employer’s interests and of the standards of behavior which the employer has a right to expect of its employees.
When reviewing a decision of the Board of Review, the Board’s findings of fact are conclusive, if supported by substantial evidence. Ark. Code Ann. § 11-10-529(c)(1) (1987); Terry Dairy Products Co., Inc. v. Cash, 224 Ark. 576, 275 S.W.2d 12 (1955). Substantial evidence has been defined as valid, legal, and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclu sion. Victor Industries Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981). Whether the findings of the Board of Review are supported by substantial evidence is a question of law; this court may reverse where 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).
Appellant first argues on appeal that the finding of the Board of Review that she was discharged for misconduct is not supported by substantial evidence. She contends she did not willfully violate the rules or regulations of the department because she did not know that her checking account did not contain sufficient funds to cover the checks. In support of her contention, appellant relies upon Brewer v. Everett, 3 Ark. App. 59, 621 S.W.2d 883 (1981), in which the court held that there was no evidence in the record to show that the appellant in that case had the requisite intent necessary for his actions to constitute misconduct; and Cody v. Everett, 8 Ark. App. 14, 648 S.W.2d 508 (1983), where the court found that a police officer who had fired shots into the walls and doors of his home while off duty had not violated the rules of his employer. In the instant case, appellant argues she had no intention of not paying Sears and was not on duty when the checks were written.
Appellant was denied benefits under Section 5(b)(1) of the Arkansas Employment Security Law, Ark. Code Ann. § 11-10-514(a)(1) (1987), which provides in pertinent part:
If so found by the director, an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work.
In Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 118, 613 S.W.2d 612 (1981), we reviewed the case law and said while the language used was not always the same, the cases held that misconduct involved disregard of the employer’s interests, violation of the employer’s rules, disregard of the standards of behavior which the employer has a right to expect of his employees, and disregard of the employee’s duties and obligations to his employer. We further stated:
To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.
Considering the evidence in this case in light of the criteria set out in Nibco, we believe the decision of the Board of Review should be affirmed. When Sears obtained the issuance of the warrant for the arrest of appellant, the Sherwood Chief of Police wrote appellant advising her that the warrant had been issued and that she had violated the following policies of the department:
#6 Violation of any criminal law.
#26 Neglect to pay within a reasonable time just indebtedness incurred while in service.
#40 Violation of any section of the rules and regulations and ordinances of the City of Sherwood.
The police chief also advised appellant that she was terminated and of her right to request a hearing before the Civil Service Commission. In view of the prior violations of department rules and regulations, which the appellant admitted were in a booklet that each employee was given, we think the Board of Review could find that the check incident was the last in a series of violations, the total of which constituted substantial evidence to support the Board’s finding that the appellant’s “actions were a willful or wanton disregard of the employer’s interests and of the standards of behavior which the employer has a right to expect of its employees.” See Exson v. Everett, 9 Ark. App. 177, 656 S.W.2d 711 (1983) (recurring errors constituted a substantial disregard of the employer’s best interests and appellant’s own duties and obligations). Since the evidence of appellant’s misconduct is not confined to the hot check incident, we do not think the case of Cody v. Everett, supra, cited by appellant is applicable to this case. In Cody a policeman was terminated for a single incident which occurred in his own home while he was off duty.
The appellant also argues that the Board of Review erred because it “refused to allow appellant an opportunity to rebut the employer’s testimony.” This contention grows out of the fact that no representative of the Sherwood Police Department appeared at the hearing before the appeal tribunal. The appellant and her attorney did appear and the referee took appellant’s testimony. After the referee’s decision was mailed (it was adverse to the department-employer) the employer filed an appeal to the Board of Review .and requested a “new” hearing. Acting under the authority of Ark. Code Ann. § ll-10-525(a)(2) (1987), the Board granted the request and notified both parties of the time and place of the hearing to take additional evidence. The Board also sent a copy of a cassette containing the tape recording of the testimony of the appellant to both parties.
At the beginning of the second hearing, the appellant’s attorney first objected,to the hearing on the basis that the employer did not have any justifiable excuse for not attending the first hearing. When that objection was overruled, counsel moved that the employer not be permitted to cross-examine the appellant because it waived that right by failing to appear at the first hearing. That motion was overruled and counsel then asked that the hearing be adjourned after any witnesses for the employer testified, that counsel be given a tape recording of that testimony, and that counsel then be afforded an opportunity to cross-examine the employer’s witnesses at another hearing after counsel had a chance to review the taped testimony of the employer’s witnesses. This motion was denied.
We see no prejudice to appellant. Her counsel heard her testimony at the first hearing and was furnished a copy of it. Ark. Code Ann. § 1 l-10-525(a)(2) authorized the second hearing. After appellant’s counsel put her on the stand and elicited some evidence in addition to that given by her at the first hearing, counsel for the employer asked approximately thirty questions on cross-examination. We see no indication that counsel gained any advantage by time to prepare for these few short questions. Appellant called no other witnesses.
As for appellant’s counsel having time to prepare for cross-examination of the employer’s witnesses, only the police chief testified, and counsel did not renew the motion after the chief finished his testimony. Thus, it would appear that time to prepare for cross-examination was not so important to counsel after he heard the chiefs testimony. Moreover, most of the testimony was undisputed.
