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George Howard, Jr., Judge.
Appellant was convicted on April 5, 1979, by a jury, of criminal attempt to commit rape. The jury assessed a fine of $500.00.
Appellant asserts two points for reversal:
1. The trial court erred in not entering a judgment on the jury’s verdict prior to July 30, 1979 — 116 days after appellant’s conviction.
2. That the trial court erred in ruling that appellant could not introduce evidence relating to an abortion performed on the victim.
Appellant argues that although he was convicted of the charge filed against him on April 5, 1979, the trial court did not enter a judgement on the verdict until July 30, 1979; that appellant filed his notice of appeal ón May 1, 1979, and that appellant, at the time, “was not aware that judgment had not been entered, until after the filing or lodging of the Transcript with the Arkansas Court of Appeals”; and that as a matter of law, there was no judgment from which an appeal could be properly taken. Therefore, argues appellant, the case should be reversed, dismissed and appellant reimbursed of his costs of $714.70.
Rules 36.4 of the Rules of Criminal Procedure provides:
Upon the return of a verdict of guilty, if tried by a jury, or the finding of guilty if tried by a circuit court without a jury, sentence may be pronounced and the judgment of the court may be then and there entered, or sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court, not more than thirty (30) days thereafter, . . . (Emphasis added.)
While Rule 36.4 makes it clear that the sentencing of a defendant and the entry of the judgment may be pronounced immediately, or postponed to a date certain fixed by the court, not more than thirty (30) days thereafter, there is no provision indicating that a failure to observe this stipulation in any way affects the validity of the proceedings resulting in the conviction of a defendant. Furthermore, the word “may” as used in the rule implies permissive or discretional, rather than mandatory, action; and it is construed in a permissive sense unless it can be said that when the provision of a statute is the essence of the thing required to be done, it is mandatory, otherwise, when it relates to form and manner, and where an act is incidental, after jurisdiction is acquired, it is directory merely. Nathan v. State, 235 Ark. 704, 361 S.W. 2d 637 (1962); Dunn v. Dunn, 222 Ark. 85, 257 S.W. 2d 283 (1953). It is plain that Rule 36.4 is directory rather than mandatory.
Moreover, appellant has not shown in any way how he has been inconvenienced or prejudiced by the belated entry of the nunc pro tunc judgment. Inasmuch as appellant sought to appeal from his conviction to this Court, it was incumbent upon him to take the initiative to see that the trial record was complete in every respect in order to enable this Court to entertain jurisdiction and view the proceedings objectively. Without a judgment having been entered, appellant had no basis for an appeal unless it was demonstrated that the trial court has abused its discretion in refusing to enter a judgment. It is clear from this record that when the trial court was advised that judgment had not been entered on the jury’s verdict, the court immediately entered a nunc pro tunc judgment.
In Richardson v. State, 169 Ark. 167, 273 S.W. 2d 367 (1925), our Supreme Court emphasized that it was within the sound discretion of the trial court to enter nunc pro tunc judgments to cause the record to speak the truth in criminal as well as in civil cases.
Finally, appellant argues that he should have been permitted to cross-examine the victim about a trip that she purportedly made to California for an abortion. Appellant stresses that that evidence relating to the abortion was relevant to the issue of consent and the victim’s reputation.
The trial court, in excluding the evidence, stated that his ruling was based in part upon the fact that appellant testified that the child was not his and that appellant had further testified that he gave the victim money to make the trip to California.
The purported attempt to commit rape occurred on June 3,1978, south of Warren on Highway 15, while the purported abortion occurred in September, 1977.
Under these circumstances, we are unable to say that the trial judge abused his discretion in excluding the offered testimony about the alleged abortion. Brown v. State, 264 Ark. 944, 581 S.W. 2d 549 (1979).
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John A. Fogleman, Justice.
The primary question on this appeal involves the validity of a written instrument as a conveyance of real property.
Appellant filed a partition suit claiming to he the owner of an undivided one-seventh interest in certain tracts of land in Franklin County. He alleged that appellee was also the owner of an undivided one-seventh interest. Appellant asserted, and it is agreed, that the common source of title was George T. Wade, who owned all of the property at the time of his death on August 15,1945. Appellant claimed title by reason of a conveyance from one Victor Grady Wade, the sole heir of Guy G. Wade, who was one of the seven children of George T. Wade. Guy G. Wade died on September 10, .1948.
On April 26, 1947, Guy G. Wade executed and delivered to appellee the following written instrument:
£ 1 Glendora, California
April 26, 1947
AGREEMENT OF SALE
NOTICE: For the sum of $300.00 cash in hand, paid, the receipt of which is hereby acknowledged, I, Guy G. Wade, sell to Ova Lea TCeifer, all my rights, title and interest in the estate of my father George T. Wade — deceased. I also agree to render proper and legal conveyance at any time upon request of said Ova Lea Keifer.
Gny G. Wade
Signed:
Guy G. Wade”
The defendants in the partition suit, of which appellee was one, filed an answer in which it was asserted that appellee was the owner of an undivided two-sevenths interest in the. lands. They also denied that appellant had any interest in them. The instrument above set out was made an exhibit to their answer and later introduced in evidence in support of appellee’s claim. It was also alleged in the answer that appellant knew at the time of his conveyance that his grantor had no interest in the lands and knew that Guy G. Wade had conveyed his interest to the appellee by the instrument above set out. They also alleged that the recording of this instrument on June 20, 1955, gave constructive notice to appellant.
Appellant contends that the instrument in question is void and that it was not notice either to him or to his predecessor in title. One of his arguments in support of this contention is that the deed does not describe ány real property. In this respect we agree with the appellant.
In Turrentine v. Thompson, 193 Ark. 253, 99 S.W. 2d 585, we held that a deed which did not identify the land sought to be conveyed as being in any county or even in the state was void as failing to furnish a key by which the land might be certainly identified. As we said in that case, the land intended to be conveyed might he in another state.
The chancellor based his holding, in part, upon ad verse possession for the period of limitations by appellee, laches of appellant and estoppel. Appellee argues those defenses here even though she failed to plead either of them and testified that her claim depended entirely upon the written instrument. Generally, in order to be available to a party the defenses of limitations and estoppel must be pleaded, and relied on in the trial court. Blakeley v. Ballard, 188 Ark. 75, 65 S.W. 2d 7; Bell v. Lackie, 210 Ark. 1003, 198 S.W. 2d 725; Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190.
The adverse possession statute may become an issue during the trial, however, either by amendment of the pleadings or by evidence showing operation of the statutory bar. Roberts v. Burgett, 209 Ark. 536, 191 S.W. 2d 579. In this case, however, appellee, on the one hand, and appellant and his grantor, on the other, were tenants in common. In order for possession of a tenant in common to be adverse to that of his cotenants, knowledge of the adverse claim must be brought home to them directly or bj^ such notorious acts of unequivocal character that notice may be presumed. Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707. Stronger evidence is required when a family relationship exists than in other cases. McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714; Ueltzen v. Roe, 242 Ark. 17, 411 S.W. 2d 894. The burden of proof was upon appellee. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809.
In this case, Mrs. Keifer never talked with her nephew Victor Grady Wade about the matter. Sometime between two and six years before the trial, she executed two division orders acknowledging that Victor Grady "Wade was entitled to a one-seventh interest in royalties arising from the interest of George T. Wade in the lands. The only evidence of adverse possession is the fact that rents for a two-sevenths interest were paid to appellee and none were paid to Victor G. Wade. It was shown that Victor did not inquire about his share of the rents. The sole enjoyment of rents and profits by a tenant in common does not necessarily amount to a disseizin of a cotenant. Hardin v. Tucker, 176 Ark. 225, 3 S.W. 2d 11.
This .case is remarkably similar to Smith v. Happier, supra, where we reversed a finding of adverse possession against a cotenant seeking partition. The basis of our holding was that there was no showing that notice of the adverse claim was given and that there was a recognition of the title of the cotenant by acts done during the period of asserted adverse possession. Appellee here failed to meet her burden for the same reasons. We are not impressed with her explanation that she signed the division orders as a gratuity because they were too insignificant for her to raise any question. She admitted that she knew she was conceding a one-seventh interest to Victor Grady Wade. Her action is more consistent with a recognition of his title than with her present contention. See also Zachery v. Warmack, 213 Ark. 808, 212 S.W. 2d 706.
Generally, estoppel must be pleaded to be available as a defense. Blakeley v. Ballard, 188 Ark. 75, 65 S.W. 2d 7; Bell v. Lackie, 210 Ark. 1003, 198 S.W. 2d 725; Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190. Estoppel may also become an issue when no objection is made to evidence in support of the defense. Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Aclin v. Caplener, 229 Ark. 718, 318 S.W. 2d 141. Here the defense was neither pleaded nor relied upon by appellant, who testified that her claim depended entirely upon the written instrument signed by Guy G. Wade. Although estoppel can arise by actions of a party, or his failure to speak or act as well as by representations, it does not exist unless the adverse party has in good faith relied upon the acts, representations, inaction or silence to his detriment. Storey v. Brewer, 232 Ark. 552, 339 S.W. 2d 112; Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443; Tarver v. Taliaferro, 244 Ark. 67, 423 S.W. 2d 885. We find no evidence to show that Ora Lee Keifer relied up on any acts of either Victor Grady Wade or Jack Bowlin to her detriment in any respect.
In order for laches to constitute a defense, appellee must have suffered such a change in position that she could not be restored to her former state by reason of the failure of appellant or his predecessor in title to assert the present claim. Baxter v. Young, 229 Ark. 1035, 320 S.W. 2d 640. Appellant acquired title by deed from Victor Grady Wade on December 5, 1966. This action was brought February 3, 1968. Certainly there was no undue delay on appellant’s part. It is not shown that appellee has suffered any change in position by reason of any delay on the part of Victor Grady 'Wade. Her recognition of his rights when she signed the division order negates any idea that she had changed her position in any way.
We cannot subscribe to the suggestion that the fact that appellant was married to a daughter of Guy G. Wade’s widow by a subsequent marriage supplies any deficiencies in the evidence or charges appellant with any notice not otherwise shown. There might be some merit in the argument that appellant bore the burden of proof of the payment of a valuable consideration by him without notice of appellee’s claim, if the instrument relied upon by appellee constituted a contract enforceable between the parties. This is not the' case. A contract for the sale of land will not be enforced unless the description disclosed therein is as definite and certain as tliat required in a deed of conveyance. Fordyce Lumber Company v. Wallace, 85 Ark. 1, 107 S.W. 160. The instrument here does not contain such a description. Turrentine v. Thompson, supra.
The decree is reversed and the cause remanded to the trial court for entry of a decree consistent with this opinion since the title to real estate is involved.
Byrd, J., dissents. | [
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Prank Holt, Justice .
The appellant was charged by information with the crime of robbery. A jury found him guilty and assessed his punishment at 12 years imprisonment in the State Penitentiary. Prom the judgment on that verdict comes this appeal. On appeal appellant first questions the validity of all proceedings preliminary to his trial of the alleged offense.
At about 10 a.m. on February 15, 1968, the bank in Hartford, Arkansas was robbed of approximately $5,-000 by two masked gunmen. While in the bank their general appearance was observed' by two women employees and a male official of the bank. When the two robbers left the bank, one -was observed to walk with a noticeable, peculiarity or a “dragging” of his right foot. Their “get-away” car was parked on the street near the bank. Their departure was observed through the bank window. An accurate description of the automobile and its license number were noted. Tbe appellant was observed as tbe driver of tbe car. Tbe witnesses in the bank were able to see his profile and features since the masks were removed after entering the car. The “getaway” ear was found a short time later, abandoned and burning' a few miles from tbe scene of the robbery. The robbery was reported immediately to the law enforcement. officials, together with a description of flie robbers and other incidental circumstances. The prosecuting attorney secured from the local justice of the peace a warrant of arrest for the appellant. Late in the afiernoon of the same day of the robbery the appellant was arrested, based upon this warrant of arrest, in Oklahoma, a distance of approximately 90 miles from the scene of the robbery. At the time of his arrest for this alleged offense, the appellant was in the Adair County Jail on a traffic violation for which he had just been arrested. He was then held in that county jail with the. charge of bank robbery placed against him. The next day he was arraigned before a magistrate of Adair County and released upon $5,000 bail. Appellant refused to waive extradition. He was extradited, after a hearing, to the State of Arkansas and placed in the Sebastian County Jail at Fort Smith on March 19, or about a month after his arrest. At the time he was incarcerated in the Sebastian County Jail, his bail was set at $25,000. On March 22, the prosecuting Attorney filed an information direct in the circuit court charging the appellant with the alleged offense. On March 25, the appellant was arraigned in circuit court and bail was set at $50,000. The court later reduced the bail to $35,000 upon appellant’s motion. The trial court then refused to approve the tendered bail on the basis that the bondsman had not complied with the court’s rule which it had promulgated pursuant to Ark. Stat. Ann. § 43-732 (Kepi. 1964). After two hearings before this court, appellant was permitted to make the proffered bail in the sum of $35,000. It appears that he was released on bail pending trial of the case in July.
Appellant has not demonstrated to us any prejudicial error. We find no merit in his contentions relating to the invalidity of any preliminary proceedings. Certainly there was sufficient evidence, and we have only detailed a part of it, as a basis for probable cause in the issuance of the warrant of arrest. Appellant was properly arraigned before, a local magistrate in Oklahoma and bail granted and made the day following his arrest. The proper procedure was followed in the extradition proceeding. On the date he was extradited and placed in the Sebastian County Jail a bail was set. The prosecuting attorney then filed a direct charge of robbery against the defendant. This procedure is so well established that it requires no citation of authority to support its validity. In the circumstances, appellant was arraigned within a reasonable time before the circuit court and bail was set. When the trial court refused to recognize his surety, the appellant was admitted to bail after application to this court.
The appellant next argues that the court erred in overruling his motion to suppress and quash a “lineup identification.” Appellant urges that his constitutional rights were violated by this procedure and cites several federal cases, including United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). In the case at bar, appellant’s then counsel was notified of the proposed lineup and was present during the “lineuY) identification” procedure. It appears that certain objections to the arrangement of the lineup were made by appellant’s counsel and the state, made corrections accordingly. We find no violation of appellant’s constitutional rights in the instant case. Further, it appears that this out-of-court identification was not offered by the state. See, Steel v. Slate, 246 Ark. 75, 436 S.W. 2d 800 (1969).
The appellant argues that the testimony of certain witnesses was erroneously permitted and that their tes limony was immaterial and “designed to reflect guilt by inference” and prevented the appellant from obtaining a fair trial. We cannot agree with the appellant. A review of the testimony of these witnesses reflects that it is relevant to the issues in the case. The testimony of these witnesses was clearbg permissible to establish the identity of the appellant and to show circumstances and events that tended to connect him with the commission of the alleged crime. Such evidence has been approved bv us manv times. Keese & Pilgreen v. State. 223 Ark. 261, 265 S.W. 2d 54-2 (1954); Williams, et al v. Stole, 237 Ark. 569, 375 S.W. 2d 375 (1964); Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965); Kurd v. State, 242 Ark. 742, 415 S.W. 2d 61 (1967).
The appellant asserts that the court erred in permitting the introduction and exhibiting of the contents of appellant’s billfold which was taken by search and seizure in violation of his constitutional rights. The appellant complains that it was prejudicial to admit in evidence a receipt found in his billfold which reflected the alias of “Joe Longshore” and indicated that he had paid a traffic fine in that name. This billfold was first taken from the appellant when he was placed in the Adair County Jail for a traffic violation. It was shortly thereafter, and while he was still in jail, that the appellant was arrested on the Arkansas warrant for robbery. We find no error in the introduction into evidence of this receipt since it was incidental to and a product of a lawful arrest Ward v. State, 243 Ark. 472, 420 S.W. 2d 540 (1967). There was competent evidence by witnesses that the appellant had on occasions used the name “Joe Longshore” and the us.e of this name tended to connect and identify him with the commission of the alleged crime of robbery.
The appellant contends that the court, erred in permitting the prosecuting attorney to interrogate the witness, Pat Leatherwood, about her knowledge of appellant robbing two other banks before the alleged robbery of the Hartford bank. The witness stated that she did not know the answer to the question. The trial court sustained appellant’s objections and denied appellant’s motion for a mistrial. We have often held that it is within the sound discretion of the trial court Lo deny a motion for a mistrial and that such discretion will not be disturbed on appeal unless there is a showing of abuse. Briley v. White, 209 Ark. 941, 193 S.W. 2d 326 (1946); Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876 (1968). In the case at bar, the trial court thoroughly admonished the jury to disregard the questions propounded by the prosecuting attorney. We find no abuse by the trial court in the exercise of its discretion. There is yet another reason for a lack of merit to this contention. We have consistently held that an objection must be made, exceptions saved, and the point presented in a motion for a new trial. Keese & Pilgreen v. State, supra; Randall v. State, 239 Ark. 312, 389 S.W. 2d 229 (1965). There is no showing of full compliance with these requirements.
It is appellant’s further contention that the trial court erred in refusing to grant a mistrial because of improper statements made by the prosecuting attorney in his opening and closing remarks. We do not agree. We have reviewed these statements and in our view the state’s attorney fairly outlined in his opening remarks the evidence that would be offered and he then produced it. The closing argument of the prosecutor appears to us to be within the bounds of permissible argument and fairness. The trial court has a wide discretion in supervising the arguments of counsel before juries. Stanley v. State, 174 Ark. 743, 297 S.W. 826 (1927); Bethel & Wallace v. State, 180 Ark. 290, 21 S.W. 2d 176 (1929). In the case at bar the trial court supervised the argument of counsel in a manner of fairness and permitted no manifest prejudice to appellant.
The appellant also asserts that he was prevented from having a fair trial because of “courtesies extended to the jury by the prosecuting attorney, which amounted to undue influence” upon the jury. This argument is directed to the fact that the prosecuting attorney arranged a place for the jurors to eat during the trial. We find no merit in this argument. The town of Greenwood had recently been almost destroyed by a tornado. There was no public eating place available. Nearby was the Greenwood Recreation Hall. These facilities were made available upon inquiry by the prosecuting attorney and the jurors were transported there for lunch on two separate days in the company of the bailiffs. This was done only after the trial court carefully inquired if there were any objections to this procedure and none were voiced. There is no showing whatsoever that the jurors, under these circumstances, were in any manner influenced by this procedure.
The appellant contends that he was prevented from having a fair trial because of the mingling of the witnesses and numerous law enforcement officials among the jurors during recesses of the trial proceedings. The courthouse had been totally destroyed by the tornado and the trial was held in an improvised courtroom in the cafeteria of a school building. The “band room” was used as a witness room since witnesses were placed under “the rule.” The trial court carefully considered the contention of jury misconduct contained in appellant’s motion for a new tidal. The testimony of the jurors was taken on this issue and we agree with the trial court that there was no evidence of any misconduct on the part of the jurors or any of the witnesses or other parties.
Having carefully reviewed all of appellant's assignments of error and finding no merit in them, the judgment is affirmed.
Georue Rose Smith, J., concurs. | [
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Robert H. Dudley, Justice.
Appellant, Richard Alan Curry, was convicted of the crime of possession of a controlled substance, methaqualone, under the Arkansas Uniform Controlled Substances Act. On appeal he contends that the Act must be declared invalid for either of two reasons: First, it is an unconstitutional delegation of legislative authority and, second, it violates the fair notice requirements of due process of law. We affirm the convic tion. Jurisdiction is in this Court since the appeal involves a challenge to the constitutionality of an act of the General Assembly. Rule 29 (1) (a) and (c).
I
The doctrine of separation of powers is well established in Arkansas. Ark. Const. Art. IV, §§ 1, 2; amend. VI, § 2; amend. VII, § 1. The authority to define crimes and fix the punishment for those crimes is vested exclusively in the legislative branch of government. If an act is incomplete and authorizes a commission to decide what shall and what shall not be a violation of the law it will be held unconstitutional as an improper delegation of legislative authority. Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179(1983). However, the limitation against the delegation of lawmaking power does not prevent the General Assembly from authorizing boards or commissions to determine facts upon which the law would be put into execution. McArthur v. Smallwood, 225 Ark. 328, 331, 281 S.W.2d 428, 431 (1955).
The act at issue is a Uniform Act which has been adopted in 46 states, the Virgin Islands and Puerto Rico. It is comprised of six articles: Definitions, Standards and Schedules, Regulation of Distribution by Prescription, Criminal Penalties, Enforcement and Administrative Provisions, and Procedure and Title. Appellant contends that Article II, the determination of controlled substances article, is unconstitutional. That article embraces six different schedules of controlled substances which are codified in 16 statutes, Ark. Stat. Ann. §§ 82-2602 through 82-2614.3 (Repl. 1976 fe Supp. 1981). Appellant makes numerous arguments in favor of his contention. For example, in oral argument he contended that the distinctions between Schedule III substances, Ark. Stat. Ann. § 82-2608 (Supp. 1981), and Schedule IV substances, Ark. Stat. Ann. § 82-2610 (Supp. 1981) are so slight that the General Assembly had abdicated to the executive branch its duty to decide what shall and what shall not constitute a crime. He makes similar arguments with regard to Schedules V and VI. He challenges each of the six Schedules contained in Art. II. However, we do not reach constitutional issues on such a broad basis. A party has standing to challenge the constitutionality of a statute only so far as it affects his own rights. Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979). Traditionally we do not decide constitutional issues on a broader basis than the record requires. Since we will not pass on the validity of any part of the Arkansas Uniform Controlled Substances Act now shown to have been violated, our review will be limited to the statute under which appellant was convicted, Schedule II or Ark. Stat. Ann. § 82-2606 (Supp. 1981).
The Arkansas Uniform Controlled Substances Act became law in 1971. 1971 Ark. Acts 590. The 1981 Act listed the substances which were contolled pursuant to Schedule II, 1971 Ark. Acts 590, Art. 2, § 6 (codified at Ark. Stat. Ann. § 82-2607 [Repl. 1976]). The original act and all of its amendments provide for a commissioner who could add to, delete, or reschedule the substances enumerated by using certain criteria. Ark. Stat. Ann. §§ 82-2602, -2606 (Supp. 1981). The listing of substances in Schedule II was repeated by § 23 of Act 898 of 1979 which provided that the schedules in effect on the effective date of the Act should remain in effect until rescheduled by the Commissioner. The original act and all amendments provide that if a substance becomes controlled under federal law it shall also become controlled under state law unless the Commissioner objects to its inclusion. Ark. Stat. Ann. § 82-2602 (d) (Repl. 1976 & Supp. 1981).
The facts which create the narrow issue in this case are that methaqualone was classified as a Schedule II controlled substance by the federal government effective October 4, 1973. Notice of that Ruling was given in the Federal Register. 38 Fed. Reg. 27516 (1973). The state Commissioner did not object to methaqualone becoming a controlled substance and so, by operation of law, it became controlled in this State. See Ark. Stat. Ann. § 82-2602 (d) (Supp. 1981). Upon this factual basis, two questions concerning delegation arise: (1) Whether there was an unlawful delegation to the federal government, and (2) whether there was an unlawful delegation to the Commissioner.
In answer to the first question appellant argues that prior to 1979, federal modifications of the schedules resulted in automatic modifications of the Arkansas schedules under our law. Since methaqualone was scheduled prior to 1979, appellant argues that the Arkansas Uniform Controlled Substances Act unconstitutionally delegated legislative determinations of what a controlled substance is to the Federal Register.
If appellant’s argument was factually correct and, in those years prior to 1979 when methaqualone was listed, the legislature had given to the federal government all control over scheduling, there would have been an unlawful delegation of authority. Cheney v. St. Louis & Southwest Railway Co., 239 Ark. 870, 394 S.W.2d 731 (1965); Crowley v. Thornborough, 226 Ark. 768, 294 S.W.2d 62 (1956). However, contrary to appellant’s assertions, the original act of 1971, the 1973 amendment and the 1979 amendment all gave the Commissioner authority to reject the listing of any federally controlled substance. 1971 Ark. Acts 590, § 1 (d), p. 1321; 1973 Ark. Acts 186 § 1, p. 640 (codified at Ark. Stat. Ann. § 82-2602 (d) [Repl. 1976]); 1979 Ark. Acts. 898 § 3, p. 1977 (codified at Ark. Stat. Ann. § 82-2602 (d) [Supp. 1981]). Thus there was no unlawful control or delegation of legislative power given to the federal government.
The obvious succeeding question is whether Schedule II of the Arkansas Uniform Controlled Substances Act constitutes an unlawful delegation of legislative authority to the Commissioner. The General Assembly has defined the type of possession of a controlled substance which will constitute a crime. It has mandated that no substance shall be listed as controlled unless it has a potential for abuse and a history or pattern of abuse. In addition, the following are considered: The significance of that pattern of abuse, the risk to the public, the substance’s potential to produce psychic or psychological dependence viewed in the light of current scientific knowledge, the scientific evidence of its pharmacological effect, if known, and whether the substance is an immediate precursor of an already controlled substance. Ark. Stat. Ann. § 82-2602 (a) (Repl. 1976 & Supp. 1981). The General Assembly more particularly defined Schedule II substances as those which have a high potential for abuse but are currently accepted in medical use, and the abuse of which may lead to severe psychic or physical dependence. Ark. Stat. Ann. § 82-2606 (Repl. 1976 & Supp. 1981). These are illuminating criteria which direct the Commissioner to reject any federal listings which might not be in conformity with them. They guide the Commissioner in determining the facts upon which the law is to be put into execution. They are not vacant standards which allow a Commissioner to determine what shall and what shall not constitute a crime. The General Assembly has not abdicated its legislative authority.
We are not unmindful of contrary decisions from other jurisdictions. See, e.g., State v. Krego, 433 N.E.2d 1298 (Ohio Misc. 1981); State v. Rodriguez, 379 So.2d 1084 (La. 1980); State v. Gallion, 572 P.2d 683 (Utah 1977); Sundberg v. State, 216 S.E.2d 332 (Ga. 1975); Howell v. State, 300 So.2d 774 (Miss. 1974). Some of these cases are distinguishable because of wording differences in the pertinent schedule or statute. However, the majority of jurisdictions hold in accord with our view. See, e.g., Ex parte McCurley, 390 So.2d 25 (Ala. 1980) (involving the identical Schedule II); State v. Lovelace, 585 S.W.2d 507 (Mo. 1979); State v. Uriel, 255 N.W.2d 788 (Mich. 1977); State v. King, 257 N.W.2d 693 (Minn. 1977); Threlkeld v. State, 558 S.W.2d 472 (Tex. Crim. 1977); Cassell v. State, 317 So.2d 348 (Ala. 1975); State v. Lisk, 204 S.E.2d 868 (N.C. 1974); Hilton v. State, 503 S.W.2d 951 (Tenn. 1973); Hohnke v. Commonwealth, 451 S.W.2d 162 (Ky. 1970); State v. Davis, 450 S.W.2d 168 (Mo. 1970); State v. Sargent, 449 P.2d 845 (Or. 1969). See also Annot., 47 A.L.R. Fed. 869 (1980) (sets out the analogous federal cases which have unanimously held in accord with our majority view).
This decision is based solely on principles of law but we are not unmindful that it is also a practical one. The General Assembly meets in regular session only 60 days every other year. This infrequency of sessions does not offer timeliness to the amorphous and ubiquitous problems associated with the manufacture and distribution of illicit drugs. In addition, even if the members of the General Assembly were all trained chemists and pharmacists, which they are not, it would be impossible for them to keep abreast of the constantly changing drugs and their dangers. A Commis sioner with specialized knowledge of these changes can schedule substances in a timely manner.
This interpretation of the Act is consistent with our well-established rule of statutory interpretation that an act of the legislature is presumptively constitutional and all doubt as to its validity must be resolved in favor of the act unless it is clearly incompatible with our constitution. Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973).
II
Appellant next contends that he was denied fair notice that possession of methaqualone constituted a crime and, therefore, he was denied due process. The Arkansas Uniform Controlled Substances Act requires that the schedule be published in accordance with the Administrative Procedure Act, Ark. Stat. Ann. § 5-703 (Repl. 1976 & Supp. 1981). Appellant does not contend that the notice provisions of the Administrative Procedure Act were not complied with. Instead, he cites 3 Ark. Reg. 1068-69 and argues that he lacked notice because the schedules were not published in the Arkansas Register. However, the schedules were in fact published with methaqualone appearing as a Schedule II substance in 1 Ark. Reg. 915 at page 918 and 2 Ark. Reg. 372 at page 375. Therefore, appellant’s argument has no merit.
The appellant makes a three sentence argument which might be construed as a contention that compliance with the Arkansas Administrative Procedures Act is not sufficient to comport with the constitutional requirements of due process. However, the appellant offers no convincing argument or citation of authority. Thus we do not consider it. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Affirmed. | [
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Steele Hays, Justice.
Charlie Frank Sargent was fatally shot on February 18, 1980. His wife Kate, and his three sons Donald, Roy and Cecil were all charged with first degree murder. The charges against Cecil and Roy were dismissed, Donald was convicted of first degree murder and Kate Sargent of second degree murder.
Charlie Sargent died intestate and the administrator of his estate petitioned to exclude the wife and sons from inheriting because of their involvement in his death. The Chancellor found that all four had participated in the murder and excluded them from the estate. Cecil Sargent is appealing the order on the grounds that the evidence is insufficient to show his participation in his father’s murder. We agree with appellant and reverse the Chancellor.
Appellee’s petition charged that Cecil had participated in a conspiracy to murder the father. He argues that the evidence would support Cecil’s participation as an accomplice or an accessory after the fact, as well as a conspirator in the wrongful and unlawful death of his father. Under Arkansas law for reasons of sound public policy one who wrongfully kills another is not permitted to profit by the crime. Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970). Horn v. Cole, 203 Ark. 361, 156 S.W.2d 787 (1941).
We believe the evidence presented in this case was not sufficient to find involvement by Cecil on any theory. The trial court’s findings that related to Cecil are as follows: 1) Donald Sargent had discussed killing the father with other members of the family; 2) Donald shot his father while all of the family members were in the home; 3) the wife and three sons removed the father from the home after the shooting; while he was still alive, and took him to the place where the body was found. The deposition of the Medical Examiner reflects that when the body was doused with kerosene Mr. Sargent was dead at the time. Mr. Sargent lived a very short time after receiving the four wounds. The only way the Court can reconcile the testimony of the parties to Dr. Malak’s report and deposition is that after Mr. Sargent was taken in the truck to the place where the body was found, one or more bullet wounds was inflicted at that time. Mr. Sargent died before the kerosene was poured on him; 4) the wife and all three of the boys participated in the murder of the father.
With nothing more, the first two findings tell us nothing of Cecil’s participation. The third adds very little and is tempered by other considerations surrounding the incident which we will discuss further on. The last finding is simply conclusory. The appellee cites the following evidence in support of the trial court’s findings: Cecil was at the table with his father when Donald first shot him; Cecil testified that his father asked him to call an ambulance but Cecil said he didn’t know the number, and that he also helped carry his father to the truck; Cecil, Roy and the mother followed the truck in their car; Roy had placed gasoline in a firebomb in the car before the left to follow Donald; Roy saw Cecil keep the father in the truck as Donald was pouring gasoline on him; Donald watched as the truck in which his father was placed was set on fire with the firebomb; Cecil helped push the truck after the firebomb didn’t work; Roy testified that all four family members discussed what to tell the police; Cecil did not tell the police the whole truth when first questioned.
We believe the disputed factual issue here is to be decided by a preponderance of the evidence, as in civil cases generally. [See Vesey v. Vesey, 237 Minn. 10, 53 N.W.2d 809 (1952)]. Still, it may be well to examine relevant criminal laws. Ark. Stat. Ann. § 41-707 requires that one have the purpose of promoting a criminal offense and agrees with another that he will engage in that activity or will aid in planning it. None of the evidence appellee offers goes at all convincingly to any of these elements. Cecil’s presence at the home at the time of the shooting tells us nothing of his purposefulness or indicates any agreement. Nor is mere association or presence at the scene sufficient to prove conspiracy. U.S. v. James, 528 F.2d 999 (5th Cir. 1976). As to Donald discussing the killing of the father, the appellee points to no evidence that goes beyond mere discussion. Evidently, Donald was given to loose talk about his intentions, but the indications are that no one took him seriously. More importantly, there is no evidence that shows with whom Donald had discussions and no evidence that Cecil was present. Nothing points to anything even suggesting that Cecil was involved in any agreement to purposefully murder his father.
The activities Cecil was involved in that followed Donald’s shooting Sargent leave us with many questions. Absent any evidence of conspiracy, even assuming the father was still alive at the time the family moved his body in the truck, we can’t say that there were conspiratorial acts. The Commentary to § 41-707 emphasizes this point by noting that the statute excludes from its provisions “application to persons who engage in conduct that furthers the ends of a conspiracy but who have no purpose to do so. This is so even if the persons knows his conduct assists in the accomplishment of the criminal objective.” Nor could we say that Cecil’s acts made him an accomplice. Ark. Stat. Ann. § 41-303 requires one have the purpose of promoting the offense and that he solicits or encourages another in committing the offense or aids or attempts to aid another in committing the offense. Cecil’s actions themselves, with no evidence of conspiring, or any other evidence of purpose to commit the crime coupled with the fact that Donald had already delivered the fatal wounds leaves an accomplice theory unsupported. The offense of accessory after the fact has now been abolished (see Commentary to Ark. Stat. Ann. § 41-302) and such activity now comes under the authority of Chapter 28, Obstructing Governmental Operations. Cecil’s activities might constitute such an offense, but the competing considerations surrounding his acts, and the acts themselves make his involvement far too attenuated to sustain the results of the court’s decision.
In sum, it was the burden of the appellee to show that Cecil was aware of a plan to kill his father and that he participated in the furtherance of that plan, or, at least, he concurred in it. Failing in that, there must be evidence of Cecil’s actions after the shooting from which those same conclusions can be rationally inferred. Here, there is nothing in the evidence before the shooting to implicate Cecil, except that he happened to be in the house where he lived eating supper along with the rest of the family. Moreover, Cecil’s actions after the shooting are as consistent with a fear of his older brother, as with a desire to carry out a murder scheme. The two explanations are equally plausible. That being so, when the circumstances in their entirety are weighed, i.e. Cecil’s immaturity, Donald’s threats and occasional physical abusiveness of his brothers, the fact that Cecil was said to be close to his father, the absence of any motive by Cecil, and the state of shock and confusion which may well have accompanied the witnessing of those extraordinary events, they lead us to the conclusion that a finding that Cecil knowingly participated in the death of his father is clearly against the preponderance of the evidence. (ARCP 52).
The decree is reversed and the cause remanded for further orders not inconsistent with this opinion.
Adkisson, C.J., and George Rose Smith and Dudley, JJ., dissent.
41-707. Criminal conspiracy. — A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense he:
(1) agrees with another person or other persons:
(a) that one or more of them will engage in conduct that constitutes that offense; or
(b) that he will aid in the planning or commission of that criminal offense; and
(2) he or another person with whom he conspires does any overt act in pursuance of the conspiracy.
41-303. Criminal Liability for conduct of another — Accomplices. (1) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages, or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(2) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he
(a) solicits, advises, encourages or coerces another person to engage in the conduct causing the result; or
(b) aids, agrees to aid, or attempts to aid another person in planning or engaging in the conduct causing the result; or
(c) having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so. | [
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George Rose Smith, Justice.
Russell Ratliff, 61, had been a resident of Pine Bluff for some time before he disappeared on December 4, 1980. More than a month later his badly decomposed body was found by police officers on the Surridge property in Desha County, over 50 miles from Pine Bluff. James Surridge, the appellant, was charged with capital murder in the course of robbery. He was found guilty of first-degree murder and was sentenced to a 50-year term, to run concurrently with a commuted life sentence for murder from which he was on parole at the time of Ratliff’s death. For reversal it is argued that the State’s evidence was insufficient to present a jury question and that certain hospital records and x-rays should not have been considered by the medical examiner in identifying Ratliff’s body.
First, the sufficiency of the evidence. The State’s proof was entirely circumstantial in that there was no eyewitness testimony about the shooting. The jury was correctly instructed that circumstantial evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. AMCI106. On appeal, however, the judgment must be affirmed if the verdict is supported by substantial evidence. “Substantial evidence is that which is more than a scintilla and must do more than create a suspicion of the existence of the fact to be established; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). Evidence is not substantial if it leaves the fact finders “only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gives rise to a suspicion.” Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979).
There is no possible doubt about Ratliff’s having been murdered. There is no possible doubt that some person committed the murder by shooting Ratliff twice in the back of his head. The issue is simple: Was the evidence so evenly balanced that the jury had to resort to guesswork in finding that the crime was committed by Surridge rather than by someone else? No. We have no doubts about the sufficiency of the proof. In fact, we think the evidence clearly establishes Surridge’s guilt to the exclusion of any other reasonable conclusion.
For several months before Ratliff’s disappearance on December 4, he and Surridge, age 74, both living alone, had lived across the hall from each other in an 8-unit apartment house in Pine Bluff. During that fall Surridge made several inquiries about obtaining a gun, for protection and squirrel hunting. Some weeks before Ratliff’s disappearance Surridge acquired a rifle with a detachable scope (telescopic sight). He showed the rifle to three persons who testified at the trial: Russell Ratliff’s brother; the owner of the apartments; and the greatgrandson of Mrs. Jewell Cook, a lady whom Surridge was seeing about every day.
In October, Russell Ratliff received $1,619 in a personal injury settlement. For a time he left the money with his lawyers for safekeeping, but in November he obtained the money from them and deposited the check in a bank.
Russell Ratliff, who had a drinking problem, called his brother, W. E., apparently in late November, and asked him to get a lawyer to defend Russell on a public drunkenness charge. W. E. went to Russell’s apartment on December 1 and had to wait a few minutes until Surridge and Russell drove up in Surridge’s pickup truck, saying they had been to the bank. In Surridge’s presence Russell took two rolls of bills from his pockets and from one of the rolls handed W. E. two twenties and a ten to pay the lawyer’s $50 fee.
On December 4, the day of Russell’s disappearance, he called W. E. early in the morning and asked W. E. to take him to see a doctor. W. E. was unable to do so. Russell said he would get Surridge to take him. Russell did not have a car, and Surridge had often furnished him transportation. The State proved that Russell did go to the doctor that morning and was given three prescriptions, which he had filled at a pharmacy at about 11:00 a.m. There is no proof that he was ever seen alive again.
A day or two later W. E. went to Russell’s apartment, but he was not there. W. E. visited with Surridge, who said that on Thursday (December 4) he had taken Russell to a doctor’s office, a drugstore, and a grocery, where Russell had bought beer. Surridge said that when they got back to the apartment house there were two black men waiting in a gray pickup truck. Ratliff joined the two men, after telling Surridge that one of them had worked for him in the past.
W. E. continued to worry about Russell’s absence and came to see Surridge daily until Surridge began to dodge him. On December 9, W. E. reported to the police that Russell was missing and gave them the information Surridge had supplied. A week or so later the police found Surridge, at Mrs. Cook’s house. He talked freely, telling the police the same story he had told W. E. and adding that after dropping Ratliff near the apartment house he had himself gone to the Senior Citizens Center for lunch.
Eventually Surridge became the principal suspect. Among the incriminating facts discovered by the police and later disclosed to the jury were three in particular. One, Surridge’s tale about Ratliff’s having recognized one of the two black men was quite improbable. Ratliff himself had been unemployed for more than ten years, so it was hardly likely that his former employee, after that length of time, would turn up to renew Ratliff’s acquaintance at the very moment when Surridge needed someone to blame for Russell’s disappearance. Two, the Senior Citizens Center kept records which indicated that Surridge had not come for his meal on December 4. Third, Surridge had openly displayed his .22 rifle when he had no motive for murder, but after Ratliff’s disappearance Surridge denied to the police that he had owned or possessed a rifle. It is a familiar rule that a defendant’s false and improbable statements explaining suspicious circumstances against him are admissible as proof of guilt. Jones v. State, 61 Ark. 88, 101, 32 S.W. 81 (1895); see also Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982).
On January 6, 1981, Desha County officers and Pine Bluff officers searched the Surridge property. It is deserted and remote from any town. It is reached by traveling 1.5 miles east from Rohwer to the Mississippi River levee and then 4.4 miles south along the road on the levee. The Surridge property is next to the levee. The house, 439 feet west of the levee, had once been occupied by Surridge’s brother, but it had been vacant for almost 20 years. The land had grown up in weeds and bushes. The police found Ratliff’s body 84 feet north of the house. The weeds were over six feet high and so thick that one had to be “almost on top of the body” to see it. Owing to the cold there was very little odor. The body was clothed, with nothing in the pockets. Next to the body were a half-used matchbook and a beer can half full. The only witness for the defense testified that fingerprints on the can were not Surridge’s. Whether they were Ratliff’s is not shown; the medical examiner’s assistants could not raise fingerprints from the decomposed body.
Surridge was arrested on January 7 and readily consented to a search of his apartment, saying he had nothing to hide. In the apartment the officers found a Glenfield scope for a .22 rifle, on the floor under a dresser. They also saw some matchbooks, the significance of which they did not then realize. A week later they went back and got the matchbooks, which were of an unusual design that matched the one found by Ratliff’s body.
There was expert testimony that death was caused by two .22-rifle shots into the back of Ratliff’s head, at such close range that the weapon was in contact with the skin. The fragments of the bullets could have been fired from a Glenfield rifle or any one of three other makes. The date of death was fixed as having been between December 3 and December 10.
No possible suspect except Surridge himself is shown to have been familiar with the Surridge property. Mrs. Cook and Surridge went to Desha County twice in the fall to visit Surridge’s friends who lived five or six miles from the Surridge land, but they did not to go the Surridge property on those trips. Mrs. Cook testified that they went back on New Year’s Day, but spent only about 15 minutes there looking at the house, which Surridge talked about repairing if the two of them should marry. Surridge also took Ratliff to Desha County in about October, but there is no indication that they visited or had any reason to visit the deserted Surridge property.
We need not narrate the proof in complete detail. It was argued to the jury and again here that the unidentified black men may have murdered Ratliff, but that árgument rests only on Surridge’s unsworn statements and fails for want of any indication that either the men or Ratliff could somehow have found the way to the Surridge property, for no apparent reason.
By contrast, the State proved that Surridge had robbery as a possible motive, that he was the last person known to have seen Ratliff alive, that he had a rifle similar to the one that was used, that he denied that incriminating fact, that he had the opportunity to commit the crime, that he alone was familiar with the Surridge property over 50 miles from Pine Bluff, and that the telltale scope and matchbooks were in his apartment. The defense stresses the fact that the weapon was never found, but that argument cuts both ways. In the fall Surridge wanted to own a rifle and openly displayed it. But after the murder it would have been incriminating and could readily have been disposed of as Surridge drove homeward along the river for more than four miles. To say that the jury was confronted with a choice between two equally reasonable explanations of the murder appears to us, as it did to the jurors, to be a wholly untenable position. In fact, any attempt to construct an alternative theory, such as that the black men somehow went to the Surridge property and killed Ratliff, necessarily involves unfounded speculation and conjecture.
The appellant’s other point for reversal questions the trial judge’s action in permitting Dr. Malak, the state medical examiner, to identify the body by comparing x-rays taken during the autopsy with x-rays of Russell Ratliff that Dr. Malak had obtained from St. Vincent Hospital in Little Rock. The argument is that under Uniform Evidence Rule 803 (6), Ark. Stat. Ann. § 28-1001 (Repl. 1979), the custodian of the hospital x-rays should have been called to identify them as records made in the usual course of business. That rule, however, has been modified by Act 255 of 1981, which permits hospital records to be authenticated by an affidavit of the custodian with the same effect as if the custodian were present and testified to the matters stated in the affidavit. Ark. Stat. Ann. §§ 28-935 to -943 (Supp. 1981). That statutory procedure was followed in this case; so Dr. Malak’s comparison of the two sets of x-rays, which he showed to be identical, was proper. Moreover, Uniform Evidence Rule 703 provides that an expert witness may base his opinion upon facts or data not admissible in evidence if of a type reasonably relied upon by experts in the particular field. The St. Vincent records and x-rays were not introduced in evidence, but they were marked for identification and are in the record. They, together with the medical examiner’s testimony, form an adequate basis for the identification of the body.
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Per Curiam.
The Arkansas Bar Association, through its Interest on Lawyers’ Trust Accounts Committee, petitioned this court to permit the collection and disbursement of interest derived from lawyers’ trust accounts, which are nominal in amount and of short duration. The recipient of the funds would be a nonprofit organization to be created to dispense the funds primarily to provide legal aid to the poor in civil matters, and secondarily, for other specified legal projects. On January 10,1982, in response to the petition we issued a per curiam opinion inviting amicus curiae and other writing on this proposal. The principal responses have been from the Bar Committee that originally petitioned this court, the Arkansas Justice Foundation, Inc., a nonprofit, tax exempt entity which assists and supports free legal services for the poor, and some legal aid offices.
According to the briefs from the Bar Association and the Justice Foundation, the pilot program of the nature proposed here is, in essence, the Florida program. In seven states the highest court or the legislature has authorized a similar plan. Proposals have been disapproved in three states. Similar proposals are under study in the vast majority of the other states. The Florida program was first proposed there in 1971 and authorized in 1978 by the Supreme Court of Florida in In Re: Interest on Trust Accounts, 356 So.2d 799 (Fla. 1978). Alterations were found to be necessary which were made in the following opinions: Matter of Interest on Trust Accounts, 372 So.2d 67 (Fla. 1979); Matter of Interest on Trust Accounts, 396 So.2d 719 (Fla. 1981); and Matter of Interest on Trust Accounts, 402 So.2d 389 (Fla. 1981). See also In the Matter of the Petition of the Minnesota Bar Association, No. A-8 (Minn., December 8, 1982); and Petition of New Hampshire Bar Association (New Hamp., November 24, 1982).
The Florida program, like the present proposal, is voluntary in the sense that attorneys are free to participate or refuse to participate as they see fit. This is acceptable. However, that court’s most recent pronouncement, which gives us great concern, amended the rules to provide that clients need not be notified that their funds are being so used nor can they decline to allow their escrow funds to be used in tlje program. This change was deemed necessary because the Internal Revenue Service ruled that the interest generated from the trust accounts would be taxable to the clients whose funds were used unless the decision whether to participate in the program was removed from the clients. Rev. Rul. 81-209, 26 CFR 1.61-7, provides that interest earned in a plan where the client has no control over the decision to participate would be treated as reportable income only by the receiving entity, not the attorney nor his clients, so long as the funds to be commingled were nominal in amount and held for a short duration. The Florida program and the plan submitted to this court by the petitioner committee provide that once the attorney decides to participate consent by his clients is not required. This eliminates any control the client may have had over the earnings. The petitioner justifies this procedure, as did the Florida court, by the argument that the clients do not currently receive any income from this type of account, so that there is no “taking” of “property” that would trigger the protection of the due process clause of the Constitution; and that for a single client’s funds, nominal in amount, placed in the lawyer’s trust account for a short duration, it is impractical to compute and pay interest to that individual client. In summary, the proposal involves only funds and accounts that presently do not earn interest, and, therefore, the clients lose nothing by the implementation of this program.
While we support the basic concept of allowing this type of trust funds to be placed in interest bearing accounts, we are of the opinion that participation in the program must be conditioned upon notice to and approval from the clients whose funds are so used. The public confidence in their attorneys and the legal profession in general is not likely to be enhanced by the knowledge that lawyers are authorized to use their clients’ funds to generate income in support of projects that the clients may disapprove and certainly cannot control. As American Bar Association President Morris Harrell recently stated in a speech in Seattle, “Our legal system rests so precariously on public confidence that the rule of law itself is threatened by a lack of real understanding by the public.” With respect to the use of client funds to generate income for a worthy legal project, such as here, we think these considerations require that the proponents seek a change in the Internal Revenue Code or the interpretation to enable the plan to be administered in a manner that unquestionably promotes rather than potentially undermines public confidence in the legal profession. Full disclosure of every use of client funds is essential to that much needed confidence. Further, the fact that a person is not currently using his resource to generate income does not give license to others to use that resource to generate income for a purpose, no matter how worthy, without the owner’s consent.
We reiterate that we support the concept of allowing lawyers’ trust funds to be placed in interest bearing accounts to generate income for legal services to the poor and the other purposes proposed in the submitted plan. The Arkansas Justice Foundation, Inc., the Arkansas Bar Association and other proponents are to be commended. Efforts should be made to bring about a change in the federal tax laws or their interpretation in order to permit us to authorize a plan that avoids the difficulties about which we have expressed our concern.
Petition denied.
Hays, J., would grant. | [
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Steele Hays, Justice.
Clarence Thompson, appellee, acquired oil and gas leases to twenty acres of Ouachita County Arkansas, with the exception of a 1 /8th mineral interest belonging to Marie Fife, appellant. Though unable to obtain a lease from Mrs. Fife, Thompson began drilling operations and the well was completed as a producer in January, 1984. It has produced oil at a rate of several barrels a day since its completion.
Thompson filed suit against Mrs. Fife to impress a lien on her 1 /8th interest, less 1 /8th of 1 / 8th royalty, for the costs of drilling and operating the well, a total of $168,683.40, and for future operating costs. Mrs. Fife does not contend that Thompson’s costs are excessive, rather she claims he is a willful trespasser and that she is entitled to the value at the surface of all minerals attributable to her interest, plus $25,000 punitive damages. The chancellor held that while Thompson and Mrs. Fife were not technically co-tenants, their status was tantamount to co-tenancy and that Thompson was entitled to a lien upon 7 / 8ths of Mrs. Fife’s 1 /8th mineral interest until her proportionate share of the expenses is satisfied. Mrs. Fife has appealed. We believe the chancellor was correct.
The rule in a majority of jurisdictions holds that a lessee of the majority of mineral owners is entitled to remove the minerals, accounting to the non-leasing owner for his proportionate share, less the reasonable costs of producing the minerals at the surface. Williams & Meyers, Oil and Gas Law, § 502, pp. 572 and 573. The rationale for this principle doubtless rests on the fact that oil is capable of being removed by others and if an owner in common were free to block the removal of the oil, a valuable asset could be lost entirely to its owners.
Summers, Oil and Gas, § 38, p. 138 states:
In the previous section it was shown that in a majority of the jurisdictions in this country where the question has been raised, a co-tenant of lands containing oil and gas is privileged to take oil and gas therefrom without the consent of his co-tenants, but is under a duty to account to them for their share of the minerals taken after deducting the cost of production. . .The Courts have usually found, whether they were dealing with the co-ownership of land or the co-ownership of a separate mineral estate, sufficient reasons upon which to conclude that in either situation a co-tenant should be privileged to produce oil and gas, subject to a duty to the other co-tenants to account to them for their share of the minerals, less the reasonable cost of production.
Our own cases have embraced this rule, Ashland Oil and Refining Co. v. Bond, 222 Ark. 696, 263 S.W.2d 74 (1953):
It is a rule well established and plainly just that when one tenant in common has drilled a producing oil well upon the common property, he must be given credit for his reasonable expenses upon being required to account to his co-tenants for the oil withdrawn from the land. Prairie Oil & Gas Co. v. Allen, 8th Cir., 2 F.2d 566, 40 A.L.R. 1389; New Domain Oil & Gas Co. v. McKinney, 188 Ky. 183, 221 S.W. 245; Earp v. Mid-Continent Petroleum Corp., 167 Okla. 86, 27 P.2d 855, 91 A.L.R. 188; Paepcke-Leicht Lbr. Co. v. Collins, 85 Ark. 414, 108 S.W. 511; Burbridge v. Bradley Lbr. Co., 218 Ark. 897, 239 S.W.2d 285.
That statement of law was affirmed in McMillan, Trustee v. Powell, 235 Ark. 934, 362 S.W.2d 721 (1962).
The decree is affirmed.
Purtle, J., not participating.
The chancellor’s memorandum opinion noted: the parties agree that the production from this well is not controlled by the Arkansas Oil and Gas Commission. Ark. Stat. Ann. § 53-106 (Repl. 1971) provides that all common sources of supply of crude oil discovered after January 1,1937, shall be controlled and regulated according to Act 105 of the Acts of 1939. Since the Smackover Lime in the Snowhill field is not controlled by the Arkansas Oil and Gas Commission, Thompson could not proceed under § 53-115 and establish a drilling unit. Paragraph 1(c) of § 53-115 provides in part, “Such order shall also provide that an owner who does not affirmatively elect to participate in the risk and cost of such operations shall transfer his right in such drilling unit and the production from the unit well to the parties who elect to participate therein for a reasonable consideration and on a reasonable basis, which in the absence of an agreement between the parties, shall be determined by the Commission. Such transfer may be either a permanent transfer or may be for a limited period pending recoupment out of the share of production attributable to the interest of such non-participating owner by the participating parties of an amount equal to the share of the costs that would have been borne by such non-participating party had he participated in such operations, plus an additional sum to be fixed by the Commission.”
Paragraph 1 (e) provides that, “In the event there is an unleased mineral interest or interests in any such drilling unit, the owner thereof shall be regarded as the owner of a royalty interest to the extent of a one-eighth (1 /8th) interest in and to said unleased mineral interest and such royalty interest shall not be affected by the provisions of subparagraphs (c) and (d) above.” | [
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Steele Hays, Justice.
Appellant, Betty Odell, filed this action in Jackson County, where she lives, against her former employer, Arkansas General Industries Co., which operates a manufacturing plant in White County.
The complaint states appellant was hired at-will in 1959 and was terminated on March 7, 1984, for failing to arrange for continued absence from work due to an injury, in violation of company policy. It alleges an intentional, wrongful discharge in violation of public policy and the Arkansas Workers’ Compensation Act, resulting in loss of income, mental anguish, physical and mental pain and suffering. The complaint prayed for compensatory and punitive damages.
Citing Arkansas Rules of Civil Procedure Rule 12(b)(3), dealing with improper venue, AGI moved to dismiss the com plaint based on its residence in White County. The circuit judge granted the motion and Mrs. Odell has appealed. Our jurisdiction attaches under Rule 29(l)(o).
In Atkins Pickle v. Burrough-Uerling-Brasuell Consulting Engineers, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982), we said:
Ever since the adoption of our Civil Code in 1869 our statutes have defined certain local actions and directed that all other actions be brought in the county of the defendant’s residence. § 27-613. We have said repeatedly that our underlying policy is to fix the venue in the county of the defendant’s residence unless for policy reasons there is a statutory exception.
Appellant claims the exception which permits her to sue in Jackson County is found in § 27-610:
All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.
We disagree with that proposition. While we have said the reference in the statute to “where the accident occurred,” does not require a trauma or blow in the literal sense, Coca-Cola Bottling Co. v.Kincannon, 202 Ark. 235, 150 S.W.2d 193 (1941), Shultz v. Young, 205 Ark. 533, 169 S.W.2d 648 (1943), even so, a physical or bodily injury is required in order for § 27-610 to apply. Arkansas Valley Industries, Inc. v. Roberts, 244 Ark. 432, 425 S.W.2d 298 (1968); Robinson v. MoPac Transp. Co., 218 Ark. 390, 236 S.W.2d 575 (1951). Thus, defamation, abuse of process, false imprisonment, malicious prosecution, and the like, though tortious in origin, do not come within § 27-610. B-W Acceptance Corporation v. Colvin, 252 Ark. 306, 478 S.W.2d 755 (1972).
A case in point is Arkansas Valley Industries, Inc. v. Roberts, supra. The plaintiff, Graddy, filed suit in Faulkner County for personal injuries in the nature of “heartache, mental anguish, nervousness, sleeplessness, nightmare and shock.” These conditions were alleged to be the result of the defendant’s abuse of process, malicious prosecution, vexatious litigation and false imprisonment. The plaintiff resided in Faulkner County, though the defendant had no branch office or other place of business there. In granting the defendant’s petition for a writ of prohibition to the Faulkner Circuit Court, we said:
In Monk v. Ehret, 192 Cal. 186, 219 Pac. 452 (1923), there was under consideration a statute similar to ours, and after reviewing the history of the enactment of such statutes, it was concluded that the term “personal injuries” in the statute was limited to corporeal or physical injuries by reason of any violence. That court, in Plum v. Forgay Lumber Co., 118 Cal.App. 76, 4 P.2d 804 (1931), followed the same construction of the term “personal injury” and held that an action for malicious prosecution and false arrest could not be maintained in the county in which the arrest occurred.
Other courts have held to the contrary. See Hatcher v. Southern Ry. Co., 191 Ala. 634, 68 So. 55 (1915).
However, we feel that under Robinson, supra, we are committed to the view expressed by California in Monk v. Ehret, supra, and consequently find that the Faulkner Circuit Court is without venue. Nor can we find anything in the allegation with reference to mental anguish which would change this result, since this was also a factor involved in the Robinson case.
Appellant cites M.B. M. Co. v. Counce, 268 Ark. 265, 596 S.W.2d 68 (1980). There Ms. Counce sued her former employer for wrongful discharge under circumstances intended to cause severe emotional distress. The decision in Counce is of no avail in this case. Venue was not an issue in Counce, and the opinion notes that Ms. Counce regarded her cause of action as sounding in contract, rather than in tort. While appellant Odell has couched her complaint in terms of intentional wrong, and willful and wanton conduct, bare allegations of willful and wanton conduct are not sufficient. Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985). When we look beneath those allegations we think the complaint essentially alleges simply a wrongful discharge. We conclude that venue must be where the defendant resides.
The order is affirmed.
Purtle, J., not participating, | [
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Melvin Mayfield, Chief Judge.
In the first stage of a bifurcated trial the jury found the appellant guilty of theft by receiving and found the value of the property to be more than $100.00 but less than $2,500.00. The judge then heard evidence relating to appellant’s criminal record and, in accordance with a provision of the habitual offender law, Ark. Stat. Ann. § 41-1005 (Supp. 1983), instructed the jury that appellant had been convicted of three previous felonies. In the second stage of the trial the jury fixed the appellant’s punishment at eight years in the Department of Correction.
Appellant’s sole argument on appeal is that the trial court erred in allowing the state, during the first — or guilt — stage of the trial, to question the appellant on cross-examination about the extent of his previous felony convictions. It is contended that the state went beyond the scope of attacking his credibility as a witness, under our Uniform Evidence Rule 609, and was allowed to prove the habitual offender allegations during the first stage of the trial, contrary to the procedure set out in § 41-1005. Under the authority of Duncan v. State, 254 Ark. 449, 494 S.W.2d 127 (1973), the appellant seeks a reduction of sentence to the minimum sentence for theft by receiving as provided at the time the crime was committed on March 2, 1982, without any enhancement allowed by the habitual offender law. We think the answer to appellant’s argument is found in the following areas of consideration.
First of all, as appellant in his brief admits, Coleman v. State, 256 Ark. 665, 509 S.W.2d 824 (1974), held that a defendant charged as a habitual offender could be cross-examined about prior felony convictions if he took the stand to testify in his own defense. The habitual criminal statute in effect at that time specifically allowed this, but the court also pointed out that the United States Supreme Court in Spencer v. Texas, 385 U.S. 554 (1967), held that such procedure did not violate any constitutional right of a defendant in a criminal case. In Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982), the court again rejected the argument made in Coleman. The statute in effect in Scroggins, Ark. Stat. Ann. § 41-1005 (Repl. 1977), did not specifically provide that a defendant could be cross-exam ined about prior felony convictions but the Commentary to that statute states that the provision was deemed to be superfluous since Ark. Stat. Ann. § 28-707 (Repl. 1962) did so provide. Section 28-707 has now been repealed by our Uniform Rules of Evidence and Rule 609 contains a provision similar to that of § 28-707 in regard to previous convictions.
Secondly, in Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982), we held that the trial court has a great deal of discretion in making the determination, required by Ark. Unif. R. Evid. 609 (a), as to whether the probative value of the evidence of a prior felony conviction outweighs its prejudicial effect, and that the decision of the trial court should not be reversed absent an abuse of that discretion. In Williams v. State, 6 Ark. App. 410, 644 S.W.2d 608 (1982), we said this weighing process must be decided on a case-by-case basis and our statement in Williams was noted by the Arkansas Supreme Court in Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983), as being a correct statement of the law.
In Floyd the court also rejected the argument that when the defendant takes the stand and admits he has been convicted of a felony he has been impeached and the state should not be allowed to further impeach him. To the contrary, the court said he may be asked “how many times he has been convicted.” The same issue was involved in Bell v. State, 6 Ark. App. 388, 644 S.W.2d 601 (1982), where, as a concurring opinion points out, the defendant wanted to limit the evidence of prior convictions to the fact of conviction, 6 Ark. App. at 398. The majority opinion held that “there was no abuse of discretion in the trial court’s decision to allow the state to impeach appellant’s credibility by naming the previous felony convictions.”
Finally, we note that the appellant argues in his brief that the prosecutor’s cross-examination about prior convictions went beyond the purpose of impeachment as contemplated by Rule 609 by asking if appellant had been represented by counsel at the time of those convictions. Surely, appellant says, his representation by counsel was not relevant to the issue of credibility.
That issue, however, was not raised below. The appellant made a motion in limine seeking generally to prohibit the prosecutor from asking whether appellant had been convicted of specific offenses on particular dates. The court ruled that the prosecutor could ask whether appellant had been convicted of a crime, what the crime was, the date, and the sentence. But when the prosecutor added to that by also asking if appellant had been represented by counsel, no objection was made. In Ark. State Highway Commission v. Pulaski Investment Co., 272 Ark. 389, 614 S.W.2d 675 (1981), the concurring opinion noted that the trial court should deny a threshold motion that is vague and indefinite, but said it may not be necessary to renew the objection when the matter is presented if the threshold motion is sufficiently specific. That opinion agreed with the majority opinion that the court’s ruling on the motion in limine had not been violated, but said even if there had been a violation, it would have been incumbent upon counsel to renew his objection so the trial judge could determine whether the proffered testimony fell within the vague contours of the motion. Here, we think it was necessary for appellant to object to the questions about representation by counsel because the motion in limine did not cover that issue and the trial court was not given the opportunity to rule on it.
For the reasons discussed, we affirm.
Cooper and Corbin, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellants, Fred Lynn Ward and his wife, Gloria D. Ward, on December 5, 1978, applied to appellee, Union Life Insurance Company, for a health insurance policy. The policy application form contained the following language:
I hereby represent that on this date I and all of the dependents for whom I am requesting coverage are in good and sound health, and that.in the past two years have not consulted with or been treated by a doctor for any of the following: heart trouble, high blood pressure, kidney disease, diabetes, disease of the lungs, cancer, or any mental or nervous or female disorder.
Appellants were instructed to list any other medical treatment received during the last two years to which they responded:
Name Disease or Date Name and Address of Injury Physician and Hospital
Gloria Child Birth 7/27/77 Dr. D. B. Allen Doctors Hospital Doctors Building Little Rock
The policy became effective January 1, 1979.
On June 11, 1979, appellants submitted a claim for insurance benefits for drug expenditures incurred between January and May, 1979. Appellee, upon investigation, determined that appellant Gloria Ward had, within twenty-four months prior to application, been treated by Dr. William Roberts for severe psychoneurosis and alcoholism and that Dr. D. B. Allen had treated her for disorders associated with her menstrual period and breasts.
In July, 1979, appellee notified appellants that their policy of insurance was rescinded for failure to disclose past medical history in their application for insurance. Appellee tendered a refund check to the Wards for the premiums paid less any claim paid to date. On August 3, 1979, appellee returned a premium check sent by appellants on July 30, 1979, and again advised appellants that the insurance policy had been terminated. On September 2, 1979, appellant Gloria Ward gave birth to a son, Wesley Frank Ward. Complications arose out of the delivery which resulted in medical expenses on behalf of Gloria Ward and her son in the sum of $7,094.00. Appellants filed claims with appellee for medical and hospital costs they incurred in connection with the childbirth and for resulting complications which appellee refused to pay. Appellant Gloria Ward filed suit in her own behalf and appellant Frank Lynn Ward filed suit on behalf of his infant son, each seeking to recover medical costs, statutory penalties and attorney’s fees.
Appellants accepted appellee’s computation of coverage at trial in the sum of $7,094.00 in the event cancellation of the policy did not obtain court approval. The court overruled appellee’s motion for summary judgment and proceeded to hear the case on its merits. Appellants contended at trial that appellee was not entitled to the good faith defense which it had affirmatively pled. The trial court dismissed appellants’ complaint.
Appellants’ first point for reversal concerns testimony and medical reports brought into evidence by appellee’s underwriter which the trial court permitted over appellants’ specific objection. Appellee had pled the affirmative defense of good faith contained in Ark. Stat. Ann. § 66-3208 (1) (c) (Repl. 1980), and pursuant to undertaking the burden of proof imposed upon it, appellee called its underwriter to testify to the contents of medical reports from Dr. William Roberts and Dr. D. B. Allen. Appellants objected on the basis that such testimony was hearsay and inadmissible. The court ruled that Dr. Allen’s report was admissible as an exception to the hearsay rule under Uniform Evidence Rule 803 (6). Dr. Allen’s report was admitted as an exhibit to appellee’s underwriter’s testimony. Dr. Allen’s report reflected that he had treated appellant Gloria Ward between April, 1978, and December, 1978, for phenothiaozine amenorrhea and galactorrhea.
Uniform Evidence Rule 803 (6) provides as follows:
Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or disagnoses [diagnoses], made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Appellee argues that the medical report was a part of records compiled by the underwriter in the course of appellee’s regular business activities in investigating claims and was clearly admissible under the above exception to hearsay. Appellee goes on to argue that if the report was not admissible as an exception to the hearsay rule, its introduction into evidence was cumulative and not prejudicial to appellants.
It is clear that the trial court relied upon the report from Dr. Allen and the underwriter’s testimony as reflected by the court’s finding as follows:
Upon receipt of this claim Union Life investigated the charges contained in the claim, due to the large number of drug charges, and in the course of such investigation determined, and this Court finds, that within the last twenty-four months prior to the date of the application Gloria Ward was treated and medication prescribed by Dr. Roberts for psychoneurosis and ethanolism (alcoholism) among other medical problems, and was treated by Dr. Allen for disorders associated with her menstrual period and breasts.
It is well-settled that the trial judge has the discretion to determine the qualification of witnesses and the admissibility of evidence. We do not reverse the trial court’s ruling absent a showing that it was an abuse of discretion. Error is presumed to be prejudicial unless it is demonstrated to be otherwise or is manifestly not prejudicial. Buckeye Cellulose v. Vandament, 256 Ark. 434, 508 S.W.2d 49 (1974).
We hold that the acceptance of the testimony and medical reports offered by appellee’s underwriter was an abuse of the trial court’s discretion and, accordingly, we reverse and remand for a new trial. In Hanna Lumber Co. v. Neff Design Builder, 265 Ark. 462, 579 S.W.2d 95 (1979), a case involving a suit to recover damages allegedly caused by the failure of a truss system manufactured by appellant, Uniform Evidence Rule 803 (6) was relied upon by appellee at trial for admission of checks with notations which violated the hearsay rule of evidence. The Court there agreed with the appellant that the checks constituted a violation of the hearsay rule and that they did not fall within the business records exception. In so holding, the Supreme Court stated: “There was no showing that the notations were made at the time the checks were written or that it was a regular practice of the business to make such notations. Appellee’s testimony as to his damages was based upon these notations; .. . ”. In Parker v. State, 270 Ark. 897, 606 S.W.2d 746 (1980), appellant argued for reversal that certain items were im properly introduced into the record. The Court discussed the application of the business records exception and determined that the exhibits prepared by the witness were not shown to have been kept in the regular course of business and that they were prepared for a specific purpose. It concluded that there was no foundation to prove the records were kept in the regular course of business. See also Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (1979), Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978).
The records and testimony in the instant case offered by appellee’s underwriter were hearsay and not admissible under Rule 803 (6) as a record maintained in the course of a regularly conducted business activity. The reports were not compiled in appellee’s normal course of business but rather for the specific purpose of investigating appellants’ claim submitted to appellee on Júne 11,1979, which does not come within the perimeters of the business records exception. We cannot say with confidence that the error by the trial court in accepting this evidence as an exception to the hearsay rule was not prejudicial.
Appellant’s second point for reversal is that the trial court erred in applying the good faith defense absent a showing that the alleged omissions or misstatements by appellants had some logical bearing upon the risk assumed. The trial court made a specific finding in applying the good faith defense contained in Ark. Stat. Ann. § 66-3208 (1) (c) (Repl. 1980), to the effect that the failure of appellants to disclose Gloria Ward’s prior medical history in the application for insurance were misrepresentations and omissions which were material to the risk insured under the policy and assumed by appellee. The court went on to find that, “but for such material omissions and representations, appellee would not have issued the policy to appellants.”
Ark. Stat. Ann. § 66-3208 (1) (Repl. 1980), of the Insurance Code provides in part:
All statements in any application for a life or disability insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either: . . .
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount or at the same premium or rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.
The insurer must show a causal relationship between an applicant’s misrepresentation and the eventual loss. Fairness and reason support the view that a causal connection should be essential. National Old Line Ins. Co. v. People, 256 Ark. 137, 506 S.W.2d 128 (1974).
We believe that this point is closely connected with appellants’ first point upon which we have reversed and remanded. The evidence which the trial court erroneously allowed was offered by appellee in its attempt to meet its burden of proof in establishing the good faith defense. Appellee in part relied upon this objectionable testimony and evidence to establish a causal connection between appellants’ alleged misrepresentations and their eventual claims. Therefore, we do not find it necessary to dispose of this issue since we reverse and remand on appellants’ first point.
Reversed and remanded for a new trial. | [
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Tom Glaze, Judge.
This case evolves from a criminal action in which the defendant, charged with first degree battery, failed to appear for trial. Cotton Belt Insurance Company (Cotton Belt) and Clint Spencer Bonding (Spencer Bonding) each had executed a $25,000 bond insuring the defendant’s court appearance, and when he did not appear, the trial court ordered the bonds forfeited. In doing so, the court entered judgment against the defendant for the total bond amount of $50,000. After finding Spencer Bonding and appellant (agent of Cotton Belt) were defendant’s sureties, the court held they were jointly and severally liable for the bond and entered a $25,000 judgment against each of them. From these judgments, appellant is the only party to appeal, and he raises one issue: The court erred in entering a judgment against him instead of Cotton Belt, because in executing defendant’s bond, appellant merely served as Cotton Belt’s limited surety agent. We agree and therefore reverse.
The State concedes that appellant acted as attorney-in-fact for Cotton Belt when he executed the defendant’s bond for the $25,000 amount. It is further undisputed that appellant, as executing agent, could only obligate Cotton Belt as surety on bail bonds not to exceed the sum of $27,000. The bond executed by appellant in this cause was clearly within the powers granted him by Cotton Belt, but the issue with which we are confronted stems from Cotton Belt’s subsequent insolvency. Because of his concern over collecting the $25,000 from Cotton Belt, the judge stated that he looked, instead, to the appellant to pay the obligation. In doing so, the judge expressly recognized that appellant had acted in the matter as Cotton Belt’s agent. Thus, the question we must decide is whether appellant, acting as a disclosed limited surety agent, is individually liable on Cotton Belt’s bond after Cotton Belt became insolvent.
In Williams-Berryman Insurance Co. v. Morphis, 249 Ark. 786, 461 S.W.2d 577 (1971), the Supreme Court held that an agent was not liable under a fire insurance policy he had procured from a company which later was adjudged insol vent. The court, quoting from 43 Am. Jur. 2d Insurance § 178 (1969), adopted the following rule:
[W]here a policy is procured in a company which is known by the agent to be insolvent, the agent is liable for a loss suffered thereby, while on the other hand, where the company was solvent when the policy was procured, the subsequent insolvency of the company does not impose liability on the agent or broker.
Williams-Berryman Insurance Co., 249 Ark. at 790, 461 S.W.2d at 580. This rule, expressed in different terms, is further discussed in 3 Am.Jur.2d Agency § 294 (1962):
If a contract is made with a known agent acting within the scope of his authority for a disclosed principal, the contract is that of the principal alone and the agent cannot be held liable thereon, unless credit has been given expressly and exclusively to the agent and it appears that it was clearly his intention to assume the obligation as a personal liability and that he has been informed that credit has been extended to him alone.
(emphasis supplied). See also Restatement (Second) of Agency, § 328 (1958), which in relevant part provides that “an agent, by making a contract only on behalf of a competent disclosed principal whom he has power so to bind, does not thereby become liable for its non-performance.”
In view of the foregoing established insurance and agency principles, we find nothing in the record before us that reflects the appellant ever obligated himself, individually, on the defendant’s bond. Because appellant did not do so, the judgment rendered against him should be set aside. Therefore, we reverse and remand to the trial court so that it can proceed consistent with this opinion.
Reversed and remanded.
Limited Surety Agent means any individual appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings and [who] receives or is promised money or other things of value therefor. Ark. Stat. Ann. § 43-734 (e) (Repl. 1977).
Cf. Miller v. State, 280 Ark. 371, 658 S.W.2d 389 (1983) (a case in which the Supreme Court decided a similar bond forfeiture issue involving Cotton Belt Insurance Company). | [
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Lawson Cloninger, Judge.
Appellant was convicted of aggravated robbery and burglary, and received a total sentence of fifteen years in prison.
Six points for reversal are urged by appellant. The points will be discussed in the order listed by appellant. We find no error in the trial court and we affirm.
Appellant’s first point for reversal is that the trial court erred in denying his motion to suppress the in-court identification of appellant because it was the product of an unconstitutionally unreliable and suggestive out-of-court identification.
Testimony at trial indicated that the victim went to bed about 11:30 p.m. on the night of June 24, 1982. The next thing she recalled was the struggle with a black male which lasted anywhere from a half minute to a minute. Although there were no lights on in the bedroom the victim testified that she was able to see the appellant in her bedroom because of the streetlight at the corner of her apartment building. She testified that her assailant was sitting on her chest approximately two and a half feet from her face during the struggle in her bedroom. She testified that she could see his face clearly. Appellant was apprehended, while walking across a field near the victim’s apartment shortly after the assault, and was brought to the victim’s apartment for her observation within five to ten minutes after the police were called. The victim identified appellant as her assailant while appellant sat in the police car.
The rule is that a confrontation between a victim and a suspect that takes place at a show-up rather than a lineup does not, without more, constitute a violation of constitutional rights. See Manson v. Brathwaite, 432 U.S. 98 (1977); Mize v. State, 267 Ark. 743, 590 S.W.2d 75 (1979). The Mize case was very similar to the instant case, in that the victim viewed the appellant in a police car very shortly after an assault took place. The assault had taken place in daylight and the prosecuting witness, having been encountered by the appellant very shortly prior to the assault, had ample opportunity to view appellant. The court held that from the totality of the circumstances there was no reasonable basis for contending that the show-up created a substantial likelihood of irreparable misidentification.
In the instant case, the prosecuting witness had ample opportunity to observe the appellant, and she testified that she could see his face clearly at the time of the assault and while he sat in the police car. As in Mize, when we view the totality of the circumstances we find no substantial likelihood of irreparable misidentification. It was important as a practical law enforcement procedure for the police to make a judgment as to whether appellant was the person to be held. The prosecuting witness testified that she saw her assailant’s face clearly at the time of the assault, thus providing a basis for her to reliably identify the appellant without reference to the in-custody view. See Mize, supra.
Appellant’s second point is that the trial court erred in giving AM Cl 2102, relating to aggravated robbery, as the instruction was inapplicable to the evidence presented at trial. The only issue on this appeal is whether or not the words, “or resisting apprehension immediately thereafter” should have been allowed into the instruction on the aggravated robbery charge, because that is the only objection raised by appellant in the trial court. It is well settled that an appellant may not change the grounds for his objection on appeal. Ulmer v. State, 253 Ark. 106, 484 S.W.2d 691 (1972). If an objection is made on one ground at trial, all other grounds are waived on appeal. Williams v. State, 270 Ark. 513, 606 S.W.2d 75 (Ark. App. 1980). The state argued to the trial judge that the contested words should be included, since appellant resisted apprehension while leaving the scene of the crime. Appellant argues with justification that there was no resistance of apprehension, and therefore this part of the instruction should not have been given.
It is a well settled rule of law that the trial court only commits reversible error when the appellant has been prejudiced by such. There is no indication here that appellant was prejudiced by this addition to the instruction and further, there is ample evidence to support a finding that appellant employed or threatened to employ physical force during the course of a theft in the victim’s apartment. There is evidence in the record to show that money was taken from the victim’s apartment, and that the assailant sat upon the victim, placed a pillow over her face, and was holding a knife.
Appellant’s third point for reversal is that the trial court erred in denying his proposed instruction on identification.
Appellant argues that he was entitled to his requested instruction relating to identification on the strength of language employed by the Arkansas Supreme Court in Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982), when the court stated that the jury weighs the reliability of the. identification evidence under the instructions of the court. The court, in Glover, however, did not say that a defendant is entitled to a specific instruction on identification. In Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), the court observed that just because an offered instruction contains a correct statement of law does not mean it is error for a trial court to refuse to give it. In Conley the court also stated:
At Conley’s trial the court gave standard instructions on reasonable doubts and credibility of the witnesses. The victim testified that she was with her assailant for a period of approximately one hour, recognized his voice, and had an opportunity to see him. The defense counsel was able to argue to the jury the lack of accuracy and the weight to be given to her identification testimony.
In the instant case, the trial court gave the standard jury instructions on credibility, AMCI 104, and reasonable doubt, AMCI 110. Counsel for the appellant also argued to the jury his theories of the lack of weight to be given the identification.
Appellant’s fourth point for reversal is that the trial court erred in denying his proposed instruction relating to character evidence. Appellant proffered a character evidence instruction which provided a detailed explanation of how the jury should treat evidence offered on defendant’s good character. The trial court, instead, gave AMCI 204, which covered the issue of character. That instruction, as given at trial, is:
If you find that the defendant is a person of good character you may take that fact into consideration in determining his guilt or innocence, but if you believe from all the evidence in the case beyond a reasonable doubt that the defendant is guilty you should so find, notwithstanding his good character.
In Conley v. State, supra, the Court stated:
If Arkansas Model Criminal Instructions (AMCI) contains an instruction applicable in a criminal case, and the trial judge determines that the jury should be instructed on the subject, the AMCI instruction shall be used unless the trial judge finds that it does not accurately state the law. In that event he will state his reasons for refusing the AMCI instruction. Whenever AMCI does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an AMCI instruction cannot be modified to submit the issue, the instruction on that subject should be simple, brief, impartial, and free from argument.
The trial court did not err in rejecting the particular instruction offered by appellant, as the subject was adequately covered by the AMCI instruction given by the court.
For his fifth point for reversal appellant urges that the trial court should have dismissed the jury panel as itdid not represent a fair and impartial jury drawn from a cross section of the community. In support of his point, appellant provided the trial judge with a 1980 census for the State of Arkansas showing that minorities composed approximately 7% of the population of Fort Smith. The defendant specifically objected to the fact that there were no minorities present on the jury panel. In Thiel v. Southern Pacific Co., 328 U.S. 217 (1946), the Court stated:
The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross section of the community.
It is not shown that a cross section of the community was not represented on the jury hearing this case simply because the jury panel did not include any individual representing a minority. A minority defendant is not entitled to have any minorities serve on his jury. Conley v. State, supra. Even if a panel is all white, a defendant must show a systematic exclusion of minorities. See Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982). Further, the random selection process does not guarantee a proportionate cross section or any proportionate number of any race on any given jury or jury panel. See Ford v. State, 276 Ark. 98, 653 S.W.2d 3 (1982).
Appellant has offered no proof of any systematic exclusion of minorities, and he had no legal right to a proportionate cross section of any race on his jury.
Appellant’s final point for reversal is that the trial court erred in sustaining the state’s objection to hearsay testimony. The state objected to the testimony of Charles Isaac Wilson, the defendant’s father, when asked what Officer Hammond said to him. Appellant argued that the statement was the admission of a party to the action and, on proffer, indicated that the witness would have testified that Officer Hammond told him that there was no evidence against his son and that they did not have his fingerprints. Uniform Rules of Evidence, Rule 801 (d) (2). However, it has not been shown how appellant was prejudiced by the error, if any, of the trial judge in sustaining the state’s objection. It is not clear from the proffer of proof when the- statement was allegedly made by Officer Hammond. Counsel for appellant stated that “it was immediately after the burglary arrest.” In the initial stages of the investigation, the police had no evidence of appellant’s involvement in the incident except that he was in the vicinity. No evidence was obtained against appellant until his identification by the victim, and the fingerprints found at the scene were not identified by the Federal Bureau of Investigation until some weeks later. The statement by Officer Hammond, if made, in no way exonerates the defendant. All that the evidence revealed was that at that particular time the police had no evidence against appellant and no fingerprints.
We have long held that a j udgment of conviction will be reversed for prejudicial errors only, and there has been no prejudicial error shown here. See State v. Vowell, 276 Ark. 258, 634 S.W.2d 118 (1982).
The judgment of conviction is affirmed.
Cooper and Glaze, JJ., agree. | [
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Terry Crabtree, Judge.
Raymond Warren was convicted by a jury of possession of cocaine. Warren alleges three eviden-tiary errors in the trial. We find sufficient error in appellant’s first point to reverse his conviction, and we address his second two points on appeal for the limited purpose of giving guidance to the trial court since the same issues are likely to arise again on retrial. See Pyles v. State, 329 Ark. 73, 79, 947 S.W.2d 754, 757 (1997).
Appellant was stopped on November 18, 1994, for speeding. The officer detected the odor of intoxicants, conducted field sobriety testing, and then arrested appellant. Officers then searched his vehicle, finding a loaded .38 caliber revolver and a cellophane bag containing nine pieces of an off-white roclc-like substance later determined to be crack cocaine. Officers also found $1,335 in bills and a large number of coins on appellant’s person.
A civil forfeiture proceeding ensued over the $1,335 pursuant to Arkansas Code Annotated § 5-64-401 (Supp. 1995). In that action, the court found that appellant had won this money in a crap game shortly before his arrest, and that the State had failed to prove it was proceeds or profits from a drug sale. However, despite this determination before Judge Samuel Turner in the civil forfeiture action, the State successfully introduced the money into evidence in the criminal trial.
Also, on May 11, 1995, officers obtained a warrant and searched appellant’s residence, finding additional drug paraphernalia and drug residue. Charges stemming from this search were dismissed, but the State successfully introduced the seized paraphernalia in the present case.
Appellant’s first point on appeal is that the trial court erred by admitting evidence seized in a search six months after the arrest for which appellant was being tried. The evidence consisted of scales, a plate with crack cocaine, and a pill bottle with cocaine residue. The trial court allowed this evidence to be admitted under Ark. R. Evid. 404(b) and the probative/prejudicial balancing test of Rule 403.
Rule 404(b) states:
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 the present case, the trial court ruled, as abstracted:
In view of the issues raised by the defense in the jury selection process, the Court is going to rule that the evidence is admissible under Rule 404(b) for another purpose such as proof of knowledge, intent, absence of mistake or accident, to rebut the suggestion made by the defendant’s attorney during the jury selection process that these items were placed, without the defendant’s knowledge, in the vehicle. I am willing to give a cautionary instruction in relation to this testimony. I am also willing to limit the manner in which the evidence is presented to present it in as bare a fashion as possible and also one that would limit any prejudicial effect.
In his pretrial ruling on the motion in limine to exclude the fruits of the later search, the trial court cautioned defendant’s attorney about possibly “opening the door” to such evidence by disclaiming ownership of the drugs. Appellant contends his strategy was simply to force the State to prove each element of its case, and that his argument was purposefully limited to avoid disclaiming ownership of the drugs, which would have allowed extrinsic evidence to prove he had possessed drugs on other occasions. However, the trial court found fault in appellant’s attempted line of questioning in voir dire. Essentially, appellant’s attorney queried the potential jurors about whether they loaned their cars to people and whether they searched under the seat for contraband when the cars were returned. The State successfully objected to this line of questioning, and the standard instruction about statements of counsel not amounting to evidence was given. However, the trial court found that this exchange was sufficient to imply to the jurors that appellant was disclaiming ownership of the drugs, and therefore opened the door to the State to show his proximity to drugs and paraphernalia in the search six months later.
Appellant now emphasizes that his questions in voir dire were timely and successfully objected to by the State, effectively closing any door he may have inadvertently opened. Also, appellant argues that under the same reasoning, a plea of not guilty could amount to an implication of a disclaimer of ownership, opening the door to admission under 404(b). Appellant’s argument goes on to say,
It is difficult to understand how possession of controlled substance and paraphernalia alleged to be in the appellant’s residence on May 11, 1995, can be relevant or probative to whether he had possession of a controlled substance under the seat of his vehicle on November 18, 1994. A future act certainly does not prove knowledge of a past act.
In response, the State simply argues that the evidence tending to prove some material point, rather than just labeling appellant a criminal, is admissible under 404(b) with a proper cautionary instruction. Lindsey v. State, 319 Ark. 132, 138, 890 S.W.2d 584, 587 (1994). Further, the State argues that it is proper to rebut defense claims of lack of knowledge by introducing evidence of other wrongs. Neal v. State, 320 Ark. 489, 493-94, 898 S.W.2d 440, 443 (1995). However, Neal is distinguished because in the present case, the appellant did not testify, and his only denial of knowledge is a strained implication from counsel’s attempted line of questions during voir dire.
Appellant argued vigorously to the trial court that its ruling was highly prejudicial, and would have the effect of labeling the defendant a “drug dealer” to the jury based on facts wholly outside of the present information. Notably, the evidence admitted was from subsequent actions, and not prior acts as usually is the case under this rule. Appellant states in his brief that all of the cases that deal with Rule 404(b) involve prior acts. The State did not refute this assertion, but our own research discovered that subsequent actions have been admitted to show intent, but none of these cases have been so far removed in time or as tenuous in their link to the proffered evidence as the present case. For example, in Bragg v. State, 328 Ark. 613, 627, 946 S.W.2d 654, 661 (1997), the supreme court affirmed the trial court’s admission of testimony about a subsequent drug transaction. However, in Bragg, the subsequent act was relevant to the State’s challenged identification of the defendant and to show intent or lack of mistake regarding the drug charge stemming from a transaction one year prior.
Also, the case of Parker v. State, 300 Ark. 360, 364-65, 779 S.W.2d 156, 158 (1989), allowed subsequent acts to be admitted under Rule 404(b). However, the subsequent acts in Parker were closely linked in time as a part of the State’s evidence of the defendant’s plan to murder an entire family. The court reasoned, “the entire sequence of events was such an inseparable whole that the State was entitled to prove the entire criminal episode.” Id. (citations omitted). However, the present case is easily distinguished since there is no indication that the initial traffic stop is part of a criminal episode culminating six months later in the search of appellant’s house and the seizure of paraphernalia.
Finally, the case of Thrash v. State, 291 Ark. 575, 581, 726 S.W.2d 283, 286 (1987), allowed evidence of subsequent acts under Rule 404(b) when subsequent burglaries established a time-frame that was independently relevant, and where the burglaries were committed with the same modus operandi, or same unique method of operation. Id. (citing Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987).) However, the facts here include neither a time frame for the commission of a crime, nor a unique method of operation.
The standard of review is a high hurdle in overturning a trial court’s evidentiary ruling under Rule 403 or 404(b). The standard of review of a trial court’s weighing of probative value against unfair prejudice is whether the trial court abused its discretion. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993). The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992).
However, we find appellant’s argument logically and legally persuasive. The limited case law holding subsequent acts admissible under Rule 404(b) is factually distinguishable from the present case. Further, the prejudicial impact of allowing the jury to see additional drug-related evidence stemming from an entirely separate, distinct, and remote (six months later) event is clearly prejudicial, and lacks any logical connection to the stop for speeding six months earlier. Accordingly, we hold that the trial court abused its discretion by admitting evidence that was seized six months after the act for which appellant was being tried, and that lacked any temporal or logical link to the current charge.
Reversing appellant’s conviction on this first point renders his second two points moot, but we address them below to the extent that they may be revisited in a subsequent trial.
For his next point, appellant argues that the failed civil forfeiture proceeding to seize the $1,335 in currency as drug proceeds should completely bar its introduction in the instant criminal matter because of the court’s finding of fact that the money was gambling proceeds. This action, appellant argues, also violated Rule 403 because it was intentionally misleading to the jury and highly prejudicial to the defendant. Without citing any case law, the appellant broadly argues that admitting the money was a violation of res judicata, and the civil judgment and finding of fact should have estopped the State from introducing the money in the criminal matter.
Collateral estoppel bars the relitigation of issues, while res judicata bars the relitigation of claims. The policy consideration behind both theories is the finality of litigation. See gen. Newbern, Ark. Civil Prac. and Proc. (2d ed.), § 26-13; Coleman’s Serv. Ctr. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). Collateral estoppel is more appropriate in the present case since appellant seeks to bar admission of a single fact already judicially determined.
The State contends that even though a civil court made a specific finding-of-fact to the contrary, the criminal court may allow into evidence the seized money and argue that it had a tendency to make the existence of any fact more probable. The State argues that this Rule 401 analysis' amounts to a lower burden of proof than what the State faced at the forfeiture hearing, and is therefore proper. In the alternative, the State argues that even if the money was improperly admitted, any error is harmless because of the overwhelming proof of guilt.
Based on the potential independent relevance of the evidence, we find that the trial court did not abuse its discretion in admitting the money found on the person of the appellant at the time of the arrest.
Appellant’s final argument is based on the trial court allowing the State to essentially reopen its case and put on rebuttal evidence outside the scope of appellant’s defense case, and based on the prosecutor’s implied comment on appellant’s failure to testify in his own defense. The trial court denied appellant’s motion for a mistrial.
Declaration of a mistrial, of course, is a drastic remedy and is proper only when the error is beyond repair and cannot be corrected by any curative rebef. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). In addition, the granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).
Turner v. State, 325 Ark. 237, 245, 926 S.W.2d 843, 848 (1996).
Here, the State admits that a prosecutor’s comment on a defendant’s failure to testify can violate the right against self-incrimination sufficient to justify a mistrial. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). However, the State argues that the prosecutor’s comments were merely proper argument about the defendant’s knowledge, a necessary element of the crime. Further, counsel are given some latitude in opening and closing remarks, Littlepage v. State, 314 Ark. 361, 371, 863 S.W.2d 276, 281 (1993), and remarks during closing that require reversal are rare, requiring an appeal to the jurors’ passions. Mills v. State, 322 Ark. 647, 663, 910 S.W.2d 682, 691 (1995). The remarks here do not appeal to the jurors’ passions, and do not otherwise appear to require the drastic remedy of a mistrial.
Reversed and remanded.
Robbins, C.J., and Meads, J., agree. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant failed to prove that she sustained a compensable injury identifiable by time and place of occurrence. On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision. We disagree and affirm.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. W. W. C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996). Where the Commission denies a claim because of the claimant’s failure to meet her burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992).
The record indicates that appellant worked for appellee in July of 1993 as a spotter on a heel cover line. Appellant testified that she injured her foot in July of 1993, when she tripped over a rug and her foot bent back. She said that she reported the incident to her supervisor, and that she was seen by the company nurse who told her that it was not broken. Appellant also testified that she filled out an accident report.
Flowever, there was no record that appellant had reported an injury or filled out an accident report. The company nurse testified that she did not remember seeing appellant in July of 1993. She said that there were no records, accident reports, or notations in appellant’s entire medical history that relate to an injury in July 1993.
On October 26, 1993, appellant visited Dr. K.A. Carpenter. His notes reveal that appellant had swelling in her foot, and it was attributed to standing for eight hours. Also, Dr. Carpenter noted that appellant could not recall any recent trauma to her ankle. Dr. Carpenter attributed appellant’s edema on her ankle to her chronic standing. On November 12, 1993, Dr. Carpenter recorded that appellant had fallen on Halloween night. He noted that she twisted and fell and now “[her ankle] bothers her again.” On November 19, 1993, Dr. Carpenter was at a loss to explain why appellant was having problems, but concluded that appellant’s fall on Halloween could be the cause of her problems. Also, the medical evidence reveals that appellant’s five x-rays performed from October to the first of December did not reveal any deformities or fractures in relation to appellant’s foot. On December 20, 1993, however, an x-ray revealed a healing fracture.
The Commission found that there was “simply insufficient proof in this record to say that claimant proved by a preponderance of the credible evidence that she sustained an injury that is identifiable by time and place.” The Commission further opined:
The claimant’s testimony and that of her husband is not sufficient to prove this claim. Claimant is unable to identify a specific time, date, place of occurrence or provide any credible evidence of the alleged specific incident. If an incident did occur, one would suspect that the claimant could at least say where it occurred. Thus, in our opinion, there is simply insufficient evidence that claimant’s foot difficulties are causally related to any work-related injury. Additionally, there is testimony that claimant’s injury could have occurred on another occasion. Although it is not respondent’s burden to prove how claimant injured herself, there is plausible evidence that claimant injured her foot in October of 1993.
Even if we were to give the claimant the benefit of the doubt and find that she sustained a specific incident in July of 1993, which we do not find, the claimant has failed to prove by a preponderance of the evidence objective medical findings establishing a compensable injury. Dr. Carpenter obviously felt that she injured herself on Halloween when she fell in a ditch. Claimant did not offer even one medical opinion linking her foot problems to her alleged work-related incident.
The weight and credibility of the evidence is exclusively within the province of the Commission. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996). It is clear from the Commission’s opinion that it simply did not believe appellant’s version of the events. We cannot say that there is no substantial basis to support the Commission’s decision.
Affirmed.
Pittman, Arey, and Neal, JJ., agree.
Griffen and Crabtree, JJ., dissent. | [
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John Mauzy Pittman, Judge.
Lee Moore has appealed from a default judgment for appellee, Taylor Sales, Inc., entered against him by the Pulaski County Circuit Court. We hold that the circuit judge did not abuse his discretion in entering a default judgment against appellant and affirm.
