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George K. Cracraft, Judge.
J.I. Case Company d/b/a Case Power & Equipment Company appeals from a judgment entered against it in favor of Charles Seabaugh in the amount of $12,726.11, contending that the trial court erred in denying its motion for judgment notwithstanding the verdict because the verdict was against both the law and the evidence. We find no error in the action of the trial court and affirm the judgment.
In January 1980 Seabaugh disputed the amount of a bill for $2,547.79 presented to him by the appellant for repairs to his Model 450 tractor. When appellee refused to pay the bill the appellant claimed the right to retain possession of the machine under the Artisan’s Lien Statute [Ark. Stat. Ann. § 51-404 (Repl. 1971)] and subsequently brought this action to recover the amount of its bill. The appellee protested that the appellant had undertaken to repair this same machine a short time before this second bill was incurred and that the second repair was occasioned by appellant’s failure to repair it properly the first time. He contended the parties had therefore agreed that he pay only a portion of actual cost of the second repair. By counterclaim appellee also prayed judgment for the loss of use of the machine over a period of fourteen months during which it had been in the possession of appellant.
The appellant offered evidence of the reasonable cost of repair and denied any agreement to reduce the bill below its customary charge for that service. The appellee offered evidence both that the parties agreed to “split” the repair bill and of the amount to reasonably compensate him for his loss of use of the machine while it was retained by appellant. The jury was instructed that should they find the question of liability in favor of appellant they must determine the amount of money which would reasonably and fairly compensate it for its services. If they found for the appellee they must determine the amount of money which would reasonably compensate him for loss of use of his machine for the fourteen month period during which it was withheld from him by the appellant. They were properly instructed on the factors which they might consider in determining the reasonable compensation for loss of use. At appellant’s request the jury was instructed on the right of an artisan to claim a lien for materials and labor furnished in the repair of implements and machines and its right to retain possession of the machine until the lien is satisfied. They were instructed that whether appellant had rightfully retained possession of the machine was a question of fact for them to determine.
The jury was also instructed that the rights of the parties were separate and distinct and, although decided on the same evidence, the claims of the parties should be treated as separate suits. The jury was furnished two general verdict forms — one for use in the event they found for the appellant and the other if they found for the appellee. They were instructed by the court that they should complete “one or the other.”
After the jury retired they returned to inquire whether they must return only one verdict or could make an award on each. They were told that it was possible for them to make two awards. After the jury had again retired the trial judge stated to counsel that he wanted “a thorough understanding from you gentlemen that this is correct. Do you understand and agree?” Both counsel stated that they did agree. The trial judge then asked counsel if they understood that in the event two verdicts were returned, one verdict would offset the other. Both agreed that this might be done.
The jury thereafter returned both verdict forms. They found for the appellant “in the amount of $1273.89” and for the appellee “in the amount of $ 14,000. ’ ’ The trial court then polled the jury to make certain that by two verdicts they intended that the appellee recover the sum of $14,000 less $1273.89. The jury agreed that this was the intent of their verdict and the court thereupon directed counsel to prepare a j udgment against the appellant in the amount of $ 12,746.11.
The appellant moved for a judgment notwithstanding the verdict contending that the finding of the jury that the appellant was entitled to be paid the sum of $1273.89 for repairing the tractor necessarily included a finding that it had a right to possession of the property under the Artisan’s Lien Statute. The jury could not therefore return a verdict against appellant based upon a wrongful loss of use of the tractor. The trial court denied the motion on the grounds that he had initially given the jury two verdict forms and told them to come back with only one. After the jury asked if they could possible render a verdict on both forms they were instructed that they might, and at that time both parties agreed that the instruction, was correct.
We do not reach the merit of appellant’s argument that the verdict was tantamount to a finding that appellant has a right to a possessory lien and therefore damages for wrongful loss could not be awarded. At the time the jury was instructed that they might return two verdicts both parties consented to the giving of that instruction and agreed that it was a correct one. Even if the instructions given the j ury were incorrect ones it is well settled that under the doctrine of invited error appellant may not complain on appeal of an erroneous action of a trial court if he had induced or acquiesced in that action. Missouri-Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944); Kansas City Southern Railroad Co. v. Burton, 122 Ark. 297, 183 S.W.2d 189 (1916).
We do not address the issue of whether the Artisans’ Lien Act is violative of due process requirements. Not only was there no cross-appeal but the issue was not raised in the trial court and will not therefore be considered by us for the first time on appeal. Williams v. Edmondson & Ward, 257 Ark. 837, 250 S.W.2d 260 (1975); Gregory v. Walker, 239 Ark. 415, 389 S.W.2d 892 (1965).
Affirmed.
Corbin and Cloninger, JJ., agree. | [
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Tom Glaze, Judge.
Appellants appeal their convictions for manufacturing marijuana. They were both sentenced to eight years in the Department of Correction and fined $5,000 each. Appellants contend the trial court erred in (1) denying their motion to suppress, (2) refusing their motion for mistrial, (3) admitting certain value testimony pertaining to the seized marijuana, and (4) refusing to grant their motions for separate trials on both the guilt-innocence phase and the sentence phase of their case. We affirm.
Appellants first argue that the marijuana field discovered on their property is entitled to Fourth Amendment protection. Citing the test earlier adopted by this Court in Gaylord v. State, 1 Ark. App. 106, 613 S.W.2d 409 (1981), appellants contend they exhibited a reasonable expectation of privacy in the field that was searched; therefore, under the existing circumstances, the court should have suppressed all the evidence derived from the illegal search. See also Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982). One circumstance to which appellant refers is a deputy sheriff’s aerial observation of their property. The deputy detected appellant’s marijuana field during a helicopter search in the same area for an airplane that reportedly had crashed. While flying about 100 feet above the treetops, the deputy saw what he believed was marijuana, which later was found located on appellant’s farm.
In view of the deputy’s aerial observation and detection of appellants’ marijuana field, we are confronted with the question whether such a helicopter observation constitutes a “search” subject to Fourth Amendment protection. While this question has not previously been addressed by our State’s appellate courts, cases from other jurisdictions indicate that warrantless aerial observation of that which is not visible from most places on the ground is not per se a Fourth Amendment violation. United States v. Mullinex, 508 F.Supp. 512 (E.D. Ky. 1980); Burkholder v. Superior Court, 96 Cal. App.3d 421, 158 Cal. Rptr. 86 (1979); Costello v. State, 442 So. 2d 990 (Fla. Dist. Ct. App. 1983) (Rehearing denied Jan. 11, 1984); People v. Lashmett, 71 Ill. App. 3d 429, 27 Ill. Dec. 657, 389 N.E.2d 888 (1979), cert. denied 444 U.S. 1081, (1980); State v. Ryder, 315 N.W.2d 786 (Iowa 1982); State v. Roode, 643 S.W.2d 651 (Tenn.1982); Goehring v. State, 627 S.W.2d 159 (Tex. Crim. App. 1982). The same conclusion has been reached in cases in which warrants were issued as a result of aerial observations of contraband. United States v. DeBacker, 493 F.Supp. 1078 (W.D. Mich. 1980); State v. Stachler, 58 Hawaii 412, 570 P.2d 1323 (1977); State v. Davis, 51 Or. App. 827, 627 P.2d 492 (1981).
In the foregoing cases, the courts refused to suppress the contraband that was seized as a result of aerial surveillance, but in doing so, they gave various reasons. For example, the court in Mullinex held that the defendant could not have a reasonable expectation of privacy in the area where the seizure was made because it was an “open field.” In Costello, the Court determined that because the marijuana was clearly visible from an area not constitutionally protected (the pilot identified it when he flew over defendant’s property at an altitude of 500 feet), the defendant had no reasonable expectation of privacy in his marijuana patch. The Tennessee Supreme Court in Roode adopted the approach taken by the California courts, viz., “the individual seeking constitutional safeguards must show that the land is used in accordance with the common habits of people engaged in the cultivation of agricultural land who exhibit an expectation of privacy with respect to the pursuit in question.” See People v. Saint Amour, 104 Cal. App.3d 886, 891, 163 Cal. Rptr. 187, 190 (1980). In an earlier Tennessee case, State v. Layne, 623 S.W.2d 629 (Tenn. Crim. App. 1981), the Court, relying on the reasoning given by the Hawaii Supreme Court in State v. Stachler, held “that when law enforcement officers are in a place where they have a right to be and as a result thereof observe criminal activity, clearly recognizable as such, on the property of a defendant, the ‘open view’ exception arises.” Layne, supra, at 635. In State v. Davis, the Oregon Court of Appeals justified the aerial surveillance of the defendant’s marijuana patch because the surveillance constituted a “plain view” exception to the Fourth Amendment prohibitions against unreasonable searches and seizures. In analyzing this issue, most of the courts attempted to apply the “reasonable expectation or privacy” rule enunciated in Katz v. United States, 389 U.S. 347 (1967), which was adopted in Arkansas in Gaylord v. State, supra. Despite their apparent differences in approaching this issue, each court reached the same conclusion: when the defendants’ contraband was viewed from the air by police officers, the defendants had no Fourth Amendment protection, as measured by the Katz standard.
In keeping with the Katz test adopted in Gaylord, we believe that given the facts of this case, the appellants did not have a reasonable expectation of privacy in the open marijuana field where the seizure was made, and accordingly cannot claim Fourth Amendment protection. Regardless of how appellants strived to conceal the marijuana from the view of neighbors or intruders, the field was clearly exposed to police aerial surveillance and therefore to the public as well. See Mullinex, supra, at 514. As noted by the Court in Debacker, supra, at 1081, “open fields’’ are not areas in which one traditionally can reasonably expect privacy. Here, appellants’ marijuana was initially and inadvertently discovered by a deputy searching for a crashed airplane. While he was in a helicopter 100 feet above the treetops, the deputy saw the marijuana field, which was about 75 feet long by 25 rows wide and located approximately 200 yards from appellants’ house. The plants numbered over 400 and some were 20 feet tall. Although appellants argued otherwise, the deputy testified that when he saw the plants, he recognized them as marijuana because they were large, dark green and had leaves with long points. Under the circumstances presented, we believe the aerial observation of appellants’ property was not a violation of the Fourth Amendment and the trial court correctly denied their motion to suppress.
Appellants’ second point for reversal is that the trial court erroneously denied their motion for mistrial which was based on their contention that the State’s attorney improperly questioned the jurors. In sum, they argue the prosecuting attorney utilized voir dire, not only for the purpose of “getting acquainted,” but to philosophize on matters of politics, drug legislation, leniency of marijuana laws, firm law enforcement, the Sheriff’s fight on drug trafficking and ideas about prison.
The purpose of voir dire examination is to discover if there is any basis for challenge for cause and to gain knowledge for the intelligent exercise of peremptory challenges. See, Rule 32.2, Ark. R. Crim. Pro. (Repl. 1977). The extent and scope of voir dire examination is largely within the sound discretion of the trial judge and the latitude of that discretion is rather wide; his restriction of that examination will not be reversed on appeal unless that discretion is clearly abused. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).
In the instant case, the trial judge did not abuse his discretion but instead used it to properly limit the questioning. For example, appellants’ counsel objected when the prosecuting attorney asked a juror if he agreed with trickery employed by police in an effort to “flush out” people who purposefully violate the law. The trial judge instructed the prosecutor to stay with the facts of the case; this instruction met with defense counsel’s approval. On another occasion, the prosecutor asked a juror whether he knew anybody who had gone to prison. The juror answered affirmatively after which the prosecutor asked if the person was a family member. The juror said, “No,” and before the State’s attorney could ask how the juror’s acquaintance had been treated while in prison, defense counsel obj ected and moved for a mistrial. The trial judge denied the motion but admonished the prosecutor to stay with the specific charges before the court. On other occasions during voir dire, the trial judge sustained defense counsel’s objections, and prevented the State’s attorney from discussing the “drug business” and from asking whether the jurors had heard or read anything recently on national news concerning marijuana grown in Arkansas.
On the other hand, the State points to the voir dire of prospective jurors by appellants’ counsel, who delved into matters such as counselling young people and giving them a chance to do right, inquiring whether the Bible “teaches” one to be merciful and asking if the jurors could be merciful if the woman defendant had been a “good mother” to her children. From a review of the voir dire proceedings, we conclude that both the State and appellants were allowed an extensive, broad voir dire. We cannot say the trial judge abused his discretion by the manner in which he controlled such examination.
Appellants’ next argument is three-pronged: Detective Brugle was not qualified as an expert on the street value of marijuana, he had insufficient data upon which to base an opinion and assuming the admissibility of such value testimony, it was not relevant and therefore was excludable because of its prejudicial impact. We find no merit to appellants’ contentions.
Brugle was the deputy who observed appellants’ marijuana when he flew over their property in a helicopter. He testified that he had nine years’ experience in law enforcement, that he had attended drug investigation schools and that he had worked narcotics and drug violation cases. He also had completed a 37-hour DEA school in drug enforcement and had been involved in at least fifteen or sixteen marijuana cases prior to the appellants’ arrest. It is settled law that the determination of an expert’s qualification as a witness is within the sound discretion of the trial court, and, absent an abuse of discretion, it will not be reversed. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982). In view of Brugle’s training and experience in drug enforcement, the trial court did not abuse its discretion in allowing his expert testimony. Furthermore, because Brugle personally inspected appellants’ marijuana field and knew first-hand the quality and quantity of contraband seized, he undoubtedly had sufficient information on which he could formulate an opinion. In determining the relevance of the value testimony given by Brugle, we reviewed Brady v. State, 261 Ark. 257, 548 S.W.2d 821 (1977), in which our Supreme Court held that when the jury, as in Arkansas, fixes punishment for criminal offenses, evidence in aggravation of or in mitigation of an offense is admissible to assist the jury in arriving at a fair verdict. Brugle testified that one pound of marijuana could be harvested from one plant and that appellants’ plants would bring from $1,400 to $1,600 per pound on the street. Such testimony was evidence in aggravation of the offense with which appellants were charged, because it indicated they were manufacturing marijuana that had a high value — a fact which allowed the j ury to perceive both the nature and magnitude of the crime. Unlike the situation in Brady, appellants here had the opportunity to rebut the State’s street value evidence but did not do so. We find no error in the State’s presenting such evidence.
Appellants’ final contention is that they were entitled to a bifurcated trial so they could present evidence of extenuating or mitigating circumstances at a separate sentencing proceeding. In brief, the appellants did not choose to testify at the trial on the merits, and because they were not afforded a sentencing trial to offer mitigating evidence, they claim they were denied due process. We disagree. Under Ark. Stat. Ann. § 43-2303 (1977), appellants had the right of allocution. Although appellants indicate by argument that the trial court’s common practice is to “rubber stamp” the jury’s verdict, they do not argue in this appeal that they were denied the right of allocution. See Smith v. State, 257 Ark. 781, 520 S.W.2d 301 (1975) (court reversed, finding the defendant was not accorded the right of allocution). Appellants here were afforded by law the opportunity to address the court before sentencing, and they apparently opted not to be heard. We know of no cases that hold or infer that due process requires a separate jury trial for the sentencing phase of a criminal case, nor do the appellants cite such authority. The trial court had no statutory authority to grant appellants’ request, and it was clearly correct in denying their motion.
We affirm.
Mayfield, C.J., and Cooper, J., agree. | [
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James R. Cooper, Judge.
The appellee, the maternal grandmother of Kevin Rea’l Brown, sought to adopt her grandson without the consent of the appellant, the child’s natural father. The probate judge granted the petition for adoption, finding that the appellant’s consent was unnecessary under Ark. Stat. Ann. § 56-207 (Supp. 1983). From that decision comes this appeal.
The appellant, Pete Brown III, was married to Lilly Brenda Brown on September 19,1970. One child was born of this marriage on December 20,1975. Less than one year after the birth of their child, Mrs. Brown filed for divorce. The appellant, who was working in Alaska, did not file an answer or otherwise contest the divorce. On December 14, 1976, a divorce decree was entered which awarded the appellant’s ex-wife legal custody of the couple’s minor child, Kevin Rea’l Brown, with reasonable visitation rights granted to the appellant.
On January 14,1977, the appellee and her husband filed a petition for adoption of the child. The appellant intervened, contesting the adoption and the petition was subsequently dismissed.
Later that year, in December, 1977, the chancellor modified the original divorce decree to award physical custody of the child to the appellee and her husband, who were the parents of the child’s natural mother. During this proceeding, the appellant agreed to make child support payments of $100.00 per month through the registry of the court. The chancellor also established definite visitation rights for the appellant, awarding him temporary custody of the child for thirty days in June of every year and one week during the Christmas holidays every other year beginning in 1978.
On June 1, 1978, the appellant filed a petition against the natural mother, the appellee and the appellee’s husband for contempt of court. The appellant alleged that these persons had failed to comply with the court’s order because they had prevented the appellant from exercising his visitation rights. The following day, June 2, 1978, the chancellor entered an order allowing the appellant to visit with his son for thirty days beginning on June 15, 1978. As a result, the contempt petition was dismissed by the mutual agreement of the parties.
On November 3, 1980, the appellee filed a second petition for adoption. The natural mother had already consented to the adoption and waived notice of all proceedings or hearings. The motion to dismiss, which stated that the appellee had failed to comply with the Uniform Adoption Statutes, was never acted upon.
On July 0, 1981, the appellant again filed a motion for contempt of court against the appellee for her failure to allow the appellant to have his child for the thirty day visitation period in June, 1981. The appellee responded by denying the charges and additionally filing a separate petition to have the divorce decree modified to reflect that the appellant was not the natural father of the minor child. In seeking a modification, the appellee additionally requested that the appellant be ordered to take a physical exam to determine paternity. A settlement was arranged between the parties and the actions were dismissed. The contempt action was dismissed on the condition that the appellant be allowed to visit his child, outside of the presence of the appellee, during the Labor Day weekend.
On November 19, 1981, the appellee filed an amended petition for adoption, which stated that the consent of the appellant was not required because the appellant failed significantly, without justifiable cause, to not only communicate with the child, but to provide child support for a period of one year. In his answer to the amended petition, the appellant affirmatively stated his consent was required because he had justifiable cause in not seeing or supporting his child. The appellant argued that he had been prevented from exercising his rights and providing support because of actions by the appellee.
On August 23,1982, a hearing was held on the adoption petition. After hearing the evidence, the probate judge found the appellant’s consent was not required under Ark. Stat. Ann. § 56-207 (Supp. 1983). The probate judge granted the adoption.
The appellant argues that the probate judge erred in finding that the appellant had failed significantly, without justifiable cause, to both communicate with his minor son and to provide child support for his son from February 12, 1979 through December 31, 1980. We disagree.
Generally, in order for a valid adoption to be granted, the natural parents of the child must consent. See Ark. Stat. Ann. § 56-201 (Supp. 1983). However, there are certain statutory exceptions to this general rule. Arkansas Statutes Annotated § 56-207 (a) (2) (Supp. 1983) provides:
Consent to adoption is not required of a parent of a child in the custody of another, if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;
Although this revised act has eliminated many of the more stringent requirements for adoption without consent, the statute is still to be strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (1980). See also Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981).
To avail herself of the provision (a) (2) of Ark. Stat. Ann. § 56-207 (Supp. 1983), the appellee was required to establish all of the above mentioned factors by clear and convincing evidence. In Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980), this Court stated:
Like the court below, we recognize the heavy burden which the law places upon one wishing to adopt a child against the consent of a parent. Roberts v. Swim, supra. We also recognize that other things being equal the law favors natural parents over others in custody cases. However, the rights of parents are not proprietary and are subject to their correlated duty to care for and protect the child; and the law secures the preferential rights of parents only so long as they discharge their obligations. Parental rights are not to be enforced to the detriment or destruction of the happiness and well being of the child. [Citation omitted.]
See also Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953).
In the case at bar, the appellant argues that his failure to communicate with his son and pay child support was justified because of the appellee’s actions. The appellant testified that in December, 1978, he came to Arkansas to visit his son at Christmas. After being unable to locate his son and the appellee, the appellant spoke with his ex-wife and his ex-wife’s boyfriend, Charles Elliot. Mr. Elliot told the appellant that the appellee had moved and he thought that she was in Missouri visiting relatives. In September, 1979, the appellant again came to Arkansas to try and find his son and the appellee, but he was unsuccessful in locating them.
The appellant argues that his failure to pay child support payments between February, 1979 and December, 1980 was due to the fact that he was unable to locate the appellee. The appellant testified that he had received one letter back from the Post Office because it was not the correct address, but had not brought the returned letter with him to court. The address on the letter was the one the clerk’s office had on its records. The appellant testified that he did not begin payments again until after the second adoption petition was filed because it was only then that he knew where his son and the appellee were living. All of the payments received after the filing of the adoption petition were refused by the appellee, although the appellee has allowed the appellant to see his son.
The appellant also testified that during 1979 and 1980 he encountered financial difficulties. Although the evidence indicated that he was employed for the majority of this period, the appellant testified that in the construction business, work is not always steady. As a result, the appellant argued that he could not come back to Arkansas from Arizona or Alaska as often as he preferred from 1979 through 1981.
The appellee testified that after her husband died in August, 1978, she moved from Manila to Blytheville. Although she moved in October, 1978, she was not in her new home until November, 1978, because she took a trip to Chicago for a few weeks. In May, 1979, the appellee moved to Walnut Ridge and has remained at that address since that time. The appellee admitted that she did not tell the appellant where she was moving, but claimed that she failed to do so because she did not know the appellant’s whereabouts. The appellee testified that the court always knew where she lived and that her mail was forwarded from her old address each time she moved. The court clerk’s records show that a change of address to Walnut Ridge was not made until December 23, 1980. The appellant’s ex-wife testified that the appellant knew where she was living and could have contacted her concerning where their son and the appellee were living but failed to do so.
In adoption proceedings, this Court reviews the record de novo, but we will not reverse the probate judge’s decision unless it is clearly erroneous or against a preponderance of the evidence, after giving due regard to his opportunity to determine the credibility of the witnesses. Henson v. Money, supra. See also Loveless v. May, supra. After reviewing the evidence as required, we cannot find that the probate judge’s decision was clearly erroneous. Even assuming, arguendo, that we were to determine that the appellant had justifiable excuse for not communicating with his son, we could not make the same finding concerning the appellant’s failure to pay child support. In Henson v. Money, supra, the Arkansas Supreme Court, in granting the adoption over the objection of the father, stated that “[t]he duty to pay child support is independent of the duty of the custodial parent to allow visitation, as both may be enforced by the courts. ’ ’ In the case at bar, the appellant had previously agreed, when physical custody was .given to the appellee, to support his son by payments to be made through the registry of the court. The court clerk’s records indicate that no payments were received from February 1979 through December, 1980. Additionally, it appears from the record that the only time the appellant demonstrated any interest in his son was when adoption petitions were filed by the appellee. In Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), the Arkansas Supreme Court, noting that the majority of the contributions made by the father appeared to have been made because of some form of compulsion or because of the pendency of the adoption proceeding, stated:
The parent must furnish the support and maintenance himself and the duty is a personal one, and he may not rely upon assurance that someone else is properly supporting and maintaining the child to avoid the impact of the statute’s providing for adoption of his child without his consent because of his failure to support the child. . . . The father’s duty to support his minor child cannot be excused on the basis of the conduct of others, unless that conduct prevents him from performing his duty.
Since we do not find justifiable cause for the appellant’s failure to meet his obligations to his son by making payments through the registry of the court, we affirm the probate judge’s decision to grant the appellee’s petition for adoption.
Affirmed.
Glaze, J., dissents. | [
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Tom Glaze, Judge.
This appeal arises from appellant’s conviction for burglary for which he was sentenced to ten years in the Department of Correction. The facts of the case are undisputed. Two Blytheville police officers, Don Pease and John Blair, testified that at approximately 5:30 A.M. on September 14, 1982, an alarm went off at the Blytheville Police Department, indicating that someone had entered Southern Farmers’ Association, a chemical business. Police officers went to the building, found the front door locked, and summoned Doug Truelove, the assistant manager, to let them in. Their search of the building revealed appellant in the bathroom behind the door and a broken window in the office area. The secretary’s desk had been rifled. The appellant, who had a cut on his hand, had some Band-Aids in his shirt pocket which Truelove identified at trial as having come from the secretary’s desk drawer.
The appellant was charged by information with burglary. To prove burglary, the State was required to show the appellant entered the Southern Farmers’ building “with the purpose of committing therein any offense punishable by imprisonment.” See Ark. Stat. Ann. § 41-2002 (Repl. 1977). Toward that end, the State at trial was permitted, over the objections of appellant’s counsel, to introduce evidence showing that appellant had three previous convictions for burglary, two in 1979 and one in 1980. These convictions all resulted from guilty pleas by the appellant. In holding such evidence admissible under Rule 404(b) of the Uniform Rules of Evidence, the trial court found that “the best, strongest and most probative evidence available to the State” to show the defendant’s “purpose, intent or state of mind ... at the time he entered the building” was “to allow the prior offenses of a similar nature.” Appellant contends the trial judge erred in permitting the State to introduce the three prior burglary convictions to show appellant’s intent. Appellant also contends the trial judge erred in not submitting, on its own motion, a cautionary instruction to the jury respecting the three prior convictions. Since appellant’s second point for reversal is the easier to resolve, we will discuss it first.
The record reveals that the trial court and appellant’s attorney discussed the possibility of a limiting instruction. Appellant’s attorney refused the trial court’s offer to give such an instruction because he felt “any cautionary instruction would be ridiculous.” The trial court’s failure to give a cautionary instruction on its own motion was not otherwise raised at the trial level; therefore, it will not be considered in this appeal. Smith v. State, 266 Ark. 861, 587 S.W.2d 50 (1979), cert. denied 445 U.S. 905 (1980).
The main issue presented in this appeal is the proper application of Uniform Rule of Evidence 404(b), which states:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), the Supreme Court set forth the analytic framework to be followed in resolving 404(b) questions. Price requires that evidence of other crimes pass two tests to be admissible: (1) the other crimes evidence must be independently relevant, and (2) must meet the “probative value versus unfair prejudice” balancing test of Uniform Rule of Evidence 403. Whether the evidence of the three prior guilty pleas is relevant to show appellant Golden’s specific intent to commit an offense punishable by imprisonment is a difficult matter to resolve. Because the introduction of the three prior pleas violates the Rule 403 test, we find it unnecessary to decide the relevancy issue.
Rule 403 states:
Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. — Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
This rule is easier stated than applied. The difficulty arises in the calculations a court must make to apply Rule 403 to a piece of evidence. The probative value and unfair prejudice of the evidence must be assessed somehow and these values must be compared to determine which will advance the search for truth. On the basis of this comparison, the proffered evidence is admitted or rejected.
Evidence of appellant’s prior guilty pleas to burglary charges is no doubt highly prejudicial because of its tendency to portray appellant as “a man of bad character, addicted to crime.” Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). Such prejudice has a tendency to lead one to conclude that appellant must be guilty. Because the three previous guilty pleas are so prejudicial, this Court will review the facts to determine if, without the prior burglary convictions, the State proved the burglary charges against the appellant. If the State’s evidence otherwise supports appellant’s conviction, then the prior guilty pleas should not have been admitted — for reasons we will discuss later.
Before reviewing the facts, we first analyze the controlling case law on the subject on burglary. In several Arkansas cases prior to 1980, the Supreme Court held that the specific intent with which a person enters a building can be inferred from the circumstances of his illegal presence in the building. In these cases, as in the case at bar, the police arrested the alleged burglar after his illegal entry, but before he could commit a felony or theft inside the building. These cases are Scates v. State, 244 Ark. 333, 424 S.W.2d 876 (1968); King v. State, 256 Ark. 778, 510 S.W.2d 876 (1974); Randle v. State, 257 Ark. 232, 516 S.W.2d 6 (1974); and Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978). Thus, given appellant’s illegal presence in the Southern Farmers’ building, and the permissible inferences allowed under the foregoing decisions, the State appears to have had a strong case on the intent issue, i.e., appellant entered the building with the intent to commit an offense punishable by imprisonment.
However, in 1980, the Arkansas Supreme Court decided Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980), and in doing so, the Court distinguished its earlier case of Grays v. State, supra, explaining that an accused’s mere illegal presence was insufficient to show his intent to commit a burglary. The Court said:
[A] specific criminal intent, which is an essential element of the crime of burglary, cannot be presumed from a mere showing of illegal entry of an occupiable structure. The prosecution must prove each and every element of the offense of burglary beyond a reasonable doubt and cannot shift to the defendant the burden of explaining his illegal entry by merely establishing it. Not only is illegal entry an independent element of burglary, but it also constitutes a separate crime punishable as criminal trespass. Ark. Stat. Ann. § 41-2004 (Repl. 1977). By implying a specific criminal intent from mere evidence of illegal entry, the state not only evades its constitutional evidentiary burden in criminal prosecutions but imposes upon a defendant the responsibility to prove he only committed a criminal trespass or stand in jeopardy of a conviction of burglary.
Id. at 453-54, 609 S.W.2d at 3. In Norton, the defendant had done nothing more than illegally enter a building. There was no evidence that the accused had taken anything.
Norton gives some indication of the constitutionally permissible manner in which the State can prove the specific intent for burglary. The Supreme Court in Norton distinguished Grays by observing that there the defendant had fled from the police. The Court held the flight of the accused is evidence of felonious intent. In Johnson v. State, 7 Ark. App. 172, 646 S.W.2d 22 (1983), this Court distinguished Norton by noting that there was evidence from which a jury could infer the defendant’s theft of a purse after he had illegally entered an apartment. From the inferred fact of the defendant’s theft, this Court held that a jury could infer his specific intent in entering the apartment.
In the case at bar, there are facts other than the defendant’s illegal entry which establish his specific intent. In this case, as in Johnson, the defendant stole something after making an illegal entry. As we previously noted, appellant gained entry into the building through a broken window at 5:30 A.M. Once inside the building, appellant Golden rifled a secretary’s desk and removed some Band-Aids. Golden’s appropriation of the Band-Aids is a violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977) — theft of property. This exercise of unauthorized control over the property of another is direct evidence of his intent to commit an offense punishable by imprisonment inside the building. See Johnson, supra. Theft of property is at the least a Class A misdemeanor, which is punishable by imprisonment. See Ark. Stat. Ann. § 41-901(2)(a) (Supp. 1983). In sum, without the prior burglary convictions, the State’s evidence established the appellant committed a burglary under either the holding in Grays or in Norton.
With the availability to the State of other means of proving appellant Golden’s specificintentandin the highly prejudicial nature of the three prior guilty pleas, the convictions should not have been admitted. In terms of Uniform Rule of Evidence 403, the “probative value” of the three prior guilty pleas was “substantially outweighed by the danger of unfair prejudice.” Given the similarity of the three pleas to the charge appellant Golden faced, their prejudicial effect was obvious.
The probative value of evidence is not usually as glaring as its prejudicial effect. No Arkansas case authority explains how to assess probative value. However, highly persuasive federal authorities indicate the probative value of evidence correlates inversely to the availability of other means of proving the issue for which the prejudicial evidence is offered. See Advisory Committee's Notes to Fed. R. Evid. 403 and Fed. R. Evid. 404(b); and M. Graham, Handbook of Federal Evidence, § 404.5, at 213 (1981). This means of determining probative value was clearly expressed by the United States Fifth Circuit Court of Appeals in United States v. Beechum, 582 F.2d 898, 914 (5th Cir. 1978):
Probity in this context is not an absolute; its value must be determined with regard to the extent to which the defendant’s unlawful intent is established by other evidence, stipulation, or inference. It is the incremental probity of the evidence that is to be balanced against its potential for undue prejudice. Dolan, Rule 403: The Prejudice Rule in Evidence, 49 S.Cal.L.Rev. 220, 234-35 & n.52 (1976); see United States v. Baldarrama, 566 F.2d 560, 568 (5th Cir.1978). Thus, if the Government has a strong case on the intent issue, the extrinsic offense may add little and consequently will be excluded more readily.
Id. at 914. See also, United States v. Dolliole, 597 F.2d 102, 106 (7th Cir. 1979).
As these authorities indicate, the probative value of appellant Golden’s previous guilty pleas regarding his specific intent depends on the strength of the State’s case on intent without evidence of the prior convictions. As the above analysis has shown, the State had direct as well as circumstantial evidence from which the jury could have inferred appellant intended to commit theft. Therefore, we reverse and remand this case for a new trial.
Reversed and remanded.
Mayfield, C.J., and Cracraft, J., agree. | [
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Lawson Cloninger, Judge.
Appellee, Michael C. Huckabee, filed a complaint in chancery seeking specific performance by appellant, Myrna M. Walker, of an alleged contract for the sale of 35 acres of land located in Union County, Arkansas. Appellant denied the existence of a contract, and asserted a counterclaim for unlawful detainer. Appellee, Homefinders Real Estate, Inc., intervened in an attempt to collect a commission from appellant on the sale of the property.
The trial court found that although appellant rejected Huckabee’s original offer, Huckabee accepted appellant’s counter offer. Huckabee was held entitled to specific performance and Homefinders was held entitled to a 10% commission from appellant.
For reversal, appellant contends that no contract was formed; that Huckabee’s acceptance of appellant’s counter offer was never communicated to appellant, and that Homefinders was not the agent of appellant with authority to receive notice of the acceptance. When we view the evidence in the light most favorable to the appellees, as we must, we hold that the findings of the chancellor are not clearly against the preponderance of the evidence.
Appellant lives in Tempe, Arizona, and inherited the 35-acre tract. In 1977 appellant listed the tract with Home-finders, but no sale was made and the listing expired. Appellant also listed a 55-acre tract with Homefinders in 1978, but that listing also expired without a sale.
In July, 1981, Dorothy Craig, a representative of Home-finders, called appellant and asked appellant if she was still interested in selling the 35-acre tract. Appellant set a price of $800 an acre. The call by Dorothy Craig was prompted by an expressed interest in land in the area by Huckabee. Hucka-bee made an offer of $17,000 for the tract through Dorothy Craig, which was rejected by appellant. Huckabee then raised his offer to $24,500, or $700 an acre. The offer was signed by Huckabee on a standard offer and acceptance form and addressed to Homefinders Real Estate, Agent. Home-finders subsequently mailed the document to appellant. The offer and acceptance was modified by appellant in three details not vital to the issues here, and, as modified, signed by appellant and returned to Homefinders. Appellant instructed Homefinders to deliver the necessary papers to an El Dorado, Arkansas, attorney, who had once represented appellant. The offer and acceptance, as modified, was accepted by Huckabee, who made the down payment to Homefinders, and the instrument was delivered to the attorney as directed by appellant. Huckabee then moved onto the property with the permission of Homefinders. Homefinders attempted to contact appellant to inform her of what had been done, but appellant, who was visiting relatives while en route to Arkansas, could not be reached. When appellant arrived in Arkansas she then discovered for the first time that Huckabee had accepted her counter offer and was in possession of the property. At that time appellant repudiated the sale and ordered Huckabee off the property.
The chancellor found that the offer and acceptance, as modified by appellant, was a binding contract between the parties; that the evidence, although conflicting, indicated that appellant became displeased with the price she had agreed to accept and for that reason repudiated the contract; that appellant requested that the offer and acceptance be taken to a designated attorney only for the purpose of preparing the necessary papers to close the sale.
Appellant does not contend that Huckabee did not accept her counter offer, but she does urge that Homefinders was not her agent for receiving Huckabee’s acceptance and that she withdrew her offer before Huckabee’s acceptance was communicated to her.
The evidence failed to establish that Homefinders had authority to grant Huckabee permission to enter the land, but evidence was presented from which the chancellor could find that Homefinders was the agent of appellant for the limited purpose of conveying appellant’s counter offer to Huckabee and receiving Huckabee’s acceptance of that counter offer. The trial court could find, and did find, that appellant made a specific counter offer and instructed Homefinders to deliver that offer, if accepted by Huckabee, to appellant’s attorney for closing.
An owner must say or do something tending to prove that he accepted the broker as his agent; mere selling to the party whom the broker procured is insufficient proof. Shuffield v. Hunter, 268 Ark. 1003, 597 S.W.2d 852 (Ark. App. 1980). Circumstantial evidence may be sufficient to establish agency, and the allegations of the purported agent may be used to corroborate other evidence of the agency. Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980). There is ample evidence to indicate that Homefinders was appellant’s agent for the purpose of consummating the sale and that appellant agreed to pay Homefinders a commission; the previous relationship between appellant and Homefinders; appellant’s signing of the counter offer with instructions to deliver it to an attorney for closing; and an agreement contained in the offer and acceptance whereby appellant agreed to pay Homefinders a commission of 10%. A further indication that appellant was aware that she was promising to pay Homefinders a commission is the fact that when appellant signed the offer and acceptance, as modified, she added a typed supplement which provided that one-half of the agent’s commission was payable at the closing of sale and one-half in one year without interest.
The judgment of the trial court is affirmed.
Cracraft and Corbin, JJ., agree. | [
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Lawson Cloninger, Judge.
In this workers’ compensation case, the claimant, Charles Payne, sustained a job-related injury to his lower back on April 28, 1981, while employed by respnodent, American Transportation Company. Claimant was initially treated by Dr. Tom Beasley, a physician selected by respondent. Dr. Beasley eventually referred appellant to Dr. Jerry L. Thomas, an orthopedic surgeon. Dr. Thomas treated claimant with conservative measures and released him to return to work on August 24, 1981, with a permanent partial disability rating of 5% to the body as a whole. After an October 2, 1981 examination, Dr. Beasley concurred in the disability rating set by Dr. Thomas and recommended that claimant return to work with some restrictions.
On October 14, 1981, claimant, on his own initiative, sought the services of Dr. Joe Lester. Dr. Lester performed a myelogram on claimant on January 5,1982, and on January 11,1982, Dr. Lester operated on claimant, removing a disc at the L5-S1 level. Dr. Lester rated claimant has having a disability of 1214% to the body as a whole.
At a hearing held on July 29,1982, claimant requested a permanent partial disability of 1254%, a change of physicians to Dr. Lester, and rehabilitative services. The administrative law judge found that the change of physicians to Dr. Lester was unauthorized; that claimant had failed to prove by a preponderance of the evidence that rehabilitative services were necessary; and that claimant was entitled to a permanent partial disability rating of 12H% to the body as a whole. Claimant appealed the decision to the full Commission concerning the unauthorized change of physicians, and expressly stated that he was not appealing any other issue.
In an opinion dated May 19,1983, the full Commission retroactively approved the claimant’s unauthorized change of physicians and remanded the matter to the administrative law judge for a redetermination of the issues of permanent partial disability and rehabilitative services.
For reversal, respondents contend, first, that the Commission erred in retroactively approving the claimant’s unauthorized change of physician. Respondents also contend that the Commission erred in reviewing decisions of the law judge relating to rehabilitative services and disability, issues not included in the claimant’s appeal to the Commission.
We must reverse the decision of the Commission relating to authorization for change of physicians and affirm the action of the Commission relating to the hearing of issues not appealed.
While our courts have had numerous opportunities to interpret the change of physicians provision contained in the Arkansas Workers’ Compensation Act, this is the first instance for this court to interpret the change of physicians provision, Ark. Stat. Ann. § 81-1311 (Supp. 1983), as amended by Act 290 of 1981.
Act 290 of 1981 was approved on March 3, 1981, and contains an emergency clause which provides that the provision of the Act would be effective after the date of its passage and approval. Accordingly, the 1981 amendment was in effect at the time of claimant’s injury and is the applicable statute in this case.
The Commission based its decision on the case of Caldwell v. Vestal, 237 Ark. 142, 371 S.W.2d 836 (1963). In Caldwell, surgery was performed by an unauthorized physician and the Commission refused to charge the employer with the expenses of the operation. The Arkansas Supreme Court found that the surgery was necessary and was successful, and reversed the decision of the Commission. Ark. Stat. Ann. § 81-1311, supra, at that time, required an employer to provide prompt medical and surgical services as might be necessary for an injured employee during a period of six months after the injury and for such additional time as the Commission might require. That provision is unchanged in the present law, except that the six-month period limitation was deleted by a 1975 amendment.
In ruling that the Commission should have retroactively approved a change of physicians for Caldwell, the court stated:
The appellees also rely heavily upon this sentence in our compensation act: ‘The Commission may order a change of physicians at the expense of the employer when, in its discretion, such change is deemed neces sary or desirable.’ Ark. Stat. Ann. § 81-1311 (Repl. 1960). We believe that this provision was inserted in the statute to anticipate any possible doubt about the power of the commission to order a change of physicians. It should not be regarded as establishing an exclusive method of procedure, for, as a practical matter, an injured employee ordinarily has no lawyer and is not in a position to apply to the commission for a change of physicians. To construe the statute as narrowly as the appellees would have us do would convert this provision from a remedial measure designed to help the workman into a punitive measure designed to hurt him.
Act 290 of 1981 amended Ark. Stat. Ann. § 81-1311 to provide, in pertinent parts, as follows:
If the employer selects a physician, the claimant may petition the Commission one time only for a change of physician, and if the Commission approves the change, with or without a hearing, the Commission shall determine the second physician and shall not be bound by recommendations of claimant or respondent. ... Treatment or services furnished or prescribed by any physician other than the ones selected according to the foregoing, except emergency treatment, shall be at the claimant’s expense. After being notified of an injury, the employer or insurance carrier shall deliver to the employee, in person or by certified or registered mail, return receipt requested, copy of a notice, approved or prescribed by the Commission, which explains the employee’s rights and responsibilities concerning change of physician. If after notice of injury the employee is not furnished a copy of the aforesaid notice, the change of physician rules do not apply. Any unauthorized medical expense incurred after the employee has received a copy of the aforesaid notice shall not be the responsibility of the employer.
Since the Caldwell decision, the change of physician provisions in Ark. Stat. Ann. § 81-1311 have been significantly changed by legislative amendment on two occa sions. While preserving the grant of discretionary power to the Commission, by Act 253 of 1979, the Legislature added the requirement that an injured employee be provided with a copy of Section 11 of the Workers’ Compensation Act, Ark. Stat. Ann. § 81-1311, and a copy of Commission Rule 21, enacted in 1963, which together outlined the conditions under which a claimant would be entitled to a change of physicians. The 1979 amendment also required the claimant to file a petition with the Commission requesting a change of physicians.
This court has refused to approve an unauthorized change of physicians under Ark. Stat. Ann. § 81-1311 as amended in 1979, when the claimant has failed to comply with Rule 21. Markham v. K-Mart Corporation, 4 Ark. App. 310, 630 S.W.2d 550 (1982). Deviations from the procedures were permitted under narrow circumstances. Commission Rule 23 allows the Commission the discretion to deviate from a Commission rule when compliance is determined to be impossible or impracticable. Accordingly, when the conditions of Rule 23 had been met, this court on occasion excused noncompliance with Rule 21 and approved a change of physicians. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
Act 290 of 1981 deleted the provision in § 81-1311 giving the Commission discretion to order a change of physicians when it was deemed necessary or desirable, and the statute set out a detailed procedure to be followed when an employee desires a change of physicians. Because the latter provision and Rule 21 were in conflict, Rule 21 was effectively repealed. Under the present law, the Commission no longer has the broad discretion to retroactively approve change of physicians.
The evidence indicates that the respondent fully complied with § 81-1311, as amended by Act 290 of 1981, by providing the claimant with medical care immediately following his injury and by sending him Commission form A-29, which sets out the requirements for a change of physician. The evidence also indicates that there was no medical emergency situation, inasmuch as Dr. Lester initially treated the claimant conservatively and did not perform the myelogram and surgery until some three months after he first examined the claimant. At no time prior to the hearing on July 29, 1982, did the claimant request that the Commission approve a change of physicians. Ark. Stat. Ann. § 81-1311, as amended, clearly provides that treatment or services furnished by any physician other than the one selected according to the outlined procedures, except emergency treatment, shall be at the claimant’s expense. The claimant has simply failed to comply with the clear intent of the statute, and the expense of Dr. Lester’s services is not the responsibility of the respondent.
The respondent’s second point for reversal is that the Commission erred in reviewing the decision of the administrative law judge relating to rehabilitative services and permanent partial disability because the claimant had expressly waived a review of those issues in his notice of appeal. The respondent bases this argument on Commission Rule 25 which relates to the scope of review on appeal to the Commission. Rule 25 provides as follows:
(a) Parties appealing or cross-appealing to Full Commission from an order or award of an Administrative Law Judge or a single Commissioner shall specify in the notice of appeal or cross-appeal all issues to be presented.
(b) All legal and factual issues should be developed at the hearing before the Administrative Law Judge or single commissioner. The Commission may refuse to consider issues not raised below.
Rule 25 does not preclude the Commission from reviewing issues not appealed from or not raised at the administrative law judge level if it so chooses. There is no indication that the Commission has failed to apply Rule 25 impartially, or that this respondent has been prejudiced. The respondent registered no objection to the Commission’s consideration of the issues of rehabilitation and permanent partial disability, and the Commission expressed no opinion on the merits of the claimant’s position. The administra tive law j udge was merely requested to determine if claimant was entitled to rehabilitative benefits and to take wage loss factors and physical impairment into consideration in redetermining claimant’s award for permanent partial disability.
Affirmed in part and reversed in part.
Mayfield, C.J., concurs.
Corbin, J., agrees. | [
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Andree Layton Roaf, Judge.
This appeal arises from post-divorce efforts by appellant Lisa Hill DeChaine to collect an unpaid child-support arrearages judgment from appellee Samuel Hill after their minor child reached the age of majority. The sole issue on appeal is one of statutory interpretation — whether subsections (a) and (c) of Ark. Code Ann. § 9-14-235 (2002) are mutually exclusive so that the prior use of subsection (a) precludes the use of other collection methods authorized by subsection (c). The trial court ruled that the two sections were mutually exclusive and prohibited appellant from collecting the child-support arrearages by any means other than collection of a $100 monthly payment previously ordered pursuant to subsection (a). Because we hold that subsections (a) and (c) are not mutually exclusive, we reverse and remand.
The parties were divorced in September 1986, with appel-lantbeing awarded custody of the parties’ minor child and appellee was ordered to pay child support of $-28 per week. In September 1992, appellee was found to be in arrears for child support, and appellant was granted judgment in the sum of $11,563.21, representing child support, interest, and attorney’s fees and costs. In October 1993, the parties jointly petitioned the trial court to modify the divorce decree to provide for appellee to have custody of the minor child during the school year and for appellant to have custody of the child during the summer months. An order was entered on October 25, 1993, modifying the decree as sought and providing that neither party would pay the other party child support and that appellee would pay $100 per month on any accrued child-support arrearages. The order did not determine the amount of any arrearages. The parties’ child reached the age of majority on February 16, 2002.
On May 3, 2002, appellant filed a petition seeking to hold appellee in contempt for nonpayment of child support and a judgment for the unpaid sums. A show-cause hearing was held on June 11, 2002, and both appellee and his attorney failed to appear. The trial court found that appellee was in willful contempt and that, after credit for payments made, appellee owed appellant $21,184.86 in unpaid child support and interest from the 1992 order. On July 3, 2002, appellee filed an Arkansas Rule of Civil Procedure 60(a) motion to set aside the June 18, 2002, judgment, alleging that appellee’s counsel failed to properly docket the hearing date. After a hearing, the trial court entered an order on September 3, 2002, modifying the June 18 order by finding that appellee was not in willful contempt. The trial court left unchanged the finding that appellee owed arrearages of $21,184.86, and appellee was ordered to pay $100 per month to satisfy the arrearages.
On September 11, 2002, appellant served appellee with post-judgment interrogatories and requests for production of documents seeking information about appellee’s financial holdings as well as his three most recent income-tax returns. Appellee responded by objecting to each interrogatory or request for production by stating that “[appellee] objects to this interrogatory. The Court has previously ruled that the arrearages are to be paid by [appellee] at $100 per month and [appellant] did not appeal the Court’s order. Furthermore, [appellant] has already filed a petition for contempt to enforce such order.” Appellant filed a motion to compel discovery on October 23, 2002.
At the hearing on the motion to compel, the parties argued the applicability of section 9-14-235(c). Appellant argued that the statute was applicable, and appellant could pursue other remedies, while appellee argued that it did not apply because appellant chose to collect the arrearages through contempt proceedings. The trial court stated that it was his intention that the $100-per-month payment would be the only method of satisfying the arrearages. The trial court granted the motion to compel discovery, requiring appellee to answer the post-judgment interrogatories and requests for production by December 13, 2002. The trial court also ordered appellant not to take other steps to collect on the judgment until after receipt of the discovery answers. The trial court provided that, if appellant was not satisfied with the discovery, she could file a petition seeking to collect the arrearages through other means.
Appellant filed such a petition, alleging that she should be allowed to use sections 9-14-230, 9-14-231, 9-14-233 and 9-14-235 to collect the judgment and that, if she were not allowed to do so, her ability to collect the arrearages would be prejudiced. At the hearing, appellee testified that he was a self-employed painter and the sole support for his wife and son. He stated that his adjusted gross income from 1999 was $12,807; from 2000, it was $9,193; and from 2001, it was $8,621. He stated that his affidavit of financial means listed expenses of $4,796.25 per month and annual income of $8,621 in 2001. He testified that, in 2001, he took out -a loan from Arkansas National Bank in the amount of $180,000 to build a house and that his house payment is approximately $1,100 per month. Appellee testified that his wife receives $20,000 per year from a $1,000,000 trust fund from her grandmother but that the grandmother was not obligated to give the funds every year and that this money is used to make the house payments and to pay other expenses. Appellee stated that he could afford to pay only $100 per month on the child-support arrearages. He admitted that he had other assets that could be sold to pay off the arrearages. Appellee stated that he could not make his current monthly payments. Appellee testified that the land on which his house is situated is worth $45,000 and that nothing is owed on the land.
The trial court denied appellant’s motion from the bench, repeating its statement from the December 3 hearing that the $100 per month was intended to be the only means of satisfying the judgment. The trial court stated that it appeared that subsections (a) and (c) of Ark. Code Ann. § 9-14-235 are contradictory. The trial court relied on Office of Child Support Enforcement v. Tyra, 71 Ark. App. 330, 29 S.W.3d 780 (2000), as the only interpretation of section 9-14-235 and stated that Tyra held that it was the trial court’s discretion to determine how the arrearages are paid. The trial court also noted that appellant was in a financially embarrassed position and was a candidate for bankruptcy. In addition, the trial court stated its belief that, when appellant filed her contempt action on September 23, 2002, she chose her remedy and was prevented from seeking satisfaction in any other manner. This appeal followed.
Appellant argues one point on appeal ■— that the trial court erred in prohibiting her from collecting a judgment for child-support arrearages in the same manner as provided for the collection of other judgments.
The standards governing our review of a traditional equity case are well established and did not change as a result of the enactment of Amendment 80. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). Although we review equity cases de novo on the record, we do not reverse unless we determine that the trial court’s findings were clearly erroneous. Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). A trial court’s finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). In reviewing'a trial court’s findings, we defer to the trial court’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). However, we do not defer to a trial court’s conclusion on a question of law. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996). If the trial court erroneously applied the law and the appellant suffered prejudice as a result, we will reverse the trial court’s erroneous ruling on the legal issue. Id.
This case involves the interplay between two subsections of the same statute, section 9-14-235, which provides in part:
(a) If a child support an-earage or judgment exists at the time when all children entitled to support reach majority, . . . the obligor shall continue to pay an amount equal to the court-ordered child support, or an amount to be determined by a court based on the application of guidelines for child support under the family support chart, until such time as the child support arrearage or judgment has been satisfied.
(c) Enforcement through income withholding, intercept of unemployment benefits or workers’ compensation benefits, income tax intercept, additional payments ordered to be paid on the child support arrearage or judgment, contempt proceedings, or any other means of collection shall be available for the collection of a child support arrearage or judgment until such is satisfied.
The trial court relied on this court’s decision in Office of Child Support Enforcement v. Tyra, supra, for its conclusion that, once the trial court ordered appellee to satisfy the arrearages by paying $100 per month, Ark. Code Ann. § 9-14-235(a) precluded appellant from utilizing other methods of collection. This reliance is misplaced because Tyra was not a case in which other methods of collecting unpaid support were at issue. Rather, the issue was whether section 9-14-235(a) authorized the trial court to allow the obligor to satisfy the arrearages by paying an amount less than the previously ordered support. This court held that the trial court “is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case, and this court will not disturb the [trial court’s] decision to do so absent an abuse of discretion.” Tyra, 71 Ark. App. at 335, 29 S.W.3d at 783 (quoting Lovelace v. Office of Child Support Enfcm’t, 59 Ark. App. 235, 955 S.W.2d 915 (1997)). Neither Tyra nor Lovelace discussed section 9-14-235(c).
Instead, we believe that this case is controlled by Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978). In that case, the mother obtained a judgment for child-support arrearages in the amount of $3,096. The trial court ordered that the current support and arrearages should be paid at a rate of $5 a month “and that execution was to be held in abeyance unless [the father] failed to make prompt payments each month.” Id. at 59, 568 S.W.2d at 504. The Sharum court concluded that the trial court erroneously held execution on the judgment in abeyance. The supreme court characterized a judgment for past-due child-support payments as being like any other judgment, whether at law or equity. Id. likening garnishment after a judgment to a form of execution, the court applied the general garnishment statutes to a final judgment for arrearage, concluding that:
A court may not restrict the right of one parent to collect a judgment against the other for arrearages in child support payments by legal process; it may, however, if changed circumstances have rendered the payments inequitable, in its discretion, decline to enforce, by contempt proceedings, the payment of a greater sum than the circumstances warrant.
Id. at 62, 568 S.W.2d at 506 (citations omitted).
We realize that Sharum was decided before the enactment of Act 383 of 1989, which contained what are now sections 9-14-234 and 9-14-235. However, the supreme court followed Sharum in Stewart v. Norment, 328 Ark. 133, 941 S.W.2d 419 (1997), decided after Act 383. The Stewart court mentioned the fact that Sharum did not involve the remedies provided during the 1980s, such as income withholding, but did not find that fact distinguishing. Similarly to what the trial court did in the present case, the trial court in Stewart stated that “it was the Court’s intention that the additional award of $20.00 every two weeks to be applied to the child support arrearage would be the sole and exclusive method for the payment of the arrearage.” Id. at 135, 941 S.W.2d at 420. The supreme court rejected an argument similar to appellee’s argument in the present case as follows:
The General Assembly has provided that an order for child-support arrearages is a final judgment subject to garnishment or execution until the order is modified or otherwise set aside. The fact that an order also provides for income withholding to satisfy accrued support arrearages is irrelevant in determining whether garnishment provides a viable alternative method for collecting the arrearage. This conclusion is supported by Ark. Code Ann. § 9-14-202 (Repl. 1993), which states that the remedies provided in the child-support enforcement subchapter “shall not be exclusive of other remedies presently existing,” and by Ark. Code Ann. § 9-14-218(a)(l)(B) (Supp. 1995), which expressly provides that the use of income withholding in orders providing for child support “does not constitute an election of remedies and does not preclude the use of other enforcement remedies.”
Id. at 136, 941 S.W.2d at 420.
Sharum and Ark. Code Ann. §§ 9-14-234 and 9-14-235(a) and (c) are consistent with each other. Section 9-14-234(b) codifies the rule in Sharum that child support becomes a judgment when due and is subject to execution or garnishment. Sharum also provides that the trial court does have some discretion in setting the payments on the arrearage, as does section 9-14-235(a). Section 9-14-235 (c) and Sharum both provide that a parent who is owed child-support arrearages may utilize other enforcement methods to collect the arrearages. This conclusion is supported by Ark. Code Ann. § 9-14-202 (Repl. 2002), which states that the remedies provided in the child-support enforcement subchapter “shall not be exclusive of other remedies presently existing.”
' Reversed and remanded.
Pittman and Robbins, JJ., agree.
Appellant recognizes the trial court’s discretion in setting the amount of monthly payments and does not challenge the trial court’s setting the monthly payment at $100-per-month. However, the supreme court in Sharum noted that the $5-per-month payment in that case would not even satisfy the interest on the $3,096 judgment. In the present case, the $100-per-month payment will likewise not cover the interest on the arrearages. | [
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L. GRIFFEN, Judge.
In this case, a Union County jury held appellant hable for the wrongful cutting of appellee’s timber and awarded appellee $27,929 in damages. That amount was trebled by the circuit judge for a total award of $83,787. Appellant seeks a new trial on the grounds that the verdict is excessive and that the trial judge committed error in certain evidentiary rulings and damage instructions. We find no error and affirm.
Appellee is the owner of approximately twenty-one acres of timber land in Union County. Directly to the east lies a forty-two-acre tract owned by Robert Charles. In November 1998, Hill Brothers Logging acquired the right to remove timber from the Charles property and contacted appellant to mark the boundaries of the property. Bob Hanry, an employee of appellant, undertook the task and, in the process, mistakenly included almost all of appellee’s timber in the area to be cut. Hill Brothers had cut approximately 10.75 acres of appellee’s timber when appellee, by chance, noticed the wrongful cutting. He contacted Hanry, who admitted that a mistake had been made and conceded that appellee was due payment for his timber. The parties could not agree on the amount owed, however. Six appraisals of the timber’s value were prepared, three by appellee’s experts, two by appellant’s experts, and one by Bob Hanry. The appraisal amounts ranged from $10,362.58 to $25,679.
The parties’ disagreement over the value of the timber was never resolved and, on August 12, 1999, appellee sued appellant for actual and treble damages. The case went to trial, and the jury awarded appellee $25,679 as the fair market value of the timber. Damages for road repair and replanting were stipulated as $1,500 and $750 respectively. The jury was also given the following interrogatory: “Do you find from a preponderance of the evidence that Auger Timber Company, Inc., willfully and intentionally cut timber belonging to Stan Jiles with the intent to deprive him of his property?” Based on the jury’s answer of “yes” to the interrogatory, the trial judge trebled the damage award and entered judgment accordingly. Appellant asked for a new trial, but its request was denied. This appeal followed.
Appellant’s first argument is that the trial judge erred in excluding the testimony of an expert witness, Mr. Kenneth Rock-ett. Rockett was one of several trial witnesses who appraised the value of the wrongfully cut timber. Prior to trial, he testified in a deposition that “I am of the opinion that this was an accident, that they [Auger] weren’t trying to steal Qiles’s] trees.” Appellee filed a motion in limine to exclude that opinion on various grounds, including that Rockett was not qualified to testify regarding the state of mind of appellant’s employees, that his opinion went to the ultimate issue in the case, and that it invaded the province of the jury. The trial judge granted the motion, although he did not state his reason therefor.
Whether a witness may give expert testimony rests largely within the discretion of the trial judge. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). A trial judge’s decision regarding admissibility will not be reversed absent an abuse of discretion. Id. On appeal, the burdensome task of demonstrating that the trial judge has abused his discretion is on the appellant. Id.
The test for admissibility of expert testimony under Rule 702 of the Arkansas Rules of Evidence is whether specialized knowledge will aid the trier of fact in understanding the evidence or in determining a fact in issue. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). Appellant argues that, given Rockett’s observation of the property and his experience as a forester, his opinion would have been helpful to the jury in resolving the question of whether appellant’s wrongful cutting was intentional or the result of a mistake. We disagree. An expert’s opinion is generally not considered helpful for purposes of Rule 702 unless the opinion is based on information that is beyond the experience and understanding of the average juror. In Williams v. Ingram, supra, a wrongful-death case involving a boating accident, the supreme court held that a marine safety expert’s testimony regarding the dangerous nature of currents on the Arkansas River was properly excluded because there was nothing to indicate that the expert’s knowledge on that point was so specialized that it was beyond the ability of the trier of fact to understand and draw its own conclusions. In Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), a murder conviction was reversed because a crime-scene-investigation expert testified that the victim had died in appellant’s home. The supreme court held that it could find no scientific basis for the opinion that was beyond the comprehension of the jury. In Higgs v. Hodges, 16 Ark. App. 146, 697 S.W.2d 943 (1985), a state trooper who investigated a car accident testified that appellant had been driving too fast. We held that the testimony should have been declared inadmissible because, even though the trooper had the expertise to make such a determination, the jury, given the same facts, could have made the determination as well as an expert.
In the case at bar, the jury heard Bob Hanry describe the manner in which the wrongful cutting came about. When Lawrence Hill asked Hanry to put a fine around the Charles property, Hanry went to the site and located what he thought was the northwest corner of the Charles tract. He made no survey nor took any measurements because he felt that, due to his familiarity with the area, he would have no trouble finding the corner on his own. He found a corner, but it was the northwest corner of appellee’s property. From that corner, Hanry began walking east, then walked around a perimeter without measuring any distances, even though he had a tape measure available for use. By the time he completed his task he had marked, in addition to the Charles property, almost all of appellee’s property. Hanry made this twenty-one-acre mistake despite the fact that appellee’s four corners were marked, the eastern border that he shared with Charles was flagged, and his tract was primarily pine in contrast to Charles’s hardwood. In addition to hearing Hanry’s testimony, the jurors viewed maps of the area and photographs of the site. Given the information that was in the hands of the jurors, they were qualified to make the determination of whether appellant acted intentionally without the aid of expert opinion. We cannot say therefore that the trial judge abused his discretion in excluding Rockett’s testimony. Although we are unsure of the reason for the exclusion, we may affirm a circuit judge’s evidentiary ruling if he reaches the right result. See, e.g., Thomas v. State, 62 Ark. App. 168, 973 S.W.2d 1 (1998).
The next issue concerns the trial court’s exclusion, for lack of relevance, of the $20,500 appellee paid in 1996 for the subject property and another tract. Appellant argued below that the price was relevant because damages for wrongfully cut timber should be measured by the difference in the fair market value of the land before and after the timber was cut. In its motion for a new trial, it argued further that the price paid for the land reflected on the legitimacy of appellee seeking damages for timber in excess of what he actually paid for the property as a whole.
We will not reverse a trial court’s ruling on relevance absent an abuse of discretion. See Dalton v. City of Russellville, 290 Ark. 603, 720 S.W.2d 918 (1986). The measure of damages applied by the jury in this case was the fair market value of the timber, not the difference in before-and-after value of the land, although the use of either method has been approved. See Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979). To assist them in assessing damages on this basis, the jurors were provided with a number of appraisals placing a value on the timber. Appellant has made no showing that the price paid for the land itself almost two years prior to the wrongful cutting was material to the fair market value of the timber in 1998. We therefore find no abuse of discretion in the exclusion of this evidence.
Next, we consider appellant’s argument regarding the manner in which the trial court instructed the jury on damages. The jury was charged as follows:
If an interrogatory requires you to assess the damage to timber and lands belonging to Stan Jiles, you must then fix the amount of money which will reasonably and fairly compensate him for the following elements of damage:
First, the fair market value of his timber immediately before the occurrence;
Second, the reasonable costs of replanting the trees; and
Third, the reasonable costs of repairing the road on the property.
This instruction permitted the jurors to assess damages by awarding the fair market value of the timber wrongfully cut. Appellant argues that the trial court should have instructed the jurors so that they could alternatively have awarded damages based upon the difference in the value of appellee’s land before and after the cutting. In particular, appellant claims that the trial judge should have instructed the jury with AMI Civ. 4th 2223. That instruction is titled, “MEASURE OF DAMAGES — DAMAGE TO REAL PROPERTY — PERMANENT.” It provides that damages are measured by the difference in the fair market value of the land and its improvements immediately before and immediately after the occurrence.
The record reflects that appellant’s objection to jury instructions at trial was as follows:
I object to the instructions as to the damages as they are not — they do not contain the amount of before and after value of the property and I object to the entirety of the instructions as they do not have that instruction with them.
The objection, in addition to being somewhat imprecise and unclear, is not accompanied by a proffer of AMI 2223 or a similar instruction, nor any mention of same. When an appellant argues on appeal that the trial judge failed to give an instruction on a particular issue, he must show that he submitted a proposed instruction on the issue. See Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). Failure to make such a proffer means that the appellant cannot complain on appeal of the trial court’s failure to give the instruction. See Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995); Ark. R. Civ. P. 51. Appellant contends in its brief that AMI 2223 was proffered, but the proffer is not contained in the record. An appellant must include the proffered instruction in the record if we are to address the trial court’s failure to give an instruction. See Fisher v. Valeo Farms, 328 Ark. 741, 945 S.W.2d 369 (1997); Wade v. Grace, supra. Due to the absence of a proffer, we cannot consider reversal on this point.
Appellant’s final argument is that the compensatory damages awarded by the jury were excessive. We note that appellant does not argue that the treble-damage award is unsupported by substantial evidence. The only argument regarding the amount of damages is that the award of $25,679, for fair market value of the timber, was excessive.
In addressing an argument that a verdict is excessive, we determine whether the verdict is so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the trier of fact. Smith v. Galaz, 330 Ark. 222, 953 S.W.2d 576 (1997). Here, the jury awarded damages based on the $25,679 appraisal figure testified to by expert witness Pete Prutzman. Prutzman was originally hired as an appraiser by appellant, but he was subpoenaed to testify in favor of appellee. His qualifications and methodology are not questioned by appellant. Further, even though his appraisal was the highest among the six offered at trial, it was in the same range as three others, which valued the timber at $25,000.00, $21,847.49, and $20,420.00. There is no showing, therefore, that the jurors’ award was based on anything other than their choice of which of several very competent experts to believe. Under these circumstances, we cannot say the verdict shocks the conscience of the court or is the result of passion or prejudice.
Because we find no error on any of the above points, we hold that the trial judge did not err in refusing to grant appellant a new trial.
Affirmed.
BIRD, J., and HAYS, S.J., agree.
The imposition of treble damages pursuant to Ark. Code Ann. § 18-60-102(a) (1987) requires a showing of intentional wrongdoing, though such intent may be inferred from the carelessness, recklessness, or negligence of the offending party. See Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996). | [
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Terry Crabtree, Judge.
The appellants, Cross County School District, the school’s principal, superintendent, and school board members, appeal from an order of the Cross County Chancery Court in which the court reversed the school board’s decision to expel Hannah Spencer Moran, the daughter of Naomi Spencer and Roger Spencer. We reverse.
Hannah Spencer was in the eighth grade of the Cross County School District when the facts of this case arose. Hannah and another student, Leslie Headley, had been close friends, but the friendship had ended. On Monday, February 21, 2000, a teacher observed Hannah, near the cafeteria, loudly and angrily shouting Leslie’s name while approaching Leslie with her fists tightly clinched and her arms extended to her sides. The teacher intervened and separated the two girls. No violence occurred. Subsequent to this altercation, a student told the principal, Mr. David Hopkins, that she had something he needed to see. Principal Hopkins was then given a handwritten, two-page note, addressed to a student named Calvin. The note contained considerable profanity and threats, including death threats against Leslie. The note was signed by Hannah. The note outlined Hannah’s plans to fight with Leslie at lunch on Monday. In fact, the incident took place on Monday at lunch. Leslie had not seen the note.
Principal Hopkins took Hannah into his office, asked her about the note, and she admitted writing the note. Principal Hopkins then suspended Hannah and recommended to the school board that she be expelled for the remainder of the 1999-2000 school year. A hearing was held before the school board on March 2, 2000, in which the school board was presented with the note and accepted the expulsion recommendation. On March 7, 2000, Hannah through her parents, Naomi Spencer and Roger Spencer, filed a Petition for Temporary Restraining Order to have appellee reinstated to school. A hearing was held on March 8, 2000, in which the court granted the petition. A trial on the merits was held on April 6, 2000. On June 27, 2000, the court filed its opinion making the injunction permanent. It is from this order that appellants bring this appeal.
We agree with appellants’ contention that the trial court ignored its proper role in reviewing the school board’s decision and substituted its judgment for that of the board. Such an act is prohibited by law and is a flagrant abuse of discretion. Wynne Pub. Schs. v. Lockhart, 72 Ark. App. 24, 32 S.W.3d 47 (2000). Arkansas Code Annotated § 6-18-506(c) (Repl. 1999) requires school boards to hold pupils strictly accountable for disorderly conduct in school and on the school grounds. There is a general policy against intervention by the courts in matters left to school authorities. Henderson State University v. Spadoni, 41 Ark. App. 33, 848 S.W.2d 951 (1993). “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint . . . By and large, public education in our Nation is committed to the control of state and local authorities.” Goss v. Lopez, 419 U.S. 565, 577-78 (1975) (citing Epperson v. Arkansas, 393 U.S. 97 (1968)). The courts have been reluctant to interfere with the authority of local school boards to handle local problems. Fortman v. Texarkana Sch. Dist. No. 7, 257 Ark. 130, 514 S.W.2d 720 (1974). A chancery court has no power to interfere with school district boards in the exercise of their discretion when directing the operation of the schools unless the boards clearly abuse their discretion. Spadoni, supra. The burden is upon those charging such an abuse to prove it by clear and convincing evidence. Springdale Bd. of Educ. v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987).
In this case, Hannah was expelled from school pursuant to Rule 23 of the Cross County High School Handbook, entitled “Threatening Another Student,” which states “A student shall not threaten another student.” Rule 23 then cites Ark. Code Ann. § 5-13-301, the statute covering terroristic threatening. The trial court found that there was no indication that Hannah “set in motion any chain of events reasonably calculated to communicate the contents of the note beyond the person to whom it was addressed, i.e., Calvin.” Also, the court found that it cannot be held that Hannah intended to terrorize the other student referenced in the letter; i.e., Leslie. Based on this, the court reversed the school board’s decision to expel Hannah. Appellants point out that although Rule 23 contains a statutory reference to the crime of terroristic threatening, the text of the statue is not set out in the policy.
As stated earlier, our supreme court, in acknowledging a school board’s power to expel a student, has held it does not have the power to substitute its judgment for that of such a board, and will do so only when the court determines the board’s judgment was arbitrary, capricious, or contrary to law. Springdale Bd. of Educ. v. Bowman, supra. From our careful examination of the record before us, we cannot say that the Board abused its discretion or acted arbitrarily, capriciously, or in any way contrary to law. The Board found that Rule 23 is not limited to threats that are communicated to the target of the threat. It is conclusive that the letter written by Hannah contained threatening language toward Leslie. As such, we hold that the appellants acted reasonably in enforcing its policy against a student threatening another student under Rule 23. The trial court improperly substituted its own judgment for that of the Board. Accordingly, we reverse the trial court’s decision, and reinstate the Board’s decision.
Stroud, C.J., Pittman, Jennings, and Robbins, JJ., agree.
Griffen, J., concurs. | [
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John B. Robbins, Judge.
James Dunham appeals the order of the Washington County Circuit Court that changed custody of his two children, Jacob and Lexie, from a joint-custody arrangement between him and his ex-wife Kathleen to the children’s maternal grandparents, appellees Michael and Stephanie Doyle. We reverse and remand.
Kathleen and James divorced pursuant to an order filed on September 7, 2000, which granted joint custody to the parents. James was ordered to have custody of the children during the week, and Kathleen during the weekend, Friday evening until Sunday evening, though required to be supervised by her parents. All parties resided in Fayetteville at the time; Kathleen resided with her parents, and James resided in the marital home, which was to be sold or auctioned under the terms of the divorce decree unless the parties could agree otherwise. At the time of the divorce, their son Jacob was attending kindergarten in Fayetteville, and their daughter Lexie, age two, was attending daycare at My Other Mother in Fayetteville. Jacob was transported to daycare after school was dismissed.
In October 2000, James remarried and moved to a two-bedroom apartment in Rogers with his new wife Desa, her two sons Remington and Magnum, and his two children Jacob and Lexie. In November 2000, Kathleen petitioned the court to change from joint custody to her full custody or, alternatively, to change the custody arrangement so that she could have the children during the week so as to move their son back to his original school. Kathleen worked as a medical assistant in various locations as assigned to her in northwest Arkansas. Kathleen lived with her parents in Fayetteville when the children were with her. Kathleen stayed with her boyfriend Jerry in Rogers when the children were not with her. Pursuant to the divorce decree, Kathleen was under an obligation to prevent any contact between her children and her boyfriend Jerry.
The maternal grandparents petitioned in December 2000 to intervene and to have the court appoint a guardian ad litem. The grandparents’ petition requested that they be granted temporary custody, citing the multiple changes since the divorce and focusing on the actions or inactions of James as they affected the children. After hearings on the matter, the trial judge found that there had been a material change of circumstances, that neither parent was fit to have custody, and that vesting custody in the maternal grandparents was in the best interest of the two children, then age seven and three. Each parent was given visitation, and Kathleen was required to move out of her parents’ home. The order was filed on August 22, 2001. Only James appeals, challenging the change-of-custody order on two bases: (1) that the circuit court clearly erred in finding that the children’s best interest would be met by removing them from their parents and placing them with their grandparents; and (2) that the trial court clearly erred because there is insufficient evidence to show that both parents were unfit. James does not challenge the finding that material changes in circumstances occurred.
The standard of review in child-custody appeals is well settled. We review the evidence de novo, but we will not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986). A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).
The substantive law on this topic is equally well settled. The law prefers a parent over a grandparent or other third person, unless the parent is proved to be incompetent or unfit. See, e.g., Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988); Jones v. Strauser, 266 Ark. 441, 585 S.W.2d 931 (1979); Payne v. Jones, 242 Ark. 686, 415 S.W.2d 57 (1967); Riley v. Vest, 235 Ark. 192, 357 S.W.2d 497 (1962). While there is a preference in custody cases to award a child to its biological parent, that preference is not absolute. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). Rather, of prime concern, and the controlling factor, is the best interest of the child. Id. The rights of parents are not proprietary and are subject to their related duty to care for and protect the child; the law secures their preferential rights only as long as they discharge their obligations. Id.; Jones v. Jones, 13 Ark. App. 102, 680 S.W.2d 118 (1984); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App.1980).
We limit our examination of the evidence to that which is most relevant to James inasmuch as Kathleen did not appeal the finding that she is unfit to have custody. The testimony at the hearings on this case revealed many undisputed facts. In line with the divorce decree, the children lived with their father James in the marital residence prior to and after the divorce, and they lived with their mother Kathleen and maternal grandparents on the weekends. However, while the parties all lived in Fayetteville, Kathleen had additional time with the children when mutually agreeable. Pursuant to the divorce decree, James was given the right to select the school that their children would attend. Also pursuant to the divorce decree, the marital residence was ordered to be sold, and it eventually went to public auction.
At the time of the divorce, and unbeknownst to the circuit judge, James was in a relationship with Desa, whom he met on the Internet in the spring of 2000 and married on October 19, 2000. Desa lived in an apartment in Rogers, and James moved himself and the children to Rogers on or about Sunday, October 29, 2000. This necessitated that the older child, Jacob, change schools. James notified Kathleen of this move in writing by hand-delivering a letter to her on that Sunday at the end of Kathleen’s weekend visitation. Jacob started school in Rogers the following Monday. The move, along with other alleged changes including lack of communication between them and inadequate basic care of the children in James’s custody, prompted Kathleen’s petition to change custody. The Doyles moved to intervene in December 2000, asking for temporary custody.
At the hearing on the petitions conducted on August 1, 2001, James explained that he and Desa decided that they should move as a family to Rogers inasmuch as Kathleen would not agree that James retain the marital home. The move necessitated that Jacob change schools, where he would attend with his stepbrother Remington, who was two grades ahead of Jacob. Neither Magnum nor Lexie were school age at that time, so they attended My Other Mother daycare at the facility in Rogers.
Around Thanksgiving 2000, James, Desa, and the children moved to a three-bedroom house on Ash Street in Rogers, leasing the property for one year. The house had a fenced back yard, equipped with a sandbox, swing set, and clubhouse. By the summer of 2001, James and Desa had a son, Colt. James testified that Jacob finished the school year 2000-2001 in Rogers where he had begun kindergarten in October, but that they planned to send Jacob and Remington to school in the district assigned to Ash Street beginning in the fall of 2001. James had not decided whether to move from Ash Street after the one-year lease expired, but he said that if they did, they would stay in the same school district as Ash Street.
Kathleen testified that her main concern was the frequency of injury and severity of illness of Jacob and Lexie while in James and Desa’s custody. Jacob suffered a sunburn on a weekend camping trip with James and Desa in the late summer 2000. In the months after the divorce, Jacob had at least two black eyes, though one occurred at daycare. In James and Desa’s backyard, Jacob had fallen from a tree and struck his head on a low limb, requiring four staples in his head. Lexie suffered a black eye when she and Jacob collided at play, and Lexie had also suffered a broken arm when she fell from a jungle gym in a city park while under James and Desa’s care.
James explained the circumstances of those injuries and the timing of his notice to Kathleen about those injuries. James stated that DHS had been notified by someone of those injuries, DHS investigated the complaints, and nothing else ever came of that investigation. James inferred that Kathleen was the person who reported suspected abuse to DHS.
Kathleen also expressed concern about her children changing to another doctor and going to another school, but she agreed that she had not been denied any of her court-ordered visitation due to the move. Kathleen had other complaints. For example, she testified that James was responsible for Jacob being tardy for school on numerous occasions, that he did not ensure that Jacob’s clothing or shoes fit, that he would send any uneaten food from one day’s packed lunch on the following day for Jacob to eat, that James was slow to take the children to the doctor when they were ill, and that James refused her attempts to care for the children when James was unavailable at work. Basically, Kathleen questioned James’s capability of caring for the children in a manner that she deemed best for them and thought she was the better suited parent with more time to attend to their needs.
James and Kathleen both testified that there had been occasional rearrangements with the joint-custody schedule to accommodate different family functions on each side. Both conceded that there was significant discord between them after the divorce and that they often communicated about the children solely by letter. James and Kathleen disagreed on basic issues such as how to handle Jacob’s lunch needs at school; basic discipline measures; types of extracurricular activities in which the children might participate; whether, when, and how to medicate the children; and whether each parent should get consent from the other regarding children’s haircuts. James maintained that the anger between them had subsided in the months leading up to the hearings and that some healing had occurred between them. James explained that he was only in court to defend himself, not to seek a change.
The maternal grandparents, appellees Doyle, testified that they supervised the visits between their daughter and their grandchildren and that Kathleen was a wonderful mother, devoted to their care and comfort. The Doyles agreed that they provided financial support to their daughter and would continue to do so. Mrs. Doyle testified that the reason they intervened was because of the frequency of injury and illness when James had the children, citing to rashes, sunburns, cuts, black eyes, bumps and bruises. Mrs. Doyle expressed great concern that James and Desa were unable to supervise, whereas Mrs. Doyle had no reservations about her daughter’s ability to care for her children. Mrs. Doyle said that if her daughter married her boyfriend Jerry, they possibly could move into the Doyle residence, but that was “a contingency plan” and just “talk” right now. Mrs. Doyle said that her main concern was to provide stability and safety for her grandchildren. She was concerned about changes in Jacob and Lexie after the birth of their half-brother Colt; Jacob expressed unusual aggression, and Lexie regressed to wanting to be more like a baby. Mrs. Doyle’s position was that she stood ready to take the children as their permanent guardian if necessary, though she did not agree that her daughter was unstable.
Mr. Doyle testified that the joint-custody situation had never worked. Mr. Doyle said that he and his wife thought they were finished raising children, but if it were necessary to protect the grandchildren, then that is what they would do for as long as it took. Mr. Doyle testified that if his daughter was awarded custody, or if he and his wife were awarded custody, then he would ensure that his house would remain the children’s home. He believed that the first school Jacob attended before he moved was one of the best in northwest Arkansas. Mr. Doyle was worried about Jacob’s mental health since he began exhibiting aggressive behavior, he was worried about Jacob’s low weight, Jacob’s extensive illnesses and injuries in James’s care, and his education. Mr. Doyle expressed concern that Lexie exhibited sexually inappropriate knowledge for her age. He offered to pay for counseling for the children, and even for the parents if needed.
Mr. Doyle frankly admitted that his daughter Kathleen was dysfunctional right after the divorce, but he said she had improved dramatically. Mr. Doyle said that he and his wife wanted to give the court an alternative if it determined that neither of the parents could be reliable. He said he was certain that he could follow any orders of the court to preserve the children’s relationship with their parents, but he said that his honest opinion was that James was a liar and a cheat who he would like to beat with a bull whip.
Jacob’s first kindergarten teacher testified that she recalled Jacob being tardy several times in the first nine weeks of school, that he was thin but not unusually so, that he sometimes had difficulty with ill-fitting shoes but that Kathleen remedied that situation, and that he was a fairly clean child. The teacher remembered more interaction with Kathleen than James, but she recalled James informing her that Jacob was moving on the Friday before he left. She said that the school’s policies did not prevent a parent from ensuring their kindergarten child made their way to the classroom in a timely fashion.
Tedra Spaw, the owner of My Other Mother daycare, testified that she had observed the children over time, primarily at the Rogers location. Ms. Spaw stated that the children appeared to be “well-adjusted, normal, every-day children” and were “clean and well-dressed.” Nothing about their physical appearance concerned Ms. Spaw, even considering Jacob’s weight. Ms. Spaw said she had no concerns about the well-being of the children since they had been at the Rogers facility, and she recognized her duty to report abuse to authorities. She recalled when Jacob blackened his eye at daycare and said that she gave an incident report to one of the parents. Ms. Spaw said that the children were happy to see their father and their step-mother when picked up, but she stated that their mother, who was initially very upset that the children had been moved to Rogers, was disruptive to the facility on more than one occasion.
Ms. Spaw remembered Mr. Doyle coming to the Rogers facility to pay the children’s delinquent Fayetteville daycare account, and she said Mr. Doyle called both parents “slime and unfit.” Ms. Spaw said that Desa’s sons Remington and Magnum were already attending care at My Other Mother in Rogers prior to Jacob and Lexie joining them there. Ms. Spaw said she would not call Desa’s sons particularly rambunctious. Ms. Spaw testified that, to be fair, both James and Kathleen were frustrated and angry after the divorce like most parents, but that James was better able to contain his anger in front of the children, and that they both improved with time.
The children’s current pediatrician in Rogers, Dr. Young-blood, testified that he was aware of the children’s illnesses and injuries, which he described as typical. He reviewed their illnesses, including strep and ear infections, a rash associated with strep, and lacerations. The doctor said that Jacob was in the 25th percentile in both height and weight for his age, which was normal. He concluded that “they’re both basically healthy children.” The only concern Dr. Youngblood expressed was that Jacob was reported to have some attention problems in school. In particular, Dr. Young-blood was advised of his teacher’s opinion that Jacob lacked focus in class and of reports that when Jacob was dropped off at school, he would wander the halls instead of go to class. However, Dr. Youngblood had not received all the reports to be filled out by various sources, so the evaluation on ADD was incomplete to date.
James and Desa’s next door neighbor, Max Cardin, testified on their behalf. James and Desa introduced themselves to Mr. Cardin before they moved into the rent house, and Mr. Cardin said that they seemed to be nice people. Mr. Cardin said that he had been in the neighborhood for many years, that he helped James put up a sturdy swing set, and that he observed a clubhouse and sandbox in the back yard for the children. Mr. Cardin observed the children playing out in the yard and saw nothing that concerned him.
The children’s attorney ad litem recommended that custody be placed with the maternal grandparents because they were the most stable force in the children’s lives. The ad litem was concerned about the illnesses and injuries suffered by the children in their father’s care. The ad litem was likewise concerned about the mother’s lack of financial and housing stability and her association with Jerry, who was ordered to have no contact with the children. The ad litem recommended alternating weekend visitation with each of the parents and assessment of child support as to the parents.
Each attorney presented argument to the trial court as to why their respective positions should be the ruling of the court. James requested that the petitions be denied and that joint custody remain; Kathleen requested that her petition for sole custody be granted; the Doyles requested that if Kathleen was not granted custody, then they wanted custody.
The trial judge ruled that there were material changes in circumstances, attributable to James, and stated that joint custody was not working. The order listed as material changes: (1) that James was already in a relationship with Desa pending divorce, which was not divulged to the court; (2) that James quickly remarried and moved Jacob out of his kindergarten class in Fayetteville; (3) that James moved the children into a two-bedroom apartment holding six residents; (4) that James failed to promptly notify Kathleen about the move, the injuries, and illnesses; (5) that Jacob was experiencing difficulty focusing in school, after James changed his school twice since divorce; and (6) that the children together suffered at least seven illnesses or injuries in James’s custody likely resulting from inadequate supervision.
The judge found that Kathleen was not fit, financially or in parental judgment. The judge found in the order that James was not fit as a parent because (1) James alienated the children from Kathleen and failed to give Kathleen her right of first refusal to care for the children when he was not available; -(2) James wrongly blamed Jacob for being tardy to class instead of escorting him to the classroom; and (3) James exhibited a lack of adequate parental supervision. Having found that “neither parent in this case have discharged their obligations as parents,” the judge found that the children’s best interest was served by granting custody to the grandparents because the Doyles were candid with the court, lived in a stable home and school district familiar to the children, and were financially and emotionally stable. The judge ordered alternating weekend visitation and alternating holiday visitation for the parents, removing any requirement of supervision with regard to Kathleen and lifting the no-contact order regarding Jerry. Kathleen was ordered to move out of her parents’ house, though her visitation was ordered to take place there for overnight visits, and Jerry could not stay overnight. The children were ordered to have therapy, and each parent was ordered to undergo an evaluation and to pay child support. James appeals.
James argues on appeal that the finding that he was unfit is clearly erroneous. After our de novo review of the evidence in this case, while deferring to the credibility determinations made at trial, we agree and hold that the trial judge clearly erred in finding that James was unfit as a parent. We do not address whether the trial court’s finding that Kathleen was an unfit parent is clearly erroneous as that finding was not appealed by her.
The trial court was correct in its assessment that the joint-custody arrangement was not working and that material changes in circumstances occurred. The evidence could support a finding that James failed to be the ideal parent to the children and failed to communicate with Kathleen at the level required by joint custody. Nevertheless, as between the Doyles and James, we reverse the divesting of custody from James because the evidence simply does not support a finding that James was an unfit parent.
The supreme court in Lloyd v. Butts, 343 Ark. 620, 624, 37 S.W.3d 603, 606 (2001), quoted with approval the following text from Holmes v. Coleman, 195 Ark. 196, 111 S.W.2d 474 (1937):
Courts are very reluctant to take from the natural parents the custody of their child, and will not do so unless the parents have manifested such indifference to its welfare as indicates a lack of intention to discharge the duties imposed by the laws of nature and of the state to their offspring suitable to their station in life. When, however, the natural parents so far fail to discharge these obligations as to manifest an abandonment of the child and the renunciation of their duties to it, it then becomes the policy of the law to induce some good man or woman to take the waif into the bosom of their home[.]
The language is strong, requiring the manifestation of indifference to the welfare of the child or abandonment. The law prefers a parent over a grandparent or other third person, unless the parent is proved to be incompetent or unfit. See, e.g., Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990). The preference is based on the child’s best interests. Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). The right of natural parents to the custody of their children as against others is one of the highest of natural rights, and the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against an unoffending parent. Payne v. Jones, 242 Ark. 686, 415 S.W.2d 57 (1967). The test as to custody between a natural parent and a third person has never been based solely upon who can do the most for the child. Rayburn v. Rayburn, 231 Ark. 745, 332 S.W.2d 230 (1960). James’s actions and inactions, though perhaps fraught with missteps, do not rise to the level of manifest indifference to the welfare of Jacob and Lexie. Moreover, we cannot ignore that Jacob and Lexie have a half-brother with whom they share a significant family relationship. In short, the circuit judge clearly erred.
Having reversed the finding that appellant is an unfit parent, we cannot return the parties to the original decree of joint custody because Kathleen was adjudged to be an unfit mother, a determination that she did not appeal. We reverse, with the result to vest custody in appellant. A remand is necessary because the trial judge is in a better position to determine what visitation the mother is now entitled, Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988), and to set an appropriate amount of support for her to pay.
Reversed and remanded.
Pittman and Roaf, JJ., agree.
James and Desa testified that the boys’ names were not associated with guns, but were rather names of television characters. | [
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John Mauzy Pittman, Judge.
Coulson Oil .Co., Inc., and Coulson Properties, LLC (“Coulson”), have taken an interlocutory appeal from the Saline County Circuit Court’s imposition of sanctions, including the striking of their answer, for lying in their responses to discovery propounded by appellees Christopher Tully and Michelle Tully. On appeal, the primary issue is whether, under the facts presented, the trial court abused its discretion in imposing these sanctions. We hold that the trial court did not abuse its discretion, and we affirm.
Procedural History
In August 2001, Mr. Tully was injured in an accident at a Sherwood convenience store leased by Coulson to Robert Baynes when his pickup truck dropped into a hole in the pavement caused by a broken metal cover for an underground gasoline tank. He and his wife filed this negligence action in April 2002, alleging that Coulson was negligent in maintaining its property. The Tullys propounded interrogatories to Coulson requesting information about maintenance and repairs of the tank cover that had caused the accident. In their responses filed August 20, 2002, and September 4, 2002, Coulson denied having any responsibility for the maintenance or repairs of the tank covers and stated that they were the responsibility of Robert Baynes. The August 20, 2002, responses stated in part:
INTERROGATORY NO, 6: Attached as Exhibit “A” is a photograph showing the metal cover, which caused Plaintiffs damages and injuries, in regards, please state:
a. The date the cover was broken, and how it was broken;
b. The name, address and telephone number of all persons with knowledge concerning how the cover was broken and/or repaired;
c. The name, address, phone number of the person or persons who discovered that the metal cover described in the Complaint was missing or broken;
d. The date and time the metal cover was replaced or repaired, and the name, address and home number of the person or persons making such repair; and
e. If there was an incident or accident report made.
RESPONSE: Coulson Oil Co. was not aware the metal cover was broken until this lawsuit was filed.
The September 4, 2002, responses included the following statements:
INTERROGATORY NO. 2: Please state the name, address and telephone number of the person(s) and/or entity which was responsible for maintaining the fuel tank covers at the location where this accident took place as of the date of the accident.
RESPONSE: Robert Baynes.
REQUEST FOR PRODUCTION NO. 1: Please produce and attach all documentation concerning maintenance and/or repair of the fuel tanks and fuel tank covers where this accident took place from two (2) years preceding the date of the accident to-date.
RESPONSE: Defendant does not have this information.
INTERROGATORY NO. 3: Please state the name, address and telephone number of the person(s) responsible for inspecting the fuel tank covers where this accident took place as of the date of this accident.
RESPONSE: Robert Baynes and/or his employees.
INTERROGATORY NO. 4: Please state whether any repairs were made to the fuel tanks, fuel tank covers and/or surrounding areas after the day of Plaintiffs accident.
RESPONSE: Defendant was not responsible for upkeep of the fuel tanks, fuel tank covers, or surrounding areas, therefore, this information is unknown to Defendant.
INTERROGATORY NO. 5: If your answer to the preceding Interrogatory was affirmative, please state the name, address and telephone number of each person(s) and/or entity which made any such repairs.
RESPONSE: See response to Interrogatory No. 4.
REQUEST FOR PRODUCTION NO. 2: Please produce and attach all documentation evidencing the repairs referenced in Interrogatory Number 5 & 6 above.
RESPONSE: Defendant is not in possession of this information, please see response to Interrogatory No. 4.
INTERROGATORY NO. 6: Does the Defendant contend that any person(s) or entity was responsible for maintaining the fuel tanks and/or fuel tank covers on the date of the accident, other than Defendant and its employees? If so, please provide the name, address, telephone number, and place of employment of any such person or entity.
RESPONSE: Yes, Robert Baynes.
The Tullys filed an amended complaint in September 2002 naming Mr. Baynes as a defendant. During a deposition taken of Mr. Baynes on January 15, 2003, the Tullys learned that Coulson had made repairs to the tank cover involved in this accident. The Tullys’ attorney immediately sent a letter to Coulson’s attorney requesting information about Coulson’s repairs to the property. A few days later, Coulson’s attorney sent a letter supplementing its earlier responses to discovery by listing additional witnesses with knowledge of Coulson’s repairs to the tank cover and copies of repair bills paid by Coulson. He stated:
I am writing to your recent inquiry as to the identity to [sic] certain individuals who may have knowledge of repairs made to the parking lot area after the August 8, 2001 accident. Please consider this letter as supplementation to Interrogatory Nos. 6 and 8 of the Interrogatories propounded to Coulson Oil Company, Inc.
INTERROGATORY NO. 6(b) — should be supplemented to show that there are individuals that have information concerning the repair of the “manway” area. To Defendant’s knowledge, the cover was not broken but a repair was made to the area. The individuals with the information concerning the repair include Mark Simpson, Larry McArthur, Francis Bright, and Dick Kohler of Coulson Oil Company and Cruzen Equipment Company, Inc., 9100 Interstate 30, Little Rock, Arkansas, (501) 374-1515.
INTERROGATORY NO. 6(d) — should be amended to reflect that Cruzen Equipment Company, Inc. performed the above stated repair some time after October 5,2001.
INTERROGATORY NO. 8 —■ should be supplemented to show that Mark Simpson, Larry McArthur, Francis Bright, Dick Kohler, representatives of Cruzen Equipment Company, Inc., John K.Jones ofjohn K.Jones & Associates Tax Service, 154222 Interstate 30, Benton, Arkansas, may be called to testify at the trial of this matter.These individuals will testify concerning the condition of the manway/ monitoring well prior to Plaintiff s accident and repairs made to the manway/ monitoring well following the accident. Cruzen Equipment Company, Inc. employees may testify as to the repairs made to the manway/monitoring well which were discovered following the Plaintiffs accident.
INTERROGATORY NO. 10 — Defendant may introduce various photographs taken of the subject area at various times. In addition, Defendant may introduce copies of work orders from Pollution Management, Inc. referencing installation of a verter route tank monitoring system in May of2001. (See attached work orders and invoice from Pollution Management, Inc.) Also see attached invoices from Cruzen Equipment Company, Inc. concerning repair work on the manway/monitoring well. In addition, Defendant reserves the right to introduce copies of Plaintiffs income tax returns filed prior to and following the accident, as well as copies of Plaintiffs medical records.
The Tullys filed a motion for sanctions against Coulson for having lied in their responses to discovery. In response, Coulson denied that it had lied and asserted that it had made diligent inquiry of the matters requested in discovery. At a hearing on the motion, the trial court found that Coulson had lied:
The Court: Well, the problem I have with that position ...is you put the parties submitting interrogatories in a position of having to assume that the responses are probably not truthful, and, therefore, you need to go find people who will reveal that they’re not truthful and take their deposition or ask them questions so that you can force the person to tell the truth, and while I understand what you’re saying, and I agree, I’m sure Mr. Nalley’s accurate, it’s no wrongdoing on your part, I think it’s a flagrant disregard for our whole system to allow a litigant to attempt to get away with that. If he hadn’t taken that deposition, they would have. They would have absolutely gotten away with telling a lie. As far as I’m concerned, they lied to the Court. They just flat out lied. There’s an unequivocal answer in there that says, it’s not our responsibility, absolutely unequivocal. There’s nothing to supplement that with. There’s nothing incomplete about that. That is a flat out, no, it’s not our responsibility, and now you tell me, whoops you caught us, it’s okay, we can fix it, it is our responsibility, no, that is absolutely wrong, fundamentally wrong to our whole system. If I can find a way, I will definitely sanction Coulson Oil for flat out lying in this lawsuit, just absolutely flagrantly telling a lie and trying to get away with it. Apparently, they have up to a point but if there’s a sanction available, they are going to be subject to it, I can assure you.
Two questions in particular really bother me beforehand and still do, “Please produce and attach all documentation concerning maintenance and/or repair to the fuel tanks and fuel tank covers where this accident took place from two years preceding this date to the date of the accident.” Response: “Defendant does not have this information.” The next one — I skipped one, Number four, “Please state whether any repairs were made to fuel tanks, fuel tank covers and/or surrounding areas after the day of the Plaintiff accident.” “Defendant was not responsible for the upkeep of the fuel tanks, fuel tank covers or surrounding areas, therefore, this information is unknown to the Defendant.” How can you say that the Rules provide them an opportunity to supplement that by saying, that’s not true, we are responsible. And although they don’t say it, the only reason we’re telling you, is because you found out. That’s the only reason we’re telling you. It didn’t come to fight accidentally and us say, oh, we forgot, we’ve discovered this on our own. That would be a different case if the party answering the interrogatory on their own concluded we’ve misled, we’ve made an error and come forth on their own without any incentive on the part of the other side, that would be different and I would agree with you. They should be cut some slack. That’s not the case here at all. I mean, they came forward with the truth when they got caught and that’s the only time they did anything. Sure it’s a month before trial. That had nothing to do with it whether it was a week before or a year before. They weren’t going to do anything apparently unless they got caught.
The trial court asked the parties to brief the question of whether it could sanction Coulson under Ark. R. Civ. P. 37. In its brief, Coulson argued that it could not be sanctioned because it had not violated a court order, had not acted out of willfulness or bad faith, and had not failed to respond to the Tullys’ requests for discovery. It also asserted that it had properly supplemented its responses under Ark. R. Civ. P. 26(e). Along with its brief, it filed the affidavit of Mary Ann Dawkins, Coulson’s corporate secretary. She stated:
3. I was responsible for compiling the information requested by counsel for the Plaintiff in his Interrogatories and Requests for Production.
4. In compiling the information requested by counsel for the Plaintiff, I quickly gathered the information that I could find, and I was not entirely thorough in my research.
5. When I provided the information stating that Coulson Oil Company, Inc. was not responsible for upkeep of the fuel tanks, fuel tank covers, or surrounding areas in question, my statements were based upon the information obtained in my less than thorough research.
6. Upon further request by our attorneys, I performed a more thorough search of the records, and I discovered repair records related to the Sherwood store location concerning the monitoring well at that location; I first learned of this information on January 16, 2003. Upon finding this documentation, I immediately forwarded it to out [sic] attorneys by facsimile on January 16,2003.
7. At no time was my intention to lie or to hide any information from the Plaintiff, Plaintiff s counsel, or the Court.
The court issued a letter opinion, stating:
The defendant, Coulson Oil Company, Inc., failed to comply with the intent or spirit of discovery. In fact, it is clear to me in this case the defendant wilfully made false representations, not simply omissions or misleading statements, but absolute untruths on at least two separate occasions during the discovery process. It is equally clear to me that the defendant’s conduct warrants severe sanctions. As such, Coulson’s Answer shall be stricken, and the case should proceed to trial against Coulson on damages only.
On February 27, 2003, the court entered an order striking Coulson’s answer and directing that only the issue of damages would be tried. It also ordered Coulson to reimburse the Tullys for the costs of taking Mr. Baynes’ deposition. This interlocutory order was immediately appealable under Ark. R. App. P. 2(a)(4), which provides that an appeal may be taken of an order that strikes out an answer, any part of an answer, or any pleading in an action. See Allen v. Greenland, 347 Ark. 465, 65 S.W.3d 424 (2002).
In the present case, the trial court struck Coulson’s answer and awarded the Tullys their costs of deposing Mr. Baynes as a result of Coulson’s failure to provide truthful discovery. Coulson argues that the trial court erred in imposing the sanctions that it did because (1) it violated no court order compelling discovery and (2) it answered the Tullys’ requests for discovery. Coulson points out that it provided “supplemental” discovery “immediately upon its realization that incomplete and incorrect information had been furnished” to the Tullys. Coulson argues that the trial court went “beyond the parameters” of Ark. R. Civ. P. 37 in imposing sanctions because Coulson’s “omission” of information in response to the Tully’s requests for discovery was simply “a result of the less than thorough research” that it had performed in answering those requests. According to Coulson, this means that “a party can be severely sanctioned for supplementing a previously incorrect response to discovery.”
Coulson completely mischaracterizes what actually happened. It is true that Coulson did not fail to respond to requests for discovery — it unequivocally responded, denying any responsibility for the maintenance and repair of the tank covers. However, the trial court made express findings of fact that Coulson had lied and that it had supplied the correct information only because its lies had been discovered. Coulson did not act, on its own initiative, to supplement incorrect information that it had provided in good faith; according to the trial court, it got caught lying and then produced accurate information.
Rule 37 and the cases following it support the sanctions imposed in this case. The imposition of sanctions for failure to provide discovery rests in the trial court’s discretion; the supreme court has repeatedly upheld the trial court’s exercise of such discretion in fashioning severe sanctions for flagrant discovery violations. Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998). “There is no requirement under Rule 37, or any of our rules of civil procedure, that the trial court make a finding of willful or deliberate disregard under the circumstances before sanctions may be imposed for the failure to comply with the discovery requirements.” Id. at 608, 970 S.W.2d at 799; accord National Front Page, LLC v. State, 350 Ark. 286, 86 S.W.3d 848 (2002); Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992); see also Rodgers v. McRaven’s Cherry Pickers, Inc., 302 Ark. 140, 788 S.W.2d 227 (1990).
The severe sanctions that may be imposed include the striking of a claim or a defense. In David Newbern and John Watkins, Arkansas Civil Practice & Procedure, § 17-13, at 263 (3d ed. 2002), the authors state:
Obviously, some of the available sanctions for failure to comply with a discovery order may be devastating to a claim or defense. Dismissal and judgment by default fall into that category, as do orders refusing to permit a position to be advanced or supported and prohibiting the introduction of designated evidence. The Supreme Court has described sanctions of this type as “extraordinary” and said that they should be used “sparingly and only when other measures fail because of the inherent danger ofprejudice.” However, the Court has “repeatedly upheld” the discretion of trial judges “in fashioning severe sanctions for flagrant discovery violations.”
In Cagle v. Fennel, 297 Ark. 353, 761 S.W.2d 926 (1988), the court found that the trial court had acted well within its discretion in entering its final order dismissing the appellant’s suit with prejudice in light of her failure to attend two depositions and her subsequent failure to pay the costs and fees assessed by the judge in lieu of and to avoid the dismissal of her case. The court held that the rules of civil procedure do not require a finding of willful or deliberate disregard before sanctions may be imposed for failure to comply with the discovery rules.
In Dunkin v. Citizens Bank of Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987), the supreme court affirmed the striking of a party’s partial answer because she had not answered all of the interrogatories propounded to her, even though she had been ordered to do so. The court stated:
Authority for the trial court’s action can be found in our rules of civil procedure. Arkansas R. Civ. P. 26(b)(1) provides that “[parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending actions,...” Ark. R. Civ. P. 37(d) states that if a party fails to serve answers or objections to interrogatories “the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule.” Rule 37(b)(2)(C) then permits the court to enter an order “striking out pleadings or parts thereof.”
291 Ark. at 590, 727 S.W.2d at 139-40.
The supreme court’s final comments in Calandro v. Parkerson, 333 Ark. at 612, 970 S.W.2d at 801, bear repetition here:
Accordingly, we cannot say that the trial court abused its discretion in dismissing the case for Appellants’ flagrant failure to comply with the court’s directive to provide full and complete discovery to Appellee. The trial court was in a superior position to judge the actions or motives of the litigants, and we will not second-guess its ruling. The fact that the sanction imposed by the trial court was undoubtedly final and severe is of no consequence, as Rule 37 specifically provides for dismissal of the action where a party fails to comply with an order to provide discovery. Appellants were the plaintiffs in this case and, as such, they chose to utilize the court system to attempt to redress alleged wrongs. To allow them to bog down the judicial system through their delay and willful noncompliance with the trial court’s order would be imprudent.We thus affirm the trial court’s dismissal with prejudice of Appellants’ deceit claim.
Arkansas Rule of Civil Procedure 37 provides two methods of imposing sanctions. Under Rule 37(b), sanctions may be imposed for failure to comply with an order compelling discovery. Rule 37(d) also provides that sanctions may be imposed for failure to respond to interrogatories or other discovery requests. Sanctions issued under Rule 37(d) do not require an order compelling production as a prerequisite. Because no previous discovery order was entered, Rule 37(d) is applicable to this case. Rule 37 (d) states in relevant part:
If a party, or an officer, director or managing agent of a party or person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party, fails (1) to appear before the officer who is to take his' deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule....