Under Ark. Code Ann. § ll-10-525(a)(2) [formerly Ark. Stat. Ann. § 81-1107(d)(3) (Supp. 1983)], it is within the discretion of the Board to direct that additional evidence be taken, but it is not required to do so as long as each side has notice and opportunity to rebut the evidence of the other party. See Maybelline Company v. Stiles, 10 Ark. App. 169, 174, 661 S.W.2d 462 (1983). Administrative agencies are “generally permitted a wide discretion and latitude in procedural details.” 73A C.J.S. Public Administrative Law and Procedure § 115 at 14 (1983). We find no error in the taking of testimony in the second hearing.
Affirmed.
Cracraft and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
In this criminal case, the appellant was charged with attempted robbery. After a trial by jury, he was found guilty and sentenced to ten years in the Arkansas Department of Correction. From that decision, comes this appeal.
In the early morning hours of February 1, 1982, the appellant entered a nursing home in Perryville, Arkansas, and asked to use the telephone, stating that he had run out of gas. The appellant was unsuccessful in obtaining help and the attendant offered to try to obtain help for him by calling a friend. Just as the attendant completed dialing the phone number of the sheriff’s department where a friend of hers worked, the appellant disconnected her and brandished a pistol, announcing he was holding up the nursing home. Upon being informed by the attendant that she had contacted the sheriff’s office, and after hearing an alarm sound, the appellant fled. Later that morning a .380 caliber semi-automatic pistol was found behind the nursing home. There were also footprints in the snow and mud leading off from that point.
Upon fleeing the nursing home, the appellant went to the nearby residence of Judy (Wise) Stain, the assistant administrator of the nursing home, with whom the appellant was acquainted. Mrs. Stain testified that the appellant appeared at her home at around 3:15 a.m. on February 1, 1982, and stated that someone had picked him up at his apartment in Conway and attempted to collect some money from him. He stated the men who picked him up were going to use him to rob some place in order to collect their money, but that he had gotten away from them and not to worry. After this, the appellant was taken by Mrs. Stain’s sister to a spot near the Bigelow Junction to meet his girl friend who came from Conway to pick him up.
At the appellant’s trial for attempted robbery, the State attempted to introduce the pistol found near the nursing home through Sheriff Byrd. The appellant challenged its introduction on the grounds it was not properly authenticated due to an incomplete chain of custody, and also the fact that the serial number of the weapon was not on the receipt made on the pistol when it was found.
The appellant asserts that Uniform Rules of Evidence, Rule 901, Ark. Stat. Ann. § 28-1001 (Repl. 1979), requires sufficient identification and authentication of evidence to support a finding that the evidence is what it is purported to be. He also states the cases interpreting this rule require only a common sense approach. The appellant argues, however, that when one considers the fact that the serial number of the gun which was purported to be on a receipt was not, and no recorded serial number is available, along with the weapon being out of the sheriff’s custodian’s hands for a substantial period of time with no verification, then the authentication is doubtful. We disagree.
Following the incident at the nursing home, Sheriff Byrd and the Perryville City Marshal, Troy England, searched the woods behind the nursing home. At the appellant’s trial, Mr. England identified state’s exhibit #7 as the gun he found during that search. Mr. England testified that Sheriff Byrd made a receipt and recorded the serial number of the gun on it. The receipt was then typed at the sheriff’s office and the weapon remained there except for the time it was with the State Crime Lab. The description on the receipt matched the weapon and both Sheriff Byrd and Marshal England identified the pistol as the one which was found behind the nursing home.
The purpose of the rule requiring a chain of custody is to guard against the introduction of evidence which is not authenticated. In establishing a chain of custody prior to the introduction of evidence at the trial, it is not necessary to eliminate every possibility that the evidence has been tampered with. The fact that the weapon was not in the Sheriff’s possession at all times and also that there was no serial number of the receipt, goes to the weight to be given the evidence, rather than its admissibility. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978); Bedell v. State, 260 Ark. 401, 541 S.W.2d 297 (1976) cert. denied, 430 U.S. 931, 97 S.Ct. 1552, 51 L. Ed. 2d 775 (1977). The issue is whether the trial court abused its discretion in determining that in reasonable probability the integrity of the evidence was not impaired and that it had not been tampered with. Callison v. State, 1 Ark. App. 335, 615 S.W.2d 406 (1981); Baughman v. State, 265 Ark. 869, 582 S.W.2d 4 (1979). From the unequivocal identification of the pistol by Sheriff Byrd and Marshal England and the circumstances surrounding the discovery of the weapon, we find the trial court properly admitted the pistol into evidence.
The appellant’s second point for reversal concerns the trial court’s refusal to grant a mistrial when the prosecutor questioned one of the appellant’s witnesses concerning a prior conviction of the appellant. The character witness had stated the appellant’s reputation for truth and honesty was good. On cross-examination, the prosecutor asked the witness if he was aware of the appellant’s prior conviction for obtaining controlled substances by fraud and if this would change his opinion of the appellant. In Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980), the Arkansas Supreme Court stated:
“When the defendant produced five character witnesses the trial court ruled it proper for the prosecutor to cross-examine the witnesses by asking whether their opinions as to the defendant’s reputation would be altered by knowing of the defendant’s prior conviction. This was proper pursuant to Ark. Stat. Ann. § 28-1001, Rule 405(a) (Repl. 1979).
We find no merit to this argument.
The appellant’s third point for reversal concerns the trial court’s refusal to give the appellant’s proffered instruction on the defense of duress. The instruction given by the court on the appellant’s defense of duress was AMCI 4001 and it stated as follows:
Mark Meador asserts the affirmative defense of duress to the charge of aggravated robbery and attempted aggravated robbery. To establish this defense, he must prove that he engaged in the conduct charged because he reasonably believed that he was compelled to do so by the threat of unlawful force against his person that an individual of ordinary firmness in Mark Meador’s situation would not have resisted.