In June 1995, appellee sued Architectural Exteriors, Inc., doing business as Architectural Exterior Innovations, Inc., and Randy Harris, Mike Renfroe, George Abbe, and appellant, doing business as Architectural Exteriors, Inc., and Architectural Exterior Innovations, Inc., for $19,467.78. Appellant was personally served with process on June 13, 1995, and also accepted summonses for Architectural Exteriors, Mike Renfroe, and Randy Harris on that date.
The defendants failed to file timely answers, and on July 19, 1995, appellee moved for default judgment. On July 24, 1995, Harry Stuth, Jr., a Texas attorney, filed an answer for all defendants except Mr. Abbe. In November 1995, appellant filed for summary judgment. A hearing on the motion for summary judgment was held on November 27, 1995. Although the transcript of that hearing is not in the record, appellant filed on that date a response to the motion for default judgment, stating that he was caught by surprise at the hearing when the issue of the default judgment was brought up. On December 7, 1995, appellant filed a pleading arguing that, although he had delivered the petition to his attorney in a timely manner, his attorney had, through inadvertence and mistake, allowed the response time to elapse without fifing an answer. Appellant explained that Mr. Stuth was recovering from a heart transplant that had taken place on May 15, 1995, and was working two hours a day when appellant delivered the complaint to him. The circuit judge entered a default judgment against all defendants on December 11, 1995.
Appellant moved to set aside the default judgment. In support of this motion, Mr. Stuth filed an affidavit wherein he stated:
3. I know that Lee Moore delivered to me copies of the Plaintiffs petition on or about June 24, 1995. I know that I contacted James Lawson, Esq., attorney for Plaintiff within several days and discussed possibility of settling this cause of action. I know that I contacted him several more times within the next 14 day period.
4. During this period of time I had just returned to the office from receiving heart transplant surgery on May 15,-1995. I was working at the office on a three to four day a week basis, three hours a day, after having been out of the office for approximately seven weeks.
5. I know that the unusual [sic] procedures that are employed in my office when I am retained by Defendant with regard to due dates for answers and other pleadings were not instituted in this case by mistake and inadvertence. As a result, the Answer of the Defendants I represent was not filed timely but was filed on July 24, 1995, 30 days after service was obtained on Mr. Moore and the two corporations.
6. The reason for this failure to file timely was not the result of conscious indifference, or failure of the Defendants to bring to my attention this cause of action, but only the mistake and inadvertence that occurred in my office. The error was the direct result of the somewhat abnormal state of my office having been gone for almost seven weeks, and being able to work only two to three hours a day. I am in solo practice; I am in an office with other attorneys who can help to some extent, but they were unable to take over all of the work that was pending at the time my heart trouble began. As a result, a mountain of work to be performed accumulated which kept me from operating in a normal and efficient manner.
On February 29, 1996, the circuit judge set aside the default judgment as to Architectural Exteriors, Inc., Architectural Exterior Innovations, Inc., Mr. Renfroe, Mr. Harris, and appellant. On June 17, 1996, a hearing was held to determine whether appellee was entided to a default judgment against appellant and the other defendants. Mr. Stuth testified that he had received the complaint sometime around June 20 and that, during the month of June and most of July, he was working at his office for an hour a day. He testified that he had received a letter from appellee’s counsel, James Lawson, dated July 25, 1995, wherein he stated that he did not intend to pursue the motion for default judgment in order to allow the defendants time to submit a settlement proposal. Mr. Stuth admitted that appellee’s counsel had not told him that he did not need to file an answer.
On June 26, 1996, the circuit judge entered a default judgment for appellee against appellant and Architectural Exteriors, Inc., and dismissed the complaint against Mr. Renfroe, Mr. Harris, and Architectural Exterior Innovations, Inc. Although Architectural Exteriors, Inc., joined appellant in filing the notice of appeal, it has not filed a brief on appeal to this court.
The standard by which we review the granting of a motion for default judgment is whether the trial court abused its discretion. Maple Leaf Canvas, Inc. v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992); Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992); B&F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Default judgments are not favorites of the law and should be avoided when possible. B&F Eng’g, Inc. v. Cotroneo, supra. In 1990, the supreme court amended Rule 55 by-making it more lenient, and allowing more discretion to trial courts in deciding whether to enter a default judgment. The revised rule reflects a preference for deciding cases on the merits rather than on technicalities. Divelbliss v. Suchor, supra; B&F Eng’g, Inc. v. Cotroneo, supra. Under former Rule 55(c), a default judgment could be set aside upon a showing of “excusable neglect, unavoidable casualty, or other just cause.” The new Rule 55(c) reads as follows: “The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (4) any other reason justifying relief from the operation of the judgment.”
Appellant argues that the default judgment should be set aside because he did not receive three days’ written notice of the November 27, 1995, hearing. It is clear, however, that the circuit judge set aside the default judgment entered after that hearing. Accordingly, appellant has suffered no harm from any irregularity inherent in that proceeding. As for the June 1996 hearing, the abstract of the record provided by appellant does not indicate that appellant made any objection to the entry of default judgment on this ground. We therefore need not consider this argument. See Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996).
Appellant also argues that he was led to believe that appellee would not pursue the motion for default judgment. Appellee responds that it did not intend to waive its right to pursue a default judgment but simply waited while settlement discussions were under way. Although the amended version of Rule 55 gives the trial court more discretion in determining whether to enter a default judgment, appellee is correct in arguing that there is no provision under Arkansas law for “waiver” of the right to a default judgment. See Lewis v. Crowe, 296 Ark. 175, 752 S.W.2d 280 (1988). As we stated in Bell v. Lee, 8 Ark. App. 139, 142, 648 S.W.2d 524, 525 (1983):
Although we realize that most litigants strive to resolve their differences outside of the courtroom and that many controversies are in fact settled on the courthouse steps, a party to a suit is not relieved of the responsibility of adhering to the rules of civil procedure and must file an answer within the statutory time.
Appellant also argues that it was error for the circuit judge to enter a default judgment because he has a meritorious defense to the complaint. It is true that Ark. R. Civ. P. 55(c) requires that the party seeking to have the judgment set aside must demonstrate a meritorious defense to the action. In Maple Leaf Canvas, Inc. v. Rogers, supra, Maple Leaf also argued that it had a meritorious defense and that no prejudice had resulted to the appellees. The supreme court addressed this argument as follows:
The mail sat on Oates’s desk for two months. No reason for the lapse is offered. Rather, Maple Leaf contends that no prejudice resulted to the appellees and that it has a meritorious defense. Maple Leaf, however, must first satisfy the court that a threshold reason exists for denying default judgment. The reason it presents is not convincing. The failure to answer the complaint seems due more to carelessness or, ... a result of not attending to business.
311 Ark. at 174, 842 S.W.2d at 24. Accord Truhe v. Grimes, 318 Ark. 117, 884 S.W.2d 255 (1994).
Therefore, our focus must be upon whether appellant’s failure to file a timely answer amounted to excusable neglect as provided in Rule 55(c). Appellant points out that, under revised Rule 55, the reporter’s notes state that the rule should be interpreted in accordance with federal case law:
In deciding whether to enter a default judgment, the court should take into account the factors utilized by the federal courts, including: whether the default is largely technical and the defendant is now ready to defend; whether the plaintiff has been prejudiced by the defendant’s delay in responding; and whether the court would later set aside the default judgment under Rule 55(c).
With these considerations in mind, we note that “excusable neglect” was also included in the rule before the 1990 amend ment. Therefore, pre-1990 cases dealing with an attorney’s neglect are still relevant. Without doubt, the cases dealing with an attorney’s neglect that were decided before the 1990 amendment to Rule 55 would support the trial court’s decision. In Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), the supreme court affirmed the circuit court’s refusal to render a default judgment because the complaint had failed to state facts sufficient to state a cause of action. The court noted, however, that an attorney who had filed an answer one day late had failed to show excusable neglect. Although he had drafted an answer on the morning of the day it was due, he was distracted late that afternoon by a meeting with his partners and neglected to file the answer that day. The court stated:
In DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982), the attorney prepared an answer, but he put it in a place where it was covered by other papers, and as a result, it was not discovered until four days after its due date. We held that the trial judge abused his discretion in condoning such negligence by refusing to grant a default judgment. We stated, “If such carelessness is excusable, then any attorney can shift the responsibility for filing any pleading to his secretary by simply dictating the pleading and dismissing the [matter] from his mind.”
We see no basic difference in DeClerk and this case. If the attorney believed that the problem with the associate was of such importance that it demanded his full attention, he could have delegated the responsibility for filing to another attorney in the firm, who would have understood the necessity of a timely filing. Instead, he merely failed to take any action on the matter. The fact that the answer was filed only one day late is of no consequence whatsoever.
We state without reservation that the attorney of the employees responsible for the late filing failed to show excusable neglect, unavoidable casualty, or other just cause. Accordingly, we conclude that the trial court erred in finding that the attorney’s conduct was excusable and, thus, in allowing the answer to be filed.
294 Ark. at 5, 740 S.W.2d at 139.
This issue was also presented in Meisch v. Brady, 270 Ark. 652, 606 S.W.2d 112 (Ark. App. 1980), wherein we reversed and remanded a circuit court’s setting aside of a default judgment and stated:
It is beyond debate that illness of a party’s counsel, so severe as to prevent him from appearing in behalf of his client, is an appropriate ground for vacating a default judgment provided the party litigant did not know of it in time to retain other counsel or was prevented in some way from doing so; otherwise, such illness of counsel is not grounds for setting aside the judgment. See C.J.S., Judgments, § 334, page 624; Johnson v. Jett, 203 Ark. 861, 159 S.W.2d 78 (1942).
This record, to say the very least, does not demonstrate in any way that appellee’s attorney’s purported illness was so severe as to prevent him from filing an answer within the allotted time provided under law. The record tends to support a conclusion that the appellee’s predicament could have been avoided by the exercise of care or diligence. . . . Indifference, inattention and inexcusable negligence are not the same as excusable neglect. These terms are incomparable.
270 Ark. at 658-59, 606 S.W.2d at 115.
B&F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992), is the leading case on the issue of excusable neglect since Rule 55(c) was amended in 1990. In that case, the complaint and summons were served on B&F, which forwarded them to its liability insurer. No answer was filed, and Cotroneo moved for a default judgment. B&F responded with a general denial, arguing that its failure to file an answer was due to mistake, inadvertence, or excusable neglect by its insurer in failing to notify its counsel of the action. The insurer’s claims examiner filed an affidavit explaining that he had received the complaint but had failed to recognize that it was a separate cause of action from a pending suit arising out of the same accident and which the insurance company was already defending. In the affidavit, he stated that he had not notified the company’s attorney of the Cotroneo complaint. After a hearing, the circuit court entered a default judgment against B&F. On appeal, the supreme court acknowledged that the 1990 amendment to Rule 55(c) was intended to liberalize Arkansas practice regarding default judgments and should be interpreted in accordance with federal law. Nevertheless, it was not persuaded that the discretion of the trial court had been abused under the circumstances. The court stated:
That observation may seem inconsistent with our affirmance of the default judgment in this case; however, we do not mean to retreat from the intent and spirit of the recent amendment to Rule 55 and choosing between those conflicting policies in this case was not an easy task. While we subscribe to the concept of efficient and expeditious disposition of litigation, we recognize as well that the interests of justice are generally best served when cases are resolved on the merits. Nevertheless, under the circumstances of this case we are constrained to hold that the trial court did not abuse its discretion by granting the default judgment in favor of the appellant. To hold otherwise would, we believe, give sanction to a slipshod treatment of writs of summons by defendants.
309 Ark. at 179, 830 S.W.2d at 837. The supreme court also noted that federal courts had not been liberal in treating defaults attributable to the inaction of insurance companies as excusable.
In Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992), the supreme court again noted that, in determining whether a trial court abused its discretion in refusing to set aside a default judgment, the reason for failure to respond should be considered on a case-by-case basis. The supreme court affirmed the trial court and stated: “The proof from the record discloses nothing more than carelessness on the part of the agent, and, on such proof, the trial court ruled correctly in refusing to set aside the default judgments.” 311 Ark. at 13, 841 S.W.2d at 602-03.
Truhe v. Grimes, 318 Ark 117, 884 S.W.2d 255 (1994), provides guidance in this case. There, the supreme court affirmed the circuit court’s denial of a motion to set aside a default judgment. Truhe had moved to set aside the default judgment, asserting that he had immediately turned over the summons to his insurance company and had been assured by its agent that it would defend the suit. Truhe argued that the insurance company’s negligence should not be attributable to any action or inaction on his part. In rejecting his argument, the supreme court drew an analogy between the attorney-client relationship and that of an insurer and insured and noted that both involve a contractual relationship, the prime purpose of which is to handle the litigation within the framework of judicial proceedings. The supreme court acknowledged that the 1990 amendment to Rule 55(c) was intended to liberalize Arkansas practice regarding default judgments but pointed out that it had long held clients responsible for the acts of omission or commission of their attorneys.
Here, it is undisputed that appellant was personally served with process and that he delivered the summons and complaint to Mr. Stuth, his lawyer, soon thereafter. Although Mr. Stuth had had a heart transplant the month before, he was working in his office for an hour or so three to four days a week and assured appellant that a response would be filed. Mr. Stuth kept his office open during the relevant time period and did not associate another attorney to help him prepare and file this answer. Under these facts, we cannot say that the circuit judge abused his discretion in granting the default judgment to appellee.
Affirmed.
Arey and Crabtree, JJ., agree. | [
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John B. Robbins, Chief Judge.
Appellant Johnny C. Cook pleaded guilty to a Class C felony (possession of a controlled substance) on October 26, 1995, and was sentenced to five years of probation. The conditions of his probation prohibited him from committing any offense punishable by imprisonment. On January 25, 1996, the State filed a petition for revocation. The petition alleged that, on January 21, 1996, Mr. Cook committed the offenses of second-degree battery of a police officer, possession of marijuana, and possession of drug paraphernalia. A revocation hearing was held on May 6, 1996. After the hearing, the trial court found that Mr. Cook had violated the conditions of his probation and sentenced him to ninety months in the Arkansas Department of Correction. Mr. Cook now appeals.
For reversal, Mr. Cook raises three arguments. First, he contends that the trial court erred in denying his request to be represented by the attorney who represented him when he was placed on probation. Next, he asserts that the search warrant that led to the seizure of contraband was invalid. Finally, Mr. Cook argues that the trial court erred by not holding the revocation hearing within sixty days of his arrest. We find no error and affirm.
At the revocation hearing, the evidence showed that the police were issued a search warrant that authorized them to search Mr. Cook’s mobile home. They executed this warrant on January 21, 1996. Upon searching the residence the police recovered a set of scales and a quantity of marijuana. They also found hemostats, rolling papers, and a roach clip containing burned residue. Based on this evidence, the trial court specifically found that Mr. Cook violated his probation by being in possession of dr ug paraphernalia.
We now turn to Mr. Cook’s first point on appeal, i.e., that the trial court erroneously refused to appoint as counsel the same attorney who had represented him when he was placed on probation. When Mr. Cook pleaded guilty to possession of a controlled substance and was given probation, he was represented by private counsel, Paul Petty. After the petition to revoke his probation was filed, Mr. Cook requested that he be represented by the same attorney. Instead, the trial court appointed Keith Watkins, a public defender. Mr. Cook now submits that this was error, asserting that his previous counsel had never filed any motion to withdraw as attorney of record. He cites Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), overruled on other grounds, Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), a case in which the supreme court announced:
When an accused appears with retained counsel, the trial judge should not allow the attorney of record to withdraw until:
(1) new counsel has been retained; or
(2) a showing of indigency has been made and counsel has been appointed; or
(3) a voluntary and intelligent waiver of the right to counsel is established on the record.
288 Ark. at 248, 704 S.W.2d at 613.
We find no merit to Mr. Cook’s first argument. The instant case is clearly distinguishable from Philyaw v. State, supra, because that case involved a criminal defendant who argued on appeal that his conviction should be reversed because he was not represented by counsel. In Philyaw, the defendant’s attorney was permitted to withdraw prior to trial, and the defendant was forced to proceed without counsel. In the instant case, Mr. Cook represented that he was indigent, at which point the trial court promptly appointed an attorney who has represented Mr. Cook from that time through the present.
We certainly agree that a defendant must be afforded the right to counsel at every stage in a criminal proceeding, and this right extends to probation revocation hearings. See Furr v. State, 285 Ark. 45, 685 S.W.2d 149 (1985). However, our supreme court has held that, while an accused has the right to counsel, he does not have the right to counsel of his own choosing. See Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995). In the case at bar Mr. Cook wanted to be represented by Mr. Petty, but the trial court instead appointed Mr. Watkins. This did not constitute error. Rule 16 of the Criminal Rules of Appellate Procedure provides:
Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the Supreme Court shall have exclusive jurisdiction to relieve counsel and appoint new counsel.
While the rule provides that trial counsel shall continue to represent a convicted defendant through the appeal process, it is implicit that counsel’s representation in the matter terminates if the appeal concludes in an affirmance. It should logically follow then that counsel’s representation in a criminal proceeding does not continue after conviction if no appeal is taken that would extend such representation.
Mr. Petty represented Mr. Cook through the time that he pleaded guilty to possession of a controlled substance on October 26, 1995. While Mr. Cook asserts that he is entitled to continued representation by his original counsel at any subsequent revocation hearing, he fails to support this contention with any authority or convincing argument, and therefore we reject it. See Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).
Mr. Cook next argues that his revocation should be reversed because the search warrant at issue was erroneously issued and is therefore invalid. The face of the search warrant indicated that it was signed and issued by the magistrate at 5:50 p.m. on January 21, 1996. However, the affidavit in support of the warrant was not sworn to until 5:55 p.m., five minutes later that day. Rule 13.1(b) of the Arkansas Rules of Criminal Procedure provides that an application for a search warrant shall be supported by an affidavit or recorded testimony given under oath. Mr. Cook argues that, since the swearing of the affidavit did not precede the issuance of the search warrant, the warrant could not have been supported by the affidavit as required by the above rule.
Mr. Cook’s second argument is clearly without merit because it has long been the law in this state that the exclusionary rule does not apply in revocation hearings. Robinson v. State, 29 Ark. App. 17, 775 S.W.2d 916 (1988). While an exception may exist if the probationer can prove a lack of good faith by the law enforcement officers, McGhee v. State, 25 Ark. App. 132, 752 S.W.2d 303 (1988), Mr. Cook failed to do so. We are not persuaded that a five-minute discrepancy between the issuance of the search warrant and the affidavit provides a ground for reversal.
Mr. Cook’s remaining argument is that the trial court erred in denying his motion to dismiss, which was premised on his contention that the revocation hearing did not take place within sixty days of his arrest. Arkansas Code Annotated section 5-4-310(b) (2) (Repl. 1993) provides that a revocation hearing “shall be conducted by the court that suspended imposition of the sentence on the defendant or placed him on probation within a reasonable period of time, not to exceed sixty (60) days, after the defendant’s arrest.” Mr. Cook asserts that he was served with the petition for revocation on January 30, 1996, and that his hearing was not held until May 6, 1996. He acknowledges that the period between April 1, 1996, and May 6, 1996, is excludable because the delay in the proceedings during this time span was the result of two con tinuances that were granted at his request. However, he submits that, since sixty-two days elapsed between January 30, 1996, and April 1, 1996, his motion to dismiss should have been granted.
We find that Mr. Cook’s final argument has not been preserved for our review. In Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987), the supreme court held that if a probationer fails to raise his motion to dismiss the revocation petition for lack of a speedy hearing before the hearing, he has waived his rights. In the case at bar, Mr. Cook first argued his contention that the sixty-day limitation was violated when he appeared for a hearing on April 22, 1996. This hearing was originally scheduled for April 1, 1996, and was continued until April 22, 1996, at Mr. Cook’s request. Prior to the April 22, 1996 hearing, Mr. Cook had ample opportunity to raise this argument to the court, which would have put the State on notice that such an argument was being asserted. Because Mr. Cook failed to raise this argument prior to the date of the revocation hearing, the argument has been waived.
We observe that, even if a timely objection had been made regarding the sixty-day limitation rule, such objection would have been of no avail. The sixtieth day after January 30, 1996, was March 30, 1996, which fell on a Saturday. Rule 1.4 of the Arkansas Rules of Criminal Procedure applies to statutes governing criminal proceedings, and provides that, “[w]hen the first or last day of a time period is a Saturday, Sunday, or state or federal legal holiday, it shall not be computed as part of the period, which shall run until the end of the next day which is neither a Saturday, Sunday, nor a legal holiday.” The April 1, 1996, hearing date fell on the Monday after March 30, 1996. Thus, no violation occurred in this regard.
Having examined the record in light of the arguments raised on appeal, we find no error and affirm Mr. Cook’s revocation.
Affirmed.
Crabtree and Meads, JJ., agree.
Before conclusion of the April 22, 1996, revocation hearing, Mr. Cook sought, and was granted, a further continuance to May 6, 1996, at which time his probation was ultimately revoked. | [
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Judith Rogers, Judge.
The appellant, Mary Bousquet, was convicted in a jury trial of two counts of delivering a controlled substance (cocaine), for which she was sentenced to consecutive terms of fifteen years in prison. She contends on appeal that the trial court erred in allowing the State to exercise its peremptory challenges to exclude black persons in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We find no merit in her argument and affirm.
As an initial matter, we note that the “venerable practice” of peremptory challenges is designed to promote the goal of fairness injury trials. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997) (citing Holland v. Illinois, 493 U.S. 474 (1990)). It is a custom which dates back beyond the founding of the Republic to origins in the common law. Id. The historical practice of allowing a litigant to strike jurors for any reason came into being for the purpose of fostering both the perception and the reality of an impartial jury. Id. However, the exercise of peremptory chahenges is not without qualification. In Batson, supra, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution forbids a prosecutor in a criminal case to use his or her peremptory challenges to exclude jurors solely on the basis of race. Id. at 84. This prohibition has been extended to litigants in private matters as well. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991).
Under Batson jurisprudence, as recently enunciated by the Court in Purkett v. Elem, 514 U.S. 765 (1995), once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a'race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination. In Purkett, the Court restated the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
Our courts have adhered to the guidelines prescribed by the Supreme Court and have developed specific procedures to be followed when considering a Batson challenge. Sonny v. Balch Motor Co., supra. As was reiterated by the court in Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied 117 S.Ct. 979 (1997):
First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event that the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.
Id. at 514, 931 S.W.2d at 410 (quoting Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). The standard of review for reversal of a trial court’s Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996).
Appellant is an African-American. At trial, she raised Batson objections to the State’s use of peremptory challenges to exclude four African-Americans from the jury. The first objection came when the State struck prospective juror John Johnson. The prosecutor explained that this juror was excluded because he was fidgety, refused to make eye contact with him, and seemed to be uncomfortable and inattentive. The prosecutor further stated that Mr. Johnson “looked away when asked if he agreed with the law against selling cocaine. I interpreted that to be possibly some hesitancy on his part.” The court found that the prosecution had stated a race-neutral reason for the exclusion of this juror and overruled appellant’s objection, noting that one African-American had been seated and that the State had not used its remaining strikes to exclude that juror.
The second objection was made when the State used a strike to eliminate Peter Ware from the jury. The prosecutor responded to the motion by saying:
[t]he juror on the questionnaire gives his age 25. He says, Education, and next to that he says “general, plus 41 hours.” I don’t know any other juror that I’ve seen a questionnaire where that answer seems to be so unresponsive. I don’t know what “general, plus 41 hrs.,” meaning hours, means. Secondly, on the line where its says “number of children,” this defendant, this juror, excuse me, has drawn a, what I would call a “smiley face,” which consists of a circle with a little smiley face therein, similar to those types of faces which are on those little stickers which previously might have said, “Have a nice day.” The fact that this juror has filled out this questionnaire in what I consider to be a very cavalier fashion, also the fact that his occupation being a waiter and cook at Shug’s Riverhouse, and he’s a 25 year old person, indicates to me, Your Honor, that this juror does not take this particular exercise very seriously, nor is he the type of person who, when asked questions, responds in a reasonable manner. I would conclude from that that this juror is not the type of person that I want on this jury where he could listen to certain testimony and make decisions and make responses in his own mind that would be reasonable. Secondly, when I sat down with Ms. Fowler, who is a deputy prosecuting attorney, about this questionnaire which I saw, Ms. Fowler looked at me and said, “You know, because all during your voir dire this juror stared at me and never quit staring.” And, Your honor, based on that, it has absolutely nothing to do with the fact that this is a black person. And the court would recall that just on these last people who were called there was a black female, probably close to the age of this defendant which was, who was looking at me all during the voir dire, was answering questions by nodding yes or no like the other jurors were, and there was, I have no problem with that because of her race. But I do have a problem with this juror because of the questionnaire and that I because of what Ms. Fowler said that this person never looked at me once when I was asking him questions.
The trial court accepted the State’s explanation as being racially neutral and overruled appellant’s objection, observing that the State had not used one of its remaining strikes to exclude another black juror in the group and that there were currently two black persons who had been selected for service on the jury.
Appellant’s third objection was made when the State excluded juror Ruth King. In explaining the exclusion of Ms. King, the prosecutor stated that she had been the foreperson of the jury on a previous drug-related case that had resulted in a hung jury. He said that he had been surprised by that outcome because the case was a strong one where police officers had seen the defendant dispose of cocaine as they approached him. He recalled that Ms. King seemed hostile to him during closing arguments in that case, and he had learned that she had voted to acquit. He also pointed out that he had used a peremptory challenge to exclude from this jury a white person, Kathy Bolán, who had sat on the hung jury with Ms. King and had also voted to acquit.
The final objection was raised to the State’s use of a strike against juror James Bledsoe. In response to the objection, the prosecutor explained that Mr. Bledsoe had sat on the same hung jury with Ms. King and Ms. Bolán and that he, too, had voted to acquit. The prosecutor further stated that Mr. Bledsoe had seemed antagonistic toward him in the previous case, which pitted the credibility of the police against .that of the defendant. He felt that Mr. Bledsoe bore hostility toward the police. The court accepted the State’s explanation as being race-neutral and overruled appellant’s objection. The court observed that the previous case and the case at bar both involved narcotics and the credibility of the police and that the State had struck a white juror for the same reason.
At the conclusion of voir dire, the court stated:
In order to complete the record on the Batson objections, I would note that there are three black jurors seated on this current jury, namely Mrs. Laura Montgomery, Mrs. Catherine Burns, and Mrs. Geneva Higgins. Two of these black jurors were seated and accepted while the State still had strikes remaining and could have struck them. As one court put it, this is not a monochromatic jury. The percentage or proportion of the jurors on this jury, on the seated jury, exceeds the racial make-up of this community, which, I understand, is less than 20%, about 16%.
Prima Facie Case
A prima facie case may be established by: (1) showing that the totality of relevant facts gives rise to an inference of discriminatory purpose; (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury; or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire suggesting racial motivation. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). In the case at hand, the trial court asked the prosecutor to enunciate his reasons for the strikes immediately after each objection was made. In this situation, once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. Prowell v. State, supra; see also Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996). Consequently, we will assume the existence of a prima facie case for purposes of our review.
Race-Neutral Explanations
According to the decision in Purkett v. Elem, supra, at this stage of the analysis the proponent of a peremptory challenge is not required to offer an explanation that is either plausible or persuasive. The issue is the facial validity of the prosecutor’s explanation; it must be a reason that does not implicate the denial of equal protection. Unless discriminatory intent is inherent in the State’s explanation, the reason offered is to be considered race-neutral. In Purkett, the explanation offered for excusing the juror was that he had long, unkempt hair, as well as a mustache and beard. The Court held that the explanation was race-neutral in that shagginess and the wearing of facial hair is not peculiar to any race.
Here, although the appellant presents no direct challenge to the trial court’s findings that the reasons offered by the State were race-neutral, we have no hesitancy in concluding that they were. None of the reasons advanced are peculiarly associated with race, and we can discern no discriminatory intent inherent in the prosecutor’s explanations. See e.g., Hugh Chalmers Chevrolet-Cadillac-Toyota, Inc. v. Lang, 55 Ark. App. 26, 928 S.W.2d 808 (1996). A juror’s hesitancy to follow the law has been accepted as a race-neutral explanation, Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996), as well as a prosecutor’s feeling that he “had gotten some mixed signals about what [a prospective juror] would require in terms of the State’s proof.” Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). Striking a juror for the reason that the juror had been on a jury that had acquitted a criminal defendant has been accepted as a race-neutral explanation. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). Also, our supreme court has recognized that challenges based on a juror’s age, demeanor during voir dire, and employment background are acceptable as race-neutral explanations. Sonny v. Balch Motor Co., supra. The trial court’s findings concerning the racial neutrality of the State’s explanations are not clearly against the preponderance of the evidence.
Discriminatory Intent
Appellant’s argument for reversal is directed toward this stage of the inquiry. She argues that the reasons offered by the State for excluding these jurors were merely a pretext for racial discrimination. At this juncture, the persuasiveness of the State’s reasons becomes relevant in determining whether the opponent of the strike has carried her burden of proving purposeful discrimination. Purkett v. Elem, supra. The trial court must consider the evidence and explanations presented along with its observations of the proceedings to determine whether the neutral explanations given are genuine or pretextual. Sonny v. Balch Motor Co., supra. Our standard of review affords great deference to the trial court’s exercise of discretion in determining discriminatory intent relating to the use of a peremptory strike. This is so because the question turns largely on the issue of credibility, and the trial court is in a superior position to judge the truthfulness of the prosecutor’s explanation with respect to the demeanor of the juror involved. Id.
The trial court in this instance considered the overall facts and circumstances and found the prosecutor’s explanations to be persuasive. In finding the absence of discriminatory intent, the court observed that the first two jurors in question were struck at a time when black persons had been seated on the jury, even though the State had strikes available which it could have used to remove them. The court also found that the remaining jurors were struck for the same reason that a white person was excluded. The court further found that there were three black persons seated on the jury and that the percentage of black persons on the jury exceeded that found in the community.
It has been said that a prosecutor’s failure to apply a stated reason for striking black jurors to similarly situated white jurors may evince a pretext for excluding jurors solely on the basis of race. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995). We think the converse is equally true - that the exclusion of a white juror for the same reason that black jurors are excluded may indicate the lack of discriminatory intent. Also, the non-use of available peremptory strikes to exclude black persons from a jury is considered cogent evidence indicating the absence of discriminatory motivation. See e.g. Cleveland v. State, supra; Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993). And, the presence of minority members on the jury, while by no means determinative, is significant. Cooper v. State, supra. When these elements are combined with the explanations given by the prosecutor, we cannot say that the trial court’s finding is clearly against the preponderance of the evidence. Therefore, we must reject appellant’s contention that the reasons offered by the State were pretextual.
With all due respect for the dissenting judge’s opinion, it is one that exceeds the bounds of the argument raised on appeal. The appellant does not contend that the trial court failed to adequately delve into the reasons asserted by the State for its exercise of the strikes. It is appellant’s sole contention that the reasons, based on this record, were pretextual and that the trial court’s finding to the contrary is clearly erroneous. Under longstanding procedure, this court is to consider only the arguments raised by the parties, and we are not to consider reversing a trial court for unargued reasons. Hancock v. First Stuttgart Bank, 53 Ark. App. 150, 920 S.W.2d 36 (1996). By confining ourselves to the arguments that are raised, we are striving to avoid the mistaken role of being a “super trial court” or an advocate of one party to the appeal. That is not our function as an appellate court. In sum, when we examine the facts and circumstances surrounding the exercise of the strikes and give due deference to the trial court’s superior position to evaluate the prosecutor’s responses, we are in no position to say that the explanations given were so fantastic or implausible as to compel a conclusion of improper discriminatory intent.
Affirmed.
Neal, Pittman, Arey, and Crabtree, JJ., agree.
Griffen, J., dissents.
Appellant’s conviction occurred in 1991. However, in 1992, we dismissed her direct appeal for failure to prosecute. In 1996, appellant retained new counsel and sought reinstatement of her appeal. We granted that request on November 27, 1996.
Appellant raises the issue that we must apply the law of Batson as it existed at the time of her trial in 1991. We reject that argument as it is contrary to the decision in Griffith v. Kentucky, 479 U.S. 314, 328 (1987), where the Court specifically addressed the retroactivity of its ruling in Batson and held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” | [
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Sam Bird, Judge.
Amlease, Inc., appeals a decision of the Workers’ Compensation Commission awarding the appellee, Ronald Kuligowski, benefits for treatment of his post-traumatic stress disorder.
On August 3, 1995, the claimant, a truck driver, was involved in an accident in which the brakes on the truck he was driving locked, he skidded into oncoming traffic, and was hit broadside in the passenger-side door by a van. The driver of the van was killed, and a teenager in the van was seriously injured. Appellant had several physical injuries, and he also experienced depression, diagnosed as post-traumatic stress disorder. The appellant controverted liability for the treatment related to post-traumatic stress disorder.
Dr. Galen Hutcheson testified that appellee sustained cervical strain and post-traumatic stress disorder related to “an affiliation of all the things that happened during the accident,” and that “the death of the individual just made it more significant.” He treated appellee physically and with medication for his depression, and he referred appellee to Dr. James A. Chaney, a psychologist, for counseling. Dr. Hutcheson said appellee was physically released to resume light duties on September 13, 1995. Dr. Chaney released appellee from his care on November 2, 1995.
Appellee has had a tragic family history: a brother was killed while riding an all-terrain vehicle; a house burned while appellee was moving in; appellee’s grandfather ran over and killed his mother’s two-year-old son; appellee’s trailer burned; a truck fell on appellee’s grandfather and killed him when appellee was eleven; appellee’s aunt died in a head-on collision; appellee’s uncle was a prisoner of war in Vietnam; and another brother was hit and dragged by a car.
Dr. Chaney testified that the previous events probably contributed to appellee’s post-traumatic stress disorder after his August 3, 1995, accident. Dr. Chaney said, “I think it made him more likely to have that.” He said it was his opinion that appellee’s post-traumatic stress disorder was caused by the sudden, unexpected, and unusual death of the other person in the traffic accident. He also said that while he was treating appellee, appellee was totally disabled from returning to work.
On this evidence the administrative law judge held that the appellee was entitled to payment for all medical expenses, including the treatment by Dr. Chaney, and temporary total disability benefits commencing with his last day of work through November 2, 1995. The Commission affirmed and adopted the decision of the law judge.
Appellant argues that the Commission’s finding that appellee proved by a preponderance of the evidence that his post-traumatic stress disorder was causally related to his compensable injury of August 3, 1995, is not supported by substantial evidence and should be reversed. We agree, and therefore reverse.
Arkansas Code Annotated section 11-9-113 (Repl. 1996), provides in pertinent part:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence [.]
This language was the result of a complete legislative revision of our workers’ compensation law in Act 796 of 1993. This language has not yet been reviewed by this court. Therefore, we must determine the meaning of the phrase “caused by” as it relates to compensable psychological injury. Although we are construing an act of the General Assembly, our jurisdiction is proper under Rule l-2(a) of the Rules of the Supreme Court and Court of Appeals. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 55, 922 S.W.2d 718, 720 (1996). The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the legislature. Vanderpool, supra; Bill Fitts Auto Sales, supra.
Where the language of the statute is plain and unambiguous, the legislative intent is determined from the ordinary meaning of the language used. American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). We also note that Ark. Code Ann. § 11-9-704 (Repl. 1996) requires administrative law judges, the Commission, and any reviewing courts to construe the provisions of the Act strictly.
Webster’s College Dictionary 216 (1996) defines “cause” as “bring about,” or “reason.” Black’s Law Dictionary 220 (6th ed. 1990) has several definitions, among them are: “To be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; something that precedes and brings about an effect or a result; a reason for an action or condition.”
In The Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997), the Arkansas Supreme Court stated:
Ark. Code Ann. § 11-9-113(a)(1) (Repl. 1996), provides that a mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body. Clearly, these statutes set out a requirement that a physical injury precede and cause the mental injury in order for the mental injury to be com-pensable under the Workers’ Compensation Act. See generally John D. Copeland, The New Arkansas Workers’ Compensation Act: Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1, 16-19 (1994).
Although this statement was dictum, we find it enlightening, and we agree that this is what the plain language of the statute mandates.
Appellant contends that appellee failed to prove by a preponderance of the evidence that his post-traumatic stress disorder was caused by the physical injuries he sustained in the compensable vehicle accident. In fact, the evidence is clear that appellee’s psychological distress was not caused by his physical injuries.
Appellant cites Dugan v. Jerry Sweetser, Inc., 54 Ark. App. 401, 928 S.W.2d 341 (1996), but that case did not require us to determine the precise issue presented here. The issue on appeal in Dugan was whether or not the appellant had sustained the requisite “physical injury” so that his psychological injury was compensa-ble. We did say in that opinion that Act 796 clearly provides that proof of a physical injury is now required before a psychological injury can be compensable in Arkansas.
In the instant case, the testimony of Dr. Chaney and appel-lee’s own testimony indicate that appellee’s mental anguish was not the result of his physical injuries, but rather, was the result of the death of the man driving the van. When Dr. Chaney was asked if the “death of the deceased in the other vehicle” caused the appellee to suffer the post-traumatic stress disorder, he replied, “I believe so.” Dr. Chaney also said, “I believe the trauma was that the person died.” Appellee admitted that “part of” him felt responsible for the man’s death. He said, “Another man was killed, and a teenager, . . . was hurt and may have messed up a soccer career, and I don’t feel good about that, just because I was involved in it.” He was asked, “Is it the death of the occupant of the vehicle and the teenager’s injuries that, in your opinion, caused you to be depressed to the degree that you were?” Appel-lee answered, “I guess.”
Interpreting the statute as we have, that the mental distress must be the result of the claimant’s own physical injuries, we must reverse the decision of the Commission.
Reversed.
Jennings, J. agrees.
Crabtree, J., concurs. | [
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D. Franklin Arey, III, Judge.
The Board of Review affirmed the denial of unemployment insurance benefits to the appellant, Kenneth Ferren, on the basis that he left his last work voluntarily and without good cause connected with the work. The Board also affirmed a decision not to reopen the scheduled hearing, upon appellant’s failure to show good cause for not appearing at the hearing. Appellant brings this appeal challenging the Board’s decisions. We must reverse and remand the Board’s decision on the merits, because it did not set forth the findings of fact upon which it relied in reaching its conclusion. However, we affirm the Board’s determination that the hearing should not be reopened.
Appellant’s challenge to the Board’s denial of benefits requires a review of the Board’s findings. The Employment Security Department denied appellant’s claim for benefits. The Arkansas Appeal Tribunal affirmed the department’s decision. The Appeal Tribunal’s discussion of the merits in its written decision consists of the following:
After a study of the record in this case, the Appeal Tribunal finds that all interested parties have been afforded a reasonable opportunity for a fair hearing and that the determination of the Employment Security Department is supported by the record. Therefore, the determination of the Employment Security Department denying the claimant benefits is affirmed.
The Appeal Tribunal did not identify any evidence or facts it relied on in making this decision.
Appellant then appealed to the Board of Review; the Board affirmed the Appeal Tribunal. Its discussion was also limited:
Also after a consideration of the evidence of record, the Board of Review finds that the decision of the Tribunal which affirmed the Department determination disqualifying the claimant from receiving benefits under Ark. Code Ann. § 11 — 10-513(a) is supported by the record. That Tribunal decision is hereby adopted as part of the decision of the Board of Review. Therefore, the decision of the Appeal Tribunal which left in effect the Department’s determination is affirmed on the finding that the claimant left last work voluntarily and without good cause connected with the work.
The Board did not recite the factual basis for its decision; it did not otherwise discuss the evidence before it.
Did the Board make sufficient findings of fact to permit meaningful appellate review of its decision? It is instructive to review comparable workers’ compensation law on this question. In both areas of the law it is the responsibility of the respective agencies to make findings of fact. Compare Lawrence v. Everett, 9 Ark. App. 138, 653 S.W.2d 140 (1983) (matter remanded to Board of Review in light of its failure to make a finding on an issue), with Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986)(case reversed and remanded upon Workers’ Compensation Commission’s failure to make findings of fact). Our supreme court drew upon workers’ compensation law to establish the scope of judicial review in employment security cases. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). Likewise, our supreme court referred to its practice in workers’ compensation cases when it determined that the Board’s failure to make findings of fact required remand of the matter at hand. Reddick v. Scott, 217 Ark. 38, 228 S.W.2d 1008 (1950). Our court has followed this practice of supplying rules in employment security cases by looking to comparable workers’ compensation law. See City of Fayetteville v. Daniels, 1 Ark. App. 258, 614 S.W.2d 680 (1981).
In the workers’ compensation law context, we have provided some guidance as to what constitutes a sufficient finding of fact:
A satisfactory, sufficient finding of fact must contain all of the specific facts relevant to the contested issue or issues so that the reviewing court may determine whether the Commission has resolved these issues in conformity with the law. The Commission must find as facts the basic component elements on which its conclusion is based. . . .
A finding of fact sufficient to permit meaningful review is a “simple straightforward statement of what happened.”
Lowe v. Car Care Mktg., 53 Ark. App. 100, 102, 919 S.W.2d 520, 521 (1996)(citations omitted). A conclusory statement that does not detail or analyze the facts upon which it is based is not sufficient. Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 369, 830 S.W.2d 857, 859 (1992).
Under these standards, it is apparent that the Board of Review’s decision in this case does not set forth sufficient findings of fact upon which it relied in reaching its conclusion. We are presented with a conclusory statement, labeled a “finding,” that the appellant “left last work voluntarily and without good cause connected with the work.” The Board did not detail or analyze the facts upon which this “finding” was based. See Cagle Fabricating & Steel, Inc., 309 Ark. App. at 369, 830 S.W.2d at 859. The Board failed to provide a simple straightforward statement of what happened; in the absence of such a statement, we cannot determine whether the Board applied Ark. Code Ann. § 11 — 10-513(a) (Repl. 1996) in conformity with the law.
We note that the Board adopted the Appeal Tribunal’s decision as its own. If the Appeal Tribunal had made findings of fact and conclusions of law sufficient to allow meaningful review, this would have been acceptable. See, e.g., Cowan v. Director, 56 Ark. App. 17, 936 S.W.2d 766 (1997)(where the Board adopted the Appeal Tribunal’s findings of fact and conclusions of law, we reviewed those findings and conclusions under the applicable standard of review); f. Lowe, 53 Ark. App. at 102, 919 S.W.2d at 521 (“[w]hile the Commission may specifically adopt the findings of fact made by the administrative law judge, it is necessary under such circumstances that the administrative law judge have made sufficient findings”). As the excerpt quoted above indicates, the Appeal Tribunal did not make sufficient findings of fact to permit review.
Because we are unable to determine the facts upon which the Board relied in reaching its conclusion, we reverse and remand for the Board to make specific findings of fact.
For his second point, appellant challenges the Board’s decision not to reopen his hearing. Again, the Board adopted the Appeal Tribunal’s decision as its own. The Appeal Tribunal found that its file contained two call-in slips for the appellant; both slips contained a phone number for a church. The Appeal Tribunal also called the phone number of appellant’s grandmother that was contained in the file. Appellant was not at either of these numbers. Appellant denied leaving the church’s number, and mentioned at the hearing on the reopening issue that he had heard that the employer was bragging about having someone else call in pre tending to be appellant. The Appeal Tribunal noted that the church’s number was the only number called in for the appellant; if the employer called that number in, then there was no record of the appellant having called in a correct number at all. The Appeal Tribunal thought it was unlikely that the appellant’s number was copied down incorrectly twice. The Appeal Tribunal concluded that it was more likely that appellant called in the wrong number by mistake; it did not believe that this was good cause for fading to appear.
Our standard of review is well settled:
The findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.
Cowan v. Director, 56 Ark. App. 17, 18-19, 936 S.W.2d 766, 767 (1997) (citations omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996).
The Board’s decision is supported by substantial evidence. Therefore, the Board’s decision on this point is affirmed.
Affirmed in part; reversed and remanded in part.
Crabtree and Roaf, JJ., agree. | [
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John F. Stroud, Jr., Judge.
Appellant Renee Mathews appeals from a chancery court decree changing her child’s surname to that of the child’s father, appellee Rodney Oglesby. She argues that, in making the ruling, the chancellor did not consider the child’s best interests. We agree and reverse and remand for further proceedings.
Appellant and appellee are unmarried. On December 13, 1995, appellee filed a petition in Pulaski County Chancery Court alleging that appellant was about to deliver a child, Joshua Levi Mathews. Appellee asked that he be declared the child’s father, that he be required to pay child support, that custody be vested in appellant, that the child’s birth certificate be amended to show him as father of the child, and that the child’s surname be changed to Oglesby. The child was born the next day.
On February 16, 1996, a temporary hearing was held wherein custody was awarded to appellant. Appellee was given visitation rights, was encouraged to seek employment that provided health coverage, was ordered to pay child support, was ordered to obtain a child safety seat, and was directed that, should he obtain a tax refund, he apply it to a $360.00 child-support arrearage. All other issues in the case were reserved for the final hearing.
The final hearing was held on May 17, 1996. The parties stipulated that appellee was the father of the child and that his name could appear on the birth certificate as the father of the child. However, appellant opposed any change in the child’s surname. The chancellor therefore heard evidence on that issue in the form of testimony by appellant, appellant’s mother Diana Mathews, and appellee. Appellant testified that she discovered she was pregnant in April 1995. She contacted appefiee, who expressed surprise at the news. Two weeks later, appellee told appellant he was tired of her and didn’t want anything else to do with her. He further encouraged her to have an abortion. About one month later, appellee reestablished communications with appellant. However, he refused to accompany appellant to her doctor appointments until later in her pregnancy when he accompanied her to two ultrasound appointments. After one of the appointments, he told appellant that if she did not put his name on the birth certificate, he wanted nothing to do with her. Contact between them ceased for eight weeks.
Appellee was present at the birth of the child. According to appellant, he did nothing during her pregnancy to offer financial support, even though he had purchased, in May of 1995, a truck that carried $400.00 per month payments. Further, appellee was behind in child support and did not show up at the first two visitations scheduled by the chancellor at the February hearing. According to appellant, she did not want her child’s surname changed because his social security number, his medical and pharmaceutical records, and his Medicaid were all in the name of Mathews. She also expressed discomfort at the prospect of having a last name different from her child. However, upon cross-examination, appellant stated that if she were to get married sometime in the future, she would not be reluctant to change her name to her husband’s name. Diana Mathews corroborated her daughter’s testimony regarding appellee’s missed visitation and child-support arrearages.
In appellee’s testimony, he admitted that he had not purchased a child safety seat as ordered by the chancellor and that he had used his $900.00 tax refund to pay bills instead of paying child support. He also admitted that he was behind on child sup port and that he had initially encouraged appellant to have an abortion.
During appellant’s testimony, before the testimony of Diane Mathews and appellee was offered, the chancellor made the following comment:
It has been this Court’s policy to change the last name to' that of the father unless it is a situation where the child is, let’s say, ten or eleven years old, been in school for a number of years, everybody knows that child by that last name. We’re talking about an infant here. So in all likelihood the Court is going to change the last name.
At the close of the hearing, the chancellor changed the child’s name without further comment.
Arkansas Code Annotated § 20-18-401(^(3) (Supp. 1995) provides that, when the paternity of a child is determined by a court of competent jurisdiction, the name of the father and the surname of the child shall be entered on the birth certificate in accordance with the finding and order of the court. However, that statute is not interpreted to mean that the child’s surname should necessarily be that of the father. McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991). Instead, the decision to change or not change the child’s surname should be “the product of the chancellor’s informed discretion, exercised in response to what is deemed to be in the best interests of the child.” Id.; see also Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992). When the best interests of the child are at stake, the chancellor should look into the peculiar circumstances of each case and act as the welfare of the child appears to require. Clark v. Reiss, 38 Ark. App. 150, 831 S.W.2d 622 (1992). Here, the chancellor followed a “policy” that took but one factor into consideration, i.e., the age of the child. The mechanical application of such a policy precludes consideration of the full panoply of factors inherent in determining the best interests of a child.
On de novo review of a fully developed chancery record, where we can plainly see where the equities lie, we may enter the order that the chancellor should have entered. However, we may decline to do so if justice will better be served by a remand. Bradford v. Bradford, 34 Ark. App. 247, 808 S.W.2d 794 (1991). Since the chancellor announced her policy regarding name changes in the midst of appellant’s testimony, the parties’ presentation of evidence may have been affected. Therefore, to ensure that the evidence is fully developed on this issue, we reverse and remand for a further hearing to determine if the name change is in the best interest of the minor child. In light of our holding, we need not address appellant’s contention that the chancellor’s policy violates her constitutional guarantee of equal protection.
Finally, appellant urges us to adopt a presumption in favor of the surname chosen by the child’s custodial parent. See generally Gubernat v. Deremer, 140 N.J. 120, 657 A.2d 856 (1995). We decline to do so. When the best interests of the child are involved, the chancellor should make his or her decision on an individualized basis, not on the basis of a presumption. Fox v. Fox, 31 Ark. App. 122, 788 S.W.2d 743 (1990). See also Note, Like Father, Like Child: The Rights of Parents in Their Children’s Surnames, 70 Va. L. Rev. 1303, 1314 (1984).
Reversed and remanded.
Pittman and Neal, JJ., agree. | [
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George K. Cracraft, Chief Judge.
James Carpenter was charged with possession of a controlled substance with intent to deliver. Prior to trial, his motion to suppress evidence obtained as the result of a search of his home was denied. He then entered a conditional plea of guilty, reserving the right to appeal from that judgment as provided in Ark. R. Crim. P. 24.3(b). On appeal, appellant advances four points for reversal. We find sufficient merit in one of them to warrant reversal and, therefore, do not address the others.
The record discloses that a police officer met with a municipal judge on the evening of October 25, 1989, and obtained a warrant to search appellant’s premises for contraband. The warrant was executed at 2:30 a.m. on October 26, 1989. As a result of the search, a quantity of contraband was discovered and seized from appellant’s premises.
Rule 13.2(b) of the Arkansas Rules of Criminal Procedure provides that a search warrant shall state or describe with particularity the identity of the judicial officer, and the date and place where the application was made; the judicial officer’s finding of reasonable cause for issuance of the warrant; the identity of the persons to be searched and the location and designation of the places to be searched; the persons and things constituting the objects of the search and authorized to be seized; and the period of time within which the warrant must be returned to the issuing judicial officer.
The right to be safe and secure against searches and seizures during the nighttime has been even more carefully safeguarded throughout history. For this reason, the following additional provisions governing warrants for nighttime searches are contained in Rule 13.2(c):
(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing officer may, by appropriate provision in the warrant, authorize its execution at anytime, day or night, and within a reasonable time not to exceed sixty days from the date of issuance.
[Emphasis added.]
The search warrant issued in this case was on a printed form in which the judge inserted the specific language required by Ark. R. Crim. P. 13.2(b). It also contained the following:
(Choose One)
( ) This warrant shall be executed between the hours of 6 a.m. and 8 p.m.,
OR
(x) I find reasonable cause to believe that:
( ) the place to be searched is difficult of speedy access.
(x) the obj ects to be seized are in danger of imminent removal.
( ) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy and authorized [sic] the execution of this warrant at any time, day or night, within 60 days from the date of issuance, or less if indicated above.
The box next to the third possible finding, which on this form was the only one that included an authorization to make a nighttime search, was not checked but was left blank.
Appellant contends that the warrant did not authorize a nighttime search, that the search was therefore illegal, and that all evidence seized as a result of it should have been suppressed. He argues that a search must be restricted to the hours between 6:00 a.m. and 8:00 p.m. unless the issuing judicial officer finds reasonable cause to believe that one of the three situations mentioned in Rule 13.2(c) exist, in which event he may authorize a nighttime search by appropriate provision in the warrant. Appellant argues that, even if the municipal judge in this case did find that one of those situations existed and therefore could have authorized a nighttime search under this rule, he did not authorize it by “appropriate provision in the warrant.”
The State argues that the rule does not require that a nighttime search be expressly authorized in the warrant. It argues that the rule authorizes a search on a finding of one of the three grounds for such searches and that the words “appropriate provision in the warrant” make reference to those three situations rather than to a specific authorization for a nighttime search.
We cannot agree with the State’s position. The wording of Rule 13.2(c) is clear and need only be applied as written, i.e., the warrant must contain not only a finding of justification for a nighttime search, but also an appropriate order authorizing the same. Therefore, we conclude that this warrant was facially deficient and the nighttime search defective.
In light of our conclusion that the warrant was facially deficient in terms of authorizing a nighttime search, we also cannot agree with the State’s argument that, in any event, the good faith of the police officer served to make suppression inappropriate under Leon v. State, 468 U.S. 897 (1984). The objective standard used to determine good faith requires officers to have a reasonable knowledge of what our rules prohibit. Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990). Any officer with reasonable knowledge of our rules of criminal procedure should know what those rules require with regard to search warrants to be executed at night. See id.; Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). Furthermore, we note that the officer who executed this warrant testified that he was familiar with our rules and was aware that there was no express provision for a nighttime search in the warrant issued to him. He was asked why, notwithstanding that knowledge, he served it at night. He answered, “I was scared that the material would be removed.”
The privacy of citizens in their homes, secure from nighttime intrusions, is a right of vast importance which is attested not only by rules but by our state and federal constitutions. Garner v. State, supra. We must conclude that the violation of our rules of criminal procedure was so substantial that we cannot apply the good-faith exception to the facts of this case.
Reversed and remanded.
Jennings and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with aggravated robbery and theft of property. After a non-jury trial on September 12,1990, he was convicted of aggravated robbery and misdemeanor theft of property, and was sentenced to ten years in the Arkansas Department of Correction on the aggravated robbery conviction. From that decision, comes this appeal.
For reversal, the appellant contends that the evidence was insufficient to support his conviction on the charge of aggravated robbery. We find no error, and we affirm.
Where the sufficiency of the evidence is at issue in a criminal case, whether tried by judge or jury, we do not weigh the evidence favorable to the State against any conflicting evidence favorable to the accused, Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985), but instead we review the evidence in the light most favorable to the State and affirm if the finding of guilt is supported by substantial evidence. Turner v. State, 24 Ark. App. 102, 749 S.W.2d 339 (1988). Substantial evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and is of sufficient force or character to compel a conclusion one way or the other with reasonable certainty. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
Viewed in the light most favorable to the State, the record shows that the appellant approached a woman in a grocery store, put his arm around her throat, and attempted to steal her purse. She resisted and began to scream after the appellant slammed her against the counter and struck her eye. After beating the woman to the floor, the appellant managed to pull her purse away from her and ran down the aisle with the purse in his hand. The appellant was observed by Ricky Thomas, who worked as a checker at the grocery store, and was pursued by Thomas, another store employee named Sammy, and a security guard. When the appellant reached the door, he turned around and said, “Stop or I will shoot.” Mr. Thomas stated that he saw no weapon, so he continued to pursue the appellant outside. Behind a house, the appellant paused and again said, “Stop or I will shoot.” This time, the appellant had something shiny in his hand; Mr. Thomas testified that, for a second, he thought that the appellant had a weapon and stopped pursuing him. However, when he saw that the shiny object in the appellant’s hand was merely a set of keys, he tackled the appellant and, in company with the security guard and Sammy, subdued him.
The appellant contends that the evidence is insufficient to sustain a conviction for aggravated robbery because the State failed to show that he represented to the victim that he was armed with a deadly weapon; the appellant asserts that his conduct against Mr. Thomas was an independent episode separate from the robbery of the victim, and as such is not evidence to support his conviction for aggravated robbery. We do not agree.
A person commits robbery if, with the purpose of committing a theft or resisting apprehension immediately there after, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. §5-12-102 (Supp. 1991). A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he is armed with a deadly weapon or represents by word or conduct that he is so armed. Ark. Code Ann. § 5-12-103 (1987). Nothing in the statutes requires that the representation that the offender is armed must be made to the victim of the theft, and the appellant has cited no authority which so holds. Moreover, it has been stated that the clear legislative intent was to define robbery so as to cover situations where persons who have committed the theft choose to employ force to avoid arrest. Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984). In the case at bar, there is clearly evidence to show that the appellant committed a robbery and chose to represent that he was armed with a deadly weapon to avoid arrest. Although the appellant did not tell Mr. Thomas that he had a gun, his statement to Mr. Thomas that he would shoot him if Mr. Thomas did not stop constituted a verbal representation that the appellant was armed with a deadly weapon. Coley v. State, 304 Ark. 304, 801 S.W.2d 647 (1991). Such a verbal representation is sufficient to convict for aggravated robbery regardless of whether the defendant did in fact have such a weapon. Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990).
Nor do we agree that the threats employed by the appellant against Ricky Thomas constitute an independent episode separate from the robbery. Although Ark. Code Ann. § 5-12-102 requires that the employment or threat of force must be made with the purposes of committing theft or resisting apprehension immediately thereafter, “immediate” has been defined as “a reasonable timé in view of particular facts and circumstances of the case under consideration.” Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989). As in Becker, supra, and Williams, supra, the facts of the case at bar show that the theft, flight, struggle, and apprehension were accomplished in a matter of minutes without any significant intervening event. Under these circumstances, we hold that the evidence was sufficient to establish that the threat of a deadly weapon was made immediately after the theft to resist apprehension or arrest.
Finally, we note that the appellant has cited several cases for the proposition that aggravated robbery is not a continuing offense. See, e.g., Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987). These cases, which deal with lesser-included offenses and double jeopardy considerations, are not germane to the question presented in the case at bar, i.e., the sufficiency of the evidence to support a single count of aggravated robbery.
Affirmed.
Jennings, and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
The appellant Walker Logging appeals a decision of the Workers’ Compensation Commission which held that the claimant, John Paschal, is permanently and totally disabled and that the Second Injury Fund has no liability. We affirm.
At a hearing on Mr. Paschal’s claim for additional benefits it was stipulated that he sustained a work related injury on August 13, 1987; that temporary total disability benefits had been paid; and that permanent partial disability payments had been paid on a scheduled injury rating of 30% to the right lower extremity. The claimant contended he was totally and permanently disabled.
The appellant-employer contended that the claimant was not permanently totally disabled; that the Commission should take into account the claimant’s refusal to pursue vocational rehabilitation; and, if the claimant was adjudged permanently totally disabled, then any a.ward in excess of the 30 % scheduled injury was the liability of' the Second Injury Fund.
The Second Injury Fund contended that the claimant was not permanently totally disabled; that there had been no showing of a combination of injuries to invoke Fund exposure; and that the claimant suffered from a scheduled injury for which no further benefits were due.
The administrative law judge held that the claimant’s compensable injury had combined with his prior back condition to result in permanent, total disability; that the appellant was liable for all medical and related expenses and for permanent, partial disability of 30 % to the right lower extremity; and that the Second Injury Fund was liable for all excess permanent, total disability benefits. The Second Injury Fund appealed to the Commission which affirmed the law judge’s finding that the claimant was totally and permanently disabled but reversed the liability of the Second Injury Fund.
The claimant-appellee is a man in his late forties who left school at age 17 after being promoted to the eighth grade. He testified he cannot read or write; he has worked at many jobs during his lifetime, all of which involved heavy manual labor; and he was refused employment, or fired from, several jobs because of a back problem. The claimant said he was working for appellant as a timber cutter when he was injured on August 13,1987, when a tree fell on him and he suffered an injury to his right knee. Dr. Robert S. Bell, orthopedic surgeon, repaired the knee surgically and reported in a letter dated September 11, 1987, that the claimant was found to have a torn medial collateral ligament, torn anterior cruciate, torn posterior cruciate, torn lateral meniscus and torn patella tendon, as well as, torn lateral capsular ligament. The claimant testified that his knee swells when he is on it for more than a few minutes at a time; he walks with a cane; he sleeps poorly because his back and knee hurt; he has to have regular injections in the knee; he can do nothing to help around the house, cannot mow the lawn, change the oil in his truck or help with the gardening; and he had to purchase a van so he could keep his knee stretched out when he had to ride somewhere.
The record contains a number of letters from Dr. Bell reporting his findings in the months following the claimant’s knee reconstruction. They reflect that for several months the claimant appeared to be healing nicely. On January 25, 1988, Dr. Bell stated:
John is seen in follow-up of cruciate reconstruction. He now has 95 degrees of flexion. He is continuing to improve his strength. He has good stability at this time. I am going to plan to admit John to Union Medical Center for arthroscopy of his knee and removal of staples.
On May 9,1988, Dr. Bell reported that for the extent of his injury the claimant was doing remarkably well; he said the claimant could not, however, return to activities which required excessive walking and climbing on unlevel ground and he gave the claimant a permanent impairment rating of 20 % to the lower extremity. Approximately a month later Dr. Bell reexamined the claimant and repeated his x-rays. In a letter dated June 3,1988, he stated that the claimant was showing increased swelling in his knee and some early degenerative changes which he had not taken into account in the earlier rating. Dr. Bell said for that reason he felt he had under-rated the claimant and he increased his permanent impairment rating to 30% to the lower extremity.
Dr. W. S. Burdick, an orthopedic surgeon with The Bone & Joint Clinic in Shreveport, Louisiana, examined the claimant on November 8, 1988, on referral from Dr. Bell and reported:
Impression: Postoperative repair of severe ligamentous injury, right knee; traumatic chondromalacia, right knee, with a definite prognosis of traumatic osteoarthritis developing in the knee. I think that, from the stability standpoint, the patient had an excellent repair of the severe ligament injury, but I think the articular cartilage damage is going to prevent this patient from returning to his previous type of work, which was working in the woods and on uneven ground. I would not think that he could return to any work of this type or work that required repeated squatting, bending or walking any significant distance. I think the patient is going to have to be retrained for some other semi-sedentary or sedentary type of occupation.
The claimant testified that he has suffered from back problems since he was 12 years old. On March 6,1986, Dr. Ernest R. Hartmann, an orthopedic surgeon who performed a pre-employment physical on the claimant for Cooper Industrial, reported that he had a sacralized L5 disc. In a follow up letter Dr. Hartmann explained that “sacralization means that the normal, finger-like transverse process which sticks out from the side of the vertebra is deformed to the extent that it has configuration of the sacrum and will form abnormal joints which can become a source of a back problem.” He said this was a congenital abnormality that would not constitute a rateable, residual disability.
Appellant first argues on appeal that the Commission erred in holding that the claimant was permanently and totally disabled. When reviewing a decision of the Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). We think there is substantial evidence to support the Commission’s finding of total and permanent disability.
Appellant also argues that the claimant should be required to have a vocational rehabilitation analysis. It argues that the claimant had agreed to such an analysis then, after he “got on Social Security disability (August 29, 1989) he was no longer interested in vocational rehabilitation.” The claimant testified he was unable to work, his wife did not work, he has a 14-year-old child still living at home, and his social security disability check is approximately $89 per month. The record shows that the claimant had agreed at a deposition to vocational rehabilitation testing. However, the appellant failed to arrange for the testing until two weeks before the hearing was scheduled to take place then wanted to get the hearing postponed so it could arrange for the claimant to be tested. It was then that the claimant declined •— because he did not want the hearing delayed any longer. The statute provides that a claimant must request vocational rehabilitation. See Ark. Code Ann. § ll-9-505(c) (1987). Therefore, it was within the claimant’s prerogative to refuse to consent to delay the hearing so vocational rehabilitation could be arranged.
The appellant also points out that the Commission found that based upon the claimant’s mental capacity, age, education, work experience, and physical impairment and limitations, he had presented a prima facie case that he falls within the odd-lot category, thus shifting to appellant the burden of going forth with evidence that some kind of suitable work is regularly and continuously available to the claimant. Appellant complains that at no point in the hearing did the claimant contend that he fell into the odd-lot category, that this raised a new issue on appeal and that its only option to rebut the odd-lot doctrine was a vocational rehabilitation evaluation, which was not ordered.
In M.M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979), it was stated:
The Arkansas Supreme Court long ago departed from the restrictive view that only anatomical or functional disability could be considered in determining disability to the body as a whole. The departure came in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), and since that case was decided we have been among the great majority of jurisdictions which allow consideration of several factors in determining not just functional bodily limitations, but loss of earning capacity as a predicate for workers’ compensation. See Wright, Compensation for Loss of Earning Capacity, 18 ARK.L.REV. 269 (1965), and 2 Larson, Workmen’s Compensation Law, §§ 57.51 and 57.61 (1976). Professor Larson suggests the principal and the factors as follows:
If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant’s mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. [2 Larson, supra, § 57.61, pp. 10-136 and 10-137]
The odd lot doctrine refers to employees who are able to work only a small amount. The fact they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. 2 Larson, supra, § 57.51, pp. 10-107, et seq.
267 Ark. at 736. See also, Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991); Hyman v. Framland Feed Mill, 24 Ark. App. 63, 748 S.W.2d 151 (1988); Johnson v. Research-Cottrell, 15 Ark. App. 48, 689 S.W.2d 8 (1985). Therefore, under the circumstances known to appellant prior to the hearing, and because of the total and permanent disability claim the appellant knew that the appellee was making, the appellant was on notice that the odd-lot doctrine was an issue.
The appellant also argues that the Commission erred in holding that it is solely liable for all benefits for permanent, total disability. In Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), the Arkansas Supreme Court set forth a tripartite test for Second Injury Fund liability.
1. The employee must have suffered a compensable injury at his present place of employment.
2. Prior to that injury the employee must have had a permanent partial disability or impairment.
3. The disability or impairment must have combined with the recent compensable injury to produce the current disability status.
295 Ark. at 5. It was stipulated that the claimant suffered a compensable injury while employed by appellant. The Commission found, however, that the second and third prongs of the test had not been met because the claimant did not have any permanent disability or impairment prior to his knee injury and there was no evidence that the conditions combined to create the claimant’s permanent total disability.
Appellant contends that it was error for the Commission to rely on Dr. Hartmann’s statement that the claimant’s congenital báck condition “would not constitute a rateable, residual disability” because the Commission ignored Dr. Hartmann’s follow-up statement that the claimant would be excluded from any job which required pre-employment back x-rays. The claimant testified that he had been steadily employed since he was seventeen, although he had been troubled by his back throughout his life and had frequently missed work days because of his back. He also testified he had been denied employment by Cooper Industrial because he couldn’t pass the physical and he was fired after working a week for Georgia-Pacific because he couldn’t pass the physical. However, as the Commission found, there is no medical evidence in the record showing that the claimant was ever given a permanent disability rating on his back or placed on any physical restriction because of his back. Furthermore, the Commission found that the claimant’s “permanent disability results solely from the effects of the compensable knee injury.” There is ample evidence in the record to support that finding.
Affirmed.
Cracraft, C.J., and Danielson, J., agree. | [
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John Mauzy Pittman, Judge.
Robert Matthew Green appeals from his conviction at a jury trial of robbery, for which he was sentenced to twenty years in the Arkansas Department of Correction. He does not challenge the sufficiency of the evidence to support his conviction. Instead, he argues only that the trial court erred in allowing the State to cross-examine him regarding his alleged commission of a separate robbery for which he had not been convicted. We agree, and reverse and remand for a new trial.
At trial, the State presented the testimony of one witness, Daniel Cox, concerning the circumstances of the robbery for which appellant was being tried. Mr. Cox testified that on April 29, 1996, he was at the E-Z Mart Store in Hope, Arkansas, visiting with the clerk on duty. He testified that appellant entered the store at around 3:00 a.m. and asked for ten packages of cigarettes, which the clerk collected and put into a bag. According to Mr. Cox, appellant picked up the bag and started to leave the store without paying. Mr. Cox stated that he grabbed appellant in an effort to stop the theft, but appellant broke free of Mr. Cox’s grip and left the store. The State also introduced a Tyson Foods employee identification card and a Social Security card issued to Robert Green, which Mr. Cox testified he removed from appellant’s shirt during their struggle.
On cross-examination of appellant, the prosecuting attorney questioned him about a separate robbery of an E-Z Mart Store, for which appellant had been charged but not convicted. Appellant’s objection was summarily overruled by the trial court on grounds that “credibility is an issue.” On appeal, appellant contends that the trial court erred in allowing the prosecutor to so question him because robbery is unrelated to appellant’s truthfulness or untruthfulness. We agree.
Rule 609 of the Arkansas Rules of Evidence provides for the impeachment of a witness’s credibility by proof of prior criminal convictions. Rule 608(b) governs the admissibility of credibility evidence consisting of specific instances of a witness’s conduct other than conviction of a crime. It provides in part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Ride 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
(Emphasis added.) The supreme court has adopted a three-part test that must be met in order for cross-examination to be undertaken pursuant to this rule: (1) the question must be asked in good faith; (2) the probative value of the evidence must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness’s truthfulness. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). The court has made it clear that cross-examination under Rule 608(b) is limited to specific instances of misconduct clearly probative of truthfulness or untruthfulness as distinguished from con duct probative of dishonesty. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). In Rhodes, the court noted distinctions between conduct such as false swearing, fraud, and swindling (which do relate to truthfulness) and conduct such as shoplifting, drug crimes, and assault (which ordinarily do not).
Here, the conduct about which appellant was cross-examined was his alleged commission of a robbery subsequent to the one for which he was being tried. While an absence of respect for another’s person and property is an undesirable trait, it does not directly indicate an impairment of the trait of truthfulness. See id. Thus, the trial court erred in allowing appellant to be cross-examined regarding a robbery for which there was no conviction.
The State does not contend that the trial court’s action was correct. Rather, it argues only that the error should be treated as harmless in light of the “overwhelming” evidence of appellant’s guilt. We cannot conclude that the error was harmless.
When an evidentiary error is slight and the remaining evidence of a defendant’s guilt is overwhelming, the error may be declared harmless and the conviction affirmed. Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996). In this case, however, we cannot conclude that the erroneous admission of evidence that appellant had been charged with having committed a similar offense was a slight error. Nor can we conclude that the testimony of Mr. Cox constitutes evidence that is overwhelming. Although the clerk of the E-Z Mart was also present at the time the robbery allegedly occurred, only Mr. Cox testified. See Harris v. State, 36 Ark. App. 120, 819 S.W.2d 30 (1991). Furthermore, there was no evidence linking appellant’s identification cards to any criminal activity other than Mr. Cox’s testimony. (Compare Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), where a medical examination provided independent proof showing that a crime had been committed.) Given that the State’s entire case rested on the testimony of Mr. Cox, and that the weight to be afforded Mr. Cox’s testimony turns on his credibility, we cannot, on this record, say that the evidence against appellant was overwhelming. Consequently, we reverse appellant’s conviction and remand the case for a new trial.
Reversed and remanded.
Robbins, C.J., and Bird and Roaf, JJ., agree.
Arey and Crabtree, JJ., dissent. | [
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Andree Layton Roaf, Judge.
Myron Bass brings this udge. daughter, L.B., from the circuit court’s order finding L.B. to be a member of a Family in Need of Services (FINS) under Ark. Code Ann. § 9-27-303(23) (B) (Supp. 2003). Mr. Bass contends (1) that the evidence was insufficient to support the judgment that L.B. was habitually disobedient to her mother; (2) that the trial court denied L.B. due process and her Sixth and Fourteenth Amendment rights based upon the inadequacy of her court-appointed counsel; and (3) that L.B.’s mother’s petition and affidavit were not credible enough to allow the State to charge L.B. as a delinquent. Mr. Bass, in bringing this appeal, has engaged in the unauthorized practice of law by a non-attorney. Furthermore, the order appealed from is further not a final appealable order. We dismiss the appeal.
Myron Bass and Maria Green were married for a period of sixteen years; their union produced four children. Myron and Maria divorced on August 17, 2004. The couple worked out a joint-custody agreement whereby each would keep the children for six months of the year. Immediately after divorcing Myron, Maria married Kenneth Green.
On February 10, 2005, Maria Green filed a FINS petition alleging that L.B. refused to obey the “reasonable and lawful orders of her parent.” Apparently, L.B. became enraged at her mother after Maria refused to allow L.B. to attend an after-school game. Maria’s affidavit claims that she tried to explain to L.B. that her baby sister was sick but that L.B. got upset and started talking in a disrespect&l manner, stating that she no longer wanted to live with Maria, that she did not like her room, that she wanted to be able to watch television and use the telephone for as long as she wanted, and that she wanted to be able to stay out all night at a friend’s house.
After a hearing on February 28, 2005, in which L.B. and both of her parents appeared, the judge found L.B. to be a member of a Family in Need of Services as defined under Ark. Code Ann. § 9-27-303 (23) (B) as a result of L.B. “being habitually disobedient to the reasonable and lawful commands of her parent, guardian, or custodian.” There was no out-of-home placement, and there were no additional findings or orders made. L.B. and both Myron Bass and Marie Green were shown as parties on the trial court’s adjudication order.
Myron Bass objects to the placement of his daughter into the juvenile system and purports to bring this appeal on L.B.’s behalf, arguing (1) that the evidence did not support a finding that L.B. “habitually” disobeyed authority; (2) that L.B. was denied due process, equal protection, and her Sixth and Fourteenth Amendment rights, because her court-appointed attorney was so inadequate and ineffective as to be virtually nonexistent and because she did not have the opportunity to file motions or engage in pre-trial discovery; (3) that Maria Green’s petition and affidavit were not credible enough to allow the State to charge L.B. as a delinquent; and (4) that the open hearing conducted violated L.B.’s right to confidential proceedings. Bass further asserts that he now has full custody of L.B.
The State has filed a motion to dismiss this appeal on the bases that (1) Bass is not a licensed attorney and although a party to the FINS case, cannot appeal on behalf of his daughter; (2) there was no out-of-home placement, and the FINS adjudication order appealed from is thus not a final, appealable order; and (3) Bass has not abstracted any of the testimony from the hearing. In his response to the State’s motion, Bass denies that he is a party to this case and denies that the FINS order is not appealable. However, he affirms that he is not a licensed attorney and that he is bringing this appeal solely on behalf of his daughter, stating that “the true appellant here is L.B.”
We must agree with the State that because Mr. Bass is not a licensed attorney, this appeal is a nullity. According to Ark. Code Ann. § 16-22-206 (Repl. 1999), no one can engage in the practice of law in this state unless admitted to practice by the Arkansas Supreme Court. Therefore, it is illegal for Mr. Bass to attempt to represent his daughter in this appeal. A non-attorney may appear pro se on his own behalf; however, he has no authority' to appear as an attorney for anyone other than himself. See Abel v. Kowalski, 323 Ark. 201, 913. S.W.2d 788 (1996) (holding that a pro se appellant could represent himself but could not file motions on behalf of the other appellants). Other jurisdictions have recognized that a parent cannot file an order on behalf of a minor child without retaining counsel.
Moreover, the juvenile has an absolute right to counsel in the circumstances of this case. Arkansas Code Annotated section 9-27-316(a)(1) (Supp. 2003) provides that ajuvenile and parents in FINS cases be advised that the juvenile has the right to be represented in all stages of the proceedings by counsel. Section 9-27-316(c) provides that if counsel is not retained, counsel shall be appointed to represent the juvenile at all appearances before the court, unless the right to counsel is waived in writing as set forth in § 9-27-317. However, § 9-27-317(e) (Repl. 2002) states that “no waiver of the right to counsel shall be accepted in any case in which the parent, guardian or custodian has filed a petition against the juvenile, initiated the filing of a petition against the juvenile, or requested removal of the juvenile from the home.” Here, L.B. was represented by court-appointed counsel at the hearing, was required to have counsel since her mother had filed the petition against her, and counsel for L.B. could not be waived in this circumstance. Just as Bass was not authorized to appear as counsel before the trial court on L.B.’s behalf, he is not authorized to prosecute this appeal on her behalf without retained or appointed counsel.
The State also asserts that this court does not have jurisdiction because the FINS adjudication order did not include an out-of home placement and, therefore, is neither final nor appealable, as required by Rule 2(c)(3) of the Arkansas Rules of Appellate Procedure. This rule provides for the appeal of orders from certain interim proceedings in juvenile cases only where out-of-home placement has been ordered. We agree that this would also provide a basis for dismissing this appeal. Accordingly, the appeal is dismissed.
Appeal dismissed.
Crabtree and Baker, JJ., agree.
See, e.g., Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997); Osei-Afriyie v. Med. Coll. of PA, 937 F.2d 876 (3rd Cir.1991); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986). | [
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John Mauzy Pittman, Chief Judge.
This is an appeal from udge. Pulaski County Circuit Court for appellees Southern Farm Bureau Casualty Insurance Company and Farm Bureau Mutual Insurance Company of Arkansas, Inc., declaring that appellees have no duty to defend appellant Sheila Ison in her individual capacity and as her son’s parent, or to pay benefits for damages caused by her son in an accident on March 8, 2003. The circuit judge based his decision on his ruling that, as a matter of law, appellant’s son’s use of the vehicle was without permission. We agree and affirm the award of summary judgment to appellees.
After Mrs. Ison and her former husband, Gordon Brown, were divorced, they shared joint custody of their son. Mrs. Ison remarried, and her husband, Richard Ison, had an auto insurance policy with appellees. Appellant’s son had a driver’s permit, but did not have a license, and was not a named insured or driver on either of his parent’s insurance policies. Under the “Bodily Injury” and “Property Damage” subsection of the “Auto Liability” section, the Isons’ policy stated:
We will pay damages for bodily injury and property damage you are legally obligated to pay, except punitive damages, caused by an accident, and arising out of the ownership, maintenance, and use of your auto. For the purpose of this coverage, the words “covered person(s)” include any members of your household and any person or organization legally responsible for the use of your auto with your permission.
The policy defined “covered person” as “the persons and organizations specifically indicated as entitled to protection under the coverage being described.”
In the “Auto Liability” section, the “Coverage Extensions” subsection provided in relevant part:
When your policy insures a private passenger auto for Bodily injury and Property Damage Liability Coverage, we will provide those same coverages for the use of certain other private passenger autos.
1. Use of Other Private Passenger Autos.
Coverage applies to you or dependent relatives living in your household while using another private passenger auto. However, the private passenger auto cannot be:
a. owned by you or dependent relatives of your household; or
b. furnished or available for regular use by you or dependent relatives of your household.
These coverage extensions do not apply to accidents:
1. that involve any auto you are driving without permission that is stolen or is reasonably suspected to be stolen ....
Under the “Coverage Exclusions” section, the policy stated:
We will not pay for:
1. bodily injury or property damage caused by intentional acts committed by or carried out at the direction of you or any other covered person. The expected or unexpected results of these acts or directions are not covered;
13. bodily injury or property damage while you or anyone using your auto, with your permission, is involved in the commission of a felony; or while any such person is seeking to elude lawful apprehension or arrest by any law enforcement official....
On March 8, 2003, while appellant’s son, aged fifteen years, was at his father’s house, he learned that his girlfriend was pregnant. Distraught, he took an overdose of his medicine for attention-deficit disorder, his stepmother’s antidepressants, and some nonprescription medicine; took the keys to his father’s pickup truck; slashed the tires on the family’s other vehicle; drove in his father’s truck to a family member’s house, where he stole some guns; led the police on a high-speed chase; and crossed the median and drove into the opposite lane of traffic on Interstate 30, causing an accident involving Sonia Rogers and James Rogers (now deceased).
Mrs. Rogers, individually, and as Administratrix of the Estate of James Rogers, filed a lawsuit against Mr. Brown and Mrs. Ison, individually and as their son’s parents, in the Saline County Circuit Court for damages caused by the accident. Allstate Insurance Company, Mr. Brown’s insurer, refused to defend Mrs. Ison, who had signed as the responsible party for the son’s driver’s permit. With a reservation of rights, appellees agreed to provide her with a limited defense in that lawsuit.
Appellees filed this action against Mrs. Ison and Mr. Brown, individually and as their son’s parents, and Mrs. Rogers, individually and as administratrix of the Estate ofjames Rogers, on May 19, 2004, seeking a declaratory judgment stating that they had no duty to defend or to provide coverage for the accident on the grounds that appellant’s son was not a permissive driver; that there was no coverage for accidents involving an auto driven without permission or that was stolen; that damages caused by intentional acts were excluded from coverage; and that damages incurred while the insured or anyone using the automobile with permission was involved in the commission of a felony or seeking to elude lawful apprehension or arrest by any law enforcement official were also excluded. Mrs. Ison, individually and as her son’s mother, filed a counterclaim against appellees requesting a declaration that they were contractually bound to provide her with a defense to Mrs. Rogers’s action and to provide coverage for any damages awarded. In his answer, Mr. Brown admitted that his son took his vehicle without permission.
Appellees moved for summary judgment, arguing that the policy conditioned coverage on the permissive use of a vehicle and unambiguously excluded coverage for intentional acts and for accidents occurring during flight from law enforcement officers. In support of their motion, appellees filed a certified copy of the insurance policy in effect at the time of the accident and a copy of Mrs. Rogers’s complaint in the Saline County Circuit Court. In their brief, appellees argued that the insurance policy’s initial statement of coverage did not apply because Mrs. Ison’s automobile was not involved in the accident; that the coverage extension, which gave the same coverage to a dependent relative living in the insured’s household while using another private passenger automobile, did not apply because appellant’s son was not living in her household when the accident occurred and was not using the other automobile with permission; that the coverage extension did not apply to accidents involving stolen vehicles; that the policy excluded from coverage bodily injury or property damage caused by intentional acts; that the policy also excluded bodily injuries occurring “while you or anyone using your auto, with your permission, is involved in the commission of a felony ... or while any such person is seeking to elude apprehension or arrest by any law enforcement official”; that, after the accident, appellant’s son was charged with felony fleeing, criminal mischief, reckless driving, possession of a firearm, and the unauthorized use of a vehicle and was found guilty of fleeing; and that appellees had not agreed to protect Mrs. Ison from liability she assumed by signing her son’s application for a driver’s permit. In opposition to appellees’ motion for summary judgment, Mr. Brown filed a copy of his deposition.
Mrs. Ison moved for partial summary judgment on October 20, 2004, requesting a determination that appellees owed her a defense with independent counsel of her choosing. She filed copies of Mrs. Rogers’s first amended complaint and appellees’ responses to her interrogatories and requests for production of documents, including copies of her March 16, 2004 statement to appellees’ investigator, Jason Grady, and appellees’ March 22, 2004 letter to her denying coverage but agreeing to provide her with a limited defense (its reservation of rights).
At the conclusion of the hearing on the motions, the circuit judge stated:
From my reading of everything before me, I do not see how a jury could conclude that there was permission to drive the vehicle under these facts. I guess to state it more clearly, I do not know that there is sufficient evidence from which a jury could conclude that there was permission.
If I get to that point, I do not know whether a ruling on other issues is necessary or not. I do not believe what I will call the “you” argument for lack of a better means to articulate it. I do not believe that argument applies. I think there is language in here that says that whatever coverage goes to the primary person is given is extended to the other one and the policy ... exclusions. The other person does not have less exclusions. The other person has the same exclusions of whoever the primary person was.
I guess I am confusing one affirmative motion for summary judgment with reasons to deny the other. I am going to find as a matter of law that there was not permissive use of this vehicle. Unless asked to, I am not going to make a finding on the intentional act. I do not believe that is necessary. I do not know whether I have sufficient information before me one way or the other.
The circuit judge entered an order granting appellees’ motion for summary judgment and denying Mrs. Ison’s motion on January 20, 2005, stating that appellees had no duty to defend Mrs. Ison or to pay benefits as a result of the accident. Mrs. Ison has appealed from that order.
W e approve the granting of a motion for summary judgment only when the state of the evidence portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., there is no genuine issue of material fact remaining, and the moving party is entitled to judgment as a matter of law. Cumming v. Putnam Realty, Inc., 80 Ark. App. 153, 92 S.W.3d 698 (2002). Also, we normally view the evidence in the light most favorable to the party resisting the motion and resolve any doubts and inferences against the moving party. Cranfill v. Union Planters Bank, N.A., 86 Ark. App. 1, 158 S.W.3d 703 (2004). However, when parties file cross-motions for summary judgment, they essentially agree that there are no material facts remaining, and summary judgment may be an appropriate means of resolving the case. Id. The filing of cross-motions for summary judgment, however, does not necessarily mean that there are no material issues of fact in dispute. In some cases, a party may concede that there is no issue if his legal theory is accepted and yet maintain that there is a genuine dispute as to material facts if his opponent’s theory is adopted. Id. Appellant takes this approach.
Appellant’s first point states that the circuit judge erred in “denying” summary judgment, so it appears that she is attacking the denial of her motion for partial summary judgment as well as the award of summary judgment to appellees. She asserts that the policy covered her and her son under the following coverage extension:
When your policy insures a private passenger auto for Bodily Injury and Property Damage Liability coverage, we will provide those same coverages for the use of certain other private passenger autos.
1. Use of Other Private Passenger Autos.
Coverage applies to you or dependent relatives living in your household while using another private passenger auto. However, the private passenger auto cannot be:
a. owned by you or dependent relatives of your household; or
b. furnished or available for regular use by you or dependent relatives of your household.
Mrs. Ison argues that, because this provision is silent on the issue of permissive use and she is a named insured and comes within the meaning of “you,” she is entitled to a defense and to coverage. She also asserts that, because her son is a “dependent relative” living in her household, he is also covered by the policy and entitled to a defense, even though the accident occurred on a night that he was staying with his father, who shared custody of him. Under this point, Mrs. Ison contends that the circuit judge’s finding that her son’s use of the vehicle was not permissive was not a sufficient basis for summary judgment because the policy’s provisions related to permissive use do not apply to her son. She argues that Coverage Extension No. 1 clearly extends coverage to a named insured or dependent family member for liability arising out of a named insured’s or family member’s “use” of another auto. Mrs. Ison also contends that the following provision did not apply to her son, because he did not meet the definition of “you” within the policy: “These coverage extensions do not apply to accidents: 1. that involve any auto you are driving without permission that is stolen or is reasonably suspected to be stolen. . . .” The policy defines “you” and “your” as “the policyholder first named in the current policy declaration. Unless specifically stated otherwise in the policy, you and your includes the policyholder’s spouse if a resident of the same household.” Mrs. Ison points out that her son is not the policyholder’s spouse, and that other sections of the policy differentiate between “you” and “dependent relatives living in your household.”
It is, therefore, necessary to construe the insurance policy. The general rule is that the pleadings against the insured determine the insurer’s duty to defend. Anderson Gas & Propane, Inc. v. Westport Ins. Corp., 84 Ark. App. 310, 140 S.W.3d 504 (2004). The duty to defend is broader than the duty to pay damages, and the duty to defend arises where there is a possibility that the injury or damage may fall within the policy coverage. Id. The insurer must defend the case if there is any possibility that the injury or damage may fall within the policy coverage. Id.
In reviewing an insurance policy, the appellate court follows the principle that, when the terms of the policy are clear, the language in the policy controls. Anderson Gas & Propane, Inc. v. Westport Ins. Corp., supra. The language in an insurance policy is to be construed in its plain, ordinary, popular sense. Id. If a policy provision is unambiguous, and only one reasonable interpretation is possible, the court will give effect to the plain language of the policy without resorting to rules of construction. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Id. If the policy language is ambiguous, the policy will be construed liberally in favor of the insured and strictly against the insurer. Id. Whether the language of a policy is ambiguous is a question of law to be resolved by the court. Id. If ambiguity exists, parol evidence is admissible and the meaning of the ambiguous term becomes a question for the fact-finder. Id.
Because the circuit judge based his decision on his determination that, as a matter of law, appellant’s son’s use of the vehicle was without permission, he obviously viewed the insurance contract as unambiguous. Contracts of insurance should receive a practical, reasonable, and fair interpretation consonant with the apparent object and intent of the parties in light of their general object and purpose. Sweeden v. Farmers Ins. Group, 71 Ark. App. 381, 30 S.W.3d 783 (2000). Further, different clauses in a contract must be read together and construed so that all of its parts harmonize, if that is at all possible. Id. It is error to give effect to one clause over another on the same subject if the two clauses are reconcilable. Travelers Indem. Co. v. Olive’s Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596 (1989).
In our view, appellant’s hyper-technical interpretation of the policy is patently unreasonable. Essentially, she interprets it as extending greater coverage to dependent relatives living in her household, whose coverage is derivative of hers, while using another private passenger auto, than it does to her and her spouse. Reading the policy as a whole, as we must, it is clear that the interpretation given by the circuit judge was the only reasonable view possible. The obvious intent of the policy was to extend coverage for non-listed autos and for individuals that were not named insureds, spouses, or drivers, under very limited circumstances, and to require that all “dependent relatives living in [the Isons’] household” have permission to use the “other private passenger auto.” Accordingly, we affirm on this point.
Mrs. Ison further argues that, even if permission was required, (1) the court should have held that, as a matter of law, her son had permission to take the vehicle, or (2) a material issue of fact — whether her son had permission — remains to be tried. She correctly states that the permission from a named insured to another to drive a vehicle necessary to provide coverage under a liability policy may be express or implied. See M.F.A. Mut. Ins. Co. v. Mullin, 156 F. Supp. 445 (W.D. Ark. 1957). Mrs. Ison admits that express permission was not given to her son but argues that, at the least, an issue of fact exists as to whether he had implied permission. She reminds this court that Arkansas courts follow the “Hell or High Water” rule, under which implied permission will be found, short of theft or conversion. In Commercial Union Ins. Co. v. Johnson, 294 Ark. 444, 745 S.W.2d 589 (1988), the supreme court adopted the “initial permission” or “Hell or High Water” rule, which provides that, if the vehicle was originally entrusted by the named insured, or by one having proper authority to give permission, to the person operating it at the time of an accident, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated. The court explained that an important policy behind the rule is to assure that all persons wrongfully injured have financially responsible persons to look to for damages and that a liability insurance policy is for the benefit of the public as well as for the benefit of the named insured. Id. That case holds that a deviation from the permitted use is absolutely immaterial; the only essential thing is that permission be given for use of the vehicle. Id. The court cautioned, however, that the rule that initial permission will suffice applies only when that permission was actually granted to the user sought to be brought within the coverage of the policy and concluded:
The cases adopting the “initial permission” rule usually provide that it governs “short of theft or conversion,” see Milbank Mutual Insurance Co. v. United States Fidelity and Guaranty Co., supra, 332 N.W.2d at 167, or “short of an unlawful taking,” see Odolecki v. Hartford Accident & Indemnity Co., supra, 264 A.2d at 40. Although the question is not before us now, we agree that an insurer should not be liable to a thief or a person who has no permission to use a vehicle and who converts it to his or her own use. With respect to the situation in which one who has permission of the named insured grants permission to another person to use the named insured’s vehicle, we make no decision. In this case the car belonged to Brett Davis. Teresa Davis, Brett’s wife, had permission to use the car, and she gave permission to Self. However, no issue has been raised as to Self being the second permittee. As we noted at the outset, Commercial Union conceded that if Teresa had give Self permission, Selfs use of the car was covered under the policy. Some of the policy reasons for adopting the “initial permission” rule probably apply in the “second permittee” case to the same extent that they apply no matter how greatly the person having permission of the named insured may deviate from the permitted route or use, but we leave that question open.
Our holding is that the “initial permission” rule applies in Arkansas, and that the trial judge was correct in holding that the extent of route deviation by Self in the driving of the Davis vehicle is thus immaterial.
294 Ark. at 454, 745 S.W.2d at 594-95.
Mrs. Ison compares this situation to Farmers Insurance Exchange v. Janzer, 215 Mont. 260, 697 P.2d 460 (1985), where a fourteen-year-old boy caused an accident while running away from home in his parents’ auto. The Janzer boy’s father started teaching the boy to drive an automobile when he was ten years old; since the age of thirteen, the boy had frequently driven the auto on the highway and in the city when his parents were present; and, for several months before the accident, he drove the auto by himself to his job one mile away on a county road, with his parents’ knowledge and express permission. The court understandably found that the boy’s permission to use the auto “did not stop at the corral gate” and held that the issue ofimplied permission remained to be tried.
Mrs. Ison argues that the following considerations raised an issue of fact as to whether her son had implied permission to use the vehicle: (1) there was no evidence that her son had been expressly prohibited from using his father’s vehicle; (2) he had driven the vehicle, while alone, in the past; (3) he had a driver’s permit; (4) he had access to the keys; (5) he lived in the house of the vehicle’s owner, his father.
We disagree and find that the facts of this case are significantly different from those in Janzer. First, there was no “initial permission” actually given to appellant’s son, and there fore, the “Hell or High Water” rule does not apply. Second, the evidence concerning the son’s prior use of his father’s vehicle was utterly insufficient to raise an issue of fact as to whether he had implied permission to take it on the date in question. In his deposition, Mr. Brown testified that his son had driven his father’s truck by himself “probably twice” in the past; both times were “around the church parking lot” for the purpose of “either loading Boy Scout stuff up or something like that. . . .” Because appellant failed to demonstrate any issue of fact as to whether her son had implied permission to take the truck, we also affirm on this point.
Affirmed.
Griffen and Crabtree, JJ., agree.
Usually, the denial of a motion for summary judgment, which is an interlocutory order, may not be appealed. However, it can be considered in conjunction with an appeal from a grant of summary judgment. Smith v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 88 Ark. App. 22, 194 S.W.3d 212 (2004).
Additionally, Mrs. Ison contends that her son’s intent to commit theft or conversion is a disputed issue of material fact, in light of his taking of prescription and non-prescription drugs and slashing his wrists in his suicide attempt during what was described as a “major depressive episode,” which cast doubt on whether he was mentally capable of forming an intent. She notes that many courts have adopted the view that an insured suffering from a lack of mental capacity at the time of committing tortious conduct does not fall within an intentional injury exclusion. The exclusions, however, were not ruled on by the circuit judge and, therefore, are not properly before us. See Jones v. Double "D"Props., Inc., 357 Ark. 148, 161 S.W.3d 839 (2004). | [
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John Mauzy Pittman, Chief Judge.