The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided in Rule 26(c).
Thus, Rule 37(d) allows the court to impose the sanctions that are allowed in subsections (A), (B), and (C) of Rule 37(b)(2), which permit the court to enter such orders as the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings'until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party....
The supreme court has upheld the imposition of Rule 37(d) sanctions in the absence of a prior order to compel production where a defendant has failed to answer interrogatories or otherwise failed to comply with discovery. In Cook v. Wills, 305 Ark. 442, 808 S.W.2d 758 (1991), Ms. Cook repeatedly agreed to the production of her 1988 income tax return. However, on the Say of trial, and after the jury had been impaneled, defense counsel advised the trial court that Ms. Cook had not produced her 1988 tax return as she had promised on prior occasions. In light of her conduct, the trial court imposed sanctions under Rule 37(d) and struck her third-party complaint even though no prior order to compel had been issued. Noting that, pursuant to Rule 37(d), the court “may make such orders in regard to the failure as are just,” the supreme court held on appeal that the trial court did not abuse its discretion in imposing severe sanctions under that rule. The court also rejected Ms. Cook’s argument that Rule 37 requires a showing of willful disregard of the discovery rules before sanctions can be imposed.
Also, in Harper v. Wheatley Implement Co., 278 Ark. 27, 643 S.W.2d 537 (1982), the appellants did not complete answers to interrogatories or to questions on deposition, and the appellees filed a motion to compel. Although the trial court did not issue an order compelling discovery, it struck the appellants’ pleadings relating to certain claims on the day of trial. The supreme court held that, under Rule 37(d), the trial court had the authority to take that action.
The supreme court relied upon its decisions in Cook v. Wills and Harper v. Wheatley Implement Co. in National Front Page, LLC v. State, supra, where it affirmed the trial court’s imposition of 37(d) sanctions, including striking the appellants’ answer and entering a default judgment, based on their failure to timely respond to discovery requests, to appear at a hearing on a motion to compel, and to appear at trial. The supreme court held that the circuit court had the authority to issue sanctions, including default judgment, under Rule 37(d), and that it could do so without an order to compel discovery having been entered.
Given the court’s authority to impose such sanctions under Rule 37(d) in the absence of an order to compel discovery, the next question is whether, under the facts presented, the circuit court abused its discretion in doing so. Coulson argues that the Tullys were not prejudiced by its incorrect responses to discovery because it provided correct information one month before trial. It asserts that its “supplementation,” as provided by Ark. R. Civ. P. 26(e), cured any problems its false responses to discovery might have caused. We disagree. Rule 26(e) provides for the supplementation of “incomplete or incorrect” responses — it does not provide that untruthful responses are sufficient so long as they are corrected if and when the responding party’s deceit is discovered. Further, the trial court did not base its decision on whether the Tullys were prejudiced — it based it on the seriousness of Coulson’s behavior and the consequences that should result from that behavior. Deliberately untrue responses to discovery are, in our view, worse than an outright refusal to answer. If a party refuses to provide discovery, the other party is, at least, aware of the problem. Dishonest responses, however, prevent the party seeking discovery from learning the true situation. Additionally, one cannot say that the Tullys were not prejudiced by Coulson’s lack of veracity, because it is obvious that the Tullys would have been better able to prepare for Mr. Baynes’s deposition if Coulson had been truthful in its responses. Although the striking of Coul-son’s answer was extreme, it was appropriate in this case, where the trial court’s finding that Coulson lied is soundly supported by the record.
We therefore hold that the trial court did not abuse its discretion in imposing these sanctions.
Affirmed.
Bird, J., agrees.
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Terry Crabtree, Judge.
This is a wrongful-death case. Marie Stracener and Teresa O’Neal, the co-administratrices of the Estate of Charles Stracener, bring this interlocutory appeal from the Sebastian County Circuit Court’s dismissal of their fifth amended complaint, filed August 5, 2002, which added Sparks Regional Medical Center (Sparks) as an additional defendant in the action. Sparks was named as a defendant in the original complaint, but on June 29, 2001, it was dismissed without prejudice because of the charitable-immunity doctrine. Appellants argue that the trial court erred in refusing to apply the doctrine of equitable tolling to delay the running of the one-year saving statute, Ark. Code Ann. § 16-56-126 (1987), so that the complaint filed on August 5, 2002, could be deemed timely. The question presented in this appeal is whether the trial court erred in refusing to apply that doctrine. We hold that it did not err, and we affirm.
Procedural History
Mr. Stracener died on September 28, 1998, while he was a patient at Sparks. Alleging medical negligence, appellants filed a wrongful-death action on September 22, 2000, naming his physician, a registered nurse, Sparks, and others as defendants. In March 2001, Sparks’s liability insurance carrier, Steadfast Insurance Company (Steadfast), was added as a defendant. In June 2001, Sparks moved to dismiss the complaint against it on the ground that it was a tort-immune entity, for which Steadfast was its proper substitute defendant. On June 29, 2001, the court entered an order dismissing Sparks as a defendant. The trial court denied appellants’ subsequent motion to reconsider.
On May 9, 2002, the Arkansas Supreme Court decided Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002). According to the parties in this suit, that decision changed the legal community’s basic assumptions about the charitable-immunity doctrine and the direct-action statute. The supreme court held that nonprofit corporate entities are not necessarily immune from suit for tort and that the direct-action statute, Ark. Code Ann. § 23-79-210 (Repl. 1999), provides only for direct actions against an insurer in the event that the organization at fault is immune from suit in tort. The court noted a distinction between immunity from suit and immunity from liability; it stated that immunity from suit is the entitlement not to stand trial, while immunity from liability is a mere defense to a suit. The court stated that it knew of no authority holding that all nonprofit corporations, by virtue of their status as nonprofit corporations, are immune from suit for tort.
The court also stated:
However, we note that no allegations of fact were made in the pleadings that Forrester-Davis is or claimed to be a charitable organization. Our standard of review of this case is of the trial court’s grant of Bankers’s motion to dismiss, and, thus, our review is limited to the facts alleged in the pleadings. Because there was no allegation in the pleadings that Forrester-Davis is a charitable organization, we conclude that the trial court did not err when it determined that Ark. Code Ann. § 23-79-210 is inapplicable to the facts of the present case.
However, we note that appellant’s argument that Forrester-Davis is not subject to suit for tort because it is a charitable organization is meritless for another reason.We have never said that charitable organizations are altogether immune for suit. While we affirmed the trial court’s dismissal of a case on the ground that the charitable organization was immune from liability in George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W. 2d 710 (1999), no argument was raised in that case that a charitable organization is not subject to suit for tort, as was argued in the present case. We have repeatedly stated that the property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance, or malfeasance of its agents or trustees. See, e.g., Fordyce & McKee v. Woman’s Christian Nat’l Library Ass’n, 19 Ark. 550, 96 S.W. 155 (1906) (emphasis added). We have also recognized that the charitable-immunity doctrine as promulgated in Fordyce and its progeny has become a rule of property. See Williams v. Jefferson Hosp. Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969) (citing Helton v. Sisters of Mercy, 234 Ark. 76, 351 S.W.2d 129 (1961); Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S.W.2d 529 (1957); Fordyce, supra). In addition, we stated in Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953), “Judge Rose, [in Fordyce], commented on the statutory authority for suit, drawing a distinction between the right to sue and the power to execute in satisfaction of the judgment.” Crosswell, supra (citing Fordyce, supra). Our analysis indicates that a charitable organization may have suit brought against it and may have a judgment entered against it, but such judgment may not be executed against the property of the charity. We conclude that even if facts had been pled to allege that Forrester-Davis is a charitable organization, we would nevertheless affirm the trial court’s finding that Ark. Code Ann. § 23-79-210 does not apply because we have never held that charitable organizations are completely immune from suit, but rather, we have only held that they are immune from execution against their property.
348 Ark. at 565-67, 75 S.W.3d at 179-80.
The issuance of the Clayborn v. Bankers Standard Insurance Co., supra, decision directly affected this case. On August 5, 2002, appellants filed their fifth amended complaint, stating that, based on the supreme court’s decision in that case, it was necessary to rename Sparks as a defendant. On September 3, 2002, the trial court dismissed all complaints against Steadfast. Sparks then moved to dismiss the fifth amended complaint against it on the ground that it was time-barred because the one-year limit of the saving statute had elapsed. In response, appellants argued that the running of the one-year limitation of the saving statute should be equitably tolled to prevent unfairness in this case. They relied on the doctrine that, when a plaintiff has been prevented from asserting his rights by relying to his detriment on a statutory interpretation that is subsequently judicially overruled or substantially redefined, a technical forfeiture can be avoided by application of the doctrine of equitable tolling. See Aljadir v. University of Pa., 547 F. Supp. 667 (E.D. Pa. 1982), aff'd, 709 F.2d 1490 (3d Cir. 1983); 51 Am. Jur. 2D Limitation of Actions § 174 (2000).
The trial court disagreed and, on October 14, 2002, dismissed Sparks from the lawsuit with prejudice. It stated:
The Arkansas Supreme Court has found that when a defendant's Motion to Dismiss is granted, it is to be treated the same as a nonsuit and under the “saving statute” the Plaintiffhas one year to commence another action or the cause of action is time-barred. West v. G.D. Searle & Co., 317 Ark. 529 (1994). Since the dismissal was entered on June 28,2001, Plaintiff had until June 28,2002, to commence a new action against SRMC or else its cause of action would be time[-]barred.While this may be harsh under the circumstances of this case it should be pointed out that the Claybom decision was rendered on May 9, 2002, and Plaintiffs still had approximately a month and a half to file their 5th Amended Complaint before the limitations period ran, but for whatever reason Plaintiffs failed to timely file it.
On November 25, 2002, the court entered an order nunc pro tunc that included the same findings and conclusions but also included a certification for an immediate appeal under Ark. R. Civ. P. 54.
Argument on Appeal
On appeal, appellants argue that the running of the saving statute’s one-year period should have been tolled between the time that Sparks was dismissed on June 29, 2001, and when the Claybom case was decided on May 9, 2002. Under Ark. Code Ann. § 16-56-126, a plaintiff who has suffered a nonsuit may refile the suit within one year regardless of whether the statute of limitations would otherwise prevent institution of such suit. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003); Smith v. St. Paul Fire & Marine Ins. Co., 76 Ark. App. 264, 64 S.W.3d 764 (2001). For the purposes of the statute, a dismissal of a complaint on a defendant’s motion is the same as a nonsuit. West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994).
It is “hornbook law” that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the relevant statute. Young v. United States, 535 U.S. 43, 49 (2002). However, even in the case of fraudulent concealment, a litigant in Arkansas must show that he was reasonably diligent to take advantage of the doctrine of equitable tolling. See Smith v. St. Paul Fire & Marine Ins. Co., supra. Appellants point out that they relied upon the interpretation of the direct-action statute applied by “all courts and lawyers in Arkansas” and that, because the Clayborn decision changed the law, the doctrine of equitable tolling should be applied. Appellants apparently concede that they were charged with knowledge of the Clayborn decision when it was handed down on May 9, 2002. This concession, we believe, reveals the weakness of their argument. The supreme court’s decision in Clayborn was available online to all attorneys and the general public immediately and, within a few weeks, it was published in the advance sheets.
It is well settled that a simple lack of knowledge of a cause of action does not stop the statute of limitations from running. See Courtney v. First Nat’l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989). It is also well settled that, ordinarily, the acts of an attorney are equivalent to the acts of the client. Scarlett v. Rose Care, Inc., 328 Ark. 672, 944 S.W.2d 545 (1997). Rule 1.3 of the Model Rules of Professional Conduct states: “A lawyer shall act with reasonable diligence and promptness in representing a client.” See also Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).
Reasonable diligence is essential in the context of equitable tolling. 54 C.J.S. Limitations of Actions § 87 provides in part:
One who asserts a cause of action against another has a duty to use all reasonable diligence necessary to inform himself of facts and circumstances upon which the right of recovery is based, and to institute the suit within the statutory period; however, a plaintiff need not establish that he exercised due diligence to discover the facts within the limitations period unless he is under a duty to inquire and the circumstances are such that failure to inquire would be negligent.
Generally, a party cannot avoid the bar of the statute of limitations if he had the means to discover the facts giving rise to his action. The statute of limitations will be tolled only for one who remained ignorant through no fault of his own. One who asserts a cause of action against another has a duty to use all reasonable diligence necessary to inform himself of facts and circumstances upon which the right of recovery is based, and to institute the suit within the statutory period. If he fails to investigate when put upon inquiry, he is chargeable with all the knowledge he would have acquired, had he made the necessary effort to learn the truth of the matters affecting his interests.
The trial court did not believe that appellants’ attorney acted with reasonable diligence in filing the fifth amended complaint, and we cannot disagree. Appellants had approximately seven weeks within which to rename Sparks as a defendant. Given the facts presented, we cannot say that the trial court erred in refusing to find that appellants’ attorney was sufficiently diligent so as to merit the application of the doctrine of equitable tolling.
Affirmed.
Griffen and Neal, JJ., agree.
Appellants also argue that Claybom v. Bankers Standard Insurance Co. should not be given retrospective application because they justifiably relied on prior case law. This argument does not advance appellants’ position. Even giving Clayborn a prospective application, appellants had a month and a half within which to refile their complaint against Sparks. | [
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Per Curiam.
In this case, the State has appealed the trial court’s decision to transfer the charge brought against appellee to juvenile court. The trial court has sealed the record of the proceedings. By this motion, appellee requests access to the sealed record in order to prepare his brief.
We grant the motion. In order to maintain confidentiality, we order that the materials contained within the sealed record not be released, and any reference to them not to be made, to anyone other than this court, the parties to the appeal, and the parties’ attorneys. See Johnson v. State, 335 Ark. 333, 982 S.W.2d 669 (1998). Appellee is also directed to file his brief with the clerk of this court under seal. Appellee’s brief is due December 3, 2003.
It is so ordered. | [
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John F. Stroud ,Jr., Chiefjudge.
This case arose as a result of a complaint in interpleader filed by appellee, USAble Life, when two persons, Joey Kent, a son, and Janie Kent Bilyeu, an ex-wife, filed claims for $35,000 in life-insurance proceeds on the life ofjames E. Kent. The circuit court directed that the proceeds be paid to Janie Kent Bilyeu, and Joey Kent appeals from that decision. We affirm.
James Kent was employed by ConAgra of Russellville. Through ConAgra, he was eligible for life insurance in the amount of $10,000, effective April 29, 1991. On March 1, 1994, James elected to purchase an additional $25,000 of supplemental life insurance. ConAgra’s records indicated thatjames namedjanie, his wife, as his beneficiary on April 29, 1991, and that this designation was never changed. James and Janie divorced in 1998, and the divorce decree was silent as to any insurance policies held by either party. Upon James’s death in 2000, both Joey and Janie made a claim to the life-insurance proceeds. USAble interpleaded the funds into the registry of the Conway County Circuit Court, and the trial judge directed that the proceeds be paid to Janie, less $2250 to be paid out of the proceeds to USAble Life for its attorney fees and costs associated with the interpleader.
On appeal, Joey contends:
[T]he divorce ofjames Kent and Janie Kent should be construed to change the beneficiary of the life insurance policy from Janie Kent to the children ofjames Kent. ... [T]he divorce should constitute a de facto or constructive change of beneficiary in the absence of any indication that the designation was irrevocable or any indication that the Chancery Court made any disposition of the policy or its proceeds.
Not only does appellant fail to cite any authority for his argument, but Arkansas case law is in direct contravention to his position. In Allen v. First National Bank of Fort Smith, 261 Ark. 230, 547 S.W.2d 118 (1977), our supreme court held that when insurance policies are not addressed in a divorce decree, the rights of the designated beneficiaries of the contracts of insurance are determined in accordance with contractual law “without regard to the effect of a divorce between the insured and the beneficiary.” 261 Ark. at 235, 547 S.W.2d at 120.
In this case, the insurance policy was not addressed in James and Janie’s divorce decree, and James never changed the beneficiary of that policy from Janie before he died. To adopt appellant’s position that the divorce automatically terminated Janie as a beneficiary to James’s insurance policy would require this court to completely ignore the law of contracts and to overrule our supreme court, which we cannot do. The circuit court correctly awarded the policy proceeds to Janie.
Affirmed.
Hart and Gladwin, JJ., agree. | [
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Wendell L. Griffen, Judge.
This' case arises from the criminal conviction of appellant, Adam Tate, for manufacturing a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia with intent to manufacture, and possession of drug paraphernalia. Appellant received a twelve-year prison term. On appeal, appellant argues that there was insufficient evidence to support his convictions and that the trial court erred in denying his motion to suppress. We reverse and dismiss based on appellant’s first assignment of error.
Appellant and his co-defendants, Kerri Harris and Stacy Jester, were arrested after a nighttime search warrant had been executed at the home of Kerri Harris. At the time of the search, 3 a.m., appellant was awake in a bedroom with Stacy Jester. Kerri Harris was in the front yard at that time. The search of the bedroom where appellant was found yielded a propane torch, another torch, a torch head, a propane tank, a Pyrex glass, coffee filters with methamphetamine residue, a blister pack of pseu-doephedrine, a bag with red phosphorus, an electric burner, and “meth oil.” In addition, the same bedroom contained a box of new syringes, four spoons, a glass pipe, and four corners of baggies with powder methamphetamine residue. There were also several plastic baggies, $384 in small bills, and some digital scales. Most of these items were around or on the dresser, but others were scattered in the bedroom. The room also had a chemical odor consistent with the smell of meth labs.
Prior to the trial, appellant moved to suppress the contraband seized in the search on the basis that there was a lack of probable cause for the issuance of a nighttime search warrant. The trial court denied the motion. However, at the outset of the case, the trial court determined that Kerri Harris and Stacy Jester were accomplices as a matter of law.
Harris testified that she had seen methamphetamine being manufactured in her residence and that she received methamphetamine from appellant in exchange for rent. She also stated that all of the items found in the bedroom belonged to appellant and Jester.
Jester testified that none of the items found in the bedroom were hers and that the items belonged to appellant. She stated that appellant had delivered methamphetamine to her and Harris that night.
Both women testified that Harris leased the duplex residential unit. According to their testimony, appellant and Jester were romantically involved and had been living together in that duplex for two months prior to the search.
Appellant moved for a directed verdict at the end of the State’s evidence and based his motion on a lack of corroboration of accomplice testimony linking him to the residence and the contraband seized. He renewed the motion at the end of all the evidence. The trial court denied both motions.
Substantial Evidence
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Peterson v. State, 83 Ark. App. 226, 100 S.W.3d 66 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When the defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).
It is well established that testimony of accomplices must be corroborated, but evidence corroborating accomplice testimony need not be sufficient standing alone to sustain the conviction. Miles v. State, 76 Ark. App. 255, 64 S.W.3d 759 (2001). However, it must tend to connect the defendant to a substantial degree with the commission of the crime independent of the accomplice’s testimony. Id.; Ark. Code Ann. § 16-89-111(e)(1). The corroborating evidence may be circumstantial so long as it is substantial. Id. Evidence merely raising a suspicion of guilt is insufficient. Id. Proof that merely places the defendant near the scene of a crime is not sufficient to corroborate the accomplice’s testimony. Id. In the Miles case, we specifically held evidence — that the defendant was walking out of a bedroom used as a meth lab — to be insufficient corroboration of the accomplice’s testimony to support the conviction because there was no evidence other than the accomplice’s testimony to show that the defendant exercised care, control, or management over the items in the accomplice’s home. Id.
We based our reasoning on the law of constructive possession. To establish constructive possession, the State must prove that (1) the accused exercised care, control, and manage ment over the contraband, and that (2) the accused knew that the matter possessed was in fact contraband. Id.
In the present case, we first must determine whether Harris and Jester are, in fact, accomplices with appellant. Whether or not the trial court actually ruled Harris and Jester to be accomplices with appellant, Arkansas law has long recognized that one who is jointly indicted with others, if evidence shows a connection with the commission of the crime, even though such evidence be meager and unsatisfactory, is to be regarded an accomplice for corroboration purposes. Jackson v. State, 193 Ark. 776, 102 S.W.2d 546 (1937). Appellant, Harris, and Jester were indicted as co-defendants. Thus, they are accomplices, and Harris’s and Jester’s testimony requires corroboration.
Next we must determine whether evidence independent from the accomplices’ testimony tends to support appellant’s convictions. Our decision in Miles v. State, supra, is illustrative. In that case, we held that there was an insufficient nexus between the contraband found in a bedroom and the accused who was seen walking out of that bedroom. In our case, the officers found appellant inside the bedroom containing the contraband. Given that mere joint occupancy does not by itself establish constructive possession — which is needed to connect appellant with the contraband — -the State would have had to prove that appellant exercised care, control, and management over the contraband in question and that appellant knew that the matter possessed was contraband. While the State makes a strong argument that appellant should have known that the items found in that bedroom, in their entirety, constituted a meth lab, methamphetamine, and various paraphernalia used to consume and distribute methamphetamine, the record is silent on the State’s proof that appellant exercised care, control, and management over those items. The test for determining the sufficiency of the corroborating evidence is whether, if the accomplice testimony were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. See Martin v. State, 346 Ark. 198, 575 S.W.3d 136 (2001); see also Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).
Appellant was found in a bedroom within a residence that was not his. As the State points out, the contraband was “scattered” over the entire room — a room that did not belong to appellant. He was in that room together with Jester, a woman who must be deemed an accomplice with appellant and Harris. The State points to no facts that would indicate appellant’s care, control, and management of the room or the contraband. There was no proof independent of the accomplice testimony that established appellant’s residence at Harris’s duplex. Police did not find any of appellant’s personal effects, such as mail or clothing, at the Harris residence. They did not take fingerprints to establish that appellant exercised care, custody, or control over any of the contraband. The State merely points out that appellant was present. Thus, the only evidence connecting appellant with the contraband was the accomplices’ testimony.
Because there is a lack of independent evidence connecting appellant with the crime, we hold that under our case law, this is insufficient evidence to establish constructive possession. With constructive possession not proved, the State failed to establish a sufficient connection with the contraband in question that would tend to corroborate the accomplices’ testimony. We reverse and dismiss on this point. In light of our disposition of appellant’s first point of error, we do not need to reach his remaining point.
Reversed and dismissed.
Gladwin, Neal, and Baker, JJ., agree.
Stroud, C.J., and Crabtree, J., dissent. | [
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George K. Cracraft, Judge.
Gladys Briscoe appeals from a decree of the Chancery Court of Pulaski County alleging several errors. We find no merit in any of them and affirm.
Gladys Briscoe was the owner of a five-acre tract on which her residence was located. In February 1971 she entered into a lease purchase agreement with Shoppers News, Inc. in which she agreed to construct an office building at a cost of approximately $30,000 on a quarter acre tract behind her residence and lease it to Shoppers News for a term of eight years and four months at a rental of $300 per month. She also agreed to provide a thirty-foot easement for access along the south side of the property extending to the center of Mabelvale Pike. Shoppers News was granted an option to purchase the leased premises at the end of the lease term for a further consideration of $6,000. The agreement recited that Briscoe was constructing an office building adjacent to Shoppers News and granted Shoppers News a first refusal to purchase it and the property on which her home was located should she elect to sell it. The lease also contained the following provisions:
It is understood that the property upon which the building is so constructed will be subject to a mortgage, but it is also understood that in the event of purchase by the lessee, the property will be conveyed by warranty deed showing a clear and merchantable title. In the event the lessor shall default in the payment of the mortgage payments against said property, the Shopper News, Inc. shall have the right to continue these same payments with the mortgagee for the purchase of the property described in this instrument.
On March 10, 1971 Briscoe obtained the financing for the construction of the Shoppers News building by executing a note in the sum of $30,000 payable to the appellee, Bland Adkins, and securing the note by a mortgage on her entire five-acre tract. In December, Briscoe executed a note for an additional $30,000 to Bland Adkins also secured by a mortgage on the entire five-acre tract. The first $30,000 was used to build the Shoppers News building but the second $30,000 was used only for erecting an additional office building and for improvements on Briscoe’s residence.
Subsequently Briscoe became indebted to the First National Bank of Little Rock and secured that indebtedness by a mortgage on a part of the five-acre tract which did not include the Shoppers News leasehold.
At the time the lease purchase agreement was executed Briscoe was one of seven equal shareholders in Shoppers News and was employed by it. Tommy Trent subsequently acquired a controlling interest in the corporation and terminated Briscoe’s employment at Shoppers News in September 1972.
The litigation between Briscoe and Shoppers News began in 1974 when Shoppers News brought an action seeking to enjoin her from interfering with its access to the property. She counterclaimed against Shoppers News and Tommy Trent seeking an accounting and other relief not involved in this proceeding. In 1974 the chancery court entered a “partial decree” declaring that Shoppers News was entitled to an easement across Briscoe’s property thirty feet in width “along the south line of the leased property and extending to the center of Mabel vale Pike.” The record does not reflect any action on the accounting issues.
In 1979 at the termination of the term provided in the lease, Shoppers News gave notice of its election to purchase the Shoppers News building and tendered into court the $6,000 purchase price. Briscoe contended that the option had not been exercised properly but the chancery court entered an order directing specific performance. This order was appealed to the Court of Appeals which affirmed the decree of the chancellor but expressly stated that it did not purport to deal with any issues which remained pending. Upon remand the chancellor entered an order directing Briscoe to execute and deliver to Shoppers News a warranty deed to the leased property “free of all liens and encumbrances.”
After Shoppers News made its last payment of rent under the lease agreement Briscoe defaulted on the payments of her notes to Bland Adkins and First National Bank and both mortgagees instituted foreclosure proceedings. The three cases were then consolidated for trial. The chancellor found that Briscoe owed Adkins in excess of $47,000 and was indebted to the First National Bank of Little Rock for a balance in excess of $6,900 and ordered the entire five-acre tract sold by the Commissioner. In that decree the court also awarded an attorney’s fee of $670 to Adkins and $695 to First National Bank of Little Rock.
After that decree was entered counsel for Briscoe and the mortgagees pointed out that there were errors in the decree which should be corrected. The chancellor then entered an amended and substituted decree in which it granted Adkins judgment against Briscoe for over $53,000, ordered an attorney’s fee of $5,300, corrected a description of the five-acre tract and the mortgage to the First National Bank of Little Rock, granted the bank judgment in the amount of $7,000, awarded it an attorney’s fee in the amount of $700, recited that “by agreement of the parties all of the lands would be sold in one tract,” and reserved control of the cause for further orders as may be necessary to protect the rights of the parties after the report of the Commissioner. Briscoe appeals from all orders entered in the consolidated cases. Shoppers News does not cross-appeal.
The appellant first contends that the chancellor erred in his construction of the lease purchase agreement and in directing her to execute a warranty deed “free and clear of all liens and encumbrances.” She argues that the contract did not provide £or a deed free of encumbrances but only a “warranty deed showing clear and merchantable title.” She argues that one can convey property subject to a mortgage by warranty deed and that such deeds providing for an assumption of the mortgage are common. This argument presupposes the validity of her contention that the clause in question provided for an assumption by Shoppers News. In this regard she argues that as that provision gave Briscoe a right to default, that language imposed on Shoppers News the duty to assume in the event of default. The provisions on which she relies merely gave Shoppers News a right to protect its own interest. It did not impose any obligation to assume the mortgage. We conclude that the provisions referred to required that Briscoe convey by a warranty deed containing general warranties against all defects and encumbrances. We find no error in the chancellor’s ruling.
The appellant next contends that the chancellor erred in not ruling on the scope of the easement granted to Shoppers News. The order of the court provided that the easement be thirty feet wide and run along the south line of the leased premises extending eastwardly across the remaining lands to Mabelvale Pike. It declared that appellant must not interfere with the use of that portion of it running across her lands and that Shoppers News must not interfere with her use of the strip. The easement was clearly defined in the court’s order.
Appellant argues that the chancellor should have ruled further because there was evidence that Shoppers News had been using the easement for purpose other than ingress and egress. She argues that Shoppers News had used it for additional parking spaces as well and that an easement granted for one purpose might not be used for another. Our review of the record does not disclose whether this issue was ever pled or argued in the court below. Appellant did make one passing reference to parking on her property. We do not consider this point sufficiently raised to warrant our consideration of it for the first time on appeal.
With regard to the foreclosure action the appellant contends that the chancellor erred in failing to order the Shoppers News property sold separately and the proceeds from it first applied to the debt before her remaining lands were sold. Secondly, she argues that her homestead should have been carved out of the total tract and not sold at all unless absolutely essential. Thirdly, she argues that the lien to the First National Bank of Little Rock extended only to a portion of the property and it should be sold separately and before the balance of her lands, and finally that the decree did not set forth the rights of the parties to the surplus or deficit proceeds of the sale. While we find no merit to any of these contentions we do not address them because the record shows that the appellant consented to these terms of the amended decree at the time that it was entered.
The chancellor recited in his decree:
That the lien of First National Bank of Little Rock is on land included in the lien of plaintiff Bland Adkins. By agreement of the parties, all of the land shall be sold in one tract, being the larger tract upon which Bland Adkins has a lien. [Emphasis supplied.]
The record amply sustains this finding of the court. After the amended decree was entered the appellant filed a “Motion for Rehearing on Attorney’s Fees” in which she recited that the amended decree was a proper one in all respects except in its provision for attorney’s fees. She recited:
In the presence and at the suggestion of the court, the parties to the case have agreed to the entry of a modified decree correcting the technical errors of description in the earlier decree. Ms. Briscoe agreed that no appeal would be prosecuted from such a corrected decree. Counsel for Ms. Briscoe approved these procedures, the accommodations suggested, and the entry of a decree correcting the earlier decree so that the matter could go to sale in foreclosure of Ms. Briscoe’s equity of redemption. [Emphasis supplied.]
Having agreed to the entry of the decree containing such an order of sale the appellant is in no position to present the arguments contained in her brief. Even if the action of the chancellor in ordering the land sold as one tract was incorrect, it is well settled under the doctrine of invited error that appellant may not complain on appeal of an erroneous action of the chancellor if he has induced, consented to or acquiesced in that action. Missouri Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944); J. I. Case Co. v. Seabaugh, 10 Ark. App. 186, 662 S.W.2d 193 (1983).
The appellant next argues that the chancellor erred in “failing to consider appellant’s motion for rehearing on attorney’s fees or otherwise explain the increase in fees awarded the attorney for Bland Adkins.” In the original decree an award of $670 in attorney’s fees was awarded. As that, decree contained certain technical errors already referred to, an amended and substituted decree was entered in which Bland Adkins was awarded a $5,300 attorney’s fee. Although appellant’s pleading was styled “Request for Rehearing on Attorney’s Fees” we conclude that she did not in fact ask for a hearing but only that the chancellor reconsider his ruling on that issue.
In her motion the appellant asserted that she was “not unappreciative of those difficulties encountered by the appellees in the foreclosure” and agreed that the fee of $500 that was allowed in the original decree was inadequte to compensate the attorneys for their services and should have been increased. She asserted that the sum of $5,300 awarded by the court was excessive for the number of hearings and the amount of time, investigation, preparation and “post-trial windup” involved in this case. She did not ask for a hearing on the issue but submitted a corrected amended decree in foreclosure which would have allowed a fee of $1,500. This motion was filed subsequent to her notice of appeal and no mention of it was made in the notice.
It is not necessary in every case to have a hearing on the reasonableness of an attorney’s fee awarded by the court. The court can apply its own general knowledge of the proceedings in determining the amount of attorney’s fee and we recognize the superior position of the trial judge to make the determination because of its acquaintance with the record and the quality of services rendered. There is no fixed formula or policy to be considered in arriving at these fees other than the rule that the appropriately broad discretion of the trial court should not be abused. Farm Bur. Mut. Ins. Co. v. Kizziar, 1 Ark. App. 84, 613 S.W.2d 401 (1981); Equitable Life Assur. Society v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974). It is only where the trial court denies a timely request for a hearing on the issue of attorney’s fees that we have remanded the cause for that purpose. Farm Bur. Mut. Ins. Co. v. Kizziar, supra; Thos. Jefferson Ins. v. Stuttgart Home Ctr., 4 Ark. 75, 627 S.W.2d 571 (1982).
We find no error.
Mayfield, C.J. and Cooper, J., agree. | [
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JOHN B. ROBBINS, Chief Judge.
Appellant George Holaway appeals the Pulaski County Chancery Court divorce decree that ordered him to pay lifetime alimony to his ex-wife, appellee Margaret Holaway, in lieu of a division of his non-vested military retirement and without regard to whether she remarried after their divorce. He argues that the chancellor abused his discretion in making this finding. We agree, and reverse and remand this portion of the decree.
Appellee filed for divorce after seventeen years of marriage, but prior to appellant’s eligibility for military retirement. At the time of the divorce proceedings, appellant was a lieutenant colonel and pilot in the Arkansas Air National Guard, and appellee was a school nurse. Appellant will not be vested with his military retirement until he has twenty years of service, which would occur on January 28, 2001, however, there is no guarantee that appellant will remain in military employ until that date. Appellee was awarded a divorce from appellant, was granted custody of the two minor children along with commensurate support, and was awarded one-half of the marital assets.
The relevant portions of the decree for purposes of appeal are sections eighteen and nineteen, which state as follows:
18. The Court finds that the Defendant [appellant] will remain in the military through twenty (20) years. The parties have been married not quite eighteen years total or thereabout, so it would be very easy to divide one-half (1/2) of eighteen/twentieths or eighteen/twenty-firsts or whatever number of years that the Defendant remains in the military. However, the law in Arkansas is very clear; and it is not a present vested retirement interest subject to division by this Court. Based upon the case of Christopher v. Christopher, 316 Ark. 215, which is a 1994 case, and Burns v. Burns, 312 Ark. 61, a 1993 case, it is very clear the Supreme Court is not going to change the law regarding vested military pension. Therefore, the Court cannot award Plaintiff any interest in Defendant’s military retirement.
19. The Court finds that the parties have been married for seventeen-plus years, fourteen of which the Plaintiff did not work. The Plaintiff does have job skills and she does have present employment. The Defendant has job skills and is presently employed, and at a minimum, will continue to be employed in his present occupation for at least another two to three years and possibly longer. The Plaintiff makes roughly twenty thousand dollars a year. The Defendant makes approximately eighty-plus thousand dollars a year plus other benefits. Both parties have good job skills and both parties will be able to continue to earn and support themselves to some extent, although the Plaintiff will not earn nearly as much money as the Defendant, at least in his present job. The Defendant will have much greater likelihood of further acquisition of capital assets and income based upon his present earnings. The Plaintiff will not earn, even if she goes to work in a hospital as a floor nurse, increased earnings appreciably in the foreseeable future.
The Plaintiff will lose her military benefits upon divorce. She has not been married twenty years during which twenty years of active service [sic], and it is the Court’s understanding that she will lose her benefits upon this divorce. During the course of the marriage, the Defendant earned considerably more money than the Plaintiff, but she employed her skills as mother and homemaker and had a direct bearing upon the parties being able to acquire the savings that they have acquired and the home with the equity which they have acquired. Based upon the factors that the Court would consider in awarding alimony, the Plaintiff is entided to the sum of $1,000.00 per month in alimony.
Furthermore, part of the ruling for the alimony and in the manner which the Court has awarded it is strictly due to the lack of the Court’s ability to divide the military retirement pay. The Court finds it completely inequitable that the parties can be married 18, 19-1/2, 19 years and 360 days and get divorced and the Plaintiff could walk away with absolutely nothing as a result of her contribution to the marriage and Defendant’s contribution to his military retirement pay. The Court was going to award alimony no matter what the Court ordered regarding the military retirement. Additionally, when the Defendant retires, he will draw approximately $2,000.00 a month or $2,500.00 a month. In keeping the alimony the same as it is, Plaintiff will draw roughly what she would have drawn and she would have drawn that for the rest of her life. However, if she remarries, she gets nothing. Therefore, alimony shall only terminate upon the death of either party and alimony shall not terminate upon the remarriage of the Plaintiff. The Court shall retain jurisdiction of the alimony issue.
The award of alimony is discretionary, and any such award will not be reversed absent an abuse of discretion. Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999). If alimony is to be awarded, then it should be set at an amount that is reasonable under the circumstances. Id. The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced parties in light of the particular facts of each case. Id. The primary factors to be considered in awarding alimony are the need of one spouse and the other spouse’s ability to pay. Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996). Certain secondary factors may be considered in setting alimony including (1) the financial circumstances of both parties, (2) the amount and nature of the income, and (3) the extent and nature of the resources and assets of each of the parties. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980).
If a divorcing spouse has achieved an entitlement to military retirement pay, that entitlement is an asset which may be divided between the parties to the divorce. Christopher v. Christopher, 316 Ark. 215, 871 S.W.2d 398 (1994). If, however, the divorcing military spouse has not served for a time sufficient to have earned the right to receive military retirement pay, the right has not “vested” and there is no asset to be divided upon divorce. Id.', Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986). The right to military retirement pay is not an asset that exists to divide until it so vests. Christopher, supra.
Here, the chancellor granted this amount of alimony specifically because he could not by law divide the non-vested military retirement that appellant will likely realize in the future. He stated as much in the decree, and his words were not ambiguous, as was the case in Womack v. Womack, 307 Ark. 269, 818 S.W.2d 958 (1991). The chancellor’s ruling was an attempt to circumvent established Arkansas law as pronounced in opinions of our supreme court. In an analogous situation, the supreme court in Belanger v. Belanger, 276 Ark. 522, 637 S.W.2d 557 (1982), reversed and remanded an award of alimony to a wife because the alimony was used as a substitute for awarding the wife an interest in real estate that was not marital property. This rendered the alimony award improper and resulted in the reversal.
While the chancellor was not clearly erroneous in ordering alimony, considering the disparate levels of the parties’ earning abilities and sources of income, the chancellor articulated that the reason for setting alimony at $1,000 per month was due to his inability by law to divide unvested military retirement benefits that the chancellor assumed will vest in appellant after the divorce. We remand for reconsideration of the alimony issue in a manner consistent with acknowledged Arkansas law and direct that any alimony awarded be based upon the current economic circumstances of the parties without regard to contingent retirement benefits that appellant may receive in the future.
Because this issue is likely to arise again upon remand, we address appellant’s arguments concerning the duration of the alimony awarded, i.e., that the alimony award would “only terminate upon the death of either party and alimony shall not terminate upon the remarriage of the [appellee].” Arkansas Code Annotated section 9-12-312 (Repl. 1998) states in relevant part that when a decree is entered that orders the payment of alimony, unless otherwise ordered by the court or agreed to by the parties, the liability for alimony shall automatically cease upon remarriage of the person who was awarded the alimony. In the case before us, the chancellor ordered otherwise, which is not prohibited by statute. However, the chancellor did so for the stated purpose of substituting alimony for an interest in appellant’s unvested military retirement, and for the reasons stated above this is improper.
As to the matter of the decree ordering that alimony would terminate only upon the death of either party, this appears to violate statutory and case authority in Arkansas that, in the absence of a settlement agreement to the contrary, an award of alimony is always subject to modification, upon application of either party. Ark. Code Ann. § 9-12-314 (Repl. 1998); Bracken v. Bracken, 302 Ark. 103, 787 S.W.2d 678 (1990). While the subject decree did state that the “Court shall retain jurisdiction of the alimony issue,” it is inconsistent to state that alimony shall not terminate until death and yet retain jurisdiction. Furthermore, this lifetime award of alimony was clearly made for the prohibited purpose of substituting alimony for an interest in appellant’s military retirement and is improper for that reason as well.
We reverse and remand with instructions that the trial court determine an equitable amount of alimony in accordance with Arkansas law as discussed herein.
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SAM BIRD, Judge.
This case stems from a paternity action in which Vincent Maxwell, the appellant, was adjudicated in May 1995 to be the father of a child born out of wedlock and ordered to pay child support, past-due and current. Because the child’s mother, Jozetta Halton, had received Aid to Families with Dependent Children (AFDC) benefits from the State of Arkansas, the paternity case was prosecuted by attorneys for the Arkansas Child Support Enforcement Unit (CSEU), the appellee, through the Jefferson County Office of Child Support Enforcement.
In November 1995, six months after the paternity action had been concluded, Maxwell and Halton entered into an agreement by which Halton accepted a $2,300 lump-sum payment from Maxwell in full satisfaction of Maxwell’s child-support obligations, past, present, and future. They filed a joint petition in the case that had been opened originally for prosecution of Halton’s paternity action against Maxwell, and, on November 15, 1995, received from the court an order approving their agreement.
Six months later, CSEU petitioned the court to set aside the November 15 order, contending: (1) that at the time the order was entered Halton was receiving AFDC and had an open child-support case with CSEU; (2) that Halton had assigned her child-support rights to CSEU; (3) that Maxwell owed child support to the State of Arkansas; (4) that Halton lacked authority to enter into the agreement; and (5) that the agreed order was void as against public policy. CSEU later amended its motion to add allegations that CSEU was the real party in interest, and that Maxwell had practiced fraud upon the court in obtaining the agreed order without notice to CSEU.
On February 19, 1997, a hearing was convened, but when Halton faded to appear, the court rescheduled the hearing for May 7, 1997, and ordered Halton to appear on that date with the child or risk being sanctioned for contempt of court. On May 7, Halton again failed to appear, and counsel for CSEU and the child’s attorney ad litem argued that the agreed order was void ab initio and that the court should set it aside notwithstanding Halton’s failure to appear. A lengthy report filed by an attorney ad litem for the child outlined numerous attempts (some successful and some unsuccessful) to communicate with Halton in Texas by telephone. However, despite clear indications that Halton received notices of the hearings, she never attended any of them.
Finally, at a scheduled hearing on January 12, 1998, the court heard the testimony of a witness called by CSEU, a child-support investigator, that revealed the following, in significant contrast to the allegations of CSEU’s petition:
(a) That Halton had been an AFDC recipient “off and on,” but that she was not on AFDC in November 1995 (when the joint petition was filed and the agreed order entered);
(b) That the only document CSEU had bearing Halton’s signature was a copy of a notice from Halton to the Jefferson County Circuit Clerk stating that she had contracted with CSEU for non-AFDC assistance and directing that all child-support payments collected by the clerk’s office be forwarded to CSEU;
(c) That CSEU did not have a contract as referred to in the above-mentioned notice, nor did CSEU have an assignment of child-support payments from Halton; and
(d) That when the agreed order of November 15, 1995, was entered, all AFDC benefits had been repaid and there were no unreimbursed grants owed to the State on Halton’s account.
Following the January 12, 1998, hearing, the court entered the order of February 10, 1998, that is the subject of this appeal. In that order the court held: (1) that it had jurisdiction to modify or set aside the November 15, 1995, order; (2) that CSEU had standing to challenge the validity of the November 15, 1995, order; (3) that Maxwell had practiced fraud upon the court in obtaining the November 15, 1995, order by his failure to give notice to CSEU before obtaining Halton’s signature on the joint petition; and (4) that the November 15, 1995, order was void as against public policy inasmuch as it permanently terminated the rights of the child to receive support. Because we have found no authority that would permit CSEU to challenge the validity of the court’s order of November 15, 1995, we reverse and remand with instructions to reinstate that order.
In reaching this decision, we are not unmindful of the broad language in State Office of Child Support Enforcem’t v. Terry, 336 Ark. 310, 985 S.W.2d 711 (1999), relied upon by the dissenting judges, that would appear to support the chancellor’s conclusion that CSEU has standing to challenge the court’s agreed order. However, we do not find Terry to be controlling in the case at bar. In Terry, Joey Terry challenged the ethical propriety of CSEU’s representation of his ex-wife in proceedings to collect child support from him, where CSEU had previously represented him in the same case in his efforts to collect child support from his ex-wife. The chancellor found that these circumstances resulted in a conflict of interest on CSEU’s part, and prohibited CSEU from representing Terry’s ex-wife. On appeal, our supreme court held that no conflict of interest existed because, under Ark. Code Ann. § 9-14-210 (Repl. 1998), CSEU’s attorneys do not represent the assignors whom it is undertaking to assist in receiving child support, but represent only the interests of the State; thus, no attorney-client relationship existed between CSEU and its assignors.
Although, in Terry, the supreme court stated in dicta that, “The State is the real party in interest when there has been an assignment of support rights to CSEU, regardless of whether the custodial parent is receiving public assistance on behalf of the child....,” we do not find that language applicable here. In Terry, it was undisputed that Joey Terry had assigned his child-support rights to CSEU and had entered into a contract by which he agreed for CSEU to collect his child-support benefits. In the case at bar, CSEU produced neither an assignment of child-support benefits from Halton nor a contract providing that Halton had agreed for CSEU to collect her child-support benefits. Arkansas Code Annotated section 9-14-210(d)(l) — (3)(Supp. 1995) sets forth the following circumstances under which the State is the real party in interest:
(1) Whenever aid under §§ 20-76-410 or § 20-77-109 is provided to a dependent child; or
(2) Whenever a contract and assignment for child support services has been entered into for the establishment or enforcement of a child support obligation for which an assignment under § 20-76-410 is not in effect; or
(3)Whenever duties are imposed on the state pursuant to the Uniform Interstate Family Support Act, § 9-17-101 et seq.
Arkansas Code Annotated section 20-77-109 (Supp. 1995), referred to in subsection (1) of the above-quoted statute, provides that child-support rights are deemed to have been assigned to the state when the recipient has accepted medicaid assistance for or on behalf of the child. However, this section is not applicable in this case because there is no indication in the record that Halton ever accepted medicaid assistance for or on behalf of the child here involved.
Arkansas Code Annotated section 20-76-410 (Repl. 1991), also referred to in subsection (1), provides that child-support rights are deemed to have been assigned to the State by a recipient of public assistance grants, but only to the extent of rights that have “[a]ccrued at the time such assistance, or any portion thereof, is accepted.” Ark. Code Ann. § 20-76-410(c)(2). The evidence presented by the child-support investigator is that, while Halton had previously been a recipient of AFDC benefits “off and on,” all of those benefits had been repaid, and that, in November 1995, Hal-ton was not recieving any public-assistance benefits and there were no unreimbursed AFDC grants. While, under § 20-76-410(c), there had been an automatic assignment of Halton’s child-support rights, that assignment had been satisfied by the repayment of all the public assistance that Halton had received.
Subsection (2) of the above-quoted statute is applicable only when a contract and assignment have been entered into with the State for the establishment and enforcement of a child-support obligation. The state produced neither a contract nor an assignment in this case. Therefore, subsection (2) is not applicable.
Likewise, subsection (3) is not applicable to this case because it relates only to cases under the Uniform Interstate Family Support Act, which is not involved in this case.
Even if it could be said Halton had previously contracted with and assigned her child-support rights to CSEU, we do not read Terry as authority for the State to continue to prosecute child-support collection on behalf of a former AFDC recipient, such as Halton, on whose behalf all benefits previously received from the state have been repaid, who subsequently entered into a private agreement with the child-support obligor for the compromise of her personal child-support claims, who is currently neither receiving nor claiming any public assistance benefits, and who has expressed no interest in modifying or setting aside her private agreement with, or receiving child support from, Maxwell. Although, in Terry, the supreme court quoted from Haney v. State, 850 P.2d 1087 (Okla. 1993), that “the Social Security Act ‘was not only enacted in order to recoup payments made for AFDC recipients, but also to help families avoid becoming dependent on the State through lack of support from the absent parent,”’ Terry, 336 Ark. at 317, 985 S.W.2d at 715 (emphasis in original), we do not interpret this language to mean that, in cases where all public assistance has been repaid, the CSEU is empowered to prosecute child-support cases on behalf of former public-assistance recipients against their will, in the absence of some showing that the former recipient is still in need of public assistance, or is at risk of becoming dependent on the State in the foreseeable future. If that were the interpretation to be given to the Social Security Act, we do not see what would prevent the CSEU from targeting a child-support obligor and prosecuting a claim against him or her on the basis of its unsupported, subjective expectation that the child in question may, someday, be in need of some form of public assistance.
In the case at bar there was no evidence presented as to the financial needs of Halton or the child. There was no evidence that the child is a potential candidate for the receipt of public-assistance benefits. While it may be true that CSEU has standing to enforce the child-support obligations of its assignors, past and present, we do not interpret Terry as granting to CSEU the unfettered authority to exercise its right of standing in the absence of some showing that the State has some interest, current or potential.
Regarding the chancellor’s finding that the agreed order of November 15, 1995, is void as against policy we do not believe that our case law supports this position. A careful analysis of Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387 (1995), and Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 954 (1991), reveals that agreements for the termination of child support are not void, but that the court retains jurisdiction to modify such agreements when they are shown to be detrimental to the child.
In Storey, a divorcing party entered into an agreement under which the husband would pay support to the wife “so long as she shall remain unmarried....” After the wife had twice remarried (during which periods of marriage the husband quit paying support), she petitioned for retroactive support for the periods during which she was married. In discussing the question of the validity of the agreement, Justice George Rose Smith said:
In a number of cases, such as Robbins v. Robbins, 321 Ark. 184, 328 S.W.2d 498 (1959), we have said that the duty of child support cannot be bargained away by the parents. That does not mean, however, that the duty of support cannot be affected by the contract. What our cases actually hold is that the duty cannot be bartered away permanently to the detriment of the child.
There is certainly no principle of public policy making such a contract absolutely void, because upon remarriage a divorced mother may have no need for child support payments from her former husband, who may himself be destitute.
On the other hand, the parents’ inability to permanently bargain away the children’s right to support preserves the court’s power to modify the original decree to meet subsequent conditions.
Storey v. Ward, 258 Ark. at 26-27, 523 S.W.2d at 390 (emphasis added).
Similarly, in Barnhard v. Barnhard, 252 Ark. 167, 174, 477 S.W.2d 845, 849 (1972), an action by a former wife to modify an order approving an agreement by which she was to pay child support to her former husband, the supreme court stated that, “there is no sound policy reason why she may not enter into a contract with her husband governing such contributions, ... so long as the agreement is not adverse to the welfare of the child....” Barnhard v. Barnhard, 252 Ark. 167, 174, 477 S.W.2d 845, 849 (1972) (emphasis added).
In the case at bar there has been no evidence presented that the agreement between Halton and Maxwell to terminate child support is detrimental to the welfare of their child. We should not presume that the child or the mother needs the money, especially where she refuses to return to Arkansas to present any evidence of such need. If evidence is hereafter presented that Halton is in need of support from Maxwell for the benefit of their child, the court, acting pursuant to Storey and Barnhard, has the authority to modify its November 15, 1995, agreed order; but it is not void.
While the statistics referred to in the dissenting opinion from the Fordham Law Review article are informative and interesting, we do not see their relevance to this case. No doubt, the child-support caseload, AFDC and non-AFDC, has grown significantly in the past twenty-five years. But this increase in the number of child-support cases should serve as a basis for restricting CSEU’s responsibilities to cases in which the State has an interest, not to enlarge its responsibility into cases where there is no showing of the need for CSEU’s assistance.
The dissenting opinion’s suggestion that Halton has failed to “wrest control” of this case from CSEU by substitution or intervention puts form over substance. Contrary to the dissenting opinion, Halton’s involvement in this case entails far more than “simply signing a joint motion which merely added her name at the top.” After all, Halton is the mother of the child whose paternity was established in this case, she is the person to whom Maxwell was ordered to make child-support payments, by a check payable to her, and she was identified as a plaintiff in the initial summons and in some of the pleadings and papers filed in the paternity case. Also, with the state having now been fully reimbursed for all benefits previously paid to Halton, she is the only person who would be entitled to receive any child support payments from Maxwell for the benefit of their child. While CSEU contended that it was the real party in interest, it did not contend that Halton was not a proper party. Furthermore, the chancellor’s action in ordering Halton to appear at the May 7, 1997, hearing or face sanctions for contempt is a clear indication that the chancellor treated her as a party to the action. Except in cases involving this court’s jurisdiction, we should not dispose of cases on the basis of issues neither entertained by the trial court nor briefed by the parties. Leinen v. Arkansas Dep’t of Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994).
It is apparently the position of the dissenting opinion that Halton and MaxweE could have properly obtained the court’s approval of their settlement without notice to CSEU by simply filing their joint petition as a new case instead of proceeding in the case that was opened originally by CSEU for the prosecution of the original paternity and child-support action. Regardless of any technical deficiencies in the procedure followed by Halton and Maxwell in obtaining the court’s approval of their agreement, the fact remains that after Halton stopped receiving AFDC benefits and all AFDC benefits previously paid to her had been repaid, the State no longer had an interest for CSEU to protect in this case.
The chancellor’s order of January 12, 1998, is reversed and this matter is remanded for the entry of an order consistent with this opinion.
Hart, Koonce, Neal, and Crabtree, JJ., agree.
Robbins, C.J., and Jennings, Meads, and Roaf, JJ., dissent.
Some of the holdings set forth the chancellor’s order of February 10, 1998, were originally contained in an earlier order entered January 17, 1997, and restated in the February 10, 1998, order.
All references to statutes in this opinion shall refer to the statutes as they existed in 1995 when the paternity action was prosecuted and the agreed order was entered. | [
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MARGARET Meads, Judge.
Alltel Arkansas, Inc., appeals a narrow issue that resulted from Order Nos. 6, 7, and 10 entered by the Arkansas Public Service Commission in Docket No. 97-419-U. In these orders, the Commission adopted the Administrative Law Judge’s holding that a carrier’s ability to reclassify its services from toll to local and thereby reduce its responsibility to the Arkansas Intrastate Carrier Common Line Pool is not a violation of the Telecommunications Regulatory Reform Act of 1997 (Act 77). Because we find that the Commission failed to provide sufficient detail to enable this court to determine how it arrived at this decision, we must reverse and remand for additional findings.
This appeal began with a petition filed by Alltel for clarification of the settlement mechanism with respect to the intraLATA carrier common line revenue requirements of the Arkansas Intrastate Carrier Common Line Pool (AICCLP). The AICCLP is defined by Ark. Code Ann. § 23-17-403(3) (Supp. 1997) as the unincorporated organization of the providers of Arkansas telecommunications services, authorized by the Commission, whose purpose is to manage billing, collection, and distribution of the incumbent local exchange carriers’s intrastate toll common line service revenue requirements. Carrier Common Line (CCL) service refers to the use of an incumbent local exchange carrier’s (ILEC’s) common lines by a carrier to provide intrastate communications services to end users. In exchange for a carrier’s use of an ILEC’s local loop network for the origination and termination of toll calls, the carrier pays a non-traffic-sensitive access rate to the AICCLP, which collects the access charges from the various carriers and distributes them to the ILECs for reimbursement of their revenue requirements. All carriers that use an ILEC’s local loop network to originate or terminate a toll call are assessed a CCL charge. The access rate is set by the Intrastate Flat Rate Carrier Common Line Service Tariff (Tariff) and is determined by obtaining the sum of the ILECs’ intrastate CCL revenue requirements, any applicable Arkansas Universal Service Fund (AUSF) requirement, the direct expenses incurred by the AICCLP Administrator and staff, claims for adjustments to final revenue requirements, and the charges or credits approved by the Commission. See IFR CCL Tariff 3rd Rev’d Sheet 7. Once this sum is computed, the AICCLP Administrator determines each individual carrier’s CCL pool charge by apportioning the total intrastate CCL pool charges based on the percentage of each carrier’s reported intrastate net retail billed minutes of use (RBMOU) relative to the total intrastate net RBMOU reported by all carriers. Prior to the dissolution of the Arkansas IntraLATA Toll Pool (AITP), the ILECs used the AITP to settle the CCL charges among themselves and the AITP Administrator reported the ILECs’ combined RBMOU to the AICCLP Administrator. The IXCs (pure-interexchange carriers such as AT&T, MCI, and Sprint) reported their RBMOU directly to the AICCLP Administrator.
Because of the dissolution of the AITP, Alltel’s petition contended that none of the ILECs were settling their intraLATA CCL revenue requirements with the AICCLP. Alltel proposed that the “post-toll pooling ILECs” begin settling all of their intrastate CCL revenue requirements directly with the AICCLP Administrator by reporting their RBMOU to the AICCLP Administrator and that the IXCs continue to report their RBMOU to the AICCLP Administrator. On January 9, 1998, Docket No. 97-419-U was established by the Commission to address Alltel’s petition, and it was consolidated with two other dockets, not relevant to this appeal, for hearing purposes. Intervention was granted to a number of ILECs and AT&T Communications of the Southwest, Inc. The general staff of the Commission (Staff) also participated in the docket.
At the hearing, Jack Redfern, Staff Manager of Regulatory Matters for Alltel, testified in support of Alltel’s petition. He proposed that the proportionate share of the intrastate CCL revenue requirement that is borne by each carrier, ILEC or IXC, be based on the relationship of their total intrastate RBMOU reported to the AICCLP compared to total RBMOU reported by all carriers. Initially, he argued that the reported RBMOU, used to compute the carriers’ CCL pool charges, should be frozen at their December 31, 1996, levels and that increases or decreases in growth of RBMOU after December 31, 1996, not be .considered, since the intrastate CCL revenue requirements were frozen at their December 31, 1996, levels by section 4(e)(4)(D) of Act 77, Ark. Code Ann. § 23-17-404(e)(4)(D) (Supp. 1997). In his surrebuttal testimony, however, Redfern amended AUtel’s proposal. He stated that other carriers’ concerns that Alltel’s proposal would keep new entrants from paying for the non-traffic-sensitive portion of the network are well-founded and appear to justify that the actual PBMOU should not be frozen. Redfern, however, continued to argue that the categories of service, which were reported prior to December 31, 1996, must be frozen. Gerald Shannon, Regulatory Planning Manager for GTE Service Corporation (GTE), concurred with Alltel’s position, arguing that if SWBT were to reclassify some of its services from toll to local, then the proportion of payments to the AICCLP would change.
Larry Walther, Executive Director for Regulatory Matters for Southwestern Bell Telephone (SWBT), disagreed with Alltel and GTE. He testified that SWBT can reassign service between its exchanges from toll to local and thereby remove minutes of use from the AICCLP. He testified that some optional calling plans are toll services but he considered the flat rate plans, like the plan that SWBT implemented between Little Rock and Benton, to be an extended area service (EAS) type plan and local and should not be included in the AICCLP. When asked whether SWBT has historically reported the minutes of use associated with optional calling plans to the AICCLP, Walther replied: “[I]n the negotiations to establish those plans, [we] agreed to do that. That was not our position. We had always contended that those were local plans, and by agreement at the time we implemented them when we were in the toll pool.... We agreed with the AITP members that we would report them to the AITP.” (Transcript pp. 193-94.)
John Bethel, manager of the telecommunications section for Staff, testified that Staff supports the settlement of all intrastate CCL charges directly with the AICCLP but disagreed with Alltel’s initial recommendation that the RBMOU reported to the AICCLP should be frozen at their December 31, 1996, levels. He stated that section 23-17-404(e)(4)(D) did not freeze the level of minutes; that freezing RBMOU would prevent carriers initiating intrastate service after December 31, 1996, from reporting RBMOU and paying intrastate CCL charges; and that the CCL charges associated with the RBMOU of carriers that were operating at December 31, 1996, and have since ceased operating would be unrecoverable. Bethel also testified that ILECs could initiate optional calling plans or reclassify RBMOU from toll to local or intrastate to interstate, pursuant to Ark. Code Ann. §§ 23-17-408(c) and 23-17-412(a) (Supp. 1997), stating that it appears that electing ILECs are now able to initiate new telecommunications services and reclassify traffic from toll to local or intrastate to interstate without prior Commission approval and thereby remove the associated RBMOU from the AICCLP. He also stated that the ILECs previously initiated EAS routes, which expanded the local call area of an exchange for an additional monthly charge, and that the traffic affected by the introduction of EAS has been reclassified from toll to local.
At the conclusion of the hearing, the Administrative Law Judge (ALJ) accepted briefs from the parties. On July 1, 1998, she handed down Order No. 6, in which she held that, “[i]n the absence of the AITP, it is consistent with Act 77 and the IFR CCL Service tariff to settle the intrastate AICCLP charges of all participants directly with the pool as advocated by Alltel, GTE, and Staff.” Order No. 6 at 26. No party has appealed this holding from Order No. 6. However, the ALJ additionally held: “The ability to reclassify services from toll to local and reduce responsibility for AICCLP charges may be anti-competitive but it does not appear to be in conflict with any provision of Act 77.” Order No. 6 at 30-31. The ALJ concluded that Alltel’s Petition for Clarification should be granted as amended by Staff in the testimony of John Bethel and directed the AICCLP Administrator to amend and file the IFRCCL Service Tariff in accordance with the Staff’s Exhibit.
The Commission entered Order No. 7 in July 1998, which adopted as its own without modification Order No. 6 in Docket No. 97-419-U. Thereafter, various parties to the docket petitioned the Commission to rehear Order Nos. 6 and 7. Alltel and GTE asked the Commission to clarify that a carrier’s determination to reclassify services from toll to local does not alter the carrier’s obligation to continue to report the associated RBMOU to the AICCLP and pay the AICCLP charges for such RBMOU. Alltel also requested oral argument on this issue. The Commission granted Alltel’s and GTE’s petitions for rehearing and Alltel’s oral argument request in Order No. 9.
In its argument before the Commission, Alltel asserted that the RBMOU are part of the CCL Pool charges that section 27-17-404(e)(4)(D) requires to continue as effective. It noted that, prior to Order No. 6, ILECs were required to report their total RBMOU, which by definition included the ILECs’ minutes of use for those revenues reported to the AITP, and, although the AITP no longer exists, the same types of minutes must continue to be reported, otherwise part of the RBMOU included in the IFR CCL Tariff will be eliminated. Alltel also reiterated its argument that allowing ILECs to cease reporting minutes is anti-competitive and discriminatory, because it allows a reclassifying carrier to pay less pool charges while it increases the other carriers’ pool charges. GTE supported Alltel’s argument, explaining that it did not dispute that electing carriers have the flexibility to implement new services but disagreed that the reclassified minutes no longer have to be reported to the AICCLP. It argued that, in order for the CCL pool charges to continue as effective on December 31, 1996, as required by section 23-17-404(e)(4)(D), it is only logical that the formula by which they were computed will remain consistent throughout this period.
Staff argued before the Commission that recategorizing minutes from toll to local is consistent with the Commission’s practices; that, at the time Act 77 was passed, the Commission had the jurisdiction to consider communities of interest and to allow the provision of EAS services; and that, when EAS was allowed, the associated minutes of use were no longer considered toll and were removed from the CCL pool. Staff explained that Act 77’s stated purpose is to implement the national policy of opening the telecommunications market to competition on fair and equal terms and in order to be competitive with non-ILEC carriers, which can designate local calling areas and properly implement Act 77’s requirements, any ILEC ought to be able to offer up optional calling services and remove the associated minutes from the AIC-CLP. SWBT agreed with Staff that electing companies have the authority to initiate new local services and to reclassify services from toll to local. It noted that Act 77 makes no mention of freezing RBMOU or a specific allocation of the CCL charges. It emphasized that the Tariff defines the AICCLP using the word “toll,” which would not include local services.
On October 14, 1998, the Commission entered Order No. 10, which denied the petitions for rehearing of Alltel, GTE, and SWBT, without making any findings. Thereafter, Alltel filed its notice of appeal from Order No. 6 and the Commission’s orders, arguing that the Commission failed to regularly pursue its authority as required by Ark. Code Ann. § 23-2-423(c)(4) (Supp. 1997) in adopting Order No. 6. It contends that Order No. 6’s holding, that the ability to reclassify services from toll to local and thereby reduce responsibility for AICCLP charges does not appear to be in conflict with Act 77, is clearly erroneous.
Section 23-2-423 (c)(4) and (5) defines this court’s standard of review as determining whether the Commission’s findings of fact are supported by substantial evidence, whether the Commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the Constitutions of the State of Arkansas or the United States. See Bryant v. Arkansas Pub. Serv. Comm’n, 64 Ark. App. 303, 984 S.W.2d 61 (1998). This court has often stated that the Commission has broad discretion in exercising its regulatory authority, and courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. Id; Bryant v. Arkansas Pub. Serv. Comm’n, 55 Ark. App. 125, 931 S.W.2d 795 (1996); AT&T Communications of the S. W., Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 843 S.W.2d 855 (1992). Nevertheless, it is clearly for the courts to decide the questions of law involved and to direct the Commission where it has not pursued its authority in compliance with the statutes governing it or with the state and federal constitutions. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 593 S.W.2d 434 (1980). In questions pertaining to the regular pursuit of its authority, the courts do have the power and duty to direct the Commission in the performance of its functions insofar as it may deem necessary to assure compliance by it with the statutes and constitutions. Id.
In support of its contention that Order No. 6 violates section 23-17-404(e)(4)(D), Alltel relies on the meaning of the word “charges” in section 23-17-404(e)(4)(D), which provides:
Except as provided in this subdivision (D), the intrastate Carrier Common Line (CCL) Pool charges shall continue as effective on December 31, 1996. The commission is authorized to develop and implement, commencing three (3) years after February 4, 1997, a phase-in reduction of intrastate CCL pool charges until such charges are equivalent to the interstate CCL charges. Any reduction of intrastate CCL pool charges of incumbent local exchange carriers ordered by the commission shall provide for concurrent recovery of such revenue loss from the AUSF, basic local exchange rates, or a combination thereof.
Alltel maintains that the term “charges” that appears in this section refers to the pro rata charge that each carrier is billed by the AICCLP administrator and, because this section freezes the CCL charges for a minimum of three years, it also freezes the mechanism for determining the CCL charges., It cites two sections from the IFR. CCL Tariff to support its position:
3. General Description
The amount of the IRF CCL charges to the carriers shall be designed to recover the aggregate intrastate CCL revenue requirement. The CCL revenue requirement may include: 1) the sum of CCL revenue requirements in the intrastate jurisdiction for each LEC specified in Paragraph 6; 2) the direct expenses incurred by the AICCLP Administrator for billing and collecting the IRF CCL charge; and 3) other Commission ordered charges and credits. The AICCLP Administrator shall use the approved amounts until they are superseded by subsequent Commission order.
IFR CCL Tariff, 4th 5th Revised Sheet 4.
5. Rate Regulations
5.1 The AICCLP Administrator shall determine the amount to be billed obtaining the sum of:
• — ■ LEC’s intrastate CCL revenue requirement specified in paragraph 6 following.
— Other charges or credits approved by the commission.
5.2 The AICCLP Administrator shall determine each carrier’s IFR CCL charge by apportioning the intrastate CCL revenue requirement based on the percentage of each carrier’s reported intrastate net RBMOU relative to the total intrastate net RBMOU reported by all carriers as specified in 4.1, 4.2, and 4.3 preceding . .
IFR CCL Tariff, 3rd Revised Sheet 7. Because the Tariff provides that the AICCLP Administrator shall determine the CCL charge by the reported RBMOU, Alltel concludes that section 23-17-404(e)(4)(D) requires that the types of RBMOU, which were reported December 31, 1996, must continue to be reported.
In addressing Alltel’s argument that the word “charges” in section 23-17-404(e)(4)(D) refers to the individual charges the AICCLP Administrator bills to each carrier, the ALJ in Order No. 6 stated:
[Staff witness] Mr. Bethel stated that Alltel is mistaken in its attempts to limit the definition of AICCLP charges, citing to the AICCLP charges referenced in Ark. Code Ann. § 23-17-404(e)(4)(D) and more specifically defined in Paragraph 3 of the IFR CCL Service Tariff, contending that this language “include[s] more than the sum of the ILECs’ AICCLP revenue requirement identified in Paragraph 6 of the tariff.” T. 302
Mr. Bethel recommended that each telecommunications provider’s portion of the intrastate CCL charges be determined by using each carrier’s net RBMOU relative to the total net RBMOU reported by all of the carriers, a process described in Paragraph 5.2 of the IFR CCL Service Tariff.
Order No. 6 at 20.
We are unable to distinguish this statement of Bethel’s testimony from Alltel’s argument. Bethel testified in his prepared testimony that each carrier’s responsibility for the intrastate AICCLP charges should continue to be proportional to its RBMOU relative to the total RBMOU reported by all carriers. Although he testified that the level of RBMOU is not frozen by section 23-17-404(e)(4)(D), he acknowledged that freezing the revenue requirement at a point in time without freezing the associated traffic fails to recognize the relationship between those items. He explained that, when ILECs reclassify RJBMOU from toll to local and no longer report those minutes to the AICCLP, the relative portion of the AICCLP charges paid by other pool participants increases.
The ALJ held that “§ 23-7-404(e)(4)(D) freezes the CCL pool charges but not the RBMOU,” stating:
Alltel and GTE advocate that this section of Act 77 requires that the RBMOU should be frozen at the level reported in December, 1996, although the companies differ somewhat as to the calculation of the RBMOU. GTE and Alltel contend that it is necessary to freeze the RBMOU in order to prohibit ILECs electing “alternative regulation” from reclassifying certain services from toll to local, thereby reducing one ILECs portion of AICCLP charges and increasing the portion of AICCLP charges borne by other pool participants. As Staff points out, Ark. Code Ann. § 23-17-404(e)(4)(D) freezes the CCL pool charges, but not the RBMOU. Further, Staff witness Bethel pointed out that such a freeze “would prevent carriers initiating intrastate service after December 31, 1996, from reporting RBMOU and paying intrastate CCL charges” and “charges associated with the RBMOU of carriers that were operating at December 31, 1996, and have since ceased operating would be unrecoverable. T. 314. Carriers initiating service after December 31, 1996, would have a definite competitive advantage over other carriers in escaping any responsibility to pay CCL charges thereby enabling them to offer lower rates under the RBMOU freeze proposed by Alltel and GTE.
Order No. 6 at 30. However, the ALJ’s reliance on Bethel’s testimony in support of her holding suggests that she did not consider Alltel’s amended argument that the method for determining the RBMOU is frozen by section 23-17-404(e)(4)(D), not the actual RBMOU. Alltel witness Redfern testified in his surrebuttal testimony:
Mr. Lovell points out that under Alltel’s proposal, new entrants, after December 31 1996, would pay nothing for the non-traffic sensitive portion of the network. This was not Alltel’s intent when it interpreted that it was necessary to freeze RBMOU at December 31, 1996 levels. However, Mr. Lovell’s concern seems well founded and appears to justify that the actual RBMOU should not be frozen. In suggesting it was necessary to freeze the actual RBMOU Alltel is merely recommending how the Commission should implement the freeze in order to actually freeze the AICCLP charges as required by Act 77. While the Act provides little guidance to the Commission on this issue, it is clear that unless the method for determining the charges is also frozen, then the AICCLP charges will not be frozen. For example, unless the method is frozen then there is considerable opportunity for abuse that will clearly unfreeze the charges ....
The AICCLP charges, effective December 31, 1996, are frozen by Act 77 for three years. In order for this freeze of such charges to be effective, the method and formula for calculation of those charges must be frozen. This means the revenue requirement, as reflected in the Intrastate Flat Rate Carrier Common Line Service Tariff, is frozen effective December 31, 1996 and the categories of service, on which RBMOU were reported to the AICCLP, must also be frozen at December 31, 1996. Normal increases or decreases in growth in the BJBMOU of these categories of service, utilized at December 31, 1996, probably should continue to be reflected after December 31, 1996. However, such matters as RBMOU for categories of services, whether or not these services have been unilaterally reclassified by a carrier in its retail relationship with its customer after December 31, 1996, must continue to be reported to the AICCLP until the Act 77 freeze is over and until such time as the CCL revenue requirement is no longer frozen, or until the Commission has mandated a different mechanism for the ILECs to receive their intrastate CCL revenue requirement, in order to avoid the potential abuse of the system shown in the above example.
(Transcript pp. 84-86.) Although Alltel clearly amended its argument in the hearing before the ALJ, Order No. 6 only addresses its original argument. Furthermore, the Commission also disregarded Alltel’s amended argument in its appeal brief.
Alltel also argues that the Commission’s interpretation of section 23-17-404(e)(4)(D) is not supported by Ark. Code Ann. § 23-17-408(c), which provides in part that “[a]n electing company may increase or decrease its rates for telecommunications services other than basic local exchange service and switched-access services and establish rates for new services by filing a tariff or a price fist with the Commission.” In his surrebuttal testimony, Staff witness Bethel relied on this section and Ark. Code Ann. § 23-17-412(a) (Supp. 1987) in support of his statement that it appears electing ILECs are now able to initiate new telecommunications services and reclassify traffic from toll to local or intrastate to interstate without prior Commission approval. Alltel argues that, in reclassifying its optional calling plans, SWBT is not offering a new service and therefore section 23-17-408(c) is not relevant.
Although the ALJ noted Bethel’s testimony in Order No. 6, no findings were made regarding it. Furthermore, we are unable to address Alltel’s argument in regard to this section because it was not raised by Alltel in its petition for rehearing. Arkansas Code Annotated section 23-2-422(b) (Supp. 1997) provides that the application for rehearing shall set forth specifically the grounds upon which the application is based, and section 23-2-423(c)(2) provides that no objection to any order of the Commission shall be considered by the Court of Appeals unless the objection shall have been urged before the Commission in the application for rehearing.
For its final argument, Alltel contends that the Commission’s holding conflicts with other provisions of Act 77. In Order No. 6, the ALJ held that the ability to reclassify minutes from toll to local and reduce responsibility to the AICCLP may be anti-competitive, but does not appear to conflict with any provision of Act 77. It was undisputed by the parties that the removal of RBMOU from the AICCLP increases the relative proportion of CCL charges paid by other pool participants while decreasing the proportion paid by the reclassifying carrier. Staff witness John Bethel testified:
[T]he electing ILECs’ ability to reclassify services from toll to local and remove the associated RBMOU from the AICCLP, allows those carriers to reduce their portion of the AICCLP charges and increase the portion of the AICCLP charges borne by the other pool participants. This may not promote competition, in that it may create a competitive advantage over other pool participants, such as the non-electing ILECs and the IXCs, that may not be able to move similar minutes from the AICCLP, and must continue to pay, a portion of the AICCLP charges based upon those minutes.
(Transcript pp. 350-51.) In cross-examination, Bethel admitted that he perceived a conflict between the legislative intent described in séctions 23-17-408(c) and -412(a), on which he relied in support of his contention that ILECs can initiate new services and not report the reclassified RBMOU to the AICCLP, and Ark. Code Ann. § 23-17-402 (Supp 1997), which provides in part:
It is the intent of the General Assembly in enacting this subchapter to:
(1) Provide for a system of regulation of telecommunications services, consistent with the federal act, that assists in implementing the national policy of opening the telecommunications market to competition on fair and equal terms, modifies outdated regulation, eliminates unnecessary regulation, and preserves and advances universal service.
(2) Recognize that a telecommunications provider that serves high-cost rural areas or exchanges faces unique circumstances that require special consideration and funding to assist in preserving and promoting universal service.
Although the ALJ acknowledged in Order No. 6 that the ability to reclassify service from toll to local and reduce responsibility for AICCLP charges may be anti-competitive, she held that it did not appear to be in conflict with any provision of Act 77. This finding is not only contrary to Bethel’s testimony, but it is also confusing in view of the fact that the ALJ relied so heavily upon Bethel’s testimony in Order No. 6. Without an explanation as to how the Commission resolved this conflict, we are not able to address this finding on appeal.
Arkansas Code Annotated section 23-2-421(a) (1987) requires that the Commission’s decision be in sufficient detail to enable any court in which the action of the Commission is involved to determine the controverted question by the proceeding. Bryant v. Arkansas Pub. Serv. Comm’n, 64 Ark. App. 303, 984 S.W.2d 61 (1998). Courts cannot perform the reviewing functions assigned to them in the absence of adequate and complete findings by the Commission on all essential elements pertinent to a determination of the questions involved. Id; see also Bryant v. Arkansas Pub. Serv. Comm’n, 62 Ark. App. 154, 969 S.W.2d 203 (1998). When the Commission fails to set forth sufficiently the findings and the evidentiary basis upon which it rests its decision, this court will not speculate thereon or search the record for supporting evidence or reasons, nor shall we decide what is proper; instead, this court shall remand the case in order to provide the Commission an opportunity to fulfill its obligations in a supplementary or additional decision. Id; see also Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 56, 871 S. W.2d 414 (1994).
The Commission gives several reasons for affirming its decision on appeal. We find none of them dispositive. The Commission first states that it determined that Alltel’s proposals were contrary to Act 77 because Act 77 requires fair and equal treatment of all carriers. It contends that, since other carriers are allowed to offer local calling plans, freezing the minutes reported for only ILECs would result in unfair and unequal treatment of ILECs. This finding was not made in Order No. 6 or the subsequent Commission orders. Furthermore, no evidence was presented to support such a determination. Although Staff’s counsel argued before the Commission that other carriers, particularly cellular carriers, have the ability to offer local calling plans and reclassify minutes, it is well settled that arguments of counsel are not evidence. Wright v. State, 67 Ark. App. 365, 1 S.W.3d 41 (1999); Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996).
The Commission also contends that a known application of the “freeze” was provided in Commission Order No. 49 of Docket No. 86-159-U, which was entered March 8, 1996, approximately one year prior to the adoption of Act 77. The Commission states that this order was entered to comply with the directives of the House and Senate Interim Committees on Insurance and Commerce of the Arkansas General Assembly and the Committees’ Telecommunications Subcommittee and, pursuant to that directive, it froze the tariffs in place on March 8, 1996, but it did not freeze RBMOU reportable by any carrier. It concludes that, in view of the fact that the General Assembly directed the Commission to take no action affecting the general level of access charges and it complied by freezing the AICCLP revenue requirement but not the RBMOU, it must be presumed that the General Assembly was aware of the Commission’s interpretation of the “freeze” and would have specified in Act 77 that the RBMOU were also to be frozen if that was their intent.
We are unable to consider this explanation because there is no evidence in the record to support it, nor was it given in Order No. 6 or the subsequent orders in support of the Commission’s holding. Although the ALJ did refer to Order No. 49 and the legislative committees’ directives in Order No. 6, she did not explain how Order No. 49 or those directives were relevant to her holding.
The Commission also argues that it is clear that, prior to the adoption of Act 77, ILECs have reclassified traffic from toll to local and discontinued reporting the associated RBMOU to the AIC-CLP. In support of this statement, the Commission cites the testimony of Staff witness Bethel; however, Bethel did not testify that the associated minutes from a reclassified service were not reported to the AICCLP. He actually stated: “[T]he ILECs have, with Commission approval, initiated extended area service (EAS) routes in the past (e.g., Marion to West Memphis).... The traffic affected by the introduction of EAS has been reclassified from toll to local.” (Transcript p. 351.)
It is clear to us from the evidence presented at the hearing and the arguments of counsel both before the Commission and this court that there is a dispute as to whether reclassified minutes of use were required to be reported to the AICCLP or AITP prior to Act 77. In his surrebuttal testimony, Staff witness Bethel stated that SWBT witness Eldon Peters incorrectly argued that it was unfair for ILECs to report the RBMOU associated with intralLEC-inter- exchange traffic to the AICCLP, stating that this traffic has been reported to the AICCLP and should continue to be. SWBT witness Walther testified on cross-examination that SWBT can reassign services from toll to local and thereby remove minutes of use from the AICCLP, but also admitted that when SWBT implemented its optional calling plan, it agreed to report those minutes of use to the AITP. Even in the arguments before this court it was unclear whether reclassified RBMOU were reported to the pool. Without a finding on this controverted issue, we are unable to decide this appeal, m trying to resolve this issue, we further note that nowhere in the orders under review or the record can we find an explanation of the differences between optional, mandatory, and extended area service calling plans. The evidence suggests that EAS calling plans existed prior to Act 77; optional calling plans were coined by SWBT after the passage of Act 77, and there is also a reference in a Commission argument to mandatory calling plans. Especially in appeals from the Commission where we rely on its expertise, we must have adequate explanations of its decisions and the facts supporting those decisions and not have to resort to speculation.
Because of the reasons discussed in this opinion, we must reverse and remand those portions of Order No. 6 and the Commission’s orders that adopted the holding of the ALJ here in dispute, with directions to render adequate findings so that a meaningful review of that decision can be made.
Reversed and remanded.
Pittman, Hart, Jennings, Crabtree, and Roaf, JJ„ agree.
Order No. 9 also granted SWBT’s petition for rehearing, but the findings challenged by SWBT are not relevant to this appeal.
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George K. Cracraft, Chief Judge.
Faye Carrick appeals from a decree of divorce which awarded Olan Carrick judgment against her for the cost of improvements made by him to her non-marital property and which found that other personal items were marital property and not her separate property by way of gift. We find no error in those findings but we do find merit in her contention that the chancellor erred in holding that a promissory note and a certificate of deposit were not held as an estate by the entirety and were either solely the appellee’s property or were subject to unequal division as marital property.
The appellant testified that a Chrysler automobile, stove, refrigerator and other furniture in the former home of the parties, except for specific properties set forth in the decree, were her separate property by way of gift on birthdays and Christmas. The appellee testified that the Chrysler was his own property and replaced a vehicle he brought into the marriage and traded in on the purchase of the Chrysler. All of the payments on it had been made out of his own non-marital funds. He denied that the stove, refrigerator and other items listed in the decree were gifts but said they had been purchased for the parties’ mutual use.
On this conflicting evidence the chancellor found that the listed appliances were not gifts but marital property and ordered them sold and the proceeds equally divided unless the parties could divide them in kind by agreement. He further found that the Chrysler automobile was marital property and awarded it to appellee after considering the length of the marriage, the age, health and station in life of the parties and the amount and sources of their income, their occupations and the estates of each. The record showed that the marriage was a short one, both parties were gainfully employed and that the appellant owned seperate real and personal property of substantial value.
Under Ark. Stat. Ann. § 34-1214(A)(l) (Supp. 1983) the chancellor is permitted to make an unequal division of property when he finds such division to be equitable, having taken into consideration those factors stated by him in the decree. The findings of a chancellor will not be reversed unless clearly against the preponderance of the evidence and since the question of a preponderance of the evidence turns largely on the credibility of the witnesses we defer to the superior position of the chancellor in this regard. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); ARCP Rule 52(a). From our review of the record we cannot conclude that these findings of the chancellor were clearly erroneous.
The issues of the proper distribution of the so called “Lilley Note” and its related bank account and the $20,000 certificate of deposit were submitted to the chancellor on stipulated facts. It was agreed that the parties had been married twice, first in 1979, at which time the appellee brought into the marriage 130 acres of property located in Boone County and the appellant brought in real property with improvements located in Carroll County. Subsequent to the first marriage the parties by appropriate conveyances created an estate by the entirety in both tracts. Seven months later the parties were divorced and thereafter exchanged deeds which restored both tracts to their original separate status of ownership. On May 8, 1980, a week after these individual deeds were executed, the parties remarried and appellee conveyed his Boone County property to Pam Cogburn, his daughter by a former marriage. It was further stipulated that on August 27, 1980 Pam Cogburn conveyed the property in Boone County, formerly owned by appellee, to Olan Carrick and Faye Carrick, husband and wife.
On September 25, 1980 a portion of the Boone County property, then held by the entireties, was sold to Marvin Lilley and Joyce Lilley who executed a mortgage to secure a $28,850 balance due on the purchase price. The mortgage referred to “Olan L. Carrick and Faye Walker Carrick, husband and wife,” as mortgagees and the promissory note named “Olan L. Carrick and Faye Walker Carrick, his wife,” as payees. The monthly installments due under the note were paid into an escrow account at Green Forest Bank which at the time of the second divorce held the sum of $23,500.
In August of 1980 appellee and appellant contracted with Meredith Miller and Ginger E. Miller for the sale of an additional portion of the Boone County property then held as an estate by the entirety. According to the appellee, his wife signed the contract with him for the sale of the property for the sum of $35,000. The deed to the Millers referred to “Olan Carrick and Faye Carrick, husband and wife,” as grantors. The check was made payable to appellee only, who purchased a $20,000 certificate of deposit with a portion of the proceeds. That certificate of deposit was initially in the names of Olan Carrick and Faye Carrick, as husband and wife, but was subsequently withdrawn by appellee and reinvested in a $20,000 certificate of deposit in Olan Carrick and the name of his son by a former marriage.
The chancellor found that the Lilley note and the related bank account were in the names of both parties without indication of survivorship and were therefore not held as an estate by the entirety. He declared that as the property had been acquired in exchange for property brought into the marriage by appellee, it should be retained by him as his separate property as provided in Ark. Stat. Ann. § 34-1214(B)(2) (Supp. 1983). He further ruled that although it might be argued that the property was marital property within the meaning of § 34-1214 it should in equity be awarded to the appellee taking into consideration the length of the marriage, the age, health, and station in life of the parties and the amount and sources of their income, their occupations and the estates of each. He also held that the $20,000 certificate of deposit from the Miller transaction was traceable to the property brought into the marriage by appellee and should be his separate property for those same reasons. We do not agree.
Pam Cogburn conveyed the property to Olan Carrick and Faye Carrick, husband and wife. Without question that language creates an estate by the entirety. Shinn v. Shinn, 274 Ark. 237, 623 S.W.2d 523 (1981); Foster v. Schmiedeskamp, Adm’x, 260 Ark. 898, 545 S.W.2d 624 (1977). The note executed by the Lilleys was payable to them as husband and wife. It is now well settled that an estate by the entirety may exist with regard to personal property and where the note is made payable to a husband and wife a tenancy by the entirety in the personalty is created. Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975); Cooper v. Cooper, 225 Ark. 626, 284 S.W.2d 617 (1955); Jordon v. Jordon, 217 Ark. 30, 228 S.W.2d 636 (1950). Furthermore, when property held by tenants by the entirety is sold an estate by the entirety exists in the proceeds. Cooper v. Cooper, supra.
For the same reason we conclude that the trial court erred in holding that the $20,000 certificate of deposit resulting from the Miller transaction was not as an estate by the entirety. The certificate of deposit, however, presents a more complex question. Although we conclude that the appellant is entitled to a one-half interest, this certificate is now in the names of both the appellee and his son, who is not a party to this suit and whose rights cannot be adjudicated in this action. The certificate of deposit is not contained in the record and we cannot determine from the testimony whether the son is a cotenant, joint tenant or payable-on-death payee. As the record is not sufficiently developed on this issue we remand the case for further proceedings to determine the interest of the parties to the action in the certificate of deposit and to make proper division according to that interest.
It is further argued that the trial court erred in awarding appellee a judgment against the appellant for the cost of improvements on her separate real property which were made by him with his separate funds. The testimony was in conflict as to who made payments. Appellee testified that these improvements, a swimming pool and a fence, were paid for by his non-marital funds which he had acquired prior to the marriage in a 1974 sale of real estate. Appellant testified that only a small.portion of the improvements had been paid for before appellee left her and went to California and that she and her daughter had paid for the pool with the proceeds from a life insurance policy payable to her on the death of a prior husband. She testified that appellee had told her that he was installing a swimming pool as a gift. The appellant contends that under our law where a husband advances money to improve his wife’s separate property there is a presumption that a gift was intended. In Spruill v. Spruill, 241 Ark. 808, 410 S.W.2d 606 (1967) the court recognized that the presumption is rebut-table and when strictly applied frequently brings about a result that is harsh and inequitable. Stephens v. Stephens, 226 Ark. 219, 288 S.W.2d 957 (1956). Especially is this so in situations where the marriage is of short duration and there are other circumstances, such as those disclosed by this record.
The chancellor found that appellee had expended $8,460 of his personal funds for improvements on appellant’s property and entered judgment for that amount. Since the testimony was in conflict on this issue we defer to the superior position of the chancellor to determine the weight to be given to the witnesses’ testimony. However, as appellant points out, the appellee admitted that $875 expended by him to construct a fence around the swimming pool on her property came from joint funds. On remand an adjustment of the total amount of the judgment must be made with respect to that expenditure.
This cause is reversed and remanded for further proceedings with regard to appellant’s interest in the $20,000 certificate of deposit and the entry of a modified decree not inconsistent with this opinion.
Mayfield and Glaze, JJ., agree. | [
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OLLY NEAL, Judge.
Appellant Wilburn Daniels appeals from a decision of the Workers’ Compensation Commission finding that he failed to prove by a preponderance of the evidence that he suffered a compensable hernia while employed by appellee, Affiliated Foods Southwest. On appeal, appellant argues that the Commission erred in finding his testimony suspect when the administrative law judge specifically found that his testimony was credible, that the Commission erred in finding that he did not report his injury to appellee within forty-eight hours as required by Ark. Code Ann. § 11-9-523(a)(4) (Repl. 1996), and that the Commission’s reading of Ark. Code Ann. § ll-9-523(a)(4) contravenes the case law’s construction of how that section is to be read and applied.
Appellant was employed with appellee through a work-release program. On December 4, 1997, appellant sustained a compensable hernia to his right groin area. As a result, appellee paid all reasonable medical benefits associated with that injury. On April 16,1998, appellant testified that he felt a sharp pain in his groin area after taking a box off of a conveyer belt. He stated that he already had a scheduled doctor’s appointment at 1:30 p.m. on that day and that he thought he had reinjured his right-side hernia. Appellant testified that he soon realized that pain was coming from his left side. He stated that he stopped working at 12:30 or 12:45 p.m., and that he mentioned the pain to his supervisor and asked to go to the company nurse’s office to wait for a ride to his doctor’s appointment. As appellant sat in the nurse’s office, he did not mention to the nurse that he had injured himself.
When appellant went to his scheduled visit with Dr. Steven Williamson, he informed the doctor that he felt a pain in his left side. After conducting an examination, Dr. Williamson diagnosed appellant with a new hernia on the left side. Appellant, however, never stated to Dr. Williamson that he had injured himself at work, and medical records taken that day did not indicate that appellant had suffered his left hernia condition from his employment with appellee. Appellant testified that when he returned to work, he delivered a medical form to the company nurse, which stated that he could not work and perform heavy lifting. At that point, he testified that the company nurse informed him that he would need his own private insurance to cover the medical costs of the new hernia injury. Appellant further testified that when he was injured on the job in December of 1997, he reported the injury to his supervisor and filled out the necessary paperwork to establish a workers’ compensation claim. Appellant did not report that his new left hernia condition was work-related until April 21, 1998, which was five days after the new injury.
Butch Atwood, dry shipment supervisor for appellee, testified that he was appellant’s supervisor in April of 1998. He testified that appellee had a certain procedure that employees must follow if they are hurt at work and that new employees are instructed about the procedure during an orientation session. Atwood testified that appellant was aware of the procedure, and that appellant did not report a new hernia condition to him on April 16, 1998.
Jana Martin, industrial nurse for appellee, testified that she was responsible for handling paperwork associated with injured employees. Ms. Martin testified that on April 16, 1998, appellant came into her office before going to his doctor’s appointment. She' stated, however, that appellant did not indicate that he had sustained a new injury or that he was in any pain. Ms. Martin testified that after appellant returned with a medical form from his visit with Dr. Williamson, the form revealed that appellant had a left hernia, but did not indicate that the left hernia occurred during appellant’s employment with appellee.
At a hearing before the administrative law judge, appellant contended that his April 16, 1998, injury was compensable, and that he was entitled to all reasonable and necessary medical treatment related to his injury, temporary total disability, and attorney’s fees. Appellee contended that appellant’s new hernia condition on the left side of his body was not related to his employment. In finding that the new hernia condition was compensable, the ALJ found that appellant was a credible witness and that although appellant did not give proper notice of his new injury, he did give reasons for not properly reporting the new injury. In noting these reasons, the ALJ made the following assessment:
[Appellant] is suffering from a prior compensable hernia injury with residual symptoms, and was scheduled for a doctor’s appointment on the very day that he experienced additional pain and difficulties in his groin area. He has little or no medical knowledge, therefore he defers to his doctor whom he has already scheduled to see that afternoon at 1:30, to tell him what is going on.
The ALJ found that appellee was given notice of the new injury on the same afternoon after appellant’s doctor’s appointment and that appellant had established a compensable left hernia condition. The full Commission reversed the ALJ’s opinion, finding upon de novo review, that appellant failed to prove that he suffered a new com-pensable injury. The Commission found that appellant was aware of the procedures to follow if a person is injured on the job, and that appellant failed to mention to his supervisor, the company nurse, and his physician that he had injured himself at work. The company nurse testified that appellant spent time in her office before his scheduled doctor’s appointment and that he did not report any new injury to her. She testified that she was the person who completed the necessary paperwork for appellant’s compensable right hernia condition in December of 1997. The Commission further found that it was significant that appellant’s physician did not indicate that appellant had reported the event that caused his left hernia condition, and that appellant’s testimony was suspect because he failed to tell anyone that he had suffered a work-related injury before and after being diagnosed with a new hernia condition.
On appellate review of workers’ compensation cases, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Workers’ Compensation Commission and will affirm the Commission’s ruling if there is any substantial evidence to support the findings made. Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). If reasonable minds could reach the Commission’s conclusion, its decision must be affirmed. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).
Appellant first argues that the Commission erred in finding that his testimony was suspect when the administrative law judge found his testimony to be credible.
In this case, the Commission found that appellant’s testimony was suspect because the only evidence supporting appellant’s contention that he suffered a new compensable injury on April 16, 1998, was appellant’s own testimony. The Commission found that appellant failed to inform his employer and physician that he had injured himself on April 16, 1998, despite the fact that appellant knew the proper procedures for reporting injuries to his employer and the fact that the medical evidence diagnosing him with a left hernia condition did not indicate any statement made by appellant revealing the event that caused the condition. Appellant’s supervisor at the time of his injury and the company nurse testified that appellant did not notify them of a new injury on April 16, 1998. Ms. Martin even stated that she was confused when appellant came back from his doctor’s appointment with a medical release from work. Although appellant informed Ms. Martin that his doctor had diagnosed him with a left inguinal hernia, Ms. Martin testified that there was nothing in the medical records that indicated that appellant’s injury was work-related. It is the exclusive function of the Workers’ Compensation Commission to determine the credibility of witnesses and the weight to be given their testimony. Williams v. Prostaff Temporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998). Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Express Human Resources III v. Terry, 61 Ark. App. 258, 968 S.W.2d 630 (1998). 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. Crawford v. Pace, 55 Ark. App. 60, 929 S.W.2d 727 (1996). Further, the appellate court reviews the decision of the Commission and not that of the administrative law judge. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998).
Appellant next argues that the Commission erred in finding that he did not report his injury to appellee within forty-eight hours as required by Ark. Code Ann. § 11-9-523 (a) (4). Arkansas Code Annotated section 11-9-523 (Repl. 1996) states in pertinent part: “(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the Workers’ Compensation Commission ... (4) that notice of the occurrence was given to the employer within forty-eight (48) hours thereafter....”
Here, appellant argues that “given that he had suffered the same injury in the recent past, coupled with the fact that he was not fully recovered from that injury, he reasonably concluded that it was understood that the second injury was caused just like the first.” However, appellant admitted that the only statement he gave to his employer on April 16, 1998, was that he was hurting. He further testified that when he went to the nurse’s office to wait for his ride to the doctor’s office, he did not “say anything to Ms. Martin about my hurting myself again,” and that he only informed his doctor that he felt a sharp pain in his left groin area. On these facts, we, conclude that there was substantial evidence to show that appellant did not meet the statutory notice requirements in relation to his new hernia condition.
Lastly, appellant argues that the Commission erred in its reading of Ark. Code Ann. § ll-9-523(a)(4). He argues that upon discovering that he had developed a new hernia, one could reasonably conclude that he was probably injured in the same manner as his compensable right hernia condition. In support of his argument, appellant relies on Min-Ark, supra, for the proposition that the claimant need not state with precision the precipitating event leading to his hernia. However, appellant’s argument has no merit. In Min-Ark, the claimant informed his employer that he was in pain shortly after the onset of his hernia condition and the employer was aware that the claimant had been lifting heavy pallets. In this case, appellant simply informed his immediate supervisor that he was in pain, without stating that his new hernia condition occurred at work. Further, he did not indicate to his physician or the company nurse that he had suffered a new work-related injury.
Based on these facts, we cannot say that there was no substantial evidence to support the Commission’s findings that appellant failed to prove by a preponderance of the evidence that he sustained a compensable injury on April 16, 1998.
Affirmed.
Pittman, Jennings, Bird, and Crabtree, JJ„ agree.
Robbins, C.J., Hart, Stroud, and Griffen, JJ., dissent. | [
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MARGARET Meads, Judge.
This is an automobile accident liability case. Appellant appeals from a judgment based on a jury verdict in favor of the appellees on appellant’s complaint of negligence. Appellant’s only argument on appeal is that the trial court erred in refusing to instruct the jury with regard to Ark. Code Ann. § 27-37-501 (Repl. 1994), which provides that every motor vehicle must be provided with adequate brakes.
On August 11, 1995, a three-vehicle accident occurred involving appellee Richard Cook; appellant, Kimberly Vann; and Tony Thompson, who is not a party to this appeal, at the intersection of Willie Ray Drive and James Drive in Cabot, Arkansas. Ms. Vann was traveling south on Ray Drive; Thompson was driving north on Ray Drive; and Cook was driving east on James Drive. Cook was driving a 1973 Chevrolet flatbed truck pulling a trailer with a dozer on it. The owner of Cook’s vehicle was his employer, appellee M.J. Construction Company. The accident occurred when Cook failed to stop at a stop sign on James Drive and made a right turn onto Ray Drive to go south. Thompson, who was proceeding north on Ray Drive, hit part of Cook’s trailer which extended into his lane of traffic, lost control of his vehicle, and hit the vehicle being driven by Ms. Vann.
Cook testified that he went through the stop sign, but that he had no alternative because his brakes did not work. He said that he had made more than one stop before the accident, and the brakes worked each time. However as he approached Ray Drive and applied the brakes, they “just did not work.” He testified further that M.J. Construction is safety conscious and maintains its vehicles, and when the vehicle was repaired, the problem was that the vacuum booster on the brakes had failed. Trooper Gene Page, who investigated the accident, testified that there were no skid marks coming from James Drive.
Appellant argues on appeal that the trial court erred in failing to give her jury instruction based on AMI Civ. 3d 903, which provides a format for instructing the jury that violation of a statute may be considered evidence of negligence. The statute involved in this case is Ark. Code Ann. § 27-37-501 (Repl. 1994), which provides:
(a)(1) Every motor vehicle, other than a motorcycle or motor-driven cycle, when operated upon a highway, shall be equipped with brakes adequate to control the movement of, and to stop and hold, the vehicle, including two (2) separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two (2) wheels.
(2) If these two (2) separate means of applying the brakes are connected in any way, they shall be constructed so that failure of any one (1) part of the operating mechanism shall not leave the motor vehicle without brakes on at least two (2) wheels.
The model instructions permit the statute to be quoted or summarized.
This is the instruction proffered by appellant:
AMI 903 VIOLATION OF STATUTE AS EVIDENCE OF NEGLIGENCE: There was in force in the State of Arkansas at the time of the occurrence a statute which provides: First: every motor vehicle . . . when operated on a highway, shall be equipped with brakes adequate to control the movement of, and to stop and hold, the vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be constructed so that failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels.
Appellees objected to the instruction on the basis that § 27-37-501 was not applicable . The trial judge responded that he believed it could have been applicable, but “it is in the transportation, and I think it’s probably talking about eighteen wheelers, etc.” The trial judge also said that he had read some case law that stated that a hand brake complies with the law.
Appellant alleges error because the statute is not limited to eighteen wheelers, appellees admitted that the brakes were defective, and there was no other excuse for the accident. A party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support the giving of the instruction. Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997).
Here, the trial judge refused to give the instruction on the basis that it applied to eighteen wheelers and because a hand brake complied with the law. However, the statute provides that “every motor vehicle” shall be equipped with brakes adequate to stop the vehicle. Our statute requires all vehicles to be equipped with adequate brakes, and a violation of this statute is evidence of negligence; a jury may find negligence on the part of a driver whose brakes suddenly fail. Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965); Brand v. Rorke, 225 Ark. 309, 280 S.W.2d 906 (1955).
The proffered instruction was a correct statement of law, and there was evidence that appellees’ brakes had failed, which constituted some evidence to support the giving of the instruction. Therefore, we find that the trial court erred in refusing to give appellant’s proffered instruction," and we reverse on this point.
Reversed and remanded for a new trial.
Robbins, C.J., and Bird, J., agree.
The instruction originally included wording regarding deceleration and stopping distance (Ark. Code Ann. § 27-37-502 (R.epl. 1994)). The trial court stated that there was no testimony about decelerating and stopping distance, and appellant removed that part of the instruction with the court’s permission. | [
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Donald L. Corbin, Judge.
This is the second appeal of this case involving appellant, Ted Queen, and appellees, Royal Service Company and Hartford Insurance Company. In the first appeal, we reversed the decision of the Workers’ Compensation Commission wherein the Commission denied benefits because appellant was the “alter ego” of Royal Service Company. On petition for rehearing, we remanded the case to the Commission to make a determination as to whether or not the injury sustained by appellant arose out of and in the course of his employment because the Commission had not addressed that issue in the prior proceeding. The Commission then remanded the case to the Administrative Law Judge who found that appellant had failed to prove by a preponderance of the credible evidence that he was acting in the course and scope of his employment when he sustained injuries as a result of a motor vehicle accident on June 15, 1979. The Commission affirmed and adopted the ALJ’s decision. We affirm.
The issue on appeal is whether the Commission’s decision is supported by substantial evidence. For reversal, appellant relies principally upon the decision of Guidry v. J & R Eads Const. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). There, the claimant was injured and subsequently underwent surgery for a ruptured disc. The claimant was given a permanent partial disability rating as a result of the job-related injury and released to return to work. On appeal, the claimant contended that the rating was insufficient, that his healing period had not ended, that he should be allowed a retroactive change of physicians and that he was entitled to future medical treatment. At a hearing before the Administrative Law Judge, the claimant admitted that he was involved in an automobile accident some five months after his original compensable injury and that suit was filed against the employer of the driver of the other vehicle. The claimant’s complaint alleged that he had suffered pain and injuries and acute aggravation of previous disc disease. The claimant also stated under oath in answers to interrogatories that the injury sustained in the auto collision aggravated the previous back injury. The Commission denied benefits on the basis that there was a new event that occurred which aggravated the claimant’s prior injury and went on to state in its opinion that it would not award benefits to a claimant who had previously given sworn statements in a pending lawsuit to the effect that his physical difficulties related to a non-job related auto accident and who later changed his mind and decided to file a workers’ compensation claim for additional benefits. In remanding the decision, this Court stated that it was not the Commission’s prerogative to refuse compensation to a claimant simply because he was untruthful.
The record in the case at bar reflects that hearings were held on November 1,1979, andAugust8,1983, to determine whether appellant sustained a compensable injury on June 15, 1979. Following the Commission’s remand to the Administrative Law Judge, appellant’s attorney requested permission to submit additional evidence “relative to the scope of employment of Mr. Queen and some business records relative to his comp rate.” Appellant attempted to introduce an affidavit by Calvin Murphy and ledger sheets of Royal Service Company from August 1978 through July 1979. Calvin Murphy’s affidavit was disallowed as appellees objected to the affidavit itself because they had no opportunity to cross-examine and the evidence did not qualify as newly discovered evidence. The second hearing was held on August 8, 1983, to proffer Calvin Murphy’s testimony. Calvin Murphy did not appear at the hearing and his deposition was taken later that month. The ALJ subsequently determined that the deposition did not qualify as newly discovered evidence pursuant to the authority of Walker v. J & J Pest Control, 6 Ark. App. 171, 639 S.W.2d 748 (1982). Calvin Murphy testified in the proffered deposition that h^ was working on a job at a Bill Fowler’s residence in Pine Bluff and that appellant, who was the plumber on the job, “came by to fix the plumbing;” Calvin Murphy could not, however, remember the specific date that appellant came to the job.