Duress is not a defense if Mark Meador recklessly placed himself in a situation in which it was reasonably foreseeable that he would be subjected to the force or threatened force.
Mark Meador has the burden of proving an affirmative defense by a preponderance of the evidence, unless the affirmative defense is so proved by other evidence in the case. “Preponderance of the evidence” means the greater weight of evidence. The greater weight is not necessarily established by the greater number of witnesses testifying to any facts or state of facts. It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If the evidence with regard to the affirmative defense appears to be equally balanced or if you cannot say upon which side it weighs heavier, then the affirmative defense has not been established.
If you find that this defense has been established by the Defendant, then you shall find Mark Meador not guilty of aggravated robbery.
Whatever may be your findings as to this defense you are reminded that the State still has the burden of establishing the guilt of Mark Meador upon the whole case beyond a reasonable doubt.
The appellant sought to have paragraph two of the instruction deleted. From the evidence adduced at trial, particularly the testimony of the appellant concerning why he owed the debt to the men who allegedly forced him to rob the nursing home, it could be inferred that the appellant’s drug dependence placed him in the position to be forced by these men to do something he might otherwise not do. Thus the trial court's instruction that the appellant could not claim the defense if he recklessly put himself in that position was proper under the circumstances of the case.
The trial court is not to modify the AMCI instructions unless it is clear that, in a given case, the instruction incorrectly applies the law to the facts. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).
Finally, the appellant argues that the evidence is insufficient to support his conviction. This argument is without merit. The appellant was identified by two witnesses at trial as the man who entered the nursing home and announced it was a “stick up;” the appellant had been to the nursing home on numerous occasions to visit his grandmother and therefore was familiar to the nursing home personnel. The appellant was identified by Mrs. Stain as the person who came to her home shortly after the attempted robbery took place, and took off the clothes he had on which were identified as the clothes worn by the robber. He was identified by Mrs. Stain’s sister as the person she took to meet someone at Bigelow Junction. We find that there was substantial evidence to support the appellant’s conviction, and therefore we must affirm. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982).
Affirmed.
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Karen R. Baker, Judge.
Appellants, City of Marion and Meredith Hardin, appeal a decision by the Crittenden County Circuit Court affirming the county judge’s decision that granted a petition for annexation of certain property to the City of West Memphis. Appellants present four points on appeal. First, appellants argue that the trial court erred in ruling that the appellants were not prejudiced by the appellees’ filing of an amended annexation petition and maps on the day of trial. Second, appellants argue the trial court erred in ruling that the annexation petition contained the majority of the landowners’ signatures as required by Arkansas Code Annotated section 14-40-601 et seq. (Repl. 1998). Third, appellants argue that the court erred in ruling that an accurate map was made and filed describing the limits of the territory to be annexed. Fourth, appellants argue that the circuit court erred in ruling that the appellees’ petition for annexation was right and proper. We affirm.
On November 4, 1996, appellee, Guaranty Loan & Real Estate Company, filed a petition and a map to annex approximately 835.3 acres to the City of West Memphis. The property belonged to six land owners: Guaranty Loan & Real Estate, owning 755.4 acres; the State of Arkansas, owning eighteen and one-half acres; Sherman Bretherick, owning fifteen and one-half acres; the City of West Memphis, owning five acres; Arkansas Builders Transport, Inc., owning twenty acres; and the Bronson Family Trust, owning twenty and nine-tenths acres. Notice was published in the Evening Times, a newspaper of general circulation once a week for three consecutive weeks.
On November 21, 1996, Meredith Hardin, Trustee for the Bronson Trust, along with several other landowners, filed a petition for annexation of twenty and nine-tenths acres of property to the City of Marion. This portion of property was included in the 835.3 acres of the November 4, 1996, petition. On December 12, 1996, Meredith Hardin filed an objection on behalf of the Bronson Trust to the pending November 4, 1996, annexation petition. An amended petition for annexation was filed on December 12, 1996, containing the names of additional property owners, Sherman Bretherick, Builders Transport, Inc., and the Mayor of the City of West Memphis. A second map was also filed. At a hearing on December 12, 1996, a third map describing the area to be annexed was filed.
On December 16, 1996, the county judge granted the petition for annexation to the City of West Memphis. The City of Marion and the Bronson Trust appealed the county judge’s decision to the Crittenden County Circuit Court. On August 25, 2000, the circuit court entered an order affirming the county judge’s decision. From that order, comes this appeal.
A high degree of reliance must be placed upon the findings of the trial judge because, by the very nature of this type of litigation, there is wide latitude for divergence of opinion. Lewis v. City Of Bryant, 291 Ark. 566, 726 S.W.2d 672 (1987). Thus, our task is not to decide where the preponderance of the evidence lies, but solely and simply to ascertain whether the trial court’s findings of fact are clearly erroneous. Id. (citing Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985)). When the appellate court has a firm and definite belief that the trial court made a mistake, it will hold the trial court’s finding as clearly erroneous even if there is evidence to support it. City of West Memphis v. City of Marion, 332 Ark. 421, 965 S.W.2d 776 (1998). This court views the evidence in the fight most favorable to the appellee. Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998).