The parties in this J child-custody case were divorced by a decree granting primary physical custody of their children to appellant. Subsequently, appellant was involved in a head-on collision in which two of the children were injured because they were not properly restrained, and after which appellant tested positive for methamphetamine use. Ap-pellee filed a petition to change custody that, after a hearing on August 6, 2004, was granted. On appeal, appellant contends that the trial court erred in using the “preponderance of the evidence” standard to determine whether there had been a material change of circumstances, and that there was insufficient evidence to support a finding that there had been a material change in circumstances. We affirm.
We disagree with appellant’s assertion that a material change of circumstances must be shown by an unspecified “higher standard” than preponderance of the evidence. Although our supreme court has noted that a more stringent standard applies to custody modifications than to initial custody determinations, see, e.g., Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), this refers to the need in such cases to prove additional factors, i.e., that there has been a change of circumstances since the initial determination, and that the change in circumstances was material to the best interest of the child. See id. These additional factors must be proven by a preponderance of the evidence, as shown by the following excerpt from an opinion written by the learned Justice Fogleman:
Appellees contended in the trial court that a change in the children’s desires with respect to traveling to Utah was sufficient in and of itself to constitute “changed circumstances.” Even if we were to recognize that such a condition constituted “changed circumstances” the appellees have failed to show by a preponderance of the evidence that such a change has in fact occurred. The testimony of the parties was conflicting, as was the testimony of a child psychologist consulted by Ruby Pyle. However, we find a visit to Utah made by one child subsequent to the decree, with no apparent ill effects, to be highly persuasive on the pertinent question. It appears that this visit was made without further order of the court, but an order of the court entered December 8, 1972, required that both girls visit with their mother in Utah for one-half of the Christmas vacation, thus, in effect, reinstating a portion of the prior decrees. The testimony of the child psychologist, that visits of the children with their mother in Utah would be quite beneficial to the children and that the chances that the younger child would be adversely affected were one in five that the older child would not be adversely affected, was also persuasive. Because of the factors recited, we find that the appellees did not show by a preponderance of the evidence that there were changed circumstances sufficient to justify modification of the earlier decree.
Pyle v. Pyle, 254 Ark. 400, 402-03, 494 S.W.2d 117, 119 (1973) (emphasis added).
Nor do we agree with appellant’s assertion that there was insufficient evidence of a material change in circumstances to support a change of custody in the present case. There was evidence that appellant’s behavior had changed since the divorce and that she was not the “same person.” One witness, who described herself as a good friend of appellant, testified that, while she had trusted appellant to care for her son before her divorce, appellant had undergone a “big change” since then such that she would no longer trust appellant to care for her child. The testimony concerning appellant’s increasing instability and poor judgment was corroborated by evidence that she had persistently failed to take the elementary precaution of properly restraining her children with seatbelts in the car.
There was testimony concerning an incident in which appellant was stopped by a police officer because her five-year-old daughter was observed sitting on the console rather than being properly seated and restrained. There was, in addition, evidence that appellant pled guilty to two counts of not using proper safety restraints for the children on April 13, 2004. Finally, there was evidence that, on May 27, 2004, appellant, driving with her three daughters in the vehicle, repeatedly crossed the center line and struck an oncoming vehicle head-on, resulting in serious injury to the driver of the other vehicle, to herself, and to two of her daughters, who had not been properly restrained. Appellant’s youngest daughter, who was properly restrained in a child seat, was uninjured. Appellant was transported to a hospital, where a diagnostic test performed on her was positive for the presence of amphetamine.
Appellant argues that the diagnostic test performed on her was unreliable because it was unconfirmed and therefore does not support the trial court’s finding that she had been abusing amphetamine at the time of the accident. We do not agree. There was medical testimony that the test performed on appellant was used for diagnostic purposes, was reliable, and that false positives or negatives were almost unknown. There was also evidence that the reason that the results of this test were unconfirmed was because appellant refused to consent to a subsequent, additional test requested by a police officer. Refusal to consent to such a test is evidence of consciousness of guilt. Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990). Although appellant attempted to explain the positive test by testifying that she had ingested legal medications and substances that could result in a false positive result, the trial judge expressly found that her testimony lacked credibility. Given the foolhardiness of appellant’s actions, and the danger that her behavior posed to her children, we cannot say that the trial court erred in finding a material change in circumstances warranting a change of custody.
Affirmed.
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Sam Bird, Judge.
This case involves the risk level assigned to udge. J. Claybaugh Jr. under the Sex Offender Registration Act of 1997, which was enacted by the General Assembly for the express purpose of protecting the public from sex offenders and assisting law enforcement in so protecting the public safety. Ark. Code Ann. § 12-12-902 (Repl. 2003); Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5 S.W.3d 402 (1999). The Act specifies that individuals convicted of particular sex offenses must register with the State as sex offenders and must submit to an assessment of the risk that they pose to the public. Ark. Code Ann. § 12-12-917 (Spec. Supp. 2003-2004).
Appellant S.ex Offender Screening and Risk Assessment (SOSRA), a unit of the Sex Offender Assessment Committee (Committee), brings this appeal from the Sebastian County Circuit Court’s order of January 3, 2005, which reduced the risk assessment that the Committee had assigned to Claybaugh from Level 3 to Level 1. SOSRA contends that the Committee’s decision was supported by substantial evidence, was not based upon unlawful procedure, and was not arbitrary and capricious. We do not agree. The decision of the Committee is reversed, and the decision of the trial court is affirmed.
On June 3, 2002, Claybaugh pled no contest to the charge of second-degree violation of a minor, based upon allegations that he rubbed his fourteen-or-fifteen-year-old daughter with a vibrator on her vagina on top of her clothing while she was sleeping. He was found guilty, was sentenced to seventy-two months in the Arkansas Department of Correction, and was incarcerated. He was released on parole, and on September 17, 2003, he presented himself to the Sex Offender Assessment Committee for sex-offender risk assessment.
Guidelines and procedures for public disclosure of information about sex offenders that are necessary for public protection are developed by the Sex Offenders Assessment Committee. Those guidelines “identify factors relevant to a sex offender’s future dangeróusness and likelihood of reoffense or threat to the community” and determine public notification according to the risk level that an offender is assigned after undergoing the assessment process. See Ark. Code Ann. § 12-12-913.
In the present case, a “risk assessment and offender profile report” signed by George K. Simon Jr., Ph.D., included the following summary of Claybaugh’s assessment interview:
This offender was interviewed on 9-17-03 by Diane Gray, Correctional Counselor. He was extremely uncooperative and incompre-hensively evasive when questioned. George K. Simon, Ph.D. was also present for a portion of the interview and advised the offender about the lack of need for and the possible consequences of his refusal to cooperate. The offender continued to make implausible assertions and to refuse to answer questions in a straightforward manner. His refusal to cooperate reached a point that the interview had to be terminated.
The report found that Claybaugh’s “extreme uncooperativeness in the face of a relatively minor sex offense of record suggests his sexual deviancy and offense history as well as his antisociality may be greater than the official conviction record suggests.” Although noting the low risk given Claybaugh under the Vermont Assessment of Sexual Offense Risk (VASOR) Composite Risk, the report assessed Clay-baugh at Level 3 by default “because he refused to comply or cooperate with Risk Assessment procedures.”
Claybaugh filed an administrative appeal of his risk classification to SOSRA, which appointed a member of the Sex Offender Assessment Committee to conduct the review. The written review included the following findings:
Mr. Claybaugh did not have to admit guilt, he did have to be honest as to his state of mind, intent and actions. I have listened to the tape and though he tries to come across as credible, I do not find him so. It is the policy of the Sex Offender Assessment Committee that if the individual is not open and honest during the assessment he/she cannot be adequately assessed.
Thereupon, the Committee found no reason to change the risk level from the default Level 3 that had been assigned.
Claybaugh appealed the Committee’s ruling to the Sebastian County Circuit Court, essentially asserting that substantial evidence did not support the agency decision. A hearing was conducted before the trial court on December 20, 2004. The record of the hearing includes these comments by the court:
I have been talking to the attorneys in chambers. I have reviewed the file and part of the record that was submitted. I haven’t had a chance yet to review it all. Let me tell you what I had actually determined and then these attorneys can see if that is what we actually decided. I told the attorneys that based on my review of the file and the partial review of the record, level 3 seemed an inappropriate level to me. It seemed too high, but I didn’t know what provisions there were. Mr. Walker indicated that the Committee was meeting today and that they could take this matter up and vote today. If they voted to leave it at a level 3, then what I propose to do is, well, I propose to suspend this hearing today. If the Committee votes to leave it at level 3, there is no need to have the attorneys or Dr. Mobley come back. I will review the file and the complete record and make a written order either saying it should stay level 3, it should be lowered to level 2 or level 1.
If the Committee lowers it from level 3, then Mr. Metcalf [defense counsel] has agreed to be satisfied with the lower level and there would be an order entered. I guess, Mr. Walker, you would prepare it basically stating that, that the Committee has reduced it to a level whatever and that’s it.
The parties, after agreeing to suspension of the hearing so that a compromise settlement proposal could be presented to the Sex Offender Assessment Committee the same day, submitted their statements to the trial court and introduced exhibits into evidence in the event that the Committee did not change the level. The Committee met and, rather than accept the parties’ proposed compromise, let the Level 3 classification stand. The trial court then reviewed the case.
The evidence before the trial court included a consent/refusal/disclosure form bearing Claybaugh’s signature; the Committee’s 2002 guidelines for assessment, registration, and notification; pertinent statutes; and audio tapes. The form that Claybaugh signed stated that an assessment “is based primarily on documented information” as opposed to the examiner’s opinions, but that Level 3 would be assigned if the offender should “withhold information, give false information or seriously compromise the assessment team’s ability to do a fair and accurate assessment.” Similarly, the 2002 guidelines state that a high-risk classification will be given to individuals “who attempt to conceal or lie about their behavioral histories.” The State informed the trial court that 2002 regulations allowed an increased risk for an offender “deemed to have provided deliberately false or misleading information to the assessment team” and that later regulations, adopted in June of 2004, attempted to clarify “false or deliberate” as follows:
It is important that the person being interviewed answer the questions openly and honestly. If the answers do not match up with the documents previously obtained, the interviewer may conclude that the individual is withholding information or being deceptive.
Also in evidence was a copy of Ark. Code Ann. § 12-12-917(b)(4)(B)(ii)(a) (Spec. Supp. 2003-2004), which reads in part:
If a sex offender fails to appear, is shown by substantial evidence to have been deceptive, or voluntarily terminates the assessment process after having been advised of the potential consequences:
(1) The sex offender shall be classified in risk level 3; and
(2) The parole or probation officer, if applicable, shall be notified.
Finally, the State introduced into evidence cassette tapes and the transcript of Claybaugh’s assessment interview.
In its order of January 3, 2005, the trial court stated that it had listened to the tapes and reviewed the entire record. The court’s order included the following:
The actual testing results indicate a Level 1, low risk assessment, which is consistent with the criminal history. Petitioner [Clay- baugh] did not voluntarily terminate the interview process, which lasted over one hour. Petitioner was cooperative throughout the examination and was compliant with the general instructions and requests for information. There is not substantial evidence that he was deceptive after having been warned of the possible consequences of being rated Level 3 by default.
Ruling that the default Level 3 classification was not supported by substantial evidence, was arbitrary and capricious, and was made upon unlawful procedure, the court modified the classification of Level 3 to Level 1.
The appeal arises from the trial court’s order. We now turn to the point on appeal that appellant SOSRA has presented to us.
Whether SOSRA’s Level 3 classification of Claybaugh is not supported by substantial evidence, is based upon unlawful procedure, and is arbitrary and capricious
The Arkansas Administrative Procedure Act provides that the agency decision may be reversed if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h) (Repl. 2002).
The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. Holloway v. Arkansas State Bd. of Architects, 352 Ark. 427, 101 S.W.3d 805 (2003). When reviewing administrative decisions, the court reviews the entire record to determine whether any substantial evidence supports the agency’s decision. Arkansas Bd. of Registration for Professional Geologists v. Ackley, 64 Ark. App. 325, 984 S.W.2d 67 (1998). In determining whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Arkansas State Bd. of Nursing v. Morrison, 88 Ark. App. 202, 197 S.W.3d 16 (2004). In doing so, we give the evidence its strongest probative force in favor of the administrative agency; the question is not whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. Id.
SOSRA argues that the evidence strongly supports the decision of the Committee, and that the trial court erred in ruling that the agency’s decision was not supported by substantial evidence. Claybaugh responds that the examiner does not say how Claybaugh refused to comply or cooperate with this assessment or testing procedure, nor how he was deceptive and uncooperative.
Correctional counselor Diane Gray conducted the first portion of Claybaugh’s assessment interview but was joined by Dr. George Simon after she requested his assistance. SOSRA, contending that substantial evidence supports its assessment that Clay-baugh was uncooperative in his interview, alleges that Claybaugh “qualified” some of his answers to “simple yes or no” questions. When asked if he had shoplifted as a teenager, Claybaugh responded by asking if that included a pack of cigarettes; he also told Ms. Gray he had not been caught for the incident. He answered “no” when asked if he had set a building on fire but answered “not intentionally” when asked about ground fires. He was asked if he had ever had sex with a prostitute, and he answered “not that I paid for.” He said that he had “seldom” experienced group sex. As shown in the dialogue later reproduced in this opinion, Claybaugh said that he “may have been high” when he committed the offense for which he was convicted and that he “did some methamphetamine” that night.
SOSRA argues that the answers in the previous paragraph show that Claybaugh was evasive and deceptive in his answers. SOSRA also lists Claybaugh’s answers to questions about drug use as further evidence of evasive answers. Those include Ms. Gray’s asking the last time he smoked “pot” and his answer, “I don’t know . . . it’s been years”; he did not answer when she asked how many years. Ms. Gray then asked, “Did you smoke? That would be just yes or no.” Claybaugh replied, “Once.” Ms. Gray asked how much he was smoking before his incarceration, and he said “Almost none.” She asked, “Occasionally?” He replied:
I was not going out and getting any or buying any or working for any. I just can’t honestly tell you I did not smoke any is what I am really telling you because I am sure I took a puff here or there somewhere, but basically it’s been years since. . . .
Ms. Gray interrupted this answer to ask Claybaugh if he used “meth.” He replied that he had not used it in years.
Because the transcript of the interview was central to the agency’s determination, we reproduce much of it here and we italicize portions that SOSRA relies on in its brief. -We begin when Ms. Gray asked Claybaugh to tell “his side,” and in his own words, “what happened with the sex offense and what was going on.” He responded that he had touched his fifteen-year-old daughter with a vibrator. The interview continued:
Q. What were you thinking about when you did that?
A. That’s really hard to say. I don’t really know.
Q. Ok. So you don’t know what you were wanting to happen.
A. I know what I was not wanting to happen but that’s neither here nor there.
Q. What did you not want to happen?
A. I wasn’t out to have sex with my daughter.
Q. So what were you out to do?
A. I really don’t know.
Q. What do you remember thinking about when that happened.
A. I really don’t know what to say. I really don’t.
Q. Ok. So, was this the first time that something like this ever happened?
A. Yes.
Q. Ok, so were you drunk or were you high, were you sober, what kind of state were you in?
Q. Do you remember if you were drinking?
A. I was not drinking.
Q. Ok. Were you high?
A. I may have been.
Q. Ok. You would have been high on what?
A. That’s a good question.
Q. What kind of drugs were you doing back in that time?
A. I wasn’t really doing drugs at that time.
Q. Ok. I am going to shoot straight with you Mr. Clay-baugh, you are starting to get on my nerves. When I ask you a question, you better give me an answer. Ok? I got other people I got to see. I just need for you to shoot straight.
A. Ok.
Q. Don’t beat around the bush, don’t go all the way over there to give me an answer, just spit it out, OK? Or I’m going to have to send you on your way.
A. Alright.
Q. Were you high on some kind of drugs when you touched your daughter with a vibrator?
A. Yes.
Q. What were you on?
A. It was supposed to have been methamphetamine, I don’t believe it was.
Q. Ok. What kind of drug do you recall doing before you touched her[?]
A. It was supposed to have been methamphetamine.
Q. So alright, she woke up and she asked you what you were doing and you told her that you were trying to wake her up. Do you recall all that happening?
A. Okay, yes I do.
Q. And she said that you left out of the room that she was in and she said that she saw you zipping up your shorts as you walked away.
A. That is not correct.
Q. You weren’t masturbating her?
A. No, I was not.
Q. Ok. Why do you think she would make a statement like that?
A. That may have been what she thought she saw, I don’t know.
Q. Ok. Any other things happen with your daughter. Did you ever touch her inappropriately before this time?
A. No.
Q. Did you ever have thoughts about her?
A. No.
Q. So, basically one day you just woke up and decided that you would take a vibrator and touch her between the legs.
A. I did not touch her between the legs.
Q. That’s her statement.
A. I am aware of that.
Q. I am going with her statement today.
A. Ok.
Q. Because that’s the official record and that’s what you pled no contest to and that’s what you go[t] convicted of. That’s what I have to go with.
Q. So how did you touch her? What do you say happened?
A. I touched her in about the area of her belly button.
Q. Ok. So she was sleeping.
A. I don’t think so.
Q. Then what were you doing?
A. I really don’t know what I was thinking... you know, I’m hoping getting some counseling.
Q. The counselor can’t tell you what you were doing. Only you know what you were doing at that time.
A. I’m not trying to ... .
Q. I know this is not pleasant and it’s not something that you really want to dweh on . . . but I am trying to understand exactly what you were thinking or going through your head at the time.
A. Well, it wasn’t anything _, I really don’t know, okay? I’m being honest with you. I’m not trying to put you off. I’m not trying to say anybody else is at fault for this but me. There have been two or three times that I thought I had done things_behind me. I believe I have to put it behind me. I have counseling. I’m not going to say that I don’t need it. I’m not going to tell you I don’t welcome it. If I need it, I welcome it. I’m not going to tell you I was a perfect father, but I was a damn good father.
Q. She made a statement that there has been several times that she felt like you were looking at her in a way that made her uncomfortable.
A. Are you aware that this is not the first time that she has made accusations of this type?
Q. Against you?
A. No.
Q. Against other people?
A. I am not pleading innocent here. I’m not.
Q. Ok. So, you don’t remember having any kind of sexual thoughts or_about her before this time when you touched her?
A. No, I did not.
Q. So, I want you to help me to understand this because I have to present your case before a team ofpeople who will decide what your risk level is going to be.
A. I understand that.
Q. And you are really not giving me anything to work with here. Ok?
Q. That’s where I’m coming from.
A. Here’s where I’m coming from .... I took care of. . . I don’t know how to explain this. I have done the best I could to put things behind us. I’m not a_detective, I’m not a psychiatrist, I don’t know whether she was abused very young or not I don’t know for sure.
The transcript shows that taping ceased after four more short questions and answers. When taping resumed six minutes later, at 2:16 p.m., Dr. Simon was present with Ms. Gray. He was the only interviewer from then until the interview ended at 2:28 p.m. The italicized portions of the interview are those that SOSRA points to as further evidence of “evasive answers”:
Dr. Simon: Is this the only sex offense that you have?
Claybaugh: Yes.
Dr. Simon: Do you have any other criminal history?
Claybaugh: I have been arrested on drugs once, you say twice, but I only remember once.
Dr. Simon: Were you convicted on the drug charges?
Claybaugh: Yes.
Dr. Simon: What was your conviction?
Claybaugh: If I remember correcdy it was possession of marijuana with intent and possession of methamphetamine.
Dr. Simon: This is your only sex offense?
Claybaugh: Yes.
Dr Simon: And what did you do exactly?
Claybaugh: I touched my daughter with a vibrator. It just happened. I am not trying to put you people off, I’m really not. I want to put this thing behind me and get some help. Ok? I don’t see her.
Dr. Simon: You could have gotten help any time. You can stop with the theatrics.
Claybaugh: I’m not...
Dr. Simon: You need to lower your voice. You need to stop with the theatrics.
Claybaugh: Okay.
Dr. Simon: And you can stop immediately.
Claybaugh: Okay.
Dr. Simon: And you can stop lying when you’re caught.
Claybaugh: I’m not lying.
Dr. Simon: You can stop lying when you’re caught. You know like I’m not gonna catch ya.
Claybaugh: Okay.
Dr. Simon: I just want to know the situation of the circumstances how you came to do this. Was she visiting you?
Claybaugh: No, I have had custody of her for years.
Dr Simon: As a single role father?
Claybaugh: On two different occasions, yes.
Dr. Simon: How did you happen to get custody?
Claybaugh: It’s a pretty long, drawn out battle.
Dr. Simon: Give me the simple ...
Claybaugh: Her mother physically abandoned her with her father.
Dr. Simon: Her natural mother and natural father abandoned her?
Claybaugh: I am her natural father.
Dr. Simon: And then what happens that one day you decided to do this ... what was going on?
Claybaugh: I am not trying to be_I really.
Dr. Simon: It is_stop.
Claybaugh: I’m not trying
Dr. Simon: Stop with the theatrics and I won’t warn you again.
Claybaugh: She was scheduled to go to her maternal [sic] for visitation. I had not allowed her to go the year before....
Claybaugh: It’s been a rule of mine all along, okay? That the adults discuss the business end of things and she had been trying to ... the time before had been the only time that I had not allowed her to go ... there had been a reason
Dr. Simon: Right, but you’re going someplace I hope because I just want to know the circumstances under which this happened.
Claybaugh: I guess I got too screwed up and just screwed up.
Dr. Simon: I don’t know what you mean.
Claybaugh: I did some methamphetamine, I got too screwed up I guess, and I just screwed up I guess.
Dr. Simon: Do you typically get hypersexual on methamphetamine?
Claybaugh: hypersexual? I don’t think so. (inaudible)
Dr. Simon: Is it one of the reasons you use it?
Claybaugh: Actually, I quit using it years ago.
Dr. Simon: Is that one of the reasons you used it?
Claybaugh: To be honest with you, I don’t know why I did.
Dr. Simon: Who would know?_
Claybaugh: _
Dr. Simon: The question being exactly the same, who would you know?
Claybaugh: Methamphetamine does feel good. I
Dr. Simon: Why did it take you so long to give such a straight forward, simple answer?
Claybaugh: I didn’t really think it did, I’m sorry.
Dr. Simon: We’ve already wasted 20 minutes more of my time than I had time to waste.
Claybaugh: (inaudible) I’m sorry.
Dr. Simon: Do you think taking methamphetamine had something to do with what you did?
Claybaugh: Ok, yes.
Dr. Simon: Were you doing anything else besides methamphetamine?
Claybaugh: No.
Dr. Simon: And you said you did something with a vibrator?
Claybaugh: I touched my daughter.
Dr. Simon: Touched her where?
(inaudible)
Dr. Simon: Was there anything else that_?
Claybaugh: I especially wanted _you a straight answer about what happened.
Dr. Simon: _that’s just part of his character. He knows his character and he knows it’s flawed. And he knows the reason it’s flawed is that he’s not straight with himself or other people. That’s why his life is the way it is and why he has troubles in it; he knows that. He doesn’t need us to tell him that. It’s just not in him to be straightforward_when the truth is just_. But I’m not seeing anything else myself. Are you seeing anything?
Gray: Just this right here.
Dr. Simon: And I wouldn’t expect that in this case. Based on what I’m sensing.
Gray: Alright, I just wanted to check with you before I let him go.
Dr. Simon: Anything else you want to tell us... anything you think is important?
Claybaugh: I don’t guess so.
Dr. Simon: You can wipe that serious look off your face. _can do that. You heard every word I said and you understand every word that I meant. You know exactly what it means so there’s no reason for you to look surprised. You know exactly what’s wrong with your character; you know how long it’s been flawed; you know exactly what you need to do to fix it; and you really ought to stop acting_; you really ought [to]; for your own sake.
Repeating its argument that Claybaugh’s answers were deceptive, SOSRA submits that he “continued” refusing to give straightforward answers despite being warned by Dr. Simon. SOSRA points to Ms. Gray’s written report of the interview: she stated that Claybaugh was evasive and acted as if he did not know why he committed the offense, and she noted Dr. Simon’s conclusion that Claybaugh’s character did not allow him to be truthful. SOSRA notes that the Committee, after listening to the tapes, found that Claybaugh was not credible. SOSRA complains that the trial court did not note what procedure was unlawful, and it concludes that the trial court substituted its judgment for that of the agency.
Default Level 3
SOSRA maintains on appeal that there was substantial evidence in the record to support the Committee’s finding of default Level 3 against Claybaugh and, further, that the Committee properly followed all guidelines and laws with respect to his assessment. SOSRA notes that where an agency’s decision is supported by substantial evidence, it automatically follows that the decision cannot be classified as arbitrary and capricious. See Olsten Health Servs. v. Arkansas Health Servs. Comm’n, 69 Ark. App. 313, 12 S.W.3d 656 (2000).
A sex offender who is shown by substantial evidence to have been deceptive, or who voluntarily terminates the assessment process after having been advised of the potential consequences, shall be classified by default as a Level 3 risk to the public safety. Ark. Code Ann. § 12-12-917(b)(4)(B)(ii)(a). The SOSRA guidelines at issue in this appeal allowed the Committee to override a low-risk actuarial assessment if an offender attempted to conceal or lie about behavioral histories, provided deliberately false or misleading information, or refused to submit to or seriously compromised the interview and assessment. Claybaugh had been informed that he would be assigned a high-risk classification should he withhold information, give false information, or seriously compromise the assessment team’s ability to do a fair and accurate assessment.
In rendering its decision, the Committee noted that an offender was not required to admit guilt but was required to be open and honest as to his state of mind, intent, and actions. The Committee found Claybaugh not to be credible in the taped interview. Citing its policy that an offender who was “not open and honest during the assessment” could not be adequately assessed, the Committee allowed the Level 3 risk assessment to stand.
Contending that substantial evidence supports the Committee’s decision, SOSRA argues that Claybaugh was uncooperative to the extent that the interviewer could not properly assess him. SOSRA characterizes particular answers by Claybaugh in the interview as qualified, evasive, and not being straightforward. These answers were in response to questions about a shoplifting incident while he was a teenager, sexual experiences, use of marijuana in past years, and use of methamphetamine at the time he committed the offense of second-degree violation of a minor. SOSRA concludes that a fair-minded person would conclude from these answers that appellant was deceptive in his responses.
Claybaugh characterizes the issue on appeal as not one of credibility, but whether he was deceptive during his assessment. He argues that his answers “appear to be consistent with the documents assembled for the interview which are part of this record.” Particularly, when Dr. Simon asked Claybaugh about the circumstances under which the offense occurred, Claybaugh admitted that he “did some methamphetamine” and “got too screwed up,” and he responded affirmatively when asked if taking methamphetamine had something to do with his committing the offense. We agree that Claybaugh’s answers appear to be consistent with documents assembled for the interview, and we hold that fair-minded persons considering his answers could not have concluded that he was deceptive.
Furthermore, Claybaugh argues that the Committee did not comply with the requirement of our Administrative Procedure Act that a final decision or order in an administrative adjudication shall include findings of fact and conclusions of law, separately stated. See Ark. Code Ann. § 25-15-210(b). (Repl. 2002). As Claybaugh notes in his brief, SOSRA has not cited any incident where his answers differed from documents assembled for the interview.
SOSRA responds in its reply brief that Claybaugh was deceptive in his answers. SOSRA argues that Claybaugh’s 2002 interview could not be assessed by the 2004 guideline allowing an interviewer to conclude, if an individual’s answers did not match up with the documents presented, that an individual was deceptive. However, SOSRA presented the 2004 guideline to the trial court to support its argument that 2002 regulations allowed an increased risk for an offender, and SOSRA has included the 2004 guidelines in the addendum to its appellate brief. Therefore, we will not consider its new argument that the guideline should not be considered.
We hold that the Committee disregarded the facts and circumstances of this case, as well as the applicable law and guidelines. We hold that fair-minded persons could not have reached the Committee’s conclusion and that, under applicable statutes and the guidelines developed by SOSRA, there is no substantial evidence to support the Committee’s decision to assign Claybaugh a default Level 3 on the basis of his answers during the assessment interview. Thus, we agree with the circuit court’s finding that Claybaugh’s default classification was not supported by substantial evidence, was arbitrary and capricious, and was made upon unlawful procedure. Consequently, we reverse the decision of the Committee, and we affirm the decision of the circuit court reducing the default Level 3 to Level 1.
Affirmed.
Baker and Roaf, JJ., agree.
The Sex Offender RegistrationAct, codified at Ark. Code Ann. §§ 12-12-901 et seq., was last amended by Act 1962 of 2005. We refer in this opinion to provisions of the statute as amended by Act 21 of 2003.
Under Ark. Code Ann. § 12-12-913(j)(1)(A) (Spec. Supp. 2003-2004), the following information is to be made public concerning a Level 3 or Level 4 registered sex offender:
(i) The sex offender’s complete name, as well as any aliases;
(ii) The sex offender’s date of birth;
(iii) The sexual offense or offenses to which the sex offender has pleaded guilty or nolo contendere or of which the sex offender has been found guilty by a court of competent jurisdiction;
(iv) The street name and block number, county, city, and zip code where the sex offender resides;
(v) The sex offender’s race and gender;
(vi) The date of the last address verification of the sex offender provided to the center;
(vii) The most recent photograph of the sex offender that has been submitted to the center; and
(viii) The sex offender’s parole or probation office.
So as not to interfere with the exchange between Claybaugh and his interviewers, we have left the punctuation, parentheses, and blanks largely intact and as it has been presented through the written transcript. | [
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JOHN B. ROBBINS, Judge.
Dayne Bell was employed by appel-lee Tri-Lakes Services when he died in a motor-vehicle accident on August 30, 1999. Dayne’s parents, appellants Bobby Bell and Vanessa Walker, filed a workers’ compensation claim seeking medical and funeral expenses. After a hearing, the Commission found that Dayne’s death was not compensable because they failed to prove by a preponderance of the evidence that Dayne was performing employment services at the time of the fatal accident. The appellants argue that this ruling was erroneous. We agree, and we reverse and remand for an award of benefits.
Where a claim is denied because the claimant has failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for the denial of relief. Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
Bobby Bell testified at the hearing. He stated that Dayne had worked as a laborer for Tri-Lakes Services for three weeks and a day prior to his death. Tri-Lakes Services has several job sites throughout the southern United States, and for the first three weeks of his employment Dayne worked in Bastrop, Louisiana. Dayne lived in DeQueen, Arkansas, and stayed in Louisiana during his assignment in that state.
August 30, 1999, was Dayne’s first day to work in Valliant, Oklahoma, which according to Mr. Bell is about an hour’s drive from DeQueen. On that evening, Mr. Bell received a telephone call from Dayne’s supervisor, Greg Winer, who told him that Dayne had been involved in an accident shortly before noon. Mr. Winer explained to Mr. Bell that he had sent Dayne to Tri-Lakes’ shop in Gillham, Arkansas, to retrieve some tools for a job in DeQueen. Dayne was driving his personal truck at the time of the accident, which occurred between Valliant and DeQueen. Mr. Bell testified that Gillham is near DeQueen and that, to get to Gillham, Dayne’s travel would have taken him through DeQueen.
John Helms, Jr., president of Tri-Lakes Services, testified that his employees do not travel on a daily basis, although travel is occasionally required. He further testified that employees are not compensated for travel expenses. On the morning of August 30, 1999, he directed Mr. Winer to report to the shop in Gillham and load equipment for a job in DeQueen that was to begin the next day. Mr. Winer then sent Dayne to Gillham to assist in the loading process, and Mr. Winer followed about thirty minutes later.
Prior to being sent to Gillham, Dayne had already worked several hours in Valliant. Mr. Helms testified that sometimes employees are directed to travel from one site to another on the same day, and that had Dayne refused to go to Gillham “he would have been out of fine.” Mr. Helms indicated that it could have taken as long as three or four hours for Dayne to complete his assignment of loading tools. If Dayne had completed the assignment, he would have been given the option to either finish the work day doing odd jobs around the shop, or go home. The task of loading tools was a necessary job, and since Dayne did not load the tools, Mr. Helms did it himself.
Mr. Helms stated that employees are expected to work at least ten hours per day. However, based on payroll records Dayne was paid for only four hours on the day of the accident. Mr. Helms testified, “Based on what I know, his workday had ended in Val-liant, Oklahoma.”
The appellants argue on appeal that the Commission erred in denying compensability based on its finding that Dayne was not performing employment services at the time of his death. Arkansas Code Annotated section 11-9-102 (5) (A) (i) (Repl. 1996) defines a compensable injury as, “An accidental injury causing internal or external physical harm . . . arising out of and in the course of employment and which requires medical services and results in disability or death.” Excluded from the definition of “compensable injury” are any injuries sustained at a time when employment services were not being performed. See Ark. Code Ann. § 11-9— 102(5)(B)(iii) (Repl. 1996). The test for determining whether an employee was acting within the “course of employment” at the time of the injury requires that the injury occur within the time and space boundaries of the employment, when the employee is carrying out the employer’s purpose or advancing the employer’s interests, directly or indirectly. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). The appellants submit that Dayne was acting within the course of his employment and carrying out his employer’s interests at the time of the accident, and that therefore the accident was compensable. The appellants’ argument has merit.
In Olsten Kimberly Quality Care v. Pettey, supra, the appellee was employed as a nursing assistant and was required to travel in her own vehicle to patients’ homes to provide nursing services. She was involved in an automobile accident while traveling to the home of the first scheduled patient for the work day, and the accident was found by the Commission to be compensable. Notwithstanding the fact that the appellee was not compensated for her travel time, the supreme court affirmed the Commission’s decision. In holding that the appellee was performing employment services, the supreme court relied on the fact that the travel was a necessary part of appellee’s employment and that the travel was clearly for the benefit of her employer.
In Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999), the appellee was a school teacher who arrived at work and began her duties of supervising children before school. Before the bell rang to begin school, she was given an assignment that involved reading instructions in fine print, so she left the building to retrieve reading glasses from her car. On the way back to the building, she slipped on ice and was injured, and the Commission found the injury to be compensable. We affirmed, holding that the appellee was performing employment services because she had already begun working and was taking efforts to complete an assignment when the injury occurred.
In the instant case, as in Olsten Kimberly Quality Care v. Pettey, supra, the claimant was required to travel for the benefit of his employer. Moreover, as in Crossett Sch. Dist. v. Fulton, supra, the claimant’s accident occurred after he began his employment duties that day but before the work day was scheduled to end.
This case is distinguishable from other automobile accident cases where compensation was denied. In Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000), the appellant had taken paperwork home with him over the weekend, and on the following day he died in a one-vehicle accident on his way to work. We affirmed the denial of compensability noting that he was not required by his employer to take work home and he had not yet reported to work at the time of the accident. In Coble v. Modern Business Sys., 62 Ark. App. 26, 966 S.W.2d 938 (1998), the appellant reported for work and during her lunch break drove to a nearby mall to purchase panty hose after discovering a run in her hose. She was involved in an accident while on this errand and sought benefits. We held that there was substantial evidence to support the Commission’s finding that the appellant was not engaged in employment services because there was evidence that she was not required, or even expected, to replace hosiery during the work day.
In the case at bar, Dayne was required to travel to Gillham for the purpose of loading tools, and would have been out of line had he refused. And, unlike the situation in Coble v. Modern Business Sys., supra, he was not on his way to begin work but rather had started working hours earlier.
The appellee argues that the accident was not compensable, in part, because Dayne was not being compensated during his travel time. While this is a factor to be considered in determining whether employment services are being performed, see Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001), the fact that the employee is not compensated during travel is not dispositive pursuant to our precedent in Olsten Kimberly Quality Care v. Pettey, supra. Moreover, it is not clear from the record that Dayne was not paid for his travel time. His supervisor testified that Dayne left Valhant at 10:30 a.m., but was paid until 11:00 a.m., and appellee’s president acknowledged that Dayne was paid through 11:00 a.m. and stated only that, “Based on what I know, his workday ended at Valhant, Oklahoma.” Nevertheless, our disposition of this case does not depend on whether or not Dayne was being paid for his travel in fight of the other circumstances.
The appellee also suggests that Dayne was not performing employment services because his job did not normally require travel, noting that the first time he was requested to travel during work was on the day of his death. In Arkansas Dep’t of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991), we held that employment is not limited to that which the person was hired to do; whatever the normal course of employment may be, the employer and its supervisory staff have it within their power to enlarge the course of the employment by assigning tasks outside the usual scope of the employment. Whether an employer requires an employee to do something has been dispositive of whether the activity constituted employment services. Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). It is thus irrelevant whether or not Dayne’s normal work duties involved travel; on the day of the accident that is what his employer required of him.
The accident occurred within the time and space boundaries of Dayne’s employment, and at a time when he was advancing the appellee’s interests. We hold that the Commission’s opinion does not display a substantial basis for the denial of relief and that the Commission erroneously found that Dayne was not performing employment services at the time of his death.
Reversed and remanded for an award of benefits.
Neal and Crabtree, JJ., agree. | [
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Terry Crabtree, Judge.
The appellant, Death and Permanent Total Disability Trust Fund, appeals from the Arkansas Workers’ Compensation Commission’s opinions directing it to withhold the claimant’s attorney fee and pay it by separate check to the claimant’s attorney. We find no error, and affirm.
On August 27, 1990, the appellee, Mr. James Brewer, sustained a work-related injury. Mr. Brewer’s healing period ended in May 1992. Mr. Brewer’s employer, Woodruff Electric Cooperatiave, also an appellee in this case, initially controverted the extent of permanent disability, but later stipulated to the extent of permanent disability at a pre-hearing conference. On August 19, 1996, an Administrative Law Judge (ALJ) ordered that “[t]he claimant’s portion of the controverted attorney’s fee is to be withheld from, and paid out of, indemnity benefits and remitted, by the respondents, directly to the claimant’s attorney.” WoodruffElectric and the other appellee in this case, Federated Rural Electric Insurance Company, paid appropriate indemnity benefits but did not pay the appropriate attorney’s fees as ordered. The Commission found that pursuant to Ark. Code Ann. § ll-9-502(b) (Repl. 1996), the employer/insurance carrier met its liability for indemnity benefits on October 2, 1998. Appellant advised Mr. Brewer, the employer, and the insurance company that it would assume liability for payment of benefits effective October 2, 1998. It was unclear whether appellant advised Mr. Brewer’s attorney of its date of the acceptance of the claim. On April 12, 1999, Mr. Brewer’s attorney filed a petition for attorney’s fees, seeking the back fees ordered to be withheld by the employer pursuant to the August 19, 1996 order. On September 7, 1999, the ALJ ordered appellant to withhold from all future indemnity benefits paid to claimant, and issue by separate check, the claimant’s portion of the attorney’s fees to claimant’s attorney. Appellant appealed this order, and the Commission on two occasions remanded the case to the ALJ on procedural issues.
On November 7, 2000, the ALJ issued an opinion and order, ordering the appellant to withhold claimant’s one-half attorney’s fees from all future indemnity benefits and issue the withheld monies by separate check to claimant’s attorney. The ALJ ordered this procedure pursuant to Arkansas Workers’ Compensation Commission Rule 10. Appellant appealed this ruling, and the Commission, by order dated April 4, 2001, affirmed the ALJ’s findings. On May 24, 2001, upon motions for reconsideration, the Commission filed an opinion directing appellant to pay a lump sum attorney’s fee to claimant’s attorney equal to five percent for controversion accrued from October 2, 1998, through the date of final order, ending the attorney-fee litigation in this case. The Commission also directed appellant to withhold from the benefits payable to the claimant an amount equal to six and one-half percent of the claimant’s weekly benefits (five percent to claimant’s attorney and one and one-half percent for the appellant to recoup its lump sum payment). Once the lump sum fee is recouped, the appellant is then to reduce benefits to a five percent withholding. The appellant has brought a timely appeal before this court.
When reviewing a Commission decision, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).
The issue in the present case, as correctly pointed out by the Commission, is how, and by whom, checks are to be paid to claimant’s attorney for the claimant’s one-half of the fee due to his attorney. Arkansas Code Annotated § ll-9-715(a)(2)(B)(i) (Supp. 2001) states:
In all other cases, whenever the commission finds that a claim has been controverted, in whole or in part, the commission shall direct that fees for legal services be paid to the attorney for the claimant as follows: One-half (V2) by the employer or carrier in addition to compensation awarded; and one-half (V2) by the injured employee or dependents of a deceased employee out of compensation payable to them.
The Commission relied on its Rule 10, along with the attorney lien statute found at Ark. Code Ann. § 16-22-304 (Repl. 1999), for its decision that it has the power to direct the manner in which the proceeds of an award are to be disbursed in order to protect the ability of the claimant’s attorney to receive his fee. When reviewing the Commission’s interpretation and application of its rules, we give the Commission’s interpretation great weight; however, if an administrative agency’s interpretation of its own rules is irreconcilably contrary to the plain meaning of the regulation itself, it may be rejected by the courts. Cyphers v. United Parcel Serv., 68 Ark. App. 62, 3 S.W.3d 698 (1999). While not conclusive, the interpretation of a statute by an administrative agency is highly persuasive. Clark v. Sbarro, 67 Ark. App. 372 (1999). An administrative agency’s interpretation of a statute or its own rules will not be overturned unless it is clearly wrong. Cyphers, supra.
Arkansas Code Annotated § 16-22-301 (Repl. 1999) provides that “it is the intent of §§ 16-22-302 to -304 to allow an attorney to obtain a lien for services based on his or her agreement with his or her client and to provide for compensation in case of a settlement or compromise without the consent of the attorney.” In this case, Mr. Brewer has never ended his contractual relationship with his attorney. There has not been any setdement or compromise of this case with or without the consent of Mr. Brewer’s attorney. As such, we find that the attorney Hen statute is inapplicable to this case, and the Commission erred in relying on the statute for its decision.
However, we cannot say that the Commission’s interpretation of its Rule 10 was clearly wrong. Therefore, we hold that Rule 10 gives the Commission the authority to direct appellant to withhold claimant’s one-half attorney’s fee and pay that amount by separate check to claimant’s attorney.
Arkansas Code Annotated § ll-9-205(a)(l)(A) (Repl. 1996) provides that for purposes of administering the provisions of this chapter, the Commission is authorized “to make such rules and regulations as may be found necessary.” Under this authority, the Commission promulgated Rule 10, which provides that: “in all cases where the petition for a fee is presented by attorneys or representatives of a claimant and a fee is granted the fee shall be paid by separate check.”
We agree with the Commission that the threshold issue in this case does not involve the issue as to who owes an attorney’s fee or by what formula a fee is calculated. Rather, this case involves the issue as to the administrative means of how checks are exchanged. We agree with the Commission that Rule 10 gives it authority to direct that separate checks be remitted directly to a claimant’s attorney.
Appellant argues that at the time Rule 10 was promulgated, a different version of Ark. Code Ann. § 11-9-715 was in effect. The requirement that a claimant pay one-half of his attorney’s fee was not enacted until 1987. Before 1987, the employer or insurance carrier was required to pay all of the fee. As such, appellant submits that the fee was paid by separate check by the employer or insurance carrier because it could not be taken out of the proceeds of a claimant who owed no fee at all. Appellant argues that therefore the Commission’s rebanee on Rule 10 was misplaced.
In addressing appellant’s argument, we conclude that the Commission could have changed Rule 10 when section 11-9-715 was amended, but it did not. Instead, the Commission chose not to alter Rule 10. We will not speculate as to why the Commission decided not to change Rule 10. It is immaterial when Rule 10 was initially promulgated. The fact remains that Rule 10 is still in effect, and that this Rule gives the Commission the power for its orders in this case.
Second, appellant asks this court to hold that it was not under any legal obligation to begin withholding appellee’s part of the attorney fee commencing with the ALJ’s September 7, 1999, award. The Commission addressed this issue in its May 24, 2001 order, stating that appellant is directed to “immediately begin withholding from the benefits payable to claimant an amount equal to 6'/2% of the claimant’s weekly benefits for future disbursement depending on the outcome of the Trust Fund’s appeal to the Court of Appeals.” (Emphasis in original). In fact, appellant states in its brief that it appears that the Commission “has conceded that the Trust Fund was not under a legal obligation to withhold monies pursuant to the September 7, 1999 Order of the law judge.” We agree.
We hold that the Commission did not err in requiring appehant to withhold appellant’s one-half attorney’s fee from his indemnity benefits, and issue by separate check the withheld monies to appellee’s attorney.
Affirmed.
Hart, Neal, Vaught, and Baker, JJ., agree.
Robbins, J., dissents.
We note that appellant brought another point on appeal arguing that the Commission erred when in its May 24, 2001 opinion it ordered that appellant should begin immediately to withhold the claimant’s one-half fee despite the fact that appellant appealed that order in its April 25, 2001 notice of appeal. However, we need not address this point, as appellant states in its brief that it “now abandons that part of its appeal.” | [
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JOSEPHINE LINKER Hart, Judge.
J&V Restaurant Supply & J Refrigeration, Inc. (J&V), appeals from a judgment awarding appellee Supreme Fixture Co., Inc., an Arkansas corporation, damages in the amount of $30,638. Appellant argues that the circuit court erred by finding that it was in default and had waived its defense of lack of personal jurisdiction; in rejecting its accord and satisfaction defense; and in denying its request for an enlargement of time within which to file a motion to dismiss. We affirm.
J&V, a Montana corporation that sells and installs kitchen equipment, has never had an office in Arkansas. Supreme Fixture, an Arkansas corporation, manufactures custom-built kitchen equipment in Little Rock. J&V, as subcontractor under the project’s general contractor, J.E. Dunn, solicited quotes from kitchen equipment suppliers preparatory to bidding on the construction of a prison in Montana. In November 1998, J&V forwarded by facsimile a request for a quotation to Supreme Fixture. Supreme Fixture, by facsimile and mail, returned its quotation. After J&V was awarded the subcontract, using Supreme Fixture’s bid, J&V sent by facsimile a purchase order totaling $31,808 to Supreme Fixture. The purchase order provided specifications for the specially designed equipment and required J&V to take delivery of the equipment in Little Rock. Between February and June, J&V made some modifications to the specifications, which necessitated Supreme Fixture’s modifying its drawings and prices. In July 1999, Supreme Fixture and J&V entered into an additional agreement detailed in a new purchase order providing that J&V would pay an extra $4,000 to Supreme Fixture for delivery of the equipment to the construction location in Montana and for on-site welding services.
Originally, J&V had provided Supreme Fixture with a projected completion date of August 20. However, in mid-July, J&V informed Supreme Fixture for the first time that, unless all of the equipment was installed by July 31, they would be fined $5,000 per day after that date. In order to meet the new deadline, Supreme Fixture entered into a separate agreement with J.E. Dunn, the general contractor, to install the equipment by July 31 for an additional expediting fee of $28,000. Supreme Fixture met the new deadline and received $28,000 from J.E. Dunn. Later, Supreme Fixture learned that J.E. Dunn had subtracted that sum from its payment to J&V. Supreme Fixture then billed J&V for $35,550. In making payment, J&V subtracted $478 in other adjustments and the $28,000 paid by J.E. Dunn. J&V sent Supreme Fixture checks for $7,022 and $1,890. According to Supreme Fixture, J&V still owed $30,638 on the purchase order; however, J&V refused to pay Supreme Fixture.
Supreme Fixture sued J&V for breach of contract, and J&V’s registered agent received the summons and complaint on May 22, 2000. On June 22, 2000, thirty-one days after service, J&V filed a motion for a one-day extension within which to file a motion to dismiss. J&V’s attorney stated that J&V had first contacted him about filing an answer on its behalf in the early afternoon of June 21, 2000, which was the answer’s due date. The attorney stated that, although he had believed that he could complete the motion to dismiss, the brief, and the accompanying affidavit in time, he was unable to do so. On June 22, J&V also filed a motion to dismiss Supreme Fixture’s complaint on the ground that J&V’s contacts with the state of Arkansas did not meet the constitutionally required minimum for the courts of Arkansas to assert personal jurisdiction.
At the hearing on J&V’s motions, J&V’s attorney stated that the clerk’s office was closed when he attempted to file the motion to dismiss on June 21, having missed the filing deadline by only a few minutes. Carl Hampel, a salesman and chief estimator for Supreme Fixture, testified that Supreme Fixture is a specifications supplier for the owner of the prison and that J&V had called Supreme Fixture and asked if it could help J&V become a supplier for the project. He said that Supreme Fixture helped J&V obtain the necessary approval which qualified it to bid on the job. Supreme Fixture asked and obtained from the project’s food-service consultant a set of plans for J&V He testified that, after J&V supplied Supreme Fixture with the specifications, he provided a quote to J&V Subsequently, J&V notified him that its bid had been accepted and sent Supreme Fixture a purchase order.
When Supreme Fixture received the order, it began preparing the customized shop drawings. Carl Hampel testified that the equipment was to be picked up by J&V and that Supreme Fixture was not obligated to deliver the equipment to Montana. However, during the manufacturing process, he had daily contacts by telephone and by facsimile with Steve Osmers, an employee of J&V, and during the building process, modifications required him to resubmit prices and drawings. He stated that, towards the end of the production process, J&V told him that it could not pick up the equipment or do the field welding in Montana but agreed to pay Supreme Fixture an additional amount for those services. The parties entered into an additional agreement, and J&V sent Supreme Fixture a separate purchase order reflecting those changes. According to Carl Hampel, ninety percent of the contract was performed in Arkansas.
The circuit judge found that J&V was properly served with the summons and complaint but failed to file a timely responsive pleading. He determined that J&V, by failing to file its motion to dismiss for lack of personal jurisdiction within thirty days after service, had waived its right to assert a lack of jurisdiction of the person. He also found that J&V had failed to demonstrate that it had, under Arkansas Rule of Civil Procedure 6(b)(2), cause for an enlargement of the response time.
At the hearing on damages, John Hampel, the president and chief executive officer of Supreme Fixture, testified that Supreme Fixture had received two checks from J&V, leaving a balance due of $30,638. Referring to Supreme Fixture’s accounts receivable statement, he said that the phrase “Less 28,000 Dunn” indicated that J&V must have put a notation to that effect on its check or in an accompanying letter. He said that the payment of $28,000 from J.E. Dunn, the general contractor, was for the separate contract with Supreme Fixture to meet the new deadline of July 31. He emphasized that it was not paid in connection with the fabrication or delivery of the equipment covered by the original purchase order.
Carl Hampel also testified that Supreme Fixture did not receive the final drawings from J&V until June 23 and that, before that date, it could not fulfill the contract. Explaining the time line, Carl Hampel said it normally would take between six and eight weeks to produce the order. Further, based on J&V’s failure to inform him until July 7 that the project had to be completely finished by the end of July, he told Mr. Osmers that Supreme Fixture could not meet the new and earlier deadline. After that, J.E. Dunn contacted him about entering into a separate contract to stop production on Supreme Fixture’s other projects and to focus entirely on this job. He also said that Supreme Fixture’s $28,000 fee from J.E. Dunn was an additional expediting fee and that the expediting fee was not intended as a credit towards the original purchase order with J&V.
At the conclusion of this hearing, the circuit judge found that there was a separate agreement between J.E. Dunn and Supreme Fixture whereby J.E. Dunn would pay an additional $28,000 expediting fee and that J&V owed Supreme Fixture $30,638. Following the court’s ruling, J&V’s attorney asked the circuit judge to take notice of a comment in the accounts receivable that made reference to “Less 28,000 Dunn.” Counsel then argued that the comment amounted to an accord and satisfaction. The circuit judge disagreed, finding that the annotation on the document did not amount to an accord and satisfaction of the debt. He entered a judgment finding J&V in default and granting judgment to Supreme Fixture in the amount of $30,638, plus interest at the rate of 9.5%, costs of $100, and an attorney’s fee of $3,063.
J&V’s Arguments on Appeal
J&V raises four points on appeal: (1) the constitutionally required minimum contacts did not exist between J&V and Arkansas; (2) J&V did not waive its objection to personal jurisdiction; (3) Supreme Fixture’s acceptance of J&V’s checks was an accord and satisfaction; and (4) the circuit judge abused his discretion in denying J&V’s motion to enlarge the response time.
Waiver of the Personal Jurisdiction Defense
Citing Glenn v. Student Loan Guaranty Foundation of Arkansas, 53 Ark. App. 132, 920 S.W.2d 500 (1996), J&V argues that defects in personal jurisdiction are not waived when a party fails to appear or to respond and that the trial court erroneously held that J&V had waived its objection to personal jurisdiction. We agree. A default judgment is void if the trial court lacked jurisdiction over the person. Id. Therefore, the defendant is not required to defend the suit or show a meritorious defense in order to attack the default judgment. Crockett v. Johnson, 259 Ark. 6, 530 S.W.2d 671 (1975). See also Pounders v. Chicken Country, Inc., 3 Ark. App. 220, 624 S.W.2d 445 (1981). Because a judgment entered by default without personal jurisdiction over a defendant who has not appeared is void, it necessarily follows that a default judgment entered without personal jurisdiction cannot be deemed valid if the defendant filed an untimely responsive pleading asserting that defense. Our disagreement, however, does not require reversal, as we conclude that the trial court had personal jurisdiction over the parties.
Personal Jurisdiction
A trial court’s determination that the court has personal jurisdiction over the parties is normally a question of fact. See Moran v. Bombardier Credit, Inc., 39 Ark. App. 122, 839 S.W.2d 538 (1992). Absent a ruling on an issue, this court is ordinarily precluded from reviewing that issue on appeal. See Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000). However, the facts necessary to determination in this case are essentially undisputed by the parties and therefore, in our view, present a question of law that we may address. See Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985); South Miller County Highway Dist. v. Dorsey, 174 Ark. 553, 297 S.W.2d 833 (1927).
J&V argues that its contacts with Arkansas cannot sustain personal jurisdiction in this state and points out the following undisputed facts: (1) all communications between Supreme Fixture and J&V were by telephone, facsimile, and mail; (2) J&V’s agents never traveled to Arkansas, although Supreme Fixture’s agents did travel to Montana and perform some installation work there; (3) J&V signed the purchase order in Montana; (4) J&V is a Montana corporation and has never had an office in Arkansas; and (5) although Supreme Fixture contends that it had an ongoing business relationship with J&V, none of its previous bids had been accepted by J&V in the past.
In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the United States Supreme Court stated that due process requires only that certain minimum contacts exist between the nonresident and the forum state such that the maintenance of the suit will not offend traditional notions of fair play and substantial justice. It is essential for a finding of personal jurisdiction that there be some act by which the defendant purposefully avails himself of the privilege of conducting business in the forum state. Hanson v. Denckla, 357 U.S. 235 (1958). Whether the “minimum contacts” requirement has been satisfied is a question of fact that is to be decided on a case-by-case basis. Chemical Methods Leasco, Inc. v. Ellison, 46 Ark. App. 288, 879 S.W.2d 467 (1994).
As appellant argues, it is true that the use of interstate mail and banking facilities, standing alone, is insufficient to satisfy due process in asserting long-arm jurisdiction over a nonresident. John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998); Glenn v. Student Loan Guar. Found., supra. However, it has been established that a single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state. See McGee v. International Life Ins. Co., 355 U.S. 220 (1957); Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808 S.W.2d 314 (1991). A promise to pay for services to be performed within a state is a relevant factor to consider in determining whether that state may assert personal jurisdiction over the party making the promise. See Williams Mach. & Fabrication, Inc. v. McKnight Plywood, Inc., 64 Ark. App. 287, 983 S.W.2d 453 (1998).
The parties disagree as to whether the $4,000 purchase order for delivery of the equipment to Montana and field welding was a modification of the original contract or a separate contract. However one characterizes that transaction, the conclusion is inescapable that the parties engaged in a continuing course of conduct that was more than sufficient to justify personal jurisdiction in Arkansas. Their original agreement contemplated that appellee would prepare shop drawings and manufacture custom-built equipment that was specifically designed to meet J&V’s requirements. This agreement also necessitated continuing communication between the parties for a substantial period of time from the first contact between the parties until delivery date of the equipment. As the United States Supreme Court stated in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985): “[I]t is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted.” The following quotation from Burger King Corp. v. Rudzewicz, supra, applies with equal force to the case before us: “It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.” Id. at 479.
The record clearly demonstrates that J&V purposefully availed itself of the privilege of conducting activities within this state, see Hanson v. Denckla, 357 U.S. at 253, and has caused Supreme Fixture to perform extensive services here. See Williams Mach. & Fabrication, Inc. v. McKnight Plywood, Inc., 64 Ark. App. at 290, 983 S.W.2d at 455. In the fall of 1998, J&V requested its assistance in obtaining approval to bid on the prison project in Montana, and Supreme Fixture did so. Supreme Fixture instructed the project’s food-service consultant to send a set of the specifications for the project to J&V J&V then supplied a set of the specifications to Supreme Fixture so that it could prepare a quote. After obtaining the bid, J&V accepted Supreme Fixture’s quote and sent a purchase order to Supreme Fixture requesting that it manufacture custom-made kitchen equipment that was to be delivered at Little Rock. Between November 1998 and July 1999, Supreme Fixture and J&V frequently communicated by facsimile and telephone. As a result of those communications, several modifications and additions were made to the plans and original purchase order. These modifications necessitated a resubmittal and approval of the changes in prices and shop drawings. At J&V’s request, Supreme Fixture delivered the material to Montana and performed field welding there. In our view, J&V’s contract with the appellee exceeded the minimum required to enable Arkansas to exact jurisdiction over appellant.
Accord and Satisfaction
On the merits, J&V also argues that Supreme Fixture’s acceptance of its checks constituted an accord and satisfaction of its claim against J&V J&V, however, did not raise this issue until the damages hearing, after the trial judge had ruled on the amount it owed. Accord and satisfaction is an affirmative defense, which must be proved by the party asserting it. Fort Smith Serv. Fin. Corp. v. Parrish, 302 Ark. 299, 789 S.W.2d 723 (1990). Arkansas Rule of Civil Procedure 8(c) requires that all affirmative defenses must be contained in the response to a complaint. Additionally, J&V was not entitled to raise an affirmative defense after it had been found in default and its liability had been established. See B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992); Gardner v. Robinson, 42 Ark. App. 90, 854 S.W.2d 356 (1993). Because J&V failed to raise and develop this defense in a timely manner, we affirm on this point.
The Motion to Enlarge
J&V also argues that the trial judge abused his discretion in denying its motion to enlarge the time within which to file its motion to dismiss. Arkansas Rules of Civil Procedure 6(b) and 55 give trial courts discretion in deciding whether to enter a default judgment. See Moore v. Taylor Sales, Inc., 59 Ark. App. 30, 953 S.W.2d 889 (1997). Under these rules, J&V had the burden of proving that its failure to file the motion in a timely manner was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause. Rule 6(b)(2) allows a trial court, in its discretion, to enlarge the time for answering, even after the initial period for answering has passed. Layman v. Bone, 333 Ark. 121, 967 S.W.2d 561 (1998). The rule, however, does not permit the filing of late answers in any circumstance; when a defendant’s actions can be characterized as “neglect” that was not “excusable,” rather than “mistake,” the appellate court will not say that the trial judge abused his discretion in declining to enlarge the time for the defendant to file his answer. Id.; Tyrone v. Dennis, 73 Ark. App. 209, 39 S.W.3d 800 (2001). A trial judge does not abuse his discretion in granting a default judgment where the delay was due to carelessness or a failure to attend to business. Moore v. Taylor Sales, Inc., supra.
J&V’s attorney stated that he was not contacted about preparing the response until early afternoon of the day that the answer was due; therefore, it appears that J&V was not attending to its business. Accordingly, we hold that the trial judge did not abuse his discretion in denying the motion.
Affirmed.
Jennings and Neal, JJ., agree. | [
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Karen R. Baker, Judge.
The appellant, Lisa Cassidy, is the mother of two children, a daughter, L.C., and a son, C.C., who were born on August 2, 1989, and June 9, 1997, respectively. She is appealing from an order terminating her parental rights, arguing that the decision is clearly erroneous because Arkansas Department of Human Services (“ADHS”) failed to offer appropriate reunification services and because it is contrary to the best interests of the children. Appellant also contends that the chancellor erred in denying her mother’s motion to intervene. We affirm.
On August 13, 1999, appellant was arrested for endangering the welfare of a minor based on an incident where C.C., then age two, was found naked and barefooted in a neighbor’s yard playing with the neighbor’s dogs, including a Rottweiler. The temperature outside that day was reportedly 105 degrees. Upon inspection of the home where appellant and the children lived with appellant’s mother, Anita Cassidy, social services observed, among other things, mildewed dishes, trash, mice feces throughout the kitchen and pantry, five mice, a mousetrap sitting on a piece of furniture three feet high, and scissors on the floor. It was also known that C.C. had been found the week before playing at a Wal-Mart construction site several blocks away from the home. The children were taken into emergency custody, and after a hearing they were declared dependent-neglected because of inadequate supervision and environmental neglect. The initial goal and case plan was that of reunification, and services were provided that included homemaking services, in-home parenting and parenting classes, and referrals for individual and family counseling. Appellant underwent a psychological evaluation in September 1999, and three additional psychological examinations in March, June, and August of 2000. At the June examination, it was learned for the first time that appellant suffers from paranoid schizophrenia.
In the meantime, the case was reviewed in January and April of 2000. Appellant was allowed overnight, weekend visitation until April, when only supervised visitation was allowed after L.C. alleged that appellant’s brother had molested her. At the permanency planning hearing held in June, the goal was changed from reunification to termination. After a hearing in October, the court granted ADHS’s petition to terminate appellant’s parental rights. The chancellor granted the petition pursuant to Ark. Code Ann. § 9-27-341 (b) (3) (B)(i) (a) (Supp. 1999), finding that the children had been adjudicated as dependent-neglected and had remained outside of the home for one year and that, despite a meaningful effort by the department to rehabilitate the home, appellant had failed to remedy the conditions that had caused the children to be removed.
Appellant’s first point is that the chancellor erred in finding that ADHS had provided adequate reunification services. Appellant contends that, although further psychological examination was recommended after her initial evaluation in September of 1999, she was not provided such an examination until March 2000. She argues that ADHS overlooked the need for treatment and aggressive intervention and that ADHS was at fault for the delay in her receiving treatment.
The burden on the party seeking to terminate the parental relationship is a heavy one under Arkansas law. Malone v. Arkansas Dep’t of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Arkansas Code Annotated section 9-27-341 (b) (3) (Supp. 1999) requires that an order terminating parental rights must be based on clear and convincing evidence. When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the inquiry on appeal is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Minton v. Arkansas Dep’t of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (2000). In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of the witnesses. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
The chancellor addressed this issue in some detail in her termination order. The chancellor noted that she had ordered appellant to undergo a psychological evaluation and three subsequent mental examinations and that the need for repeated examinations was attributable to appellant’s lack of candor and her failure to disclose her history of mental illness, which manifested when she was a teenager. The chancellor also intimated that appellant’s eventual disclosure about her mental illness only came after she had allowed ADHS access to her past medical records, which reportedly included a wealth of information about her long-standing illness. The chancellor noted the testimony of appellant’s therapist, Lisa Doan, who testified that it was not unusual for appellant, because of her mental illness, not to divulge information about her mental illness. However, the chancellor found that appellant’s credibility was lacking in many other areas as well. Specifically, the chancellor recalled that appellant had been untruthful when she had told the court that her brother had not been in the home during the weekend that L.C. alleged that her uncle had sexually abused her. The chancefior also noted that appellant’s mother, who served as her guardian, had also failed to inform anyone of appellant’s illness. There was also testimony that appellant undergoes a yearly mental exam to maintain and receive social security benefits. Further, we note that we are disadvantaged in our review because the testimony and evidence offered at the permanency-planning hearing, which was incorporated into the final hearing for the court’s consideration by agreement, has not been included in the record on appeal. From what we can gather from the termination order and brief references made in the testimony at the final hearing, the permanency planning hearing included the testimony of Ms. Doan, as well as testimony concerning appellant’s involvement with the Ohio Department of Human Services. It is the appellant’s burden to bring up a record demonstrating error. S.D. Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). From our review of the record presented, we cannot say that the chancellor’s finding is clearly erroneous.
Appellant also contends that the chancellor erred in finding that termination was in the children’s best interest. We disagree. The chancellor found that appellant was not fit to care for her children. The chancellor noted that appellant was dependent on her mother to care for her and to provide housing and that her mother had been included in the case plan out of Ohio, apparently without success. The chancellor further noted that, although appellant had completed all of the required classes and had maintained visitation, she had steadfastly refused to recognize that her behavior in not supervising the children was a problem of any concern. In this regard, the case worker testified as to her belief that appellant had been merely going through the motions of completing the requirements of the case plan and that her efforts were not sincere. The chancellor was also disturbed by appellant’s failure to acknowledge the possibility that her brother had molested L.C. and that her refusal to entertain the notion represented an unwillingness to work on an appropriate solution. In a nutshell, the chancellor found that appellant was unable and unwilling to provide protection, security, and care for her children, as she had repeatedly demonstrated over a period of years. On this point as well, our review is hampered by the lack of a complete record. We cannot say that the chancellor’s finding that termination was in the children’s best interest is clearly erroneous.
Appellant’s final argument is that the chancellor erred in denying her mother’s motion to intervene. We agree with ADHS that appellant lacks standing to complain about the denial of her mother’s motion. See Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986).
Affirmed.
Stroud, C.J., Robbins, Griffen, Neal, and Crabtree, JJ., agree.
Jennings, Bird, and Vaught, JJ., dissent. | [
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Larry D. Vaught, Judge.
This case involves the interJ — zpretation of a trust agreement. Appellant Dennis Thinn appeals the trial court’s decision that distributed various parts of the trust estate and removed him as co-trustee. He also challenges the court’s denial of certain expenses he allegedly incurred in his capacity as co-trustee. We agree that the court should have considered his expenses and we, therefore, remand that portion of the order. However, we affirm the trial court on all other issues.
The settlor of the trust was Esther L. King. Appellant and appellee were two of Mrs. King’s children, and, at the time of Mrs. King’s death, co-trustees of the trust. The primary issue in the case is the alleged conflict between two provisions of the trust agreement. Section 1.4 of the original trust defines the trust estate as specific pieces of real and personal property described in schedule A attached to the instrument, plus “any cash, securities or other personal or real property which the Trustee may, pursuant to any and all provisions hereof, at any time hereafter, hold or acquire . . . for the uses and purposes and upon the terms and conditions herein set forth.”
Section 3.1, as amended by the Third Amendment to the Trust, sets forth the procedures for the administration and distribution of the trust on the death of the settlor. This case arose after Mrs. King’s death. Subsections (a) through (f) set out the distribution of various tangible and intangible items of personal property. Subsection (g) sets forth the administration and distribution of the residence, and subsection (h) is a residuary clause for the distribution of any remaining assets of the trust. The conflict and alleged ambiguity occurs in subsection (g), which provides in part:
My residence shall continue to be held in Trust herein to be administered and distributed for the benefit of my son, Dennis A. Thinn. The Trustee shall distribute to my son, Dennis A. Thinn, from the trust estate so much of the principal and income of the trust as the Trustee in its sole discretion shall deem necessary for his health, maintenance, and support. All undistributed income shall be added to principal at least annually. . . .
In order to give meaning to all other subsections of 3.1, the trial court found that the “trust estate” in subsection 3.1 (g) referred only to the residence. This interpretation is consistent with the purpose of section 3.1, namely, to hold, administer, and distribute the trust estate at the settlor’s death.
The rule we follow with regard to construction of a trust is that the intent of the testator (settlor in a trust) governs, and that the intent is to be determined within the four corners of the instrument, considering the language used and giving meaning to all provisions, whenever possible. Aycock Pontiac, Inc. v. Aycock, 335 Ark. 456, 983 S.W.2d 915 (1998). Collateral evidence will be considered only when there is uncertainty about the testator’s intentions from looking at the language of the instrument. Id. The determination of whether there is an ambiguity is a matter of law. See Coble v. Sexton, 71 Ark. App. 122, 27 S.W.3d 759 (2000).
In this case, the trial court allowed the witnesses, including the attorney who drafted the trust, to testify to their understanding of the settlor’s intent. Absent a finding of ambiguity by the court, this testimony should not have been considered. Arkansas Presbytery of the Cumberland Presbyterian Church v. Hudson, 344 Ark. 332, 40 S.W.3d 301 (2001). However, the court, in its order, did not refer to the testimony and interpreted section 3.1 by referring to the trust instrument itself to discern Mrs. King’s intent. Even if the court considered the inadmissible testimony, in our de novo review we may affirm the trial court on any basis supported in the record. See Moon v. Moon Enter., 65 Ark. App. 246, 986 S.W.2d 134 (1999).
We agree with the trial court’s interpretation of section 3.1 (g). Mrs. King’s intent was to set forth the disposition of the residence on her death. Only that share of the trust estate was to be continued in trust for the benefit of appellant. All other shares were finally distributed by subsections (a) through (f) and (h). At appellant’s death the residence, or any principal or income derived therefrom, will be distributed by subsection 3.1 (h). This interpretation is the only one that gives meaning to all provisions of the trust. Subsection (c) and (d) of section 3.1, which precede subsections (g) and (h), direct distribution of tangible personal property not distributed by subsection (b). If Mrs. King had intended that this tangible personal property remain in the corpus of the trust, then the directives of subsection (c) and (d) are unnecessary as subsection (h) would distribute the property.
In accord with its determination that the “trust estate” implicated in section 3.1(g) applied only to Mrs. King’s residence, the trial court ordered appellant to produce all items of personal property listed in the trust agreement and its attachments that were still in his possession and to ship the items to the intended recipients. The court further ordered that all items of personal property that were not listed in the trust agreement and its attachments be divided between appellee and appellant, and if an amicable resolution could not be reached between the two litigants, the court ordered that the items were to be sold and the proceeds divided equally between the two. Appellant argues that the trust discouraged a “liquidation” of the personal property and that such personal property was to remain in the trust.
Our affirmative resolution of the first issue on appeal forecloses appellant’s other challenges concerning the propriety of the distribution of the remaining trust assets and therefore we affirm the trial court’s distribution determination. Additionally, the trial court’s order of a forced “liquidation” of the personal property in the event of disagreement is supported by the trust agreement. Section 4.1(1) provides that distributions may be made in money, in kind, or partly in money and partly in kind. However, the ancillary matter of appellant’s entitlement to reimbursement for certain expenses he allegedly incurred while he served as a co-trustee warrants further examination. Specifically, appellant argues that the court erred in refusing to order the trust to reimburse him for expenses he incurred for Mrs. King’s autopsy and funeral, personal and real property taxes, homeowner’s insurance, shipping of the trust properties, auto repairs, automobile insurance, medical and pharmaceutical expenses, clothing, attorney’s fees, and upkeep of the residence. The trust agreement specifically contemplates such expenses, requiring in Section 3.1 “payment or provision for payment of any claim [or] expenses. . .which the Trust determines should be paid from the trust. ...” Some of the expenses claimed by appellant are arguably trust debts; therefore, we remand for the consideration of expenses appellant incurred while serving as co-trustee.
The third issue is the removal of appellant as co-trustee. The court removed him because he refused to communicate with or cooperate with his co-trustee. The Restatement of the Law, Second, Trusts, Section 107 (a) (1959), lists these grounds as appropriate for removal. The removal of a trustee is in the sound discretion of the trial court; its decision will not be overturned unless there is an abuse of that discretion. Ashman v. Pickens, 12 Ark. App. 233, 674 S.W.2d 4 (1984). The factual findings of the court leading to this conclusion are supported in the record and there is no abuse of discretion.
Although this case cries out for the appointment of a corporate fiduciary to administer the trust, and the appellant argues for that consideration, there is no indication that the request was specifically ruled on by the trial court. Therefore, we do not reach the issue because it was not preserved by appellant. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991).
Affirmed in part; remanded in part.
Stroud, C.J., Crabtree and Roaf, JJ., agree.
Hart and Bird, JJ., dissent. | [
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Sam Bird, Judge.
In 1959, the parents of appellant Keith Dickson purchased two acres in Garland County; they resided there until their deaths in 1997 and 1998. His siblings then transferred their inherited interest in the land to him. James Young owns land to the west of the Dickson property. In 1997, Young built a road on land that he believed to be his by his deed.
Keith Dickson brought suit to quiet title, alleging that the land across which Young built the road was his (Dickson’s) by his deed description, or if not, that he had acquired it by adverse possession. The property possessed by Dickson was not in conformity with his deed description: an erroneous determination of a corner point resulted in Dickson occupying a parcel of land that was shifted to the west from what the actual deed description encompassed. The trial court granted Young’s motion to dismiss, finding that Dickson did not possess the requisite intent to possess this western land adversely. We reverse and remand.
Dickson appeals, contending that the trial court erred in dismissing his claim for adverse possession. Young contends, and the trial judge believed, that Dickson lost his claim because he admitted that he had no intent to take another’s land. The law of adverse possession, and specifically the intent required, has often been misinterpreted and misapplied. The question of intent becomes one of nuance in many cases, with hair-splitting terminology deciding the fate of the possessor’s claim. This holds especially true in cases of mistaken boundary. Our supreme court, in 1894, speaking to adverse possession, stated that:
There must be an intention to claim title. If one of two adjacent owners inclose or build upon his neighbor’s land “through mere inadvertence, or ignorance of the location of the real line, or for purposes of convenience, and with no intention to claim such extended area, but intending to claim adversely only to the real or true boundary line, wherever it might be, such possession would not be adverse or hostile to the true owner.” But it would be if he inclosed, or built upon and held, the land under the belief and claim that it was his own, even though the claim of tide was the result of a mistake as to the boundaries of his own land. In such a case, there is a clear intention to claim the land occupied or inclosed, and the possession does not originate in an admitted possibility of mistake.
Wilson v. Hunter, 59 Ark. 626, 628, 28 S.W. 419, 419 (1894) (citation omitted).
When a landowner, through mistake as to his boundary line, takes possession of land of an adjacent owner, intending to claim only to the true boundary, such possession is not adverse, and, though continued for the statutory period, does not divest title; but when he takes possession of the land under the belief that he owns it, incloses it, and holds it continuously for the statutory period under claim of ownership, without recognition of the possible right of another on account of mistake, such possession is adverse. Davis v. Wright, 220 Ark. 743, 249 S.W.2d 979 (1952); Butler v. Hines, 101 Ark. 409, 142 S.W. 509 (1912). If the intention is to hold adversely, the statute runs, regardless of any mistake as to boundary or title. Bayles v. Daugherty, 77 Ark. 201, 91 S.W. 304 (1905).
The supreme court later noted, however, that “an honest claimant upon being asked about his intent, unless previously warned, might not think to qualify his answer so as to claim what he considered his own, but would state that he claimed only his own, and on such a chance statement his claim would disappear.” Rye v. Baumann, 231 Ark. 278, 281, 329 S.W.2d 161, 164 (1959). The court concluded that “in arriving at the intent of the disseisor we think it is better to weigh the reasonable import of his conduct in the years preceding the litigation rather than rely on one remark made during the stress of cross-examination (which is elsewhere refuted).” Id. This rationale is in accord with the “oft-repeated statement that adverse possession is a possession commenced in wrong but maintained in right,” as such statement “does not mean that the possessor must commence his possession with an intentional wrong, for the doctrine of adverse possession is intended to protect one who honestly enters into possession of land in the belief that the land is his own.” Barclay v. Tussey, 259 Ark. 238, 241, 532 S.W.2d 193, 195 (1976).
In Reeves v. Metropolitan Trust Co., 254 Ark. 1002, 498 S.W.2d 2 (1973), the supreme court clearly held that an admission of no intent to take another’s land was not fatal to an adverse possessor’s claim in a mistaken boundary context. Reeves claimed two parcels of land, one that he knew that he did not own and one that he believed was his own. Reeves made the unfortunate admission that has often and erroneously been held fatal: that he did not intend to claim any land that he did not own. The supreme court held that, because of this statement, Reeves did not possess the requisite intent as to the parcel of land that he knew he did not own. However, the court held that he adversely possessed the other parcel, despite his admission. The difference between these parcels was Reeves’s knowledge — if a claimant knows that the land is not his and claims no intention to take land that is not his, there of course can be no intent to possess adversely. However, if a claimant does not know that the land is not his, as in mistaken boundary line cases, an intent not to take another’s land is irrelevant and disregarded by the supreme court because of the nature of mistaken boundary line cases.
This court in Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990), followed this rationale and, relying on Rye, supra, as authority, found adverse possession established where appellants had admitted no intention of taking property that did not belong to them but “honesdy believed that their property existed up to the fence and . . . claimed ownership of it.” When the evidence tends to show that the possession has all the qualities of an adverse holding, it may be presumed that the possession is adverse, absent evidence to the contrary. Id. This court, in accord with the supreme court’s instruction, did not view Hicks’s admission of lack of intent as evidence to the contrary. Instead, this court accepted the objective conduct of the possessors as sufficient from which to derive the requisite intent. This conduct included maintaining the property up to the fence line that was the mistaken boundary, maintaining a garden on the property, and mowing the property. This objective conduct manifested the subjective belief, to which was testified, that Hicks owned all the property up to the mistaken property line.
A claimant must intend to claim the land that he is possessing, regardless of whether someone else claims title. Without knowledge that the claimed land is not his, the adverse claimant’s admission that he did not intend to take another’s land does not destroy his claim. Rather, it is the claimant’s objective conduct from which his subjective intent to claim the land that he is possessing is derived that is determinative.
In the case at bar, Dickson maintained the property as his own, subjectively believing that he owned all of the property up to the mistaken boundary. He maintained four garden areas on the property, mowed, and built a wood shed on the claimed property. This objective conduct is sufficient to derive intent to possess adversely. Though perhaps Young may present evidence to the contrary, Dickson has presented evidence sufficient to withstand a motion to dismiss and this case must be remanded for a new trial.
Reversed and remanded.
Jennings, Neal, Vaught, Crabtree, and Baker, JJ., agree.
The decree quieted title in both James Young, the appellee herein, and Barry Young, the intervenor below. However, Dickson’s notice of appeal relates only to the quieting of title in favor of James Young. | [
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Olly Neal, Judge.
Appellant, Darwin McKibben, appeals from an order of dismissal without prejudice granted by the Washington County Circuit Court to appellee, Dr. R. Jay Mullis. Because appellant’s original complaint was a nullity, we must affirm.
Appellant is the widower of Susan McKibben, who died on September 21, 1998. Appellee was one of Susan McKibben’s treating physicians whose care appellant alleges led to her death. On August 28, 2000, appellant filed a wrongful-death action against appellee and John Does No. 1-10, alleging inter alia that appellee breached the standard of care and was negligent in his care and treatment of the deceased. In the complaint, appellant claimed that he was the executor of his wife’s estate, and the caption was so styled. However, appellant was not appointed executor of his wife’s estate by the probate court until February 13, 2001.
On February 14, 2001, appellee filed a motion to dismiss appellant’s complaint on the grounds that the complaint was barred by the statute of limitations and that appellant lacked standing to bring the action as he was not, at the time the complaint was filed, the executor of the deceased’s estate. The trial court dismissed appellant’s complaint without prejudice, finding that appellant lacked standing to bring the action because he was not the personal representative of the estate at the time the suit was filed. This appeal followed.
On appeal, appellant argues that the trial court erred in granting appellee’s motion to dismiss. In rebuttal, appellee argues that the order of dismissal entered by the trial court is not a final and appealable order. Alternatively, appellee argues that the trial court correctly dismissed, the plaintiff s complaint on the ground that appellant lacked standing to pursue a wrongful death action. We first address appellee’s argument that the trial court’s order of dismissal is not a final and appealable order.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure — Civil provides that an appeal may be taken only from a final judgment or decree entered by the trial court. DeVeer v. George’s Flower, Inc., 76 Ark. App. 408, 65 S.W.3d 488 (2002). Dismissal of an appeal is appropriate when all defendants, including John Doe defendants, are not granted summary judgment, leaving claims against certain defendants still pending. Id.
In D’Arbonne Construction Co. v. Foster, 348 Ark. 375, 72 S.W.3d 862 (2002), the supreme court considered the finality of an order where a verdict allocated one hundred percent liability to two named defendants and dismissed the other named defendant, but no specific order had been entered by the trial court disposing of any claims that might have been asserted against two John Doe defendants. The court wrote:
To be appealable, an order must be final. Ark. R. App. P. — Civ. 2. The finality of a trial court’s judgment is governed by Ark. R. Civ. P. 54(b) and states in pertinent part:
(1) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the event the court so finds, it shall execute the following certificate . . . [certificate omitted].
(2) Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Id. (Emphasis added.)
The purpose of Rule 54(b) is to prevent piecemeal litigation, and we have refused to engage in a review of an appellant’s claim against some defendants when claims against remaining defendants could possibly be asserted in the future. Shackelford v. Arkansas Power and Light, 334 Ark. 634, 976 S.W.2d 950 (1998); See also, Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994). However,1 this case does not present an order that disposes of less than all of the claims against all of the parties, and therefore there are no remaining issues to be litigated and there is no possibility of piecemeal litigation.
348 Ark. at 377-78, 72 S.W.3d at 863.
Applying Rule 54(b) of the Arkansas Rules of Civil Procedure and the guidance of the D’Arbonne court, it is clear in the present case that the dismissal of appellant’s claim for lack of standing concludes all claims against all parties because the original complaint was a nullity. There can be no John Does or other defendants to a nonexistent suit. Therefore, the order of dismissal entered by the trial court was final.
The wrongful-death statute under which appellant sought relief requires that wrongful-death actions be brought by and in the name of the personal representative of the deceased person; if there is no personal representative, the action shall be brought by the heirs at law of the deceased person. Ark. Code Ann. § 16-62-102(b) (Supp. 1997). In St. Paul Mercury Insurance Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002), our supreme court granted a writ of prohibition to St. Paul Mercury Insurance Company, preventing the Craighead County Circuit Court from hearing a survival action. In St. Paul Mercury, our supreme court stated:
A survival action is a statutory action, which may be brought after the person’s death by his or her executor or administrator. Because the survival action, just as a wrongful-death action, is a creation of statute, it only exists in the manner and form prescribed by the statute. It is in derogation of the common law and must be strictly construed, and nothing may be taken as intended that it is not clearly expressed.
348 Ark. at 204, 73 S.W.3d at 588. As previously mentioned, appellant had not been appointed executor by the probate court at the time he originally filed the complaint as executor, and there were other heirs at law. Therefore, because appellant failed to meet the statutory requirements of section 16-62-102, he lacked standing to pursue the wrongful-death action, and the original complaint was a nullity.
Appellant asserts that when the probate court appointed him executor of his wife’s estate on February 13, 2001, it related back to the original complaint. In Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), where non-lawyer estate administrators filed a wrongful-death complaint, our supreme court stated, “[Bjecause the original complaint, as a nullity never existed, . . ., an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected.” 348 Ark. at 164, 72 S.W.3d at 94. The Davenport court affirmed the dismissal of the case and the trial court’s finding that subsequent pleadings filed by attorneys could not relate back to the original complaint. Likewise, in the present case, the appointment of appellant as executor did not relate back to the filing of the original complaint because the complaint was a nullity.
Affirmed.
Jennings, Bird, Vaught, and Crabtree, JJ., agree.
Baker, J., dissents. | [
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John Mauzy Pittman, Judge.
The appellants, Sharon and Robert Gilmore, were arrested in the Wal-Mart park ing lot after buying various items including three packages of antihistamines, four cans of starter fluid, some butane, and an air freshener. A search of their car revealed four more packages of antihistamines and some butane tanks. After a jury trial, they were convicted of possession of drug paraphernalia with intent to manufacture methamphetamine, and sentenced to respective terms of five years and fifteen years in the Arkansas Department of Correction. From those convictions, comes this appeal.
Appellants raise several points for reversal, including an argument that their convictions are not supported by substantial evidence. We agree with this argument and, because it is dispositive, we limit our discussion to the sufficiency of the evidence.
Appellants were convicted of violating Ark. Code Ann. § 5-64-403(c)(5) (Supp. 2001), which provides that:
[Expires April 30, 2002.] It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine in violation of this chapter. Any person who pleads guilty, nolo contendere, or is found guilty of violating the provisions of this subsection shall be guilty of a Class B felony and shall be fined an amount not exceeding fifteen thousand dollars ($15,000).
In determining whether there is sufficient evidence to support a jury verdict, we view the evidence in the light most favorable to the appellee and affirm the verdict if there is substantial evidence to support it. Substantial evidence is evidence of sufficient force to compel a conclusion one way or another. It must be more than mere speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991).
As the State notes in its well-done and thorough brief, the evidence against the appellants can be fairly summarized as follows: Officer Stacy Bohannan testified that she was at the Wal-Mart store in Springdale, Arkansas, when the store’s loss-prevention officer notified her that the appellants were shopping in the store and selecting items that could be used in the manufacture of methamphetamine. Officer Bohannan watched appellants and observed that they appeared to be nervous. When appellants went to the checkout aisle, Officer Bohannan left the store and described appellants to another police officer waiting outside.
When appellants left the store with their purchases, Officer Bohannan and the other officer approached appellants, told them that they had purchased items commonly used in the manufacture of methamphetamine, and asked to search their vehicle. Appellants allowed the search. Including the purchases appellants had just made at the Wal-Mart store, the officers found seven boxes of Equate antihistamine tablets, four cans of starting fluid, a can of butane, air freshener, and two propane bottles.
At trial, Drug Task Force Supervisor Mike Reynolds testified as an expert in the field of methamphetamine lab investigation. He stated that pseudoephedrine obtained from products such as Equate antihistamine tablets is the main precursor used in two methods of manufacturing methamphetamine. He stated that, when people have as much antihistamine as appellants did, it “gives rise to suspicions that they are going to use them for illicit purposes in the production or manufacturing of methamphetamine.”
Supervisor Reynolds also testified that starter fluid has frequently been used in the manufacture of methamphetamine. He opined that the four cans of starter fluid possessed by appellants was an above-average amount for one person to use on one vehicle, and stated that “given the number of antihistamine tabs along with the starting fluid, it gives rise that [sic] maybe or probably this individual is going to cook or manufacture or help or assist someone else in the manufacture of methamphetamine.”
With regard to the empty propane tanks, Supervisor Reynolds testified that they could be used in the manufacture of methamphetamine either to contain propane as a heat source, necessary in one method of manufacturing methamphetamine, or to contain anhydrous ammonia, which is used as a catalyst in another method of manufacturing methamphetamine. He also stated that he could tell that the propane tanks possessed by appellants had never been used to store anhydrous ammonia. He stated that the propane tanks, accompanied by the other items, would “give rise to a suspicion” that “would make one think that someone is going to manufacture or help or assist someone in the manufacture of methamphetamine. ’ ’
Supervisor Reynolds further testified that one of the three ways of ingesting methamphetamine is to smoke it, and that the butane seized from appellants could have been used to fight methamphetamine if one were to ingest it by smoking it. He also stated that there were three main methods of manufacturing methamphetamine; that he could not say based on the items seized from appellants which of those methods they might have employed to manufacture methamphetamine; that many essential items necessary for the manufacture of methamphetamine were not present; and that it would be impossible to manufacture methamphetamine solely with the items in appellants’ possession. Finally, he stated that “all the evidence in front of me altogether gives rise to a suspicion that they are cooking methamphetamine. I suspect them of cooking methamphetamine based upon what I see before me today.”
Pursuant to Ark. Code Ann § 5-64-101 (v) (Repl. 1997), in determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object concerning its use;
(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;
(3) The proximity of the object, in time and space, to a direct violation of subchapters 1-6 of this chapter;
(4) The proximity of the object to controlled substances;
(5) The existence of any residue of controlled substances on the object;
(6) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of subchapters 1-6 of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of subchapters 1-6 of this chapter shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia;
(7) Instructions, oral or written, provided with the object concerning its use;
(8) Descriptive materials accompanying the object which explain or depict its use;
(9) National and local advertising concerning its use;
(10) The manner in which the object is displayed for sale;
(11) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(12) Direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise;
(13) The existence and scope of legitimate uses for the object in the community; and
(14) Expert testimony concerning its use.
In the present case, all of the items seized have legitimate uses, and the vast majority of the other factors are lacking. All of the items seized were legally obtained and have legitimate uses; no statements by appellants concerning a prohibited use were permitted into evidence; no instructions for making methamphetamine with these items were found; no controlled substances were found in connection with the items; and no residue of controlled substances was found in connection with the items. The case against appellants was based almost entirely on the expert testimony of Supervisor Reynolds, which can be fairly summarized as stating that mere possession of these legitimate items in the quantities and combination found gives rise to a suspicion that someone may use them to manufacture methamphetamine. However, as our supreme court noted in Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978):
No one should be deprived of his liberty or property on mere suspicion or conjecture. Where inferences are relied upon, they should point to guilt so clearly that any other conclusion would be inconsistent. This is so regardless of how suspicious the circumstances are.
264 Ark. at 347, 571 S.W.2d at 435. See also Knight v. State, 51 Ark. App. 60, 908 S.W.2d 664 (1995).
We do not fault the police officers in this case. Quite clearly, they had reasonable suspicion to justify detaining appel lants. Nevertheless, suspicion alone will not support their convictions, and we must therefore reverse.
Reversed and dismissed.
Robbins and Bird, JJ., agree. | [
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Olly NEAL, Judge.
This appeal comes from a Public Service Commission (PSC) order approving the sale of assets by one telecommunications utility to another. In 1999, GTE Southwest, Inc., GTE Arkansas, Inc., and GTE Midwest, Inc. (hereafter “GTE”), sold 213,000 lines and accompanying plants and equipment to CenturyTel of Northwest Arkansas, LLC and Cen-turyTel of Central Arkansas, LLC (hereafter “CenturyTel”). The sale was opposed by appellants Alltel Arkansas, Inc., Alltel Communications, Inc. (collectively “Alltel”), and Southwestern Bell Telephone Company because, in connection with the sale, CenturyTel proposed to raise the rates it charged those companies for intrastate switched-access service. Appellants argue on appeal that the order approving the sale should be overturned. We vacate the orders appealed from and remand the case to the Commission.
On June 29, 1999, CenturyTel entered into an agreement to purchase GTE’s assets for $843.3 million. The companies petitioned the PSC for approval of the sale, pursuant to Arkansas Code Annotated section 23-3-102 (1987), which requires that utility asset transfers be consistent with the public interest. The petition stated that the sale was consistent with the public interest because Cen-turyTel focused on rural and small-town markets, which were the types of lines purchased from GTE, and because CenturyTel intended to open greeter stations and retail stores in local service areas, broaden the availability of customer services, and offer employment to GTE workers. The application further stated that CenturyTel would maintain the current GTE rates for local and toll service. However, with regard to switched-access rates, the petition stated: “CenturyTel intends to comply with the Commission’s Order in Docket No. 83-042-U, Order No. 56.”
The underlying import of that phrase was that CenturyTel planned to calculate and file its switched-access rates based on Order 56 and a connected order, known as the parity order, entered in Docket No. 83-042-U. The parity order (Order No. 37) provided that intrastate access rates must be the same as, i.e., in parity with, interstate access rates. The order was entered in 1986 as the result of a signed agreement executed by several telecommunications companies in existence at the time. However, the order no longer applies to most companies who, having chosen alternative regulation under the Act 77 of 1997, are not subject to it. However, GTE did not choose alternative regulation but remained rate-of-return regulated, and was thus subject to the parity order. Cen-turyTel, as GTE’s successor-in-interest, also claims to be subject to the parity order. The significance is that CenturyTel’s use of the parity order will result in a substantial increase in intrastate switched-access rates. This may be explained as follows. At the time of the sale, GTE’s interstate switched-access rates were regulated by the FCC on a price cap, rather than a rate-of-return basis. Century Tel asked the FCC for permission to convert from price-cap to rate-of-return regulation. Rate-of-return regulation is accomplished in the federal jurisdiction with the assistance of the NECA, a non-profit corporation. The NECA divides companies that charge switched-access rates into groups, based on the similarity of their costs of doing business. Each similar group is assigned to a band, which establishes an access rate that is to be charged by all companies in the band. CenturyTel asked the NECA to assign it to a band if the FCC granted the price-cap waiver. This was eventually accomplished.
Because of the manner in which certain types of costs were allocated in the federal jurisdiction, Century Tel’s conversion from price-cap to rate-of-return regulation meant that its interstate switched-access rates would almost double the rates that GTE had charged. Consequently, use of the parity order meant that intrastate rates would also increase correspondingly.
Appellants Alltel and Southwestern Bell suspected that the mention of Docket 83-042-U in the application meant that Cen-turyTel would attempt to use the parity order to raise rates. They intervened and argued that, because of the potential switched-access rate increase, the sale was inconsistent with the public interest. They further contended that the parity order should either be rescinded or declared inapplicable and that the PSC had an obligation to set rates not by mere reliance on the parity order but by determining if the rates proposed by CenturyTel were just and reasonable. Later in the case, the Consumer Utilities Rate Advocacy Division of the Attorney General’s office intervened to assert that proper notice of a potential rate increase had not been given as required by law.
Following a hearing, the PSC entered Order No. 15 approving the sale and refusing to rescind the parity order. The order did not expressly approve a rate increase because, at the time it was entered, NECA had not assigned a band to CenturyTel, nor had the FCC approved a price-cap waiver; thus, CenturyTel had not yet filed the actual rates it proposed to charge. Alltel, Southwestern Bell, and the Attorney General’s office appeal from that order and Order No. 16 denying their petitions for rehearing.
Our review of appeals from the PSC is limited by Arkansas Code Annotated section 23-2-423(4) (Supp. 2001), which provides that judicial review shall not be extended further than to determine whether the Commission’s findings are supported by substantial evidence and whether the Commission has regularly pursued its authority, including a determination of whether the order under review violated any rights of the appellants under the laws or constitutions of the United States or the State of Arkansas. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 69 Ark. App. 323, 13 S.W.3d 197 (2000). The PSC has broad discretion in exercising its regulatory authority, and we may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 58 Ark. App. 145, 946 S.W.2d 730 (1997). We have often said that, if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then we must affirm the Commission’s action. Id. The Commission’s action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis, and something more than mere error is necessary to meet the test. Bryant v. Arkansas Pub. Serv. Comm’n, 55 Ark. App. 125, 931 S.W.2d 795 (1996).