In her conclusions, the ALJ stated the following:
Claimant was the only person in the truck at the time of the vehicular accident, and he apparently is the only person who can verify why he was traveling from Pine Bluff to Benton. Under the principle that all reasonable doubts should be resolved in favor of the claimant, claimant’s testimony, standing alone, would, in most instances, be sufficient. However, claimant is simply not a credible witness, and I do not believe his testimony that he was acting within the scope of his employment when the accident occurred. Claimant submitted fraudulent income tax returns to the federal government for at least two years. Claimant issued a fraudulent wage statement to Hartford Insurance Company after the injury occurred. Claimant brought a cane to the hearing and testified that he was permanently and totally disabled; however, he was able to win the Senior’s Division of the state golf tournament some months previously. Claimant paid for personal expenses out of company funds and listed those expenses as corporate expenses on his corporate income tax returns. In short, it is difficult for me to believe that the only time this claimant has told the truth is when he testified regarding his injury.
In addition, claimant testified that he was going to see a plumber, Bobby Chase, in Benton when the accident occurred. However, the testimony of Bobby Chase has never been submitted or proffered to substantiate that testimony. (Although I have held that the deposition of Mr. Calvin Murphy is not admissible since it does not qualify as newly discovered evidence, and I considered Mr. Murphy’s deposition, it would not have changed the result of this opinion since Mr. Murphy did not know what date claimant came by Bill Fowler’s residence).
We do not view the above language as amounting to a denial of compensation to appellant solely because appellant was found to be untruthful. Nor do we believe that the holding in Guidry, supra, mandates a reversal of this decision.
It is well settled that questions of credibility of witnesses and weight to be accorded evidence presented to the Commission are prerogatives of the Commission and not of the reviewing court and that courts must rely on the Commission’s findings because they are better equipped by specialization, insight and experience in matters referred to them than are the appellate courts. DeFrancisco v. Arkansas Kraft Corp., 5 Ark. App. 195, 636 S.W.2d 291 (1982). The record in the instant case reflects that the only evidence adduced at the hearings to establish that the injury of June 15, 1979, arose out of and in the course of appellant’s employment was the testimony of appellant himself and the Commission determined that appellant was not a credible witness. This determination by the Commission was certainly within its powers and we cannot say that it was not supported by substantial evidence. The burden was upon appellant to establish that the injury he sustained arose out of and in the course of his employment in order for the disability to be compensable.
The Commission found that appellant had failed to prove that his injury arose out of and in the course of his employment and we are unable to say that fair-minded persons, with the same evidence before them, could not have reached that same conclusion.
Affirmed.
Cooper and Mayfield, JJ., dissent. | [
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Tom Glaze, Judge.
This case involves the appellee’s repossession and disposal of a combine he previously had sold to appellant, who defaulted on his payments. The ultimate question to be decided is whether the appellee, a secured party, complied with Uniform Commercial Code §§ 85-9-504 and 85-9-507 in disposing of the combine. After he sold the repossessed combine, appellee filed suit against appellant for the claimed deficiency owed under the parties’ original agreement. Appellant answered, denying appellee’s claim and affirmatively alleging that the combine was not sold in a commercially reasonable manner. Specifically, appellant alleged that instead of reselling the combine immediately upon repossessing it, appellee loaned parts off the combine to other customers. Appellant claimed that he was relieved of any indebtedness because of appellee’s actions even though appellee eventually resold the combine. The trial court gave appellee a deficiency judgment for the amount of appellant’s indebtedness, giving him credit for the proceeds received from the sale of the combine; it also deducted one annual installment payment from the indebtedness, which represented the period of time during which appellee loaned parts off the combine to other customers.
To determine the correctness of the deficiency judgment awarded appellee, we first review whether he established his right to it in accordance with applicable Code provisions and case authority. Appellee’s right to a deficiency judgment is provided for by Ark. Stat. Ann. § 85-9-504(2) (Supp. 1981). In seeking a deficiency judgment, the secured creditor must establish the amount to which he is entitled. See Universal C.I.T. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970). It is only when the sale is conducted according to the requirements of the Code that the amount received or bid at a sale of collateral is evidence of its true value in an action to recover a deficiency. Universal C.I.T. v. Rone, supra. When the debtor defends upon the ground that the secured creditor did not proceed in accordance with the provisions of the Code, the creditor has the burden of proving that he proceeded in a commercially reasonable manner. Farmers Equipment Co. v. Miller, 252 Ark. 1092, 482 S.W.2d 805 (1972). Whether a sale of collateral was conducted in a commercially reasonable manner is essentially a factual question. United States v. Conrad Publishing Co., 589 F.2d 949 (8th Cir. 1978). If a secured creditor sells the collateral in a commercially unreasonable manner, a presumption arises that the value of the collateral is equal to the outstanding debt; however, the secured party can still recover a deficiency upon proving that the reasonable value of the collateral was less than the debt. See United States v. Conrad Publishing Co., supra; Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968); Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966); and J. White & R. Summers, Uniform Commercial Code (2d ed. 1980).
In the instant case, the events leading to appellee’s sale of the collateral (combine) are not in dispute. On October 19, 1976, appellant purchased the combine from appellee, paying $11,000 down against the $38,750 sale price. After complaining about repair problems with the combine and defaulting in his payments, appellant returned the equipment to appellee, who agreed to resell it. The parties disagreed concerning the return date, but the trial court found the combine was returned on or before January 1, 1977. To sell the equipment, appellee notified other dealers of the repossessed combine instead of advertising or displaying it at auctions. The combine remained on appellee’s business lot until it was sold through a dealer on September 11, 1979, for $18,000. Until this sale, appellee said that he had received (and rejected) one offer between $13,000 and $15,000 for the machine. During the period appellee held the equipment for resale, he loaned its motor to a customer. The customer used the motor during harvesting season.
As noted earlier, the trial court awarded appellee a deficiency judgment; but, in doing so, it found the combine was not a salable item during the approximate one-year period that the engine was out of the equipment and on loan to appellee’s customer. In other respects, the court found the sale held on September 11, 1979, met Code requirements. However, because appellee caused the equipment to be unsalable for a year, the trial court credited an annual payment against appellant’s deficiency. This was error. Once the court properly determined the sale was not commercially reasonable, the legal presumption arose that the combine was worth the amount of the debt, viz., $27,000. Consequently, appellee was entitled to a deficiency j udgment only if he proved the reasonable value of the combine was less than $27,000. Appellee simply failed to do so. In fact, appellee offered no opinion or other evidence pertaining to the combine’s reasonable value. The only testimony given by appellee was that he had had a single offer of between $13,000 and $15,000 for the equipment, and a year later, he sold it for $18,000. Such testimony in no way established the value of the combine or the amount it should have brought. See Barker v. Horn, supra. Accordingly, we reverse the trial court’s judgment and remand this cause to be dismissed.
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Donald L. Corbin, Judge.
Appellant, First State Bank of Crossett, brought an action against appellee, Barbara Phillips, to foreclose a real estate mortgage upon her home. In answer, appellee raised the affirmative defense of estoppel and counterclaimed, seeking damages for appellant’s violation of certain provisions of the Federal Truth in Lending Disclosure Law. The trial court made the following findings: (1) appellant was estopped from foreclosing the mortgage, (2) appellee was entitled to reinstatement of the underlying debt upon the terms stated in the mortgage, and (8) appellee was entitled to judgment in the amount of $1,000.00 plus interest and attorney’s fees for appellant’s violation of the Federal Truth in Lending Disclosure Law. We affirm.
Appellant made a $85,000.00 home loan to the Brooks, appellee’s predecessor in title, in 1977. The Brooks had executed a promissory note for $35,000.00 in favor of appellant, to be paid in 59 monthly installments of $275.86 and a final installment of $33,520.93. The Brooks had secured the note with a mortgage upon the property which recited a note of $35,000.00 payable in 360 monthly installments of $275.36 each.
In May of 1980, appellee, Barbara Phillips, bought the Brooks’ home and assumed their loan with appellant. The “Agreement of Assumption, Release and Modification” entered into by appellee, the Brooks and appellant, referred to the mortgage and note, citing only the monthly payment amount of $275.36 and the interest rate of 8.75 percent per annum. The agreement itself did not state the' number of monthly payments for which the mortgage was calculated. The mortgage cited 360 payments of $275.36 each. Appellee did not see or receive a copy of the Brooks’ original note.
In July of 1982, appellant notified appellee that pursuant to the balloon feature of Brooks’ original note, the balance of the indebtedness was then due. Appellee was unable to make this payment but continued to make monthly payments of $275.36 which appellant accepted. In December of 1982, appellant filed its action for foreclosure.
In her answer to appellant’s foreclosure action appel-lee raised the affirmative defense of estoppel claiming that appellant misrepresented to her that the loan was payable in 360 installments of $275.36 each and violated the Federal Truth in Lending Disclosure Law by failing to disclose the number, amount and timing of payments scheduled to repay the loan obligation.
On appeal, appellant argues that the trial court’s finding that appellant was estopped to foreclose the mortgage was against the preponderance of the evidence.
Upon appeal, we review the evidence in the light most favorable to appellee and sustain the trial court’s findings unless they are clearly against the preponderance of the evidence. ARCP Rule 52(a).
The doctrine of estoppel is raised to prevent an injustice to one who has in good faith relied upon the actions, representations, or conduct of another to his detriment. Collier v. Brent, 266 Ark. 1008, 589 S.W.2d 198 (1979). To establish estoppel, one must show that the party being estopped knew the facts and intended that his conduct be acted upon, and that the party seeking estoppel was ignorant of the true facts and relied upon the other’s conduct to his injury. Wells v. Everett, 5 Ark. App. 303, 635 S.W.2d 294 (1982). Substantial evidence was presented indicating that appellant’s loan officer knew the terms of the original note when he discussed with appellee her assumption of the loan. Evidence was presented to establish that not only did the officer fail to give appellee a copy of the original note or to inform her of its terms, but he incorrectly informed her that the mortgage was payable in 360 monthly installments of $275.36. Appellee testified that she questioned the loan officer about the terms of the loan and at no time was she ever made aware that the terms of the loan repayment were anything but 360 payments of $275.36 each. Appellee testified that the repayment terms were of extreme importance to her because of her limited income and that she would never had bought the house had she known the terms included a balloon payment. Appellant’s witness testified that he did not remember discussing 360 payments with appellee. However, it is the province of the trier of fact to determine the credibility of the witnesses and resolve any conflicting testimony such as existed here. We recognize the superior opportunity of the trial court to judge credibility of witnesses. ARCP Rule 52(a); Morriss v. Wynia, 270 Ark. 260, 603 S.W.2d 482 (Ark. App. 1980). Deferring to the trial court’s superior ability to resolve issues of credibility, we believe there was ample evidence to sustain the trial court’s finding that appellant was estopped from foreclosing its mortgage.
Appellant also argues that the trial court erred in awarding appellee damages upon her counterclaim because her claim is barred by the one year limitation on actions under 15 U.S.C. § 1640(e) (1982). Appellant does not dispute that it failed to make the disclosures required under Regulation Z of the Truth in Lending Regulations codified at 12 C.F.R. § 226.20 (1982), only that appellant’s action was barred by the one year limitation under 15 U.S.C. § 1640(e) which states:
Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. This subsection does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law.
Appellant argues that appellee’s counterclaim did not fall under the “recoupment or set-off” exception of 15 U.S.C. § 1640(e), but was a separate cause of action for an independent wrong and therefore barred because it was not brought within one year of the violation. We must disagree. The language of § 1640(e) makes it clear that one sued to collect a debt may assert, as recoupment or set-off, any counterclaim for violation of the Federal Truth in Lending Disclosure Law regardless of the one year limitation. Recoupment is the right to keep back rightfully some part owed so as to reduce or dimish the total sum due. See, United Missouri Bank v. Robinson, 7 Kan. App. 120, 638 P.2d 372 (1981). In this instance, appellant’s action and appellee’s counterclaim arose from the same loan transaction. Appellee would have been entitled to a recoupment or set-off in the amount awarded to her upon her counterclaim even if appellant had prevailed upon his cause of action. Thus, appellee’s counterclaim was one in the nature of a recoupment and the trial court correctly determined that the one year limitation under 15 U.S.C. § 1640(e) was inapplicable.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission.
Robert Young was employed at a Blytheville plant where he operated a machine that placed bottoms on metal cans. About three weeks prior to his fatal heart attack, Young suffered pains in his left shoulder and arm. He consulted doctors at the Blytheville Air Force Base who told him he probably had bursitis in that shoulder. On Thursday and Friday immediately preceding his fatal heart attack, he did not go to work and continued to feel bad all through the weekend. Nevertheless, he returned to work at 7:00 a.m. on Monday, November 17, 1980, and worked until about 3:15 p.m. when he was found collapsed and unconscious at his work station. He was taken by ambulance to the office of a Blytheville physician, then to a Blytheville hospital, and subsequently to a Memphis hospital where, on December 7, he died without regaining consciousness.
The administrative law judge denied the claim by Young’s widow on the basis that she had failed to prove by a preponderence of the evidence that Young’s death was the result of his work. The full Commission affirmed. This appeal followed. We affirm.
Essentially, the argument on appeal is that there was not sufficient evidence to sustain the decision of the Commission. Appellant points out that Young’s job was in an area where the noise level was very high and involved watching and refilling a machine that held 22,000 can bottoms and applied 750 per minute. She argues that this presented a stressful work environment which increased the metabolic demand on the heart and caused Young’s fatal attack.
Young’s widow testified he was 48 years old when he died, that he had retired from the Air Force after 20 years, and had been working at the appellee company since the mid 1970s. She did not know of any heart trouble he had previous to his heart attack on November 17.
An ambulance brought Young to Dr. Ronald Smith’s office where they got a heart beat started and then the ambulance took him to the base hospital. Smith testified that, based on his examination of Young and the information he obtained from Mrs. Young, it was his opinion that Young had a heart disease that predated his employment with the appellee company and that his work did not “contribute” to his heart attack but was “an incidential factor.” The doctor said the heart attack would have occurred anyway, regardless of what Young was doing, and the fact that he was at work when it happened was “a coincidental fact.” Dr. William Flannigan, who treated Young in Memphis, testified that considering the symptoms Young was having on November 17, he would have advised bed rest and restricted activities and he would have told Young that it would be dangerous to work that day. However, he said, if Young had not gone to work, his attack could have occurred at home.
The appellant directs us to a number of cases involving workers’ compensation coverage for heart attacks under conditions similar to the one in this case. In Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S.W.2d 489 (1959), the court sáid the fact that Robbins was engaged in only usual and ordinary duties at the time of his death did not bar recovery. The court relied upon a previous decision where it had said:
Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary. (Emphasis supplied.)
Other cases cited by appellant as standing for the same proposition are Hoerner Waldorf Corp. v. Alford, 255 Ark. 431, 500 S.W.2d 758 (1973); Reynolds Metals Company v. Cain, 243 Ark. 483, 420 S.W.2d 872 (1967); and Kempner’s v. Hall, 7 Ark. App. 181, 646 S.W.2d 31 (1983) We have no problem with those cases because in each the Commission found for the employee, the appellate court affirmed, and the Commission’s decision was supported by substantial evidence. This is clearly in keeping with our standard of review which requires that we view the evidence in the light most favorable to the Commission’s decision and affirm that decision if it is supported by substantial evidence, Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). We affirm even though a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, Bankston v. Prime West Corp., 271 Ark. 727, 610 S.W.2d 586 (Ark. App. 1981); Roc-Arc Water Co. v. Moore, 10 Ark. App. 349, 664 S.W.2d 500 (1984). It is because we believe the Commission’s decision is supported by substantial evidence that we affirm its decision in this case.
One case cited by appellant does give us a problem. That case is Dougan v. Booker, 241 Ark. 224, 407 S. W.2d 369 (1966), where the appellate court reversed the decision of the Commission. The distinguishing feature of that case, however, is that an employee with a bad heart collapsed and died on the job shortly after he had “put forth unusual exertion” in his work, and the court makes it clear that it was this unusual exertion that required the Commission’s decision to be reversed. Here there is evidence that Young’s job was one of the easiest in the plant; that while the machine operated by Young was running, one could leave it long enough to get a cup of coffee and that eight pounds was the most weight Young ever had to lift. Also there was testimony that the noise level was not considered to be “all that loud” and that earplugs were supposed to be worn. Because of this evidence we conclude that Dougan v. Booker did not require that the Commission find for the appellant as there was substantial evidence from which the commission could find that there was no unusual exertion being made by Young at the time of his collapse on the job and absent unusual exertion it was up to the Commission to determine whether the exertion used was either the sole or a contributing cause of the heart attack. Reynolds Metals Company v. Robbins, supra.
Appellant points. out that Dr. Smith testified that Young’s heart attack was “incidential” to his work and that the doctor said Young’s work could have affected the “timing” of his attack. Thus, it is contended that Young’s heart attack was compensable because his work aggravated his preexisting condition. Reynolds Metals Co. v. Cain, supra. Again, applying the substantial evidence rule, we think the Commission could find that Young’s work did not aggravate or contribute to his heart attack since Dr. Smith said the work was only incidential to the heart attack and in his opinion the attack would have occurred on the very same day whether Young had been at home or at work.
Finally, we note appellant’s argument that the Commission. was required to give appellant the benefit of the doubt and to draw all the reasonable inferences favorable to her claim. Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W.2d 614 (1956); O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979); and Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W.2d 692 (Ark. App. 1979). However, the Arkansas Supreme Court has said that the Commission’s failure to apply that standard in its determination is not a basis for appellate reversal as the appellate court must affirm if the Commission’s decision is supported by substantial evidence. Buckeye Cotton Oil v. McCoy, 272 Ark. 272, 613 S.W.2d 590 (1981); Clark v. Peabody Testing Service, supra.
Affirmed.
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JOHN Mauzy Pittman, Judge.
Appellant Vincent Lonigro, Jr., appeals from an order of the Union County Chancery Court regarding custody of the parties’ minor daughter, Gina, and the award of child support to appellee.
At the time of their divorce in 1994, appellee obtained custody of the parties’ two minor children, a son, Drew, and a daughter, Gina. In July 1995, Gina began living with appellant, who subsequently petitioned the court for custody and for a reduction in child support. The court awarded joint legal custody of Gina to the parties’ and physical custody to appellant. Appellant argues that he should have legal custody of Gina because appellee has legal custody of Drew. The court stated it placed Gina in the parties’ joint custody because the parties indicated that Gina’s living arrangements would be evaluated at Christmas and that Gina might opt to return to live with appellee. The court placed Gina in joint custody so that appellee would not be required to prove a material change in circumstances should Gina desire to return to appellee. Child custody decisions are within the chancellor’s broad discretion, and we find no abuse of discretion in the court’s ruling. Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995). The court’s assignment of custody is affirmed.
Appellant next argues that the court erred in failing to order appellee to pay child support for Gina. The trial court found that appellant’s weekly take-home pay was $700.00 and incorrectly deducted $100.00 as a credit for Gina based on the guidelines of the family support chart. The court then determined appellant’s weekly take-home pay to be $600.00 and used this figure to calculate the amount of child support due appellee from appellant for the parties’ son, Drew, who remained in appellee’s custody. The court failed to make a finding as to child support payable by appellee for Gina.
Arkansas Code Annotated § 9-12-312(a)(2) (Supp. 1995) provides:
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
We hold that the court erred in calculating the amount of child support and remand for the chancellor to apply Ark. Code. Ann. § 9-12-312(a)(2) (Supp. 1995) consistent with this opinion.
On remand, the court should determine whether appellee should pay child support for Gina and, if not, should make specific findings as provided by § 9-12-312(a)(2). Secondly, the amount of child support that appellant owes for Drew should be based on appellant’s net weekly income, which the court determined to be $700.00.
Lastly, appellant contends that the court erred by finding that his net weekly pay was $700.00. Appellant’s statement of his income excludes overtime earnings which sometimes equaled or exceeded his regular earnings. This court reviews chancery cases de novo, and we will not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence. Milum v. Milum, supra. We cannot say that the chancellor’s finding as to appellant’s income is clearly against the preponderance of the evidence.
Affirmed in part; reversed and remanded in part.
Neal and Stroud, JJ., agree. | [
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Olly Neal, Judge.
AAA Bail Bond Company appeals from an order of the Sebastian County Circuit Court directing that a $3,000.00 bond issued by AAA to secure the appearance of Pradith Manyphanh be forfeited for AAA’s failure to cause Manyphanh to appear at his revocation hearing. AAA advances two points in support of its contention that the order of the trial court was erroneous. We find nothing in the record to merit reversal of the trial court’s decision and affirm.
Manyphanh entered a plea of guilty to the charges of breaking or entering and theft of property on December 4, 1987. As a result of the guilty plea Manyphanh received a five-year suspended sentence conditioned upon his payment of $2,586.13 in restitution, $585.25 in fines and court costs, and he was ordered to spend one day in the Arkansas Department of Correction.
On August 4, 1993, the State filed a petition to revoke Many-phanh’s probation, stating that he had failed to pay $562.04 of the court ordered restitution and owed $585.25 toward his fine and court costs. Manyphanh was arrested, and on September 4,1994, AAA issued a bail bond in the amount of $3,000.00 to secure Manyphanh’s release. By letter dated September 21, 1994, AAA was notified that Manyphanh’s case was scheduled for inquiry as to counsel on September 28, 1994. Manyphanh failed to appear and a bench warrant was issued for his arrest on October 5, 1994.
On February 23, 1995, the Sebastian County Circuit Court ordered a forfeiture of the $3,000.00 bail bond issued by AAA and ordered the company to appear and show cause why the bond should not be forfeited. At the forfeiture hearing, held on July 12, 1995, Manyphanh’s attorney stated that he had been informed by someone in the prosecutor’s office that the petition to revoke would be dismissed. AAA’s counsel stated that he had relied on the information given to Manyphanh’s counsel and believed that Many-phanh was free to leave the state, and therefore they thought that ■ there was no reason to have Manyphanh present in court. Theií court ordered that the entire amount of the bond be forfeited®1 However, the forfeiture amount was reduced to $2,000.00 at thy request of the prosecutor’s office. m)
AAA contends that the bail bond forfeiture order should b9 reversed because AAA relied on erroneous information given t®| defendant’s attorney by the prosecutor’s office or in the alternativ® that the bond forfeiture amount was excessive. S,
We begin our analysis of this case with the basic notioT^I that there are certain duties that a surety must adhere to. It should be noted that the defendant, rather than being held in custody by the state, is released to the surety who assumes custody of him and is responsible to the court for his appearance at any time. Bryce Bail Bonds, Inc. v. State, 8 Ark. App. 85, 648 S.W.2d 832 (1983). Although the surety is not expected to keep the principal in physical restraint, he is expected to keep close track of his whereabouts and keep him within this state subject to the jurisdiction of the court. Id.
In the instant case, AAA received notice from the defendant’s attorney that the defendant had left the state because he had been informed that the petition to revoke would be dismissed. AAA continued to rely upon this explanation, even after being served with notice of inquiry as to counsel and the defendant’s subsequent failure to appear before the court as directed. In order to fully understand the authority of courts, with respect to a defendant’s failure to appear at trial and subsequent forfeiture of bail bond, discussion of the relevant statute is necessary.
Arkansas Code Annotated §16-84-201 provides:
(a) If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required,... the court may direct the fact to be entered on the minutes, and shall issue an order requiring the surety to appear, on a date set by the court not less than ninety (90) days nor more than one hundred twenty (120) days after the issuance of the order, to show cause why the sum specified in the bail bond... should not be forfeited_
(c) If the defendant is surrendered, arrested, or good cause is shown for his failure to appear before judgment is entered against the surety, the court shall exonerate a reasonable amount of the surety’s liability under the bail bond. However, if the surety causes the apprehension of the defendant, or the defendant is apprehended tvithin one hundred twenty (120) days from the date of receipt of written notification to the surety of the defendant’s failure to appear, no judgment or forfeiture of bond may be entered against the surety, except as provided in subsection (e) of this section.
Thus, pursuant to code provisions, AAA could have received a portion or all of the $3,000.00 it had issued as surety for the defendant if it had secured Manyphanh’s appearance before the court. However, where, as in this case, the surety failed to show that it exercised the effort required to return or attempt to effect the return of the defendant to custody, the forfeiture must be upheld. It must be noted that since Manyphanh was released to the custody of AAA, as surety, any reliance on the assertions of the defendant’s attorney was in total disregard of the basic notion that it is the surety who is responsible for securing the appearance of its principal when so directed by the court.
It must also be noted that AAA’s continued rebanee upon the representations made to defendant’s counsel were unreasonable in light of the fact that the court ordered forfeiture of the bond on February 23, 1995, and as ofjuly 12, 1995, AAA had taken no steps to secure the return of the defendant.
AAA also contends that the forfeiture amount was excessive. As we have stated on previous occasions, an argument not raised at the trial court level will not be heard for the first time on appeal. Arkansas Office of Child Support v. House, 320 Ark. 423, 897 S.W.2d 565 (1995).
Affirmed.
Rogers and Mayfield, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellants, Colonial Nursing Home and Union Standard Insurance Companies, appeal a decision of the Arkansas Workers’ Compensation Commission awarding benefits to appellee, Fern Harvey. The Administrative Law Judge found that appellee’s prolapsed uterus was caused by a work-related injury and was therefore compensable. The appellants appealed and the Commission found that the decision was supported by a preponderance of the evidence. On appeal to this Court, appellants contend that the Commission’s decision should be reversed because appellee did not meet her burden of proof that her prolapsed uterus arose out of and in the course of her employment and because the award is not based upon substantial evidence. We affirm.
Appellee is a sixty-two year old woman who was employed by Colonial Nursing Home as a nurse’s aide. She testified that she was injured on January 22, 1981, when a patient she was restraining “jerked” her and the bed to which she was attempting to confine the patient. The patient and bed fell on appellee. Appellee was first seen by a chiropractor and then by a medical doctor, both of whom released her to return to work. Later, she was seen by Dr. John Lohstoeter, an orthopedist, who admitted her to St. Vincent Infirmary for a week of clinical testing to determine the cause of her back pain. During the course of the tests, Dr. Lohstoeter discovered that appellee had a prolapsed uterus. He associated Dr. Clark Gillespie, a gynecologist, who diagnosed appellee has having a moderately prolapsed uterus accompanied by a cystocele and a rectocele.
We review the evidence in workers’ compensation cases in the light most favorable to the findings of the Commission. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. The extent of our inquiry is to determine if the finding of the Commission is supported by substantial evidence. Even where a preponderance of the evidence might indicate a contrary result, we will affirm if reasonable minds could reach the Commission’s conclusion. Bankston v. Prime West Corporation, 271 Ark. 727, 610 S.W.2d 586 (Ark. App. 1981); Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979).
Appellants argue that the only competent medical testimony offered by appellee was that of Dr. Gillespie. They admit, however, that Dr. Gillespie acknowledged that it was possible that appellant’s condition was aggravated by her fall but they emphasize that Dr. Gillespie also stated that it was not likely that the prolapsed uterus was caused by a one-time acute episode. Appellants also contend that the conclusion of Dr. Lohstoeter was not based on supporting facts and does not constitute substantial evidence. Dr. Lohstoeter stated in his deposition that it was his opinion that the prolapsed uterus preexisted the accident but did not actually manifest itself until appellee’s fall. He apparently based his opinion on her prior medical history. Neither of appellee’s treating physicians could state unequivocally when this condition occurred because they examined her after the injury.
We have examined the depositions of the two treating physicians and conclude that the Commission’s finding is supported by substantial evidence. Dr. Lohstoeter felt that appellee’s prolapsed uterus could have been caused by her injury on January 22, 1981. Dr. Gillespie was more guarded in his opinion, stating he had never seen such an occurrence in his thirty-five years of experience but that medical literature supported such incidents. There is no requirement that a finding by the Commission be based on evidence which is mathematically or medically certain. Kempner’s v. Hall, 7 Ark. App. 181, 646 S.W.2d 31 (1983). It is well settled that when the claimant’s ordinary work aggravates a preexisting condition and thus contributes to the injury, the claim is compensable. McGeorge Construction Company v. Taylor, 234 Ark. 1, 350 S.W.2d 313 (1961). We find that there is substantial evidence to support the Commission’s decision.
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Mayfield and Cracraft, JJ., agree. | [
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Donald L. Corbin, Judge.
The Chancery Court of Prairie County, Arkansas, terminated a lease agreement dated February 18,1972, between appellant, Mike Michelsen and Jessie Mae Westbrook, who was the predecessor in interest to appellees, Willie Joe Patterson and Diane Patterson, his wife. We affirm.
The lease agreement called for a term of ten years with an option for an additional ten-year term. Annual lease rentals of $400.00 were to be paid commencing January 1, 1972, and, subsequently, on January 1 of each year during the term of the lease.
We have considered this lease once before and ruled that appellees had waived their right to refuse the late 1979 lease rental payments by their conduct in accepting two prior late rental payments. However, in its opinion, the Court of Appeals stated that appellees had not waived their right to enforce the provisions of the lease beyond the 1979 yearly rental payment. Appellees’ attorney thereafter wrote appellant on November 25, 1980, the following letter:
I am writing you on behalf of my client, Willie Joe Patterson, as a successor in interest of Ms. Jessie May Westbrook to inform you that Willie Joe Patterson requires strict performance of the agreement you entered into with Ms. Westbrook on February 18, 1972. From and after this date Willie Joe Patterson will require payment of all lease rentals on the day and date as specified in the agreement and will not accept any late payments whatever.
You are formally notified by this letter that Willie Joe Patterson expects you to adhere to all of the terms and conditions of the agreement. For your convenience and information I am attaching a copy of the agreement to this letter.
Appellant advised appellees by letter dated June 9,1981, that he intended to exercise his option for the additional ten-year term and would make payments on January 1 of each year. On June 17, 1981, appellees’ attorney notified appellant by letter that, “No late payments of said rentals will be accepted.”
The present dispute arose when appellee did not receive the 1982 rental payment until January 2, 1982. On December 31, 1981, appellant purchased a $400.00 cashier’s check in favor of appellees and delivered it to the postmaster in Des Arc, Arkansas, in an envelope properly addressed to appel-lees with return receipt requested. January 1, 1982, was a legal holiday. These facts were undisputed by both parties.
Appellant urges us to reverse the trial court’s decision that his lease rental payment was not timely made thereby terminating the lease agreement. Appellant cites Ark. Stat. Ann. § 69-103 (Repl. 1979) and Ark. Stat. Ann. § 67-541 (Repl. 1980) for the premise that the lease payment date was a legal holiday which excuses payment on that date, and that appellant made timely payment by depositing the cashier’s check in the U.S. mail before the due date. These two statutes relate to promissory notes and bank holidays, respectively, and have no bearing on the lease agreement at issue here.
The narrow issue in the instant case is whether the chancellor’s finding that appellant’s tender of the lease payment on December 31, 1981, which appellees did not receive until January 2, 1982, did not constitute a lease payment within the terms of the lease agreement was clearly erroneous (clearly against the preponderance of the evidence). ARCP Rule 52 (a); Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983).
The lease agreement here contained nothing regarding time as being of the essence. Even so, we think that there are facts and circumstances which clearly show that time was of the essence. We cannot say that appellant was without notice of this in light of the action taken by appellees in informing appellant that strict compliance with the terms of the agreement was required and that no late payments would be accepted whatsoever. In addition, appellant had previously litigated the matter of his making untimely payments and was well aware of the fact that appellees’ prior waiver had no bearing upon future payments under the lease agreement. In the case of Vernon v. McEntire, 232 Ark. 741, 339 S.W.2d 855 (1960), which dealt with a contract for the sale of land, the Supreme Court quoted the applicable rule from an earlier decision as follows:
Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture, (cites omitted). But the final effect of such an agreement will depend on the actual intention of the parties, as evidenced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it will not only look into the written contract which is evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived. The following equitable principle formulated by Mr. Pomeroy has been repeatedly approved by this court: “If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.” (cites omitted).
The rule relative to the inclusion of express language in a contract insofar as time as being of the essence is set out in White v. Page, 216 Ark. 632, 226 S.W.2d 973 (1950), as follows: “The contract in the case at bar did not state in express words ‘time is of the essence’; but our cases hold that evidence may establish such fact in the absence of a specific statement in the contract.” We believe that the chancellor properly looked into the acts and conduct of appellees in the carrying out of the lease agreement and correctly determined that by their notification of appellant in the form of two letters, time for payment was made of the essence. Appellant simply did not comply with this requirement. The following quotations from portions of the chancellor’s letter opinion are pertinent:
Appellant received a letter dated November 25, 1980, placing him on notice that all lease payments would have to be made on the day and date specified in the agreement, i.e., January 1, as well as notice that adherence to all agreement terms was expected.
Appellant and his attorney received a letter dated June 17, 1981, giving further notice that no late payments would be received.
Pursuant to the Court of Appeals decision, the appel-lees did not waive their right in the future to receive payments on January 1 of each year. Because of appellees’ actions, the letters dated November 25, 1980, and June 17, 1981, were sufficient notice to appellant that the lease payment was to be made January 1.
The Court in making its decision is not unmindful of the large number of cases which hold that an offer is accepted when the acceptance is placed in the mails (properly addressed, sufficient postage, etc.) prior to knowledge of a withdrawal of the offer. The Court is also aware of a number of cases that hold that a contract or offer may contain certain conditions and those conditions must be met before there is a binding agreement.
In holding that appellant’s tender of the lease payment was not timely, we believe it is necessary to emphasize that the decision is limited to the particular facts and circumstances of this case. We are equally mindful of the “mailbox rule” which the chancellor referred to in his opinion. Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869 (1886). Appellant has cited cases, all of which are from other jurisdictions, for the proposition that where payment of an obligation by mail is authorized, the mailing of a letter including remittance which is properly addressed and with postage prepaid on the last day of payment is a timely payment. See, for example, Fant v. Miller, 218 S.W.2d 901 (Tex. Civ. App. 1949); McGowan v. Pasol, 605 S.W.2d 728 (Tex. Civ. App. 1980); Mutual Reserve Fund Life Ass’n v. Tuchfeld, 159 F. 833 (6th Cir. 1908); McCluskey v. National Life Ass’n of Hartford, 28 N.Y.S. 931 (1894); 60 Am.Jur.2d Payment § 17 (1964). Research for this proposition in Arkansas caselaw indicates that it has never before been addressed or reached and, therefore, we decline to rule upon it as it is not necessary under the facts of this particular case.
Affirmed.
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OLLY Neal, Judge.
Appellant, Kelvin Meeks, was convicted on May 11, 1995, of the offenses of negligent homicide and first-degree battery, and acquitted of carrying a weapon after a jury trial in the Pulaski County Circuit Court. On appeal, Meeks seeks only the reversal of the battery conviction, contending first that the State’s evidence was insufficient to sustain the conviction, and secondly that certain inconsistencies in the jury’s verdict require either dismissal of the battery charge or reversal of the conviction. Neither point of error warrants reversal or dismissal, and therefore we affirm the conviction.
The evidence presented at trial established that on December 28, 1993, appellant was involved in an altercation at the Pay More Pawnshop in southwest Little Rock, which resulted in the death of Cedric Brown and the serious injury of a three-year-old bystander. Terrence Williams, a friend of Cedric Brown’s, testified that on the day of the shootings, he, Brown, and another man named Courtney Brooks were across the street from the Pay More Pawnshop when Brown spotted appellant’s car and informed his companions, “[T]hat’s the guy that robbed me last night.” According to Mr. Williams, Brown did not actually know appellant and “had him mixed up with somebody else.” Williams stated that Brown drove his automobile, a 1977 Oldsmobile to the pawnshop and parked about eight (8) parking spaces away from appellant’s car, a 1987 gray Cadillac. When appellant exited the store, Brown went to the driver’s side window of Meeks’s car and exchanged words with appellant. Williams said he saw Brown reach for his pistol and heard shooting, but did not actually see gunfire exchanged because he immediately fled the area.
In his testimony on behalf of the State, Courtney Brooks admitted that he was with Williams and Brown when the shootings occurred. Brooks corroborated Williams’s story that he, Brown and Terrence Williams entered the pawnshop parking lot so that Brown could confront appellant about a robbery that occurred the previous night, but claimed that prior to the incident, he did not know Brown was armed. Brooks testified that he saw Brown pull a gun out of his coat, heard shooting, and saw Brown fall to the ground. Brooks then got into the driver’s seat of Brown’s car and backed the car out in preparation to leave the store. Brown then jumped off the ground, got into the passenger seat, and was driven to a local hospital for treatment. Brooks stated that he left Brown at the St. Vincent’s Infirmary emergency room where Brown underwent emergency surgery and died a short while after being admitted.
Police officers who were dispatched to the shooting testified that upon their arrival at the pawn shop, they first noticed a Toyota truck with a bullet hole in the back window and that a small child, later identified as Robin Leath, had been injured. One mutilated lead projectile was recovered from the floorboard of the truck. None of the suspects or victims were found at the scene. Officer R.K. Brown testified that as he secured the crime scene, he found several spent rounds of ammunition and a human thumb that had been severed by a gunshot. Steven Zakrzewski, while en route to the pawnshop was dispatched to a Shell Super Stop gas station down the street from the shooting, testified that when he arrived at the gas station, he found appellant lying on the pavement. Zakrzewski stated that after appellant was transported by ambulance for medical treatment, he searched appellant’s car and discovered a .357 handgun in the glove box and one (1) spent .9 millimeter hull in the back seat.
Doug Braswell, owner of Pay More, remembered the shooting incident and testified that when he first heard gunfire, he was standing outside the store, “talking to a couple about a television they had in the back of their truck.” Braswell stated that when he realized that the men he saw standing by the store were shooting guns, he retreated inside the store. Other evidence revealed that three-year-old Robin Leath was struck at the base of her skull by a bullet from appellant’s .357 and, after surgery at Arkansas Children’s Hospital, suffers permanent brain damage. Appellant testified that he was unaware that anyone other than Brown had been shot until hearing it on the news while he was hospitalized.
Appellant first argues that the trial court erred in denying his motion for directed verdict on the first-degree battery charge, which amounts to a challenge to the sufficiency of the evidence to sustain appellant’s conviction on that count. Specifically, appellant contends that the State failed to put on proof that he acted with the requisite culpability for battery first. That argument was based on the jury’s finding that the killing of the primary victim occurred through negligent conduct. Our first-degree battery statute, Ark. Code Ann. § 5-13-201 provides in relevant part:
(a) A person commits battery in the first degree if:
* * *
(3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human fife . . .
Although the culpable mental state necessary to warrant a conviction under this section is not specified in the statute, under this definition of battery first, the culpability requirement may be satisfied by showing that the defendant acted either purposefully or knowingly with regard to the attendant circumstances. Vowell v. State, 4 Ark. App. 175, 628 S.W.2d 599 (1982). That interpretation of the statute is based on the commentary to the battery statute, which relates that the offense comprehends life-endangering conduct. The Vowell opinion also recognizes that the severity of the punishment authorized is warranted by the conjunction of severe injury and a wanton or purposeful mental state, and points to the portion of the commentary that notes that each subsection [of the battery statute] describes conduct that would produce murder liability if death resulted. Id. at 187-188.
Although appellant’s first argument raises serious and troubling questions regarding the “knowing or purposeful” element of our first-degree battery statute, we are unable to address those issues as they are not properly preserved for appellate review. See, e.g. Johnson v. State, 270 Ark. 992, 606 S.W.2d 752 (1980). While appellant made a motion for directed verdict based on the precise ground he raises on appeal at the close of the State’s case, and apparently renewed his motion at the conclusion of all the evidence, nothing appears in the record from which we could find that the trial court considered or ruled on appellant’s second motion. Our appellate courts have traditionally followed the requirement found in A.R.Cr.P. Rule 36.21(b) that both motions be made, Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991), and have placed the burden of obtaining a ruling on both motions upon the defendant. Objections and questions left unresolved are waived and may not be relied upon at or for appeal. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). Although it can readily be inferred from the context of the record that the trial court denied appellant’s in-chambers motion for directed verdict, Danzie is controlling and “form” must once again prevail over “substance.” Appellant ten dered a supplement to the record containing proof positive that his second motion was made, but he failed to include language indicating the court’s ruling on the motion. Because of that deficiency, appellant has not preserved the sufficiency issue for appeal.
Appellant also contends that the jury’s decision to acquit him of the offense of carrying a weapon should have negated any finding that he acted with the requisite intent to commit a first-degree battery. That type of argument has been consistently rejected by our appellate courts. See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996); McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993); Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987). Appellant cites no authority for his proposition that “fundamental fairness” requires reversal, and we therefore won’t consider that argument on appeal. It is fundamental that absent citation of authority or convincing argument, we will not consider an argument on appeal unless it is apparent without further research that it is well-taken. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
Affirmed.
Stroud, J., agrees.
Rogers, J., concurs. | [
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John Mauzy Pittman, Judge.
Eddie Pickett appeals from his conviction at a jury trial of residential burglary and theft of property, for which he was sentenced to concurrent terms of thirty and ten years in the Arkansas Department of Correction. On appeal, he contends that the trial court erred in denying his motions for directed verdicts of acquittal on grounds that insufficient evidence was presented to corroborate the testimony of an admitted accomplice. We agree, and we reverse and dismiss.
Appellant and Anthony Bluford were charged with the felonies of residential burglary and theft of property in connection with crimes committed against Ms. Jeannie Barnett and her family. Bluford entered negotiated guilty pleas and was placed on probation. At appellant’s trial, the State presented evidence establishing that Ms. Barnett’s home was burglarized on August 24, 1994, and that several items of personal property were stolen, including a cordless telephone that had been broken and taped back together, a watch, four Nintendo game cartridges, and a T-shirt. Bluford testified that he and appellant broke into the Barnett home together. Bluford testified that he took some game cartridges and a watch, and that appellant picked up a cordless telephone and some shirts. Bluford testified that he then left appellant inside the house and went alone to a pawn shop to sell what he had taken.
Mr. Jerry Burson, an employee of El Dorado Pawn, testified that he was working on August 24, 1994. He testified that two men came in on that date and sold four Nintendo cartridges. Mr. Burson did not recognize and could not identify the two men, but one of them presented Anthony Bluford’s driver’s license as identification.
Ms. Barnett testified that she left her house between 12:30 and 1:00 p.m. on the day of the crimes. She testified that, when she left, appellant was standing by himself in the carport of her next-door neighbor’s home and spoke to her. She testified that she was gone from an hour to an hour and a half, and returned between 1:30 and 2:00 p.m. to discover the burglary and theft. She further testified that the game cartridges retrieved from the pawn shop were the ones stolen from her home and were the only items ever recovered.
Ms. Barnett testified that she first saw appellant on the evening before the burglary. He had come to her door with some younger neighbors and asked her son for a cigarette.
Officer Jamie Morrow of the El Dorado Police Department testified that he interviewed appellant in connection with the burglary. The officer testified that appellant denied any knowledge of the burglary and offered an alibi. According to the officer, appellant stated that he owned a white cordless telephone with a piece of tape on the back. No such telephone was found in a subsequent search of appellant’s home.
Appellant argues that the evidence was insufficient to corroborate the testimony of Bluford, an admitted accomplice, and that his convictions must therefore be reversed and dismissed. We agree.
Arkansas Code Annotated § 16-89-111 (e)(1) (1987) provides:
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.
The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Gibson v. State, 41 Ark. App. 154, 852 S.W.2d 326 (1993). The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996); Gibson v. State, supra. The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Gordon v. State, supra; Gibson v. State, supra.
Here, we agree with the State that the evidence independent of Bluford’s testimony was sufficient to establish that the crimes were committed. We further agree that the presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. See Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). However, proof that merely places the defendant near the scene of a crime is not sufficient corroborative evidence of the defendant’s connection to it. Farrar v. State, 241 Ark. 259, 407 S.W.2d 112 (1966). Here, aside from Bluford’s testimony, the only evidence produced by the State to connect appellant with the commission of these offenses is that he was presént on the victim’s next-door neighbor’s property some sixty to ninety minutes before the crimes were discovered. That is not sufficient to satisfy the requirement of § 16-89-111 (e)(1). See id.
Reversed and dismissed.
Jennings, C.J., and Robbins, Rogers, and Stroud, JJ., agree.
Mayfield, J., dissents. | [
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Tom Glaze, Judge.
The Workers’ Compensation Commission found that appellee, Mary Jo Meeker, sustained a compensable injury on March 22,1982, which was a recurrence of one she suffered on November 28, 1981. When both injuries occurred, Meeker worked for appellee Wal-Mart Stores, Inc. (Wal-Mart). At the time of her first injury, Home extended compensation insurance to Wal-Mart employees, but commencing January 1, 1982, Wal-Mart became self-insured. As a consequence of this change in coverage, Home had accepted the responsibility for Meeker’s November 28 injury, but it denied any liability arising from her March 22 injury. However, because the Commission found Meeker’s second injury was a recurrence of her first, it held Home liable for her medical expenses and temporary total disability from March 23, 1982, until a date to be determined in the future. On appeal, Home raises three points for reversal.
First, Home contends it is not responsible for the medical costs ensuing from Meeker’s March injury because she changed physicians, and in doing so, failed to comply with Ark. Stat. Ann. § 81-1311 (Supp. 1983). Section 81-1311 provides that if the employee selects a physician, the Workers’ Compensation Commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the Commission that there is a compelling reason or circumstance justifying a change. By its terms, this provision simply is not applicable to the facts at bar. Meeker did select a chiropractor, Dr. Taylor, to treat her first injury, but after she sustained her second injury, Wal-Mart directed her to Dr. McDaniel for treatment. Arguing it no longer covered Wal-Mart’s employees at the time Meeker sustained her second injury, Home urges that Wal-Mart’s decision to send Meeker to a different doctor should be imputed to Meeker. To accept such an argument would do damage to the language of § 81-1311, extending its application to a situation clearly not covered. Therefore, we hold the Commission did not err in refusing to deny medical benefits to Meeker on the basis that she failed to comply with the change of physicians provision in §81-1311.
Second, Home contends the Commission erred in denying Home’s petition to take additional evidence. At the June 17, 1982, hearing before the administrative law judge, Home reserved its right to cross-examine witnesses who submitted medical reports at a later date. Hospital records and a report by Dr. Jon Robertson were submitted to the law judge by letter dated August 26, 1982, but Home argues that before it could determine whether to exercise its privilege of cross-examination, the law judge filed his opinion on September 9, 1982. Home subsequently filed a motion with the Commission requesting permission to depose Dr. Robertson and to submit his testimony as additional evidence for use by the Commission in reaching its decision on appeal. In support of its argument, Home contends the medical report submitted on August 26 revealed that Meeker suffered a low back problem, which was the first indication that the March injury might not have been a recurrence of Meeker’s earlier neck and shoulder injuries.
Reviewing the record, we find that at the June 17 hearing before the law judge, Meeker introduced a report by Dr. George W. Wood, evidencing she had complained of low back pain. Dr. Wood, an orthopedic physician, treated Meeker at Dr. Robertson’s request, and in his June, 1982, report Wood discussed extensively the problem Meeker had related concerning her back. Thus, Home knew about Meeker’s back pain at least as early as June 17, which was about three months prior to the date the law judge rendered his decision. Having this information, Home had ample opportunity to cross-examine either Dr. Robertson or his designated consultant, Dr. Wood, concerning Meeker’s back. Consequently, Dr. Robertson’s testimony that Home sought to introduce was not newly discovered evidence, and the Commission did not err in refusing to reopen the case to admit it. See Walker v. J & J Pest Control, 6 Ark. App. 171, 639 S.W.2d 748 (1982), and Ark. Stat. Ann. § 81-1327 (c) (Supp. 1983).
Third, Home argues the Commission’s finding that Meeker’s second injury was a recurrence of her first is not supported by substantial evidence. From our study of the record, we believe there is sufficient evidence showing that on March 22,1982, Meeker sustained work-related, recurrent injuries to her neck and shoulder — the same areas she injured in November, 1981. However, Home’s real argument is that there is no evidence causally linking Meeker’s low back problem with either her first injury or its recurrence, but her back was apparently considered in the Commission’s temporary total disability award. In support of Home’s argument, the evidence is undisputed that Meeker’s back pain did not commence until after she was hospitalized, having re-injured her neck and shoulder. During this hospitalization, Meeker’s medical history reflects the onset of pain to her back occurred after she had a myelogram. Meeker’s treating physicians have been unable to determine the etiology of her back problem. Although we have carefully reviewed the record, we are unable to conclude how the Commission treated Meeker’s back pain in rendering its disability award. In its opinion (and the law judge’s), the Commission fails to mention Meeker’s back problem; nor did it attempt to relate her back pain to either the November or March episodes when she incurred injuries to her neck and shoulder. Nevertheless, the evidence does not indicate Meeker’s neck and shoulder injuries were the sole bases for the Commission’s award, especially in view of Meeker’s testimony that she could not return to work because of her back.
The law applicable to the facts here is set forth in Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W.2d 465 (1976), wherein the Court, quoting from § 95.12 Larson on Workmen’s Compensation, said:
If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. * * * This group... includes the kind of case in which a man has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists and culminating in a second period of disability precipitated by some lift or exertion.
Id. at 80, 531 S.W.2d at 467. See also Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
In the instant case, Meeker’s back pain could have been caused by the first or second injuries or by the treatment she received for the injuries. Whichever the case may be, the Commission never found how the back pain was related, and we are unable to make that determination from the evidence. Therefore, we remand this cause for further proceedings and direct the Commission to make specific findings regarding (1) the evidence upon which it relied supporting its disability award, and (2) the law it applied, determining which party was responsible for payment of that award.
In remanding, we note Wal-Mart’s argument that we should affirm the Commission’s decision finding Wal-Mart not liable because there is no evidence linking Meeker’s back problem with the period during which it was self-insured. As noted earlier, we agree that there is substantial evidence indicating Meeker’s second injuries to her neck and shoulder were a recurrence of her first. However, we cannot say with certainty that the subsequent back pain could not have been caused solely by the second episode even though from the present state of the record, this conclusion seems unlikely. For this reason, we believe it would be premature to affirm that part of the Commission’s decision absolving Wal-Mart from liability in this cause.
Reversed and remanded.
Cooper and Cloninger, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Ruben Smith appeals the J termination of his parental rights to his daughter, JS (born 7-31-05). He argues that: 1) the trial court erred in allowing the Arkansas Department of Health and Human Services (DHHS) to amend the termination petition on the day of the termination hearing; 2) there was insufficient evidence to terminate his parental rights; 3) the trial court’s termination order improperly referred to evidence presented at prior hearings. We affirm.
Factual Background
Our factual recitation is taken from the court’s termination order and other matters in the record, which Smith designated on appeal to include all pleadings, motions, reports, exhibits, orders, and case plans from October 13, 2005 (the date of the probable-cause order), to January 9, 2007 (the date of the termination order).
On October 7, 2005, JS, then less than three months old, tested positive for cocaine at Arkansas Children’s Hospital. Within days, DHHS removed the child from the custody of her mother, Katrina Harden, and on October 13, 2005, the trial court entered a probable-cause order continuing custody in DHHS. The court directed that paternity be established as to JS and two other of Ms. Harden’s children, and an adjudication hearing was set for December 5, 2005.
Smith acknowledged paternity of JS, and he appeared at the December 5 adjudication hearing. JS was found dependent/neglected based on her testing positive for cocaine and her mother’s drug use. The court, having already entered orders pertaining to Ms. Harden, ordered Smith to obtain stable housing, employment, and income; to keep DHHS informed of his address, telephone numbers, and employment; to have random drug screens; and to undergo a drug and alcohol assessment. Smith was also referred for a GED. Supervised visitation was established for both parents. The goal of the case was reunification, with a review hearing set for March 29, 2006.
A report prepared by DHHS for the review hearing shows that Smith had not started working on his GED; was living with his aunt; had obtained temporary employment at a video store; had visited JS; and continued to test positive for drugs. After the hearing, the court continued custody in DHHS and suspended visitation until the parents could comply with the court’s orders. A permanency-planning hearing was set for September 20, 2006.
On August 14, 2006, DHHS filed a petition to terminate Smith’s and Ms. Harden’s parental rights. The petition alleged that returning JS to her parents was not in her best interest and was contrary to her health, safety, and welfare; that returning her to her parents could not be accomplished in a reasonable period of time as viewed from her perspective; that JS was found dependent/neglected “as the result of neglect and/or abuse that could endanger [her life] which was perpetrated by the juvenile’s mother”; that other factors or issues arose subsequent to the filing of the original dependency-neglect petition demonstrating that returning JS to the custody of her parents was contrary to her health, safety, and welfare; and that, despite the offer of appropriate family services, the parents manifested the incapacity or indifference to remedy the subsequent issues or rehabilitate their circumstances.
The permanency-planning hearing proceeded on September 20, 2006. Smith and Ms. Harden tested positive for drugs on that date. A DHHS report stated that Smith had not started working on his GED and that the caseworker could not tell if Smith was employed. Further, visitation with JS remained suspended. The trial court found that neither Smith nor Ms. Harden was in compliance with court orders or the case plan, and the goal of the case was changed to termination of parental rights. A termination hearing was set for November 20, 2006.
Smith did not appear at the termination hearing but was represented by counsel. At the beginning of the hearing, counsel objected when DHHS moved to amend its termination petition to add that JS had “been in the Department’s custody for twelve months or longer.” The trial court allowed the amendment, stating that all participants in the case were aware that JS had been in DHHS custody for over a year.
The hearing went forward with testimony from adoption specialist Monica Spencer that the likelihood of adoption for JS and the other children was “very possible.” DHHS caseworkers testified that they had experienced difficulty maintaining contact with Smith since September 2006. Caseworker Linda Marshall testified that, when visitation with JS was allowed, Smith’s visits were inconsistent. She also said that he continually tested positive for drugs; that he did not follow up on recommendations after receiving a drug-and-alcohol assessment; and that he was not working, as far as she knew. Marshall said further that JS had remained in DHHS custody since October 2005, and she recommended termination of parental rights. The ad litem attorney introduced into evidence certified copies of the court’s probable-cause and adjudication orders. The court also made a finding of reasonable efforts by DHHS without objection by Smith.
On January 9, 2007, the court entered an order terminating Smith’s parental rights to JS. The court recited a detailed history of its prior orders and the evidence adduced at the termination hearing and mentioned some evidence from prior hearings. It found that Smith had been inconsistent in visiting JS; that he failed to appear at the termination hearing; that he had multiple, positive drug tests; and that he failed to “engage in the simplest of services.” Under those circumstances, the court said, reunification would be unlikely even if services continued. The court also noted that, despite court-ordered services and intervention, Smith did not maintain meaningful contact with JS and did not rehabilitate himself to the point where reunification was a viable option. Further, the court said, JS had been in foster care since October 2005; she was “young and adoptable”; and she should not have to “languish” in foster care due to the “inaction of the adults in this case.” The court then concluded that it was in JS’s best interest to terminate Smith’s parental rights. Smith filed a timely notice of appeal.
Preliminary Argument by DHHS
We first address DHHS’s argument that “the appeal should be dismissed because the record is deficient.” DHHS refers to the fact that Smith’s addendum does not contain all relevant pleadings, orders, and exhibits.
In support of its argument, DHHS cites Busbee v. Arkansas Department of Health & Human Services, 369 Ark. 416, 255 S.W.3d 463 (2007), where our supreme court dismissed an appeal in a termination-of-parental-rights case because the appellant, proceeding under the relatively new Ark. Sup. Ct. R. 6-9, failed to include in the record various orders that preceded the termination order. However, Busbee applies only to the failure to include relevant orders in the record, which is not an issue here; all relevant orders are included in Smith’s record. The deficiencies that DHHS points to in the present case concern Smith’s addendum. Therefore, Busbee is not on point.
Nevertheless, we agree with DHHS that Smith’s addendum is lacking. Arkansas Supreme Court Rule 6-9 (e)(2)(E) provides that an addendum shall include, among other things, “relevant pleadings, documents, or exhibits essential to an understanding of the case . ...” From a record containing over 800 pages of orders, pleadings, exhibits, and testimony — much of which was relevant to the trial court’s findings and essential to our understanding of the case — Smith has addended only the notice of appeal, the termination order, and the termination petition. However, Rule 6-9 allows an appellee to supplement the appellant’s addendum if the appellee considers it defective or incomplete. Ark. Sup. Ct. R. 6-9(f)(2)(C). Supplemental addenda were filed in this case by DHHS and the attorney ad litem, and they include some of the relevant exhibits and orders. We therefore rely on those supplements. Additionally, we see nothing in Rule 6-9 that prohibits us, in the course of our de novo review, from going to the record to affirm. See generally Mobley Law Firm v. Lisle Law Firm, 353 Ark. 828, 120 S.W.3d 537 (2003). Accordingly, we decline DHHS’s request to dismiss the appeal, and we turn to the arguments presented by Smith.
Amendment To Petition
Smith argues that the trial court violated his due-process rights when it allowed DHHS to amend the termination petition on the day of the termination hearing. DHHS sought permission to amend its petition to reflect that the children had been in DHHS custody for twelve months or longer, which is a component of two grounds for termination under our statute:
That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent; and
That the juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the juvenile.
Ark. Code Ann. §§ 9-27-341 (b)(3)(B)® (a), (ü)(«) (Supp. 2005).
We find no reversible error. Under Ark. R. Civ. P. 15(a), with certain exceptions not applicable here, a party may amend his pleadings at any time without leave of the court, unless, upon motion of an opposing party, the court determines that prejudice would result or disposition of the cause would be unduly delayed. See Trice v. Trice, 91 Ark. App. 309, 210 S.W.3d 147 (2005). If prejudice or undue delay is demonstrated, the court may strike the amended pleading or grant a continuance. See id. The trial court has broad discretion in allowing or denying amendment of the pleadings. Id. Where neither a continuance is requested nor a demonstration of any prejudice resulting from an amendment is shown, the amendment should be allowed. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997).
Smith did not request a continuance to meet the substance of the amendment. Nor did he demonstrate prejudice. The amendment added a factual matter that all parties knew or should have known: that JS had been in DHHS custody for more than twelve months. Moreover, in terminating Smith’s parental rights, the trial court cited a ground that does not depend on the child’s being out of the parent’s custody for twelve months — that there is little likelihood that services to the family will result in successful reunification. See Ark. Code Ann. § 9-27-341 (b)(3)(B)(ix)(a)(3)(B)(i) (Supp. 2005). Based on these factors, we affirm on this point.
Sufficiency of the Evidence to Support Termination
Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007). Grounds for termination of parental rights must be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
The goal of our termination statute is to provide permanency in a child’s life in circumstances where returning the child to the family home is contrary to the child’s health, safety, or welfare and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark. Code Ann. § 9-27-341 (a) (3) (Supp. 2005). Parental rights may be terminated if clear and convincing evidence shows that it is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2005). Additionally, one or more statutory grounds must be shown by clear and convincing evidence. Meriweather, supra.
We cannot say that the trial court clearly erred in this case. In its adjudication order, the court directed Smith to obtain stable housing, employment, and income; to keep DHHS informed of his address, telephone numbers, and employment; to have random drug screens; and to undergo a drug-and-alcohol assessment. The court also established visitation with JS and referred Smith for a GED. Yet, the evidence shows that Smith persistently failed to comply with the court’s order and failed to take advantage of the family services being offered. He was inconsistent in his visitation of JS. In fact, his visitation was eventually suspended and never reinstated because of his disobedience of court orders. He tested positive for drugs throughout the case, including on the date of the permanency-planning hearing, and did not follow up on recommendations resulting from a drug-and-alcohol assessment. Further, he was not working or pursuing his GED. Additionally, he was generally unavailable to DHHS workers, and he failed to appear at the termination hearing. Considering these factors, along with Ms. Spencer’s testimony that adoption ofJS was “very possible,” we do not believe that the trial court clearly erred in finding that termination of parental rights was in JS’s best interest.
We also find no clear error in the trial court’s determination that reunification would be unlikely even if services continued. Arkansas Code Annotated section 9-27-341 (b)(3)(B)(ix)(a)(3)(B)(/) (Supp. 2005) establishes a ground for termination where the parent is found by a court to have subjected anyjuvenile to “aggravated circumstances.” The term “aggravated circumstances” includes the following definition:
A juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification.
(Emphasis added.) This type of aggravated circumstance can occur where a parent is not following through with offers of assistance; is not completing basic goals of the case plan, such as obtaining appropriate jobs and housing; and there is a lack of significant progress on the parent’s part. See, e.g., Davis v. Ark. Dep’t of Human Servs., 98 Ark. App. 275, 254 S.W.3d 762 (2007). This describes Smith’s conduct in this case quite accurately.
Moreover, in our de novo review, we could hold alternatively that other grounds for termination were met. See Johnson v. Ark. Dep’t of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). Arkansas Code Annotated section 9-27-341(b) (3) (B)(vii)(fl) provides as a ground for termination:
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
Smith’s behavior in the months following the filing of the dependency-neglect petition matches up well with this statutory language. Despite DHHS’s provision of reasonable services, he engaged in continuous drug use throughout the case and took no steps to remedy his problem; exhibited a lack of cooperation; was apathetic toward the outcome of the termination hearing; and was indifferent to complying with court orders.
In light of the foregoing, we cannot say that the trial court’s termination of Smith’s parental rights was clearly erroneous.
Trial Court’s Consideration of Evidence From Prior Hearings
Smith argues that, because the termination order “contains evidence not presented at the termination hearing,” it violates Ark. Sup. Ct. R. 6-9. The relevant portion of that rule reads:
The record for appeal shall be limited to the transcript of the hearing from which the order on appeal arose, any petitions, pleadings, and orders relevant to that hearing, and all exhibits entered into evidence at that hearing.
Ark. Sup. Ct. R. 6-9(c)(l).
The trial court’s order does in fact refer to prior orders and evidence from earlier proceedings. However, we find no error. In Osborne v. Arkansas Department of Human Services, 98 Ark. App. 129, 252 S.W.3d 138 (2007), the appellant argued that the trial court erred in relying on evidence from prior hearings in a termination case. We disagreed and stated:
The process through which a parent or parents travel when a child is removed from their home consists of a series of hearings — probable cause, adjudication, review, no reunification, disposition, and termination. All of these hearings build on one another, and the findings of previous hearings are elements of subsequent hearings.
Id. at 136, 252 S.W.3d at 143 (quoting Neves da Rocha v. Ark. Dep’t of Human Servs., 93 Ark. App. 386, 219 S.W.3d 660 (2005)).
We recognize that the termination order in Osborne was entered before the effective date of Rule 6-9, but we see no reason to depart from its holding. Rule 6-9 governs “appeals in dependency-neglect cases.” It contains provisions pertaining to appealable orders, notices of appeal, the record on appeal, the parties’ petitions and responses, and other appellate forms and procedures. It does not state that it governs a trial court’s manner of deciding dependency-neglect proceedings. In particular, we find nothing in the rule that dictates what evidence may be considered by a trial court in termination proceedings. We therefore reject Smith’s argument.
Conclusion
For the reasons stated, we affirm the trial court’s termination of Smith’s parental rights to JS.
Affirmed.
Pittman, C.J., and Gladwin, J., agree.
Between October 2005 and December 2005, Ms. Harden repeatedly tested positive for cocaine, marijuana, or both.
The court also terminated Ms. Harden’s parental rights to JS and two other children and terminated the parental rights of the putative fathers of those children. The only termination at issue in this appeal is the termination of Smith’s parental rights to JS. | [
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D.P. Marshall Jr., Judge.
This case involves Arkansas’s intestacy statutes. Marjorie Cann, a retired schoolteacher, died in 2005. She left no spouse, no descendants, no will, and an estate worth approximately $700,000.00. Her many cousins disagreed about how they should share Cann’s estate. After several hearings and briefing, the probate division of the circuit court entered an order distributing Cann’s estate. Five of Cann’s paternal first cousins, once removed — we will refer to them collectively as “the paternal cousins” — have appealed that distribution. Our review is de novo. Wells v. Estate of Wells, 325 Ark. 16, 18, 922 S.W.2d 715, 716 (1996). The question of law presented is whether Judge Brantley correcdy applied several provisions of our probate code about intestate succession to the interesting and undisputed facts of this case. She did.
I.
Before it divided Cann’s estate among her extended family, the circuit court had to determine the members of Cann’s inheriting class — the persons entitled to take from her estate. To do so, the court looked to our table of descent. Ark. Code Ann. § 28-9-214 (Repl. 2004). The provision relevant to Cann’s estate states:
[I]f the intestate is survived by no descendant, then in respect to such portion of his or her heritable estate as does not pass under subdivisions (2)-(5) of this section, the inheriting class will be the surviving grandparents, uncles, and aunts of the intestate.... If any uncle or aunt of the intestate shall predecease the intestate, the descendants of the deceased uncle or aunt will take, per capita or per stirpes according to §§ 28-9-204 and 28-9-205, the share the decedent would have taken if he or she had survived the intestate [.]
Ark. Code Ann. § 28-9-214(6).
When she died, Cann’s closest living relatives were her sixteen maternal first cousins. Seven of Cann’s first cousins had predeceased her — leaving children (Cann’s first cousins, once removed) and other descendants. Under § 28-9-214(6), the circuit court held that Cann’s inheriting class consisted of her grandparents, uncles and aunts (who were all deceased) and their living descendants — including Cann’s first cousins and the descendants of her deceased first cousins. Cf. Restatement (Third) of Prop.: Wills and Other Donative Transfers § 2.4 (1999).
After the circuit court determined the members of Cann’s inheriting class, the next question was how much of the estate each class member would receive. To answer that question, the court referred, as it was directed to do by § 28-9-214, to the code provisions about distribution. Ark. Code Ann. § 28-9-204 (Repl. 2004) explains how Cann’s heirs were to take their shares from her estate:
(1)(A) If all members of the class who inherit.. . from an intestate are related to the intestate in equal degree, they will inherit... in equal shares and will be said to take per capita.
(2) If the members of the inheriting class are related to the intestate in unequal degree, those in the nearer degree will take per capita or in their own right, and those in the more remote degree will take per stirpes or through representation as provided in § 28-9-205.
Section 204(1) (A) did not apply because Cann’s inheriting class included both her surviving first cousins and the descendants of her deceased first cousins. Therefore, the circuit court turned to Ark. Code Ann. § 28-9-205 (Repl. 2004) to divide Cann’s estate.
Arkansas Code Annotated § 28-9-205 explains when and how to divide an estate per stirpes. Its formula directed the circuit court to divide Cann’s estate into as many equal shares as there were surviving heirs in the nearest degree of kinship to Cann and deceased heirs of the same degree of kinship who had surviving descendants. Ark. Code Ann. § 28-9-205(a) (2)(A) & (B). This provision applied to Cann’s sixteen living first cousins and to the seven first cousins who had predeceased Cann, but left descendants who survived her. It did not apply, as the paternal cousins argue, to the deceased aunts, uncles, and grandparents — they were deceased members of the inheriting class, and thus only their living descendants took their shares of the estate. Ark. Code Ann. § 28-9-205 (a) (2) (A) & (B). Each of Cann’s surviving first cousins was to take per capita, receiving one full share. The descendants of each predeceased first cousin were to take per stirpes, dividing one share proportionally among them. Ark. Code Ann. § 28-9-205(a)(3).
Following Ark. Code Ann. § 28-9-205 (a) (2), the circuit court divided Cann’s estate into twenty-three equal shares. Each of her living first cousins got 1/23 of her estate. The descendants of Cann’s deceased first cousins — including her paternal cousins who have appealed — took their representative share of their deceased parents’ 1/23 share. One of these first cousins, once removed, predeceased Cann, and his five living children received his share per stirpes pursuant to § 28-9-205 (b).
II.
On appeal, the paternal cousins argue that the circuit court misread and misapplied Ark. Code Ann. § 28-9-214(6). Cann’s estate, they say, should have been divided per capita at the grandparent/aunt/uncle level of kinship, with a per stirpes distribution to the cousins from there. The paternal cousins assert that “[t]he fact that the statute omits a clause stating that if all of the aunts, uncles and grandparents predecease the estate, the descendants shall take per stirpes or per capita means the only reasonable interpretation [is] that the estate was to be divided at the level of aunt and uncle.” (Emphasis added.) Otherwise, they say, the estate should escheat to the county of Cann’s residence under Ark. Code Ann. § 28-9-215(3).
We disagree. We may not focus exclusively, as the paternal cousins’ argument does, on one part of our probate code. Instead, we must consider and apply all the relevant provisions of the code in harmony. Atkinson v. Knowles, 82 Ark. App. 224, 227, 105 S.W.3d 818, 819 (2003). And the paternal cousins’ argument fails to acknowledge the relationship between Ark. Code Ann. §§ 28-9-204 & 205 and Ark. Code Ann. § 28-9-214.
These other applicable statutes make plain that the “any” in § 28-9-214(6) is capacious enough to include the situation here: Cann’s grandparents, aunts, and uncles predeceased her but left descendants living at the time of Cann’s death. That circumstance fixed the inheriting class at the surviving-first-cousin level.
We acknowledge that the words of § 28-9-214(6) will bear another interpretation. It is possible to read the introductory phrase — “the inheriting class will be the surviving grandparents, uncles, and aunts of the intestate[ ]” — as a condition that one of these named individuals must survive Cann before this section of the code applies. But this interpretation does not get the paternal cousins where they want to go — a per capita distribution from the grandparent/uncle/aunt level.1 The paternal cousins note this interpretation but do not strongly press it. They see that it would lead to an escheat of Cann’s estate to Pulaski County.
We reject this interpretation of § 28-9-214(6) for two reasons. First, it would require us to read the words “but not all of them” into the last sentence of § 28-9-214(6): “If any uncle or aunt of the intestate but not all of them shall predecease the intestate, the descendants of the deceased uncle or aunt will take . . . We may not, however, add words to the statute. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 568, 42 S.W.3d 443, 451 (2001). Again, we must give effect to and harmonize all the statute’s terms if possible. Ford v. Keith, 338 Ark. 487, 494, 996 S.W.2d 20, 24-25 (1999). Second, this alternative reading would defeat the manifest purpose of our intestacy statutes: to prescribe a default rule for equitably dividing the intestate’s estate among her family, with escheat as the last resort.
Reading a condition of survivorship into the introductory phrase of § 28-9-214(6) would lead to the escheat of Mrs. Cann’s estate to the county of her residence at death. She would have no surviving heir under § 28-9-214(6) (grandparents, uncles, and aunts) or § 28-9-214(7) (great grandparents, great uncles, great aunts), and her estate would pass pursuant to § 28-9-214(8) and § 28-9-215(3) to Pulaski County. Considered as a whole, our intestacy statutes disfavor escheats. This sound policy echoes the common law. 30A C.J.S. Escheat § 1 (2007). Faced-with two permissible readings of § 28-9-214(6), we adopt the one that is more consistent with all the words in this section and our law’s preference for Cann’s albeit distant kin over Pulaski County.
The modified per stirpes intestacy scheme in Arkansas is unusual. Restatement § 2.4 cmt. i. And it is complex. Illuminated by all the provisions about intestacy, our statutes are clear nonetheless. Under these statutes, the per capita distribution is at the first level at which the intestate has surviving heirs, § 28-9-205(a)(2), regardless of what level was used to determine the inheriting class under § 28-9-214. Because all of Cann’s aunts, uncles, and grandparents had predeceased her, the circuit court correctly made the per capita distribution of Cann’s estate at the first-cousin level.
Affirmed.
Baker and Miller, JJ., agree. | [
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Tom Glaze, Judge.
Virginia F. Allen appeals from a decree of the Pulaski County Chancery Court awarding custody, child support, attorneys’ fees and disposing of marital property. Appellant contends the court erred in failing to (1) divide the marital property according to Ark. Stat. Ann. § 34-1214 (Supp. 1985), (2) award alimony and (3) award reasonable attorney’s fees to her present counsel.
The parties were married on July 24,1966, and separated on or about August 19,1977. Appellant filed for divorce on August 22, 1977, and later filed an amended complaint seeking separate maintenance. On November 22,1977, an order was entered, nunc pro tunc to September 20,1977, granting appellant custody of the parties’ minor children, support, and use and possession of the marital home. Appellee answered and counterclaimed for divorce on December 5,1977, and on August 2,1984, nearly seven years later, a decree was entered granting appellant a divorce, but providing that all prior orders would remain in effect until a final determination of property rights. On February 27,1985, a decree was entered awarding custody, child support, possession of the marital residence, and attorneys’ fees to appellant. Appellant appeals from the February 27th decree.
In June 1967, Albro, Inc. (Albro) was incorporated, with appellee, appellee’s sister, and Vernon Brown’s wife, holding one share of stock each. At the same time, Vernon Brown and two other individuals set up the Flaming Arrow Supper Club, Inc. (Flaming Arrow), which was organized as a nonprofit corporation, whose sole purpose was to provide social, cultural, and recreational facilities for its members. Appellee testified that Albro was established to buy the whiskey and other inventory for the Flaming Arrow. In September 1968, appellee bought out the Browns’ interests in the Flaming Arrow and Albro, and in 1973, he sold the assets of Albro to the Flaming Arrow for $12,129.79. Appellee was president of the Flaming Arrow until he was charged with gambling violations in 1975. Appellant then served as president until the parties’ separation, at which time appellee’s daughter by a previous marriage replaced appellant as president. After appellee was released from federal prison, he was employed as management consultant to the Flaming Arrow.
In its decree of February 27, 1985, the court ordered appellee to pay, in lieu of alimony, the principal, taxes and insurance on the marital home until the minor child is eighteen years old, at which time the house is to be sold and the proceeds divided equally between the parties. The court awarded attorneys’ fees of $1,100.00 to appellant’s previous attorney and $300.00 to her present attorney.
On appeal, appellant contends the court erred because it failed to divide the marital property according to Ark. Stat. Ann. § 34-1214 (Supp. 1985). Specifically, she argues that she should have been awarded an interest in (1) the Flaming Arrow (2) a $29,738.66 note due appellee from the Flaming Arrow, and (3) the $6,379.00 remaining due on a note from the Flaming Arrow to Albro — a company in which appellee has an ownership interest. After noting she was awarded no interest in the two notes, she further argues that the chancellor gave no basis or reasons for the unequal distribution of marital property as is required by § 34-1214(A)(l) (Supp. 1985). Because we find merit in appellant’s contentions regarding the two notes, we reverse and remand for further proceedings.
Appellant first argues that the nonprofit status of the Flaming Arrow should have been disregarded by the trial court and that she should have been given her marital interest in that business. While appellant correctly points to a number of instances when appellee failed to comply with the state statutes covering nonprofit corporations, and noting appellee had withdrawn funds from the Flaming Arrow seemingly at will, it is undisputed that the Flaming Arrow was established as a nonprofit corporation for a legitimate purpose — a supper club where mixed drinks were served. Appellee testified that the Flaming Arrow was comprised of 1,100 members who owned the business. Although appellant notes the books of the Flaming Arrow reflect the issuance of $300.00 in capital stock, appellee explained this entry as a reference to stock that must have been carried over from the Flaming Arrow’s purchase of Albro in 1973. We believe the evidence sufficiently supports the conclusion that the Flaming Arrow is a nonprofit organization in which neither appellee nor appellant was entitled to an awardable property interest.
Regarding appellant’s argument that she is entitled to an interest in the notes due Albro and appellee from the Flaming Arrow, appellee contends that, at most, appellant is entitled only to that portion of the notes due prior to their separation and an order entered by the court on November 22, 1977. In support of this contention, appellee relies on Act 705 of 1979, compiled as Ark. Stat. Ann. § 34-1214(B)(3) (Supp. 1979). This Act excluded from marital property any property acquired by a spouse after a decree of legal separation. We cannot agree.
The November 22,1977, order was a temporary one, entered pursuant to Ark. Stat. Ann. § 34-1210 (Repl. 1962). As such, that order did not deal with or effect the distribution of the parties’ properties. Instead, the parties’ division of marital property, which occurred by court decree in February 1985, was governed by the statute in effect on the date the divorce was granted, August 2, 1984. See Chrestman v. Chrestman, 4 Ark. App. 281, 630 S.W.2d 60 (1982). The statute in force and effect on that date was Ark. Stat. Ann. § 34-1214 (Supp. 1985), which provides that all marital property shall be distributed one-half to each party unless the court finds such a division inequitable after giving consideration to nine specified factors. When the property is not divided equally between the parties, the court is required to state its basis and reasoning.
Here, the trial court failed to award appellant her interest in the two notes which appellee owned or in which he had an ownership interest. She clearly had a right to her marital interest in those notes, or the trial court should have given its basis and reasons for not having awarded her one-half interest.
While ordinarily we would on de novo review decide this matter rather than remand it for further proceedings, the appellant raises issues involving alimony and attorney’s fees as well. In addition, the record reflects various properties, but the evidence is unclear or silent concerning the parties’ respective ownership interests in them. Therefore, we believe the interests of justice would be better served by reversing that portion of the decree dealing with alimony, attorney’s fees, and property division to enable the chancellor to reconsider the disposition in light of the views expressed herein. Womack v. Womack, 16 Ark. App. 139, 698 S.W.2d 306 (1985).
Reversed and remanded.
Corbin and Mayfield, JJ., agree.
Even if appellee had correctly characterized the court’s November 22,1977, order as a decree of legal separation, the law does not seem to substantiate his contention. Ark. Stat. Ann. § 34-1214(B)(3) (Supp. 1979) was amended by Act 799 of 1981. Section 4 of that Act reads as follows: “It is hereby found and determined by the General Assembly that under the present Arkansas law, there is no provision for a ‘decree of legal separation’; that since there is no such provision, paragraph (3) of subsection (b) of Section 461 of the Civil Code [Ark. Stat. Ann. § 34-1214(B)(3)] as amended by Act 705 of 1979 actually has no application. . . .” Act 799of 1981 amended § 34-1214(B)(3),excludingfrommarital property any property acquired by a spouse after a decree of divorce from bed and board. | [
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Melvin Mayfield, Judge.
Appellant was arrested for conspiracy to commit capital murder. The state alleged appellant had attempted to hire Bill Smith to kill Dan Stewart and had committed the overt acts of obtaining a pistol and a silencer for Smith to use. Smith, however, reported the incident to Stewart and then disappeared for several weeks. When Smith returned, he cooperated with authorities by wearing a “body pack” to appellant’s home several times, thereby recording conversations in which they discussed the killing. The last such visit by Smith was on Saturday, October 30, 1982. On Tuesday, November 2, well after dark, officers went to appellant’s home without a warrant and about midnight they arrested him. Appellant was taken to the sheriff’s office and, after he was read his Miranda rights, he was questioned for about three hours.
Prior to trial, appellant filed a motion to suppress the in-custody statement, the statements recorded by means of the body pack worn by. informant Bill Smith, and certain other physical evidence. In the alternative, appellant moved for all references to other crimes contained in the statements to be excluded from the hearing of the jury as being irrelevant to the crime charged. The motion was denied. After a five-day trial, appellant was convicted and sentenced to 20 years.
Appellant’s first point for reversal is that the motion to suppress his three-hour midnight statement should have been granted since it was preceded by a warrantless arrest of appellant in his home despite the fact that there were no exigent circumstances and a warrant could have been obtained. In Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court held that the Fourth Amendment, made applicable to the states by the Fourteenth, prohibits the police from making a warrant-less and nonconsensual entry into a suspect’s home to make a routine felony arrest. Pointing out that “the simple language of the Amendment applies equally to seizures of persons and to seizures of property,” the.Court said:
The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its foots in clear and specific constitutional terms: “The right of the people to be secure in their . ... houses . . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” . . . Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Id. at 589-90.
Payton involved two appellants. The other appellant, Obie Riddick, was arrested at his home without a warrant. When the police knocked on the door, Riddick’s young son opened it and they saw Riddick sitting in bed covered with a sheet. They entered the house and placed him under arrest. Before permitting him to dress, they opened a chest of drawers two feet from the bed in search of weapons and found narcotics and drug paraphernalia. Riddick was subsequently convicted on narcotics charges and the Supreme Court of the United States reversed the trial court’s refusal to suppress the evidence found in the chest of drawers. In United States v. Johnson, 457 U.S. 537 (1982), the Court relied upon Payton to affirm a United States Circuit Court of Appeals’ decision that held a defendant’s written statement should be suppressed as fruit of an. unlawful arrest where the statement was obtained after a warrantless arrest of defendant while he stood in the doorway of his home, after having opened the door in response to false identification by government agents.
The Arkansas Supreme Court, in Jackson v. State, 271 Ark. 71, 607 S.W.2d 371 (1980), applied Payton to remand the case for the trial court to determine if exigent circumstances existed to allow the warrantless arrest of the defendant at his home. The court said Payton held that:
[T]he threshold of one’s home cannot reasonably be crossed without a warrant in the absence of exigent circumstances. Although the defendant must nonetheless stand trial the exclusionary rule prohibits introduction of any evidence seized pursuant to such an arrest....
In the instant case, the trial court found that the appellant was arrested without a warrant and without exigent circumstances. But the court held, and it is argued on appeal, that because the officers knocked on appellant’s door, asked him to step outside, and arrested him on the front porch, the arrest was not unlawful as there was no actual entry into the home. We think Scroggins v. State, 276 Ark. 177, 182, 633 S.W.2d 33 (1982), indicates otherwise. There the court said:
The State offers a parenthetical argument that Scroggins consented to leave the room and was actually arrested outside the room and, therefore, no Payton issue exists. The facts demonstrate why this argument is meritless. The officers held a gun on Scroggins and asked him to come out of the room; obviously there could be no free choice on the part of Scroggins in such a situation.
Here, the record shows that the officers had sufficient evidence by October 31, 1982, to constitute probable cause to believe that appellant was involved in a conspiracy to commit murder. However, they made no effort to obtain a warrant even though they had two working days to do so. We find appellant’s arrest on the night of November 2,1982, to be unlawful in light of Payton, and that the statement taken from him in the sheriff’s office immediately after that arrest should have been suppressed. We therefore reverse and remand.
In view of the remand, we discuss those points which might arise in a new trial. Appellant contends that the trial court erred in refusing to suppress the body-pack tapes in their entirety, or at least those parts of the statements which contained references to a matter for which appellant had already been charged and had retained counsel. He relies on Massiah v. United States, 377 U.S. 201 (1964), which held that it was error for government agents to obtain and testify to incriminating statements made to an informer by a defendant who was represented by counsel, had been indicted, and had entered a plea of not guilty. In the instant case, however, appellant had not yet been charged with or arrested for the. conspiracy to commit murder when he made the statements which Smith recorded. An additional distinction is that Massiah had already retained an attorney to represent him on the charge he was questioned about. Here, although appellant had hired an attorney, it was to represent him on a charge of possession of a prohibited weapon — not conspiracy to commit murder.
The principle of law in this case is similar to that in Kerr & Pinnell v. State, 256 Ark. 738, 512 S.W.2d 13 (1974), where a convicted defendant became an informer and taped voluntary conversations with an unindicted accomplice. See also Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980). Those cases demonstrate that there was no constitutional right, federal or state, violated in the taping of the conversations in the instant case and that the trial court did not err in refusing to suppress the body-pack tapes.
Appellant’s argument that certain portions of the tapes should be suppressed is directed toward references to an incident in which a pickup truck was searched after it crashed into a concrete embankment and was abandoned. In looking for the registration, an officer discovered a gun adapted for use with a silencer and a book on how. to make a silencer. The officer testified that the vehicle was found to be registered in the name of appellant’s brother, but also testified that he had seen the appellant drive the vehicle quite often and that appellant lived within 200 feet of where the accident occurred. Moreover, appellant’s brpther testified that, although the vehicle was registered in his name, the appellant really owned it and usually drove it.
The appellant was charged with possession of a prohibited weapon, and the possession of the weapon and the book was subsequently alleged as evidence of an overt act in furtherance of the conspiracy. However, Ark. Stat. Ann. § 41-105(1) (Repl. 1977) provides:
When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
See also King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). We do not think it was error for the court to admit these tapes into evidence in their entirety.
Appellant next argues, in regard to the testimony of Bill Smith and Junior Brown, that the trial court should have instructed the jury that the testimony of an accomplice must be corroborated. The appellant’s abstract contains an objection to the court’s failure to give such requested instructions but the instructions are not abstracted and there is no reference to where they may be found in the transcript. For that reason we could not decide this point on its merits. Pitcock v. State, 279 Ark. 174, 178, 649 S.W.2d 393 (1983); Green v. State, 7 Ark. App. 175, 646 S.W.2d 20 (1983). However, because of the remand for new trial we think it necessary to discuss the issue to some extent.
In Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980), the appellant was found guilty of conspiracy to commit criminal mischief. The charges stemmed from the destruction of a helicopter owned by a company in which Cate was the majority stockholder. Edd Conn, a codefendant and employee of the company, testified that he was approached by Cate about destroying the helicopter to collect the insurance on it. Conn enlisted the aid of Ken Doles and they set fire to the helicopter. The trial court instructed the jury that Conn and Doles were accomplices as a matter of law and that Cate could not be convicted upon the uncorroborated testimony of an accomplice. The court refused, however, to tell the jury that Conn’s common-law wife was an accomplice as a matter of law, even though she tried to find some gasoline for Conn and Doles to use in burning the helicopter. The court submitted her status to the jury and this was affirmed on appeal because she testified that Conn had assured her that he would have nothing to do with the actual destruction of the helicopter. The Arkansas Supreme Court said:
We hold, in the circumstances, that she was not an accomplice as a matter of law. Her complicity was a fact issue. The jury could reasonably infer that her unsuccessful effort to find a gas can, with the knowledge of its intended use, was not made with the true purpose of aiding in the accomplishment of the criminal endeavor.
We think that Cate stands for the following points of law that are also involved in the instant case.
1. A conspiracy is a crime in and of itself, and it exists as Cate says “when one, for ‘the purpose of promoting or facilitating the commission’ of a criminal offense, agrees with another person or persons that he will engage or aid in committing the offense coupled with an overt act pursuant to the conspiracy.” See also Ark. Stat. Ann. § 41-707 (Repl. 1977) and its Commentary.
2. A coconspirator may also be an accomplice. Accord Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983), and State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974).
3. A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Cate v. State, 270 Ark. at 975 [quoting from Ark. Stat. Ann. § 43-2116 (Repl. 1977)].
4. Whether a witness is an accomplice is usually a mixed question of fact and law, and the finding of a jury as to whether a witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice. Cate v. State, 270 Ark. at 976 (citing Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977)).
Applying the above points of law to the case at bar, we think under the evidence in the record now before us it would be proper to use AMCI 403 to submit to the jury the question of whether Junior Brown, who made the silencer for the gun which he was told was to be used to kill Dan Stewart, was an accomplice. See Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984). But we think that the record before us presents a different situation as to Bill Smith.
Ark. Stat. Ann. § 41-305 (Repl. 1977) affords an affirmative defense to an accomplice who terminates his complicity (in accordance with the provisions of the statute) prior to the commission of the offense. Also, Ark. Stat. Ann. § 41-710 (Repl. 1977) affords an affirmative defense to prosecution for conspiracy to commit an offense to one who (in accordance with the provisions of the statute) terminates his participation in the conspiracy. We do not believe, however, that these sections eliminate the necessity for the corroboration of Smith’s testimony. Smith had already committed the offense of criminal conspiracy by planning the commission of an offense and committing the overt act of helping to procure a silencer for the gun to be used in the planned offense. He may have a defense to liability for the crime of conspiracy and to being an accomplice, but his testimony against a member of the conspiracy must be corroborated.
We distinguish, in this regard, cases such as Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981) and Breed v. State, 198 Ark. 1004, 132 S.W.2d 386 (1939). In Roleson it is indicated that the accomplice status of a witness could be vitiated by duress imposed through a threat to her son. This simply means that because of duress one may not be an actual or real participant in the crime. The same principle applies to Breed where the court said the jury elected to take the view that a witness “was not a participant in the crime, but was acting under the direction and instruction of a peace officer of the state.”
In People v. Comstock, 305 P. 2d 228, 234 (Cal. Dist. Ct. App. 1956) the court said: “The statutory requirement of corroboration is based primarily upon the fact that experience has shown that the evidence of an accomplice should be viewed with care, caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity.” In 30 Am. Jur. 2d Evidence § 1148 at 323 (1967), it is said that “a long history of human frailty and governmental overreaching for conviction has justified distrust in accomplice testimony.” We hold that Ark. Stat. Ann. § 43-2116 (Repl. 1977), requiring that the testimony of an accomplice be corroborated, applies to the testimony of Bill Smith as a matter of law under the circumstances of the record now before us. We point out, however, that we cannot predict the state of thp record on retrial.
The appellant’s last point has been addressed by what we have already said. Conspiracy is a separate crime. One may be charged with conspiracy to commit capital murder and with capital murder also. Smith v. State, 6 Ark. App. 228, 640 S.W.2d 805 (1982) (see the dissenting opinion). One could also be charged as an accomplice in the same case. Cate v. State, supra. There is no merit in appellant’s argument that he was found guilty of a “conspiracy to conspire.” See Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).
Reversed and remanded for a new trial.
Cloninger and Corbin, JJ., agree. | [
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Tom Glaze, Judge.
Appellant appeals from his jury convictions of breaking and entering, theft of property and criminal mischief in the first degree. He raises four points on appeal, but we find that none of them requires reversal.
First, appellant contends the court erred in denying his motion for new trial because his convictions were based on the uncorroborated testimony of an alleged accomplice. We easily dispose of this contention because this issue was not raised below. See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). Appellant never requested an instruction on accomplice liability nor, in reviewing the record, do we find from the evidence that appellant had an accomplice for the three crimes with which he was convicted.
Second, appellant argues the verdicts were not supported by the evidence and were contrary to the law. This argument is inextricably a part of appellant’s first argument. There appellant argued that a Kenny Maddox, Jr. was an accomplice. Maddox also was the State’s witness who clearly implicated appellant as the one who had committed the crimes. Because appellant and the evidence failed to show Maddox an accomplice, Maddox’s testimony alone was sufficient to support appellant’s convictions. There was, however, other accompanying evidence which aids in sustaining the verdicts. On December 5th or 6th of 1982, an Ed McCormick’s house was broken into and considerable damage ($8,000 to $9,000) was done to its interior. In addition, McCormick said that he was missing a .243 Winchester rifle with a scope, two silver trophies and a full one-half gallon of vodka. He testified that prior to the incident, appellant had threatened, cursed and harassed him because he had dated appellant’s former wife.
Kenny Maddox, Jr., testified that appellant admitted to him that he had entered McCormick’s house through its back window and after entering, had “pulled drawers out, put bleach on the furniture, busted eggs and stuff, poured catsup around the house, busted his t.v. and stereo.” Maddox further stated appellant said that he had taken a .243 rifle, a bottle of vodka and a trophy which appellant said he threw in a creek. Maddox’s father testified the appellant attempted to sell him a .243 rifle with a scope which Mr. Maddox, Sr., described as a Remington make. However, in a prior statement given the police, Mr. Maddox, Sr., described the rifle as a “.243 caliber Winchester with a scope.” We believe the foregoing testimonies substantially support appellant’s convictions and the evidence is clearly consistent with the crimes for which he was found guilty.
Appellant’s third point for reversal reveals other evidence which tends to connect appellant with the theft of McCormick’s .243 caliber rifle. A deputy sheriff, Jimmie Jacobs, testified that pursuant to appellant’s written consent, he searched appellant’s automobile and found a .243 caliber shell in the trunk. Appellant urges, however, this testimony and the shell should have been suppressed because the State could not produce the consent form appellant allegedly signed. We cannot agree. Appellant made his motion to suppress for the first time at trial, arguing that he had been assured by the State that a consent form had been freely and voluntarily executed and that he did not know it was unavailable until Jacobs testified at trial. Rule 16.2 of the Rules of Criminal Procedure requires a motion to suppress to be filed not later than ten days before the date of trial, although the trial court may otherwise entertain such a motion for good cause. Here, appellant filed a pre-trial discovery motion to which the State responded by stating its files were open for inspection. The State specifically answered that appellant could inspect all statements he had made and any written waivers he allegedly had signed while he was under arrest. If appellant had diligently inspected the files and requested the whereabouts of the consent form, he would have known well in advance of the trial that the form was missing. As we have stated before, a defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Robinson v. State, 7 Ark. App. 209, 646 S.W.2d 714 (1983).
Even if appellant had filed a timely Motion to Suppress, his argument would be of no avail. In Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980), the Supreme Court upheld the validity of an automobile search based upon an officer’s uncontradicted statement that Scroggins orally and voluntarily gave his consent to searches vehicle. Here, Deputy Sheriff Jacobs, Patrolman Charlie Edmonson and Jailer Harold Webb all testified without contradiction that appellant had signed a written consent form allowing his vehicle to be searched. They merely said that none of them could find the executed form. Based upon the Court’s holding in Scroggins, we hold these three officers’ uncontradicted statements met the State’s burden of proving by clear and positive testimony that the consent to search was freely and voluntarily given without actual or implied duress or coercion.
Appellant’s final argument is the trial court erred in refusing to allow appellant to be sentenced under Ark. Stat. Ann. §§ 43-2339 et seq., the “Alternative Service Act.” As was pointed out in Haynes v. State, 269 Ark. 506, 602 S.W.2d 599 (1980), this Act is discretionary. An eligible offender under the Act is defined in relevant part as follows:
“Eligible Offender” means any person convicted of a felony offense, other than a capital felony offense, or murder in the first degree, murder in the second degree, first degree rape or kidnapping, or aggravated robbery and who has never been previously convicted of a felony offense, and whose interests, and the interests of the State, in the opinion of the sentencing trial court, could be [better] served by diversion under the provisions of this Act than by sentencing under other applicable penalty provisions established by law.
Those persons under the age of twenty-six (26) years at the time of the commission of a felony offense, other than a capital felony offense, or murder in the first degree, murder in the second degree, first degree rape or kidnapping, or aggravated robbery for which they are convicted shall still be “Eligible Offenders” under this Act if they had one (1) previous felony conviction other than a conviction for a capital felony offense, or murder in the first degree, murder in the second degree, first degree rape or kidnapping or aggravated robbery.
Ark. Stat. Ann. § 43-2340(f) (Supp. 1983) (emphasis supplied). Under the Act, the trial court must determine if any convicted person may be an eligible offender as defined in § 43-2340(f), supra; see also Ark. Stat. Ann. § 43-2342 (Supp. 1983). As noted in Turner v. State, 270 Ark. 969, 606 S. W.2d 762 (1980), the trial judge has discretionary authority under the Act in two pertinent respects: one, the offender is eligible for sentencing under the Act if “in the opinion of the sentencing trial court” his interests and those of the State would best be served by resorting to the Act. Two, if it appears to the trial court that the defendant “may be an eligible offender,” the court shall postpone the imposition of sentence for not more than 30 days to allow the submission of written reports with regard to the eligibility of the offender for sentencing under the Act. See also Barnes v. State, 4 Ark. App. 84, 628 S.W.2d 334 (1982).
In the instant case, the trial judge simply found that the State’s interests would not be served by resorting to alternative sentencing under the Act. Appellant was convicted of breaking and entering, theft of property and first degree criminal mischief and these crimes involved what the Judge described as “one of the most horrible situations I have heard.” Appellant also had been recently convicted of harassment which, considering the magnitude of the threats made and damages caused by appellant in this case, prompted the judge to state:
I believe, Mr. Garrison, you need someone to kind of keep an eye on you a little bit. . . . Normally, I would grant such . . . requests], [alternative and concurrent sentencing] . . . but I believe you deserve a little extra attention. I believe that the people of this county are entitled to their peace and quiet and I don’t know what your problem is but I think you need to devote some time to trying to solve it somehow.
From the judge’s remarks, he clearly considered whether appellant was an eligible offender under the Act and decided he was not. Based upon the record before us, we cannot say he erred.
Affirmed.
Corbin and Mayfield, JJ., agree.
Prior to 1983, this Act was previously known as the “Youthful Offender Alternative Service Act of 1975.” | [
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Donald L. Corbin, Judge.
This appeal is from a decision of the Board of Review disqualifying appellant from receiving unemployment compensation benefits pursuant to Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976). The Board held that appellant was guilty of misconduct in connection with the work based on a finding that appellant knowingly engaged in a course of conduct which was in violation of the ethical and moral standards to which the employer had a right to expect and that her actions were a willful disregard of the employer’s best interest within the meaning of the above-cited statute.
Appellant was employed by the Flippin School District as a teacher. On January 16, 1982, appellant’s husband was injured in a one-car automobile accident. After appellant’s husband was taken to the hospital, members of the Marion County Sheriff’s Department went to the accident scene to investigate and to insure that no other person had been injured. During the investigation, the sheriff’s deputies found hashish in and around the car. They returned to the hospital where appellant and her husband were questioned by the Sheriff’s Office, at which time appellant consented to a search of their home. As a result of the search, the sheriff’s deputies found drug paraphernalia, marijuana, and hash oil.
On Monday, January 18, 1982, appellant called the principal of the school and told him that she would not be at school because her husband was in the hospital. Later that day appellant and her husband were charged with possession of a controlled substance. News of the arrest was carried on local radio programs and in newspaper reports. On January 21, 1982, appellant was notified by the superintendent that she was suspended with pay. On March 11, 1982, a school board hearing was held and appellant’s teaching contract was terminated.
On March 18, appellant filed a claim for unemployment compensation benefits which was denied by the agency on April 8. Appellant appealed and two Appeals Tribunal hearings were held. The appeals referee reversed the agency and found that appellant had been discharged for reasons other than misconduct in connection with the work. The employer appealed that decision to the Board of Review and the Board reversed the appeal referee’s decision and denied benefits under the provisions of Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976). It is from that decision that appellant takes this appeal.
Appellant argues on appeal that the decision of the Board of Review that she was discharged because of misconduct connected with her work is not supported by substantial evidence.
On appellate review the findings of fact of the Board of Review are conclusive if supported by substantial evidence, and we must give the successful party the benefit of every inference that 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). Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its result upon the evidence before it, and a review court is not privileged to substitute its findings for those of the Board even though the court might have reached a different conclusion if it had made the original determination upon the same evidence. Hodnett v. Daniels, 271 Ark. 479, 609 S.W.2d 122 (Ark. App. 1980).
Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976) provides:
. . . [A]n individual shall be disqualified for benefits: (1) If he is discharged from his last work for misconduct in connection with the work.
This court has on many occasions construed the term “misconduct”. In Nibco, Inc. v. Metcalf, et al., 1 Ark. App. 114, 613 S.W.2d 612 (1981), this court abstracted pertinent decisions dealing with the term “misconduct” and summarized those decisions as follows:
And while the language used is not exactly the same in each case, they say that misconduct involves: (1) disregard of the employer’s interests, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer.
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.
Whether or not the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct or unintentional failure of performance, is a question of fact for the Board of Review to determine. Arlington Hotel v. Employment Security Division, 3 Ark. App. 281, 625 S.W.2d 551 (1981).
Appellant argues that her conduct, as a matter of law, cannot be said to amount to misconduct because: (1) she was acquitted of criminal charges, (2) she did not admit to the use of marijuana until the time of her criminal trial, thus, she could not have been discharged on the grounds of this statement and, (3) she had no control over the amount or type of publicity that arose from her arrest and thus her actions could not be said to be willful or intentional.
As to appellant’s first point above, this court has recently held in Lakeside School v. Harrington, 8 Ark. App. 205, 649 S.W.2d 847 (1983), that “[t]he disposition of criminal charges is a factor which the Board may consider in determining whether a worker’s actions constituted ‘mis conduct in connection with the work’, but it does not decide the issue.” In Food Fair Stores, Inc. v. Commonwealth of Pennsylvania, 11 Pa. Cmwlth. 535, 314 A.2d 528 (1974), the court held that the employee was guilty of willful misconduct precluding unemployment compensation benefits even though he was acquitted of criminal charges arising out of the activity which brought about his discharge.
Appellant’s contention that her admission to the use of marijuana during her criminal trial could have no bearing on her discharge since it was made after her discharge is without merit. There is no evidence that her admission to the use of marijuana was the basis for her discharge, but instead, the basis of her discharge was her involvement with illegal drugs which brought about her arrest and the related publicity which rendered her ineffective as a classroom teacher.
Appellant’s argument that her acts were not willful because she had no control over her personal life becoming a matter of public knowledge is not determinative. Through the course of events, her conduct did become a matter of public knowledge and interest and appellant knew or should have known that her conduct, if and when it became known, would be against her employer’s best interest. Moreover, we reiterate, “whether or not the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct or unintentional failure of performance is a question of fact for the Board of Review to determine.” Arlington Hotel v. Employment Security Division, supra.
We hold that the Board of Review’s decision that appellant’s conduct constituted misconduct is supported by substantial evidence.
As stated above, the principle of what constitutes “misconduct” under Ark. Stat. Ann. § 81-1106 (b) (1) has been construed by this Court on many occasions and is relatively well-settled. Less settled is what constitutes “misconduct in connection with the work" when the actions purporting to constitute misconduct occur while a claimant is off-duty and not on the employer’s premises, which is the question presented in the case at bar.
Statutes are to be construed with reference to the public policy which they are designed to accomplish. Ark. Tax Commission v. Crittenden County, 183 Ark. 738, 38 S.W.2d 318 (1931); Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S. W.2d 790 (1977). The declaration of state public policy as applied to our Employment Security Act, codified at Ark. Stat. Ann. § 81-1101 (Repl. 1976), provides in pertinent part:
The Legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this State require the enactment of this measure, under the police power of the State, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. (Emphasis ours.)
As the Supreme Court stated in Little Rock Furniture Mfg. Co. v. Commr. of Labor, 227 Ark. 288, 298 S.W.2d 56 (1957), our Employment Security Act must be given an interpretation in keeping with the declaration of state policy. The intent of the Arkansas Legislature controls the construction of our Employment Security laws. We believe that the legislature did not intend to limit misconduct connected with the employee’s work to misconduct which occurred only during the hours of employment and on the employer’s premises. If it had, the language used in Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976), would have undoubtedly expressed that intent.
Although this is a case of first impression in Arkansas, several other jurisdictions have considered the issues raised in off-duty misconduct cases and have construed statutory language identical to that contained in Ark. Stat. Ann. § 81-1106 (b)(1) (Repl. 1976). The concept that misconduct in connection with the work can occur while an employee is off-duty has long been recognized by a majority of states which have addressed the issue. See 76 Am.Jur.2d Unemployment Compensation § 57 (1974). The following lan guage is found in the 1958 case of Employment Security Board v. Lecates, 218 Md. 202, 145 A.2d 840:
We think we may assume that the legislature did not intend to limit misconduct “connected with” the employee’s work to misconduct which occurred during the hours of employment and on the employer’s premises. If it had, the language used would have undoubtedly expressed that intent. Since no such limitation was indicated, it is obvious the provisions of the statute were intended to deny unemployment compensation to a claimant who was discharged — and hence unemployed — because of misconduct regardless of when or where it occurred so long as such misconduct was in law connected with the employee’s work.