First, appellants argue that the trial court erred in ruling that the appellants were not prejudiced by the appellees’ fifing an amended annexation petition and maps on the day of trial. Appellants argue that they were prejudiced when they were unable to argue the validity of the additional signatures on the amended petition because they were unaware that there were petitioners other than Guaranty Loan & Real Estate Company. Appellants also argue that they were prejudiced when the burden of proof shifted and appellants were forced to proceed, litigating issues from an amended petition filed on the day of the trial. Appellants’ argument is premised on Arkansas Rule of Civil Procedure 15 (2001). Rule 15(a) states:
With the exception of pleadings the defenses mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.
Where there was no demonstration of any prejudice resulting from an amendment, the amendment should be allowed. See Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997). Appellee cites Chastain v. Davis, 294 Ark. 134, 741 S.W.2d 632 (1987). The court in Chastain held that the trial court did not err in allowing an amended petition, although the original petition contained an incorrect property description; the map attached to the petition properly and sufficiendy described the property sought to be annexed, and the area proposed for annexation was not changed or increased by the amended petition. Here, although the maps differed in the property descriptions, the property description in the petition remained the same, and the appellants failed to prove that any prejudice resulted from allowing the amended petition which added the signatures of additional landowners.
Second, appellants argue that the trial court erred in ruling that the annexation petition contained the majority of the landowners’ signatures as required by Arkansas Code Annotated sections 14-40-601 et seq. (Repl. 1998). The preliminary issue that we must address is whether the signature on the amended petition of the Mayor, as a representative of the City of West Memphis was unauthorized, and whether the trial court erred in ruling that the City of West Memphis, could ratify the Mayor’s signature by the adoption of Resolution 1610. Appellants cite Arkansas Code Annotated section 14-43-502(a) and (b)(1) (Repl. 1998), which states:
The city council shall possess all the legislative powers granted by this subtitle and other corporate powers of the city not prohibited in it or by some ordinance of the city council made in pursuance of the provisions of this subtitle and conferred on some officer of the city. The council shall have the management and control of finances, and of all the real and personal property belonging to the corporation.
Appellees cite section 14-43-504 (Repl. 1998), which states that the mayor of the city shall be its chief executive officer and conservator of its peace. In Hot Stuff, Inc. v. Kinko’s Graphic Corp., Inc., 50 Ark. App. 56, 901 S.W.2d 854 (1995), this court stated that the general principle of interpretation of scope of authority is that an agent is authorized to do, and to do only, what is reasonable for him to infer that the principal desires him to do in the light of the principal’s manifestation and the facts as he knows or should know them at the time he acts. Acquiescence by the principal in conduct of an agent whose previously conferred authorization reasonably might include it, indicates that the conduct was authorized. Id. “A municipal corporation may ratify the unauthorized acts of its agents, or officers, which are within the scope of the corporate powers, but not otherwise.” Day v. City of Malvern, 195 Ark. 804, 807, 114 S.W.2d 459, 461 (1938) (quoting Texarkana v. Friedell, 82 Ark. 531, 102 S.W. 374 (1907)). Ratification proceeds upon the assumption that there has been no prior authority and constitutes a substitute therefor; it is in the nature of a cure for authorization, and is equivalent to original, prior, or previous authority. Arnold v. All Amer. Assurance Co., 255 Ark. 275, 499 S.W.2d 861 (1973).
In this case, the circuit court concluded that it was not necessary for the city council to authorize the Mayor of the City of West Memphis to sign a petition to annex property; but, in any event, the city council of West Memphis had ratified the Mayor’s signature by adopting Resolution 1610. We agree that the Mayor’s signature on the petition on behalf of the City of West Memphis was an exercise of his authority as chief executive officer of the city, and that regardless of his prior authorization, the action was ratified by the city council.
We turn next to appellant’s argument that the trial court erred in finding that the annexation petition contained the majority of the landowners’ signatures as required by Arkansas Code Annotated section 14-40-601 et seq. (Repl. 1998) which states:
Whenever a majority of the real estate owners of any part of a county contiguous to and adjoining any city or incorporated town shall desire to be annexed to the city or town, they may apply, by petition in writing, to the county court of the county in which the city or town is situated and shall name the persons authorized to act on behalf of the petitioners.
Section 14-40-601 (b) defines “majority of the real estate owners” as “a majority of the total number of real estate owners in the area affected, if the majority of the total number of owners shall own more than one-half (1/2) of the acreage affected.” Although the statute does not specifically provide for amendment in a petition for annexation, nothing prevents the court’s looking to the petition and the amended petition to ascertain whether or not a majority of the owners of record who own a majority of land have, in fact, petitioned to be annexed. Chastain v. Davis, 294 Ark. 134, 741 S.W.2d 632 (1987). Here, the property subject to annexation had six owners. The original petition for annexation contained only one signature, that of the agent for Guaranty Loan & Real Estate Company. The amended petition contained three additional signatures, Sherman Bretherick, Builders Transport, Inc., and Al Boals, Mayor of the City of West Memphis. Between Guaranty Loan & Real Estate Company, Sherman Bretherick, Builders Transport, Inc., and the City of West Memphis, the petitioners owned approximately 795 acres of the 835.3 acres subject to the annexation. Clearly, a majority of the landowners signed the amended petition per the statutory requirements.
Third, appellants argue that the court erred in ruling that an accurate map was made and filed describing the limits of the territory to be annexed, violating Arkansas Code Annotated section 14-40-603 (Repl. 1998). That section states that a trial court must determine whether the limits of the territory to be annexed have been accurately described and an accurate map thereof made and filed. Ark. Code Ann. § 14-40-603. In Chastain, supra, the court held that it was sufficient that the area proposed for annexation was not changed or increased by any amendments to the petition for annexation. Here, three maps were filed by appellees; each map differed in its description of the amount of square footage subject to annexation. Nevertheless, although the property description in the maps differed, the property description in the petition remained the same. We hold that the trial court did not err in ruling that Arkansas Code Annotated section 14-40-603 was not violated.