We have been asked by appellants to address several arguments involving the application of the parity order in this case. Among those arguments are that the parity order should be rescinded because the reasons that led to its entry no longer exist in the current regulatory environment and that the order does not apply to CenturyTel because Century Tel was not a party to it. A crucial inquiry on the latter point is whether the order was intended to be applicable only to those who were parties to Docket 83-042-U or whether it was intended to be applied as a general rule, to be used by future telecommunications companies as well. Unfortunately, the record is not developed enough for us to answer these questions. The parity order is not abstracted nor is it a part of the record. Further, the testimonial evidence tells us little more than the basic rationale behind the order. Consequently, we do not know all the considerations that led to the parity order, nor the identity of all parties to it, nor whether it was intended to be applied on a limited or an industry-wide basis. If we are to address the continued viability of this order, we must have it before us and evidence of how it was intended to operate.
Appellants also argue that the Commission abdicated its responsibility to ensure that rates charged by utilities (other than alternatively-regulated utilities) are just and reasonable. Arkansas Code Annotated section 23-4-103 (1987) provides that all rates received by any public utility “shall be just and reasonable, and to the extent that the rates . . . may be unjust or unreasonable, [they] are prohibited and declared unlawful.” The Arkansas Public Service Commission is vested with the sole and exclusive jurisdiction and authority to determine the rates to be charged by utilities. Ark. Code Ann. § 23-4-201(a) (1987). Further, the Commission has the responsibility, when faced with unreasonable rates, to fix reasonable ones. Ark. Code Ann. § 23-4-101(b) (1987). The Commission has some flexibility in establishing rates. For example, Arkansas Code Annotated section 23-4-108 (1987) permits the Commission to fix a sliding scale of rates, but it too must be just and reasonable. Also, the Commission may, in the telecommunications field, deviate from ordinary rate-of-return regulation, but only upon a showing that such deviation is in the public interest. See Ark. Code Ann. § 23-2-304(b) (Supp. 2001).
The question we are ultimately faced with on this point is whether the application of the parity order results in just and reasonable intrastate switched-access rates. The record is not developed sufficiently for us to decide this issue. The appellees claim that parity produces just and reasonable intrastate rates because those rates correspond with the interstate rates established by the FCC. However, we do not have enough information regarding the manner in which the FCC establishes interstate rates. We know that the FCC groups companies with like costs into bands, but we have no data before us on what costs are considered by the FCC, nor do we know how CenturyTel’s actual, company-specific costs compare with the average cost assigned to the hand rate. Without that information, we cannot say whether the Commission has exercised its responsibility to see that just and reasonable rates are charged in the State of Arkansas.
We vacate orders No. 15 and 16 and remand to the Commission.
Hart, J., agrees.
Robbins and Griffen, JJ., concur.
Vaught and Baker, JJ., dissent.
This is a per-minute rate charged by local exchange carriers such as GTE and CenturyTel to long distance carriers and other phone companies for using that local exchange carrier’s switches and wires to originate and terminate their customers’ calls. Intrastate rates are charged by the local exchange carrier based on the use of its equipment for intrastate calls; intrastate rates are regulated by the PSC. Interstate switched-access rates, for interstate calls, are regulated by the FCC.
When a utility is rate-of-return regulated, it is allowed to charge rates that would permit it to recover its costs, plus a reasonable rate of return. Such regulation necessarily calls for the regulatory authority to scrutinize the utility’s costs of doing business. By contrast, price-cap regulation does not concern itself with a utility’s costs. Instead, the regulatory authority simply establishes a maximum rate that may be charged for a particular service, with allowances for inflation.
Those rates were ultimately filed and approved in the dockets that are the subject of the companion appeal, Consumer's Utility Rate Advocacy Division, et al. v. Arkansas Public Service Commission, No. CA00-1109, also handed down today. | [
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TERRY CRABTREE, Judge.
The appellant, Louis S. Ralph, entered a conditional guilty plea to criminal attempt to manufacture methamphetamine pursuant to Ark. R. Crim. P. 24.3(b) (2001). Appellant was sentenced to ten years’ imprisonment in the Arkansas Department of Correction with an additional five years suspended. Appellant argues on appeal that the trial court erred in denying his motion to suppress evidence. We disagree, and affirm.
On May 29, 1999, Deputy Robb Rounsavall of the Mississippi County Sheriffs Office received information from a confidential informant that appellant was manufacturing methamphetamine in a shed at his residence. At approximately 8:30 p.m. that night, Deputy Rounsavall and Detective David Flora of the Second Judicial District’s Drug Task Force arrived at appellant’s residence. They approached appellant, who was raking leaves in his front yard. After continued questioning, appellant told the officers that he was Louis Ralph. Detective Flora informed appellant that they had information that there was a working methamphetamine lab in the shed and requested to search. Appellant gave consent to search the residence and yard, but specifically excluded the shed. Appellant then informed the officers that marijuana plants were growing outside the shed. Upon finding the marijuana plants, Deputy Rounsavall placed appellant in custody. The officers then requested and received a search warrant for the entire premises, including the shed.
At the suppression hearing, the State chose not to rely on the search warrant for admission of evidence because the warrant was deficient as to the nighttime search warrant requirements. Instead, the State relied on the consent given by appellant, and it only introduced evidence seized as a result of the consent to search appellant’s residence. At the hearing, appellant denied giving consent and hearing anything about a search warrant. During the suppression hearing, the State introduced into evidence numerous guns, items with suspected methamphetamine residue, lithium batteries, and a one-gallon plastic jar containing a clear liquid and white sediment. The trial court, in denying appellant’s motion to suppress, found that appellant’s consent was freely and voluntarily given. The trial court reasoned that because appellant denied ever being informed of the search warrant, the existence of an allegedly invalid search warrant had no bearing on his ability to exercise his right to limit or withdraw his consent. Appellant appeals this denial of his motion to suppress.
In reviewing a trial court’s ruling on a motion to suppress, the court makes an independent determination based on the totality of the circumstances, viewing the evidence in a light most favorable to the State, and reverses only if the ruling is clearly against the preponderance of the evidence. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000).
Appellant argues that his consent was not voluntarily given. “An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure.” Ark. R. Crim. P. 11.1 (2001). The State must prove by clear and positive evidence that consent was freely given. Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The consent must not be the product of actual or implied duress or coercion. Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999). “Knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent.” Chism v. State, 312 Ark. 559, 569, 853 S.W2d 255, 260 (1993).
In the present case, the officers approached appellant in his yard, identified themselves, and told appellant that they had information about a methamphetamine lab in his shed. At first, appellant gave the officers several false identities. Appellant then gave consent to search the residence and the yard, but excluded consent to search the shed. Appellant later denied giving consent. We hold that the trial court’s finding that appellant’s consent was freely and voluntarily given is not clearly against the preponderance of the evidence.
Appellant argues that his residence was not searched pursuant to his consent, but searched pursuant to the search warrant, which was invalid and illegal. Appellant relies on Bumpers v. North Carolina, 391 U.S. 543 (1968), for his argument that the evidence should be suppressed. In Bumpers, the Supreme Court held that a person does not give consent when a law enforcement officer claims authority to search a home under a warrant. Id. “The situation is instinct with coercion-albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Id. at 550. The present case is distinguishable from Bumpers, because in Bumpers the consenting party was told beforehand of the existence of a warrant. Only after being told by the official conducting the search that he had a search warrant did the person respond “go ahead.” Id. In this case, appellant denies that he was ever informed that the officers obtained a search warrant. Thus, we hold no coercion was shown.
Appellant also argues that the officers requested a search warrant because the officers were unsure of the consent from appellant. Appellant argues that only after the flaws with the search warrant were discovered did the State take the position that appellant consented and the search warrant was unnecessary. The State argues that the officers requested the search warrant for the shed, which was specifically excluded in appellant’s consent. We note that subjective beliefs held by officers that are not communicated to the suspect are irrelevant. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000). We hold that the reliance of the officers on the search warrant is irrelevant. The State relied at the hearing only on the consent, and introduced evidence found in the residence, an area that appellant consented to being searched. As we have held that appellant’s consent was freely and voluntarily given, we find no error.
Affirmed.
Robbins and Neal, JJ., agree. | [
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JOHN E. Jennings, Judge.
Wayne Curtis Poore appeals from J the dismissal of his complaint for divorce in which he sought to end his two-year marriage to appellee, Diann Poore. For reversal, he contends that the chancellor erred in granting her motion for a directed verdict, finding that he had failed to establish grounds for a divorce, and that the chancellor erred in denying his motion for a new trial. We find no error and affirm.
In October 2000, appellant filed a complaint for divorce in Yell County on grounds of general indignities. Appellee answered the complaint and filed a counterclaim for divorce, but she later withdrew her counterclaim and amended her answer to contest appellant’s entitlement to a divorce.
At the hearing, appellant testified that their marital problems began in February 2000 when he returned to his former job that required him to travel. He said that he had not been happy with the job he had taken to be closer to home and that he had wanted to go back to the previous job that he had enjoyed. Appellant testified that appellee wanted him to be at home and that his decision hurt and upset her. He said that appellee, who was somewhat older than he, was afraid that he would find someone younger or that he would want children someday. He said that they argued in circles about it every day and that there were times when he would hang the phone up on her or would not go home so as to avoid a fight. Appellant testified that towards the end appellee cursed at him and suggested that he needed counseling. He said that the arguments made him miserable, that he did not want to live a life of constant arguing, and that he did not want to be married to appellee any longer.
Appellee testified that they had discussed appellant’s job change but did not argue about it. She said that his decision bothered her because she wanted him to be at home and that she had just told him that she missed him when he was away. Appellee said that his traveling made the marriage difficult for her because she does not like to be alone and would rather have her husband around. She said that they had dated for four years before getting married and that she was not insecure about him finding someone else or wanting children. Appellee testified that she did not want a divorce.
Lonnie Poore, appellant’s mother, testified that appellee confided in her that they had been fighting about appellant’s job and his being away from home. She said that appellee was worried about appellant cheating on her and that appellee wanted her to talk to appellant about why he was not staying at home. Ms. Poore testified that she witnessed one argument between the two. She said that they stopped talking when she got there but that appellee was crying. Ms. Poore did not feel that there was any way the two of them could get along.
On this evidence, the chancellor granted appellee’s motion for a directed verdict in which she argued that appellant had failed to prove or corroborate his grounds for divorce. Appellant challenges this ruling in his first point on appeal.
Divorce is a creature of statute and can only be granted upon proof of a statutory ground. Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989). Appellant’s action for divorce was based on the ground of general indignities. See Ark. Code Ann. § 9-12-301(4) (Repl. 1998). In order to obtain a divorce on that ground, the plaintiff must show a habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Russell v. Russell, 19 Ark. App. 119, 717 S.W.2d 820 (1986). In Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912), the supreme court set out what evidence is necessary to establish indignities as a ground for divorce:
It is for the court to determine whether or not the alleged offending spouse has been guilty of acts or conduct amounting to rudeness, contempt, studied neglect or open insult, and whether such conduct and acts have been pursued so habitually and to such an extent as to render the condition of the complaining party so intolerable as to justify the annulment of the marriage bonds. This determination must be based upon facts testified to by witnesses, and not upon beliefs or conclusions of the witnesses. It is essential, therefore, that proof should be made of specific acts and language showing the rudeness, contempt, and indignities complained of. General statements of witnesses that the defendant was rude or contemptuous toward the plaintiff are not alone sufficient. The witness must state facts — that is, specific acts and conduct from which he arrives at the belief or conclusion which he states in general terms — so that the court may be able to determine whether those acts and such conduct are of such nature as to justify the conclusion or belief reached by the witness. The facts, if testified to, might show only an exhibition of temper or of irritability probably provoked or of short duration. The mere want of congeniality and the consequent quarrels resulting therefrom are not sufficient to constitute that cruelty or those indignities which under our statute will justify a divorce.
Id. at 195-196, 150 S.W. at 1032 (emphasis supplied). Although Bell was decided long ago, it remains the law that mere incompatibility is not grounds for divorce in this state. See Wiles v. Wiles, 246 Ark. 289, 437 S.W.2d 692 (1969); Settles v. Settles, 210 Ark. 242, 195 S.W.2d 59 (1946); Hair v. Hair, 270 Ark. 948, 607 S.W.2d 72 (Ark. App. 1980).
A directed verdict is only proper where the evidence, when viewed in the light most favorable to the nonmovant, is so insubstantial as to require a jury verdict for the movant to be set aside. Potlatch Corp. v. Triplett, 70 Ark. App. 205, 16 S.W.3d 279 (2000). On appeal from a chancery court’s order granting a directed verdict, the court on appeal must decide specifically whether the plaintiff has made out a prima facie case of entitlement to the relief requested. Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997). This requires that the evidence presented by the plaintiff must be given the highest probative value, taking into account all reasonable inferences therefrom. Potlatch Corp. v. Triplett, supra.
Appellant’s proof, given its highest probative value, showed that the parties had fallen into disagreement over appellant’s decision to return to a job that kept him away from home. As we have pointed out, however, mere uncongeniality and quarrelsomeness, without more, are not sufficient to sustain a charge of general indignities. See, e.g., Wiles v. Wiles, 246 Ark. 289, 437 S.W.2d 792 (1969); Settles v. Settles, 210 Ark. 242, 195 S.W.2d 59 (1946); Bell v. Bell, supra; Hair v. Hair, 270 Ark. 948, 607 S.W.2d 72 (Ark. App. 1980). The conduct complained of must show settled hate and a manifestation of alienation and estrangement, and it must have been conducted systematically and habitually over a period of time as to make the complaining party’s condition in life intolerable. See Settles v. Settles, supra; Hair v. Hair, supra. We think that the chancellor could reasonably conclude that appellant faded to make a prima facie case of general indignities, and we find no error in his granting a directed verdict.
Appellant next argues that the trial court erred in denying his motion for a new trial. In his motion, appellant alleged that appellee had not been truthful in her testimony concerning the withdrawal of her counterclaim, as evidenced by her having filed a complaint for divorce in Faulkner County the day before the hearing. He argued that her chicanery entitled him to a new trial for fraud under Ark. R. Civ. P. 60(c)(4). We find no error. Appellee’s testimony on that subject could have had no possible effect on the outcome of the trial. With or without her testimony, appellant’s proof of grounds for divorce was insufficient.
Affirmed.
BIRD and Roaf, JJ., agree. | [
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JOHN F. STROUD, Jr., Chief Judge.
This is the second appeal J in this workers’ compensation hearing-loss case. The Workers’ Compensation Commission originally awarded appellee, Grady Rollon, benefits for his hearing loss, finding that his claim for benefits was not precluded by the statute of limitations. In an unpublished opinion dated June 16, 1999, ALCOA v. Rollon, CA 98-776, this court reversed and remanded the case to the Commission for further proceedings in light of our supreme court’s decision in Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). In that case, the supreme court held that the two-year statute of limitations was applicable to work-related, noise-induced hearing loss and began to run when the hearing loss became apparent to the claimant.
On remand, the Commission determined that the two-year statute of limitations barred Rollon’s claim for indemnity benefits for his 1.9% hearing loss, and Rollon does not appeal this finding. However, the Commission left intact its finding that ALCOA was responsible for providing hearing aids for Rollon.
ALCOA now appeals ihe Commission’s decision that it is liable for providing hearing aids for Rollon. For its first point on appeal, ALCOA argues, “The Commission erred in holding that an increase in threshold shifts in higher frequencies in claimant’s right ear shown in his January 24, 1994, audiogram, as compared to the claimant’s September 24, 1990, audiogram justified the finding that ALCOA be required to purchase hearing aids, and that ALCOA had the burden of proving by a preponderance of the evidence that Rollon’s hearing loss was sufficient more than two years before he filed his claim to require hearing aids. If Rollon’s claim for hearing loss is barred by the statute of limitations, his claim for amplification devices to reduce that handicap is also barred by the statute of limitations.” ALCOA’s second point on appeal is that the Commission erred in holding that only medical testimony may be considered on the issue of causation. We reverse.
Rollon began working for ALCOA on April 15, 1963, and retired on December 31, 1995. He first worked in the labor pool, but he was transferred to maintenance in 1973 and remained so employed until his retirement. Prior to working for ALCOA, Rol-lon served in the Army and was trained on the Ml rifle.
ALCOA administered a pre-employment audiogram for Rol-lon on April 8, 1963. Rollon was informed by ALCOA as early as 1984 that his hearing at high-noise levels was decreasing. In 1989, Rollon was again notified by letter that there had been a decrease in his hearing ability. The results of a hearing test administered on January 8, 1990, which were signed by Rollon, indicated that his hearing impairment was progressive. Another hearing test was administered on September 24, 1990, and in a letter of even date, Rollon was advised that his hearing impairment had not changed since the January test. Rollon’s hearing impairment on September 24, 1990, according to the AMA Guides, was 1.9%.
Rollon filed his claim for benefits on March 3, 1993. A January 24, 1994, audiogram indicated that Rollon’s actual impairment remained at 1.9% pursuant to the AMA Guides, which was the same impairment rating of Rollon’s hearing in September 1990. However, there was a shift in the higher threshold frequencies, indicating that Rollon’s hearing at those frequencies had continued to deteriorate to profound levels. This was not indicated in the impairment rating because the AMA Guides formula used to arrive at the permanent impairment rating only utilizes the frequencies up to 3000 Hz, and Rollon’s profound impairment was at levels of 4000 Hz and higher.
In ordering ALCOA to provide hearing aids to Rollon, the Commission stated:
We have previously awarded the claimant hearing aids based on Dr. Daniel Orchik’s expert medical testimony indicating that the claimant’s hearing loss after his claim was filed was of a nature and extent sufficient to require hearing aids. While the claimant’s hearing impairment as calculated under the AMA Guides formula remained the same at 1.9% between 1990 and 1994, we note that the claimant’s January 24, 1994, audiogram indicates some degree of overall increased threshold shift, particularly in the higher frequencies, as compared to the claimant’s September 24, 1990, audi-ogram. Whether the claimant’s hearing loss might have been sufficient to require a need for hearing aids two years prior to the date that the claimant filed his claim is a medical question, and there are no medical opinions in the record indicating that the claimant’s hearing loss was sufficient to require hearing aids more than two years prior to the date the claimant filed his claim for benefits, or to indicate that the claimant’s additional hearing loss beginning two years prior to the date he filed his claim was insufficient to cause a need for hearing aids. Under these circumstances, we find that the respondents [ALCOA] have failed to establish by a preponderance of the evidence that the claimant’s claim for hearing aids is barred by the statute of limitations.
Arkansas Code Annotated § ll-9-702(a)(l) (1987)', provides, “A claim for compensation for disability on account of injury, other than an occupational disease and occupational infection, shall be barred unless filed with the Commission within two (2) years from the date of injury.” The Commission determined that Rollon’s 1.9% permanent hearing impairment had developed and become apparent to Rollon more than two years prior to the date he filed his claim for benefits on March 3, 1993, and was therefore barred by the statute of limitations, a finding not appealed to this court.
However, the Commission recognized that although Rollon’s permanent impairment remained the same under the AMA Guides, he had nonetheless continued to suffer additional deterioration of his hearing in the higher frequencies. The Commission determined that because there were no medical opinions in the record to indicate that Rollon’s need fpr hearing aids developed more than two years prior to the date he filed his claim for benefits or that the additional loss of high-frequency hearing that developed within the two years prior to the claim being filed was not the reason he needed hearing aids, ALCOA had failed to establish by a preponderance of the evidence that Rollon’s claim for hearing aids was barred by the statute of limitations. We hold that this was an improper shifting of the burden of proof from the employee to the employer.
In Petit Jean Air Serv. v. Wilson, 251 Ark. 871, 475 S.W.2d 531 (1972), a workers’ compensation case concerning the statutory limitations for a claim for additional benefits, Justice George Rose Smith, in holding that the employee was statutorily barred from receiving additional benefits, stated, “It is plainly the better rule to put upon the claimant the burden of filing his claim for additional compensation within the time allowed by the statute. In our opinion, that view of the matter gives effect both to the letter and to the spirit of the law.” 251 Ark. at 875, 475 S.W.2d at 534.
Although not directly on point, we find that this holding is analogous and instructive. The claimant has always been required to prove all of the elements of his workers’ compensation claim. See McFall v. Farmers Tractor & Truck Co., 227 Ark. 985, 302 S.W.2d 801 (1957) (holding that the liberal construction of workers’ compensation laws did not relieve a claimant of the burden of showing a causal relation between his injury and the employment); Am. Cas. Co. v. Jones, 224 Ark. 731, 276 S.W.2d 41 (1955) (holding that it is the claimant’s burden to show that the injury was the result of an accident that not only arose in the course of the employment but that it also grew out of, or resulted from the employment); and Howard v. AP&L Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987) (holding that the burden rests upon the party seeking benefits to prove the injury sustained was the result of an accident arising out of and in the course of employment, and the rule of liberal construction is not a substitute for the claimant’s burden of establishing his claim by a preponderance of the evidence). Likewise, in the present case, we hold that it remained Rollon’s burden to prove that his need for hearing aids resulted from the hearing loss sustained during the two years prior to the date he filed his claim for benefits. We believe that this interpretation of the issue, as in Petit Jean Air Serv. v. Wilson, supra, gives effect both to the letter and to the spirit of the law.
Reversed.
HART and Neal, JJ., agree.
Although not controlling in the facts of this case, the supreme court also held in Minnesota Mining & Mfg. v. Baker that the statute of limitations began to run on the date the claimant became aware of his hearing loss because his hearing did not continue to deteriorate from the time lie became aware of his hearing loss to the date he filed his claim for benefits.
The claim in the present case was filed prior to July 1, 1993, the date that the new workers’ compensation statutes took effect; therefore, the cases cited are pre-1993 cases, in which the workers’ compensation statutes were liberally construed. | [
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Sam BIRD, Judge.
During November 4-8, 1996, Lydia Shepherd received medical care from St. Bernard’s Regional Medical Center. She died on November 8, 1996. On November 4, 1998, her daughter, Kelly Smith, and other heirs brought a wrongful-death and a survival claim against St. Paul Fire and Marine Insurance Co., the insurance provider for St. Bernard’s. The heirs nonsuited these claims on February 19, 1999. The case at bar, alleging the same claims, was filed by appellant Kelly Smith, as purported administratrix of Lydia’s estate, on February 18, 2000. However, she was not appointed administratrix until April 3, 2000, by a nunc pro tunc order stating that it was effective retroactive to September 14, 1999. St. Paul moved to dismiss, stating that the survival and wrongful-death claims were barred by the statute of limitations. Smith contended that the fraudulent concealment exception was applicable because the alleged acts of malpractice were not discovered until September 1998 and that the hospital had concealed its acts. The trial court granted the motion to dismiss, which it treated as a summary judgment motion, finding no genuine issue of material fact as to whether the acts had been concealed.
Smith appeals, contending (1) that the trial court improperly granted summary judgment on the ground of statute of limitations because the defendant was in no way prejudiced by the alleged failure of plaintiff to file the action in- the proper capacity and (2) that the trial court improperly granted summary judgment because a genuine issue of material fact remained to be litigated by and between the parties as to the hospital defendant’s concealment of the cause of action. We affirm.
Standard of Review
Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact to litigate and when the case can be decided as a matter of law. Norris v. Bakker, 320 Ark. 629, 899 S.W.2d 70 (1995). We have ceased referring to summary judgment as a drastic remedy. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 ( 2000). We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence, as portrayed by the pleadings, affidavits, discovery responses, and admissions 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. Id.
The burden of showing there is no remaining genuine issue of material fact and entitlement to judgment as a matter of law is upon the movant for summary judgment. Norris, supra. Any doubt and all inferences must be resolved against the moving party. Id. Once the moving party makes a prima facie showing of entitlement, however, the responding party must meet proof with proof in order to demonstrate that a genuine issue of material fact remains. Id. The response and supporting material must set forth specific facts showing there is a genuine issue for trial. Id.
When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001). However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Id.
Statute of Limitations
The cause of action for the wrongful-death and survival claims accrued on November 8, 1996, the date of Lydia Shepherd’s death. The first wrongful-death claim was brought by Lydia Shepherd’s heirs within the time allowed by the two-year statute of limitations; the heirs nonsuited this claim on February 19, 1999. Under Ark. Code Ann. § 16-56-126, a plaintiff has one year to refile suit regardless of whether the statute of limitations would otherwise prevent such institution of suit. The second suit was filed February 18, 2000, which was within this one-year grace period. Flowever, this second suit was filed by Smith in her purported capacity as administratrix of Lydia Shepherd’s estate.
In Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997), our supreme court held that the savings statute, Ark. Code Ann. § 16-56-126, could not save wrongful-death and survival claims when the current parties had not been parties to the first suit that had been nonsuited. The court emphasized that the statute provided that if “ ‘the plaintiff therein suffers a nonsuit’ then ‘the plaintiff may commence a new action within one (1) year.’ ” Murrell, supra at 125, 952 S.W.2d at 156 (emphasis in originfi). The court barred the wrongful-death claims of Murrell’s children because the children were not parties to the first action that had been nonsuited.
In the case at bar, the plaintiffs to the first suit were the heirs of Lydia Shepherd. The plaintiff to the second suit was the purported administratrix of the estate. The heirs had one year from the nonsuiting of the original complaint on February 19, 1999, to refile their wrongful-death claim, but they failed to do so. The savings statute, however, would only extend the time to file for the additional year to the heirs, not to the administratrix. The heirs did not refile the wrongful-death claim prior to expiration of the savings period; thus, it is now time-barred.
Turning to the survival claim, we conclude that this cause of action had lapsed as well. The first survival claim was brought by Smith and other heirs. Heirs cannot file a survival action; it must be brought by the estate. See Daughhetee v. Shipley, 282 Ark. 596, 699 S.W.2d 886 (1984). The estate’s survival claim expired, at the latest, on November 9, 1998, and no suit had been filed by the estate prior to that time.
The trial judge entered a nunc pro tunc order, filed April 3, 2000, that appointed Smith as administratrix and provided that it was retroactive to September 14, 1999. Smith contends that this order made her a valid administratrix as of that retroactive date. Assuming arguendo that Smith was a valid administratrix as of September 14, 1999, the survival claim is yet time-barred. The heirs nonsuited the original complaint on February 19, 1999, which was prior to the effective date of the nunc pro tunc order. Since there was no administratrix in existence, retroactive or otherwise, when the first complaint was nonsuited, there was no opportunity for the complaint to be amended to include the administratrix as a party. Smith, as administratrix, did not bring suit on behalf of the estate until February 18, 2000, well past the time allowed by the statute of limitations. The current suit was brought within the time allowed by the one-year savings period from the nonsuiting on February 19, 1999. However, the savings statute is inapplicable because the plaintiffs differed between the first and second suits. See Murrell, supra.
Smith relies upon Davenport v. Lee, 73 Ark. App. 247, 40 S.W.3d 346 (2001), pet. granted (May 31, 2001) (No. 01-456), for her argument that because the defendants did not show prejudice, then the trial court’s dismissal based on statute of limitations was erroneous. In Davenport, supra, Ron and Ramona Davenport had been appointed as administrators of the estate of Ramona’s sister. The Davenports brought a pro se suit as administrators of the estate or, alternatively, individually and as heirs at law. The trial court dismissed the suit, stating that the Davenports could not file suit in their capacity as personal representatives of the estate because neither of them was an attorney. Id. The trial court additionally found that neither was acting in their individual capacity. Id. We agreed that the Davenports were not authorized to proceed pro se on behalf of the estate, but held that the subsequent amended complaint, which advised the opposing party of the identity of the Davenports’ counsel, related back to the initial complaint; thus, the suit was timely brought because the initial complaint tolled the running of the statute of limitations. We found that the opposing party could show no prejudice because the original complaint was timely served and was amended to reflect the identity of counsel.
The defect in the Davenport complaint was its failure to show that the plaintiffs were represented by counsel. This defect was cured by the plaintiffs’ subsequent amendment. In the case at bar, the defects were that the first suit was brought by the heirs, the wrong party for the survival action, and that the second suit was brought by the administratrix, a different party than the heirs in the first suit. No amendment was ever filed to cure this defect in parties.
Statutes of limitation are for a defendant’s protection and a defendant is entitled to believe that he will not be sued after a certain date, barring an exception to the statute of limitations, such as fraudulent concealment. In the case at bar, the defendants were never sued by the administratrix of Shepherd’s estate prior to the statute of limitations running on the survival claim. As to the wrongful-death claim, the suit was properly brought by the heirs; however, the heirs nonsuited their original complaint and simply did not refile the suit within the time allowed by the savings statute.
Fraudulent concealment
Smith next contends that the hospital fraudulently concealed their wrongful acts that allegedly led to the death of Lycfia Shepherd and that, accordingly, the statute of limitations was tolled until the discovery of such acts in 1999.
Smith does not abstract any of the medical records which she contends form the basis for her fraudulent concealment allegation. She merely abstracts affidavits which discuss the medical records. Furthermore, we note that Smith’s brief violates Ark. Sup. Ct. R. 4-2(l)(6), which states that “the appellant’s abstract . . . should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented. ...” Smith, while not abstracting the medical records upon which she relies, discusses the medical records by way of editorial comment in her supporting affidavits.
When an abstract is flagrantly deficient, we may affirm for noncompliance with the abstracting requirements. Ark. Sup. Ct. R. 4-2 (b)(3). When an abstract is so deficient that we cannot discern what happened in the trial court, we must affirm. Johnson v. State, 342 Ark. 357, 28 S.W.3d 286 (2000). However, as long as we can determine from a reading of the briefs and appendices material parts necessary for an understanding of the questions at issue, we will render a decision on the merits. Id; Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994). Because we can determine from the reading of the briefs material parts necessary for an understanding of the question of fraudulent concealment, we address the merit of Smith’s argument, despite her deficient abstract.
Fraudulent concealment suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. Meadors, supra. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Id.
No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. Norris, supra. In order to toll the statute of limitations, a plaintiff is required to show something more than a continuation of a prior nondisclosure. Meadors, supra. There must be some positive act of fraud, something so furtively planned and secretly executed as to keép the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself. Norris, supra. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it. Id.
Smith essentially argues that the nurses’ making of the charts was an act that was fraudulent in and of itself because of the allegedly untruthful entries. Smith argues, and supports with affidavits, that she only learned in November 1998, that the nurses’ entries were allegedly not truthful. She argues that Gibson v. Herring, 63 Ark. App. 155, 975 S.W.2d 860 (1998) is analogous. In Gibson, a jeweler replaced a diamond with a cubic zirconium. The court held that a fact issue remained as to fraudulent concealment because:
[a]n act such as that alleged to have been committed by appellee is so furtive by nature that it tends to exclude suspicion or prevent inquiry. A cubic zirconium is designed to look like and be mistaken for a true diamond. The only way appellant could have discovered the fraud immediately upon retrieving the ring would be to have hired an expert to examine the stone. One in appellant’s position should not be required to go to such lengths.
Id. at 159, 975 S.W.2d at 863.
Gibson is distinguishable from the case at bar. Here, Smith was not limited to the sole method of hiring an expert as a means to discover the alleged fraud. The medical records show inconsistencies which were apparent from simply reading the records. The records were obtained by Smith prior to the filing of the first suit in November 1998 and Smith makes no allegation that she was prevented from obtaining the records earlier. The records reflect that Lydia’s doctor ordered her transferred to ICU at 9:00 and that she was not yet transferred at 11:00, the time that she went into cardiac arrest. Smith asserts that the nurses falsely represented to her that they were monitoring Lydia at “all times” and that she would be checked on “every few minutes,” but the nurses’ chart reflects that this was not the case. A similar argument was made in Meadors, supra. Meadors argued that when a doctor had recorded erroneous information on an operative report, he fraudulently concealed the wrongful act of implanting an erroneous breast size and that such fraudulent concealment occurred because of the way the operative report was written. The court, in affirming the summary judgment for the doctor, found significant that “here we have a plaintiff. . . who could easily have detected any inconsistency in the reports by merely requesting her medical records in their entirety.” Meadors, supra at 315, 40 S.W.3d at 300.
Furthermore, all but one of the hospital’s alleged acts that Smith contends fraudulently concealed her cause of action pertain instead to the issue of whether the hospital was negligent. In Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000), the court refused to find that allegations pertaining to the standard of care established fraud for purposes of fraudulent concealment. The issues of whether Lydia was timely transferred to ICU and whether she was monitored as closely as she should have been address whether the hospital breached its standard of care, i.e., negligence, not fraud. Smith has alleged no act by the hospital that pertains to the requisite concealment of fraud. Whether the nurses falsely represented to her that Lydia would be monitored more closely than she was is the only allegation of a fraudulent act made by Smith.
The Shelton court refused to reach the issue of whether inconsistencies between medical reports and later statements amounted to fraud because “our law is clear that in order to toll the statute of limitations, the fraud perpetrated must be concealed.” We as well do not reach the issue of whether the inconsistencies between the nurses’ representations and the reports amounted to fraud because the inconsistencies were not concealed; there was no positive act of fraud, an act so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or an act that was perpetrated in such a way that it concealed itself. Accordingly, we hold that the trial court properly granted summary judgment.
Affirmed.
Crabtree and Baker, JJ., agree. | [
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JOHN MAUZY PITTMAN, Judge.
The appellant in this criminal J case was arrested and confessed to robbing a Hardee’s restaurant with a toy gun. He was charged with aggravated robbery and theft of property. Although represented by counsel, appellant made a pro se pretrial motion to suppress his confession and requested a Denno hearing. The court never ruled on the motion and a jury trial was held. Neither appellant nor appellant’s attorney mentioned the motion. Appellant’s attorney’s trial strategy was to admit to robbery — which was done in both the opening and closing arguments — but to try to avoid a conviction for aggravated robbery by emphasizing that the gun was a toy, that appellant was young, and that he cooperated with police by confessing. In furtherance of this strategy, appellant testified in his own behalf, recounting all the significant statements made in his pretrial confession. Appellant was nevertheless convicted of aggravated robbery and theft of property. This appeal followed.
On appeal, appellant contends that the evidence was insufficient to support a conviction for aggravated robbery, and that the trial court erred in failing to rule on his pro se motion to suppress his confession.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Consequently, we must first address this issue because the Double Jeopardy Clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984) (citing Burks v. United States, 437 U.S. 1 (1978)). We disregard any alleged trial errors in determining the sufficiency question, because to do otherwise would result in avoidance of the sufficiency argument by remanding for retrial on other grounds. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000).
When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict, and will affirm if there is any substantial evidence to support the finding of guilt. Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other, inducing the mind to pass beyond mere suspicion or conjecture. Id.
A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1997). A person may commit aggravated robbery by committing robbery and representing by word or conduct that he is armed with a deadly weapon. Ark. Code Ann. § 5-12-102(a)(1) (Repl 1997).
Appellant argues that there is insufficient evidence to support his aggravated robbery conviction because there was no evidence that appellant held the gun during the robbery. We find no error on this point. Appellant’s confession was admitted at trial. Following introduction of his confession, appellant also testified, stating that he gave the recorded statement admitting his involvement, and affirming that what he told the police officer was true. He testifed that some friends approached him and asked him to help them rob the Hardee’s store. Appellant stated that he agreed and that they obtained some BB guns and drove to Hardee’s. Appellant stated that he stuck the BB gun through the back door of the store and pointed it at the manager, that he did not tell her that it was a toy gun, and that it was his intention for the Hardee’s employees to believe it was a real gun that could harm or kill them. Finally, he testified that it was his intention to make money by doing this. We hold without hesitation that this constitutes substantial evidence to support appellant’s conviction for aggravated robbery.
Next, appellant argues that the trial court erred in failing to rule on his pro se motion to suppress his confession. First, we observe that appellant did not waive this argument by proceeding to trial without reminding the trial judge that the motion was pending. A hearing is mandatory on a motion to suppress, and the supreme court has said that a defendant is not required to question the admissibility of his pretrial statements more than once. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998); Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).
Second, we note that there is a real question as to whether the motion was properly before the trial court. Appellant was represented by counsel throughout the proceedings, including the time when he made his pro se motion to suppress. This sort of hybrid representation is not favored, and it was within the trial judge’s discretion to strike the pro se motion because appellant was represented by counsel. Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1991). When the record is silent regarding the trial court’s findings, our usual practice is to presume that it made all the findings necessary to support the action taken. We are unable to do so in this instance because a pro se pretrial motion by a defendant represented by counsel requires a ruling on the record by the trial judge. Id.
Third, we hold that, even if appellant’s pretrial confession should have been suppressed, the error was harmless beyond a reasonable doubt in view of the fact that appellant testified at his trial and repeated every material aspect of his pretrial statement. Isbell v. State, 326 Ark. 17, 22, 931 S.W.2d 74, 77 (1996). At trial, appellant admitted having committed every element of aggravated robbery, and there were no factors tending to make appellant’s second statement unreliable. See id. Finally, no argument was made below suggesting that appellant was forced to testify because his earlier statement was admitted, nor is that argued here. We assume the decision to testify and give a “judicial confession” was simply a matter of trial strategy. It appears that his testimony was given to demonstrate his youth and repentance to the jury, to show that he cooperated with the police by giving a statement, and to emphasize that the guns employed in the robbery were not deadly weapons. See id.
Affirmed.
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Karen Baker, Judge.
Appellant, Angel Mays, brings this appeal from a decision by the Workers’ Compensation Commission. The Administrative Law Judge (“ALJ”) denied appellant’s claim for compensation based on a lack of objective findings. The Commission affirmed the ALJ’s decision. On appeal, appellant argues that the Commission erred in determining that straight-leg-raising tests and range-of-motion tests were not objective findings for the purpose of determining compensability. We disagree.
Appellant was employed as a packer at Alumnitec on May 18, 2000, when she suffered an injury to her lower back. At the time, appellant and her co-worker were lifting long pieces of aluminum onto a table saw to be cut for use in making aluminum ladders. Due to a previous shoulder injury, appellant lifted the aluminum with one hand. As she was bending over holding on to the end of the aluminum, her co-worker twisted appellant’s body. Appellant immediately felt pain in her back, and she reported the injury to her supervisor. She was put on light duty. Within ten or fifteen minutes, appellant told her supervisor she needed to go to a doctor. Appellant was allowed to go, but received a “point” for leaving.
When appellant arrived home, she could not get out of the car, so she went directly to the hospital emergency room. The emergency room report stated that appellant complained of bilateral mid-back pain secondary to lifting at work, but that she denied any radiation down her legs, numbness, weakness, tingling, or previous back injury. The emergency room physician took appellant off work until May 22, 2000. Appellant was also seen by her family physician, Dr. Tilley. Various reports of Dr. Tilley indicated a complaint of muscle spasms, positive pain with straight-leg lift, and decreased range of motion secondary to pain.
When the Commission denies coverage because a worker has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission if its opinion displays a substantial basis for the denial of relief. Jobe v. Wal-Mart Stores, Inc., 66 Ark. App. 114, 987 S.W.2d 764 (1999) (citing McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Vittitow v. Central Maloney, Inc., 69 Ark. App. 176, 11 S.W.3d 12 (2000). The appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999).
Appellant claims that the Commission erred in determining that straight-leg-raising tests and range-of-motion tests were not objective findings for the purpose of determining compensability. We disagree. This court addressed this very issue in Cox v. CFSI Temp. Employment, 57 Ark. App. 310, 944 S.W.2d 856 (1997). In Cox, appellant argued that a range-of-motion test should be considered an objective finding when determining compensability. Id. This court disagreed with appellant and held that pursuant to the applicable statutes a range-of-motion test was not an objective finding when determining compensability. Id. Arkansas Code Annotated section 11-9-102(4)(D) (Supp. 2001) states that “[a] compen-sable injury must be established by medical evidence, supported by ‘objective findings.’ ” Section 11-9-102(16) (Supp. 2001) provides in relevant part that:
(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.
However, Cox does not fully articulate why straight-leg-raising tests and range-of-motion tests cannot be a basis for objective findings. We take this opportunity to clarify our holding that neither test is objective for purposes of determining compensability. The American Medical Association Guides must give way to the statutory definition of objective findings as defined by the General Assembly. Although subjective criteria may be included in the AMA Guides when determining a permanent physical impairment rating, clearly the portions of the impairment rating guide that are based upon subjective criteria cannot supersede the statutory definition provided by the General Assembly. Thus, to the extent that there is a conflict, the General Assembly’s statutory definition takes precedence over any subjective criteria included in the AMA Guides. Furthermore, the legislature has plainly stated through Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996), that the ALJs, the Commission, and this court shall strictly and literally construe the provisions of the Workers’ Compensation Act. See Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996).
Appellant bears the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. §11-9-102(4)(E)(i) (Supp. 2001). We find that appellant failed to do so because the abstract is devoid of any objective findings which are not under the voluntary control of appellant. It is clear that muscle spasms, even those detected by someone other than a physician, can constitute objective medical findings to support compensability. See Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). Here, the only evidence of muscle spasms was the documentation in Dr. Tilley’s June 14, 2000, report, which indicated only a complaint by appellant of muscle spasms in her right leg. Thus, it was only a subjective complaint by appellant, rather than an objective observation by a physician, therapist, or nurse. Although it has been held that passive range-of-motion tests may be proven to be objective findings where the testing was described in the record by the treating physician, at least for the limited purpose of assessing permanent impairment caused by a shoulder injury, see Hays v. Wal-Mart Stores Inc., 71 Ark. App. 207, 29 S.W.3d 751 (2000), the only evidence found in this case regarding a range-of-motion test or a straight-leg-raise test came from Dr. Tilley’s various reports. The record is devoid of testimony that either test was not under appellant’s voluntarly control. Therefore, we hold that the evidence is insufficient to demonstrate an objective finding.
Failure to establish a compensable injury, supported by objective findings, is fatal to appellant’s claim. Based upon our standard of review, we are convinced that fair-minded persons with these same facts could have reached the same conclusion as the Commission. For these reasons, we affirm the Commission’s decision denying benefits to appellant.
Affirmed.
Hart and Vaught, JJ., agree. | [
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JOHN B. ROBBINS, Judge.
Appellee Billy Wayne Voyles J brought suit against appellant Allstate Insurance Company to collect insurance proceeds after his home in Parkin, Arkansas, was destroyed by fire. Allstate defended on the grounds that the fire was set by Mr. Voyles or at his direction, and alternatively because Mr. Voyles made a material misrepresentation by concealing the fact that he had lost a previous insurance claim after a fire destroyed a house that he owned several years ago. After a jury trial, the trial court directed a verdict against Allstate and awarded the policy limit of $20,000, along with a twelve-percent penalty and attorney’s fees. Allstate now appeals.
Allstate raises three arguments for reversal. First, it argues that the trial court erred in granting Mr. Voyles’s motion for directed verdict. Next, it contends that the trial court erroneously excluded evidence of the previous fire. Finally, Allstate asserts that the trial court erred in excluding evidence of Mr. Voyles’s misrepresentation regarding the prior fire and unsuccessful litigation against an insurance company. We agree with appellant’s first argument, and we reverse and remand on that basis.
Charles Martin, Parkin Fire Department Chief, testified that he received an emergency call at 3:09 a.m. on December 8, 1997. Upon responding to the call, Chief Martin and other firefighters found Mr. Voyles’s house to be in flames. He stated that units from Earle and Wynne were called in for assistance, and that it took about three hours to extinguish the fire.
Chief Martin later spent about fifteen minutes investigating the fire. He found the doors to be locked and no signs of forced entry. In his investigative report, Chief Martin wrote, “Looks like electrical fire from the heat system.”
Georgia Sides, a grocery store owner and longtime resident of Parkin, testified that from time to time her store sponsors bus trips to Tunica, Mississippi, for the purpose of visiting casinos. She stated that one such trip began on the afternoon of December 7, 1997, when two buses departed from Slim’s Place, which is a club that Mr. Voyles owned in Parkin. Mr. Voyles and his girlfriend, Virginia Williams, were among the group who rode the buses to Fitzgerald’s Casino in Tunica. The buses were to return the following day, and Mrs. Sides stated that she saw Mr. Voyles sitting at a blackjack table at about 2:00 a.m.
Ricky Voyles, appellee’s brother, gave testimony regarding the appellee’s house. He stated that their mother gave it to him, and the appellee owned it free from debt. Ricky estimated that before it burned the house was worth about $50,000. He further testified that he went with the appellee on the Tunica trip, and that when the appellee found out the next morning at the casino that his house had burned, he was upset.
Billy Wayne Voyles testified on his own behalf, and denied hiring anyone to set fire to his house. He indicated that the house was next door to Slim’s Place, and that he owned both free from debt. Mr. Voyles stated that after his mother died in 1994, he inherited $80,000 and used some of the money to purchase the club. He estimated the market value of Slim’s Place to be about $75,000 to $80,000.
Mr. Voyles testified that before his house burned he would visit Tunica once or twice a month. He acknowledged that, due to a “bad run of luck,” he owes a debt to a casino of over $6000, which has been turned over to a collection agency. However, he stated that since the fire there has been no communication about the debt and that, if necessary, he could have borrowed the money from one of his brothers and paid it. Other than the debt at the casino, Mr. Voyles denied having any other significant debts. He also introduced evidence that he was paying his monthly bills and that, shordy before the fire occurred, his bank account balance ranged from a low of more than $2000 to a high of over $6000.
Mr. Voyles testified that the house was not elaborately decorated and that it did not contain pictures on the walls or anything of sentimental value. However, it did contain major appliances and furniture, and he estimated that he lost about $5000 worth of personal items, which were not covered by insurance. He acknowledged that, at the time of the fire, most of his good clothes were at his girlfriend’s house and his important documents were at Slim’s Place.
Mr. Voyles stated that the water heater was in the house located in a closet next to the bathroom. He testified that there is a small bathroom window, about five feet above the ground, that is large enough for someone to crawl through. Mr. Voyles stated that he was not aware of any person who would have had any reason to burn his house down.
Jim Swain, a fire investigator, testified on behalf of Allstate. He stated that he was contacted by Allstate to investigate the fire at appellee’s home. During his investigation, Mr. Swain detected a strong odor of gasoline. He ruled out the water heater as the source of the fire. However, he took samples from the floor of the closet where the water heater was located and confirmed the presence of gasoline. Mr. Swain ultimately concluded:
Based on my background and training, what I put together that happened out there on the night of December 8 is that a person had to enter the residence, pour a flammable liquid, which we’ve identified as gasoline in the water heater closet, from the water heater closet across the floor of the bathroom, stopping at the door to the bath. At that point the flammable liquid was ignited by what we call an “external heat source,” a match, a lighter, or some similar type of device. The gas was within a couple of feet of the water heater.
Mr. Swain testified that it is not unusual for a person to try to make a fire look accidental by starting the fire near a water heater to try to create the assumption that the water heater caused it. In Mr. Swain’s opinion, a man could not have come through the bathroom window, set the fire, and then left through the window.
Charles Douglas Estes, an investigator for the Arkansas State Police, also conducted an investigation of the fire. His investigation revealed that the cause of the fire was widespread distribution of a flammable liquid. He determined that the fire started next to the water heater, but he eliminated the water heater as a possible source. Officer Estes testified that many times fires are started by water heater malfunctions, and that it is common for a person to start a fire in that location to make it look like an accident.
James Stidman, an insurance adjuster for Allstate, testified that after the fire he went to the house and noticed a strong smell of gasoline. He also noted that the house was not completely burned, and he could tell that it had been sparsely furnished with no pictures on the walls. Mr. Stidman’s investigation revealed no evidence of anyone breaking into the house. Relying in part on the gambling debt, Mr. Stidman testified, “From the evidence that was gathered in this investigation I have no doubt in my mind Mr. Voyles had his house set on fire to collect the insurance money, no question.” Mr. Stidman did not believe that Mr. Voyles himself set the house on fire, but thought that he directed another person to commit the arson and went to Tunica for an alibi.
Allstate’s first point on appeal is that the trial court erred in granting Mr. Voyles’s motion for directed verdict. In reviewing an order granting a motion for directed verdict, we view the evidence in the fight most favorable to the party against whom the verdict was directed. Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 948 S.W.2d 388 (1997). If any substantial evidence exists that tends to establish an issue in favor of that party, it is error for the trial court to grant the motion for directed verdict. Id. It has been held that where the evidence is such that fair minded people might have different conclusions, then a jury question is presented and the directed verdict should be reversed. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989).
We agree that the trial court erred in directing a verdict against Allstate. In granting Mr. Voyles’s directed-verdict motion, the trial court relied on evidence that the house was worth more than the insurance policy limits of $20,000, that it was inherited from his mother, and that the contents of the house were not insured. However, there was other evidence from which a jury could have reasonably concluded that Mr. Voyles caused his house to be burned.
While there was no direct evidence that Mr. Voyles set the fire, our supreme court has held that circumstantial evidence, when sufficient to warrant a jury in drawing a reasonable inference that the insured was the author of a fire, is sufficient to sustain a verdict in favor of the insurer. See Farmers Ins. Exchange v. Staples, 8 Ark. App. 224, 650 S.W.2d 244 (1983). In Haynes v. Farm Bureau Mut. Ins. Co. of Arkansas, 11 Ark. App. 289, 669 S.W.2d 511 (1984), we announced:
There are ordinarily no eye witnesses to an act of arson because the deliberate burning of an insured building by its owner is usually accomplished alone and in secret. Any material fact in issue, however, may be established by circumstantial evidence even though the testimony of other witnesses may be undisputed. The fact that evidence is circumstantial does not render it insubstantial as our law makes no distinction between direct evidence of a fact and circumstances from which it might be inferred. The circumstances may be such that different minds can reasonably draw different conclusions from them without resort to speculation. Where there are facts and circumstances in evidence from which reasonable minds might reach different conclusions without resort to speculation the matter is an issue of fact which must be submitted to the jury for its determination.
Id. at 292, 669 S.W.2d at 513 (citation omitted).
In the case at bar, there was circumstantial evidence giving rise to a jury question. Evidence was presented to show that, despite the fact that Mr. Voyles had inherited $80,000 and a home, his financial situation was declining and he owed more than $6000 in gambling debts. Moreover, there were no signs of forced entry into the house, and there was evidence that it was started by an accelerant and made to look like an accident. A jury could infer that Mr. Voyles had a motive for burning the house and there is nothing in the record to disclose that anyone else did. See Haynes v. Farm Bureau Mut. Ins. Co. of Arkansas, supra. From our review of the evidence in the fight most favorable to the appellant, we hold that there was substantial evidence capable of supporting a jury verdict in its favor, and thus that the trial court erroneously granted Mr. Voyles’s directed-verdict motion.
Allstate next argues that the trial court erred in excluding evidence of the prior fire. In 1989, a budding belonging to Mr. Voyles and his mother was destroyed by fire, and the insurance company covering the property denied their claim on the grounds that the fire was intentionally set by or at the direction of the insureds. The claim was litigated, and a jury returned a verdict in favor of the insurance company. The trial court refused to permit Allstate to introduce evidence of the 1989 fire, reasoning that it was too remote in time and that any probative value was substantially outweighed by the danger of unfair prejudice.
Where the issue is whether a fire was deliberately set to claim insurance, evidence of other fires may be relevant to show motive, intent, absence of mistake, or accident, but the trial court must decide whether the probative value of such relevant evidence outweighs the harm that its introduction might cause. Ark. R. Evid. 403 and 404(b); Johnson v. The Truck Ins. Exchange, 285 Ark. 470, 688 S.W.2d 728 (1985). Allstate submits that, since insurance coverage was successfully denied for the 1989 fire, evidence of that matter was relevant and tended to establish Mr. Voyles’s motive and intent to cause the 1997 fire. Allstate further argues that Mr. Voyles opened the door to admission of this evidence when, on direct examination, he stated that he did not have anything to hide.
Questions regarding the admissibility of evidence are matters entirely within the trial court’s discretion, and such matters will not be reversed absent an abuse of discretion. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). We hold that the trial court did not abuse its discretion in excluding evidence of the 1989 fire.
In cases of arson, a history of other fires is admissible if not too remote in time or dissimilar in circumstances. Johnson v. Truck Ins. Exchange, supra. In Johnson, the supreme court affirmed the admission of evidence of prior fires where the insured had suffered four major fires within five years, at least three of which were insured against loss by fire. However, in the instant case there was only one previous fire; it occurred more than eight years before the 1997 fire; and although Mr. Voyles’s insurance claim was denied, there was no other evidence tending to show that he caused the previous fire. Although Allstate makes much of the fact that both fires occurred at night and both occurred relatively soon after Mr. Voyles acquired each structure, these similarities were not so unique as to require the trial court to allow evidence of the first fire. As for Mr. Voyles’s testimony that he had nothing to hide, we think the trial court properly found that this did not open the door because it was evident that he was referring only to the 1997 fire, and not the 1989 fire.
Allstate’s remaining argument is that the trial court erred in excluding evidence of Mr. Voyles’s misrepresentation regarding the previous fire. An Allstate insurance representative took a statement from Mr. Voyles by telephone on December 10, 1997. Mr. Voyles answered “no, sir” to the question, “[H]ave you ever been involved in a lawsuit as a plaintiff or a defendant with an insurance company.” Allstate asserts that this misrepresentation was material and relevant to its investigation and defense of misrepresentations after the loss, and further relevant to show motive. Under Arkansas law, a fact or circumstance is material if it pertains to facts that are relevant to the insurer’s rights to decide upon its obligations and to protect itself against false claims. See Willis v. State Farm Fire & Casualty Co., 219 F.3d 715 (8th Cir. 2000). Allstate argues that the trial court should have permitted Mr. Voyles’s misrepresentation to be considered by the jury.
We hold that there was no abuse of discretion in the trial court’s decision to exclude the misrepresentation because it was not material. In Willis v. State Farm Fire & Casualty Co., supra, the misrepresentations related to the fire that was under investigation, whereas in the present case the statement pertained to a different fire and litigation that occurred years earlier. The misrepresentation did not significantly affect Allstate’s investigation or defense of the claim, and the trial court correctly found that the prior fire was too remote in time to establish motive or intent. There was no error in the trial court’s ruling in this regard.
We agree with Allstate’s argument that the trial court erred in directing a verdict against it, and we reverse on that basis. We reject Allstate’s remaining arguments that pertain to the admissibility of evidence.
Finally, we address the appellee’s request for costs pursuant to Arkansas Supreme Court Rule 6-7, and attorney’s fees pursuant to Ark. Code. Ann. § 23-79-208 (Repl. 1999). Because the appellee has not prevailed on appeal, his requests are denied.
Reversed and remanded.
Neal and Bailer, JJ., agree. | [
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JOHN E. JENNINGS, Judge.
John Hartsfield entered a condi-J tional plea of guilty to a charge of manufacturing methamphetamine, reserving the right to contest on appeal the issue of the validity of the search of his home. Hartsfield was sentenced to ten years’ imprisonment with five years suspended. On appeal he contends that the trial court should have granted his motion to suppress the evidence for the invalidity of the search warrant. We agree and reverse and remand.
On December 7, 1999, Narcotics Investigator Terry Clark, an employee of the Thirteenth Judicial District Drug Task Force, presented an affidavit for a search warrant to a judge. A warrant was issued and immediately executed, and incriminating evidence was found. Mr. Clark’s affidavit stated:
A. On 07/27/98, I arrested John Hartsfield who was involved in a shooting. At that time, I learned from his wife that he and her had just been to Mexico and picked up a large quantity of prescription drugs. Some of these were found in the vehicle at the time of his arrest.
B. Over the last two months, Chief Deputy Johnny Green had advised me that he had received information from four separate individuals who are known to him as being of good standing in the community that crystal methamphetamine was being manufactured and sold from the residence of John Hartsfield.
C. Over the last 30 days, I received information from an individual which has provided me with information in the past that proved to be true that led to the arrest of persons. That he had been to the residence of John Hartsfield and gotten red phosphorous and a bottle of sulfuric acid from Hartsfield, which are used in the manufacture process of crystal methamphetamine. While at the residence he noticed that Hartsfield was in the process of drying some crystal methamphetamine that had already been cooked. He went on to state that he saw items of glassware along with other red phosphorous inside the residence.
D. I then spoke with Chief Deputy Raymond Naylor of the Dallas County Sheriffs Depart., who told me that he had spoken with a person known to him as being reliable and who had also been to the residence of Hartsfield and saw red phosphorous and chemicals inside the residence.
E. On 12/07/99, I went to the residence of Hartsfield to investigate the information I had received in hopes of being able to speak with him. I then went to the door, rang the doorbell and knocked on the door to no avail. As I went to leave the residence, I noticed trwo pieces of plastic tubing beside the door that appeared in my experience to have [been] used as a piece of a HCL generator, which is used in the manufacture of crystal methamphetamine along with a funnel with a reddish tint to it that to me in my experience indicates the presence of iodine which is indicative to a crystal methamphetamine lab.
The controlling case is Franks v. Delaware, 438 U.S. 154 (1978). In Franks the United States Supreme Court held that:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of pegury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
Under Franks, if false or erroneous statements meet the standard of knowing deception or reckless disregard, the next step is to extract such statements, examine the remainder, and determine if probable cause exists. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993).
The trial court properly applied the first part of the Franks test at the suppression hearing. The court stated that it gave “absolutely no credence” to the information contained in section B of the affidavit, on the basis that the testimony of Chief Deputy Johnny Green totally contradicted the testimony of Investigator Clark. The trial court also rejected paragraph E of the affidavit. It is clear that the basis for this rejection was the court’s perception that Clark’s testimony at the suppression hearing was not truthful. Nevertheless, the trial court held that the remaining paragraphs of the affidavit were sufficient to establish probable cause for the issuance of the search warrant. We cannot agree.
Paragraph A of the affidavit does not establish that the appellant had committed a crime in 1998. Even if it had, the statement would have been entitled to no weight under Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001) (holding that the known criminal averment is not only insufficient to support a finding of reasonable cause for issuance of a warrant, but is entitled to no weight whatsoever).
The trial court upheld the affidavit on the basis of paragraphs C and D of the affidavit. Paragraph C recites that within thirty days preceding the execution of the affidavit, Clark received certain information from a confidential informant that the informant had been to Hartsfield’s residence and, in effect, observed the manufacture of methamphetamine. In Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983), the court said:
It is the uniform rule that some mention of time must be included in the affidavit for a search warrant. . . . The only softening of this position occurs when time can be inferred from the information in the affidavit. For example, where an affidavit recited that the contraband was “now” in the suspect’s possession and that the search was urgent, that was found to be adequate to satisfy the time requirement. ... In another case where the affidavit said that contraband was “recendy” seen, coupled with the use of present tense as to the location of the contraband, that was held to be sufficient. . . . Time is crucial because a magistrate must know that criminal activity or contraband exists where the search is to be conducted at the time of the issuance of the warrant. . . . That is not an unreasonable nor technical demand of the law. (Citations omitted.)
It is clear that the “time” that is critical is the “time during which the criminal activity was observed.” See Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985).
We can tell from the affidavit that Investigator Clark received the information from the confidential informant within thirty days immediately preceding the execution of the affidavit, but the affidavit provides no clue at all as to when the informant’s observation was made. Under these circumstances this paragraph cannot be deemed to supply the requisite probable cause. See Herrington v. State, supra. Paragraph D of the affidavit is likewise deficient.
The trial court struck out the second and fifth paragraphs of the affidavit for a search warrant pursuant to the Supreme Court’s decision in Franks. What is left cannot fairly be characterized as establishing probable cause for the issuance of the warrant.
Reversed and remanded.
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Andree LAYTON Roaf, Judge.
Demetrius Curtis was charged with possession of cocaine, simultaneous possession of drugs and a firearm, and misdemeanor possession of marijuana. In a bench trial, Curtis was found guilty of all three charges, and judgment was entered on January 22, 2001, sentencing him to ten years’ imprisonment in the Arkansas Department of Correction. On appeal, Curtis challenges the sufficiency of the evidence supporting his conviction for simultaneous possession of drugs and a firearm, based on the State’s failure to prove that the gun he possessed met the statutory definition of a firearm. We affirm.
At trial, Pulaski County Deputy Sheriff Stacey Payton testified that on October 12, 1999, she was patrolling in the Baseline Road area. As Payton was traveling east on Baseline Road, Curtis’s vehicle was ahead of her. Payton witnessed several items of trash fly out of the bed of Curtis’s truck. Payton stopped Curtis for littering, and as she was getting out of her vehicle, Curtis got out of his truck and approached her. Payton testified that she explained to Curtis why he was stopped and that he appeared very nervous. After Curtis gave Payton his driver’s license and registration, she called in his driver’s license number, and it came back with warrants. As Payton was checking his license, she testified that she was keeping Curtis in view. Payton testified that she saw Curtis turn to the side, reach into his right front pocket, and drop something down the side of his leg. Payton called for back up and then placed Curtis in custody. She retrieved the items that Curtis had dropped. The items were plastic bags containing what was subsequently determined to be cocaine and marijuana.
After placing Curtis in her vehicle, Payton asked him if there was anything else in his truck that she needed to know about, as she was going to do an inventory report before towing it. Curtis replied that there was a gun under his seat. Payton found the gun under the seat and testified that it had six rounds in the magazine, with one round chambered. Payton identified the gun at trial as the handgun that she found in Curtis’s truck, and it was admitted into evidence without objection. Curtis testified that the handgun was his and that he kept it in his store. After Curtis’s motions to dismiss were denied, the trial court found him guilty of possession of cocaine, simultaneous possession of drugs and a firearm, and misdemeanor possession of marijuana. Curtis was sentenced to ten years’ imprisonment on each offense, to be served concurrently.
On appeal, Curtis argues that the trial court erred in denying his motion to dismiss the simultaneous possession of drugs and firearms charge because the State failed to introduce substantial evidence that the handgun he possessed was a device designed, made, or adapted to expel a projectile by the action of an explosive. A motion for a directed verdict, or in a non-jury trial, a motion for dismissal, is a challenge to the sufficiency of the evidence. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). When reviewing a challenge to the sufficiency of the evidence, the appellate court will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). Sufficient evidence, whether direct or circumstantial, is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resort to speculation or conjecture. Id. Where the evidence is circumstantial, the appellate court must consider whether the evidence was sufficient to exclude all other reasonable hypotheses. Boston v. State, supra.
In order to sustain a conviction for simultaneous possession of a firearm and a controlled substance under Ark. Code Ann. § 5-74-106(a)(l) (Repl. 1997), the evidence must show that the defendant possessed a firearm while in possession of a controlled substance and that a connection existed between the firearm and the controlled substance. Rabb v. State, supra. “Firearm” is defined in Ark. Code Ann. § 5-1-102(6) (Repl. 1997) as “any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device.”
Curtis’s only argument on appeal is that the State failed to present substantial evidence that his handgun was a “firearm” within this definition. The only evidence presented at trial pertaining to the gun was the testimony of Deputy Payton, who testified that she found the handgun loaded, with six rounds in the magazine and one round chambered, and Curtis’s testimony that the gun was his, and that he kept it in his store. As Curtis argues, there was no direct evidence presented at trial that the gun was “designed, made, or adapted to expel a projectile by the action of an explosive,” as stated in § 5-1-102(6). However, the cases cited by Curtis in support of his contention that the State was required to present this type of direct evidence to prove that the gun was a firearm are not applicable to this case. In Beck v. State, 12 Ark. App. 341, 676 S.W.2d 740 (1984), the State had an expert testify as to whether a certain gun could fire automatically, where the appellant was charged with a violation of a statute prohibiting machine guns. In S.B. v. State, 318 Ark. 499, 885 S.W.2d 885 (1994), the Court affirmed the convictions of two juveniles for possessing handguns on school property. The testimony established that the handgun was inoperable due to several missing pieces, but the trial court found that the handgun was designed to fire a certain type of ammunition, as required by the statute defining a handgun. Id. Finally, in Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998), we affirmed convictions for theft by receiving a firearm and possession of a firearm by a felon, where the rifles were modified to fire only blanks, due to testimony that the rifles could easily be reconverted to live-fire capability. Not only do all of these cases involve different offenses than the one at issue, there was a question raised as to the weapons’ operability in each of these cases, whether due to a modification, a missing piece, or a specially designed gun. In this case, there was no evidence presented that the handgun was not in working order or that it was modified in any way; to the contrary, the evidence showed that the gun was fully assembled and loaded.
Although there was no direct evidence that the handgun was designed or made to expel a bullet by the use of an explosive such as gunpowder, circumstantial evidence constitutes substantial evidence where it excludes all other reasonable hypotheses. Boston v. State, supra. There are cases that have held that evidence similar in nature to the evidence in this case was sufficient to establish that a weapon was a firearm. For example, in United States v. Munoz, 15 F.3d 395 (5th Cir. 1994), the evidence established that a shotgun was a firearm, where a witness testified that he purchased a shotgun from defendant and defendant told him that it worked, the gun was identified by the witness and admitted into evidence, and there was no evidence that the shotgun was not designed to, or could not readily be converted to, expel a projectile by action of an explosive. See also United States v. Liles, 432 F.2d 18 (9th Cir. 1970) (evidence supported conviction for being a felon in possession of a firearm, where owner of sporting goods store identified weapon as a common type of revolver, defendant had asked to see ammunition for that type of revolver, and acquaintance of defendant had seen the weapon and described it as being similar to two revolvers he himself owned). Also, in United States v. Polk, 808 F.2d 33 (8th Cir. 1986), the appellant made a similar argument as in the present case, and the court found that the evidence was sufficient to affirm the conviction for being a felon in possession of a firearm. The evidence presented at trial was that the weapon was a Smith and Wesson, .38 caliber revolver, and that the gun was loaded with five rounds of ammunition. Id. at 34. No evidence was introduced about the condition of the gun or whether it had been fired. Id. The gun was also introduced into evidence, and the court stated that the fact finder could properly assess whether the gun could fire or was designed to fire. Id.
Here, though circumstantial, the evidence is substantial enough to support the trial court’s finding that Curtis’s gun was a firearm. Deputy Payton identified the handgun at trial as the one she found in Curtis’s truck. Payton testified that the gun was loaded, with one round of ammunition in the chamber and other rounds in the magazine. The handgun was introduced into evidence. Also, Curtis testified that the gun was his and that he kept it in his store. This evidence supports the conclusion that the gun was able to be fired, or at the least, that it was designed to be fired. Furthermore, the trial court had the opportunity to view the gun. A trier of fact may consider evidence in light of his observations and experiences and is entided to draw reasonable inferences from both circumstantial and direct evidence. Duncan v. State, 38 Ark. App. 47, 828 S.W.2d 847 (1992). From this evidence, the trial court could reasonably have inferred that the handgun was “a device designed to compel a projectile by action of an explosive.” Thus, substantial evidence supports Curtis’s conviction for simultaneous possession of drugs and a firearm, and we affirm.
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Robbins and Crabtree, JJ„ agree. | [
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Wendell L. GRIFFEN, Judge.
Lisa Gerot appeals from a chancery order granting the appellee’s petition for a change of custody, denying her petition to relocate to Florida with her minor child, and dismissing her request for a contempt citation pursuant to the court’s order mandating the division of certain marital property. She argues that appellee failed to demonstrate a material -change in circumstances justifying a change in custody; that the chancellor did not consider the proper factors in determining whether to grant her petition to relocate; and that it was undisputed that appellee has not divided the property as ordered by the court.
We reverse the order granting appellee’s motion for a change of custody because there was no allegation or proof of a material change of circumstances warranting a change of custody. In addition, because the chancellor based his finding on the motion for a change of custody and made no ruling on appellant’s petition to relocate, we remand for a ruling in that respect. Finally, we affirm with respect to the chancellor’s dismissal of the contempt citation.
Appellant obtained a divorce from Paul Gerot, appellee, on October 20, 1999. Appellant was granted custody of their nine- year-old daughter, Victoria (“Tory”), and appellee was awarded visitation. The chancellor ordered appellee to equally divide the parties’ A.G. Edwards stock, to equally divide his 401k account, and to sell his Harley-Davidson motorcycle within ninety days and split the proceeds with appellant.
In January 2000, appellant, who is a registered nurse, accepted a job in Pal Bay, Florida. In March 2000, she filed a petition to relocate to Florida, citing as her reasons for relocating a substantial increase in earnings, a job requiring her to work fewer hours per week that would allow her increased time with Tory, and better educational and extracurricular opportunities for Tory. She also requested that visitation be modified to ensure “continued quality time” with appellee. Because appellant did not want to move Tory during the school year, the parties agreed that she would stay with appellee until after the current school year had ended and he had exercised his summer visitation.
On April 4, 2000, appellee filed a formal objection to the move. He asserted that he had maintained a strong relationship with Tory and that it was not in Tory’s best interest to move to Florida while she was attending school. On April 15, 2000, appellant moved to Florida, and pursuant to the parties’ agreement, Tory-remained in Arkansas with appellee.
On June 13, 2000, after appellee’s summer visitation had ended, he filed a petition for a change of custody. He cited the fact that appellant had recently relocated to Florida and asserted that he has maintained a strong relationship with Tory, including participation in her school activities, in an effort to create a stable environment for her. On July 11, 2000, appellant filed a contempt citation, alleging that appellee had failed to divide the stock, failed to divide his retirement account, and failed to sell his motorcycle. He conceded the terms of the property setdement and that appellant was entided to one-half of the stock and the retirement account, but denied any willful violation of the court’s order.
A hearing on these matters was held on December 20, 2000. The chancery court dismissed appellant’s petition for contempt and granted appellee’s request for a change of custody. After appellant requested that the court provide specific findings of fact, the chancellor orally indicated his specific findings of fact. The chancellor stated:
I feel it is in the best interest of the child. I think the evidence is clear from the testimony of the teachers that the child is doing quite well and it would not be in her best interest to remove her from the situation she is in now. Furthermore, she has extended family on both sides here. And it was Mrs. Gerot’s choice to move to Florida. I think it is clearly, in my opinion, in the best interest of the child to remain here at this time.
The chancellor reiterated these findings in his subsequent written order.
The court further ordered appellee to obtain three bids on his motorcycle; to sell his motorcycle within the next thirty days and divide the proceeds accordingly; and to inform appellant of all documentation necessary to prepare a Qualified Domestic Relations Order to divide the stock and retirement funds as previously directed.
Appellant subsequently filed a motion to reconsider and a motion for a new trial, which the chancellor denied. She appeals only from the order entered on December 20 dismissing her motion for contempt and granting appellee’s petition for a change of custody.
I. Summary of the Testimony
Appellee conceded that he and appellant originally agreed that Tory would stay with him only until after he exercised his summer visitation. However, he subsequently objected to Tory moving to Florida “because she’s content, she’s happy here, her friends are here, her school is here and her family is here.” He fives with his mother and father in their house, but testified that his parents intend to give the house to him. Appellee asserted that he has a close relationship with Tory. He also stated that he has a good relationship with appellant’s parents and that Tory visits them. Appellee stated that Tory did not talk about her mother often and did not appear to be having any problems with her mother living in Florida.
Appellee also testified that Tory earns As and Bs in school. He stated that he has lunch at school with Tory three to four times per week and participates in parent-teacher conferences. Appellee testified that he and Tory love fishing and that he takes her to a members-only hunting lodge three weekends of each month.
Appellant is a registered nurse. She works in an emergency room, serving three twelve-hour shifts per week, from 7:00 a.m. to 7:00 p.m. She felt that Florida offered “more opportunities” for her daughter, including the ocean, Sea World, theme parks, and the Kennedy Space Center. At the hearing, she presented a letter from her employer stating that she would initially earn $21.30 per hour and would receive a $3,000 sign-on bonus. She testified that she would earn ten to twelve thousand dollars more per year, she would work fewer hours, and that the cost of living was less expensive in Florida. Appellant would also be able to return to college herself at a lower cost through her employer. She purchased a three-bedroom home located five minutes from Discovery Elementary, which she asserted was a highly rated school. She has made arrangements for a babysitter and transportation to school on those days that she is working. Appellant also has a longtime friend who resides in Pal Bay, whom Tory knows, who is also willing to help appellant if needed.
She stated that she left Tory with appellee because she did not want to move her during the middle of a school year and that her attorney indicated that she would receive permission from the court to relocate “within about thirty days.” She testified that she talks to Tory on the phone twice each week and that she had visited Tory three times since April 2000. Appellant also testified that she likes fishing and that she and Tory can salt water fish in Florida.
Appellant maintained that she has always encouraged visitation and wants Tory to have fair visitation with her father. Appellee felt that it was important for Tory to “have all of her family.” She indicated that she would pay for one-half of the travel expenses to bring Tory back to Arkansas to visit her father. She also planned to return to Arkansas with Tory at least twice per year. She stated that Tory had asked her to take her to Florida the last time that appellant was in Arkansas.
Marvelle Converse, Tory’s teacher at the time of the hearing, testified that Tory maintains a B average, and that appellee eats lunch with her three to four times a week and picks her up every afternoon. Her impression was that they have an “enjoyable relationship.” She stated that appellee serves as a “room mother” and has gone on some of the outings with Tory’s class. Converse said that appellee attends parent-teacher conferences and is very active in Tory’s education. She stated that Tory is well-adjusted, active in the classroom, and plays well with her peers. She testified that it would be detrimental to move Tory during the middle of a school year.
Susan Wilson, Tory’s second-grade teacher, who taught Tory during the period in which appellee moved, testified that Tory’s relationship with her father was very loving; that they had a strong bond; and that Tory seemed to be very comfortable in her father’s care. She testified that appellee visits school on Monday, Wednesday, and Friday and brings Tory’s lunch; that he also stays to play with her after lunch; and that he picks her up from school.
She further stated that prior to April 2000 (when Tory began living with appellee), Tory “didn’t focus. . . . The last part of school when living with her father she was more active. She seemed to be a little more with it. She participated in conversations . . . She seemed more comfortable.” Wilson said that Tory did not participate in class at the beginning of the school year, although she was always very active at recess. Wilson said that Tory became more relaxed from the beginning of the school year to the end of the school year; that she talked more; that she formed friendships; “that her activities in class and with her peers became stronger as she grew older.” She stated that Tory became more self-confident as the school year progressed. She opined that “moving in with her father was what made the changes.” Wilson also said that Tory told her in May 2000 that she did not want to move to Florida.
Debbie Nordin, Tory’s first-grade teacher, said that when she taught Tory, she was sullen, quiet, and lacked self-confidence, whereas now, she seems happy and more confident. Nordin stated that both appellant and appellee attended parent-teacher conferences. She stated that she had seen Tory several times in the period from January to May 2000, and that Tory “appears happy and stable. She has really come out and come into her own this year.” Nordin has seen appellee eat lunch with Tory and pick her up from school. She stated that it appears that they have a strong bond. She said that Tory has changed since she moved in with her father, but conceded that Tory is three years older now than when she taught her and that children’s personalities change as they grow. She also admitted that she has not talked to Tory in the last year.
II. Change of Custody
We first address the chancellor’s error in finding that appellee demonstrated a material change in circumstances warranting a change of custody. We review chancery cases de novo and reverse the findings of the chancellor only if his findings are clearly erroneous. See Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000). Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. See Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.3d 105 (1999). The chancellor must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, he must then determine who should have custody with the sole consideration being the best interest of the child. See id.
A custodial parent’s move that is made in order to better his or her financial ability to provide for a child is not, in and of itself, a material change in circumstances to be used to the detriment of that parent. See Hollinger v. Hollinger, supra. However, such a move is one factor which may be considered when determining whether a material change in circumstances exists. See Hollinger v. Hollinger, supra. The party seeking the modification has the burden below to show a material change of circumstances sufficient to warrant a change in custody. Hollinger v. Hollinger, supra. While custody is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues. See Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000).
Appellee maintains that the change of circumstances in this case are demonstrated by appellant’s relocation to a place where neither she nor Tory have any “roots” and by Tory’s “dramatic change” in her attitude since she moved in with him. Appellant notes that the court failed to specify any finding of a material change in circumstances in its oral or written order and maintains that the only testimony offered by appellee was offered as if he were already the custodial parent and is not sufficient to show a change of circumstances to warrant a change in custody.
We agree that the chancellor erred in granting appellee’s motion for a change of custody where the appellee failed to allege or present evidence of a material change of circumstances sufficient to warrant a such a change. The only change in circumstances that occurred from October 20, 1999, the date of the original custody order, to the date of the hearing, was that appellant voluntarily left Tory with appellee so she could finish out the school year. However, relocating in order to obtain employment itself does not constitute a material change in circumstances. See Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Nor does the fact that appellee would not get to visit Tory as often. See Plum v. Plum, 252 Ark. 340, 478 S.W.2d 882 (1992).
Appellee also maintains that his testimony and that of Tory’s teachers demonstrates a “dramatic change” in Tory’s demeanor since she began living with him. He testified that Tory was happy and content living with him, and it is undisputed that they share common interests, such as the love of outdoor pursuits.
It is implicit in the chancellor’s original order awarding custody to appellant that Tory had a good relationship with her father but was happy and content in appellant’s care. Appellee presented no evidence that this has changed. Rather, the evidence shows that Tory continues to enjoy a good relationship with both parents. Appellee did not seek custody on the ground that appellant was an unfit mother. He simply maintained that he was close to Tory and that she was happy and content with him. See Barnes v. Newton, 69 Ark. App. 115, 10 S.W.3d 472 (2000) (holding, in part, that there were no material changes in circumstances to justify changing joint-custody order to award custody to the mother where there was no allegation that either parent was unfit). Moreover, while the evidence demonstrates that appellee has taken a more active role with regard to Tory’s education since she moved in with him and that Tory is doing well in school, the evidence also showed that both appellant and appellee were actively involved in Tory’s education prior to appellant’s relocation. Thus, appellee’s assertion that he is close to Tory, that she is happy in his care, and that he is actively involved in her education does not demonstrate a material change in circumstances.
Similarly, the testimony by Tory’s teachers regarding Tory’s progress in school does not justify a change of custody. Tory’s teacher at the time of the hearing, Ms. Converse, stated that Tory is well-adjusted, active in the classroom, plays well with her peers, and opined that it would be detrimental to move Tory during the middle of a school year. While Wilson, Tory’s second-grade teacher, opined that Tory’s change in attitude was attributable to her new living arrangements with her father since mid-April 2000, she also stated that she had noticed changes since the beginning of the school year. Further, she direcdy observed Tory’s demeanor after she moved in with her father for only a short time, from mid-April until the end of May, when the school year ended. Although Nordin, Tory’s first-grade teacher, has not spoken with Tory within the past year, she testified that Tory has “come into her own this year.” Nordin apparently based her conclusions on seeing Tory around the school. Further, Nordin’s comments, as well as common sense, demonstrate that Tory’s change in demeanor is just as likely the result of her normal maturation process.
Further, while it is certainly proper for the chancellor to consider the child’s happiness and progress in school, see Barnes v. Newton, supra, the testimony showed that Tory maintained an A-B average both before and after she moved in with her father. According to her teachers’ testimony, she also played well with other children at recess before and after she moved in with her father. While her personality changed during the months prior to and immediately after the petition for a change in custody, this appears to be due, at least in part, to the natural maturation process and not simply to the fact that she moved in with her father late in the school year.
Even giving due deference to the witnesses’ testimony, their testimony does not demonstrate a material change that would justify a permanent change in custody. Because the chancellor erred in granting the motion for a change of custody in the absence of an allegation or proof of a material change warranting a change of custody, we reverse that portion of the chancellor’s order.
III. Petition to Relocate
Further, we remand for reconsideration of appellant’s petition to relocate because we find the chancellor based his decision solely on the motion for a change of custody and failed to rule on appellant’s petition to relocate.
After the court issued its decision, appellant’s attorney requested specific findings of fact pursuant to Arkansas Rule of Civil Procedure 52(b)(2) stating, “Your Honor, can we ask for a finding of fact?” The chancellor indicated:
I feel it is in the best interest of the child. I think the evidence is clear from the testimony of the teachers that the child is doing quite well and it would not be in her best interest to remove her from the situation she is in now. Furthermore, she has extended family on both sides here. And it was Mrs. Gerot’s choice to move to Florida. I think it is clearly, in my opinion, in the best interest of the child to remain here at this time.
In determining whether to grant a petition to relocate, the chancellor must first determine whether a move would result in a real advantage to the family as a whole. See Hass v. Hass, 74 Ark. App. 49, 44 S.W.3d 773 (2001). The record supports that the chancellor limited his order to the grant of appellee’s motion for a change of custody because he only examined the best interest of the child, without regard for the best interests of the family unit as a whole. Absent from the record and from the chancellor’s oral and written findings is any indication that he ruled on appellant’s petition to relocate or even considered the advantage to the family unit as a whole. Accordingly, we remand to the chancellor for a ruling on appellant’s petition to relocate.
IV Dismissal of the Contempt Citation
Finally, we affirm the chancellor’s dismissal of appellant’s petition for a contempt citation. The chancellor entered an order on October 30, 1999, ordering appellee within ninety days to equally divide the parties’ A.G. Edwards stock, to equally divide his 401k account, and to sell his Harley-Davidson motorcycle and split the proceeds with appellant. It is undisputed that as of July 11, 2000, the date that appellant filed her motion for contempt, appellee had not complied with this order.
Appellee concedes that at the time of the hearing, he had not complied with the court’s order. However, the failure to comply was apparently due to appellee’s attorney’s failure to act, not appel-lee’s. Appellee’s attorney informed the court that appellee had supplied him all of the necessary information to prepare the QDR.O and that appellee stipulated that appellant was entitled to one-half of the stock and retirement account. While the chancellor could have imputed appellant’s attorney’s negligence to appellee, see Midwest Timber Prod. Co., Inc. v. A.A. Self, 230 Ark. 872, 327 S.W.2d 730 (1959), he apparently found the attorney’s inaction was not willful, and appellant offered no proof to the contrary.
With regard to the motorcycle, appellee testified that it was “tore apart” and that he did not have the money to repair it. He also testified that he had advertised the motorcycle for sale twice in the Arkansas Democrat-Gazette, and had made inquiries at the Road House, a local motorcycle shop, but received no suitable offer.
The purposes of civil contempt are to preserve and enforce the rights of private parties to suits and to compel obedience to orders made for the benefit of those parties. Arkansas Dep’t Of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998). The standard of review where the chancellor has refused to punish a contemnor is abuse of discretion. See Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995). Based on the foregoing facts, we hold the chancellor’s finding that appellee’s failure to comply with the October 30 order was not willful was not an abuse of discretion. Accordingly, we affirm with respect to the chancellor’s dismissal of the contempt citation.
We reverse the order granting appellee’s motion for a change of custody. We also remand for a ruling with respect to appellant’s petition to relocate. We affirm the dismissal of the contempt citation.
Affirmed in part; reversed in part; and remanded in part.
Bird and Crabtree, JJ., agree.
CA 01-448
65 S.W.3d 494
Opinion delivered January 30, 2002
William F. Smith, for appellant.
Laws & Murdoch, P.A., by: Allen Laws, for appellee.
SUPPLEMENTAL OPINION on DENIAL of REHEARING
Wendell L. Griffen, Judge.
Appellee Paul Gerot petitions for rehearing from an unpublished opinion rendered by this court, reversing in part a chancery order awarding him a change of custody and granting him primary custody of his daughter, Victoria (“Tory”). We deny appellee’s petition for rehearing and reiterate our holding in this case with regard to his petition to change custody.
In this case, appellant Lisa Gerot, appellee’s ex-wife and Tory’s mother, moved to Florida because she was offered a better job with a larger salary and more flexible hours that would allow her to spend more time with Tory. Tory remained with her father in Arkansas to complete the remainder of her school year. Appellant thereafter filed a petition to relocate and a contempt petition, alleging that appellee failed to divide certain property in accordance with the parties’ divorce decree. Appellee filed a petition for a change of custody, alleging that Tory had experienced a “dramatic change” in her attitude after she moved in with him. At the hearing, appellee testified regarding Tory’s alleged “dramatic change” and also offered testimony by Tory’s teachers to that effect.
We stated that the testimony offered by appellee did not demonstrate a “dramatic change” that would justify a permanent change in custody. Therefore, we held that appellee failed to prove a material change in circumstances and we reversed that portion of the chancellor’s order granting appellee primary custody of Tory.
Appellee now asserts that in stating he failed to demonstrate a “dramatic change” that would justify a permanent change in custody, we either misstated or misapplied the law regarding the proof required to establish a change of custody. However, a full reading of our holding demonstrates that we did not misstate or misapply the correct standard governing motions to change custody. The standard regarding motions for change of custody, as we cited in our prior opinion in this case, is well-settled: Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and only for the welfare of the child. See Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).
Here, appellee maintained that Tory’s “dramatic change” in her attitude warranted a change in custody. We stated our holding, in full, as follows:
Even giving due deference to the witnesses’ testimony, their testimony does not demonstrate a “dramatic change” that would justify a permanent change in custody. Because the chancellor erred in granting the motion for a change in custody in the absence of an allegation or proof of a material change warranting a change of custody, we reverse that portion of the chancellor’s order.
Thus, we held that, appellee’s “dramatic change” argument notwithstanding, appellee failed to allege or prove facts demonstrating a material change in circumstances necessary to warrant a change in custody. Our decision did not change the well-settled proper standard governing motions for change of custody. Appellee’s petition for rehearing raises no new issues of law and provides no additional grounds for consideration.
Petition for rehearing denied.
ROAF, J., concurs.
Appellee maintains that the facts in this case are similar to the facts in Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994), in which this court affirmed a change in custody, where both parents had remarried and the custodial parent moved the children several hundred miles away from the children’s extended family. However, the facts in Riley are easily distinguished from the facts in this case. In Riley, both parents had remarried and the mother surreptitiously moved the children without the father’s knowledge and returned to the state on two occasions but did not allow visitation with the father on those occasions. See id. Here, by contrast, neither parent has remarried; appellant discussed the move with appellee beforehand; and appellant appeared to be following the court’s order in not removing Tory from the state until she received the court’s approval. By contrast, appellee violated the custody order by keeping Tory beyond her summer visitation.
Appellee asserts that appellant’s argument in this regard is barred, pursuant to Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000), because she failed to specifically request findings on the factors supporting the court’s “denial” of her petition to relocate. We disagree that Hickmon compels such a result.
The instant case is distinguishable from Hickmon. Unlike the appellant in the instant case, it appears that the Hickmon appellant failed to make any request for findings of fact. Here, despite a request for specific findings of fact, the chancellor failed to rule on appellant’s petition to relocate. Accordingly, Hickmon does not preclude us from addressing the merits of appellant’s argument.
See Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001). We also affirmed that portion of the chancellor’s order dismissing a contempt petition against appellee, and remanded for a ruling on appellant’s petition to relocate. | [
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JOSEPHINE Linker Hart, Judge.
Appellant, Johnnie Catron, J appeals the trial court’s denial of his motion to dismiss the State’s information charging him with manslaughter. He contends that because he was previously found guilty of driving while intoxicated and driving left of center, and because these offenses are lesser-included offenses of the crime of manslaughter, that trying him for manslaughter would “twice put him in jeopardy of life and limb,” violating the prohibition against double jeopardy found in the Fifth Amendment to the United States Constitution and in our double-jeopardy statute, Ark. Code Ann. § 5-1-110 (Repl. 1997). We, however, conclude that these crimes are not lesser-included offenses of manslaughter. Therefore, we affirm the denial of the motion to dismiss.
It is not disputed that on December 31, 2000, Catron was involved in an automobile accident that resulted in the death of Aaron Leuders. According to exhibits attached to his motion to dismiss, on January 17, 2001, Catron pleaded no contest in municipal court to the charge of driving while intoxicated, and on January 19, 2001, he pleaded guilty in municipal court to the charge of driving left of center. On January 29, 2001, the State filed an information charging Catron with manslaughter, asserting that Catron “on or about December 31, 2001, . . . did . . . [r]ecklessly cause[ ] the death of another person.” In describing how the crime was committed, the information further provided that “[w]hile intoxicated [Catron] entered the northbound lane of interstate 540 near Watkins St. and drove southbound where he struck an automobile driven by Aaron Leuders causing his death. . . .”
In response to this charge, Catron filed a motion to dismiss, asserting that he had been convicted of driving while intoxicated and driving left of center, and that the Double Jeopardy Clause precluded the State from prosecuting him for manslaughter. Additionally, Catron claimed that the State was collaterally estopped from litigating the manslaughter charge. The court denied this motion, and Catron appealed.
On appeal, Catron again contends that driving while intoxicated, which requires proof that a person was operating or in actual physical control of a motor vehicle while intoxicated or while “there was ... 0.10 % ... or more by weight of alcohol in the person’s blood,” and driving left of center, in violation of a statute that requires, with certain exceptions, that “a vehicle shall be driven upon the right half of the roadway,” are lesser-included offenses of manslaughter, which requires proof that “[h]e recklessly cause[d] the death of another person,” and that prosecuting him for manslaughter violates the Double Jeopardy Clause. He reaches this conclusion by noting that the facts set forth in the State’s information, that while intoxicated he committed manslaughter by entering the northbound lane of interstate 540 and driving southbound where he struck an automobile driven by Aaron Leuders causing his death, would also establish the crimes of driving while intoxicated and driving left of center. Because these facts would establish these crimes, he concludes that driving while intoxicated and driving left of center are lesser-included offenses of manslaughter, which has only one additional element, causing the death of another person.
The test for determining whether a subsequent prosecution is barred under the Double Jeopardy Clause was restated in United States v. Dixon as follows:
In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same- elements” test, the double jeopardy bar applies. The same-elements test, sometimes referred to as the Blockberger test, inquires whether each offense contains an element not contained in the other; if not, they are the “same offense” and double jeopardy bars additional punishment and successive prosecution.
Further, our double-jeopardy statute provides that a person may not be convicted of more than one offense if “[o]ne offense is included in the other.” An offense is so included if “[i]t is established by proof of the same or less than all the elements required to establish the commission of the offense charged.”
In examining the elements of manslaughter, driving while intoxicated, and driving left of center, we conclude that driving while intoxicated and driving left of center are not lesser-included offenses of manslaughter. Specifically, we note that driving while intoxicated requires proof that a person was operating or in actual physical control of a motor vehicle and was intoxicated or had 0.10% or more by weight of alcohol in the person’s blood. Neither of these elements is an element of the offense of manslaughter. Likewise, the offense of driving left of center requires proof that the driver was impermissibly driving left of center; the offense of manslaughter does not. Moreover, manslaughter requires proof that a person recklessly caused a death, elements which are not found in either of the other two offenses.
Catron further argues that in our analysis we must also determine whether the State will prove “conduct” that constitutes an offense for which the defendant has already been prosecuted. That approach, however, was rejected by the United States Supreme Court in Dixon.
Catron also notes that under our criminal statutes, an “element of the offense” is defined in part as “the conduct, the attendant circumstances, and the result of conduct that . . . [i]s specified in the definition of the offense” or “[establishes the kind of culpable mental state required for commission of the offense.” Thus, he contends that our statute incorporated the same-conduct test rather that the same-elements test. However, because the Arkansas Supreme Court has concluded that the Arkansas General Assembly has codified the Blockberger test, which is the “same-elements” test, in our double-jeopardy statute, we are constrained to disagree with him.
Catron further suggests that driving while intoxicated and driving left of center are also lesser-included offenses of manslaughter because each offense “differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person ... or a lesser kind of culpable mental state suffices to establish its commission.” We disagree because, as we previously described, there are several differences between manslaughter and the other two offenses. He also asserts that he cannot be convicted of manslaughter because “[t]he offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of that conduct.” We again disagree because manslaughter, driving while intoxicated, and driving left of enter are not defined in a way that suggests driving while intoxicated and driving left of center are specific instances of manslaughter.
Catron also argues that the doctrine of collateral estoppel bars a trial on the manslaughter charge because he was previously convicted of driving while intoxicated and driving left of center. However, because the State won rather than lost the earlier convictions, and further, because the elements of the crimes differ, the doctrine of collateral estoppel does not apply.
Affirmed.
Vaught and Baker, JJ., agree.
Ark. Code Ann. § 5-65-103 (Repl. 1997).
Ark. Code Ann. § 27-51-301 (Supp. 2001).
Ark. Code Ann. § 5-10-104(a)(3) (Repl. 1997).
We further note that appellant contends that State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991), stands for the proposition that driving while intoxicated is a lesser-include offense of manslaughter and that Montague v. State, 68 Ark. App. 145, 5 S.W.3d 101 (1999), and the case reversing this court, Montague v. State, 341 Ark. 144, 14 S.W.3d 867 (2000), and stand for the proposition that negligent homicide is a lesser-included offense of manslaughter when intoxication is an essential element. We disagree, as none of these cases so hold.
509 U.S. 688 (1993).
Id. at 696 (citations omitted).
Ark. Code Ann. § 5-l-110(a)(l) (Repl. 1997).
Ark. Code Ann. § 5-l-110(b)(l) (Repl. 1997).
See Dixon, 509 U.S. at 703-04.
Ark. Code Ann. § 5-l-102(5)(A) and (B) (Supp. 2001).
Cothren v. State, 344 Ark. 697, 705, 42 S.W.3d 543, 548 (2001); see also State v. Thompson, 343 Ark. 135, 143, 34 S.W.3d 33, 37-38 (2000).
Ark. Code Ann. § 5-l-110(a)(4) (Repl. 1997).
Thompson, 343 Ark. at 142-43, 34 S.W.3d at 37-38. | [
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Sam Bird, Judge.
Appellant J. Paul Bridges and appellee dge. Bridges were divorced in 2002 by the Tenth Judicial District Court in Natchitoches Parish, Louisiana. By order of the Circuit Court of Benton County, Arkansas, on March 17, 2004, Ms. Bridges was granted permanent primary care and custody of the parties’ minor children, and the visitation rights of Mr. Bridges were modified. Mr. Bridges appeals the order of the Arkansas trial court, contending that the court 1) improperly exercised jurisdiction and 2) failed to consider the best interest of the children in these matters. We disagree and affirm the decision of the Arkansas court.