The following states are in agreement with Maryland in its interpretation of the term “misconduct in connection with the work”: Louisiana, Grimble v. Brown, 247 La. 376, 171 So.2d 653, cert. denied, 382 U.S. 861 (1965); Idaho, O’Neal v. Employment Security Agency, 89 Idaho 313, 404 P.2d 600 (1964); Wisconsin, Gregory v. Anderson, 14 Wis.2d 130, 109 N.W.2d 675 (1961); Texas, Texas Employment Comm. v. Ryan, 481 S.W.2d 172 (1972); Pennsylvania, Cadden v. Unemployment Compensation Board of Review, 195 Pa.Super. 159, 169 A.2d 334 (1961); Oregon, Giese v. Employment Division, 27 Or. App. 929, 557 P.2d 1354 (1976); D.C., Budzanoski v. Dist. Unemployment Compensation Board, 326 A.2d 243 (1974); Tennessee, Weaver v. Wallace, 565 S.W.2d 867 (1978).
After having determined that off-duty activities can constitute misconduct, we must now determine what factors must be present in order to find that a claimant’s off-duty activities constitute misconduct in connection with the work. It should initially be noted that it would be impossible to list every situation where misconduct in connection with the work might occur. It would also be impossible to address every possible hypothetical factual circumstance which might present the question of whether misconduct in connection with the work has occurred. In cases which involve off-duty misconduct, as in cases involving on-duty misconduct, the factors of each case will vary since different employers and employees have differing rights and obligations and each case must be decided on its particular facts. Jackson v. Bible, 611 S.W.2d 588 (Tenn. Ct. App. 1980); Chrysler Corp. v. Review Board of the Indiana Employment Security Division, 185 N.E.2d 25 (1962). Therefore, it appears that some test should be set forth in order that employees, employers and the administrative agency might have guidance as to when off-duty misconduct will be considered misconduct “in connection with the work”.
We choose to apply the elements enunciated by the Washington Supreme Court in Nelson v. Employment Security Department, 98 Wash.2d 370, 655 P.2d 242 (1982), in reversing the Washington Court of Appeals, 31 Wash. App. 621, 644 P.2d 145. The claimant there was employed as a cashier for a publishing company and while off-duty, she was charged with shoplifting and subsequently entered a guilty plea to the charge. She personally informed her employer of the incident and was fired. The issue in the case was whether her actions constituted misconduct in connection with the work. The unemployment administration found her actions constituted misconduct in connection with her work which was upheld by the Washington Court of Appeals. The Court of Appeals found that since the claimant’s job required her to handle money, she should have known that her conviction for shoplifting would influence her trustworthiness in the eyes of her employer and peers. The court also found that the claimant should have known that conduct which impugned her trustworthiness would directly affect her ability to do her job, and thus would be adverse to her employer’s interest.
In analyzing the relationship between the claimant’s conduct and her work, the Court of Appeals stated:
Thus, we support the basic approach of the Department, which we believe can be broken down to these elements: to establish misconduct connected with work the employer must show, by a preponderance of evidence, that the employee’s conduct (1) had some nexus with her work; (2) resulted in some harm to the employer’s interest, and (3) was in fact conduct which was (a) violative of some code of behavior impliedly contracted between employer and employee, and (b) done with intent or knowledge that the employer’s interest would suffer.
The Supreme Court of Washington, in reversing the decision of the Court of Appeals denying unemployment benefits to the claimant, adopted in part the rule set forth by the Court of Appeals in determining whether an employee’s actions constitute “misconduct in connection with the work”. The court stated:
. . . We adopt the rule developed by the Court of Appeals, in Nelson v. Department of Employment Security, supra, with one change. The Court of Appeals required the employer to demonstrate conduct "violative of some code of behavior impliedly contracted between employer and employee”. (Italics ours.) We believe to insert the word “impliedly” in the test makes it far too broad. If, as alleged here, certain conduct would go to the nexus of the employee’s work and would result in harm to an employer’s interest, it is reasonable to require this conduct must be the subject of a contractual agreement between employer and employee. This agreement need not be a formal written contract between employer and employee and may be reasonable rules and regulations of the employer of which the employee has knowledge and is expected to follow . . .
In applying the standards set out in Nelson, supra, we must first determine whether a nexus exists between appellant’s work and her off-duty activities. The Supreme Court of Louisiana in Grimble v. Brown, supra, discussed when nexus with the work exists:
It will not do to say that, because an act of misconduct relates to the “private life” of the employee, it is essentially not connected with his employment for in these cases the question for determination must always be whether the result of the misconduct has adversely' affected the employee’s ability and capacity to perform his duties in an appreciable degree. If it has, then it follows that it is contrary to the employer’s interest and in . . . disregard of standards of behavior which the employer has the right to expect of his employee . . . Thus, by this criterion alone there is nexus.
We find the following testimony pertinent wherein the superintendent explained the position of trust in which teachers in the Flippin School District found themselves:
Flippin School District, which is composed of the communities of Flippin and Bull Shoals, and their surrounding rural areas, retain the image of small community America, in which the home, school, church, and their combined and separate associated values are highly prized or valued by the citizenry as a whole. The citizenry, therefore, would not approve of the continued employment of this teacher. The teachers have traditionally and historically been expected to exemplify those good values inherent to the local school community, and by instruction and personal example, transmit these values to the young and impressionable students entrusted on a daily basis into the teacher’s care. Results of my investigation led to the following conclusion: In my professional judgment, Mrs. Feagin’s presence as a teacher would be ineffective, and would hinder the local process, and I recommended termination.
From a review of the evidence, we hold that there was a sufficient nexus with her work, even though the activities complained of occurred while she was off-duty and off the employer’s premises.
Next, we must determine whether appellant’s off-duty activities resulted in any harm to her employer’s interests. There is substantial evidence in the record, specifically in the testimony of the superintendent, that appellant’s ability to teach in the Flippin Schools was severely harmed by her arrest and the attendant publicity. Thus, the second standard set out in Nelson, supra, has been complied with.
Finally, we must determine whether the conduct of appellant (a) was violative of some code of behavior contracted for between the employer and the employee and, (b) whether her conduct was done with the intent or knowledge that her employer’s interests would suffer. It is important to note here that the third Nelson standard was qualified by language to the effect that the agreement between employer and employee need not be a formal written contract and could consist of reasonable rules and regulations which the employee had knowledge of and was expected to follow. We hold that there is substantial evidence in the record that appellant had both notice and knowledge that her involvement with an illegal substance was a violation of the standards expected of her as a teacher, guide and counselor to her students and as a representative of the Flippin School District.
The Flippin School Board policy manual provided the following statement regarding a teacher’s responsibilities:
To maintain such relationship with the students as is conducive to and consistent with desirable progress and growth in all areas of good citizenship.
The Flippin School Board policy manual provided the following statement regarding cause for dismissal of all employees as follows:
The Board of Education may dismiss any school employee for one or more causes. Some of these may include poor health, incompetency, insubordination, immorality and undesirable personal traits.
Appellant acknowledged acceptance of her responsibilities during the Appeals Tribunal hearing as evidenced by the following testimony:
ATKINS: Mrs. Feagin — Mrs. Feagin, do you accept the concept espoused in the manual put out by the School Board, that you are a moral instructor of these children?
CLAIMANT: Yes Sir, I do.
When reviewing unemployment benefit cases which involve off-duty misconduct, we recognize that some professions require higher standards of behavior than do others. We believe the teaching profession is one which requires a higher standard of its practitioners. The very nature of their employment requires such. Teachers serve as examples and role models for their students and we find it difficult, if not impossible, to find from the evidence presented that appellant, a college-educated individual, did not have knowledge of this. We are very much aware of the problems associated with the use of drugs by school-age children. Non-association with illegal substances is certainly a reasonable regulation of the school board of which appellant had both knowledge and notice. Appellant, a college-educated individual, knew or should have known that her involvement with illegal drugs might cause her to be arrested and that the attendant publicity would have an adverse effect on her job and that the school district would suffer.
We hold that there is substantial evidence in the record to support the Board’s finding that appellant violated the “ethical and moral standards which the employer had a right to expect” and that such actions were done in “willful disregard of the employer’s best interest”. In so holding we adopt the standards adopted by the Supreme Court of Washington in Nelson, supra, in cases involving a determination of what constitutes “misconduct in connection with the work” where the misconduct took place while the employee was off-duty and off the employer’s premises. It is important to note in adopting this test that the fact situation in the case at bar involves a narrow interpretation of what constitutes “misconduct in connection with the work” and that future decisions will, of course, be determined on a case-by-case basis.
Affirmed.
Cooper and Glaze, JJ., dissent. | [
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James R. Cooper, Judge.
In this criminal case, the appellant was charged with driving while intoxicated in violation of Ark. Stat. Ann. § 75-1027 (Repl. 1979). The appellant pleaded guilty in municipal court and then appealed to the circuit court. In a non-jury trial, the appellant was convicted of his third offense of driving while intoxicated and fined $1,000.00 plus court costs. A one year jail sentence was suspended. From that decision, comes this appeal.
The appellant argues that the trial court erred in refusing to grant the appellant’s motion to rehear the case and set aside the verdict because the evidence was insufficient to sustain the conviction. The appellant contends that Officer Buddy Dowdy, the arresting officer, mistakenly identified the appellant as the drunk driver, when in fact it was the appellant’s identical twin brother. However, we cannot reach the merits of this argument because of certain procedural irregularities which prevent this Court from retaining jurisdiction.
In the case at bar, the appellant pled guilty in Gould Municipal Court on March 4, 1982, to the charge of driving while intoxicated. The appellant then filed a notice of appeal to Lincoln County Circuit Court on September 22, 1982. The transcript was lodged with the circuit court on September 30, 1982. Although the appeal had previously been dismissed on May 25, 1982, a special judge later set the case for trial. On October 5, 1982, a non-jury trial was held and the appellant was convicted.
The fact that a plea of guilty was entered in municipal court does not prevent the appellant from perfecting an appeal to circuit court. Ark. Stat. Ann. § 44-502 (Repl. 1977). However, the appellant failed to timely file his notice of appeal. See Ark. Stat. Ann. § 26-1307; Rule 9, Inferior Court Rules; Messina v. State, 211 Ark. 1060, 204 S.W.2d 547. Both were filed over six months after the date of the municipal court judgment. The appellant argues that the bond which was filed within thirty days after the judgment was rendered served as the notice of appeal and his appeal should be considered timely. In Barber v. Crabtree, 214 Ark. 463, 217 S.W.2d 265 (1949), the Arkansas Supreme Court stated that the filing of an affidavit and appeal bond within the thirty days did not constitute substantial compliance with the requirements for taking an appeal from municipal court to circuit court. Although this was a civil case, we find the decision to be applicable to the instant case. Thus, since the appeal to circuit court was untimely and the circuit court lacked jurisdiction to hear the case, this Court must dismiss the appeal. See Ark. Stat. Ann. § 43-2701 (Repl. 1977).
Appeal dismissed.
Cloninger and Glaze, JJ., agree. | [
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Melvin Mayfield, Judge.
In 1974 Bobby and Mary Proffitt sold one and one-half acres of real estate to Truman and Earline Atkinson, who sold it to Shirley Carter in 1978, who sold it to Arthur and Bonnie Isley in 1980. About two months after the Isleys bought it they discovered that the land had been mortgaged by the Proffitts and that the mortgage was still outstanding. The Isleys sued Carter, the Atkinsons, and the Proffitts for damages based on the general warranties in the warranty deeds. The jury held for the Atkinsons and Carter, but held the Proffitts liable to the Isleys for $4,390.78 representing the unpaid balance on the mortgage plus interest and costs. The Proffitts appeal. We reverse.
The usual covenants of title in a general warranty deed are the covenants of seisin, good right to convey, against incumbrances, for quiet enjoyment and general warranty. An incumbrance is any right to an interest in land which may subsist in third persons, to the diminution of the value of the land, not inconsistent with the passing of title. Examples of incumbrances are an outstanding lease, a timber deed, dower, an easement, and a mortgage. P. Jones, The Arkansas Law of Title to Real Property, §§ 383, 386 (1935). In Logan v. Moulder, 1 Ark. 313, 320 (1839), thecourt said:
The covenants of seisin, and of the right to convey, and against incumbrances, are personal covenants, not running with the land, nor passing to the assignee, but are declared to be mere choses in action, not assignable at common law. The covenants of warranty, and of quiet enjoyment, are in the nature of a real covenant, and run with the land, and descend to the heirs, and are made transferable to the assignee.
In 7 G. Thompson, Thompson On Real Property § 3185 at 303 (Repl. 1962), the Logan case is cited in support of the general rule that a covenant against incumbrances is not assignable and does not pass to a grantee. Since the covenant against incumbrances is personal between the grantor and the grantee, the remedy for a remote grantee, when the incumbrance has not been removed from the property, is against his immediate grantor, whose recourse is against his grantor and so forth back up the chain of title to the original grantor whose conveyance breached the war ranty against incumbrances. However, the. covenant of general warranty may be breached where steps are taken to enforce an incumbrance. See The Arkansas Law of Title to Real property, supra, § 388 at 247. See also Brawley v. Copelin, 106 Ark. 256, 153 S.W. 101 (1913), and Thompson v. Dildy, 227 Ark. 648, 300 S.W.2d 270 (1957).
With some exceptions, not applicable here, unless the covenantee is evicted or has satisfied the outstanding incum-brance, he may only recover nominal damages. See Thompson v. Dildy, supra; Van Bibber v. Hardy, 215 Ark. 111, 219 S.W.2d 435 (1949). In Smith v. Thomas, 169 Ark. 1110, 278 S.W. 39 (1925), the court stated:
The measure of damages for the breach of a covenant against incumbrance is the amount necessary to remove the incumbrance, not exceeding the consideration expressed in the deed containing the covenants of warranty, and ordinarily the covenantee cannot recover on the mere existence of the incumbrance but must first discharge it by payment, unless he has actually lost the estate in consequence of the incumbrance. In 7 R.C.L. p. 1104, the rule is stated as follows: “In a number of jurisdictions it has been held that, although a covenant against incumbrances, like a covenant of seisin, is broken if at all as soon as made, yet the covenantee can found no right to actual damages on the mere existence of incumbrances, but will be limited to a nominal recovery, unless he has paid off the incum-brance or actually lost the estate in consequence of it.”
In the present case the appellees had incurred no expense because of the outstanding mortgage on the property, and the mortgagee had made no effort to either evict appellees or foreclose on the property. Therefore, appellees’ only cause of action was a technical breach of the covenant against incumbrances which could be brought against their grantor, Carter, with the recovery of only nominal damages.
Therefore, the judgment against the Proffitts is reversed and dismissed.
Cooper and Glaze, JJ., agree. | [
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George K. Cracraft, Judge.
Maurice Harrison and Juanita Harrison were divorced by a decree of the Chancery Court of Faulkner County entered on January 8, 1965. The decree recited that the property rights of the parties had been settled and made a disposition of their personal property and a joint interest in a store. It made no mention of a 16 acre tract of land owned by the parties as tenants by the entirety. Maurice Harrison appeals from a decree entered by that same court in 1982 in which it “reformed and corrected’ ’ the earlier decree so as to vest and confirm title in Juanita Harrison to the 16 acre parcel of real estate which the court found “should have been disposed of” in the original decree. He first contends that the trial court had no authority to modify its decree 18 years after its entry. We agree.
In October 1981 appellee filed a petition in the divorce action styled “Petition to Correct Decree.” She alleged and offered evidence tending to prove that at the time of the divorce the parties had entered into an oral agreement that she would have title to the 16 acre tract upon payment by her of a remaining loan balance. She stated that she was not aware that title had already been taken as an estate by the entirety until she had an abstract prepared in 1978. The deed had in fact been executed during the marriage. She further alleged and offered evidence to prove that she had paid the loan balance and for the past 16 years had lived on the property, paid the taxes, made improvements on it and exercised complete dominion over it to the exclusion of the appellant. The appellant answered contending and offering proof that no such oral agreement was ever made, that her actions of possession were permissive and that the payments made by her were in lieu of rent of his interest. He additionally raised the issue of laches.
In reaching our determination we find it unnecessary to address any of the points of error advanced which relate to the ownership of the property for we agree with appellant that the trial court had no power to determine the interest of the parties in the land after the lapse of the term in which the divorce decree was entered. This decree was entered prior to the effective date of Act 358 of 1969 which abolished the terms of chancery court. At that time all judgments and decrees became final upon the lapse of the term in which they were entered. It was well settled that a court was without authority to set aside or modify its judgments or decrees after the lapse of the term in which they were entered except upon statutory grounds set forth in Ark. Stat. Ann. § 29-506 et seq. (1947). Fullerton v. Fullerton, 230 Ark. 539, 323 S.W.2d 926 (1959). This limitation on the power of a court over its final decrees was carried over in the 1969 Act and in Rule 60 (b), Arkansas Rules of Civil Procedure, both of which limited that power after the expiration of a period of ninety days.
The appellee contends that under Rule 60 (a) and prior law the court did have the power at any time to correct clerical mistakes in judgments and other errors arising from oversight or omission. Rule 60 (a), which is merely a restatement of well settled law, has no application here. Courts have an inherent power to enter orders correcting their judgments where necessary to make them speak the truth and reflect actions accurately. This inherent authority has been recognized and sustained by this court in a long line of decisions from King & Houston v. State Bank, 9 Ark. 185 (1848) to the present. This power, however, is confined to correction of the record to the extent of making it conform to the action which was in reality taken at the time. It does not permit the change of a record to provide something that in retrospect should have been done but was not done. Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961). There is nothing in this record which indicates that the chancellor took any action in the original 1965 case with regard to the real estate or that the necessity for its disposition was even called to his attention at that time. To the contrary, that decree makes no mention of it. In the decree appealed from the chancellor expressly found that “this court should have disposed of the parties’ interest” in the real estate and that no reference to real property owned by either party was set out in the divorce decree referred to herein. It is clear that this action was taken, not to make the record conform to what had actually taken place in 1965, but to modify the 1965 decree to make a disposition which should have been, but was not, made at the time.
We do not pass on any of the issues relating to the ownership of the property. We find only that the Faulkner County Chancery Court was without jurisdiction to determine that issue in this action. The decree appealed from is reversed. | [
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James R. Cooper, Judge.
In this criminal case, the appellant, Jessie James Terry, was charged with being a felon in possession of a firearm in violation of Ark. Stat. Ann. § 41-3103 (Repl. 1977). After a trial by jury, the appellant was convicted and sentenced to a term of six years in the Arkansas Department of Correction. From that decision, comes this appeal.
For his only point for reversal, the appellant contends that the trial court erred in allowing the State to introduce into evidence the appellant’s judgment of conviction and copies of pertinent docket sheets which reflected the appellant’s prior convictions. The appellant argues that since he filed a proper and timely request for these documents, but was not provided copies or advised that the documents would be introduced at trial, the State failed to comply with Rule 17.1 of the Arkansas Rules of Criminal Procedure.
Rule 17.1 of the Arkansas Rules of Criminal Procedure provides that, when a timely request is made, the prosecuting attorney has a duty to disclose certain information to defense counsel. This duty of disclosure has been interpreted as requiring that the defendant have the opportunity to discover the State’s evidence prior to trial, Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981), in order to have sufficient time to allow him to make beneficial use of it. Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978). See also Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980).
In Robinson v. State, 7 Ark. App. 209, 646 S.W.2d 714 (1983), the defendant filed a discovery motion which in- eluded a request for the State to furnish any written statements made by the defendant which the State intended to use at trial. The State agreed to comply with the request. At the trial, which was approximately six months later, the State sought to admit certain exhibits, including a written statement signed by the defendant, none of which had been furnished to the defendant. This Court found no error in the admission of this evidence. In affirming the trial court’s ruling on the written statement, we stated:
With regard to the statement, the appellant’s argument is based on the fact that the state agreed to furnish it but never did. The state’s answer is that it had no affirmative duty to furnish — mail or deliver — the statement, but that it was available in the prosecutor’s office from Febraury 17, 1981, to date of trial, September 2, 1981. We find no reversible error in the trial court’s allowance of the statement into evidence. Ark. Stat. Ann. § 43-2011.2 (Repl. 1977) provides that upon motion the court may order the prosecuting attorney to permit the defendant to inspect' and copy certain things, and provides authority for the court to exercise the control necessary to carry out its orders, but it does not require that the prosecutor furnish those things to defendant or his counsel. Neither do we find any specific duty to furnish set out in the rules regulating the prosecuting attorney’s obligations in discovery matters. See Criminal Procedure Rules 17.1 and 17.2.
In the case at bar, the State sought to introduce certain documents concerning the appellant’s prior felony convictions. It is clear that the very nature of the crime charged, i.e., felon in possession of a firearm, would necessarily place the appellant on notice that the State would be required to prove that the appellant was a felon. See Plummer v. State, 270 Ark. 11, 603 S.W.2d 402 (1980). It is also clear that the appellant’s attorney was aware of and had reviewed the documents with the prosecuting attorney, although there is some dispute whether this occurred while the attorney was representing the appellant on other charges which were nolle prossed.
Under the circumstances of this case, we do not find an abuse of discretion in allowing the documents concerning the appellant’s prior felony convictions into evidence. The appellant had the opportunity to discover the information prior to trial. There is no evidence that the State hindered the appellant in reviewing the information in the prosecuting attorney’s files. The State was not required to physically deliver copies of these documents to the appellant. Where the State makes the evidence available to the defendant for inspection, the discovery rules have been properly complied with by the State. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981).
Affirmed. | [
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Wendell L. Griffen, Judge.
A Lonoke County jury found Richard Tomboli guilty of theft by receiving and sentenced him to a thirty-year term in the Arkansas Department of Correction. He appeals from the conviction, asserting that the State presented insufficient evidence to show that he possessed the stolen vehicle in question. He also alleges that the trial court erred in allowing victims of other thefts to testify about those thefts and in not allowing him to cross-examine a witness regarding a third party who was also accused of theft by receiving. We affirm, holding (1) that the State presented sufficient evidence that appellant was in possession of the stolen vehicle; (2) that, while the court erroneously permitted evidence of other thefts, the error was harmless; and (3) that the trial court properly excluded questions regarding thefts committed by a third party absent a connection to the present case.
Factual and Procedural History
Appellant was charged with felony theft by receiving and fleeing. Evidence presented at trial shows that in September 2005, Dale Lamb’s white 2004 Dodge Ram truck was stolen from his fiance’s residence. Police recovered a white 2004 Dodge Ram in November 2005. The truck recovered by police appeared to be Lamb’s truck, though a pinstripe and a Razorback decal had been added. Lamb’s insurance company paid on a theft claim, and insurance records show that the VIN number of Lamb’s truck was 1D7HA16D14J171118.
The truck was recovered on the afternoon of November 20, 2005, by Deputy Steve Benton of the Lonoke County Sheriffs Office. He initiated a traffic stop after seeing a white Dodge Ram passing on a double-yellow line. The truck stopped on Pickthorne Road, but as Benton exited his patrol car and started toward the truck, the truck drove off. When the truck left, Benton returned to his patrol car and pursued the truck. The truck later turned into a hayfield, and Benton lost sight of it. However, he later discovered the truck abandoned in the field. Benton checked the VIN number of the truck, 1D7HA16D14J171118, and discovered that the truck was stolen. He found several items in the field close to or inside the truck, including a claw hammer, a shoe, a hand saw, some business checks, a plastic wedge, a “slim jim” (used for unlocking cars), a stun gun, a small can of mace, flashlights, a radio antenna adaptor, bolt cutters, and a handsaw. Several items were fingerprinted, and a print belonging to appellant was found on one of the checks. In addition, during the chase, Benton saw the driver throw a black bag out of the truck. Police later recovered the bag, and it contained an assortment of keys and key rings. Benton identified appellant as the driver of the truck. He first identified appellant as the driver when presented with appellant’s driver’s license photo the following day. Benton described the driver of the truck as a white male with dark “spiky-type” hair.
The State also presented testimony of Amanda Garmen, who works for American Storage in Sherwood. According to her testimony, appellant rented two storage units. She testified that video tape from November 2005 showed appellant arriving at the storage facility driving a white Dodge pickup truck. On the day she saw the video, she saw a yellow four-wheeler in the bed of the truck.
Over appellant’s objection, Detective Michelle Stracener testified that she and other officers executed a search warrant on Tomboli’s storage units. During the search, police recovered a yellow four-wheeler, which was later returned to its owner; a set of golf clubs, which was returned to its owner; a golf cart and another set of golf clubs, released to their rightful owner; and two firearms. Jerry Bradley testified that the checks recovered from the stolen truck belonged to him and that he did not authorize appellant to use the checks. Over appellant’s objection, he testified that Stracener returned the golf clubs to him. Appellant made the same objection when Davis Kolasa testified about the theft of his four-wheeler.
Finally, the State presented the testimony of Kelli Martin-dill. She identified herself, appellant, and Ronnie Stover as the subjects of photographs found in the stolen truck. On cross-examination, Martindill testified that Stover matched the description of appellant. When appellant questioned Martindill about Stover’s criminal history, the State objected, contending that Martindill had no personal knowledge of Stover’s record. Appellant argued that the evidence was admissible under a “reverse” Rule 404(b) analysis, but the court sustained the State’s objection. Appellant proffered that Martindill would have testified that Sto-ver was facing several criminal charges, including theft by receiving, for selling stolen items over the Internet.
At the conclusion of the State’s case, appellant moved for directed verdict, arguing that the State failed to prove that the vehicle he allegedly drove was the one stolen from Lamb. He emphasized the characteristics that distinguished Lamb’s vehicle from the one found by police. The court denied the motion, and appellant rested without presenting a case. After deliberations, the jury found appellant guilty of theft by receiving, but found him not guilty of the fleeing charge. It later sentenced him to thirty years in the Arkansas Department of Correction.
Sufficiency of the Evidence
Appellant now challenges the sufficiency of the evidence to support his conviction. He argues that the State presented insufficient evidence that he was the person who was driving the truck in November 2005. Appellant contends that the only evidence connecting him to the truck was a fingerprint on a check found outside the truck and a photograph of him found inside the truck. Regarding the evidence that appellant was driving a white Dodge truck to his storage units, he argues that the State failed to present any evidence identifying the truck, and he urges us to take judicial notice of the fact that hundreds of Dodge trucks are being driven in this State.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006). When a defendant makes a challenge to sufficiency of the evidence on appeal, the appellate court views the evidence in the light most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only evidence supporting the verdict, including evidence erroneously admitted, will be considered. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). We affirm the conviction if there is substantial evidence to support it. Id. Circumstantial evidence may constitute sufficient evidence to support a conviction, but it must exclude every other reasonable hypothesis other than the guilt of the accused. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id.
We hold that the State presented sufficient evidence to show that appellant was in possession of Lamb’s stolen truck. Before the trial court, appellant argued that the State failed to prove that the truck found by Benton was the one stolen from Lamb. However, the State presented evidence showing that the VIN numbers of Lamb’s truck and the truck recovered from the scene were the same, and Lamb testified that the recovered truck was similar to his own truck. As for appellant’s argument that he was not the person driving the truck, the evidence shows that his fingerprint was on an item found near the truck, and he was in photographs found inside the truck. Appellant was seen driving a white Dodge truck to his storage unit. Finally, Benton identified appellant as the person he saw on the day that the truck was recovered. This evidence is sufficient to compel the conclusion that appellant was in possession of Lamb’s stolen truck.
Evidentiary Rulings
Next, appellant argues that the trial court erred in allowing the State to introduce testimony from victims of other thefts when he had not been charged with those thefts. He contends that the State introduced the evidence only to show that, because he was in possession of other stolen property, he was in possession of the truck. Appellant asserts that this violates Ark. R. Evid. 404(b). The State argues that the testimony proved identity and absence of mistake.
Rule 404(b) of the Arkansas Rules of Evidence (2007) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1 (2004). Evidence offered pursuant to Rule 404(b) must be independently relevant. Id. Evidence is independently relevant if it tends to prove a material point and is not introduced solely to prove that the defendant is a bad person. Id.
The State argues that the Rule 404(b) evidence was admissible because the identity of the driver of the truck was at issue. It contends that the check with appellant’s fingerprint and the truck were in close enough proximity to suggest that appellant was the driving the stolen truck. The State also suggests that the golf clubs stolen at the same time as the truck and found in one of appellant’s storage units make it more likely than not that appellant was the driver of the stolen truck. While not explicitly argued by the State, a similar analysis could apply to the recovery of the four-wheeler. Because appellant was seen driving the truck containing the four-wheeler to the storage facility, it makes it more likely that appellant was the driver of the truck.
We agree with appellant that the trial court improperly allowed the State to introduce evidence of the other thefts. The fact that the items were stolen is not independently relevant to appellant’s identity. The connection to the items themselves was sufficient to establish evidence of appellant’s identity. There was no need for the State to present testimony from the victims regarding the fact that the items were stolen. Further, we reject the State’s argument that evidence of other thefts was relevant to show that appellant knew that the truck was stolen. This is the very type of evidence Rule 404(b) was meant to exclude. The trial court abused its discretion in allowing the State to introduce that testimony.
Nevertheless, we affirm on this point because the error in admitting the improper Rule 404(b) evidence was harmless. When the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm the conviction. E.g., Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). If evidence of the other thefts is excised from the record, the jury still had before it testimony that a person identified as appellant was seen driving away from Benton and later fled the stolen truck. A check with appellant’s fingerprint was found near the truck, thus connecting appellant to the truck. Further, appellant was seen driving the truck to his storage units, and he was in photographs found in the truck. We hold that any error in allowing the victims to testify about the theft of their property is slight in comparison to the overwhelming evidence of guilt. Accordingly, we affirm on this point.
Finally, appellant contends that the trial court abused its discretion in refusing to allow him to introduce evidence that a third party had committed similar crimes. He asserts that questions regarding Stover’s criminal activity tended to show that another person could have stolen or been in possession of Lamb’s truck.
While evidence of other crimes, wrongs, or acts by a party other than the defendant may not be admitted to show that the party acted in conformity with a known character trait, the evidence may be admitted for other purposes, such as to show motive, opportunity, intent, or identification of that other party, thus tending to negate the guilt of the defendant. Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006). For “reverse 404(b)” evidence to be admissible, the crimes by the other person must be so closely connected in time and method of operation as to cast doubt upon the identification of the defendant as the person who committed the crime charged against him. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994) (citing State v. Bock, 229 Minn. 449, 39 N.W.2d 887 (1949)).
The only evidence appellant proffered to show that someone else committed the crime was that Stover had been charged with other thefts. He proffered no evidence showing that Stover’s thefts were similar in time or method of operation to the theft of the truck. In other words, the only reason appellant presented this evidence was to show that, because Stover was currently being charged with theft by receiving in a separate case, he must have been the person to commit the theft in this case. Again, this is the very type of evidence Rule 404(b) seeks to exclude. The trial court did not err in excluding testimony regarding Stover’s crimes, and we affirm on this point as well.
Affirmed.
Marshall, J., agrees.
Pittman, C.J., concurs.
Appellant was charged with several other misdemeanors; however, the theft-by-receiving and fleeing charges are the only ones relevant here. | [
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OLLY Neal, Judge.
Minnie Lou Timmins died testate on September 24, 1998, leaving an estate worth more than $2,000,000. On October 27, 1998, the executor of the decedent’s estate, First United Trust Company (First United), through its attorney, Michael F. Mahoney, filed a petition to construe the last will and testament of Ms. Timmins in relation to a jewelry box containing several pieces of jewelry and a handwritten note discovered in the decedent’s dresser drawer. The note found in the jewelry box was handwritten entirely by the decedent and contained the following words: “I want Vernita Ellison to have these items and Snuggles.” The end of the note contained the signature and date “Minnie Lou, September 29, 1997.” In its petition, First United asserted that in determining the assets of the decedent’s estate, it discovered the following items of tangible personal property in the jewelry box: (1) a watch on a chain; (2) one ring — one center stone — six small stones; (3) one necklace — one center stone — four small stones, (4) one engagement ring — one center stone — one side stone, (5) one wedding ring — five small stones, (6) a note. First United asserted that it was unable to determine from the decedent’s will whether the property contained in the jewelry box should be distributed to the residuary beneficiaries, the appellants in this case, or whether the handwritten note was part of the will, which would require the contents of the jewelry box to be given to Vernita Elhson. On November 10, 1998, Vernita Ellison filed a response to the petition claiming that she served as a paid caretaker for the decedent and that on many occasions, the decedent made it known to her that the jewelry box in the decedent’s dresser drawer contained items of jewelry as described in the petition, which were to be given to her. The appellants, Virginia Jones, Carolyn Smalling, and Margaret Barron (now deceased), filed a separate response to the petition claiming that the handwritten note did not comply with the decedent’s reservation of right under Ark. Code Ann. § 28-25-107 (1987), in paragraph two of the will. Paragraph two of the decedent’s last will and testament states as follows:
I reserve the right, pursuant to Section 4 of Act 814 of the Acts of the General Assembly of the State of Arkansas for 1979 (Ark. Code Ann. 28-25-107), to make disposition of tangible personal property by attaching or associating with this Will a written, dated statement and list signed by me or in my handwriting designating the devisees of items of tangible personal property.
The appellants alleged that the handwritten note did not evidence testamentary intent as required by law in that it did not state -“at my death” or other words evidencing testamentary intent. They further alleged that the note did not describe any object with reasonable certainty and that there was a patent ambiguity in the words “these items” of personal property. The appellants requested the trial court to disallow any extrinsic evidence as to the intention of the decedent and asked the trial court to grant them a summary judgment determining that the handwritten note was an ineffective testamentary disposition of the decedent’s personal property.
At a hearing on these matters presented by the parties, the appellants objected to any testimony by Vernita Ellison on the ground that testimony relating to the intention of the testatrix should not be admitted into evidence. The trial court allowed Ms. Ellison to proffer her testimony and reserved its ruling on the appellants’ motion for summary judgment and their objection to Ms. Ellison’s testimony.
In his letter opinion dated February 24, 1999, the trial judge made the following findings:
Mrs. Timmins knew she had a will. She also knew that the will provided that she could dispose of personal property by a separate written, signed and dated list.
She may not have used the words testamentary disposition but “have” means that she wanted the items to belong to Mrs. Ellison. There is no specific list but “these items” inside the jewelry box which contained the note left no doubt as to what the items were.
On appeal, appellants first argue that the trial court erred in finding that the handwritten note found in the jewelry box described the items therein with reasonable certainty under Ark. Code Ann. § 28-25-107(b)(2) (1987). Section 28-25-107(b)(2) states that “to be admissible under this subsection as evidence of the intended disposition, the writing must either be in the handwriting of the testatrix or be signed by her and must describe the items and devisees with reasonable certainty.”
Probate cases are reviewed de novo on the record. Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999). The decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). The cardinal principle in the interpretation of wills is that the testatrix’s intent governs. Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991). That intention is to be gathered from the four corners of the instrument and by giving meaning to the provisions in their entirety, if possible. In re Estate of Conover v. Mobley, 304 Ark. 268, 801 S.W.2d 299 (1990).
When construing a testamentary document to arrive at the testatrix’s intention, one does not look at the intention that existed in the testatrix’s mind at the time of the execution, but that which is expressed by the language of the instrument. Acklin v. Riddell, 42 Ark. App. 230, 856 S.W.2d 322 (1993). A testatrix’s intention should be ascertained from the instrument itself and given its expressed intent. Id.
In the present case, the handwritten note found in the decedent’s jewelry box stated that the decedent wanted Vernita Ellison to have her dog “Snuggles” and what she termed “these items.” The parties stipulated that after Voncile Berry, Trust Officer at First United Trust Company, learned of the jewelry, she went to the decedent’s home and found the jewelry box containing the note inside the dresser drawer.
The appellants argue that the note in question is uncertain because it is portable in nature and capable of being placed in any confined area by a third party, and that the appellee and her husband had “clear and unfettered” access to the decedent’s home at least two days before the decedent’s death. However, the abstract does not reflect that the appellants’ arguments were made to the probate judge. Cleveland v. Estate of Stark, 324 Ark. 461, 923 S.W.2d 857 (1996). The record on appeal is limited to that which is abstracted. Id. The appellate court does not address arguments raised for the first time on appeal. McNeely v. State, 54 Ark. App. 298, 925 S.W.2d 177 (1996). Nonetheless, the testatrix recited words of testamentary intent to give Ms. Ellison her dog and the jewelry contained within the jewelry box by stating in the note that she “want[ed] Vernita Ellison to have” the items and by placing the note directly in the jewelry box with the items. Further, there was no evidence introduced reflecting that Ms. Ellison had tampered with the note left by the testatrix. The paramount principle in the interpretation of wills is that the intention of the testatrix will govern and in the absence of fraud or deception in the execution of a will, strict technical construction of the statutory requirements is avoided in order to give effect to the testatrix’s wishes. Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).
For their next point on appeal, the appellants argue that the trial court erred in admitting the testimony of Vernita Ellison to prove the intent of the testatrix as it related to the note found in the jewelry box. However, we find no merit in this argument for two reasons. First, the abstract does not reflect that the appellants obtained a ruling on their objection to Ms. Ellison’s testimony. To preserve a point for appellate review, a party must obtain a ruling from the trial court. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999). The burden of obtaining a ruling on a point is on the movant and any objections and questions left unresolved are waived and may not be relied upon on appeal. Casteel v. State Farm Mut. Auto. Ins. Co., 66 Ark. App. 220, 989 S.W.2d 547 (1999). Secondly, the letter opinion of the trial court does not appear to have relied on Ms. Ellison’s testimony in its finding that the decedent intended to dispose of the items in the note by giving them to Ms. Ellison.
For their last point on appeal, the appellants argue that the trial court erred in failing to give effect to paragraph two of the decedent’s will. As previously stated, paragraph two of the decedent’s last will and testament stated that the decedent reserved the right to make disposition of her tangible property by “attaching or associating” with her will “a written, dated statement and fist” signed in her handwriting. In this case, although the note found in the jewelry box was not attached to the will, it was enclosed in the jewelry box with specific items that could be identified, and it listed the devisee of the items. The note was further dated and signed in the handwriting of the testatrix. In finding that Section 28-25-107 was met in this case, the trial court made the following remarks:
On September 29, 1997, the decedent left such a note in a jewelry-box along with various rings and other jewelry. The note stated: “I want Vernita Ellison to have these items and Snuggles.” The facts produced at trial conclusively showed that Mrs. Timmins knew that she had a Will, and knew that the Will allowed her to dispose of personal property by a separate written, sign [sic] and dated document.
On these facts, we cannot say that the probate court’s findings that the note should be admitted as a part of the decedent’s will and that the tangible personal property listed in the note should be distributed to Vernita Ellison are clearly erroneous.
Affirmed.
Hart, Jennings, and Meads, JJ., agree.
Pittman and Crabtree, JJ., dissent. | [
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K.MAX KOONCE, II, Judge.
Appellant was found guilty of .possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia. He appeals the convictions on the grounds that the trial court erred in admitting evidence of his juvenile delinquency adjudication. We affirm the convictions.
On January 21, 1998, appellant was charged with possession of methamphetamine with intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997), possession of marijuana with intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997), and possession of drug paraphernalia in violation of Ark. Code Ann. § 5-64-403 (Repl. 1997). A bench trial was held on February 26, 1999. The State amended the information on the day of trial to allege that appellant was a habitual offender under Ark. Code Ann. § 5-4-501 (a) (Repl. 1997), having been convicted of more than one but less than four felonies. The State relied on a felony theft by receiving conviction and a juvenile delinquency adjudication for delivery of a controlled substance.
At trial, Officer Scott Handford testified for the State that he stopped appellant because his taillights were flashing on and off while driving on Highway 65. Handford smelled marijuana and asked for appellant’s consent to search the vehicle. With appellant’s consent, Handford searched the vehicle and found a black bag containing numerous items which were introduced into evidence. The items included the following: (1) less than a gram of a substance suspected to be methamphetamine; (2) more than an ounce of a substance suspected to be marijuana; (3) a glass tube with residue; (4) a red pipe with residue; (5) a wire detector; and (6) a list of names, addresses, and telephone numbers.
Jeff Taylor, a drug chemist at the Arkansas Crime Lab, testified for the State that the items introduced into evidence included the following: (1) a bag with 138.2 grams of marijuana; (2) a bag with 4.8 grams of marijuana; (3) a bag with 0.988 grams of 28.5% pure methamphetamine or 0.281 grams of pure methamphetamine hydrochloride; (4) a red smoking device with residue of tetrahydro-cannabinol; and (5) a glass tube with residue of methamphetamine.
Appellant testified in his defense. He admitted that he intended to sell the seized marijuana and that the pipe was used to smoke methamphetamine, but denied intending to sell the methamphetamine. He admitted on cross-examination that he had been convicted of felony theft by receiving. The State then attempted to show appellant a certified copy of his juvenile record. Defense counsel objected on the grounds that the records were sprung on him the day of trial and he was not aware of the law on juvenile records. The defense did not object to the States amendment of the information to include an allegation of habitual offender. The State argued that appellant was aware of his criminal record and that the juvenile offense was a felony and therefore available for enhancement purposes for a habitual offender. Defense counsel objected on the basis that a juvenile record cannot be used for enhancement purposes for a habitual offender. The court overruled the objection. The State proceeded to question appellant about the juvenile record, and defense counsel stated, “I don’t see the relevance of this.” The State introduced the juvenile records wherein appellant pleaded guilty to seven counts of delivery of a controlled substance.
The trial court found appellant guilty on all charges. The . court then asked the parties whether they had anything to present concerning sentencing. The State asked that the court consider appellant’s felony records that had been introduced. Defense counsel made no objection to this request, and appellant was sentenced to twelve years for the possession of methamphetamine with intent to deliver conviction (Class Y felony), ten years for the possession of marijuana with intent to deliver conviction (Class C felony), and six years for the possession of drug paraphernalia conviction (Class C felony). The sentences were to run concurrently.
Appellant first argues that the trial court erred when it admitted evidence of appellant’s juvenile delinquency adjudication which was irrelevant and improper impeachment evidence under Rules 402, 608, and 609 of the Arkansas Rules of Evidence. We are unable to consider this argument because this court will not consider an argument raised for the first time on appeal. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged, and the appellate court will not address arguments raised for the first time on appeal. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). A party cannot change the grounds for an objection on appeal but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).
Appellant did not make any objections based on Rules 608 or 609 of the Arkansas Rules of Evidence to the admission of evidence relating to appellant’s juvenile adjudication. The only objection that was made by appellant’s counsel and ruled on by the trial court was as follows: “I’m objecting that I don’t believe you can use the juvenile record against him for a habitual offender status in this case.” After the trial court overruled the objection, the State proceeded to question appellant about whether he had an adult case transferred to juvenile court. Appellant’s counsel then stated, “I don’t see the relevance of this.” Appellant contends this statement was a relevance objection pursuant to Ark. R. Evid. 402. Appellant’s counsel never indicated he was making a Rule 402 objection, and even if appellant’s counsel intended this statement to be an objection, a ruling was not obtained. This court will not review a matter on which the trial court did not rule, and a party seeking to raise the point on appeal concerning a ruling has the burden to obtain a ruling. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). Matters left unresolved simply may not be raised on appeal. Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998).
Appellant next contends the trial court erred when it considered appellant’s juvenile delinquency adjudication as a conviction for purposes of sentence enhancement as a habitual offender under Ark. Code Ann. § 5-4-501. The habitual offender law is codified at Ark. Code Ann. §§ 5-4-501 et seq. and provides in pertinent part as follows:
(a)(1) A defendant who is convicted of a felony other than those enumerated in subsections (c) and (d) of this section committed after June 30, 1993, and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies; or
(2) A defendant who is convicted of any felony enumerated in subsection (c) of this section committed after August 31, 1997, and who has previously been convicted of more than one (1) but less than four (4) felonies not enumerated in subsection (c) of this section, or who has been found guilty of more than one (1) but less than four (4) felonies not enumerated in subsection (c) of this section; or
(3) A defendant who is convicted of any felony enumerated in subsection (d) committed after August 31, 1997, and who has previously been convicted of more than one (1) but less than four (4)felonies not enumerated in subsection (d) of this section, or who has been found guilty of more than one (1) but less than four (4) felonies not enumerated in subsection (d) of this section, may be sentenced to an extended term of imprisonment as follows:
(A) For a conviction of a Class Y felony, a term of not less than ten (10) years nor more than sixty (60) years, or life;
(B) For a conviction of a Class A felony, a term of not less than six (6) years nor more than fifty (50) years;
(C) For a conviction of a Class B felony, a term of not less than five (5) years nor more than thirty (30) years;
(D) For a conviction of a Class C felony, a term of not less than three (3) years nor more than twenty (20) years. . . .
(E) For a conviction of a Class D felony, a term of not more than twelve (12) years. . . .
Ark. Code Ann. § 5-4-501 (a). In support of his argument, appellant relies on Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976). In Rogers, the court found that an adjudication of delinquency in federal court was not considered a criminal conviction. Id. The court stated that the legislative intent of the Federal Juvenile Delin quency Act was that any adjudication of delinquency results in the determination of a status and not a conviction of a crime. Id. Therefore, the court held that the trial court erred in allowing the sentence under the Federal Juvenile Delinquency Act to be admitted into evidence. Id.
The State contends that the juvenile code provides support for its argument that a defendant’s juvenile adjudication may properly be used to enhance his sentence as a habitual offender. In support of its argument, the State relies on Ark. Code Ann. § 9-27-345 (Repl. 1998); which provides that “[j]uvenile adjudications of delinquency for offenses for which the juvenile could have been tried as an adult may be used at the sentencing phase in subsequent adult criminal proceedings. ...” Ark. Code Ann. § 9-27-345. The State also cites Ark. Code Ann. § 9-27-309, which states that “[r]ecords of delinquency adjudications for which a juvenile could have been tried as an adult shall be made available to prosecuting attorneys for use at sentencing if the juvenile is subsequently tried as an adult. ...” Ark. Code Ann. § 9-27-309(a)(2) (Supp. 1999). The State also notes that Ark. Code Ann. § 16-97-103 (Supp. 1999) provides that evidence relevant to sentencing under the bifurcated sentencing procedure may include the following:
(3) Prior judicial determinations of delinquency in juvenile court, subject to the following limitations:
(i) That prior delinquency adjudications be subject to a judicial determination that the relevant value of the prior juvenile adjudication outweigh its prejudicial value;
(ii) That consideration only be given to juvenile delinquency adjudications for crimes for which the juvenile could have been tried as an adult; and
(iii) That in no event shall delinquency adjudications for acts occurring more than ten (10) years prior to the commission of the offense charged be considered. . . .
Ark. Code Ann. § 16-97-103(3).
The Arkansas Code clearly permits the introduction of evidence of juvenile adjudications in the sentencing phase of trial when the requirements of Ark. Code Ann. § 16-97-103(3) are satisfied. However, a juvenile adjudication is not a felony convic tion, and thus cannot be used for sentence enhancement under the habitual offender law. Therefore, we find that the trial court erred in admitting appellant’s juvenile adjudication in the sentencing phase of trial for the purpose of sentence enhancement under the habitual offender law. However, we will not reverse an evidentiary ruling absent a showing of prejudice. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). We must now address whether appellant was prejudiced by this error.
Appellant claims he was prejudiced because the trial court unnecessarily injected the issue of his bad acts into the guilt phase of trial. Appellant admits he made no objection below based on Ark. R. Evid. 404(b), but states that “this prejudice [related to Rule 404(b)] is not asserted as an independent basis for reversal, but merely as part of the evidence as a whole which this Court must review to determine whether or not the error in introducing evidence of Mr. Vanesch’s prior juvenile delinquency adjudication (which was objected to) was harmless.” Because appellant did not object below on the basis of Rule 404(b), we cannot consider this argument on appeal.
Appellant also contends he was prejudiced during the sentencing phase of trial because the use of the juvenile adjudication to support his status as a habitual offender improperly eliminated any possibility of a suspended sentence or a fine, and required a sentence of imprisonment pursuant to Ark. Code Ann. § 5-4-104(e)(4)(Repl. 1997). However, Ark. Code Ann. § 5-4-104(e)(4) has been repealed, and appellant has not demonstrated that the trial court enhanced the sentences pursuant to the habitual offender law. The trial court sentenced appellant to twelve years for the possession of methamphetamine with intent to deliver conviction (Class Y felony), ten years for the possession of marijuana with intent to deliver conviction (Class C felony), and six years for the possession of drug paraphernalia conviction (Class C felony). The sentences were to run concurrendy. The maximum non-habitual sentence is ten years for a Class C felony and forty years or life for a Class Y felony. See Ark. Code Ann. § 5-4-401 (Repl. 1997). Appellant’s sentences did not exceed the maximum non-habitual sentences. Appellant has failed to demonstrate prejudice by the trial court’s ruling, and we will not reverse an evidentiary ruling absent a showing of prejudice. See Clark, supra. Therefore, we affirm.
Affirmed.
Crabtree and Roaf, JJ., agree. | [
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STEELE HAYS, Special Judge.
Appellant, Edward Garnett, is appealing from an order by the Hempstead County Circuit Court setting aside the jury verdict and ordering a new trial. We affirm the circuit court’s order.
While driving his automobile in Hope, Arkansas, on December 10, 1997, appellant ran a stop sign and collided with appellee Dennis Crow’s automobile. In May 1998, Mr. Crow sued appellant for negligence, claiming damages for aggravation of a preexisting condition and for past and future medical expenses, mental anguish, pain, physical impairment, and loss of earnings in the amount of $585,000. Mr. Crow’s wife, appellee Brenda Crow, sued appellant for $50,000 for loss of consortium. Appellant denied liability and alleged that Mr. Crow was negligent in driving too fast and failing to maintain a proper lookout.
Mr. Crow testified that, at the time of the accident, he had owned his own business, a classic car sales establishment, and that he had been forced to close it soon after the accident because of his injuries. He described in detail the severe back pain he has experienced since the accident and the adverse impact this pain has had on all areas of his life. He said he has not been able to work, perform household chores, or do yard work since the accident. He and his wife also testified about the toll that the accident has taken on their sexual relationship. Mr. Crow presented evidence of his injuries and the medical services he has received, as well as the substantial expenses he has incurred. He stated that, in addition to treatment at the emergency room, he has consulted a psychologist and a succession of physicians — his family physician, an internist, an orthopedic surgeon, and a neurologist — in search of relief for his pain. He also described the extensive medical tests and procedures, physical therapy, and medication his doctors have prescribed. Mr. Crow introduced into evidence his medical records and documents reflecting medical expenses, approximating $39,000.
Dr. Joseph Greenspan, who specializes in rehabilitation, testified that Mr. Crow’s injuries were caused by the accident and that his expenses were reasonable and medically necessary. He testified Mr. Crow would continue to suffer pain; Dr. Greenspan doubted he would be able to return to work. Dr. Greenspan determined Mr. Crow’s permanent whole-body impairment to be twenty-one percent and estimated his future medical expenses at approximately $100,000. Appellees also presented the testimony of an economist, Larry Davis, who testified that Mr. Crow’s future lost income had a present value of $224,229.
Appellant admitted at trial that he had run the stop sign and that the accident would probably not have occurred if he had stopped. He did not offer the testimony of any other witness; instead, he questioned the reliability and accuracy of Dr. Greenspan’s opinion about Mr. Crow’s injuries and their cause. In his attempt to discredit Mr. Crow’s testimony, he elicited admissions from Mr. Crow that he has suffered from anxiety problems for years and that he has been treated with psychotropic drugs. Appellant introduced evidence that, since April 1997, Mr. Crow had refilled his prescription for Ativan, an anti-anxiety drug, almost once a month. Appellant also tried to discredit Mr. Crow’s claim for lost wages by demonstrating that appellees had lost money on the business in 1997.
After the jury returned a unanimous $10,000 verdict for appel-lees, appellees moved for a new trial on the grounds of the purported misconduct of a juror, the questioning of Mr. Crow about his insurance by counsel for appellant, and the inadequate amount of damages. The circuit judge found appellees’ motion to be meritorious but did not specify the precise ground on which he granted a new trial. On appeal, appellant argues that none of the grounds argued by appellees in their motion warranted a new trial. Because the amount of damages awarded is so small in comparison to appel-lees’ proof, we cannot say that the circuit judge abused his discretion in granting a new trial. Therefore, we need not address appellant’s other arguments on appeal.
The law affecting the granting of a new trial is well settled. Arkansas Rule of Civil Procedure 59(a) provides that a new trial may be granted, among other reasons, for error in the assessment of the amount of recovery, whether too large or too small, and when the verdict is clearly contrary to the preponderance of the evidence. The test we apply on review of the granting of a new trial is whether there was a manifest abuse of discretion. Carr v. Woods, 294 Ark. 13, 740 S.W.2d 145 (1987); Eisner v. Fields, 67 Ark. App. 238, 998 S.W.2d 421 (1999). A manifest abuse of discretion in granting a new trial means discretion improvidently exercised, i.e., exercised thoughdessly and without due consideration. Nazarenko v. CTI Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993). A showing of an abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). Accordingly, he has less basis for a claim of prejudice than does one who has unsuccessfully moved for a new trial. Carr v. Woods, supra.
At trial, appellees presented detailed evidence that supported their claims. In our view, the words of the supreme court in Carr v. Woods, 294 Ark. at 16, 740 S.W.2d at 146, can be applied to the situation before us:
[A] trial judge does not abuse his or her discretion when a new trial is granted if it could fairly be found that the jury failed to take into account all the elements of the total injury proven, even if it might be possible to explain the verdict on the basis of something like awarding the plaintiff only the proven pecuniary loss.
Given appellees’ evidence of over $300,000 in damages and the relatively small amount awarded by the jury, we cannot say that the trial judge committed a manifest abuse of discretion in granting appellees a new trial.
Affirmed.
Meads, J., agrees.
ROAF, J., concurs. | [
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JOHN F. Stroud, Jr., Judge.
This appeal and cross-appeal arise from a lawsuit filed by Margaret Turner Lang, appellee/cross-appellant, against Hugh Chalmers Chevrolet-Cadillac-Toyota, Inc., appellant, and General Motors Corporation, cross-appellee. The case was tried and submitted to the jury on interrogatories. The jury found Chalmers liable on theories of strict liability, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. Lang was awarded $37,500.00 in damages. General Motors was exonerated of any liability. Following the verdict the trial court held a hearing on the issue of attorney’s fees and awarded Lang $18,500.00. This appeal and cross-appeal followed.
In January 1992, Lang purchased a previously owned 1991 Chevrolet Lumina from Chalmers. At the time of purchase, the automobile had been driven approximately 13,000 miles. It was manufactured by General Motors. In February 1992, it was destroyed by fire and portions of Lang’s carport and house were damaged. On the day of the fire, Lang returned home from work and parked her car in her carport at approximately 4:00 p.m. At approximately 11:00 p.m. she heard a loud bang, and her neighbors informed her that her car and carport were on fire.
For reversal, appellant Chalmers argues: (1) that the trial court erred in denying the motion for directed verdict on the implied warranty theories, (2) that the trial court erred in granting Lang’s request for attorney’s fees, (3) that the trial court erred in overruling Chalmers’ peremptory strike pursuant to a Batson challenge, and (4) that the trial court erred in denying Chalmers’ motion for a mistrial based on reports of other engine fires that were the subject of a motion in limine.
Cross-appellant Lang argues: (1) that the trial court erred in overruling her peremptory strike pursuant to a Batson challenge, (2) that the trial court erred in denying her motion in limine and permitting reference to subsequent, irrelevant acts, and (3) that the jury’s verdicts in favor of General Motors, cross-appellee, were not supported by substantial evidence.
We find merit in the arguments raised by both appellant Chal-mers and cross-appellant Lang with respect to their efforts to exercise peremptory strikes in the jury selection process. We therefore reverse and remand on both the appeal and the cross-appeal. Moreover, because we are reversing the judgment based on the trial court’s failure to excuse two jurors, we discuss only the points likely to arise at a new trial.
APPELLANT CHALMERS’ PEREMPTORY STRIKES
Lang is an African-American woman. Following voir dire, Chalmers exercised peremptory strikes against three African-American women. Lang challenged those strikes pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) and Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). With respect to two of the three peremptory challenges, either Lang conceded that there was an independent, nondiscriminatory basis for the strike, or the trial court so determined. With respect to Margie Brown, the third juror, however, the trial court overruled Chalmers’ peremptory strike. The trial court erred in doing so.
In Batson, the United States Supreme Court held that the Equal Protection Clause guarantees a criminal defendant that the State will not use peremptory challenges to exclude members of the defendant’s race from the jury venire based solely on race. This principle has been extended to protect private litigants in civil cases. Edmonson, 500 U.S. 614; see Wingate Taylor-Maid Transp., Inc. v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992); Sonny v. Balch Motor Co., 52 Ark. App. 233, 917 S.W.2d 173 (1996).
When a Batson objection is raised, the party making the objection must demonstrate a prima facie case that racial discrimination is the basis of a juror challenge. If the party is able to demonstrate a prima facie case, then the burden shifts to the party exercising the peremptory challenges to establish that the peremptory strikes were for racially neutral reasons. The trial court must then determine from all relevant circumstances the sufficiency of the striking party’s explanation. If the party’s explanation appears insufficient, then the trial court must conduct a sensitive inquiry into the basis for each of the peremptory challenges. Sonny v. Balch Motor Co., 52 Ark. App. 233, 917 S.W.2d 173 (1996).
Chalmers does not challenge whether a prima facie case for discrimination was established; rather, it asserts error in the trial court’s rejection of the reason proffered by Chalmers for the strike. The following exchange took place in pertinent part between the trial court and Chalmers’ counsel:
THE COURT: In view of our hearing before commencing voir dire and in light of the development in voir dire and your strikes, the Court will require the defendant to make some offer or showing of some independent reason for exercising your peremptory challenges to exclude the two female black American prospective jurors other than based on race.
[COUNSEL FOR CHALMERS]: Your honor, I think voir dire and the process goes not just to the questions asked by the lawyers, but also questions asked by the Court in qualifying these jurors.
The voir dire process extends not just to verbal responses but also visual clues, body language, general appearance of the witnesses.
I exercised my strikes based on the non-responsiveness of her attitude, failure to make eye contact during voir dire and appearance.
[THE COURT]: The reason stated by the defense for the exercise of the peremptory challenge of Ms. Brown certainly does not meet that standard, if there be a standard. I perceive there is some standard at least established by the Supreme Court, the U.S., as well as local, for reasons of race.
While I personally think there needs to be some preservation of the peremptory challenge, that feeling based on simply appearance and response or lack of response of a juror which could give one a strong feeling, justified or otherwise, whether or not they would or would not be a good juror, a fair and impartial juror, that alone does not come up to the standard, standards prescribed by the Court to justify and the Court so holds.
The United States Supreme Court has provided guidance with respect to the second step of a Batson inquiry:
The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” . . .
The [Eighth Circuit] Court of Appeals erred by combining Batson’s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a “plausible” basis for believing that “the person’s ability to perform his or her duties as a juror” will be affected. It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. ... At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
The prosecutor’s proffered explanation in this case — that he struck juror number 22 because he had long, unkempt hair, a mustache, and a beard — is race-neutral and satisfies the prosecution’s step 2 burden of articulating a nondiscriminatory reason for the strike. “The wearing of beards is not a characteristic that is peculiar to any race.” [Citation omitted.] And neither is the growing of long, unkempt hair. Thus, the inquiry properly proceeded to step 3, where the state court found that the prosecutor was not motivated by discriminatory intent.
Purkett v. Elem, _ U.S. _, _, 115 S. Ct. 1769, 1771 (1995).
The reasons proffered by Chalmers’ counsel for striking the prospective juror were that she was not responsive, she lacked eye-contact, and she was unkempt in appearance. These reasons are race neutral. They are not peculiar to any race, and they were sufficient to satisfy the second prong of Batson. The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). Here, the trial court’s ruling was clearly against the preponderance of the evidence and prevented the court from taking the Batson inquiry to the third step in the process, which involves determining whether the opponent of the strike has carried the overall burden of proving purposeful discrimination. We therefore reverse and remand for a new trial on this basis in the direct appeal.
CROSS-APPELLANT LANG’S PEREMPTORY STRIKES
Following voir dire, cross-appellant Lang exercised peremptory strikes against three white prospective jurors. Cross-appellee General Motors challenged those strikes pursuant to Batson. With respect to two of the three peremptory strikes, either General Motors withdrew the Batson challenge or the trial court determined there was an independent, nondiscriminatory basis for the strike. With respect to Charles Barfield, the third juror, however, the trial court denied Lang’s peremptory strike pursuant to the Batson challenge. The trial court erred in doing so.
During voir dire of the prospective jurors, counsel for Lang asked the potential jurors how they felt about lawsuits and if anyone had a problem awarding damages to his client for a fair amount under the circumstances. The following exchange took place:
JUROR [BARFIELD]: How much?
[COUNSEL FOR LANG]: We’re suing for in excess of $70,000. It will be between $70,000 and $80,000.
JUROR [BARFIELD]: It’s a damage suit, then?
[COUNSEL FOR LANG]: It’s a damage suit. We had the car which was — we bought it for about $13,000 and it was a total loss. We had repairs to the home. She was out of the home from February 26th till Good Friday and had to extensively remodel it. We’re essentially asking you for the property involved, okay. We’re not having pain and suffering or things like that. You see what I’m getting at? Do you have any problem with that and that situation?
JUROR [BARFIELD]: Do you know the reason for the question?
[COUNSEL FOR LANG]: I understand. I take it from that that you sort of feel like that if I had a sore neck and wanted a million dollars you would have some problems with it. But from what I stated, do you have any problems sitting as a juror in this case?
JUROR [BARFIELD]: I probably don’t.
Counsel for Lang subsequently exercised a peremptory strike to excuse Mr. Barfield. Counsel for General Motors then chai- lenged the strike pursuant to Batson, noting that three whites had been struck with peremptory challenges.
The following exchange took place in pertinent part between the trial court and counsel for Lang:
THE COURT: While one might certainly infer from his question and response that he had some difficulties, as counsel put it, complaining of a sore neck and seeking a million dollars, he might have some difficulty for personal injury, pain and suffering or mental anguish, matters or elements of damage of that nature. But stated he would not have any difficulty in being fair and impartial in assessing, considering damages for loss of property.
Again, the Court finds that that is not a sufficiendy independent reason justifying peremptor[ily] excusing a prospective juror who is a white male along with a white defendant and corporate defendant who is representative or of the white race. So that challenge will be denied.
What is the ultimate make up of the jury, if you have your fist there and I assume designated or know which is black, which is white? Is there an inference, any support to your allegation that he’s striking whites and has that effectively increase[d] the black members of the jury?
[COUNSEL FOR LANG]: Four out of the 12 would be black.
[T]he jury questionnaire for Barfield shows that he is 65, retired. ... He has never served as a juror before and he also ... has sued another party for loan default.
Lang argues that none of the three prongs of the Batson analysis were satisfied by the evidence, and therefore the trial court’s denial of her peremptory strike of Charles Barfield was clearly against the preponderance of the evidence. The reasons asserted by Lang for striking this juror were that he seemed to be one of those people who had some reservations about lawsuits involving damages, he was an older man that was more conservative, he had never served on a jury before, and he had sued another party for loan default. These reasons are race-neutral. They are not peculiar to any race, and they were sufficient to satisfy the second prong of Batson. We therefore agree with Lang that the trial court’s finding that Lang did not provide a sufficiendy independent, neutral basis for the peremptory strike of Mr. Barfield is clearly against the preponderance of the evidence. We find it unnecessary to discuss the first and third Batson prongs with respect to this juror, and we reverse and remand for a new trial on this basis in the cross-appeal.
ISSUES LIKELY TO RECUR ON RETRIAL
Of the remaining issues raised on appeal and cross-appeal, only two are likely to arise again at retrial since the evidence presented at the second trial may well be different from the first. Both involve motions in limine.
Chalmers sought to exclude by a motion in limine reports regarding other engine-compartment fires. At the pretrial conference on the motion, the trial court directed the parties to avoid mentioning the evidence in opening statements until the court had a chance to rule on the motion. In connection with that tentative ruling, the trial court commented that as a guide there’s got to be some similarity for engine-compartment fires to be relevant. On at least two occasions during the trial, the reports were mentioned and Chalmers sought a mistrial, which was denied by the court. Chalmers argues that the trial court erred in refusing to grant a mistrial on that basis. We do not address the mistrial issue, nor do we rule on the merits of the motion in limine, but we point out that it is incumbent upon the parties to obtain a definite ruling on the motion at retrial.
The second motion in limine sought to exclude any reference to Lang’s statement in a discovery deposition that she had purchased another Chevrolet Lumina from Chalmers after the fire loss. Lang contended that the evidence was not relevant and that any probative value it might have would be substantially outweighed by the danger of unfair prejudice. The trial court denied the motion. It abused its discretion in doing so because any probative value the evidence might have is substantially outweighed by the danger of unfair prejudice. On retrial, reference to Lang’s statement in this regard should be prohibited.
Reversed and remanded on appeal and on cross-appeal.
Robbins and Griffen, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant, Cynthia Duke, filed a claim for benefits alleging that she developed carpal tunnel syndrome early in 1994 as a result of her job with the appellee, Regis Hairstylists. On de novo review, the Commission denied and dismissed the claim, finding that appellant failed to establish her injury with medical evidence supported by objective findings. On appeal, appellant contends that there were objective findings sufficient to establish a compensable injury. We disagree, and we affirm.
Arkansas Code Annotated § ll-9-102(5)(D) (Repl. 1996) provides that a compensable injury must be established by medical evidence, supported by “objective findings” as defined in § 11-9-102(16). That subsection defines “objective findings” as follows:
(16)(A)(i) “Objective findings” are those findings which cannot come under the voluntary control of the patient.
(ii) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.
(B) Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty[.]
The facts are not in serious dispute. Appellant was employed as a hairstylist by appellee and, during her employment, developed difficulties with her hands for which she sought medical treatment. The central question in the case at bar is whether her physician’s diagnosis of carpal tunnel syndrome is supported by “objective findings” as defined by Ark. Code Ann. § 11-9-102(16).
Dr. Earl Peeples, an orthopedic surgeon specializing in hand surgery, testified concerning the manner in which he arrived at his diagnosis. As abstracted, he stated:
I conducted a physical examination on April 4 and the conclusions are recorded in the third paragraph of my letter: “On examination the patient is in no acute distress. The examination of the hands reveal strongly positive left and mildly positive right Tinel’s sign. She has a positive compression test on the left. Hyperextension and hyperflexion tests also tend to cause discomfort and numbness of the median nerve distribution. This patient has classic findings of carpal tunnel syndrome.”
The first test conducted was a Tinel’s test. . . . The Tinel’s test is an indicator of irritated or damaged nerve fibers. When you tap on the area, the patient generally describes a tingling or electrical sensation out to where the nerve goes. . . . You tap along the nerve path and wait for the patient to respond. I also tap in some areas that are not in the nerve pathway so that if the patient is not being totally straightforward with me, I give them an opportunity to report areas that would be misleading. So I don’t tell the patient what to expect. I tap in a variety of areas and ask them if they feel any particular sensation. If that correlates with the path of the median nerve, then that’s considered a positive Tinel’s test.
I also did a positive compression test. The compression test is done by placing two fingers over the median nerve just above or at the edge of the ligament and holding additional pressure. In a normal nerve, no numbness will be caused. In a nerve that is under pressure and has carpal tunnel syndrome, usually within twenty seconds it will become positive and there will be tingling in the median nerve distribution. In her case the test was positive. I also did hyperextension and hyperflexion tests. These tests are done for specific sensations and usually describing the light tingling.
I did not need to perform EMG or nerve conduction studies on Ms. Duke to confirm the diagnosis of carpal tunnel syndrome. I was able to make the diagnosis based on her physical exam. I did not feel the tests were needed.
Based on our review of the evidence, we hold that the Commission correctly found that the appellant foiled to establish her injury with medical evidence supported by objective findings. The results of each of the tests performed by Dr. Peeples were based on the patient’s description of the sensations produced by various stimuli. Such descriptions are clearly under the voluntary control of the patient and therefore, by statutory definition, do not constitute objective findings. Ark. Code Ann. § ll-9-102(16)(A)(i) (Repl. 1996).
We are not unmindful of appellant’s argument that the findings obtained by Dr. Peeples’ testing were objective findings because the tests contained various safeguards to detect malingering and ensure reliability. Dr. Peeples testified:
Q. You were aware of the fact, probably, that in 1993 the Arkansas Legislature passed a new Workers’ Compensation Act, were you not?
A. Yes, sir.
Q. Doctor, let me ask you one area that the Legislature has indicated in the Act that we are required to prove with respect to compensability of workers’ compensation claims. The Legislature says, according to Act 796 of 1993, that a compensable injury must be established by medical evidence supported by objective findings. Objective findings are then described as those findings which cannot come under the voluntary control of the patient.
Now, with that in mind, Doctor, is it your opinion that your diagnosis of carpal tunnel syndrome for Ms. Duke is supported by objective findings?
A. Yes, sir.
Q. Can you tell us that those objective findings are?
A. The positive Tinel’s test, the positive compression test, the positive hyperflexion and hyperextension test.
Q. Those are tests that are, in your opinion, reflecting findings that are out of the voluntary control of the patient; is that correct?
A. Well, I think it’s important to understand that the system can only work if you reasonably assume that people are telling you how their body feels. And to check a nerve or to check many things, you have to ask someone, “Is this tender?”
Now, that is different from the subjective description of, “I have pains that shoot out my ears,” or, “I have pains that run down my spine.” That is a subjective description.
But if I tap a particular location or if I place a joint in a particular position and say, “Does this hurt as opposed to this position?” then I’m asking for the patient to use their nervous system to tell me what makes them comfortable or uncomfortable. And that is objective. The patient must communicate that to me. Obviously, I cannot perform these tests on a comatose patient.
But those are not subjective in the sense that — subjective findings, such as, “Please bend over and touch the floor,” and the patient subjectively won’t bend forward. And then you can’t assume from that that the back has no motion. That is a different thing than the patient cooperating with the [physician] to produce objective medical data.
The examination of the abdomen, you put pressure on the abdomen and you say, “Well, does it hurt here?” And then if it hurts, “Does it hurt more when I press in or does it hurt more when I let go?” The classic finding of rebound, which is necessary for the diagnosis of appendicitis, depends on the patient being able to tell you whether it hurts more when you let go or whether it hurts more when you apply direct pressure.
So this is just another similar type examination that the patient and physician, as a team, produce data, and you do some things during the exam to see if the patient is faking. You deliberately examine] some areas that aren’t tender, that don’t cause symptoms. And if every place you tap on the arm, they say, “Oh, that makes it tingle,” then that’s not a positive Tinel’s test. That’s hysteria.
Q. The purpose of conducting the tests that may demonstrate a finding which is inconsistent with what the patient is telling — the purpose of conducting not only the test directly on the nerve that you are particularly concerned about but in other areas on the arm and so forth is to take that finding out of the voluntary control of the patient?
A. Well, it’s to weed out malingerers.
The foregoing testimony is typical of the extensive evidence adduced at the hearing to show that the tests performed by Dr. Peeples were reliable and accurate. Nevertheless, we are constrained to reject appellant’s argument. In passing Act 796 of 1993, which made far-reaching changes in Arkansas’s workers’ compensation law, the legislature made it plain that the provisions of that law were to be stricdy and literally construed by the Commission and the courts. See Ark. Code Ann. § ll-9-704(c)(3) (Repl. 1996). The General Assembly further declared:
When, and if, the workers’ compensation statutes of this state need to be changed, the General Assembly acknowledges its responsibility to do so. It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act. In the future, if such things as the statute of limitations, the standard of review by the Workers’ Compensation Commission or courts, the extent to which any physi cal condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.
Ark. Code Ann. § 11-9-1001 (Repl. 1996).
Construing the Act strictly, as we must, it is apparent that the tests performed by Dr. Peeples did not produce objective findings within the meaning of § ll-9-102(16)(A)(i). That subsection excludes from the definition of “objective” all findings save those that “cannot come under the voluntary control of the patient.” (Emphasis added). Despite the evidence tending to show the accuracy and reliability of the tests performed on appellant, it is nevertheless clear that they depended on voluntary responses and that the findings obtained from them could be controlled by a knowledgeable patient. We are consequently obliged to hold that they did not constitute objective findings as defined in Ark. Code Ann. § 11-9— 102(16).
Affirmed.
Jennings, C.J., and Robbins and Stroud, JJ., agree.
Mayfield and Rogers, JJ., dissent. | [
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George K. Cracraft, Judge.
Anthony Reed appeals from his conviction of the crimes of breaking and entering and aggravated robbery. He does not question the sufficiency of the evidence to sustain the conviction but only maintains that the trial court erred in not suppressing evidence of his confession. We find no error and affirm the conviction.
The crimes for which appellant was convicted were committed in December, 1981 when an intruder unlawfully entered a dwelling occupied by Minnie Nunn and robbed her at knife point. These crimes and a number of similar ones committed in the same vicinity remained unsolved, until August 1982. At that time the appellant was arrested for another aggravated robbery which was committed against a Mrs. Caswell, and he confessed not only to that crime but to ten others, including those committed against Mrs. Nunn.
The appellant first contends that he was arrested without probable cause and that his confession was the fruit of an illegal arrest and therefore constitutionally infirm. We do not agree.
The appellant was arrested pursuant to a warrant issued by a judicial officer. Rule 7.1 (b), Arkansas Rules of Criminal Procedure (1977) authorizes a judicial officer to issue an arrest warrant if on the information presented it appears that there is reasonable cause to believe an offense has been committed and that the person to be arrested committed it. The principles by which a determination of the existence of sufficient probable cause to justify an arrest are discussed in Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976). The existence of probable cause must be determined upon the facts and circumstances either which the arresting officer has knowledge of at the moment of the arrest or which are made known to the magistrate at the time the warrant is issued. This determination is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men act. The reviewing court should follow a liberal rather than a strict course and all presumptions are favorable to the trial court’s ruling on the legality of the arrest. The burden of demonstrating error rests upon the appellant.
Probable cause is only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused committed a felony but not tantamount to the quantum of proof required to support a conviction. It is clear from Sanders that our courts have committed themselves to the reasonable, common-sense approach to these determina- dons and that arrests are to be appraised from the viewpoint of a prudent and cautious police officer at the time the arrest is made. It also declares that constitutional standards permit common-sense, honest judgment by police officers in their probable cause determinations. When the arrest is based upon a judicial officer’s, rather than a police officer’s, determination of probable cause, the reviewing court should not require evidence of more “judicially competent or persuasive character as would have justified an officer in acting on his own without a warrant,” and should sustain a judicial determination as long as there is a “substantial basis” for the conclusion that the accused person has committed a felony. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 5 L.Ed.2d 697 (1960).
When we view the facts available to the police and judicial officer at the time the warrant was issued from the standpoint of common sense and with a pragmatic approach we find the evidence sufficient to constitute probable cause for appellant’s initial arrest for the Caswell robbery.
After robbing Mrs. Caswell her assailant fled from her house, and she called her neighbor for assistance. Mr. Hite and his two sons immediately responded and although they saw no one either on or leaving Mrs. Caswell’s premises, they observed an individual standing on the corner across from her house. He fled when they walked toward him. The Hites pursued him but quickly lost sight of him. More than a block from the Caswell house the Hites encountered two witnesses who stated that they had seen a person running past them in the same direction as the pursuers. Both of these persons knew the appellant and identified him as the person who had run past them. Acting on this information the police officers took a photo spread to Mrs. Caswell’s residence. Although she was unable to make a positive identification of the appellant, she picked his picture from six others, stating that he "looked like” her attacker. This information was given to the judicial officer who issued the warrant for appellant’s arrest.
It is to be remembered that probable cause deals with probabilities, not certainties or conclusions beyond a reasonable doubt. Here the fact that a felony had been committed at the Caswell home was clearly established. The Hites saw a man fleeing from the scene. Reasonable and prudent persons might easily conclude that the person seen fleeing the scene probably was the person who had committed the crime. Two witnesses identified the appellant as the person they saw a short distance away running down the street in the same direction as the Hites who were pursuing him. Although there was no proof that they were one and the same person, reasonable minds could conclude that the appellant probably was the same person as the one the Hites were pursuing. Although Mrs. Caswell’s identification was not a positive one, her selection of his photograph from a line-up created an additional probability.
We would additionally noté that we have seen no evidence that the incriminating statements were tainted by the arrest even if it was an illegal one. In Sanders v. State, supra, the court stated that persons arrested illegally may decide to confess as an act of free will unaffected by the initial illegality, and that the question of voluntariness must be answered in each case upon its particular facts. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) the court stated:
We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint?’
We find nothing in the record which suggests that appellant’s several confessions were other than voluntary or that they were obtained by exploitation of his arrest. We find no merit in this contention.
After appellant’s arrest he was immediately given the required Miranda warnings and acknowledged that he understood them. He did not invoke his right to remain silent and expressly waived his rights in writing. He stated that he did not desire the presence and advice of an attorney. He initially denied any participation in the Caswell robbery and attempted to establish an alibi. The officers were unable to verify that information and questioned him further. Within less than one hour appellant confessed not only to the Caswell robbery but to ten others in the same vicinity. As he was not aware of the names and addresses of his victims he went with the officers to the area and identified the houses in which he had committed the crimes. One of those houses was the home of Mrs. Nunn. He was then returned to the police station where the confessions were reduced to writing. All of this transpired within a three hour period.
It is not disputed that appellant was advised of his Miranda rights shortly after his arrest and was given no further warnings until after all of the confessions had been made and signed by him. He contends that his right to remain silent, was violated because the officers interrogated him about other crimes without giving him the required warnings as to each specific crime. This argument was rejected in Heard v. State, 244 Ark. 44, 424 S.W.2d 79 (1968).
Affirmed.
We agree: Mayfield and Corbin, JJ. | [
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Lawson Cloninger, Judge.
In this action for divorce and property division, the trial court granted appellee, Royce Perrin, a divorce from appellant, Marlene Perrin, on the grounds of personal indignities. The court also set aside conveyances of four acres of land and a stock certificate to appellant from appellee on the basis that the conveyances were made only because of the design, fraud and overreaching of appellant.
For reversal, appellant contends that the trial court’s finding is clearly erroneous, or clearly against the preponderance of the evidence. We agree, and we must reverse and remand.
The parties were married in February 1978 when appellee was 43 years of age, appellant 40. It was appellee’s first marriage and appellant’s second. The parties separated on April 15, 1981 and appellee filed his complaint in this cause on April 16, 1981.
In 1972 appellee entered his family’s farm equipment business, Perrin and Son, Inc., and started buying 49 of his father’s 50 shares of stock in the corporation. He finished paying for the 49 shares in 1979. Appellee’s brother, Nuel Perrin, owns the remaining 50 shares of stock in the corporation. Appellee, at the time of the marriage, also owned a 1/2 interest in four acres of land in Fort Smith upon which the business of Perrin and Son, Inc. was located.
On August 30, 1979, appellee conveyed his undivided 1/2 interest in the four acres of land to “Royce D. Perrin and Hazel Marlene Perrin, husband and wife, Tenants by the Entirety.” On October 23, 1979, appellee caused a stock certificate to be issued for 49 shares of Perrin and Son, Inc. stock to “Royce D. Perrin and Hazel Marlene Perrin.” The certificate was signed by Nuel Perrin, appellee’s brother, as President of the corporation, and Hack Perrin, appellee’s father, as Secretary. In addition to the foregoing transfers, which were set aside by the trial court’s decree, appellee conveyed his undivided 1/4 interest in lands located in Oklahoma to himself and appellant as tenants by the entirety. The trial court declined to make a finding with reference to the Oklahoma real estate, and that determination has not been appealed.
Appellant initially argues that the Arkansas Supreme Court has j urisdiction of this case under Rule 29 (1) (p) of the Rules of the Supreme Court, which lodges jurisdiction in that court for cases involving the construction of deeds or wills. However, we find that the issue in this case does not require a construction of a deed, but rather whether appellant was guilty of such fraud and overreaching as to defeat a gift of property made to her by her husband. For that reason, we will retain jurisdiction of this case.
Two specific findings by the trial court we find to be clearly against the preponderance of the evidence. The court stated:
. .. The Defendant admittedly married the Plaintiff for security and financial reasons only, and by reason thereof, and with design as hereinafter stated, the Defendant overreached the Plaintiff with reference to his properties . . .
and
. . . The entirety estate statute, A.S.A. 34-1215 should not apply in this case for the reasons the properties concerned were separately owned by Plaintiff prior to and during the marriage, and only put into the names of both parties due to the design, fraud and overreaching by defendant.
The only direct evidence in the record to show that appellant may have married appellee for financial reasons is contained in the deposition of Dr. Betsy Walloch, of Tulsa, Oklahoma, appellant’s psychiatrist. Dr. Walloch stated that appellant told her that she married appellee for security and companionship. The single word “financial” cryptically appears in a report made at Dr. Walloch’s clinic, but Dr. Walloch testified that she did not make the notation; that it was made by another doctor who did some of the intake for the clinic. Dr. Walloch did not feel that the fact that appellee put assets of his in appellant’s name helped her in her quest for security, as her basic need was emotional, not financial, security. Dr. Walloch testified that she had talked to both appellee and appellant, and that they both wanted their marriage to work.
There is scant circumstantial evidence to indicate that appellant married appellee for financial reasons. Appellee’s financial standing was no doubt a factor, which is not uncommon, but there is considerable evidence that the marriage was important to appellant.
Soon after the marriage, the parties and appellant’s brother purchased four duplexes in Fort Smith, and appellant worked extremely hard in cleaning and repairing them before they were rented. There was evidence, also, that appellant became bored with the marriage, and made frequent trips to visit her family out of state.
Basically, the parties had irreconcilable differences in outlook and personality: appellee did not like crowds and wanted to stay home; appellant wanted to go where the crowds were. Dr. Walloch observed that "I talked with him alone and with her and was very much struck by the fact they did not see anything alike.” Each believed the other had a problem with alcohol. Appellee admitted that he had had trouble with drinking in the past, and there was evidence that appellant used alcohol to an excessive degree after taking prescribed medication. Appellant told Dr. Walloch that appellee’s drinking was a big problem in their marriage, and appellee asked Dr. Walloch to caution appellant about her drinking.
In Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973), the Arkansas Supreme Court held that where a confidential relationship exists between a donor or grantor and a dominant donee or grantee, then that donee or grantee must produce evidence to show that the instruments were freely and voluntarily executed. A confidential relationship based on faith and repose as well as the dominant position must be supported by testimony before the presumption of coercion will arise. In Dunn, the evidence was overwhelming that the wife was the dominant partner in the marriage. When the parties were married, he was 68 and she was 47. Previously, the husband had suffered permanent brain damage from a stroke. A year later his first wife died. He proposed marriage to several different women, and one on a first date. He married the appellant six months after they met. A month later, he changed the terms of a revocable trust and conveyed all his real property and various savings accounts to their joint ownership. She acquired possession of all his passbooks and certificates of deposit. One week before appellant left her husband she cashed one certificate of deposit for approximately $15,000 and deposited $14,000 in a bank in her own name. There were several expert witnesses who testified that the husband had suffered severe brain damage and it would be difficult for him to function in some areas of life. Furthermore, due to the husband’s mental deficiency he would depend on any person in whom he had trust and confidence. He suffered delusions from time to time and referred to his wife as “him” or “he.” In viewing this evidence, the court held that the wife was the dominant personality in the marriage relationship and that the instruments were not freely and voluntarily executed.
In Marshall v. Marshall, 271 Ark. 116, 607 S.W.2d 90 (Ark. App. 1980), the evidence was strikingly similar to that in the Dunn case and this court found that the wife was the dominant personality in the relationship and that the burden would shift to her to show that the transfers were voluntarily made. In Johnson v. Johnson, 237 Ark. 311, 372 S.W.2d 598 (1963), the Arkansas Supreme Court held that a deed creating an estate by the entirety was properly set aside upon evidence that the husband was not in love with the wife at all, had married her for financial reasons, and that the husband was in fact in love with another man.
In a recent case, Chrestman v. Chrestman, 4 Ark. App. 281, 630 S.W.2d 60 (1982), this court reviewed the issue of a confidential relationship and dominant personality. In that case, the trial court held that the wife had practiced fraud and deceit from the inception of the marriage and that all transfers made to her were invalid because of such fraud. Evidence in support of that showed that during the first eighteen months of the marriage, the wife acquired virtually every income-producing asset owned by the appellee prior to the marriage. The court noted that appellee testified that he had at first resisted her efforts to obtain control of these assets but later acquiesced; that every transfer was obtained at her insistence through documents prepared by her attorneys on her instructions; and that those documents were brought to him for execution late in the evening when he was intoxicated. In reviewing the evidence, this court held that the chancellor’s decision was not clearly against the preponderance of the evidence and affirmed his holding.
In the instant case, there was virtually no evidence to suggest that appellant was the dominent personality in the relationship. The psychiatrist who examined appellant testified that she married for security and companionship but specifically stated that she did not think that the security she was seeking was financial. The psychiatrist further testified that when appellant found out that appellee had filed for a divorce, she became very depressed and wanted to save her marriage. Appellee testified that appellant had asked that the property be transferred in her name because she felt it would make her more secure. We believe that this evidence falls short of any showing of fraud or overreaching on the part of appellant and further, there is no evidence to suggest that appellant was the dominant personality in the marriage. In fact, the evidence suggests that when appellee made the transfers of the property in both of their names, he knew exactly what he was doing. Although he testified that he did not intend to make a gift to her when he transferred the property, he testified that he did transfer the property to help save the marriage and to try to make her happy. There was not even a suggestion in the record that appellee was mentally or physically handicapped when he made these transfers. To the contrary, the evidence reveals that appellee was a mature, successful businessman, influenced only by a natural desire to save his marriage. The transfers were perhaps unwise, but they were freely made, and appellee cannot be relieved of responsibility for his actions.
The rule in Arkansas is that the law presumes a gift when the donor registers legal title in a family member’s name. See Festinger v. Kantor, 272 Ark. 411, 616 S.W.2d 455 (1981); Harrison v. Knott, 219 Ark. 565, 245 S.W.2d 642 (1951). The chancellor did not apply this presumption because of his holding that appellant was guilty of fraud and overreaching. Since we find that there was no evidence to support this finding we will apply the presumption and find in favor of appellant. We hold that appellant and appellee own the four acres of property and the 49 shares of stock as tenants by the entirety and they are to be divided by the chancellor according to Ark. Stat. Ann. § 34-1215 (Supp. 1981).
Appellant also argues that the trial court erred in holding defendant in contempt of court. We decline to review this issue, since appellant has not shown how she was prejudiced by such holding. Although the trial court did hold appellant in contempt of court, the chancellor did not fine appellant or use any of his contempt powers. He merely insisted that appellant return the personal items belonging to appellee, and appellant can purge herself of the contempt order if she returns those items.
Appellant finally argues that the trial court erred in refusing to restore appellant’s former name of Marlene Chidwood, as prayed in this action. It is true that the chancellor does have the power to restore appellant’s former name to her under Ark. Stat. Ann. § 34-1216 (Supp. 1981). However, it seems that this issue was overlooked at the trial court level and never reviewed by the chancellor. On remand, we would instruct that the chancellor review the issue, and, in his discretion, consider the restoration of appellant’s former name.
The decree of the chancellor is reversed and the cause remanded for the entry of an order not inconsistent with this opinion. | [
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Melvin Mayfield, Chief Judge.
Appellant Evelyn Ethridge appeals her conviction of manslaughter and urges eight points for reversal. We find reversible error as to one and discuss the others only to the extent we think necessary in view of a new trial.
In April of 1982 a tornado had touched down near the City of Conway and the police had set up a roadblock to control traffic going in and out of the area. A vehicle driven by appellant came over the crest of a hill some 1400 feet from where a police officer was standing in appellant’s lane talking to the driver of a vehicle headed toward appellant, but which had been stopped at the officer’s signal. It was after dark, the lights of the other vehicle were shining toward appellant, and appellant’s vehicle struck the policeman as he stepped out from behind the front door of the other vehicle and signaled the appellant to stop.
Appellant never applied her brakes before the officer was hit; her male companion was intoxicated; and her blood-alcohol test registered .15%, although a man helping the police control traffic testified that shortly after the accident he did not notice anything unusual about her behavior or demeanor.
One of the points relied upon by appellant concerns the giving of an instruction based upon the presumptions set out in Ark. Stat. Ann. § 75-1031.1 (Repl. 1979). That instruction, No. 9, was as follows:
COURT’S INSTRUCTION NO. 9
You are instructed that the amount of alcohol in the defendant’s blood at the time alleged as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance shall give rise to the following presumptions:
Number one, if there was at the time point 0-five percent present or less by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor.
If there was at the time in excess of point 0-five percent but less than point one-0 percent by weight of alcohol in the defendant’s blood, such fact shall give rise to — shall not give rise to any presumption that the defendant was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
Number three, if there was at the time point one-0 percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.
The foregoing provisions shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence óf intoxicating liquor.
This instruction was objected to by appellant on the specific grounds that it was not in the Arkansas model criminal instruction book (AMCI). Appellant offered an instruction incorporating AMCI 205 to be given in lieu of the court’s instruction No. 9, but the court refused that request and gave both instructions to which appellant objected. Appellant’s requested instruction was given as the court’s instruction No. 10, and reads as follows:
Evidence of drinking may be considered by you along with all the other evidence in the case in determining whether Mrs. Ethridge was reckless or negligent, but that evidence alone does not impose upon you the duty of finding guilt as to manslaughter or negligent homicide.
We think the court erred. The note on use which appears in the AMCI book under 205 clearly states that instruction should be used when the evidence raises a statutory presumption other than the shoplifting presumption. And the comment which follows the note on use states: “It is improper for the judge to tell the jury that a specific fact in evidence is sufficient to support a specified inference or presumption of fact.” Certainly that it what the court’s instruction No. 9 did.
The state argues that Jones v. City of Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965), supports the trial court’s action, but French v. State, 256 Ark. 298, 506 S.W.2d 820 (1974), cited under AMCI 205, holds otherwise. In French the court said the vice in an instruction which tells the jury that a specific fact shown by the evidence is sufficient to support a certain inference is that this amounts to a comment on the evidence which is prohibited by Art. 7, Sec. 23 of the Constitution of Arkansas. In reference to the Jonesv. Forrest City case, the court said:
[W]e reject appellee’s argument based upon a statement in Jones v. City of Forrest City, 239 Ark. 211, 388 S. W.2d 386 (and cases cited therein), that an instruction in the language of a statute applicable to the facts of a case is always proper. This comprehensive language applied literally would permit the legislature to override Art. 7, Sec. 23 of the Constitution, but we have held in Reno, decided subsequently to Jones, that this cannot be. 256 Ark. at 300.
Since this case must be reversed and remanded for a new trial because of the error above discussed, we also discuss the appellant’s contention that it was improper to allow the state’s expert to give his opinion on an ultimate fact in issue.
The state called Steve Jackson of the state police who testified as an expert in accident investigation and reconstruction. He said he had been asked to do a reconstruction in this case and he read six questions which he had been asked to answer. After explaining how he arrived at his answers, he read the questions again and gave his answers.
The first question asked what minimum speed the vehicle was traveling at impact, and the trooper’s answer was 42 miles per hour.
The second question asked what visibility was possible at the time of the accident, and the officer’s answer was 1420 feet.
The third question asked what was the maximum visibility under the circumstances, and the answer was 1420 feet.
The fourth question asked if the driver of the striking vehicle should have been able to see the pedestrian’s position, and the expert’s answer was “only at the point where the flashlight is used.”
The fifth question asked if the driver of the striking vehicle had time to take evasive action if traveling at the speed limit, and the answer was yes.
And the last question was, “had driver been alert and practicing reasonable safety, could this death have been prevented?” The state trooper’s answer was, “In my opinion it could have.”
Now the question for the jury to decide in this case was whether the appellant recklessly caused the death of the policeman, and the law provides that one acts recklessly when there is a gross deviation from the standard of care that a reasonable person would observe in the same situation. Ark. Stat. Ann. §§ 41-1504 and41-203 (Repl. 1977). We think this is essentially the same question the state trooper answered. When he said the policeman’s death could have been avoided if the appellant had been alert and practicing reasonable safety, he answered the question the jury had to answer — did appellant cause the policeman’s death by a gross deviation from the standard of care that a reasonable person would observe in the same situation.
The state asserts, however, that our Uniform Evidence Rule 704 allows an expert to give an opinion on an ultimate fact issue. However, that is not really what the rule provides. The rule states that testimony in the form of an opinion otherwise admissible is not objectionable because it embraces an ultimate issue. Our rule 704 is the same as the federal evidence rule 704. The advisory committee’s note to that rule states, in part, “The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions . . . opinions must be helpful to the trier of fact . ...” 28 U.S.C.A. Rule 704 (West 1975).
An 8th Circuit case, United States v. Scavo, 593 F.2d 837 (8th Cir. 1979), states:
Rule 704 does not, of course, render all expert testimony admissible. Expert testimony must still meet the criterion of helpfulness expressed in Rule 702 and is also subject to exclusion under Rule 403 if its probative value is substantially outweighed by the risks of unfair prejudice, confusion or waste of time.
Here are some cases which have held that an opinion involving an ultimate issue was not admissible even though rule 704 or its equivalent was in effect.
Marx & Co., Inc. v. Diner’s Club, Inc., 550 F.2d 505 (2nd Cir. 1977), where the expert gave his opinion on the “reasonable” time required for an SEC registration statement to become effective. This was based upon the statistic median time required. The court said the issue for the jury to determine was whether the party’s conduct was reasonable under the circumstances in which it found itself and held that the opinion given was “prejudicial overweight.”
United States v. Pino, 606 F.2d 908 (10th Cir. 1979), where the defendant was charged with killing a person in Indian country by driving without due care and circumspection, and the court agreed that psychiatric testimony was not admissible to show that, because of the defendant’s personality, three alcoholic drinks would not cause him to drive in a reckless and incautious manner. The appellate court said the expert was not free to “substitute his judgment” as to the defendant’s state of mind and in a footnote said it was mindful of Rule 704, but “we do not feel, however, that the rule means that the witness may simply say that the defendant would not, or did not, drive recklessly.”
Shell Oil Co. v. Gutierrez, 581 P.2d 271, 279 (Ariz. Ct. App. 1978), where it was held that the trial court did not err in excluding expert testimony as to whether the “FLAMMABLE LIQUID” label was adequate. The appellate court said, “Expert opinions will be rejected where the facts can be intelligently described to and understood by the jurors so that they can form reasonable opinions for themselves.” It is interesting to note that the Arizona rule that expert opinion will not be excluded merely because it deals with ultimate facts, was established by case decision. Allied Van Lines v. Parsons, 293 P.2d 430, 433 (Ariz. 1956).
Gallagher v. Parshall, 296 N.W.2d 132, 134 (Mich. Ct. App. 1980), where the court said:
As to the trial court’s exclusion of the opinion testimony of Dr. Devlin regarding whether plaintiff’s stiff neck constituted serious impairment, we are fully in accord therewith. Given the detailed testimony regarding the diagnosis of the injuries and the doctor’s explication of the medical terms utilized in such diagnosis, we again conclude that the jurors were capable of reaching their own conclusion thereon unaided by any expert’s opinion on the matter.
And finally, the Arkansas Supreme Court case of Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981), where the court reversed because a doctor was allowed to say that, in his opinion, another doctor was not negligent when he severed the plaintiff’s ureter. The court said, “it is difficult to draw a line between opinion testimony that merely embraces the ultimate issue and opinion testimony that tells the jury which result to reach,” but observed, “in this case it is a bald statement of an opinion as to the ultimate issue.”
In the instant case the state also argues that appellant failed to object properly to the ultimate-issue question. Since we have reversed on another point, it would serve no purpose to address the state’s contention as to lack of proper objection. In view of another trial, however, we note, assuming a proper objection, the sixth question and answer of the state’s expert witness are not admissible under evidence rule 702 as they are not helpful to the jury’s determination of a fact in issue — that is, given the same information used by the expert, the jury could answer the sixth question as well as he could, and it is the jury’s duty to determine the standard of care of a reasonable person, not the duty of an expert; also, under evidence rule 403 the probative value of the sixth question and answer given in evidence by a member of the Arkansas State Police is substantially outweighed by the danger of unfair prejudice.
As to the other points argued by appellant, one contention is that some potential jurors were summarily excused, without further inquiry, when they responded affirmatively to the court’s questions of whether they were personally acquainted with appellant or her family, and others were so excused when they stated they had secondhand knowledge relating to the facts and circumstances of the case. Appellant does not contend that her voir dire examination of these prospective jurors was restricted as in Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979), and since a party is not entitled to have any particular juror, in the absence of a showing that a biased or incompetent juror was thrust upon appellant, we find no error on that point.
Also, we find no error in the introduction into evidence of the flashlight the deceased officer was using. Appellant argues that the chain of possession was broken and that the batteries may have been changed, but all that appears in the evidence is that the flashlight had been held by the policeman’s family for a short while on the night of the occurrence. In establishing a chain of custody prior to introduction of evidence, it is not necessary to eliminate every conceivable possibility that the evidence has been tampered with; it is only necessary that the trial judge be satisfied that the evidence is genuine and, with reasonable probability, that it has not been tampered with. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Here, the flashlight was relevant on the issue of whether its light should have been seen by the appellant; there was evidence that the batteries were rechargeable and had to be replaced only once a year; and the break in custody and the strength of the batteries were matters going to the weight of the evidence, not its admissibility. Gardner v. State, 263 Ark. 739, 569 S. W.2d 74 (1978).
Another point raised by appellant is that the court erred in limiting her closing argument to twenty minutes. While there may be disagreement as to when it has been abused, it is clear that the length of the jury arguments must be left to the sound discretion of the trial judge. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983). We cannot say that the twenty-minute limitation was an abuse of discretion in this case.
The appellant’s contention that the prosecuting attorney’s j ury argument exceeded the bounds of fair comment is answered by the proposition that this is also a matter in which the trial court has broad discretion. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). We do not, however, mean to imply a diminution of the authority of Simmons v. State, 233 Ark. 616, 346 S.W.2d 197 (1961), cited by appellant, and, of course, this is also an issue that must be determined on a case-by-case basis.
We think there is no need to discuss appellant’s final contention that the verdict was not supported by substantial evidence. Suffice it to say, the judgment is reversed and remanded for a new trial because of the error in giving the jury the court’s instruction No. 9.
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Olly Neal, Judge.
E.A. Whitten brings this appeal from a Jefferson County Chancery Court order denying his prayer for specific performance of a land-sale contract he allegedly entered into with appellee. The chancellor found that the offer and acceptance upon which appellant’s claim is based, was executed on behalf of Harold Austin Construction, Inc., by one of its minority stockholders who lacked authority to bind the corporation. Harold Austin was the majority shareholder of the corporation, holding ninety-five percent (95%) of its stock. We find that the chancellor’s findings of fact are not clearly erroneous, supported by substantial evidence and therefore, affirm the judgment.
Appellant alleged in his complaint that on March 24, 1994, appellant, acting through Worthen Trust Company Realty Service, communicated an offer to purchase “farm #2148,” a 360-acre farm located in Jefferson County from appellee for the sum of $355,000. The offer recited that its terms would be binding if accepted within three (3) days and was signed by appellant as buyer and by Mark Maxwell, vice-president of Worthen Trust, as agent. The offer was accepted the following day by Sylvia Austin on behalf of Harold Austin Construction, Inc. Sylvia Austin, wife of Harold Austin, owned 5% of the corporation’s stock. At all relevant times, Harold Austin was confined to a wheelchair, and in fact, is paralyzed from the neck down.
At the December 8, 1994, trial, testifying on his own behalf, appellant E.A. Whitten recalled that he had made a preliminary offer to purchase a farm from appellee for the sum of $350,000 which was rejected. Appellant also remembered that his second offer was accepted by appellee on March 24, 1993, and that he went to Little Rock, Arkansas, the following day to arrange to pay cash for the acquisition. At the time, Mr. Whitten was not aware that Austin Construction was a corporation, and “presumed [he] was purchasing from Harold Austin and wife.” Mr. Whitten stated that he was not aware of any problems with the contract until he was informed by Maxwell several days after it was executed that the Austins were unwilling to consummate the deal. Appellant admitted that he never met the Austins and that he accepted responsibility for paying Maxwell’s commission. According to Mr. Whitten, appellant, at all times, considered Maxwell his own agent.
William Mark Maxwell, the Worthen Bank employee who was responsible for all agricultural and real-estate transactions, testified on direct examination that he contacted Harold Austin and talked with Austin about whether Austin was interested in selling the farm. After Mr. Austin indicated that he would consider selling, Maxwell contacted appellant, showed Mr. Whitten the property, and transmitted Whitten’s written offer to the Austins. Maxwell testified that his first offer was rejected, and he then conferred with appellant and was authorized to offer a greater price and $5,000 earnest money. The Austins asked Maxwell to wait until the next day. Although he couldn’t remember specifically, Mr. Maxwell testified that he believed that Mrs. Austin contacted him the following day and informed him that Austin Construction had decided to accept the second offer of $355,000. Maxwell also admitted that prior to Mrs. Austin’s signing the sale contract, Mr. Austin stated that he didn’t want to “do the deal.” After the contract was signed, Mr. Austin made no further comments. Two days later, Mrs. Austin contacted Maxwell and attempted to back out of the deal.
On cross-examination, Mr. Maxwell stated that Harold Austin was involved in all phases of negotiation of the contract and that Mr. Austin was the person he dealt with. Maxwell never knew that Mrs. Austin was president of the corporation or that she and Mr. Austin comprised the entire board of directors. Maxwell admitted that he never asked for a corporate resolution at the initial execution of the contract, and only decided to do so after he returned to the bank and was asked to secure one by the bank’s trust department.
Sylvia Austin testified that she recalled the circumstances surrounding the farm transaction and remembered that Mark Maxwell initiated the deal by contacting her husband and asking him if he was “interested in selling the Roberts place.” Upon receiving a somewhat ambiguous, “Oh, I might sell if the price is right,” Mr. Maxwell secured an offer and visited the Austins several times, even after the first offer was rejected and Mrs. Austin asked him not to return. After Maxwell’s final visit prior to the signing of the contract, Maxwell left the contract with the Austins and the Austins stayed up all night discussing the proposition. Mrs. Austin denied calling Maxwell to confirm the deal, and remembered at trial that, when Maxwell entered the Austin residence the following day, Mr. Austin immediately told the agent, “she’s not going to sign them papers. I don’t want to sell that place.” Mrs. Austin stated that she accepted the papers and signed them, and Maxwell immediately left the premises. Mrs. Austin admitted that she did not have her husband’s permission to sign the final contract, and did so, in direct defiance of her husband’s wishes, only because she was “wore out” from staying up the previous night and from dealing with the constant pressure applied by Mr. Maxwell. Mrs. Austin also admitted that she never held herself out as the president of the corporation and only signed some documents as president because Mr. Austin was unable to write.
Harold Austin testified that he specifically communicated to both Mrs. Austin and Mark Maxwell that he did not want to go through with the transaction. Although Mr. Austin had considered accepting appellant’s offer, he ultimately decided that the offered price wasn’t high enough. According to Mr. Austin, by March 24, 1994, the day the contract was signed, he had completely changed his mind and decided that he didn’t want to sell for any price.