Fourth, appellants argue that the circuit court erred in ruling that the appellees’ petition for annexation was right and proper. Appellants cite Vestal v. Little Rock, 54 Ark. 321, 15 S.W.891 (1891). The court in Vestal stated that all property included in the proposed annexation area must comply with at least one of the following requirements:
(1) Platted or held for sale or use as municipal lots;
(2) Whether platted or not, if the lands are held to be sold as suburban property;
(3) When the lands furnish the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary;
(4) When the lands are needed for any proper municipal purposes such as for the extension of needed police regulation;
(5)When they are valuable by reason of their adaptability for prospective municipal uses.
Id. at 323-24, 15 S.W. at 892. The burden of proof in an action to prevent annexation is placed on the aggrieved citizens protesting the government annexation. Town of Houston, supra (citing Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989)). If a part of the proposed area does not meet one of the five requirements, the annexation of the entire area is void in toto. Id.
Other jurisdictions that have addressed this issue have developed fists of criteria to be considered; however, the general test for annexation is based on a reasonableness standard. The Mississippi Supreme Court has stated that in annexation cases the outcome-determinative question is the reasonableness of the proposed annexation. Extension of the Boundaries of the City of Batesville, Panola County v. City of Batesville, 760 So.2d 697 (Miss. 2000). The Mississippi Supreme Court recognized at least eight indicia of reasonableness, noting that the factors are but indicia of reasonableness and not separate or distinct tests in and of themselves. Id. The eight basic factors include:
(1) the municipality’s need for expansion,
(2) whether the area sought to be annexed is reasonably within a path of growth of the city,
(3) the potential health hazards from sewage and waste disposal in the annexed areas,
(4) the municipality’s financial ability to make the improvements and furnish municipal services promised,
(5) the need for zoning and overall planning in the area,
(6) the need for municipal services in the area sought to be annexed,
(7) whether there are natural barriers between the city and the [proposed annexation area], and
(8) the past performance and time element involved in the city’s provision of services to its present residents.
Id. at 700. Other judicially recognized indicia of reasonableness include:
(9) the impact (economic or otherwise) of the annexation upon those who five in or own property in the area proposed for annexation; Western Line, 465 So.2d at 1059,
(10) the impact of the annexation upon the voting strength of protected minority groups, Yazoo City, 452 So.2d at 842-43,
(11) whether the property owners and other inhabitants of the areas sought to be annexed have in the past, and for the foreseeable future unless annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy the (economic and social) benefits of proximity to the municipality without paying their fair share of the taxes, Texas Gas Transmission Corp. v. City of Greenville, 242 So.2d 686, 689 (Miss.1970); Forbes v. City of Meridian, 86 Miss. 243, 38 So. 676 (1905); and
(12) any other factors that may suggest reasonableness vel non. Bassett, 542 So.2d at 921.
Id. at 700. The chancellor must consider all of these factors and determine whether under the totality of the circumstances the annexation is reasonable. Id.
The State of Tennessee also utilizes a reasonableness standard for challenges to annexation. City of Kingsport v. State ex rel. Crown Enterprises, Inc., 562 S.W.2d 808 (Tenn.1978). In Kingsport, the Tennessee Supreme Court delineated factors to be considered in determining the reasonableness of a proposed annexation: the necessity for, or use of, municipal services; the present ability and intent of the municipality to render municipal services when and as needed; and whether the annexation is for the sole purpose of increasing municipal revenue without the ability and intent to benefit the annexed area by rendering municipal services. Id. The court should also consider whether annexation will benefit the citizens of the municipality and whether failing to annex the proposed area will inhibit the growth of the annexing municipality. See Vollmer v. City of Memphis, 792 S.W.2d 446 (Tenn. 1990).
The Missouri Court of Appeals has held that there are twelve factors to be weighed when deciding whether a decision to annex was reasonable and necessary:
(1) a need for residential or industrial sites within the proposed area;
(2) the city’s inability to meets its needs without expansion;
(3) consideration only of needs which are reasonably foreseeable and not visionary;
(4) past growth relied on to show future necessity;
(5) in evaluating future needs, the extent to which past growth has caused the city to spill over into the proposed area;
(6) the beneficial effect of uniform application and enforcement of municipal zoning ordinances in the city and in the annexed area;
(7) the need for or the beneficial effect of uniform application and enforcement of municipal building, plumbing and electrical codes;
(8) the need for or the beneficial effect of extending police protection to the annexed area;
(9) the need for or beneficial effect of uniform application and enforcement of municipal ordinances or regulations pertaining to health;
(10) the need for and the ability of the city to extend essential municipal services in the annexed area;
(11) enhancement in value by reason of adaptability of the land proposed to be annexed for prospective city uses; and
(12) regularity of boundaries.
City of Rolla v. Armaly, 985 S.W.2d 419, 431 (Mo. Ct. App. 1999) (quoting City of Centralia v. Norden, 879 S.W.2d 724, 727 (Mo. Ct. App. 1994)). The presence or absence of any individual factor is not' determinative, and reasonableness and necessity must be judged on a case-by-case basis. Id.