On April 9, 2003, Ms. Bridges filed in Arkansas a petition to register a foreign decree and orders. Attached to her petition were the Louisiana judgment of divorce and subsequent judgments from that court, reflecting that Ms. Bridges was the primary custodial parent and Mr) Bridges was to have custodial visitation privileges as set forth in the court’s visitation schedule. The judgments also indicate that in February 2002 Mr. Bridges had moved to Mississippi but by April 2002 was employed in Georgia.
On April 14, 2003, Ms. Bridges filed in the Arkansas court a petition for modification of the visitation schedule established in Louisiana. Her petition asserted that the Louisiana court awarded the parties joint custody in July 2002, with Ms. Bridges being the primary residential custodial parent and Mr. Bridges having reasonable and liberal custodial visitation; that subsequent orders and judgments had modified the visitation privileges of Mr. Bridges based upon the parties’ changed residences; that Arkansas had become the home state of the children because Ms. Bridges had relocated to Benton County and her period of residence in Arkansas exceeded six months at the time her petition was filed; and that Mr. Bridges was believed to be residing in Mississippi after a period of relocation to Benton County. On May 20, 2003, Mr. Bridges filed in Arkansas a motion to dismiss the petitions of Ms. Bridges for lack of jurisdiction.
Upon Ms. Bridges’s filing the petitions for registration and modification, the Arkansas judge communicated with the Louisiana judge. In a letter of May 7, 2003, the Louisiana judge responded:
Thank you for visiting with me by telephone concerning the referenced matter. Proceedings have been filed in this court and yours, and the Uniform Child Custody Jurisdiction Act, as well as the Parental Prevention Kidnapping Act have been raised.
The letter listed approximate dates that recounted the relevant history of the parties, including recent events of 2003. On April 16, Mr. Bridges had filed with the Louisiana court a petition praying for an assortment of relief relating to custody matters, and a hearing was set there for April 29. On April 18, the Arkansas court had recognized jurisdiction and modified the visitation schedule. On April 24, Ms. Bridges had filed with the Louisiana court “an exception of lack of subject matter jurisdiction.”
At a hearing in Louisiana on April 29, 2003, the only issue was the question of jurisdiction. Arguments were received from counsel in Louisiana and Arkansas during a telephone conference between the Louisiana court and the Arkansas court, and the testimony of both Mr. and Ms. Bridges was received.
On June 25, 2003, the Louisiana court issued a Reasons for Judgment, addressing Mr. Bridges’s arguments that Arkansas had improperly asserted jurisdiction and that matters of custody and visitation were still pending before the Louisiana court. The court stated that, under the Parental Kidnapping Prevention Act (PKPA), it would be inappropriate for any other court to exercise jurisdiction over the children without a determination by the Louisiana court that it should no longer hear the case. The court wrote:
The Parental Kidnapping Prevention Act, cited as 28 U.S.C. 1738A, is tided “full faith and credit to be given to child custody determinations.” It reads in part as follows:
“(a) the appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any custody determination made consistently with the provisions of this section by a court of another State.”
The court found that the children had resided continuously in Arkansas for a period of more than six months, that neither party asserted that any evidence remained in Louisiana concerning the welfare of the children, that Ms. Bridges and the children currently lived in Arkansas, and that Mr. Bridges currently lived in Mississippi. The court found that Louisiana was an inconvenient forum and that Arkansas was the more appropriate forum, setting forth its analysis under Louisiana law:
Louisiana Revised Statutes 13:1706 provides in part as follows:
A. A court which has jurisdiction under this Part to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
C. In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) If another state is or recently was the child’s home state.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
In determining that Louisiana was an inconvenient forum, the court found (1) that Arkansas was the home state of the parties’ minor children; (2) that Arkansas had closer connections with the children and Ms. Bridges, and (3) that there was almost no evidence in Louisiana concerning the children’s present or future care, protection, training, and personal relationships, evidence which was more readily available in Arkansas. The court concluded, “These proceedings are to be dismissed.”
In an order of July 28, 2003, the Arkansas court acted upon the motion to dismiss that Mr. Bridges had filed on May 20, 2003. The court found that it had jurisdiction of the parties and subject matter, and it determined that Arkansas was the home state of Ms. Bridges and the children and had been so in excess of six months; thereupon, the motion to dismiss was denied. On January 15, 2004, the Arkansas court conducted a hearing on the petitions before it and took testimonies of the parties. In the resultant order of March 17, 2004, the court found that it had jurisdiction of the parties and subject-matter jurisdiction, and that it was in the best interests of the minor children that their permanent custody be placed with Ms. Bridges, subject to the specific visitation set forth in the order. Mr. Bridges appeals, raising the following points:
1. Whether the Circuit Court of Benton County, Arkansas, improperly exercised jurisdiction
Mr. Bridges argues on appeal, as he did below, that the Arkansas court improperly exercised jurisdiction. Citing the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the PKPA, he asserts that jurisdiction continued in Louisiana because matters were pending there. In part, he complains that in April 2002 the Louisiana court decreed that either party could move “to refix for rehearing” various pending issues, including a motion by Ms. Bridges to permanently fix the visitation schedule. Ms. Bridges points out, however, that a Louisiana judgment ofjuly 2, 2002, modified the previous order for visitation.
The UCCJEA, codified at Ark. Code Ann. § 9-19-101 et. seq. (Repl. 2002), governs the modification of child custody determinations made in foreign jurisdictions and registered in Arkansas, as well as the determination by a court of whether or not it should assume jurisdiction over a petition to modify an existing child-custody determination made by a foreign jurisdiction. Seamans v. Seamans, 73 Ark. App. 27, 37 S.W.3d 693 (2001). One purpose of the UCCJEA is to avoid relitigation of child-custody determinations in other states. West v. West, 364 Ark. 73, 216 S.W.3d 557 (2005).
Jurisdiction to modify a child-custody determination is addressed by Ark. Code Ann. § 9-19-203 (Repl. 2002):
Except as otherwise provided in § 9-19-204, a court of this State may not modify a child-custody determination made by a court of another State unless a court of this State has jurisdiction to make an initial determination under § 9-19-201 (a)(1) or (2) and:
(1) the court of the other State determines it no longer has exclusive, continuing jurisdiction under § 9-19-202 or that a court of this State would be a more convenient forum under § 9-19-207; or
(2) a court of this State ora court of the other State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other State.
Section 9-19-201, entitled Initial child-custody jurisdiction, states:
(a) Except as otherwise provided in § 9-19-204, a court of this State has jurisdiction to make an initial child-custody determination only if:
(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six (6) months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another State does not have jurisdiction under subdivision (a)(1) of this section, or a court of the home State of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 9-19-207 or § 9-19-208, and:
(A) the child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
(B) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;
Under section 9-19-102(7), “home state” is defined as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.
The exercise of jurisdiction by a court of this state is specifically addressed by Ark. Code Ann. § 9-19-206, which sets forth the following requirements:
(a) Except as otherwise provided in § 9-19-204, a court of this State may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another State having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other State because a court of this State is a more convenient forum under § 9-19-207.
(b) Except as otherwise provided in § 9-19-204, a court of this State, before hearing a child-custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to § 9-19-209. If the court determines that a child-custody proceeding has been commenced in a court in another State having jurisdiction substantially in accordance with this chapter, the court of this State shall stay its proceeding and communicate with the court of the other State. If the court of the State having jurisdiction substantially in accordance with this chapter does not determine that the court of this State is a more appropriate forum, the court of this State shall dismiss the proceeding.
(c) In a proceeding to modify a child-custody determination, a court of this State shall determine whether a proceeding to enforce the determination has been commenced in another State. If a proceeding to enforce a child-custody determination has been commenced in another State, the court may:
(1) stay the proceeding for modification pending the entry of an order of a court of the other State enforcing, staying, denying, or dismissing the proceeding for enforcement;
(2) enjoin the parties from continuing with the proceeding for enforcement; or
(3) proceed with the modification under conditions it considers appropriate.
We agree with Ms. Bridges that the Benton County Circuit Court proceeded exactly as it should have done in these matters. Upon receiving petitions from Ms. Bridges for registration of Louisiana judgments and for modification of Louisiana visitation orders, the circuit court stayed its proceeding and initiated communication with the Louisiana court. The Louisiana court dismissed the case after conducting a hearing, and the evidence before both trial courts (as summarized in the second point of this opinion) clearly demonstrated that Arkansas was the home state of the children for over six months before Ms. Bridges filed her petitions in Arkansas. We hold that the jurisdiction was properly exercised by the Arkansas trial court.
2. Whether the trial court jailed to consider the best interest of the children
Mr. Bridges contends that the majority of the evidence presented at trial lent credence to a finding that the trial court’s award of permanent primary care and custody, and its modification of Mr. Bridges’ visitation rights, were not in the best interest of the children. Even though we review custody issues de novo, we will reverse the trial court’s finding of fact only if they are clearly contrary- to the preponderance of the evidence. Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the superior position of the trial judge in matters of child custody. Id.
On January 15 and 16, 2004, the Arkansas court conducted a hearing on the motions in this matter. In his arguments regarding the best interest of the children, Mr. Bridges points to his testimony about his involvement with the children, his son’s expressed preference to live with his father, and his provision of trusted child-care providers. He also notes the guardian ad litem’s commendation about his involvement in the children’s lives.
There was also other evidence before the trial court. Ms. Bridges testified that she moved from Shreveport to Bella Vista in Benton County, Arkansas, on August 17, 2002, because she took a job with Wal-Mart and because she owned a house from a previous time when the parties had lived there. She testified that she enrolled the children in R. E. Baker Elementary School, which the children continued to attend at the time of the hearing and where she was a room mother. She testified that Mr. Bridges, too, subsequently moved to Bella Vista but had later moved out of state.
Ms. Bridges testified that she had stayed home with the children until her move to Bella Vista and had been their primary care parent from the first. She had often stayed home with the children in Bella Vista when they were sick, the son had undergone surgery for removal of enlarged adenoids, and the daughter had been in counseling because of anxiety. She testified regarding arrearages by Mr. Bridges on his child support, the money she had paid for medical expenses, and the times he had not availed himself of the opportunity for visitation with the children. Ms. Bridges asked that the Louisiana order of visitation be modified because of the 585-mile-drive to Mr. Bridges’s current residence in Mississippi.
Dr. Terry Effird, a clinical psychologist, testified that she had seen the ten-year-old daughter from April until December because of anxiety. Taylor was having stomach aches and did not want to go to school. Dr. Effird stated that Taylor reported that her father asked her who she wanted to live with, and that Taylor felt “torn.” Dr. Effird opined that Taylor’s anxiety was caused by Mr. Bridges and that nothing that Ms. Bridges was doing caused the anxiety.
The guardian ad litem, appointed to represent the interest of the two minor children, stated that both parents could provide an appropriate home for the children and made no recommendation as to who should have custody. In addition to commending Mr. Bridges for his involvement with the children, she reported that the children felt strong ties to their remaining family in Mississippi and that they wished for both parents to live there under the same roof. She noted, however, that the children had made exceptional progress in the Arkansas school system over the previous eighteen months and that Ms. Bridges had provided the stability that the children had needed during that time.
The arguments that Mr. Bridges raises regarding the award of child custody essentially go to the weight and credibility of the evidence. As previously noted, these are matters in which we give great deference to the trial court. We hold that the trial court did not clearly err in finding that the best interest of the children was served by an award of custody to Ms. Bridges and by modification of visitation for Mr. Bridges.
Affirmed.
Pittman, C.J., and Neal, J., agree. | [
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Andree Layton RoaF, Judge.
This is the second to this court of an order of the Public Service Commission in this proceeding, Docket No. 93-344-C, which was filed by gas customers in Fayetteville seeking refunds. The controlling question in this appeal is whether the Commission erred in holding that a previous settlement agreement entered in a separate proceeding was res judicata and barred this claim for refunds. We affirm the Commission’s decision.
Procedural History
In 1978, appellee Arkansas Western Gas Company (hereafter “AWG”) entered into a long-term contract (Contract 59) to purchase gas from a sister corporation, SEECO, Inc. AWG and SEECO are subsidiaries of Southwestern Energy Company; the same individual served as the chief executive officer for all three companies. In 1990, AWG filed an application with the Commission for approval of a general change in its rates and tariffs. The Commission approved the overall revenue requirement and associated tariffs but expressed concern about AWG’s gas-purchasing practices, its transactions with SEECO, its allocation of gas costs, and its transportation practices. The Commission then established a proceeding on February 14, 1992, to address these issues, Docket No. 92-028-U, in Order No. 1, which initiated that docket. In Order No. 41 in Docket No. 92-028-U, the Commission found on November 29, 1993, that the relationship between SEECO and AWG was fraught with conflicts of interest and that the price paid by AWG under Contract 59 was in violation of Ark. Code Ann. § 23-15-103 (1987), the least-cost-gas-purchasing statute. On October 31, 1994, the parties to Docket No. 92-028-U, AWG, SEECO, the Commission’s Staff, the Arkansas Attorney General, through his Consumer Utilities Rate Advocacy Division, and Northwest Arkansas Gas Consumers (hereafter “NWAGC”), entered into a stipulation and agreement amending Contract 59 to reflect the Commission’s findings in Order No. 41. The settlement agreement specifically provided that “[t]he parties to this Stipulation and Agreement agree not to seek refunds of costs incurred by AWG under Contract 59 prior to July 1, 1994.” After a public hearing on the settlement, the Commission approved the settlement agreement in Order No. 52 on January 5, 1995, and closed that docket in Order No. 53.
While Docket No. 92-028-U was still pending, on December 3, 1993, five days after the entry of Order No. 41, appellants Robert Brandon and Carl Brooks, on behalf of themselves and “all ratepayers similarly situated,” filed a complaint in Docket No. 93-344-C with the Commission. Appellants did not intervene in Docket No. 92-028-U. In their complaint, appellants requested that the Commission order AWG to refund to its Arkansas ratepayers the rates that it had collected under Contract 59 with its sister company, SEECO, in violation of the least-cost-gas-purchasing statute. Appellants noted that, in an ongoing proceeding, Docket No. 92-028-U, the Commission had held (in Order No. 41) that the gas price charged by AWG violated section 23-15-103’s requirement that it purchase gas from the lowest and most advantageous market and that no request for a refund had yet been made in that proceeding. Appellants requested that the Commission order AWG to refund an amount equal to $14 million per year since 1978 and award them their costs and attorney’s fees under the common-fund doctrine.
In its answer, AWG stated that the Commission had previously determined that it would be inappropriate to make refunds regarding Contract 59 and raised the affirmative defense of res judicata. On December 23, 1993, AWG responded to a complaint by Georgia Brooks, Mark Pryor, and Claudia Williams to intervene in appellants’ action. In its response, AWG asserted that “[t]he Commission has previously determined that it would be inappropriate to make refunds based on the Commission’s findings regarding Contract 59” and again raised the affirmative defense of res judicata. In a July 18, 1997, response to a petition for intervention by Mid-Con Manufacturing, Inc., AWG stated that it would, in the near future, file a motion to dismiss the proceeding based on the stipulation and agreement entered in Docket No. 92-028-U nearly three years earlier in which the parties representing appellants’ and the inter-venors’ interests had irrevocably waived the right to seek refunds. The Commission ordered Mid-Con’s petition to be held in abeyance “pending further consideration. . . .”
In Order No. 4, entered July 30, 1997, the Commission denied appellants permission to act on behalf of other unnamed ratepayers and held that it did not have the power to award appellants attorney’s fees from a common fund created by Commission-ordered refunds. Appellants appealed from that order to this court. In Brandon v. Arkansas Public Service Commission, 67 Ark. App. 140, 992 S.W.2d 834 (1999), we reversed the Commission’s decision on the class-action issue and affirmed its refusal to award attorney’s fees to appellants. We held that the legislature’s grant of authority to the Commission is clearly broad enough to allow it to hear a complaint brought as a class action. We reversed and remanded on that issue with directions to the Commission to determine whether appellants’ action meets all of the prerequisites and necessary criteria as may be established by the Commission to qualify as a maintainable class action. We emphasized that we were not holding that the Commission must allow appellants’ complaint to proceed as a class action and stressed that whether this action qualified for class certification was left to the broad discretion of the Commission. We found ourselves constrained by the statutory scheme and the holdings of the supreme court to hold that the Commission was without authority to award attorney’s fees under the common-fund doctrine.
After this action was remanded in part to the Commission, AWG filed a motion for summary judgment, asserting that the October 31, 1994, stipulation and agreement approved by the Commission in Docket No. 92-028-U was res judicata and barred this proceeding for refunds. In support of its motion, AWG attached to its brief copies of the settlement agreement and Order Nos. 52 and 53 in Docket No. 92-028-U. According to AWG, the Attorney General represented appellants in Docket No. 92-028-U and appellants were bound by the settlement, to which he had agreed, that had been entered in that docket. See Ark. Code Ann. § 23-4-305 (1987), which provides that the Attorney General represents “the state, its subdivisions and all classes of Arkansas utility rate payers.” AWG asserted that, in Docket No. 92-028-U, the Commission had investigated facts back to 1978, received evidence from witnesses under trial-like procedures, found AWG to be in violation of the least-cost-gas-purchasing statute, and approved a settlement that compromised an alleged liability dating back to 1978. AWG pointed out that the Attorney General could have requested a refund on behalf of the ratepayers but did not; instead, he agreed to the settlement, which expressly provided that no refunds would be made.
In response, appellants argued that AWG had waived its defense of res judicata by failing to object to the fact that two proceedings had been concurrently pending on this cause of action and by fading to move for their consolidation. Appellants argued that, by failing to timely move for consolidation of the two pending actions, AWG waived any possible objection it might have had to the splitting of the cause of action.
In Order No. 5, the Commission held that appellants’ complaint was barred by the principle of res judicata. The Commission found that Docket No. 92-028-U had been contested vigorously in good faith by all parties, including the Attorney General, who represented all ratepayers:
The parties, including the AG, agreed that there would be no refunds paid as a result of gas purchased from SEECO, Inc. under Contract 59. The AG made an informed and calculated decision to enter into the Settlement on behalf of AWG’s ratepayers after exhaustive discovery and a thorough evaluation of the facts of the case. The class of plaintiffs which Complainants now purport to represent (and Complainants themselves) are bound by the terms of the Settlement and they cannot seek a refund in direct violation of the terms of the Settlement agreement which was negotiated by and entered into on their behalf by the AG. The ratepayers have already received a fair hearing before the Commission on the issue of AWG’s gas purchases under Contract 59. Res judicata bars them from drawing the same controversy into issue a second time in an effort to undo the very settlement agreement the AG entered into on their behalf with AWG and which the AG considered to be “just and reasonable for all of AWG’s ratepayers.”
The Commission also found that, because appellants were barred from proceeding individually, they were not entitled to class certification.
In their petition for rehearing, appellants argued that the Commission had erred in failing to apply an exception to the principle of res judicata. They contended that AWG had waived its res judicata defense by fading to timely object to the splitting of the cause of action based on AWG’s gas-purchasing policies. In Order No. 6, the Commission found appellants’ application for rehearing to be without merit.
On appeal to this court, appellants admit that the Commission correctly expressed the principle of res judicata. They argue, however, that (1) AWG waived its objection to the splitting of the cause of action in two contemporaneous proceedings; (2) the Commission made the splitting of the cause of action necessary because it created a formal barrier preventing appellants’ claim for refunds from being heard in Docket No. 92-028-U; and (3) the Commission erred in denying class certification.
Standard of Review
Our standard of review of appeals from the Public Service Commission is limited by the provisions of Ark. Code Ann. § 23-2-423 (c) (Supp. 2001); we are to determine 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. Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 877 S.W.2d 594 (1994). If an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, nor discriminatory, then we must affirm the Commission’s action. Id. 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. Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm’n, 70 Ark. App. 421, 19 S.W.3d 634 (2000). 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 necessary to assure compliance by it with the statutes and constitutions. Id.
In Order No. 5, the Commission stated that it has authority to summarily dispose of a complaint if there are no genuine issues of material fact and if all questions to be decided are ones of law. Therefore, the principles applicable to motions for summary judgment filed pursuant to Ark. R. Civ. P. 56 may be used as guidance. See Brandon v. Arkansas Pub. Serv. Comm’n, supra. Summary judgment should be granted only when it is clear that there are no disputed issues of material fact. Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997).
Administrative Res Judicata
The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999). Under the claim-preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Coleman’s Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. White v. Gregg Agric. Enters., 72 Ark. App. 309, 37 S.W.3d 649 (2001). Res judicata will apply to a settlement agreement after it is approved by the court and the case is dismissed with prejudice. Russell v. Nekoosa Papers, Inc., 261 Ark. 79-B, 547 S.W.2d 409 (1977).
A person having only a single cause of action is usually not permitted to split the cause of action and maintain more than one suit for different parts of the action; if this rule is violated, it is held that the adjudication reached on the first action is, under the doctrine of res judicata, a bar to the maintenance of the second suit. Coleman’s Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., supra. In his treatise, Arkansas Civil Practice and Procedure § 3-7 (1993), Justice David Newbern explained that “[t]he purposes underlying this rule are to protect those against whom split causes of action would be levied from having to defend twice and to protect court dockets from unnecessary burdens.” See U.S. Fidelity & Guar. Co. v. Glass, 261 Ark. 45, 245 S.W.2d 924 (1977).
There is no dispute that Docket Nos. 92-028-U and 93-344-C involve the same cause of action arising from AWG’s gas-purchasing practices under Contract 59. It is also well established that the Commission acted in a quasi-judicial manner in Docket Nos. 92-028-U and 93-344-C. See Ark. Code Ann. §§ 23-3-118 and 23-3-119 (1987). When an administrative board acts judicially or quasi-judicially, its decision may be res judicata in a second proceeding involving the same question. Hamilton v. Arkansas Pollution Control & Ecology Comm’n, 333 Ark. 370, 969 S.W.2d 653 (1998); Arkansas Dep’t of Human Servs. v. Arkansas Child Care Consultants, Inc., 318 Ark. 821, 889 S.W.2d 24 (1994); Bockman v. Arkansas State Med. Bd., 229 Ark. 143, 313 S.W.2d 826 (1958); Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, 718 S.W.2d 114 (1986); Rainbolt v. Everett, 6 Ark. App. 204, 639 S.W.2d 532 (1982). Administrative res judicata is utilized to prevent collateral attacks on administrative agency decisions and to protect successful parties from duplicative proceedings. Fuchs v. Moore, 589 N.W.2d 902 (N.D. 1999). Application of the doctrine is especially appropriate to bar new proceedings when an agency has conducted a trial-type hearing, made findings, and applied the law. Id. In quasi-judicial administrative proceedings, res judicata has been applied to bar matters within the issues that might have been, but were not, litigated in an earlier action. See Andrews v. Gross & Janes Tie Co., 214 Ark. 210, 216 S.W.2d 386 (1948); Johnson v. Director of Labor, 10 Ark. App. 24, 661 S.W.2d 401 (1983).
Exceptions to Res Judicata Argued by Appellants
Appellants rely upon the following exceptions to the claim preclusion aspect of res judicata that are expressed in the Restatement (Second) of Judgments § 26 (1982) as follows:
(1) When any of the following circumstances exists, the general rule . . . does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
(a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein; or
(c) The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief. . . .
Appellants assert that AWG waived its objection to the splitting of appellants’ claim by failing to assert in a responsive pleading or motion, as required by Arkansas Rule of Civil Procedure 12(b)(8), that another action between the same parties arising out of the same transaction or occurrence was pending. According to Rule 12(b)(8), when a suit is brought while another suit is pending between the same parties concerning the same subject matter, the trial court where the second suit is brought has no choice but to dismiss the second suit. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). Appellants contend that, under Rule 12(h), AWG waived this defense and, therefore, the Commission erred in applying the principle of res judicata.
Some courts have held that a defendant can waive the benefit of the rule against the splitting of a cause of action by waiting until one of two suits goes to judgment before raising the objection to the splitting of the cause of action in the suit still pending. See Todd v. Cent. Petroleum Co., 155 Kan. 249, 124 P.2d 704 (1942); Cassidy v. Berkovitz, 169 Ky. 785, 185 S.W. 129 (1916). See also Aikens v. Schmidt, 329 N.J. Super. 335, 747 A.2d 824 (2000).
In the first appeal of this action, we noted our increasing inclination to apply the Rules of Civil Procedure to administrative actions when they can provide appropriate guidance. That decision, however, did not require the Commission to follow the Rules of Civil Procedure. Therefore, the Commission and this court may look to Rule 12 for guidance but are not required to do so.
In any event, whether Rule 12 applies to this question is not controlling, because a waiver can occur without regard to the Rules of Civil Procedure. A waiver may occur when one, with full knowledge of material facts, does something that is inconsistent with the right or his intention to rely upon that right. Moore v. Pulaski County Special Sch. Dist., 73 Ark. App. 366, 43 S.W.3d 204 (2001).
It is clear to us that AWG did not waive its objection to defending appellants’ claim for refunds in Docket No. 93-344-C while Docket No. 92-028-U remained open. Although AWG did not expressly state that another proceeding or action was pending, it did raise the affirmative defense of res judicata in its answer and stated that the Commission had previously determined that it would be inappropriate to make refunds regarding Contract 59. Further, AWG responded in the same fashion to the 1993 complaint in intervention. In its 1997 response to a separate petition for intervention, AWG stated that it would file a motion to dismiss based on the settlement agreement entered in Docket No. 92-028-U.
Whether Appellants Were Given an Opportunity to Litigate the Issue of Rtfunds
Citing section 26(l)(c) of the Restatement (Second) of Judgments (quoted above), appellants also argue that the Commission created barriers to the seeking of refunds in Docket No. 92-028-U. The doctrine of res judicata does not bar a subsequent action where, in an earlier action, a party was actually prohibited from asserting a claim. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993); Coleman’s Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., supra.
Therefore, the controlling question in this appeal is whether appellants had a full and fair opportunity to litigate their claim for refunds in Docket No. 92-028-U. According to appellants, the Commission limited Docket No. 92-028-U to prospective relief only and foreclosed consideration of the possibility of refunds. In Order Nos. 1 and 41 in that docket, the Commission limited that proceeding so as to exclude refunds as an issue. In Order No. 1, the Commission stated: “In Docket No. 92-028-U, the gas purchasing practices, affiliate transactions, gas costs and gas cost allocation issues with regard to both the AWG and ANG Divisions shall be addressed on a prospective basis only.” Order No. 1 also contains the following statement: “The scope of Docket No. 92-028-U shall be as set forth hereinabove and shall be prospective in application.” In Order No. 41, the Commission further stated:
The Commission will not rule on the retroactive pricing issues addressed by the parties as refunds are not an issue in this Docket. As stated in Order No. 1 of this Docket, AWG’s gas'purchasing practices, affiliate transactions, gas costs and gas cost allocation issues with regard to both the AWG and ANG divisions are being addressed on a prospective basis only.
The Commission, however, found in Order No. 5, from which this appeal has been taken, that the previous proceeding was “vigorously contested” by all parties and that the Attorney General made an informed decision after full consideration in that proceeding to compromise any claim for refunds. The Commission also said in Order No. 5 that the basis for the settlement agreement’s provision that the parties would not seek refunds was explained during the hearing on the settlement agreement held on December 5, 1994. The Commission stated:
The primary issue in Docket No. 92-028-U was AWG’s compliance with Ark. Code Ann. § 23-15-103. The Commission investigated facts dating back to 1978, received evidence from witnesses under trial-like procedures, interpreted the statute, found AWG to be in violation of the statute, and approved a setdement that compromised an alleged resulting liability that had allegedly accrued since 1978. . . . The AG made an informed and calculated decision to enter into the Settlement on behalf of AWG’s ratepayers after exhaustive discovery and a thorough evaluation of the facts of the case.
The Commission stated in Order No. 52 in Docket No. 92-028-U that a public hearing for the purpose of considering the settlement agreement was held on December 5, 1994, at which testimony in support of the agreement was presented; that AWG presented the testimony of Stanley D. Green and Charles V. Stevens, and the testimony of Robert D. Booth was presented on behalf of the Commission’s Staff; that the Attorney General adopted the testimony of Mr. Booth in support of the agreement; that SEECO stated that the testimony presented by Staff and AWG adequately addressed the issues; and that NWAGC offered no testimony and took no position regarding the agreement. The Commission stated: “No party offered any objection to the Stipulation. Although invited to do so, no member of the general public offered public comments regarding the Stipulation.”
In quasi-judicial administrative proceedings, there must have been a full and fair opportunity to contest the decision later argued to be res judicata. 46 Am. Jur. 2D Judgments § 580 (1994). See also Campbell v. Arkansas Dep’t of Correction, 155 F.3d 950 (8th Cir. 1998). According to the Restatement (Second) of Judgments § 83(2) (1982), an adjudicative determination by an administrative tribunal is conclusive under the rules of res judicata only insofar as the proceeding resulting in the determination entailed the essential elements of adjudication, including:
(a) Adequate notice to persons who are to be bound by the adjudication, as stated in § 2;
(b) The right on behalf of a party to present evidence and legal argument in support of the party’s contentions and fair opportunity to rebut evidence and argument by opposing parties;
(c) A formulation of issues of law and fact in terms of the application of rules with respect to specified parties concerning a specific transaction, situation, or status, or a specific series thereof;
(d) A rule of finality, specifying a point in the proceeding when presentations are terminated and a final decision is rendered; and
(e) Such other procedural elements as may be necessary to constitute the proceeding a sufficient means of conclusively determining the matter in question, having regard for the magnitude and complexity of the matter in question, the urgency with which the matter must be resolved, and the opportunity of the parties to obtain evidence and formulate legal contentions.
Appellants do not argue that they were not parties, through the Attorney General’s representation, to Docket No. 92-028-U. See Ark. Code Ann. § 23-4-305 (1987). Appellants also do not deny that the Attorney General participated in the settlement and appeared at the public hearing on the settlement agreement’s provisions. Additionally, appellants do not dispute the fact that they, along with other members of the public, could have appeared at the hearing and objected to the terms of the settlement agreement but did not do so. It is, therefore, clear to us that appellants had a full and fair opportunity to litigate the issue of refunds in Docket No. 92-028-U before the settlement agreement was approved and entered. Accordingly, we hold that the Commission did not err in holding that the settlement agreement entered in Docket No. 92-028-U was res judicata.
Class Certification
Appellants also argue that the Commission erred in dismissing this proceeding before addressing the question of class certification. They point out that they have not yet petitioned for class certification and argue that, under Rule 23 of the Arkansas Rules of Civil Procedure, the Commission should have considered whether class certification was appropriate before addressing the merits of the case. Rule 23(b) provides that, as soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained and that such an order may be altered or amended before the decision of the action on the merits.
In the first appeal in this proceeding, we held that, although Rule 23 does not govern proceedings before the Commission, the legislature had intended in Arkansas Code Annotated § 23-2-301 (1987) to give the Commission the authority to hear class actions where it may be “necessary or expedient” in the exercise of its power and jurisdiction or in the discharge of its duty. We explained:
In conclusion, we hold that the legislature’s grant of authority to the Commission is clearly broad enough to allow it to hear a complaint brought as a class action. We are cognizant of the fact that this decision may to some degree be regarded as precedent, but the topic behind it is not novel. It comports with judicial economy and balances consumers’ ability to seek review with the utilities’ ability to alter rates. The legislative intent bolsters this idea, and the economy of scale that is evident in utility rate-making is furthered by this decision.
We reverse and remand on this issue with directions to the Commission to determine whether appellants’ action meets all of the prerequisites and necessary criteria as may be established by the Commission to qualify as a maintainable class action. In doing so, we emphasize that we are not holding by this opinion that the Commission must allow appellants’ complaint to proceed as a class action. Our holding is expressly limited to our finding that the Commission has the authority to hear a class action. Whether appellants’ action qualifies for class certification is left to the broad discretion of the Commission.
Brandon v. Arkansas Pub. Serv. Comm’n, 67 Ark. App. at 152, 992 S.W.2d at 841.
In cases controlled by the Rules of Civil Procedure, the answer is clear that class-certification issues must be addressed before the merits of the case. Citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), the Arkansas Supreme Court stated in Farm Bureau Mutual Insurance Co. of Arkansas, Inc. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996), that for purposes of Rule 23, it is totally immaterial whether a complaint will succeed on the merits or even if it states a cause of action. In Fraley v. Williams Ford Tractor & Equipment Co., 339 Ark. 322, 5 S.W.3d 423 (1999), the supreme court held that a trial court had committed error in delving into the merits of affirmative defenses at the class-certification stage of a proceeding. See also Advance America v. Garrett, 344 Ark. 75, 40 S.W.3d 239 (2001); Mega Life and Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).
Because the Commission is not bound to follow the Rules of Civil Procedure, however, it was not required to first address the class-certification issue. Indeed, it would be pointless to address the question of class certification because it is clear that res judicata bars appellants’ claim. With few exceptions, we will not address moot issues. Coleman’s Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., supra. It is the duty of the court to decide actual controversies by a judgment that can be carried into effect and not give opinions upon abstract propositions or declare principles of law that cannot affect the matter in issue. Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 56, 871 S.W.2d 414 (1994).
Affirmed.
Stroud, C.J., and Pittman, Jennings, Bird, and Grifeen, JJ., agree.
See Bryant v. Arkansas Pub. Serv. Comm’n, 53 Ark. App. 114, 919 S.W.2d 522 (1996) (following Ark. R. Civ. P. 8(a)(1) and 12(b)(6) in conjunction with Rule 10.02(c) of the Commission’s Rules of Practice and Procedure); Second Injury Fund v. Mid-State Constr. Co., 16 Ark. App. 169, 698 S.W.2d 804 (1985) (taking guidance from Ark. R. Civ. P. 20). | [
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JOHN B. ROBBINS, Judge.
Appellant Darren Ray Gardner J appeals his convictions for one count of rape and two counts of first-degree sexual abuse as decided after a bench trial in Pulaski County Circuit Court. He was sentenced to forty years, ten years, and ten years, respectively, and the sentences were to run concurrently. Appellant argues on appeal that his convictions are not supported by sufficient evidence in that the dates of the alleged sexual abuses and rape as listed on the information do not fit with the State’s evidence. However, appellant did not preserve this issue for appellate review, and thus we cannot reach the merits of this claim. Appellant alternatively argues that because the State could not prove that the offenses occurred within the applicable statute of limitations, then his convictions must be reversed and dismissed. We disagree with this contention. Therefore, we affirm.
The prosecution of this case commenced on November 18, 1999, when a bench warrant was issued pursuant to the filing of an information. The three-count felony information alleged that the rape and sexual abuses occurred between March 1 and April 30, 1998. At that time, the victim, A.H., who stated that her birth date was May 13, 1990, was seven years old. At the time of trial, A.H. was nine years old and in the fourth grade.
The evidence adduced at trial was as follows. A.H. testified that appellant was her mother’s former boyfriend who had lived with them off and on for some time. The crime was reported on or about July 4, 1999, when A.H. revealed to two of her cousins, aged sixteen and twelve, that appellant had made her do sexual things. The girls thought she was kidding until A.H. began to cry. The cousins reported what A.H. had told them to their grandmother, and this led to telling A.H.’s mother. The police were summoned, and the prosecution began. The substance of A.H.’s testimony was that she, her mother, and appellant lived together in a trailer, and appellant often took care of A.H. while her mother was gone. A.H. reported incidents of appellant touching her on her breast, bathing with her and having her sit on his lap, having her watch pornographic movies with him while she sat on his lap, and having her perform oral sex on him on more than one occasion. She could not recall dates, though she remembered that her mother and appellant were in a relationship through a couple of moves, and she and her mother lived in an apartment for some period of time, though she did not know where. She thought that the crimes occurred when they all lived together in “the trailer.” A.H. did not pinpoint which trailer, but she did recall that one of the events happened in her “mom’s room.” A.H. was told by appellant to keep the “bad stuff’ a secret.
A.H.’s mother testified that she had no knowledge of any of these crimes. Her mother stated that they lived in Rolling Hills Apartments between March and April of 1998, and that appellant had access to her alone during that time as well as before and after those dates. She said that she had undergone major surgery and that appellant helped take care of A.H. during her recovery and after she went back to work.
Appellant testified that these were false allegations and that he was told that A.H. had been molested by her natural father. He thought that A.H. was lying and that her mother put her up to it. Appellant recalled that A.H. and her mother moved in with him in his trailer at Bowman Trailer Park when her mother lost her job as the trailer park manager, when A.H. was about two years old. Appellant stated that A.H. and her mother moved to an apartment in which the mother’s sister was residing for a while because he could no longer afford to have A.H and her mother live with him. Appellant said he only visited the apartment. Appellant said that he, A.H., and A.H.’s mother lived together again in A.H.’s mother’s trailer when they moved to Robing Hills Trailer Park. Appellant stated that he eventually broke off their relationship when he caught A.H.’s mother in an infidelity with a neighbor. Appellant averred that he had not had any contact with A.H. or her mother in years until these allegations arose.
At the close of the State’s case, trial counsel stated that he was moving for a directed verdict on each charge, and then said, “They have not proven the requirements for rape, nor have they shown sexual abuse through their testimony.” A general renewal was offered at the close of all of the evidence. Both the motion and the renewal were denied. The trial court found that appellant was guilty of the three charged offenses and sentenced him accordingly. This appeal resulted.
Gardner’s directed-verdict motions were too general to challenge any element lacking in the State’s proof. Accordingly, the sufficiency challenge is not properly preserved for appeal. Even Gardner’s appellate counsel acknowledges in his brief that trial counsel may have failed to properly raise and preserve the issue for appellate review. We agree.
In order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove. Conner v. State, 334 Ark. 457, 978 S .W2d 300 (1998). A general motion that merely asserts that the State has failed to prove its case is inadequate to preserve the issue for appeal. Id.; See, e.g., Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997) (claiming that the State failed “to prove a prima facie case”); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996) (declaring that the State “failed to meet its burden of proof’). Appellant herein failed to make a specific enough motion to preserve the issue.
In appellant’s alternate argument, he states that because there is no proof of when the offenses occurred, other than the dates set forth in the information, which do not match with the testimony, the State failed to prove that any offense occurred within the statute of limitations. The State notes that this argument is raised for the first time on appeal, but that this is permissible because it involves the statute of limitations, which implicates jurisdiction to hear the case and cannot be waived. See Eckl v. State, 312 Ark. 544, 851 S.W.2d 428 (1993); Scott v. State, 69 Ark. App. 121, 10 S.W.3d 476 (2000). Therefore, appellant’s failure to raise the issue at trial does not prohibit him from raising it on appeal.
A prosecution for rape must be commenced within six years, and a prosecution for first-degree sexual abuse must be commenced within three years. Ark. Code Ann. § 5-l-109(b)(l) and (2) (Repl. 1997). “A prosecution is commenced when an arrest warrant or other process is issued based on an indictment, information, or other charging instrument, provided that such warrant or process is sought to be executed without unreasonable delay.” Ark. Code Ann. § 5 — 1—109(f) (Repl. 1997). This prosecution commenced on November 18, 1999.
On appellate review of a statute-of-limitations question, we review the record in the light most favorable to the State. See Hunter v. State, 330 Ark. 198, 952 S.W.2d 145 (1997). According to Arkansas Code Annotated section 5-l-109(h), a limited exception to the general running of the statute of limitations was adopted in 1987, and it reads:
If the period prescribed in subsection (b) has expired, a prosecution may nevertheless be commenced for violations of the following offenses if, when the alleged violation occurred, the offense was committed against a minor, the violation has not previously been reported to a law enforcement agency or prosecuting attorney, and the period prescribed in subsection (b) has not expired since the victim has reached the age of eighteen (18)[.]
The offenses enumerated in subsection (h) include rape and sexual abuse in the first degree. The effect of subsection (h) is to extend the statute of limitations for a Class Y felony, such as rape, for up to six years beyond the eighteenth birthday of the victim, and for a Class C felony, such as first-degree sexual abuse, for up to three years beyond the eighteenth birthday of the victim, regardless of the age of the victim at the time of the offense. See 1998 Supplementary Commentary to Ark. Code Ann. § 5-1-109 (Repl. 1997). The Commentary explains that a ten-year-old rape victim could, in theory, wait until the day before his twenty-fourth birthday to obtain an arrest warrant. See id. This case fits the criteria of subsection (h) in that the offenses were committed against a minor, the offenses had not been reported to authorities on any earlier occasion, and the limitations periods, by definition, could not have expired until well after the victim reached the age of eighteen, since she was and is still a minor. This criminal action was commenced within the applicable statutes of limitation, and we reject appellant’s contention to the contrary.
Affirmed.
GRIFFEN and ROAF, JJ., agree.
Following appellant’s conviction, Arkansas Code Annotated section 5-14-108, sexual abuse in the first degree, mentioned in the tolling provisions of 5-l-109(h) was repealed by Acts 2001, No. 1738. The present law addressing this type of criminal conduct appears in §§ 5-14-124 to 5-14-127. | [
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Olly Neal, Judge.
In August of 1994, a fire occurred at the Crain Industries foam manufacturing plant in Fort Smith, causing substantial property damage and the death of one employee. Appellees Guardtronic and National Guardian provided fire detection equipment and monitoring services to the plant. In 1996, Crain’s property and casualty insurer, appellant National Union Fire Insurance Company, having paid Crain over eleven million dollars in policy proceeds, sued appellees alleging inter alia that appellees’ systems failed to send a timely signal to the monitoring stations and, in turn, the monitoring stations failed to quickly notify the fire department. The complaint set forth theories of negligence, products liability, misrepresentation, and breach of warranty. Appellees defended on the basis of exculpatory clauses contained in their contracts. The trial judge enforced tíre clauses and granted summary judgment to appellees. We affirm.
The exculpatory language in question is contained in the alarm-system contracts entered into between Crain and appellees. The Guardtronic contract was executed on June 21, 1978. It provided that, for a fee of $195 per quarter (later raised to $298.16 per quarter), Guardtronic would provide Crain’s plant with a smoke and heat detection system and would monitor the system at its central office. The contract contained the following pertinent provision:
IT IS AGREED THAT THE COMPANY IS NOT AN INSURJER and that the payments hereinbefore named are based solely upon the value of the services herein described and it is not the intention of the parties that Company [Guardtronic] assume responsibility for any loss occasioned by malfeasance or misfeasance in the performance of the services under this contract, or for the loss or damage sustained through burglary, theft, robbery, fire or other cause or any liability on the part of Company by virtue of this Agreement or because of the relation hereby established.
IF THERE SHALL, NOTWITHSTANDING THE ABOVE PROVISIONS, AT ANY TIME BE OR ARISE ANY LIABILITY ON THE PART OF THE COMPANY BY VIRTUE OF THIS AGREEMENT OR BECAUSE OF THE RELATION HEREBY ESTABLISHED, WHETHER DUE TO THE NEGLIGENCE OF THE COMPANY OR OTHERWISE, SUCH LIABILITY IS AND SHALL BE LIMITED TO A SUM EQUAL IN AMOUNT TO THE RENTAL SERVICE CHARGE HEREUNDER FOR A PERIOD OF SERVICE NOT TO EXCEED SIX (6) MONTHS, WHICH SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES. SUCH LIABILITY AS HEREIN SET FORTH IS FIXED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY AND THIS LIABILITY SHALL BE COMPLETE AND EXCLUSIVE.
That in the event Subscriber desires Company to assume greater liability for the performance of its services hereunder, a choice is hereby given of obtaining full or limited liability by paying an additional amount under a graduated scale of rates proportioned to the responsibility, and an additional rider shall be attached to this Agreement setting forth the additional liability of Company and additional charge. That the rider and additional obligation shall in no way be interpreted to hold company as an insurer.
The National Guardian contracts — a lease contract and a monitoring contract — were executed in 1986 and 1987, The lease contract provided that, for $107 per month, Crain would lease a system from National Guardian to detect water flow from Crain’s own sprinklers. The monitoring contract provided that National Guardian would monitor the system from its central office. Both contracts contained an exculpatory provision that was virtually identical to the Guardtronic provision set out above, the only significant difference being the following language:
THAT IN THE EVENT LESSEE DESIRES PROTECTION FOR LOSS OR DAMAGES AS A RESULT OF BURGLARY, THEFT, ROBBERY, FIRE OR OTHER CAUSE, LESSEE AGREES TO PURCHASE AN INSURANCE POLICY FROM A THIRD PARTY TO COVER SAID LOSS OR DAMAGE.
Following discovery, appellees filed motions for summary judgment arguing that they were either absolved from liability or their liability was limited by the above-quoted clauses. The trial judge agreed, finding that the clauses were not ambiguous; that parties are generally free to contract as they wish and Crain had voluntarily entered into these contracts and accepted the benefits thereof; and that the contracts were not ones of adhesion but were arms-length transactions between businesses. From that ruling comes this appeal.
In summary-judgment cases, we need only decide if the grant of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). Summary judgment is no longer considered a drastic remedy, but is regarded simply as one of the tools in the trial court’s efficiency arsenal. See Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Inge v. Walker, supra. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id.
An exculpatory contract is one in which a party seeks to absolve himself in advance for the consequences of his own negligence. Our supreme court has a history of viewing exculpatory contracts with disfavor. See Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990); Middleton & Sons v. Frozen Foods Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972); Arkansas Power & Light Co. v. Kerr, 204 Ark. 238, 161 S.W.2d 403 (1942); Gulf Compress Co. v. Harrington, 90 Ark. 256, 119 S.W. 249 (1909). Such contracts are not invalid per se. In fact, they have been upheld in two Arkansas cases. See Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001); Edgin v. Entergy Operations, Inc., 331 Ark. 162, 961 S.W.2d 724 (1998). Because of the disfavor with which exculpatory contracts are viewed, two special rules of construction apply to them. First, they are to be strictly construed against the party relying on them. Farmers Bank v. Perry, supra. Second, to be enforceable, the contract must clearly set out what negligent liability is to be avoided. Plant v. Wilbur, supra.
Appellant’s initial contention on appeal is that the trial judge did not apply the special rules associated with exculpatory clauses, but instead focused on such factors as whether the contracts were ambiguous, whether Crain accepted the benefits of the contracts, and whether the contracts were freely and voluntarily entered into. We see no error here. The trial judge’s ruling, although it did not expressly mention the special rules, did not expressly reject them. In fact, the judge’s lengthy discussion of the enforceability of the clauses indicates his understanding that such clauses must be strictly scrutinized. Further, our supreme court has considered, in ruling on exculpatory clauses, the ambiguity, or lack thereof, of the contract language, see Edgin v. Entergy Operations, Inc., supra, and the circumstances surrounding the execution of the contract, see Plant v. Wilbur, supra. Therefore, we cannot say that the trial court took the wrong approach in considering those same factors.
We begin our analysis by addressing appellant’s argument that a fact question remains as to whether Crain freely and voluntarily entered into the contracts with appellees. Appellant points to the affidavit of John Crossley, who signed the Guardtronic contract on behalf of Crain, wherein he stated that he would not have signed the contract had he been aware it contained provisions attempting to relieve Guardtronic of responsibility for failing to alert authorities in a timely manner. Appellant also cites the depositions of Guardtronic salesman Billy Johnson and National Guardian salesman Calvin Evans, evidencing that they did not understand the full exculpatory nature of the contracts. However, there was no proof that appellees induced Crain into believing the contracts were anything other than what they were. The language of the contracts was there for all parties to read; it was conspicuous; and there is no proof it was misrepresented in any way. Appellant offered no evidence of fraud, duress, undue influence, lack of capacity, mutual mistake, or inequitable conduct sufficient to void the contracts. Its reliance on Crain’s misunderstanding of the contract is therefore not well-taken. One is bound under the law to know the contents of the papers he signs, and he cannot excuse himself by saying that he did not know what the papers contained. Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991).
Appellant also argues that Crain’s execution of the contracts was not voluntary because the contracts were form contracts, not subject to negotiation. Even if it is true that the contract provisions were non-negotiable, it does not follow that Crain’s execution of the contracts was involuntary. There is no evidence that Crain wanted to or attempted to change any terms of the contracts. Additionally, Crain was free to take its business elsewhere if it was unhappy with the contracts at issue. Finally, as mentioned earlier, there is no proof of any inequitable conduct or mutual mistake in connection with the execution of the contracts.
Along these same lines, appellant argues that the contracts were unconscionable both because they were form contracts and because of the gross inequality of bargaining power between Crain and appellees. In assessing whether a particular contractual provision is unconscionable, courts should review the totality of the circumstances surrounding the negotiation and execution of the contracts. State v. R & A Inv. Co., 336 Ark. 289, 985 S.W.2d 299 (1999). Two important considerations are whether there is a gross inequality of bargaining power between the parties and whether the aggrieved party was made aware of and comprehended the provision in question. Id. We have already rejected appellant’s argument that Crain’s representative did not comprehend the presence of an exculpatory provision; the provision was available for him to read. Regarding the inequality of bargaining power, Crain is a large corporation that has used limitation of liability clauses in its own contracts. Further, there were competing alarm companies operating in Fort Smith from which Crain could have acquired similar services.
Based upon the forgoing, we hold that there was no error in the trial judge’s determination that Crain freely and voluntarily entered into the contracts in question.
We turn now to the question of whether the exculpatory provisions recited earlier are enforceable under Arkansas law. The Arkansas Supreme Court has decided numerous cases involving exculpatory clauses. The seminal case is the 1909 case of Gulf Compress v. Harrington, supra. There, Gulf Compress stored bales of cotton for Harrington, and the bales were subsequently destroyed by fire. Harrington contended that Gulf was guilty of negligence, and Gulf defended on the basis of language in Harrington’s receipt, which read, “[n]ot responsible for loss by fire, acts of Providence, natural shrinkage, old damages, or for failure to note concealed damages.” The supreme court held that such language was insufficient to exempt Gulf from liability for its own negligence.
The same result was reached in three subsequent bailment cases. In Arkansas Power & Light v. Kerr, supra, where the bailor contended that the bailee stored his eggs at an incorrect temperature, the purported exculpatory language read, “company is not responsible for [goods’] condition while in storage or at their removal; nor for loss or damage by fire, water, storm or other causes reasonably beyond its control. ...” In Middleton & Sons v. Frozen Food Lockers, supra, where the bailor’s meat spoiled while being stored by the bailee, there was an alleged verbal contract in which the bailor agreed to assume the risk of damage to his meat. In Farmers Bank v. Perry, supra, where Perry’s money was stolen from one of the Bank’s safety deposit boxes, the contract read, “the undersigned customer holds the Farmers Bank harmless for loss of currency or coin left in this box.” All of these exculpatory agreements were held insufficient to absolve the bailee of liability for its own negligence.
Two recent cases have upheld exculpatory contracts. In Edgin v. Entergy Operations, Inc., supra, Michele Edgin sustained injuries while working at Entergy’s Nuclear One plant as a security guard. Her actual employer was Wackenhut Corporation, who assigned her to Entergy. Following her injury, Edgin sued Entergy in tort, and Entergy defended on the basis of a document that Edgin had signed in her Wackenhut employment application. The document read, in pertinent part, “I HEREBY WAIVE AND FOREVER RELEASE ANY RIGHTS I MIGHT HAVE to make claims or bring suit against any client or customer of Wackenhut for damages based upon injuries which are covered under . . . Workers’ Compensation statutes.” The supreme court held that the clause specifically set out what negligent liability was to be avoided and was clear and unambiguous.
A more traditional type of exculpatory contract was discussed in Plant v. Wilbur, supra, a case decided by the supreme court last July. There, Plant signed a document before entering the pit area of a racetrack operated by Wilbur. The document, which was a form used by racetracks all over the country, was tided, “Release and Waiver of Liability and Indemnity Agreement.” The supreme court held that the clause was enforceable, noting that it contained certain key phrases such as “releases,” “discharges,” “covenants not to sue,” and mentioned claims for negligence in three different places. The court also approved the trial judge’s consideration of the circumstances surrounding the execution of the document, such as the fact that Plant had signed the document on other occasions, was not forced to sign the document, had equal bargaining power, and the fact that the activity involved was recreational in nature.
Under the forgoing authority, we must strictly construe the exculpatory contracts in the case at bar against the alarm companies, and we must ask whether they clearly set out what negligent liability is to be avoided. The contracts do not expressly mention that appellees sought to be absolved from liability for their own negligence, nor do they use words such as “release” or “waiver” as did the contracts in Plant and Edgin. However, the contracts do state that it is not the intention of the parties that appellees assume responsibility for any loss occasioned by “malfeasance or misfeasance in the performance of the services under the contract, or for loss or damage from fire.” Our courts view misfeasance as an affirmatively wrongful act generally equated with a tort. See Westark Specialties v. Stouffer Family Ltd., 310 Ark. 225, 836 S.W.2d 354 (1992). The logical reading of the terms as they are used in these clauses is that appellees assume no responsibility for tortious performance of services under the contract. This interpretation is further buttressed by the fact that both contracts provide for a limitation of liability to a small amount of money should the exculpatory provision be invalidated; that the Guardtronic contract goes on to offer the customer the option of paying more money to obtain full or limited liability on the part of Guardtronic; and that National Guardian advised its customers to purchase an insurance policy to protect against loss from fire and other hazards. We therefore hold that the contracts clearly set out what negligent liability is to be avoided.
We further hold that there is nothing in the circumstances surrounding the execution of the contracts that would merit invalidating the exculpatory clauses. The parties herein were businesses dealing at arms’ length. The clauses were not hidden from Crain, nor was Crain misled or prevented from reading the clauses. Further, Crain paid a relatively meager amount for appellees’ services, and appellees sought accordingly to either absolve themselves from liability for their own negligence or limit their liability to a small dollar amount. Finally, as it was urged to do in the National Guardian contract, Crain purchased insurance (from appellant National Union) to cover losses of the type suffered herein.
In light of our discussion, we hold that the trial court did not err in granting summary judgment in this case.
Affirmed.
Hart, Robbins, and Vaught, JJ., agree.
Crabtree and Baker, JJ., dissent.
National Guardian’s contract was executed by its predecessor Spurling Fire & Burglar Alarm Company.
The contracts attached by National Guardian to its motion for summary judgment were somewhat pieced-together because the originals were lost in the 1996 Fort Smith tornado and because a copyist failed to copy the contracts in their entirety. There is no dispute, however, that the contracts are authentic and accurate.
Appellant does not raise as a point on appeal that the clauses do not apply to its causes of action other than negligence, i.e., products liability, breach of warranty, or misrepresentation.
Appellant makes two arguments that we do not address. First, it argues that the trial court erred in citing the exculpatory clause from the National Guardian lease agreement rather than the monitoring agreement. The trial court’s reliance on the lease agreement clause makes no difference because it is virtually identical to the monitoring agreement clause. Second, appellant argues that the monitoring agreement itself is vague because it states that it agrees to monitor a system “owned by Subscriber.” Because the alarm system was owned by National Guardian and was only leased by Crain, appellant contends that the monitoring agreement does not apply. The record as abstracted does not show that this argument was made below; certainly it was not ruled on by the trial judge. We need not address an argument under such circumstances. See Barclay v. First Pyramid Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001). In any event, the lease and the monitoring agreement were intertwined as a practical matter. Appellant also argues briefly that the trial court erred in finding that appellees were not grossly negligent. No convincing argument is made, nor is any authority cited in support of this contention; therefore, we do not address it. See Collins v. Cunningham, 71 Ark. App. 297, 29 S.W.3d 764 (2000). | [
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LARRY D. VAUGHT, Judge.
This is an appeal from a jury I /verdict entered in a case involving a boundary dispute. Appellant Clyde McWilliams also appeals from the entry of summary judgment for appellees in his malicious-prosecution claim. We affirm.
Procedural History
At issue is the ownership of approximately 5.9 acres of land. Appellant received a deed in 1965 to land in the southwest quarter of Section 12, Township 3 North, Range 12 West, in Pulaski County, Arkansas. To the east of his land, in the southeast quarter, lies property owned by the Gangluff and Schmidt families. The tracts owned by appellees Margaret Gangluff, Ronald Gangluff, and David Gangluff are north of the tracts owned by appellees Johnny Schmidt, Karl Schmidt, and Tanas Schmidt. In 1998, appellees Karl and Tanas Schmidt received a deed to a tract from Wrenetta Schmidt Ritchie and Jerry Ritchie. In 1995, appellee Edward Gan-gluff conveyed his interest in a tract to his wife, Margaret, to whom he gave a life estate, and to Ronald and David Gangluff, to whom he gave the remainder. According to the parties’ deeds, their common boundary line divides the quarter-sections. Appellant claims that the quarter-section line should be located further east, along a meandering old fence line that was built in approximately 1941 and that was extended south in 1958. Appellees argue that the entire fence line was built to prevent cattle from roaming into the eastern area of their property and was never intended to mark the boundary line between the quarter-sections. Although appellant ran cattle and cut hay on the disputed area, appellees maintain that appellant did so with their permission. Appellees also contend that all parties had agreed that, when the need for a survey arose, a fence would be placed on the actual boundary line.
In 1998, appellees commissioned a survey that placed the boundary line considerably west of the old fence. Based on this survey, appellees built a new fence to demarcate the line dividing the southeast quarter from the southwest quarter of Section 12. After appellees built the new fence, appellant sued them in Pulaski County Circuit Court for ejectment, slander of title, and trespass. Appellees then initiated a quiet-title action in Pulaski County Chancery Court, which was dismissed because of the pendency of this action. After the chancery action was dismissed, appellant amended his complaint to include the claim of malicious prosecution. Appellant’s claims were bifurcated, and the malicious-prosecution claim was not tried to the jury with the other claims.
Although appellant claimed title to the disputed area by adverse possession, acquiescence, and an agreed boundary line, he testified without qualification that he claimed title only through his 1965 deed, which clearly conveyed land in the southwest quarter-section. Appellant admitted that, if the land in dispute is actually located within the southeast quarter-section, he does not claim it. Therefore, the central question at trial was whether the area in dispute lies within the southwest quarter or the southeast quarter of Section 12. Nevertheless, the jury was instructed on adverse possession, acquiescence, and boundary by agreement. In rendering their verdict for appellees, the jury specifically found that appellant does not own the area in dispute.
Appellant filed motions for directed verdict, judgment notwithstanding the verdict, and for new trial, all of which were denied. Appellees moved for summary judgment on the malicious-prosecution claim. In support of their motion, appellees filed affidavits indicating that they had relied upon the advice of counsel in filing the quiet-title action. The trial judge granted summary judgment to appellees on this claim. Appellant appeals from the trial judge’s refusal to set aside the jury verdict and from the entry of summary judgment for appellees.
Appellant argues that the trial judge should have granted his motions for new trial, directed verdict, and judgment notwithstanding the verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Sparks Reg’l Med. Ctr. v. Smith, 63 Ark. App. 131, 976 S.W.2d 396 (1998). When reviewing the denial of a motion for directed verdict, we affirm if the jury’s verdict is supported by substantial evidence. Wal-Mart Stores, Inc. v. Binns, 341 Ark. 157, 15 S.W.3d 320 (2000); Wal-Mart Stores, Inc. v. Williams, 71 Ark. App. 211, 29 S.W.3d 754 (2000). The same standard applies when we review the denial of a motion for judgment notwithstanding the verdict. Home Mut. Fire Ins. Co. v. Jones, 63 Ark. App. 221, 977 S.W.2d 12 (1998). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture. Id. On appeal, only the evidence favorable to the appellee, and all reasonable inferences therefrom, will be considered. Id. In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993). The appellate court does not try issues of fact. City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000).
We will not reverse the denial of a motion for new trial if the verdict is supported by substantial evidence, giving the jury verdict the benefit of all reasonable inferences permissible under the proof. St. Louis S.W. Ry. Co. v. Grider, 321 Ark. 84, 900 S.W.2d 530 (1995). In determining whether the evidence is substantial, the court need only consider the evidence on behalf of the appellee and that part of the evidence that is most favorable to the appellee. Dixon Ticonderoga Co. v. Winburn Tile Mfg. Co., 324 Ark. 266, 920 S.W.2d 829 (1996).
Appellant attempted to prove that his deed included the land in dispute and, in the alternative, that he acquired it through an agreement as to the boundary, by acquiescence, or by adverse possession. Appellant argues that the jury’s finding that he does not own the disputed property is not supported by substantial evidence.
Acquiescence
As we stated in Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993), boundaries are frequently found to exist at locations other than those shown by an accurate survey of the premises in question and may be affected by the concepts of acquiescence and adverse possession. A fence, by acquiescence, may become the accepted boundary even though it is contrary to the surveyed line. Id. When adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence fine becomes the boundary by acquiescence. Id. It is not required that there be an express agreement to treat a fence as a dividing line; such an agreement may be inferred by the actions of the parties. Id. Acquiescence need not occur over a specific length of time, although it must be for a long period of time. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). A boundary line may be established by acquiescence whether or not it has been preceded by a dispute or uncertainty as to the boundary line. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). When a boundary line by acquiescence can be inferred from other facts presented in a particular case, a fence line, whatever its condition or location, is merely the visible means by which the acquiesced boundary line is located. Id. Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Hedger Bros. Cement and Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000).
Boundary-Line Agreement
For there to be a valid boundary-line agreement, certain factors must be present: (1) there must be an uncertainty or dispute about the boundary line; (2) the agreement must be between the adjoining landowners; (3) the line fixed by the agreement must be definite and certain; (4) there must be possession following the agreement. Fields v. Griffen, 60 Ark. App. 186, 959 S.W.2d 759 (1998).
Adverse Possession
In order to establish title by adverse possession, appellant had the burden of proving that he had been in possession of the property in question continuously for more than seven years and that the possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 165 (1999). Whether possession is adverse to the true owner is a question of fact. Id. Where possession of property is by permission, title is not acquired by adverse possession. McCulloch v. McCulloch, 213 Ark. 1004, 214 S.W.2d 209 (1948). Where the original entry on another’s land was amicable or permissive, possession presumptively continues as it began, in the absence of an explicit disclaimer. Terral v. Brooks, 194 Ark. 311, 108 S.W.2d 489 (1937).
The Testimony
At trial, appellant testified that he and Otto Schmidt, one of appellees’ predecessors in title, agreed in 1965 that the old fence line was the boundary. He said that, over the years since that time, he had bush-hogged the land in dispute, used it as pasture land, and planted grass there without asking anyone’s permission to do so. However, appellant emphatically stated that he believed the land in dispute to be in the southwest quarter of Section 12 and denied having any claim to land in the southeast quarter.
Appellees did not dispute appellant’s use of the land. Nevertheless, they presented testimony demonstrating that he used it with their permission. Appellee Edward Gangluff testified that he had permitted appellant to graze cattle on the land and to cut hay there. He said that, on four or five occasions, appellant had acknowledged the need to eventually move the fence to the true boundary fine. He also stated that he had used the old fence to contain cattle and that he had never considered it as the boundary fine. Appellee Johnny Schmidt testified that his father, Otto Herman Schmidt (Otto Schmidt’s son), had shown him the true boundary west of the old fence fine. He said that, when he was eleven years old (he was sixty-three at the time of trial), the ends of the actual boundary line were marked by an old buggy axle and a steel pin. Appellee Margaret Gangluff testified that a steel pipe has marked the boundary since at least 1956, when she married into the family. She also stated that the old fence had been used to control cattle and that she had never considered it to be the actual boundary line. Appellee Karl Schmidt also testified that the old fence line had not been accepted as the boundary. Appellee David Gangluff stated that he had heard appellant acknowledge that the old fence was not on the true boundary line and that it would need to be straightened out someday with a survey.
Based on this testimony, there was more than substantial evidence for the jury to find that appellant failed to establish adverse possession, acquiescence, or a boundary by agreement.
Title By Deed
The parties relied on their deeds to establish their rights in the disputed land. The location of a boundary line is a question of fact. Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999); Lammey v. Eckel, supra. A trial court may not substitute its own view of the evidence for that of the jury. Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989). The jury is the sole judge of the credibility of the witnesses and the weight and value of their evidence and may believe or disbelieve the testimony of any one or all of the witnesses, even though such evidence is uncontradicted or unimpeached. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994); Morton v. American Med. Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985). The jury is free to assess a party’s credibility and to determine whether or not to believe him or her. State Auto Prop. and Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999).
Both sides presented expert testimony to support their claims. As discussed above, appellant admitted that he did not claim any land in the southeast quarter of Section 12. Appellant offered the testimony of Steve Beadle, a surveyor, who testified that the Government Land Office (GLO) had completed the original survey of this section in 1818. He said that the old fence line is close to where the quarter-section line would be if the GLO measurements are followed and that the boundary fine claimed by appellees is not accurate. According to Mr. Beadle, the quarter-section fine lies approximately sixty-eight feet east of where appellees’ experts have located it. He said that, according to the GLO’s measurements, the disputed area lies within the southwest quarter of the section, in the land owned by appellant.
Appellees offered the expert testimony of James Bagwell, a surveyor, and John Pownall, a civil engineer and surveyor. They stated that Mr. Bagwell performed a survey and, based on the information he provided, Mr. Pownall determined the boundary lines. They stated that the land in dispute is within the southeast quarter-section and agreed that appellant does not own it.
Appellant attacks the reliability of Mr. Bagwell’s and Mr. Pownall’s testimony and asserts that they did not follow the GLO’s measurements. However, both men testified that they had consulted the GLO measurements and had found them to be less than accurate and refiable. It is true that the original United States Government survey is prima fade correct and that surveys must conform as nearly as possible with the original survey. Dicus v. Allen, 2 Ark. App. 204, 619 S.W.2d 306 (1981). Nevertheless, the weight and effect of the original survey is a question of fact. See Horne v. Howe Lumber Co., 209 Ark. 202, 190 S.W.2d 7 (1945). The supreme court has recognized that errors could have been made in an original government survey. See Missouri Pac. R.R. Co. v. State, 197 Ark. 1111, 127 S.W.2d 133 (1939).
Obviously, the jury did not believe Mr. Beadle’s testimony that the disputed land lies within the southwest quarter-section, nor was it required to do so. Gibson Appliance Co. v. Nationwide Ins. Co., 341 Ark. 536, 20 S.W.3d 285 (2000). The jury’s finding that appellant does not own the disputed land is supported by substantial evidence. Accordingly, the trial judge did not err in refusing to set the verdict aside.
Purported Irregularities at Trial
Appellant also argues that he is entitled to a new trial because of irregularities that occurred at trial. See Ark. R. Civ. P. 59(a)(1). A decision on whether to grant or deny a motion for new trial lies within the sound discretion of the trial judge. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). We will not reverse a trial judge’s order denying a new trial unless there is a manifest abuse of discretion, that is, discretion exercised thoughtlessly and without due consideration. Montgomery Ward & Co. v. Anderson, 334 Ark. 561, 976 S.W.2d 382 (1998).
Appellant contends that the trial judge unfairly prejudiced the jury by commenting that he might need to reduce an exhibit in size for the supreme court. We do not agree. Obviously, the reduction of the exhibit for the record on appeal would benefit all parties, regardless of who appeals. We see no prejudice in the trial judge’s remarks. Further, appellant did not raise an objection about the remarks at trial. A judge’s allegedly biased or harsh remarks are not subject to appellate review if the appellant failed to object to those statements or move for the judge’s recusal. Dodson v. Allstate Ins. Co., supra. This is true even if the matter was raised in a motion for new trial. Id.
Arkansas Rule of Evidence 615
Appellant also argues that the trial judge should not have limited his cross-examination of Mr. Bagwell about his admission that he had, during a break in the trial, discussed Mr. Beadle’s testimony with one of appellees’ attorneys. Arkansas Rule of Evidence 615 governs the exclusion of witnesses from the courtroom so that they may not hear the testimony of other witnesses. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). This rule is a valuable tool for discouraging and exposing fabrication, inaccuracy, and collusion and is a means of insuring that a witness’s testimony will not be influenced by the testimony of other witnesses. Bayless v. State, 326 Ark. 869, 935 S.W.2d 534 (1996). There is a line that exists between perfectly acceptable witness preparation on the one hand and impermissible influencing of the witness on the other hand. Id. Trial lawyers, in the course of preparing their witnesses, must not indicate specifically what other witnesses have testified. Id. However, attorneys are entitled to talk with witnesses before placing them upon the witness stand and to indicate the general nature of prior witnesses’ testimony. Id. Whether an attorney violates Rule 615 in the course of preparing a witness must be determined on a case-by-case basis. Id.
The three possible methods of enforcement available to the trial judge when a violation of the sequestration rule has occurred are: (1) citing the witness for contempt; (2) permitting comment on the witness’s noncompliance in order to reflect on her credibility; (3) refusing to allow her to testify. Lowe v. Ralph, 61 Ark. App. 231, 966 S.W.2d 283 (1998). A violation of the witness-exclusion rule is a matter that goes primarily to credibility — not competency. Martin v. State, 22 Ark. App. 126, 736 S.W.2d 287 (1987). Even if there has been a clear violation of Rule 615, the trial judge does not abuse his discretion in permitting the witness’s testimony when exercising his option of allowing comment on the witness’s violation in order to reflect on his credibility. Swanigan v. State, 316 Ark. 16, 870 S.W.2d 712 (1994). Indeed, the trial judge’s discretion is more readily abused by excluding the testimony than by admitting it. Id.
The record discloses that the trial judge permitted appellant’s attorney to comment extensively on this alleged violation of Rule 615. Therefore, even if appellees’ counsel violated the rule, the error was cured and provides no basis for a new trial. Error is no longer presumed to be prejudicial; unless the appellant demonstrates prejudice, we will not reverse. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998); Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993).
Malicious Prosecution
Appellant also contends that the trial judge erred in granting summary judgment to appellees on his malicious-prosecution claim. In summary-judgment cases, we need only decide if the granting of summary judgment was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). Summary judgment is no longer considered a drastic remedy but is regarded simply as one of the tools in the trial court’s efficiency arsenal. See Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Inge v. Walker, supra. On a summary-judgment motion, once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Welch Foods, Inc. v. Chicago Title Ins. Co., 341 Ark. 515, 17 S.W.3d 467 (2000).
An allegedly malicious prosecution can be a civil proceeding. Carmical v. McAfee, 68 Ark. App. 313, 7 S.W.3d 350 (1999). The essential elements of malicious prosecution are: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice on the part of the defendant; (5) damages. McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). Where the defendant makes a full, fair, and truthful disclosure of all the facts known to him before competent counsel and then acts bona fide upon such advice, this will be a complete defense to a claim of malicious prosecution. Id.; Machen Ford-Lincoln-Mercury, Inc. v. Michaelis, 284 Ark. 255, 681 S.W.2d 326 (1984).
In Carmical v. McAfee, supra, we explained that whether probable cause was lacking may be decided by way of summary judgment:
Proof of absence of probable cause is an essential element in a claim for malicious prosecution. Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, supra; Smith v. Anderson, 259 Ark. 310, 532 S.W.2d 745 (1976). ... In the context of malicious prosecution, probable cause means such a state of facts or credible information which would induce an ordinarily cautious person to believe that his lawsuit would be successful. See McLaughlin v. Cox, supra; Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995). ... In order to have a probable-cause basis to file a lawsuit, a person need only have the opinion that the chances are good that a court will decide the suit in his favor. RESTATEMENT (SECOND) OF TORTS § 675 comment (f) at 460 (1977). The question is not whether the person is correct in believing that his complaint is meritorious, but whether his opinion that his complaint is meritorious was a reasonable opinion. Id. A person need have only a reasonable opinion that his complaint is meritorious because, “[t]o hold that the person initiating civil proceedings is hable unless the claim proves to be valid would throw an undesirable burden upon those who by advancing claims not heretofore recognized nevertheless aid in making the law consistent with changing conditions and changing opinions.” Id. A person’s refusal to believe an improbable explanation from someone that he subsequently sues does not amount to substantial evidence that he lacked probable cause to file the lawsuit. See Kroger Co. v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984). The issue of lack of probable cause in a malicious-prosecution case may be decided as a matter of law on summary judgment only if both the facts relied upon to create probable cause and the reasonable inferences to be drawn from the facts are undisputed. Harmon v. Carco Carriage Corp., supra; Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993).
68 Ark. App. at 321-22, 7 S.W.3d at 356-57.
In his affidavit in support of the motion for summary judgment, attorney Hugh Brown stated:
1. That Karl W Schmidt, Tanas N. Schmidt, Johnny Melvin Schmidt, Edward Bass Gangluff, Margaret Hodge Gangluff, David S. Gangluff Ronald Gangluff Wrenetta Sue Schmidt Ritchie, Jerry Ritchie retained my services to defend the above styled Circuit Court action.
2. That my clients disclosed to me all pertinent facts and papers, including deeds and surveys, regarding ownership of the disputed property. The information disclosed was essentially identical to the information that was testified to or introduced at the trial on allegations of ejectment, trespass and slander of title.
3. That based upon the information disclosed during my meetings with my clients I advised that a Petition to Quiet Title and for Injunction in the Chancery Court of Pulaski County should be filed.
4. That I filed said Petition to Quiet Tide and for Injunction on behalf of Karl W Schmidt, Tanas N. Schmidt, Johnny Melvin Schmidt, Edward Gangluff Margaret Gangluff, David Gangluff and Ronald Gangluff.
Additionally, appellee Ronald E. Gangluff stated in his affidavit:
1. That Karl W Schmidt, Tanas N. Schmidt, Johnny Melvin Schmidt, Edward Bass Gangluff Margaret Hodge Gangluff David S.Gangluff, Wrenetta Sue Schmidt Ritchie, Jerry Ritchie and myself retained Hugh Brown to defend in the above styled Circuit Court action.
2. That all pertinent facts and papers, including deeds and surveys, regarding ownership of the disputed property were disclosed to High [sic] Brown. The information disclosed was the same information that was testified to or introduced at the trial on allegations of ejectment, trespass and slander of title.
3. That based upon the information disclosed to Hugh Brown, he advised that a Petition to Quiet Tide and for Injunction in the Chancery Court of Pulaski County should be filed.
4. That said Petition to Quiet Title and for Injunction was filed on behalf of Karl W Schmidt, Tanas N. Schmidt, Johnny Melvin Schmidt, Edward Gangluff, Margaret Gangluff, David Gangluff and myself by Hugh Brown, attorney of record.
5. That at all times I maintained a belief that the Petition to Quiet Tide was meritorious.
6. That the Chancery Court action was filed upon the advise [sic] of my personal counsel.
The other appellees filed affidavits to the same effect.
Appellant argues that the trial judge erred in granting summary judgment to appellees before they answered appellant’s interrogatories regarding the malicious-prosecution claim. Rule 56(f) provides that, when a party opposing the motion demonstrates by affidavit that he cannot present facts essential to justify his opposition, the court may refuse the application for summary judgment or order a continuance to permit further discovery. However, the decision on whether to grant a continuance is a matter of discretion with the trial judge. See Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994). If the appellant cannot demonstrate how additional discovery would have changed the outcome of the case, we cannot say that the trial judge abused his discretion. Id.
There is no question that appellant failed to rebut appellees’ proof with proof. Further, appellant has not demonstrated how additional discovery would have altered the outcome of this claim. Given appellant’s lack of diligence in seeking this discovery, we cannot say that the trial judge abused his discretion in refusing to delay his decision on the motion for summary judgment.
Affirmed.
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JOHN E. Jennings, Judge.
Appellant Northeast Arkansas Internal Medicine Clinic appeals from an order of summary judgment and the dismissal of its subsequently filed amended complaint. Appellee Jason Casey, M.D., cross-appeals from the denial of his motion to dismiss appellant’s amended answer to his counterclaim. On direct appeal, we affirm the grant of summary judgment and reverse the dismissal of appellant’s amended complaint. On cross-appeal, we affirm the refusal to dismiss appellant’s amended answer.
Appellant is a professional corporation that provides medical services in the state of Arkansas. Appellee is a duly licensed physician. On March 31, 1995, appellant and appellee executed an employment contract wherein appellee agreed to practice medicine for appellant. Section 6.1 of the agreement established the manner in which appellee would be compensated for his services as follows:
Base and Incentive Compensation. For all services rendered by the Physician under this Agreement in whatever capacity rendered, the physician shall have and receive remuneration computed as follows: (1) Commence with the gross charges for patient services performed by the Physician, reduced by (2) adjustments to such charges for Medicare, Medicaid, and other write-offs, professional courtesies, and non-collectibles, which shall result in a determination of adjusted charges; (3) adjusted charges applicable to the Physician shall be compared to the amount of adjusted charges attributable to all physicians of the Clinic to determine the fraction thereof; and (4) said fraction shall be multiplied times the net income of the Clinic, which shall be defined for this purpose as the total annual revenues of the Clinic, less all non-physician expenses and less payments made to physician employees whose compensation is a salary plus bonus based on adjusted charges, and the resulting amount shall equal (5) the amount of total compensation to be paid during the employment term. Of said amount, the Physician shall receive a gross salary of $6,250 per month, payable on the last day of each month, less appropriate payroll deductions for taxes and other withholdings, and the remainder of the total compensation shall be paid during the course of the term in bonus compensation and fringe benefits. . . .
For approximately four years following execution of the contract, appellee received his fixed monthly salary without fail, though he often did not produce enough revenue to cover his salary. By April 1999, however, when the amount paid to him as salary had exceeded the earnings he generated based on the contractual formula by $71,825.21, appellant told appellee that it expected repayment of the money. At that point, appellee tendered his resignation, effective July 28, 1999. Part of his May through July salary was applied to the deficit, reducing it to $66,937.25.
On September 23, 1999, appellant sued appellee to recover $66,937.25, and appellee counterclaimed for three months of unpaid salary. Following discovery, both parties moved for summary judgment and agreed that no genuine issues of material fact remained to be tried. In its motion, appellant contended that the employment agreement had consistently been applied in such a way that, if a physician’s compensation, as calculated by the contractual formula, was less than his salary draw, the deficit amount would be owed by the physician to appellant. Appellee argued that, because the contract did not mention that such deficits would be reimbursed from a physician’s monthly salary, the contract was ambiguous, requiring it to be construed against appellant, the drafter. Attached to appellant’s motion was the affidavit of Robert Taylor, M.D., a shareholder, director, and physician-employee of appellant. Dr. Taylor stated that the physicians who practiced medicine as employees of appellant were also shareholders and directors, and the compensation formula set out in Section 6.1 was an income distribution plan designed to allow the physicians to share in the company’s profits in accordance with the revenues they generated. Taylor further stated that, if a physician’s compensation as calculated by the formula in Section 6.1 was less than his monthly draw, the physician would repay the deficit from his future earnings. As an example of this, Dr. Taylor mentioned two occasions on which appellee had paid appellant $8,103.44 and $1,000 to cover deficits. However, attachments to appellee’s motion showed that those amounts were recouped not from appellee’s salary but from bonuses that were due him.
On July 5, 2000, the trial judge entered summary judgment in favor of appellee. He found that Section 6.1 was ambiguous in that it did not set forth the parties’ rights in the event an employee did not produce enough revenue to cover his salary. Based on that finding, he construed the contract against appellant and ruled that appellant was not entitled to recoup any deficits from appellee. The order left standing appellee’s counterclaim for three months’ unpaid salary.
On August 23, 2000, several weeks after summary judgment had been entered, appellant filed an amended complaint alleging that appellee had breached the employment contract by failing to perform certain administrative duties. According to the complaint, appellee’s failure to submit certain billing documents cost appellant at least $40,000, and judgment was sought for that amount. Appel-lee’s alleged breach was also set forth by appellant in an amended answer as a defense to appellee’s counterclaim. Appellee moved to dismiss the second amended complaint and the amended answer on the ground of res judicata. He argued that appellant’s allegations regarding breach of administrative duties could have been litigated prior to the entry of summary judgment on July 5, 2000. The trial judge agreed that res judicata precluded appellant from seeking damages on the breach-of-contract claim and dismissed the second amended complaint. However, he refused to dismiss appellant’s amended answer and let the alleged breach stand as a defense to appellee’s counterclaim. Appellant now appeals the entry of summary judgment and the dismissal of its second amended complaint. AppeÜee cross-appeals the trial court’s refusal to dismiss appellant’s amended answer.
Appellant first argues that the trial court erred in entering summary judgment in favor of appellee. In most summary-judgment cases, we need only decide if the grant of summary judgment was appropriate, considering whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. See Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). However, in a summary-judgment matter where the parties agree on the facts, as the parties do in this case, we simply determine whether appellee was entitled to judgment as a matter of law. Jackson v. City of Blytheville, 345 Ark. 56, 43 S.W.3d 748 (2001).
Section 6.1 of the parties’ contract provides that appellee shall receive as compensation a percentage of appellant’s net income in proportion to the revenue he generates. For example (using a simplified version of the formula), if appellant’s net income over an applicable period were $3,000,000 and appellee generated one percent of that revenue, his compensation would be $30,000. If, during that period, he had received a salary of $25,000, he would be entitled to a $5,000 bonus under the clear terms of the contract. However, the contract is silent as to what would occur if appellee received a $25,000 salary, yet only $20,000 of the revenue was attributable to him.
The contract’s silence on that matter makes this case similar to Carter Construction Co. v. Sims, 253 Ark. 868, 491 S.W.2d 50 (1973). There, Carter employed Sims as a superintendent on three construction jobs. He agreed to pay Sims forty-nine percent of the net profit on the jobs and to “advance” Sims $3,000 per month until the jobs were completed, whereupon the advances would be deducted from the net profits due Sims. The agreement mentioned nothing about a refund of advances in the event no profits were realized. In a subsequent lawsuit between the two men, a jury found that Sims was not entitled to any lost profits but was entitled to his $3,000-per-month salary for the duration of the jobs. On appeal, the supreme court quoted numerous authorities to the effect that, unless the parties agree otherwise, a drawing account is treated by the courts as a guaranteed minimum compensation, and an excess of advances cannot be recovered by the employer.
We agree with the trial court that Carter prevents appellant’s recoupment of salary payments for the purpose of offsetting appellee’s production deficit. As in Carter, the parties here made no agreement for recoupment in the event that appellee failed to generate sufficient revenues to cover his salary. Therefore, appellee’s salary must be treated as being owed to him regardless of the amount of revenues attributable to him. Appellant attempts to distinguish Carter on the basis that it involved a master-servant relationship while this case involves a profit sharing relationship among professionals. The distinction makes no difference in this case. Appellee was an employee of appellant, under the express terms of the contract and, like the employee in Carter, was compensated by a salary against a percentage of the profits.
Appellant also argues that if a physician is permitted to receive his full salary despite his deficient production, the unfair result will be that the high-revenue producers among the physicians will be subsidizing those who do not produce. Clearly, appellant as the drafter of the agreement could have avoided this result by including a provision to cover the possibility that a physician’s revenues might be inadequate to meet his salary. Instead, the contract is silent on this point. In Lee v. Hot Springs Village Golf School, 58 Ark. App. 293, 951 S.W.2d 315 (1997), we held that silence on such a matter renders a contract ambiguous, a holding echoed by the trial judge in this case. The judge resolved the ambiguity in favor of appellee, and there is ample basis for his having done so. It was proper for him to construe the contract against appellant as the party who drafted it. See Bradley v. Arkansas La. Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983). It is also noteworthy that appellee’s salary was not reduced to recover a deficit during the entirety of his employment, even though deficits often existed. Such a course of dealing and the parties’ own construction of the contract are relevant to resolve an ambiguity. See generally Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998); Arkansas Power & Light v. Thompson, 191 Ark. 171, 83 S.W.2d 838 (1935). Although appellant argues that appellee’s reduction in bonus compensation evidences an understanding that deficits could be recouped, the fact that no recoup-ments were made from appellee’s salary supports the trial court’s ruling. We affirm the trial court’s grant of summary judgment in favor of the appellee.
Next, appellant contends that the trial court erred in dismissing its second amended complaint on the ground of res judicata. The doctrine of res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999).
The trial court held that its interlocutory ruling granting summary judgment precluded appellant from asserting other claims during the pendency of the same lawsuit. We hold that under these circumstances the doctrine of res judicata does not apply. Only a final judgment on the merits may be given a preclusive effect. See Looney v. Looney, 336 Ark. 542, 986 S.W.2d 858 (1999) (holding that the application of res judicata to further proceedings in the same lawsuit appears inappropriate). The summary judgment granted by the trial court was not a final judgment and could even have been reconsidered had the court so desired. See Stewart Title Guar. Co. v. Cassill, 41 Ark. App. 22, 847 S.W.2d 465 (1993). It follows that the dismissal of appellant’s second amended complaint was error.
The same reasoning applies to appellee’s contention on cross-appeal that res judicata should have precluded appellant from filing an amended answer to the counterclaim. The amended answer was not barred by res judicata, and the trial judge was correct in allowing it to stand.
Affirmed in part and reversed and remanded in part on direct appeal; affirmed on cross-appeal.
Hart, J., agrees.
Bird, J., concurs.
Although the court’s order was not final because it left pending appellee’s counterclaim, the court set forth sufficient reasons, pursuant to Ark. R.. Civ. P. 54(b), to allow for immediate appeal.
There are circumstances in which a contract provision, even though ambiguous, may be interpreted as a matter of law. See Smith v. Prudential Prop. & Cas. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). Here, the parties agree that there is no genuine issue of material fact remaining, and there is no dispute as to the facts as contained in the discovery pleadings and attachments to the parties’ motions. | [
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ANDRBE LAYTON Roaf, Judge.
Lawyers Surety Corporation (“Lawyers Surety”) appeals from a circuit court order reversing a determination by the Director of the Arkansas State Police Used Motor Vehicle Administration (UMVA). The UMVA had found Lawyers Surety not liable to appellee George Flowers for his claim against a bond it had written in connection with the issuance of a used-car-dealer license to Denver Haus; Flowers prevailed in the appeal of the UMVA decision to circuit court. On appeal, Lawyers Surety argues 1) that the trial court exceeded the scope of review of administrative agency cases; 2) that the trial court erred in finding that there was sufficient evidence to revoke or suspend Haus’s used-car-dealer license; and 3) that the UMVA erred in finding that it could not raise the issue of whether a partnership existed between Flowers and Haus. Appellee George Flowers cross-appeals and argues that because Lawyers Surety wrongfully refused to pay him insurance benefits, the trial court erred in denying him attorney fees and penalties pursuant to Ark. Code Ann. § 23-79-208 (1999). We reverse the circuit court’s ruling on direct appeal, and, consequently, the cross-appeal is moot and need not be addressed.
The following facts that gave rise to Flowers’s claim against Lawyers Surety are based primarily upon allegations made by Flowers against Haus, and are not disputed by either party. In 1987, George Flowers and Denver Haus agreed to start a partnership business called Star Body Shop and Auto Sales, to purchase, repair, and resell cars. However, Flowers and Haus did not put their agreement in writing. Each man agreed to contribute an initial payment of $5,000 to the partnership. Haus was unable to contribute his share, so Flowers took a promissory note in exchange for his contributing additional money to the partnership.
On December 8, 1987, Haus applied to Lawyers Surety for a Used Motor Vehicle Dealer’s Bond, which is required by Ark. Code Ann. § 23-112-607(b)(2) (2001), in order to obtain a used- car-dealer license. Star Body Shop was listed as the bond principal. On December 12, 1987, Haus applied for a used-car-dealer license. This application listed Haus and Flowers as partners in Star Body Shop. However, Flowers’s name was crossed out on the application. Haus and Flowers then leased a building and opened a partnership account in which both were authorized signators. During the initial weeks of operation, Flowers contributed additional capital to the partnership. By February 1988, Flowers suspected Haus of making unauthorized withdrawals from the partnership account and of stealing car titles. Haus had also failed to make any payments toward Flowers’s initial loan.
As a result of the disagreement, Haus established a new dealership just down the street from Star Body Shop and Auto Sales. Haus failed to transfer the license to the new dealership. Flowers attempted to operate the original dealership; however, Lawyers Surety refused to transfer the bond for Star Body Shop as it claimed that it lacked notice of a partnership. Flowers was later added to the bond as a co-principal.
During that same year, 1988, Flowers sued Haus for breach of contract and conversion of partnership funds, and was granted a default judgment for over $21,000. After Lawyers Surety refused to pay the judgment, Flowers sued it in Faulkner County Circuit Court in 1991, but apparently did not obtain a judgment in this action. Flowers next attempted to pursue his claim through the Arkansas Motor Vehicle Commission, and eventually filed a claim with the UMVA in 1998, where he was granted a hearing on his claim on August 4, 1998.
The UMVA hearing officer found in favor of Lawyers Surety, and Flowers appealed the decision to circuit court. The circuit court reversed the decision of the UMVA and found in pertinent part that Haus had willfully committed fraud against Flowers, that such a violation of the law constituted ground for suspension or revocation of Haus’s Star Body Shop license, and that the surety bond issued by Lawyers Surety was meant to comply with provisions of Ark. Code Ann. § 23-112-302(c)(3) (2001), by indemnifying “for any loss sustained by any person by reason of the acts of the licensees bonded when such acts constituted grounds for the suspension or revocation of the license.” The trial court ordered Lawyers Surety to pay Flowers $25,000, the amount of the bond, as his total loss, including interest and costs, exceeded the amount of the bond. However, the trial court denied Flowers’s request for attorney’s fees. From that decision comes this appeal and cross-appeal.
In an appeal from a circuit court’s decision regarding a ruling made by an administrative agency, the appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Files v. Arkansas State Highway & Transp. Dep’t, 325 Ark. 291, 925 S.W.2d 404 (1996). Our review of administrative decisions is limited in scope. Due deference is afforded to decisions of the administrative agency. Culpepper v. Board. of Chiropractic Exam., 343 Ark. 467, 36 S.W.3d 335 (2001). Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id. With these standards in mind, we address the arguments raised by Lawyers Surety on direct appeal.
Lawyers Surety argues that the trial court erred in reversing the decision of the administrative agency when it found in favor of Flowers and ordered payment of $25,000 to Flowers. It argues that the trial court exceeded the scope of its review of the UMVA because the administrative agency’s decision was supported by substantial evidence and was not made arbitrarily or capriciously, and also argues that the agency’s decision should be upheld because it was supported by substantial evidence. These arguments have merit.
The hearing officer found that Ark. Code Ann. § 23-112-308 (1987) places certain duties on used-car dealers as a means of protecting the public and manufacturers from fraudulent acts of car dealers, but does not create obligations to general creditors or used-car dealers’ business partners. When Flowers’s claim arose in 1987, Ark. Code Ann. § 23-112-308 (1987), entitled “Denial, Revocation, and Suspension,” stated in pertinent part:
(a) the commission may deny any application for a license or revoke or suspend a license after it has been granted, for any of the following reasons:
(1) On satisfactory proof of the unfitness of the applicant or licensee in any application for license under the provisions of this chapter;
(2) For fraud practiced or any material misstatement made by an applicant in any application for license under the provisions of this chapter;
(3) For any willful failure to comply with any provision of this chapter or with any rule or regulation promulgated by the commission under authority vested in it by this chapter;
(4) Change of condition after license is granted or failure to maintain the qualifications for license;
(5) Continued or flagrant violation of any of the provisions of this chapter or of any of the rules or regulations of the commission;
(6) For any willful violation of any law relating to the sale, distribution, or financing of motor vehicles;
(7) Willfully defrauding any retail buyer to the buyer’s damage;
(8) Willful failure to perform any written agreement with any retail buyer;
(9) Being a manufacturer who fails to specify the delivery and preparation obligations of its motor vehicle dealers, as is required for the protection of the buying public, prior to delivery of new motor vehicles to retail buyers;
(10) On satisfactory proof that any manufacturer, distributor, distributor branch, or division, or factory branch or division has unfairly and without due regard to the equities of the parties or to the detriment of the public welfare failed to properly fulfill any warranty agreement or to adequately and fairly compensate any of its motor vehicle dealers for labor, parts, or incidental expenses incurred by the dealer with regard to factory warranty agreements performed by the dealer;
(11) For the commission of any act prohibited by §§ 23-112-301 — 307, 23-112-402 — 403, or the failure to perform any of the requirements of those sections;
(12) Using or permitting the use of special license plates assigned to him for any other purpose than those permitted by law;
(13) Disconnecting, turning back, or resetting the odometer of any motor vehicle in violation of state and federal law;
(14) Accepting an open assignment of title or bill of sale for a motor vehicle which is not completed by identifying the licensee as the purchaser or assignee of the motor vehicle;
(15) Failure to notify the commission of a change in ownership, location, or franchise, or any other matters the commission may require by regulation. The notification shall be in written form and submitted to the commission at least fifteen (15) days prior to the effective date of the change;
(16) Failure to endorse and deliver an assignment and warranty of tide to the buyer pursuant to § 27-14-902.
Arkansas Code Annotated section 23-112-302(c)(4) (1987) provided that the corporate surety bond be executed in the “name of the State of Arkansas for the benefit of any aggrieved party. ” Ark. Code Ann. § 23-112-302(c)(4) (1987). (Emphasis added.) Likewise, Ark. Code Ann. § 23-112-302(c)(3) (1987) provided that the bond covers “any loss sustained by any person” due to acts of the licensee that would subject the licensee to suspension or revocation of his license. (Emphasis added.) The circuit court based its reversal of the agency decision primarily upon this statutory provision.
However, the hearing officer found that the statutorily-mandated bond only protects manufacturers and the general public from fraudulent actions by the dealer, and we agree. Section 23-112-308(a) makes specific references throughout to retail buyers in the context of protecting them from fraud or non-performance by licensed car dealers. In fact, used-motor-vehicle dealers were brought within the ambit of the motor vehicle dealers statutory and licencing scheme by Act 1032 of 1985, in which the emergency clause provided in pertinent part:
It is hereby found and determined by the General Assembly that neither the Arkansas Motor Vehicle Commission nor other board or commission presendy have power to license and regulate dealers, salesmen, wholesalers who deal in used motor vehicles, motor vehicles lessors or auto auctions and that authority to regulate the aforesaid functions of the motor vehicle industry is necessary to prevent and remedy public injury in motor vehicle transactions.