It is an established principle of appellate review that we will not reverse a chancellor’s finding of fact unless it is clearly erroneous. Hot Stuff, Inc. v. Kinko’s Graphic Corp., 50 Ark. App. 56, 901 S.W.2d 854 (1995). Fennell v. Ross, 289 Ark. 374, 711 S.W.2d 793 (1986). Appellant here argues first that the chancellor erred as a matter of law when he ruled that Mark Maxwell was the agent of appellant. In the Fennell case, the supreme court delineated the relative positions of agents and principals in land sale contract cases. The supreme court held in Fennell, that as a matter of law, in all cases involving properties listed with the Multiple Listing Service the listing agent is conclusively the subagent of the seller. However, in the instant case, appellant’s reliance on Fennell is misplaced. In framing the issue in Fennell, the court stated:
The [trial] court obviously, and we think correcdy, regarded the question of whether [the listing agent] was the agent of the sellers or of the buyers as one of law. That is the question his decision turned upon, and it is thus the one we must address. Here we are dealing with a garden variety MLS property sale transaction conducted by two real estate broker through their agents. Obviously, the broker and agent who listed the property with MLS was the representative of the sellers, but what of the others...
Id. at 377.
The court concluded:
The law of agency contemplates that an agent may serve only one principal with respect to any one transaction (citation omitted). We agree with the authorities and authors cited above who have reached the conclusion that in an MLS transaction like this one the selling agent is a subagent of the sellers.
Id. at 379.
The court’s limitation of its holding to MLS cases is based on sound reasoning. In what the court described as “garden variety MLS” cases, the potential seller clearly evinces an intent to sell his property by listing the property with multiple agencies: by signing a listing contract the seller in effect states, “I will pay you if you will find a buyer for my property at a fair price.” Under such an arrangement, it is the seller who pays the listing agent for his services and ultimately he who benefits from any transaction. The listing agency and subagent obviously work on behalf of the seller. In cases such as the one before us, where the property is never listed for sale and the owner of the property does nothing to indicate that he wishes to sell his property, the rationale for holding the selling agent as his subagent as a matter of law is somewhat dubious. Under this type of arrangement, the agent may actually be the person who initiates the sale for the purpose of collecting a commission, or the buyer may solicit the assistance of an agent to secure property for himself at a below-market price. In both instances, it would be irrational to hold that the real estate agent represents the seller. The court recognized in Fennell that selling agents in MLS cases are somewhat constrained by their legal duty to the seller and may only serve one principal per transaction.
In non-MLS cases, the general rule remains that the existence of the agency relationship may be established by the testimony of other witnesses who possess knowledge of the facts, that circumstantial evidence may be sufficient to establish the agency, and that the agent’s declarations may be used to corroborate other evidence of agency. See Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980). Also, an owner or seller must do some affirmative act that tends to prove he accepted the broker as his agent; mere selling to the party whom the broker procured is insufficient proof. Walker v. Huckabee, 10 Ark. 165, 661 S.W.2d 460 (1983).
In the case at bar, the chancellor found that Maxwell acted as the buyer’s agent in the transaction. The supreme court’s ruling in Fennell, supra does not preclude that finding as a matter of law as this is not an MLS case. Mr. and Mrs. Austin’s testimony that Mr. Austin clearly communicated to both Mrs. Austin and Mr. Maxwell that he did not wish to sell his property, appellant’s testimony that it was he who was to pay Maxwell’s commission, and Maxwell’s testimony that he actively solicited the sale are all circumstantial evidence of an agency relationship between appellant and Maxwell and is contrary to a finding that the Austins accepted Maxwell as their agent.
Appellant also argues that the chancellor erred in its finding that Mrs. Austin was acting within the scope of her apparent authority when she signed the contract and, therefore, her principal, Harold Austin Construction, Inc., should be bound by her actions. That argument is withbut merit. Mr. Maxwell, appellant’s agent, as well as appellant himself, admitted that at the time of the transaction, he had no idea Austin Construction was incorporated or that Mrs. Austin was its president. Maxwell assumed that the Austins jointly owned the farm. That admission, when considered in light of Mr. Maxwell’s admission that Mr. Austin clearly stated that he did not want to proceed with the sale forecloses appellant’s argument that Mrs. Austin had apparent authority to bind the corporation. Mr. Maxwell, and therefore appellant, his principal, had notice of the restrictions on her ability to unilaterally sell the property in question.
Appellant’s third argument is that the contract should have been upheld based on principles of ratification or acquiescence. This argument fails for some of the same reasons cited above; the evidence tended to show that Mr. Austin, the majority stockholder in the corporation expressed his opposition to the sale prior to the signing of any documents, and additionally, did no other act consistent with ratification. Ratification may be proved by showing that all the shareholders of a corporation had notice or knowledge of the authorized act of one of its managers or agents, and either expressly consented thereto, or remained silent and took no steps to disaffirm the act within a reasonable time after receiving such notice or knowledge. M & F Bank v. Harris Lumber Co., 103 Ark. 287, 146 S.W.2d 510 (1912). The unequivocal testimony at trial established that Mr. Austin was paralyzed from the neck down, and was unable to so much as pick up a telephone. Under the circumstances, the two-day period that elapsed between the time he informed Mrs. Austin and Mr. Maxwell of his desires and the time Mrs. Austin attempted to rescind her signature was not unreasonable. Mr. Austin had no power to notify anyone outside of his home that the contract was invalid and of necessity had to wait for Mrs. Austin to comply with his wishes. A party’s manifestation of assent to a contract is judged objectively and may be proved by circumstantial evidence. Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995).
Similarly, appellant’s arguments asserting waiver and estoppel as a defense must fail. Appellant inappropriately cites Julian James Stores, Inc. v. Bennett, 250 Ark. 279, 465 S.W.2d 94 (1971), as support for his waiver argument. That case dealt solely with the issue of whether a seller may defeat a brokers’s claim to commission by asserting a ground different than the ground originally stated for revoking his acceptance. That case has no application to the present facts as Mr. Maxwell has presumptively received his commission; a selling agent who procures a willing buyer is entided to his commission regardless of the outcome of the agreement between buyer and seller. Graham v. Crandall, 11 Ark. App. 109, 688 S.W.2d 548 (1984). Under the circumstances, Mr. Austin, the majority stockholder, cannot be said to have waived the defense of lack of authority.
Estoppel applies where an owner of realty “stands by and permits it to be sold, without giving notice of or asserting his rights.” Williams v. Davis, 211 Ark. 725, 202 S.W.2d 205 (1947). There was ample evidence that Mr. Austin expressed his intent not to sell the subject property prior to Mrs. Austin’s signing the contract, and he cannot be said to have sat idly by and watched his property sold.
Affirmed.
Rogers, Griffen, Robbins, and Pittman, JJ., agree.
Stroud, J., dissents. | [
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OLLY NEAL, Judge.
Victoria Farrelly was convicted in a bench trial of committing the felony offense of battery in the second degree. Using the evidence presented in the prosecution of the second-degree battery case, the trial court revoked appellant’s previously imposed probationary sentence. Appellant received consecutive sentences of thirty-six months’ incarceration, with thirty months suspended, for her second-degree battery conviction, and thirty-six months’ incarceration, with thirty months suspended, for the revocation. She has appealed to this court to reverse her conviction and revocation, arguing that the evidence was insufficient to establish either that she committed battery in the second degree or that she violated the conditions of her probationary sentence. Upon reviewing the evidence presented, we find the evidence is sufficient to support both the conviction and revocation. We, accordingly, affirm.
On December 21, 1998, Stacie Prime drove to the Wendy’s Restaurant located on Markham Street in Little Rock. She placed her order and proceeded towards the drive-through window where she attempted to pay for her order by placing cash on the window sill. According to Ms. Prime, her boyfriend Roderick Crutchfield, and Tunita Thornton, who was driving behind Ms. Prime’s car, appellant closed the drive-through window on Ms. Prime’s hand. Ms. Prime parked her car and went inside the restaurant.
While inside the restaurant appellant and Ms. Prime engaged in a physical altercation. It is undisputed that at some point during the course of the altercation, appellant stabbed Ms. Prime three times with a knife taken from the restaurant’s kitchen. Ms. Prime was transported by ambulance to a local hospital, but was not hospitalized. Appellant was arrested and charged with committing second-degree battery.
At trial, appellant moved for a directed verdict at the conclusion of the State’s case-in-chief, and again at the close of the defense’s case. On appeal, she contends that the evidence is not sufficient to sustain the conviction because the State had failed to show that the victim suffered a physical injury from the altercation.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). The test for determining the sufficiency of the evidence is whether the evidence is supported by substantial evidence, which is evidence of such certainty and precision to compel a conclusion one way or another. Id. We review the evidence in the light most favorable to the appellee, considering only the testimony that tends to support the verdict. Jenkins v. State, 60 Ark. App. 122, 959 S.W.2d 427 (1998).
In order for the court to have found appellant guilty of second-degree battery in violation of Arkansas Code Annotated section 5-13-202(a)(2) (Repl. 1997), the State was required to prove that appellant caused “physical injury” to Stacie Prime by means of a deadly weapon other than a firearm.
Arkansas Code Annotated section 5-1-102(14) (Repl. 1997) defines “physical injury” as the impairment of physical condition or the infliction of substantial pain. Pain is a subjective matter and difficult to measure from testimony. Sykes v. State, 57 Ark. App. 5, 940 S.W.2d 888 (1997). In determining whether an injury inflicts substantial pain, the fact-finder must consider all of the testimony and may consider the severity of the attack and the sensitivity of the area of the body to which the injury is inflicted. Id. Moreover, the fact-finder is not required to set aside its common knowledge and may consider the evidence in light of its observations and experiences in the affairs of life. Id.
Appellant cites Kelly v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), in support of her argument that the State failed to produce sufficient evidence to support the second-degree battery conviction. However, the facts in Kelly are easily distinguished from the facts in the case presently before the court. In Kelly, the victim was stabbed in the shoulder, but did not require medical attention for an injury described by one witness as a “fingernail scratch.”
We believe the facts found in the present case are more akin to those found in Hundley v. State, 22 Ark. App. 239, 738 S.W.2d 107 (1987). In Hundley, we upheld a battery conviction where the victim, a police officer, was stabbed completely through the shoulder with a three-inch knife and testified afterward that he felt faint, experienced chest pains and difficulty in breathing. This court held that these symptoms, in addition to evidencing substantial pain, showed the “temporary impairment of physical condition.” 22 Ark. App. at 243, 738 S.W.2d at 110.
In the present case, the victim testified that she was stabbed in the shoulder, back, and arm and that the knife penetrated the muscle in her shoulder area. Ms. Prime testified that she felt faint and “felt this warmness run down my body.” She also testified that she was scarred as a result of the attack, and that she continued to receive treatment for those scars. In light of the severity of the attack, we hold that the evidence is sufficient to sustain the conviction for second-degree battery.
With regard to the issue of the revocation, the standard of review is slightly different. In revocation cases, the trial court must find by a preponderance of the evidence that the defendant has failed to comply with the conditions of his probation before it may be revoked. Ark. Code Ann. § 5-4-309(d) (Repl. 1997). On appeal, we do not reverse the trial court’s decision unless it is clearly against the preponderance of the evidence. See Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990). In light of the evidence outlined above, we cannot conclude that the trial court erred in revoking appellant’s probation.
Affirmed.
Robbins, CJ., and Stroud, J., agree. | [
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D.P. Marshall Jr., Judge.
James King appeals his conviction for theft of property from his former employer, Harbor Freight Tools. King argues one point: that this brief record does not contain substantial evidence supporting his conviction.
The State had to prove that King knowingly took, or exercised unauthorized control over, a crane and two winches with the purpose of depriving Harbor Freight of its property. Ark. Code Ann. § 5-36-103(a)(l) (Supp. 2003). We will affirm King’s conviction if substantial evidence supports it. Substantial evidence compels a conclusion without any need to speculate. Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001). To implement our standard of review, we consider only the evidence that supports the conviction. Lukach v. State, 310 Ark. 119, 122, 835 S.W.2d 852, 853 (1992).
Viewed in the light most favorable to the State, here is the record. Belinda Strickland testified that she worked with King at Harbor Freight Tools on the day of the alleged theft. She and King’s best friend were working at the cash registers. King was working as the stock person, retrieving large items for customers from the back of the store. Near the end of the day, Strickland went to the restroom at the back of the store. When she returned, she “noticed something strange. . . . [T]he register is supposed to be on, . . . [and] I noticed the monitor was off, and [King] had just came up with a shop crane. . . . [T]hen a few minutes later, [King] pushed it out the door.” Strickland testified that the normal store procedure called for customers to show a receipt so the cashier will know that they paid for their purchase. She gave no testimony about whether a customer was present when King took the crane out; the reasonable inference from all her testimony about the crane, however, is that she saw no customer. She did not hear King or the other cashier ring up the crane.
Later, while the managers were in the back of the store, Strickland saw King push two winches out the door. She did not hear anyone ring up the winches on the cash register. She did not see any customers inside the store, nor did she see a receipt for the tools. She testified: “They wasn’t checked out. . . . And there wasn’t even a person there to get it. He just put — unless they was waiting on them outside the door, they wasn’t there, he just pushed it out.” Strickland reported what she had seen to her manager the next day. Sitting as the finder of fact, the circuit court convicted King of theft.
The State argues first that King did not preserve his sufficiency argument. We hold, however, that King’s motions for a directed verdict were specific enough. Ark. R. Crim. P. 33.1(b) and (c). Among other things, he argued:
Your Honor, I’m going to make a motion that the Court dismiss this on a directed verdict. I don’t believe that they have presented proof that would say that this employee of the store had stolen any merchandise. She doesn’t even say she saw him putting it anywhere. There was something that he was pushing outside, and there weren’t even any customers outside.
Nothing that the State has presented would offer proof, especially beyond a reasonable doubt, that Mr. King did something that he wasn’t supposed to do while he was working at his job on July 7th of2005.
We’ll rest, and I’ll again renew my motion for a directed verdict that the State hasn’t presented proof beyond a reasonable doubt from anybody at the store that could document what was removed, if anything, that wasn’t supposed to be taken from the store other than a witness that worked there who is not sure because she couldn’t say for certain whether or not property was stolen. She hadn’t taken an inventory, she doesn’t know if any thing was missing.
We’re asking the Court to find that there’s been no evidence that would convince the Court beyond a reasonable doubt that this man stole something from a store, especially of having any particular value that they’re alleging in this information.
His motions apprised the circuit court that King challenged the sufficiency of the State’s proof that King took or exercised unauthorized control over his employer’s equipment, which he routinely moved around. Williams v. State, 325 Ark. 432, 435-36, 930 S.W.3d 297, 298 (1996). The court denied both motions. King may therefore question on appeal the sufficiency of the evidence.
On the merits, the evidence against Kang is circumstantial. We recognize that circumstantial evidence has great probative value. Ross, 346 Ark. at 230, 57 S.W.3d at 156. Moreover, circumstantial evidence can be substantial enough to sustain King’s conviction if it excludes every other reasonable hypothesis except guilt. Ibid. Here it does not. We conclude that the circuit court had to speculate to convict King.
One of King’s jobs for Harbor Freight was to move large equipment. Strickland is not a store manager, nor is she in charge of the inventory. No manager or other store employee testified against King. The State presented no evidence, documentary or oral, of merchandise actually missing from the store’s inventory. Strickland acknowledged the possibility that there may have been a customer waiting outside the store for the winches. On this record, there are at least two reasonable hypotheses: King stole the crane and winches or this equipment was sold outside Strickland’s presence and she did not see the customers outside the store. The fact-finder had to speculate to choose between these reasonable hypotheses. Wortham v. State, 5 Ark. App. 161, 163-64, 634 S.W.2d 141, 142-43 (1982).
The State did not present substantial evidence that King committed theft. We therefore reverse the judgment and dismiss the case.
Bird and Heffley, JJ., agree.
SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING
Clint Miller, for appellant.
Dustin McDaniel, Att’y Gen., by: Farhan Khan, Deputy Att’y Gen., for appellee.
D.P. Marshall Jr., Judge.
In an earlier opinion, this court reversed James King’s theft conviction because it was not supported by substantial evidence. King v. State, CACR 06-1487 (Ark. App. 12 September 2007) (unpublished). The State now petitions for a rehearing to correct an alleged error of law in our decision. It asserts that the determination of whether circumstantial evidence excludes every other hypothesis consistent with the appellant’s guilt was solely for the fact-finder to decide. Carmichael v. State, 340 Ark. 598, 602, 12 S.W.3d 225, 227 (2000). And citing Martin v. State, 346 Ark. 198, 203, 57 S.W.3d 136, 139-40 (2001), the State argues that, as an appellate court, we were not permitted to second-guess the fact-finder’s decision.
Indeed, both Martin and Carmichael have statements that seem to immunize a fact-finder’s determination about the sufficiency of the evidence from appellate review. We are grateful to the State for exposing this murkiness in our law. Nevertheless we deny the State’s petition for rehearing because, after careful review, we conclude that settled law supports our decision in this case. There is a long line of precedent in which our courts have discussed the appellate standard for reviewing the judgment in a criminal case when the evidence is entirely circumstantial. We take this opportunity to confirm that standard of review.
I.
First, we note that Martin is about corroborating an accomplice’s testimony with circumstantial evidence. This is a different issue from the one we face in this case where no alleged accomplice testified. Martin’s issue, however, is related to the issue here. Martin relies on Johnson v. State for the proposition that an appellate court may not consider whether the evidence excludes every other reasonable hypothesis but that of guilt. 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990). That point of law comes from Cassell v. State, which correctly recites the substantial-evidence standard for reviewing a conviction based entirely on circumstantial evidence. 273 Ark. 59, 62, 616 S.W.2d 485, 486-87 (1981).
Cassell’s holding is good law. It follows the special rule we have for circumstantial-evidence convictions:
In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypotheses than that of guilt. When the circumstances are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient to support a conviction.
Ayers v. State, 247 Ark. 174, 176-77, 444 S.W.2d 695, 696-97 (1969). This standard for reviewing convictions is long-standing and sound:
In questioning the sufficiency of the proof counsel rely upon the rule, . . . that circumstantial evidence must be consistent with guilt and inconsistent with any other reasonable conclusion. That rule, ... is usually for the jury (or for the trial judge in a non-jury case), the test in this court being the requirement of substantial evidence. ... It is only when circumstantial evidence leaves the jury, in determining guilt, solely to speculation and conjecture that we hold it insufficient as a matter of law.
Brown v. State, 258 Ark. 360, 361, 524 S.W.2d 616, 616-17 (1975) (George Rose Smith) (citation omitted).
Though clear in its inception, this oft-repeated standard has been clouded by slight modifications in the language of the opinions over time. Cases such as Carmichael, on which the State now relies, correctly state the part of the standard identifying the fact-finder’s role, but they do not refer to the appellate court’s role in reviewing the judgment. These cases include phrases like: “Once a trial court determines the evidence is sufficient to go to the jury, the question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide.” Gregory v. State, 341 Ark. 243, 248, 15 S.W.3d 690, 694 (2000); see also Carter v. State, 324 Ark. 395, 398, 921 S.W.2d 924, 925 (1996); Abbott v. State, 256 Ark. 558, 561-62, 508 S.W.2d 733, 735 (1974); AMI — Crim. 106. This is a correct, but incomplete, statement of our law.
Carmichael and like cases do not include the important nuance that describes the appellate court’s role. A full statement of the standard of review must recognize both parts of the inquiry, the fact-finder’s role at trial and the appellate court’s role on appeal. In many opinions, the appellate court’s role is signaled by using the word “usually” when describing the fact-finder’s role. Brown, supra; Cristee v. State, 25 Ark. App. 303, 306, 757 S.W.2d 565, 567 (1988) (“whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury”)(emphasis added); see also Deviney v. State, 14 Ark. App. 70, 74, 685 S.W.2d 179, 181 (1985); Murry v. State, 276 Ark. 372, 378, 635 S.W.2d 237, 241 (1982); Smith v. State, 264 Ark. 874, 880, 575 S.W.2d 677, 681 (1979). In other opinions, however, the second part of the standard is simply omitted, implying that the fact-finder’s decision in a circumstantial evidence case is essentially immune from review. That is not the law. Our original standard of review remains intact.
II.
On appeal, the question is this: when the evidence is viewed in the light most favorable to the State, does substantial evidence support the judgment? When the State’s case is made of entirely circumstantial evidence, if it leaves the fact-finder to speculation and conjecture, then the evidence is insufficient as a matter of law. Deviney, 14 Ark. App. at 74, 685 S.W.2d at 181; Cristee, 25 Ark. App. at 306, 757 S.W.2d at 567; Abbott, 256 Ark. at 561-62, 508 S.W.2d at 735; Ledford v. State, 234 Ark. 226, 230, 351 S.W.2d 425, 427-28 (1961); Scott v. State, 180 Ark. 408, 412, 21 S.W.2d 186, 188 (1929). Two equally reasonable conclusions about what happened raise only a suspicion of guilt. On appeal, we may consider whether the record — viewed in the light most favorable to the State — presents this situation, and thus required the fact-finder to speculate to convict the defendant. This is the same question the circuit court faces in deciding whether to send the case to the fact-finder at trial. In asking this question we are not doing the fact-finder’s job. Instead, like the circuit court, we are weighing whether the evidence was strong enough to put the case in the fact-finder’s hands for decision. And we must set aside any judgment based upon evidence that required the fact-finder to rely on speculation and conjecture. Gregory v. State, 341 Ark. at 248, 15 S.W.3d at 694; Carter, 324 Ark. at 398, 921 S.W.2d at 925; Smith, 264 Ark. at 880, 575 S.W.2d at 681.
III.
In King’s case, we followed this standard of review. We did not consider any proof that supported King’s innocence. We recited the record in the light most favorable to the State. That record was simply insufficient. The State proved only that a co-worker saw King moving the store’s hardware out the front door. King’s job at the store, however, was to move hardware. Without more, the co-worker’s testimony does not prove that King was guilty of exercising unauthorized control over any store item with the purpose of permanently depriving the store of it. Ark. Code Ann. § 5-36-103(a)(l) (Supp. 2003). The circuit court, as the finder of fact, therefore had to speculate to find King guilty. This it may not do.
We stand by our reversal of King’s conviction. Petition denied.
Pittman, C.J., Hart,' Bird, Heffley and Miller, JJ., agree. | [
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John Mauzy Pittman, Chief Judge.
The appellee filed this J lawsuit alleging that he had an easement by prescription over a road on land owned by appellant and requesting an injunction to require appellant to widen a gate that he had constructed so as to permit easy access by large pickup trucks. After a hearing, the trial court granted a temporary injunction requiring the gate to be widened until a final decision. After briefs were submitted, the trial judge rendered a decision based on the evidence taken at the temporary injunction hearing and found that appellee had established an easement by prescription. On appeal, appellant contends that the trial court erred in so finding. We agree, and we reverse.
Our standard of review in equity cases is well settled:
We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. McWhorter v. McWhorter, 351 Ark. 622, 97 S.W.3d 408 (2003); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. Disputed facts and determinations of witness credibility are within the province of the fact-finder. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Owners Assoc. of Foxcroft Woods v. Foxglen, 346 Ark. 354, 57 S.W.3d 187 (2001); RAD-Razorback Ltd. Partnership v. B. G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). It is this court’s duty to reverse if its own review of the record is in marked disagreement with the chancery court’s findings. Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 702 S.W.2d 393 (1986) (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981)).
Carson v. Drew County, 354 Ark. 621, 624-25, 128 S.W.3d 423, 425 (2003).
Use of property may ripen into an easement by prescription, even if the initial usage began permissively, if it is shown that the usage continued openly for the statutory period after the landowner knew that it was being used adversely, or under such circumstances that it would be presumed that the landowner knew it was adverse to his own interest. Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991); Fields v. Ginger, 54 Ark. App. 216, 925 S.W.2d 794 (1996). The determination of whether the use of a roadway is adverse or permissive is a question of fact. Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 325 (1968).
Here, the evidence established that appellee had continuously used the roadway for a period in excess of seven years. However, there was no evidence, other than length of use, to establish that appellant knew or should have known that the use was hostile. The only evidence at trial was that appellee began using the road to access his property in 1961 and that there had been no objection. One other nearby landowner, Mr. Tuttle, testified that he had used the road since 1970. Significantly, even appellee did not testify that his use was adverse, hostile, or under a claim of right: the testimony at the emergency hearing was exclusively directed to the extent of the use rather than the nature of it. Appellee’s attorney himself stated at the beginning of the hearing that, when a full trial was held, appellee could prove that there were conditions putting appellant on notice that the initially permissive use had ripened into an adverse use. But no further proceedings were held, and no additional evidence was taken.
Time alone will not suffice to transform permissive use into legal title. McGill v. Miller, 172 Ark. 390, 288 S.W. 932 (1926). There must be some circumstance in addition to length of use to show that the use was adverse, and it was appellee’s burden to show that such circumstances existed. Several cases have found evidence of use by the general public to constitute such a circumstance. In McGill, this was found on the basis of the nature of the alleyway, which was marked by “the fences and a barn along the south side, which constituted an invitation to the public to use it as an alley.” Id. at 393-94, 288 S.W. at 934. Here, the way in question was over forested lands and was described as an old timber road. Easements were found to exist on such a road in Kimmer v. Nelson, 218 Ark. 332, 236 S.W.2d 427 (1951), and in Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). In Kimmer, however, there was evidence that the roadway had been in general public use to such an extent to support an inference that “those who utilized the way believed they had a right to do so, and their actions were open, notorious, and adverse.” 218 Ark. at 335, 236 S.W.2d at 428. Likewise, in Fullenwider, there was extensive evidence of use by the general public based on the testimony of a half-dozen witnesses who testified as to their own use of the road and that of the general public dating back to the days of travel by wagon and buggy. There is nothing in the record before us to support a finding of generalized public use for a long period of time or any “other circumstance” in addition to length of use that would satisfy appellee’s burden of showing that the use was adverse. Consequently, we reverse and remand for further consistent proceedings.
Reversed and remanded.
Gladwin and Robbins, JJ., agree. | [
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JOHN B. ROBBINS, Chief Judge.
This is the second appeal taken by appellant David Carter from orders issued by the Pope County Probate Court. Mr. Carter’s wife, Charlene, was involved in an automobile accident on September 1, 1997, and suffered injuries leading to her death on October 18, 1997. Mrs. Carter’s mother, appellee Glenda Meek, filed a petition for appointment as personal representative and probate of the decedent’s will on October 20, 1997, and on the same date the probate court appointed Mrs. Meek as executrix and admitted the will to probate. On December 10, 1997, the probate court issued an order approving Mrs. Meek’s petition to settle the wrongful-death claim resulting from her daughter’s death for $25,000.00.
In his first appeal, Mr. Carter challenged the December 10, 1997, order, arguing that the probate court erred in approving the settlement without first giving him notice. In Carter v. Meek (CA 98-264), an unpublished opinion delivered on October 28, 1998, we found that Mr. Carter was not entided to notice and affirmed the order approving the wrongful-death settlement. In the first appeal, Mr. Carter also contended that the probate court erred in failing to hold a hearing on his motion to set aside the order admitting the will to probate and appointing a personal representative, but we declined to address that issue because it was raised for the first time in his reply brief.
After we issue our mandate, the trial court heard Mr. Carter’s motion to set aside the order admitting the will to probate and appointing Mrs. Meek personal representative. During the hearing, Mr. Carter argued that the will should not have been admitted to probate because it was not proved by any accepted method set out in Ark. Code Ann. § 28-40-117 (1987), which provides in pertinent part:
(a) An attested will shall be proved as follows:
(1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or
(2) If only one 1 [sic] or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.
The probate court refused to set aside its prior order, and issued an order on May 24, 1999, which stated, “the Order Admitting Will to Probate is hereby affirmed and the Proof of Will and its attestation were adequately shown by the evidence herein.” Mr. Carter now appeals from the May 24, 1999, order, arguing that the trial court erred in admitting the will to probate because (1) the proponent failed to prove the will by either two attesting witnesses or two credible disinterested witnesses, and (2) there was no showing that any diligence was exercised in procuring the testimony of one of the attesting witnesses. We agree, and we reverse the order from which this appeal was taken.
The two attesting witnesses to the will were Rhonda Rugger and Gary Chapman, but only Ms. Rugger testified at the hearing. She stated that she was the attending nurse for Mrs. Carter when Mrs. Carter was hospitalized following the accident. At the request of Mrs. Carter, Ms. Rugger signed the will on September 10, 1997. According to Ms. Rugger, Mrs. Carter was lucid and fully understood what was happening and why she was executing a will. Ms. Rugger testified that she saw Mrs. Carter read and sign the will, but she could not recall who else witnessed the execution of the will. She stated, “I don’t remember whether another gentlemen was there.”
Mrs. Meek also testified at the hearing, and she stated that she was present when her daughter signed the will. Mrs. Meek further testified that she witnessed both Ms. Rugger and Mr. Chapman sign it.
We hold that the probate court erred in failing to set aside its order admitting the will to probate because there was complete lack of evidence as to whether Mr. Chapman was living at a known address within the United States, or whether any diligence was exercised in procuring his testimony at the hearing. We acknowledge that, during the hearing, Mrs. Meek’s counsel stated that Mr. Chapman had been subpoenaed for the hearing but failed to appear. However, this did not constitute evidence and there was no testimony as to any effort made on the part of the appellee to procure Mr. Chapman’s presence. Moreover, while the record reflects that Ms. Rugger was subpoenaed, it does not contain a subpoena issued for the appearance of Mr. Chapman. The provisions of section 28-40-117 require that the will shall be proved by the testimony of two attesting witnesses unless one or both witnesses are not living at a known United States address and capable of testifying, or cannot be secured by reasonable diligence, and in this case the appellee failed to present proof that either of these exceptions was applicable.
The proponents of a will have the burden of proving the genuineness of the signatures of the testatrix and the attesting witnesses, and once shown, the burden shifts to the contesting party to prove the signatures were forgeries. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960). Probate cases are tried de novo on appeal, but the decision of the probate court will not be reversed unless it is clearly against the preponderance of the evidence. Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988). In the instant case, the probate court’s decision that Mrs. Meek met her burden to prove proper execution of the will was clearly against the preponderance of the evidence and contrary to the requirements of section 28-40-117. Therefore, its order affirming the admission of the will to probate must be reversed.
Reversed and remanded for further action consistent with this opinion.
Bird and MEADS, JJ., agree.
The subject will was initially admitted to probate with the testimony of the required witnesses being presented by proof-of-will affidavits, as permitted by Ark. Code Ann. § 28-40-118(a) (1987). However, because a contest of the will was subsequently filed, § 28-40-118(b) required that the attesting witnesses appear and testify at the will-contest trial unless one of the exceptions listed in § 28-40-117(a) was applicable. | [
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JOHN Mauzy Pittman, Judge.
This case arose out of a dispute concerning the division of the parties’ retirement annuities. During their marriage, both of the parties were participants in federal retirement programs administered by the Office of Personnel Management. Their 1988 divorce decree included findings that the retirement plans were marital property, and that each of the parties was entitled to one-half of the other’s retirement benefits accrued during the marriage.
Appellee continued to work for the federal government until 1998, and his salary increased. When he retired, the Office of Personnel Management, interpreting the decree in light of federal regulations, included post-divorce salary increases in calculating appellant’s half of the benefits. Appellee was notified that he had the right to appeal that decision within thirty days. He did not do so. Instead, appellee filed a petition in chancery court to modify the 1988 divorce decree. The chancellor granted the petition and modified the decree to provide that post-divorce salary increases were to be disregarded in computing retirement benefits. From that decision, comes this appeal.
For reversal, appellant contends that the chancellor erred in denying her motion to dismiss for lack of jurisdiction, in admitting hearsay evidence, and in interpreting the 1988 decree. We reverse.
Appellant argues that the chancery court lacked jurisdiction under Rule 60 to modify the divorce decree ten years after it was entered. We agree. The divorce decree did not specify whether post-decree salary increases would be included in the calculation of appellant’s share of the retirement benefits. There were no changed circumstances since the decree was initially entered because even the federal regulations in force in 1988 provided that, unless the court directly and unequivocally ordered otherwise, a decree dividing an annuity on a percentage basis would be interpreted to entitle the former spouse to salary adjustments occurring after the date of the decree. See 5 C.F.R. § 831, Subpt. Q, App. A (1988). The 1992 amendments to the regulations added nothing contrary to this. Compare 5 C.F.R. § 838, Subpt. J., App. A (1999). There was no ambiguity regarding the legal effect of the language employed in the divorce decree at issue in the present case, which is thereby distinguished from Ford v. Ford, 30 Ark. App. 147, 783 S.W.2d 879 (1990). In the absence of either changed circumstances or ambiguity, the changes made to the decree were not clarifications of what the court originally intended, but instead modifications that changed the effect that the decree would have had pursuant to its express terms and the law extant at the time it was pronounced. See Reves v. Reves, 21 Ark. App. 177, 730 S.W.2d 904 (1987) (overruled on other grounds, 26 Ark. App. 37, 759 S.W.2d 570 (1988)) (Rule 60(a) allows a court only to correct the record to make it conform to action actually taken at the time, and does not permit a decree to be modified to provide for action that the court, in retrospect, should have taken, but which it in fact did not take); see also Tyer v. Tyer, 56 Ark. App. 1, 937 S.W.2d 667 (1997) (omission of a provision dividing husband’s retirement plan from a divorce decree was not a “clerical error” within the meaning of Rule 60(a)). No grounds for modifying the decree after ninety days appear of record, and we hold that the chancellor therefore lacked jurisdiction to do so. Ark. R. Civ. P. 60(c).
Even had jurisdiction been proper, we would still be required to reverse. The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Delta School of Commerce, Inc. v. Harris, 310 Ark. 611, 839 S.W.2d 203 (1992). In the present case, appellee admittedly did not pursue the administrative appeal that was available to him, and the review board could have provided complete relief by interpreting the decree in favor of appellee’s position. See generally 5 C.F.R. §§ 1201.3, 1201.113(e) (1999); see also Barr v. Arkansas Blue Cross, 297 Ark. 262, 761 S.W.2d 174 (1988). Therefore, appellee was not entitled to relief in chancery court. See Delta School of Commerce, Inc. v. Harris, supra.
Reversed.
Stroud and Neal, JJ., agree. | [
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ROBIN F. WYNNE, Associate Justice
__JjThe State of Arkansas appeals from a decision of the Washington County Circuit Court to grant a petition for postconviction relief alleging ineffective assistance of counsel filed by appellee Mario Thompson. The State makes the following arguments on appeal: (1) the circuit court clearly erred in ruling that trial counsel’s decision not to introduce proof of a guardianship of appellee by his parents was deficient performance; (2) the circuit court erred in finding that appellee established prejudice with respect to the guardianship; (3) the circuit court’s deficient-performance ruling with respect to certain decisions by trial counsel during the sentencing phase was clearly erroneous; and (4) as a matter of law, appellee cannot establish prejudice as to either of his sentences because he received less than the maximum sentence; alternatively, the circuit court’s rulings regarding prejudice were clearly erroneous. Because the trial court’s findings that ap-pellee established prejudice from his trial counsel’s allegedly deficient performance were clearly erroneous, we reverse and dismiss.
|?In May 2012, appellee was charged with two counts of sexual assault in the second degree for engaging in deviate sexual activity with a child under the age of fourteen on two separate occasions between 2007 and 2008. The investigation apparently began after appellee contacted the mother of one of the victims to apologize for having intercourse with her daughter. He filed a notice of intent to raise mental disease or defect as a defense. In a report dated October 26, 2012, Dr. Robin Ross concluded that appellee had a mental defect and lacked the capacity to assist in his defense. As a result, appellee was committed to the State Hospital pending restoration of his fitness to proceed. In November 2012, appellee’s parents, Lá-veme Thompson and Ledell Thompson, filed a petition to be appointed as appel-lee’s guardians. In support of their petition, they referenced Dr. Ross’s evaluation of appellee. The petition was granted by the probate division of the Washington County Circuit Court and appellee’s parents were appointed his permanent guardians.
Appellee was subsequently charged with rape of a second juvenile. Dr. Ross performed a second evaluation of appellee in January 2013 in connection with the rape charge. Following the second evaluation, Dr. Ross concluded that appellee was fit to proceed, had a mental defect, did not lack the capacity to appreciate the criminality of his conduct, and did not lack the capacity to conform his conduct to the requirements of the law. She explained the difference between her two evaluations of appellee as being the result of appellee giving better effort during the second evaluation, resulting in it better reflecting his actual level of functioning.
In July 2013, appellee was reevaluated by Dr. Michael Simon who concluded that, while appellee suffered from a mental defect, he was fit to proceed, he did not lack the | acapacity to appreciate the criminality of his conduct, did not lack the capacity to conform his conduct to the requirements of the law, and did not lack the capacity to form the required culpable mental state. Dr. Richard Back performed an additional evaluation of appellee at ■ the .behest of appellee’s trial counsel. Dr. Back concluded that appellee did not have the capacity to understand the proceedings against him, nor did he have the capacity to effectively assist his attorney on his behalf. Dr. Back also concluded that appellee had a mental defect, lacked the capacity for the culpable mental states required for the offenses charged, lacked the capacity to appreciate the criminality of his conduct, and lacked the capacity to conform his conduct to the requirements of the law. Following a hearing on appellee’s competency to stand trial, the trial court found that appellee was competent.
Appellee was tried on the charges of second-degree sexual assault and rape before a Washington County jury. Prior to trial, appellee’s counsel attempted unsuccessfully to be allowed to admit Dr. Ross’s October 2012. report without also being required to admit her January 2013 report. At trial, appellee pursued a defense of lack of capacity due to mental disease or defect. Appellee’s trial counsel did not introduce evidence of the guardianship obtained by appellee’s parents during the trial. Dr. Ross’s reports were not introduced; however, Dr. Back and Dr. Simon both testified. The jury convicted appellee on all counts.
During the sentencing phase, appellee’s parents testified regarding appellee’s intellectual disability as well as their fears of what would happen to him in prison. Trial counsel had been provided with a list of potential character witnesses for the sentencing phase that included a former principal, neighbors, and coworkers of appel-lee; however, he elected not to call any witnesses other than appellee’s parents. During its deliberations on Usentence, the jury asked two questions of the trial court regarding (1) who was to determine whether the sentences imposed ran concurrently or consecutively and (2) how much time appellee would have to serve on each offense before becoming eligible for parole. Although a model jury instruction covered each question, the trial court, with the assent of the parties, answered the questions in plain language and did not read the instructions to the jury.
The jury recommended sentences of ten years on each count of second-degree sexual assault and twenty-five years on the count of rape. The jury did not give a recommendation regarding whether the sentences should run concurrently or consecutively. The trial court imposed the sentences recommended by the jury. The trial court ordered that the sentences on the two counts of sexual assault run concurrently and that those sentences run consecutively to the sentence imposed for the sole count of rape, for a total sentence of thirty-five years’ imprisonment. Appellee appealed from his convictions to our court of appeals, which affirmed the convictions. Thompson v. State, 2015 Ark. App. 275, 461 S.W.3d 368.
Appellee subsequently filed original and amended petitions for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 in which he claimed that his trial counsel provided ineffective assistance. Among the myriad claims of ineffective assistance of counsel contained in the petitions were claims that the performance of appellee’s trial counsel was deficient because he (1) failed to introduce evidence of the guardianship during trial, (2) failed to call character witnesses during the sentencing phase, and (3) allowed the trial court to answer the jury’s sentencing-phase queries in plain language instead of insisting that the applicable jury instructions be provided and failed to ensure that the jury received |sStage Two Verdict Form 9318-VF, wherein the jury makes a recommendation as to whether sentences on multiple offenses are to be served concurrently or consecutively. Appellee made corresponding claims that he was prejudiced by trial counsel’s deficient performance.
At the hearing on the petitions, James E. Evans, Jr., appellee’s trial counsel, testified that he did not insist on the jury instruction on consecutive-vs.-concurrent sentences because he was satisfied with the trial court’s explanation to the jury. He also felt that the trial court’s explanation regarding transfer eligibility was satisfactory. He was also concerned that the jury might not understand the instructions. Evans stated that he did not want Dr, Ross’s second report to come in at trial because of the indication in that report that appellee did not give full effort during the first examination. There were also statements in the report indicating that appellee denied having committed the offenses, which Evans felt was inconsistent with a defense of mental defect. He testified that he was afraid Dr. Ross would “gut” the defense if she testified at trial. According to Evans, he did not introduce the guardianship at trial because he did not think it was relevant. He stated that he did not call additional character witnesses because he was concerned that it might be damaging to the mental-defect defense to have a group of people referencing things that appellee was capable of doing. He was also concerned about what might happen when the State confronted the witnesses with the acts appellee had just been convicted of committing.
Following the hearing, the trial court entered an order granting the original and amended petitions for postconviction relief. Relevant to the points on appeal, the trial court made the following findings: (1) there was no valid reason not to introduce the guardianship | Bat trial, and introducing the documents “could have significantly impacted the jury’s opinion of [appellant’s] diminished capacity”; (2) counsel was ineffective for failing to interview or call certain mitigation witnesses during the sentencing phase, and if he had done so “the outcome of the sentencing may well have been different”; and (3) counsel’s failure to require that the jury be read the sentencing-phase instructions applicable to their queries to the trial court and ensure that the jury received form 9318-VF constituted ineffective assistance of counsel and that it was unable to say that counsel’s failures did not affect the outcome of the sentencing phase. This appeal followed.
This case is properly before us because post-conviction proceedings under Arkansas Criminal Procedure Rule 37 are civil in nature, and therefore the State is entitled to appeal from an order granting post-conviction relief. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). We will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Id. A trial court’s finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact-finder must be considered. State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001). The resolution of credibility issues is within the province of the trial court. See Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).
Pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death | sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
The State first contends that the trial court erred in finding that counsel’s decision not to introduce evidence of the guardianship constituted ineffective assistance of counsel and that appellee was prejudiced by counsel’s decision. We agree with the State that the trial court clearly erred in finding that appellee was prejudiced by the decision not to introduce evidence of the guardianship. If anything, counsel’s decision aided the defense. The contention in the guardianship petition that the guardianship was necessary was premised solely on the findings made by Dr. Ross following her initial evaluation of appellee. Appellee’s Rule 37 petition and the trial court’s findings neglect the fact that this was not Dr. Ross’s only evaluation of appellee. The second evaluation, conducted three months later, resulted in Dr. Ross reaching completely different conclusions regarding appellee’s competence and capacity. Dr. Ross could only explain the stark difference as being due to appellee not giving full effort during the first evaluation. Evans noted the potentially damaging nature of Dr. Ross’s second report when he expressed concern that she would “gut” the defense if she testified at trial. He also attempted, unsuccessfully, to | spersuade the trial court to allow him to introduce the first evaluation without being required to introduce the second. The State correctly notes that introducing the guardianship petition and order at trial would have opened the door for the State to admit the second evaluation, a hazard Evans wisely avoided.
The Supreme Court of the United States has noted that, in determining whether a defendant is prejudiced by counsel’s decision not to introduce certain evidence, it is necessary to consider all of the relevant evidence the jury would have had before it as a result of a decision to introduce the evidence, not solely the evidence the defendant claims was mistakenly kept out. See Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009). Here, introducing the guardianship evidence would have all but required the State to introduce the second report. Appellee’s entire defense at trial was that he did not know what he was doing when he committed the sexual assaults and the rape. Allowing before the jury evidence that appellee attempted to influence the outcome of a capacity evaluation would have completely obliterated appellee’s defense. While ap-pellee and the trial court note at length that counsel did not introduce the evidence because he did not believe it was relevant, the reasoning behind the decision is irrelevant when considering the issue of prejudice. Counsel’s actions in declining to introduce evidence of the guardianship kept the State from introducing potentially devastating evidence in response. Therefore, the trial court clearly erred in finding that appellee was prejudiced by counsel’s decision.
IflNext, the State argues that the trial court’s findings that counsel provided ineffective assistance during the sentencing phase of the trial and that appellee was prejudiced by the deficient performance were clearly erroneous. We agree with the State that the findings of prejudice by the trial court were clearly erroneous. Sexual assault in the second degree is a Class B felony. Ark. Code Ann. § 5—14—125(b)(1) (Repl. 2013). The sentencing range for a Class B felony is not less than five years nor more than twenty years. Ark. Code Ann. § 5—4—401 (a)(3) (Repl. 2013). On the counts of sexual assault in the second degree, appellee was sentenced to ten years’ imprisonment, which is less than the maximum. Rape is a Class Y felony. Ark. Code Ann. § 5-14-103(c)(l) (Repl. 2013). The sentencing range for a Class Y felony is not less than ten years nor more than forty years. On the charge of rape, appellant was sentenced to twenty-five years’ imprisonment, which is also less than the maximum.
We have held that a sentence less than the maximum sentence for an offense cannot show prejudice from the sentence itself. State v. Smith, 368 Ark. 620, 249 S.W.3d 119 (2007) (citing State v. Franklin, 351 Ark. 131, 89 S.W.3d 865 (2002)). As appellee was sentenced to less than the maximum on all charges, there must be something more than the sentence received in order for him to demonstrate prejudice. However, appellee has directed us to nothing else to indicate that he was prejudiced. Appellee contended in his petition and at the hearing that additional penalty-phase witnesses were necessary to humanize appellee and demonstrate, essentially, that he is a good guy who had made mistakes. Obviously, the jury felt some compassion for appellee, as it recommended sentences that were far below the maximum that could have been imposed. Both appellee and the trial court allude to the possibility that appellee could have been sentenced to either | ina fine or probation if counsel had called additional witnesses during the penalty phase. With regard to the conviction for rape, that would not have been an option, as a sentence to a term of years of imprisonment is required following a conviction for that Y felony. Ark. Code Ann. §§ 5-4-301 and 5-4-104(c) (Supp. 2015). The trial court’s conclusion that appellee was prejudiced by counsel’s decision not to call additional witnesses during the penalty phase is clearly erroneous.
The failure to demand that the exact sentencing-phase instructions be read to the jury did not prejudice appellee, as there is no contention that the trial court’s statements to the jury contained any inaccurate statements of the law. Whether ap-pellee was prejudiced by counsel’s failure to request that form 9318-VF be submitted to the jury is a somewhat closer question. Clearly, the issue of consecutive-vs-concurrent imposition of sentence was on the jury’s mind, as it inquired about it to the trial court. The jury gave no recommendation, arguably because form 9318-VF was not submitted, and the jury had nowhere else on the sentencing forms to make a recommendation. As such, it is impossible to know what the jury would have recommended. However, the decision whether to run the sentences concurrently or consecutively rests firmly with the trial court. In this case, the trial court’s statements during pronouncement of sentence indicate that appellee was not prejudiced by trial counsel’s decisions regarding the sentencing-phase instructions and verdict forms. In stating that the sentences were to run consecutively, the trial court said,
Mr. Thompson, this is another situation, a very troubling situation that I see all too often. I understand you have some limitation, that was made clear during the trial, but the limitation described by the psychologists, in my judgment is absolutely no excuse for the terrible things you did to those children. You, in .many respects, were in a position of trust and authority and you abused that position, and you took advantage of these children. And you, at some point in the future will get out of Imprison but I’m doubtful that these children will ever fully recover from the terrible things that you did to them. And that’s the real tragedy of this case. They’ll probably never, ever get over it. So you need to think about that.
Given the trial court’s statements and the fact that the trial court would not have been bound by any sentencing recommendation from the jury, appellee has not demonstrated that, had counsel ensured that form 9318-VF was given to the jury and, had the jury recommended that the sentences for rape and sexual assault in the second degree be served concurrently, the trial court would have ordered the sentences to be served in that manner. As such, the trial court’s finding of prejudice is clearly erroneous.
Reversed and dismissed.
Hart, J., dissents.
. We note that appellee did not assert in his petition that the failure to introduce Dr. Ross’s initial evaluation into evidence at trial constituted ineffective assistance of counsel, | [
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PER CURIAM
| petitioner Jeffery D. Morgan, who is incarcerated in a facility located in Lee County, filed a petition for writ of habeas corpus in the Lee County Circuit Court. On May 23, 2016, the circuit court entered an order that denied the petition. On June 13, 2016, Morgan filed a motion requesting an extension of time in which to file a “Petition for Reconsideration,” and on July 7, 2016, Morgan filed a motion for reconsideration and a motion for extension of time to file a notice of appeal. The circuit court entered orders denying the motion for reconsideration and the motion for extension of time on August 8, 2016, and, on the same date, Morgan filed his notice of appeal of the May 23, 2016 order. When the record was tendered to this court, our clerk declined to lodge it because the notice of appeal was not timely. Morgan filed the instant motion requesting permission to proceed with a belated appeal of that order. We dismiss the motion because it is clear that the appeal is without merit.
laUnder Arkansas Rule of Appellate Procedure-Civil 4(a) (2016), Morgan was required to file his notice of appeal within thirty days of the date of the entry of the order to be appealed unless an extension of time was granted in accord with the rule. This thirty-day period expired on Wednesday, June 22, 2016. Morgan appears to contend that, because he filed a motion for reconsideration and a motion for extension of time within thirty days after the order denying the habeas petition had been entered and no order was entered ruling on those two motions within that same thirty days, his notice of appeal was timely.
A petitioner has the right to appeal an adverse ruling on a petition for postconviction relief, including a petition for writ of habeas corpus. Halfacre v. Kelley, 2016 Ark. 71, 2016 WL 675464 (per curiam). Yet an appeal of the denial of postconviction relief, including an appeal from an order that denied a petition for writ of habeas corpus, will not be permitted to go forward where the appeal is without merit. Early v. Hobbs, 2015 Ark. 313, 467 S.W.3d 150 (per curiam). We need not consider Morgan’s claims concerning the timeliness of the notice of appeal be cause the claims raised in his habeas petition did not state a ground for issuance of the writ. Henington v. State, 2016 Ark. 405, 503 S.W.3d 751 (per curiam).
Morgan was convicted of kidnapping and second-degree battery, and he was sentenced as a habitual offender to concurrent terms of life and 180 months’ imprisonment respectively. This court affirmed. Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004). In his habeas petition, Morgan raised five claims, all concerning his contention that his sentences were inappropriately enhanced under the applicable statute, specifically Arkansas Code Annotated section 5-4-501(b) (Supp. 2001).
|sA writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). Unless the petitioner in proceedings for a writ of habeas corpus can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416, 2013 WL 5775566.
Morgan did not invoke Act 1780 in his habeas petition. He alleged that section 5-4-501(b) is unconstitutionally vague in that it fails to adequately define a violent crime, that out-of-state convictions were imper-missibly used to enhance his sentences, that the judgment was facially invalid because the statute is unconstitutionally vague in that it references section 5-4-501(d), that he was not given a hearing outside of the jury’s presence concerning which prior convictions qualified as a crime of violence, and that one of the prior convictions used to enhance his sentence was not a violent crime as defined under section 5-4-501(c) or (d). None of these claims established a factual basis to support | ¿Morgan’s allegations that the trial court lacked jurisdiction or that the commitment was facially invalid.
Habeas corpus proceedings do not afford a prisoner an opportunity to retry his case, and claims of trial error are not within the purview of the remedy. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). To the extent that Morgan’s claims alleged that the proof used to establish his status as a habitual offender was insufficient or that he was not provided an adequate hearing, those claims were not cognizable. Bunch v. Kelley, 2016 Ark. 58, 2016 WL 552593 (per curiam).
Morgan also alleged in his petition that his sentences were illegal because of the enhancements, and a meritorious claim of an illegal sentence does fall within the purview of the habeas remedy. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). This court views an allegation of a void or illegal sentence as being an issue of subject-matter jurisdiction. Walden v. State, 2014 Ark. 193, 433 S.W.3d 864. When a habeas petition alleges an illegal sentence, we review the mat ter of the trial court’s subject-matter jurisdiction to enter the sentence regardless of whether an objection was made to the trial court. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003). Indeed, detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. Id. If the petitioner does not show that, on the face of the commitment order, there was an illegal sentence imposed, however, the petitioner’s claim is not one that implicates the jurisdiction of the court to hear the case, and the claim is not one that is cognizable. Fields, 2013 Ark. 416.
|Jn Arkansas, sentencing is entirely a matter of statute, and this court has consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Philyaw, 2015 Ark. 465, 477 S.W.3d 503. Morgan’s life sentence for kidnapping fell within the statutory range for that charge—which, as Morgan acknowledges, was a Y felony—regardless of whether the sentence was enhanced. Because the sentence fell within the sentencing range for the charge, Morgan’s argument that enhancement of the sentence was illegal fails as to that charge. See Kelley v. State, 2015 Ark. 486, 2015 WL 9259398 (per curiam).
As to Morgan’s remaining arguments that his sentence for second-degree battery was illegal, this court has previously considered and rejected the argument Morgan makes that the habitual-offender statute contains a vague definition for a “serious felony involving violence” because the statute lists specific felonies. Wooten v. State, 2016 Ark. 376, 502 S.W.3d 503 (per curiam) (considering a more recent version of the statute containing the same language at issue).
As in Wooten, Morgan also alleged that the statute was unconstitutionally applied because his prior convictions included out-of-state felony convictions, and the statute did not clearly define a “violent felony” with regard to out-of-state felony convictions. But the definition of a violent felony for an out-of-state conviction was not needed in Morgan’s case to determine that his sentence should be enhanced.
Morgan’s sentence for second-degree battery was enhanced under section 5-4-501(b). That provision of the statute does refer to the list of felonies in section 5-4-501(c) and (d) to set out the criteria that must be met for an enhanced sentencing range in section | fi5-4-501(b)(2), but the prior convictions that may be used for enhancement under section (b) are four or more prior felonies that are not enumerated in section 5-4-501(c) and (d). Morgan appears to have misconstrued the provision as requiring that these prior convictions be violent felonies.
Morgan provided a list of six prior convictions that he indicated were used for enhancement purposes, and he contended that the two prior out-of-state convictions and one other prior conviction could not be considered violent felonies. He is correct, and in fact, none of the six prior convictions were included in the felonies that are enumerated in section 5-4-501(c) and (d). All six would therefore fall within the criteria to serve as prior convictions for enhancement listed in section 5—4—501(b). Even accepting Morgan’s allegations that some of the prior convictions did not qualify as violent felonies under the statute, he did not demonstrate that his sentence was illegal or that the judgment was facially invalid.
Motion dismissed.
. Morgan alleged that the trial court "lacked the scientific predicate” before explaining the basis for his first vagueness claim, but he did not explain this statement or request that scientific testing be performed. | [
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PER CURIAM
| petitioner, Dennis Hutchinson, was convicted by a jury of second-degree murder and was sentenced under a firearm-enhancement provision to an aggregate term of 540 months’ imprisonment. His conviction and sentence were affirmed by the Arkansas Court of Appeals. Hutchinson v. State, 2010 Ark. App. 235, 2010 WL 816253.
Now before this court are Hutchinson’s pro se application to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis and a motion for appointment of counsel. For the reasons set forth below, we deny the petition, and the motion for appointment of counsel is therefore moot.
We first note that a petition filed in this court for leave to proceed in the trial court where the judgment was entered is necessary because the trial court can entertain a petition |afor writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Roberts v. State, 2013 Ark. 56, at 11, 425 S.W.3d 771, 778.
The function of the writ of error coram nobis is to secure relief from a judgment rendered while there existed some fact that would have prevented the rendition of the judgment had it been known to the trial court and which, through no fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, at 5, 354 S.W.3d 61, 65. A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 42-43. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id. We have held that a writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id.
Before addressing the merits of Hutchinson’s claim for relief, it is necessary to review the evidence presented at trial in support of his conviction for the murder of Richard Ivey, who was the husband of Hutchinson’s codefendant, Brenda Ivey. A review of the trial transcript reveals that at the time of the murder, Brenda had been living with Hutchinson for several months. Brenda testified at trial that Hutchinson had encouraged her to lure Richard to Hutchinson’s home, claim that Richard had broken into the home with the intent to harm her, and assert that she had acted in self-defense when Richard was killed. |3Evidence introduced at trial demonstrated that Brenda and Richard had exchanged several text messages prior to the murder, wherein Brenda informed Richard that she intended to reconcile with him and, to that end, had asked Richard to come to Hutchinson’s home to help move her belongings. According to Brenda, when Richard walked into the house, she shot and wounded him, and Hutchinson prevented Richard from escaping and delivered the fatal gunshot. Brenda’s testimony was corroborated by Richard’s two co-workers, Saul DeLeon and Johnathon Mahoney, who, at Richard’s request, had followed him in a separate vehicle to Hutchinson’s home to help with the move. DeLeon and Mahoney testified that they watched as Richard readily entered the house, and, as they waited for Richard to come back outside, they heard a popping noise and then observed Hutchinson step out of the front door, pick up a shovel and break a window. The crux of Hutchinson’s defense at trial and on appeal was that Hutchinson had acted in self-defense. See Hutchinson, 2010 Ark. App. 235, at 3 (rejecting Hutchinson’s argument that the jury should have been instructed on the existence of a presumption that a person may use force to defend himself in his home unless that presumption was overcome by clear and convincing evidence).
In support of his claim for coram-nobis relief, Hutchinson now contends that he was incompetent at the time of trial and recounts a history of child abuse and posttraumatic stress disorder (PTSD) stemming from his military service in the Vietnam War. According to Hutchinson, physicians with the Veterans Administration diagnosed him with PTSD, placed him in a mental ward, and determined that he was totally disabled as a result of the diagnosis. Hutchinson further contends that preceding the murder, he began to experience flashbacks and bouts of paranoia, which he attempted to alleviate with the use of methamphetamine. LRather than alleviate his symptoms, Hutchinson contends that his drug use exacerbated his PTSD, making the flashbacks more frequent and prolonged. Finally, Hutchinson states that in the months leading up to his trial, he suffered from severe depression, difficulty concentrating, suicidal ideation, and paranoia, and he was placed in the medical ward of the county jail as a result of his mental impairment.
When claiming insanity as a ground for the writ, the burden is on the petitioner who claims mental illness to overcome the strong presumption that the judgment was valid. Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). Information that a petitioner either could have known, or did know, at the time of trial does not provide grounds for issuance of a writ of error coram nobis. Rodgers v. State, 2013 Ark. 294, at 3, 2013 WL 3322344 (per curiam).
The trial record demonstrates that Hutchinson did not request a mental evaluation or raise the issue of mental competence at the time of his trial. The record further reveals that during the sentencing phase, mitigation testimony was provided that Hutchinson suffered from PTSD and had been found to be 100 percent disabled as a result of that diagnosis. Clearly, Hutchinson and his trial counsel were aware of Hutchinson’s mental history at the time of trial; therefore, Hutchinson does not present facts sufficient to demonstrate that there was information not known at the time of trial, or which could not have been known at the time of trial, to establish that he was insane and incompetent to proceed. Williams v. State, 2016 Ark. 92, at 3, 485 S.W.3d 254, 256.
Furthermore, we are not required to accept the allegations in a petition for writ of error coram nobis at face value. Goff v. State, 2012 Ark. 68, at 3, 398 S.W.3d 896, 898 (per | Bcuriam). Hutchison’s allegations are conclusory, and he fails to set forth sufficient facts demonstrating that his alleged mental impairment rendered him incompetent to stand trial. A criminal defendant is presumed to be competent to stand trial and has the burden of proving otherwise. Thessing v. State, 365 Ark. 384, 390, 230 S.W.3d 526, 532 (2006). A circuit court is not required to hold a hearing on a criminal defendant’s competency sua sponte unless there is reasonable doubt about the defendant’s competency. Whitham v. State, 2011 Ark. 28, at 3-4, 2011 WL 291873; Davis v. State, 375 Ark. 368, 291 S.W.3d 164 (2009). Conclusory statements fall far short of meeting a petitioner’s burden of showing that he was not competent to stand trial. Webb v. State, 2009 Ark. 550, at 6, 2009 WL 3681656 (per curiam). Hutchinson does not point to evidence presented to the court that he was not fit to proceed. Id.
Furthermore, Hutchinson failed to sufficiently demonstrate that he acted with diligence in pursuing his claim. Echols v. State, 354 Ark. 414, 419, 125 S.W.3d 153, 157, (2003). Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Id. In the absence of a valid excuse for delay, the petition will be denied. Id. This court has held that due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) he could not have, in the exercise of due diligence, presented the fact at trial; or (3) upon discovering the fact, did not delay bringing the petition. Id. As stated, Hutchinson was aware of the facts he now alleges as a basis for his claim of incompetence, he failed to raise a competency issue at the time of trial, and he waited six years after his conviction had been affirmed on appeal to bring this petition. In view of the above, Hutchinson’s allegations of incompetence fail to establish that there existed a fundamental error of fact extrinsic to the record that would | (¡have prevented the rendition of the judgment had it been known to the trial court and which, through no fault of the defendant, was not brought forward before rendition of the judgment.
Petition denied; motion moot. | [
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ROBERT J. GLADWIN, Judge
hln this third attempt to appeal the Randolph County Circuit Court’s order of December 26, 2013, which granted summary judgment to appellees Ava and Richard Leutholt, individually, and Leutholt Properties, LLC, appellant Mary Collins argues that the trial court erred in granting judgment as a matter of law. We agree and reverse and remand for further proceedings.
On January 21, 2009, Collins entered into a contract to purchase a home at 1104 Grand Street in Pocahontas, Arkansas, from Leutholt Properties, LLC, for $24,000, of which Collins paid $10,000 down. Ava and Richard Leutholt are members of the LLC. The contract obligated Collins to “obtain and maintain an insurance policy against loss due to fire or other hazard with a loss payable clause in favor of Seller herein in an amount equal to the outstanding principal balance.” On the same day that the contract was executed, Collins paid the Leutholts $165 and received a receipt purported to be signed by Ava | pLeutholt stating that she had received from Collins $165 for homeowner’s insurance for one year, January 2009 through December 2009. The LLC maintained insurance on the home in a policy that covered several properties owned by the LLC.
On November 18, 2009, the home was destroyed by fire. Thereafter, the LLC filed an insurance claim and received $40,000 from Cameron Mutual Insurance Company. On November 15, 2010, Collins filed a complaint against Ava and Richard Leutholt and the LLC seeking damages for conversion by claiming that the insurance proceeds, above the amount owed on the property as principal on the contract, belonged to her. Attached to the complaint were exhibits A (a copy of the land-sale contract) and B (a copy of the alleged receipt for $165 that was written and signed by Ava Leutholt). The Leutholts timely answered and counterclaimed, alleging that Collins had failed to (1) maintain insurance on the premises; (2) pay the real-estate taxes; (3) protect the property from waste; and (4) make payments. Consequently, the Leutholts treated the sums paid as rent and chose to terminate the contract, and they asked the court to quiet title.
On July 16, 2013, the Leutholts filed a motion for summary judgment, alleging that Collins had never obtained an insurance policy but that the LLC had obtained and maintained a policy, and it was attached as an exhibit to the motion. The Leutholts alleged that the house had burned, they had filed an insurance claim, the proceeds of the policy had been paid to the LLC as the named insured, and there had been no conversion of property belonging to Collins. Collins responded that under the contract, she had paid $165 to the Leutholts on January 21, 2009, for one year of homeowner’s insurance on the house. She alleged that, after the fire destroyed that house, the Leutholts had received the insurance ^proceeds but did not pay any money to her after deducting the amount she owed them for the house, thereby converting the insurance proceeds to their own use. In her brief in support of her response to the motion for summary judgment, Collins contended that the Leu-tholts’ argument, that the insurance money was theirs because the contract for insurance was between the insurance company and the LLC, goes against the terms of the contract the LLC had with Collins and the receipt she had been given for the $165 payment for homeowner’s insurance. Collins claimed that she had paid $10,000 on the contract, which left a balance of $14,000 owed to the Leutholts. Allowing the Leutholts to keep the $40,000 in insurance proceeds, on a house that was sold for $24,000, would allow them to be unjustly enriched. She argued that the Leutholts, as owners of the LLC, received the proceeds and were liable for conversion.
On October 21, 2013, a hearing was held on the summary-judgment motion, and on December 26, 2013, the trial court entered an order granting the Leutholts’ motion, finding that Collins’s complaint had alleged conversion; there had been an insurance policy on the house; the house had burned; the insurance company had paid the $40,000 in benefits to' the LLC; the money paid’ had been the LLC’s sole property; and, thus, no conversion had occurred.
Collins timely filed her notice of appeal and designation of record on January 21, 2013. On June 18, 2014, this court dismissed Collins’s appeal and remanded the case to the trial court for lack of a final order, because the Leutholts’ counterclaim had never been 14addressed below. Following remand, Collins filed a motion to amend or alter the order on February 2, 2015, alleging that the trial court had jurisdiction to amend based on Arkansas Rule of Civil Procedure 54(b)(2) (2015), because no final order had been filed. In her brief in support, Collins argued that the trial court should find that the Leutholts held her money in a constructive trust. The Leutholts responded that Arkansas Rule of Civil Procedure 60 (2015) controlled because more than ninety days had passed since the entry of the judgment Collins sought to amend. However, the Leutholts claimed that none of the bases on which to grant a motion to vacate were applicable. Ark, R. Civ. P. 60(c). No order was filed addressing Collins’s motion to amend or alter the order.
The Leutholts filed a motion to voluntarily dismiss their counterclaim, and the trial court entered an order dismissing the Leutholts’ counterclaim without prejudice on March 18, 2015. Collins timely filed her notice of appeal and designation of record on March 24, 2015. Again, this court dismissed the appeal for lack of a final order, holding that the compulsory counterclaim that was dismissed without prejudice was subject to being refiled at a later date. Following the second remand, the trial court filed an amended order on March 17, 2016, granting summary judgment with a certificate attached in compliance with Arkansas Rule of Civil Procedure 54(b). Collins filed a timely notice of appeal on March 21, 2016, and this appeal followed.
| sin addressing a summary-judgment order on appeal, our supreme court recently stated,
A trial court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793. Summary judgment is not proper, however, where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable minds might differ. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). In Flentje v. First Nat. Bank of Wynne, 340 Ark. 563, 569-70, 11 S.W.3d 531, 536 (2000) (internal citations omitted), we explained, “we only approve the granting of the motion when the state of the evidence as portrayed by the plead- mgs, affidavits, discovery responses, and admission on file is such that the non-moving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. However, when there is no material dispute as to the facts, the court will determine whether reasonable minds could draw reasonable inconsistent hypotheses to render summary judgment inappropriate.” On appeal, we view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811.
Town of Lead Hill v. Ozark Mountain Reg'l Pub. Water Auth., 2015 Ark. 360, at 3, 472 S.W.3d 118, 121-22.
Viewing the evidence in the light most favorable to herself, Collins contends that the trial court erred in granting summary judgment. The Leutholts argue that the trial court did not err in granting summary judgment, because Collins alleged one cause of action—conversion. Conversion is wrongful possession of another’s property; an act of distinctive dominion over the property of another. Dillard v Wade, 74 Ark. App. 38, 45 S.W.3d 848 (2001). The Leutholts claim that the proceeds belonged to their LLC because it was the named insured on the policy. They assert that the trial court did not err in so finding. Also, the Leutholts assert that the issue of constructive trust was not ruled on by the trial court | fiand was therefore not preserved for appellate review. Abramson v. Eldridge, 356 Ark. 321, 149 S.W.3d 880 (2004).
However, we do not reach the Leutholts’ arguments concerning constructive trust because we hold that there remain to be answered genuine issues of material fact. The receipt, signed by Ava Leutholt and purported to evidence proof that Collins paid for the insurance coverage prescribed by the contract, was never acknowledged or addressed by the trial court. Whether Collins was entitled to the insurance proceeds must be resolved by the trial court’s determination of some material questions of fact that remain unanswered in light of the receipt. Viewing the evidence in the light most favorable to Collins and resolving all doubts and inferences against the Leutholts, we hold that the trial court’s order granting summary judgment was in error. We reverse and remand for a determination of whether the signed receipt entitled Collins to the insurance proceeds as set forth in the contract between the parties.
Reversed and remanded.
Gruber, C.J., and Brown, J., agree.
. Mary Collins v. Ava Eugenia Leutholt, Richard Michael Leutholt, and Leutholt Properties, LLC, CV-14-225, was dismissed by order of this court filed June 18, 2014, for lack of finality due to an unaddressed counterclaim and no Rule 54(b) certificate. See Ark. R. Civ. P. 54(b) (2014).
. Collins v. Leutholt, 2015 Ark. App. 664, 2015 WL 7281626. | [
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PER CURIAM
hln 2007, a jury found petitioner Myron Newjean Anderson, Jr., guilty of five counts of a terroristic act and one count of being a felon in possession of a firearm. The jury imposed an aggregate sentence of 1320 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Anderson v. State, CR-08-458, 2009 WL 196315 (Ark. App. Jan. 28, 2009) (unpublished) (original docket no. CACR08-458). Anderson timely filed a petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37.1 (2008) that the trial court denied. Anderson lodged an appeal from the denial, and this court dismissed the appeal. Anderson v. State, 2009 Ark. 493, 2009 WL 3235533 (per curiam). On December 7, 2016, Anderson filed this pro se petition seeking to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.
The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
IsAnderson seeks leave to proceed in the trial court for a writ of error coram nobis contending there was prosecutorial misconduct based on the State’s reliance on perjured or false testimony. He further contends that the State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
During Anderson’s trial, evidence established that he was a felon, that he was in the nightclub shooting a firearm on the night in question, and that seven people were shot. Anderson, CR-08-458, slip op. at 1. On appeal, Anderson argued that the “testimony from the witnesses was so inconsistent that it was unreliable.” Id. Anderson failed to cite to any authority or advance any argument for the untenable assertion that mere inconsistency in the testimony of different witnesses, in and of itself, so destructive of the jury’s ability to discern the truth that it somehow renders otherwise-sufficient evidence insufficient to support a criminal conviction, and the court of appeals did not address his directed-verdict-motion argument on appeal. Id.
Here, Anderson makes conclusory claims that the prosecutor permitted false testimony by Courtney Hampton, Reco Webb, Harold McDade, Scott Williams, and Billy Ray Brown to go “uncorrected[.]” While arguing that the identity of the perpetrator was at issue during the investigation and trial, Anderson contends that, because the State’s case was entirely based on the witnesses’ testimony, it was “more likely than not that no reasonable [j]uror would have found petitioner guilty beyond a reasonable doubt.” He fails to argue relief warranted by issuance of the writ.
| ¿The writ of error coram nobis does not lie to correct an issue of fact that has been adjudicated, even though wrongly determined, or for alleged false testimony at trial. Chatmon v. State, 2015 Ark. 417, 473 S.W.3d 542 (per curiam). When an issue could have been raised at trial or is cognizable in some other legal proceeding, that issue is not cognizable in a coram nobis proceeding. Id. Allegations of prose-cutorial misconduct, excepting Brady violations, or false testimony are the type that could have been raised at trial, and the claims are therefore not the type that provide grounds for the writ. Id. Moreover, to the extent that Anderson’s assertions concerning the allegedly false testimony could be considered claims that the evidence was insufficient to sustain the judgment, issues concerning the sufficiency of the evidence or the credibility of the witnesses are not cognizable in error co-ram nobis proceedings. Pinder v. State, 2015 Ark. 423, 474 S.W.3d 490 (per cu-riam).
Anderson contends that the State “suppressed the [tjerroristic [a]ct elements with[-] holding the true nature of the charges against [him]” resulting in a Brady violation. Specifically, he contends that the terroristic-act statute’s language is inconsistent. He argues that section “(A)(1)” states that one commits a terroristic act when he or she “shoots at or in any manner projects an object, with the purpose to cause injury to another person or other person or damage to property, at a conveyance which is being operated or which is occupied by another person or persons” which is inconsistent with section “(A)(1)(a),” which “requires shoots at or in any manner projects an object with the purpose to cause injury to another person.”
UA Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286; see Howard, 2012 Ark. 177, 403 S.W.3d 38.
A person commits a terroristic act when, while not in the commission of a lawful act, “he or she shoots at or in any manner projects an object, with the purpose to cause injury to another person or other persons or damage to property, at a conveyance which is being operated or which is occupied by another person or persons.” Ark. Code Ann. § 5-13-310(a)(l) (Repl. 2006). A person also commits a terroristic act when, while not in the commission of a lawful act, “he or she shoots, with the purpose to cause injury to a person or persons or damage to property, at an occu-piable structure.” Ark. Code Ann. § 5-13-|fi310(a)(2) (Repl. 2006). Contrary to Anderson’s claim, there is no subsection “(A)(1)(a)” in section 5-13-310.
Anderson’s claim is not one seeking relief for a Brady violation. He fails to point to any evidence—material or exculpatory—that was withheld by the State or that any prejudice ensued. In fact, Anderson fails to establish the existence of any fact or evidence extrinsic to the record because any defect in the criminal information could have been discovered or raised in the trial court. Smith v. State, 2016 Ark. 201, 491 S.W.3d 463 (per curiam). Claims that a petitioner either could have known, or knew, at the time of trial do not provide grounds for issuance of a writ of error coram nobis. Id. Moreover, to the extent Anderson raises a claim of statutory interpretation, again, it does not fall within the purview of a coram nobis proceeding because it is not an error found in one of the four above-referenced categories of error, i.e., insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession. Howard, 2012 Ark. 177, 403 S.W.3d 38. None of the claims raised by Anderson demonstrate that there was some fundamental error at trial or that there existed some fact which would have prevented rendition of the judgment if it had been known to the trial court and which, through no negligence or fault of his own, was not brought forward before rendition of ^judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. Because Anderson fails to state grounds for the writ, his motion for appointment of counsel is moot.
Petition denied; motion moot.
. For clerical purposes, the motion was assigned the same docket number as the direct appeal.
. Anderson committed the terroristic acts on November 23, 2006.
. In his Rule 37.1 appeal, Anderson argued that trial counsel was ineffective for failing to challenge the criminal information charging him with multiple counts of a terroristic act in violation of Arkansas Code Annotated section 5-13-310, contending the information omitted elements of the charged crime. Anderson v. State, 2013 Ark. 332, at 3-4, 2013 WL 5288963 (per curiam).
.Although the four categories are not set in stone, the remedy of coram nobis remains an extraordinary remedy. See Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716. | [
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N. MARK KLAPPENBACH, Judge
11 This appeal concerns a request to terminate alimony. Appellant Christopher Klenakis and appellee Andrea Klenakis were divorced by a February 2013 Washington County Circuit Court decree. In their property-settlement agreement, which was approved by the trial court, the parties agreed that Christopher would pay alimony to Andrea but that it would terminate upon Andrea’s death, remarriage, or cohabitation with a man to whom she was not married or related. In July 2015, Christopher petitioned the trial court to terminate alimony, alleging that Andrea was cohabiting with her boyfriend. After a hearing in February 2016, the Washington County Circuit Court entered an order on March 1, 2016, denying appellant’s petition, finding that Andrea was not cohabiting with her boyfriend. Christopher appeals, arguing that the trial court’s decision is clearly erroneous. We agree that the trial court clearly erred, and we reverse and remand.
|aThe facts are not in dispute. The property-settlement agreement between the parties provided for specific payments of alimony by Christopher to Andrea that were contemplated to last for five years. The alimony provision also recited that:
Husband’s alimony obligation shall terminate immediately upon Wife’s death, remarriage, or upon Wife cohabiting (as that term is defined in Arkansas law) with a member of the opposite sex to whom she is not related by blood. Husband’s alimony obligation to Wife is contractual and, therefore, non-modifiable.
At the February 2016 hearing on Christopher’s petition, the following evidence was presented. Christopher and Andrea have two children, and he moved with the children to Iowa after the divorce, while Andrea remained in the marital home located at 2848 East Picasso Place in Fay-etteville, Arkansas. An attorney ad litem represented the children both before and after the divorce, filing updates and reports for the court. Christopher asserted that those reports showed that Andrea’s boyfriend, Travis Cook, was living with her and spending the night while Andrea had the children for visitation. Christopher stated that after he regained the right to possess the marital home in July 2015, he listed it for sale with a realtor.
After Andrea left the premises, the realtor, Meredith Dowse, entered the home and found evidence that led her to believe that a man and a woman had been living there. Dowse took pictures of that evidence. It appeared that the two-sink master bathroom was segregated into a woman’s area and a man’s area. There were toiletries on the counter on one side (‘Woods for Men” and “Paris for Men”), as well as a razor. She found a “Body Wash for Men” container in the bathroom trash can. Dowse testified that there were men’s shoes and shirts in the closet, and she found a large wet shirt in the washing machine that had “Arkansas Tool & Auto Repair” sewn onto the front, which was “obviously a man’s shirt.” She found I.omen’s Hanes brand underwear in the house. Dowse found mail and other documents in the house with Travis Cook’s name on them. An Aaron’s Sales and Lease Ownership delivery form for a washer and dryer referenced that the delivery was to be made to Travis Cook at 2848 Picasso Place in Fayetteville. An Aaron’s monthly payment receipt for the washer and dryer, dated April 17, 2015, listed Travis’s name and the Picasso Place address. The realtor also found a file labeled “Travis & Andie-Rcts. CURRENT PURCHASES-RECEIPTS” with a photograph of a ring on it. Photographs of these items were introduced into evidence.
Andrea stated that Travis had been her boyfriend for several years and that he had spent the night with her at the Picasso Place address on average two to three nights per week. She stated that she was not dumb, she had read the divorce decree, and she was not living, nor had she ever, lived with a man. She said that they were not engaged. Andrea admitted that all of the clothing, the men’s toiletries, and the documents in the photographs belonged to Travis and that she kept a file to organize their joint purchases. Andrea maintained, however, that she and Travis did not live together as Travis had a residence on Orchard Street in Springdale. She said that Travis came to visit her nearly every day and that he had his own washer and dryer at his house. Andrea testified that she spent, on average, approximately two nights per week with Travis at his Orchard Street address.
The trial court ruled from the bench that Andrea and Travis were in an intimate dating relationship but were not living together, although they were spending more time together than apart. The trial court recognized Andrea’s testimony that they were spending the night together approximately four nights per week, staying at each other’s homes approximately 14two nights per week. The trial court found that the evidence did not meet the burden of proof to terminate alimony. The trial court denied Christopher’s petition. A formal order was subsequently entered, and this timely appeal followed.
Christopher argues in his appellate brief that the trial court erred in refusing to terminate his alimony obligation to Andrea because she was clearly cohabiting with her longtime boyfriend. Andrea did not file an appellate brief in response. We first set out our standard of review and applicable law to the subject of this appeal.
We review domestic-relations cases de novo, but we will not reverse a circuit court’s finding of fact unless it is clearly erroneous. Hunter v. Haunert, 101 Ark. App. 93, 270 S.W.3d 339 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that the circuit court has made a mistake. Id. In reviewing a circuit court’s findings of fact, we give due deference to the court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008); Blalock v. Blalock, 2013 Ark. App. 659, 2013 WL 5964485.
While the above standard applies to findings of fact, appellate courts will not defer to the circuit court on a question of law. Jones v. Abraham, 67 Ark. App. 304, 310, 999 S.W.2d 698, 702 (1999). The circuit court’s decision will be reversed if it “erroneously applied the law and the appellant suffered prejudice as a result.” Id. A question of law is presented when the facts are “undisputed or unequivocal.” Sterne, Agee & Leach, Inc. v. Way, 101 Ark. App. 23, 31, 270 S.W.3d 369, 376 (2007); see also Emerson v. Linkinogger, 2011 Ark. App. 234, at 4, 382 S.W.3d 806, 809.
A court has no authority to modify an independent contract that is made part of a divorce decree. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007). Alimony, in instances where there is an agreement, arises from a contract right, not an equitable right, through the system of justice. Id. While the agreement is still subject to judicial interpretation, we must apply the rules of contract construction in interpreting the agreement. Id. When a contract is unambiguous, its construction is a question of law for this court. Id. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of. the language employed. Id.
The issue of cohabitation was discussed in Collins v. Collins, 2015 Ark. App. 525, 471 S.W.3d 665, where this court held that the term “cohabitation” is not ambiguous, meaning that it is not susceptible to more than one equally reasonable construction. The Collins decision recited two dictionary definitions for the word cohabitation:
The Oxford English Dictionary—1. Dwelling oi', living together; community of life; 2. Living together as husband and wife (often with the implication of not being married.”); and
The American Heritage College Dictionary—1. To live together as spouses. 2. To live together in a sexual relationship when not legally married.
The Collins opinion stated that “the focus is living arrangements, with an emphasis upon the existence of a sexual relationship. Under these definitions, if a couple is living under the same roof and having sex, cohabitation is implicated.” Id. at 9, 471 S.W.3d 665.
In Collins, this court affirmed the trial court’s finding that the ex-wife was cohabiting | ¿with her boyfriend, even though the boyfriend had his own apartment and did not help financially with the ex-wife’s utilities or mortgage. The ex-wife asserted that- she did not consider herself to be cohabiting or living with her boyfriend because they had two separate homes; they did not have any joint assets, debts, or shared expenses; and they generally spent two to three nights per week together, not every night. The ex-wife stated that her boyfriend kept some clothes at her house but kept his toiletries in a duffle bag. The trial court there ruled from the bench that this situation was clearly cohabitation and not even a close call. The ex-wife appealed the finding that she had cohabited with her boyfriend, and we affirmed the trial court’s application of the unambiguous term “cohabitation” to the facts presented.
In this case, we are required to apply Arkansas law to the undisputed facts. When applying that law to these facts, the evidence of cohabitation is even more compelling than that in Collins. Andrea and Travis were in a long-term intimate dating relationship, visited each other nearly every day, made joint purchases, and spent the night together on average four nights of every week. Travis kept toiletries, clothing, and documents at Andrea’s residence. Although he had a washer and dryer of his own, Travis acquired a washer and dryer for Andrea’s residence, which he represented as his address. Although Andrea denied that they were living together on the basis that they maintained separate residences, it is clear that Andrea and Travis were “cohabiting” as the term has been defined in Arkansas law, given the analysis of the Collins case. The facts in this case are more compelling than those found in Collins to qualify as cohabitation for purposes of terminating alimony. The trial court clearly erred in its application of the law on these facts.
| ^Reversed and remanded.
Harrison and Whiteaker, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
| T Wesley Gene Holland appeals his convictions of second-degree sexual assault and residential burglary. On appeal, Holland argues that the circuit court erred in denying his directed-verdict motions. We affirm.
On October 17, 2014, the State charged Holland with the rape of J.W. On August 21, 2015, the State added the charge of residential burglary. The case proceeded to a jury trial on October 20, 2015.
At trial, J.W. testified that on September 10, 2014, she was bathing in her home when her mother knocked on the front door. She explained that she answered the door without dressing, spoke with her mother for a minute, and then returned to the bathtub. 12She noted that shortly thereafter, her nine-year-old son entered the bathroom and told her that Holland, them neighbor, was at the door. She testified that she planned to dress herself and meet Holland at the door; however, while she was still in the bathtub, Holland appeai-ed in the bathroom. She testified that he sat on the toilet and stated, “Let me see your boobs.” She noted that she had drawn the shower curtain, which concealed her in the bathtub. She testified that Holland then opened the shower curtain, penetrated her vagina with his finger, and touched her breast. She noted that the penetration lasted two or three minutes. She stated that she told him to stop and that she tried to slap his hand, but he persisted. She explained that he eventually stopped, told her not to tell anyone about the incident, and left the house.
J.W.’s son, D.W., testified that he answered the door for Holland on September 10, 2014. He stated that Holland asked for his mother and he told Holland that she was in the bathtub. He explained that he went to tell his mother and, when he returned, Holland had entered the house. He noted that Holland then told him to go play outside.
J.W.’s mother testified that she went to her daughter’s house on September 10, 2014, and that her daughter answered the door without clothes. She stated that she talked to her daughter for a minute and then left. She explained that, as she drove away, Holland stopped and asked her, “Well, I don’t want to sound nasty, but was [J.W.] naked?” She responded, “Well, she’s trying to get a bath.”
John Bolland, with the Cleveland County Sheriffs Department, testified that he interviewed Holland on September 10 and 11, 2014, and the State played audio recordings of the interviews. In the September 10 interview, Holland admitted that he touched J.W.’s | .«¡breast but denied that he had touched her vagina. He stated that he only touched the top of her leg. In the September 11 interview, Holland admitted touching J.W.’s breast and vaginal area. He denied penetrating her vagina but stated, “[I]f I did, I was unaware of it.”
After the State presented its case, Holland moved for directed verdicts on both charges. As to the residential-burglary charge, Holland argued that the State failed to prove that (1) he unlawfully entered J.W.’s residence or unlawfully remained there and (2) he entered the residence with the purpose of committing an offense punishable by imprisonment. As to the rape charge, Holland asserted that the State failed to prove that he touched J.W. to receive sexual gratification. The court denied both motions.
Holland then testified on his own behalf and denied touching J.W.’s breast or vagina. He explained that he confessed to touching J.W. to Bolland in the September 10 and 11 interviews because Bolland coerced him into making the statements.
Following his testimony, Holland renewed his directed-verdict motions, and the court denied them. The jury then deliberated and found Holland guilty of residential burglary and the lesser-included offense of second-degree sexual assault. The jury sentenced him to ten years’ imprisonment for residential burglary and twenty years’ imprisonment for second-degree sexual assault. Holland timely appealed his convictions to this court. On appeal, Holland argues that the circuit court erred in denying his motions for directed verdict as to both charges.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Davis v. State, 2016 Ark. App. 274, 493 S.W.3d 339. When the sufficiency of the evidence is challenged in a criminal conviction, the evidence is viewed in the light most favorable to the verdict, and only the evidence supporting the verdict is considered. Robinson v. State, 2016 Ark. App. 240, 491 S.W.3d 481. We will affirm if the verdict is supported by substantial evidence—evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may constitute substantial evidence to sup port a conviction; to be substantial, circumstantial evidence must exclude every other reasonable hypothesis than the guilt of the accused; that determination is a question of fact for the trier of fact. Id. Weighing the evidence, reconciling conflicts in the testimony, and assessing credibility are all matters exclusively for the trier of fact, in this case the jury. Davis, 2016 Ark. App. 274, 493 S.W.3d 339. The jury may accept or reject any part of a witness’s testimony, and its conclusion regarding credibility is binding on the appellate court. Id. We first address Holland’s sufficiency arguments concerning his residential-burglary conviction.
Arkansas Code Annotated section 5—39—201(a)(1) (Repl. 2013) sets forth the offense of residential burglary:
A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment.
Thus, the offense of residential burglary requires proof of two elements: (1) that the person entered or remained unlawfully in the residence and (2) that the person did so with the purpose to commit a felony in that residence. Holt v. State, 2011 Ark. 391, 384 S.W.3d 498. Holland challenges both elements.
As to the first element, Holland asserts the evidence is insufficient because the State presented no evidence that J.W. or her son denied Holland’s entry into the house or told | ¡¡him to leave. Regardless of whether J.W. or her son denied Holland’s entry or told him to leave, our supreme court has held that a person’s license or privilege to enter a home is revoked once that person inflicts injury upon the owner. See id.; see also Rose v. State, 2015 Ark. App. 563, 472 S.W.3d 167.
As to the second element, Holland asserts that the State presented insufficient evidence that he entered J.W.’s house with the intent to commit an offense punishable by imprisonment. We again find Holland’s argument unavailing. Purpose can be established by circumstantial evidence, and often this is the only type of evidence available to show intent. Burris v. State, 2015 Ark. App. 126, 2015 WL 831204 (citing Whitfield v. State, 2014 Ark. App. 380, 438 S.W.3d 289). The circumstances established by the evidence must be such that the requisite purpose of the accused can reasonably be inferred, and the evidence must be consistent with the guilt of the accused and inconsistent with any other reasonable conclusion. Id. Here, the evidence showed that shortly before Holland entered J.W.’s house, he asked J.W.’s mother whether J.W. was dressed, and she told him that J.W. was in the bath. The evidence further showed that Holland then immediately went into J.W.’s house, entered the bathroom, opened the shower curtain, touched her breast, and touched her vagina. Prom this evidence, the jury could have inferred Holland intended to sexually assault J.W. Accordingly, we hold that the evidence is sufficient to support Holland’s conviction for residential burglary.
Holland additionally argues that the evidence is insufficient to support his conviction for second-degree sexual assault. Specifically, he argues that the State failed to show he | (¡intended to receive sexual gratification from his encounter with J.W. A person commits sexual as sault in the second degree if the person engages in sexual contact with another person by forcible compulsion. Ark. Code Ann. § 5-14-125(a)(l) (Supp. 2015). “Sexual contact” means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(10). “Our case law makes clear that when sexual contact occurs, and there is no legitimate medical reason for it, it can be assumed that such contact was for sexual gratification and the State need not offer direct proof on that element.” Ross v. State, 2010 Ark. App. 129, at 4, 2010 WL 475363. In this case, J.W. testified that Holland entered her home and touched her breast and vagina while she was in the bathtub. Accordingly, it can be assumed that the sexual contact was for sexual gratification.
Affirmed; motion to withdraw granted.
Glover and Murphy, JJ., agree.
. This is the second time this case has been before us. We originally ordered a supplemental addendum due to deficiencies. Holland v. State, 2016 Ark. App. 492, 2016 WL 6247089.
. We note that at trial, Holland moved for a directed verdict only as to the rape charge, not the lesser included offense of second-degree sexual assault. However, both rape and second-degree assault require sexual gratification, and Holland addressed the sexual-gratification requirement in his motion for a directed verdict. See Davis v. State, 362 Ark. 34, 39, 207 S.W.3d 474, 479 (2005) ("[I]t is not necessary to specifically state the lesser-included offense by name, as long as the elements of that lesser-included offense are addressed in the directed-verdict motion.”); see also Ark. Code Ann. § 5-14-101(1), -103(a).
. On December 22, 2016, appellant’s counsel filed a motion to withdraw as counsel citing his election to this court. | [
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RITA W. GRUBER, Chief Judge
|,Appellant, Richard Shawkey, appeals from an order of the Sebastian County Circuit Court terminating his parental rights to his son, D.S., born January 23, 2015. He contends on appeal that the evidence was insufficient (1) to support the grounds for termination and (2) to support the court’s finding that it was in D.S.’s
best interest to terminate his parental rights. We find no error and affirm the circuit court’s order.
The events that led to the termination began on January 25, 2015, when the Arkansas Department of Human Services (DHS) exercised an emergency hold on D.S., alleging that he was at a substantial risk of serious harm due to his mother’s failure to remedy conditions that caused the removal of her older son, D.S.’s half brother, in April 2014. Appellant was identified as the putative father in the petition for emergency custody. Appellant appeared at the probable-cause hearing on February 2, 2015, and was ordered by the court to undergo | ¿paternity testing, which he did on March 11, 2015. He attended the adjudication hearing on March 16, 2015. In its adjudication order entered on July 6, 2015, the circuit court ordered him to do the following things: establish paternity; obtain and maintain stable and appropriate housing, income, and transportation; complete parenting classes and visit D.S. regularly; submit to a drug-and-alcohol assessment and complete any recommended treatment; submit to random drug screens and hair-follicle testing at the request of DHS and achieve and maintain total sobriety; submit to a psychological evaluation and comply with the recommendations thereof; and resolve his pending criminal charges and comply with the terms and conditions of any criminal sentences. After a review and paternity hearing on July 6, 2015, which appellant attended, the court entered an order on July 10, 2015, finding that appellant was the legal father of D.S. and finding that DHS had made reasonable efforts to provide family services.
Appellant did not appear at the permanency-planning hearing on January 4, 2016. The court’s permanency-planning order, entered on March 9, 2016, found that appellant had not complied with the .case plan, had not completed any services on his case plan, had not visited D.S. regularly, had relocated to Conway, and had not provided proof of his housing, employment, or transportation. Because both parents had failed to exercise visitation on a regular basis, the court stated that DHS had discretion to arrange appropriate visitation at the parents’ request. The court determined that the goal of the case was adoption and authorized DHS to file a petition for termination of parental rights.
A termination hearing was held on April 4, 2016. Again, appellant did not attend. The only testimony was from the caseworker assigned to D.S.’s case, Rebecca Newton. She testified that drugs had been “an issue” for appellant. The record contains 19 positive drug] a screens from January 26, 2015, through October 27, 2015, and no negative drug screens. The results included positive tests for THC, PCP, amphetamines, and methamphetamine. Ms. Newton testified that appellant had provided no documentation that he had completed any drug treatment. Ms. Newton also testified that appellant had initially visited with D.S. 13 times, but he had not visited since October 6, 2015. She stated that appellant had contacted her in January after the permanency-planning hearing to ask whether DHS could provide D.S. with transportation to Conway for a visit. She told appellant that she would need to check with the foster parents, and they discussed a visit in Russellville or Clarks-ville. She said that appellant never called her back and that she did not call him back, either. She did not recall why she had failed to follow through with setting up. visitation. She also testified that appellant had not completed parenting .classes. She said that appellant had been offered services for more than a year, that he had relocated to Conway and failed to maintain contact with her or D.S., and that DHS recommended adoption because it was not in D.S.’s best interest to be returned to his parents. She said that D.S. was adoptable and had no developmental or medical issues.
The court entered an order on May 27, 2016, terminating appellant’s parental rights. The court found that DHS had proved four grounds for termination by clear and convincing evidence: (1) the child had been adjudicated dependent-neglected and had continued out of the home of the noncustodial parent for twelve months and despite a meaningful effort by DHS to rehabilitate the parent and the conditions .that prevented the child from safely being placed in the parent’s home, the parent had failed to remedy the conditions; (2) the child had lived outside the home of the parent for a period of twelve months and .the parent had willfully failed to maintain meaningful contact with the child; (3) other factors arose ^subsequent to the filing of the original petition that demonstrated placement of the child with the parent was contrary to the child’s health, safety, or welfare and, despite the offer of appropriate family services,' the parent manifested incapacity or indifference to remedying the subsequent issues; and, (4) aggravated circumstances: there was little likelihood that services to the family would result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(6), (ii)(a), (viQ(a), (ix)(a )(3) (Repl. 2015). The court specifically found that appellant had moved to Conway after his paternity had been established and had failed to maintain contact with DHS. The court found that he had not visited D.S. in eight months, had visited .only sporadically before ceasing vis its altogether, and had never completed substance-abuse treatment or successfully addressed his drug use. The court also found that the circumstances regarding appellant’s housing, employment, and transportation were unknown and noted that appellant had not “even” appeared at the termination hearing. The court also found that it was in D.S.’s best interest to terminate appellant’s parental rights, specifically considering adoptability and potential harm.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341. In making a “best interest” determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. Adoptability is not an essential element but is rather a factor that the trial court must consider. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. Likewise, |fithe potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine, 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in broad terms. Id. It is the “best interest” finding that must be supported by clear and convincing evidence. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Credibility determinations are left to the fact-finder. Kerr v. Ark. Dep’t of Human Servs., 2016 Ark. App. 271, at 6, 493 S.W.3d 342, 346. Finally, the intent behind the termination-of-parental-rights statute is to provide permanency in a child’s life when it is not possible to return the child to the family home because it is contrary to the child’s health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3).
For his first point on appeal, appellant argues that none of the four grounds found by the circuit court are supported by the evidence. Proof of only one statutory ground is sufficient to terminate parental rights. Contreras v. Ark. Dep’t of Human Servs., 2015 Ark. App. 604, at 5, 474 S.W.3d 510, 514. We turn first to the last ground found by the court: aggravated circumstances. Appellant argues that DHS failed to provide “the most critical service”—that is, visitation. He contends that, in January 2016, he called Ms. Newton in an attempt to arrange for D.S. to be transported to Conway for visitation. He argues that Ms. Newton never arranged a visit or called him back to discuss the matter. While the caseworker’s failure to follow through on either arranging visitation or explaining to appellant why it was not possible was highly, inappropriate, this one misstep by DHS does not ^render the circuit court’s finding clearly erroneous.
The court found that DHS had made services available to appellant for “well over one year” and that appellant had not made even minimal progress toward remedying his circumstances. The court found that the offer of more time or additional services would have been futile. The record reflects that appellant failed to com- píete any of the services found in the court-ordered case plan; had 19 consecutive positive drugs screens; had provided no proof that he had submitted to a drug- and-alcohol assessment or completed a drug-treatment program; had failed to submit to a psychological evaluation and comply with the recommendations thereof; and had not visited his child in eight months. Moreover, appellant failed to attend either the permanency-planning hearing or the termination hearing. We also note that a parent’s past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160. From our de novo review of the record, we cannot say that the circuit court’s finding on this ground is clearly erroneous. Because DHS was required to prove only one statutory ground, we do not address the other three grounds. Contreras, 2015 Ark. App. 604, at 10, 474 S.W.3d at 516.
Appellant also contends that the circuit court clearly erred in concluding that it was in D.S.’s best interest to terminate his parental rights. Appellant does not challenge the court’s finding that D.S. is adoptable but only its finding that D.S. faced potential harm if returned to appellant’s custody. He argues that there were no drug screens provided beyond October 27, 2015; that the caseworker admitted having almost no contact with appellant after she had been assigned to the case in November 2015; that DHS failed to put on the caseworker from Conway assigned to work with appellant; and that he requested a visit with D.S. but was not provided visitation.
|7The court is not required to identify a specific potential harm. Pine, 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in broad terms. Id. It is the “best interest” finding that must be supported by clear and convincing evidence. Id. Here, the circuit court found that appellant had not successfully overcome his drug addiction, and appellant provided no proof to the court otherwise. The court found that he had been “chronically unstable” during the pendency of the case and had failed to maintain even minimal contact with D.S. Appellant did not attend the termination hearing, and his attorney did not introduce any evidence to suggest that appellant had done anything to comply with the case plan, address his addiction, or merit additional time or services. Moreover, there was no evidence to suggest that appellant had stable and appropriate housing, a job, or transportation sufficient to care for his child. The reasonable period of time within which reunification may occur is to be viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3). We hold that the circuit court’s finding that it was in D.S.’s best interest to terminate parental rights is not clearly erroneous.
Affirmed.
Virden and Hixson, JJ., agree.
. D.S.’s mother's parental rights were also terminated, but she is not a party to this appeal. | [
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MIKE MURPHY, Judge
| Appellant Kabias Bankston. sustained an admittedly compensable injury to his neck and lower back while working for appellee University of Arkansas at Little Rock (UALR) on December ■ 14, 2012. UALR paid workers’ compensation benefits for the related medical treatment provided, including temporary total-disability benefits, to Mr, Bankston until August 20, 2014. Mr. Bankston then alleged that he was entitled to additional medical treatment and additional temporary total-disability benefits from August 20, 2014, through a date yet to be determined. Mr. Bankston also alleged he was entitled to attorney’s fees. UALR controverted Mr. Bankston’s entitlement to these additional benefits and fees.
A hearing was held on September 10, 2015, before an Administrative Law Judge (ALJ) who issued an opinion on December 8, 2015. The ALJ found that Mr. Bankston had not met his burden of proving his entitlement to surgery or additional temporary total-12disability benefits, and Mr. Bankston appealed to the full Workers’ Compensation Commission (the Commission). On June 21, 2016, the Commission issued a 2-1 majority opinion affirming and adopting the ALJ’s decision as its own.
Mr. Bankston now appeals, arguing that the Commission’s decision denying lumbar spine surgery and temporary total-disability benefits beyond August 20, 2014, is in error. We find no error and affirm.
Mr. Bankston testified that he was 39 years old at the time of the injury, and he described his duties at UALR as “beautifying the campus, janitorial work, pulling trash, recycling, waxing and buffing floors, and any type of work that was needed for the campus.” On December 14, 2012, Mr. Bankston was carrying a wet-vac weighing about 75 pounds up some stairs. He testified that, while he was in the process of putting it down, his back “popped,” causing him to feel a burning sensation in his back that radiated into his thighs, making it difficult for him to stand.
Mr. Bankston sought treatment for his injury. At deposition, Dr. Qureshi, who treated Mr. Bankston, testified that his review of Mr. Bankston’s January 2013 MRI in March 2013 showed
(1) A moderate-to-large paracentral disc extrusion at the L1-L2 level,
(2) Chronic bilateral L5 Pars interarticu-laris fractures with no associated spondylolisthesis,”
|s(3) Chronic disc degeneration at the L5-S1 level, and
(4) Epidural lipomatosis in the lower lumbar spine with effacement of the thecal sac at the L4-5 and L5-S1 levels.
Dr. Qureshi concluded that conservative treatment was appropriate, and Mr. Bank-ston was prescribed pain medicine, physical therapy, a back brace, and epidural steroid injections. Dr. Qureshi saw Mr. Bankston again in July 2013. Mr. Bankston was doing, somewhat better, but he still had back pain. At this juncture, Dr. Qure-shi noted it was not the L1-L2 disc creating the issues, but the other aforementioned back problems, along with Mr. Bankston’s sickle cell anemia, and he recommended continued conservative management.
On August 12, 2014, Mr. Bankston underwent a functional capacity evaluation. During the test he exhibited “numerous inconsistencies which invalidated his entire exam.” Mr. Bankston testified that he “did his very best to do what they asked [him] to do during the functional capacity evaluation,” but the exam results concluded that he demonstrated an unreliable effort. On August 21, 2014, Dr. Qureshi released Mr. Bankston to full-duty work, as Mr. Bank-ston had “reached maximum medical improvement,” though he did advise Mr. Bankston to “be careful while lifting.” Mr. Bankston testified that he had worked over that weekend, then on Monday, August 23, 2014, he spoke with his supervisor “about |4[his] situation.” His supervisor directed him to write a letter discussing his condition, but .instead, Mr. Bankston decided to resign.
Mr. Bankston continued seeing Dr. Qur-eshi for his back pain over the course of the next year. By April 8, 2015, Dr. Qure-shi concluded that Mr. Bankston would benefit from surgery to remove the fat from the spinal canal at L3, L4, and L5, and to fuse L5-S1 to treat the pain associated with the pars interarticularis, the degenerative and desiccated disc, and an annular tear that did not appear until a later MRI was taken over a year and a half after the December 14, 2012 work-related incident.
The ALJ denied Mr. Bankston’s request for surgery. The surgery, he reasoned, was to address issues causing Mr. Bankston pain that were unrelated to the injury he sustained in December 2012. The surgery was not to address the disc extrusion at L1-L2 but instead to treat Mr. Bankston’s preexisting degenerative conditions.
The ALJ also concluded Mr. Bankston did not establish his entitlement to temporary total-disability from August 23, 2014, to a date yet to be determined. Citing Mr. Bankston’s unreliable effort on the functional capacity evaluation and Dr. Qure-shi’s finding that Mr. Bankston had reached maximum medical improvement and could return to work, he concluded that the preponderance of the evidence established that Mr. Bankston had reached the end of his healing period on August 20, 2014.
Under Arkansas law, the Commission is permitted to adopt an ALJ’s opinion. Godwin v. Garland Cty. Landfill, 2016 Ark. App. 498, at 4, 504 S.W.3d 660. In so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the | ^Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion. Id.
We review Commission decisions to determine whether there is substantial evidence to support them. Towler v. Tyson Poultry, Inc., 2012 Ark. App. 546, at 2, 423 S.W.3d 664, 666. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Id. Where, as here, the Commission denies claims because of the failure to show entitlement to benefits by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Id. The Commission is the ultimate arbiter of weight and credibility. Id. The Commission has the authority to accept or reject medical opinions, and its resolution of conflicting medical evidence has the force and effect of a jury verdict. Id.
I. Entitlement to Additional Medical Treatment
Mr. Bankston argues that the ALJ erred in finding that he failed to prove that he was entitled to lumbar-spine surgery because while some of his back problems were preexisting, they were aggravated by the incident in December 2012. It is true that, under Arkansas workers’ compensation law, the employer takes the employee as he is found, and an aggravation of a preexisting, noncompensable condition by a compensable injury is, itself, compensable. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999).