There is credible testimony in this case that the annexation was right and proper both under the factors set out in Vestal and the reasonableness standard utilized by other jurisdictions. As president of Guaranty Loan & Real Estate Company, Randall Catt testified that it was Guaranty Loan & Real Estate Company’s intention to be a part of the City of West Memphis and to develop and plat the property for municipal purposes or municipal lots. Guaranty determined that the subject property has reached a value that made it desirable and economical to develop based on the inclusion of the property into the City of West Memphis. Moreover, the City of West Memphis agreed to provide utilities on the subject property. The circuit court specifically found that, “the affected property has reached a value which makes it desirable and economical to develop, and the value of the affected property is based upon its inclusion into the City of West Memphis.” In conclusion, the annexation was reasonable and the requirements of Vestal have been satisfied. This being the case, we hold that the circuit court’s decision is not clearly erroneous. See Town of Houston, supra.
Affirmed.
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Donald L. Corbin, Judge.
Appellant, Arkansas Louisiana Gas Company, appeals a verdict of $7,500.00 awarded to appellees, Roy Lee Cates and wife, for damages arising from the taking of appellees’ land for a gas line right-of-way and a 40 foot easement. We reverse and remand.
Appellant raises three.issues on appeal and we will combine and address the first two which concern the testimony of appellee Roy Lee Cates. Appellant contends the testimony of appellee Roy Lee Cates was based on speculation and was not competent testimony. Appellee Roy Lee Cates testified that the damage to his property amounted to $7,500.00, and the jury returned a verdict against appellant in that amount. Accordingly, appellant argues that since the jury obviously awarded damages based on appellee Roy Lee Cates’ testimony, its verdict was not based on substantial, competent evidence. In determining the sufficiency of the evidence to support a verdict, we must view the evidence with every reasonable inference arising therefrom in the light most favorable to appellee, and if there is any substantial evidence to support the verdict, it cannot be disturbed by this Court. Butler v. Ark. State Hwy. Comm’n, 6 Ark. App. 267, 640 S.W.2d 467 (1982).
At trial, appellant offered the opinions of two expert real estate appraisers concerning the amount of compensation to which appellees were entitled. Its first expert testified that there was no severance damage to the property, that the highest and best use of the property was that of a rural homesite, and that total compensation to appellees was $700.00. Appellant’s second expert concluded there was no severance damage and that just compensation to appellees amounted to $550.00. Appellees’ expert witness testified to a reduction in value to appellees in the amount of $5,250.00. Appellees’ expert also testified that in his opinion, the highest and best use of the property fronting on the highway would be valued in small tracts.
It is well settled that a landowner can give an opinion as to the -value of his property taken by condemnation, regardless of his knowledge of market values and the testimony must be based upon facts to support his opinion. Enterprise Sales Co. v. Barham, 270 Ark. 544, 605 S.W.2d 458 (1980). In the instant case, appellee Roy Lee Cates testified that he had purchased his thirty-acre farm in two land sale transactions, twenty acres of which he purchased in 1972 and upon which he located his home. Additionally, appellee Roy Lee Cates testified that he had purchased two other different tracts of land in his lifetime. He testified that during the time he was buying and selling land, he had determined what real estate was selling for in the area and became familiar with the value of property. Appellee stated he knew of other pieces of property that had been bought and sold and the amounts they sold for. In the opinion of appellee Roy Lee Cates, the fair market value of the property prior to the taking amounted to $45,000.00 and that it was worth $37,500.00 after the pipeline was placed on his property.
Rules governing the determination of just compensation in eminent domain cases have been long and firmly established in Arkansas. The measure of damages allowed for the taking of land for a right-of-way is the market value of the land taken and the damage, if any, resulting to the owner’s remaining land from the construction of the improvement. Texas Illinois Natural Gas Pipeline Co. v. Lawhon, 220 Ark. 932, 251 S.W.2d 477 (1952). The con-demnor is liable for the full value of the right-of-way as if the fee had been taken and the fact that the owner is given permissive use of the right-of-way cannot be considered in reduction of the sum to be allowed as compensation. Ark. Power & Light Co. v. Haskins, 258 Ark. 698, 528 S.W.2d 407 (1975).
In eminent domain proceedings land is evaluated on the basis of the most valuable use to which it can be put, comprehending any use to which it is clearly suited. In Ark. State Hwy. Comm’n v. Griffin, 241 Ark. 1033, 411 S.W.2d 495 (1967), the Court stated that the measure of compensation for condemned land includes its “availability for any use to which it is plainly adapted as well as the most valuable purpose for which it can be used and will bring most in the market.” The court may not engage in speculation and conjecture in determining future uses, but it must be shown with some degree of certainty that the use of the land will change in the not too distant future. Rest Hills Pk. v. Clayton Chapel Imp. Dist., 6 Ark. App. 180, 639 S.W.2d 519 (1982).
At the conclusion of the testimony by appellee Roy Lee Cates, appellant moved to strike all of his testimony as to “after” value. The motion was denied by the trial court. Appellant argues that what appellees might realize by a subsequent subdivision of their property and sale of lots amounts to mere speculation. It was appellee’s opinion that the highest and best use of his property would be for development. Appellee noted that there were other small tract divisions of land in the same community. A landowner across the road from him had sold two tracts of five acres. Appellee stated that small tract divisions were located in nearby Witcherville and Cumbie. He further testified that his property was flat and cleared and that it had more frontage on a paved road which made the property even more attractive and valuable than other property which had been developed.