(Emphasis added.) Moreover, it is well settled that we may also consider subsequent amendments to statutes as evidence of legislative intent. Bourne v. Bd. of Trustees, 347 Ark. 19, 59 S.W.3d 432 (2001); Arkansas County v. Desha County, 342 Ark. 135, 27 S.W.3d 379 (2000); Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). In this regard, there were several pertinent amendments enacted after Flowers’s claim arose in 1987. In the subchapter entitled “Used Motor Vehicle Buyers Protection,” the following 1993 legislative declaration is found in Ark. Code Ann. § 23-112-601 (Supp. 1999):
(a) The General Assembly hereby declares that the public interest is affected by the sale and distribution of used motor vehicles, and it is recognized that a significant factor of the inducement in making a sale of a used motor vehicle to a member of the general public is the trust and confidence of the purchaser in the retail dealer from whom the purchase is made, with the expectancy that the dealer will remain in business to stand behind and provide service for the motor vehicle purchased.
(b) It is therefore found to be necessary to license used motor vehicle dealers, and to prohibit certain acts and set penalties for violations and perpetration of certain acts ... in order to prevent fraud, improper impositions, and other abuses upon the citizens of this state. ...
(Emphasis added.)
Finally, Ark. Code Ann. § 23-112-607 (Supp. 1999), entitled “Dealer License,” also enacted in 1993, provides in pertinent part:
(a)(1) Persons wishing to obtain a used motor vehicle dealer’s license shall submit a fully executed application on such used motor vehicle dealer application forms as may be prescribed by the Department of Arkansas State Police.
* * *
(b) The department shall require ... (2) a corporate surety bond in the sum of at least twenty-five thousand dollars ($25,000);
* * *
(c)(2) The bond shall be an indemnity for any loss and reasonable attorney’s fees sustained by a retail buyer by reason of the acts of the person bonded when such act constitutes a violation of the law.
(Emphasis added.)
In sum, from our review of the relevant statutory language, including amendments enacted since 1987, we conclude that there is substantial evidence to support the agency’s decision that the statutory scheme, including the used motor vehicle dealer licensing requirements, was intended by the legislature to protect the public in retail transactions with used car dealers, as opposed to general creditors or business partners such as Flowers, and we reverse the circuit court’s order on this point.
Lawyers Surety also contends that the UMVA erred in finding that it was precluded from arguing to the agency the existence of a partnership between Flaus and Flowers because Lawyers Surety was unaware of the existence of the partnership at the time the bond was issued. This is clearly a contingent argument should we affirm on Lawyers Surety’s first two points, and is directed toward the agency decision rather than to the circuit court’s ruling. Consequently, because we are reversing the circuit court’s ruling on Lawyers Surety’s first arguments, we do not address this issue or the propriety of Lawyers Surety challenging both the circuit court and agency decisions in this appeal.
On cross-appeal, Flowers contends that the circuit court erred in denying his motion under Ark. Code Ann. § 23-79-208 (2001), which allows recovery of attorney’s fees when a surety or insurer wrongfully refuses to pay benefits under an insurance policy. However, this issue is moot because of our reversal of the trial court’s decision, and we need not reach it.
Reversed and dismissed.
Stroud, CJ., and Robbins, Hart, Neal, JJ„ agree.
GRIFFEN, J., dissents. | [
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John F. STROUD, Jr., Chief Judge.
This appeal concerns the forfeiture of a 1995 Ford Searcher Jamboree owned by John Brooks, a resident of Pennsylvania. The vehicle was seized by the Conway Police Department in 1997 following the arrest of the vehicle’s driver, Michael Christopher, who was allegedly using it to transport marijuana. The Faulkner County Prosecutor’s Office subsequently obtained an order forfeiting the vehicle, as Arkansas law permits when a vehicle has been used to transport a controlled substance. On appeal, Brooks contends that the forfeiture order was erroneously entered. We agree and reverse and remand, with directions to the trial court to order the immediate return of the vehicle to its owner.
The Faulkner County prosecutor began this forfeiture action in February 1997, pursuant to the uncontested forfeiture statute in effect at that time. See Ark. Code Ann. § 5-64-509 (Repl. 1997) (later repealed by Act 1120 of 1999). Uncontested forfeiture permitted a prosecutor to obtain forfeiture of a vehicle without resort to judicial process. Plowever, if, within thirty days after being notified of the seizure, the vehicle’s owner filed a notice of judicial referral, the owner became entitled to a judicial proceeding, pursuant to Ark. Code Ann. § 5-64-505 (Repl. 1997) (subsequently amended by Act 1120 of 1999). That statute required that judicial proceedings be “instituted promptly” to determine whether grounds for forfeiture existed.
John Brooks received a notice of uncontested forfeiture from the prosecutor’s office on February 28, 1997. According to the prosecutor, Brooks did not file a timely notice of judicial referral. However, the prosecutor did not execute an order of forfeiture as he could have done under the uncontested forfeiture law; in fact, he took no further action to obtain forfeiture of the vehicle until January 26, 2000. On that day, the prosecutor sought and obtained an order from the circuit court finding that Brooks’s vehicle should be forfeited. Brooks moved to set that order aside, which the court did, but the original order of forfeiture was eventually reinstated upon a finding that Brooks had not filed a notice of judicial referral. As his first point on appeal, Brooks contends that the trial court’s finding in this regard was erroneous.
A circuit court’s findings of fact will not be set aside unless they are clearly erroneous. Ark. R. Civ. P. 52(a); In re: the Matter of One 1994 Chevrolet Camaro, 343 Ark. 751, 37 S.W.3d 613 (2001). However, we do not defer to a trial judge’s ruling on a question of law. See generally Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996). We will simply reverse if the trial judge rules erroneously on a legal issue. Id.
The evidence regarding whether Brooks filed a notice of judicial referral was conflicting. However, we need not evaluate that evidence because we hold that the prosecutor’s failure to answer certain discovery propounded by Brooks resulted in an admission that Brooks filed a timely notice of judicial referral. During a March 1, 2000 hearing, Brooks presented the prosecutor with the following requests for admission:
REQUEST FOR ADMISSION NO. 4: Please admit that the correspondence of March 4, 1997, attached hereto as Exhibit “B”, is a true and correct copy of a letter of transmission accompanying the Notice of Judicial Referral and Motion to Retrieve Vehicle from [Brooks’s counsel] to the State’s representative, [Prosecutor] H.G. Foster.
REQUEST FOR ADMISSION NO. 5: Please admit that the State’s representative, H.G. Foster, Prosecuting Attorney, actually received the correspondence attached hereto as Exhibit “B”, and accompanying pleadings on or about March 4, 1997.
REQUEST FOR ADMISSION NO. 6: Please admit that the Notice of Judicial Referral attached hereto as Exhibit “C” is a true and correct copy of the Notice of Judicial Referral that was forwarded to the State’s representative H.G. Foster on March 4, 1997.
The record does not reveal that the prosecutor ever answered these requests or made any excuse for neglecting to do so. Where excusable neglect is not pleaded or proven and a response to a request for admission is not timely filed, the untimely response results in an admission. Ark. R. Civ. P. 36(a); Borg-Warner Acceptance Corp. v. Kesterson, 288 Ark. 611, 708 S.W.2d 606 (1986). In this case, the prosecutor’s unexplained failure to respond to the above-quoted requests resulted in an admission that Brooks filed a timely notice of judicial referral.
The State argues that the Rules of Civil Procedure do not apply to this forfeiture action. It cites Ark. R. Civ. P. 81, which provides that the Rules of Civil Procedure do not apply where a statute that creates a right, remedy, or proceeding specifically provides for a different procedure. Although the Rules of Civil Procedure may not have applied had the prosecutor proceeded strictly under the uncontested forfeiture statute, see Union Nat’l Bank v. Nichols, 305 Ark. 274, 807 S.W.2d 36 (1991), the prosecutor chose to invoke the judiciary’s participation by seeking a forfeiture order. The Rules of Civil Procedure do apply to judicial forfeiture proceedings. See Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996). Further, a proceeding that is not ordinarily subject to the Rules of Civil Procedure may become so once the matter is brought before a circuit court. See Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995).
Based upon the foregoing, we hold that as a result of the prosecutor’s failure to respond to requests for admission, it is deemed admitted that Brooks filed a timely notice of judicial referral. By doing so, Brooks was entitled to a judicial forfeiture proceeding, pursuant to Arkansas Code Annotated section 5-64-505. The question is whether his right to such a proceeding is governed by the version of that statute in effect at the time of the 1997 seizure or the version in effect at the time the forfeiture order was sought in 2000.
The two statutes differ considerably in that the latter version sets out very stringent time periods within which forfeiture may be accomplished (at the most, within 120 days of seizure), while the former version merely required that proceedings be “instituted prompdy.” See Ark. Code Ann. § 5-64-505(g)(3) (Supp. 2001) and Ark. Code Ann. § 5-64-505 (c) (Repl. 1997). However, we need not reach the question of which of these two statutes applies because the prosecutor did not institute forfeiture proceedings in a timely fashion under either law. Nearly three years passed between the time the prosecutor first notified Brooks of the seizure of his vehicle and the time he began forfeiture proceedings in circuit court. The record reveals no reason for this delay and, as far as we can determine, the three-year limbo between seizure and institution of forfeiture proceedings was indefensible. Obviously, the 120-day requirement of the new statute was not met. Further, the three-year delay is so great that no court could reasonably conclude, under the circumstances of this case, that proceedings were “instituted prompdy” as required by the former statute.
Because the prosecutor failed to comply with the requirements of the forfeiture law, either as it existed in 1997 or 2000, we reverse the trial court’s forfeiture order and remand the case with directions to order the immediate return of the subject vehicle to its owner.
Reversed and remanded.
Pittman and Vaught, JJ., agree.
Although such a determination might ordinarily be a question for the trial judge to decide, where the facts necessary to make a particular finding are undisputed, a question of law is presented that we may address. See J&V Restaurant Supply & Refrig., Inc. v. Supreme Fixture Co., Inc., _ Ark. App. _, _ S.W.3d _ (March 6, 2002). | [
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Olly Neal, Judge.
The Arkansas Supreme Court has remanded this appeal from the Pulaski County Circuit Court under the Administrative Procedures Act, Ark. Code Ann. §§ 25-15-201 et seq., to this court for consideration on the merits after the supreme court concluded that this court erred in dismissing the appeal. Holloway v. Arkansas State Bd. of Architects, 348 Ark. 99, 71 S.W.3d 563 (2002). We affirm in part and reverse and remand in part.
The Board of Architects (Board) imposed a civil penalty of $5,000 on the appellant, Robert Holloway, an engineer, for violation of the Board’s regulations prohibiting the practice of architecture without a license. Before the Board, appellant challenged the Attorney General’s representation of the Board due to an alleged conflict of interest, challenged the Board’s jurisdiction over him because appellant is not a licensed architect, challenged the constitutionality of Ark. Code Ann. § 17-15-203, which gives the Board the power to levy civil penalties, on the ground that the statute does not set guidelines for the Board in setting the amount of the penalty to be levied or allow the Board to take into account mitigating factors, and challenged the definition of the practice of architecture found in Ark. Code Ann. § 17-15-102, contending that it is unconstitutionally vague because it conflicts with Ark. Code Ann. §§ 17-30-101 and 17-30-104, which exempt engineers practicing within the practice of engineering from the definition of the practice of architecture. The circuit court found that the statutes were constitutional and that the Attorney General did not have a conflict of interest in representing the Board. The circuit court also found that the Board’s decision was supported by substantial evidence and was not arbitrary and capricious. The court; therefore, affirmed the Board’s decision. Appellant argues on appeal that the trial court’s decision affirming the Board is clearly erroneous. Within that point, appellant argues four sub-issue: (1) the cited statutes are unconstitutional because they are void for vagueness and as applied, (2) that the Board failed to make all necessary findings of fact, (3) that the penalty imposed on appellant is arbitrary, capricious, and an abuse of discretion, and (4) that the Attorney General should have been disqualified.
The standard of review in this area of the law is well-developed. Review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). The appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Id. The standard is consistent with the provisions of the Administrative Procedure Act, which requires that the scope of appellate review under the act be limited. Id.
The Board received a complaint from architect Timothy Yelvington concerning a warehouse/office building under construction in North Little Rock without a project architect. In this letter, Yelvington expressed his understanding that an architect was needed where the cost of a project exceeded $100,000. Yelvington also identified appellant as being responsible for this project and stated that he wished to file a formal complaint with the Board. Based on Yelvington’s letter, the Board issued an Order and Notice of Hearing, charging appellant with violating the provisions of Arkansas Code Annotated § 17-15-301 (Repl. 2001) by practicing architecture without a license. The factual allegations of the Order were that (1) appellant is not a licensed architect; (2) appellant prepared drawings and specifications for the project, a pre-engineered metal building with a dry-vit facade; (3) the approximate size of the project was 144 feet by 93 feet, with the building consisting mainly of office space with a small amount of storage; and (4) the primary purpose of the facility is for human occupancy or habitation and the cost is in excess of $100,000. The Board also set a hearing to determine whether the allegations were true.
Appellant submitted a letter in response to the Board’s inquiries, and this letter was admitted into evidence. Appellant’s letter stated that appellant had been a licensed engineer since 1966, that he had never had any problems with other design professionals, and that he considered the project to be within his proper realm of activity. He also described the project as a pre-engineered metal building “dressed-up” with a small amount of dry-vit.
There was only one witness at the hearing before the Board. John Harris, the Board’s executive director, testified that he did not consider appellant’s status as a licensed engineer because he was trying to determine whether appellant was a licensed architect. He testified that he would have proceeded with his investigation in the same manner, even if he had assumed appellant was a licensed engineer. Harris also testified that he concluded that the plans appellant drew for the project at issue were architectural in nature; the conclusion being based on the fact that the plans were for an office building rather than a manufacturing facility. Harris testified that he visited the budding site, measured the building, and saw the inside of the building. He said the inside was finished out'with walls, floors, and ceilings and that there were interior walls for offices. Harris stated that he estimated that between twenty and twenty-five percent of the building was for storage. Harris testified that he did not speak to the owner of the building. The basis for Harris’s investigation was his conclusion that the cost of the project was over $100,000. Harris concluded that this project cost over $100,000 based on calculation of the square-footage and the going rate in central Arkansas to build a metal building of between $85 and $100 per square foot. No evidence was offered on the actual cost of the project.
In its order, the Board adopted findings of fact as follows: (1) appellant is not a licensed architect; (2) appellant prepared drawings and specifications for the project, a pre-engineered metal building with a dry-vit facade; (3) the approximate size of the project was 144 feet by 93 feet, with the building consisting mainly of office space with a small amount of storage; (4) the primary purpose of the facility is for human occupancy or habitation and the cost is in excess of $100,000; and (5) the work performed by appellant was not incidental to the practice of engineering. The Board concluded that appellant’s activity fell within the definition of the “practice of architecture,” that appellant was practicing architecture without a license, and that appellant’s actions were not incidental to the practice of engineering. The Board then levied a civil penalty on appellant in the amount of $5,000. This appeal followed.
For his first sub-issue on appeal, appellant argues that the statutes defining the practice of architecture and the practice of engineering are unconstitutionally vague because of an overlap in the definition of each statute.
To attempt to precisely define and delineate the practice of architecture as distinguished from the practice of engineering would be of doubtful assistance. Barondon Corp. v. Nakawatase, 196 Cal. App. 2d 392, 16 Cal. Rptr. 472 (1961); see also Arkansas State Bd. of Architects v. Hawkins, 69 Ark. App. 250, 12 S.W.3d 253 (2000) (Neal, J., concurring in part and dissenting in part).
Arkansas Code Annotated section 17-15-301 (Repl. 2001) prohibits the practice of architecture without a license. The “practice of architecture” is defined in section 17-15-102(5)(A)(i) as the
provision of, or offering to provide, those services hereinafter described in connection with the design and construction, enlargement, or alteration of a building or group of buildings, and the space within and surrounding such buildings, which is designed for human occupancy or habitation. The services referred to include planning, providing preliminary studies, designs, drawings, specifications, and other technical submissions, and administration of construction contracts.
See also Arkansas State Bd. of Architects v. Bank Bldg. & Equip. Corp., 225 Ark. 889, 286 S.W.2d 323 (1956).
Arkansas Code Annotated section 17-15-302 (Repl. 2001) provides in pertinent part as follows:
(a) The following shall be exempt from the provisions of this chapter: (1) Professional engineers duly licensed or registered, but only insofar as concerns work incidental to engineering practice, provided such persons do not use the designation “architect” or any term derived therefrom;
(4) Residents of this state who do not use the title “architect” or any term derived therefrom, who act as designers for: . . . (C) Buildings whose total cumulative and fair market value to complete, not including site, does not exceed one hundred thousand dollars ($100,000);
(b)(2) This exception shall only apply: . . . (B) If the total cumulative and fair market value to complete the new structures will not exceed the sum of one hundred thousand dollars ($100,000).
A similar exemption is also found in § 17-15-102(5)(A)(ii).
Arkansas Code Annotated section 17-30-101 (4) (A) (Repl. 2001) provides:
(4) (A) “Practice of engineering” means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge in the mathematical, physical, and engineering sciences to services or creative work such as consultation, investigation, evaluation, planning, and design of engineering works and systems relating to the use of air, land, water, municipal and regional planning, forensic services, engineering teaching of advanced engineering subjects or courses related thereto, engineering surveys, and the inspection of construction for the purpose of assuring compliance with drawings and specifications, any of which embraces service or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, or projects including such architectural work as is incidental to the practice of engineering.
Arkansas Code Annotated section 17-30-104 (Repl. 2001) provides:
The provisions of this chapter affirm the legal authority of an engineer licensed under its provisions to provide consultation, investigation, evaluation, planning, and design of buildings intended for accommodation of equipment, vehicles, goods, and/ or processes or other utilitarian functions, with human occupancy including office space as required for the support of these functions, provided the engineer is practicing within his or her area of competency as defined by this chapter.
Section 17-15-102(5) (B) contains a similar affirmation of an engineer’s authority.
At the hearing before the Board, in briefs to the circuit court, and on appeal here, appellant attempts to argue that the statutes defining the practice of architecture and the practice of engineering are unconstitutionally vague because of an overlap in the definitions. The Assistant Attorney General representing the Board argued at the hearing that the Board did not have authority to determine whether the statutes defining the practice of architecture and the practice of engineering were in conflict with each other. The hearing officer agreed with the Assistant Attorney General. In a similar administrative agency case, Arkansas Contractors Licensing Board v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001), the Arkansas Supreme Court held that a constitutional argument was not preserved for review because Pegasus did not get a ruling on it from the board. The court held that it was well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. The court did not reach the merits of the argument.
In Arkansas Health Services Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998), the supreme court adopted the Hamilton rule. The Hamilton rule requires even constitutional issues to be raised at the Administrative Law Judge or Commission level because such issues often require an exhaustive analysis that is best accomplished by an adversary proceeding, which can only be done at the hearing level. Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982). If an agency fails to make adequate findings, the case may be remanded to the agency to correct any defects. Nesterenko v. Arkansas Bd. of Chiropractic Exam’rs, 76 Ark. App. 561, 69 S.W.3d 459 (2002). Because the Board did not rule on the constitutional issue, we remand the case to the circuit court with directions to remand to the Board for further fact finding and a ruling on the constitutional issues.
In his second sub-issue, appellant argues that the Board failed to make all necessary findings of fact. An administrative agency’s fact-finding must be limited to evidence properly included in the administrative record. The record serves as the exclusive basis for agency actions in adjudicative proceedings, as well as for judicial review purposes. See Ark. Code Ann. §§ 25-15-208(a)(6), 25-15-212(g) (Repl. 2002). The Board found that appellant’s work was not incidental to the practice of engineering. The Board’s order did not cite the evidence it relied upon in making its finding. Such a finding also requires the Board to interpret the Engineering Act to determine whether appellant’s actions fell within the definition of the “practice of engineering” found in section 17-30-101 (4) (A) and, if so, determine whether those actions come within the exception from the definition of the “practice of architecture” found in sections 17-15-102(5) and 17-15-302(a)(l). The California Court of Appeal held that reference to the act defining the practice of architecture is of no significance in ascertaining the nature and scope of the work that a registered engineer is authorized to perform. Lehmann v. Dalis, 119 Cal. App. 2d 152, 259 P.2d 727 (1953).
Appellant argues that the Board has no authority to construe the Engineering Act. However, by including the exemption for engineers engaged in work incidental to engineering practice, the Board must be able to refer to the definition of the practice of engineering and construe that definition. The Board did not make any finding on whether appellant’s actions were the practice of engineering. Section 17-30-101-(4)(A), which defines the practice of engineering, allows for the inclusion of such architectural work as is incidental to the practice of engineering.
Arkansas Code Annotated section 17-30-104 allows a licensed engineer to provide planning and design services for buildings intended for accommodation of equipment, vehicles, goods, and/or processes or other utilitarian functions, with human occupancy including office space as required for the support of these functions. Thus, the mere fact that appellant engaged in the planning and design of a building is not enough to prove that he engaged in the unauthorized practice of architecture. Harris and the Board attempted to read a limitation for projects costing less than $100,000 into the exemption for engineers. See Ark. Code Ann. § 17-15-302(b)(2). However, there is no similar limitation in the exemption found in § 17-15-102(5)(A)(ii), which provides that an engineer may practice such architectural work as is- incidental to the practice of engineering.
Other courts have considered the issue and concluded that the overlap prevents sanctions such as the one imposed in the present case. The Pennsylvania court in Rosen v. Bureau of Professional & Occupational Affairs, 763 A.2d 962 (Pa. Commw. 2000), faced a similar problem. A building owner hired a drafting company to survey a building for renovation. The drafting company hired a professional engineering firm to seal the documents necessary to obtain renovation permits. The experts before the professional licensing board testified that the project at issue was both architectural and engineering in nature. The Pennsylvania code excluded from the definition of the practice of architecture the practice of engineering except as such engineering work is incidental to the practice of architecture. The Pennsylvania code also exempted architectural work that was incidental to engineering from the definition of the practice of engineering. Acknowledging “an ongoing turf war between these two learned professions over the application of their professional disciplines to the design of buddings,” the court focused on the purpose of the statutes — to protect the public. 763 A.2d at 965.
The Pennsylvania court determined that the two statutes should be read in pari materia. Because the matter involved the area of overlap of the two professions, the architects board was not entitled to a great deal of deference, the court concluded. The Pennsylvania court criticized the architects’ board for failing to analyze whether the engineer’s work was lawfully encompassed within the practice of engineering. The practice of engineering, the court determined, permitted engineers to design buildings and the fact that the “practice of architecture encompasses the same activities does not diminish the sphere of the practice of engineering.” 763 A.2d at 969.
Other jurisdictions support the Pennsylvania position. State Board for Registration of Architects v. Jones, 289 Ala. 353, 267 So.2d 427 (1972); Lehmann v. Dalis, supra; Verich v. Florida State Bd. of Architecture, 239 So.2d 29 (Fla. Dist. Ct. App. 1970); Georgia State Bd. for Examination, Qualification and Registration of Architects v. Arnold, 249 Ga. 593, 292 S.E.2d 830 (1982); Schmidt v. Kansas Bd. of Technical Professions, 271 Kan. 206, 21 P.3d 542 (2001). In each of these cases, the respective state architects’ licensing board determined that either an engineer or a draftsman had engaged in the practice of architecture without a license. In each case, the courts determined that the statutes at issue defined the practice of these respective disciplines strictly in terms of the types of similar tasks and activities commonly employed in the design and construction of buildings and struck down the sanctions.
We remand to the circuit court with directions to remand the case to the Board for further fact-finding concerning whether appellant’s actions fell within the definition of the practice of engineering.
In his third sub-issue, appellant argues that the $5,000 civil penalty imposed by the Board was arbitrary, capricious, and an abuse of discretion because Ark. Code Ann. § 17 — 15— 203 (d)(4) (A) (i) (Repl. 2001), which authorizes the Board to levy a civil penalty not to exceed $5,000 for each violation, does not set out guidelines for the Board to determine the amount of the penalty. Because we are remanding the case, we vacate the civil penalty.
The final sub-issue presented by this appeal is the trial court’s decision not to disqualify the Attorney General from representing the Board in this proceeding. Appellant argues that the Attorney General should be disqualified from representing the Board in this case because the Attorney General also represents the State Board of Registration for Professional Engineers and Land Surveyors (“Engineer Board”) in disciplinary proceedings against engineers and, therefore, has a conflict of interest requiring disqualification in the present case.
This court reviews a trial court’s decision on whether to disqualify an attorney under the abuse-of-discretion standard. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998); Berry v. Saline Mem’l Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995). An abuse of discretion may be manifested by an erroneous interpretation of the law. Seeco, supra. The Model Rules of Professional Conduct are applicable in disqualification proceedings. Berry v. Saline Mem’l Hosp., supra; see also Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998); Saline Mem’l. Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995). Disqualification can be warranted in the absence of an ethical violation. It is an available remedy to a trial court “to protect and preserve the integrity of the attorney-client relationship.” Burnett v. Morgan, 303 Ark. 150, 155, 794 S.W.2d 145, 148 (1990). Yet, it is a drastic measure to be imposed only where clearly required by the circumstances. Burnett, supra.
By statute, the Attorney General “shall be the attorney for all state officials, departments, institutions, and agencies.” Ark. Code Ann. § 25-16-702(a) (Repl. 2002). Further, the Attorney General “shall be the legal representative of all state officers, boards, and commissions in all litigation where the interests of the state are involved.” Ark. Code Ann. § 25-16-703(a).
In addition to the Attorney General’s role as the State’s principal civil litigator, the Attorney General is obligated to give the governor, secretary of state, state treasurer, members of the general assembly and other state officials, when called upon, legal advice and formal written opinions regarding the official discharge of their duties. Ark. Code Ann. §§ 25-16-706(a)(l), (3). Thus, “[a]ll office work and advice for state officials, departments, institutions, and agencies shall be given by the Attorney General. . . .” Ark. Code Ann. § 25-16-702(b)(l).
As other courts have noted, the office of the Attorney General is a unique position. Connecticut Comm’n on Special Revenue v. Connecticut Freedom of Info. Comm’n, 174 Conn. 308, 387 A.2d 533, 537 (1978). As a member of the bar, the Attorney General is held to high standards of professional conduct. As a constitutional officer, the Attorney General has been entrusted with broad duties as the State’s chief civil law officer and is expected to discharge these public duties to the best of his or her abilities. As a lawyer, the Attorney General must by statute provide legal representation to all departments and agencies of state government.
The Model Rules of Professional Conduct contain no specific exemptions for the Attorney General and his assistants. Therefore, as a lawyer and officer of the court, the Attorney General is subject to the Model Rules of Professional Conduct. Chun v. Board of Trustees of Employees’ Ret. Sys., 87 Haw. 152, 952 P.2d 1215 (1998); Attorney General v. Michigan Pub. Serv. Comm’n, 243 Mich. App. 487, 625 N.W.2d 16 (2000); State v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001); Manchin v. Browning, 170 W.Va. 779, 296 S.E.2d 909 (1982). There is, however, a need for adaptation of the ethics rules in the Model Rules to the Attorney General and his staff in recognition of the uniqueness of the office, the Attorney General’s obligation to protect the public interest, and the Attorney General’s statutory obligation to represent the various and sometimes conflicting interests of numerous state agencies. Chun v. Board of Trustees of Employees’ Retirement Sys., supra; Attorney General v. Michigan Pub. Serv. Comm’n, supra; see also McCuen v. Harris, 271 Ark. 863, 611 S.W.2d 503 (1981).
By statute, the General Assembly has mandated a relationship akin .to the traditional attorney-client relationship between the Attorney General and the state officials and agencies that the Attorney General represents. Attorney General v. Michigan Pub. Serv. Comm’n, supra; Manchin v. Browning, supra. Thus, the Attorney General owes a duty of undivided loyalty to his clients and must exercise the utmost good faith to protect their interests. See McCuen, supra; Nofleet v. Stewart, 180 Ark. 161, 20 S.W.2d 868 (1929).
Unlike lawyers representing private clients, the Attorney General is not necessarily prohibited from representing governmental clients whose interests may be adverse to each other. The majority rule is that the Attorney General, through his assistants, may represent adverse state agencies in intra- governmental disputes. Chun v. Board of Trustees of Employees’ Retirement Sys., supra; Attorney General v. Michigan Pub. Serv. Comm’n, supra; State ex rel. Allain v. Mississippi Pub. Serv. Comm’n, 418 So.2d 779 (Miss.1982). This rule applies, however, only when the Attorney General is not an actual party to the litigation. Connecticut Comm’n on Special Revenue v. Connecticut Freedom of Info. Comm’n, supra; Environmental Protection Agency v. Pollution Control Bd., 69 Ill.2d 394, 372 N.E.2d 50 (1977); Superintendent of Ins. v. Attorney General, 558 A.2d 1197 (Me.1989); Attorney General v. Michigan Pub. Serv. Comm’n, supra. The case of McCuen v. Harris, supra, cited by appellant, is distinguishable in that it was a local prosecuting attorney, not the Attorney General, who was representing both sides in the same litigation. In the present case, the Attorney General is only representing one agency in an administrative proceeding against a private individual. There is no indication that the Engineer Board or the Architecture Board will develop adverse interests in this litigation.
Because the trial court did not abuse its discretion in affirming the Board’s refusing to disqualify the Attorney General, we affirm on this point.
Affirmed in part; reversed and remanded in part.
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Wendell L. GRIFFEN, Judge.
Robert Keathley appeals from a divorce decree allocating certain marital property and debt between him and his ex-wife, Billie Keathley, the appellee. He argues that the trial court erred because it made an unequal distribution of property without considering all the factors set forth in Arkansas Code Annotated section 9-12-315 (Supp. 2001), and because it considered fault as the basis for the unequal division of the marital property. We hold that the chancellor was not obligated to enumerate every factor when she analyzed the property allocation. Thus, we affirm.
The parties in this case were married on June 17, 1988. At that time, appellee was fifty-one years old and worked for Twin City Bank as a vice-president in the Credit Administration Department, where she had worked for twenty-six years. Appellant, then fifty-five, worked in the investment department at Simmons First National Bank. Appellant thereafter left the bank and began selling insurance. In 1992 or 1993, appellant had a stint placed in one of his arteries, and voluntarily retired from work. He drew Social Security retirement benefits of approximately $836 per month.
Appellee continued to work until May 2000, when her job was eliminated as the result of the sale and merger of her bank to Firstar Bank. She retired with a pension vested in the amount of $199,264.15, and a 401k plan with a net value of $64,626.21. Appellee subsequently accepted a part-time position working at her daughter’s resale shop. Thus, she began spending more time at home during the weekdays. During the first week after appellee left the bank, she began receiving calls from creditors regarding credit-card debts in her name. Around this same time, appellant suggested that they file for bankruptcy.
At the time the parties married, they had little or no credit card debt. Due to the calls from the creditors, appellee contacted a credit bureau and discovered that appellant had, without her knowledge, authority, or signature, obtained credit cards in his name, her name, and in their joint names. Their credit-card debt totaled over $100,000, and appellant had paid at least an additional $37,407 on credit-card debts in the preceding few years.
As a result, one week after appellee left the bank, she separated from appellant and filed for divorce. Although the proceedings were not designated for inclusion in the record by appellant, a temporary hearing was held on July 20, 2000. During that proceeding, appellant apparently admitted that he signed appellee’s name to certain credit-card applications. The chancellor referred to appellant’s testimony to this effect in both of the final hearings on the matter and in the divorce decree from which appellant appeals.
The final hearings were held on September 25, 2000, and October 20, 2000. At the divorce hearing, appellee offered evidence that she filed fraud reports with all of the creditors with whom appellant had opened an account in his name, her name, or their joint names, and had been relieved of three debts originally placed in their joint names totaling $20,718.34. She asserted that at the time of trial, she had not been relieved of unauthorized debt totaling $43,732.30. Of these debts, appellee admitted to signing the credit application for a joint card, a Bank of America card. However, she maintained that she last used the card years ago and that she had since paid the balance due on those charges. This card had an outstanding debt remaining of $10,979.
Appellee maintained that most of the credit card debt accumulated by appellant was accumulated by making cash advances for gambling because many of the cash advances were made at the Oaklawn Race Track and other Hot Springs locations. Between January 1998 and April 2000, appellant obtained at least $83,641 in cash advances. During this time period, he obtained an average cash advance of $2,987 per month.
Appellee performed most of the household duties even though she continued to work after appellant retired. Appellant handled the checkbook and paid the bills. In 1996, after an argument between the parties over appellant’s failure to clean up after himself in the house, he began to do so.
When the parties married, appellant owned a home and had accumulated $25,000 in equity in the home. He sold this home and used $8,500 of the proceeds as a down payment on a new home that was acquired in joint tenancy. In 1999, when the parties sold the home, the debt on the home had been reduced from $73,000 to $54,000, a $19,000 reduction. They then bought the current marital home, using $30,000 from the sale proceeds of their previous home as a down payment. The day before the final hearing in this case, the parties sold the marital home and received net proceeds of $18,000 from the sale. Both parties asked the court to order an equal division of these proceeds.
At the close of trial, the court requested a written proposal from each party explaining how each party wanted the court to divide the parties’ assets and debts. Appellant proposed that the court divide the house proceeds equally, that he be obligated for all of the credit-card debt except the Bank of America card, and that he receive one-half of the marital portion of appellee’s 401k and pension plan.
The chancellor found that appellant did nothing to contribute to the acquisition, preservation or appreciation of the marital property and did not even provide services as a homemaker. The chancellor further found that appellant’s conduct in depleting the assets that appellee worked to accumulate rose to the level of fraud. She ordered appellant to pay all of the credit-card debts that he incurred without appellee’s knowledge or approval. She noted that appellant made false statements to.the court by admitting at the temporary hearing that he had signed appellee’s name to credit-card applications and then at the final hearing attempting to claim that appellee incurred the debt. The chancellor also noted that when she reminded appellant that he had previously admitted signing for the credit card in appellee’s name, he claimed that he could not remember whether he signed for credit in her name.
The chancellor valued the entire portion of the $64,626.21 of pension plan as marital property and awarded appellant ten percent, or $6,462.62. However, from this amount, she deducted appellee’s attorney’s fees of $3,500, for a net distribution to appellant of $2,963.62. The chancellor found that it was appellant’s fraudulent behavior that necessitated the need for appellee to incur most of her attorney’s fees.
The chancellor also set aside another ten percent of the pension plan for the satisfaction of unresolved unauthorized debts, which she found totaled $32,753.30. She found the $10,979 Bank of America debt was a joint debt. She ordered an additional ten percent of the pension plan to be set aside to pay any portion of the Bank of America Card debt remaining on that card after proceeds from the sale of the parties’ home was used to pay the Bank of America debt. The chancellor further ordered that this additional ten percent shall be used to set off one-third of various marital debts totaling $4,068 that appellee had already paid.
The chancellor valued the marital portion of appellee’s 401k account at $26,057.08 as of the date of trial. Because there was a loan issued against this account, that loan must be paid in full and a $7,000 penalty will be assessed against the remaining balance in the account upon removal of the funds. Therefore, the court ordered that 20% of the penalty incurred should be deducted from appellant’s share of the proceeds from this account and 80% of the penalty shall be deducted from appellee’s share of the proceeds.
The chancery court ordered that another 10% of the 401k fund be set aside in the same manner as the 10% set aside from appellee’s pension fund. The funds will first be used to offset any debt remaining on the Bank of America debt, then to reimburse appellee for any debts she previously paid, and finally, to reimburse appellee for any unresolved indebtedness.
The chancellor specified that should appellee be able to relieve herself of liability of the unresolved debts by February 15, 2001, any funds remaining in the set aside account, as well as any funds remaining from the 401k account would become appellant’s property. However, if she is not able to relieve herself of these debts by that date, the funds in an amount equal to any remaining unresolved accounts shall revert to appellee to compensate her for her liability on those debts. The court ordered that appellee would receive the remaining funds of the pension plan, that is 80% of the marital portion of the account, and 100% of the nonmarital portion of the account.
With regard to the parties’ marital home, the court found that the reduction in debt was attributable to appellee’s efforts. Pursuant to both parties’ requests that the home be sold and the proceeds split, the court ordered the home to be sold and that each party was to receive $5,000 in net equity proceeds. The remaining proceeds from the sale of the home were to be removed from escrow and given to appellee to pay off the Bank of America account ($10,979). The chancellor stated that by dividing the funds from the sale of the house in this manner, she was dividing the funds equally. Appellant appeals from this order.
I. Consideration of Factors under Ark. Code Ann. § 9-12-315(B)
Appellant first argues that the trial court erred because it failed to consider all of the factors fisted in Ark. Code Ann. section 9-12-315, and instead, ordered an unequal division of property based on the sole finding that appellant did not contribute to the acquisition, preservation, and/or accumulation of the parties’ assets.
A chancellor has broad powers to distribute property in order to achieve an equitable distribution. See Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989). The overriding purpose of the property-division statute is to enable the court to make a division of property that is fair and equitable under the circumstances. See Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000). A chancellor’s unequal division of marital property wifi not be reversed unless it is clearly erroneous. See id. A chancery 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. See Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). In reviewing a chancery court’s findings, we defer to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. See Jennings v. Buford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).
Arkansas Code Annotated section 9-12-315 governs the division of marital property and provides in relevant part:
(a) At the time a divorce decree is entered:
(1)(A) All marital property shall be distributed one-half (V2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of property.
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.
(2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1) of this section, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.
Appellee argues that the chancellor did not err because she was not required to weigh all of the factors equally and was not required to list each of the factors in her order. In addition, appellee maintains that the chancellor heard evidence pertaining to most of the factors and that the divorce decree itself discusses most of these factors. We agree.
While the statute requires the chancellor to consider certain factors and to state the basis for an unequal division of marital property, a plain reading shows that it does not require the chancellor to list each factor in her order, nor to weigh all factors equally. Appellant cites no authority to that effect. Further, the specific enumeration of these factors does not preclude a chancellor from considering other relevant factors, where exclusion of other factors would lead to absurd results or deny the intent of the legislature to allow the chancellor to make an equitable division of property. See Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985). Rather, where it is clear upon de novo review that the chancellor considered the relevant factors, this court should affirm. See Pennybaker v. Pennybaker, 14 Ark. App. 251, 687 S.W.2d 524 (1985).
The chancellor found that appellant “did nothing to contribute to the acquisition, preservation or appreciation of marital property, including services as a homemaker. Indeed, Mr. Keathley spent the last eight (8) years dissipating the assets Mrs. Keathley was working to accumulate, and his actions rise to the level of fraud against Mrs. Keathley.”
Appellant maintains that although the chancellor recited her basis for the unequal division of property, it is “clear” from the decree that she did not consider all of the factors that she should have considered, such as: 1) appellant served as the homemaker because he paid all of the bills, wrote all of the checks and cleaned up after himself; 2) he has heart problems, is unemployable, and has no savings; 3) there is no evidence the money was used for anything other than household or marital debts; 4) there was no testimony as to who was responsible for each and every cash advance nor what the money was used for; 5) he worked for nearly five years of their twelve-year marriage and owned the home that originally enabled them to buy another home; and 6) appellee could not reasonably assert that she did not know he was getting the money because she worked in the credit department of a bank, because she admitted that she occasionally used the cards and had attended races with appellant, and because she knew the money to pay for her new house and car had to come from “somewhere.”
Clearly, the court is required to consider the services of a homemaker in dividing the marital property. See Stuart v. Stuart, 280 Ark. 546, 660 S.W.2d 162 (1983). However, the chancellor is not required to find that a party’s homemaker services contributed to the acquisition or preservation of the marital assets. Here, appellant took care of the finances and cleaned up after himself. However, appellee continued to perform the majority of the household chores while working outside of the home. Moreover, it is undisputed that appellant’s “handling” of the parties’ finances was what enabled him to work the fraud in this case. Appellant’s assertion that this case would be decided differently if he were female is without merit. This court has upheld the unequal division of property in favor of the husband on similar grounds. See, e.g., Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982)(affirming unequal distribution of stock where wife excessively consumed alcohol and drugs resulting in massive medical bills and only contributed services as a homemaker). On these facts, the chancellor was not required to find that appellant’s household services contributed to the acquisition or maintenance of the parties’ assets.
Appellant also maintains that the chancellor ignored that he is in poor health, presumably due to a heart condition. However, he provided no proof to this effect. Appellee testified that appellant had a stint placed in one of his arteries due to a blockage in 1993, but that his health was good. Further, the evidence is clear that his health was good enough to play golf, shoot pool, and to travel to Hot Springs to attend horse races.
Appellant also asserted that the money was used to deposit into the parties’ checking account to pay bills. However, despite repeated questioning by the chancellor with regard to proof on this issue, he faded to provide evidence that he deposited the money into their joint checking account. Appellant further argues that there was no evidence that this money was not used for household or other marital expenses. Given the evidence in this case, this assertion is patendy untrue.
Appellant also asserts that appellee either acquiesced to the debt accumulation or should have known what was going on. However, appellee testified that the parties had little credit card debt when they married and she thought their only outstanding debts were car and house payments. Because her income alone, $40,000 per year, was sufficient to cover those expenses, and because appellant handled their finances, she had no reason to suspect that appellant was accumulating credit card debt in her name without her authorization.
Appellant also asserts that there is no proof as to who made the ATM withdrawals and that the chancellor would have to infer that he gambled the money away. To the contrary, appellee testified that when she used the ATM, it was taken from the parties’ checking account and she informed appellant when she did so because he handled the checkbook. She flatly stated that she made no credit-card ATM withdrawals.
Moreover, while it is true that appellant did not admit that he “gambled the money away” or made cash advances for the purpose of gambling, he stated during the proceedings: “That month on the bank statements I showed you, I wouldn’t be surprised if I took $1,500 in cash advances that month — most of them in Hot Springs. Of the hundreds of thousands of dollars, I wouldn’t be surprised at all.” The chancellor was entitled to draw reasonable inferences based upon the evidence, see Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987), and it was reasonable on the facts of this case for the chancellor to infer that appellant gambled away the cash advances he fraudulently obtained. Nonetheless, the reason that appellant incurred the debt is arguably irrelevant. The evidence established that he fraudulently incurred the debt in appellee’s name, for whatever reason.
Thus, it is clear that the chancellor considered the relevant statutory factors. Further, she referenced numerous factors in her order. She heard evidence of, and referred in her order to, the length of the parties’ marriage, the age, health, and station in life of the parties, their occupations, the sources and amounts of their incomes and assets, their liabilities and needs, each party’s efforts or lack thereof in making and preserving the marital assets, and the tax consequences regarding the 401k, account. It is apparent that the chancellor properly considered the relevant statutory factors. Therefore, we find no error in this respect.
II. Fault as a Ground for Unequal Distribution of Marital Property
Appellant’s second argument is that the chancellor improperly considered fault as the basis for the unequal distribution of the parties’ marital property and debt. Appellant cites Leonard v. Leonard, 22 Ark. App. 279, 739 S.W.2d. 697 (1987), and the dissent in Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985), for the proposition that fault is not a proper consideration, even when it is clothed under the statutory requirement to consider the contribution of each party in acquisition of property. Appellant argues in essence that the chancellor ignored the equities weighing in his favor and ordered an unequal division of property based on his fraudulent conduct alone.
We are not persuaded by appellant’s argument. First, his position fails to recognize the distinction between fault and equity. The predecessor statute to section 9-12-315, Arkansas Statute Annotated § 34-1215, dictated that marital property be divided equally, regardless of fault. However, this statute was amended and now allows the chancellor to make an unequal distribution of marital property, as long as the chancellor specifies the basis for making the unequal distribution. As appellee notes, in some cases, that decision will necessarily be based on action or the failure to act, which in a literal sense of the word, could be considered fault. See, e.g., Stover v. Stover, supra (affirming unequal distribution where wife attempted to have her husband killed); Forsgren v. Forsgren, supra. Nonetheless, such equitable considerations are always proper factors for the chancellor to consider.
Second, we are not convinced that the chancellor ignored any evidence in this case or improperly considered “fault.” Appellant maintains that the chancellor’s division of the proceeds from the sale of the house ignores that he entered into the marriage with a home that was sold. Although appellant attempted to represent that the entire $25,000 in equity from his home was used as a down payment on the parties’ second home, the record shows that only $8,500 of this money was used for the down payment. The chancellor did not ignore this fact because she mentioned it in her order. When a husband and wife hold real property as tenants by the entirety, it is presumed that the spouse who furnished the consideration made a gift in favor of the other spouse, and this presumption can only be rebutted by clear and convincing evidence. See Lyle v. Lyle, 15 Ark. App. 202, 691 S.W.2d 188 (1985). Appellant presented no evidence to rebut this presumption.
The chancellor purported to equally divide the proceeds of the sale of the parties’ marital home. It is true that the proceeds from the sale of the parties’ marital home were not divided “equally” in a strict sense because the parties received $18,000 in sale proceeds and appellant was awarded only $5,000. However, the fact that appellant had fraudulently incurred debt for gambling or other purposes was a proper consideration in the chancellor’s unequal division of the proceeds from the sale of the house. See Barker v. Barker, 66 Ark. App. 187, 992 S.W.2d 136 (1999) (reversed and remanded on other grounds) (noting the chancellor awarded the first $7,500 of the sale proceeds to the nongambling spouse, with the remaining proceeds to be split equally between the parties).
Moreover, that the proceeds were not divided equally inures to appellant’s benefit, because the proceeds were divided in such a manner to further reduce the unauthorized debt for which appellant will ultimately be liable. The chancellor ordered part of the proceeds from the sale of the marital home to reduce unauthorized debt on a joint credit card, instead of merely ordering appellant to pay that debt. While appellant provided the money for the down payment on the parties’ first home, the chancellor found that the debt reduction on the parties’ second home, which allowed them to retain $30,000 in proceeds upon the sale of that home to use as a down payment for their marital home, was due to the efforts of appellee. Although the division of the proceeds was not equal, it certainly was not inequitable.
Finally, appellant maintains that the chancellor erred because he only received a net distribution of $2,962.62 from the pension plan and $2,605.71 from the 401k plan. He was ordered to pay all of the unauthorized debt, totaling $32,753.30, as well as one-third of the $4,067 in debts already paid by appellee. Appellant asserts that the property division statute was not designed to “saddle” the homemaker with all of the marital debt because he or she is not earning income.
The short answer to this argument is that appellant has not been unfairly “saddled” with all of the marital debt. The statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. See Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). Further, a chancellor has the power to adjust the marital debts as between the parties. See Hackett v. Hackett, 278 Ark. 82, 86, 643 S.W.2d 560, 562 (1982). Appellant was ordered to pay all of the debt for the credit cards that he fraudulently obtained in appellee’s name and will be hable for only one-third of the legitimate marital debt that appellee has already satisfied. Part of the unauthorized debt for which he is responsible will be reduced by the sale of the home and by the set-aside funds from the pension plan and the 401k plan. In addition, if appellee is able to relieve herself of liability for the outstanding unauthorized debts, appellant will receive approximately $20,000 remaining in the 401k plan. It is apparent that the chancellor allocated the debt to each party based on her judgment about which of them should equitably be required to pay the debt.
Moreover, appellant agreed in his proposed findings of facts and conclusions of law that he would be responsible for all unauthorized credit-card debt other than the Bank of America card. An appellant may not complain on appeal that the chancellor erred if he induced, consented to, or acquiesced in the chancellor’s position. See Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998).
Equity does not require that appellee exhaust her retirement to pay debts that were fraudulently incurred by appellant. To hold that the chancellor was not allowed to make an unequal distribution of property on the facts of this case would defeat the legislative intent to allow for an equitable distribution of marital property. Considering that appellant fraudulently accumulated over $100,000 in credit-card debt, for whatever purposes, and considering that appellee may still be responsible for approximately $30,000 in unresolved debt, an amount which is not completely covered by the set aside funds, we have no reason to hold that the chancellor’s findings in this case were clearly erroneous.
Affirmed.
Stroud, C.J., and Pittman, J., agree.
The chancellor also ordered that each party was to receive his nonmarital property as well as the vehicle each was driving. Appellee was ordered to quitclaim her interest in 9 Hot Springs Village lot to appellant. The parties do not dispute these distributions or the division of personal property ordered by the court. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Workers’ Compensation Commission. Appellant, Emma Savage, appeals from an order of the full Commission refusing to declare that appellant was not personally responsible for payment of medical treatment found to be unreasonable or unnecessary under Arkansas Statutes Annotated § 81-1311 (Supp. 1985). We affirm.
Appellant sustained a compensable injury on August 26, 1983, while employed by appellee, General Industries. Appellee authorized appellant to be treated by her chiropractor, Dr. William Traylor, for her work-related injury. Dr. Traylor began the authorized treatments in March 1985 and discontinued them at appellant’s request in July 1985 after she was notified by appellee that the chiropractic bills were excessive. Dr. Traylor invoiced appellee in the amount of $1,955 for appellant’s treatments. Appellee paid $ 1,010 of the invoice and contended that the remainder was unreasonable. Dr. Traylor then invoiced appellant for the unpaid balance, and appellant requested a hearing before the ALJ to determine the necessity and reasonableness of the chiropractic services of Dr. Traylor. Following a hearing on the issue, the ALJ found $1,110 of Dr. Traylor’s charges were reasonable and necessary without addressing whether appellant was responsible for paying the $845 balance on the doctor’s invoice. Appellant appealed to the full Commission seeking a declaration that she was not personally responsible for the unpaid portion of the chiropractic bill found to be unreasonable. The Commission declined to do so on the basis that it lacked authority. Appellant appeals to this court from the decision of the Commission and argues the following point for reversal: 1) The Workers’ Compensation Commission erred in refusing to hold that the appellant was not personally responsible for payment of the medical treatment found to be unreasonable or unnecessary under Arkansas Statutes Annotated § 81-1311.
The statute provides, in pertinent part, as follows:
Medical and Hospital Services and Supplies. The employer shall promptly provide for an injured employee such medical, surgical, hospital, and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be reasonably necessary for the treatment of the injury received by the employee. If the employer fails to provide the services or things mentioned in the foregoing sentence within a reasonable time after knowledge of the injury, the Commission may direct that the injured employee obtain such service or thing at the expense of the employer, and any emergency treatment afforded the injured employee shall be at the expense of the employer.
All persons who render services or provide things mentioned herein shall submit the reasonableness of the charges to the Commission for its approval, and when so approved, shall be enforceable by the Commission in the same manner as is provided for the enforcement of compensation payments ....
Appellant concedes that Hulvey v. Kellwood Co., 262 Ark. 564, 559 S.W.2d 153 (1977) gives the Commission the authority to determine the reasonableness of medical charges. In Hulvey, the Arkansas Supreme Court affirmed the Commission’s finding that there had been “an over utilization of services and excessive charges” in chiropractic treatment and that the bill should be reduced by forty percent (40%), and held the Commission had the “undeniable authority” to determine whether the charges were reasonable. In the case at bar, appellant also recognizes that the determination of what constitutes reasonable and necessary medical treatment under Arkansas Statutes Annotated § 81-1311 is a fact question for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
However, on appeal appellant does not question the Commission’s ruling that only $1,110 of Dr. Traylor’s bill was reasonable and necessary. Instead, appellant argues that although it has never been done, this court can confer upon the Commission the authority to interpret Arkansas Statutes Annotated § 81 -1311 to hold that a worker who sustains a compensable injury will not be personally responsible for payment of medical expenses found to be unreasonable or unnecessary. Appellant argues that because this court found in Sloat Chiropractic Clinic v. Steve Evans Datsun, 17 Ark. App. 161, 706 S.W.2d 181 (1986) that physicians have derivative rights to recover fees in compen- sable injury cases, it follows that health care providers are prohibited from collecting an amount greater than that approved by the Commission. To support this argument, appellant cites 2 A. Larson, The Law of Workmen’s Compensation, § 61.12(k) (1983) which states that “the normal rule is that the obligation to pay medical bills runs from the employer to the physician or hospital. It follows that a hospital or doctor may not collect fees from the employee over and above the amount paid by the employer.” This statement of workers’ compensation law relies on the following three cases: Bell v. Samaritan Medical Clinic, Inc., 60 Cal. App. 3d 486, 131 Cal. Rptr. 582 (1976); Queen v. Agger, 287 Md. App. 342, 412 A.2d 733 (1980); Intermountain Health Care, Inc. v. Indus. Comm’n, 657 P.2d 1289 (Utah 1982). Appellant cites Queen and Bell in support of her contention; however, an examination of the cases reveals that they are distinguishable from the present case. In both cases each state had an express statute prohibiting collection of medical fees greater than the amount approved as reasonable by the Commission. Arkansas law has no such express statutory language.
In Bell, the Workers’ Compensation Appeal Board brought its own action to enjoin the practice of hospitals and doctors charging industrially injured employees for the difference between their fee amount and the amount paid by the employee’s workers’ compensation insurer. The California Court of Appeals affirmed an order granting a preliminary injunction because under the compensation laws of that state, the appeals board had exclusive jurisdiction to determine the reasonableness of legal or medical services, and no agreement is enforceable, valid, or binding in excess of the reasonable amount established by the appeals board. There the court noted that care providers should seek their own relief from the Board if dissatisfied with the amount paid under workers’ compensation.
In Queen, a psychotherapist sued a claimant on an oral contract for $2,000 which represented the amount not approved by the Commission. The court declared the alleged oral contract unenforceable because the state of Maryland has a statute which expressly provides that health care providers rendering services which employers are required to provide for injured employees are prohibited from charging or collecting an amount greater than that approved by the Commission.
Appellant failed to cite Intermountain, which is consistent with Arkansas Workers’ Compensation Law. There the Supreme Court of Utah reversed a district court judgment and held, in pertinent part, that hospitals could hold industrially injured patients personally responsible for any amounts for hospital care not paid by the Commission. The court noted that the reasonable value of services determined by the Commission measures the amount which the employer must pay to the employee for hospital care, but the hospital is not bound by such determination when it proceeds to collect from its patient. Holding that the Workers’ Compensation Act is binding upon employers and employees but not upon others, the court stated that the Commission’s power to disallow unjust and unreasonable charges was not meant to interfere with the normal hospital-patient relationship. Like Utah, Arkansas Workers’ Compensation Law does not give the Commission any express or implied power to relieve an injured claimant of any medical charges found to be unreasonable.
The Commission in the present case pointed out that appellant did not contend that the ALJ erred but instead requested that the Commission render a declaration that appellant not be held personally liable for the portion of the chiropractic charges not approved. The Commission stated that it did not have the power through precedent or statute to render a declaratory judgment or to settle disputes between debtors and creditors. We find no provision within the Workers’ Compensation Act which confers upon the Commission the power to grant the declaration sought by appellant. Had the legislature intended to grant the Commission the authority to grant the relief sought by appellant, it could have done so in clear and definite language in the statutes. This was not done. The only statutory power of the Commission is to order payment of those medical charges it finds to be reasonably necessary.
While we are sympathetic to appellant’s request, the remedy to this situation lies with the legislature not the judiciary. It will be necessary for the Arkansas General Assembly to make a determination that the Commission has the authority to hold injured workers not personally liable for the medical charges found by it to be injust or unreasonable. See Ark. Sec’y of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987). Before this court may reverse a decision of the Commission, it must be convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Howard v. Ark. Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987). Therefore, we affirm the Commission’s decision.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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Beth Gladden Coulson, Judge.
A jury convicted appellant, Lonnie Keys, of two counts of sexual abuse and he was sentenced to six years in prison for each offense to be served consecutively. On appeal, he argues that his case should have been dismissed for lack of a speedy trial. We find his arguments unpersuasive and affirm.
On January 26, 1984, appellant was a guest in the home of a couple who had two boys, ages five and eight. When the children were ready for bed, appellant said he wanted to tuck them in and spent several minutes alone with them. Three days later the boys told their parents that appellant had had sexual contact with them. They said he had threatened them the night of the incident, and they had been afraid to tell anyone. The boys’ stepfather immediately took the children to the Faulkner County Sheriff’s Office, where statements were taken from them. The next day the stepfather went to the appellant’s residence looking for him, but he was told that appellant had moved. The prosecuting attorney filed felony informations against appellant on March 21, 1984, and a bench warrant was issued for appellant’s arrest. He was not located until October 1986, when the victims’ mother learned that appellant was working at a mission in Saline County. She contacted the Faulkner County Sheriff’s Office, and appellant was arrested on October 15, 1986. He was tried on March 30, 1987 — three years and nine days after charges were filed against him and five and one-half months after his arrest.
In a pretrial hearing, appellant contended that the charges against him should be discharged under Ark. R. Crim. P. Rules 27-30 because he was not brought to trial within eighteen months from the date charges were filed against him. Appellant contended he had never been “on the run” from authorities and that the sheriff’s office had failed to diligently try to locate him and he gave an account of his whereabouts. The day after the incident, he had gone to the state hospital at Benton, then been transferred to the Fort Roots Veterans Administration Hospital at North Little Rock where he was treated for alcohol abuse. On release, he spent time at a halfway house, then underwent eye surgery at the Veterans Administration Hospital. Following that, he lived at the Union Rescue Mission in Little Rock until June 1985, when he went to the Evangel Community Church in Little Rock as superintendent. In August 1985, appellant started a weekly radio ministry which eventually was picked up by a large Little Rock radio station, and used his own name over the airways. At this point, appellant left Little Rock to work as superintendent of the New Pathway Mission in Benton. Advertisements for the mission were run in the local newspaper, some using appellant’s photograph for promotion. For the state, deputies testified that they had tried to locate appellant and expected him to “surface” eventually in Faulkner County. They did not question his former wife because they did not know she was living in the county. The prosecutor argued that even if the 18-month rule applied, Ark. R. Crim. P. Rule 28.3 excludes from the calculations the time when a defendant’s whereabouts are unknown. The circuit judge denied appellant’s motion for absolute discharge of the charges against him. From that decision, this appeal arises.
Appellant argues he was denied his right to a speedy trial on the charges of sexual abuse. On October 1, 1987, certain changes became effective concerning the rules on speedy trials. In the Matter of Amendment of Arkansas Rules of Criminal Procedure, 293 Ark. 612. Those changes, however, do not affect this appeal. Speedy trial rules are procedural, so those in effect at the time of appellant’s trial will apply. See Jennings v. State, 276 Ark. 217, 633 S.W.2d 273 (1982). In appellant’s case, Rule 28.1(c) provides that a defendant charged in circuit court and released must be tried within eighteen months from the time provided in Rule 28.2. The date the charges are filed is the beginning for the calculation of the time for a speedy trial. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988). Once the accused has shown that the trial was held after the speedy trial period expired, the burden rests upon the state to show the delay was legally justified. Allen, supra. Ark. R. Crim. P. Rule 28.3 provides:
The following periods shall be excluded in computing the time for trial:
(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. . .
In the present case, we agree with the state that appellant’s whereabouts were unknown. Furthermore, we find appellant’s arguments unpersuasive that the deputies failed to use due diligence in their investigation. Although it is unclear whether appellant’s name was entered in a nationwide law enforcement computer network, the record indicated that standard procedures were followed. As to the public nature of appellant’s ministry, it would be unreasonable to require law enforcement officers to monitor all radio programs and publications in the off chance that a missing suspect might be among the hosts of people employing those media. Appellant also cannot rely on Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985), in which the state failed to make a diligent effort to bring a defendant to trial. Chandler is a decision in which the delay was solely the fault of the state, and the case involved a defendant who had been arrested, released on bond, and whose new address was not properly relayed to circuit court. The present case differs. Appellant’s whereabouts could not be determined because he left Faulkner County, was treated at several institutions, and lived at several addresses. He could not be found by either the sheriff’s deputies or the family of the victims, but as soon as his whereabouts became known, he was arrested.
For his final point for reversal, appellant contends that since the trial court did not set forth the excluded periods in a written order or docket entry pursuant to Ark. R. Crim. P. 28.3(i), those periods cannot be used against him. We find that argument unconvincing. Appellant relies on Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986). However, since appellant did not raise this issue below, he may not raise it on appeal. See Dean v. State, 293 Ark. 75, 732 S.W.2d 855 (1987). Accordingly, we affirm the judgment of the circuit court.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with aggravated robbery and kidnapping. After a jury trial, he was convicted of those charges and sentenced to ten years in the Arkansas Department of Correction for aggravated robbery and twenty years for kidnapping, to be served consecutively. From those convictions, comes this appeal.
For reversal, the appellant contends that the trial court erred in refusing to exclude evidence on the ground that the State failed to comply with discovery rules and orders, and in allowing a witness to identify the appellant at trial in the absence of a finding that the State proved the witness’s in-court identification was untainted by a pretrial photographic lineup. We find the appellant’s first point to be meritorious, and we reverse.
The record contains evidence to show that a robbery took place on July 5, 1982. Three men gained admittance to the residence of James D. Sherman by claiming to be police officers. Once inside, one of the robbers placed a gun to Sherman’s head, told him to lay down on the floor, and took the money from his billfold. Jacqueline Clark, who had been visiting Sherman, was taken to the living room at gunpoint. Sherman’s sister, Montana Murry, returned to the residence from a party and was likewise forced to remain in the living room. Sherman’s niece, also returning from the party, turned and ran from the gunmen and escaped. The robbers told Sherman that they were taking him to the police station, and compelled him to get into a car with them. Sherman testified that he, the three men who had entered the house, and a woman who had waited in the car drove off. A controversy arose between his abductors over whether they should kill Sherman; after the woman and one of the men refused to have any part in a killing, the car was stopped and Sherman was released. At trial, Mr. Sherman, Ms. Clark, and Ms. Murry identified the appellant as one of the gunmen.
Sherry Crawleigh also testified at trial, stating that she was the woman who waited in the car during the robbery. She testified that her identification of the appellant as one of the gunmen was based on a period of association of approximately four hours, beginning on the afternoon of July 4, 1982, when the appellant sold a handgun to Robert Overton at her apartment. At 11:00 p.m. the same day she saw the appellant, accompanied by Robert Overton and Tommy Denton, in a store. She joined the group, which went to Overton’s residence around midnight. She stated that they smoked marijuana at Overton’s house and that, in the course of the evening, she also smoked hashish, drank whiskey and beer, took diet pills and several varieties of “speed,” and used cocaine. Ms. Crawleigh could not recall whether or not she had also taken LSD. She stated that she told Denton, Overton, and the appellant that she had bought some hashish from James Sherman; the men decided that Sherman had cheated her and that they would go to Sherman’s residence to get her money back. She testified that the appellant left and returned with a badge and a pistol, that Denton armed himself with a shotgun, and that Overton armed himself with a knife. They then drove to Sherman’s house, where the three men forced their way inside while she waited in the car. Finally, Ms. Crawleigh testified that the men returned to the car with Sherman, and that Sherman was released after she opposed the appellant’s suggestion that they kill him. On cross-examination, Ms. Crawleigh conceded that she identified one of the robbers as “Jim” in her statement to the police, and stated that she had since decided that the man she identified as “Jim” was the appellant, Roger Shuffield.
The record also shows that the appellant’s attorney received neither a witness list nor information regarding any possible criminal history of James Sherman, although these items were requested in the appellant’s discovery motion and the trial court entered two separate orders requiring the State to comply with the discovery motion. At a hearing on the appellant’s motion for a new trial, the appellant’s attorney stated that the only information obtained in response to his discovery motion was essentially a copy of the police file, containing the names of the people who testified at trial but also containing the names of several dozen other people who did not testify. Officer R.D. Branch, a policeman involved in the investigation of this case, testified at trial that he believed that certain reports and files compiled by the police were not properly delivered to the Hot Spring County Prosecutor.
As his first point for reversal, the appellant contends that the trial court erred in refusing to exclude evidence on the ground that the State failed to comply with discovery rules and orders. Specifically, the appellant argues that it was error to permit Montana Murry to testify because the State did not provide a witness list naming her as a witness. Ms. Murry was allowed to testify at trial over the appellant’s objection; in addition to identifying the appellant, she testified that she had given a statement to police officers after the robbery and abduction.
The State is required, upon timely request, to disclose the names and addresses of persons the prosecuting attorney intends to call as witness at any hearing or trial. A.R.Cr.P. Rule 17.1. The State does not contend that Ms. Murry was properly listed as a witness in the case at bar, but argues that Ms. Murry presented herself to the prosecution on the day before trial, that the State did not previously intend to call her as a witness, and that any prejudice resulting from the failure to timely notify the appellant that she would testify was cured because the defense attorney was permitted a brief interview with Ms. Murry prior to trial. We do not agree. Information held by the police is imputed to the prosecution’s office. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). In the case at bar, Ms. Murry stated at trial that, after the robbery and kidnapping, she gave a statement to a police officer indicating that she was present when the events in question occurred and that she could identify the criminals. Ms. Murry also stated that she provided the police officer with her name and address. In Lewis, the Supreme Court held that Rule 17.1 was not complied with where the prosecution had no knowledge of a witness until the morning of trial, but that witness had given crucial information to the police which was imputed to the office of the prosecution. Lewis v. State, supra. In the case at bar, Ms. Murry’s testimony regarding her statement to the police is uncontradicted, and there is evidence that all of the information available to the police was not properly delivered to the prosecutor’s office. Under these circumstances, we think that Lewis v. State, supra, is controlling, and hold that the State did not comply with A.R.Cr.P. Rule 17.1.
Nor do we think that the brief interview with Ms. Murry afforded to defense counsel was sufficient to cure the error. It is apparent that the appellant’s defense was based on the theory of misidentification, and that one of the persons who identified him at trial was neither in full possession of her faculties during the events in question nor able to correctly identify the appellant by name. The appearance, on the day before trial, of a new witness capable of identifying the appellant as one of the gunmen was thus prejudicial to the appellant’s case. In cases where prejudice will result from the State’s failure to comply with pretrial discovery rules, the trial court must take appropriate action to remove that prejudice by excluding the evidence, ordering discovery, granting a continuance, or entering another order appropriate under the circumstances. Nelson v. State, 274 Ark. 113, 622 S.W.2d 188 (1981). Under the circumstances presented in the case at bar, we think that the prejudice could have been cured only through exclusion or continuance, and hold that the trial court erred in failing to so act. See Lewis v. State, supra. We therefore reverse and remand for a new trial.
We address the remaining issues advanced by the appellant because they might arise again in a new trial. He argues that the trial court erred in permitting Mr. Sherman to identify the appellant at trial because the State did not disclose that Sherman had identified the appellant in a pre-trial lineup, but instead responded to the appellant’s discovery motion by providing information indicating that Sherman had been unable to identify the appellant. The appellant contends that the State deliberately withheld information concerning Sherman’s pre-trial identification of the appellant. The State asserts that it had no knowledge of any pre-trial identification of the appellant by Sherman, and suggests that no such identification had occurred.
We cannot say, on the basis of the record before us, that the State suppressed information concerning a pre-trial identification of the appellant by Sherman. Although Sherman testified that he identified the appellant at a lineup, Officer Branch stated that Sherman did not identify the appellant when shown a photographic lineup which included the appellant’s photograph. Moreover, the discovery information which assertedly misled defense counsel has not been included in the record. Finally, the appellant cites no authority to support the proposition that the State is required to disclose that a victim had identified the defendant in a pre-trial lineup. Rule 17.1(a)(i), A.R.Cr.P., requires only that the names and addresses of witnesses be disclosed by the prosecuting attorney. Although a witness’s statement relating to pre-trial identification would be subject to inspection upon the defendant’s motion after that witness had testified at trial, see Ark. Stat. Ann. §43-2011.3 (Repl. 1977),no such motion was made in the case at bar. Instead, the appellant made a pre-trial motion to exclude the witness’s testimony on the ground that he had not been informed through discovery that Sherman had identified him in a lineup. Because the information requested by the appellant was not subject to discovery until after Sherman testified, Ark. Stat. Ann. § 43-2011.3(a) (Repl. 1977), we hold that the trial court did not err in denying the motion to exclude Sherman’s in-court identification.
Next, the appellant argues that the trial court erred in failing to remove the prejudice resulting from the State’s failure to furnish the appellant a record of prior criminal convictions of persons the prosecuting attorney called as witnesses at trial. We agree. Such disclosure is required by A.R.Cr.P. Rule 17.1(a)(vi), and we think that the appellant’s motion required a direct response, either listing the potential witnesses’ criminal convictions or stating that no record of convictions had been found after diligent, good-faith efforts by the prosecuting attorney to obtain such information from other government personnel. A.R.Cr.P. Rule 17.3(a); see Dever v. State, 14 Ark. App. 107, 685 S.W.2d 518 (1985). There was testimony at trial to show that Sherman had sold hashish to Ms. Crawleigh on numerous occasions, and, at a hearing on a motion for a new trial, the appellant’s trial attorney testified that officers of the Hot Spring County Sheriff’s Department had informed him that James Sherman had a criminal history. We find that the appellant was prejudiced by the State’s failure to properly respond to his discovery request for the criminal records of potential witnesses, and hold that the trial court erred in failing to take appropriate steps to remove that prejudice. Nelson v. State, supra.
Finally, the appellant contends that the trial court erred in denying his motion to suppress Ms. Crawleigh’s anticipated in-court identification of the appellant. The motion to suppress alleged that Ms. Crawleigh had identified the appellant after viewing a photograph provided by police officers; that no live or photographic lineup was conducted; and that the identification procedure was so impermissibly suggestive that it gave rise to a very substantial likelihood of irreparable misidentification, thus depriving the appellant of due process of law.
Where an out-of-court identification is so unnecessarily suggestive that there is a substantial likelihood of mistaken identification, due process is denied in violation of the Fourteenth Amendment to the United States Constitution. Stovall v. Denno, 388 U.S. 293 (1967); Williams v. State, 5 Ark. App. 20, 632 S.W.2d 235 (1982). If the identification procedure is found to be impermissibly suggestive, the court must determine whether, under the totality of the circumstances, the identification was nevertheless reliable. Neil v. Biggers, 409 U.S. 188 (1972). Reliability is the linchpin in determining the admissibility of identification testimony in a criminal trial, Manson v. Brathwaite, 432 U.S. 98 (1977), and reliable identification testimony is admissible despite an unnecessarily suggestive identification procedure. Id.; Jones v. State, 15 Ark. App. 283, 692 S.W.2d 775 (1985). The inquiry thus has two branches: first, the defendant must show that the pretrial identification procedure was so suggestive as to taint subsequent identifications. Neil v. Biggers, supra; United States v. Briggs, 700 F.2d 408 (7th Cir.), cert. denied, 462 U.S. 1110 (1983); Jones v. State, supra. If suggestiveness is established, the State bears the burden of proving that the subsequent identification was reliable. Jones v. State, supra; see Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975); see generally N. Sobel, Eyewitness Identification (2d ed. 1987).
A pretrial hearing was conducted on the motion to suppress Ms. Crawleigh’s identification of the appellant. Officer Branch testified that he interviewed Ms. Crawleigh in the course of his investigation of the robbery and kidnapping. During the inter view, Ms. Crawleigh referred to one of the participants in the crime as “Jim,” and she identified the appellant, Roger Shuffield, as the man she had referred to as “Jim” after she had been shown the appellant’s photograph. Officer Branch stated that he was present when Ms. Crawleigh identified the appellant from the photograph, but he could not recall showing it to her. He admitted that, although standard police procedure requires that the showing of a photographic display be noted on the police report of an interview, no such notation appeared in the police report he completed after interviewing Ms. Crawleigh. Instead, the report reflected only that she had been shown “a photograph.” Officer Branch had in his possession a display consisting of six photographs, including one of the appellant, which he had prepared, but he could not recall how, or even if, the display was presented to Ms. Crawleigh. The display was not offered into evidence. Ms. Crawleigh also testified at the hearing, stating that she was shown more than three photographs, and that from these she identified the appellant, Denton, and Overton. She could not recall the precise number of photographs shown her, nor could she recall whether she was shown one photographic display or several. She further stated that she could identify the appellant as one of the men she accompanied on the night of the crime regardless of the photograph. The trial court found that there was no evidence to show that the photographic display tainted her ability to identify the appellant, and denied the motion to suppress.
Citing Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975), the appellant contends that the court erred in requiring him to bear the burden of proving that the witness’s identification was tainted by suggestive identification procedures. We note that Sims was based upon the sixth amendment right to counsel that attaches when physical lineups are conducted, and is thus not directly on point in the case at bar, where a due process violation was alleged. See Williams v. State, 5 Ark. App. 20, 632 S.W.2d 235, 237 (1982). Moreover, as we have noted, the State’s burden of proving the reliability of the subsequent identification arises only after the defendant has made an initial showing that the pretrial identification procedure was impermissibly suggestive. Although it may be true that a defendant’s burden of showing suggestiveness may be impossible to meet when the photographic display is unavailable and evidence of the display’s composition is inadequate for purposes of determining its propriety or suggestiveness, we hold that the trial court reached the correct result. In ruling on the admissibility of the subsequent identification, he stated that neither the photographic display nor the interview with police officers “tainted her ability to identify the appellant. We think that this statement clearly implies that the trial judge found that Ms. Crawleigh’s identification was based upon an independent source, and that such a finding was supported by Ms. Crawleigh’s testimony that she knew the appellant as the man who was with her on the night in question, regardless of the lineup.
Reversed and remanded.
Corbin, C.J., agrees; Jennings, J., concurs. | [
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James R. Cooper, Judge.
Steve Erixson, an appellee in this Employment Security Division case, filed a claim for unemployment benefits in November 1986 stating that he quit his job with the appellant, Carp Construction, because the appellant had breached his employment agreement by failing to raise his wage rate to $6.00 per hour after thirty days. The Agency found that Erixson had left his employment with Carp Construction voluntarily and without good cause connected to the work, and denied him benefits. Erixson appealed the Agency determination to the Appeal Tribunal. An appeal hearing was held by telephone on December 11, 1986, in which Erixson testified in his own behalf; Carp Construction did not make an appearance. In a decision dated December 16, 1986, the Appeal Tribunal found that Erixson left his job at Carp Construction voluntarily and without good cause, and denied him benefits. On December 22, 1986, Erixson filed an appeal to the Arkansas Board of Review. Upon a review of the written record and testimony from the telephone hearing, the Board of Review allowed benefits upon a finding that, although Erixson had voluntarily quit his employment with Carp Construction, he did so with good cause connected with the work because the appellant had failed to give Erixson a raise after thirty days, and failed to provide him full-time work. From that decision, comes this appeal.
For reversal, the appellant states that it never received notice of the telephone hearing of December 11, 1986, and learned of that hearing only after it received the decision of the Appeal Tribunal. The appellant contends that it thus did not receive a reasonable opportunity for a fair hearing, and that its asserted inability to present evidence in its own behalf at the telephone hearing made it impossible for the Board of Review to ascertain the substantial rights of the parties as required by Ark. Stat. Ann. § 81-1107(d)(4) (Supp. 1985).
We do not reach the merits of the appellant’s contentions because the appellant failed to raise the issue of notice below. In its brief, the appellant concedes that it was notified that the telephone hearing had occurred prior to the time that the Board of Review proceeding took place. The appellant attempts to justify its failure to present the notice issue to the Board of Review by reference to a letter dated December 31, 1986, in which the Board of Review informed Erixson that his appeal had been placed on the Board’s docket, and advised him that, under Mark Smith v. Everett, 6 Ark. App. 337, 642 S.W.2d 320 (1982), the Board of Review lacked jurisdiction to accept additional evidence in appeals pending before it. The implication is that it would have been pointless for the appellant to have presented the notice issue to the Board of Review, because the Board would have been unable to cure any error caused by the asserted lack of notice due to the jurisdictional limitation with respect to additional evidence set out in Mark Smith, supra. We do not agree. It is within the Board’s discretion to direct that additional evidence be taken. Maybelline Co. v. Stiles, 10 Ark. App. 169, 661 S.W.2d 462 (1983); Jones v. Director of Labor, 8 Ark. App. 169, 650 S.W.2d 601 (1983). Thus, the Board had the power to consider the appellant’s assertions concerning lack of notice of the telephone hearing. Because the appellant did not raise the notice question below, we will not consider it on appeal. City of Fort Smith v. Moore, 269 Ark. 617, 599 S.W.2d 750 (Ark. App. 1980).
Affirmed.
Corbin, C.J., and Mayfield, J., agree. | [
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John E. Jennings, Judge.
A jury found appellant, Luther Shamlin, guilty of arson and conspiracy to commit theft by deception. The State charged that Shamlin conspired with Judge John Purtle and Linda Nooner to burn Purtle’s 1980 Ford Thunderbird and Nooner’s home in Little Rock in order to collect the insurance proceeds. The State also charged that Shamlin committed arson by burning Nooner’s home at Malcolm Cove in Little Rock on May 5, 1985. Appellant’s case was severed and he was tried separately. The trial court sentenced him to 15 years for arson and 10 years for conspiracy, and ran the sentences consecutively.
On appeal Shamlin raises 12 points for reversal. Jurisdiction is in this court under Arkansas Supreme Court Rule 29(1). We affirm.
There was evidence presented at trial that Luther Shamlin and Judge Purtle had been close friends for many years. Ms. Nooner was both Judge Purtle’s secretary and his personal friend. She had also known Shamlin for a number of years. There was evidence that Nooner was in financial difficulty early in 1985, and was unable to make her monthly house payments.
The State’s primary witness was Homer Alexander. Alexander said that he had been with Shamlin a day or two before the fire when they bought seven quarts of lighter fluid at a Handy Dan store. Alexander testified that on the night before the fire at Malcolm Cove, he helped Shamlin move furniture out of Nooner’s house to Shamlin’s house in Shannon Hills. He said that he helped Shamlin move “junk” furniture from a storage building behind Shamlin’s house into Nooner’s house on Malcolm Cove. He testified that Shamlin told him he was planning on burning Nooner’s house, but that he did not believe him. Alexander also testified that on the date after the fire Shamlin called him and said he had burned the house. Later that day appellant told Alexander that he had agreed with Nooner and Purtle to burn the house in exchange for $2,500.00 and the furniture.
At trial appellant argued that Homer Alexander’s testimony was not credible, and the argument is repeated here. Appellant points out that Alexander is married to his ex-wife, Maxine, with whom Shamlin was engaged in an ongoing custody dispute. Appellant also points out various discrepancies between Alexander’s testimony and the testimony of other witnesses. While these matters surely bear on Alexander’s credibility, the credibility of witnesses and the resolution of conflicts in the evidence are matters for the jury to determine. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982); AMCI 104.
Specific items of furniture reported by Nooner as lost in the fire were later found safe in Shamlin’s house. The appellant’s son, Bradley, testified that Ms. Nooner told his father to move the furniture out at night. Some of the furniture partly destroyed by the fire at Malcolm Cove belonged to a Mrs. Mullinax, who had had it stored in a small building behind Shamlin’s house in Shannon Hills.
There was evidence that, when some of the furniture was moved, Shamlin received an envelope containing money from Linda Nooner. A bank employee testified about a $1,000.00 check on Ms. Nooner’s account, payable to Shamlin. Tape recordings, made by Shamlin, were introduced which contained conversations between Shamlin and Purtle, and Shamlin and Nooner, about the Malcolm Cove fire and its subsequent investigation. Gary Jones, an inspector with the Little Rock Fire Department, testified that, in his opinion, the house at Malcolm Cove had been purposely set on fire with an accelerant. Another fire inspector, Lane Kinder, testified that an inflammable liquid was found in a can in the house at Malcolm Cove. Tommy Evans, a volunteer fireman, testified for the defense that he examined both Judge Purtle’s car and Ms. Nooner’s home and that both fires were caused by electrical problems.
The State presented evidence that Judge Purtle’s 1980 Ford Thunder bird burned on April 26, nine days before the house at Malcolm Cove burned. The named insured was Freida Holiday, who lived with Ms. Nooner. Judge Purtle reported to the insurance company that Mr. Shamlin was driving the car on the night it burned to investigate some type of electrical problem in the dash. Police officers found the car abandoned and burned on the side of the road. Richard Walls, a fire investigator, testified that the vehicle was purposely set on fire.
SEARCH AND SEIZURE ARGUMENTS
Based primarily on the sworn recorded testimony of Homer Alexander, a search warrant was issued authorizing the search of Shamlin’s home for tape recordings of telephone conversations between the alleged co-conspirators and for specific items of furniture reported lost in the fire at Nooner’s house. Tapes and some items of furniture were found. At a hearing on appellant’s motion to suppress this evidence, Monty Vickers, a Little Rock police officer, testified that he had been involved in the search. He said that the officers had been in the house for about five minutes when the appellant drove up. Appellant was advised of his rights and given a copy of the search warrant. Vickers testified that he told Shamlin that they were going to search his house thoroughly for tapes. The appellant said he had some tapes in the living room but that he also had some tapes out in his truck that he wanted the officers to hear. According to Vickers, appellant said, “I’ll go get them for you.” Vickers asked the appellant to wait and wrote out a consent to search form. He testified that although appellant refused to sign the form, he insisted on going out to his truck and getting the tapes, which he handed to Vickers. The testimony of Lewis Jackson, another police officer, was essentially the same.
Alexander testified that Shamlin had told him that he had gotten a tape of him (Shamlin), Linda Nooner, and Judge Purtle talking about the fire. Alexander said Shamlin told him that he sent the tape to Judge Purtle. Alexander testified that “he did not tell me that he kept a copy. I just assumed he would keep a copy.”
The trial court held that Alexander’s assumption that Shamlin would keep a copy of the tape was not enough to justify the search of Shamlin’s house for tapes, but that the search warrant was valid as to the furniture. The tapes found in Shamlin’s house were suppressed. The court also held that Shamlin freely and voluntarily consented to a search of his truck.
Appellant argues that the tapes which he retrieved from his truck and gave to the police must be suppressed as “fruit of the poisonous tree” and that his consent was invalid under Bumper v. North Carolina, 391 U.S. 543 (1968). In Bumper the defendant lived with his grandmother, a 66-year-old widow, in an isolated rural area. The officers arrived at the door and announced that they had a search warrant. The grandmother responded “go ahead.” Incriminating evidence was found, but the search warrant was later held to be invalid. The United States Supreme Court held that the search could not be justified on the basis of consent. The Court said:
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.
391 U.S. at 548-50.
In Byars v. State, 259 Ark. 158, 533 S.W.2d 175 (1976), the Arkansas Supreme Court distinguished Bumper. The court said:
We think the key statement is, “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority,” i.e., we do not take Bumper to mean that an accused can never be deemed to have consented to a search, if a search warrant had been obtained and the accused was aware of that fact. Rather, we consider that this question is determined by the particular facts present when the consent is purportedly given.
259 Ark. at 167, 533 S.W.2d at 180.
There are a number of diff erences between Bumper and the case at bar. Here, the court found that the warrant was valid, in part, and therefore the initial intrusion into Shamlin’s home was lawful. According to testimony at the suppression hearing, appellant was told that the officers had no warrant to search his truck. The testimony also indicates that appellant’s subsequent insistence that the officers take the tapes and listen to them was more than mere passive acquiescence.
The burden rests upon the state to prove that consent is freely and voluntarily given. Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). On appeal we make an independent determination considering the totality of the circumstances. Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979). Our standard of review is whether the trial court’s decision was clearly erroneous. Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978). In this case we cannot say that it was.
Nor do we think the trial court was required to exclude the tapes obtained under the “fruit of the poisonous tree” doctrine. The concept originated in Wong Sun v. United States, 371 U.S. 471 (1963). This doctrine requires the exclusion from evidence of both the direct and indirect products of an unlawful search. Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968), cert. denied, Fuller v. Arkansas, 396 U.S. 930 (1969). Here the search for furniture was lawful — the search for tapes in Shamlin’s house was unlawful. Appellant’s insistence that the officers take the tapes, despite their advice that they had no warrant to search his truck “purges” this evidence of any taint of illegality arising from the partial invalidity of the search warrant. See Walton, 245 Ark. at 92, 431 S.W.2d at 467.
Appellant contends that the trial court was required to suppress the furniture taken from appellant’s house, citing Franks v. Delaware, 438 U.S. 154 (1978). Franks held that if a defendant shows that statements contained in an affidavit for a search warrant are deliberately false or made with reckless disregard for the truth, then those statements should be stricken from the affidavit. If the remainder of the affidavit is insufficient to establish probable cause,, the warrant is invalid and the property obtained in the search must be suppressed.
As required by Franks, the appellant was provided a hearing on the issue. Appellant argued to the trial court, as he does here, that Lane Kinder, a fire marshal, made knowingly false statements about his investigation of the fire. The trial court expressly found otherwise, and that finding of fact is not clearly erroneous. Appellant also argues that because there are some conflicts between Alexander’s testimony at the pretrial hearing and evidence which subsequently developed at trial, we must find that Alexander was not telling the truth, invalidate the warrant, and suppress the furniture found in his house. This is not the procedure required by Franks.
He also argues that the warrant must be declared invalid because of the State’s failure to advise the magistrate that Homer Alexander’s wife was involved in a custody dispute with the appellant. Appellant cites cases from other jurisdictions which hold that a material omission may invalidate a warrant. If appellant’s position on the law is correct (and Franks did not so hold), there was substantial evidence presented at the pretrial hearing that the State was unaware of this information. Again, the trial court’s ruling was not clearly erroneous.
MOTIONS FOR DIRECTED VERDICT
Appellant argues that the trial court should have granted a directed verdict because there was no proof of an agreement between the alleged co-conspirators. A motion for a directed verdict is a challenge to the sufficiency of the evidence. On appeal, in determining the sufficiency of the evidence, we are obliged to view it in the light most favorable to the State. Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986). The statute defining conspiracy, Ark. Stat. Ann. § 41-707 (Repl. 1976), provides:
A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense he: (1) agrees with another person or other persons: (a) that one or more of them will engage in conduct that constitutes that offense; or (b) that he will aid in the planning or commission of that criminal offense; and (2) he or another person with whom he conspires does any overt act in pursuance of the conspiracy.
Because the prosecution is seldom able to present direct evidence of the agreement, it is well established that the state may rely on inferences drawn from the course of conduct of the alleged conspirators. Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939); W. LaFave and A. Scott, Jr., Criminal Law § 61, at 461 (1972). Here, Alexander’s testimony provided direct proof of an express agreement between the alleged co-conspirators. While it is true that there was no direct evidence of an express agreement as to the alleged ultimate object of the conspiracy, i.e., to commit theft by deception, there was sufficient circumstantial evidence to permit the jury to infer that the purpose of setting fire to Nooner’s home at Malcolm Cove was to collect the insurance proceeds.
Appellant also moved for a directed verdict on the arson count on the basis that Homer Alexander’s testimony had not been corroborated. The court denied the motion. When the State’s case is based primarily on the testimony of an accomplice, the issue of the sufficiency of the corroborating evidence is frequently one of fact for the jury. Maynard v. State, 21 Ark. App. 20, 727 S.W.2d 858 (1987); AMCI 402. When the status of a witness as an accomplice presents an issue of fact, that question too should be submitted to the jury. Jackson v. State, 193 Ark. 776, 102 S.W.2d 546 (1937); AMCI 403. Neither AMCI 402 nor AMCI 403 was requested. Here it appears that whether Alexander was an accomplice was a question of fact. If Alexander was an accomplice as a matter of law, our inquiry is whether there was substantial evidence, apart from Alexander’s testimony, tending to connect Shamlin with the commission of the offense. King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). The expert testimony that the house at Malcolm Cove had been deliberately burned and the independent evidence about the switching of furniture was sufficient to withstand a motion for directed verdict.
Appellant further argues that the trial court erred in not granting a directed verdict on the arson count because the common law presumption against arson had not been overcome, citing Boden v. State, 270 Ark. 614, 605 S.W.2d 429 (1980). The court in Boden cited Johnson v. State, 198 Ark. 871, 131 S.W.2d 934 (1939). The facts in Boden were quite similar to those in Johnson. In each case the defendant was charged with arson and had signed a confession. Each case turned on the rule that a confession, unless made in open court, will not sustain a conviction unless accompanied by proof that such an offense was committed. In neither Boden nor Johnson was there any testimony that the fire was intentionally set. In each case the only evidence connecting the defendant to the fire was that he was seen in the vicinity of the building that burned. In the case at bar there was evidence that the fire was intentionally set and that appellant was the one who set it. The trial court correctly denied the motion for directed verdict.
Appellant then argues that the court erred in not granting a directed verdict on “submitting the alleged overt act of the car fire to the jury.” As already noted, our conspiracy statute requires proof of an overt act done in pursuance of the conspiracy. Ark. Stat. Ann. § 41-707(2). Ark. Stat. Ann. § 43-2013 (Repl. 1977) provides:
In trials of indictments for conspiracy, in cases where an overt act is required by law to consummate the offense, no conviction shall be had, unless one or more overt acts be expressly alleged in the indictment, and proved on the trial; but overt acts other than those alleged in the indictment, may be given in evidence on the part of the prosecution.
See also Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987).
We have a number of difficulties with this argument. First, we have been unable to find, in the record, where such a motion for directed verdict was made, although there were a number of motions for mistrial made which related to this issue. Secondly, it was not the “car fire” which was alleged by the State to have been an overt act, but rather the collection of the insurance proceeds on the car. Finally, no objection was made to the court’s instruction which told the jury of the State’s charge, including the alleged overt acts, nor did appellant offer an instruction omitting any reference to the “car fire,” which he now claims the trial court should have given.
EVIDENCE OF THE CAR FIRE
Appellant argues that the trial court erred in “permitting the State to alternatively pursue the car fire as a prior bad act under A.R.E. 404(b).” That rule 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.
It is true that the State argued that the circumstances surrounding the car fire were relevant under either of two theories: first, that they related to an alleged overt act, and second, that they were admissible under Rule 404(b). We know of no rule which prohibits a proponent of evidence from advancing more than one theory of admissibility. The trial judge stated that he thought the evidence was admissible under either theory and offered to give a limiting instruction.
The State argues that the evidence was admissible under 404(b), relying in large part on Casteel v. State, 205 Ark. 82, 167 S.W.2d 634 (1943). The State argues that the theory of the defense was that both fires were accidents and of electrical origin, that there was evidence that both were deliberately set, that there was circumstantial evidence that Shamlin burned the car only a few days before he burned the house at Malcolm Cove, and that insurance proceeds were collected in both cases. Thus, the argument goes, the evidence of Shamlin’s relationship to the car fire indicates that the fire at Malcolm Cove was not accidental.
We decline to reach this argument because in our view the evidence was logically relevant to an alleged overt act and was therefore admissible.
In essence, the appellant argues that the inclusion of this particular overt act in the information was merely a ruse to enable the State to offer otherwise inadmissible evidence to the jury. We do not agree. The State’s theory obviously was that the burning of the car and the burning of the house were two parts of one conspiracy. While the evidence connecting the two events is circumstantial, it is not so tenuous as to persuade us that the State alleged the overt act of collecting insurance proceeds on the car merely to introduce otherwise inadmissible testimony.
OBJECTIONS TO THE TESTIMONY OF BRADLEY SHAMLIN
Appellant’s twelve-year-old son, Bradley, was called as a witness by the State. He testified that he was with his father at Ms. Nooner’s house on Malcolm Cove when furniture was being moved out. He also testified that he heard Ms. Nooner say the furniture should be moved out in the nighttime. Appellant made a general objection, which was overruled, and the child completed his direct testimony.
At the next recess, appellant moved for a mistrial on the basis that this was a statement of an alleged co-conspirator that had not been disclosed to the defense, in violation of A.R.Cr.P. Rule 17.1(a). That rule provides that the prosecuting attorney shall disclose to defense counsel the substance of any oral statements made by a co-defendant.
As best we can tell from the record, the prosecutor learned of this statement during the morning of the day the child testified. The court noted that, according to the child’s testimony, the appellant was present when the statement was made, and denied the motion for a mistrial. There was no request for a continuance and no motion to strike.
The State argues that appellant’s motion for a mistrial was untimely, but we believe that, under the circumstances, it was timely. We also agree with the appellant that the substance of Ms. Nooner’s oral statement should have been disclosed to the defense before Bradley Shamlin testified. It does not follow, however, that the trial court erred in refusing to grant a mistrial. A mistrial is the most extreme recourse available to the court for a violation of discovery and is to be avoided except where the fundamental fairness of the trial itself is at stake. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied - U.S. -, 108 S.Ct. 202 (1987). We have said that, under similar circumstances, the appellant must demonstrate prejudice. Smith v. State, 10 Ark. App. 390, 664 S.W.2d 505 (1984). The prejudice which must be demonstrated is not that the evidence is bad for the defendant’s case, but rather that he has been harmed in some way by the State’s failure to disclose it. Here, the appellant was aware that the child would testify and had a copy of the witness statement taken from him by the State. Taking into consideration the nature of the discovery violation, the nature of the testimony considered in the context of the other evidence in the case, and the availability of other sanctions, such as the granting of a continuance, we cannot say the court erred in refusing to grant a mistrial. See Snell, supra.
Appellant also argues that the trial court erred in not recognizing a “parent-child privilege” asserted to bar testimony of communications between appellant and his son. Appellant recognizes that such a privilege is not provided for in our rules of evidence but urges us to adopt it, nonetheless. We need not decide, however, whether we should or could adopt such a privilege as a matter of common law, because none of Bradley Shamlin’s testimony related to discussions or communications between his father and him.
JUROR MISCONDUCT
After the State had rested, two of the prosecutor’s secretaries happened to be seated at lunch near three of the jurors. They overheard one, Juror Stewart, tell the others that the State had not proven conspiracy and that the trial was being held for political reasons. They reported the matter to the prosecutor, who in turn reported it to the court. The court held an in camera hearing and heard from both secretaries and all three jurors. Although the testimony of the witnesses varied, Stewart admitted that he had told the other two that the trial “was more political than anything else.” One of the other jurors testified that he had cautioned Stewart not to talk about the case. All three jurors said they could fairly decide the case and had not been influenced.