Here, the MRI showed a moderate-to-large paracentral disc extrusion at the L1/L2 level, and Dr. Qureshi did testify that such an injury can be caused by lifting. No part of the | r,recommended surgery, however, was to address any issue at L1/L2. The ALJ did consider that Dr. Qureshi stated that the pars fracture could be worsened by trauma, but he was not certain of it, and the ALJ did not wish to resort to speculation and conjecture on this point. Speculation and conjecture cannot serve as a substitute for proof. Dena Constr. Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155, 158 (1979). Furthermore, the Commission is authorized to accept or reject a medical opinion and is authorized to determine its medical soundness and probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). There was no other evidence that might support a finding that the December 2012 incident exacerbated the pain associated with the desiccated disc, and the annular tear did not appear until an MRI was taken over a year and a half after the December 14, 2012 incident. The ALJ concluded that the recommended surgery for Mr. Bankston was not causally related to his December 2012 injury, and we hold that there was a substantial basis for the denial of relief.
II. Entitlement to Additional Temporary Total Disability
Temporary total-disability is determined by the extent to which a com-pensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total-disability benefits when he is totally incapacitated from earning wages and remains in his healing period. Jordan v. Home Depot, Inc., 2013 Ark. App. 572, at 3, 430 S.W.3d 136, 138. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(12)(Repl. 2012). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. Myers v. City of Rockport, 2015 Ark. App. 710, 479 S.W.3d 33, reh’g denied (Jan. 20, 2016). When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
The claimant came under the care of Dr. Qureshi following his December 14, 2012, compensable injury. The respondents paid appropriate indemnity benefits to the claimant through August 20,2014, at which time the claimant was released to return to full-duty work. Just prior to his release to return to work, the claimant had undergone a functional capacity evaluation that reflected that he had put forth an unreliable effort, and the ALJ noted that there were multiple examples of the claimant’s inconsistency in effort contained in the report. Mere days after being cleared for work, Mr. Bankston resigned. This evidence constitutes a substantial basis for the denial of relief.
Affirmed.
Abramson and Glover, JJ., agree.
. Dr. Qureshi testified that this type of injury could be caused by lifting.
. Dr. Qureshi explained that the pars interar-ticularis is a small bone connecting joints in the spine and that when it is fractured it could slip (slipped facet joints are called spon-dylolisthesis, which Mr. Bankston did not have). Dr. Qureshi said that "[i]t could be genetic ...' it could be a trauma. And it’s chronic. Chronic means that it has been there for a long time, and it wasn’t acute.”
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KENNETH S. HIXSON, Judge
| -Appellant Mark A. Mosley appeals after he was convicted by the Washington County Circuit Court of theft of property as a habitual offender. He was sentenced to serve a total of 120 months’ imprisonment. On appeal, Mosley’s sole argument is that there was insufficient evidence to convict him of theft of property. We affirm.
Mosley was arrested and charged with commercial burglary, a class C felony, under Arkansas Code Annotated section 5-39—201(b)(1) (Repl. 2013); theft of property, a class C felony under Arkansas Code Annotated section 5—36—103(b)(2); and as a habitual offender under Arkansas Code Annotated section 5-4-501(b). A jury trial was held on December 14-15, 2015, and the following facts were introduced at trial.
Williams Tractor is located in Fayette-ville, Arkansas, and sells farm implements and lawn equipment. At approximately 3:00 a.m. on Friday, March 27, 2015, the silent-security alarm went off at Williams Tractor." The alarm-monitoring company contacted the ^designated employee of Williams Tractor, and he drove to the business. As this employee " drove up to Williams Tractor, he saw the front gate open and a zero-turn lawn mower sitting near the gate. He also noticed a U-Haul truck driving in the vicinity. The Fayette-ville Police Department arrived on the scene. ‘ During their immediate investigation, police officers noticed distinct shoe prints on and about the zero-turn lawn mower parked at the gate. Apparently, the lawn mower had run out" of gas. Police officers saw a man walking down a' nearby street. Police stopped the man, and during their conversation, the man told them that he had been fighting with his girlfriend. After further discussions and observations of this man, they determined his shoe prints matched the distinct shoe prints on and about the mower. The man, later identified as Ledrick Hinton, was arrested for loitering and commercial theft of property.
Later, police found a second zero-turn lawn mower outside the fence and also out of gas. A Polaris Razor ATV (Polaris,Razor), worth approximately $14,000, was discovered missing. The ground was wet around Williams Tractor, and police were able to follow tire tracks out of the gate and around the building toward the back of the property. At the end of the tire tracks, police discovered a makeshift ramp made of railroad ties, mulch, and brush. Police subsequently contacted the neighboring business, Total Document Solutions (TDS). TDS had a security camera trained on the rear of its property, which coincidentally overlooked the réar of the Williams Tractor property. This security-camera footage contained images of the theft of the Polaris Razor. The TDS images with time stamps between 2:28 a.m. and 3:03 a.m. depicted two or three unidentifiable men, a white Chevy Tahoe, and a U-Haul truck.
| ¡While Ledrick Hinton was being held at the Washington County detention center, Detective Scott O’Dell questioned him. During questioning, Hinton allowed Detective O’Dell to look at his cell phone. Detective O’Dell testified at trial that there were two phone numbers listed in Hinton’s phone that were very active during the time just before and after the theft. The contacts associated with those numbers.-according to Hinton’s phone were “Mark” and “Mark in the Dark.” Detective O’Dell testified that after further research, he determined that Verizon was the carrier for the phone number associated with “Mark in the Dark,” and AT&T was. the carrier for the phone number associated with “Mark.” The AT&T phone could be tracked through cell-tower usage to be in the vicinity of Williams Tractor at the time of the theft, around 3:00 a.m., and the AT&T phone was later used around 8:30-9:00 that same morning near Palestine, Arkansas. Also, Detective O’Dell was able to retrieve information from the AT&T phone that this phone was used to contact a person by the name of Larry Wilson that same morning. Once the AT&T phone was identified with Mosley, Detective O’Dell researched law enforcement records and discovered that Mosley was the registered owner of a white 2002 Chevy Tahoe—the same vehicle used in the Williams Tractor theft'. •
Later, Detective O’Dell contacted Larry Wilson in Wynne, Arkansas, and asked him about the phone calls between him and Mosley on the morning of March 27. Wilson subsequently testified that he had a prior relationship with Mosley. He did not know Mosley’s last name; he knew him only as Mark the “Little Rock Man,” Wilson ■ testified that Mosley contacted him either by text or phone the morning of March 27 and asked him if he would be interested in buying a Polaris ATV. They met in the-parking lot of a service Lstation off of 1-40 in Palestine,‘Arkansas. Mosley was driving a white SUV, and there was a U-Haul truck present. In the back of the U-Haul truck was what appeared to be a new Polaris Razor ATV. Wilson told Mos,ley that he was not interested in the “Razor” but that if Mosley had a “Ranger,” he would be interested. Wilson testified that Mosley offered to sell him the “Razor” for $8500, but he declined.
In addition to the testimony of Detective O’Dell and Larry Wilson, there was extensive testimony . from representatives of AT&T, law enforcement officials, .state agencies,, and others concerning the identity and locations of Mosley’s AT&T phone and the machinations necessary to follow his phone around the state. There was testimony from Jessica Schermacher, an employee of the State of Arkansas. One of her job responsibilities is to maintain the database of persons on parole. Persons on parole must provide the state with accurate contact information. Mosley was on parole for an unrelated crime on March 27, 2015, the date of the Williams Tractor theft. Schermacher testified that Mosley had previously provided the agency with two phone numbers for his contact information. Those telephone numbers were the same numbers as the AT&T and Verizon phone numbers identified by Detective O’Dell and identified as “Mark” and “Mark in the Dark” on Hinton’s phone. Furthermore, the AT&T number was the same number used by Mosley to contact Wilson to arrange for the meeting in Palestine after the theft.
Brian Wann, an AT&T Mobility employee in Fayetteville, Arkansas, testified that he had looked at the phone records for the AT&T phone. Wann testified regarding the cell-tower records for the AT&T phone and confirmed much of the information already | ¿provided by Detective O’Dell. On cross-examination, Wann admitted that Otis Brown, not Mosley, was listed as the subscriber for the AT&T phone.
Whitney Bohannan, a title clerk and finance employee at Williams Tractor, testified that the Razor was worth $14,015.47, including the additional accessories that were added to it.
After the State rested, Mosley moved for a directed verdict. Regarding the theft-of-property charge, Mosley argued that the State failed to prove that he had knowingly taken or exercised unauthorized control over, or made an unauthorized transfer of interest in, the property of another person while depriving the owner thereof. He more specifically argued that the only evidence introduced by the State was that he had control over a Razor in Palestine, Arkansas, which was in another county and outside the jurisdiction of the instant charge. The trial court denied the motion.
The jury found Mosley not guilty of commercial burglary and guilty of theft of property. The jury recommended a sentence of ten years, which the trial court imposed. This timely appeal followed.
I, Sufficiency of the Evidence
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Hinton v. State, 2015 Ark. 479, 477 S.W.3d 517. When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. The sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007); Boyd v. State, 2016 Ark. App. 407, 500 S.W.3d 772. Substantial evidence is evidence which is of sufficient force and character that will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Hinton, supra. Finally, the credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Circumstantial evidence may constitute substantial evidence to support a conviction. Wyles, supra. Guilt can be established without direct evidence, and evidence of guilt is not less because it is circumstantial. Id. The longstanding rule is that for circumstantial evidence to be substantial, it must exclude every other reasonable hypothesis than that of guilt of the accused. Id. Stated another way, circum stantial evidence provides a basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Such a determination is a question of fact for the jury to determine. Id. We will disturb the jury’s determination only if the evidence did not meet the required standards, leaving the jury to speculation and conjecture in reaching its verdict. Id.
Mosley contends that the trial court should have granted his motion for directed verdict because the circumstantial evidence produced at trial was insufficient to find him guilty of theft of property. We disagree.
A person commits theft of property if he or she knowingly (1) takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property; or (2) obtains |7the property of another person by deception or by threat with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103(a). Theft of property is a class C felony if the value of the property is less than twenty-five thousand dollars ($25,000) but more than five thousand dollars ($5,000). Ark. Code Ann. § 5-36-103(b)(2)(A).
Here, the circumstantial evidence was sufficient to show that Mosley knowingly exercised unauthorized control over the Polaris Razor when he participated in the theft from Williams Tractor in Fay-etteville. Detective O’Dell testified at length that he had linked information from two phone numbers that Mosley had given for himself to a state agency to the same numbers that were listed in Hinton’s phone as “Mark” and “Mark in the Dark.” Cell-phone-location data placed Mosley’s AT&T phone in the vicinity of Williams Tractor at the time of the theft and in the same areas and at the same times that Mosley had corroborated during the investigation. Video surveillance showed that a white SUV was used in the theft of the Polaris Razor and that Mosley owned a similar white 2002 Chevy Tahoe. Furthermore, Mosley’s subsequent attempt to sell the Polaris Razor was sufficient to prove that his purpose was to deprive Williams Tractor of its property. Wilson testified that Mosley contacted him on the morning of the theft and attempted to sell him what appeared to be a new Polaris Razor for only $8500. Mosley was driving the 2002 white Chevy Tahoe, and the Polaris Razor was in a U-Haul truck similar to the U-Haul truck seen on the security tapes. After considering all the circumstantial evidence in light |sof our standard of review, we hold that there was sufficient evidence to support Mosley’s conviction for theft of property. As such, we affirm.
Affirmed.
Abramson and Vaught, JJ., agree. | [
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ROBERT J. GLADWIN, Judge
| Appellant Ashley Hollinger appeals the order of the Sebastian County Circuit Court terminating her parental rights to her daughter, D.H., and her son, J.H. On appeal, she argues (1) that reversal is warranted because there was insufficient evidence presented to establish the grounds asserted in support of termination; and (2) that appellee Arkansas Department of Human Services (ADHS) failed to prove that termination of her parental rights (TPR) was in the best interest of her children. We affirm.
I. Facts
This case began on April 15, 2015, when the Fort Smith Police Department requested ADHS’s assistance following several arrests, including the arrest of Ashley, after a controlled drug buy in the home where Ashley and her children, D.H. and J.H., were living. At the residence, officers discovered marijuana, drug paraphernalia, hydrocodone, and amphetamine. Based on these events, ADHS filed a petition for emergency custody and dependency-neglect on April 20, 2015. In the attached affidavit, ADHS asserted that it had a previous history with Ashley’s family dating back to 2012 that included protective-services cases.
The trial court entered an ex parte order for emergency custody on April 20, 2015. On April 27, 2015, the trial court held a probable-cause hearing and entered the resulting order on May 6, 2015. The trial court held that. the probable cause that necessitated the removal of D.H. and J.H. continued and that custody should remain with ADHS.
The trial court held an adjudication hearing on June 22, 2015, and in an order that was not filed until September 30, 2015, the trial court adjudicated D.H. and J.H. dependent-neglected based on parental unfitness, threat of harm, and inadequate supervision. The trial court further found that the children were dependent-neglected as a result of Ashley’s drug use and her arrest following the discovery of drugs and drug paraphernalia in the home where Ashley, D.H., and J.H. were living. The trial court set the goal of the case as reunification and ordered Ashley to obtain and maintain housing, income, and transportation; to complete parenting classes; to submit to a drug-and-alcohol assessment as well as random drug screens; to submit to a psychological evaluation; to complete domestic-violence classes; and to resolve her pending criminal charges.
A review hearing was held on October 5, 2015, with an order filed on March 2, 2016. The trial court continued the goal of reunification and found that ADHS had made reasonable efforts to achieve that goal. The trial court noted that Ashley had been released from jail during the review period, had completed the drug-and-alcohol assessment, was attending the recommended outpatient treatment, and had tested negative on her drug screens. Ashley was also attending parenting classes and was complying with the terms and conditions of her criminal sentences pursuant to the trial court’s order. The trial court also noted that Ashley had not yet completed a psychological evaluation, ADHS was “between providers,” and that any resulting delay should not count against her.
The trial court held a permanency-planning hearing on April 4, 2016, and entered an order on July 5, 2016, setting a concurrent goal of reunification and adoption with TPR. The trial court noted that Ashley was living with her boyfriend, D.J. Jennings (Jennings), and that the pair were fixing up a house in lieu of paying rent. Ashley was not employed and did not have her own transportation. ADHS did note that she had completed parenting classes, had completed a drug-and-alcohol assessment, and was attending the recommended outpatient-treatment program. Ashley resolved her criminal charges and received a suspended sentence, although she was arrested for failure to pay fines and expected to serve time in jail as credit toward her fines.
On July 25, 2016, the trial court held a fifteen-month review hearing and subsequently entered an order on September 15, 2016. Therein, the trial court ordered the goal of the case to be changed to adoption. The trial court found that Ashley was not in compliance with either the case plan or the court orders, noting that she had stopped attending outpatient treatment in December 2015, and upon her release from jail, she had tested positive for amphetamine and methamphetamine. The trial court further noted that Ashley recently had been released from inpatient mental-health treatment at Levi Hospital bin Hot Springs, had not resolved her criminal charges, and had not complied with the terms and conditions of her sentences.
ADHS filed a TPR petition on September 16, 2016. Therein, ADHS alleged that the following grounds supported TPR: failure to remedy; subsequent factors; and aggravated circumstances. ADHS further alleged that TPR was in the best interest of the children. The trial court held a hearing on ADHS’s TPR petition on October 24, 2016. Melissa Dancer, ADHS’s caseworker who had been assigned to this case since the children entered foster care, presented testimony. She stated that Ashley and Jennings had been staying in a home with another person when the drug arrests that prompted the opening of this case occurred. According to Dancer, Ashley was arrested on multiple charges but was ultimately convicted of two counts of possession of drug paraphernalia. Dancer stated that Ashley’s drug of choice was methamphetamine. She stated that in an attempt to remedy Ashley’s drug usage, ADHS’s case plan required her to gain and maintain sobriety through a drug-and-alcohol assessment and treatment.
Dancer also stated that Ashley had been ordered to attend parenting classes, to gain and maintain stable income, housing, and transportation, and to resolve all her criminal issues. Dancer acknowledged that Ashley had obtained and maintained stable housing since December 2015 and had obtained and maintained stable employment for the last three months. Dancer further stated that Ashley attended parenting classes, completed her drug-and-alcohol assessment, and began outpatient drug treatment at Horizons. Dancer explained |fithat Ashley did not formally complete the program, however, because she had failed to provide documents related to her NA/AA attendance and that the following May, Ashley had tested positive for methamphetamine and hydrocodone. She also tested positive in a subsequent urine test for benzodiazepine and alcohol. Dancer explained that she had informed Ashley immediately after the positive hair-follicle test that she had to return to a treatment program and provided her with a referral but that Ashley did not go right away. Dancer denied that there were any further services she could offer Ashley to aid in reunification and noted that the case had already been open for nineteen months. Dancer stated that ADHS was concerned about the positive hair-follicle test, as well as two subsequent arrests of Ashley, but then acknowledged that Ashley was attending therapy and was current on all fines in her legal cases.
Regarding the children, Dancer stated that J.H. had treatment needs and had been in non-foster-home settings throughout the case but was currently placed with his sister in a foster home. Dancer explained that J.H. had aggression issues that required treatment and that J.H. had been in acute-inpatient stays and later day-treatment programs. She also explained that J.H. could not handle stress and that anxiety tended to overwhelm him. Despite these issues, Dancer stated that they were not things that would prevent J.H. from being adopted. Regarding D.H., Dancer stated that the thirteen-year-old child exhibited quite a maturity for her age and had no mental-health issues or needs.
Dancer testified that the children’s current foster home had expressed an interest in adopting the children, if the children were willing. Dancer admitted that D.H. was of the age that she would need to consent to adoption and opined that the child was not ‘completely unwilling or un-open to the idea of being adopted.” Dancer stated that she believed it was in both children’s best interest to be adopted. She also stated that they would be at risk of harm if returned to Ashley because of the lack of overall stability and pending legal issues.
On cross-examination, Dancer stated that she did not refer Ashley for further drug screens after the May screen to allow time for the drugs to be out of her system. Upon further questioning, Dancer acknowledged that Ashley had a negative hair-follicle test within the last month.
Ashley also testified at the TPR hearing and stated that she had recently moved in with her sister, Felicia Hollinger, because of Jennings’s recent positive hair-follicle test. She stated that after learning of the positive test, she ended her relationship with him and removed all her belongings from the home they had shared. Ashley denied having any knowledge that Jennings was using metharaphetamine but admitted that she thought he was smoking marijuana. Ashley stated that after the children had been removed from her because of her arrest and drug use, she had quit using drugs for nine months but relapsed in March.
She explained that she spent the first four months of the case in jail, and upon her release, went for the drug-and-alcohol assessment and immediately began attending the recommended outpatient-treatment program—completing the required twelve-week sessions in December 2015. But Ashley admitted that she had never received her certificate of completion because she waited too long to turn in the required paperwork about NA/AA meetings and copies of her prescriptions. Ashley admitted relapsing around March and using methamphetamine for approximately a month. She stated that once she failed the hair follicle test, Dancer referred her for another assessment and that she went for her intake appointment in August. Ashley denied using any drugs from the time-of the positive screen until she began treatment. She stated that she had been employed at Sonic for several months and that she brought home approximately $380 every two weeks. Ashley admitted that she never told Dancer about her overdose that resulted in her stay at Levi Hospital because Dancer had already told her that she whs not going to get another chance to prove herself and have another hair-follicle test because treatment had obviously not helped her. She also stated that Dancer never referred her to inpatient drug treatment, but she did state that the outpatient treatment and attendance at NA/AA helped her to stay clean. Ashley stated that she had visitation with the children every Tuesday and that she never missed a visit through any fault on her part. Ashley reiterated that she just needed a little more time to show her stability so that her children could come home.
The trial court entered an order terminating Ashley’s parental rights on December 19, 2016. In the TPR order, the trial court found that ADHS had proved each of the three grounds alleged in its petition. The trial court also found by clear and convincing evidence that termination" was in the best interest of the children. Ashley filed a timely notice of appeal on January 9, 2017.
II. Standard of Review and Relevant Law
We review termination-of-parental-rights cases de novo, Bunch v. Ark. Dep't of Human Servs., 2017 Ark. App. 374, 523 S.W.3d 913. At least one statutory ground must exist, in addition to a finding that it is in the child’s best " interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015); Bunch, supra. Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Bunch, supra. The purpose of terminating a parent’s rights to his or her children is to provide permanency in the child’s life when returning the juvenile to the family home is contrary to the child’s health, safety, or welfare, and it appears that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. Ark. Code Ann. § 9-27-341(a)(3). A heavy burden is placed on a party seeking termination because termination of parental rights is an extreme .remedy in dei-ogation of the natural. rights of the parents. Bunch, supra. We will not reverse a termination order unless the trial court’s findings were clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
III. Discussion
A. Proof of Grounds Supporting the TPR Order
A court may order TPR if it finds there is an “appropriate permanency placement plan” for the child, section 9-27-341(b)(1)(A), and further finds by clear and convincing evidence that TPR is in the best interest of the child, taking into consideration the likelihood of adoption and the potential harm to the health and safety of the child that would be caused by returning him or her to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Additionally, there must be clear and convincing evidence to support one or more statutory grounds listed in the Juvenile Code. Ark. Code Ann. § 9-27-341(b)(3)(B).
Proof of only one statutory ground is sufficient to terminate parental rights. Contreras v. Ark. Dep’t of Human Servs., 2015 Ark. App. 604, 474 S.W.3d 510. We turn to the first ground found by the court: the failure-to-remedy ground, codified at Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a), which provides as follows:
[t]hat a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the- parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
This particular ground requires that (1) the child be adjudicated dependent-neglected, (2) the child be out of the custody of the parent for twelve months, and (3) the parent failed to remedy the conditions that caused the child’s removal. Jackson v. Ark. Dep’t of Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276.
In the TPR order, the trial court found that Ashley had failed to remedy the cause of her children’s removal because she had relapsed , after having completed drug treatment, had concealed it from ADHS, and had not completed any further treatment. Ashley-argues that these findings are not supported by the evidence adduced at the TPR hearing. Rather, she maintains that the evidence demonstrated that she was sober at the TPR hearing, was participating in drug treatment, and was in compliance with the terms of her criminal sentences.
We disagree. This case was opened due to Ashley’s drug use and her maintaining a drug-sale premises. Eleven months into the case, Ashley, by her own admission, relapsed into methamphetamine use. Subsequently, thirteen months into the case, Ashley tested positive for methamphetamine, amphetamine, and hydrocodone. Regarding the drug issues that caused this case to open, negative drug screens alone were not sufficient to demonstrate a successful remediation of those issues. Although Ashley made some progress on her drug issues during the pendency of this case, she did not, sufficiently demonstrate the capacity to remain drug free.
Despite Ashley’s claim that her relapse was not a failure to remedy, but rather an isolated “setback,” we note-that at the end of the case, Ashley’s recently acquired sobriety was fragile; this would have subjected her children to potential instability should she again relapse into drug use which, based on her history, was more than a speculative possibility. Only when she was confronted with a positive test for methamphetamine approximately thirteen months into the case did Ashley begin to take steps toward addressing her drug issues. Although she claimed that she is no longer in a relationship with Jennings, who was also a codefendant in her criminal case, the trial court did not believe that the two were truly separated or that she did not know he was using drugs, noting that Ashley had separated from Jennings the weekend just before the TPR hearing because he had tested positive for methamphetamine. Evidence of parental improvement as TPR becomes imminent, however, will not outweigh other evidence that demonstrates a failure to remedy the situation that caused the children to be removed in the first place. Ark. Code Ann. § 9-27-841(a)(4)(A); see also Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Further, we note that Ashley did not complete the court-ordered drug treatment.
We hold that the court’s finding that appellant failed to remedy her parental unfitness due to her instability is not clearly erroneous. Because ADHS was required to prove only [none statutory ground, we do not address the other two grounds. Shawkey v. Ark. Dep’t of Human Servs., 2017 Ark. App. 2, 510 S.W.3d 803.
B. Children’s Best Interests
In determining “best interest,” the trial court is required to consider two factors: (1) the likelihood that the child will be adopted, and (2) the potential of harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)-(ii).
Because Dancer testified that she believed both children to be adoptable, despite the troubles faced by J.H., Ashley does not challenge the trial court’s finding regarding the likelihood of adoptability. But that is only one factor to be weighed when determining whether TPR is in the children’s best interest. To be certain, a natural parent’s rights cannot, and should not, be terminated simply because a child is adoptable. The best-interest analysis requires more. See Ark. Code Ann. § 9-27-341(b)(3)(A)(i)-(ii). Ashley argues that the trial court erroneously concluded that D.H. and J.H. faced a risk of potential harm if returned to her custody.
A trial court is required to consider only the potential harm to the health and safety of a child that might result from continued contact with the parents and is not required to find that actual harm would result. See McFarland v. Ark. Dep’t of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005). The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. But even with such wide latitude allowed in evaluating potential harm, Ashley maintains that there was still insufficient evidence before the trial court to support a conclusion that D.H. and J.H. faced a substantial risk of harm if returned to her custody.
We disagree and hold that a review of the record does not leave us with a firm conviction that the potential-harm finding was a mistake. At the time of TPR, after eighteen months, Ashley had not demonstrated sufficient sobriety for any meaningful length of time, she had not completed drug treatment, and it was not clear whether she had severed her relationship with a partner who had tested positive for drugs. Although Ashley considers her posi tive drug test an isolated “setback,” we focus not on how often she tested positive, but when she tested positive.
Ashley admitted relapsing in March 2016—eleven months after removal of the children—and tested positive in May 2016—thirteen months into the case. Based on those facts, the trial court could not be certain Ashley had made significant material progress toward lasting sobriety. In Dinkins v. Arkansas Department of Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001), our supreme court noted that where the mother had been receiving services but had still not managed to comply consistently with her case plan, TPR was appropriate to effectuate the intent of the statute. Id. The court gave due deference to the trial court, which had observed the witnesses first-hand. Id.
This court has considered a parent’s substance abuse as a factor in support of termination. See Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703; see also Humbert v. Ark. Dep’t of Human Servs., 2015 Ark. App. 266, 460 S.W.3d 316. In the present case, Ashley’s overall history, including recent events that occurred during the last few months of the case, such as her positive tests for methamphetamine and hydroco-done, haplayed an integral part in the trial court’s decision to terminate Ashley’s parental rights. Even though Ashley had completed parts of the case plan and seemed to participate during parts of the case, partial compliance with a case plan does not justify reversal of a termination case if the parent continued to make decisions adverse to the child—in this case, abuse of illegal drugs and positive drug tests. In this case, the completion of portions of the case plan did not achieve the intended result of making Ashley capable of caring for her children. See Wright v. Ark. Dep’t of Human Servs., 83 Ark.App. 1, 115 S.W.3d 332 (2003).
The trial court was not required to believe Ashley’s self-serving testimony that she had remedied her drug problem and would remain drug free without completing drug treatment. Ashley’s relapse after at least eleven months of court supervision demonstrated the potential harm the children would face if returned to Ashley. See Tillman v. Ark. Dep’t of Human Servs., 2015 Ark. App. 119, at 4, 2015 WL 831629 (stating that the mother’s “continued use of drugs showed potential harm to the children”); Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7.
Affirmed.
Harrison and Klappenbach, JJ., agree.
, Ashley was arrested and charged with felony possession of a schedule two controlled substance, possession of drug paraphernalia, simultaneous possession of drugs and firearms, and maintaining a premises for drug sales.
. The trial court found that Galen Pitts, the children's putative father, failed to present evidence that he established significant contacts with the children, and his parental rights did not attach. The trial court dismissed Pitts, and he is not a party to the instant appeal. | [
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JOHN DAN KEMP, Chief Justice
1 ⅜ Appellant Dennis Van Jenkins has appealed from the denial of his pro se petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2016). In the pro se petition filed below, Jenkins alleged that his sentence was illegally imposed in that he was sentenced for multiple offenses that arose out of one course of conduct. Jenkins cited Rowe v. State, 276 Ark. 37, 627 S.W.2d 16 (1982) (per curiam), as authority for the proposition that a defendant may not be sentenced on both a charged felony and an underlying felony, as the underlying felony is a lesser-included offense. The trial court denied the petition as an untimely Rule 37.1 petition over which it had no jurisdiction.
Now before this court is Jenkins’s pro se motion for appointment of counsel and stay of briefing schedule in his pending pro se appeal. An appeal from an order that denied a petition for a postconviction remedy will not be permitted to go forward where it is clear that the appeal is wholly without merit. Justus v. State, 2012 Ark. 91, at 2. Because Jenkins alleged that his sentence was illegally imposed and otherwise failed to demonstrate that the sentence was illegal on its face, he cannot prevail. Therefore, we dismiss the appeal, and his motion is rendered moot.
Jenkins is incarcerated pursuant to a 2001 conviction for first-degree murder, aggravated robbery, and theft of property. He was sentenced as a habitual offender to an aggregate term of life plus 360 months’ imprisonment. We affirmed. Jenkins v. State, 350 Ark. 219, 85 S.W.3d 878 (2002).
Arkansas Code Annotated section 16-90-111(a) provides authority to a trial court to correct an illegal sentence at any time. See Reeves v. State, 339 Ark. 304, 310, 5 S.W.3d 41, 44 (1999). An illegal sentence is one that is illegal on its face. Abdullah v. State, 290 Ark. 537, 540, 720 S.W.2d 902, 904 (1986). A sentence is illegal on its face when it is void because it is beyond the trial court’s authority to impose and gives rise to a question of subject-matter jurisdiction. Lambert v. State, 286 Ark. 408, 409, 692 S.W.2d 238, 239 (1985). A sentence imposed within the maximum term prescribed by law is not illegal on its face. Fritts v. State, 298 Ark. 533, 535, 768 S.W.2d 541, 542 (1989).
Here, Jenkins did not allege in his section 16-90-111 petition that his sentences were facially illegal, but rather that the sentences were imposed illegally in violation of the prohibition against double jeopardy. See Rea v. State, 2015 Ark. 431, at 3, 474 S.W.3d 493, 496 (explaining that the purpose of the double-jeopardy clause is to protect a defendant from multiple punishments for the same offense). Double-jeopardy claims are claims that can be raised at trial and for the first time in a postconviction petition filed pursuant to Arkansas Rule of Criminal Procedure 37.1. See State v. Montague, 341 Ark. 144, 146, 14 S.W.3d 867, 868 (2000) (explaining that double-jeopardy claims must be raised at trial and are not treated as an issue of subject-matter jurisdiction that can be raised for the first time on direct appeal); see also Rowbottom v. State, 341 Ark. 33, 36, 13 S.W.3d 904, 906 (2000) (holding that double-jeopardy claims are fundamental claims that can be raised for the first time in petitions for postconviction relief pursuant to Rule 37.1). Therefore, Jenkins raised a claim challenging the legality of the imposition of his sentence that is cognizable under Rule 37.1 and subject to the time limitations set forth in Rule 37.2.
Moreover, the sentences imposed in Jenkins’s case did not violate the prohibition against double jeopardy and his reliance on Rowe, 275 Ark. 37, 627 S.W.2d 16, was unavailing. While the imposition of multiple sentences in Rowe was once prohibited by law, the law was changed. Clark v. State, 373 Ark. 161, 164, 282 S.W.3d 801, 803-04 (2008) (citing Arkansas Code Annotated section 5—1—110(d)(1) (Repl. 1997)). Indeed, the relevant code section 5-1-110(d)(1)(B) stated,-in pertinent part, as follows: “Notwithstanding any provision of law to the contrary, separate convictions and sentences are authorized for: Murder in the First Degree, § 5-10-102, and any felonies utilized as underlying felonies for the murder[.]”
Jenkins was found guilty of first-degree murder in furtherance of the crime of aggravated robbery and theft of property, namely, stealing the victim’s truck. See Jenkins, 350 Ark. at 227, 85 S.W.3d at 882; Jenkins’s sentences of life imprisonment, thirty years’ imprisonment, and ten years’ imprisonment, respectively, with the ten-year and thirty-year sentences to run concurrently, but consecutively to the life-imprisonment sentence, were within the maximum sentences allowed by law. Id. at 221, 85 S.W.3d at 879. The trial court did not clearly err when it" denied Jenkins’s petition to correct an illegal sentence as an untimely petition under Rule 37.2.
Appeal dismissed; motion moot.
. The law was changed by Act 657 of 1995. Section 1 of that Act provided "[i]t is the intent of the legislature pursuant to Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), to explicitly authorize separate convictions, sentences, and cumulative punishments for the offenses specified in [this] Act.” The record demonstrates that the offenses for which Jenkins was convicted and sentenced took place on December 11, 1999.
. Under the recent version of this code section, this language appears in section 5-1-110(d)(1)(C) (Repl. 2016). | [
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(xKiFFiN Smith, C. J.
Appellant alleged and testified that be was severly injured in September, 1935, as tbe result of a fall occasioned through negligence of a fellow-servant. Tbe trial court ruled that proof offered on appellant’s behalf was not sufficient to establish liability, and so instructed tbe jury.
Tbe accident occurred near Vineland, Mo., and suit was brought under tbe Federal Employers’ Liability Act. Appellant was working with others in constructing a large form into which concrete was to be poured in tbe process of building bridg’e piers. Tbe lining of tbe structure was made of one-inch “lagging” laid horizontally and supported by vertical 2x4 studs. This was reinforced externally by 4 x 8 horizontal timbers 18 feet long, called.“wales,” and these heavier timbers, in turn, were “tied” with steel rods extending from outside-to-outside, through the wales and lagging. The wales were not long enough to reach the full length of the form, and were “spliced” by placing a short piece end-.to-end with longer piece. In order to give strength and rigidity, and to overcome defect incident to the use of shorter timbers, the wales were laid two-ply so that the “breaks,” or “joints” were covered by overlapping alternate timbers. "When each complement was laid, the result was that two 4 x 8’s were bolted side by side, giving a completed 8x8 wale.
The first and second wales had 'been finished with the' crew working from the ground. Thereafter, it was necessary for one man to work from the side of the form placing the timbers. For convenience in temporarily placing the wales, brackets were nailed to the 2x4 studs at convenient distances along the side of the form, upon which the heavier timbers were laid until bolted.
At the time appellant experienced his misfortune, he was working at a point about fourteen feet from the ground. He was standing on a completed wale, assisting in the placing of timbers on the bracket above. The first 4x8 for the fourth wale had been put in position, but not bolted when the second timber was drawn up by a fellow-servant named Cook, operating from the top of the form by means of a rope. Appellant testified that, he had followed the timbers up, and while standing about six feet from the end of the form on the bolted 8x8 platform, he held to one of the 2x4 studdings with his right hand. While in this attitude one end of the timber which was being drawn up ¡by Cook caught under the bracket near appellant, the other end then extending to a point beyond the west end of the form, where a fellow servant named Robertson was stationed. Appellant says he undertook to disengage the timber from the' bracket, and as he did so Robertson negligently jerked the other end; that he (appellant) grabbed for safety and caught the wale that had been temporarily placed on the brackets; that not having been bolted, it turned, and he fell to the ground and sustained serious injuries.
Appellant admitted that he had been in the bridge building service about four years; that he was experienced in building forms, and knew all about the work.
We think there was sufficient testimony for submission to the jury. If appellant’s claim that Robertson negligently manipulated the timber is sustained, recovery would lie. Appellant said: “I had the timber out this way (indicating) and this other wale was next to my shoulder. It wasn’t fastened, and when he (Robertson) jerked that wale to him, why, it jerked me loose and I hollered at him and grabbed at the first waling that had been put up there, and it rolled over and I fell . . . Robertson grabbed the timber and jerked it around toward him . . . That jerked me loose from the studding I was holding on to.”
Reversed and remanded for a new trial. | [
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Holt, J.
May 15, 1934, A. J. Harris, appellant, obtained a judgment in tbe Independence circuit court against Dora Fraser in tbe amount of $133.95. Tbis judgment not having been paid, appellant filed allegations and interrogatories for writ of garnishment February 28, 1938, and this writ was duly served on appel-lee, Dr. Marcus Harris, garnishee, March 10, 1938.
The interrogatories so propounded by appellant, and the answers thereto of appellee, Dr. Marcus Harris, filed April 4, 1938, are as follows:
“1. Were you, on and after the service of garnishment herein upon you, indebted to Dora Fraser, the defendant? If so, how, and in what amount?
“Answer: I executed two notes to Dora Fraser, one for $3,000 and one for approximately $300, on which there is a balance due in the year 1943, nothing due at this time. One of these notes is now owned by a bank at Tuckerman.
“2. Have you had in your hands or possession, on or after the service of the writ of garnishment herein upon you, any goods, chattels, moneys, credits, or effects belonging1 to Dora Fraser, the defendant? If so, what was the nature and value thereof ?
“Answer: No.”
April 11, 1938, appellant (plaintiff below) filed a reply to the answers of appellee, as garnishee, to the said interrogatories, in which appellant denied that they were true and correct answers, and denied that his answer to interrogatory No. 1 was sufficient because “The garnishee does not state which note is owned by the bant at Tuckerman, nor does he state when the $3,000 note is due, and how it is being’ paid. ’ ’
There was no further answer or response on the part of Dr. Harris, garnishee, until in March, 1940, at which time in answer to additional interrogatories propounded to him by appellant, he admitted that at the time the writ of garnishment, supra, was served on him, March 10, 1938, he (appellee) was making payments of $20 per month to Dora Fraser, the judgment debtor; that he ceased making these payments when the writ of garnishment was served upon him; but that after there had accumulated in his hands the sum of $240, he paid this amount over to Dora Fraser, the judgment debtor.
April 1, 1940, the matter was tried before the court, sitting as a jury, and the court. dismissed the writ of garnishment and rendered judgment in favor of garnishee (appellee here), as stated by appellee in his brief, “for the reason that there was no showing that there was anything due upon either of said notes and therefore Dr. Marcus Harris is not subject to garnishment.” The case is here on appeal.
The record reflects that on the date the writ of garnishment was served upon the garnishee, Dr. Marcus Harris, he had. executed two notes due in 1943 to Dora Fraser, the judgment debtor, one in the amount of $3,000 and the other in the amount of $300, one of these notes being’ owned by a bank at Tuckerman. Just which one of the notes the bank at Tuckerman owned is not disclosed.
It further appears that at the time the garnishment was served, the garnishee was paying to Dora Fraser $20 per month, and that while he ceased to make these payments when the writ was served, thereafter, after allowing $240 to accumulate in his hands, he paid this amount over to Dora Fraser as part payment on one of the notes. This $240 payment was made to Dora Fraser before the garnishee, Dr. Harris, had made full and com- píete and satisfactory answers to appellant’s interrogatories. Full, true, and complete answers, as contemplated under §§ 6123 and 6124 of Pope’s Digest were not made by the garnishee until March 21, 1940.
It is the settled rule that the effect of the service of the writ of garnishment is to impound all property in the hands of the garnishee belonging to the judgment debtor (in the instant case, .Dora Fraser) at the time of service,-or that may thereafter come into his hands, up until the filing by him of a true and correct answer. Magnolia, Petroleum Co. v. Wasson, 192 Ark. 554, 92 S. W. 2d 860. In th.e Magnolia Petroleum case we held that “Recovery in garnishment proceedings can be had only up to date of filing answer. ’ ’
In Hockaday v. Warmack, 121 Ark. 518, 182 S. W. 263, this court said: “It is a well settled rule that a garnishee, after service of the writ upon him must retain possession of all property and effects of the principal debtor in his hands, and if he fails to do so he is liable for the value of the same to the plaintiff in the principal action. Such was the holding of this court in Adams v. Penzell, 40 Ark. 531.”
It is earnestly contended, however, by appellee that the trial court correctly quashed the writ and dismissed the garnishee for the reason that neither of the notes in question was due at the time of the service of garnishment. It is our view, however, that the court erred in so holding.
The general rule on this question is stated in 28 C. J. 129, § 171, in the following language: “Under some statutes it has been held that a debt not presently payable is not subject to garnishment. But generally debts contracted, although not presently payable or matured, but which will certainly become payable in the future, may be reached. And this, although the terminology of the statute is that claims or debts ‘due’ may be garnished, the term ‘due’ being taken in its larger sense as importing merely an existing obligation, without reference to the time of payment. In some jurisdictions the statutes expressly authorize the garnishment of debts absolutely payable in futuro. In order, however,- that a debt not presently payable may be reached by garnishment', it must be one which will become payable absolutely, and not dependent upon any contingency. ’ ’
Under this section the author cites our own case of Dunnegan, et al. v. Byers, 17 Ark. 492, which follows the general rule. There this court held that a promissory note was subject to garnishment before it became due. We quote from the opinion as follows:
‘ ‘ The only question really, which is legitimately presented upon the record, for our consideration is, whether the appellants were subject to the process of garnishment until after the debt was due.
“In cases of attachment and garnishment, either before a justice of the peace or in the circuit court, the statutes contemplate that the garnishee may be summoned before the debt is due, and provide for a stay of execution until after its maturity, where it is not due when the judgment is rendered. Digest, chap. 16, 16, 20; chap. 17, §§ 26, 37.
“The statute providing for judicial garnishments (Digest, chap. 78) is silent on this point; but it is equally as broad and comprehensive as the statutes above referred to, as to what effects of the principal debtor may be reached in the hands of the garnishee. It provides: ‘In all cases where any plaintiff may have obtained a judgment . . ., and shall have reason to believe that any other person is indebted to the defendant, or has in his hands, . . . goods and chattels, moneys, credits and effects belonging to such defendant, such plaintiff may sue out a writ of garnishment, . . .’ Section 1.
“Again: ‘The plaintiff . . . shall file allegations and interrogatories . . . upon which he may be desirous of obtaining the answer of such garnishee, touching the goods and chattels, moneys, credits and effects of the said defendant, and the value thereof, in his hands and possession at the time of the service of such writ, or at any time thereafter.’ Section 3.
“In Massachusetts, under a statute not more comprehensive in its terms than this, it is well settled that a debt, certainly payable at some future day, and not dependent upon a contingency, is subject to garnishment or trustee process, as it is called there. (Citing cases.)
“In Childress v. Dickens, et al., 8 Yerger (Tenn.) 113, it was held, that by the statutes of Tennessee, a debt which was not due could not be attached in the hands of a garnishee. That the garnishee was only required to answer what he was indebted at the time of the summons.
“But, by our statute, the garnishee is required to answer as to his indebtedness, etc., at the time of the service of the writ, or at any time thereafter.
“We think the statute is broad enough to cover debts falling due after the issuance and service of the writ: and if not due at the time the garnishee answers, being, to some extent, in' the nature of an equity proceedings (Walker v. Bradley, 2 Ark. 578) the court would have the power to continue the case until the maturity of the debt, or render judgment with stay of execution.
“’There is no good reason, why a debt not due, should be subject to the process of attachment and garnishment and not to judicial garnishment.
“The debtor has no cause of complaint. It merely fixes a lien upon the debt in his hands, in favor of the plaintiff in the garnishment; he is allowed the privilege of answering; the benefit of all just defenses; he is not subjected to costs, and not required to pay the debt until it is due. A more rigid and narrow construction of the statute would restrict its usefulness.”
Our present garnishment statutes, §§ 6119, 6123, 6124 and 6125 of Pope’s Digest, are in all essentials identical with the garnishment statutes existing and in force at the time the Dunnegan case, supra, was decided.
In the instant case the judgment debtor owned and held one of the notes executed to her by Dr. Marcus Harris, garnishee, at the time the writ of garnishment was served on him. It had never been negotiated. He was making payments on it at the time the garnishment was served March 10, 1938, and when his answer giving true and correct answers was filed March 21, 1940, he had actually paid to Dora Fraser, the judgment debtor, $240, an amount more than necessary to pay appellant’s judgment against her.
We conclude, therefore, that the trial court erred in quashing the garnishment and discharging the garnishee, and for the errors indicated the judgment is reversed and judgment will be entered here against appellee, Dr. Marcus Harris (garnishee below) for $133.95 with interest at 6 per cent, from May 15, 1934, together with costs. | [
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McHaNEY, J.
Appellant brought this action to cancel, as a' cloud on his title, a certain mineral deed exe cuted by himself and wife to appellee to an undivided one-half interest in the minerals under the SW% of the NE14 of section 14, township 16 south, range 22 west, in Columbia county, Arkansas, dated March 15, 1937, on the ground of failure of consideration.
It is undisputed that on March 2, 1937, appellant executed an oil and gas lease to appellee covering said land for an agreed consideration of $200 to be paid on approval of title by his attorneys. The lease was deposited in escrow in a bank in Waldo, pending approval of title. On March 5, 1937, appellee’s attorneys disapproved the title because of a tax forfeiture and sale of nine acres. On March 12, appellee took the lease out of the bank and caused it to be put of record. ITe tried to get a quitclaim deed from the purchaser at the tax sale, but failed to get it. At this point the evidence is in dispute. Ap-pellee testified that shortly after he failed to get said quitclaim deed, he saw appellant and told him he would be unable to accept the lease, and explained to -him that since the tax deed covered only nine acres, if appellant would give him a mineral deed to one half of the land, he would accept the lease and pay the purchase price of $200 for both conveyances; that appellant agreed to this and on March 15,1937, he and his wife conveyed to appellee one-half the minerals under said land. Appellee further testified that he told appellant he would try to clear up the title and if he succeeded, it would also clear up appellant’s title to the remainder. Appellant admitted the execution and delivery of the mineral deed, but stated very positively it had nothing to do with the lease or the $200 purchase price; that the consideration for the mineral deed was the agreement of appellee to clear up the title to his land; that he had done nothing about clearing the title; and that the consideration had failed.
Trial resulted in a decree dismissing the complaint for want of equity.
Appellant argues that the act of appellee in taking the lease agreement out of escrow and putting it of record constituted an acceptance of the title as a matter of law. We do not think so, although it is cogent evidence of an acceptance. But appellee testified he thought he could get a quitclaim deed from the tax purchaser which he failed to get. Both the bank and appellant were anxious for the $200 to be paid, as the bank held a mortgage on the property and appellant desired to satisfy the bank out of the proceeds. Appellee notified the bank and appellant that he could not take the lease on account of the title, but would take it with the mineral deed, and pay the $200 and that all this was agreed to before the lease was recorded or the purchase money paid. As we see it, only a question of fact is presented, and we are unable to say the decree of the court is against the clear preponderance of the evidence.
Affirmed. | [
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Smith, J.
Agee Ball ordered a specially constructed truck body through the Ball Chevrolet 'Company which company acted as the agent of W. C. Nabors Company in accepting the order. The order was accepted by Joe Ball, the manager of the Chevrolet Company. Joe and Agee are brothers. The Nabors company operates a manufacturing plant at Mansfield, Louisiana, where it fills orders of this kind.
When the truck was delivered, it was apparent that the body had not been constructed in accordance with the specifications, and Agee testified that he declined to accept it, hut that he was induced by his brother to try it out. This he did, but the truck was never accepted, although he retained possession of it for three and one-half months, at the end of which time Agee delivered the truck to the Chevrolet company and was repaid the purchase price of the truck body. The Chevrolet company thereupon sued its principal, the Nabors company, upon the refusal of the latter to refund, and from a judgment in favor of the plaintiff is this appeal.
At the plaintiff’s request the court gave instructions numbered 1 and 3, reading as follows :
“1. If you find on a preponderance of the evidence that the defendant agreed to construct the truck bed for the plaintiff’s customer according to certain plans and specifications and that said defendant constructed a bed, but the same was not in accordance with the plans and specifications agreed upon, and that plaintiff was damaged thereby, then you would find for the plaintiff and fix his damages at such sum as you may find the plaintiff suffered by reason of the defendant’s breach of his contract, if any.”
“3. You are instructed that if you find from a preponderance of the evidence that the defendant company accepted an order to construct a truck bed for Agee Ball of certain specifications and dimensions and that such sale was handled by and through the plaintiff company and that the truck bed delivered to the plaintiff or to Agee Ball was not constructed in accordance with directions and instructions and that the said Agee Ball declined to accept same and you further, find that the plaintiff was damaged in the sum of $216 by reason of the breach of the contract upon the part of the defendant company, or by reason of defendant’s failure to furnish a truck bed in accordance with the order, you will find for the plaintiff.”
Numerous specific objections were made to the instructions, among others that they did not submit the question whether Agee, through his long retention and use of the truck body, had accepted it; nor did it submit the question whether the Nabors company had been afforded a reasonable opportunity to make the truck body conform to the specifications. Testimony was offered on behalf of the Nabors company to the effect that the truck body did, in fact, conform to the specifications in accordance with which it had been constructed, and, further, that it offered, upon complaint being made, to make the truck body conform to what the purchaser said the specifications were, but that it was not afforded this opportunity.
At the request of the defendant the court gave an instruction designated B,- reading as follows: •
“If you find from the evidence that plaintiff took the truck body and used it and then, without good cause, refused to give defendant a reasonable opportunity to correct defects therein or to correct variations from the specifications, if you find there were such defects or variations, then the plaintiff is not entitled to recover the purchase price and you will find for the defendant.”
But the trouble with the instructions is that B is in conflict with instructions 1 and 3, and but for this conflict we would have no hesitancy in affirming the judgment.
The parties to this litigation do not disagree as to the law of the case, in fact, they cite the same cases to support their respective contentions.
The purchaser is entitled to have delivered to him the article which he contracted to buy, and he cannot be compelled to accept another or a different one. When an article is bought on order, as was the truck body in this case, the purchaser is entitled to a reasonable opportunity to inspect and test the article purchased, and this he may do without being held to have accepted it. But, when that opportunity has been afforded, and has been exercised, he must then accept or reject. He cannot keep the article and use it and thereafter rescind his purchase. He is thereafter remitted to an action for damages. The defects, or, rather, variations from the specifications, were not latent, but were open and obvious. They related to the length and width of the truck body, and the absence of wheel housing and the absence of braces in the center of the body of the truck bed.
The contract price of the truck body was $216 and the suit was brought to recover that sum, and the judgment was for that amount, so that a rescission was effected by the judgment from which is this appeal. Instruction numbered 3, above quoted, authorized the verdict, if the jury found the facts to be as required by instruction numbered 1, and these were only that the bed had not been constructed in accordance with the plans and specifications agreed upon. Instructions numbered 1 and 3 permit a recovery regardless of any finding which might have been made upon the issues submitted in instruction B. The instructions are, therefore, conflicting, and for this reason the judgment must be reversed. In the recent case of Missouri Pacific Transportation Co. v. Howard, ante, p. 6, 143 S. W. 2d 538, we said: “Cases upon the effect of conflicting instructions were reviewed by Justice Butler in the case of Herring v. Bollinger, 181 Ark. 925, 29 S. W. 2d 676, with his usual discrimination, and the rule announced in St. Louis, Iron Mt. & S. R. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375, 1199, was approved as follows i ‘An instruction which ignores a material issue in the case about which the evidence is conflicting and allows the jury to find a verdict without considering that issue, is misleading and prejudicial, even though another instruction which correctly presents that issue is found in other parts of the charge.’ ”
For this error the judgment must be reversed, and it is so ordered, and the cause will be remanded for a new trial. | [
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Mehaeey, J.
On January 31, 1939, appellee instituted this suit ' against the appellant alleging that she was injured by the negligence of.appellant on September 28,1936. Appellee was in business and the appellant had placed a car on a switch adjacent to appellee’s warehouse, which car was being unloaded, having been placed there for that purpose, and the stage plank was placed with one end in the railroad car and the other end extending into the building occupied by appellee. While the car was being unloaded a coupling was made. One of the employees of appellant, a member of the switching crew, came to the door of the warehouse and said he had to move the car that was being unloaded. The appellee immediately took hold of the handles of the truck upon which the plank rested in the warehouse for the purpose of assisting her employees in removing the stage plank from the car so that it could be moved safely; that while appellee had hold of the truck handles appellant’s servants in charge of the switch engine caused it and the cars connected to it to strike against .the car she was assisting to unload and knock the plank. against the appellee with great violence, throwing her to one side a distance of several feet, severely bruising and wounding her; that it gave her severe headaches for a long time followed by extreme stiffness, rigors, dizziness and high blood pressure, and causing her to be confined to her bed at intervals- ever since; that she was immediately confined to her bed for two months after the accident; her nerves were so shocked that she could not sleep for many months thereafter without taking sedatives; she still suffers constantly from traumatic neurosis, hypertension, and pinched spinal nerves caused by said shock;.her blood pressure runs as high as 225, and she has severe pain in her neck and back and extreme dizziness upon turning her head; that her injuries were caused by negligence of appellant’s servants in backing the switch engine and train into said car while she was attempting to remove the plank; that her injuries are permanent and she will continue to suffer therefrom throughout her entire life.
Appellant filed answer' denying each and every material allegation of the complaint, and pleading ap-pellee’s contributory negligence.
An amendment was filed to the complaint alleging that it was the duty of appellant’s employees to keep a constant lookout for persons and property, and that appellant’s employees operating the switch engine neglected and failed to keep such lookout at the time she was injured, and if it had been kept her peril would have been discovered in time to have avoided the injury by the exercise of ordinary and reasonable care.
There was a verdict and judgment for the appellee in the sum of $5,000; motion for new trial was filed and overruled, and the case is here on appeal.
The evidence showed that appellee had lived in Pine Bluff all of her life, and that her place of business is located at 216-228 Chestnut Street; she is a partner in the business; she did the buying and some ‘of the selling; was assistant manager and she did the check ing of the freight in and out; she either walked or rode to her work; has driven a car for 27 years; was always able to drive before she was hurt and has driven some since; the partnership has two warehouse doors on the track, and habitually uses the nearest — the east one; door is seven or eight feet in width; in conveying merchandise from the car into the warehouse they used two trucks; had a crew of about four, one in the house, one in the car, and one on each truck; takes two days, as a rule, to unload those cars; the stage was placed in the usual way; it was the custom in unloading cars to raise the edge of the stage, the end that stays in the warehouse, and place a hand truck under it; the truck has two wheels and handles back at the end; two men hold the handles and the other man is supposed, to push the truck under the end of it and raise that end; appellee understood that the name of the man who asked her to move the stage was Dobbins, the switchman; the switchman put his head in the door and saw the stage in position showing that they were working on the car; this man told them to get the board out of there; appellee told him he would have to wait until she could get another man; they usually stand there until the car is cleared; when witness told the switch-man he would have to wait, the switchman turned to a boy and told him to catch hold of the board; the end of the stage was raised and witness pushed the. truck under; switchman was standing in a position where he could easily see in the warehouse; appellee was looking down at what she was doing;,she had.to take hold of the handles; the board was heavy; her hands were about 24 inches from the floor; her he.ad was down and the first thing she knew she was over by the door; was jerked over there by the ’operation of the engine; the engine struck before they ever lifted the stage; she felt .like she had been in an explosion and like her arms had been pulled out the sockets, and her neck was stiff. Appellee then described her injuries and the treatment.
Dr. Luck and Dr. Oausey testified about appellee’s injuries. '
W. M. Kincannon, Ona Hampton, Glenn A. Rails-back, Lawrence Sims, I)r. B. G. Campbell, and Dr. W. C. Campbell testified for appellee. Several witnesses testified for appellant.
Appellant’s first contention is that there is not sufficient evidence of negligence to support the verdict. It is undisputed that the appellee was in business there, and had received a car of freight which was placed adjacent to her warehouse to be unloaded; that she was unloading it, and in order to do so, she placed a plank from the door of the car to the door of the warehouse; while she was thus engaged in unloading her freight, a switchman came to her and told her to take the plank down; that they were going to move the engine; she immediately proceeded to carry out this order, and while she was trying to remove the plank, appellant’s engine struck the car and injured appellee. The switchman testified that it was his duty to give this order, and that he did not look back or signal the engine. It was the duty of the appellant, when appellee was ordered to remove the plank, to give her time to remove it and get out of danger. There is no evidence in the record showing that they gave her any time or any warning, but while she was attempting to comply with appellant’s order, the engine was run against the car, and there is no evidence that there was any lookout kept.
In support of his contention, the appellant cites De Queen & Eastern Rd. Co. v. Pigue, 135 Ark. 499, 205 S. W. 888. In that case the court said: “The car was moved without any signal or warning to those engaged in unloading the freight from it. It is well settled in this state that it is the duty of the carrier to. exercise ordinary care in moving its ears to prevent injury to owners of freight and their employees rightfully engaged in loading or unloading cars.”
Appellant also calls attention to and relies on Mo. & N. A. Rd. Co. v. Duncan, 104 Ark. 409, 148 S. W. 647. The court in that case copied with approval from 3 Elliott on Railroads, § 1265c, as follows: “Shippers and consignees of freight on railroad premises for the purpose of loading and unloading cars are properly there .... and the railroad company is hound to use reasonable care to avoid injuring them while so engaged. If such persons, while so engaged and without negligence on their part other than that in attention to their own safety which an absorption in the duties in which they are engaged naturally produces, are hurt by the negligence of the railroad company, they have an action for damages”, and the court then said: ‘‘and it is further said that it is the duty to warn such shippers or consignees of the intention to switch cars over a track on which their car is placed, and that such persons do not assume the risk of injuries arising from this cause.”
Appellant also calls attention to the case of M. D. & G. Rd. Co. v. Yandell, 123 Ark. 515, 185 S. W. 1096. In that case the court said: “The car had been turned over to the shipper by the railroad agent for the purpose of loading it. The plaintiff was employed by the drayman to assist in loading the goods into the car. Hence he was rightfully in the car and it was the duty of the defendants to exercise ordinary care in giving notice or warning of, the intention to make the coupling. ’ ’
The appellant then, refers to Little Rock & Hot Springs Western Rd. Co. v. McQueeney, 78 Ark. 22, 92 S. W. 1120. In that case the defendant railroad company objected to instruction No. 1 of the plaintiff, because it made applicable the lookout statute, and the railroad company argued that this act did not require a lookout to be kept by persons running cars and engines in a railroad yard, and the court said: “To sustain this contention, it will be necessary to hold that the tracks in the yards do not constitute a part of the railroad. But this is- not true. Every track necessary to its operation is a part of the railroad. The, act was obviously intended for the protection of persons and property upon railroad tracks, and all tracks and cars moved thereon come within its provisions. Persons and property upon any railroad track need and are entitled to its protection. The act makes no exceptions, and ap plies to all cases which come within the mischief intended to he-remedied and within its object.”
In the case of Kelly v. DeQueen & Eastern Rd. Co., 174 Ark. 1000, 298 S. W. 347, this court said: “The effect of our holding in the former opinion is that, where proof has been introduced by the plaintiff of an injury to a person by the operation of a train under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout had been kept, then the burden is shifted to the railroad company to show that such lookout was kept.”
This court said in the case of Mo. Pac. Rd. Co. v. Barham, 198 Ark. 158, 128 S. W. 2d 353; “The railroad company and its trustee could not defend against a failure to keep a lookout, nor under the doctrine of discovered peril by alleging that appellee was guilty of contributory negligence and the instruction so declaring was not error. The lookout statute itself abolishes contributory negligence as a defense to a failure to comply with its provisions.”
In this ease there is no evidence that any lookout was kept. The engineer did not testify and the switch-man who ordered the plank removed did not signal the engine or notify the engineer that the plank was being moved.
We think the appellant was clearly guilty of negligence in ordering appellee to remove the plank and then immediately, before she had time to remove it, without giving any warning, running the engine against the car.
It is next contended that the evidence is not sufficient to show that appellee’s physical disabilities resulted from the alleged accident. The testimony of ap-pellee clearly shows that her physical disabilities resulted from the accident, and there is no evidence to the contrary.
It is next contended that the verdict is excessive.. Appellant calls attention to no authorities supporting this contention. Appellee testified that she felt like she had been in an explosion and like her arms had been pulled out of the sockets, and that her neck was stiff; her arms ached excessively, her shoulders were injured, and she could not rotate her head; if she turned her head, immediately everything seemed to go black; she had several spells in her room daily, and was unable to sleep at night until she started wearing a brace; Dr. Campbell of Memphis, a bone specialist, treated her and she afterwards got a brace and could walk around, but she had to use sedatives until she got a-brace; she began wearing the brace in March; the brace is adjusted and pushes the other bones apart and the blood is supposed to pass between the vertebrae; she has restrictions in them; the brace holds the head off of her spine and keeps.her head from moving back and forth and prevents the dizzy spells; she was injured in the back in four different places; the brace extends from one end of the spine to the other and buckles around her body with leather straps; it rests on the spine all the way down and buckles all the way around; she was never free from pain before she put the brace on and is not free from pain since, but has much less pain; she gets relief from it and is able to walk; the apparatus attached to her head was what Dr. Campbell called a head traction; it consists of a hood that goes over the head and there is a chain back of it with two links that cause the chain on the ball to go over a pulley with six pounds of weight on the pulley; at first she could not stand six pounds; she had some massage treatments and took baths at Hot Springs; she cannot tell accurately what she had expended, but it is around $1,250; she recently had an attack and dizzy spell and fell on the sidewalk; her earning capacity has been reduced $150 or $200 a month; she was 54 years old at the time of the trial; after the accident she had high blood pressure and is very nervous; Dr. Campbell of Memphis told her she had traumatic neuritis or neurosis; both neuritis and neurosis.
The evidence shows that the appellee is still suffering and will probably continue to do so. It will be seen from the testimony that she lost five months; that her earning capacity was decreased; that she has to wear a brace on her spine constantly, and still suffers.
It has been repeatedly held that the amount of recovery in cases of this kind should be such as nearly as can be to compensate the injured party for the injury. The suit is for compensation, and compensation means that which constitutes or is regarded as an equivalent or recompense; that which compensates for loss or privation; remuneration; and this, of course, means not only for the loss of earning capacity and physical injury and inconvenience of wearing a brace, but also for suffering. Mo. Pac. Rd. Co. v. Remel, 185 Ark. 598, 48 S. W. 2d 548.
“While the discretion of the jury is very wide, it is not arbitrary or unlimited discretion, but it must be exercised reasonably, intelligently, and in harmony with the testimony before them. The amount of damages to be awarded for breach of contract, or in actions for tort, is ordinarily a question for the jury; and this is particularly true in actions for personal injuries and other personal torts, especially where a recovery is sought for mental suffering.” Coca-Cola Bottling Co. of Ark. v. Cordell, 189 Ark. 1132, 76 S. W. 2d 307; Coca-Cola Bottling Co. of Ark. v. Adcox, 189 Ark. 610, 74 S. W. 2d 771.
The rule for the measure of damages in personal injury cases is stated in 17 C. J. 869, et seq., as follows: “The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendants and support during the period of his disablement, and for such permanent injury and continuing disability as he has sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, .and it is obvious that certain of the results of a personal injury are insusceptible of pecuniary ad-measurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained. ’ ’
The amount of the damages is left largely in the discretion of the jury, not only because the jury is the trier of facts, but they see the injured party, hear her testify, and have an opportunity to observe her physical condition.
Under the evidence in this case we cannot say that the verdict is excessive.
It is next contended that the court erred in refusing to submit to the jury the issue of contributory negligence. In the first place, there is no evidence tending to show that appellee was guilty of any negligence.
This court said, in the case of Bumpas v. Sinclair Ref. Co., 191 Ark. 571, 87 S. W. 2d 29: “Usually the existence of contributory negligence which will bar a recovery is a question of fact for the jury’s consideration and judgment. Beal Boyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 S. W. 1053, 14 Ann. Cas. 48. But if the testimony in this regard be such that all reasonable minds must reach the same conclusion, then it resolves itself into a question of law. Gibson Oil Co. v. Bush, 175 Ark. 944, 1 S. W. 2d 88.”
The evidence in this case shows that the engine was operated without any lookout being kept, and without any warning to appellee. Under such circumstances contributory negligence is not a defense. Section 11144, Pope’s Digest; Mo. Pac. Rd. v. Barham, supra.
Appellee’s instruction No. 1 was not erroneous, and the court did not err in giving that instruction.
The judgment is affirmed. | [
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Grieein Smith, C. J.
The decree questioned by this appeal modified a master’s report relating to controversies between S. R. Thomas and the law firm of Frauenthal and Johnson.
Prior to November, 1927, Thomas was a successful business man and for many years had been represented by the firm whose fees are alleged to have been excessive. Having prospered financially as distributor of Dodge automobiles, Thomas extended his business operations and became financially involved to such an extent that creditors grew apprehensive; and when habitual intoxication impaired his usefulness, he acquiesced in an arrangement whereby Bankers Trust Company and Union Trust Company were designated assignees charged with the two-fold duty of administering assets for the protection of creditors, and directing operation of the automobile business. It was hoped through this arrangement to liquidate Thomas’ indebtedness and to return to him any surplus remaining after the obligations had been discharged.
As the result of a sanity hearing, Thomas was committed to State Hospital in Little Rock and remained there several months. He had previously received treatment at an institution in Illinois, where he was taken by Ector Johnson of the firm of Frauenthal and Johnson. During frequent periods of intoxication Thomas was arrested by peace officers and occasionally detained. Thomas alleged that the movement to procure his commitment to State Hospital was instituted by members of his immediate family. There is evidence that he was guilty of intermittent acts of violence extending over a long period of time, and that his conduct was such as to impress the attorneys with his mental incapacity,
In appellees’ cross-complaint it is stated that Thomas’ indebtedness to Union Trust Company was $107,043.75, and that he owed Bankers Trust Company $107,400.
It is conceded by appellees that Frauenthal and Johnson were attorneys for Bankers Trust Company and were paid an annual retainer. They did not, however, represent Union Trust Company.
Suit against Frauenthal and Johnson and the two banks was brought in 1934 by Price Shofner, guardian. When the guardian was discharged the canse was revived in the name of S. R. Thomas, who in the meantime had been adjudged competent. Judge Frauenthal died in December, 1935, and as to him the cause was prosecuted against Jo Frauenthal, administrator.
J. A. Sherrill, who was associated with Frauenthal and Johnson from May, 1929, to December, 1932, was made a defendant. There are numerous pleadings, including cross-complaints by Frauenthal and Johnson and Ector R. Johnson. Appellees contend that valuable • services not entered upon the firm’s books were rendered Thomas; that compensation was due for attention given the Thomas interests while held in trust by the banks, and that agreements now denied by appellant as to fees were to have been evidenced by writings.
In the original complaint filed by Shofner it was alleged that in February, 1931, Franenthal and Johnson collected from the state $52,211.14 and retained $26,105.57 as a fee; also, that shares of the capital stock of the S. B. Thomas Anto Company, Inc., pledged to the banks, had earned dividends, 80 per cent, of which should have been paid to appellant; that balances to the credit of the auto- . mobile company ranged from $40,000 to $50,000; that the bank controlled notes given by purchasers of automobiles amounting to $30,000 or $40,000; that these should have been collected and the proceeds, together with a substantial portion of the cash balances, applied in payment of dividends, 80 per cent, of which would have gone to appellant. Other matters are complained of, but in view of the fact that non-suits were taken as to the banks, they are not essential to this opinion other than to emphasize the contention that the pledged property was not administered as faithful trusteeship required.
First. — Poinsett County Road Claim. — Ector Johnson testified that when the item of $52,211.14 was col lected, lie remitted $26,105.57 to Bankers Trust Company and retained $26,105.57 as the firm’s fee. Appellant was not immediately informed the claim had been collected, and insists that it was merely by chance that the fact was ascertained.
In 1922 Peay & Jett undertook completion of a contract originally awarded A. Luck for construction of a highway from Harrisburg to Truman, in Poinsett county. Luck’s undertaking was guaranteed by U. S. Fidelity & Guaranty Co. Having failed in an effort to sell’ trucks to Peay & Jett, Thomas entered into a contract with the firm to haul gravel, his .compensation to be that received by Peay & Jett. When time for payment came, Thomas contended he had been led to believe there would be sufficient funds to compensate the work he had done. It developed, however, that the district had exhausted its resources. Unpaid federal aid was $10,000.
It was contended by appellee that Thomas was willing to accept $10,000 in settlement of his claim, although he had expended approximately $32,000. After considerable litigation it was determined that Thomas was entitled to $37,453.13. Johnson also insists that originally his firm was employed solely to collect the item of $10,000. A retainer of $500 was paid. The federal fund was deposited in a bank at Harrisburg. It failed in 1924, and Thomas did not receive anything from that source.
Thomas contended he was merely an employe and as such was entitled to protection under the bond executed to guarantee Luck’s performance. This was denied, coupled with an allegation that he became principal, which would siibject him to liability to the district and other claimants.
Johnson testified that Thomas informed him he would not advance any more money nor pay additional attorneys’ fee, and that he (Johnson) replied: “Well, if that’s the way you feel about it, I’ll be willing to go ahead and represent you on a contingent basis of 50 per cent, of what is actually recovered. He agreed to do that; and, under that agreement I proceeded to work the matter out.”
Johnson further testified that this agreement was made in Thomas’ office in 1924. There was no written memorandum. No one else was present. Johnson says he agreed to pay all costs and expenses in connection with the collection. Thereafter, copies of contracts, bonds, specifications, and estimates were procured, from the highway department. A review was made of all work done by Luck, Peay & Jett, and Thomas.' Luck, Peay & Jett, the district, and the XL S. F. & G. were named by Thomas in a suit for collection. Records were reconstructed. Only the bonding company was solvent, its contingent liability being $50,000. Peay & Jett had a written contract with Luck to assume the latter’s obligations, to which the bonding company assented. When sued, Luck, in a cross-complaint, alleged that Thomas assumed all bills unpaid by Peay & J.ett, and that Thomas was to look directly to the district for compensation. Altogether, 22 pleadings were filed. Thomas testified his agreement with Peay & Jett was verbal. He had formerly referred to a written contract witli the firm. Peay, in his deposition, asserted there was a written contract, but it was not produced.
The cause was submitted to the chancellor, who in December, 1926, gave a memorandum opinion sustaining the contention that Thomas was entitled to recover from all defendants, but allowed only cost of the work ($23,-000) instead of $37,000, which would have been the amount due if the Luck contract had been used as a basis of computation. The finding was also against the U. S. F. & G. Before the decree proper was signed, counsel for those against whom the chancellor had indicated judgment would be rendered asked for appointment of a master, and the request was granted. November 28, 1929, the master made his report recommending judgment against the four defendants for $37,000, with interest at six per cent, from 1924. The following is copied from appellees ’ brief, and has reference to the testimony of Ector Johnson given in the case at bar:
“We prepared a decree in compliance with (the master’s) report, which our adversaries objected to. In the meantime — in the latter part of 1928 — (and one of the reasons for delay before the master) there were negotiations in which we participated between attorneys throughout the state who represented clients having claims against road districts with a view to having the legislature pass a bill for the state to pay such debts.”
Appellees .then review the history of the legislation referred to, emphasizing efforts expended when its constitutionality was attacked, and effectiveness of participation of the firm of Franenthal and Johnson in conferences, trials, and appeals.
June 6, 1930, John A. Sherrill, who had become a member of the firm of Franenthal and Johnson, sent Bankers Trust Company a bill for $120.90 representing expenses incurred between December, 1929, and April, 1930. ■
Johnson testified that although the bank paid this bill, and the amount was not refunded nor paid to Thomas, collection was through error, inasmuch as Sherrill was not familiar with the transaction, and:— ‘ ‘ I explained the situation to him and no more bills were sent.” Thereafter expenses of $1,500 or more were incurred and paid by the law firm.
Second. —Miscellaneous Contentions. — The answer and cross-complaint, considered as a whole, alleg'ed that services had been rendered Thomas of the value of $50,-000 for which payment had not been received. These services were mostly in 1927 and 1928, but some extended to 1930. Even as late as 1934 services in connection with insurance policies were rendered.
The answer pleaded payment, and the statute of limitation.' An expense item of $946.77 was allowed Frauenthal and Johnson, including a fee of $500 paid Owens & Ehrman for work done in connection with collection of the road claim.
Payment of $200 in 1924 to W. R. Haeglar was disallowed by the master because two settlements between Frauenthal and Johnson and S. R. Thomas had been made subsequent to that date. The Haeglar charge did not appear on appellees’ books until 1931.
Third. — The Gross-Complaint. — Thomas testified positively that, although he only superficially examined the contract Johnson proposed in connection with liquidation matters and assignment to Bankers Trust Company and Union Trust Company, one of the items was $5,000 for services in the road case. When asked if he was absolutely certain of this he replied: “Yes, sir— because that was the most important suit we had — that was the most important unfinished business that we had any hopes of getting any money out of. ”
Appellant was the owner of $2,000 of the capital stock of Schmand-Porbeck Candy Company. The corporation became financially involved. In consideration of additional stock appellant, in 1927, indorsed the company’s notes for $119,500. In July of the same year an audit showed operating losses for the preceding six months were more than $22,000. It is contended on behalf of Frauenthal and Johnson that they, knowing of other large obligations due by Thomas, became apprehensive. Following discussions with Thomas it was decided that an itemized statement of his assets and liabilities should be prepared. The result showed assets of $627,000 and liabilities of $578,000. There were additional assets aggregating $107,000, consisting of Schmand-Porbeck stock, and other stocks, which appel-lees state they considered worthless. Current liabilities amounted to $368,000. Appellant had become president of Commonwealth Life Insurance Company and Commonwealth Accident Insurance Company. Both were in financial difficulties. The insurance commissioner was threatening suit against Thomas for an asserted liability of $80,000.
In their brief this statement appears: “Appellees conceived the idea that it might he possible to induce [Bankers Trust Company and Union Trust Company] to act as trustees for Mr. Thomas and to assist in working out an orderly liquidation. ’ ’ Whether the suggestion for appointment of trustees came from the banks, from the law firm, or in consequence of conversations between the attorneys and Thomas, is not clear. Appellees maintain that after procuring appellant’s agreement they took the matter up with the banks “and prevailed upon them to agree to accept such an assignment and to act as trustee in an endeavor to orderly liquidate the indebtedness.”
It was contended that compensation for the services to be performed by appellees was thoroughly discussed. It was urged that “Because payment of a large fee in cash would handicap the prospects of getting the banks to advance additional moneys with which to compromise, settle, or pay off other indebtedness, it was agreed that the fee would be second and subordinate to, and the advances by, the banks.”
Ector Johnson, on behalf of appellees, testified it was first agreed that the firm’s fee would.be one-half of any amount saved to Thomas through the liquidating process, but “later it seemed advisable to specify a definite part of the fee to be payable, in cash so as to place the appellees in better position to collect a part of the compensation due them for their services rendered in the matter in event of bankruptcy.” Thereupon, the fee was changed to the fixed sum of $20,000, plus one-fourth of salvage. Written contract was prepared embodying these conditions, and notes for $20,000 were written.
According to Johnson’s testimony, Thomas objected to signing the notes. It was then agreed the fee would be $20,000, plus 25 per cent, of salvage, but the definite item would not be evidenced by notes. A substituted contract was prepared. In their brief appellees say: “Both appellant and his brother, H. C. Thomas, admitted seeing such a document, but stated that the items contained in it were not the same.”
In 1928 appellant purchased all assets of Schmand-Porbeck Company. Notes and accounts due the corporation were turned over to appellees for collection. Appellant testified that in March, 19.34, he attempted to procure information from Johnson regarding collections made on the candy company assets, but was not successful. He then employed an accountant and directed him to make an audit. It was found that collections had been placed with The Adjustment Bureau. There is testimony that the bureau was incorporated in 1928 by D. D. Panich, Ector Johnson, and A. W. Taylor, and that it continued to collect the Schmand-Porbeck accounts until July or August, 1929, when Panich and Johnson sold their stock to Taylor. In the record before us it is stipulated The Adjustment Bureau collected accounts due the Schmand-Porbeck Company, under employment by Frau-enthal and Johnson, amounting to $4,371.25. After the bureau’s fees of $907.91 had been deducted, the difference of $3,463.34 was received by the law firm, of which $580.34 was accounted for. Liability of $2,883 was admitted. There is this statement: “This stipulation does not include the additional sum of $1,468.26 alleged to have been collected by The Adjustment Bureau and not accounted for by it to Frauenthal and Johnson.” The stipulation was not joined in by Jo Frauenthal, administrator, or by John A. Sherrill.
Included in the assets covered by the Thomas assignment were life insurance policies amounting to $138,-000, with large loan or cash surrender values.
The controversy was referred to S. S. Jefferies, master, who found there was no agreement between Thomas and the law firm of Frauenthal and Johnson for a contingent fee either in the road district matter, or in the assignment transáction. He held that a fair fee, on the basis of service for making collection from the highway department and for work performed in reducing the account to liquidated form, was $15,000.
In holding that $15,000 was allowable for making the road collection, the master said: “I realize that a $15,000 fee is rather large, but this was a peculiar case, as I have heretofore outlined, and extended over a long period of years with the results somewhat in doubt, although I cannot understand from the evidence in the ease why the case was not prosecuted more diligently against United States Fidelity & Guaranty Company.”
There was reference in the master’s report to Johnson’s testimony that cost in the case amounted to $2,500. He thought this was mere surmise. Costs and expenses were allowed in the aggregate sum of $946.77. Payment of $500 made by Thomas as a retainer was deducted from $15,946.77, leaving a net allowance of $15,446.77. Judgment for Thomas against Frauenthal, administrator, and against Johnson and John A. Sherrill, for $10,-658.80, with interest from February 22, 1931, was recommended.
The special chancellor, in his findings of facts and declarations of law, allowed the expense item of $946.77, but also allowed $200 claimed by Johnson to have been paid W. R. Haeglar. In his comment the master said: ‘ ‘I am disallowing the $200 fee claimed by W. R. Haeglar, for I am of the opinion same has been paid. This payment was evidently made in the early part of 1924, and Frauenthal and Johnson have had two settlements with S. R. Thomas since that date.” The chancellor also found that $20,000, instead of $15,000, would be a fair fee for services rendered by the law firm in connection with the road case.
After identifying claims set up in the cross-complaint and making three distinct classifications, and mentioning the proposed contract as evidenced by unsigned copy found in Frauenthal and Johnson’s files as identified by Clyde Brewer, secretary for appellees, the chancellor said:- “Thomas had an opportunity to sign the agreement. He was requested more than once to sign it and be refused. Tbe burden is on tbe defendants to prove an assent to this agreement. I do not think tbe evidence is sufficient to sustain such an agreement. Tbe fee must be fixed on a quantum meruit basis. ’ ’
It was found that under management of tbe trusts (according to a financial statement of May 12, 1937) Thomas would have insurance policies with a present loan value of $22,595, 800 shares of stock of tbe S'. B. Thomas Auto Company, and certain other assets. Concerning values tbe chancellor said: “Beduced to reality, this statement indicates rather clearly that on final liquidation Thomas will probably have left the insurance . . . and the 800 shares of stock. ’ ’
There was this further comment by the chancellor: “ When we visualize the services Frauenthal and Johnson were called on to render in an attempt to serve S. B. Thomas, beginning with the cases set out in the cross-complaint first in point of time and follow the history of the cases as they progressed, one by one as proven by competent testimony, an unprejudiced mind gets a picture of a most difficult situation — one calling for long hours of labor, seasoned judgment, and willingness to accept responsibility. ... I cannot conceive of a more difficult problem confronting a lawyer. If the fee could be fixed on the basis of actual services, it would be greater than the court finds it possible to allow in this case, for the reason that the court is of the opinion that the salvage value of the Thomas estate does not justify a fee in excess of $20,000.”
An item of expense amounting to $377.30 was allowed.
The master found that after November 29, 1927, the trustees were proper parties to employ attorneys. He also found that $1,000 was paid Frauenthal and Johnson by Bankers Trust Company September 8,' 1928; $1,000 by Union Trust Company, and that an additional payment of $500 was made by Bankers Trust Company November 10, 1933, in payment of services rendered in connection with the assignment. In addition, the so-called “Mitchell check” for $1,000 was found to have been received by Johnson and not to have been transmitted to Thomas. The bank payments of $2,500 and the Mitchell item of $1,000 were charged to Frauenthal and Johnson by the master. The chancellor approved the recommendation.
The master’s finding that Frauenthal and Johnson had collected $2,829.74 in notes and accounts due the Schmand-Porbeck Company, and had not accounted, was approved by the chancellor. A disputed difference of $1,468.28 admittedly collected by The Adjustment Bureau, receipt of which was denied by Johnson, was .allowed by the master.
Collections of $1,468.26 admittedly made by The Adjustment 'Bureau (receipt of which was denied by Johnson) were found by the master to be due Thomas, less commission of 25 per cent., leaving a net balance of $1,101.20, for which credit in favor of Thomas was recommended. Of the Schmand-Porbeck collections so made, only $228.39 came to the law firm after Sherrill joined it. The master’s finding of liability on the net item of $1,101.20 is explained in the following statement:' “Where accounts are turned over to a firm of lawyers for collection, and the firm of lawyers selects an agent to make the collections, and the collections are made and unaccounted for by the agent, the firm of lawyers is liable to the client for the collections. This would especially be true where a member of the firm of lawyers is interested and part owner in the agency that makes the collections.” The chancellor held otherwise, and disallowed the item.
Regarding appellees’ plea of the statute of limitation, the chancellor said: “I adopt the language of Mr. Thweatt [of counsel for appellees] in his memorandum brief when he states: ‘Regardless of whether the minds of the parties met as to the amount of the fee, the evidence is conclusive that there was one general contract of employment to handle the entire liquidation, and that the fee was subordinated to the debt to the banks and to advances to be made by the banks to pay other debts of Mr. Thomas’. On this basis, there is no place for the application of the statute.”
As presented in the briefs the case appears highly involved. The ramifications are many, and an extraordinary amount of work was done. Frauenthal and Johnson handled more than 100 cases for Thomas. It would he a work of supererogation here to review even the more substantial acts of representation to which proof has been directed. Appellees’ exceptions to the master’s report consist of 52 numbered paragraphs. ■
Appellant’s exceptions are to the finding that the Mitchell check, although received by Frauenthal and Johnson, was applied on his fees due by appellant, and to the further finding that the law firm should receive only $10,658.80 from half of the road claim. We must assume, therefore, that in all other respects appellant is satisfied with the report.
It was stipulated that the personal account of Ector Johnson to the S. R. Thomas Auto Company might be treated as an indebtedness due S. R. Thomas individually, and that any amount so found to be due should be offset against any amount found to be due Johnson, etc. The chancellor found that the amount of the account was not in dispute, and that “it was certainly payable in 1934.”
On the highway collection the master recommended that interest be charged from February 22, 1931. The chancellor held that when the collection was made in 1931, Frauenthal and Johnson had been in the employ of Thomas for the preceding four years; that the services continued until February 13, 1934, at which time relations were definitely severed by the action of Shofner in filing complaint; that accounts were unliquidated, “and being so, no interest can be charged against either party.”
Other Facts — and OpiNioN.
Frauenthal and Johnson had for many years been the retained attorneys for Bankers Trust Company. Frau- enthal was a director. Thomas had served as a director for a short period.
For consultation and advice, Franenthal and Johnson were paid $2,000 in 1926. For 1927 and several years thereafter they were paid $3,000 annually.
In commenting upon the genesis of the assignment creating a trusteeship, the master said: “I am convinced that the idea . . . originated in the minds of officers of Bankers Trust Company and Union Trust Company, and of H. C. Thomas, brother of S. R. Thomas, who' was managing the S. R. Thomas Auto Company, Inc., upon information and advice given by Frauenthal and Johnson from facts obtained by them of the heavy obligations incurred by S. R. Thomas, as shown by the audit of Schmand-Porbeck Candy Company. I arrive at this conclusion from the evidence of A. Brizzolara, Jr., vice-president of Union Trust Company, who testified that the idea of the trust agreement probably originated with the two banks, due to the fact that S. R. Thomas was indebted to the two banks in a large amount and apparently had assets that were ample to pay, provided they were worked out over a period of time; and from the fact that C. E. Crossland, vice-president of Bankers Trust Company, assembled and collected the information composing the many items of assets belonging to S. R. Thomas and appraised the value of the same; also to the fact that H. C. Thomas furnished the information necessary to compile the assets of S. R. Thomas, and to the fact that Frauenthal and Johnson, being attorneys for Bankers Trust 'Company, owed a duty to the Bankers Trust Company to protect it under the circumstances.”
There was the further consideration, given weight by the master, that Thomas was ill; that he testified he did not originate the plan, and that he signed the agreement upon advice of his brother, and upon the advice of his personal friend, Ector Johnson.
It is obvious that the spectre of bankruptcy was present. Frauenthal and Johnson were under duties alike to two clients. If S. R. Thomas had been mentally able to entirely comprehend the relationship between mem bers of the law firm and Bankers Trust Company, and could have appraised the fact of dual obligation, and if the conflict of interest bad not been sucb as to cause a cleavage to one and abandonment of the other, there could be no objection by Thomas to the fact that his own attorneys — at least one of whom was a personal friend— represented Bankers Trust Company. It is conceivable (and we think in reality that attitude was present) that Frauenthal and Johnson regarded the trusteeship as essential to the well-being of Thomas’ continued business existence. Their judgment in this respect was not erroneous. They had a right, with knowledge by Thomas of their obligations to Bankers Trust Company and appreciation by him of the relationship, to suggest the assignment and urge its consummation. So long as understanding of the status existed, and a conflict of interest did not occur, there was no transgression by Frauen-thal and Johnson of the standard of legal ethics which essentially must exist.
We think it clear that at the time the transactions were being conceived, and while they were in process of administration, there was no purpose by Frauenthal and' Johnson, or by John A. Sherrill, to deviate from a policy of professional rectitude which would meet the most exacting scrutiny. It is true that proposal of the attorneys was that they should receive a fee of $20,000 from salvaged assets of the Thomas interests, and 25 per cent, of the final values; but the master and the chancellor both found that the suggestion was not accepted. The trustees were informed of the proposal for such fee.
The vice occurs, we think — not in the transactions involving creation of the trust and its administration— but in the construction now attempted to be given these relationships. Johnson insists, as evidence of services, that Thomas was mentally incapacitated, and therefore incapable of handling his business affairs. This conception of the client’s capacity undoubtedly did not exist to the extent alleged; otherwise validity of a contract of employment would not now be urged, the terms of which, if enforced, would strip Thomas of all the property it was the purpose of the interested parties to conserve for payment of debts and as a residue for the debtor. -We must assume, therefore, that present instincts of self-preservation, a lapse of time, and the intervention of multifarious duties unrelated to the controversy here presented have unconsciously influenced appellees in urging a construction which if existent when the transactions were current would have required the abandonment of one client or the other.
We must assume that if Frauenthal and Johnson, in 1927, regarded the unsigned proposal as evidencing their oral contract, the attorneys would have informed Bankers Trust Company of the dual relationship. We must further assume that if the attorneys were cognizant of appellant’s mental condition they must also have understood that he was not competent to weigh the inconsistent relationship created when ¡Bankers Trust Company paid fees from their own funds for retained representation, and at the same time made payments from trust funds.
Specifically, the written contract appellees insist was agreed to, but not signed, affirmed retention of Frauenthal and Johnson in all suits and matters “involving or against me relative to the Commonwealth Life Insurance Company and the Commonwealth Accident Insurance Company, and for a portion of their fee as attorneys I hereby agree to pay them the sum of $5,000, and in addition to said portion of said fee I hereby agree to pay them an additional sum as hereinafter set forth.” There were similar clauses respecting services relating to the Schmand-Porbeck Company.
The third item of employment reads: “I have also employed Frauenthal and Johnson as my attorneys to attend to all claims and matters against me held by the Union Trust Company.” The partial fee expressed was $5,000. To the same effect was item four, wherein the attorneys were to represent Thomas in “all claims and matters against me held by the Bankers Trust Company.” The partial fee, as in the three preceding paragraphs, was $5,000, “and the additional fee as hereinafter set forth.”
Paragraph six was a covenant to pay a further fee of 25 per cent, of final recovery values after other debts had been paid, “. . . for their counsel and services as such attorneys, to me, in liquidating all the debts and' claims against me.”
For the reasons here expressed, it is apparent that payment by the banks, accepted after Thomas had declined to commit himself to Frauenthal and Johnson, was in fact payment for handling matters pertaining to the trusteeship.
Three matters not settled for were being handled for Thomas by Frauenthal and Johnson at the time the trust agreement was executed:
(1) The so-called Caldwell matter. Johnson testified that his fee and expenses had not been compensated. Thomas insisted the transaction had been closed; that the attorneys received stock for their fee, and that in addition they collected $2,000 in October, 1927. The cross-complaint was filed October 21, 1936 — nine years after payment is alleged by Thomas. The master held the claim was barred by limitation.
(2) In the Schmand-Porbeck Candy Company Case the attorneys received through a court order $1,000. In addition, as the master expresses it, “Mr. Johnson persuaded the receiver ... to give him $2,425, which was one-half of the allowance made for the receiver in the case.”
(3) The Commonwealth Insurance Company Case was pending when the trust agreement was made. The master’s report recited that there had been considerable conversation about it, but suit was not brought until after the trust agreement had been effectuated. Says the master: “It is my opinion that the Bankers Trust Company and the Union Trust Company were parties to the suit, that they furnished the money in settling the suit, and there is no liability on the part of S. B>. Thomas, for the reason that compensation for the attorneys . . . has been paid by the trustees, and for the further reason that the claim has long since been barred by the statute of limitations.”
Summarizing the master’s report in respect of matters other than the road claim, we find:
(1) Because there was a settlement .between the attorneys and Thomas in 1926 with payment of $2,000 by Thomas October 25, 1927, the Caldwell claim, if any part remained unpaid, was barred by limitation.
(2) Certain other items set out in the cross-complaint have either been paid, or are barred.
(3) The Schmand-Porbeck employment arose before execution of the assignment. The attorneys received $1,000 from the court and “persuaded” the receiver to pay an additional $2,425, representing half of the receiver’s fee. Any compensation should have been paid by the trustees. Assets of Schmand-Porbeck were sold by the receiver early in 1928 and were bought by Bankers Trust Company, thereby becoming part of the assigned estate. Johnson stipulated that he owed $2,883 arising from collections and remitted to his firm. Neither the administrator nor Sherrill concurred in this stipulation. Additional collections of $1,101.20 realized from Schmand-Porbeck assets were collected by or are chargeable to Frauenthal and Johnson.
(4) Of the $2,883 not accounted for by Frauenthal and Johnson, $228.39 was collected while Sherrill was a member of the firm, but none of the $1,101.20 was so received.
Viewing the history of all transactions, considering settlement customs prior to 1927, and taking into account relationships which are shown to have existed, the master did not err in the exclusion of items antedating the check for $2,000 given October 25, 1927; nor do we think he was mistaken in holding that certain payments had been made, in consequence of which the cross-complaint was dismissed.
This leaves for consideration Schmand-Porbeck collections and Ector Johnson’s personal account with the automobile company. Also, there is the question of interest.
Judgment will go against Frauenthal, administrator, and against Ector Johnson and John A. .Sherrill for $10,658.80 representing excess charges on collection of the road claim, onr holding being that a fee of $15,000 was sufficient.
Other judgments will be:
Against Frauenthal, administrator, and Ector Johnson and John A. Sherrill, for $228.39.
Against Frauenthal, administrator, and Ector Johnson, for $3,984.24 covering -Scbmand-Porbeck items of $2,883 plus $1,101.20, subject to reduction by $228.39 when judgment for a like amount here given against Frauenthal, administrator, and Ector Johnson and John A. Sherrill, has been paid.
Against Ector Johnson for $5,659.60, covering personal automobile account.
The most difficult problem is that of interest. While there was no authority upon the part of appellees to arbitrarily appropriate fees, and while overcharge on the highway collection occurred in 1931, Thomas’ testimony is that he mildly protested soon after the transaction came to his attention, and said: “I think you have overcharged me in this road case and we are going to have to have a friendly lawsuit about it. ... We will be good friends, and just thresh it out as good friends.”
We think that in view of all the circumstances, and the fact that appellant continued to carry Johnson’s personal automobile account until suit was filed, there wére-reservations in appellant’s mind in respect of a general settlement. Therefore, interest should run from February 13, 1934, when suit was filed.
The cause is reversed, with directions to enter judgments conforming to this opinion.
Mr. Justice McHaNey thinks the preponderance of the evidence establishes a contract in the Poinsett county road matter for a 50 per cent, contingent fee, and to that extent dissents.
Where the term “appellant” is used in this opinion, it has reference to S. R. Thomas. “Appellees” include Jo Frauenthal, Administrator; Ector R. Johnson, Samuel Frauenthal, and John A. Sherrill.
In the complaint of Shofner, guardian, filed February 13, 1934, judgment for $26,140, with interest, was asked, “less a reasonable attorneys’ fee for services of the defendants.”
January 8, 1936, Thomas made showing that his disability had been removed March 3, 1934. The order was that the suit be revived in the name of S. R. Thomas. The death of Samuel Frauenthal having been suggested, the suit was revived against Jo Frauenthal, administrator. February 7, 1936, the administrator answered, denying liability on the demand of $26,105.57. May 18, 1936, an amendment to the complaint was filed, alleging collection by Frauenthal and Johnson of notes and accounts due the Schmand-Porbeek Company, amounting to $5,651.75, and failure of the law firm to account for proceeds.. There was the further allegation that notes not connected with the Schmand-Porbeck transactions aggregating $2,234.26 were collected by Frauenthal and Johnson, and the proceeds unaccounted for. The prayer was for judgment against Union Trust Company, Bankers Trust Company, Ector R. Johnson, and Jo Frauenthal, administrator, for items aggregating $34,213.77.
Separate answer and cross-complaint of Frauenthal and Johnson and Ector .R. Johnson was filed October 21, 1936. In the cross-complaint it was alleged that the Poinsett county road district claim was placed for collection on a 50 per cent, contingent fee basis. The assignment. transaction involving the two banks was set out, with an allegation that there was an agreement for payment of $20,000, plus one-fourth of the estate salvaged. The prayer was that the court determine value of the residue and decree payment to cross-complainants upon 'the basis of their contract.
October 22, 1936, Jo Frauenthal, administrator, filed his motion to strike the amendment to the complaint. Contention was that no process had been served on the administrator in respect of the demand enumerated in the amendment, and that such demands did not pertain to the original cause of action.
The administrator’s motion to make John A. Sherrill a defendant was granted.
Answer to the cross-complaint, being a general denial, was filed November 13, 1936.
December 29, 1936, Ector R. Johnson filed his separate and substituted answer and cross-complaint. It consists of 43 typewritten pages. In the answer 36 transactions, such as pleadings, orders, etc., in the road district case, were itemized, together with identiiication of 16 depositions. Twelve abstracts and briefs were alleged. There is a resume of work alleged to have been done in connection with the claim.
The cross-complaint first reviews the business status and personal characteristics of S. R. Thomas. There is recital of work done by the law firm and of financial transactions engaged in over a long period of years. The prayer was for judgment for $2.0,000, with interest from November 29, 1927, and for an accounting for one-fourth of the value of the salvaged estate of S. R. Thomas. There was this alternative prayer: “In the event the court should find that there was no contract for compensation [cross-complainant prays] that he have judgment for a reasonable amount on a contingent quantum, meruit basis for the services performed.”
January 15, 1937, in response to a motion to make the cross-complaint more definite and certain, there was an enumeration of 17 transactions.
January 21, 1937, Thomas moved that Johnson be required to make his substituted answer of January 15 more definite and certain, to which there was response February 26, 1937.
A second amendment to Thomas’ complaint was filed March 9, 1937, in which it was alleged that Ector R. Johnson owed the S. R. Thomas Motor Company $5,659.60 for merchandise.
Answer to Johnson’s cross-complaint was filed March 9, 1937.
An additional item claimed by Thomas relates to sale of certain property to E. E. Mitchell for $1,000. Collection was made by Johnson, who admitted receiving the money. Johnson contended the remittance was applied on expenses and as attorney’s fee.
The legislation referred to is act 153 of 1929, which provides: “That the Highway Commission shall as soon as possible ascertain the amount of any valid outstanding indebtedness incurred prior to January 1st, 1927, against any road district in the state of Arkansas organized prior to the passage of act No. 11 of the Acts of the General Assembly of the State of Arkansas for the year 1927 which was approved February 4, 1927, and shall draw vouchers to be paid out of the appropriation already provided for in act No. 18 of' the Forty-Seventh General Assembly for the payment of road district bonds and interest obligations.”
Grable v. Bladewood, 180 Ark. 311, 22 S. W. 2d 41; Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. 2d 879; Highway Commission v. Otis & Co., 182 Ark. 242, 31 S. W. 2d 427.
Items comprising the total of $120.90 are: Clerk of Poinsett chancery court, $11.50; “expense” to Harrisburg, $44.70 — for trip made December 1, 1929; “expense” to Harrisburg, December 10 and 11, $51; filing petition for mandamus in Pulaski chancery court, $7, and miscellaneous amounts of $6.70.
Carter v. Bartholomew Road Improvement District, 156 Ark. 413, 246 S. W. 470. | [
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McHanda, J.
Appellant is the duly appointed, qualified and acting guardian of the person and estate of her mother, Mrs. S. E. McMahen, a person of unsound mind, having been so appointed on September 8, 1939. On the same day, she brought this action against appellees to cancel five certain deeds of conveyance executed and delivered by her mother to her undivided one-fourth interest in and to the oil and gas royalty in and under a certain described 78-aere tract of land in Columbia county, and the cancellation of certain conveyances of various royalty interests by those five grantees or some of them to other appellees named in the complaint. The five grantees to whom Mrs. McMahen conveyed and the dates of their deeds are as follows: first, Paul McDaniel, June 27, 1938; second, Marcus Justiss, July 16, 1938; third, Minnie V. Campbell, September 20, 1938; fourth, J. E. Reasons, November 17, 1938; and fifth, Willie Sauter, December 22, 1938. The sole ground alleged in the complaint for a cancellation of these various deeds executed by her to the five persons above named and of the mesne conveyances to the other appellees is that her ward was, at that time and at all times since and now' is, “a person of unsound mind, incapable of understanding the importance, nature, consequences and effects of the execution of any and all of said deeds.” There was no allegation of fraud or other inequitable conduct on the part of her grantees, nor any insufficiency of the consideration paid by them, and no proof was directed to this purpose. The answer was a general denial and a prayer that the complaint be dismissed as being without equity. Trial resulted in a decree for appellees.
Both sides agree that only a question of fact is presented by this appeal. The rule of law governing in cases of this kind has been stated in many cases, one of which, Atwood v. Ballard, 172 Ark. 176, 287 S. W. 1101, was very recently quoted from in Johnson v. Foster, ante, p. 518, 146 S. W. 2d 681, as follows: “If the maker of a deed, will or other instrument, has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to •execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interests in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress or undue influence, mental weakness, whether produced by old age or through physical infirmities will not invalidate an instrument executed by him.”
We have here a record of nearly 450 pages, consisting of about 435 pages of testimony. Nineteen witnesses testified for appellant, twelve of whom are related directly or indirectly to the ward. Fifteen witnesses testified for appellees, four of whom are related directly to the ward. All those testifying on either side were lay witnesses, except three physicians for appellant, one of whom, Dr. McWilliams, is a nephew, and except two physicians for appellees. This testimony is in hopeless conflict. It is undisputed that Mrs. McMahen was incompetent at the time Dr. Mahoney examined her on September 1,1939, and has been since that time. She was suffering from pellagra and had been since 1935, according to Dr. McWilliams, and perhaps longer. She was 78 years of age at the time of making these conveyances, but was able to go to the office of an attorney in Magnolia on each occasion a deed was executed, but was unable to sign her name to the instruments although she had been able to write at some time in the past. From the death of her husband in February, 1937, or from about March 1, 1937, to August, 1939, she lived with her son, John McWilliams, and his wife, and their testimony is to the effect that she was mentally capable and knew what she was doing in each instance of signing said deeds. Much reliance is placed by appellant on a letter written to her by Mrs. John McWilliams dated August 23, 1939, wanting appellant or her sister, Buby, to come and get Mrs. McMahen, because she could not keep her any longer. We see nothing in this letter indicating insanity of Mrs. McMahen. No reason is assigned except she said “the time has come for you all to help do something with her.”This is not an unusual desire on the part of some daughters-in-law to get rid of their mother-in-law. There is. no doubt, however, that she was somewhat disorientated at that time, which was some eight months after the last deed mentioned above was executed by her. The attorney who drew the deeds and the notaries who took the acknowledgments testified that she appeared to know what she was doing and fully understood same. The price paid ranged from $25 to $125- per royalty acre, and it is not questioned that same was fair and reasonable. The discovery well in the Atlanta field, about two miles from the land in question, was brought in on December 19, 1938, and the last deed to her royalty was dated December 22,1938, only three days later, to Willie Sauter. He paid $420 for 3% royalty acres, or $112 per acre. This last sale took all her royalty interest in the 78-acre tract, and it was testified by both Sauter and Chambers, the attorney who prepared the deed, that the latter advised her at the time that this deed conveyed all her remaining royalty, asked her if she so understood it, and she answered that she did.
We cannot undertake to detail and analyze the testimony of the various witnesses as to do so would extend this opinion greatly. Suffice it to say that we have read the entire testimony as abstracted by both parties, have given it careful consideration, and have reached the conclusion that we cannot say that the findings and conclusions of the trial court are against the dear preponderance of the evidence. .
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Smith, J.
This appeal involves the construction of the seventh paragraph of the last will and testament of T. J. Olive. This paragraph reads as follows': “Seventh: I give to my wife, Maggie E. Olive, (four certain lots, which are described by metes and bounds). I also give my wife, Maggie E. Olive, all the notes, moneys, bonds or any other property that I may have at the time of my death. She to have all to do with as she sees fit and upon the death of my wife it'is my desire that whatever property that she may have that came to her through me shall be given to my children above, for them to have it in equal parts. And I hereby appoint my wife, Maggie Olive, to be the sole executrix of my last will, and direct that she shall serve without bond.”
In the first paragraph of the will the testator directed that . . all my just debts shall be paid, and that the legacies hereinafter given shall, after the payment of my debts, be paid out of my estate.”
By paragraph two of the will the testator gave and bequeathed a certain tract of land to his son, W. A. Olive. By paragraph three a tract of land is given’ to his daughter, Belle Black. Paragraph four gives a tract of land to Maxie William, a daughter. Paragraph five gives a tract of land to R.'II. Olive, a son, who is also forgiven the payment of a note for $221 due the testator. Paragraph six gives a tract of land to J. R. Olive, a son, who is also forgiven the payment of a note due his father.
It is, after making- these specific bequests, contained in paragraphs 2, 3, 4, 5, and 6, to his children, that the remainder of the testator’s property is devised to his wife.
The testimony shows that the testator had accumulated a considerable estate, the accumulation of himself and his family. He had not inherited any property, nor had his wife, and she owned no property when she married the testator. The value of the personal property of the testator, as shown by the appraisement thereof, was $8,798.65, which was all included in paragraph seven, copied above. This paragraph gave the ividow four pieces of residential property, including the testator’s home, and the value thereof was greater than the value of the personal property.
The widow qualified as executrix of the estate, and the value of the personal property increased, under her administration, to $9,775.30, including $5,311.85 cash on hand. The property devised in paragraph seven Avas of much greater value than all the property devised to all the children.
The testimony shows that the testator had been married prior to his marriage to Maggie. He had married young, and five children had been born to that marriage. When his first wife died the oldest- child was eleven years of age and'the youngest was less than one year old. Shortly after the death of his first wife the testator married Maggie, who was then only seventeen years old, and who survived him. He and Maggie had been married fifty years at the time of his death, and no children had been born to them. The family life was extremely pleasant. The stepchildren loved their stepmother the same as if she had been their own mother, and she loved and cared for them as if they were her own children. The relationship between the stepchildren and stepmother was such that acquaintances in later life did not know Maggie was not the mother of the children. The confidence of the testator in his wife was unlimited. Mrs. Olive’s next of kin were two half-brothers and a half-sister, but her relationship with them was not cordial or intimate, and long periods of time would elapse without their seeing each other.