While it is proper for a landowner to show that his property is suitable for division into lots and that it is valuable for that purpose, it is not proper to show the number and value of such lots. This procedure was thoroughly condemned in Ark. State Hwy. Comm. v. Watkins, 229 Ark. 27, 313 S.W.2d 86 (1958), where the Court adopted language from Nichols, Eminent Domain, Third Edition, § 3142(1) as follows:
It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush or boulders. The measure of compensation is not (emphasis supplied) however, the aggregate of the prices of the lots into which the tract could best be divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and it is too uncertain and conjectural to be computed. The measure of compensation is the market value of the land as a whole, taking into consideration its value for building purposes if that is its most available use.
See also Ark. State Hwy. Comm’n. v. Allen, 253 Ark. 46, 484 S.W.2d 331 (1972); Ark. State Hwy. Comm’n v. Schmoll, 248 Ark. 52, 449 S.W.2d 938 (1970).
A sample of appellee Roy Lee Cates’ testimony in this connection appears in the record as follows:
Q. I am going to ask you one more time. How did you ascertain the $7,500.00 worth of damage on the 12 acres?
A. If I were a builder, which I am not —
Q. No, I want you to tell me how you did it.
A. Well, the way I would figure it, is chop that up into lots and put six across there, and those lots would be worth about $3,000.00 or $1,500.00 an acre. And with that pipe line there you are going to knock the price of those down to probably about $1,250.00 for a deal, which would not work at all. And that is where I am going to come up with $7,500.00.
Q. So you come up with six lots up there across the top?
A. Uh huh.
Q. Well, have you endeavored to subdivide this into six lots across the top?
A. The only thing I have done is just myself.
Q. Well, I understand that, but you haven’t had this surveyed into six lots out across the top, I guess?
A. No.
Accordingly, we hold that while it was permissible for appellee Roy Lee Cates to testify that the highest and best use of the property was for development, it was not proper for him to show the number and value of such lots as the subdivision was not in esse at the time of the taking of the property by appellant.
We find it unnecessary to discuss appellant’s two other points for reversal. In one point, appellant argues an evidentiary issue to the effect that it was error to permit appellee to testify that appellant would not allow him to tap onto the proposed gas line. Whether this evidentiary matter arises again depends upon how this cause is developed on re-trial. Obviously, if such issue is fully developed and argued in that proceeding, the trial judge necessarily will be required to determine the relevance of the testimony and to decide if the probative value of that testimony is substantially outweighed by its prejudicial value or the other grounds set forth in Rule 403 of the Uniform Rules of Evidence. In its reply brief, appellant also raises a constitutional issue concerning the same testimony. However, appellant provides no citations of authority and very little argument in support of that issue and under such circumstances, we need not decide it. Harrison v. Benton State Bank, Gdn., 6 Ark. App. 355, 642 S.W.2d 331 (1982).
Reversed and remanded.
Cloninger and Glaze, JJ., agree. | [
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George K. Cracraft, Judge.
Tommy Hill appeals from an order of the Workers’ Compensation Commission adopting the findings and conclusions of the administrative law judge that his injury was a scheduled one which could not be apportioned to the body as a whole and that therefore wage earning factors could not be considered in addition to the functional loss as provided in Ark. Stat. Ann. § 81-1313(c) (Repl. 1976). He argues that the Commission erred in refusing to consider additional evidence not presented to the administrative law judge but proffered by the appellant on his appeal. We find no error.
In April 1979 the appellant sustained a crushing injury to his right foot while working for White-Rodgers. After a period of temporary total disability the appellant returned to work for appellee. Dr. H. Austin Grimes rated appellant’s permanent partial disability at that time at 15% to the right leg. Although the injury was to the foot, Dr. Grimes’ rating was based on his determination that the pain from the foot extended to the leg. Around the same time, Dr. Jerry L. Thomas rated his disability at 25% to the foot. Appellant was paid full permanent partial disability benefits by his employer for a 25% loss to the lower right extremity.
The appellant continued to experience difficulty because his foot injury caused pain to go up his leg into his hip and resulted in numbness to his leg. He changed jobs several times until he found employment which did not require him to be on his feet for prolonged periods, and at the time of the hearing in January 1983, he was employed at an hourly wage rate almost double what he was being paid at the time of his injury.
In December 1982, appellant had sought and obtained from Dr. Grimes a report that appellant had “5% or less permanent partial rating to the body as a whole.” By two subsequent reports Dr. Grimes clarified his earlier one in the following language:
The patient’s attorney requested that I rate him regarding the body as a whole. I then gave him a 5% PPPI rating as regards the body as a whole. It is not from a new injury. [Emphasis supplied]
This patient was given a 5% PPPI rating for his injury as it relates to the body as a whole, He was given a 15% PPPI rating for the same injury for how it relates to the leg as a whole. An injury to the foot affects the leg as a whole and at the same time affects the body as a whole. [Emphasis supplied]
All of the above reports were a part of the record before the administrative law judge.
At a hearing before the administrative law judge the claimant stated:
MR. FARRIS: It’s the claimant’s contentions, Judge, that the injury to the foot has now become under Dr. Grimes’ medical report, an injury to the body as a whole, and the claimant is entitled to be compensated for an injury to the body as a whole. Dr. Grimes gives him a 5% rating to the body as a whole, permanent partial injury.
JUDGE MAZZANTI: As I understand it, the claimant requests instead of the rating to the right lower extremity, a rating which has already been paid of 25%, the claimant is contending he’s entitled to the difference between the 25% to the right lower extremity and 5% to the body as a whole.
MR. FARRIS: Yes, sir, by his education, age and work experience.