The court excused Juror Stewart and seated the one available alternate juror. The court admonished the other two jurors involved not to discuss the incident.
Appellant argues that the court erred in excusing the juror. In Capps v. State, 109 Ark. 193, 159 S.W. 193 (1913), the court held that it was always improper for jurors to discuss a case among themselves prior to submission. Here, by his own admission, Juror Stewart had violated the court’s repeated admonition not to discuss the case. The trial court has considerable discretion in such matters and we will not disturb its finding absent a manifest abuse of that discretion. See McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); Rice v. State, 216 Ark. 817, 228 S.W.2d 43 (1950). The procedure followed by the trial court here is precisely that which was recommended in United States v. Dean, 667 F.2d 729 (8th Cir. 1982), on reh’g 667 F.2d 729, cert. denied, 456 U.S. 1006 (1982). We find no abuse of discretion in the court’s excusing Juror Stewart.
Appellant next argues that, if Stewart was to be excused, the trial court was obliged to excuse the other two jurors. This argument is inconsistent with appellant’s position on Juror Stewart. It also would have necessitated a mistrial. Based on the in camera hearing, the court could have determined that the other two jurors had not violated the court’s admonition and could remain as impartial jurors. A result identical to that reached by the trial court was approved in United States v. Clapps, 732 F.2d 1148 (3rd Cir. 1984), cert. denied 469 U.S. 1085 (1984). Again, we find no abuse of discretion.
Appellant argues that the court should not have admonished the other two jurors not to consider or discuss the in camera proceedings, but the defense agreed to this admonition.
ARSON AS A LESSER INCLUDED OFFENSE
Appellant next contends that arson is a lesser included offense of conspiracy to commit theft by deception. Arson is defined in Ark. Stat. Ann. § 41-1902 as starting a fire with the purpose of destroying or damaging an occupiable structure that is the property of another person. Ark. Stat. Ann. § 41-105(1)(b) provides that a defendant may not be convicted of both offenses where one offense consists merely of a conspiracy to commit the other. Thus, appellant could not have been convicted both of conspiracy to commit theft by deception and of theft.
In Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985), the supreme court drew a distinction between “element included offenses” and “lesser included offenses.” The court said:
Element included offenses are defined in Ark. Stat. Ann. § 41-105(l)(a) (Repl. 1977). They arise when one criminal offense, by statutory definition, cannot be committed without the commission of another underlying offense, and, by the language of the statute, although a defendant can be prosecuted for both offenses, a conviction cannot be had for both. . . .
However, an offense is not a lesser included offense solely because a greater offense includes all of the elements of an underlying offense. The lesser included offense doctrine additionally requires that the two crimes be of the same generic class and that the differences between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability.
284 Ark. at 407-408, 682 S.W.2d at 744-45.
The court in Thompson held that theft is not a lesser included offense of robbery, because the offenses are of a different nature and are not of the same generic class. 284 Ark. at 408, 682 S.W.2d at 745.
It is clear that the offenses of arson and conspiracy to commit theft by deception are of a different nature. As the court said in Thompson, they are not of the same generic class, and consequently arson is not a lesser offense included within conspiracy to commit theft by deception. It is equally clear that arson is not an “element included offense” of conspiracy to commit theft by deception. The statutory definition of conspiracy does not require proof of arson, and under the specific facts of this case, the jury could have found appellant guilty of conspiracy to commit theft by deception without necessarily finding that he committed arson in the burning of Nooner’s house. The fact that one of the overt acts alleged by the State, setting fire to Nooner’s house, is equivalent to one of the elements of the offense of arson does not render arson a lesser included, or element included, offense of conspiracy.
ACQUITTAL OF ALLEGED CO-CONSPIRATOR
Appellant finally argues that since Judge Purtle was subsequently acquitted of conspiracy, appellant’s conviction is a “legal impossibility” and constitutes a denial of due process. We have already answered this argument in Shamlin v. State, 19 Ark. App. 165, 718 S.W.2d 462 (1986). We noted that under Ark. Stat. Ann. § 41-713(2)(c) (Repl. 1977) it is not a defense to a prosecution for conspiracy that the person with whom the defendant is alleged to have conspired has been acquitted of an offense based upon the conduct alleged. We held that appellant’s argument was without merit. Our holding there has not been affected by the supreme court’s recent decision in Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987), on a related issue. Appellant’s contention that the issue is a constitutional one, involving the due process clause, is supported by neither persuasive argument nor convincing authority.
Affirmed.
744 S.W.2d 405
Cracraft and Coulson, JJ., agree.
Supplemental Opinion on Denial of Rehearing February 10, 1988
Per Curiam. This petition for rehearing is denied because it is merely repetitious of those arguments presented to and decided by the court in its original opinion. Petitions for rehearing are not intended to present arguments which are merely repetitious of those already considered by the court, and such petitions that do so are ordinarily denied without written comment. Ark. R. Sup. Ct. 20(g).
However, we feel compelled to comment on one argument in appellant’s petition for an entirely different consideration, i.e., because it is based on matters which we have previously expressly ruled were not, and could not be made, a part of the record in this case. We are troubled by the persistence of counsel in failing to honor our ruling, in pursuing the matter despite that ruling, and particularly in his stated justification for doing so.
Appellant was charged, with Linda Nooner and John I. Purtle, with conspiring to commit theft by deception. They were granted separate trials. The appellant was tried first and convicted, Purtle was then tried and acquitted, and Nooner was subsequently tried and convicted. After Purtle’s acquittal, the appellant filed a petition in this court seeking a writ of error coram nobis, basing his petition in part on Purtle’s acquittal. Attached to that petition was a certified copy of the verdict and docket sheet in that case. In Shamlin v. State, 19 Ark. App. 165, 718 S.W.2d 462 (1986), we denied the petition and rejected the argument that Purtle’s acquittal mandated reversal. We correctly held that under Ark. Stat. Ann. § 41-713(2)(c) (Repl. 1977) it is not a defense to a prosecution for conspiracy to commit an offense that the person with whom the defendant is alleged to have conspired has not been charged, prosecuted, or convicted, or has been acquitted of an offense based upon the conduct alleged. The supreme court subsequently cited with approval that statute, the rationale for it, and our application of it to the facts in Shamlin, holding that the statute applies except in those cases where all alleged co-conspirators are tried jointly and all but one are acquitted. Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987).
At about the same time the appellant filed the petition for a writ of error coram nobis, he filed a motion to supplement the record in this appeal by attaching a certified copy of the docket sheet and verdict of acquittal in the Purtle case. We correctly denied that motion because, having not been presented to the trial court, it could not be part of this record and was immaterial to the issues presented here in any event.
Notwithstanding our ruling, counsel argued from that verdict in his brief and reply brief. In a parenthetical attempt to justify his position, he argues that, as a copy of the verdict was attached to both the petition for writ of error coram nobis and his motion to make that document a part of the record, the attachment was part of the record despite our ruling that it was not and could not be. This persistence was discussed in our decision conference, along with the possibility of admonishing counsel that this action was looked on with disfavor. However, as the argument was wholly without merit, the court determined to address the issue without admonition.
As this is the fourth time that this court has been called on to address this single issue, we are constrained to now express our displeasure. | [
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George K. Cracraft, Judge.
David Bigham appeals from his conviction of driving while intoxicated, second offense. On appeal, he concedes that the evidence was sufficient to sustain a conviction of the charge and argues only that the trial court erred in denying his motion to quash the charge as having been improperly filed. We find no error and affirm.
The appellant was stopped by a police officer and issued a citation charging him with driving while intoxicated, second offense. The citation specified the time and place at which the offense occurred, and directed him to appear before the municipal court on a specific date to answer the charge. The citation was delivered to the clerk of the court who inadvertently entered on the docket that the charge was DWI, first offense. The city attorney then filed an information in his capacity as city attorney charging the appellant with controlling a vehicle while under the influence of intoxicating liquor after having been previously convicted of driving while intoxicated on March 8, 1984. On the day of trial, the appellant moved to quash the information.
Relying on State v. Eason, 200 Ark. 1112, 143 S.W.2d 22 (1940), the appellant argues that the information filed by the city attorney in his own name and not in the name of the prosecuting attorney was void as the city attorney had no authority to issue the information except in the name of the prosecuting attorney. The State argues that the rule announced in Eason was abrogated by the enactment of Ark. Stat. Ann. § 24-122.1 (Supp. 1985), which allows the prosecuting attorney to authorize the city attorney to file in the name of the State in the municipal courts, and by Ark. R. Crim. P. 1.6(b) and (d), which redefine “prosecuting attorney” to include a city attorney. The appellant argues that these sections are constitutionally infirm as improper delegations of the authority of a constitutional officer.
Because of the view we take of the matter, it is unnecessary for us to address those issues. Arkansas Statutes Annotated § 75-2508 (Supp. 1985) authorizes an arresting officer to charge a person with misdemeanor DWI by issuing a citation and filing it with the clerk. Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). It is not unconstitutional for this act to authorize a police officer, rather than the prosecuting attorney or grand jury, to file the misdemeanor charge. Girder v. State, 285 Ark. 70, 684 S.W.2d 808 (1985); Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). Appellant does not question the validity of the citation issued by the police officer. The citation clearly charged the appellant with the offense for which he was tried, DWI, second offense, and stated the time and place at which the offense occurred. There is no allegation that the citation was insufficient to fully apprise the appellant of the nature of the charge against him or that he was unable due to the manner in which he was charged to properly prepare his defense.
Furthermore, even if the information filed by the city attorney was in fact void, the charging instrument issued by the officer remained in force. As the citation issued by the officer was sufficient to charge the appellant with the violation, a subsequent attempt by the city attorney to duplicate that charge could not destroy the citation’s effectiveness.
Affirmed.
Coulson and Mayfield, JJ., agree. | [
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Olly Neal, Judge.
Edward Torrey appeals from an order of the Arkansas Workers’ Compensation Commission denying his entitlement to additional workers’ compensation benefits pursuant to Ark Code Ann § 11-9-505 (a)(l)(1996) and his request for a change of physician. For reversal of the Commission’s order, appellant contends that he is entitled to additional benefits because appellee refused to return him to work without reasonable cause and that he is entitled to a change of physician.
Appellant was employed by appellee, City of Fort Smith, in its sanitation department, when he sustained an admittedly compensa- ble injury to his back on October 10, 1993. Appellant was treated at the emergency room by Dr. Mumme. Appellant was diagnosed with a right lateral disc herniation at L4-5 and eventually referred to Dr. Michael Sandefer who prescribed a conservative course of treatment. Appellant was released from Dr. Sandefer’s care on March 1, 1994, with a 5% permanent impairment rating to the body as a whole, which was accepted by appellee, and restrictions that included avoiding repetitive bending and lifting over 25 to 30 pounds.
Appellant attempted to return to work for appellee but was advised that there were no positions available that would meet his job restrictions. Appellant applied for dispatcher’s positions with the City’s sanitation and police departments. Appellant was not hired to fill either position. Appellant then sought additional benefits pursuant to Ark. Code Ann. § ll-9-505(a)(l) (1996).
The Administrative Law Judge found that appellant was enti-ded to additional benefits because the City refused to return him to work without a reasonable cause for doing so and approved appellant’s request for a change of physician. The City appealed to the Workers’ Compensation Commission which, upon conducting a de novo review of the matter, reversed the decision of the Administrative Law Judge. Appellant now seeks our reversal of the Commission’s order.
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and uphold those findings if they are supported by substantial evidence. Arkansas Highway & Transp. Dept. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992).
In denying appellant’s entitlement to additional benefits pursuant to Ark. Code Ann. § 11-9-505, the Commission noted that the Commission had been admonished to not broaden, liberalize, or narrow the workers’ compensation statutes. Ark. Code Ann. §11-9-1001 (Repl. 1996).
The case at bar presents an issue of first impression for this court, because what constitutes “reasonable cause” as used in Ark. Code Ann. § ll-9-505(a)(l) has yet to be construed. The beginning point in interpreting a statute is to construe the words just as they read and to give them their ordinary meaning. Arkansas Dept. of Health v. Westark Christian Action Council, 322 Ark. 440, 910 S.W.2d 199 (1995). The basic rule of statutory construction is to give effect to the intent of the legislature, making use of common sense. Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995). Statutes relating to the same subject should be read in a harmonious manner, if possible. Mecco Seed v. London, 47 Ark. App. 121, 886 S.W.2d 882 (1994).
We begin our analysis of this matter by examining the stated purpose of Act 793 of 1993 which is “to pay timely temporary and permanent disability benefits to all legitimately injured workers, ...to pay reasonable and necessary medical expenses resulting thereafter and the return of the worker to the work place. See Ark. Code Arm. § 11-9-101 (Repl. 1996).
Pursuant to Ark. Code Ann. § ll-9-505(a)(l)(2):
any employer who without reasonable cause refuses to return an employee to work, where suitable employment is available within the employee’s physical and mental limitations, upon orders of the Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of such refusal, for a period not exceeding one (1) year. In determining the availability of employment, the continuance in business of the employer shall be considered....
Ark. Code Ann. § 11-9-505(4) (d) provides: “The purpose and intent of this section is to place an emphasis on returning the injured worker to work, while still allowing and providing for vocational rehabilitation programs when determined appropriate by the Commission.”
In Ark. Code Ann. § 11-9-1001, which is entided the legislative declaration, the Seventy-Ninth General Assembly reemphasized that, “the major and controlling purpose of workers’ compensation is to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then return the worker to the work force.”
In the case at bar, appellant suffered a compensable injury while in the employ of appellee. After appellant’s release from the care of his physician he returned to his employer in an attempt to resume his employment. After learning that there were no positions available that would accommodate the restrictions placed on his work activities by his treating physician, appellant was encouraged to apply for other positions within the City of Fort Smith, which employs over 600 persons. Although appellant was afforded the opportunity to interview for dispatcher positions within the police and sanitation departments, he was not hired for either.
In reviewing pertinent sections of the Act, we find that the legislative intent that the injured worker be allowed to reenter the work force permeates the language of sections of the Act. See, e.g., Ark. Code Ann. §§ 11-9-101, 11-9-505, 11-9-1001 (Repl. 1996). Keeping in mind that we must make use of our common sense in construing the statutes in question, and that we must construe related statutes in a harmonious manner, we find that the Commission’s interpretation of what constitutes reasonable cause for not returning an employee is erroneous.
Before Ark. Code Ann. § 11-9-505(a) applies several requirements must be met. The employee must prove by a preponderance of the evidence that he sustained a compensable injury; that suitable employment which is within his physical and mental limitations is available with the employer; that the employer has refused to return him to work; and, that the employer’s refusal to return him to work is without reasonable cause.
In the present case, appellant has proved that he suffered a compensable injury; that there was suitable employment within his restrictions available with his employer, and that the employer refused to return him to work. A more difficult question arises when we question whether appellee’s reason for not rehiring appellant was unreasonable. Appellee’s stated reason for not hiring appellant to fill either position was that a “more qualified” individual was hired instead. The Commission accepted this explanation and found that the appellee had demonstrated that reasonable cause existed for not rehiring appellant. Further, the Commission noted that once a position is filled there is no longer suitable employment available to be the basis of the employer’s refusal to return the employee to work, as provided in this statute.
We believe that the Commission’s interpretation is too narrow to allow the true intent of the legislature to be realized. The Commission made a finding that the employer had shown reasonable cause for not returning an injured employee to work, where the employer stated that a “more qualified” person was hired. In accepting the employer’s explanation, the Commission, in effect, allows the employer to nullify the stated legislative purpose while exercising minimal effort to return the employee to work. Likewise, the Commission’s interpretation allows subjective reasoning to factor into what constitutes reasonable cause, whereas an objective standard is more compadble with the legislative intent and purpose.
At a minimum Ark. Code Ann. § 11-9-505(a) requires that when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entry into the work force by offering additional training to the employee, if needed, and reclassification of positions, if necessary. Further, we do not agree with the Commission’s finding that the period of refusal lasts only until a position is filled. We believe that the better rule is that the period of refusal lasts as long as the employer is doing business not to exceed the one-year limit for payment of additional benefits.
Appellee employs over 600 persons, yet the evidence presented fails to demonstrate that any effort was made on the part of appellee to assess appellant’s skills or to offer him assistance to enhance his skills so as to better facilitate his re-entry into the work place.
Appellant’s final asserted point is that the Commission erred in denying his request for a change of physician from Dr. Sandefer, a neurosurgeon, to Dr. Dodson, a general practitioner. Ark. Code Ann. § 11-9-514(2) (A) (Repl. 1996) provides: If the employer selects a physician, the claimant may petition the Commission one (1) time only for a change of physician, and, if the Commission approves the change, with or without a hearing, the Commission shall determine the second physician and shall not be bound by recommendations of claimant or respondent.
Appellant testified that he requested a change of physician because Dr. Dodson was his family doctor and could make adjustments. The Commission found that the wording of the statute clearly contemplates that the Commission will approve or disapprove any changes of physician. Because the statute contains the phrase “if the Commission approves the change,” we believe that the Commission is vested with discretion to approve or disapprove any change of physician. Upon review of the case at bar, we cannot find that the Commission’s decision to not allow a change of physician was in error, especially in light of the fact that appellant offered no compelling reason, other than saying that Dr. Dodson could make adjustments, to support his request for a change of physician.
We therefore reverse and remand for an award of benefits consistent with this opinion.
Reversed and remanded in part; affirmed in part.
Stroud and Rogers, JJ., agree. | [
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WENDELL L. Griffen, Judge.
After trial in Garland County Circuit Court, a jury found Timothy Dale guilty of two counts of second-degree battery based on allegations that he burned his stepchildren with cigarettes and a cigarette lighter. The trial judge then sentenced Dale to six years in the Arkansas Department of Correction on each count and ordered that the sentences run consecutively. Dale now contends that the trial court erred when it denied his motion for directed verdict, and that it erred by refusing to instruct the jury on sentencing alternatives as his attorney had requested. Neither contention has merit; therefore, we affirm the convictions.
Dale’s argument that the trial court erred by denying his motion for directed verdict is a challenge to the sufficiency of the evidence. He properly moved for a directed verdict at the close of the State’s evidence, and he specifically based that motion on the State’s alleged failure to prove “the infliction of substantial pain,” an element for second-degree battery. See Ark. Code Ann. §§ 5-13-202(a)(4), 5-l-102(14)(Repl. 1993). The following colloquy occurred after the State rested its case:
MS. HEARNSBERGER: We rest.
THE COURT: State rests.
COUNSEL FOR APPELLANT: Move for directed verdict, based on sufficiency of the evidence, specifically, that there has been no showing of substantial pain which is required under the State’s burden of proof.
THE COURT: Motion will be denied.
The following colloquy occurred at the end of all the evidence:
THE COURT: Defense rests.
DEFENSE COUNSEL: Renew my motion for directed verdict based on sufficiency.
THE COURT: Denied.
In response to the appellant’s challenge to the sufficiency of the evidence, the State argues on appeal that the appellant is procedurally barred, from raising the issue because he failed to specify a basis for the renewal of his directed-verdict motion. The State cites Middleton v. State which held that a “challenge to the sufficiency of the evidence, whenever it is made, requires a specific motion to apprise the trial court of the particular point raised; a general ‘usual motion’ such as the one made by appellant will not suffice.” Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992)(emphasis added). In Walker v. State, the Arkansas Supreme Court cited with approval Middleton and numerous other cases for the proposition that “a motion for directed verdict [must] state the specific grounds of the motion.” Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994) . Walker also held that Rule 36.21 of the Arkansas Rules of Criminal Procedure (now superseded by Rule 33.1) is to be read in alignment with Rule 50 of the Arkansas Rides of Civil Procedure. Id. Rule 33.1 provides:
When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal of a previous motion for a directed verdict at the close of all of the evidence preserves the issue of insufficient evidence for appeal.
Ark. R. Crim. P. 33.1 (emphasis added). Rule 50 states in pertinent part:
A party may move for a directed verdict at the close of the evidence offered by an opponent and may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the extent as if the motion had not been made. A party may also move for a directed verdict at the close of all the evidence .... A motion for directed verdict shall state the specific grounds therefor .... The motion may also be made at the close of all the evidence and in every instance the motion shall state the specific grounds therefor.
Ark. R. Civ. P. 50(a) (emphasis added).
The appellant here made a specific motion for directed verdict followed by a nonspecific renewal. In Durham v. State, the Arkansas Supreme Court held that as long as a specific basis is articulated for the original directed-verdict motion, a general renewal is sufficient to preserve the issue for appeal. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The comment to Rule 33.1 notes that the last sentence of the new rule was added to reflect the Durham holding. Although Durham appeared to distinguish implicitly the Walker fine of cases (because none of those cases involved nonspecific renewals of directed-verdict motions), Durham did not address the contradictory language in Middleton. See also Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994); Jackson v. State, 316 Ark. 405, 871 S.W.2d 591 (1994); Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 1994)(all holding that a challenge to the sufficiency of the evidence, “whenever it is made,” requires a specific motion). Nor did Durham take note of Rule 50’s contradictory language that “in every instance” a directed verdict shall state the specific grounds therefor. To the extent that the “whenever it is made” and “in every instance” phrases differ from the holding in Durham, we question their continued authority and consider the Durham standard to now control.
Consequently, in keeping with Durham, we deem appellant’s general renewal sufficient and, accordingly, we reach the merits of his first point on appeal. The cumulative testimony of a registered nurse, an emergency-room physician, a police officer, and a Department of Human Services case worker was overwhelming. They were unanimous in their conclusions that the wounds to the children were consistent with burns from both cigarettes and cigarette lighters or an open flame. We hold that this evidence was sufficient for the jury to infer that substantial pain was the result. See Gilkey v. State, 41 Ark. App. 100, 848 S.W.2d 439 (1993). The court did not err in denying either of appellant’s motions for directed verdict.
We are compelled to comment about an abstracting error related to the directed-verdict motion because it constitutes a violation of Rule 4-2(a)(6) of our rules regarding abstracts. In the abstract, the colloquy concerning the renewal of the directed-verdict motion appears as follows:
RENEWAL OF MOTIONS FOR DIRECTED VERDICT
(T. 287)
Counsel for Appellant moved for a directed verdict based on sufficiency of evidence, specifically lack of showing of substantial pain. The Trial Court denied the motion.
(Emphasis added.) The italicized phrase adds critical language to the motion that was clearly not in the record and which, therefore, was not presented to the trial court when the motion was made and denied at the close of all the evidence. To that extent, the abstract misstates the record and conveys the notion that the trial judge received and denied a newly articulated specific motion for directed verdict at the close of all the proof.
Rule 4-2(a)(6) provides that the appellant’s abstract should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the appellate court for decision. Ark. Sup. Ct. R. 4-2(a)(6). This obviously imposes a duty on counsel preparing the abstract not to misstate the record, as was done in this case by the addition of language in the renewed directed-verdict motion that was not argued to the trial court. We do not deem this error to be inadvertent because the misstated language goes to the very point addressed by appellant’s first point on appeal — that the trial court erred by denying the motion for directed verdict based upon the alleged insufficiency of proof regarding the substantial-pain element of the second-degree battery charge.
Lawyers are officers of the court. Courts necessarily rely upon their representations in the abstracts filed in appeals in order to decide cases. The abstract is to be a condensation of the material parts of the pleadings, proceedings, and other matters contained in the record so that the appellate court will understand the points of appeal. McAdams v. Automotive Rentals, Inc., 319 Ark. 254, 891 S.W.2d 52 (1995). Therefore, appellate courts depend upon the honesty and truthfulness of counsel regarding the abstracts filed in appeals. Where an abstract has been knowingly prepared by counsel with misrepresentation of a central issue on appeal, we are duty-bound to state our disapproval.
Finally, we also hold that the trial court did not err by refusing to include a jury instruction requested by appellant concerning the alternative sentences of probation or a suspended sentence. Appellant proffered the following instruction based on AMCI 2d 9111:
You will again retire to consider and complete one of the following verdict forms:
(Here, the appropriate verdict form is to be read to the jury.)
Timothy Dale may also contend that he should receive probation or suspended sentence. You may recommend that he receive this alternative sentence, but you are advised that your recommendation will not be binding on the court.
If you recommend an alternative sentence you shall so indicate on the form reading as follows:
(Here the alternative verdict forms are to be read to the jury.)
Even if you do recommend an alternative sentence, however, you must still complete the other verdict form.
All twelve of you must agree on the verdict, but only the foreperson need sign the verdict.
DEFENDANT’S PROFFERED B VERDICT FORM
ALTERNATE SERVICE (PROBATION)
We, the Jury, recommend the alternate service of probation.
FOREPERSON
DEFENDANT’S PROFFERED C
VERDICT FORM
ALTERNATE SERVICE (SUSPENDED SENTENCE)
We, the Jury, recommend the alternate service of suspended sentence.
FOREPERSON
AMCI 2d 9111.
It is true that our bifurcated sentencing statute, Ark. Code Ann. § 16-97-101(4) (Supp. 1995), provides that the trial court may, in its discretion, instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify, and that the jury may, in its discretion, make a recommendation regarding an alternative sentence which shall not be binding on the trial court. It is also true that Ark. Code Ann. § 5-4-104(Repl. 1993) provides that both probation and suspended sentences are “authorized” for second-degree battery. Nevertheless, authorizing a particular form of punishment is a far cry from mandating that it be considered, or that the jury be instructed that it be considered in a given case. Moreover, the permissive tone of the language in § 16-97-101(4) is unmistakable.
As we stated in a decision that predated the bifurcated sentencing statute, a criminal defendant has no right to a suspended sentence. Bing v. State, 23 Ark. App. 19, 740 S.W.2d 156 (1987). Appellant has cited us to no subsequent authority to the contrary, and we find no reason to depart from that principle. Moreover, the clearly permissive language of the bifurcated sentencing statute upon which the appellant’s proffered instruction was based further affirms the principle.
Affirmed.
NEAL, J., and Hays, S.J., concur.
Directed-verdict motions traditionally are made at only two junctures during a trial: at the close of the opponent’s case-in-chief and at the close of all the evidence. The word “whenever” implies more than one occurrence. Therefore, it is logical to assume that this language must contemplate both of these critical moments in a trial.
While this phrase may not be as inclusive as the earlier cited phrase from Middleton, supra (“whenever it is made”), we see no discernable legal distinction between them. It could mean “in every trial,” but neither the rule nor the case law provides guidance for this definition.
From a practical standpoint, the rule from Durham is eminently sensible. To require specific renewals of already specific motions elevates form over substance. As Durham also pointed out, the reasoning behind this rule of specificity is to adequately apprise the trial court, as well as the appellate court, of the grounds for the motion so that both courts make informed rulings. 320 Ark. at 689, 899 S.W.2d at 473 (1995). By stating our view that the Durham holding controls this issue, our aim is to make our procedural rules not only practical but consistent. A flurry of recent cases and rule changes has made this area of law a procedural minefield for trial attorneys. Our sense is that some confusion still surrounds the proper manner of moving for a directed verdict. We simply want to identify questionable precedent and make the law clear.
The Durham case and our discussion of it supra stand for the proposition that a general renewal of a directed-verdict motion is legally sufficient to preserve a specific motion previously made. This is independent of the appellant’s abstracting duty to accurately reflect what was actually said when the motion was made. Had the appellant alerted us to the fact that his abstracted renewal of the motion was incorporating or adopting the specifics of his earlier motion, this might be a different matter. The motion as abstracted left us with the impression that he actually uttered the words “specifically lack of showing of substantial pain” in his renewal. He clearly did not. | [
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JOHN F. Stroud, Jr., Judge.
Appellant, Michelle Lowell, has three sons by different former husbands, who are the appellees in this case. She was first married to appellee Brian Jackson. Their son is Joshua Scott Jackson. Appellant’s second husband was appellee Jimmy Smith. Their son is Brock Smith. Appellant’s third husband was appellee Robert E. Lowell. Their son is Robert A. Blake Lowell. Appellant was married to Robert Lowell when Jimmy Smith filed a petition in juvenile court for determination of dependency-neglect regarding his son, Brock Smith. Appellee Robert Lowell subsequently filed for divorce from appellant in chancery court. By temporary order filed October 22, 1993, the juvenile court found probable cause to believe the children were dependent-neglected. On that same day, the other two fathers, appellees Jackson and Lowell, filed motions to intervene in the juvenile proceeding and to consolidate their divorce actions with Smith’s juvenile proceeding. All three fathers sought custody of their respective sons. On November 12, 1993, the juvenile court granted Lowell’s and Jackson’s motions to intervene and consolidated the three actions. After several hearings, the juvenile court concluded that the children were dependent-neglected and that custody of the children should be vested with their respective fathers. Appellant raises six points on appeal, but finding no error we affirm.
Appellant’s first argument is that the juvenile court erred in assuming jurisdiction of appellee Smith’s dependency-neglect petition. She asserts that the chancellor in the Smiths’ divorce proceeding in the judicial district where the juvenile, Brock Smith, resided had previously determined that appellant should have custody of Brock, and this prior custody determination was open for modification and should be heard in that chancery court, rather than in the juvenile court. We find no error.
The juvenile courts of Arkansas are a division of chancery. Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990). However, juvenile courts have exclusive original jurisdiction for proceedings in which a juvenile is alleged to be dependent-neglected. Ark. Code Ann. § 9-27-306(a)(l) (Supp. 1995). The juvenile code provides that petitions for dependency-neglect may be filed by any adult. Ark. Code Ann. § 9-27-310(b)(3)(A) (Supp. 1995). Appellant argues that the juvenile courts were not intended to assume jurisdiction over ordinary custody matters. The allega tions of dependency-neglect, however, separated this case from those involving ordinary custody matters. Moreover, the trial judge was correct in reasoning that the consolidation of the three divorce proceedings with the juvenile action was appropriate to prevent conflicting custody orders within the same judicial district. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).
Appellant next argues that the juvenile court erred in allowing appellees Lowell and Jackson to intervene in the dependency-neglect proceedings because the motion to intervene was untimely, insufficient, and improper. We disagree.
The timeliness of the motion is a matter clearly within the trial court’s discretion, and it will be reversed only where that discretion has been abused. Employers Nat’l Ins. Co. v. Grantors to Diaz Refinery PRP Comm. Site Trust, 313 Ark. 645, 855 S.W.2d 937 (1993). The factors that we consider regarding the timeliness of a motion to intervene are: (1) how far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and (3) the reason for the delay. Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992). Here, the original petition for determination of dependency-neglect was filed by appellee Smith on September 14, 1993. Appellees Jackson and Lowell moved to intervene on the day the temporary order finding probable cause for dependency-neglect was entered, October 22, 1993, which was just over a month after the original petition had been filed. Appellant has not shown that there was any prejudice as a result of the intervention. We find that the juvenile court did not abuse its discretion in finding that the motion was timely.
With respect to the propriety of the intervention, Arkansas Rule of Civil Procedure 24(b) deals with permissive intervention. It provides that intervention may be permitted when the main action and an applicant’s claim or defense have a question of law or fact in common. Here, the common facts and questions of law involved the proper care and custody of the three sons. As with timeliness, permissive intervention is also a matter within the trial court’s discretion, and we will reverse only for abuse of that discretion. Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). We do not find that the trial court abused its discretion in allowing the intervention.
With respect to the sufficiency of the motion to intervene, appellant argues that Arkansas Rule of Civil Procedure 24(c) requires that the motion state the grounds for intervention and that it be accompanied by a pleading setting forth the claim or defense for which intervention is sought. She argues that no separate pleading was attached to appellee Jackson’s and Lowell’s motions to intervene, and therefore the trial court erred in allowing the intervention. We disagree.
Arkansas Rule of Civil Procedure 24(c) provides in pertinent part:
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.
(Emphasis added.) In Polnac-Hartman & Assoc. v. First Nat’l Bank, 292 Ark. 501, 731 S.W.2d 202 (1987), the supreme court affirmed the lower court’s denial of intervention, which had been based in part upon the appellant’s failure to file a pleading setting forth a claim or defense. In doing so, however, the supreme court explained:
The failure to file a pleading with a motion to intervene was the subject of our decision in Schact v. Garner, 281 Ark. 45, 661 S.W.2d 361 (1983). In that case a party moving to intervene refused to file a pleading setting forth its claim or defense as required by Rule 24(c) but insisted on being allowed to intervene in the litigation. The trial court denied the motion, and this court affirmed, noting that the movant had not shown entitlement to intervene as a matter of right or permissively. That, of course, is the purpose of filing a pleading. Without it, the court may not have any idea of the right asserted by the would-be intervenor. Although the appellant in this case attached the assignments to the motion, it did not state how or why they should be protected or what the claim of priority, if any, was. There was not even a statement telling the court that the assignments were, or were related to, the same properties which were the subjects of the foreclosure action.
(Emphasis added.) Thus, the purpose of attaching to the motion a pleading that sets forth the claim or defense for which intervention is sought is to inform the court of the right asserted by the would-be intervenor. Here, the motions to intervene contained statements of the relief sought, as well as affidavits setting forth facts and allegations in support thereof. Thus, the purpose of the rule was satisfied, and the trial court did not abuse its discretion in allowing the intervention. See 3B Moore’s Federal Practice ¶ 24.14 (2d ed.) (general discussion regarding leeway that has been allowed by federal courts under Rule 24(c) of the Federal Rules of Civil Procedure, which is virtually identical to our Rule 24(c)).
Appellant’s third argument is that the juvenile court erred in failing to appoint a guardian ad litem for the children and in failing to grant her motion for reconsideration on the guardian ad litem issue. At one of the early hearings, the juvenile judge stated that he would appoint a guardian ad litem for the children, but no such appointment was ever made. The parents of all three children were present with counsel at every hearing. Appellant did not complain or otherwise object to this oversight at or prior to the subsequent and final hearing on this matter held March 9, 1995. Rather, appellant merely requested in her motion to reconsider, filed March 14, 1995, that such an appointment be implemented before finalizing the order relating to custody. Accordingly, appellant cannot now argue this basis for reversal.
Appellant’s fourth argument is that the juvenile court erred in denying her motion to restore custody of the minor children to her. In making this argument, appellant asserts: (1) that the fundamental goal of the juvenile code is to restore the family unit, and that the juvenile court’s closing comments provided support for restoration of custody to appellant; (2) that with respect to Jimmy Smith and Brian Jackson, the only material change in circumstances that was proven was that appellant had changed for the better, a situation that should have resulted in a return of custody to her; and (3) that with respect to Robert Eugene Lowell, it was in his best interests to keep the siblings together in one household. We find no error in the juvenile court’s refusal to restore custody to appellant.
On appeal from a chancery court case, we review the evidence de novo. We will not reverse the chancery court unless its decision is clearly contrary to a preponderance of the evidence. Kerby v. Kerby, 31 Ark. App. 260, 792 S.W.2d 364 (1990). A finding is clearly erroneous when, although there is evidence to support the trial court’s decision, after looking at all the evidence the reviewing court is left with a definite and firm conviction that a mistake has been committed. Davis v. Davis, 48 Ark. App. 95, 890 S.W.2d 280 (1995). As in all custody cases, the primary consideration is the welfare and best interests of the children involved. All other considerations are secondary. Kerby, 31 Ark. App. at 264. In these type cases, the chancellor must utilize to the fullest extent all powers of perception in evaluating witnesses, their testimony, and the best interests of the children. In no other type of case does the superior position, ability, and opportunity of the chancellor to observe the parties carry as much weight as those cases involving minor children. Id. Juvenile courts are a division of chancery, and therefore the same standards of review apply. See Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990).
Here, it is true that the trial court noted that appellant’s attitude and demeanor had improved and that she had responded to the wake-up call as best she could. The court also stated, however, that she still had a “way to go.” Dr. Alan Tuft, a clinical psychologist, provided expert testimony in this case. The court credited Dr. Tuft’s testimony that he did not believe appellant had the ability to care for all three boys for an extended period of time. Moreover, the court determined that the evidence showed that the fathers provided safe, nurturing environments and that they were the more stable custodians for the boys. Appellant acknowledged that the fathers were excellent caretakers. Furthermore, there was ample testimony that the boys had customarily spent large amounts of time with their respective fathers, which undercuts appellant’s argument that they should be together in one household. In short, a review of the entire record demonstrates that the trial judge’s refusal to restore custody to appellant was not clearly erroneous.
Appellant’s fifth argument is that the juvenile court erred in granting Smith’s dependency-neglect petition and Jackson’s and Lowell’s motions because doing so was against the preponderance of the evidence. In particular, appellant argues that Dr. Alan Tuft’s initial report to the court favored appellant’s having custody of the children, and that the doctor’s only initial concern was appellant’s financial ability to keep the family together as a unit. She asserts that his opinion was turned upside down by the time he testified at the hearing because of “ex parte conferences” with persons friendly to the fathers. She also relies upon the fact that everyone who comes in contact with Josh, the oldest child, has nothing but good things to say about him. She argues that because she has had Josh fifty percent of the time, her positive parenting abilities are proven by the fact that Josh has developed so well. She concludes that the lower court’s findings to the contrary are therefore against the preponderance of the evidence. We disagree.
Appellant’s assertions about “ex parte conferences” with Dr. Tuft are not supported by legal authority nor well-reasoned argument. We do not consider allegations of error absent citation to authority or convincing argument. Bank of Cabot v. Bledsoe, 9 Ark. App. 145, 653 S.W.2d 144 (1983). Moreover, even though Josh has developed well and is highly regarded, that fact alone does not support appellant’s position that the trial court’s findings regarding custody are clearly erroneous. As stated previously in this opinion, the trial court’s findings were not clearly contrary to the preponderance of the evidence.
Appellant’s final argument is that the juvenile court erred in unreasonably restricting her visitation rights with the children. Appellant’s visitation with the children is very restricted. However, it is clear from the visitation schedule set forth in the final order that the lower court gave careful consideration to this issue. In reviewing chancery cases, we give due deference to the trial court’s superior position to evaluate the evidence, and we will not reverse the lower court’s findings unless they are clearly against the preponderance of the evidence. We find no clear error in this regard.
ABSTRACTING ABUSES
We cannot ignore the abstracting abuses of appellant’s counsel. Excessive abstracting is as violative of our rules as omissions of material pleadings, exhibits, and testimony. Saint Paul Fire & Marine Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995). Appellant’s abstract consisted of 402 pages. Much of this information could have been abridged or deleted for purposes of this appeal. This court’s efforts to resolve this matter on appeal would have been aided considerably by the scrupulous adherence to our abstracting rule. See Arkansas Supreme Court Rule 4-2(a)(6).
Affirmed.
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K.MAX KOONCE, II Judge.
This is an appeal from the
chancery court’s order refusing to require appellee to pay appellant any portion of the pass-through dividends or other earnings accrued in appellee’s 401K plan subsequent to the divorce decree and prior to the division of the plan by the' Qualified Domestic Relations Order. We affirm.
Appellant, Virginia H. Oliver, and appellee, Thomas E. Oli-vet, were divorced pursuant to a divorce decree entered on July 23, 1997. The divorce decree and property-settlement'agreement provided for the division of several retirement and pension plans. Appellee, an employee of Entergy, participated in the Employee Stock Ownership Plan, Employee Stock Investment Plan (“ESIP”), Savings Plan of Entergy Corporation (“401K plan”), and the Entergy Corporation Retirement Plan. Appellant participated in the TIAA-CREF Retirement Plan. The parties agreed to equally divide the value of the plans as of the date of the divorce decree and property-settlement agreement by means of a Qualified Domestic Relations Order (“QDRO”).
The QDROs were not filed of record until November 5, 1998, over one year after the divorce decree was entered. During this time, appellee received pass-through dividends from his 401K plan in June, September, and December 1997. Although the prop erty-settiement agreement specifically addresses pass-through dividends of the 401K plan received by appellee while the divorce was pending but prior to the entry of the divorce decree, the agreement does not address pass-through dividends received after entry of the decree but prior to the division pursuant to the QDROs. The property-settlement agreement does address stock dividends received from the ESIP after the date of the decree but before the stock was divided.
Appellant paid taxes in 1997, on one-half of the pass-through dividends paid to appellee between the entry of the decree and the division of the 401K plan pursuant to the QDRO. Appellant contends she paid the taxes based on appellee’s oral and written acknowledgments of liability to appellant for the dividends. After appellant paid the taxes, appellee informed appellant that she was not entitled to the dividends pursuant to the property-settlement agreement.
On May 28, 1999, appellant filed a motion for contempt requesting, inter alia, that the court order appellee to pay her one half of the pass-through dividends or other earnings from the 401K plan prior to the division of the plan pursuant to the QDRO. After a hearing on the motion, the court entered an order refusing to compel appellee to pay appellant any portion of the pass-through dividends or other earnings from the 410K plan pursuant to the provisions of the property-settlement agreement. The court found that the language of the property-settlement agreement was unambiguous and did not require appellee to pay appellant any portion of the pass-through dividends or other earnings from the 401K plan subsequent to the date of the divorce decree but prior to division. This appeal arises from that portion of the court’s order.
The standards governing our review of a chancery, court decision are well established. Although we review chancery cases de novo on the record, we do not reverse unless we determine that the chancery court’s findings were clearly erroneous. Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). A chancery 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 chancery court’s findings, we defer to the chancellor’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 chancery 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 chancery court erroneously applied the law and the appellant suffered prejudice as a result, we will reverse the chancery court’s erroneous ruling on the legal issue. Id.
In the present case, appellant contends the trial court clearly erred in finding the provision of the property-settlement agreement pertaining to the 40 IK plan unambiguous and refusing to consider parol evidence as to the parties’ intentions with respect to the pass-through dividends. The provision at issue is as follows:
(19) That Husband stipulates and agrees that during the pendency of this action Husband has received dividend “pass-through” from Husband’s 401K plan in the separate amounts of $1,199.75 and $1,202.03. Husband covenants and agrees that upon entry of this decree and property settlement agreement, Husband shall pay to Wife the cash sum of $1,200.89 representing Wife’s one-half of theQ dividend “pass-through” received by Husband. Husband covenants and agrees that Husband shall furnish an authorization allowing Wife or her attorney to verify all 401K Plan activity, including but not limited to inquiry concerning loans and/or dividends. This authorization shall expire 30 days from its issuance.
Appellant contends that the above provision is ambiguous and susceptible to more than one interpretation. She argues that this provision is latently ambiguous because the only dividend checks addressed are the ones appellee received between the filing of the divorce action and the date of the decree. However, one provision of the property-settlement agreement does address dividends received after the divorce decree but prior to division of the stock. This provision is as follows:
(18) That Husband stipulates that during the pendency of this action Husband has received “ESIP” stock dividends in the amount of $90.00. Husband covenants and agrees that upon entry of this decree and property settlement agreement, Husband shall pay to Wife the cash sum of $45.00 representing Wife’s one-half of dividends. That until such time as the ESIP stock is divided pursuant to his property settlement agreement, Husband shall divide equally with Wife any dividends he may receive prior to division of this stock with Wife.
When a contract is unambiguous, its construction is a question of law for the court, and the intent of the parties is not relevant. Kennedy v. Kennedy, 53 Ark. App. 22, 918 S.W.2d 197 (1996). Where a contract is ambiguous, parol evidence may be introduced to assist the fact finder to determine the intent of parties to a contract. Minerva Enterprises, Inc. v. Bituminous Casualty Corp., 312 Ark. 128, 851 S.W.2d 403 (1993). An ambiguity can be patent or latent. Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998). A latent ambiguity arises when the contract on its face appears clear and unambiguous, but collateral facts exist that make the contract’s meaning uncertain. Id. A latent ambiguity may be one in which the description of the property is clear upon the face of the instrument, but it turns out that there is more than one estate to which the description applies; or it may be one where the property is imperfectly or in some respects erroneously described, so as not to refer with precision to any particular object. Williams v. Black Lumber Co., 275 Ark. 144, 628 S.W.2d 13 (1982). Parol evidence is admissible not only to bring out the latent ambiguity but also to explain the true intention of the parties. Id.
We find that provision (19) of the divorce decree and property-settlement agreement is unambiguous, containing no patent or latent ambiguity. The divorce decree and property-settlement agreement explicitly provided that the appellee’s retirement plans, including the 401k plan, “shall be divided equally as of the date of the decree.” Provision (19) does not address the pass-through dividends received after the date of the decree but prior to the division pursuant to the QDRO. Provision (18) addresses stock dividends of the ESIP received after the settlement agreement but prior to the division, although no other provisions for post-decree dividends were made in the decree. If the parties had intended to divide the pass-though dividends of the 401K plan received after the decree but prior to the division pursuant to the QDRO, such a provision could have been provided as was the case for the ESIP dividends. Because the divorce decree and property-setdement agreement contains no ambiguity, parol evidence was inadmissible. Therefore, we affirm.
Affirmed.
Bird, Crabtree, and Meads, JJ., agree.
Robbins, C.J., and Roaf, J., dissent. | [
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JOHN F. STROUD, Jr., Judge.
Charles McChristian, Jr., was convicted in a bench trial of possession of a controlled substance, cocaine, and was sentenced as a habitual offender to sixty months in the Arkansas Department of Correction. His attorney filed a motion to withdraw on the grounds that the appeal has no merit; pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j) (1999), his motion was accompanied by a brief including an abstract and an argument section that addresses all rulings adverse to appellant at trial. The clerk of this court furnished a copy of counsel’s brief to appellant. Appellant then filed a pro sebrief, and the State filed a brief responding to appellant’s arguments.
Appellant’s counsel notes that the trial court ruled adversely to appellant regarding the sufficiency of the evidence, admissibility of certain evidence, and sentencing. Appellant argues in his pro se brief that cocaine admitted into evidence at trial was inadmissible because the chain of custody was not estabbshed and because there were differences in an officer’s testimony and the crime lab report regarding the substance. We find the arguments to be without merit.
Sufficiency of the Evidence
Under Ark. Code Ann. § 5-64-401 (Supp. 1999), it is unlawful for any person to possess a controlled substance except as authorized by the code. On appeal of criminal cases, whether tried by a judge or jury, we review the evidence in the light most favorable to the State and affirm if there is any substantial evidence to support the trial court’s judgment. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is forceful enough to compel a conclusion one way or the other without resort to suspicion or conjecture; in determining the sufficiency of the evidence, this court need consider only the evidence most favorable to appellee and testimony that supports the verdict of guilty. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). Determination of credibility is solely within the province of the fact-finder. Stephenson v. State, 334 Ark. 520, 975 S.W.2d 830 (1998).
In the present case, Officer Singleton of the North Little Rock Police Department testified that while he was on patrol, appellant approached him to discuss a matter; that Singleton determined through a computer check that there was an arrest warrant outstanding for appellant; that Singleton conducted a pat-down search for weapons but did not check appellant’s shoes; and that Singleton placed appellant, who was not handcuffed, into the back seat of the patrol car. Singleton also testified that he saw appellant’s hand move down to his shoe and saw a Baggie fly from his hand to the floorboard, about eight inches from his foot; that Singleton removed appellant from the car and retrieved the Baggie; and that the Baggie contained about six rocks of what appeared to be crack cocaine. Singleton further testified that he took the evidence to the NLRPD’s property room to be sent to the crime lab; that he put it inside a property envelope, which he marked and tagged as he normally did by covering the back with evidence tape, initialing through the tape, and signing at the bottom. Investigator Tim Willis testified that in his work with the narcotics division of the NLRPD, he picked up the envelope from the property .room and took it to the state crime lab; that the evidence was assigned a lab number; and that he had brought to court a certified copy of the lab report. The report, which was admitted into evidence, includes the item description “one (1) plastic bag containing a hard off-white rock-like substance (0.441 gram),” and shows the test results “cocaine base.”
The above testimony of the police officers and the lab report constitute substantial evidence that appellant possessed cocaine. Thus, the evidence was sufficient to support appellant’s conviction for possession of cocaine.
Admissibility of the Evidence
Appellant objected twice at trial to admission of State’s Exhibits Nos. 1-3, which were, respectively, the Baggie of cocaine, the márked property envelope, and the state crime laboratory report. The first objection was to the chain of custody; the second was on the basis “that Officer Singleton testified that the drugs that he recovered were six individual rocks in a small Baggie, where the lab report is saying ‘one plastic bag containing a hard off-white rock-like substance.’ That’s substantially different from what Officer Singleton is saying he recovered.”
Officer Singleton testified that he marked and tagged the bag of suspected contraband, which he identified at trial as State’s Exhibit No. 1, after seizing it from his patrol car; that he put it into a property envelope, which he identified as Exhibit No. 2, and placed it in the property room. Investigator Willis identified Exhibit No. 2 as the property envelope that he transported from the property room to the state crime lab, and he identified Exhibit No. 3 as the certified copy of the corresponding lab report. Their testimony sufficiently established the chain of custody for the three items.
Regarding Officer Singleton’s and the lab report’s different descriptions of the contraband, appellant relies upon Crisco v. State, 328 Ark. 388, 943 S.W.2d 582, supp. op. on reh’g, (1997). In Crisco an officer testified that he had purchased a substance from the defendant, had put the substance into a plastic bag, and had placed the bag inside a manilla envelope to which he attached an evidence submission form. The form described the substance as “one bag of off white powder substance,” but the state crime lab’s report described it as “one triangular piece of plastic containing a tan rock-Hke substance (0.318 gram).” The Crisco court stated:
The purpose of establishing chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996); Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). See also Ark. R. Evid. 901. The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Newman v. State, supra, Lee v. State, supra, Harris v. State, supra; Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Gardner v. State, supra; Nash v. State, 267 Ark. 870, 591 S.W.2d 670 (Ark. App. 1979). We have stated that the proof of the chain of custody for interchangeable items like drugs or blood needs to be more conclusive. Lee v. State, supra; Gardner v. State, supra; Brewer v. State, 261 Ark. 732, 551 S.W.2d 218 (1977).
328 Ark. at 392, 943 S.W.2d at 584-85. The Crisco court, holding that the State failed to prove that the drug tested was properly authenticated, reversed the conviction for delivery of methamphetamine.
Here, the substance in question was identified by the officer who retrieved it as “six rocks” of what appeared to be crack cocaine, while the chemist’s report described it as “a hard off-white rock-like substance.” While in the Crisco case there was a difference in descriptions of the color and texture of the substance (white powder substance versus tan rock-like substance), here the difference is only in a specific number of rocks versus a reference to “a hard off white rock-like substance.” We view differences in these descriptions, at most, as conflicts in evidence properly weighed by the finder of fact rather than as a failure to prove the authenticity of the cocaine. Furthermore, there were no allegations of tampering. Thus, the State sufficiently established the chain of custody. It is not necessary that the State eliminate every possibility of tampering; instead, the trial court must be satisfied that in all reasonable probability the evidence has not been tampered with. See Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993).
Sentencing
The final ruling adverse to appellant was the court’s decision to sentence him to five years rather than to the minimum of three years. The five-year sentence was within the range of possible sentences for this offense, and appellant had an extensive criminal record that the court was allowed to consider. If the sentence fixed by the trial court is within legislative limits, we are not free to reduce it absent three extremely narrow exceptions: 1) the punishment resulted from passion or prejudice; 2) it was a clear abuse of discretion; or 3) it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995). Because none of these exceptions apply in this case, any argument regarding the length of the sentence is without merit.
Motion granted; conviction affirmed.
Robbins, C.J., and Koonce, J., agree. | [
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Lawson Cloninger, Judge.
On June 27, 1977, appellee, Sandra J. Bass, administratrix of the estate of Johnny D. Bass, deceased, filed a complaint alleging that appellant, Home Federal Savings and Loan Association, negligently failed to procure credit life insurance requested by the decedent, Johnny D. Bass. On October 24, 1978, after the appellee herein rested, the trial court directed a verdict for appellant, which was appealed to this Court.
On August 15, 1979, this Court delivered an opinion which reversed and remanded the case, holding that the appellant, who is the appellee in the instant case, met the burden of proof necessary for a jury to decide whether appel-lee was negligent. Bass, Administratrix v. Home Federal Savings & Loan Association, 266 Ark. 770, 587 S.W. 2d 48 (Ark. App. 1979). The issues were subsequently presented to a jury, which on March 5, 1980, found in favor of appellee herein, Sandra Bass.
On this appeal, appellant relies upon three points for reversal: (1) The trial court should have directed a verdict for appellant after both parties rested; (2) The trial court admitted improper evidence which was prejudicial to appellant; (3) The trial court gave an erroneous instruction.
On August 18, 1976, Johnny Bass and Sandra Bass, husband and wife, obtained a home loan from appellant. A federal reserve disclosure statement which pointed out the amount of the loan, the interest rate, and the monthly payments for principal and interest, was presented to the Basses, and the statement form contained a space for the signature of the applicants if they desired to purchase credit life at a cost of $4.16 per month. Appellant’s employee who prepared the papers and closed the loan had credit life insurance applications with Integon Insurance Company in her desk, but did not advise the Basses that it would be necessary to fill out an application, or to take any other steps to effectuate insurance. No application was made by the Basses and no credit life insurance was procured.
Johnny Bass went to the hospital in December, 1976, and in February, 1977, it was determined that he was terminally ill with a brain tumor. He died May 18, 1977.
Seven years prior to August, 1976, Johnny Bass at age seventeen had a leg amputated for the treatment of bone cancer, but he had not gone to a doctor for any treatment for at least three years prior to the discovery that he had a brain tumor. The medical doctor for Integon Insurance Company testified that an insurance application on behalf of Johnny Bass would not have been accepted by Integon, but that an application would have been considered in August, 1979. The trial court admitted, over the objection of appellant, documents and testimony indicating that credit life insurance had been issued to Johnny Bass covering a bank loan, an automobile loan, and a refrigerator loan, in 1975 and 1976. This evidence was introduced, and limited by the trial court, on the issue of the insurability of Johnny Bass.
The trial court was correct in its denial of appellant’s motion for a directed verdict at the end of all the testimony. On the previous appeal of this case, this Court held that the jury may have found that the Basses were led to believe credit life was being provided, and that the jury may also have found that there was a duty on the part of Home Federal to process an insurance application in the normal way. We found that Sandra Bass, as administratrix, had met the burden of proof necessary for the jury to decide whether Home Federal was negligent. The ruling of this Court on the previous appeal that the appellee here had made a prima facie case of negligence becomes the law of the case on this appeal, and appellant has been unable to present any evidence which would justify taking the issue from the jury. If there is any substantial evidence tending to establish an issue in favor of a party against whom the verdict is requested to be directed, it is error for the court to take the issue from the jury. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307 (1969). In testing whether there is substantial evidence, the testimony and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict is directed, and if fair-minded persons might reach different conclusions, it is error to direct a verdict. Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532 (1974). When the evidence in this case is viewed in the light most favorable to appellee, the question of appellant’s negligence was a proper issue for the jury to determine.
The second and third points relied upon by appellant for reversal relate to the insurability of Johnny Bass at the time he made a request to appellant for credit life insurance, and these points bring into focus the divergent approaches made by appellant and appellee to the issues of the negli gence and liability of appellant. Appellant contends that in order to show that the alleged negligence of appellant was the proximate cause of the damages sustained by appellee, the appellee was required to show that the application of Johnny Bass, if processed, would have been approved by Integon Insurance Company. Appellee contends that the whole point of its case is that there were other insurance companies willing to insure Johnny Bass, and that Johnny Bass was denied an opportunity to look elsewhere for insurance because appellant negligently failed to take any steps to process his application and failed to notify Johnny Bass of this fact.
We believe the trial court correctly presented the appel-lee’s theory of the case to the jury when it gave Instruction number 6, not objected to by appellant, as follows:
You are further instructed that if the defendant, Home Federal, undertook to procure a policy of insurance for the plaintiffs for credit life, then the law imposed upon them the duty, in the exercise of reasonable care, to perform the obligation that they assumed. In this case, if you believe from a preponderance of the evidence that the defendant, Home Federal, contracted with the plaintiff Bass to provide him with credit life insurance and failed to exercise ordinary care or diligence in their effort to provide said insurance or failed to reasonably notify Bass of their inability to obtain such insurance your verdict will be for the plaintiff, Sandra Bass. If you do not so find, then your verdict will be for the defendant, Home Federal.
The trial court gave, over the objections of appellant, Instruction number 5 as follows:
Sandra Bass, executrix of the estate of Johnny Bass, claims damages from the defendant, Home Federal Savings and Loan, and has the burden of proving each of four essential propositions:
First: That Johnny Bass has sustained damages;
Second: That Home Federal breached an obligation to process and provide credit life for Johnny Bass, or that they were negligent in processing an application for and providing credit life;
Third: That Johnny Bass was insurable on August 18, 1976;
Fourth: That such breach of obligation or negligence was the proximate cause of the damages sustained by Johnny Bass.
Appellant urges that Instruction number 5 was erroneous, not because it was a wrong declaration of the law, but because there was no evidence in the record from which the jury could find substantial evidence of the elements stated; that although appellant may have been negligent, there was no causal connection between its negligence and appellee’s damages. The jury found that there was a causal connection, and we find that there was substantial evidence upon which to base that finding. It cannot be said with certainty that Johnny Bass could have secured other insurance if he had been aware that he had none through appellant, but he was entitled to the opportunity to try. The instruction was erroneous in that the second portion improperly placed upon appellee the burden of proving that appellant was obligated to provide credit life for Johnny Bass. Appellant is in no position to complain, for the reason that the instruction is more favorable to appellant than it is entitled to demand. Thompson, Trustee v. Magness, 206 Ark. 1081, 178 S.W. 2d 493 (1944).
Appellant urges that the third portion of Instruction number 5 should have been extended to tell the jury that appellee had the burden of showing that Johnny Bass was insurable under the arrangements available to appellant through Integon Insurance Company. Appellant was not entitled to such an instruction, because it was never the contention of appellee that Johnny Bass was insurable by Integon. The third portion of Instruction number 5 is indefinite, because the term “insurable” was not defined in any part of the instructions to the jury. A person is insurable if he meets the criteria established by a particular insurance company, and each company has its own criteria defining insur-ability. As used in the context of Instruction number 5 “insurable” could be interpreted as meaning that appellee had the burden of proving Johnny Bass insurable by Integon Insurance Company, or it could mean that appellee had only to prove that Johnny Bass was insurable by any company. The jury found under the instruction that Johnny Bass was insurable, and appellant is not in a position to complain, having failed to offer an instruction defining insurability.
Evidence tending to show that Johnny Bass was insurable by companies other than Integon Insurance Company was relevant, and it was competent for that limited purpose. Uniform Evidence Rule 403, Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or misleading the jury. We do not find that appellant was unduly prejudiced by the admission of evidence regarding the insurability of Johnny Bass, or that the jury was misled by it.
The judgment is affirmed. | [
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George K. Cracraft, Judge.
Appellant Linda Valentine’s employment with McGehee Industries was terminated on October 2, 1980. The agency held her eligible for benefits under the Employment Security Act, and that determination was affirmed by the Appeal Tribunal. The Board of Review reversed the Tribunal’s decision declaring her ineligible for benefits. We agree with the appellant that the Board of Review erred in that determination.
The facts are not seriously in dispute. The appellant was granted a maternity leave from her employment. After the birth of her child she received a certificate from the doctor permitting her to return to her employment on September 29, 1980. It was a policy of the company to grant such leaves of absence and to hold the position of the employee open for them on their return. On September 29, 1980, the appellant did return to work and worked that day. The next day she informed her supervisor that the baby was sick and that she would be back the following day.
On October 2, 1980, she informed the supervisor that the doctor had told her that it would be necessary for her to remain with the child until it was better and that she would be unable to return to work for a week or more. She thereupon asked for an extension on her leave of absence and was informed that under no circumstances could she be granted additional leave. The appellant stated that as she was not going to be granted a leave it appeared that she would have to terminate her employment. The supervisor said, “I hate for you to do it, but I have got to have somebody to run this line.” The supervisor stated that she showed her as “terminated” because had she not quit, she would have been fired. There was in the record a notation of a telephone call with a Dr. L. K. Austin, concerning the extent of the baby’s illness which reflected that “the child was very sick and that he did advise her that she needed to be with the baby until it was better,” and that if any additional information or medical report was needed, to call him. It thus appears that the appellant’s claim of personal emergency was corroborated by medical testimony. The question before the court is whether these circumstances excuse her from those penalties imposed upon one who voluntarily leaves his employment.
Ark. Stat. Ann. § 81-1106(a) (Supp. 1979) provides as follows:
Disqualification for benefits. — For all claims filed on and after July 1, 1973, if so found by the Director an individual shall be disqualified for benefits:
(a) Voluntarily leaving work. If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least thirty (30) days of employment covered by an unemployment compensation law of this State, or another state, or the United States.
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification; or, if after making reasonable efforts to preserve his job rights, he left his last work because of his illness, injury, pregnancy or other disability. (Emphasis added.)
In this case the appellant contended that she did not quit her job for personal reasons, but to care for her infant child on the advice of her doctor.
The evidence further indicated that by seeking additional leave she had made reasonable effort to preserve her job rights. She then had to choose between leaving her sick infant unattended or quitting the job.
We reach the conclusion that this appellant was confronted with a personal emergency of such compelling urgency that it would be contrary to good conscience to impose a disqualification upon her, and that she was therefore justified in quitting her job on October 2nd and was not disqualified for benefits under this section. Wade v. Thornbrough, 231 Ark. 454, 330 S.W. 2d 100.
The decision of the Board of Review is reversed. | [
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Tom Glaze, Judge.
This appeal involves a boundary dispute between the appellants and appellee who live in separate but adjoining additions in Russellville, Arkansas, viz., East Shores Estates and Yendrek. At the trial of this case, appellants and the appellee presented expert testimony in an attempt to establish their respective claims to the property in question. Appellants relied on testimony given by C. R. Warndof, the engineer who surveyed and platted the two described adjoining additions. The appellee presented evidence to substantiate her claim through Danny Hale, an engineer who surveyed the subject property on several occasions as well as surrounding property located in both platted additions. For the sake of clarity and discussion, the survey map prepared by Hale and introduced at trial by appellee is reproduced as follows:
In viewing the Hale survey map, appellee owns Lot 9 in East Shores Estates and appellant Charles Cauthon owns Lot 8 in East Shores Estates. Appellants Cordia Wilkinson and John and Nina Price own Lots 6 and 7 respectively in the Yendrek Addition. The boundary dispute between these parties arose when appellee claimed ownership to a narrow, triangular strip of land which lies adjacent to and some feet south of the appellee’s and the Cauthon’s platted lots. The survey map shows this strip, commencing at the southwest corner of appellee’s Lot 9 and runs south to the fence (designated with X’s), then runs easterly along the fence five hundred fifty feet, then north to the south line of Lot 8 of East Shores Estates, and then westerly along the south lot line of Lots 8 and 9 of East Shores Estates to the point of beginning.
Appellee contends that this described strip of land was never platted and was deeded to her by the developer of East Shores Estates. Appellants, on the other hand, contend that the Hale map is in error and varies from the certified plat survey prepared by Warndof, which they argue should control the boundary dispute. There are two major differences between Hale’s survey map and the original plat filed by Warndof: (1) Hale shows the East Shores Estates south boundary lot lines to be some feet north of an old fence, while Warndofs plat depicts the south boundary of East Shores Estates to be the same as the fence line; (2) Hale’s map reflects the fence to be six feet south of the East Shores Estates platted line at the point where the line touches the cul-de-sac portion of Shore Drive, a street located in East Shores Estates but which was used as a means of ingress and egress by the appellants who live in the Yendrek Addition. Warndofs plat places both the East Shores Estates platted line and the fence tangent to the cul-de-sac. The Warndof plat reflects the fence as the common plat line for the south boundary of East Shores Estates and the north boundary of the Yendrek Addition. In this event, the appellants would have continued access to their lots in the Yendrek Addition by Shore Drive where this street directly meets the respective additions’ platted boundary lines. However, if the Hale survey is correct and controlling, the fence and the Yendrek north boundary line is at least six feet south of the cul-de-sac, and this same area where the cul-de-sac touches the south plat line of East Shores Estates is also included within the strip of land to which appellee claims ownership. Thus, the appellants would have no legal right to cross this strip of property to gain access to their lots.
After reviewing the surveys, plats, photos and testimony of Warndof and Hale, we cannot say that the chancellor’s finding was clearly erroneous in recognizing appellee’s claim to the strip of land in dispute. Testifying relative to his original plat of East Shores Estates, Warndof stated that he marked the corners of appellee’s Lot 9 and recalled placing the corner at the fence line. Hale testified that he had surveyed Lot 9 a few months prior to trial, and he found the iron fence post set by Warndof marking the lot’s corner, and Hale stated the corner of the lot is located six feet north of the fence. Hale further testified that, in checking his survey, he found the dimensions and distances of Lot 9 came out to the described corner iron fence post which had been set by Warndof.
It is a well settled rule of surveying, recognized by the courts, that the lines actually run control over maps, plats or field notes. The actual survey originally made is evidenced by the fixed boundaries then established, and the actual survey must, therefore, govern over the erroneous plat thereof. Pyburn v. Campbell, 158 Ark. 321, 325, 250 S.W. 15 (1923). There were two surveyors who offered conflicting testimony below, and we cannot say that the chancellor’s acceptance of Hale’s survey as being correct with reference to the true boundary line is against the preponderance of the evidence. See Carroll v. Reed, 253 Ark. 1152, 491 S.W. 2d 58 (1973).
Appellants argue next that the strip of land claimed by appellee was never originally platted, and therefore, this land inures to the benefit of the public. In other words, appellants contend that the strip of property in question, including the six feet over which they must travel to gain access to their property from the cul-de-sac, was intended for public use since it was not platted. In support of this proposition, appellants cite Davies v. Epstein, 77 Ark. 221, 92 S.W. 19 (1905) and Arkansas State Highway Commission v. Sherry, 238 Ark. 127, 381 S.W. 2d 448 (1964). The court in each of these cases relied on the rule of law that:
An owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable.
The Sherry court additionally adopted the legal principle that:
... where an owner of a subdivision of land records a map thereof without reservation, he thereby offers to dedicate streets and roads shown thereon to public use, even though there is no express declaration of dedication in the plat.
In any case where the original plat does not clearly plat and dedicate certain property for public use, the underlying question to decide is whether the owner (developer) intended to dedicate the land in controversy. The intention to which courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts. Davies v. Epstein, supra.
Unlike the instant case, the lands in controversy in both Sherry and Davies abutted a dedicated public street or highway, and in Davies the land additionally was bordered on the opposite side by a navigable lake. In Sherry, the court held the disputed land was specifically and clearly dedicated on the plat as part of a fifty foot right-of-way for a U.S. Highway even though the owners of the property testified that they had not intended to do so. In Davies, as is true in the facts before us, the plat did not specifically dedicate the land in controversy. The Davies court decided the owner intended to dedicate the land to public use because it was inconceivable that the owner intended to lay out a town on the banks of navigable water, parallel to the bank with a street and at the same time entirely cut it off from access by the public. In so holding, the court relied on the legal presumption that a grant or dedication was intended to enable the public to get to the water for the better enjoyment of the public right of navigation. Davies v. Epstein, supra, at page 225.
In the case at bar, the facts just do not support a dedication for public use. Contrary to appellants’ contention, the land in dispute, as determined by the chancellor and affirmed by us, does not abut a street or the cul-de-sac portion of Shore Drive. As discussed earlier, the strip of land is bordered on the south by a fence and on the north by the south boundary of East Shores Estates. There is nothing in the original plat or the testimony of either surveyor that a public ingress or egress was to be constructed leading from East Shores Estates Addition into the Yendrek Addition. In fact, if one views the entire length of this extremely narrow strip of property, it is difficult to perceive of any intended public use to which this property could be put. We certainly agree with the chancellor that there is substantial evidence and reason to support a finding that the owner did not intend to dedicate the subject property.
In conclusion, we do wish to modify the chancellor’s decision in one respect. The chancellor decreed that appel-lee’s ownership not only extended from Lot 9 to the south boundary (fence) of the unplatted property discussed previously, but also the court held appellee is the owner of all other lands lying between the platted East Shores Estates and the quarter line, i.e., from Lot 9 to the quarter line. The record clearly shows that the property south of the fence was platted as part of the Yendrek property. Any deed which appellee received from the owner was subject to the platted property in East Shores Estates and Yendrek. There is no evidence that we can find in the record which would support any claim appellee might assert to this additional land awarded appellee by the chancellor.
We, therefore, remand this cause to the trial court with directions to enter a decree consistent with this opinion, reducing accordingly the amount of land awarded appellee.
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Tom Glaze, Judge.
This appeal involves an action to determine heirship filed by appellants, Mozella Watson and Mae Ethel Brunson, in the administration of the estate of Moses Wright, who died on December 31, 1977. The appellants alleged that they were the children and heirs of the decedent. Lillian Wright, the decedent’s widow, was the administratrix of the estate, and in her response to appellants’ petition, she acknowledged that appellants were the illegitimate children of Moses Wright, and acknowledged further that the appellee, Leola Vales, was also the illegitimate child of the deceased. Vales, on the other hand, filed an answer denying that the appellants were the children of Moses Wright, and alleged that they had no interest in the estate. The probate court found Vales to be the sole heir at law of Moses Wright, subject to the dower rights of his widow, and it held further appellants were not the children of the decedent, finding, rather, that they were the lawful children of Precious and Ernest Davis. The appellants appeal only from that part of the lower court’s decree which denies they are the children and heirs of Moses Wright.
The specific facts which give rise to this appeal are not in dispute. In 1945, the appellants’ mother, Precious Black, married Ernest Davis in a ceremonial wedding performed by a minister. There is no evidence indicating a marriage license was issued or recorded. Precious Davis testified that in January, 1946, she and Mr. Davis permanently separated. She further testified that she and Moses Wright began to have a relationship in 1947 which lasted until July, 1949. During this period, Precious gave birth to both appellants and stated at the hearing below that Moses Wright was their father. In reaching its decision, the trial court primarily relied on the well known legal presumption that a child born in wedlock is legitimate. In so holding, the court also rejected the testimony of the appellants’ mother, Precious Davis, in her attempt to rebut the presumption of legitimacy by stating Mr. Davis had no access to her during the period in which the appellants were conceived. We believe the trial court was correct on both points.
The presumption of legitimacy of children born during the wedlock of two persons is well grounded in common law and Arkansas statutory law. See Bankston v. Prime West Corporation, 271 Ark. 727, 610 S.W. 2d 586 (Ark. App. 1981). We also held in Bankston that a parent’s testimony is incompetent when it is employed to bastardize a child. The trial court in the instant case followed both of these legal principles when it found that the appellants were the natural children of Ernest Davis.
Appellants, however, argue there never was a legal marriage between Precious and Ernest Davis because there is no evidence that a marriage license was issue and recorded as required by Arkansas law. The Supreme Court, however, in DePotty v. DePotty, 226 Ark. 881, 295 S.W. 2d 330 (1956) held that our marriage license statutes are merely directory and not mandatory, and although Ark. Stat. Ann. § 55-201 (Repl. 1971) provides for the procurement of an Arkansas license by those contracting marriage, Arkansas has no statute providing a marriage is void when no license is obtained. In DePotty, the court found valid a marriage between a couple who, without an Arkansas license, had a ceremonial marriage performed by a duly qualified minister. In view of the clear holding in DePotty, we find no merit in appellants’ argument that the earlier Supreme Court case of Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808 (1921) requires that a person must procure a license and be married by a minister.
Appellants also contend the legitimacy presumption rule should not apply to them because the only proof in the record shows that Precious and Ernest Davis were not living together or cohabiting as husband and wife since January, 1946, and the oldest appellant, Brunson, was born March 11, 1948, over two years after the Davis’ separation. It is true that a number of family members and a friend testified that Moses Wright acknowledged and held himself out as the father of appellants, but this is not sufficient evidence to rebut the appellants’ legitimacy status. Our courts have long held that the presumption of legitimacy rule can only be overcome by the clearest evidence that the husband was impotent or without access to his wife. Thomas v. Barnett, 228 Ark. 658, 310 S.W. 2d 248 (1958). In the case at bar, there was no evidence concerning Mr. Davis’ impotency, and the only evidence of nonaccess was presented through the testimony of Precious Davis, the wife. As mentioned earlier, the trial judge ruled this testimony incompetent and, in doing so, relied on the Lord Mansfield rule which has been recognized and adopted by our Arkansas courts. Thomas v. Barnett and Bankston v. Prime West Corporation, supra. In summary, our courts, in following the Lord Mansfield rule, have held that neither a husband nor wife is competent to testify to the husband’s nonaccess in affiliation proceedings where such testimony would tend to prove a child conceived after marriage to be illegitimate. Applying this rule to the facts before us, we conclude the trial judge correctly refused to consider the testimony of Precious Davis, and therefore, failed to rebut the appellants’ legitimacy status.
The appellants take rather strong exception to the application of the presumption rule which causes the appellants in the instant case to be the legitimate children of Ernest Davis rather than the illegitimate children of Moses Wright. Although appellants recognize the rule is founded on moral law and protects the innocent child, they árgue its application here merely deprives them of their right to inheritance in the decedent’s estate. We believe appellants’ perspective in this regard is much too narrow and fails to recognize the sound principles of public policy which are servecLby the rules followed by our courts in deciding cases where legitimacy issues exist. For instance, what application of these rules would the appellants ask us to take if Ernest Davis had died and left a valuable estate? Under these circumstances, the rules appellants urge us to ignore here would serve to protect their interest in any estate left by Davis. If we looked to the whims of the parties or equities in each case before deciding to apply or not apply these rules in legitimacy cases, there would be little stability or predictability in our descent and distribution or paternity actions.
For the foregoing reasons, we affirm.
Affirmed.
Cracraft, J., not participating.
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James R. Cooper, Judge.
Appellant was charged December 17,1979 with two counts of theft of property having a value in excess of $2,500.00, in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977), and one count of theft of receiving property having a value in excess of $100.00, in violation of Ark. Stat. Ann. § 41-2206 (Repl. 1977). On March 19, 1980, another information was filed charging him with breaking or entering in violation of Ark. Stat. Ann. § 41-2003 (Repl. 1977). Appellant signed plea statements related to all these charges and proceedings were had to accept his guilty plea on May 22, 1980, the date the cases were set for trial. The Court accepted appellant’s plea of guilty on all four counts and assessed a sentence of six years on each theft of property count, five years on the theft by receiving count and two years on the charge of breaking or entering with all those sentences to run consecutively as to each other and to any sentence which the defendant was then serving. On the same day appellant filed a “Motion to Withdraw a Guilty Plea”, and a hearing was held on that motion June 11, 1980. The trial court denied the motion, and from that denial arises this appeal.
Appellant had negotiated a plea with the prosecuting attorney’s office in which it was agreed that he would plead guilty to all four charges in exchange for a recommendation of a sentence of six years on each of the theft of property charges, five years on theft by receiving, and an unspecified amount of time on breaking or entering, with all sentences to run concurrently with each other and with any sentence defendant was then serving, making the total jail time six years. In the plea statements, appellant acknowledged that he understood the minimum and maximum sentences possible on each charge and that he was waiving his right to trial by jury or by the Court. He also indicated that he understood that the plea bargain was not binding on the Court. In open court the judge inquired of appellant as to whether he understood that the judge did not have to give him the sentence that had been negotiated and the appellant indicated that he did understand. After the Court learned of the terms of the plea agreement, the Court inquired of some of the victims of the crime who were present as to whether they approved of the plea agreement. Some indicated they did not. The Court indicated that his policy was to decline to accept negotiated pleas on separate occurrences for concurrent sentencing, but that when the crimes alleged occurred as separate transactions he believed those sentences should run consecutively. At that point the Court indicated that it would allow appellant to withdraw his guilty plea. Seven days time was requested by appellant’s attorney to discuss the matter and the Court declined to grant that amount of time and indicated that if appellant was tried by a jury and found guilty that the Court would run any sentences imposed by the jury consecutively. The prosecutor then advised the Court that the case had been set for trial that day and that all the state’s witnesses were present. Having been reminded of this fact the Court indicated that it was withdrawing its offer to allow appellant to withdraw his guilty plea and was ready to sentence appellant. Appellant’s attorney indicated that he knew of no reason why sentence should not be imposed at that time and the sentences were imposed as stated earlier.
At the hearing June 11, 1980, on the motion to withdraw the guilty plea, appellant testified that he believed he would receive a sentence of six years total, that he was dissatisfied with the plea when he found out that he would receive a sentence totaling nineteen years, and that he wanted a trial by jury.
Rule 26.1 of the Ark. Rules of Crim. Proc. (Repl. 1977) provides in part:
a. The Court shall allow a defendant to withdraw his plea of guilty or nolo contendere upon a timely motion and proof to the satisfaction of the Court that withdrawal is necessary to correct a manifest injustice.
Rule 26.1 (c) provides in part:
Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the Court that:
... (ii) the plea was not entered or ratified by the defendant or a person authorized to do so in his behalf;
(iii) the plea was involuntary, or was entered without knowledge of the nature of the charge or that the sentence imposed could be imposed;
(iv) he did not receive the charge or sentence concessions contemplated by a plea agreement and the prosecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement; or
(v) he did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial judge had indicated his concurrence and he did not affirm his plea after receiving advice that the judge had withdrawn his indicated concurrence and after an opportunity to either affirm or withdraw the plea.
In this case the appellant responded in the affirmative to the trial court’s question as to whether or not he was entering a guilty plea to the charges because he was guilty. We believe this effectively disposes of appellant’s contention that he did not actually enter a plea of guilty or tell the Court that he was guilty of the four felonies with which he was charged.
Appellant also argues that the state breached its agreement indirectly by objecting to the withdrawal of the plea. The appellant argues that Rule 26.1 (c)(iv) (Repl. 1977) would require allowance of the withdrawal of the plea of guilty. We do not find anything in the record that indicates the prosecuting attorney did not actively seek the concessions agreed upon. The state merely objected to a delay in appellant’s decision regarding a plea or trial since that was the day set for trial. This in no way was a failure of the prosecutor to seek the concessions agreed upon.
Appellant complains that the Court stated a policy of running sentences consecutively where the crimes occurred independently of each other. The simple answer is that no objection was raised at the trial level and therefore we will not consider the matter. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).
The real issue in this case is whether or not the trial court abused its discretion in not allowing the defendant to withdraw his guilty plea. It is worth remembering that this case was set for trial on the day the proceedings were had on the plea. We are unable to find any basis whatsoever for the argument of appellant that the Court concurred in the plea agreement. Appellant argues that this is the case but the record is void of any evidence to support such an allegation, and we find it to be without merit.
Appellant here entered a guilty plea, knowing that the Court was not bound to accept the negotiated plea, and after being advised that the Court would not abide by the plea agreement, raised no objection to sentence being imposed at that time. After sentencing, which resulted in a sentence unsatisfactory to defendant, he sought a jury trial. Under the circumstances, we find no manifest injustice, nor abuse of discretion by the trial court.
Affirmed.
Corbin, J., not participating.
Fogleman, Special Judge, joins in this opinion. | [
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Tom Glaze, Judge.
The employer, National Rejectors Industries (NRI) brings this appeal from the Board of Review’s decision that the claimant, Gerald Poplin, is entitled to unemployment benefits. The Board found that when Poplin was hired, he was told by NRI that he could live in the Nacogdoches, Texas, area; however, when he arrived at Houston, Texas, to start his job, Poplin’s supervisor informed him that he must live in Houston proper. Shortly thereafter, Poplin quit his job, and the Board held NRI abrogated its agreement with Poplin, which was good cause for Poplin to quit.
The findings of the Board are not consistent with the evidence. Nowhere in the record does it appear that NRI and Poplin agreed that he could live in the Nacogdoches area. Poplin testified that he was hired to work in Texas and Louisiana and live within fifty to sixty miles of Houston. He testified further that Nacogdoches is approximately seventy-five miles from Houston, and his wife’s employer had a plant in Nacogdoches to which sjie could be transferred. Apparently, Poplin was unaware of the correct distance between Houston and Nacogdoches, and we take notice that the mileage between the city limits of these two cities is in excess of one hundred forty miles. This mileage is almost twice the mileage to which Poplin testified and is more than twice the fifty or sixty mile distance to which the parties agreed before Poplin was hired.
From the facts before us, including Poplin’s own testimony, we must conclude that the Board’s finding that NRI abrogated its work hire agreement with Poplin is clearly erroneous and not supported by substantial evidence. We, therefore, reverse the Board’s decision and remand with directions to disallow benefits to the claimant.
Reversed and remanded. | [
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Tom Glaze, Judge.
This case involves four appellants who appeal from a Chancery Court decree which compelled the appellee, the City of Blytheville, to take certain corrective action to abate a nuisance caused by its dump, but which denied damages that appellants alleged they suffered as a result of the nuisance. In 1956, the appellant, Imogene Moore, and her husband, now deceased, conveyed a five acre tract of land to the appellee, and the appellee used the tract thereafter as the city dump. The deed of conveyance contained three covenants wherein the appellee agreed: (1) to erect a fence to prevent debris from blowing onto adjoining lands; (2) to chemically treat the garbage so as to prevent objectionable odors; and (3) to purchase and use equipment to bury the garbage.
Appellants Moore and her daughter, Mona Phillips, own acreage which adjoins the dump. Appellant Ron Stallings is the executor of the Wesley Stallings Estate which has an interest in land located next to the dump. The fourth appellant, Richard Conley, is a tenant who farms the lands owned by Moore and Phillips. In 1976, twenty years after the dump was established, the appellants filed this action against the appellee. The cause was not tried by the court until October, 1979- The appellants’ complaint as amended alleged that the appellee breached the three covenants contained in the 1956 deed, and that its actions constituted inverse condemnation, i.e., the appellee’s actions amounted to a taking and devaluation of the adjoining land owned by Moore, Phillips and Stallings. The relief sought by appellants was for an order to enforce the deed covenants, an injunction to abate a nuisance caused by the dump and damages suffered due to inverse condemnation and a loss of crops.
Appellants first contend that the lower court’s decree entered in March, 1980, offers no real relief because it will not provide for abatement of the nuisance which the Chancellor found to exist. The Chancellor ordered the appellee to take the following corrective measures within sixty days of its decree so as to abate the nuisance:
(a) The top surface of the dump site shall be graded so as to eliminate water pockets or pools from forming on the top of the mass;
(b) The sides of the dump site should be graded and sloped at such an angle which would permit proper drainage of rain water falling upon the site; and,
(c) The digging and maintaining of ditches in an area immediately adjacent to the dump site, on both the East and West sides, for the purpose of collecting and carrying off water either falling upon or accumulating at the dump site. Such ditches should connect with existing drainage ditches on the South side of the dump site.
The court’s order, appellants argue, does not go far enough. In a motion to reconsider, they asked the court to require the employment of an engineer to do a feasibility study to include surveys for drainage ditches, tests for leachate and plans for covering the refuse to prevent further accumulation of leachate.
The Chancellor has a great deal of discretion regarding the question of whether and to what extent injunctive relief should be granted. Arkansas Community Organization for Reform Now v. Brinegar, 398 F. Supp. 685 (E. D. Ark. 1975), affirmed 531 F. 2d 864 (8th Cir. 1976). It is also settled law that whatever judgment is entered takes its validity from the action of the court based on existing facts and not from what may happen in the future after the court has rendered its judgment. Brotherhood of Locomotive Firemen and Enginemen v. Simmons, 190 Ark. 480, 79 S.W. 2d 419 (1935). In the instant case there is no evidence within any degree of certainty that the migration of leachate from the dump to adjoining lands was a problem. One witness, an inspection engineer-geologist with the State Department of Pollution Control and Ecology, testified that he saw a small amount of leachate coming from the dump at its northeast corner, but later admitted that he had not determined leachate had caused damage to any crops. This same witness related that he dug a ten foot hole on the east and west sides of the dump and no leachate had seeped into either hole. Another employee, a field inspector, of the same State agency, stated that leachate could deplete the growth of crops, but again offered no evidence that it had. Certainly, if any nuisance and causally connected damage to crops by leachate could be established in the future, the appellants would not be foreclosed from bringing an action at that time. From a review of the record before us, however, we find that the facts do not establish or warrant the commission of an engineer. We are satisfied that the Chancellor exercised appropriate discretion as to the extent of what actions he required of the appellee to alleviate the existing nuisance.
The second point for reversal raised by appellants concerns the trial court’s denial of damages. The court’s decree denied damages to Moore and Phillips premised on the doctrines of laches and equitable estoppel. Stallings and Conley were refused damages because proper evidence was not presented which complied with the Arkansas law for loss of growing crops.
Although the lower court’s decree did not specifically deal with the inverse condemnation issue, it is clear that damages were not awarded to the appellant landowners, Moore, Phillips and Stallings on this theory. These appellants did offer proof through testimony on this issue by a real estate appraiser, but it is difficult to discern from the record on what basis the Chancellor denied the relief sought. Moore and Phillips did not have a claim for crop damages. Thus, the only common loss which Stallings could have with Moore and Phillips, is a devaluation of their respectively owned properties. Again, the court denied Moore’s and Phillips’ damage claims because of laches and estoppel, but was silent as to Stallings except for his claim for crop damage. Of course, we review Chancery cases de novo, and if the Chancellor is correct for any reason, we affirm the decision. Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978).
We agree with the Chancellor that the doctrine of laches does apply to the condemnation damage claims. The Moore family, including Phillips, has owned the property adjoining the dump prior and subsequent to the time the dump was established. Stallings testified that his adjoining property has been owned by his family since the 1940’s. These appellants failed to file any action for inverse condemnation until 1976, i.e., twenty years after the appellee commenced operation of the dump. By the time this case was tried in 1979, they offered evidence that Stallings’ land was valued at §1,800 per acre and the Moore and Phillips properties were worth §1,200 per acre. The appellants’ real estate appraiser then rendered his opinion that their entire tracts of land were decreased in value because a number of acres contained in each tract could not be cultivated due to the adjoining dump. He valued Stallings’ loss at $9,600 and Moore’s and Phillips’ losses at $16,800. In weighing this evidence, we take judicial notice that the value of farm land has materially increased in the past twenty years, and during the same period, the dollar has continued to diminish in purchasing power. Tomlinson v. Williams, 210 Ark. 66, 194 S.W. 2d 197 (1946); Sinkhorn v. Meredith, 250 Ark. 711, 466 S.W. 2d 927 (1971).
Our Supreme Court has held that when a person, who knows his rights, takes no step to enforce them until the condition of the other has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as estoppel against the assertion of the right. Dickenson v. Norman, 165 Ark. 186, 263 S.W. 387 (1924). We find that the tremendous increase in the value of land alone in the past twenty years would have permitted the Chancellor to apply the laches doctrine against Moore, Phillips and Stallings. This fact coupled with the devaluation of today’s dollar certainly places the appellee at more of a disadvantage than if appellants had pursued their condemnation claim at some reasonable time after the dump was established in 1956.
Before leaving the damage issue relative to inverse condemnation, we also note that the appellee offered expert testimony to the effect that the market value of the land owned by these appellants was not affected by the city dump. Thus, the Chancellor was presented with opposing expert opinion evidence, and he may well have relied on the opinion of appellee’s expert witness in denying the appellants’ claims.
The appellants Stallings and Conley also sought damages to crops they lost on acreage located next to the dump, and they presented evidence that each suffered respective losses of $5,502 and $14,802. In considering these requests for damages, the Chancellor held that Stallings and Conley did not present proper evidence to sustain their alleged damages for loss of crops. Appellee contends that laches also should bar any crop damage claims because, as noted earlier, the Stallings had owned and farmed their land since the 1940’s, and Conley testified that he had leased land from the Moores and farmed it for eight years, which was sometime in 1971.
A study of the decree and record reflects that the Chancellor did not consider laches as applicable to the loss of crop claims, but based his decision only on the fact that such crop damages were not properly sustained by the evidence presented. We agree with the Chancellor. However, the measure of damages the Chancellor appears to have used to make his decision we find is erroneous. Before we discuss the measure of damage issue, we will first dispose of the issues raised by the appellee regarding the statute of limitation and laches and their applicability to appellants’ claims for crop damages. The applicable statute of limitations to the facts at bar is found in Ark. Stat. Ann. § 37-206 (Repl. 1962) which provides for a three year limitation for injuries to real property. See Consolidated Chemical Industry, Inc. v. White, 227 Ark. 177-178, 297 S.W. 2d 101 (1957). In accordance with § 37-206, Stallings and Conley limited their claims, seeking damages commencing in 1973 or three years prior to the filing of this action in 1976. Although there are other legal problems relative to these appellants’ request for crop damages, we find no evidence in the record which limits their claims to less than the statutory three year period, and we, therefore, find laches does not apply to these specific claims.
The primary issue to be decided, and previously mentioned, is what is the measure of damages in view of the evidence presented in the trial below. Once we make this determination, we can then decide if Stallings and Conley presented proper evidence to meet their burden of proof to establish the damages to which they contend they are entitled. The burden is clearly on these appellants. Adams v. Adams, Ex cx, 228 Ark. 741-745, 310 S.W. 2d 813 (1958).
First, we reject appellee’s contention that the measure of damages to crops set forth in AMI 2225 is applicable since its terms contemplate the destruction of a mature crop. The facts in the record before us indicate that no crops that may have been planted grew to maturity. Stallings testified that before the seeds he planted germinated, the rats would literally dig them out of the ground. He related that he could not plant because the rats would take (destroy) the plants. Conley later testified that 1979 was the first time in eight years he had a crop because of some kind of acid in the soil which came from the dump. The Supreme Court in the case of Farm Bureau Lumber Corporation v. McMillan, 211 Ark. 951-954, 203 S.W. 2d 398 (1947) stated the rule we must follow in selecting the correct rule or measure to determine damages to crops:
... if the total destruction of the crop was at a time when the crop was too young to have a market value and when it was too late to plant another crop, the “rental value of the land” is the rule that governs; but if the destruction of the crop was at a time when the market value could be determined, then the “market value of the crop” is the rule to govern ...
In considering the evidence before us in view of the rule stated in McMillan, we find that the rental or usable value of the land was the correct criterion or measure to be applied to the facts at bar. The proof presented by the appellants concerned the market value of what they believed would have been their average yield per acre but for the damage caused by the appellee’s dump. Since the evidence in the record is insufficient regarding the rental value of the acreage appellants contend was damaged, we would agree that the Chancellor’s denial of the damages to crops was correct.
The appellants petition this court to remand this cause to the Chancellor for a hearing on the damages if we, as we have here, determined the proof offered by appellants was insufficient. Where a case has been once heard upon the evidence or there has been a fair opportunity to present it, we would not usually remand a case solely to give either party an opportunity to produce other evidence. This rule is not imperative, and this court has the power, in furtherance of justice, to remand any case in equity for further proceedings, including hearing additional testimony. Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979). It has also been a long standing practice and rule of our Supreme Court, which we adopt as well, that Chancery cases will not be remanded for further proceedings when we can plainly see from the record what the rights and equities of the parties are. Prickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545 (1885), and Ferguson v. Green, supra.
From the record we are unable to decide the issue regarding crop damages without remanding. As we mentioned earlier, it appears from the record, the court’s decree and the parties’ briefs that the parties and the Chancellor relied on the measure of damages for mature crops as is set forth in AMI 2225. Of course, we have held this was error. Our Supreme Court has held that when all the parties tried a case upon an erroneous theory, the court may exercise its discretion to remand so that pertinent facts, not fully developed, might be ascertained. Brizzolara v. Powell, 214 Ark. 870, 218 S.W. 2d 728 (1949).
It is obvious from the record that the court and the parties were concerned with an erroneous standard when considering appellants’ claims for damages to their crops. We in no way imply that either the court or appellee had the duty to try appellants’ case. However, in accordance with the principle announced in Brizzolara and in the furtherance of justice, we remand this cause with directions to permit these appellants and the appellee to present further evidence relative only to any damages Stallings and Conley may have suffered to their crops in view of the measure or rule stated in Farm Bureau Lumber Company v. McMillan, supra. The proof as to damages at the hearing will be restricted in one respect. Since the record does reflect that in 1977 Stallings did not farm his six acres in question because it was a wet year, we hold that any damages he sustained in 1977 were not due to appellee’s dump.
For the foregoing reasons we affirm the lower court’s decision except that part which pertains to claims for crop damage by Stallings and Conley which is reversed and remanded for proceedings consistent with this opinion.
Affirmed in part and reversed and remanded in part. | [
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Lawson Cloninger, Judge.
Appellant John Smith prosecutes this appeal from a jury verdict of guilty of Interference With a Law Enforcement Officer, and a subsequent sentence of two years in the Arkansas Department of Corrections.
The issues on appeal are whether the trial court was in error when it (1) refused to grant appellant’s Motion to Suppress all evidence secured after an alleged illegal entry into appellant’s residence by the police, and (2) denied what appellant designates as a Motion to Dismiss because of an alleged illegal arrest.
We hold that there was no error committed by the trial court and we affirm.
When the evidence is viewed in the light most favorable to the appellee, the State of Arkansas, which we are required to do on appeal, we find that appellant was on parole from the Arkansas Department of Corrections and was under the supervision of the parole officer assigned to the Little Rock area. Appellant’s parole was subject to revocation if he left the Little Rock area without the permission of his parole officer, and appellant had resided at his mother’s home in Dumas for two weeks without permission. Upon learning that appellant was in Dumas, Bud Dunson, the parole officer assigned to the Dumas area, checked with appellant’s parole officer in Little Rock and determined that appellant was not authorized to be in Dumas. Mr. Dunson enlisted the assistance of Dumas city police officers and went to the residence of appellant’s mother. Appellant urges that the police entered his residence without authority or permission, but the trial court found upon conflicting testimony that the police were invited into the residence. Mr. Dunson testified that he issued a warrant for appellant’s arrest, but that he had left it at the Dumas Police Department before he arrived at appellant’s residence. The Dumas police chief testified that he only sent his officers to back up the parole officer. When the parole officer and the police attempted to take appellant into custody, there was resistance, and appellant does not question the sufficiency of the evidence concerning the offense he is charged with; his contention is that all testimony of what occurred after the alleged illegal entry should be suppressed.