The attorney who drew the will testified that Mrs. Olive understood that she had been given only a life estate, and that she never claimed any other interest, and that she expressed the purpose of saving as much of the estate as possible for the children of the testator. Evidently she regarded these children as her own;
The will was executed March 5, 1935, at which time both the testator and his wife had reached an advanced age. The testator died June 14, 1936, and his widow died September 7, 1937. Upon the death of the widow her half brothers'and half sister claimed as heirs at law of the widow all the testator’s estate undisposed of by the widow at the time of her death.
The chancellor construed the will as a devise to the' widow in fee, and from that decree is this appeal.
If we were permitted to consider the testimony above recited in the construction of the will, there could be no possibility of a doubt as to the conclusion, to be reached. But, as was said in the case of Ellsworth v. Arkansas National Bank, Trustee, 194 Ark. 1032, 109 S. W. 2d 1258, extrinsic evidence may be admitted to interpret a will, but it will not be admitted to show what the testator meant, as distinguished from what the words of the will express, but only for the purpose of showing the meaning of the words employed in the will. In that opinion we. quoted from the ease of Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, 1199, as follows: “ ‘We must look to the will to determine the testator’s intention, hut in getting- this view we should place ourselves where he stood, and should consider the facts which were before him in deciding what he intended by the language which he employed. If the rule were otherwise, the making of wills would be so difficult that the very purpose of permitting this method of disposition of property would frequently be defeated.’ ”
Opposing counsel have cited many cases from this and other courts to aid us in construing this will. 'But the legal principles involved are not difficult, and have been frequently announced by this court. The difficulty in distinguishing these cases is in the application of these principles to the facts, of each case, no two of which are alike.
The duty of the court is to ascertain the intention of the testator, and to give that intention effect. We must do this by a consideration of the language employed in the will. The imperfection of our language is such that it is difficult to write a sentence which can be given only one interpretation. One may write a sentence which expresses the. thought he intended to convey, and it may express that thought, but, if this thought or purpose is involved, it is very difficult to so express it that no construction can be given except that intended.
Wills cannot ordinarily be written in a single sentence, and we must, therefore, read a will in its entirety and give effect, if we may, to all the language which the testator has employed. When we have done so, if the intention of the testator is clear, we have only to declare the intention thus expressed. If, however, the language of the will is ambiguous and the intention of the testator is not clear, we must invoke the aid of settled rules of construction with reference to which the will is said to have been written, although, in fact, the testator may have been wholly ignorant of these rules of construction. The application of these rules of construction may, in some instances, operate to defeat the actual intention of the testator, but, if so, the fault lies with him in failing to clearly express his intention.
It was the opinion of the court below that the-language in paragraph seven, “it is my desire that whatever property that she may have that came to her through me shall be given to my children above, for them to have it in equal parts,” was precatory only, as is evidenced by the following quotation from the chancellor’s opinion: “The will conveys to Maggie E. Olive by clear terms the land and personal property, and this clear gift should not be modified or qualified by a later’ obscure and ambiguous statement nor should the gift be qualified by mere precatory language.” Appellee seeks to support this finding by citation of numerous authorities to the effect that a clear gift by an earlier provision of a will will not be modified or qualified by mere precatory language.
We are cited also to cases like that of Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A., N. S., 1028, 11 Ann. Cas. 343, where it ivas held, to quote a headnote in that case, that “Where property is devised to the first taker in fee simple, with limitation over to another at the former’s death, the limitation over is void for repugnancy.”
These, and other cases of similar effect, would be decisive of this appeal, if it were assumed, or found, that the testator had used only precatory words relating to the disposition of the estate conveyed to his wife upon her death, or that he had devised to her in fee simple, with a limitation over to another. But these are the very questions we are considering and are called upon to decide.
The seventh paragraph is in the nature of a residuary clause. There is no partial intestacy in this case. By this paragraph the aged testator devised to his aged wife all of his property not devised to his children -in preceding paragraphs. It does not express a mere hope, or preference, or advice, to the wife as to' what she shall do with this property devised to her which she had not used or disposed of at the time of her death. .The testator himself made that disposition by giving that property— whatever it may have been — upon the death of his wife to his children in equal parts.
The same sentence which, defines the interest given the wife and gives the right to do with “as she sees fit” also disposes of any part of the estate which the widow owned at her death, that disposition being that it shall then he taken by the testator’s children in equal parts. The testator was not asking his wife to make that disposition upon her death; he made that disposition himself when he executed the will.
Now, the testator did give' to his wife the property described in the seventh paragraph, “to do with as she sees fit,” and this language was, no' doubt, sufficient to convey the right to sell and convey the fee., had the widow elected to sell. But she did not sell or dispose of anything. She accumulated more.
It was held in the case of Little Rock v. Lenon, 186 Ark. 460, 54 S. W. 2d 287, to which case further reference will be made, that “The great weight of authority, however, including this court, supports the rule that a life estate may be. created, coupled with power of disposition, and that such power does not change the life estate into a fee for the reason that the' power of disposition is not in itself an estate, but is an authority so to do derived from the will.”
.In the case of Little Rock v. Lenon, supra, the testator first devised his property to his wife in fee, but a codicil subsequently added provided “that all property left by me to my wife which has not been used or expended by her during her lifetime be donated and turned over to the City Hospital of Little Rock.”
It was there contended, and the judge who wrote the opinion of the court had the. view, that the codicil constituted “a mere wish or will, precatory words, that she (the wife) donate or. give such of his (the testator’s) property as .remained, by Avill, to the City Hospital.” But the majority of the court held otherwise, being of the opinion that the testator had not merely advised what he would like for his wife to do, but had himself made that disposition of his estate.
■ So, here, we conclude that the testator devised the bulk of his estate, including all his personal property, to his wife, to use it “as she sees fit,” and to sell it, if she saw proper to do so, and he did not merely indicate the disposition he wished his wife would make of any property she had not used, consumed or sold, hut he made that disposition himself. The will itself disposed of the property which the wife had not used, consumed or sold, and it was unnecessary for the wife to do anything or to take any action to effectuate the testator’s wishes.
The opinion in the recent case of Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417, confirms this view. The second paragraph of the will in that case reads as follows: “I give, devise and bequeath to my wife, Jennie Jackson, all and entire my real and personal property of every nature and kind and wheresoever situated, with full power in her as executrix, jointly with my executor, A. W. Jackson, to sell and convey any and all real estate of which I may die seized-and possessed and wheresoever situated and to pass an absolute title in fee to the purchaser or purchasers thereof.”
The fourth paragraph of the will reads as follows: “Fourth: Having confidence in my wife, I have made no provision for my children, Clara Jackson Robinson, Tennie Jackson Donaldson, A. W. Jackson, Emma Jackson and Mabel Jackson Herget, but it is my desire that after the death of my wife that all of .the property which may not have been sold, conveyed or otherwise disposed of by her during her life shall then go to my children in equal parts, the children of any child that may be dead taking the deceased parent’s part.”
The widow, after the death of her husband, the testator, made a will conveying a portion of her husband’s real estate. It was there held, to quote a headnote: “Wills — Construction of — Under a will giving all property -of the testator to his wife with full power to sell and pass the title in fee to the purchaser and providing that 'all property not sold by her during her life shall go to my children in equal parts, etc., ’ the wife could not pass title by mil to property not disposed of by her in her lifetime, since, at her death, it passed to the children. ”
Here, Mrs. Olive, the testator’s widow, could not have devised this property to her brothers and sister, or to anyone else, since, at her deatli, tlie title passed to. tlie testator’s children, and if she was without- power to devise the property by her will, they could not inherit the property from her, as her interest in her husband’s estate terminated with her death.
We conclude, therefore, that the chancellor was in error in holding- that the widow took title in fee. That decree will be reversed, and the cause will be remanded, with directions to enter a decree conforming to this opinion. | [
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GtrieitN Smith, C. J.
The question is whether an act of the general assembly separating the offices of sheriff and collector in counties falling within designated classifications and delegating to judges of the chancery, circuit, and county courts power to select the collector for a period of five years is compatible with article four of our constitution.
Act 137, approved February 24, 1939, by its terms is applicable to counties having a population of 125,000 and an assessed valuation of real and personal property of $50,000,000 or more.
As expressed in the act, “There is hereby created in all such counties a separate office of collector of taxes, and said officer shall he appointed by the judges of the circuit, chancery, and county courts of said counties. . . . Said collector, so appointed, shall serve for a term of five years, provided, however, that said collector shall be removed at any time by a majority vote of the aforementioned judges.”
Asserting that if not restrained,. William S. Rogers, county comptroller and purchasing agent, would incur certain expenses in preparing office quarters for the collector, whose tenure would begin January 1, 1941, appellant filed his complaint, alleging unconstitutionality of the act in question. This appeal is from action of the special chancellor in sustaining a demurrer. The prosecuting attorney concedes that the sole question is ■validity of act 137.
The constitution provides that the qualified electors of each county shall elect one sheriff, “who shall be ex-officio collector of taxes, unless otherwise provided by law. ’ ’
Clearly it was the intention of the general assembly, acting within the authority conferred by the constitution, to create the separate office of collector of taxes for Pulaski county, and the right so to do is absolute if the method employed is lawful.
Between adoption of the federal constitution by the convention of 1787 and ratification by eleven states in 1788, much was written regarding separation of the three governmental divisions; and principles so discussed, although not as aptly expressed as they subsequently were in state pronouncements, have, nevertheless, been construed to mean exactly what appellant here contends our constitution directs — that the functions belonging to one department cannot be usurped by the other, nor may the right to exercise such authority be delegated.
In Springer v. Philippine Islands, 277 U. S. 189, 48 S. Ct. 480, 72 L. Ed. 845, the court construed an act of the Philippine legislature, which created a coal company and a bank, the stock of which was largely owned by the Philippine government. It was provided that power to vote the stock should vest in a “committee,” in the one case, and in a “board of control!’ in the other, each consisting of the governor general, the president of the senate, and the speaker of the house of representatives. The court found that in -the Philippine organic act, which divides the government into legislative, executive, and judicial departments, the principle is implicit, as it is. in state and federal constitutions, that these three powers shall be forever separate and distinct from .each other. It was held that voting of the stock in the election of directors and managing agents of the corporations was an executive function, and that the attempt to repose it in the legislative officers named in the acts violated the organic law. In the majority opinion, written by Mr.. Justice SutheklaNd, there is the .following language:
“Thus the organic law [of the Philippines], following the rule established by the American constitutions, both state and federal, divides the government into three separate departments — the legislative, executive, and judicial. Spme of our state constitutions expressly provide in one form or another that the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other. Other constitutions, including that of the United States, do not contain such an express provision. But it is implicit in all, as a conclusion logically following from the separation of the several departments. . , . And this separation and the consequent exclusive character of the powers conferred upon each of the three departments is basic and vital — not merely a matter of governmental mechanism. . . . Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. . . . Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection. . . .”
In a dissenting opinion by Mr. Justice Holmes, concurred in by Mr. Justice BeaNdeis, it was said: “The great ordinances of the constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. . . . It does not seem to need argument to show that however we may disguise it by veiled words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the constitution requires.”
It is impossible to harmonize the extreme views expressed by these eminent justices. It may be said, however, that Judge Holmes was discussing the implication arising from distinct provisions of the federal constitution, and if we should concede the logic of his argument as applied to the facts upon which they were based, we must also consider what the difference might have been had there been direction through express language of the organic law to which he referred that no one of the three departments of government should exercise any power belonging to either of the other departments.
Perhaps the true construction is to be found in American Jurisprudence, where it is said: “A statute is not invalid as improperly conferring executive powers where the actual power of the executive department is not really diminished.” The same thought was expressed by Madison in The Federalist, No. 48, when he said: “It is agreed on all sides that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly, an overruling influence over the other, in the administration of tbeir respective powers. It will not be denied that power is of an encroaching nature, and that it ought to he effectively restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.- What this security ought to be is the great problem to be solved.” And, finally, there is this observation by Mr. Madison: “The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
In O’Donoghue v. United States, 289 U. S. 516, 53 S. Ct. 740, 77 L. Ed. 1356, Mr. Justice -StjtheeeaNd said: “The anxiety of the framers of the constitutions to preserve the independence especially of the judicial department is manifested by the provision now under review, forbidding the diminution of the compensation of the judges of courts exercising the judicial power of the United States. This requirement was foreshadowed, and its vital character attested, by the Declaration of Independence, which, among the injuries and usurpations recited against the King of Great Britain, declared that he had ‘made judges dependent on his will alone, for the tenure of their offices,-and the amount and payment of their salaries’.”
An interesting opinion by the Nebraska Supreme Court — Searle v. Yensen, 118 Neb. 835, 226 N. W. 464, is printed and annotated in 69 A. L. R., p. 257. At page 261 there is this statement: “The power of the legislature to delegate a part of its legislative functions to municipal corporations or other governmental subdivisions, boards, commissions, and tribunals, to be exercised within their respective jurisdictions, cannot be denied; but the recipients] of such powers must be members of the same governmental department as that of the grantor. Otherwise a confusion and duplication of powers would result. . ' . . The legislature may not impose upon the judiciary or the executive the performance of acts or duties not properly belonging to those departments respectively.”
In City and County of Denver v. Lynch, 92 Colo. 102, 18 Pac. 2d 907, copied and annotated in 86 A. L. R., p. 907, a constitutional provision similar to ours relating to separation of the three governmental departments was discussed. A headnote to the reprint in 86 A. L. R. is: “Where those provisions of an old age pension law which are invalid as attempting to confer judicial powers on the board of county commissioners were apparently for the purpose of giving such hoard control over the administration of the act, and the elimination of such invalid provisions would leave the control in the hands of the county judge, the' entire act must be held invalid.” Another headnote is: “Where a state constitution divides the powers of government into distinct departments, the legislature is powerless to confer judicial duties on nonjudicial officers.”
Consonant with this rule is that stated in 16 Corpus Juris Secundum, § 163a of Constitutional Law, pages 501-2. (See the fourth footnote.)
Appellee relies upon Falconer v. Shores, 37 Ark. 386, and other opinions of this court, to support action of the special chancellor in sustaining the demurrer.
In the Falconer-Shores Case there is this statement: “Doubtless the legislature has power to provide by law for collectors to be appointed by the governor, or in such other mode as may be directed.”
The point decided was not that the general assembly could delegate to judicial officers the power to appoint executive officers, but, rather, that the lawmaking body was authorized to provide by law for the collector to be appointed by the governor, “or in such other mode as may be directed.” The governor had appointed a collector to succeed the elected sheriff who had failed to file the necessary bond as ex-officio collector. The appointment was upheld, but the only question before the court was the right of the governor to appoint. The statement that the legislature might provide by law for the collector to be appointed “in such other mode as may be directed” must have reference to appointment by a mode not inconsistent with the constitutional provision restricting the spheres of authority in respect of the three departments of government. At most the expression could be no more than dictum.
In Grassy Slough Drainage District v. The National Box Company, 111 Ark. 144, 163 S. W. 512, jurisdiction of the circuit court to create drainage districts where the land lay in more than one county was sustained, the commissioners to be appointed by the court. It is insisted that by implication this was recognition of the legislature’s power to delegate nonjudicial duties to the courts. Cases from other jurisdictions, and other authorities cited by appellee, are shown in the margin.
•Separation of powers was discussed in State v. Hutt, 2 Ark. 282. The question was whether Hutt, a justice of the peace whom the legislature had elected state treasurer, could hold the latter office. The proceeding was by quo warrant o. In the opinion, written by Judge Thomas J. Lacy, it was stated that the collection of taxes (a duty enjoined upon the treasurer) was an executive function, and that it was incompatible with that of justice of the peace. There is this expression: “The office of justice of the peace is as much a judicial office as the office of supreme judge, or circuit judge, for its power and ¡being are derived from the same source, and stand precisely upon the same constitutional provision or enactment. . . . The office of justice of the peace belongs exclusively to the judicial [department] and that of treasurer of the state to the executive department; and this being the case, the constitution forbids, in express terms, any person or collection of persons from exercising the powers and duties of these two offices at one and the same time.”
It is not suggested that the exact question involved here was presented in the Hutt Case.
Right of the legislature to impose certain ministerial duties upon the county court was sustained in State v. Collins, 19 Ark. 587, decided in 1858, the constitution of 1836 then being in effect. By an act of 1855 the county courts of Crawford and Sebastian counties were directed to examine the accounts and settlements of the county clerk, treasurer, sheriff and collector, and the internal improvement commissioners. Other related duties were imposed. Collins was indicted for violating the act. In reversing the trial court’s action in sustaining a demurrer to the indictment, the opinion said: “The legislature had the undoubted right to impose the duties, required by the act, upon the officers named. What they are required to do, under the act, is simply ministerial, and by no means inconsistent with, or repugnant to the judicial functions, belonging to them under the constitution. ’ ’
Duties of a county judge, primarily, are ministerial. As was said in Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, “The county judge is the governor, so to speak, in the affairs of the county.”
In this view of the status of county judges,' the legislature has the undoubted right to add new ministerial duties, and the fact that this may be done supplies no basis for the argument that the same character of duties may be imposed upon the judge of a court whose duties are exclusively judicial; and this is certainly true where the function it is sought to delegate is of a class conferred -upon the executive department by the constitution.
By an act of 1840, the presiding judge of the county court was authorized to appoint a sheriff, pro tempore, when the office of sheriff and coroner were both vacant. It was upheld in State, Use of Brown et al. v. Crow et al., 20 Ark. 209. Here, again, the officer to whom the authority was delegated was charged with ministerial duties, and there was no violation of the constitution.
The Collins Case was cited in Clayton v. Johnson, 36 Ark. 406, 38 Am. Rep. 40, where the court said: “The legislature may authorize a judge to do a ministerial act in no way inconsistent with, or repugnant to, his judicial function under the constitution. ’ ’
In the Clay ton-Johns on Case a statute required an assignee for the benefit of creditors to file the assignment, and his inventory and bond, with the probate clerk, the bond to be approved by the probate court. The statute was challenged on the ground that approval of tlie bond was executive in nature and could not be performed by tbe probate • court. In the opinion it was said: “Tbe approval of sucb a bond is a ministerial act, which, like the taking of the acknowledgments of deeds, might be entrusted to any officer, at the pleasure of the legislature.” Oliver, Sheriff v. Marlin, Judge, 36 Ark. 134, was cited. There it was held that a statute requiring circuit courts to approve bonds of all county officers was valid.
We need not speculate what the situation would have been if the general assembly had named a collector, or had undertaken to delegate this authority to a person or group of persons not of the judiciary. Cox v. State, 72 Ark. 94, 78 S. W. 756, 105 Am. St. Rep. 17, is authority for the proposition that the governor has no inherent power by virtue of his office or of art. 6, § 23, to appoint certain commissioners, and that the legislature has power to make appointments to office unless its powers in that respect are restricted by the constitution, either expressly or by implication.
Article 7, § 46, of the constitution, provides the primary method of selecting a sheriff, and that method is by action of the electors of each county. But the sheriff is not collector after the legislature has exercised the right to separate the two offices. In the instant case there can be no vacancy in Pulaski county unless we assume that the lawmaking body would have passed the bill even though it had known that the circuit and chancery judges were incompetent to name the collector.
The duties of a collector are in no sense related to the administration of justice; and, while certain activities not essentially judicial may be imposed upon judges in those cases where by the constitution such duties do not inhere in another department of the government, in the instant case the delegated authority is of that class set aside to the executive department.
In most instances judges are — and in all cases they should he — free from political pressure and beyond the _ reach of partisan influence.
Section 4 of act 137 provides a salary of - $5,000 per year for the collector. He is authorized to employ a chief deputy at $175 per month and ten deputies at $140 per month, each — an annual expenditure of $23,900. Human nature is such that seekers for the position of collector will not only endeavor to importune the judges, but those aspiring to deputy ships may likewise become suppliants.
Common knowledge teaches, and experience informs ■ us, that most people who apply for public office have the backing of influential friends, and are themselves prominently connected. Unfortunately we have pot reached that ideal state where friend interested in friend will circumscribe his or her activity merely because the appointive power is judicial.
Judges should not be subjected to these experiences. Our system, providing as it does for distinct separation of departments, did not in its inception contemplate a blending of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of convenience.
It is obvious that the motive actuating the legislature was to guarantee selection of a collector by a nonpolitical method. The judges to whom the mandate is directed are men of integrity to whom the implication of acting in the interest of political purpose would not attach. They had nothing to do with enactment of the measure, and would prefer to avoid its consequences.
■Section.46 of- art. 7, as it affects sheriffs, has been construed to provide for a two-year term of office. By reference to the section (printed as the tenth footnote) it will he seen that the expression “for the term of two years” follows words which confer upon the general assembly power to create the separate office of collector. It must be held, therefore, that the collector’s term could be for but two years, as distinguished from the five-year period stated in act 137.
Since the constitution limits a sheriff’s term to two years, and by clear implication that limitation attaches to the office of collector; since the nature of the act of appointment is essentially non-judicial, and therefore not to be exercised by circuit and chancery judges; since purpose to separate the offices, delegation of authority to appoint, and the period for which appointment is made, are contained in sections one and two (and without these provisions the act is unworkable), it must be held that § 11 — the severability clause — is impotent, and the entire act fails. Effect is that the sheriff remains, ex officio, collector.
The judgment is reversed and the cause is remanded with directions to overrule the demurrer and to enter an order not inconsistent with this opinion.
Pertinent sections of the article in question are: (Sec. 1.) “The powers of the government of the state of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another. (Sec. 2.) No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”
Constitution of 1874, art. VII, § 46.
Vol. 11, p. 888, § 188, entitled, “Imposition of Executive Functions on Judiciary by Legislature,” beginning on page 887.
“Generally, unless the constitution otherwise provides, the legislature may authorize courts or judges, in aid of or in connection with the exercise of their judicial powers, duties, and functions, to appoint officers, including those whose duties are not strictly judicial. Thus it has been held that courts may be authorized to appoint appraisers, commissioners to ascertain and settle the respective proportions of indebtedness assumed by the different parts of a divided county, commissioners or trustees to carry on the construction of a subsidized railway, election boards, judges, and clerks, county auditors, drainage commissioners, examining boards, expert witnesses, guards for the protection of property against mobs, janitors, jury commissioners, park commissioners, police commissioners, probation officers, receivers, road commissioners, school commissioners, tax collectors, equalizers, or adjustment boards, and water commissioners. Also, the power to authorize the court to appoint a clerk was not denied, although such appointment was construed as an executive act; but where the office of clerk was an elective office under the constitution, the power to fill vacancies by appointment could not be conferred on the court. Furthermore, .statutes have been sustained which have conferred on courts or judges authority to designate a judge to hold court. Thus courts of record in each county may be authorized to appoint one of their number to hear juvenile cases, or the chief justice of a superior court may be empowered to appoint a district judge to sit on the superior court for the trial and disposition of designated violations of criminal law, and the power of appointment and confirmation of federal judges vested in the president and senate is not usurped by a senior federal judge in assigning a district judge to another district, conformably to statute.”
Hoke v. Field, 19 Amer. Rep. 58, 10 Bush 144, (Ky.); Ross v. Board of Chosen Freeholders, 69 N. J. L. 291, 55 Atl. 310; New Jersey Zinc Co. v. Sussex County Board of Equalization of Taxes, 70 N. J. L. 186, 56 Atl. 138; Citizens Savings Bank v. Town of Greenburgh, 173 N. Y. 215, 65 N. E. 978; McDonald v. Morrow, 119 N. C. 666, 26 S. E. 132; People v. Evans, 247 Ill. 547, 93 N. E. 388; Terre Haute v. Evansville & T. H. R. Co., 149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189; Ford v. Incorporated Town of North Des Moines, 80 Ia. 626, 45 N. W. 1031; In re Dexter-Greenfield Drainage District, 21 N. Mex. 286, 154 Pac. 382; Elliott v. McCrea, 23 Idaho 524, 130 Pac. 785 (1913).
It is of historical interest to note that Albert Pike was Supreme Court Eeporter when this case was decided September 11, 1840. The name “Pike” for the state, appears in the report. Albert Pike was associated with J. J. Clendennin in the practice of law in 1837, when the latter was elected prosecuting attorney for the Little Eock district. He thereby became, ex-officio, attorney for the state. Clen-dennin later became a member of the Supreme Court, as did Albert Pike. Pike succeeded H. P. Fairchild June 8, 1864.
When this case was decided the constitution of 1836 was in force. Article 3 of that document contained a provision exactly like §§ 1 and 2 of art. 4 of the constitution of 1874.
For views expressed in other jurisdictions see Supervisors of Election, 114 Mass. 247, 19 Am. Rep. 341; State, ex rel. White v. Baker, 116 Ia. 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222; State, ex rel. Thompson v. Neble, 82 Neb. 267, 117 N. W. 723, 19 L. R. A., U. S., 578; State v. Mayor of Town of Dover, 68 N. J. L. 576, 53 Atl. 214; Beasley v. Ridout, 94 Md. 641, 52 Atl. 61; Prince George's County Commissioners v. Mitchell, 97 Md. 330, 55 Atl. 673; State, ex rel. Young v. Brill, 100 Minn. 499, 111 N. W. 294, 639, 10 Ann. Cas. 425. See, also, 12 C. J. p. 874, § 377.
This has no reference to a vacancy.
“The qualified electors of each county shall elect one sheriff, who shall be ex-officio collector.. of taxes unless otherwise provided by law; one assessor, one coronel*, one treasurer, who shall be ex-officio treasurer of the common school fund of the county, and one county surveyor, for the term of two years, with such duties as aré now or may be prescribed by law.” | [
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McHaney, J.
Appellee, husband of appellant, brought this action against her and the First National Bank of Fort Smith, to recover the sum of $3,640 and the accrued interest thereon, the total amounting to $4,211.11, which she had deposited in a savings account in said bank, in her maiden name of Ethel Marie Mivelaz. The parties to this action were married January 1, 1928. At that time appellee was under a “try out” contract of employment as traveling salesman with the R. Hoe Company, manufacturers of printing machinery and supplies, by which he received traveling expenses only, but in June or July he began receiving a salary in addition to expenses. Fort Smith was his headquarters during 1928, where they lived with appellant’s sister. In December he was transferred to New Orleans, became sales manager of a large territory, and was given a salary of $350 per month plus traveling expenses. Some time after their marriage, appellee opened a checking account in the First National Bank in their joint names, giving either the right to check thereon. Salary and expense checks from his employer were sent to him at Fort Smith, were received by her in his absence, and she was instructed by him to deposit same to said account after deducting such sums as she might need for her living expenses in his absence. Some of the funds she received were deposited according to instructions, but, from August 28, 1928, to March 3, 1930, she withheld from deposit in that account $3,640 of said money sent her, and deposited same to her own credit under her maiden name, Ethel Marie Mivelaz. From May, 1929, to December, 1932, there was deposited in the checking account in their joint names the sum of $8,750.57, 'but he received no salary or expenses after February 15,1932, as he suffered á serious and permanent injury in an automobile wreck January 18, 1932, and did no work thereafter, and it appears from the bank records that $2,427.50 was deposited in said account from April 11 to December 23,1932.
Appellant defended the action on the ground that the money deposited to her credit was a gift from her husband.' The court found against her contention, and she has appealed.
Substantially the only question presented is one of fact. Did appellee give her the money she deposited to her credit in a savings account? There is no conflict in the testimony, except on the issue of gift or no gift. It is undisputed that all the money deposited in both accounts came from his earnings. It is also undisputed that he knew nothing about this account in her maiden name until the bank charged him with an overdraft, and, upon investigation of this matter, discovered same. Appellant says he gave her the money, and is corroborated to some extent by her two sisters and a niece. Appellee denies that he gave her the money to be kept as her own, but that it was to be deposited in the checking account. In this he is corroborated to some extent by the facts and circumstances surrounding the transaction. The fact that she deposited it to her credit in her maiden name; that she did not deposit it in the bank where she had another savings account, the Merchants’ National; that she did not tell him that she had done so, all tend somewhat to show an effort to hide or conceal the matter, and to corroborate him that there was no gift. The court found the issue in favor of appellee, and we are unable to say the finding is against the preponderance of the evidence.
Moreover, if this is a gift at all, it is a gift inter vivos or clonatio inter vivos. In Stifft v. W. B. Worthen Co., 176 Ark. 585, 3 S. W. (2d) 316, we said: “Gifts inter vivos or donationes inter vivos are gifts between the living, and are perfected and become absolute during the lifetime of the donor and the donee. * * * The elements necessary to constitute a valid gift inter vivos were stated by this court in Lowe v. Hart, 93 Ark. 518, 125 S. W. 1030, to the effect that the donor must be of sound mind, must actually deliver the property to the donee, must intend to pass the title immediately, and the donee must accept the gift.” We think the evidence in this case fails to satisfy this rule. There was no intention on his part to pass the title to her immediately or at all. He intended that the mone}^ be deposited in their joint checking account, over which he had some control. While she did not"draw any checks on that account, she could have done so without accounting to him therefor.
It follows that the decree must be affirmed.
Johnson, C. J., and Kirby and Butler, JJ., dissent. | [
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Johnson, C. J.,
(after stating the facts). The paramount and controlling question here presented is the removability of this cause from the Pulaski Circuit Court to the Federal court for the Eastern District of Arkansas. It is the well-settled law that removability is tested solely by the complaint and the petition for removal. Appellee ’s complaint shows that he was seeking to recover from appellant $2,675 as damages for permanent disability. In addition to this, he sought recovery of twelve per cent, penalty upon $2,675. Twelve per cent, of $2,675 is $321. These two items, when added, aggregate $2,996. In addition to this sum, appellee sought to recover a reasonable attorney’s fee.
We expressly held in Mutual Life Insurance Co. v. Marsh, 185 Ark. 332, 47 S. W. (2d) 585, that the twelve per cent, penalty, provided for by § 6155 of Crawford & Moses’ Digest, was not an item of costs, and therefore should be added to the amount sought to be recovered in testing the sufficiency of a petition for removal. The headnote reads as follows:
“The amount in controversy in an action on an insurance policy for $3,000 plus 12 per cent, penalty is $3,600, which entitled the defendant, a nonresident, to removal of the cause to the Federal court, under title 28, § 71, USCA.”
In the more recent case of Missouri State Life Insurance Co. v. Johnson, we had before us the question as to whether a reasonable attorney’s fee should be added to the amount sought to be recovered plus the twelve (12%) per cent, penalty, and we determined this question in favor of-the insured. The effect of our holding was that the reasonable attorney’s fee, provided for by statute, was an item of cost, and therefore should not be considered on the question of removability. The Johnson case was reviewed by the Supreme Court of the United States, wherein it was determined that the Supreme Court of Arkansas had erred in holding that a reasonable attorney’s fee should not be added in determining the question of removability. In disposing of the question, Mr. Justice McReynolds said:
“In the State court the present respondent sought to enforce the liability imposed by statute for his benefit —to collect something to which the law gave him a right. The amount so demanded became part of the matter put in controversy by the complaint, and not mere ‘costs’ excluded from the reckoning by the jurisdictional and removal statutes.” Missouri State Life Insurance Co. v. Jones, 290 U. S. 199, 78 L. ed. 135.
In accordance with the opinion of the Supreme Court of the United States, we must now hold that, when a reasonable attorney’s fee is a matter in controversy, and when such fee-, added to the specific sum in controversy, aggregates a sum in excess of $3,000, and all other requisites are present, such cause of action is removable from the State to the Federal courts.
In the instant case, when a reasonable attorney’s fee is taken into consideration on the question of removability, it is made certain that the total amount in controversy is in excess of $3,000. It is perfectly evident that $4 would not be a reasonable attorney’s fee in a controversy wherein practically $3,000 is involved. We therefore conclude that the trial court erred in refusing to remove this cause to the Federal District Court for the Eastern District of Arkansas.
For the error indicated, the cause is reversed and remanded with directions to enter an order of removal, in accordance with the petition and bond therefor. | [
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BRANDON J. HARRISON, Judge
hGraylon Cooper appeals the decision of the Arkansas Workers’ Compensation Commission (the Commission), which found that he did not prove that he was permanently and totally disabled but awarded him a 23 percent wage-loss disability. He argues that the Commission’s decision is not supported by substantial evidence. We affirm.
Cooper, a surgical technician at UAMS, injured his back while transferring a patient from the operating table to a stretcher in May 2011. UAMS accepted the injury as compensable and paid for medical and indemnity benefits. Cooper underwent an anterior cervical discectomy and fusions at C5-6 and C6-7 in August 2012 and was released with an |2U percent impairment rating. UAMS accepted and paid permanent partial-disability benefits based on the 11 percent impairment rating.
In September 2015, an administrative law judge (ALJ) held a hearing to determine Cooper’s entitlement to permanent total disability or, in the alternative, a wage-loss disability in excess of 11 percent. At the hearing, Cooper testified that he had a bachelor’s degree in pre-med zoology, an associate’s degree in surgical technology, and had attended one year of medical school. He testified that since his surgery, he still has pain and blood pressure issues. He said that on an ordinary day his pain level is a nine on a scale from one to ten. He explained that he is on a number of medications that make him drowsy, affect his memory and his ability to concentrate, and render him unable to drive. He testified that he did nothing most days except watch television. He did admit, however, that he had been able to take a seven-hour round trip to Mississippi and had traveled to Louisiana and played slot machines for about an hour.
Cooper said that he would prefer to be working but that he cannot work for more than an hour at a time. He agreed that he could perform a job where all he had to do was sit and answer the phone but then said he could not hold conversations with people because of his medications. He said that he underwent a functional capacity evaluation (FCE) in July 2015 after having to cancel two previous FCEs due to his high blood pressure. He stated that he was “educated to do a lot of jobs” and insisted that he would “love” to go back to work.
Cooper’s wife, Narvelia, testified that Cooper had been energetic and active before his injury but is completely inactive now. She testified that if he could work, he would, Land that he had expressed a desire to go back to work. She also said that he has ongoing problems with pain and that his medication affected his ability to communicate and stay awake.
Heather Taylor, an educational rehabilitation counselor, testified that she met with Cooper in June 2015; however, she did not conduct any job search for him at that time because “he had resigned himself to not going back to work in the future and didn’t have any plans to look for a job in the future.” She completed a vocational-rehabilitation evaluation report based on Cooper’s educational and work-history background but did not have an FCE to assist her.
She spoke to Cooper again in August 2015 on the telephone and attempted to set up a meeting with him, but Cooper placed her on hold and never came back to the phone. According to Taylor, she called back a couple of times and never got an answer; she also sent a follow-up letter but never received a response. Taylor prepared another report on August 26 and noted his failure to communicate with her. She also noted that his FCE indicated that he can perform sedentary work but cannot work an eight-hour shift. She concluded that Cooper had an excellent work history and educational background and had acquired a strong skill set but that “there may be an issue with his medications possibly causing him to be not fully coherent.” Taylor testified that she had not performed any labor-market research taking into account the limitations revealed by the FCE but opined that “his options will be extremely limited.”
In addition to reviewing the above testimony in his written order, the ALJ also reviewed the medical evidence presented at the hearing. Dr. Zachary Mason, who ^performed Cooper’s surgery, opined in October 2012 that Cooper could return to work and assessed his impairment rating at 11 percent to the body as a whole. A 2013 neurology report signed by Dr. Bradley Boop noted that “nerve conduction studies and EMG recordings in the right upper extremity are unremarkable. There is no evidence of an underlying radiculopa-thy and there are no myopathic changes.”
In January 2014, Dr. Jay Holland, Cooper’s general physician, opined that Cooper had been “rendered disabled due to cervical disc diseases, cervical nerve pain post injury and right arm hemiplegia.” He also stated that any belief that Cooper would rather bankrupt his family than work is “completely wrong.” Also in January 2014, Dr. Carl Covey, a pain-management physician, stated that Cooper’s “pain level is sufficient enough that it is my recommendation that he does not work at this time.”. In December 2014, Covey opined that Cooper “could foreseeably attempt to return to some sort of employment but his prospects are <jjim as he continues to complain of significant pain and requires medication for the pain that could certainly impair both his physical and mental functioning,” Covey declined to comment on any change of impairment but recommended Dr. Kevin Collins to make such an assessment. .
In April 2015, Dr. Collins examined Cooper to determine whether there was any change in the previously assigned permanent-partial impairment rating of 11 percent. Collins reviewed a 2013 MRI and noted that Cooper now has a disc protrusion at C4-5, which is not unusual for patients who have undergone a fusion. Collins opined that Cooper’s percentage of impairment “certainly should go up as it relates to his circumstance” and assessed a 25 percent whole-person impairment.
| BIn May 2015, the claim adjuster for the public-employee claims division requested a review of Dr. Collins’s report, and Dr. Bruce Randolph performed that review. Randolph reviewed Cooper’s medical records, including Dr. Collins’s findings, and concluded that Cooper had an 11 percent whole-person impairment. Cooper’s FCE, which was administered in July 2015, noted that Cooper put forth consistent effort and concluded that
although Mr. Cooper demonstrated the ability to perform material handling within the SEDENTARY classification of work, he did require multiple rest breaks while [lying] down during this evaluation. He did not demonstrate the ability to work an 8 hour workday at this time, even at the Sedentary work level.
With regard to medical evidence established by objective findings, the ALJ noted that Cooper’s nerve-conduction studies and EMG recordings in the right upper extremity were “unremarkable and there is no evidence of an underlying radiculopathy and there are no myopathic changes.” The ALJ also noted that Cooper had received an anatomical impairment rating of 11 percent from two physicians and that Dr. Collins’s higher rating of 25 percent had been withdrawn prior to the hearing “due to issues in regard to the method used to reach its determination.” The ALJ concluded
In considering factors that could affect the claimant’s future earning capacity and in reviewing the testimony and reports that were filed of record, I find that claimant’s motivation to return to work vacillates at times. Mr. Cooper has made statements that he wants to return to work to pay bills and to take care of his family and then has also made statements that he will never will [sic] be able to return to work. Mr. Cooper admitted that he has spent as long as seven hours in a car traveling during a day and has been able to play slot machines at least on one occasion since the accident.
Based on the above, I find that Mr. Cooper has failed to show by a preponderance of the evidence that he is permanently and totally disabled, but has proven by a preponderance of the evidence that he is entitled to wage loss disability rating of 23% along with statutory attorney fees.
lfiUAMS appealed to the Commission, and Cooper cross-appealed. In an opinion dated 18 May 2016, the Commission, in a 2-1 majority opinion, affirmed and adopted the ALJ’s opinion as its own. Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion. Id.
Cooper now appeals the Commission’s decision, and while UAMS filed a cross-appeal, it has not developed any argument on appeal challenging the 23 percent wage-loss award other than a conclu-sory statement that “the award of 23% wage loss disability is excessive in this case.” Therefore, we consider the cross-appeal abandoned.
It is the Commission’s duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 (2008). We review the Commission’s decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Parker v. Atl. Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission: if so, the appellate court must affirm. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007).
| ./Pursuant to Arkansas Code Annotated section 11-9-522(b)(1) (Repl. 2012), when a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based on wage-loss factors. Redd v. Blytheville Sch. Dist. No. 5, 2014 Ark. App. 575, 446 S.W.3d 643. The wage- loss factor is the extent to which a com-pensable injury has affected the claimant’s ability to earn a livelihood. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005). The Commission is charged with the duty of determining disability based on a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Redd, swpra. Motivation, postinjury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss-disability benefits in excess of permanent-physical impairment. Id.
Permanent total disability is defined by statute as the inability, because of compen-sable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-9—519(e)(1) (Repl. 2012). The employee bears the burden of proving the inability to earn any meaningful wage. Ark. Code Aim. § ll-9-519(e)(2).
I. Permanent and Total Disability
For his first point, Cooper argues that the finding that he is not permanently and totally disabled is not supported by substantial evidence. He denies that spending a total of seven hours in a car during one day or playing slot machines for one hour shows that he has the ability to return to some type of work. He reviews the medical evidence, including Dr. Holland’s diagnosis in March 2013 that Cooper had a cervical nerve-root injury, muscle | ^wasting, and neuropathy of the right upper extremity that was “not fixable and will not heal.” Cooper also cites the results of the FCE, which he says “revealed that he is unemployable.” He insists that the totality of the evidence shows that he is permanently and totally disabled and cites Whitlatch v. Southland Land & Development, 84 Ark. App. 399, 141 S.W.3d 916 (2004), in support.
Whitlatch presents a similar situation in that the claimant argued that he was “totally and permanently disabled as a result of the combination of the severe pain he suffers from in his back and legs along with the severe side effects he suffers associated with the narcotics medication he takes daily.” Id. at 406, 141 S.W.3d at 921. The Commission found that Whitlatch was not totally and permanently disabled but was entitled to a 50 percent wage-loss disability. This court reversed, however, holding
In short, when taking into consideration appellant’s limited education, manual-labor employment skills, severe pain in his back and legs, coupled with the side effects of necessary prescription pain medication, in addition to the testimony of his doctors and vocational expert, we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission, finding that appellant was anything less than permanently and totally disabled.
Id., 141 S.W.3d at 921.
Cooper argues that Whitlatch is on all fours with his case and denies that Whit-latch is distinguishable based on the limited education status of the claimant in that case. Cooper contends that the Commission “never even considered [his] mental condition when it rendered its opinion regarding his residual physical capacity to return to part-time, sedentary work which only theoretically exists.” (Emphasis in original.) He claims that had 19the Commission properly considered the effect of his pain and his medications, it could not have reasonably reached any conclusion other than permanent and total disability.
In response, UAMS asserts that Cooper is highly educated, skilled, and, by his own admission, qualified to teach. However, Cooper has not pursued any job, either full time or part time, nor did he participate in the vocational rehabilitation offered to him. UAMS also contends that Cooper’s “credibility about his pain and his limitations is in question since he claims that he must sit in his chair all day because he is in pain, but admits that he can travel to Louisiana to stay at a casino and play slots.” UAMS argues that Cooper’s true employment potential is not known due to his lack of effort in looking for work, and that considering his motivation, credibility, and demeanor, the Commission did not err in finding that Cooper failed to prove entitlement to permanent total disability.
As to Whitlatch, UAMS asserts that the case supports the finding that Cooper is not permanently and totally disabled, because Cooper is far more educated and has more transferable skills than Whitlatch. UAMS argues that Frost v. City of Rogers, 2016 Ark. App. 273, 492 S.W.3d 875, is more on point. In Frost, the claimant sustained a compensable back injury and underwent a lumbar fusion and pain management -with narcotic medication. Frost sought permanent total-disability benefits, but the Commission awarded permanent partial-disability benefits of 20 percent. In affirming, this court noted the Commission’s findings that Frost was assigned only 10 percent impairment rating for his injury, has a tenth grade education and can read, and had not looked for any job beyond the ones identified by a vocational counselor. We held that these facts provided a substantial basis for the Commission’s decision.
ImUAMS argues that Frost and Cooper are similar in age, both underwent spinal fusion and used narcotic pain medication, and both have not made an effort to return to work. Additionally, Cooper is more educated than Frost. According to UAMS, these facts support the Commission’s conclusion that Cooper is not permanently and totally disabled.
It is the Commission’s duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence, see Martin Charcoal, Inc., supra, and we will not second-guess that determination. As stated previously, the issue is not whether the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission; if so, the appellate court must affirm. Parker, supra. Viewing the Commission’s decision in the light most favorable to its findings, we hold that reasonable minds could reach the result found by the Commission; accordingly, we affirm.
II. Wage-loss Disability
On this point, Cooper claims that because the Commission awarded him only 23 percent wage loss, it concluded that he had retained 66 percent of his ability to earn wages. And based on his average weekly wage, this means the Commission thinks that he should be able to earn $813.12 per week. Because it is clear that he cannot work full time, he would have to find a part-time, sedentary job that pays $40.66 per hour to earn that amount per week. Cooper concludes that the absurdity of this scenario is proof that the assessment of a 23 percent wage loss is not supported by substantial evidence and should be reversed.
Inin response, UAMS again argues that Cooper is unmotivated to return to work and “is content sitting at home in his recliner watching television and taking all of his medications.” Therefore, it asserts, Cooper is not entitled to any greater amount of wage-loss disability benefits than the 23 percent awarded. UAMS also disputes Cooper’s argument above based on earning potential and notes that the Commission made no finding that Cooper is able to earn 66 percent of his wages.
Again, based on our standard of review, and viewing the Commission’s decision in the light most favorable to its findings, we hold that the Commission’s award of 23 percent wage-loss disability is supported by substantial evidence.
Affirmed.
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BART F. VIRDEN, Judge
|T Reuben and Margaret Barnes (hereinafter “the Barneses”) appeal the Benton County Circuit Court’s decision awarding summary judgment in favor of Ozarks Community Hospital of Gravette Clinic and Dr. William F. Webb (hereinafter “Ozarks”). On appeal, the Barneses argue that the circuit court erred in awarding summary judgment based on its misinterpretation of 11 U.S.C. section 554. The Barneses also assert that the circuit court order granting summary judgment constituted an improper collateral attack on the federal bankruptcy court proceedings. In the alternative, the Barneses argue that if the circuit court’s interpretation of 11 U.S.C section 554 was correct, then the circuit court erred when it found that Arkansas Rule of Civil Procedure 17(a) did not apply under the facts of this case. We find no error and affirm.
I. Facts
lain May 2013, the Barneses filed a bankruptcy petition and listed a medical-malpractice claim against Ozarks in the schedule of assets. On June 16, 2014, the trustee entered a “Final Account and Distribution Report Certification that the Estate has been Fully Administered and Application to be Discharged” (“Final Account”). On line 27 of the “Individual Estate Property Record and Report Asset Cases” form, a “Potential Medical Malpractice Action” with an unscheduled value of $45,950 was designated “FA,” or “fully administered.” In the Final Account a column runs throughout the entire list of assets in which the trustee is instructed to make the notation “OA” if the asset on that line has been abandoned pursuant to 11 U.S.C. section 554(a). The column for line 27, or “Potential Medical Malpractice Action” had been left blank.
On the same day the Final Account was entered, the Barneses filed a complaint against Ozarks, contending that, as a result of Dr. Webb’s failure to diagnose Reuben Barnes’ Rocky Mountain Spotted Fever, Reuben had become blind, and he and his wife were entitled to damages and costs. On April 24, 2015, Ozarks filed a motion for summary judgment in which it argued that the Barneses did not have standing to file their complaint because the malpractice claim had not been abandoned at that time; therefore, only the trustee could have filed the claim on that date. Ozarks attached the trustee’s Final Account to its motion, which listed the potential medical-malpractice claim among the assets. Ozarks argued that because the Barneses had no standing to file, the complaint was a nullity. The Barneses responded that the claim had been abandoned by the bankruptcy trustee on June 16, 2014, pursuant to 11 U.S.C. section 554(a), and they had a right to pursue the claim.
|sThe circuit court awarded summary judgment in favor of Ozarks. In the written order filed July 31, 2015, the circuit court found that the medical malpractice claim had not been abandoned by the bankruptcy trustee under section 554(a); therefore, when the Barneses filed the complaint on June 16, 2014, they lacked standing. The circuit court found that the complaint, filed without standing, was a nullity. The circuit court additionally found that abandonment of the medical malpractice claim at the close of the bankruptcy case, pursuant to section 554(c), would not have occurred until July 23, 2014, and that the statute of limitations on the medical malpractice claim expired on June 19, 2014. The circuit court found that Arkansas Rule of Civil Procedure 17 did not apply because the Barnes’ complaint was a nullity and because there was no understandable mistake that would allow for the application of the rule. The Barneses filed a timely notice of appeal.
II. Standard of Review and Applicable Law
A. Abandonment of the Malpractice Claim and Standing
Summary judgment is to be granted by the circuit court only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Killian v. Gibson, 2012 Ark. App. 299, at 6, 423 S.W.3d 98, 101. In reviewing a grant of summary judgment, an appellate court determines if 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. Id. This court views the evidence in the light most favorable to the party against whom the motion for summary judgment was filed and resolves all doubts and inferences against the moving party. Id.
| ¿When the proof supporting a motion for summary judgment is sufficient, the opposing party must meet proof with proof, and the failure to do so leaves the uncontroverted facts supporting the motion accepted as true for purposes of the motion. See Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). In response to a motion for summary judgment, the supporting material must set forth specific facts showing that there is a genuine issue of fact for trial. Mount Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993).
We recognize a “shifting burden” in summary-judgment motions, in that while the moving party has the burden of proving that it is entitled to summary judgment, once it has done so, the burden then shifts to the nonmoving party to show that material questions of fact remain. See Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). When the movant makes a prima facie showing of entitlement to a summary judgment, the respondent must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World v. Westmoor Mfg., 269 Ark. 300, 601 S.W.2d 826 (1980).
The Barneses and Ozarks agree that the medical-malpractice claim was abandoned by the trustee pursuant to 11 U.S.C. section 554; however, the parties disagree on the question of whether the documents submitted to the court indicate that the claim was abandoned pursuant to subsection (a) or pursuant to subsection (c). 11 U.S.C. section 554 sets forth the following:
(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
|fi(b) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
(c) Unless the court orders otherwise, any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title.
Ozarks and the Barneses agree that the column in the individual estate-property record and report that was attached to the Final Account, designated as the place where the trustee should indicate that he wished to abandon the malpractice claim under subsection (a), was left empty. Ozarks argued in its motion for summary judgment that the empty column indicated that the claim had not been abandoned pursuant to subsection (a), and that the claim was automatically abandoned pursuant to subsection (c)—when the bankruptcy case was closed, and after the statute of limitations had run.
The Barneses argued in response that the dollar amount of the abandoned assets that was shown on the Final Account, $663,457, could only be reached if the $45,950 medical-malpractice claim was included in that overall amount; thus, the medical-malpractice claim must have been previously abandoned by the trustee. The Barneses, in essence, asked the court to infer from the amounts of the assets that the malpractice claim must have been included in the overall amount.
The circuit court, citing Stanley v. Sherwin-Williams Co., 156 B.R. 25 (1993), found that a proposal of abandonment must be “unequivocal” and that it “is neither desirable nor consistent with section 554 to return to the practice of attempting to determine the trustee’s intent.” Based on that reasoning, the circuit court found that the Barneses had not | ^demonstrated that the claim had been abandoned pursuant to subsection (a), and thus, the Barnes-es did not have standing to file the claim when they did so.
We have held that inferences to be drawn from undisputed facts must be more than mere possibilities; they must be such that “reasonable minds” would come to “reasonably” different hypotheses. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 573, 11 S.W.3d 531, 538 (2000). Examining the abstract and record, it is evident that no such reasonable inferences are present and that the Barneses thus failed to “meet proof with proof.” Ozarks presented the fact that, within the bankruptcy trustee’s Final Report, the column in which abandonment pursuant to 11 U.S.C section 554(a) should have been noted was left blank. The Barneses failed to present uncontroverted facts to support their argument that the claim was abandoned pursuant to subsection (a), which left the uncon-troverted fact supporting Ozarks’s motion accepted as true for purposes of their motion.
We hold that the circuit court did not err in finding that the Barneses failed to show that a genuine issue of material fact remained, or that reasonable, differing inferences could have been drawn from the undisputed facts. On this point we affirm.
B. Collateral Attack
The Barneses argue that the circuit court’s order granting summary judgment constituted an impermissible collateral attack on a federal bankruptcy court proceeding. The Barnes’ point is not well taken, and we affirm.
A direct attack on a judgment is an attempt to amend it, correct it, reform it, vacate it, or enjoin its execution in a proceeding instituted for that purpose. Council of Co-Owners for Lakeshore Resort & Yacht Club Horizontal Prop. Regime v. Glyneu, LLC, 367 Ark. 397, 405, 240 S.W.3d 600, 607 (2006). An attack is direct where the proceeding in which it is made is brought for the purpose of impeaching or overturning the judgment, and collateral if made in any manner other than by a proceeding the very purpose of which is to impeach or overturn the judgment. Id.
Absent allegations of fraud or lack of jurisdiction, a judgment entered by a circuit court bears presumptive verity and may not be questioned by collateral attack. Fed. Nat’l Mortg. Ass’n v. Taylor, 2015 Ark. 78, at 6, 455 S.W.3d 811, 815
The circuit court did not attack a bankruptcy court judgment setting forth that the malpractice claim was abandoned under 11 U.S.C. section 554(a). In no way did the circuit court modify, overturn, or in any way invalidate the Final Report entered by the bankruptcy court. The circuit court recognized the Final Report as evidence aiding in its determination of the issue of summary judgment. The Barneses’ argument concerning impermissible collateral attack has no merit. On this point we affirm.
C. Arkansas Rule of Civil Procedurel7(a)
In the alternative, the Barneses assert that, if the claim had was not abandoned pursuant to subsection (a), then the circuit court erred when it found that no understandable mistake occurred that would allow the Barneses to invoke Arkansas Rule of Civil Procedure 17(a). We hold that the circuit court did not err in refusing to apply Rule 17(a), and we affirm.
Arkansas Rule of Civil Procedure 17(a) sets forth that
[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest
In Hobson v. Holloway, 2010 Ark. App. 264, at 4-5, 377 S.W.3d 376, 379, our court has acknowledged that a lack of standing may be cured by the later abandonment of a claim where the debtor has made an “understandable mistake” by suing in his or her own name; however, in Hobson, we also stated that “it is not an understandable mistake to sue in the name of the wrong person where a statute makes it clear who may bring suit.”
In Bibbs v. Community Bank of Benton, 375 Ark. 150, 159, 289 S.W.3d 393, 399 (2008) our supreme court held:
In the instant case, when the original complaint was filed on August 8, 2005, the real parties in interest were Bibbs’s and Mason’s bankruptcy trustees. We have held in this opinion that the Bankruptcy Code clearly provides that a trus tee, and only a trustee, has standing to prosecute causes of action that are property of the Chapter 7 bankruptcy estate. 11 U.S.C. §§ 323, 701(1). The determination of the real party in interest was not difficult for the appellants in this case; nor was there an understandable or excusable mistake by Bibbs and Mason in this regard. (See Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004)) (not understandable mistake when wrongful-death statute specifically detailed who may bring suit).
The trustee is the “legal representative” of the bankrupt estate, with capacity to sue and be sued. 11 U.S.C. § 323; See Vreugdenhil v. Hoekstra, 773 F.2d 213, 215 (8th Cir. 1985). Legal claims that accrue before the filing of a bankruptcy petition are property of the bankruptcy estate. Fields v. Byrd, 96 Ark. App. 174, 239 S.W.3d 543 (2006). A debtor lacks standing to prosecute a claim in his or her own name absent abandonment by the bankruptcy trustee. Bratton v. Mitchell, Williams, Selig, Jackson & Tucker, 302 Ark. 308, 788 S.W.2d 955 (1990).
The U.S. Code clearly sets forth that “the trustee in a case under this title has capacity to sue and be sued.” 11 U.S.C.A. § 323 The circuit court did not err in finding that there was no understandable mistake.
| Jt is well established that Arkansas Rule of Civil Procedure 17(a) does not apply when the original complaint filed is a nullity. See Brewer v. Poole, 362 Ark. 1, at 15, 207 S.W.3d 458, 466 (2005) (“Where the original complaint is a nullity, Rules 15 and 17 are inapplicable because the original complaint never existed; thus, there is no pleading to amend and nothing to relate back”). The circuit court did not err in finding that, based on the Barneses’ lack of standing, their complaint was a nullity and thus, Rule 17(a) could not be employed in their favor.
Affirmed.
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SHAWN A. WOMACK, Associate Justice
hThe appellants are class representatives of a group of property owners located in Hot Springs Village. They are appealing an order from the circuit court .of Saline County declaring the terms of a covenant between the appellants and Appellee enforceable and denying disgorgement of fees. The appellants have eight points on appeal. We affirm the judgment of the trial court on all points.
19Facts and Procedural Background
In 1994, Cooper Communities, Inc. (“Cooper”) and Club Corporation of America announced plans to build a private golf course with 450 dwelling units that would have access to the course. The private golf club (“Diamante”) was meant to be the premier amenity associated with the development. Each of the properties located in the development was subject to covenants contained in supplemental declarations (“Declarations”), which were filed in the land-records office in Saline County in 1997.
The Declarations require that all property owners in the development become “full” golf members. Further, all property owners must pay monthly dues, pay a transfer fee anytime the properties are sold, and give Diamante lien and foreclosure rights to collect unpaid fees. The portions requiring the payment of monthly dues, mandatory golf membership, and granting the club lien rights are referred to as “Tie-in” provisions. The Declarations also authorize the club to create other categories of membership which may be made available to the general public. The Declarations also state that the provisions would be subject to the club’s “Article, Bylaws, if any, and Rules and Regulations.” In 1994, Diamante adopted rules and regulations that authorized the creation of other golf | amemberships that were less privileged than the full golf memberships. The club also later adopted by-laws in 2006.
In 2012, the class representatives, Gary and Linda Dye, filed suit in the circuit court of Saline County against Diamante seeking a declaratory judgment that the provisions contained in the Declarations were unenforceable. In 2013, the Saline County Circuit Court authorized the certification of a class of 450 property owners excluding Cooper Land Development, Inc., and its affiliates. On November 25, 2013, DC Member Group Inc., a nonprofit corporation founded by three Diamante property owners, filed a complaint to intervene in the suit and asked the court to declare the tie-in provisions valid and enforceable. On April 28, 2014, the appellants filed a fourth amended and supplemented petition for declaratory judgment and asked the court to declare the covenants contained in the Declarations unenforceable; order the club to disgorge dues paid during the suit; mandate that dues recovered go directly to the maintenance and upkeep of the course; and obtain applicable attorney’s fees.
The circuit court declared that the supplemental provisions were valid and enforceable and that there had been no breach of the Declarations; it also denied the disgorgement of any fees. The appellants appealed the court’s decision and their eight points of appeal are addressed below.
Standard of Review
The standard of review for an appeal from a bench trial is whether the court’s findings were clearly erroneous or clearly against the preponderance of the evidence. McSparrin v. Direct Ins., 373 Ark. 270, 272, 283 S.W.3d 572, 574 (2008); Poff v. Peedin, 2010 Ark. 136 at 5, 366 S.W.3d 347, 350. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Arkansas Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 320, 16 S.W.3d 545, 547 (2000).
I. Transfer Fees
The appellants argue in their first point that the circuit court erred in holding that the transfer fee contained in the Declarations is not a violation of Ark. Code Ann. § 18-12-107. The statute provides, “A transfer fee covenant recorded with respect to real property in this state after July 27, 2011, [d]oes not run with the title to the real property; and [it] [i]s not binding upon or enforceable at law or in equity.” Ark. Code Ann. § 18-12-107(b)(1)(A)-(B) (Repl. 2015) (internal marks omitted). The statute further specifically states, “[t]his section does not validate a transfer fee covenant recorded in this state before July 27, 2011.” Ark. Code Ann. § 18—12— 107(b)(2) (Repl. 2015).
Here, the Declarations were properly recorded in Saline County in 1997, long before July 27, 2011. Further, the Declarations clearly impose a transfer fee whenever any of the lots are sold. The statute destroys a contractual right to apply transfer fees to property, and is therefore not remedial or procedural. The appellants argue that the statute grants the court discretion to declare invalid any transfer fees that were created before the act. However, the statute by its very terms does not specifically invalidate transfer fees recorded before the act. Therefore, we hold that the court did not err in declaring the transfer fees enforceable.
| (ill. Restraint on Alienation
The appellants argue in then-second point that the court erred in holding that the Declarations were not an unlawful restraint on the alienation of property. The purpose behind prohibiting restraints on alienation of property “is to insure that property is reasonably available for development by forbidding restraints that keep property from being used for a lengthy period of time.” Broach v. City of Hampton, 283 Ark. 496, 498, 677 S.W.2d 851, 854 (1984). If a covenant assessment is vague or indefinite, it is a restraint on alienation. See Kell v. Bella Vista Vill. Prop. Owners Ass’n, 258 Ark. 757, 761-63, 528 S.W.2d 651, 654-55 (1975).
In Kell this court held that assessments under a homeowner’s association were not an unreasonable restraint on alienation when they contained a formula for determining the amount of the assessment. Id. at 764, 528 S.W.2d at 665. There we found that the assessment was specifically for maintenance and improvements and further specified that funds would be used for “the payment of taxes and insurance thereon, and repair, replacement, and additions thereto, and for the cost of labor, equipment, materials, management and supervision thereof.” Id. at 763, 528 S.W.2d at 655. This purpose allows a formula to be determined which would prevent an arbitrary or capricious assessment. Id. at 763-64, 528 S.W.2d at 655 (citing Petersen v. Beekmere, Inc., which held an assessment is void when it is not required to benefit the subservient estate. 117 NJ.Super. 155, 174, 283 A.2d 911 (1971)).
In the instant case, the Declarations state that the monthly golf membership dues will be collected for the “use, enjoyment, and maintenance of the club.” The Declarations also specifically state “the amount of said monthly dues will be determined solely by the Club Rin accordance with its Articles, By-Laws, if any, and Rules and Regulations.” Appellants argue that these two provisions are too vague and indefinite for a formula to be crafted to determine the amount of the assessment. However, Diamante’s ability to determine the amount of the dues would be limited by their purpose, which is for the use and maintenance of the club. This would prevent Diamante from collecting dues completely unrelated to that specific purpose. We therefore hold that the circuit court did not err when it did not find that the assessment was an unlawful restraint on alienation.
The dissent relies on Broach v. City of Hampton to determine that the transfer fees in this case were unreasonable. In that case we recognized that a restraint on alienation is a provision that by its terms penalizes the power to transfer property, such as a provision in a deed that prohibits the property from being alienated in the future. 283 Ark. 496, 500, 677 S.W.2d 851, 854 (1984); Restatement (First) of Property: Definitions § 404 (1944). Direct restraints, as the dissent correctly points out, are subject to a reasonableness standard where the court weighs the benefit against the burden imposed. Restatement (Third) of Property: Direct Restraints on Alienation § 3.4 (2000) However, an indirect restraint is a provision which does not directly prohibit the alienation of property but has the incidental effect of limiting the use of the property, including the amount realized upon sale. Restatement (Third) of Property: Indirect Restraints on Alienation and Irrational Servitudes § 3.4 (2000). Such a servitude is otherwise not invalid, unless it lacks a rational basis. Id.
Here, the transfer requirement does not directly prohibit the transfer of property. It will only affect the amount received by an owner at sale, and there is a rational basis to support the provision. If the dissent were correct, then virtually all transfer fees would be ^invalid because the former property owner would no longer share in the benefit associated with the land.
III. Incorporation of By-laws as Well as Rules and Regulations
The appellants argue in their third and fourth points that the circuit court erred when it determined that the club’s by-laws, rules, and regulations were incorporated into the Declarations. For simplicity, we will address both of their points below. The Arkansas Code provides that no restrictive covenant will be effective unless it is “recorded in the office of the recorder of the county in which the property is located.” Ark. Code Ann. § 18-12-103(b) (Repl. 2015). Further, “[a]ny restriction on the use of land must be clearly apparent in the language of the asserted covenant.” Cochran v. Bentley, 369 Ark. 159, 166, 251 S.W.3d 253, 260 (2007). However, this court has also stated that “[w]hen a contract refers to another writing and makes the terms of that writing a part of the contract, the two documents become a single agreement between the parties and must be construed together.” Ingersoll-Rand Co. v. El Dorado Chem. Co., 373 Ark. 226, 233, 283 S.W.3d 191, 196 (2008).
This court has also specifically stated that restrictive covenants may be amended later. Eagle Mortg. Corp. v. Johnson, 244 Ark. 765, 770, 427 S.W.2d 550, 553 (1968). Further, in Kell this court cited cases from other jurisdictions that permit a recorded instrument to incorporate an unrecorded document. See 258 Ark. at 764, 528 S.W.2d at 655 (“and the cases from other jurisdictions cited therein”); see also Moorestown Mgmt., Inc. v. Moorestown Bookshop, Inc., 104 N.J.Super. 250, 249 A.2d 623, 628 (N.J.Sup. Ct. Ch. Div. 1969) (By-laws were validly incorporated into a lease by reference.); Rodruck v. Sand Point Maint. Comm’n, 48 Wash.2d 565, 295 P.2d 714, 719 (1956) (Deeds validly contained a covenant which was incorporated into a corporation’s by-laws.).
Here both the by-laws and rules and regulations were validly incorporated in the covenant. The Declarations repeatedly mention that property owners would also be subject to the provisions contained in both documents. The ease law from both this court and other jurisdictions indicates that potential buyers are on notice of unrecorded documents that are specifically referenced within properly recorded instruments, and that this is a standard practice. This rule does not change with respect to recorded covenants affecting land. While the by-laws were not created in this case until 2006, nine years after the Declarations were filed, the by-laws, as they relate to the present controversy, simply provide details and amendments to issues that were specifically contemplated and mentioned in the Declarations as filed in 1997. The dissent argues that allowing Diamante to reference its by-laws and regulations without recording them undermines the purpose of the recording requirement. However, the recording act is designed to put subsequent purchasers on notice of interests affecting real property. There is clearly enough information in the Declarations to allow a purchaser to make an inquiry as to their contents. Therefore, we hold that the by-laws and rules and regulations were sufficiently referenced in the Declarations to be incorporated.
IV. Deferment of Dues
The appellants argue in their fifth point that the trial court erred when it held that the Declarations did not prevent the club from deferring dues, and that challenges otherwise are barred by the statute of limitations. The Arkansas Code requires actions based on a breach of a written covenant to be brought within five years. Ark. Code Ann. § 16-56-115 (Repl. 2005). Declaratory relief is “dependent on and not available in the absence of a justiciable controversy,” and is “intended to supplement rather than supercede ordinary causes of action.” Martin v. Equitable Life Assur. Soc. of the U.S., 344 Ark. 177, 181, 40 S.W.3d 733, 736 (2001). Lastly, the statute of limitations begins to run when there is a “complete and present cause of action,” which is, absent concealment or wrong, when the “injury occurs, not when it is discovered.” Gunn v. Farmers Ins. Exch., 2010 Ark. 434, at 8, 372 S.W.3d 346, 352; Hunter v. Connelly, 247 Ark. 486, 491-92, 446 S.W.2d 654, 657 (1969).
The trial court found that it was generally known by 2003 that the club was actively deferring dues. Assuming, arguen-do, that 2003 is the date for the tolling of the statute, the latest that suit could have been brought was in 2008. The Dyes brought their suit in 2012, four years after the statute had run. The court therefore did not err in holding any action based on Diamante’s deferment of dues was time-barred.
Alternatively, even if the limitation period had not run, the deferment of dues would not be a breach of the Declarations. We have previously stated that, “[w]here the language of the ... covenant is clear and unambiguous, application of the [covenant] will be governed by our general rules of interpretation; that is, the intent of the parties governs as disclosed by the plain language of the restriction.” White v. McGowen, 364 Ark. 520, 522, 222 S.W.3d 187, 189 (2006). However, we cautioned that the courts will not enforce covenants when “they do not apply alike to all units in the same subdivision enjoying the benefits to the common properties.” Kell, 258 Ark. at 764, 528 S.W.2d at 655.
| mHere, the plain language of the Declarations states, “The monthly dues shall commence and become due and payable as to each lot or living unit on the date fixed by the Club for commencement.” This language clearly gives the club the authority to vary the commencement date between lots. The appellants argue that earlier provisions in the Declarations that require each property owner to have a full golf membership and pay monthly dues conflict with the former provision. However, this provision does not exempt properties from becoming golf members, but only allows the club to state when their obligations to pay become due. Further, the deferred lots did not have access to the course during their deferment period and therefore did not violate Kell by allowing owners who are not paying dues to have the same benefits as those who are. We affirm the circuit court and hold that the deferment of dues was not a violation of the Declarations.
V. Public Golf Memberships
For them sixth point, the appellants argue that the trial court erred in holding that the club was authorized to create other golf memberships that do not run with the land and that any claim otherwise is barred by the statute of limitations. We previously addressed the applicable limitations period above in regards to a breach of the Declarations.
In the instant case, the language in the Declarations clearly puts a purchaser on notice that the club may create “categories of membership, not running with the land, which may be made available to the general public.” The appellants argue this language does not mean that the club could make other golf memberships. However, the Declarations clearly put the appellants on notice that the full golf membership is subject to the rules and regulations of the club. The trial court found that a version of the club’s rules and regulations existed as | nearly as 1994. Furthermore, those documents allow the club to create “other categories of golf memberships but not at the same level of privilege as Full Golf Members or that run with the land.” Given the authority in both the rules and regulations as well as the Declarations, the circuit court was correct that the Declarations authorize the club to create other categories of golf membership. Lastly, as the trial court noted, the club had actively created other forms of golf membership since 1998. Any claim for an alleged breach had long been time-barred.
The appellants point out that several pieces of sales material specifically stated that use of the golf course would be limited to the property owners and their guests. They allege that allowing non-property-owning individuals to use the course is a fundamental breach of the covenant and therefore the tie-in provisions cannot be enforced by the club. However, those provisions within the sales materials are neither contained nor referenced within the Declarations. Therefore, they did not become part of the agreement between the parties and are not terms under the covenant.
VI. Course Maintenance
The appellants argue in their seventh point that the club materially breached its duties to maintain the golf course by not maintaining the sand traps. Under Arkansas law, “[w]hen performance of a duty under a contract is contemplated, any non-performance of that duty is a breach.” Zufari v. Architecture Plus, 323 Ark. 411, 420, 914 S.W.2d 756, 761 (1996). We have also further emphasized that “[a] ‘material breach’ is a failure to perform an essential term or condition that substantially defeats the purpose of the contract for the other party. A material breach excuses the performance of the other party.” TXO Prod. Corp. v. Page Farms, Inc., 287 Ark. 304, 307, 698 S.W.2d 791, 793 (1985) (citing Restatement (First) of Contracts: Material Breach or Non-Performance of One Party as a Discharge of the Duty of the Other § 397 (1932)).
The appellants point out that Diamante had previously set aside $300,000 to repair the course but deferred spending the funds in response to the current suit. They allege the deferment of those dues was a material breach of Diamante’s covenant to maintain the course. However, there is nothing in the Declarations that required the club to spend a certain amount on course maintenance. Further, at trial, the club manager testified that the course was recognized as being one of the top ten in Arkansas. Multiple other property owners testified that Diamante was a good course. The appellants’ witness introduced pictures of several bunkers on the course that appear to be in states of disrepair. However, that same witness later testified that he considered Diamante to be a “good” course, and he confirmed that Diamante had been making efforts to deal with other maintenance issues on the course. Even if the facts alleged were considered a breach, they most certainly would not be so material as to defeat the purpose of paying dues and render the covenants unenforceable. We therefore find no error below.
VII. Declaration That the Tie-in Covenants Were Unenforceable
The appellants in their last point argue that, based on the accumulation of their points above, the court erred when it did not declare the provisions at issue within the Declarations to be unenforceable. Specifically, the appellants complain that the club breached the Declarations by not holding the clubhouse for the exclusive use of the property owners. However, the Declarations and the rules and regulations clearly allow the club to create |1Rother classes of membership that may have access to the club facilities. Further, the Declarations specifically allow the club to charge individual user fees for the amenities and services provided through the facilities. Therefore, the trial court did not err in holding the covenants enforceable.
The dissent repeatedly points out that the Declarations are restrictive covenants that are disfavored under Arkansas Law. Royal Oaks Vista, L.L.C. v Maddox, 372 Ark. 119, 123, 271 S.W.3d 479, 482 (2008). However, we have stated that restrictions on the use of land are disfavored under the law. Id.; Cochran v. Bentley, 369 Ark. 159, 166, 251 S.W.3d 253, 260 (2007) (Provision which prohibited nonresi dential structures on residential lots was a restrictive covenant.); White v. McGoiven, 364 Ark. 520, 522, 222 S.W.3d 187, 189 (2006) (Provision which stipulated that only single-family dwellings may be built on a lot was a restrictive covenant.). Here, none of the provisions in the Declarations prohibit how the individual lots may be used but only require each lot owner to pay monthly dues and a transfer fee upon sale. Therefore, the covenants contained in the Declarations are not restrictive covenants and are not subject to such strict scrutiny.
We therefore find no error in the circuit court’s decision and affirm the judgment on all counts.
Affirmed.
Special Justice David Sterling joins.
Baker and Hart, JJ., dissent.
Wood, J., not participating.
. (1) Finding that the transfer-fee covenants in the supplemental declarations requiring all property owners to pay the privately owned Club transfer fees whenever a Diamante home or lot is sold or otherwise transferred are enforceable and not in violation of Arkansas law; (2) Failing to find that the tie-in covenants are unenforceable because they constitute an unreasonable restraint on alienation of the homes and lots in the two Diamante subdivisions; (3) Finding that the Club’s bylaws, as they may be amended from time to time, are incorporated by reference into the supplemental declarations as a matter of law; (4) Finding that the Club's rules and regulations, as they may be amended from time to time, are incorporated by reference into the supplemental declarations as a matter of law; (5) Finding that the supplemental declarations authorize the Club’s failure to collect dues for 10 years from the purchasers of the 93 deferred lots, and that appellants are barred by statutes of limitation from using the sale of the deferred lots in defense against the Club's use of the tie-in covenants; (6) Finding that the supplemental declarations authorize the Club to create golf memberships for non-property owners and give golf privileges to nonproperty owners, and that appellants are barred by statutes of limitation from using those practices in defense against the Club's use of the tie-in covenants; (7) Failing to find that the Club has breached its duty to property owners contained in the supplemental declarations to maintain the sand traps on the Diamante golf course for the use of the property owners; and (8) Not declaring that, in law or in equity, the tie-in covenants contained in the supplemental declarations were unenforceable by Diamante. | [
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WAYMOND M. BROWN, Judge
11Appellant appeals from the circuit court’s termination of his parental rights to D.F.l, born 8/3/2003; D.F.2 born 12/23/2005; and M.F., born 8/20/2007. His sole argument on appeal is that there was insufficient evidence to support termination of his parental rights since the same would terminate the rights of his father to the juveniles and all parties agreed that a continued relationship between the paternal grandfather and the juveniles was in their best interest. We affirm.
The juveniles were removed from their mother’s custody on September 1, 2013, and subsequently adjudicated dependent-neglected because of their mother’s actions in the circuit court’s December 11, 2013 adjudication order. The goal of the case was “reunification with the mother or the legal father.” The order noted the existence of an |2order of protection for the mother and the juveniles against appellant. Between the juveniles’ removal from their mother’s custody and their subsequent adjudication as dependent-neglected, the circuit court entered an agreed order placing temporary legal custody of the juveniles with their paternal grandparents, Alvin and Loma Fuls, on October 23, 2013. Alvin and Lorna were prohibited therein from allowing appellant to have contact with the juveniles unless supervised by the Arkansas Department of Human Services (DHS).
The circuit court entered a January 14, 2014 review order changing the goal of the case plan to reunification with appellant only, finding that he had complied with the case plan and court orders and noting that appellant was “working with his attorney to get [his] order of protection lifted or modified.” Appellant’s visitation was “expanded to allow more contact with [appellant] to expand visit[s] to include unsupervised [visitation] and trial placement.” A formal order amending the order of protection against appellant to allow contact between him and the juveniles was entered on February 27, 2014. Appellant was again found to be in compliance in the circuit court’s April 7, 2014 review order. The goal of the case plan was changed to placement in appellant’s permanent custody. In an order entered on June 12, 2014, the circuit court placed temporary legal custody of the juveniles with appellant.
In its July 3, 2014 review order, the circuit court found that appellant had substantially complied with the case plan and court orders, but noted his refusal to Iscooperate with submitting to random drug screens and his June 5, 2014 positive drug test for THC. Despite the positive drug test, the goal of the case plan continued to be placement in appellant’s permanent custody.
In its September 18, 2014 permanency-planning order, the goal of the case plan was authorization of a plan to place custody of the juveniles with appellant, given his substantial compliance with the case plan and court orders. However, following a December 9, 2014 hearing, in its December 19, 2014 fifteen-month review order, the circuit court found that appellant had not complied with the case plan and court orders, specifically noting his “discharge from [Health Recovery of Arkansas] for refusing to submit to drug screens and for missing appointments” as well as his failure to complete ánger management or attend counseling, despite DHS having made several referrals. It admonished appellant that “he cannot get the Court to close this case by ignoring the orders of the Court” and further ordered that the juveniles would be returned to foster care if appellant did not begin complying with the case plan and court orders. The goal of the case plan was to maintain the juveniles in appellant’s home; however, the circuit court scheduled a termination of parental rights hearing for April 14,2015.
Following a hearing on December 15, 2014, the circuit court entered an order of emergency change of custody of the juveniles from appellant to DHS on December 16, 2014. Appellant had tested positive for “METH and AMP” at the December 9, 2014 hearing.
|4The circuit court entered an order on December 31, 2014, finding that probable cause existed for the juveniles’ December 9, 2014 removal and entered an order adjudicating the juveniles’ dependent-neglected, as stipulated to by the parties, on January 22, 2015. The adjudication order stated that temporary legal custody of the juveniles should continue with Alvin and Lorna, with whom the juveniles had been living since December 17,2014. The goal of the case continued as reunification. Appellant’s visitation with the juveniles was to be supervised by Alvin and Lorna. A termination of parental rights hearing was set for April 17, 2015.
The circuit court then entered an order of emergency change of custody from Alvin and Lorna to DHS on February 6, 2015, on account of Alvin and Lorna’s inability to care for the juveniles due to financial strain and statements made by appellant of his “possible intentions of leaving the state” with the juveniles. The circuit court entered a probable cause and adjudication order finding probable cause for the juveniles’ removal from Alvin and Lorna’s custody on February 11, 2015.
In its March 20, 2015 review order, the circuit court stated that appellant had not complied with the case plan and court orders, specifically noting that he “did not complete his anger management counseling, he [had] not made himself available to his case worker, had not made himself available to random drug screens, he [had] not obtained a drug assessment, and he [had] not kept all appointments regarding the case.” It specifically stated that “In the event [appellant failed] to comply with those conditions or the terms of the case plant, DHS] shall be relieved from providing services to him.” The goal of the case plan continued to be reunification.
Lin its April 21, 2015 review order, the circuit court stated that appellant had not complied with the case plan arid court orders, specifically noting the same reasons listed in its March 20, 2015 review order with the addition of appellant’s failure to make himself available for a scheduled hair follicle test. The goal of the case plan continued to be reunification.
DHS filed a petition for termination of appellant’s parental rights on August 31, 2015. The grounds given in support of termination of his parental rights were:
1. That the juveniles had been adjudicated dependent-neglected and had continued out of the custody of the parent for twelve months and despite a meaningful effort by the department to rehabilitate the parent and correct the conditions which caused the removal, those conditions had not been remedied by the parent;
2. That the parent had failed to maintain meaningful contact with the juveniles; and
3. That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that placement of the juveniles in the custody of the parent is contrary to the juvenile’s health, safety or welfare and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or •factors or rehabilitate the parent’s circumstances which prevent the placement of the juveniles in the custody of the parent.
A hearing on DHS’s petition to terminate appellant’s parental rights was held on April 27, 2016. Appellant’s caseworker testified that appellant had not complied with the case plan; had not complied with court orders; “would start counseling, but then he would stop”; and was “cooperative with the department at the beginning” of the case, but ^started failing drug tests and “became uncooperative” as the case progressed. When asked if appellant had done anything to regain his juveniles, the caseworker responded that she had “not been able to have contact with him until yesterday[,]” though she had attempted to contact him unsuccessfully. DHS had referred appellant for services and “[h]e would start initially, then start missing or not going at all.” She did not “feel [appellant] would follow any order for the future any better than he [had] ones for the past.” Finally, she testified that she believed appellant was “capable” of following the case plan and court orders, but she thought it was “a willful choice by [appellant] not to follow the case plan.” She saw no detriment to the juveniles in severing their relationship with appellant.
Regarding appellant’s parents, the caseworker testified that she knew the oldest child “really would like to have contact with his grandfather” whom he spoke of “often.” She noted that the paternal grandfather had been placed on all the juveniles’ contact list for calls. She stated that “[i]f the children’s therapists recommend or approve it” and “[a]s long as those contacts are appropriate and are not detrimental to the children, the department doesn’t have any concern about continued contact” between the juveniles and the paternal grandfather. She stated that “[fit’s very important for the children to know they are loved even if a family member can’t take the responsibility of raising them full-time, for them to know that they are loved and cared about and not forgotten.”
Regarding the juveniles’ adoptability, she testified that the goal was to adopt the juveniles as a sibling group. She stated her belief that such an adoption was possible— though the juveniles did have “some behavior issues” that were “being addressed”—17 because the juveniles were “[mjostly happy, healthy, beautiful children.” She opined that the juveniles are “highly adoptable.”
No other witnesses were presented. Appellant chose not to be ' present in the courtroom during the hearing. The attorney ad litem noted in his closing argument that Alvin was in the courtroom, as he had been at every hearing, “whether his son chose to participate or not.” The attorney ad litem stated “I would like as long as that contact is appropriate, at least until an adoption is finalized, I would like for the children to be able to have continued contact with [Alvin].”
The circuit court then granted the petition from the bench. When asked if it was allowing continued contact with the grandparents as long as it was appropriate, the circuit court stated that contact between the juveniles and the grandparents was “fine” with it. It stated that it was “not going to order it, but [it would] encourage [DHS] to allow visitation, if appropriate.” In its June 28, 2016 order terminating appellant’s parental rights, the circuit court found that DHS had proven all three grounds asserted against appellant. It also found that termination of appellant’s parental rights was in the juveniles’ best interests considering the “high likelihood” of the juveniles’ adoption as testified to by the caseworker and the potential harm to the juveniles if returned to appellant’s custody given appellant’s drug use and instability, which was also testified to by the caseworker. This timely appeal followed.
A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing |8evidence. The question this court must answer is whether the trial court clearly erred in finding that there was clear and convincing evidence of facts warranting the termination of parental rights. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.
A circuit court’s order that terminates parental rights must be based on findings proved by clear and convincing evidence. Clear and convincing evidence is proof that will produce in the fact-finder a firm conviction on the allegation sought to be established. On appeal, we will not reverse the circuit court’s ruling unless its findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. In determining whether a finding is clearly 19erroneous, an appellate court gives due deference to the opportunity of the circuit judge to assess the witnesses’ credibility.
Appellant does not challenge the statutory grounds for termination, nor does he challenge the circuit court’s findings on potential harm or adoptability. Instead, he argues that the circuit court erred in finding that termination of his parental rights was in the best interest of the juveniles since it would have terminated his father’s rights as well. In support of this argument, he relies on Caldwell v. Arkansas Department of Human Services, a case in which this court held that termination of a father’s parental rights was not in the juveniles’ best interest, in part, due to a close relationship between the juveniles and the paternal grandparents. However, this case is distinguishable on the facts.
In Caldwell, the child was in her mother’s custody, so adoption was not in consideration. This court specifically stated that because the child was in her mother’s custody, “termination of [Caldwell’s] parental rights will not serve to achieve permanency for” the child. In this case, the mother voluntarily consented to relinquish her rights so that appellant’s failure to comply with the caseplan led to the goal of the case becoming adoption. The juveniles’ need for permanency and stability overrides a parent’s request for additional time to improve circumstances, and courts will not enforce parental rights to the detriment of the well-being of the child. The intent of the statute is to provide Impermanency in the juveniles’ lives in all circumstances where a return to the parent is contrary to the juvenile’s health, safety, or welfare and cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. To refuse to terminate appellant’s parental rights where the mother has relinquished her rights and the evidence is clear that appellant is incapable or indifferent to remedying his situation so he could regain and maintain custody of the juveniles, solely to continue a relationship with grandparents—who are unable to care for the juveniles—is contrary to the need for permanency advocated by the statute.
This court is not left with a definite and firm conviction that a mistake has been made in light of appellant’s failures and setbacks. A parent’s past behavior is often a good indicator of future behavior. We cannot find that the circuit court erred in finding that termination of appellant’s parental rights was in the best interest of the juveniles.
Affirmed.
Gruber, C.J., and Gladwin, J., agree.
. While the parental rights of the mother, Danielle Fuls, were terminated pursuant to the same order, she is not a party to this appeal.
. The circuit court had stated in its January 14, 2014 review order that the "Order of Protection entered in Circuit Court Case No[.] DR13-215-1 is modified to allow contact with the juveniles and the father including possible custody.”
. Appellant had not yet started attending counseling.
. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015).
. Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a).
.Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a )(i).
. Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, at 9, 344 S.W.3d 670, 675 (citing Strickland v. Ark. Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008)).
. Id. (citing Hall v. Ark. Dep’t of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008)).
. Id., 2009 Ark. App. 606, at 10, 344 S.W.3d at 675 (citing Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722).
. Delacruz v. Ark. Dep’t of Human Servs., 2015 Ark. App. 387, at 5, 465 S.W.3d 867, 870 (citing Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2011); Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001)).
. Id. (citing Dinkins, supra).
. Id.
. Id.
. Id., 2015 Ark. App. 387, at 6, 465 S.W.3d at 870.
. 2010 Ark. App. 102.
. McElwee v. Ark. Dep't of Human Servs., 2016 Ark. App. 214, at 7, 489 S.W.3d 704, 708 (citing Contreras v. Ark. Dep't of Human Servs., 2015 Ark. App. 604, at 6, 474 S.W.3d 510, 514).
. Id.
. Villaros v. Ark. Dep’t of Human Servs., 2016 Ark. App. 399, at 7, 500 S.W.3d 763, 767 (citing Ford v. Ark. Dep't of Human Servs., 2014 Ark. App. 226, 434 S.W.3d 378; Stephens v. Ark. Dep't of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160). | [
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PHILLIP T. WHITEAKER, Judge
| ¶Appellant Natasha Furnish appeals a Craighead County Circuit Court order terminating her parental rights to three of her children, B.M., A.M., and C.M. More specifically, she challenges both the trial court’s findings of statutory grounds and its best-interest determination. We affirm.
I. Facts and Procedural History
The Department of Human Services (DHS) exercised a seventy-two-hour hold on R.M., B.M., A.M., and C.M. on November 10, 2015, at the direction of the Cle-burne County Circuit Court at a Family in Need of Services (FINS) hearing. 'The court directed | athe hold after Furnish had tested positive for amphetamines, methamphetamine, and benzodiazepine. Although’ the hold was taken in Cleburne County, DHS filed its dependency-neglect petition in Craighead County where Furnish was1 a resident;
The children were subsequently adjudicated dependent-neglected on December 11, 2015, based on parental unfitness due to Furnish’s drug usage. The court ordered Furnish to'remain drug free, to submit to random drug screens, and to submit to a drug-and-alcohol assessment and follow the recommendations thereof. She was further ordered to participate in and complete parenting classes; obtain and maintain clean, safe, and stable housing with working utilities; obtain and maintain stable income or employment; and to provide DHS with a budget indicating sufficient income or resources to meet the needs of the family.
At "a review hearing in May 2016, the court continued the goal of the case as reunification, finding that Furnish had only partially complied with the case plan. Specifically, the court found, that she had not participated in parenting classes, remained drug free, obtained appropriate housing, obtained stable employment, or prepared or submitted a budget. The court also noted that Furnish had missed two drug-and-alcohol-assessment appointments as well as her psychological evaluation. The court ordered her to attend inpatient-drug treatment.
Is A second review hearing was held on July 27, 2016. The court again found that Furnish was not cooperating or complying with the' case plan, continuing the same failures from the last review hearing: she still had not participated in parenting classes, obtained appropriate housing or stable employment, or prepared a budget. With regard to sobriety, the court was unable to determine if she had remained drug free because she had not submitted to random drug testing. The court noted that Furnish was admitted to a 120-day inpatient-drug-rehabilitation program, but she left of her own volition after completing only twelve days.
On September 9, 2016, less than one year from the date of removal, DHS filed a petition to terminate Fiirnish’s parental rights to B.M., A.M., and C.M., alleging the subsequent-other-factors ground for termination. - DHS alleged that Furnish had failed to complete her parenting classes; did not have stable employment; had not completed a budget indicating sufficient income; had sporadic and tardy visitation; had not submitted to random drug screens since July 2016; had left inpatient-drug rehabilitation before its completion; and had recently tested positive for meth and opiates. In regard to the recent positive tests, DHS alleged that Furnish had given birth to another child, M.M., who tested positive for opiates at birth.
The court held a termination hearing on October 11, 2016. After the hearing, the trial court entered an order terminating Furnish’s parental rights to the three children. The court found that DHS had proved by clear and convincing evidence the subsequent-other-factors ground for termination. The court then held that termination was in the best interest of the children, finding that the children are adoptable and that there was potential harm to the | children if returned to Furnish’s custody. Furnish appeals the trial court’s order terminating her parental rights, challenging the court’s findings on both statutory grounds and best interest.
II. Standard of Review
The rights of natural parents, are not to be passed over lightly. The termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark Dep’t of Human Servs., 2014 Ark. App. 666, 448 S.W.3d 736. As a result, there is a heavy burden placed on the party seeking to terminate the relationship. Id. In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest, of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm,- specifically addressing the effect on the health and safety of the child, caused by returning the child to -the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Repl. 2015). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep’t of Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007).
The appellate court reviews termination-of-parental-rights cases de novo, but will not reverse the trial court’s ruling unless its findings are clearly erroneous. Dade v. Ark. Dep’t of Human Servs., 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left Rwith a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity' of the trial court to judge the credibility of witnesses. Id.
III. Statutory Grounds
The court in this case terminated Furnish’s parental rights based on the subsequent-other-factors ground. The sub sequent-other-factors ground states that parental rights may be terminated when
other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
Ark. Code Ann. § 9-27-341(b)(8)(B)(vii)f<%).
Here, the trial court based its statutory-ground determination specifically on Furnish’s failure to comply with the case plan; her failure to timely and consistently attend visitation with her children; and her failure to remain drug free or obtain treatment for her drug addiction despite her pregnancy, which resulted in her child having been born with drugs in his system. The record, as evidenced below, supports this conclusion.
From the outset, the court ordered Furnish to comply with the case plan. We have consistently held that a lack of compliance with the case plan and court orders supported termination under the subsequent-other-factors ground. See Cotton v. Ark. Dep’t of Human Servs., 2012 Ark. App. 455, at 11, 422 S.W.3d 130, 138. Throughout the proceedings, the court repeatedly found Furnish noncompliant with the directives of completing parenting | glasses, having stable employment, and completing a budget. DHS also offered proof that Furnish had difficulty attending visitations, including faffing to attend without notifying the department in advance of her absence, and that she had not visited with the children since entering rehabilitation on September 22, 2016. Furnish explained her sporadic visitation with the children, claiming that she had difficulty contacting her family services worker and that there were times the children were not available due to sickness or vacation. She stated that she was late to visits because she had to rely on others for transportation since she did not have a driver’s license. However, the court was not obligated to accepted her explanations and was free to assess the credibility of the evidence. See Smith v. Ark. Dep’t of Human Servs., 2017 Ark. App. 368, at 12, 523 S.W.3d 920, 927. Thus, the trial court did not clearly err in its findings concerning compliance with the case plan and visitation.
Additionally, the court found Furnish’s failure to remain drug free or obtain drug treatment constituted a subsequent other factor. In this regard, we note that Furnish’s drug usage was the cause of the removal. We have previously held that the reason for the initial removal cannot constitute grounds for termination as a subsequent other factor. See Jones v. Ark. Dep’t of Human Servs., 2016 Ark. App. 615, at 6, 508 S.W.3d 897, 900. However, we have also held that a parent’s lack of compliance with the case plan and court orders, including a failure to submit to drug screens and testing positive for drugs, supports a grant of termination of parental rights under the “subsequent-other-factors” ground. Cotton, supra.
[7In the instant case, the court ordered Furnish to submit to random drug screens from the outset. Furnish failed several drug screens at the beginning of the case; later, DHS was unable to verify her drug usage (or lack thereof) because Furnish failed to submit to drug screens as ordered. DHS also raised serious questions concerning the legitimacy of Furnish’s compliance with drug screens because at one point there was an allegation by B.M. that Furnish was using B.M.’s urine to test negative. Perhaps, most importantly, seven months into this dependency-neglect action, Furnish gave birth to a child that tested positive for opiates at the time of delivery. Furnish admitted using drugs during the pendency of the case and during her pregnancy with M.M. However, she testified that she could not understand why she had tested positive for methamphetamine after M.M.’s birth, but M.M. had not.
Additionally, Furnish was ordered to submit to a drug-and-alcohol assessment. She initially missed two appointments for the drug-and-alcohol assessment as well as an appointment for her psychological assessment. She eventually completed the drug-and-alcohol assessment in July 2016—approximately seven months into the dependency-neglect proceedings, but she still had not completed a psychological evaluation as of the date of the termination hearing. Furnish admitted that she missed two drug evaluations but alleged both were honest mistakes because of misunderstandings.
Furnish was ordered to attend and complete inpatient-drug treatment. She failed to complete her first stint in inpatient-drug rehabilitation, leaving voluntarily prior to completion. However, at the time of the termination hearing, Furnish had enrolled in a six-month drug-rehabilitation program. She stated that she was set to complete the program in | sMarch 2017 but that the program would allow her to graduate after 120 days and to stay on the property and work to get her children back. Additionally, Furnish reported that she recently had been attending faith-based substance-abuse counseling.
Based on the foregoing, the court had before it ample evidence to support its statutory-ground determination. Furnish’s failure to follow the case plan and her demonstrated lack of motivation to resolve her substance-abuse issues until after the termination petition had been filed demonstrate a clear indifference to remedying the circumstances preventing the placement of the children ip her custody. While the court considered Furnish’s failure to remain drug free or obtain treatment for her drug addiction in its analysis, it did not solely rely on her continued drug usage to support its conclusion and therefore did not err in doing so.
To the extent that Furnish claims the trial court erred in failing to consider her recent progress; her argument is misplaced. In support of her argument, she cites Prows v. Arkansas Department of Health & Human Services, 102 Ark. App. 205, 283 S.W.3d 637 (2008). In Prows, we held that a circuit court erred as a matter of law when it refused to consider or weigh evidence about a parent’s recent improvements in a termination-of-parental-rights case. There, the circuit court stated from the bench that it was required to terminate a parent’s rights if a child was not able to go home with the parent immediately after the hearing. We said that the termination statute requires the circuit court to consider a parent’s compliance during the entire dependency-neglect case and the evidence presented at the termination hearing in deciding whether termination is in the child’s best interest. Ark. Code Ann. § 9-27-341(a)(4)(B). Here, however, in its bench ruling, the trial court acknowledged that Furnish had entered the drug-rehabilitation program but found that her progress was too little, too | slate. Thus, the trial court clearly considered and weighed Furnish’s compliance throughout the entire case and did not reject her last-minute efforts out of hand. Because, the court considered and weighed everything and excluded nothing, there is no reversible error under Prows.
IV. Best Interest
Furnish next challenges the trial court’s best-interest finding, arguing that there was insufficient evidence of adoptability and potential harm.
A. Adoptability
Furnish argues that the trial court erred in its best-interest determination because there was insufficient proof that B.M. or C.M, would be adopted. She contends that the only evidence of adoptability presented at the hearing came from the testimony of Janice Birt, who testified that she ber lieved the children are adoptable because every child is adoptable if someone advocated for the child. This is not entirely true.
However, before we address the quantum of evidence introduced on the issue of adoptability at the termination hearing, we must first consider the statutory framework concerning adoptability and our case-law on this matter. A trial court may terminate a parent’s rights only if it finds by clear and 'convincing evidence that it is in the best interest of the juvenile. The court determines whether termination is in the juvenile’s best interest by considering two factors: (1) the potential harm caused by continuing contact with the parent |10and (2) the likelihood that the juvenile will be adopted if parental rights are terminated. Ark. Code Ann. § 9~27-341(b)(3)(A).
Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) expressly states that the court’s best-interest analysis must include “consideration” of the “likelihood” that the juvenile will be adopted if the termination petition is granted. The statute does not, however, mandate that the trial court make a specific finding that the children are adoptable nor must the court find the children are “likely” to be adopted. The statute only mandates the “consideration” of the likelihood of adoptability.
We have held that adoptability is “but one factor that is considered when making a best-interest determination.” Renfro v. Ark. Dept of Human Servs., 2011 Ark. App. 419, at 6, 385 S.W.3d 285, 288 (emphasis in original) (citing McFarland v. Ark. Dept of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005)). To that end, we have held that adoptability “is not an essential element in a termination case.” Tucker v. Ark. Dep't of Human Servs., 2011 Ark. App. 430, at 7, 389 S.W.3d 1, 4; Singleton v. Ark. Dep't of Human Servs., 2015 Ark. App. 455, at 6, 468 S.W.3d 809, 813 (noting that adoptability is not an essential element of proof). We have also stated that the factor of adoptability need not be proved by clear and convincing evidence. Smith, 2017 Ark. App. 368, at 8, 523 S.W.3d at 925. Rather, it is the “best interest” finding that must be supported by clear and convincing evidence. Salazar v. Ark. Dep't of Human Servs., 2017 Ark. App. 218, at 14, 518 S.W.3d 713, 722. With these standards in mind, we now consider the evidence concerning the factor of adoptability before the trial court.
In Janice Birt, a foster-care supervisor and Craighead County DCFS worker, testified that B.M., A.M., and C.M. are all adoptable. She reported that' B.M. was currently in a group facility. She did express some concern regarding the adopta-bility of B.M.—B.M. had been quite traumatized and was further frustrated with her parents’ noncompliance, resulting in disruptive behavior in foster care. Nonetheless, she stated that she believes that every child is adoptable and that she would just have to “go out there and advocate for them.” She informed the court that A.M.’s foster family had expressed an interest in adopting her. C.M. was in another foster family, but her family had not yet been asked whether they were interested in adopting her.’ Birt further testified that it would not be safe to place the children back in Furnish’s care at that time because of her unresolved drug issues. Brenda Keller also testified regarding a home study that had been performed on Max McKinney’s sister in North Dakota who had expressed an interest in all three children being placed with her. At the time of the termination hearing, the Interstate Compact on the Placement of Children (ICPC) had been completed, but it had not yet been determined whether the home study had been approved or disapproved.
In the instant appeal, Furnish argues that there was insufficient evidence of the adoptability of these particular children introduced at the termination hearing. In making this argument, Furnish relies on our decision in Grant v. Arkansas Department of Human Services, 2010 Ark. App. 636, 378 S.W.3d 227. That case is distinguishable, however. In Grant, an adoption specialist testified that the child was adoptable because “all children are adoptable.” We reversed the trial court because its order did not consider the age, health, or well-being |iaof the child; given the difficulties that DHS had experienced in placing the child within the foster system, we concluded that there was a “dearth of evidence” of adoptability.
Here, Birt did not simply rely on her statement that she believed all children are adoptable. She' testified that' she did not believe that A.M. or C.M. had any issues that would slow an adoption. She testified that A.M.’s foster family had expressed some interest in adopting her but that they had not yet explored adoption with C.’M.’s foster family. B.M., however, was in a group facility after having been removed from her foster family, and Birt admitted she had some concerns about her potential for adoption given the trauma she had suffered. There was also some evidence presented that a paternal aunt was interested in having all three children placed with her. Thus, there was more evidence- presented for the court’s consideration than just the caseworker’s general belief as to the adoptability of “all” children. She spoke specifically about her belief as to the,adoptability of each individual child and discussed the potential barriers, or lack thereof, to adoption for each child. We have previously held that the testimony of a caseworker .concerning adoptability may be sufficient evidence, of adoptability and that the testimony of an adoption specialist is not required under the, statute. Duckery v. Ark. Dep’t of Human Servs., 2016 Ark. App. 358, at 6, 2016 WL 4455696; Fortenberry v. Ark. Dep’t of Human Servs., 2009 Ark. App. 352, 2009 WL 1153256. We have also held that neither the statute nor caselaw requires a specific quantum of evidence in the consideration of the likelihood of adoptability. See Ren-fro, supra. Likewise, we have explained that DHS is not required to provide the names of specific adoptive parents for the children or even provide evidence that it has identified such persons at the .termination hearing. Canada v. Ark. Dep’t of Human Servs., 2017 Ark. App. 476, 528 S.W.3d 874, 877-78, 2017 WL 4274633; Singleton, 2015 Ark. App. 455, at 6, 468 S.W.3d at 813. Thus, we | iaeannot conclude, on the record before us, that the trial court erred in its adoptability-factor consideration.
B. Potential Harm
Finally, Furnish challenges the trial court’s potential-harm determination, contending the evidence of potential harm was lacking because the court did not allow her a full year in which to overcome her drug addiction and reunify with her children. While she acknowledges the children’s need for permanency, she argues that there was no need for expedited termination given the fact that McKinney’s rights had yet to be terminated and given the fact there was a potential relative placement for the children that would allow the children to be placed together.
The court’s potential-harm analysis was not clearly erroneous. In considering potential harm caused by returning the child to the parent, the trial court is not required to find that actual harm would result or to affirmatively identify a potential harm. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918. Potential harm must be viewed in broad terms, including the harm the child suffers from the lack of stability in a permanent home. Martin v. State, 2017 Ark. 115, 515 S.W.3d 599. Here, Furnish’s continued drug use itself is sufficient to support the trial court’s finding of potential harm. Caselaw is clear that a parent’s continuing use of illegal drugs poses a risk of harm to the children if returned to that parent. Howell v. Ark Dep’t of Human Servs., 2017 Ark. App. 154, at 6, 517 S.W.3d 431, 435. luMoreover, a court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent’s care and custody. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App. 715, at 3, 451 S.W.3d 231, 233.
Affirmed.
Gruber, C. J., and Brown, J., agree.
, One of her children, R.M., was initially part of the dependency-neglect proceedings but turned eighteen prior to termination: therefore, Furnish's rights were not terminated to that child. Another child, M.M.,' was born during the pendency of the proceedings and is the subject of a separate dependency-neglect action.
. The court also found that Max McKinney, the noncustodial parent, had contributed to the dependency-neglect. McKinney is the biological father of R.M., B.M., A.M., and M.M, He is not the biological father of C.M., although the court ultimately found him to be in loco parentis to C.M. McKinney, who was caring for A.M. and C.M. at the time of the 72-hour hold, also tested positive for illegal substances. His rights were not terminated by' the order on appeal; thus, he is not a party to this appeal.1
. Furnish admitted that she had not completed parenting classes but did report having recently taken two parenting classes.
. Furnish adamantly denied using B.M.’s urine to pass her drug screens.
. We note that the trial court erroneously identified Tina Green as the caseworker who testified regarding adoptability and potential harm instead of Janice .Birt. Given our de novo review of the record, such an error is harmless. | [
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G-bieein Smith, C. J.
This appeal is from a judgment for $1,500 on a jury’s verdict finding that H. W. Jonakin was negligent in driving a Jewel Tea Company automobile, as a consequence of which appellee sustained personal injuries.
The gravel highway on which appellee was driving his Chevrolet car south from Forrest City is about thirty feet wide. Appellee testified that he slowed to 25 or 30 miles an hour to pass a cattle truck,- a part- of which was parked on the highway, occupying three or four feet of the west portion thereof; that he had cleared the truck and was four or five oar lengths -beyond when' the Tea Company car struck his left fender and “stripped me down.” The accident occurred between 7 and 7:30 o’clock in the evening. In explanation of the shock he sustained, appellee said: “I was ‘out’ until between 9:30 and 10:30, and don’t remember being brought back to town.”