The administrative law judge ruled that the injury to appellant’s lower extremity was a scheduled one and correctly denied the claim and ruled that absent a showing of total disability a scheduled injury cannot be apportioned to the body as a whole. Taylor v. Pfeiffer Plbg. & Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982); Clark v. Shiloh Tank & Erection Co., 259 Ark. 521, 534 S.W.2d 240 (1976); Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W.2d 82 (1972); Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972).
Shortly after the administrative law judge’s opinion was announced, the appellant filed a notice of appeal to the Commission in which he requested permission to brief and orally argue the matter and to supplement the record with additional medical evidence. Attached to his petition was the following one paragraph letter from Dr. Grimes to appellant’s attorney:
This is in regard to our telephone conversation of March 17, 1983. This gentleman’s rating was altered because his foot and leg pain altered his gait increasing the action and work of his back which aggravated his back condition as well. If any further information is needed please let me know.
The Commission entered an order denying the motion to submit additional evidence and stated that it found no reason to depart from the basic mandate of Ark. Stat. Ann. § 81-1327(c) (Supp. 1983) which provides that each party shall present all evidence at the initial hearing and a further hearing for the purpose of introducing additional evidence can be granted only in the discretion of the hearing officer or the Commission. In that order, the Commission recited that in reaching its decision on the motion it had been guided by the prerequisites set out in Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960) and Haygood v. Belcher, supra. The appellant then withdrew his request for briefs and oral arguments and submitted the matter to the Commission, which in a subsequent order affirmed the findings and conclusions of the administrative law judge.
In Haygood v. Belcher, supra, we declared that the Commission is vested with discretion in determining whether and in which circumstances a case appealed to it should be remanded for taking additional evidence and that their ruling will not be reversed on appeal unless there is an abuse of that discretion. In Haygood we determined that the Commission had not exercised its discretion in that case. In Haygood we reiterated the rules set out in Mason v. Lauck, supra, concerning when such a motion to present new evidence should be granted: 1) Is the new evidence relevant; 2) is it cumulative; 3) would it change the result; and 4) was the movant diligent?
Although it was argued in our conference of this case that Haygood and Mason are distinguishable from the matter now under review and that the Commission, in considering these criteria, acted arbitrarily, we do not address that issue because it was not argued in appellant’s brief. In fact the appellant concedes, and the majority here agree, that the Commission applied the right criteria. Appellant argues only that the Commission erred in its finding that the proffered evidence was not relevant. The maj ority adheres to the long es tablished and familiar rule of procedure that we do not consider points not advanced on appeal. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977); Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967). This rule has been applied with equal force to appeals from the Arkansas Workers’ Compensation Commission. Bradford v. Ark. State Hospital, 270 Ark. 99, 603 S.W.2d 896 (Ark. App. 1980); W. Shanhouse & Sons, Inc. v. Simms, 224 Ark. 86, 272 S.W.2d 68 (1954).
Appellant does argue that our prior decisions which limit a scheduled injury, except where there is total permanent disability, are inequitable and produce unfair results. He contends that we should reconsider this rule and that if we do so, the proffered evidence would be relevant. In view of the long line of cases which have held the adopted rule to be a clear mandate from the legislature, we decline to do so. We agree with the statement of Justice George Rose Smith in Intl. Paper Co. v. Remley, 256 Ark. 7, 505 S.W.2d 219 (1974), in which he said, “Of course the courts are bound by the legislature’s decision to adopt a rigid rule in the case of scheduled injuries.” Under our prior decisions the proffered evidence would not be relevant and could not change the result. We find no abuse of discretion in refusing to reopen the record where it is shown that such a procedure would be futile. Additionally, we note that the proffered evidence was merely cumulative of that previously submitted.
Appellant also argues that if we are unwilling to reconsider the established rule, we should hold that a scheduled injury “need not preclude a finding that another compensable injury, which is not a total permanent injury, may be found to exist and may be compensated for.” He argues that if proof could have been submitted to the Commission that appellant had suffered an unscheduled injury as a result of his scheduled one, his disability might have been apportioned to his body as a whole and contends that the proffered evidence was relevant for that purpose. The courts have already declared that where a worker has received a scheduled injury and subsequently receives an unscheduled one, he may be compensated for both, but other wage loss factors may be taken into consideration only with regard to the unscheduled one absent a finding of total disability. Clark v. Shiloh Tank & Erection Co., supra.
However, we find no merit to this argument. First, this argument was not made to the Commission and no contention was made before the administrative law judge that the claim was being made for a second, unscheduled injury. Appellant contended only that he had sustained a single injury to his lower extremity and that the pain resulting from it should be apportioned to his body as a whole. Nor does appellant’s one paragraph letter petition to the Commission raise that issue. It merely states that he wishes “to supplement the record” made before the administrative law judge. In all his previous reports Dr. Grimes had made it clear that there was no new injury and the proffered letter gave no indication of a claim on a second independent injury resulting from the scheduled one or the extent of any resulting disability on which the Commission might have based a finding. Although this point was also argued in our conference the majority adheres to the well established rule that grounds for relief cannot be asserted for the first time on appeal and that this rule applies to appeals from the Workers’ Compensation Commission. Ashcraft v. Quimby, 2 Ark. App. 332, 621 S.W.2d 230 (1981); Jeffery Stone v. Lester H. Raulston, 242 Ark. 13, 412 S.W.2d 275 (1967).
Affirmed.
Mayfield, C.J., and Cooper and Corbin, JJ., dissent. | [
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