Jonakin’s testimony was that he was on the east [his] side of the road; that he saw the truck parked across the road, and that appellee’s car “came out from behind the trailer at about 25 or 30 miles an hour. I was going very slowly and kept to my right and applied my brakes. Had my right wheels 18 inches off the gravel in the grass on the east side of the road when the other car came around. . . .”
Each side introduced other testimony. There was substantial evidence upon which the jury could have found for either the plaintiff or the defendants. The questions of negligence and contributory negligence were properly referable to the jury.
Errors complained of-are: (1) That the court should not have permitted Pugh Hodges to express an opinion. (2) That the court erred in permitting E. A. Eolfe to testify concerning car tracks at the scene of the accident, and to draw conclusions therefrom. (3) That photographs were improperly admitted in evidence as exhibits to the testimony of James L. Alley. (4) That the verdict is contrary to the.evidence.
In response to the question, “What was Mr. McCrary’s condition as you saw it?” the Avitness Hodges replied: “He looked to me like he was in a kind of semiconscious condition; he. talked, but he didn’t knoAV what he was talking about.” Objection was not made until the answer had been given. The court’s ruling was: “He can tell [what McCrary’s actions Avere] and let the jury determine that.”
It was proper to permit the Avitness to describe the conditions he observed. Where one testifying is not called upon for an opinion, but simply for a statement of facts, the rule that competency of such witness depends upon actual experience with respect to the subject under investigation, or previous study and scientific research, has no application. A non-expert may explain wliat lie saw, and state what his impressions or reactions were.
E. A. Rolfe testified that he went to the accident locale during the early morning- following' the collision. Asked if he saw any tracks indicating where the cars came together, he replied: “I noticed tracks that looked like the car going south had gone by the truck, and the car coming from the south looked like just before it got to where it hit the car it turned to the west.”
Objection was made that the witness viewed the scene at least twelve hours after the accident occurred, and “the testimony is not competent to show how the accident happened. ’ ’
The court’s ruling was: “He can tell what he saw there.” Exceptions were saved to the ruling and to competency of the testimony.
The witness then stated: “There were no other tracks there, and it showed where the car had run to the west and then turned back to the east.”
There was no error in permitting the photographs to be introduced. Appellee testified that when the pictures were taken the truck was in the tracks it made prior to the collision. The driver gave similar testimony. The jury understood the truck had been moved and replaced in order that the photographs might be taken. Verity of the photographs depended upon testimony of the two witnesses. The jury had a right to believe or disbelieve such evidence.
The writer of this opinion thinks the Rolfe testimony was incompetent and prejudicial; but the majority holds otherwise.
The judgment is affirmed.
Pfeifer Stone Company v. Shirley, 125 Ark. 186, 187 S. W. 930; Kansas City Southern Railway Company v. Cobb, 118 Ark. 569, 178 S. W. 383; Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792; Modern Woodmen of America v. Whitaker, 173 Ark. 921, 293 S. W. 1045.
In the Cobb Case, after quoting from Judge Elliott’s treatise on evidence,' it was stated in the opinion: “Where one person is acquainted with another and they come in contact with each other frequently, it is not a matter of expert knowledge for one to tell whether the other appears to be sick or well. These are matters of common experience and observation. And a non-expert witness, after stating the facts upon which his opinion is based, may even give his opinion in such matters. Jones on Evidence, vol. 2, §§ 360 et seq. 366.”
The rule laid down in Corpus Juris [vol. 22, p. 618, § 711] is: “When the circumstances are such that all the facts cannot be placed before the jury with such clearness as to enable them to draw a correct inference, and the province of the jury is not invaded, and the inference is not one for the drawing of which special skill, knowledge, and experience are required, an ordinary person who has suitable opportunity for observation may state the apparent physical condition of another person. . . . Such an observer may also state the obvious condition and visible effect of particular injuries, or state inferences from transient physical appearances, as that a person was hurt or injured, . . . paralyzed, conscious or unconscious.” | [
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Humphreys, J.
This suit was brought by appellants against appellee in the circuit court of Garland county on the 22d day of March, 1938, alleging in their complaint that on the 25th day of November, 1932, they entered into a written contract with appellee to furnish her certain advertising in reserve territory for the sum of $208 per annum; that appellee breached her contract by failing to perform same on December 29, 1932.
Appellee filed a demurrer to the complaint on the ground that the action was barred by the five-year statute of limitation for failure to bring suit on the breach within five years after said breach.
Thereupon the attorneys of the respective parties signed and filed an agreed statement of facts as follows;
‘ ‘ The contract made the basis of this suit was dated November 25, 1932; the performance of service under the contract as alleged on the part of the plaintiffs occurred on November 29, 1932, and alleged failure of performance by the defendant occurred on December 29, 1932. A suit had been filed on March 6, 1936, by the Norm 'Company as plaintiff, which failed to set out in the caption of the complaint or in the complaint itself the names of any of the parties who composed the Norm Company, a partnership. However, in an exhibit to the complaint, marked ‘A’, the names of certain persons appeared as partners. A demurrer to this complaint was filed on March 23,1936, alleging the defect of parties plaintiff. Said demurrer was heard by the court and sustained as to defective parties plaintiff on April 19, 1937, and the suit dismissed.”
The trial court, after the agreed .statement of facts was filed, treated the demurrer as a motion to dismiss the cause of action and sustained the motion and. dismissed the complaint, from which order of dismissal is this appeal.
Appellants contend that the court erred in sustaining the motion to dismiss the complaint for the reason that the statute of limitations was tolled by the institution of a suit on March 6, 1936, by them against appellee which was dismissed by the court on account of defect of parties plaintiff, which amounted to a nonsuit and entitled them to bring a suit on the same cause of action within one year from the dismissal thereof and that the instant suit was brought within the one-year period under the provisions of § 8947 of Pope’s Digest which is as follows: “If any action shall be commenced within the time respectively prescribed in this act and the plaintiff therein suffer a nonsuit, or after a verdict for him the judgment be arrested, or after judgment for him the same may be reversed upon appeal or writ of error, such plaintiff may commence a new action within one year after such nonsuit suffered or judgment arrested or reversed. ’ ’
This court decided in the case of Little Rock, M. R. & T. Railway Co. v. Manees, 49 Ark. 248, 4 S. W. 778, 4 Am. St. Rep. 45, that: Although an action is brought in a court without jurisdiction, yet its pendency will arrest the statute if a proper action is commenced within a year after the judgment in first suit is vacated; and again decided in the case of Watkins v. Martin, 69 Ark. 311, 65 S. W. 425, that: Plaintiff must prove bringing of action within one year after dismissal of former action. The agreed statement of facts shows that the suit filed on March 23, 1936, was dismissed on April 19, 1936, on account of a. defect of-parties plaintiff because the members of the partnership, “Norm Company,” did not appear in the caption or body of the complaint, but only appeared in Exhibit “A” to said complaint. The demurrer was sustained and the complaint dismissed under § 1485 of Pope’s Digest authorizing the court to dismiss an action without prejudice to a future action for want of necessary parties. Appellee argues that the agreed statement of facts does not show that the case was dismissed without prejudice on account of a defect of parties plaintiff and that it must be presumed that it was dismissed upon the merits of the case from which dismissal appellant might have appealed and that for this reason it did not arrest or toll the statute, but the agreed statement of facts does show that it was dismissed on account of a defect of parties, and being dismissed for a defect of the parties, it was dismissed by the court without prejudice under the statute itself. Appellee argues that-it amounted to no suit at all, because it was brought by “Norm Company,” and that “Norm 'Company” was not shown to be a corporation or partnership either in the caption or the body of the complaint. The agreed statement of facts shows that an exhibit was attached to the complaint showing that the “Norm Company” was a partnership composed of John H. Ryder, J. Frank Smith, Adolph Doll and Harriett E. Doll. iBut it is insisted that the exhibit attached was no part of the complaint, and that it was proper for the court in dismissing the case to ignore the exhibit. In this, appellee is in error. The exhibit could have been referred to, and should have been referred to, not to contradict or control, but in explanation of, the allegation. Lindsey v. Bloodworth, 97 Ark. 541, 134 S. W. 959. Had the court looked to the exhibit it could have readily ascertained that “Norm Company” was a partnership consisting of John H. Ryder, J. Frank Smith, Adolph Doll and Harriett E. Doll, because nothing in the exhibit contradicted that the “Norm Company” had entered into a contract made the basis of this suit, but simply explained who “Norm Company” was. It is apparent that “Norm Company” in the first suit was the “Norm Company” in the instant suit, and that'the individuals composing “Norm Company” were the same persons in both cases. The dismissal of the case amounted to a nonsuit without prejudice for defect of parties under the provisions of § 1485 of Pope’s Digest, and not a dismissal of the case on its merits.
The judgment is, therefore, reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. | [
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DAVID M. GLOVER, Judge
| Robert Jeffries was tried by a jury and found guilty of the offenses of felony breaking or entering and misdemeanor theft of property. In this appeal, he contends the trial court erred in denying his motions for directed verdict because 1) there was not sufficient evidence of purpose to support his conviction for breaking or entering, and 2) there was not sufficient evidence of property value to support his conviction for theft. We affirm.
At trial, John Beer testified the house located at 209 Dotson Street was his mother’s house and she had died in January 2013. He explained he had been taking care of the house since his mother went to hospice in 2012; he was the only sibling who lived near the house; he was the only person coming and going from the house while his mother’s estate was being finalized; he checked on the house weekly; items had been stolen from it in the past; and the police suggested he install cameras, which he did in May 2015.
|gBeer stated that when he went to check on the house around July 28, 2015, he saw indications someone had entered it; the front door was ajar; he contacted the police; and the camera video was examined. He explained that the video revealed two people (a man and a woman) entering the back door and leaving through the front door; the camera was not designed to record anything going on inside the house; the two individuals were only in the house about five minutes; Jeffries was one of those people; and the video showed Jeffries walking out of the house with items from the house. He described the items taken as a stereo system, chess set, and knick-knacks, and stated that Jeffries brought the stereo system back to the police after being interviewed by them. Beer explained he keeps the house locked; the back door has a latch, but it is not “particularly functional” because that door had been kicked in earlier.
Sergeant Daniel Rivera of the Huntsville Police Department testified that when he reviewed Beer’s video, he recognized both of the people; one of them was the defendant Jeffries; and he interviewed the female first and then a few days later, Jef-fries came to see him. He testified that Jeffries admitted he had entered the house on Dotson Street and carried out a stack of stuff, including a stereo; Jeffries brought the items to him; and Jeffries made a statement, which was introduced as State’s Exhibit 1. He said Jeffries stated he presumed the house was unoccupied and abandoned because the calendar on the wall was 2009 (in 2015); the house was entered in daylight, rather than the usual dark of night; Jeffries admitted he took the items; he did not claim he had permission, nor that he had a key to the house; the female co-defendant lived three or four houses away from the house in question; there was a car in the driveway of the house; there are some houses on the street |sthat are in various states of disrepair; and Jeffries told him he was looking for a house he could try to repair and rent.
Jeffries moved for a directed verdict, contending the State had failed to prove his purpose in entering the house was to commit a theft therein and that the State failed to prove the value of the property taken. The motions were denied, and the jury found him guilty of both offenses. He was sentenced to six years in the Arkansas Department of Correction for breaking or entering and 365 days in the Madison County Jail for misdemeanor theft of property. This appeal followed.
For his first point of appeal, Jeffries contends the trial court erred in denying his motion for a directed verdict because there was not sufficient evidence of purpose to support his conviction for breaking or entering. We disagree.
Arkansas Code Annotated section 5-39-202(a)(1) (Repl, 2013) provides that “A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he or she breaks or enters into any: (1) building, structure, or ... [.]” Jeffries notes the offense requires proof of two elements: 1) entry and 2) purpose to commit a theft or felony. Jeffries’ challenge to the sufficiency of the evidence focuses on his “purpose” for entering the house. That is, he argues the State did not prove he entered the house with the purpose of taking any of the items. He argues the offense of breaking or entering requires evidence of purpose to commit theft, not just evidence of theft and not just presence in the house; the State cannot use a conviction of theft in one offense to prove purpose to commit a theft in the breaking or entering charge; there was no evidence of him “casing” the house; he entered through an unlocked, unobstructed back door and left through the front door |4in broad daylight; and the required “purpose” cannot be proved by entry or by the fact that he left with items from the house.
A motion for a directed verdict challenges the sufficiency of the evidence supporting a verdict. Duck v. State, 2016 Ark. App. 596, 509 S.W.3d 5, 2016 WL 7118285. When reviewing a sufficiency challenge, we view the evidence in the light most favorable to the verdict, considering only the evidence that supports it. Id. We affirm if substantial evidence supports the verdict, and substantial evidence is that which is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial. Todd v. State, 2016 Ark.App. 280, 494 S.W.3d 444. Circumstantial evidence may be used to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion, a determination that is a question of fact for the fact-finder. Id. The credibility of witnesses is also an issue for the jury, and the fact-finder is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id. It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. Id.
Here, it is undisputed the co-defendants entered the house and took the items that did not belong to them. Jeffries’s challenge, however, is to the sufficiency of the proof establishing his purpose in entering the house. Proof of purpose to commit an offense may be inferred from circumstantial evidence. Forgy v. State, 302 Ark. 435, 790 S.W.2d 173 (1990). Jeffries admitted he did not have permission to enter the house; the jury clearly did Rnot credit his statements to the police that he entered because he was looking for a house to repair or rent nor his statement that he thought the house was abandoned; the female co-defendant lived just down the street from the Beer house; it was possible to see into the house though some of the windows; even though it was broad daylight when they entered the house, the two co-defendants entered through the back door and left with items that did not belong to them. A reasonable inference could be drawn from the fact that the co-defendant lived nearby and, with a vehicle in the driveway but knowledge that the house was not occupied, that property items were located within and that Jeffries entered with the purpose of committing a theft therein. We conclude there was substantial evidence supporting Jeffries’ conviction for breaking or entering.
For his remaining point of appeal, Jeffries contends the trial court erred in denying his motion for a directed verdict on the charge of theft of property (Class A misdemeanor) because there was not sufficient evidence of the property’s value to support the conviction. Arkansas Code Annotated section 5-36-103(a) (Repl. 2013) provides in pertinent part that a person commits theft of property if he or she knowingly takes or exercises unauthorized control over the property of another person with the purpose of depriving the owner of the property. Section 5—36—103(b)(4) (Repl. 2013) provides that theft of property is a Class A misdemeanor if “(A) The value of the property is one thousand dollars ($1,000) or less; or (B) The property has inherent, subjective, or idiosyncratic value to its owner or possessor even if the property has no market value or replacement cost.” Jeffries contends the State put on no proof of the property’s value, and therefore failed to prove the offense. He acknowledges the statute refers to $1,000 or less but argues that reading the statute to allow IfiZero value under subsection (A) would render subsection (B) meaningless, and that with no evidence of value whatsoever, the proof failed. We disagree.
First, the offense is proven by evidence that Jeffries took property that did not belong to him, which he admitted. Second, the value of the property goes to the classification of the theft—here, a Class A misdemeanor. The property items Jeffries admitted taking were a stereo system, a chess set, and a CD cleaner kit still in its package. In Reed v. State, 353 Ark. 22, 109 S.W.3d 665 (2003), our supreme court made it clear there is no minimum value requirement for misdemeanor theft of property, which carries a term of one year’s imprisonment. We have no authority to overrule a supreme court decision.
Affirmed.
Abramson and Murphy, JJ., agree. | [
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Smith, J.
Without stating how this case arose, it will suffice to say that the question presented for our decision is whether the proposed amendment to the Constitution, submitted at the last General Election November.8, 1938, as proposed amendment to the Constitution No. 24, was legally submitted at that election. It is not questioned that a sufficient vote for the amendment was cast to adopt it under the decision in the case of Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865. The question presented is whether the requirements of the' Constitution in regard to amendments proposed by the General Assembly were sufficiently complied with to authorize the submission of the amendment to the electorate.
There are no controverted or disputed questions of fact in the case. There is a stipulation as to the facts, which we have verified by an examination of the journals of the Senate and of the House of the 1937 session of the General Assembly.
The facts are that on January 15,1937, Joint Resolution No. 1 was introduced in the Senate. It was spread at length on the Senate Journal. The resolution was read the first time, the rules were suspended, and the resolution was read the second time and referred to the Senate Committee on Constitutional Amendments.
We copy from the published journal of the Senate, pages 106 and 107, the following recitals there found:
“SeNate Joint Resolution No. 1
“By Senator Norrell.
“A resolution to submit an amendment to the Constitution, to provide that the judge of the chancery court of each county shall preside over the probate court of such county; providing for the trial of all probate court matters before the .judge of said court, and for appeals from probate courts to the Supreme Court of Arkansas; and authorizing the legislature to provide for a clerk for the probate court, or to consolidate chancery and probate courts; amending 19, 34 and 35 of Art. YII of the Constitution.
“Be It Enacted by the House of Representatives of the State of Arkansas and the Senate of the State of Arkansas, a majority of all the members elected to each House agreeing thereto, that the following be, and the same is hereby, proposed as an amendment to the Constitution of the State of Arkansas, to-wit:
“Section 1. Section 34 of Art. VII of the Constitution is hereby amended to read as follows:
“ ‘Section 34. In each county the judge of the court having jurisdiction in the matters of equity shall be judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law. The judge of the probate court shall try all issues of law and of fact arising in causes or proceedings within the jurisdiction of said court, and therein pending. The regular terms of the courts of probate shall be held at such times as is now or may hereafter be prescribed by law; and the General Assembly may provide for the consolidation of chancery and probate courts.’
“Section 2. Section 35 of Art. VII of the Constitution of Arkansas is hereby amended to read as follows:
“ ‘Section 35. Appeals may be taken from judgments and orders of courts of probate to the Supreme Court; and until otherwise provided by the General Assembly, shall be taken in the same manner as appeals from courts of chancery and subject to the same regulations and restrictions. ’
“Section 3. Section 19 of Art. VII of the Constitution of Arkansas is hereby amended to read as follows:
“ ‘Section 19. The clerks of the circuit courts shall be elected by the qualified electors of the several counties for the term of two years, and shall be ex-officio clerks of the county and probate courts and recorder, provided that in any county having a population exceeding fifteen thousand inhabitants, as shown by the last Federal census, there shall be elected then a county clerk, in like manner as the clerk of the circuit court, and in such case the county clerk shall he ex-officio clerk of the probate court of such county until otherwise provided by the General Assembly.’
“Section 4. The provisions of the Constitution of the State of Arkansas in conflict with this amendment are hereby repealed in so far as they, are in conflict herewith; and this amendment shall take effect on the first day of January next folloAving its adoption.
“(Signed) W. F. Norrell.”
“Senate Joint Resolution No. 1 was read the first time, rules suepended, and read second time and referred to Committee on Constitutional Amendments.”
• • On January 25 the Senate Committee on Constitutional Amendments reported the resolution back to the Senate, with the recommendation that it “do pass.” On January 26 the resolution was called up for its third reading and final passage by the Senate. Again it was spread at length on the Senate Journal. It was placed on third reading and final passage. The roll was called by the secretary of the Senate and the yeas and nays were duly entered on the Senate Journal. There were 30 yeas and 1 nay. Four members of the Senate failed to vote. The resolution was declared adopted and was ordered transmitted to the House of Representatives.
On the same day, January 26, the secretary of the Senate, appearing before the bar of the House of Representatives, read to that body his official message transmitting to it Senate Joint Resolution No. 1, together with other measures which had been adopted by the Senate. That portion of this message dealing with Senate Joint Resolution No. 1 reads as follows:
“The sergeant-at-arms announced a message from the Senate, whereupon the secretary of the Senate appeared within the bar of the House and read the following communication:
“Fifty-First General
“Assembly
“AekANSas Senate
“Little Rock, Arkansas,
“January 26, 1937.
“Mr. Speaker: I am instructed by the Senate to inform your honorable body of the passage of Senate Joint Resolution No. 1 by Senator Norrell, the same being a resolution to submit an amendment to the Constitution to provide that the judge of the chancery court of each county shall preside over the probate court of such county; providing for the trial of all probate matters before the judge of said court, and for appeals from the probate court to the Supreme Court of Arkansas; and authorizing the legislature to provide for a clerk for the probate court, or to consolidate chancery and probate courts; amending §§ 19, 34, 35 of Art. VII of the Constitution.”
The secretary of the Senate duly delivered the resolution to the House, but neither the resolution nor the proposal embodied therein was spread at length on the House Journal.
On the same day of its receipt by the House the resolution was read for the first time in the House, the rules were suspended and the resolution was read the second time and it was then referred to the House Committee on Constitutional Amendments.
The descriptive reference which the House Journal makes to the resolution, reads as follows:
“Senate Joint Resolution No. 1
“By Senator Norrell.
“A resolution to submit an amendment to the Constitution, to provide that the .judge of the chancery court of each county shall preside over the probate court of such county; providing* for the trial of all probate court matters before the judge of said court, and for appeals from probate courts to the Supreme Court of Arkansas; and authorizing the legislature to provide for a clerk for the probate court, or to consolidate chancery and probate .courts; amending §§ 19, 34 and 35 of Art. VII of the Constitution.
“Was read the first time, the rules were suspended, and read the second time and referred to Committee on Constitutional Amendments.”
Neither the resolution nor the proposal embodied in it was spread at length on the House Journal, there being entered only the synopsis thereof above quoted.
On February 19 the House Committee on Constitutional Amendments reported the resolution back to the House, with the recommendation that it “do pass.” On February 23 the resolution Avas read the third time in the House, and placed on its final passage. The clerk of the House called the roll, and duly entered the yeas and nays on the journal. The vote was : Yeas 60; nays 20; not voting 19. The resolution Avas duly declared adopted by the House. A motion to reconsider the vote by which the resolution was adopted, and to lay that motion on the table, was passed, and the motion Avas accordingly laid on the table, but here again there was a failure to spread the resolution at length on the journal of the House.
On February 24 the clerk of the House returned the resolution to the Senate with the following message:
“The sergeant-at-arms' announced a message from the House, whereupon the chief clerk appeared Avithin the bar of the Senate and read the folloAving communication :
“Little Rock, Arkansas,
“February 24, 1937.
“Mr. President: I am instructed by the House of Representatives to inform your honorable body of the passage of Senate Joint Resolution No. 1 by Senator Norrell, the same being a joint resolution to submit an amendment to the Constitution, to provide that the judge of the chancery court of each county shall preside over the probate court of such county; providing for the trial of all probate court matters before the judge of said court, and for appeals from the probate court, to provide a clerk for the probate court, or to consolidate the chan- eery and probate courts, amending §§ 19, 34, and 35 of. Art. VII of the Constitution.
“And I herewith return the same.
Bespectfully submitted,
“(Signed) A. M. Ledbetter, Jr.
“Chief Clerk.”
• This message was spread upon the journal of the Senate, but the resolution to ■which it referred was not again entered upon the Senate Journal.
On February 26 the Committee on Enrolled Bills of the Senate reported to the Senate that it had compared the enrolled copy of Senate Joint Besolution No.-l with the original, and that it found the same correctly enrolled, and on the same day the Committee on Enrolled Bills reported to the Senate that it had on that day delivered to the Governor for his action Senate Joint Beso-lution No. 1, and on February 27 the Governor reported to the Senate that he had approved the resolution.
It may be first said that the Governor had no duty to perform in connection with the authorization of the submission of the amendment, and his action thereon in approving the amendment added nothing to, and subtracted nothing from, the validity of the legislative action. Mitchell v. Hopper, 153 Ark. 515, 241 S. W. 10.
The insistence is that the failure of the House of Bepresentatives to enter at length the resolution upon the Journal of that body is a fatal defect in the proceedings, for the reason that the Constitution requires this entry at length upon the journals of both the Senate and the House.
Let it be remembered that we are considering now only proposals to amend the Constitution submitted by the General Assembly. An entirely different procedure is applicable to amendments proposed under the Initiative and Beferendum Amendment No. 7. •
Section 22 of Art. SIX of the Constitution provides the manner in which proposals to amend the Constitution may be submitted to the people by the General Assembly. It reads as follows:
“Section 22. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each House, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election-for Senators and Representatives, at which time the same shall be submitted to the electors of the state for approval or rejection; and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so ■ submitted as to enable the electors to vote on each amendment separately. ’ ’
This section of the Constitution was -analyzed and construed in the ease of McAdams v. Henley, 169 Ark. 97, 273 S. W. 355, 41 A. L. R. 629, where the conflicting authorities and the different rules of construction were reviewed and discussed, and it would be a work of supererogation to review a question so thoroughly considered in that opinion by the late Chief Justice McCulloch.
That opinion points out that in proposing amendments to the Constitution the -General Assembly acts, not in its legislative capacity, but in the nature of a constitutional convention proposing amendments for action by the electorate. It was there pointed out that in proposing amendments to the Constitution something more was required than in passing ordinary legislation. Ordinary bills, in their passage through the General Assembly, may be identified by title and number, but not so with constitutional amendments. It is required that the latter be entered upon the journals of both the Senate and the House, as was there said, but that language must be construed with reference to the facts to which it was there applied.
There the facts were that a joint resolution proposing a constitutional amendment was passed in the Sen ate, but it was materially amended in the House, and was returned to the Senate as amended, and the Senate Journal did not reflect what action was taken by the Senate in regard to the House amendment.
Upon this state of the record Judge McCulloch said: “The real question is whether the omission from the Senate journals of the House amendment and. the substantial differences between the amendment entered on the journal of the Senate and the one submitted to the people renders the adoption by the people ineffectual.” The amendment submitted to the people was, in fact, the Senate resolution, as amended by the House. In other words, it was essential that the journals of both the House and Senate show definitely and certainly what amendment had been approved for submission, and that both the House and the Senate had concurred in the submission of the same amendment, and that the journals of the two Houses, when read together, make this fact definite and certain.
No such question is presented here. The resolution was properly entered upon the journal of the Senate, and the resolution was passed by the House without amendment of any- kind, material or otherwise. Had the House amended the Senate resolution, as was done in the case of McAdams v. Henley, supra, then it would have been necessary for the House to enter the resolution, as amended, in extenso, upon the journal of the House, and if the Senate concurred in the amendment made by the House, it would also have been necessary .for the Senate to again enter upon its journal the amended resolution, thus showing its concurrence therein. That was not done in the McAdams case, supra, and for that reason it was held, in answering the question above copied, which Judge McCulloch had propounded, that the submission of the amendment was not authorized and its adoption by the people was ineffectual.
The opinion in the McAdams case, supra, does say: “Our conclusion is that the proposal of an amendment to the Constitution is void unless the amendment is entered in extenso on the journals of each of the two houses of the General Assembly, and that a mere identifying reference by title or otherwise is insufficient. ’ ’ Bnt, as we have said, that language is to be construed with reference to the facts to which it was applied. The Senate' Journal in that case reflecting , the final action by the Senate recites only that “Senate General Resolution No. 9,. by Norfleet and Caldwell, was read the third time and placed on its final passage.” The resolution had then .been amended in, and returned by, the House to the Senate, and this identifying reference to the resolution as “Senate Joint Resolution No. 9, by Norfleet and Caldwell,” was insufficient. It did not reflect the Senate concurrence in the House amendment, as the resolution submitted by Norfleet and Caldwell did not meet the approval of the House, but had 'been amended by it.
But, after using the language above copied, Judge McCulloch immediately proceeded to say: “We do not mean to hold that it is essential to the validity of a constitutional'-amendment that the entire proposal as it may be affected by amendments adding or subtracting language in the course of its progress through the two houses must be spread upon the .journal of either house at the same place or at the same time. Different parts of the journals of the respective houses may, if connected up so that the whole of the amendment as finally adopted by both houses, appears upon the journal of each house, be treated as sufficient to make a complete record; but we do hold that where any substantial part of the amendment is omitted entirely from the journal of either one of the houses, even though it appears on the journal of the other house, it renders the proposal invalid. By way of illustration, we might take the journal of the House in this instance, which shows that the original resolution as introduced in the Senate was spread at large upon the journal, and.there were certain amendments which were also separately spread on the journal. Now, if the House had adopted the amendment by a yea and. nay vote spread on the record without actually re-entering the amended resolution, that would have been sufficient, because the original Senate resolution and the House amendment are connected together, so that it is in effect a complete entry of the whole amendment as adopted by the House. But when we come to the Senate Journal, we find nothing there but the entry of the original resolution. If the journal of the Senate had contained a recital of the House amendments and a corrected copy of the same was entered on the journal, an adoption of the amendment would have shown the whole of the resolution that the Senate adopted, and it would have been unnecessary to re-enter the original resolution as amended. The two entries, in other words, would have been sufficient; but, as the journal entry now stands, there is no disclosure whatever on the Senate journal of the House amendment, therefore the Constitution has not been complied with. Nor do we mean to say that a compliance with this provision must be absolutely literal. On the contrary, we say that the omission of an immaterial portion of an amendment — one not affecting its meaning or interpretation — would not affect its validity. It is only a substantial omission from the record which is fatal, and not merely immaterial words which do not affect the real meaning of the proposal. It is easily seen that the House amendments are substantial, and that the omission of them from the journal is an important departure from the text of the proposal as. amended by the House.”
When the .journals of the two houses are read together in the instant case, it is made certain that both houses passed the same amendment. The journal of the House did not identify the .Senate resolution to which it gave approval merely by reference to its title or number. On the contrary, there was entered upon the House journal a synopsis of the resolution which identifies it beyond the possibility of controversy as to whether the House was assenting to the Senate resolution. Had the House amended the Senate resolution in any particular, we would have presented the question involved in the Mc-Adams Case, and in that event, it would have been essential, as held in that case, to enter the resolution as finally passed in extenso upon the journals of both houses.
We conclude, therefore, that the instant case is distinguishable, under the facts, from the McAdams Case, and that it should be held in the instant case that the submission to the people of Senate Joint Resolution No. 1 was properly authorized.
There remains only the question presented as to when the amendment becomes effective. The amendment recites that it “shall take effect on the first day of January next following its adoption-.”
In the case of Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22, a proposed amendment, which provided that it should take effect and be in operation sixty days after its passage and adoption by the people of the state, received a majority vote of the electors at the general election held October 7, 1924, which was at that time the date fixed by law for the submission of constitutional amendments to the electors for approval or rejection. That amendment, like the one here under consideration, was proposed by the General Assembly. It was there held that the amendment was adopted on the date of the election, but did not take effect until sixty days thereafter (December 7, 1924), for the reason that the amendment so provided.
Upon the authority of this Matheny Case, we hold that the amendment was adopted at the general election held November 8, 1938, and, as the amendment provided that it shall be effective the first day of January next following its adoption, we hold that the amendment is now in effect and has been since January 1, 1939.
The prayer for a writ of prohibition will be denied.
Mehafey, J., concurs. | [
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Smith, J.
B. M. Magness was an original member of the firm of Magness Brothers, engaged in the general mercantile business at Western Grove. He had two children, a son, T. B., who had been admitted to membership in the Magness Brothers firm, and a daughter, Edna, who married S. L. Fowler. He wished to start his daughter and her husband in business, and to that end he sent his son and son-in-law to Jasper, where a store building and a stock of goods were purchased, and a partnership was formed, composed of T. R. Magness, owning one-third, L. E. Fowler, owning a third interest, and Edna and her husband owning the remaining one-third. T. R. .Magness gave directions for drawing the deed to the building, and, not knowing the exact wishes of his father as to how the deed should be prepared, had it made to T. R. Magness, B. M. Magness, and L. E. Fowler; but we think it certain that it was the intention to convey the property to the new partnership and that it became a part of the partnership assets. The date of this deed was February 13, 1923.
It was found that the partnership needed more space, and a portion of an additional lot was purchased and the title thereto was taken in the names of T. R. Magness, L. E. Fowler, and S. L. Fowler. This deed was dated March 5, 1923, and a part of an additional lot was purchased August 30,1923, and that deed was drawn to L. E. Fowler, T. R. Magness, and B. M. Magness. A portion of another lot was purchased October 26, 1923, and the deed was drawn to L. E. Fowler, B. L. Fowler, and T. R. Magness. A quitclaim deed from B. F. Ruble — apparently executed for the purpose of clearing the title to these fractional lots — was executed to “Magness & Fowler,” this being the firm name of the new partnership, but the deed does not recite who the members thereof were. This deed confirms the view that the purpose of all the deeds was to convey the title to the partnership, and the lots became a part of the partnership assets. The purchase price of all the lots was paid with partnership funds except the first deed, which named B. M. Magness as one of the grantees, but we think this deed was intended by B. M. Magness as a contribution by his daughter and her husband to the new co-partnership, and that it was the intention and purpose of all the conveyances to acquire title for the benefit of the partnership.
In addition to these partnership lands, L. E. Fowler bought other lands from time to time in his own name and certain lots adjacent to the partnership lots. L. E. Fowler became the dominant figure in the partnership, and borrowed $2,500 from M. F. Franklin, first $1,500 and later an additional $1,000. Franklin testified that the money was borrowed for the firm, and Fowler testified that be did not remember for wbat purpose tbe money was borrowed; but we think it fairly inferable— and we find the fact to be — that it was borrowed for firm purposes.
On August 14,1925, T. E. Magness sold his one-third interest in the business, including the real estate, to Pleas Fowler, and on March 22, 1929, Pleas Fowler conveyed his interest to L. E. Fowler. As the partnership thereafter continued, L. E. Fowler owned a two-thirds interest, and S. L. Fowler and Edna, his wife, owned the other third.
There were a number of transactions between L. E. Fowler and Franklin which are difficult to understand, because of the lack of candor or the failure of memory, through the lapse of time. These resulted in L. E. Fowler giving Franklin a mortgage on his undivided two-thirds interest in the partnership business, which indebtedness, after other transactions were had, was merged in a debt fixed at $6,500, which was secured by a mortgage conveying all the partnership property, though it was not described or referred to as partnership property. The date of this mortgage was October 30, 1935.
On 'September 29, 1939, L. E. Fowler executed to Franklin a warranty deed conveying all the lands which the partnership had acquired, and also certain lands to which Fowler had acquired title individually, including his home. The recited consideration for this deed was the satisfaction of all demands due Franklin and the execution of a lease from Franklin to Fowler upon the Fowler home and a portion of the partnership property for a term of five years.
When S. L. Fowler and his wife learned of this deed, they filed this suit to cancel the deed as a cloud upon their title, and to partition the partnership lands.
The court dismissed the complaint as being without equity, and confirmed the conveyance from Fowler to Franklin as against both S. L. Fowler and wife and L. E. Fowler, and from that decree is this appeal.
After confirming Franklin’s title to the property, the costs were assessed against Franklin, .and from that decree Franklin has prosecuted a cross-appeal.
The record is voluminous, the testimony is sharply conflicting, and is characterized by the uncertainty of the testimony and the failure of the parties to remember essential details of the transactions between themselves, which extended over a-period of years. Upon the whole case, we are unable to say that the chancellor’s findings are contrary to the preponderance of the evidence.
The partnership business was conducted in the name of Magness & Fowler,' and was at first profitable, but later not so, and S. L. Fowler accepted another position, and the business was left in the sole charge of L. E. Fowler, who continued to operate it until it was finally closed in the fall of 1938. Fowler enlarged his operations with money borrowed from Franklin, but the additional business was conducted as a part of the old. For a period of thirteen years Fowler operated the business as if he were the sole owner; indeed, he abandoned the use of the firm name and thereafter conducted the business in his individual name, and was, so far as those dealing with the firm were advised, the sole owner. Taxes on the real estate were assessed for the years 1932 and 1933 in the name of Magness & Fowler, but were paid by Fowler in his individual name. In 1934, the assessments were made in the name of L. E. Fowler, and were thereafter assessed and paid in his individual name.
S. L. Fowler -and his wife, after apparently abandoning the business, must necessarily have known that L. E. Fowler was operating it in his own name as if he were the sole owner, and that credit had been or might be extended upon that basis.
The partners here had permitted the partnership ■business to be as loosely operated as were the affairs of the Jacks Transfer Company in the case of Jacks v. Greenhaw, 105 Ark. 615, 152 S. W. 160, and the legal principles there announced are applicable here. It was there said: It appears that Jacks desired to start Wells, who was a brother-in-law, in the business, and that he placed him in charge of the transfer business. It appears that thereafter for more than six years Jacks gave no attention to the 'business and exercised no control whatever over it, although he lived within a mile ■and a half of Marianna. Wells’ control appears to have been absolute, and he conducted the business as if it were purely a private enterprise. The proof shows that he sold the property of the partnership at will, and bought other property when he pleased, and that he borrowed money and executed notes in the name of the Jacks Transfer Company or in his own name without even consulting with or reporting to his co-partner. It appears that among the number- from whom Wells borrowed money was the plaintiff Greenhaw, and that he had an arrangement with him by which he secured $800 to be used in the wood and coal business, which Wells was conducting- as a branch of his transfer business. . . . It must be conceded that Wells was operating without due regard to the rights of Jacks, but those questions may be settled in a suit for accounting between themselves. After executing the deed of trust and after taking over such .assets as Greenhaw and Wells owned at that time, Wells continued to operate the business until some time after the maturity of this note. The question here is, whose debt was evidenced by this note? And we conclude that the chancellor was warranted in finding that the debt which the note evidenced was that of Jacks Transfer Company, and the plaintiff has the right to have his deed of trust foreclosed. The power of one partner to bind firm property by a chattel mortgage given to secure a firm debt, without the consent of the copartner, is generally recognized. 30 Cyc. 497; Gates v. Bennett, 33 Ark. 475.”
So, here, S. L. Fowler and his wife, for a long period of years, permitted L. E. Fowler to operate the business as if he were the sole owner, and we think it would now be inequitable to permit S. L. Fowler or his wife to say that L. E. Fowler did not possess the authority which they for a long period of years permitted him to exercise. As in the Jacks’ case, so here, there may be a question of accounting between the Fowlers; but that question is not now presented.
In any view, for a long period of years, L. E. Fowler was permitted to conduct the partnership business as if it were his own, and to incur obligations in the conduct of the business.
It was said in the case of Bonner v. Coburn, 163 Ark. 274, 260 S. W. 28, that it. was the settled doctrine in this state that the real estate of a partnership is, in equity, considered as personal property insofar as it may be necessary for payment of the partnership debts; and in Welch v. McKenzie, 66 Ark. 251, 50 S. W. 505, it was said that, in equity, real estate purchased with partnership funds for the use of the partnership is chargeable with the debts of the partnership. It was also held in the case of First National Bank v. Bedingfield, 83 Ark. 109, 102 S. W. 683, that it was within the power of one member of a partnership, acting in good faith, to make a chattel mortgage of all the partnership property to secure partnership indebtedness.
We conclude, therefore, that the court was correct in confirming the title to the partnership lots in Franklin. If L. E. Fowler did not, in fact, have the actual authority to execute the deed, we think it would be inequitable to permit S. L. Fowler and his wife,, at this time, to raise that question.
In view of what must have been the finding of the court below, as evidenced by the decree which was rendered, we think it was error to impose the costs of the suit upon Franklin, and that portion of the decree will be modified by assessing the costs against the plaintiffs, S. L. Fowler and wife, and, as thus modified, the decree will be affirmed. | [
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Bakes, J.
The appellant was convicted in the circuit court of Polk county in four different oases. In one he was sentenced to three years; in another, to seven; in another, to five years; and still in another, to two years. It was his contention that it was the order and judgment of the trial court that his several sentences should run concurrently, hut the clerk, by mistake or misprision entered some of the judgments upon, the record to run consecutively. Thereafter, when appellant had served his longest term he filed a petition in the Polk circuit court praying that the mistake or misprision of the clerk be corrected. Upon a hearing in the circuit court it was found that the said judgments had been entered erroneously, and the court corrected the orders by directing that the judgments run concurrently.
Thereafter, on the second day of July, 1940, the appellant still being in custody, sued out a writ of habeas corpus, alleging" the foregoing facts, and that his terms and sentences had expired, and that he was being unlawfully held by the prison superintendent. The Attorney General demurred. The court sustained the demurrer and dismissed the petition.
The authority relied upon, according to the Attorney General’s 'brief, for the court’s .action was found in the case of Emerson v. Boyles, 170 Ark. 621, 280 S. W. 1005, 44 A. L. R. 1193. That was a case in which defendant pleaded guilty to a felony, was sentenced and served part of his term.
During the same term of court the sentence was set aside, and an order was made continuing the case. It was held in that case that after sentence, even though at the same term of court, the court was without power to set aside the judgment and sentence for the reason that if the defendant were again convicted, his second conviction would violate that provision of the constitution providing against being twice put in jeopardy for the same offense. Art. II, § 8, Constitution of 1874. It was directly held that after sentence and confinement under commitment, the court lost jurisdiction over the case and could not even at the same term set aside the original sentence and postpone pronouncement to another time. The matter was given most careful consideration as will appear from the opinion and from the dissent. Since there is so little grain saved in “threshing over old straw” we concede the full force of what the court held under the given facts. The virtue and force of the opinion is spent, however, when the instant case is viewed in the light of the stated and admitted facts, not to go further and give full faith and credit to the order of the Polk circuit court directing the correction of a mistake or misprision of the clerk in entering orders made by the court. There must be some virtue in § 8246, Pope’s Digest. Dozens of cases have been filed and the provisions of this statute have been invoked successfully by litigants. The only condition precedent to consideration is to bring one’s self within the purview of the law or statutory provisions.
It is true there is no jurisdiction to violate a constitutional inhibition, such as double jeopardy. It is not denied appellant has properly proceeded unless the courts be powerless to correct an admitted error of the clerk, as distinguished from an error of the court properly reached only by appeal. Ingram v. Raiford, 174 Ark. 1127, 298 S. W. 507; Boyd v. Roane, 49 Ark. 397, 5 S. W. 704.
The third subdivision of § 8246 is: “ For misprision of the clerk. ’ ’ That is the substantive matter alleged in the appellant’s petition. Such petition invoked jurisdiction when filed. Necessarily, the court had a right to act. This conclusion is warranted by a decision upon the very point in Williams v. Bogard, 151 Ark. 611, 237 S. W. 96. It was held in that case: “Misprision of the clerk in entering judgment may be set aside, upon motion with notice, by the court in which judgment or final order was rendered after expiration of term.”
To a like effect is the decision in the case of Partridge v. Boon, 182 Ark. 641, 32 S. W. 2d 321.
There is quite a distinction in making correction of a record which by reason of misprision recites matter as done by the court which did not occur, and in making some change in an order or judgment actually made by the court. So it will appear the decision of Fletcher v. State, 198 Ark. 376, 128 S. W. 2d 997, has no application under the facts admitted by the demurrer and judicially determined by order of the circuit court.
It was held such order might not be attacked collaterally. King v. Clay, 34 Ark. 291. From the rule announced, our courts have not varied. For the error indicated, the judgment is reversed with directions to overrule the demurrer, and for all'other proper proceedings. | [
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Humphkeys, J.
Appellant, Ivy Watkins, was employed as an electrician by the City of Little Rock under and pursuant to Act 322 of the Acts of the G-eneral Assembly of 1937, entitled:
“An act to create a Board of Civil Service Commissioners for cities which, according to the last Federal census taken, have a population of 75,000 or over; to have control, management and jurisdiction of the employees of said cities, except the employees of the fire and police department; to define the duties and power of said Commission, and other purposes.”
This act established a board of Civil Service Commissioners in cities of 75,000 or more and prescribed rules for the employment and discharge of city employees, except in certain cases, and .defined the powers and duties of the commissioners.
On September 14, 1939, appellant was given written notice by the Civil Service Commission that he was charged with violating certain rules of said commission specifically setting out the ones lie had violated. In the notice he was informed that unless he denied the charges within ten days and demanded a trial the charges would be treated as confessed and punishment would he imposed by said commission.
On September 18, 1939, he wrote the following letter to the commission: “I desire a trial upon the charges and want an opportunity to present my side of the matter. However, at this time I am under the care of Dr. J. K. Donaldson who tells me that it will be impossible for me to get out of bed until about September 23rd.
“I will appreciate it if you will set this case in line with the above date and at the same time consider this ■my answer denying all of the charges and my request for a hearing as soon as my doctor will permit me to get up.”
Attached to this letter was a statement from Dr. Donaldson as follows: “Mr. Watkins could report now, but I do believe unless the matter was urgent that I would give him a few more days.”
On September 21, 1939, the director of the commission notified Watkins as follows: “Please be advised that hearing for which you requested has been set for October 6, 1939, at 4:00' p. m.”
On September 26,1939, the commission notified Watkins as follows: ‘ ‘ Due to the fact that one of the Commissioners has been called out of town the 6th of October, the hearing for which you requested has been set up to October 11, 1939', at 4:00 p. m.”
On October 11, 1939, the Board of Civil Service Commissioners entered an order discharging Ivy Watkins from further service with the city from which appellant appealed to the circuit court on November 3,1939.
On November 3, 1939, appellant filed his motion to quash the proceedings alleged to have been had before the commission, with the Civil Service Commission. The commission refused to hear Watkins’ motion to quash, and the same motion was filed in the Pulaski circuit court on November 10, 1939.
The record does not reflect the contents of the motion filed on November 3,1939, before the commission, hut appellant states that the motion was in substance the same as the motion he filed November 10,1939, in the circuit court, which motion is as follows:
“Ivy Watkins states that the Little Rock Civil Service Commission was without authority or jurisdiction to hold a trial on the 11th day of October, 1939, on charges filed against him on the 15th day of September, 1939, or to enter any order or decision discharging him from his employment, and for his reasons he states and specifically pleads the provisions of Act No. 322 of the Acts of the General Assembly of Arkansas, 1937, § 5 thereof, which reads in part as follows: ‘That no employee Of any department of any city' affected by this Act shall be discharged or reduced in rank or compensation without being notified in writing as provided herein; that such person shall have the right to reply and trial as provided herein, and may be discharged or reduced only after conviction by said trial before the Commission.
“ ‘Said trial must take place within fifteen days after demand for such is made, and the accused must be notified at least ten days prior to the trial of the date and place of said trial, and may have compulsory process to have witnesses present at such trial.’
“Ivy Watkins states further that he specifically objected to the proceedings had by the Little Rock Civil Service Commission, on the 11th day of October, 1939, but that he was called as a witness by the deputy city attorney, and there testified in the matter, over his specific objection, which objection was, and the same is hereby pleaded, that the Little Rock Civil Service Commission lost authority and jurisdiction over said matter, and lost authority and jurisdiction to hold a trial on said charges, or give any valid or lawful order or decision thereon by reason of their failure and refusal to hold a trial within fifteen days after demand therefor, pursuant to the statute authorizing a Civil Service Commission.
“Wherefore, premises considered, Ivy Watldns prays that the proceedings, order and/or decision of the Little Bock Civil Service Commission alleged to have been had on the 11th day of October, 1939, be set aside, vacated, and forever held for naught, and that such charges filed against him on the 15th day of September, 1939, be dismissed for failure to prosecute pursuant to § 5 of Act 322, of the Acts of the General Assembly of Arkansas, 1937.
“(signed) Malcolm K. Bussell
of Sam T. & Tom Poe.
“I, Ivy Watkins, swear under oath that the facts set out in the foregoing motion are true and correct.
“I. D. Watkins.
“State of Arkansas,
“County of Pulaski.
“Subscribed and sworn to before me on this 3rd day of February, 1940, by Ivy Watkins, Petitioner.
“Tom Newton, Clerk
“By Y. S. O’Neal, D. C.”
The City of Little Bock, moved the circuit court to dismiss Watkins’ motion assigning the following reasons:
“(1) Failure of Commission to hold its hearing at an earlier date was due to Watkins ’ physical condition.
“(2) Watldns has waived any rights he may have had by his consent and conduct at the hearing.
“ (3) The hearing before the Commission was held within fifteen days after Watkins’ suspension.”
The case went to trial upon the motion of appellant and the response thereto by the city and upon evidence which was introduced in the circuit court over the objection of appellant, in substance, as follows:
W. L. May, Personnel Director of the City of Little Bock, testified that he notified Watldns of the charges filed against him and received Watkins’ reply demanding a trial, that he notified Watkins the trial would be heard on October 6, and that sometime thereafter he talked with Watkins over the telephone when he told him the trial would be postponed until October 11th because one of the Commissioners would be out of town on the 6th. Then, on September 26th, he wrote Watkins a letter telling him of the resetting of the trial. He was present before the Commission, and that Watkins did not object at the time of the trial.
G-eorge Shepherd, a witness for appellee, testified that he was before the commission on October 11, representing a client of his; that Watkins announced ready for trial and made no objection to the procedure.
L. E. Newland, City Electrician, a witness for ap-pellee testified he was a witness before the commission on October 11th; that Watkins announced for trial and made no objection to the proceedings.
This constituted all the testimony appellee introduced, and appellant declined to introduce any testimony or to cross-examine appellee’s witnesses. The appellant objected to the introduction of all the testimony and moved the court to strike the testimony.
Thereupon the circuit court affirmed the action of the commission, and the petitioner excepted and prayed an appeal to this court which was granted and time given to file a bill of exceptions. The bill of exceptions was filed within the time allowed, and an appeal has been duly prosecuted to this court.
Appellant insists that the judgment of the circuit court refusing to disturb the action of the Civil Service Commission in dismissing the appellant from service of the city should be reversed because under the act the commission lost its jurisdiction to try appellant when it failed to try him within fifteen days after he demanded trial.
The part of the act invoked to sustain appellant’s insistence or contention is as follows: “. . . that no employee of any department of any city affected by this Act shall be discharged or reduced in rank or compensation without being' notified in writing as provided herein. That such person shall have the right of reply and trial as provided herein, and may he discharged or reduced only after conviction by said trial before the Commissioner. Said trial must take place within fifteen days after demand for such is made, and the accused must be notified at least ten days prior to the trial of the date and place of said trial . . .” Section 5.
It is true the act says “Said trial must take place within fifteen days after demand for such is made . . .”, but it does not say that the commission shall lose its jurisdiction to try the cause at a later date if good cause is shown. Even though the statute is mandatory the mandatory features thereof should be construed to mean the trial must take place within fifteen days after the demand for trial unless some unforeseen eventuality prevents. If, for example, the employee against whom charges had been preferred became seriously ill so he could not attend the trial or two of the commissioners became seriously ill and could not hold the trial, it would certainly be unreasonable to construe the statute to mean that the tribunal having jurisdiction of the subject matter and person of the employee would lose jurisdiction at the expiration of the fifteen day period. The Legislature never intended that under such circumstances an employee who violated the rules might escape punishment because he was not tried within fifteen days from the day he demanded a trial. The Legislature meant that under ordinary circumstances the trial must take place within fifteen days after demand for trial. We do not say that the statute means that the commission may use its own sweet pleasure in trying an employee when it pleases, but we do say that conditions might arise where the tribunal would be warranted in setting the case down for trial at a later date than the • expiration of the fifteen days specified in the statute without losing jurisdiction over the subject matter and the person of the employee.
In the instant case the case was set down for trial a few days after the expiration of the fifteen day period on account of the illness of appellant. Not only so, but appellant appeared at the trial before the Commissioners without objection and testified in Ms own behalf and did not raise the question of the commission’s right to try him on October 11, 1939, until nearly a month after he lost his case. The letters which passed between the commission and appellant reflect that the case was set down beyond the fifteen day period in order to accommodate appellant and for his benefit. As we read this record appellant appeared on October 11, 1939, before the commission and testified and raised no question as to the jurisdiction of the commission at that time, and it was not until after he lost his case that he raised the technical point that the commission had no right to try him or lost its jurisdiction to try him because the trial was not held within the fifteen day period provided in the statute.
It would be a very narrow and unreasonable construction of the statute to hold that the Legislature meant and intended that the Board of Civil Service Commissioners would lose its jurisdiction to try an employee upon charges preferred against him a reasonable time beyond the fifteen day period under all circumstances and especially under the circumstances in this case. Appellant clearly waived the question of jurisdiction of the board by appearing on October 11, 1939, before the Commission and testifying in his own behalf without intimating or suggesting that the board had lost its jurisdiction to try him by not trying him within fifteen days after his demand for a trial. He was given as speedy a trial as the condition of his health permitted. In fact, according to this record the short delay beyond the fifteen day period in trying appellant was in response to his own request. By his own conduct he was clearly estopped from raising the jurisdictional question now raised. He should have raised it at the time of his trial and not almost a month after he had lost his case.
No error appearing, the judgment of the trial court is affirmed. | [
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DAVID M. GLOVER, Judge
11 Cynthia and Timothy Jordan were divorced by “Agreed Divorce Decree” entered on June 17, 2005. In April 2015, Cynthia filed a petition for modification of the divorce decree, asking that Timothy’s payment of alimony to her be extended beyond the age designated in their decree (62 1/2) and made permanent. On May 26, 2015, Timothy filed a motion to dismiss the petition, contending that the court was without jurisdiction to modify the alimony provision because it was agreed on by the parties as part of an independent contract that was announced in open court and incorporated into the divorce decree. Following a hearing on the motion, the trial court granted the motion to dismiss by order entered on January 11, 2016. On January 29, 2016, Cynthia filed her notice of appeal. We affirm.
As her sole point of appeal, Cynthia contends the trial court erroneously interpreted the divorce decree in this case when it ruled the award of alimony could not be modified. | 2She subdivides this point into two subpoints: 1) “the circuit court had no proper basis for utilizing a docket entry to supplement or vary the findings and orders contained in a properly entered decree of divorce”; and 2) “the mere fact that the parties announced to the court they had reached an agreement on what the court should include in the decree is not tantamount to a separate, enforceable ‘property-settlement agreement’ under Arkansas law.” We find no error.
The “Agreed Decree of Divorce” provides in part,
Property Settlement Agreement:
8. Further based wpon the agreement announced in open court, the plaintiff is ordered to pay permanent alimony to the defendant in the amount of $1,500.00 weekly commencing Friday, May 6, 2005. The first payment shall be reduced by defendant’s weekly paycheck. The alimony shall be paid each and every week and shall terminate upon the happening of the first of any of the following events: (1) the death of either party, (2) the defendant, Cynthia Ingram Jordan, reaching the age of 62 and ⅜ years, or (3) the remarriage of the said defendant or the act of the said defendant cohabiting in the marital residence with a member of the opposite sex. The parties agree that said alimony is deductible on behalf of the plaintiff/payer and taxable to the defendant/recipient, and that both parties will report the said alimony payments as such in filing their individual income tax returns beginning with the tax year 2005 and continuing until the alimony is terminated under the terms mentioned hereinabove or by subsequent Order of this Court. In the event plaintiff misses any alimony payments or is delinquent in excess of thirty (30) days, then defendant may require that all future payments be made through the Circuit Clerk.
(Emphasis added.) The trial court’s docket entry provides in part,
5/3/2005 FINAL HEARING—P/f appears w/ atty, Tim Womack. Def appears w/ atty, T. Wine-land. Parties reach agreement on certain issues and read same into record. No minor child at time of divorce. Testimony taken of parties and p/f s witness, Mary E. Frey. P/f is granted an absolute divorce on general indignities. Parties agreement re property and debt is approved and is adopted as the order of the Court. Each party acknowledges on the record their acceptance to the agreement as announced today. Mr. Womack will prepare precedent.
Is At the hearing on Cynthia’s motion to modify, she took the position that the alimony provision in the “Agreed Divorce Decree” was subject to modification because it was not part of an independent contract signed by the parties but rather a mere stipulation agreed upon by the parties and merged into the decree. Timothy, on the other hand, contended that the parties’ property-settlement agreement was a separate and independent contract between them that was incorporated into the decree but retained its independent, contractual nature and was not subject to modification. In its order granting Timothy’s motion to dismiss, the trial court noted that the decree contained a section labeled “Property Settlement Agreement,” and that the terms of the agreement were set forth in paragraphs four through thirteen of the decree. The alimony provisions of paragraph eight were thus only a portion of the overall agreement. The trial court further explained in its order granting the dismissal,
The Property Settlement Agreement completely addresses all of the rights and liabilities of the parties. The settlement agreement was announced in Court and each party indicated that they understood and accepted the agreement as announced. The attorneys’ statements of the parties’ agreement on alimony, in announcing the same to the Court, was not a means of dispensing with proof on the alimony issue, but instead was a complete statement of the terms and conditions of the parties’ complete Property Settlement Agreement.
In Linehan v. Linehan, 8 Ark. App. 177, 179-80, 649 S.W.2d 837, 838-39 (1983), our court quoted the supreme court in explaining that there are two major types of alimony agreements and describing the differences between them:
In Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953), the Arkansas Supreme Court distinguished between the two major types of agreements for the payment of alimony, stating:
Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay |4a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Bachus [v. Bachus, 216 Ark. 802, 227 S.W.2d 439] case, it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.
The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon “the amount the court by its decree should fix as alimony”... A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with the proof upon an issue not in dispute, and by its nature it merges in the divorce decree.
In analyzing the facts before it in Linekan, our court rejected the husband’s argument that the stipulated agreement could not qualify as an independent contract because it was not in writing and was not signed by the parties. Our court reasoned,
Oral stipulations made in open court which are taken down by the reporter and acted upon by the parties and court are valid and binding. Such stipulations are in the nature of a contract. It is not necessary that an agreed statement of facts, admitted by the parties to be true in open court, should be signed by the parties or their attorneys. Contractual stipulations affect the subject matter of the lawsuit. They deal with the rights or property at issue and are styled stipulations only because they occur in connection with the litigation.
Id. at 180, 649 S.W.2d at 839 (citations omitted).
We have reviewed the cases cited by both parties, and agree with Timothy that the facts here are very similar to those in Linekan. There is no separate written agreement signed by the parties, as was true in Linekan, but the “Agreed Divorce Decree,” “approved as to form and substance” by counsel for both parties, states in its first paragraph that
the parties announced to the Court, through them respective attorneys, that a settlement of all issues to be presented in this case had been reached, and based upon the same, and otherwise being well and sufficiently advised in the premises, and further based upon both parties announcing to the Court, individually, that he/she |fiunderstood all of the terms of the settlement agreement, THIS COURT DOTH FIND AND OKDER[J
The decree designates with a separate heading the parties’ “Property Settlement Agreement,” with paragraphs four through thirteen contained in that section. Paragraph eight, as quoted previously, addresses alimony. The language throughout emphasizes the parties’ agreement.
While the trial court’s order granting dismissal does reference and quote from the docket sheet, we find no significant conflict between the docket entry and what is expressed in the decree itself, which was approved by both sides as to form and substance. With respect to Cynthia’s contention that “the mere fact the parties announced to the court they had reached an agreement on what the court should include in the decree is not tantamount to a separate, enforceable ‘property settlement agreement’ under Arkansas law,” we note the parties’ handling of their agreement in the instant case goes much further than Cynthia describes. Here, the parties’ settlement of property issues is more clearly a negotiated settlement of issues— set forth in a designated “property-settlement agreement” that the parties intended to be binding—than a mere agreement to stipulate to some issues to avoid putting on proof.
Affirmed.
Whiteaker and Brown, JJ., agree. | [
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PER CURIAM
| Appellant, Malik (Saba) Ka Makkali, also known as Gary Cloird, is incarcerated pursuant to a 1992 conviction for rape and theft of a van for which he was sentenced to thirty-five years’ imprisonment for rape and five years’ imprisonment and a $1000 fine for theft. The sentences were ordered to run consecutively. This court affirmed the convictions and sentences. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993). In 2002, Cloird’s petition to reinvest jurisdiction in the Jefferson County Circuit Court to consider a petition for writ of error coram nobis was granted by this court. Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002). The coram-nobis petition had alleged that DNA evidence taken from a vaginal swab of the victim had not been turned over to defense counsel in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Following a full hearing on the coram-nobis petition, the trial court found that the DNA evidence obtained from the vaginal swab would 12not have been exculpatory because the victim had testified that Makkali had orally raped her. We affirmed. Cloird v. State, 357 Ark. 446, 448-49, 182 S.W.3d 477, 478 (2004).
On July 28, 2015, Makkali filed in the trial court a petition for a writ of habeas corpus and a motion for the performance of DNA testing under Act 1780 of 2001 wherein he sought testing of the vaginal swab. The trial court dismissed the petition without prejudice because Makkali was not incarcerated in Jefferson County and the trial court found that it did not have jurisdiction to act on the habeas petition. We reversed and remanded, finding that jurisdiction of a habeas petition filed under Act 1780, codified at Arkansas Code Annotated section 16-112-201 to -208 (Repl. 2006), was properly brought in the Jefferson County Circuit Court where Makkali had been convicted. Makkali v. Kelly, 2016 Ark. 137, 2016 WL 1268525 (per curiam).
After the matter was remanded, Makka-li filed in the trial court on April 28, 2016, a motion to amend his original habeas petition to include, in addition to his request for DNA tests of the vaginal swab, a request for DNA testing of the following items: a shotgun; two screw drivers; a handgun; a toilet roll; and a bed sheet. In this motion, Makkali also sought fingerprint testing in connection with his conviction for stealing the van and for “fact testing” of phone bills in connection with stolen phone cards for which he had been convicted in a separate case. Makkali alleged that further tests of these phone bills would | «demonstrate that he had used the card to make phone calls forty miles away from the scene at the time the rape was committed.
On July 7, 2016, the trial court denied Makkali’s original petition for a writ of habeas corpus, as well as the motion to amend the habeas petition. The trial court concluded that the request for testing was untimely and was otherwise without merit as the DNA tests and fingerprint tests sought by Makkali would not exonerate him. Makkali filed a timely notice of appeal from the order on July 22, 2016.
Now pending before this court is Makkali’s motion for belated appeal and rule on clerk asking for leave to file a belated brief, which would constitute a motion to file a belated brief, as the appeal and record were both timely filed. We need not consider the request to file a belated brief because there is clearly no merit to the appeal. An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Crawford, v. Cashion, 2010 Ark. 124, at 2, 361 S.W.3d 268, 270 (per curiam). Because a review of the ha-beas petition, the motion to amend, and the pertinent records related to Makkali’s convictions conclusively demonstrate that Makkali could not prevail, we dismiss the appeal, and the motion seeking to file a belated brief is therefore moot.
Act 1780 of 2001, as amended by Act 2250 of 2005, provides that a writ of habe-as corpus can issue based on new scientific evidence proving a person actually innocent óf the Loffense for which he was convicted. Pankau v. State, 2013 Ark. 162, 5-6, 2013 WL 1694909. We have held that DNA testing of evidence is authorized under this statute if testing or retesting can provide materially relevant evidence that will significantly advance the defendant’s claim of innocence in light of all the evidence presented to the jury. King v. State, 2013 Ark. 133, at 4-5, 2013 WL 1279079 (per curiam). In addition, under section 16-112-202, the petition must identify specific evidence for testing that was secured as a result of petitioner’s conviction; the evidence must have been maintained subject to a chain of custody; and the petitioner must identify a theory of defense based on the new evidence that the requested testing would provide, and which would establish petitioner’s actual innocence. Clemons v. State, 2014 Ark. 454, at 5, 446 S.W.3d 619, 622. Furthermore, it must be shown that the proposed testing of the specific evidence would raise a reasonable probability that the petitioner did not commit the offense. Pankau, 2013 Ark. 162 at 5-6, 2013 WL 1694909; Ark. Code Ann. § 16-112-202(8). Finally, the amendments under Act 2250 created a number of other predicate requirements that must be met before a court can order testing under the Act. Hill v. State, 2016 Ark. 258, 3-4, 493 S.W.3d 754, 756 (per curiam). One of these predicate requirements applies to those petitioners who file a motion for testing more than thirty-six months after the entry of the judgment of conviction. Id. (citing Ark. Code Ann. § 16-112-202(10)(B)).
Makkali filed his petition for habe-as relief in 2015, more than twenty years after the judgment had been entered, and more than ten years after Act 1780 was first enacted. Therefore, a rebuttable presumption arose that the petition was untimely. Under section 16-112-202(10)(B), Makkali was therefore required to rebut this presumption by showing the following: (1) that the petitioner was or is incompetent, and the incompetence | ^substantially contributed to the delay; (2) that the evidence to be tested is newly discovered; (3) that the motion is not based solely upon the petitioner’s own assertion of innocence, and a denial of the motion would result in a manifest injustice; (4) that a new method of technology exists that is substantially more probative than was the testing available at the time of the conviction; or (5) other good cause. Hill, 2016 Ark. 258, at 3-4, 493 S.W.3d at 756 (citing Ark. Code Ann. § 16-112-202(10)(B)). Makkali’s petition contained nothing more than his own assertion of innocence, and his conclusory allegation of incompetence is belied by his history of litigation. Likewise, there is no showing that newly discovered evidence, manifest injustice, new testing methods, or good cause prevented Makkali from filing his petition within the thirty-six-month time limitation. Douthitt v. State, 366 Ark. 579, 581, 237 S.W.3d 76, 78 (2006) (per curiam).
Notwithstanding Makkali’s failure to rebut the presumption that his petition is untimely, Makkali had failed to establish that additional testing would significantly advance his claim of innocence. A review of the trial record reveals that Makkali was tried with co-defendants, Kurt Morris and Roosevelt Burton, for the rape of the victim who described being raped by multiple assailants. According to the victim, she had met Morris and Burton at a bar and later accepted a ride from them to another local bar. Instead of driving to the!(¡bar, Morris and Burton drove the victim to a trailer in Humphrey, Arkansas, where, over a period of several hours, the victim was repeatedly raped by Morris and Burton in what the victim described as the first of three bedrooms in the trailer. The victim testified that while she was being held and assaulted by Morris and Burton, Makkali entered the trailer where he orally raped her in a second bedroom. The victim’s testimony was corroborated by the testimony of Tre-maine Parker, a friend of Makkali, who testified that Makkali had admitted to stealing the van and also admitted to orally raping the victim. In addition, the co- defendant Burton had confessed to the crimes and in that confession had identified Makkali as “the man from the van” who had participated in the assault by forcing the victim to engage in oral sex. Finally, an investigating officer testified that Makkali admitted to her that he had stolen the van and was present in the trailer during the relevant time period. On cross-examination, defense counsel elicited testimony from investigating officers that no physical evidence had been developed from either the van or the trailer that connected Makkali with the crimes.
In view of the victim’s testimony, Mak-kali failed to establish that DNA testing of the vaginal swab would provide evidence material or relevant to his claim of innocence. We previously held that tests on the vaginal swab at the time of his trial would not have been determinative of any oral contact between Makkali and the victim. Cloird, 357 Ark. at 454, 182 S.W.3d at 478 Thus, any additional DNA testing of the vaginal swab would not give rise to a reasonable probability that Makkali did not commit the offense for which he was convicted. Ark. Code Ann. § 16—112— 202(8)(B).
17With respect to Makkali’s additional requests for DNA testing of a shotgun, screwdrivers, a handgun, a toilet roll, and a bedsheet, he failed to allege sufficient facts establishing that these items are in the possession of the State or have been retained under conditions ensuring that the evidence has not been substituted, tampered with, replaced or altered in any respect. Ark. Code Ann. § 16-112-202(4). To the extent that these items had been collected and retained by the State, Mak-kali did not demonstrate that testing these items had the potential to provide evidence that would significantly advance his claim of innocence in light of all the evidence presented to the jury. King, 2013 Ark. 133, at 4-5.
The victim testified that Morris and Burton had threatened and assaulted her with a handgun, screwdrivers, and a shotgun, but there was no testimony from the victim that Makkali handled any of the weapons connected with the crimes or that he came in contact with a toilet roll. Furthermore, DNA testing of a bedsheet taken from the crime scene would have no potential to provide exonerating evidence in view of the testimony at trial which established that this bedsheet came from the first bedroom where the victim stated she had been raped by Morris and Burton. Investigators testified that there were no sheets on the bed in the second bedroom where the victim testified that Makkali had orally raped her.
Makkali’s requests for fingerprint testing in connection with his conviction for stealing the van and for additional “fact testing” of phone bills related to stolen calling cards also failed to meet the requirements of Act 1780. Makkali did not specify what item or items were to be subjected to additional fingerprint testing as required by Arkansas Code Annotated section 16-112-202(4). In any event, trial testimony established that Makkali’s Isfingerprints had not been recovered from the stolen van. The absence of fingerprint evidence did not overcome the strong testimonial evidence supporting his conviction in the first instance and any further testing would likewise fail to advance his current conclusory claim of innocence. King, 2013 Ark. 133, at 4-5.
Equally unavailing was Makkali’s allegation that “fact testing” certain calling-card bills would establish that he was at a phone booth located forty miles away at the time the victim had been raped. First, Makkali did not specify what method of “fact testing” is available that was not available at the time of his trial, that is reasonable in scope, and that utilizes scientifically sound methods that are consistent with forensic practices. Ark. Code Ann. § 16-112-202(5). Second, the testimony at trial established that Makkali’s friend, Tre-maine Parker, had been given access to the numbers on the stolen cards and Parker testified that he had made numerous calls using those numbers. Again, to the extent that the phone bills were retained by the State and are available for further testing, Makkali did not explain how such testing would identify whether Makkali or Parker had used the calling cards at certain locations within specific timeframes.
Appeal dismissed, motion treated as motion to file a belated brief moot.
. Before being tried and convicted of rape and theft of a van in August 1992, Makkali was convicted of theft of property and residential burglary on July 15, 1992, in a separate case, Jefferson County Circuit Court No. 35CR-92-125.
. The trial court also substituted the State of Arkansas as the proper respondent pursuant to Arkansas Code Annotated section 16—112— 203(a) (Repl. 2006).
. Makkali filed pro se challenges to his conviction in state and federal court, including the petition for coram-nobis relief filed in 2002 that is cited above, as well as a petition for a writ of habeas corpus filed pursuant to Arkansas Code Annotated sections 16—112— 101-123, the denial of which was affirmed by this court. Cloird A/K/A Saba Ka Makkali v. State, 353 Ark. 155, 114 S.W.3d 756 (2003) (unpublished per curiam). More recently, Makkali filed a federal petition for a writ of habeas corpus that was denied by the federal district court. Makkali v. Hobbs, No. 5:31CV002-01, 2013 WL 6231113 at 3 (E.D. Ark. Dec. 2, 2013). | [
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Mehaeey, J.
Appellants seek to reverse the judgments in this cause on the theory that the trial court erred in excluding- certain testimony.
Appellee and the four appellants had 'been interested in the Old Safety National Life Insurance Company. In 1930, $3,000 was borrowed from the Interstate National Bank of Helena by one of the appellants. The note was indorsed by all of the appellants, and by appellee. It is conceded that funds realized from the loan were used by the insurance company. In December of the year the note was executed, the Interstate 'Bank failed; and in 1937, the receiver declined to extend further time for payment. Suit was filed in federal court. All of the parties to this appeal were named defendants, and were duly served with process.
Appellee testified that he informed appellants he did not want a judgment to he rendered against him, and he proposed that if appellants would pay $100 and execute their note for $2,797.71, he (appellee) would pay the Interstate Bank obligation. Appellants were to discharge the note through weekly payments of $20. An agreement to this effect was consummated and the note was executed. Beginning October 14, 1937, $20 payments were made until January 3, 1938, at' which time they were discontinued.
Appellee, on cross-examination, was asked whether he and appellants did not endeavor to arrange for payment of the note from funds of the insurance company. The question was objected to on the ground that an affirmative answer would contradict the terms of the written obligation. The objection was sustained, and exceptions were saved. It was admitted by appellee that the payment of $100 was from insurance company funds, and that the insurance company made the $20 payments amounting to $200.
Two of the appellants offered testimony that they had been discharged in bankruptcy, and that they had listed the Interstate Bank debt with their liabilities. The court held that, inasmuch as the new note was given subsequent to such discharge, the plea was Unavailing-
Appellants direct attention to. McClintock v. Skinner & Company, 126 Ark. 591, 191 S. W. 230, where it was held that, although recitals, and the expressed considerations in a deed or mortgage cannot be contradicted by parol evidence to defeat the conveyance, such testimony is competent to show that the considerations have not been paid as recited, “or to establish the fact that other considerations not recited in the deed were agreed to be paid., when it does not contradict the terms of the writing.”
It is urged that the instant case . . . “falls squarely within this rule, as the writing is not contradicted by [the testimony offered], the amount of the payment is not questioned, or the installments, hut only as to where payment was to come from.”
Reliance is also placed upon Vinson v. Wooten, 163 Ark. 170, 259 S. W. 366, where parol testimony was admitted to show that Wooten’s original obligation to Yin-son (evidenced by a note) was subsequently expressed in a note payable to Mrs. Yinson — Vinson having died. Wooten testified that Vinson borrowed from a bank and that he (Wooten) indorsed Vinson’s note with a contemporaneous understanding that any payments made by Wooten on such note should be treated as credits on Wooten’s obligation to Vinson. When sued by Mrs. Vinson, Wooten pleaded payment! Exceptions were saved to the admission of this evidence, but on appeal the judgment in Wooten’s favor was affirmed.
In the instant case there is no contention that the note has been paid, other than to the extent of credits shown. To meet appellants ’ point of view, we are asked to hold, in effect, that parol testimony was admissible to show that, in personally paying the bank obligation as to which all of the parties were liable, there was an agreement that appellants were not be personally liable on the note they executed in favor of appellee, but that assets of the Old Safety National Life Insurance Company were to be looked to exclusively as the source from which payment should come.
We are of the opinion that the testimony does not sustain this theory.
Appellee testified on cross-examination that he and the appellant Isaacs .. . “ tried to malee arrangements for payment of the note out of the funds of the Old Safety National Life Insurance Company at the rate of $20 per week.” To this testimony appellee’s counsel interposed the objection: “There is absolutely nothing in the face of the note, which has been testified on, .to show that the Old Safety National Life Insurance Company would be looked to for payment.” The objection was.sustained. However, the appellant Isaacs testified that . . . “at the time the note was signed [there was! an understanding with Mr. Keeshan relative to it, the understanding being that the [insurance] company would pay it out of the funds of the company at the rate of $20 per week. ’ ’ The jury was instructed to disregard this testimony. At the conclusion of all the testimony, the court directed that a verdict be returned for the plaintiff.
If it he conceded the 'testimony was admissible to show that the parties intended the insurance company should be primarily liable, still, there is nothing in the record to show that the corporation assented, unless the fact of partial payment be regarded as such; nor is there any affirmative testimony that the individuals were to be excused. Such evidence, if available, could have been brought into the record for the purpose of appeal, regardless of the trial court’s action in excluding it from the jury.
It is urged that appellee, having been one of the original obligors equally liable with appellants, should not be permitted to change his position by accepting the note of appellants. This is a suit at law, and contributions between the parties cannot be determined according to the principles of equity. No motion to transfer to chancery was made.
The court did not commit error in refusing to permit the two appellants who had been discharged in bankruptcy to plead want of consideration. The moral obligation was sufficient to support the new promise to pay. Fonville v. Wichita State Bank & Trust Co., 161 Ark. 93, 255 S. W. 561, 33 A. L. R. 125.
The judgments are affirmed. | [
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Humphreys, J.
This is a suit by appellee, a passenger, against appellant, a common carrier, to recover damages sustained by him by reason of appellant’s failure to carry him safely to his destination.
Appellant defended upon the ground that, although it failed to safely carry appellee to his destination, he, the passenger, failed to exercise ordinary care to prevent the alleged injury and damage which he suffered.
The cause was submitted to a jury upon the complaint, answer and testimony introduced by the respective parties which resulted in a verdict and judgment against appellant for $100.16, from which is this appeal.
The testimony introduced by the respective parties contains little or no dispute. The record, in substance, reflects that appellee resided at Keeville, Ark., and decided to make a visit to Ms daughter who resided near La Grange Junction, Ark., located about nine miles south of Marianna. On the morning of September 25, 1907, he took the Greyhound bus from. Keeville to Brinkley where he purchased a ticket costing $1.06 from appellant ’s agent over the Central Arkansas Bus Line to Mari-anna and over the bus line of appellant from Marianna to La Grange Junction. Under the schedule of the busses of the carriers appellee was to change busses at Oursler’s Filling Station in Marianna which was also a bus station. He alighted from the bus upon which he arrived and waited about thirty minutes for the arrival of appellant’s 'bus from Memphis to Helena which he was to take in order to go by La Grange Junction, which was between Marianna and Helena. The bus he was to take arrived from Memphis on or about schedule time and stopped at the bus station where he was waiting and he presented his ticket to the bus driver who refused to allow him to enter the bus saying that, he was not going by La Grange Junction, but had been routed around by Moro and other towns to Helena.
According to appellee’s testimony and the testimony of a disinterested witness by the name of W. T. Gwinn, the bus driver made no further explanation and made no suggestion to appellee as to any other mode of transportation from Marianna to La Grange Junction. It was then in the neighborhood of one o’clock p. m. and without making any inquiry as to other available trans.portation to his destination from anyone else or from any other agent of appellant he concluded to walk the rest of the way, a distance of nine miles and did so carrying his valise and a 'bundle or package which weighed about fifty pounds. The road from Marianna to La Grange Junction was constructed out of gravel part of which was covered with blacktop. Appellee had no acquaintances in Marianna. It was a chilly day and a drizzling rain was falling. Appellee was a day laborer about sixty-two or three years of áge.. He had suffered a little with rheumatism. He had recently been engaged in pick- iug cotton at fifty cents a hundred and generally picked two-hundred and fifty pounds a day. After buying his ticket at Brinkley he had only three or four dollars left in his pocket. He arrived at his destination late in the afternoon, almost sundown, in a fatigued condition and was unable to walk or do anything for about three weeks, was .just up and down in bed during that time, and was cured by the use of home remedies, but had to spend about $3 for medicine during the time he was unable to work. He testified that the walk with the heavy load he had to carry brought about a recurrence of his rheumatism and his suffering and illness for about three weeks.
The bus driver testified that he told appellee that on account of rain the night before he was routed by Moro and would not go to La G-range Junction. He also testified that on the 24th the bus went by La Grange Junction and that sometimes he went that way and sometimes the other way on account of repairs being made on the road through or by La Grange Junction.
W. C. Oursler, Jr. testified that sometimes the agent at Memphis notified him not to sell tickets to La Grange Junction when the bus .was routed around by Moro, but that he did not know what instructions were given to the agent at Brinkley about selling or not selling tickets to or through places to or through which the bus did not run. Oursler also testified that sometimes when the bus was detoured around by Moro he would send passengers over to La Grange Junction who had purchased tickets to that point by private car and that had appellee seen him or made such a request he would have gotten a man who worked for him individually to take appellee over to La Grange Junction as he went home that way about five o’clock in the afternoon and there would have been no extra charge to appellee for that service.
There is no serious contention made that appellant was without fault in selling appellee a ticket over its bus line to a point where it did not stop. This was negligence on its part rendering it responsible for any damages to the passengers which might result from such negligence or wrongful conduct. The bus driver was told by the routing agent at Memphis early the morning of the 25th that he must go around by Moro instead of by or through La Grange Junction and there was ample opportunity for the routing agent in Memphis to notify the agent at Brinkley not to sell any passenger a ticket who was going to La Grange Junction. We also think, after selling such a ticket, it was the duty of appellant to have made some provision to take care of passengers and transport them from Marianna to La Grange Junction. In the instant case there was no effort made to take care óf passengers who had 'bought tickets to La Grange Junction, but such passengers were simply notified that the bus was not going to La Grange Junction that day leaving the passenger or passengers to get to his or their destination as best he or they could without aiding him or them. We think this was clearly negligent conduct on the part of appellant equal to that of selling a ticket to a point at Avhich the bus would not stop.
The contention of appellant is, however, that appel-lee should not recover for the injuries he sustained because it was his duty in the exercise of ordinary prudence under the circumstances not to undertake to walk from Marianna to La Grange Junction and that such injuries that he suffered were the direct result of his' own negligent act.
Appellant is asking this court to say as a matter of law that appellee should not have undertaken the journey on foot. We are not willing to say this as a matter of law because the jury could have reasonably found, from the evidence that appellee was used to outdoor life and in the exercise of ordinary prudence might have undertaken the trip without certain harm or injury to himself. The road was not a difficult one to walk over being partly blacktop and partly gravel and the testimony as to the inclemency of the weather is that it was drizzling rain and a little chilly. Appellee was a laboring man and able to pick two-hundred and fiifty pounds of cotton a day. Just before taking the trip he had been picking cotton at fifty cents a hundred and picked on an average of two-hundred and fifty pounds a day. In view of his ability to do bard labor and tbe desire on bis part to save tbe few dollars be bad in bis pocket, we cannot and are not willing to say as a matter of law that appellee was negligent in undertaking to walk a distance of nine miles over a good road to his destination. We do not think any duty rested upon him after be had been refused admittance to tbe bus on which he had a right to ride to bis destination under tbe provisions of his ticket to go out and hunt up private transportation if be felt able to walk tbe distance. The little rheumatism be bad bad prior to that time did not interfere with the performance of labor on bis part, so the fact that be had a touch of rheumatism occasionally could not be taken as proof conclusive that he should not have undertaken the journey on foot. Of course, if we could say as a matter of law it ivas folly pure and. simple on the part of ap-pellee to take the journey on foot, then it would necessarily follow that his oavu acts of negligence were the direct cause of his injuries. We think the jury may have reasonably found that appellee acted as an ordinarily prudent person would have acted under the circumstances. Had he been decrepit or an invalid the undertaking would have been the undertaking of an imprudent, person, but appellee was neither an invalid or a decrepit person. On the contrary he was in good' health and an able-bodied man, and we do not think he must have foreseen as a prudent man that such a trip would necessarily put him to bed and injure his health.
There is no contention that the injuries he sustained did not entitle him to the modest judgment of $100.16.
No error appearing, the judgment is affirmed. | [
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DAVID M. GLOVER, Judge
li Thomas Watson appeals the Sebastian County Circuit Court’s order terminating his parental rights to his daughter, J.W., born September 13, 2006. He argues the trial court erred in terminating his parental rights because the Arkansas Department of Human Services (DHS) failed to prove termination was in J.W.’s best interest. We affirm.
In January 2014 DHS filed a petition for emergency custody and dependency-neglect on J.W. and J.R.1. A seventy-two-hour hold was placed on the children after Autumn Watson (J.W.’s mother) and Jerry Rogers (Autumn’s boyfriend) were arrested on various drug charges and a child-endangerment charge at the home where they lived together. |aWatson was identified as J.W.’s father, but his address was unknown. An ex parte order granting DHS custody was entered on January 6, 2014. A probable-cause order was filed on January 24,2014, continuing custody of the children with DHS; Watson was not present at the hearing, but the order stated it was believed he was on parole and living in Fort Smith, Arkansas. Watson’s mother, Melissa Watson, was present at the probable-cause hearing, and DHS was directed to explore the appropriateness of placing the children with her as a temporary placement option.
The children were adjudicated dependent-neglected in an order filed April 9, 2014. Watson was present at this hearing, having been transported to the hearing from the Sebastian County Adult Detention Center. In that order, the circuit court noted Watson’s extensive criminal record, as well as the fact he was a fugitive from justice at the time of J.W.’s removal from Autumn. The circuit court refused to award Watson visitation due to his incarceration; ordered Watson to notify DHS when he was released from incarceration and to provide his contact information; and directed Watson to resolve all criminal charges and comply with the terms of his criminal sentences.
In a review order filed on August 19, 2014, the circuit court noted Watson was in prison on a parole revocation. That order instructed Watson to comply with the rules at the facility where he was housed so that he did not incur disciplinary actions that prolonged incarceration; to notify DHS upon his release so a staffing could be scheduled to assess his |sneed for services; to avail himself of all self-help services during incarceration; and to comply on release with all terms and conditions of his release. The circuit court ordered Watson to have no contact with J.W. until approved by DHS following a staffing.
A second review hearing was held on August 20, 2014, and in an order filed October 29, 2014, the circuit court found that the juveniles had begun a trial home placement with Autumn Watson on June 19, 2014, the children were doing well in that trial placement, and it was in their best interest to return custody to Autumn effective August 20, 2014. Watson was incarcerated at the time of this review hearing. The circuit court ordered him to have no contact with J.W. until approved by DHS; to remain clean and sober; to submit to random drug screens; to comply with the terms of his criminal sentence; and to comply with the terms and conditions of his release from incarceration.
A second petition for emergency custody and dependency-neglect was filed on January 26, 2015, after custody had been returned to Autumn. In this petition, Watson, who was still married to Autumn, was stated to be J.W.’s father and believed to be the legal father of J.R.l and J.R.2. The affidavit attached to the petition alleged that the three children were removed from Autumn’s custody on January 21, 2015, on a seventy-two-hour hold because she allowed Rogers to reside with her in contravention of court orders, as well as Michael Smith, a parolee who was wanted in connection with a stabbing and robbery in Oklahoma, and because drug paraphernalia and unmarked pill bottles were in 14the house. An ex parte order granting emergency custody to DHS was entered the same day. A probable-cause order was filed on March 13,2015, continuing custody of the juveniles with DHS, noting that the whereabouts of Watson were unknown and that Watson was still legally married to Autumn and was therefore the legal father of all three children, with Jerry Rogers being the putative father of J.R.l and J.R.2. A review hearing was held on July 8, 2015, continuing custody with DHS; the goal of the case continued to be reunification with Autumn, with a concurrent goal of adoption. The parents were ordered to obtain and maintain stable housing, employment, income, and transportation; to submit to random drug screens; to get clean and sober and remain so; to notify DHS of any significant changes or events; to resolve any outstanding criminal matters; and to keep DHS apprised of current contact information. The circuit court found that Watson had not complied with the case plan or with prior court orders, and it refused to allow him contact with J.W. until he appeared before the court and was assessed for services.
A permanency-planning hearing was held on December 2, 2015. In an order filed on May 18, 2016, the circuit court continued custody with DHS and changed the goal of the case to adoption. Watson was not present at this hearing; the circuit court noted he had not complied with the case plan or with prior court orders.
A petition for termination of parental rights was filed on May 4, 2016. As for grounds to terminate parental rights as to Watson, it was alleged that (1) as a noncustodial parent, and despite a meaningful effort by DHS to rehabilitate him and correct the conditions that prevented J.W. from being safely placed in his home, the conditions had not been remedied; (2) Watson had abandoned J.W.; (3) other factors arose subsequent to the filing of the | ^petition for dependency-neglect that demonstrate the placement of J.W. in Watson’s custody was contrary to her health, safety, and welfare; (4) Watson had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of J.W.’s life; and (5) Watson had subjected J.W. to aggravated circumstances, as there was little likelihood that services to the family would result in a successful reunification. It was further alleged that it was in the best interest of J.W. for parental rights to be terminated.
A review hearing was held on May 18, 2016; Watson was present, having been transported from the Arkansas Depart-, ment of Correction for the hearing. By agreement of the parties, Watson and his attorney were served with copies of the petition for termination in open court and waived all further service of process. The review order stated that the goal of the case was adoption, noting Watson had been incarcerated off and on throughout the pendency of the case, and during the times of his release, his whereabouts would remain unknown until his next arrest; Watson had not complied with the case plan or court orders when he was not incarcerated; and the three children were in a kinship placement with J.W.’s paternal grandfather.
The circuit court entered an order on January 25, 2017, terminating the parental-rights of Watson, Autumn Watson, and Rogers. As to Watson, the circuit court granted termination of his parental rights on all five bases alleged in DHS’s petition for termination of parental rights. As to best interest, the circuit court found the children were adoptable and would be at risk of physical and psychological harm if returned to Watson due to his long periods of incarceration, multiple convictions, longstanding criminal abuse, and/or criminal activity. Furthermore, the circuit court found Watson had failed to show any Ininclination or ability to develop a lifestyle that would provide safety or stability for a child; he had not had any significant contact with J.W, in years; and there was no evidence he had appropriate housing, employment, income, or transportation.
Melissa Dancer, the primary caseworker, testified at the termination hearing. She stated that Watson was incarcerated when the children were first taken into DHS custody, and while he had been incarcerated on several occasions' during the case, she had “absolutely no interaction” with him during the times he was out of prison because he never contacted her; and she was unaware of any evidence Watson could be successfully reunified with J.W. during a reasonable period of time if provided with additional time or services. Dancer testified J.W. would be at risk of potential harm if returned to Watson’s custody due to his criminal history and the activities in which Watson engaged on release from prison. She further expressed that she believed J.W. was adoptable; that all three children were placed together; and that .the foster parents had stated a desire to adopt all three children had been if they became available. Dancer testified J.W. never asked her for visits with Watson.
Watson testified that he was currently in prison on a parole violation, but he was “flattening [his] time out” at the end of November 2017. He asserted that while he was out of prison, he had contact with J.W. “all the time”; that he paid child support, just not through the court, as he was not legally obligated to pay child support because he was still married to Autumn; that he was unable to provide for J.W. while he was incarcerated; but that when he got out of prison, his plans were to finish his degree, finish barber college, and obtain his barber license. Watson said he knew he had made mistakes, but he believed it was in J.W.’s best interest for his parental rights not to be terminated and for the children to be placed with his family.
Sufficiency of Evidence
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the children. Norton v. Arkansas Dep’t of Human Servs., 2017 Ark. App. 285, 2017 WL 1948236. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juveniles will be adopted and of the potential harm caused by returning custody of the children to the parent. Id. Each of these requires proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established. Id.
Appellate review of termination-of-parental-rights cases is de novo, and our inquiry on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Wallace v. Arkansas Dep’t of Human Servs., 2017 Ark. App. 376, 524 S.W.3d 439. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made, Id.In resolving the clearly erroneous question, a high degree of deference is given to the circuit court, as it is in a far superior position to observe the parties before it and to judge the credibility of witnesses. Id.
Watson does not contest the grounds found by the circuit court for términation of his parental rights, nor does he challenge the adoptability aspect of the best-interest analysis. He challenges only the potential-harm finding. The circuit court was not required to find that actual harm would occur if the child was returned to the parent, nor was it required to affirmatively identify a potential harm. Miller v. Arkansas Dep’t of Human Servs., 2017 Ark. App. 396, 525 S.W.3d 48. Evidence regarding potential harm must be viewed in a forward-looking manner and considered in broad terms; past behavior may be considered as a predictor of potential harm that may likely result if the child were returned to the parent’s care and custody. Wallace, supra.
Watson cites Cranford v. Arkansas Department of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851, in support of his argument that the circuit court erred in finding J.W. would suffer potential harm if returned to him. However, there are factual differences between the present case and Cranford.
In Cranford, the maternal grandparents had custody of the child, and the grandmother testified she wanted the child to have continued contact with his parents, as she believed this was in his best interest. The parents in Cranford were making strides toward becoming better parents. Here, the paternal grandparents did not have custody of J.W.; rather, they were her foster parents, and they had expressed an interest in adopting J.W. and her half-siblings. Furthermore, unlike the parents in Cranford, Watson was not making progress in becoming a better parent for J.W., as evidenced by his lack of involvement during the pendency of this case. At the termination hearing, Watson was still incarcerated and would remain in prison until at least November 2017. Furthermore, one of the bases on which |3the circuit court terminated Watson’s parental rights was that he had subjected J.W. to aggravated circumstances; specifically, there was little likelihood that services to the family would result in a successful reunification. Watson did not appeal this ground to support termination of his parental rights.
Watson’s case is more akin to Brumley v. Arkansas Department of Human Services, 2015 Ark. 356, 2015 WL 5895440. As in Brumley, Watson has been incarcerated for much of J.W.’s life, and other than his own self-serving testimony, there was no evidence Watson had a relationship with his daughter. As in Brumley, the stability and reasonable hope of reunification found in Cranford is clearly lacking in the facts of the present case. Permanency is the objective of termination proceedings, and it cannot be lightly discounted. Brumley, supra.This evidence of potential harm, coupled with the circuit court’s unrefuted finding that J.W. is adoptable, supports the circuit court’s ruling that termination of Watson’s parental rights is in J.W.’s best interest.
Affirmed.
Virden and Murphy, JJ., agree.
. The parental rights of J.W.’s mother, Autumn Watson, were also terminated in this order as to J.W. and J.W.'s half-siblings, J.R.l and J.R.2, but she is not a party to this appeal.
. J.R.2 was not yet born.
.Autumn was still married to Watson; because they were married, Watson was named as J.R.l’s legal father although Autumn identified Rogers as J.R.l’s biological father because Rogers had not established paternity at that time.
. J.R.2 was bom on June 10, 2014. Rogers was alleged to also be J.R.2’s biological father. Genetic testing revealed Rogers is, in fact, the biological father of both J.R.l and J.R.2.
. During closing arguments, DHS: counsel clarified that Watson's parents were the foster parents of all three children, but they did ’not have custody of the children. | [
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Mehaffy, J.
The appellee, an insurance company engaged in writing’ insurance and surety bonds, instituted this suit in the Pulaski circuit court against the appellant, alleging that in 1933 the appellee became surety upon the official bond of Austin Murphy, who was the duly qualified and elected treasurer of Jackson county, Arkansas; the bond was for a period of two years; during Murphy’s term in office, he issued certain warrants that were void under Amendment No. 10 to the Constitution; said warrants constituted no legal obligations, and the claim for which said warrants were issued were unenforceable against the county; in 1936, the state of Arkansas instituted suit against the appellee for the use and benefit of Jackson county and Murphy, the treasurer, was made defendant in said suit. In June, 1936, judgment was rendered in favor of the state against Austin Murphy and the appellee for the amount of said warrants and assessed $5 prosecuting attorney’s fee on each warrant;' there were two warrants; the appellee was required to pay said judgment and alleges that it was subrogated to any and all rights which Jackson county and Austin Murphy had against appellant. Judgment was asked for $401.79 with interest.
Appellant filed a demurrer on the ground that the complaint did not state facts sufficient to constitute a valid cause of action.
The appellant filed motion to transfer the cause to equity, and the cause was transferred. The following is an agreed statement of facts: “It is herein stipulated and agreed by and between the parties herein that the following constitute the material facts of this controversy :
“1. The plaintiff is a corporation engaged in the writing of fidelity and surety 'bonds and is authorized to do business in the state of Arkansas.
“2. The defendant is a corporation organized under the laws of the state of Arkansas and has been properly served with process in this action.
“3. On or about January 1, 1933, the plaintiff became surety on the bond of Austin Murphy, who was the duly qualified and elected treasurer of Jackson county, Arkansas. The term of said bond was for a period of two years. Plaintiff was duly compensated for the execution of said bond.
“4. On January 6, 1933, Jackson county general revenue warrant No. 21, in the sum of $204.79, was issued by the clerk of Jackson county to the defendant for services duly rendered by the defendant to Jackson county, Arkansas. On February 9, 1933, Jackson county general revenue warrant No. 632, in the sum of $362.44 was issued'to the defendant by the clerk of Jackson county in payment of services duly rendered Jackson county by the defendant. Order of allowance of warrant No. 21, is found in book O, p. 338, and of warrant No. 632 is found in book 0, p. 362.
“5. On May 6, 1933, the defendant delivered to A. Gr. Albright, sheriff and collector of Jackson county, Arkansas, the said warrants Nos. 21 and 632 in part payment of taxes owed by the defendant. Albright issued his official receipt on May 8, 1933, and delivered same to the defendant. The said Albright in his monthly settlement with the treasurer of Jackson county duly delivered the two said warrants to the treasurer which were accepted by the said treasurer, and credit given the collector on July 3, 1933.
“6. Warrant No. 21 was void for the reason that it was issued in contrávention of Amendment No. 10 to the 'Constitution of the state of Arkansas, in that the indebtedness upon which the order of allowance was made was contracted after all the revenues for the fiscal period involved had been exhausted. Warrant No. 632, in the' amount of $362.44, was valid in the sum of $175.44, and held void in the sum of $188, for the reason that it was issued in contravention of Amendment No. 10 to the Constitution of the state of Arkansas, in that the orders of allowance upon which said warrant was issued, and the indebtedness upon which the orders were made had been contracted after all the revenues for the fiscal period involved had been exhausted.
“7. The defendant had duly tendered the services for which the warrants were issued in payment, and accepted said warrants in good fáith and with no actual knowledge of the condition of the treasury of Jackson county. Austin Murphy acted in good faith in said transaction, with no knowledge of the invalidity of the warrants.
“8. During the year, 1936, the state of Arkansas instituted separate causes of action in the Jackson county circuit court upon each of the foregoing warrants and named the said Austin Murphy and the plaintiff herein, for the total amount of $391.79, and in addition, assessed as costs $5 prosecuting attorney’s fees for each warrant. Said judgment was duly paid by plaintiff herein. ’ ’
The appellant answered admitting the facts set forth in the agreement; states that it had duly rendered the services, and that it accepted the warrants in good faith with no knowledge of the condition of the treasury of Jackson county. It denied that plaintiff was entitled to recover, and stated that the contract was for a purpose Avhich was valid and binding on said county, and that having issued the warrants which were paid by the treasurer, it or any person claiming under or through subrogation, assignment, or otherwise, is now estopped from recovering said sums from appellant.
The chancellor entered a decree in favor of the ap-pellee against the appellant for the amount sued for, and the case is here on appeal
This court has held that the doctrine of subrogation is an equitable one, having for its basis the doing of complete and perfect justice between the parties, with regard to form, and its purpose, and object is the prevention of injustice.
Amendment No. 10 of the Constitution prohibits the county court, levying board, or agent of any county from mailing or authorizing any contract or making any allowance for any purpose whatsoever, in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made. It also prohibits the county judge, county clerk or any other county officer to sign or issue any script, warrants, or make any allowance in excess of the revenue from all sources for the current fiscal year.
Appellant says in its answer that the contract was for a purpose which was valid and binding on said county, and that said county, having issued said warrants which were paid by the treasurer, it or any person claiming under it through subrogation, assignment or otherwise, is estopped from recovering said sums.
In the first place, there was no contract, because the constitution prohibits the making of a contract; moreover, it could not make a contract for any purpose or sign a warrant or pay money if said contract or warrant was in excess of the revenues for that year.
The appellant refers to a number of authorities, and it may be said that the authorities are not in harmony. Some courts hold that there is no liability if the person sought to be charged did not have actual knowledge of the invalidity of the claim. It is generally held, however, that if the party sought to be charged has either actual or constructive notice, this is sufficient. This is not like a case where a contract has been made which was authorized by law, but not valid because of some defect; but in the instant case there not only was no contract, but the making of a contract, the making of an allowance, or the issuing of a warrant, was absolutely prohibited, so that when the appellant received these warrants, it received absolutely void warrants.
One authority to which attention is called by the appellant is 60 C. J. 764. That provides that when the surety had made good the default of the principal the surety will be subrogated to the rights of the beneficiary or obligee against a third person who has received the trust property with notice or without value, or who with knowledge, had participated in the breach of trust, etc.
In the same volume referred to, on page 760, it is said: ‘ ‘ The generally accepted rule seems to be that, where, because of the character of the debt, or the character or status of the creditor; the law accords a right of priority to the debt, or some particular remedy or privilege in connection with its enforcement, a surety for the debt, who has paid the same, will be subrogated to such right of priority, special privilege, or remedy, even as against a co-surety or his estate. Thus a surety for a debt owing to a state, the United States, or the crown, will usually be subrogated to the sovereign right to have prior payment from the estate of the principal.’'’
No distinction is made between compensated and gratuitous sureties.
“Thus, where the sureties of a public officer have made good a loss occasioned by their principal’s default or misconduct in the collection of a debt, it has been generally held that they are entitled to be subrogated to the rights of the obligee against those persons who were originally liable for such debt. ” 25 E. U. L. 1332.
The warrants received by_appellant were worthless papers, and if it sold electricity or any commodity to a county at a time when the county’s revenues for that year had been exhausted, it did so at its peril and could not collect from the county. "When it received the warrants from the county which had been issued in excess of the revenue, the county had a right to recover from it the amount so received, and if the surety was compelled to pay this, it is subrogated to the rights of the county.
It was said in the case of Clark v. School Dist. 16, 84 Ark. 516, 106 S. W. 677: “Although the treasurer illegally pays the warrant for such services, he may, when his mistake is discovered, recover the same back into the treasury. ’ ’
If one could enforce the collection of warrants issued after the funds were exhausted, this would nullify Amendment No. 10.
The appellee had a right to recover, and the judgment is affirmed. | [
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McHaney, J.
Appellant brought this action to have declared void a tax forfeiture and sale to the state of 80 acres of land in Jackson county which occurred in June, 1933, for the taxes of 1932; to cancel a donation certificate aiid a donation deed from the state to appel-lee, the latter dated May 3, 1939; and to recover the possession of said land from appellee. The complaint alleged the invalidity of the forfeiture and sale to the state because the quorum court of Jackson county levied a tax of 1/10 mill for the Crippled Children’s Home and Hospital which was in excess of the constitutional limit of 5 mills for all county purposes which had been levied. It was also alleged that the donation certificate and the donation deed to appellee were void because the land was improved and had more than $200 in improvements on it and was not subject to donation; that false and fraudulent statements were made by appellee, the county judge, circuit clerk and surveyor in making proof to get the donation deed from the state; and that appellee was his tenant, and, as such, could not acquire her landlord’s title. The prayer was, among* other things, that he have judgment for the possession of said lands, and for writs of assistance to place him in possession. Appellee demurred to this complaint, which was overruled, as was also a motion to make more definite and certain. She then moved to dismiss for failure of appellant to file an affidavit of tender of taxes and improvements on or before filing his complaint, as required 'by § 4663 of Pope’s Digest, or suffer dismissal of the action as provided by '§ 4664. The court sustained this motion. Appellant declined to plead further and his complaint was dismissed. There is here an appeal and a cross-appeal.
We think the court erred in sustaining the motion to dismiss and in dismissing the complaint for failure to file the affidavit of tender.
The complaint alleged that the quorum court levied a tax of 1/10 mill for the Crippled Children’s Home and Hospital in addition to the 5-mill constitutional limit for county purposes, which was admitted by the demurrer, and we held in the recent case of Sherrill v. Faulkner, 200 Ark. 1006, 142 S. W. 2d 229, that a tax levy in excess of five mills for county purposes was void and that a sale of land for such a tax was void, citing Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251. In the latter case it was held that, a sale of land for taxes which included the three-mill road tax, which had not been voted by the people, was void for want of power to sell, and that snch a sale was not cnred by a confirmation decree under act 119 of 1935. So we conclude that the sale of appellant’s land to the state, which included the void levy of 1/10 mill, was void for want of power to sell.
Where a tax sale is absolutely void for lack of power to sell, it has several times 'been held by this court that the affivadit of tender required by said § 4663 of Pope’s Digest is dispensed with. Kelso v. Robertson, 51 Ark. 397, 11 S. W. 582; Sutton v. Lee, 181 Ark. 914, 28 S. W. 2d 697; Winn v. Little Rock, 165 Ark. 11, 262 S. W. 988. But where the tax sale is voidable for mere irregularities of the officers conducting* the sale, the rule is different. Chronister v. Skidmore, 198 Ark. 261, 129 S. W. 2d 608.
On the matter of the cross-appeal, appellee says the court erred in overruling* the demurrer, because appellant alleged no evidence of title in himself, except the bare allegation that he was the owner of said lands — a mere conclusion of law. But the complaint also alleged that appellee was appellant’s tenant at the time she donated said lands, which fact the demurrer admits, and we think this is a sufficient allegation of ownership on demurrer to justify the court’s action in overruling it.
The decree will be reversed on the appeal and remanded with directions to overrule the motion to dismiss, and for further proceedings according to law, the principles of equity and not inconsistent with this opinion. On this cross-appeal the judgment is affirmed. | [
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