Ark. Stat. Ann. § 43-2810 (Repl. 1977) provides as follows:
Return of parole violator. At any time during release on parole the Parole Board may issue a warrant for the arrest of the released prisoner for violation of any conditions of release ... Any parole or probation officer may arrest such prisoner without a warrant, or may deputize any officer with power of arrest to do so by giving him a written statement setting forth that the prisoner has in the judgment of the probation or parole officer violated the conditions of his release. ..
The taking of a parole violator without a warrant was approved by the Arkansas Supreme Court in the case of Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), cert. denied 434 U.S. 894 (1977). In that case, the defendant, on parole for another offense, was arrested by his parole officer and a policeman without a warrant at midnight in a private dwelling. The Court stated:
Arrest by a parole officer without a warrant in a private dwelling is clearly permissible under Ark. Stat. Ann. § 43-2810 (Supp. 1975) and the validity of the statute is not questioned. There seems to be no impro priety in a parole officer’s recruiting the assistance of a city policeman, or any other officer authorized to make arrest, to assist him in performing his duty to make an arrest.
In the instant case appellant concedes that he was on parole for a previous felony, and that he did not have permission to be in Dumas. The parole officer had the authority to take appellant into custody, and it was proper for him to enlist the support of the Dumas city policemen. The trial court found that there was a valid arrest, and that finding is supported by the evidence.
The constitutional validity of the arrest is questioned by appellant, and he relies principally on the ruling in Payton v. New York, 445 U.S. 573 (1980), which was a successful challenge to the constitutionality of a New York statute authorizing police officers to enter a private residence without a warrant if necessary to make a routine felony arrest. Payton, however, is not applicable to the retaking of a parole violator. Ark. Stat. Ann. § 43-2808 (Repl. 1977) provides that “Every prisoner while on parole shall remain in the legal custody of the institution from which he was released.” As a parolee the appellant was in the constructive custody of the Department of Corrections, and subject to summary arrest for violation of the terms or conditions of his parole.
Prior to trial, appellant filed a Motion to Dismiss the charges against him because he was the victim of an illegal arrest. We are unaware of any Arkansas statute providing for a Motion to Dismiss by a defendant, but the thrust of his motion was that any charge against him based upon what happened at his residence was the result of an illegal entry and arrest and should be dismissed. The allegations made by appellant in his Motion to Suppress and his Motion to Dismiss are basically the same and we have treated those allegations together.
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D.P. Marshall Jr., Judge.
This contract case asks two important procedural questions: in a bench trial, how should a circuit court evaluate a defendant’s motion for dismissal after the plaintiff rests? And when must an appellant make its arguments on appeal for the appellate court to decide those arguments on the merits? Here, the circuit court erred by evaluating the witnesses’ credibility prematurely. But the appellant waived this error because it failed to argue the point until its reply brief.
I.
Rymor Builders, Inc. and Tanglewood Plumbing Co. made three contracts about the plumbing work on three houses. All went well on the first stage of each project. And Rymor paid Tanglewood the agreed 70% of each contract price for this rough-in work. Things fell apart, however, when it came time for Tanglewood to trim-out these jobs — finish them by installing all the fixtures. According to Rymor, Tanglewood dragged its feet on doing the work. According to Tanglewood, Rymor refused to sign the necessary change orders about the fixtures to be installed. Rymor eventually hired other plumbers to trim-out the plumbing in the three houses and then sued Tanglewood, alleging breach of the parties’ contracts.
At the bench trial, Rymor called Tanglewood’s owner (Troy Wilkins) as its first witness. At the conclusion of Rymor’s examination of Wilkins, Tanglewood’s lawyer said, “I’ll just go ahead and put on my case-in-chief, your Honor, since you’ve heard that part of it[,]” and examined Wilkins further. Then Rymor’s two principals testified. All of the material documents about these transactions seem to have been admitted into evidence during the testimony of these three witnesses. It was a classic swearing match: Rymor’s witnesses denied refusing to sign any requested change orders and blamed all the problems on Tangle-wood; Tanglewood’s owner, however, said that Rymor had unreasonable scheduling expectations and ignored every single request to confirm a change order in writing, contrary to the parties’ contracts.
After Rymor rested, Tanglewood moved for a directed verdict. It argued that, because the change orders were never agreed upon, the parties had no contracts about the trim-out work. Rymor also moved for a directed verdict. Rymor contended that it had proved its case through the documents and testimony and was entitled, as a matter of law, to recover what Rymor had to pay other plumbers to finish these jobs. The circuit court recessed to consider the motions.
After returning to the bench, the circuit court granted Tanglewood’s motion. The court said:
All right. With respect to [Tanglewood’s] motion, I’m going to grant it. There’s really not an easy way to say this. I simply didn’t find the testimony of the plaintiffs credible in this case.
I think there’s an absence of tying the damages that have been alleged to the proof; that just because they wrote checks, that that necessarily means that they’re rational and reasonably related.
But that’s not the real problem, [counsel], I didn’t find their testimony credible. I just didn’t find it credible. So motion for directed verdict is granted.
All right. Thank you.
The circuit court eventually entered its judgment, which Tanglewood had written. The judgment recited that “the Court after hearing the evidence adduced by [Rymor] granted [Tangle-wood’s] Motion for a directed verdict.” The day after the court filed its judgment, Rymor moved pursuant to Rule of Civil Procedure 52(b) for findings of fact and conclusions of law. The court obliged and entered findings and conclusions that same day. Rymor filed a timely notice of appeal.
II.
We begin with a note about terminology. The bench and bar often refer to a “directed verdict” during a non-jury case. This is a misnomer. Because no jury is in the box, no verdict will be given. The proper motion to challenge the sufficiency of an opponent’s evidence in a non-jury case is a motion to dismiss. Ark. R. Civ. P. 50(a).
But there is truth in this common misnomer because the circuit court must use the same legal standard in evaluating a motion to dismiss as it would in evaluating a motion for a directed verdict. The court must decide “whether, if it were a jury trial, the evidence would be sufficient to present to the jury.” Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). If the non-moving party has made a prima facie case on its claim or counter-claim, then the issue must be resolved by the finder of fact. Swink v. Giffin, 333 Ark. 400, 402, 970 S.W.2d 207, 208 (1998). In evaluating whether the evidence is substantial enough to make a question for the fact-finder, however, the circuit court may not assess the witnesses’ credibility. First United Bank v. Phase II, 347 Ark. 879, 902, 69 S.W.3d 33, 49 (2002); Swink, 333 Ark. at 403, 970 S.W.2d at 209.
Here, the circuit court ruled for Tanglewood because it “simply didn’t find the testimony of the plaintiffs credible in this case.” This was not an off-hand comment; it was the theme of the circuit court’s bench ruling, as well as its later findings of fact and conclusions of law. The court erred. The credibility of Rymor’s witnesses was a matter for the court as the finder of fact, not a matter for the court in evaluating whether Rymor made a prima facie case on its breach-of-contract claim. Swink, supra. Rymor presented substantial evidence of a breach. Therefore, the circuit court should have called on Tanglewood to present any additional evidence in its defense, given Rymor the opportunity to offer rebuttal, and then resolved the disputed issues of fact by deciding the breach issue as the finder of fact.
We can see why the circuit court got ahead of itself. Tanglewood had put on most, and perhaps all, of its defense during Rymor’s case. The record contains no indication that Tanglewood had any other witnesses to offer. All the documents were probably in evidence. And a bench trial is often a less formal proceeding than a jury trial. We cannot say, however, that everyone knew all the proof was in and the circuit court was really deciding this case as the fact-finder. The record is absolutely clear that this case was decided at the motion stage. Both parties sought a “directed verdict”; the court granted Tanglewood’s motion; and the court’s judgment confirmed that it ended the case as a matter of law by granting Tanglewood’s motion. This ruling was error under First United Bank, Swink, and a long line of our cases. We make this point not to criticize the able circuit judge, but to emphasize for the bench and bar the important rules governing motions to dismiss in bench trials.
III.
Rymor’s choices on appeal, however, mean that there will be no new trial. Rymor’s opening brief does not seek reversal based on the circuit court’s premature assessment of the witnesses’ credibility. Rymor states one point on appeal: “The ruling of the court is clearly against the preponderance of the evidence.” Rymor’s seventeen-page argument covers the testimony and documents in detail, contending that the weight of the evidence supports the conclusion that Tanglewood broke the parties’ contracts. In a couple of places, Rymor notes that the circuit court rejected its claim because the court did not find Rymor’s witnesses credible. At no point in its opening brief, however, does Rymor argue that the circuit court’s assessment of the witnesses’ credibility at the close of Rymor’s case was a reversible error.
Rymor’s reply brief tries to fill this gap. There, Rymor argues from Swink and like cases, stating that the circuit court erred by dismissing the case based on the credibility of Rymor’s witnesses. Even at this point in the briefing, however, Rymor’s main point is that the evidence — especially the documents — so favor its claim of breach that it was and is entitled to judgment as a matter of law.
Rymor has waived the circuit court’s error. An argument made for the first time on reply comes too late. Coleman v. Regions Bank, 364 Ark. 59, 64, 216 S.W.3d 569, 573 (2005). “A litigant wanting to challenge the core of the [circuit] court’s holding must do so in its opening brief and not hold its fire until after the appellee has filed its only brief.” Horn v. Transcon Lines, Inc., 1 F.3d 1305, 1308 (7th Cir. 1993).
Fairness, and our adversary system, dictate this principle of appellate procedure. Unless the appellant opens the briefing with all its arguments for reversal, the appellee has no opportunity to respond to those arguments in writing. The appellate court needs the benefit of the arguments on both sides of every issue to make a fully informed decision. Here, for example, we do not know what arguments Tanglewood might make in support of what looks to us like an erroneous weighing of credibility too early in the case. Perhaps the error we see was harmless. Or perhaps the record contains alternative grounds to support the circuit court’s actions. As this case was briefed, however, Tanglewood did not have the opportunity to make any argument on these issues. The appellant deserves and receives the last written word on appeal. But the reply brief is the place for rebuttal, not entirely new arguments for reversal.
IV
We are left, then, with Rymor’s strongly pressed argument that the circuit court’s decision was clearly erroneous or clearly against the preponderance of the evidence. Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 320, 34 S.W.3d 360, 362 (2001). Rymor is mistaken. This record does not entitle it to judgment as a matter of law. Whether Rymor or Tanglewood made the first material breach of their contracts turns on whether one credits the testimony supporting the builder or the plumber. Jocon, Inc. v. Hoover, 61 Ark. App. 10, 15-16, 964 S.W.2d 213, 217 (1998). The evidence, documentary and oral, would adequately support a judgment for either party. In this situation, we cannot reverse the circuit court’s judgment for Tanglewood. “Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574 (1985).
Affirmed.
Baker and Miller, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
This is an unemployment compensation case.
Appellant, who had been employed to construct sets for the Eureka Springs Passion Play for eight seasons, was discharged on April 5, 1982, because he failed to give notice of his commitment for the 1982 season and missed a cast registration meeting a few days prior to termination.
Appellant filed for compensation benefits, and the agency determined he was disqualified under Section 5 (b) (1) for misconduct in connection with the work. Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976). He appealed and the Appeal Tribunal affirmed the agency disqualification.
On appeal to the Board of Review, the board found that appellant voluntarily quit his job without good cause connected with the work when he advised the employer he was looking for other work and would not make a commitment for the 1982 season. The board modified the tribunal decision and disqualified appellant from receipt of benefits under Section 5 (a). Ark. Stat. Ann. § 81-1106 (a) (Supp. 1981).
On appeal to this court the appellant contends that he was denied due process and a fair hearing by the board’s disqualification on a different ground than that contained in the hearing notice and considered at the tribunal hearing.
Appellant argues that he and his paralegal representative attended the tribunal hearing prepared to refute the misconduct charge and that the hearing was confined to that issue. He says if he had been specifically informed in advance that voluntary quit would be an issue for consideration before the board, he would have presented evidence on the events of the day of his discharge, rather than only that concerning his failure to attend the registration meeting. He maintains that he would have called as witnesses two other employees who were also discharged the same day, and contends that only upon his receipt of the decision of the board was he aware that the issue was whether he voluntarily quit.
Appellant distinguishes the decision of Teegarden v. Director, 267 Ark. 898, 591 S.W.2d 675 (1980), where we allowed the injection of a new issue at the tribunal level on a finding that it was harmless error. Appellant contends that Teegarden was premised on our findings that the appellant there still had the opportunity to raise the point involved before the board and could submit additional evidence to cure the procedural error. But here, the appellant says, under our decision in Mark Smith v. Everett, 6 Ark. App. 337, 642 S. W.2d 320 (1982), a claimant no longer has the opportunity to submit additional evidence to the board for consideration, therefore, curing error in the manner suggested in Tee-garden, supra, is no longer possible.
Other jurisdictions have grappled with the problem of the injection of new issues at administrative levels in unemployment compensation cases. In a case factually similar to that at bar, Kaufman v. Dept. of Employment Security, 136 Vt. 72, 385 A.2d 1080 (1978), the agency and appeals referee disqualified the claimant for a misconduct discharge and the board disqualified claimant for a voluntary quit without good cause. The Vermont court held that the hearing before the board could encompass only the issues framed by the pleadings and when the board departed from the misconduct issue without notice to the claimant, it deprived her of the opportunity to make a countervailing argument. The court held there that this denied claimant the fair hearing mandated by statute and caselaw and remanded the case for further proceedings.
The Pennsylvania Board of Review in Libonate v. Commonwealth Unemployment Compensation, 426 A.2d 247 (Pa. Commw. Ct. 1981), changed the issue of the claimant’s failure to accept suitable work to removal from the job market. The court stated that the board may consider issues delineated in the notice of hearing, expressly ruled on by the referee, and raised by agreement of the parties, but held that the claimant was denied an effective opportunity to be heard on the determinative issue of her unavailability for work when the board disqualified her on a ground different from that relied upon and considered in the referee’s decision.
In a line of Oregon cases, Publishers Paper Co. v. Morgan, 498 P.2d 798 (Or. Ct. App. 1972), Kuraspediani v. Employment Division, 590 P.2d 294 (Or. Ct. App. 1979), and Swezey v. Employment Division, 615 P.2d 1103 (Or. Ct. App. 1980), the Oregon Court of Appeals has held that neither the hearing officers nor the board has jurisdiction to consider grounds not asserted in the party’s request for hearing or the agency’s notice of hearing, and that the injection of new issues for the first time at the board level denies the party the opportunity to be heard, is improper, and ground for reversal.
We think that the rationale of these cases applies to the situation in the instant case. Here, the injection of the voluntary quit issue for the first time in the board’s decision effectively denied appellant proper notice of the disputed issue, the opportunity to subpoena witnesses on his behalf, to confront and cross-examine adverse witnesses, and to present rebuttal evidence on the voluntary quit issue. In short, appellant was denied the minimum requirements of due process of law mandated by Leardis Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982), and by Mark Smith v. Everett, supra.
The decision of the board is reversed and remanded for further proceedings consistent with this opinion and as authorized in Ark. Stat. Ann. § 81-1107 (d) (3) (Repl. 1976). | [
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George K. Cracraft, Judge.
James Lee King appeals from his conviction of one coun t of possession of marij uana with intent to deliver and one count of possession of cocaine. He did not question the State’s proof that the substances involved here were in fact contraband but contended only that he had not possessed them. The jury found that he had possessed both but appellant contends here that gratuitous remarks made by a State’s witness were so prejudicial that the court should have granted his motion for a mistrial. We agree.
Sergeant Cal Rollins of the Pulaski County Sheriff’s Department was the first witness for the State. He stated that he and other officers had gone to the College Station area to conduct an unrelated illegal liquor raid. While returning to his post he passed a parked car around which he observed seven to ten individuals. He had been a narcotics agent for eight years and from his experience and observation of these individuals he unequivocally determined that they were smoking marijuana.
The officers stopped and walked over to the parked car. Rollins testified that he saw appellant reach into the car, remove a paper bag and drop it to the ground beside him. He also saw him pull from his pocket “what appeared to be a wallet’’ and drop it to the ground. Although Officer Rollins did not then know what was in either container it was later learned that the bag contained marijuana packaged for street sale and the wallet held a vial of cocaine.
As appellant’s defense was that both containers were not his but the property of other bystanders, his counsel on cross-examination established that the parked car belonged to the mother of Rodney Reed, one of those arrested with the appellant. It was further established that when the police officers “patted down” those they had arrested they found marijuana on Reed’s person but no contraband on the person of the appellant. Although his purpose for doing so is not clear, counsel then asked Rollins if he found any money on appellant’s person. Rollins responded that he found the sum of $105. Counsel then asked:
Q. Did you make some statement to him, or to anyone in the area that “It looks like he has — this must be drug money,” or something of that sort? Did that enter into your conclusion that he had been dealing in drugs?
A. Sir, I am very familiar with the defendant, not only at that point and time, but previous to that. Through my investigation as a lieutenant at that time in charge of narcotics, the defendant’s name has come up several times. I was very well aware that he is a known narcotics dealer.
While recognizing that the statement was improper and prejudicial, the trial court denied the motion for a mistrial stating that he would “take a chance on this one and if I can find an admonishing instruction I am going to try and cure it.” Over appellant’s objection the following instruction was given to the jury:
THE COURT: Ladies and gentlemen, before we proceed, I want to give you the following instruction: The answer of the officer to the last question was not responsive to the question posed to him, and it is not evidence to be considered by you. In other words, disregard the last answer of the officer, and do not consider it as evidence. You may proceed, Mr. Jones.
The State argues that the adminotion was sufficient to cure the prejudice, but in any event, contends that the answer was in fact responsive to the question and having injected the matter into the cause appellant cannot now complain that the officer answered truthfully. Stovall v. State, 233 Ark. 597, 346 S.W.2d 212 (1961). The appellant maintains that the improper evidence was not responsive or invited, and was so highly prejudicial that the prejudice could not be removed by admonition.
Our courts have long recognized that the granting of a mistrial is an extreme and drastic remedy and ought not be resorted to unless there has been an error which is so prejudicial that justice cannot be served by continuing the trial and there is no other method by which the prejudice may be removed. We have also recognized that because of his superior position to judge the possibility of prejudice considerable discretion is vested in the trial judge in acting on such motions and the exercise of that discretion will not be disturbed unless manifestly abused. Drew v. State, 8 Ark. App. 120, 648 S.W.2d 836 (1983); Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). Ordinarily when an objection is made by counsel and that objection is sustained and followed by a proper admonition to the jury by the presiding judge the prejudicial statements can be cured. Drew v. State, supra; Brewer v. State, supra. There are circumstances, however, in which the statements may be so highly prejudicial and flagrantly violative of the accused’s right to a fair trial that no admonition to the jury can cure it. Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981); Sharron v. State, 262 Ark. 320, 556 S.W.2d 438 (1977).
We agree with the trial court that the answer was not responsive to the question. Both questions could have been truthfully answered “yes” or “no.” Neither invited a response as to appellant’s reputation with the sheriff’s department as a drug dealer or the witness’s personal awareness of that activity.
Here the statement was not merely a gratuitous one. It was one made by an officer with eight years experience on the narcotics squad who because of his rank of lieutenant would be assumed to have knowledge of those engaged in narcotics violations. His was an inferentially authoritative statement that appellant was known to the police as a narcotics dealer. The trial judge expressed doubts that an admonition would cure the prejudice and we think that doubt was well founded.
Nor is this a case in which the other evidence of guilt was so overwhelming as to negate prejudice from such a statement. Here the only evidence that appellant had possession of the substances was Officer Rollins’ statement that he saw him remove the bag from the car and the circumstance that the bag and wallet were found near his feet. There was no other evidence connecting him with the contraband. On the other hand it was established that the vehicle from which the marijuana was said to have been taken was under the control of Reed. Reed was found to have marijuana on his person but none was found on the person of the appellant. There was testimony from several witnesses that appellant did not remove the bag from the vehicle. The jury was told in a gratuitous remark by an experienced narcotics officer that he had reached the conclusion before the content of the containers was ascertained that they did contain contraband because “I was well aware that he was a known narcotics dealer.” We conclude that this statement was so prejudicial that it could not be removed from the minds of the jury by cautionary instruction and doubtlessly tipped the scale against him in the conflict of the evidence.
Reversed and remanded.
Cloninger and Glaze, JJ., agree. | [
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Judith Rogers, Judge.
On May 26, 1989, appellant, First National Bank of Lawrence County, filed suit in the Lawrence County Circuit Court against appellee, Higginbotham Funeral Service, Inc., and William Carter Higginbotham, individually, to collect on a note executed in 1987 that was past due. On August 28, 1989, a consent judgment was signed by the trial judge and entered of record as presented by appellant’s attorney, and David Mullen, who purportedly represented as counsel both Carter Higginbotham and the appellee-corporation.
On September 9, 1989, appellee filed a motion to set aside the consent judgment pursuant to Ark. R. Civ. P. 60 on grounds of preventing a miscarriage of justice and fraud in the procurement of the judgment, based on the claim that the employment of David Mullen to represent the corporation was unauthorized and that Mullen was without authority to consent to judgment on its behalf. As a meritorious defense, appellee asserted that the note upon which the appellant’s claim was based was executed without its authority, and was thus null and void. In its response to the motion, appellant pled laches, waiver, estoppel and ratification. The hearing of this matter was not held until September of 1990. Based on a finding of fraudulent conduct on the part of appellant in obtaining the judgment, the trial court set aside the consent judgment as to appellee and granted a new trial, but the court left intact the judgment against Carter Higginbotham, who took no part in the hearing.
Appellant appeals from the trial court’s order granting appellee’s motion to set aside the consent judgment. Appellant raises two issues for reversal, arguing that appellee was estopped from setting the judgment aside; and that appellee ratified the action of Carter Higginbotham in hiring David Mullen and that the trial court erred in finding that there was clear evidence of fraud. We affirm on all issues.
It will be necessary to recite in some detail the factual background of this case in order to fully understand the questions raised on appeal. The record discloses that appellee, Higginbot-ham Funeral Services, Inc., is a close corporation which was formed in 1968 by W.C. Higginbotham and his family, and has branches located in Walnut Ridge and Hardy, Arkansas. In 1981, W.C. and his wife, Mary Jo, were divorced, and in the divorce settlement, W.C. was given control over the Walnut Ridge branch, while Mary Jo was given control of the Hardy operation. W.C. died sometime in 1987.
Roughly six weeks before the appellant filed the instant lawsuit in circuit court, David Mullen, at the behest of Carter Higginbotham [hereinafter “Carter”], who is W.C. and Mary Jo’s son, filed an action in the Lawrence County Chancery Court for declaratory judgment on behalf of the corporation against Mary Jo. In the complaint for declaratory judgment, it was alleged that the board of directors had unanimously agreed to sell all real and personal property comprising the Hardy assets of the corporation; that Mary Jo had by letter objected to this action, considering unlawful any decision by the board, as she deemed herself the only lawful director of the corporation; and that the prospective purchaser was unwilling to go forward with the purchase until the matter was settled. Therefore, it was asked of the chancellor to declare that the board was lawfully constituted, and that the decision of the board to sell the assets of the Hardy branch was valid.
Thereafter, on June 1, 1989, Mary Jo filed a third-party complaint in the declaratory judgment action against Carter, both individually and as executor of W.C.’s estate. The third-party complaint contained the allegations that certain shares of the corporation had been transferred to Carter and Hazel Best in violation of the Articles of Incorporation; that Carter had taken control of the Walnut Ridge operation; that Carter and Hazel Best had purported to act as elected officers and directors of the corporation and had purported to take action in the name of the corporation, such as by obtaining loans and expending corporate funds and assets; that such acts were in violation of the Articles of Incorporation and were without authority, or in excess of authority, and were null and void; and, that Carter had undertaken to employ David Mullen as the attorney for the corporation, an undertaking for which he was without authority.
On June 20, 1989, David Mullen filed an answer to appellant’s complaint in circuit court on behalf of appellee and Carter, admitting the indebtedness owed to appellant.
Trial of the declaratory judgment and third-party complaint was had on August 4, 1989, and on August 17th, the chancellor ruled that Mary Joe was the only duly elected member of the board of directors, and that Carter and Hazel Best were not validly elected officers or directors of the corporation. The chancellor enjoined the two from conducting any further activities on behalf of the corporation.
The consent judgment at issue here was entered on August 28, 1989, which was after the chancellor’s ruling in the other lawsuit; however, it is undisputed that neither appellant, nor Mullen knew of that decision when the consent judgment was entered, on the day the case was set for trial. By virtue of this settlement, appellant was awarded judgment jointly and severally against appellee and Carter in the amount of $108,087.62 with interest accruing at the rate of $30.33 per day, together with costs and an attorney’s fee of $3,000.
Since the issue of fraud was the primary subject of our discussion in conference, we will address that issue first. Rule 60 (c)(4) of the Arkansas Rules of Civil Procedure authorizes the trial court to modify or vacate an order, at any time, for fraud practiced by the successful party in obtaining the judgment. The Rule thus permits vacation or modification of an order after ninety days only in cases of fraud practiced upon the court in obtaining the judgment. See Smart v. Biggs, 26 Ark. App. 141, 760 S.W.2d 882 (1988). The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950). It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, an issue in the proceeding before the court which resulted in the decree assailed. Id. Even though the fraud that vitiates a judgment .may be constructive rather than actual, constructive fraud is nonetheless a species of wrongdoing. Ark. State Hwy. Comm’n. v. Clemmons, 244 Ark. 1124, 428 S.W.2d 280 (1968). Constructive fraud is defined as a breach of a legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others. Neither actual dishonesty nor intent to deceive is an essential element. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, see Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976), and the charge of fraud must be sustained by clear, strong, and satisfactory proof. Ark. State Hwy. Comm’n. v. Clemmons, supra.
From the testimony and exhibits introduced at the hearing, it was revealed that appellant, through its representatives, had knowledge of the controversy surrounding the control of the corporation. Specifically, it was shown that appellant was aware of the declaratory judgment action as early as May 17, 1989, which was before its own complaint was filed, and it was shown that appellant had received a copy of Mary Jo’s third-party complaint within days of its filing, in which the question of both Carter and Mullen’s authority to act was specifically challenged. There was also evidence that appellant itself was concerned about the problems within the corporation, as on May 19, 1989, the appellant advised Carter that no further loans would be extended due to the uncertainty as to who were the proper directors of the corporation.
The trial court made its ruling from the bench, stating:
In that motion to set aside the judgment, we have to determine if in fact there was fraud practiced by the successful party, which is the bank, not necessarily Carter Higginbotham, but the bank.
In looking at the issues and reading the rule about five, six, seven times and listening to your argument and reading your briefs, the Court is going to rule that the motion to set aside the judgment is going to be granted in that there is some evidence of fraud on the part of the bank. It does not mean fraud like we think of fraud, it means that there was a judgment submitted to me through David Mullen of which the bank or there’s evidence that the bank had some knowledge that this was not properly done.
As indicated by these comments, the trial judge found that appellant had practiced a constructive fraud on the court in obtaining the judgment. The appellant possessed the knowledge of the other proceedings and the challenge to Carter’s authority, from which Mullen’s representation was derived. Nevertheless, a consent judgment was entered into with these parties and presented to the court for signature without revealing to the court that there were questions over control of the corporation. We believe that under these circumstances the trial court had the right to set aside the consent judgment as to appellee, and we affirm the finding of the trial court on the issue of fraud.
In all due respect to the dissenting judges, it was not incumbent on the trial court to set out with specificity its finding of fraud, particularly in the absence of a request to do so by the parties. See Miles v. Southern, 297 Ark. 274, 763 S.W.2d 656 (1987) (supplemental opinion denying rehearing). Even so, we cannot accept the view that no such finding was made by the trial court in this instance. First, it is clear from the discussions between court and counsel before the hearing began, that the trial court was well-aware, and the court expressly stated, that the burden of proof on the issue of fraud was by clear and convincing evidence in order to set aside the judgment. Secondly, in making this finding, the trial judge accurately described the type of fraud evidenced in the record, that of constructive fraud, which should dispel any doubt that such a finding was made. To seize upon the words “some” and “evidence” of fraud to reach a conclusion that no finding of fraud was made is merely placing form over substance. We are unwilling to say that the trial court ignored its earlier pronouncement with respect to the burden of proof, and this, coupled with the trial court’s descriptive remarks, constitutes a sufficient finding for purposes of review.
Furthermore, the appellant does not argue that the trial court’s finding of fraud was in any way deficient, and more importantly, appellant does not seriously argue that the trial court’s finding of fraud was not supported by the evidence. It appears then that the dissent has created an issue for reversal out of whole cloth, an argument which is neither advanced nor addressed by the parties on appeal, or at the hearing. Since neither of the parties contend otherwise, the question on appeal is whether or not the trial court’s finding was clearly against the preponderance of the evidence. See e.g. Riggs v. Sheridan, 22 Ark. App. 175, 737 S.W.2d 175 (1987). There was ample evidence presented that the consent judgment was procured by constructive fraud, such that we cannot say that the trial court’s finding was clearly erroneous.
As stated above, appellant in its argument before this court does not seriously contest the findings of fraud made by the trial court. Instead, appellant asserts that, notwithstanding a finding of fraud, appellee is precluded from contesting the entry of the consent judgment based on principles of ratification and estoppel. It is the appellant’s contention that the appellee ratified the actions of Carter and Mullen, and is estopped from attacking the judgment because it was shown that Mary Jo had notice of this lawsuit as of July 6,1989. We do not find that these principles apply to the facts in this proceeding involving the narrow issue of vacating the judgment. In the first place, appellant was at all relevant times aware of the dispute over the control of the corporation. Absent in its argument is any claim of detrimental reliance, which might prevent appellee from contesting the judgment. It simply cannot be said that appellant was misled. In addition, we believe that the filing of the motion to set aside the judgment within nine days after its entry negates a finding of ratification. We do note that appellant has expanded his arguments on these issues to include matters that will likely arise at trial. Therefore, we express no opinion on these questions at this time. For these reasons, we find no merit in the arguments advanced based on the doctrines of ratification and estoppel.
Affirmed.
Cracraft, C.J., and Cooper, J., dissent. | [
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Judith Rogers, Judge.
This is a paternity case. On October, 16, 1989, appellee filed a complaint before the Chancery Court of Union County seeking a determination that appellant was the father of her two-year-old son, and an order requiring appellant to pay child support. Appellant answered the complaint and also filed a counterclaim in which he presented a tort claim against appellee for deceit, and also asserted the defenses of waiver, estoppel and laches. Based on these claims appellant requested judgment over against appellant for any sums awarded and directed by the court to be paid by him on behalf of the minor child.
Thereafter, appellee filed a motion to dismiss appellant’s counterclaim stating that appellant had failed to allege facts upon which relief could be granted, pursuant to Ark. R. Civ. P. 12(b)(6). By order of September 26,1990, the chancellor found that appellant was the father of the child in question. Consequently, appellant was ordered to pay $30 a week in child support, and appellee was granted judgment in the amount of $4,620 for accrued support. The chancellor also denied appellant’s counterclaim. It is from this order that this appeal arises.
Appellant does not appeal from those portions of the order finding that he is the father of the child and requiring him to pay child support. As his only issue for reversal, appellant contends that the chancellor erred in denying his counterclaim against appellee. We hold that the chancellor properly dismissed appellant’s counterclaim, and affirm.
In the counterclaim, appellant alleged that in her deposition, dated November 27, 1989, appellee testified that the child was born on September 30,1987; that her filing of the paternity action was the first demand made against appellant for support; that appellant told her that he did not want to get married and did not want a child; that appellee testified that it was her election not to have an abortion, even though appellant would have paid for it; and that appellee testified that she wanted to have another child and agreed at the time to take full responsibility for the child when she refused to have an abortion. On appeal, appellant asserts that a valid cause of action was stated based on the alleged understanding of the parties whereby appellee agreed to assume financial responsibility for the child once she declined to terminate the pregnancy. This court, sitting en banc, certified this case to the supreme court pursuant to Rule 29(l)(c), 29(1 )(o) and 29 (4) (b) of the Rules of the Supreme Court and Court of Appeals as one involving the construction of an Act of the General Assembly and rules of the court, as presenting a question in the law of torts, and as one involving an issue of significant public interest and a legal principal of major importance. However, certification was refused and the case was returned to this court for decision.
Inasmuch as appellant’s theory of recovery is founded upon the alleged agreement of appellee to provide for the support of the child, we hold that appellant’s argument must fail as such an agreement is not enforceable because it is not supported by consideration and is violative of public policy.
Consideration is any benefit conferred or agreed to be conferred upon a promisor to which she is not lawfully entitled, or any prejudice suffered or agreed to be suffered by a promisor other than such as she is lawfully bound to suffer. See Bass v. Service Supply Co., Inc., 25 Ark. App. 273, 757 S.W.2d 189 (1988). At common law, it is the mother who is bound to support a child born out of wedlock, not the putative father. Rogue v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981). Since appellee was already obliged to support the child, an agreement by her to undertake this self-same obligation consequently fails for want of consideration. See e.g. Davis v. Herrington, 53 Ark. 5, 13 S.W. 215 (1890).
The major purpose of Arkansas’ filiation laws is to provide a process by which the putative father can be identified so that he may assume his equitable share of the responsibility to his child. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987). Once paternity is established, the law with regard to child support proceedings subsequent to a divorce is made applicable to paternity cases as is provided under Ark. Code Ann. § 9-10-109(a)(1) (Supp. 1991).See White v. Winston, 302 Ark. 345, 789 S.W.2d 459 (1990). In the context of divorce litigation, while parties may enter into contractual agreements with regard to contributions for child support, nevertheless, it is settled law in this state that the duty of child support cannot be bartered away permanently to the detriment of the child. Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387 (1975); Robbins v. Robbins, 231 Ark. 184, 328 S.W.2d 498 (1959). See also Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972). Likewise, we have held that an agreement not to seek any increases or decreases in child support is void as against public policy. Crow v. Crow, 26 Ark. App. 37, 759 S.W.2d 570 (1988). These holdings are based on the principles that the interests of minors have always been the subject of jealous and watchful care by courts of chancery, and that a chancery court always retains jurisdiction over child support as a matter of public policy, such that regardless of what an independent contact states, a chancellor has the authority to modify an agreement for child support to meet changed conditions. Id. Insofar as the agreement at issue here represents an attempt to permanently deprive the child of support, it is void as against public policy, and thus cannot form the basis for an actionable claim against appellee.
We note appellant’s argument that the chancellor appears to have recognized part of the agreement when he declined to award appellee judgment for costs connected with the birth of the child. Even so, this does not alter our decision as an award for lying-in expenses is not mandatory, but is a matter that is left to the sound discretion of the chancellor. Eaves v. Dover, supra.
In denying appellant’s counterclaim, it is unclear as to whether the chancellor was granting appellee’s motion to dismiss, or whether he was treating the motion as one for summary judgment as is permitted under Ark. R. Civ. P. 12(b)(6) when matters outside the pleadings are considered. Nevertheless, the counterclaim was subject to dismissal under Rule 12(b)(6) because the complaint failed to state facts upon which relief could be granted. When the result is correct, the appellate court will sustain the trial court if the decision reached by the chancellor is correct. Carter v. F. W. Woolworth Co., 287 Ark. 39, 696 S.W.2d 318 (1985); Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 686 S.W.2d 164 (1985). We affirm.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
This case presents the question of whether a paternity action brought by the Department of Human Services on behalf of a child born out of wedlock is barred by the doctrine of res judicata or collateral estoppel after a previous paternity action brought by the mother, without joining the child as a party, resulted in a finding of non-paternity. We attempted to certify this case to the Arkansas Supreme Court under Supreme Court and Court of Appeals Rule 29 (4) (b) as one involving an issue of significant public interest, but certification was refused.
Tamara Davis was born out of wedlock to Pamela Davis on April 12, 1978. Pamela Davis brought an action against Steve Seamster in the Sebastian County Court, alleging that he was Tamara’s father. On May 15, 1979, the county judge denied Pamela’s complaint and found that she had failed to establish that appellee was the father of the child. From this judgment, which is included in the record in this appeal, it is apparent that Tamara was not a party to the action.
On March 13,1990, the Department of Human Services, ex rel. Tamara Davis, brought a complaint against appellee, seeking support for Tamara and a declaration that appellee is Tamara’s father. In his answer, appellee affirmatively pled res judicata, relying on the 1979 judgment by the Sebastian County Court.
In a letter opinion dated November 6, 1990, the chancellor stated:
It is obvious to me that the issue of whether or not Steve Seamster is the father of Tamara Davis has been litigated, regardless of the parties in the suit. Accordingly, the Court finds that the issue of paternity of Tamara Davis has been adjudicated and that this matter is now res judicata.
An order finding that this issue is res judicata was entered on November 27, 1990. From that order, comes this appeal.
In its brief, DHS argues that res judicata should not bar this action because Tamara and DHS were not parties or in privity with parties to the previous county court action. DHS also argues that Tamara’s interests in establishing paternity are not identical with those of her mother. Appellee argues that this case simply raises the same issue litigated before and that the doctrine of res judicata should apply even if the parties are not the same or in privity with the parties in the 1979 action.
Under the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Toran v. Provident Life & Accident Ins. Co., 297 Ark. 415, 419, 764 S.W.2d 40, 42 (1989). The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Id.
It has been generally recognized that a husband and wife are estopped from later raising paternity as an issue where there has been a prior paternity determination in a divorce or annulment decree. See Benac v. State, 34 Ark. App. 238, 239, 808 S.W.2d 797, 798-99 (1991). In McCormac v. McCormac, 304 Ark. 89, 90-91, 799 S.W.2d 806, 807 (1990), the supreme court held that a mother could not, following a divorce decree awarding custody of a child, fixing child support, and setting visitation rights, relitigate the issue of paternity. Therefore, there is no question that, in the courts of this state, the parents of the child are bound by the doctrine of res judicata when the issue of paternity has been litigated in a prior action between them. On the other hand, it has been held that a finding in regard to a child’s paternity in a divorce or annulment proceeding is not binding on the child in any subsequent action unless the child was a party to the prior proceeding. See Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).
Arkansas Code Annotated § 9-10-104 (Repl. 1991) provides that a petition for establishment of paternity may be filed by (1) a biological mother; (2) a putative father; (3) a person for whom paternity is not presumed or established by court order; or (4) the Arkansas Department of Human Services. This statute, however, was not in effect when Pamela Davis brought the first action against appellee to establish his paternity of Tamara. In that action, Pamela complied with the law then in effect by filing the complaint as provided by Ark. Stat. Ann. § 34-702 (Repl. 1962) which required the mother of the child to make the complaint. Under Ark. Stat. Ann. § 34-704 (Repl. 1962), the action could be revived in the name of the child if the mother died before the final order. The paternity statutes then in effect did not otherwise provide for the child to be listed as a named plaintiff. Nevertheless, there was no doubt that such an action was brought on behalf of the child:
The statutes recognize only one fundamental reason for a bastardy action, the recovery of support money for the infant. In some instances the mother might not see fit to bring an action at once; she might, for instance, be self-supporting. But the child is the real party in interest and should not be deprived of needed support by the mother’s failure to bring an action.
Dozier v. Veasley, 272 Ark. 210, 211, 613 S.W.2d 93, 94 (1981).
Hence, Pamela brought the original paternity action against appellee in compliance with the statutes then in effect. It is also clear that she brought that action to obtain support for Tamara. We therefore cannot say that the chancellor erred in finding this action, which was also brought to obtain support for Tamara, to be barred by res judicata. See Guziejka v. Desgranges, 571 A.2d 32 (R.I. 1990); T.R. v. A.W., 470 N.E.2d 95 (Ind. Ct. App. 1984).
We point out, however, that the paternity statutes have been extensively rewritten since 1979 and that the statutes currently in effect specifically provide that paternity actions may be filed by the child as a named party. The current statutes also recognize that, in some instances, the child’s rights in such matters may be different from those of the mother. Accordingly, our decision in the case at bar necessarily applies only to paternity determinations made under the statutes in effect when the 1979 decision was rendered.
Affirmed.
Mayfield, J., concurs. | [
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John E. Jennings, Judge.
David Shane Hollowell was convicted of two counts of second-degree battery for abuse of his seven-year-old stepdaughter and was sentenced to six years on each count to be served consecutively. He appeals, arguing that the trial court erred in sustaining the prosecutor’s objection to appellant’s exercise of peremptory challenges during jury selection. We find no error and affirm.
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment forbids the State’s use of peremptory strikes in a purposeful, racially discriminatory way in a criminal prosecution. The procedures to be followed when a Batson objection is raised are well established: if a defendant makes a prima facie showing that racial discrimination is the basis for a juror challenge, the State has the burden of showing that the challenge was not based on race. If the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge, the court is required to conduct a sensitive inquiry. See Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) cert. denied, 136 L. Ed. 2d 862, 117 S. Ct. 979 (1997); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996).
In Georgia v. McCollum, 505 U.S. 42 (1992), the Supreme Court held that the Constitution prohibits criminal defendants from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges. The Court held that if the State demonstrates a prima facie case of racial discrimination by the defendant, the defendant must articulate a racially neutral explanation for peremptory challenges.
In J.E.B. v. Alabama, 511 U.S. 127 (1994), the Supreme Court held that the Equal Protection Clause forbids intentional discrimination on the basis of gender just as it prohibits discrimination on the basis of race. The Court stated:
As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. When an explanation is required, it need not rise to the level of a “for cause” challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual.
511 U.S. 127, 144-45 (citations omitted). The Arkansas Supreme Court has recognized the applicability of the principles announced in J.E.B. in criminal cases in Arkansas. See Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994).
In the case at bar, the prosecutor raised a Baison-type objection to the defendant’s apparently gender-based use of peremptory challenges to strike prospective jurors who were women. Ultimately, the court refused to allow two of defendant’s peremptory challenges finding that they were based on gender. The jury that was seated consisted of seven women and five men, with the State having used five peremptory strikes and the defendant having used seven.
Appellant’s first argument on appeal is that the trial court erred in applying the Batson standard to the prosecutor’s objection of gender discrimination regarding the defense’s use of perempto- ries. While recognizing that McCollum prohibits a criminal defendant from exercising peremptories in a discriminatory way based on race, and that J.E.B. expanded the Batson doctrine to prohibit prosecutors from exercising peremptories in a discriminatory way based on gender, appellant argues that neither the Supreme Court nor courts in Arkansas have ruled that the Batson doctrine applies to defense counsel in a criminal case when exercising peremptory challenges based on gender. Therefore, appellant argues, the trial court abused its discretion in sustaining the prosecutor’s objection “because there was no legal basis upon which to object or sustain an objection.”
We disagree. In J.E.B. the Supreme Court said:
Today, we reaffirm what, by now, should be axiomatic: Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clausef.]
[T]he Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man.
511 U.S. at 130-31, 146.
The equal protection right referred to in all the cases belongs to the prospective juror. See, e.g., Batson v. Kentucky, supra. The juror has a right not to be struck peremptorily solely on the basis of race or gender. The standards governing proof of discriminatory intent established by Batson for racially motivated strikes apply to gender based strikes. J.E.B., supra; Cleveland v. State, supra. A defendant in a criminal case may not exercise his peremptory challenges in a racially discriminatory manner. Georgia v. McCollum, supra. In McCollum the Court held that the defendant is a “state actor” in this context and that the State has standing to raise the issue. McCollum, 505 U.S. at 55-56. It is sufficiently clear that under the decisions of the Supreme Court a defendant in a criminal case may not engage in purposeful gender discrimination in the exercise of peremptory challenges of prospective jurors. Other state courts have reached the same conclusion. State v. Turner, 879 S.W.2d 819 (Tenn. 1994); Commonwealth v. Fruchtman, 633 N.E.2d 369 (Mass. 1994), cert. denied, 513 U.S. 951 (1994) (based, at least in part, on state law).
Appellant’s remaining argument is that, if the Batson standard applies, the trial court erred in its application of the standard and that its findings were clearly against a preponderance of the evidence. We disagree.
In the case at bar, the prosecutor objected when the defense struck the first female prospective juror. The trial court indicated that there had yet been no pattern shown. When the defense struck the second female potential juror, the prosecution again objected. The following exchange took place:
COURT: Is there any other excuse other than being women? DEFENSE COUNSEL: No. I didn’t like her look.
COURT: What about her looks?
DEFENSE COUNSEL: Pregnant.
COURT: If you are going to excuse all the women, I’m not going to let you unless there’s some kind of reasoning. DEFENSE COUNSEL: I have only excused two.
COURT: I know. I’m just telling you. Next one I’d like to have some reasoning for cause from something said or something you can tell me that you —
DEFENSE COUNSEL: All right.
The defense attempted to strike the third female potential juror, and the prosecution again objected:
PROSECUTOR: Your Honor, we would object once again that there’s definitely a pattern that’s developed. We’ve had three women coming up and three struck for no reason other than that I could tell other than they were women.
DEFENSE: She’s from Wisconsin and I’ve just always had — Army.
COURT: I’m not going to let you strike her for that reason. Do you have a better reason?
DEFENSE: You’re going to make me put some women on the jury. I guess I just —
DEFENSE: I have got to take Mrs. Wilson, huh? You don’t want me to strike any woman?
COURT: What’s the real reason?
DEFENSE: How about she works at the Christian Academy School.
COURT: No.
DEFENSE COUNSEL: These are peremptory challenges, Your Honor. These aren’t —
PROSECUTOR: It’s the same as having a black juror now. It’s the same standard, exactly the same.
DEFENSE COUNSEL: I don’t like this particular one. PROSECUTOR: We always have to have a reason to use a peremptory challenge on any —
COURT: Some reason.
DEFENSE COUNSEL: All right.
COURT: Well, if she works with little kids there, it may be —• it’s close. I may let you strike her, but this other one, just because she’s from Wisconsin.
DEFENSE COUNSEL: All right.
PROSECUTOR: Yes, sir.
After that juror was seated, two more women were seated without objection from the defense. The prosecution then struck a female, and the defense was allowed to excuse the next female potential juror. When another female potential juror was called and the defense attempted to strike, the following exchange took place:
PROSECUTOR: Your Honor, once again, we’d just ask for some type of reason.
COURT: What’s your reason?
DEFENSE COUNSEL: She has grown children at home and I feel like she was going to start thinking about her children. This litde girl — and they’re all girls. If they weren’t all girls, but I just feel like she’s going to start having a bias against him.
.PROSECUTOR: Your Honor, in response to that, that could apply to any female with children. I think — I realize it’s not reason for cause, but there has to be some real reason. That’s — like I said, having children would apply to anybody out there with children. I think you’re still talking about class of women. I think that he would need, although not enough for cause, something more than that.
DEFENSE COUNSEL: Well, what it is, Judge, if I strike one and you put them back on there, you’re going to get the jury mad at me because I struck them.
PROSECUTOR: Well, from our point —
COURT: If you want to strike one, you probably ought to come up here like he’s been doing.
DEFENSE COUNSEL: All right. We’ll do this one then.
PROSECUTOR: We just voiced our objection as to this juror. I think there hasn’t been reason shown to strike Mrs. Samson.
COURT: I don’t think so either.
DEFENSE COUNSEL: That’s going to be two that you made me put on there. They’re going to be biased against me. I’m afraid — I’ll start coming up here when we do that.
COURT: You excused one without cause.
DEFENSE COUNSEL: Well, I think that is cause. She’s got three little girls and —
COURT: Enough reason would be a good question to appeal on. It appears you’re trying to get rid of all the women with the slightest of excuses.
DEFENSE COUNSEL: I’m not going to object to that.
The trial court must determine from all relevant circumstances the sufficiency of a neutral explanation, and the standard of review is whether the trial court’s determination is clearly against a preponderance of the evidence. See Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). We afford great deference to the trial court’s exercise of discretion in determining discriminatory intent relating to the use of a peremptory strike. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997). In Sonny the court said:
In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. . . . [T]he state of mind of a juror. . .based on demeanor and credibility lies “peculiarly within a trial judge’s province.”
328 Ark. 321, 326 (1997) (quoting Hernandez v. New York, 500 U.S. 352 (1991), in turn quoting Wainwright v. Witt, 469 U.S. 412 (1985)). Given the exchanges between the trial court and defense counsel, we cannot say that the trial court abused its discretion in remaining unpersuaded by counsel’s offer of gender-neutral explanations. Nor can we say that the trial court’s determination is clearly against a preponderance of the evidence.
Affirmed.
Meads, J., agrees.
Roaf, J., concurs. | [
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Melvin Mayfield, Judge.
This is an appeal from an order dismissing a complaint which sought to prevent the annexation of territory to the City of Conway, Arkansas.
The record shows that on October 3, 1989, a petition was filed in the Faulkner County Court by “Earl Rogers and Guy Murphy, et al. through their attorneys, Clark & Adkisson” seeking the annexation of certain described land to the City of Conway. Although the petition does not so state, the parties to this appeal agree that the petition was brought under the authority of Ark. Code Ann. §§ 14-40-601 through 14-40-607 (1987).
After two amendments to the petition were filed, and after a pro se “petition for denial” was filed, the county court entered an order granting the petition for annexation. This order was entered on January 16, 1990. Thereafter, pursuant to Ark. Code Ann. § 14-40-604 (1987), a complaint was filed on February 12,1990, in the Circuit Court of Faulkner County seeking to prevent the annexation as ordered by the county court.
Motions to dismiss the circuit court complaint were filed by the City of Conway and by “Earl Rogers and Guy Murphy, et al.” After a hearing held on August 31, 1990, the circuit judge granted the motions. The pertinent part of that order provides as follows:
4. That the defendants’ motion to dismiss should be granted based upon the plaintiffs’ lack of standing, inasmuch as none of them resides in the area to be annexed pursuant to the County Court order, and there was incomplete service, since neither Guy Murphy, Earl Rogers, nor their attorney, William C. Adkisson, was properly served with notice of this proceeding, as required by Ark. Code Ann. Section 14-40-601, et seq.
The parties bringing the petition to prevent the annexation are not named in the petition. The petition simply states:
Come the Remonstrants and for their cause of action state:
1. That they are landowners, residents and citizens of Faulkner County, Arkansas and have an interest in preventing the annexation of certain lands to the. City of Conway.
The complaint then makes 16 numbered allegations contesting the validity of the attempted annexation and concludes by praying that the annexation order entered by the county court be declared null and void. The complaint is signed only by an attorney as “Attorney for Remonstrants,” but at the hearing in circuit court the judge named certain persons and indicated that he thought they were some of the parties bringing the petition. During a discussion between the attorneys and the judge an ownership map of the territory sought to be annexed was introduced into evidence, and eventually, the attorney who filed the complaint called Mr. Larry Nunn to testify. This is the person who signed the pro se “petition for denial” filed in the county court.
Mr. Nunn testified that he was a property owner in the City of Conway, that he owned a single family residence at 2001 Tyler in Conway, that he was one of the “named remonstrants in this case,” and that he was opposed to the annexation. He was not cross-examined and no testimony was offered contrary to his testimony.
The parties have made several arguments in the briefs filed in this court; however, we discuss only those which we find controlling in our disposition of this appeal. In the first place, we find that Larry Nunn, under the evidence in the record, was an “interested person” and authorized under the law to bring the complaint filed in circuit court seeking to prevent the annexation. In Turner v. Wiederkehr Village, 261 Ark. 72, 546 S.W.2d 717 (1977), the Arkansas Supreme Court considered the question of whether the appellant in that case was “any person interested” who had standing to contest the county court’s order granting a petition for the creation of an incorporated town. The court said in construing that phrase “we held in an annexation case that it means a person who resides or owns property in the annexing city or in the area to be annexed.” The case the court referred to was City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971), and the language in that case, which was quoted in Turner and is pertinent in the present case, is:
We hold, therefore, that “any person interested” as referred to in the statute, means any person who actually has some interest in the city or in the area to be annexed, and that at least some such interest must be shown on trial de novo in the circuit court in the face of a motion to dismiss for lack of interest.
250 Ark. at 665. See also Palmer v. City of Conway, 271 Ark. 127, 607 S.W.2d 87 (Ark. App. 1980).
One of the statutes under which the annexation in the present case was sought, Ark. Code Ann. § 14-40-604 (1987), provides that within a period of 30 days after entry of the county court order “any person interested” may institute a proceeding in circuit court to have the annexation prevented. Larry Nunn testified that he owned land in the city to which the land was to be annexed, he filed a pro se petition in county court opposing annexation, he said he was one of the “named remonstrants” in circuit court, and he testified in that court that he was opposed to the annexation. We think the circuit court erred in finding that there was no plaintiff in that court who had standing to contest the annexation.
This leaves the issue of service of notice by the parties seeking to prevent annexation. Ark. Code Ann. § 14-40-604 (1987) provides that when “any person interested” files a complaint in circuit court to have the annexation prevented “notices shall be given to the city or incorporated town authorities and the agent of the petitioners.” In the case of Proposed Annexation to the Town of Beaver v. Ratliff, 282 Ark. 516, 669 S.W.2d 467 (1984), the court held that a complaint filed in circuit court under the provisions of Ark. Stat. Ann. § 19-303 (Repl. 1980), which is now Ark. Code Ann. § 14-40-604 (1987), is not an appeal but is an independent attack on the annexation and the notice required by the statute means service of process pursuant to Ark. R. Civ. P. 4.
In the instant case service of process was made upon the City of Conway. However, no such service was had on Earl Rogers or Guy Murphy or their attorney. We think the petition for annexation filed in county court clearly indicated that “Clark & Adkisson” was an agent for the petitioners, and we think Ark. Code Ann. § 14-40-601 requires that summons be served on them. We do not believe, however, that the failure to serve the petitioners’ agent meant that the complaint to prevent annexation should have been dismissed.
Arkansas Rule of Civil Procedure 19(a) provides that a person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) disposition of the action in his absence would impair or impede his ability to protect his interest. Although the statute required notice to the petitioners and the city, Rule 19(b) provides that if a person described in 19(a) “cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.” The Reporter’s Notes to Rule 19 points out that the rule follows the federal rule and that the policy behind the federal rule “is to avoid dismissal of actions where possible, and when it is possible to join an absent party, dismissal is not proper as such party will be ordered to enter the action as a defendant or plaintiff.”
Here, there is no question that the petitioners for annexation could have been made a party. All that was necessary to make them a party was to serve a summons on their agent “Clark & Adkisson” who was also the petitioners’ attorney, and whose address in Conway, Arkansas, was listed on the petition for annexation. In fact, the only real reason to make the petitioners a party is because the statute requires it. The petitioners and the city are really on the “same side.” Both of them filed motions to dismiss the complaint which was filed to prevent the annexation and both of them joined in the brief filed in this court seeking to uphold the trial court’s order which dismissed that complaint. We agree that Ark. Code Ann. § 14-40-601 requires service of summons on the agent of the petitioners, but we hold the trial court should have directed that the petitioners be made a party by service of summons on their agent rather than dismissing the complaint filed in circuit court.
We reverse and remand with directions that the trial court require that the petitioners be made party to this case and for further proceedings in keeping with this opinion.
Cracraft, C.J., and Danielson, J., agree. | [
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John F. Stroud, Jr., Judge.
Larry Graham, a twenty-five-year employee of Chamber Door Industries, Inc., sustained a compensable cervical injury in November 1993. He was seen by orthopedic surgeon Robert Kleinhenz, who recommended a pain clinic or a rehabilitation specialist after epidural steroid injections were given and an MRI showed no need for surgery. Mr. Graham’s case manager sent him to Dr. Reginald Rutherford at the Pain Care Center. Dr. Rutherford released him to return to work on May 16, 1994. He sought follow-up care after finding it difficult to perform his job, but Chamber Door’s insurance carrier told him that his problems were not related to employment. On July 10, 1995, he returned at his own expense to Dr. Kleinhenz. Dr. Kleinhenz referred him to Dr. Donald Boos for pain management, and Dr. Boos later referred him to Dr. Thomas Ward for rehabilitation. Dr. Ward released him to return to light duty work on January 3, 1996.
Claimant petitioned for additional temporary total disability benefits and payment of additional medical expenses. A hearing was held in January 1996, and the administrative law judge reinstated temporary total disability benefits from July 24, 1995, through at least January 3, 1996. The ALJ also found that all medical and related expenses from Dr. Kleinhenz and subsequent referrals were reasonable and necessary, as well as related to employment; and ordered the carrier to pay for those expenses and to remain responsible for continued reasonable and necessary medical treatment. On appeal the Commission affirmed the decision of the law judge, finding that the claimant was entitled to additional temporary total disability benefits, and that medical treatment rendered by Dr. Kleinhenz and others was both reasonable and necessary. Chamber Door and its carrier appeal, contending that there was not sufficient evidence to support the Commission’s findings. We disagree and affirm.
In determining the sufficiency of the evidence to sustain the Commission’s factual findings, we review the evidence in the light most favorable to those findings, and we must affirm if there is any substantial evidence to support them. Pilgrims Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996). The Commission has the duty of weighing the medical evidence as it does any other evidence, id., and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). We may reverse the Commission’s findings only when we are convinced that fair-minded people with the same facts before them could not have arrived at the conclusion reached by the Commission. Id.
Appellants contend that the claimant’s healing period ended on May 17, 1994, and that he is entitled to no additional benefits. They argue that no objective medical findings underlie his complaints of pain and that treatments from July 1995 forward have addressed only these exaggerated complaints. They point to entries in the medical records referring to chronic pain syndrome and symptom magnification and to the testimony of a private investigator concerning the claimant’s activities.
The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. Whether an employee’s healing period has ended is a factual determination to be made by the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).
At the hearing, the claimant testified about going back to work after Dr. Rutherford released him. He said that he could not perform tasks such as lifting glass without help from his coworkers, that he “just couldn’t deal with the pain,” and that his situation became “more and more difficult.” The medical records show that he was kept off work most of the time after returning to his initial treating physician: Dr. Kleinhenz took him off work from July 24, 1995, until he was treated by Dr. Boos; Dr. Boos continued him off work for seven more weeks, noting improvement due to cold laser treatments and rotator cuff exercises; and Dr. Ward did not allow him to return to light duty until January 3, 1996.
Appellants ask us to hold that a claimant must offer objective medical evidence to prove not only the existence of an injury, but also to show that his healing period continues. We decline to do so, just as we recently refused to require a claimant to offer objective medical evidence to prove the circumstances under which an injury was sustained. See Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). The evidence summarized above was sufficient to support the Commission’s findings that the claimant was entitled to additional temporary total disability benefits after his release by Dr. Rutherford and that medical treatment rendered by Dr. Kleinhenz and others was reasonable and necessary.
Affirmed.
Arey and Jennings, JJ., agree. | [
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Sam Bird, Judge.
Appellant Sharon Marion appeals the dismissal of her suit against Town and Country Mutual Insurance Company and the granting of Town and Country’s motion for summary judgment. We find no error and affirm.
Appellant purchased a home from Jim Walter Homes a/k/a Mid-State Homes, Inc., and executed a promissory note to Mid-State Trust IV (Mid-State) on December 28, 1992, secured by a mortgage to Mid-State covering the purchased property. A foreclosure proceeding was commenced by Mid-State on September 29, 1995, that resulted in a default judgment being entered against appellant on December 14, 1995. Appellant contested the default foreclosure decree by motions challenging the validity of service of process, but she did not appeal from the court’s entry of the foreclosure decree or the denial of her motions. The foreclosure sale was held on January 24, 1996, and the property was bought by Mid-State, the lienholder, for the entire balance owed by appellant on the note, including interest, costs, and fees. The sale was confirmed by the court on April 8, 1996, and a commissioner’s deed conveying the property to Mid-State was executed and filed the following day. Subsequently, appellant filed a notice of appeal and supersedeas, and on April 25, 1996, the chancellor entered an order staying the judgment pending the appeal from the order confirming the commissioner’s sale.
In the meantime, on January 26, 1996, appellant applied for homeowner’s insurance from appellee, Town and Country Mutual Insurance Company. During the process of completing the application for insurance, appellant failed to mention to the insurance agent the pending foreclosure action or that Mid-State had purchased the property at the foreclosure sale. The structure burned to the ground on July 22, 1996, as the result of an accidental fire. Appellant filed a claim and proof of loss with appellee. The claim was denied by appellee for two reasons: material misrepresentation by appellant in the insurance application for failure to disclose the foreclosure action, and appellant’s lack of an insurable interest in the property at the time of the fire.
Appellant filed suit against appellee and filed a motion for summary judgment. Appellee filed a motion to dismiss and a motion for summary judgment. Mid-State filed a motion to intervene and appellee responded in opposition to it.
No formal hearing was held, and all the issues were presented to the court on the pleadings and briefs. Appellant’s motion for summary judgment was denied. Appellee’s motions to dismiss and for summary judgment were granted, without explanation. Mid-State’s motion to intervene was not addressed.
On appeal appellant first argues that the trial court erred in dismissing her complaint on the grounds that she had no insurable interest in the property. Insurable interest is defined in Ark. Code Ann. § 23-79-104 (Repl. 1992):
23-79-104](a) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured at the time of the effec-tuation of the insurance and at the time of the loss.
23-79-104](b) “Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.
Appellant contends that at the time she applied for the insurance, she had an insurable interest in the property because she was living in the home, and Mid-State had not yet received the commissioner’s deed. She says that as soon as the sale was confirmed by the court and the commissioner’s deed was executed, she filed a supersedeas, which she contends suspended the force and effect of the foreclosure judgment. Thus, she argues that because she still had the right to possession and Mid-State could not get a writ of assistance, she had an insurable interest at the time of the fire. Furthermore, she argues that she was bound by her bond to pay all costs and damages if she were eventually successful in the prosecution of her appeal from the foreclosure-sale confirmation order.
Arkansas Code Annotated section 23-79-104 requires that, for the insurance policy to be enforceable, an insurable interest in the insured property must exist both “at the time of the effectuation of the insurance and at the time of the loss.” We do not agree with appellant’s argument that she had an insurable interest in the property when the fire occurred on July 22, 1996.
In Fleming v. Southland Life Ins. Co., 263 Ark. 272, 564 S.W.2d 216 (1978), an appeal involving a mortgage-foreclosure action, our supreme court held that where the mortgagor has waived his statutory right of redemption, a judicial sale is complete upon confirmation of the sale, and the mortgagor’s right of redemption terminates at that time (although it may be be terminated even sooner if so specified in the foreclosure decree).
In Adams v. Allstate Ins., 723 F. Supp. 111 (E.D. Ark. 1989), a fire occurred after a foreclosure sale but before approval of the sale by the state court. The appellate court held that the foreclosure did not affect appellant’s interest in the property because it was not yet final and that Adams retained an insurable interest in the residence until the commissioner’s sale was approved by the state court. Of course, Adams is factually distinguishable from the case at bar because here the fire did not occur until more than three months after the sale had been confirmed and after the commissioner’s deed had been delivered to Mid-State, the buyer at the foreclosure sale.
The authority referred to above is controlling in this case. The confirmation of the foreclosure sale and the delivery of a commissioner’s deed to the buyer had the effect of terminating appellant’s insurable interest in the property. This holding is also in accord with Jones v. Texas Pac. Indem. Co., 853 S.W.2d 791 (Tex. Ct. App. 1993), wherein the appellate court affirmed the trial court’s order granting appellee insurance company’s summary-judgment motion on the grounds that appellants, the former owners, became “tenants at sufferance” following a mortgage foreclosure and had no insurable interest in their dwelling at the time of the fire because (1) they were subject to immediate eviction; (2) they had no future legal interest in the dwelling; (3) they had diminished motive to protect the property; (4) they did not suffer any pecuniary loss; and (5) they did not receive any benefit from the dwelling, even though they were still living there.
Also, we do not agree with appellant that the filing of a notice of appeal and a supersedeas bond in the foreclosure action had the effect of extending her insurable interest beyond the confirmation of the foreclosure sale. This argument disregards the function and effect of the supersedeas. As stated by this court in Searcy Steel Co. v. Mercantile Bank of Jonesboro, 19 Ark. App. 220, 719 S.W.2d 277 (1986):
The effect of a supersedeas on a judgment was discussed by our court as early as Fowler v. Scott, 11 Ark. 675 (1850), which declared that the function of a supersedeas is to stay the execution of the judgment pending the period it is superseded, but the validity of the judgment is not effected [sic] by the stay. It is merely a legal prohibition from execution on the judgment until that prohibition has been removed by operation of law or a judgment of the supreme court. In Miller v. Nuckolls, 76 Ark. 485, 89 S.W. 88 (1905), the court reaffirmed its declaration in Fowler and restated that the supersedeas does not have the effect of vacating the judgment but only stays proceedings to enforce it.
19 Ark. App. at 225, 719 S.W.2d at 280.
The position taken in Searcy Steel Co., supra, was reaffirmed by this court in Everett v. Wingerter, 35 Ark. App. 139, 816 S.W.2d 613 (1991); see also Ryder Truck Rental, Inc. v. Sutton, 305 Ark. 374, 807 S.W.2d 909 (1991).
At the time appellant filed her supersedeas and obtained the court order staying execution on the April 8, 1996, judgment, the court had already confirmed the foreclosure sale, the commissioner’s deed had been executed and delivered, and title had passed to Mid-State. The supersedeas and stay order were effective only to prohibit further execution of the judgment by Mid-State and did not have the effect of nullifying the court’s confirmation of the sale or the commissioner’s deed that followed. For all intents and purposes, title to the property was vested in Mid-State and appellant no longer had an insurable interest therein.
There is another reason appellant did not have an insurable interest in the property at the time of the fire. As stated above, at the foreclosure sale, Mid-State’s bid for the property at the foreclosure sale was equal to the entire amount of appellant’s debt to it, including principal, interest, costs, and fees. Upon confirmation of the sale, appellant’s debt to Mid-State was thus fully extinguished. At that point, appellant no longer had an “actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance . . .” as required by Ark. Code Ann. § 23-79-104(b). Appellant’s voluntary undertaking by her supersedeas to “deliver possession of the foreclosed property, and to pay all costs and damages for delay that may be adjudged against appellant on appeal ...” cannot be used to bootstrap herself into having an insurable interest in property that she no longer owned, upon which she owed nothing, that she did not rent, and of which she was in possession solely by virtue of the court’s stay.
Contrary to appellant’s argument, the determination that appellant had no insurable interest in the property did not have the effect of rendering the property “totally uninsurable,” nor did it necessarily leave Mid-State with an “uninsured dwelling” while appellant prosecuted her appeal. When the sale to Mid-State was confirmed and the Commissioner’s deed delivered to it, Mid-State became the owner and it had an insurable interest in the property.
Because we find that appellant had no insurable interest in the property at the time of the fire, it is unnecessary to reach the other issues argued by appellant.
Affirmed.
Rogers and Roaf, JJ., agree. | [
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James R. Cooper, Judge.
The appellant, an employee of the Little Rock Fire Department, was subjected to disciplinary action by the fire department in January 1985 which ultimately resulted in a six-day suspension. He was again subjected to disciplinary measures in July 1987, and was suspended for thirty days, and on September 1, 1987, the fire department terminated his employment. In two separate decisions rendered in 1986 and 1988, the Little Rock Civil Service Commission upheld the actions taken against the appellant. The appellant appealed both of the civil service commission decisions to the Pulaski County Circuit Court, but before either of the appeals had been heard, the appellant filed and completely litigated a federal lawsuit based on 42 U.S.C. § 1983 which arose from the same incidents heard by the Little Rock Civil Service Commission. After the federal decision, which was adverse to the appellant, was upheld by the Eight Circuit Court of Appeals, the appellant resumed his efforts to appeal the Little Rock Civil Service Commission’s decisions. The appellee moved for summary judgment on the theory of res judicata, and the Pulaski County Circuit Court granted this motion on July 24,1990. From that decision, comes this appeal.
For reversal, the appellant contends that the circuit court erred in granting the appellee’s motion for summary judgment because, the appellant asserts, an appeal of a civil service commission decision to circuit court does not constitute subsequent litigation for res judicata purposes. The appellant also contends that the circuit court erred by failing to find that the appellee waived the defense of res judicata by not asserting it to the federal trial court. We find no error, and we affirm.
Under the claim preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Toran v. Provident Life, 297 Ark. 415, 764 S.W.2d 40 (1989). Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated. Id. Res judicata bars relitigation when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988).
Appellant concedes that his federal suit arose from the same incidents- heard by the civil service commission, and that his federal lawsuit was completely litigated. Citing the Missouri case of Shaffer v. Terry Dade Management Corp., 648 S.W.2d 595 (Mo. App. 1983), the appellant argues that appeals are not subsequent litigation for purposes of res judicata. Therefore, he contends, his appeal of the civil service commission decisions to the Pulaski County Circuit Court should not be barred by that doctrine. We do not agree. First, we note that the Missouri Court of Appeals in Shaffer, supra, was not considering the application of res judicata, but instead dealt with the related, but distinct, principle of collateral estoppel.
Next, we note that the circuit court does not merely review the decision of the civil service commission for error, but instead conducts a de novo hearing on the record before the civil service commission and any additional competent testimony that either party might desire to introduce. Campbell v. City of Hot Springs, 232 Ark. 878, 341 S.W.2d 225 (1961); Ark. Code Ann. § 14-51-308(e)(1)(C) (1987). The effect of this statutory provision for a de novo appeal to circuit court is to reopen the entire matter “for consideration by the circuit court, as if a proceeding had been originally brought in that forum.” Civil Service Commission of Van Buren v. Matlock, 206 Ark. 1145, 178 S.W.2d 662 (1944). The Matlock court, in describing the nature of an appeal to circuit court from a civil service commission decision, quoted with approval from United States v. Ritchie, 58 U.S. 528 (1854), for the proposition that, although the transfer is called an appeal,
we must not, however, be misled by a name, but look to the substance and intent of the proceeding. The district court is not confined to a mere re-examination of the case as heard and decided by the board of commissioners, but hears the case de novo, upon the papers and testimony which had been used before the board, they being made evidence in the district court; and also upon such further evidence as either party may see fit to produce.
Matlock, 206 Ark. at 1150.
Therefore, although the transfer from the civil service commission is called an appeal in Ark. Code Ann. § 14-51-308(e)(1), the circuit court proceeding is in the nature of an original action. We think that the substance and intent of the circuit court proceeding is to provide a judicial forum for relitigation of the case. Therefore, we hold that the decision in the federal case is res judicata as to the matters involved in the appeal to circuit court from the civil service commission decisions in the case at bar because the circuit court case is, in substance, an original action. See Matlock, supra.
The appellant next asserts that, “[s]ince Appellee has argued that [the circuit court] cases are appeals, they [sic] should be judicially estopped from now arguing differently.” We do not agree. Judicial estoppel is a doctrine whereby a party may be prevented from taking inconsistent positions in successive cases with the same adversary. Muncrief v. Green, 251 Ark. 580, 473 S.W.2d 907 (1971). The doctrine has been said to be one of vague application, but it is commonly required that the parties be the same, and that the same questions be involved. Rinke v. Weeman, 232 Ark. 900, 341 S.W.2d 44 (1960). Although the appellee did refer to the circuit court actions as “appeals” in its motion for summary judgment (and did so correctly, since that is the terminology employed by the statute), the appellee has taken no position contrary to its contention that the federal court decision is res judicata to the matters before the circuit court. The doctrine of judicial estoppel is therefore not applicable.
Finally, the appellant argues that the circuit court erred in finding that the appellee “had not waived the defense of res judicata by not pleading it at the trial court level.” The appellant asserts that the res judicata defense should have been raised in federal court, apparently on the premise that the Pulaski County Circuit Court was an appellate court in this proceeding. We do not agree.
The appellant cites Taggart v. Moore, 292 Ark. 168, 729 S.W.2d 7 (1987) for the proposition that the appellee was required to present the defense of res judicata in the federal action because the civil service commission decisions were rendered before the federal case concluded. Taggart does state that “specific defenses and prayers for relief must be raised in the proper forum or be barred by res judicata.” 292 Ark. at 172. Apparently, the appellant is arguing that the appellee’s defense of res judicata is barred by res judicata because the appellee failed to present it to the federal court. Such an argument ignores the purpose of the res judicata doctrine, which is to put an end to litigation by precluding a party who had the opportunity for one fair trial from drawing the same controversy into issue a second time before a different court. Taggart, 292 Ark. at 171. The appellant in the case at bar has had the opportunity for at least one fair trial of this controversy and, without deciding whether the issue of res judicata could have been successfully raised in the federal proceeding, we hold that the Pulaski County Circuit Court was a proper forum in which to raise that defense, and that the circuit court did not err in granting the appellees’ motion for summary judgment. There must be an end to litigation at some point, and we have reached it in this case.
Affirmed.
Jennings and Rogers, JJ., agree. | [
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George Cracraft, Chief Judge.
Harold Brooks appeals from an order revoking his probation and sentencing him to a term in the Arkansas Department of Correction. He contends that he was denied his constitutional right to counsel. We agree, and reverse and remand.
In 1987, appellant pled guilty to two counts of battery in the first degree and was placed on probation for five years. In March 1990, the State filed a petition to revoke appellant’s probation, alleging that appellant had violated the terms and conditions of his probation in that he had violated the laws of this state.
The record reflects that on September 24,1990, a hearing on the petition was held by the trial court. Before the hearing began, the following took place:
THE COURT: • Mr. Brooks, when we were here the first day of the term of court, you had just said you didn’t want the public defender to represent you, and this petition for revocation was set to be heard, and I continued it until today and told you to get a lawyer if you didn’t want the public defender’s office to represent you; and you indicated you didn’t. Have you gotten a lawyer?
[APPELLANT]: No, sir.
THE COURT: Are you planning on representing yourself?
[APPELLANT]: I ain’t qualified to represent myself. I need an attorney. As you seen when I first come up here, she stood up there and lied. She wasn’t my lawyer, and she stood up there and stated she gave me papers —
[APPELLANT]: I’m telling you about the lawyer’s case. I don’t feel she represents me in my best behalf, so this is why I dismissed her from the case. . . .
Thereafter, there was some discussion as to the events leading up to appellant’s decision not to be represented by the public defender, and whether appellant had been notified that the petition would be heard on that date, September 24, 1990. The court then stated:
THE COURT: All right. If he was advised of that, [that the petition to revoke would be heard on September 24, 1990] and I have given him two months to get a lawyer — It is in the record that I continued the thing until today to get counsel —
[APPELLANT]: (Interposing) I ain’t got none.
THE COURT: That’s your fault. I told you you would either have to represent yourself or get your own lawyer because you had fired Ms. Bracy, and that was the end of that: We are not going to appoint every lawyer in the United States for you.
[APPELLANT]: I don’t want her.
Appellant then protested the holding of the hearing without having his witnesses present. He explained to the court that witnesses who he had subpoenaed to appear at the hearing when it was first scheduled were not present. He indicated that the testimony of one particular witness who was not present was critical to his case. The court advised appellant that this was also his fault, and that the hearing would proceed as scheduled. The court indicated that the public defender would sit at appellant’s table if appellant so requested, but appellant reiterated that he did not want the assigned public defender to assist him.
The court proceeded to hear testimony and appellant appeared pro se. At the conclusion of the hearing, the trial court revoked appellant’s probation and sentenced him to a term in the Arkansas Department of Correction. The sole issue raised on appeal is whether appellant knowingly and intelligently waived his right to counsel. We conclude that, from the record before us, he did not.
The Constitutions of both the United States and the State of Arkansas guarantee an accused the right to have the assistance of counsel for his defense, and it is generally recognized that no sentence involving loss of liberty can be imposed where there has been a denial of counsel. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). This right extends to revocation hearings if sentencing is to follow revocation. Furr v. State, 285 Ark. 45, 685 S.W.2d 149 (1985); see Ark. Code Ann. § 5-4-310(b)(4) (1987). Although the right to counsel is a personal right and an accused may knowingly and intelligently waive counsel at various stages of the proceedings, every reasonable presumption must be indulged against the waiver of this fundamental right. Philyaw v. State, supra.
There are certain requirements that must be met before a trial court can find that an accused has knowingly and intelligently waived counsel and allow the accused to proceed pro se:
A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly disposition of the issues.
Philyaw, 288 at 244-45, 704 S.W.2d at 611. The accused must have full knowledge and adequate warning concerning his rights and a clear intent to relinquish them before waiver can be found. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). Waiver of the right to counsel presupposes that the court has discharged its duty of advising appellant of his right to counsel, questioning him as to his ability to hire independent counsel, and explaining the desirability of having assistance of counsel during the trial and the problems attending one representing himself. This last requirement has been held especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and he receives no special consideration on appeal. Philyaw v. State, supra. The burden is on the State to show that an accused voluntarily and intelligently waived his right to counsel. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989). Presuming waiver from a silent record is impermissible. Id.
Here, there is no indication in the record presented to us of any request by appellant that he be allowed to represent himself. To the contrary, appellant requested that he have counsel and averred that he was not qualified to defend himself. Nor does the record show that appellant was informed of his right to counsel, the consequences of failure to obtain counsel, or the alternatives to pro se representation if he was unable to retain independent counsel, or that any inquiry was made as to his financial ability to employ counsel. We do not have a transcript of the proceedings at the pretrial hearing at which appellant’s first request to obtain different counsel was made. What reasons appellant gave for wanting substitute counsel, what the trial judge told him concerning his right to counsel, or whether the judge advised him of the pitfalls of appearing pro se was not preserved for us. We do not know whether the court made an inquiry as to appellant’s financial ability to have counsel or whether appellant was informed that the court would appoint counsel without expense to him. The record we do have is completely silent as to waiver of counsel. Therefore, we cannot conclude that appellant knowingly and intelligently waived his right to counsel. See Scott v. State, supra.
The State contends, alternatively, that appellant “forfeited” his right to counsel because his conduct at trial was intended to manipulate and obstruct the fair and orderly disposition of justice. While we agree that the constitutional right to counsel is a shield, not a sword, and that a defendant may not manipulate this right for the purpose of delaying the trial or playing “cat-and-mouse” with the court, see Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989); Tyler v. State, 265 Ark. 228, 581 S.W.2d 328 (1979), we cannot agree, from the record before us, that that is what occurred in this case.
The State argues that the case at bar is controlled by Tyler v. State, supra; however, we find the two cases to be clearly distinguishable. In Tyler, counsel for the appellant announced to the court on the morning of trial that the defense was not ready and that appellant had discharged him. The attorney stated, however, that it was his duty to disclose that “the sole and only reason he was discharged was ‘because the [appellant] wants a continuance.’ ” Tyler, 265 Ark. at 825, 581 S.W.2d at 329. The appellant did not deny his counsel’s statement, and stated his reasoning as follows:
This is a legitimate thing, really because I didn’t get my witnesses together. I had full intentions of waiting until after the first of the year to try my case on account of the election and everything. I felt if I waited until after the first of the year, things would be better organized and I would all round get a better trial and everything. I would say that finances and everything to do with lawyers would be reasonable cause for postponement.
Tyler, 265 Ark. at 86, 581 S.W.2d at 330.
The supreme court, in determining that the appellant had waived his right to counsel, considered the following: (1) that the appellant had ample time to employ, and did employ, counsel but discharged him on the eve of the trial; (2) that the principal reason for the discharge was to postpone the trial; (3) that the appellant had taken no steps to secure another attorney; and (4) that there was no showing that appellant had been unable to obtain counsel or that he had requested that appointment of counsel. Here, appellant had not discharged his counsel on the eve of trial, but several weeks in advance of trial. There was no indication that he did so for the sole purpose of obtaining a subsequent continuance. At the hearing, appellant requested the appointment of counsel and made a motion for a continuance in order to obtain the presence of witnesses. Therefore, on the facts of this case, we cannot conclude that the record is sufficient to support a finding of intentional manipulation of the judicial process amounting to a “forfeiture” of the right to counsel.
Reversed and remanded.
Danielson and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with one count of delivery of a controlled substance, a Class Y felony. After a jury trial, he was convicted of that offense and was sentenced to 25 years in the Arkansas Department of Correction and fined $3,500.00. From that conviction, comes this appeal.
For reversal, the appellant contends that the trial court erred in not granting a mistrial after the state assertedly commented during voir dire on the appellant’s failure to testify; that the trial court erred in overruling the appellant’s objection to evidence not provided to the appellant by the State in discovery; and that the trial court erred in denying the appellant’s motion to dismiss on the grounds that the appellant’s due process right to a speedy trial was violated. We find no error, and we affirm.
We first address the appellant’s contention that the trial court erred in denying his motion for a mistrial following the State’s asserted comment on the appellant’s failure to testify. During voir dire, the prosecution made the following remark to the potential jurors:
You, the jury, are the judges of credibility ... the credibility of the witness. You make a decision that witness sitting right there answering questions, talking to you, about whether what they are telling you is the truth. And you base that on the same way you decide whether I’m telling you the truth, whether the Judge is telling you the truth, or whether anybody else is, by you looking at them, knowing that you . . . determining what you can determine from the way they’re. . . use what you use everyday.
What I’m asking you to do is that you will not... or will you do the same thing with a police officer, or with the defendant, or with the witnesses, based on what you see and hear and your perception of them, not necessarily based on their appearance to you. . . .
It is improper for a prosecutor to directly call the jury’s attention to a defendant’s failure to testify on his own behalf. Williams v. Lockhart, 797 F.2d 344 (8th Cir.1986). Clearly, the statements made to the potential jurors in the case at bar did not directly call their attention to the defendant’s failure to testify. However, even indirect references are impermissible if they either: (1) manifest the prosecutor’s intention to call attention to the defendant’s failure to testify, or (2) are such that the jury would naturally and necessarily take them as a comment on the defendant’s failure to testify. United States v. Nabors, 762 F.2d 642 (8th Cir.1985). Taking the prosecution’s remarks in context, as we must, see Nabors, supra, we find no impermissible comment. The incidental mention of the defendant along with a police officer and other witnesses in the context of a remark concerning the jury’s function in determining the credibility of witnesses does not manifest an intention to call attention to the defendant’s failure to testify. Nor do we think that the jury would naturally and necessarily take a reference to the defendant in this context as a comment on the defendant’s failure to testify. Nor do we think that the jury would naturally and necessarily take a reference to the defendant in this context as a comment on the defendant’s failure to testify. The appellant argues that the prosecution’s comment constituted reversible error because one or more of the jurors may have expected, based on the prosecution’s statement, that they would be given the opportunity to judge the defendant’s credibility on the witness stand. We do not agree. Although some juror might conceivably have viewed the remarks in the manner suggested by the defendant, the test is whether the jury would necessarily or probably have done so. United States v. Nabors, supra. Because we do not think that the jury would necessarily or probably have adopted the view of the prosecution’s remarks suggested by the appellant, we find no error on this point.
We next address the appellant’s contention that the trial court erred in overruling his objection to evidence not provided to him by the State in discovery. There was evidence at trial to show that Officer Lance King of the Arkansas State Police, working with a confidential informant, purchased 1.5 grams of cocaine from the appellant at the appellant’s home. There was also evidence that, when Officer King asked about purchasing some cocaine, the appellant responded that he was waiting on a shipment and that the appellant’s companion, Joe Lockhart, was going to the airport to pick up a load of cocaine. There was testimony that, before Mr. Lockhart left for the airport, he asked to borrow some scales to weigh the cocaine. The appellant agreed, went into the front bedroom, and returned carrying a set of triple beam scales, which he handed to Mr. Lockhart in a box. Officer King and the confidential informant then told the appellant that they were leaving and that they would return for the cocaine. Officer King and the informant returned to the appellant’s residence at about 8:30 p.m., before Mr. Lockhart returned. When Mr. Lockhart arrived, he and the appellant went into the front bedroom for about ten minutes; Mr. Lockhart then left the house, and the appellant motioned to Officer King and the confidential informant to come into the bedroom with him. In the bedroom, the appellant handed the cocaine to Officer King in exchange for $200.00. Officer King testified that, while he was in the front bedroom, he saw a set of triple beam scales with some cocaine on them. The appellant objected to Officer King’s testimony concerning the triple beam scales seen in the bedroom on the grounds that the State failed to inform him that Officer King would testify to having seen a set of scales with cocaine on them in the appellant’s bedroom.
Under Ark. R. Crim. P. 17.1, the prosecuting attorney is obliged to disclose to the defendant upon timely request specific material and information, including the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial. Although under Rule 17.1 the State is required to disclose statements made by the defendants, any co-defendants, and any experts involved in the case, the rule does not require the disclosure of statements made by other witnesses. In the case at bar, the appellant was provided with a copy of the written request made by Officer King, and the defense counsel interviewed Officer King prior to trial. Neither the report nor the interview revealed that Officer King had observed the triple beam scales and cocaine in the appellant’s bedroom on the night the transaction occurred; apparently, this fact came to light during a conference between the prosecutor and Officer King prior to trial. The appellant contends that the State violated the discovery rule by failing to inform him that Officer King intended to testify concerning the presence of the triple beam scales and cocaine in the appellant’s bedroom, and that the trial court erred in allowing Officer King to so testify. We do not agree. The appellant cites no authority to support the proposition that the State is required to disclose the substance of a witness’s testimony to a defendant. Rule 17.1(a)(i) requires only that the names and addresses of witnesses be disclosed by the prosecuting attorney. See Shuffield v. State, 23 Ark. App. 167, 745 S.W.2d 630 (1988). Because the precise details of Officer King’s testimony were not subject to discovery, we hold that the trial court did not err in overruling the appellant’s objection to the testimony concerning the triple beam scales found in the bedroom.
Finally, the appellant contends that the trial court erred in denying the appellant’s motion to dismiss on the grounds that his due process right to a speedy trial was violated. The record shows that the offense was committed on February 5, 1988; the information was filed sixteen months later on June 12, 1989; the appellant was arrested on December 5, 1989; and trial was held eight months after his arrest, on August 21, 1990. In addition, several continuances were granted at the request of the defendant, and these periods of delay are excluded in computing the time for speedy trial under Ark. R. Crim. P. 28.3(c). The appellant concedes that he was brought to trial prior to the technical time required by the speedy trial time as set out in Ark. R. Crim. P. 28; however, he argues that the twenty-two month span between the commission of the offense and his arrest violated his constitutional right to a speedy trial and that the charges against him should therefore have been dismissed. We do not agree.
Four basic factors must be considered in determining whether a defendant’s constitutional right to a speedy trial has been violated. These are: (1) the length of the delay; (2) the reason for the delay; (3) the defendants’ assertion of his rights; and (4) the prejudice to the defendant. Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988). In the case at bar, the appellant was tried approximately eight months after his arrest, and his speedy trial argument is based on his assertion of prosecutorial delay in filing charges against him and affecting his arrest. Although it is true that there are instances where prosecutorial delay in the bringing of criminal charges may constitute prejudicial error requiring dismissal, the key element is whether or not prejudice results which would require dismissal of those charges. Bennett v. State, 302 Ark. 179, 789 S.W.2d 436; cert. denied,_ U.S_, 111 S. Ct. 144 (1990). In Bennett, supra, the Arkansas Supreme Court held that a delay of nine years in the filing of charges did not mandate dismissal. Although the appellant’s attorney, who was present when the appellant gave his statement to the Sheriff, died before the appellant was charged with murder, the Supreme Court held that no prejudice was established in the absence of an allegation that the deceased attorney had any special knowledge which would have proved beneficial to the appellant at trial. Bennett, supra, 302 Ark. at 182. The appellant in the case at bar argues that he was prejudiced by the asserted prosecutorial delay in bringing charges because several witnesses who were present at the drug buy were unable to recall details of the night in question. However, the appéllant has made no showing to support a finding that these witnesses would have remembered the events of the night in question more completely even if trial had commenced earlier. See Halfacre v. State, 292 Ark. 331, 731 S.W.2d 179 (1987). There is a presumption that a trial occurring within the time limit set out in Ark. R. Crim. P. 28 meets constitutional requirements, see Halfacre, supra, and on this record we cannot say that the appellant has made a sufficient showing of prejudice to overcome that presumption. See id.
Affirmed.
Danielson and Mayfield, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
This is an appeal from a decision of the Board of Review awarding benefits to claimant after finding he was dismissed from his job for reasons other than misconduct connected with the work. Appellant contends on appeal that the Board made an erroneous conclusion of law when it disallowed the taking of additional testimony, because it stated its lack of jurisdiction as the basis for the denial. Our review of the record shows that the Board’s reference to its lack of jurisdiction dealt with nonacceptance of information contained in appellant’s letter of appeal, not with its authority to order another hearing for the taking of additional evidence. We find no error and affirm.
Claimant had been a twenty-one year employee of appellant and had worked in the law enforcement division during his last year of employment. He testified that while at the firing range, he saw some extra gun belts and asked the range officer if he could have one. The range officer told him he could not because he needed them for the range. Claimant says he then made arrangements with the range officer to trade in a belt he had at home for one of those the range officer had. His understanding was that he was to bring the other gun belt in the next time he was at the firing range, where he went periodically for training. Shortly after claimant took the gun belt from the range, he went on a two week vacation, then a flood occurred which temporarily stopped immediate access to the range. Sometime during this time frame, appellant began its investigation of the incident and subsequently discharged claimant for misconduct in removing the gun belt from the range.
The agency denied claimant benefits, but this decision was reversed by the Appeal Tribunal, which found that the claimant was discharged from his last work for reasons other than misconduct connected with the work. The hearing before the Appeal Tribunal was a telephone hearing in which the claimant testified in his own behalf and the employer was represented by Bill Howell, assistant chief for appellant. Noting that the range officer did not testify, the Appeals Tribunal found the testimony presented by the claimant to be the most credible. In affirming this decision, the Board of Review said that while the employer might have felt justified in discharging the claimant, a preponderance of the evidence failed to establish anything more than a possible misunderstanding as to the procedure for obtaining the belt and holster from the employer.
In its letter of appeal to the Board, appellant stated it believed the Board should hear the testimony of the range officer and two other witnesses for appellant. Appellant stated the testimony was not offered at the telephone hearing because the notice provided to appellant did not specify that these people should be available. In its standard reply letter, the Board said: “Please be advised that pursuant to the Arkansas Court of Appeals decision in Mark Smith v. Everett, 6 Ark. App. 337,642 S.W.2d 320 (1982), the Board of Review is without jurisdiction to accept additional evidence in appeals pending before it. Therefore, no further evidence can be submitted.” Appellant then sent another letter, in which it requested an additional hearing to take the testimony of its three witnesses who did not testify at the telephone hearing. This request was not granted.
It is well settled that the Board of Review may order another hearing for the taking of additional evidence in appeals pending before it, but this is discretionary with the Board. See Ark. Code Ann. § 11-10-525 (1987); Jones v. Director of Labor, 8 Ark. App. 234, 650 S.W.2d 601 (1983); Fry v. Director of Labor, 16 Ark. App. 204, 698 S.W.2d 816 (1985). An order that additional evidence be taken is to be differentiated from acceptance by the Board of new evidence offered in a party’s letter of appeal. The Board was correct in informing appellant that it could not accept additional evidence “in appeals” pending before it; any such evidence would have to be offered in an additional hearing, in which the other party would have a chance to respond to it. See Fry, 16 Ark. App. 204, 698 S.W.2d 816; Smith, 6 Ark. App. 337, 642 S.W.2d 320. Appellant misunderstood the Board’s statement regarding its lack of jurisdiction to mean it had no jurisdiction to order an additional hearing, while in fact the Board was referring to its lack of jurisdiction to accept new evidence offered in the appellant’s letter of appeal. The Board did not make an erroneous conclusion of law in its statement concerning its lack of jurisdiction.
Although the Board may order another hearing for the taking of additional evidence, this is discretionary with the Board and a second hearing is not required so long as each side has notice of and a fair opportunity to rebut the evidence of the other party in the first hearing. See Fry, 16 Ark. 204,698 S.W.2d 816; Maybelline Co. v. Stiles, 10 Ark. App. 169, 661 S.W.2d 462 (1983). Appellant contends that the notice it received did not specify that all witnesses were to be present. The notice received by appellant provided: “If you have witnesses you want to participate in the hearing, it is your responsibility to notify the Tribunal of their names and addresses if they are to be subpoenaed. This information should be supplied immediately upon receipt of this notice, as it may take some time to process the subpoenas.” The notice did not imply all witnesses were not necessary; in fact, it also stated: “The Referee cannot accept any evidence after the hearing is closed unless the case has been held open by the Referee.” We believe this is sufficient notice that witnesses should be present at the hearing. Appellant states that it felt the one witness would be sufficient since it was a telephone hearing. This was obviously a tactical decision and cannot be blamed on the notice provided. Since appellant was represented at the hearing and had ample opportunity to cross-examine the claimant and rebut his testimony, it was not denied a fair opportunity to present its case and no additional hearing was required.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Vience Shaw appeals from an order of the Arkansas Workers’ Compensation Commission denying his claim for benefits upon a conclusion that he had failed in his burden of proving his entitlement to benefits by a preponderance of the evidence. Appellant contends that the decision is not supported by substantial evidence and that the Commission failed to conduct a de novo review in violation of his right to due process of law. We affirm.
On appellate review of decisions of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and will affirm if those findings are supported by substantial evidence. Where, as here, the Commission has denied a claim because of failure to show entitlement to benefits, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987); Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979). Questions concerning the credibility of witnesses and the weight to be given their testimony are exclusively within the province of the Commission. Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); Austin v. Highway 15 Water Users Association, 30 Ark. App. 60, 782 S.W.2d 585 (1990).
Appellant filed this claim contending that he was entitled to temporary total disability benefits as a result of an injury allegedly suffered in the course and scope of his employment with appellee. He testified that he suffered a work-related injury to his back on March 14,1988, while lifting refrigeration tanks with coworker Aubrey Burton. Appellant stated that he informed the coworkers with whom he carpooled of the injury that afternoon and the he had also informed the company nurse, his foreman, and several other friends the he had sustained an injury and that it was job related.
In its opinion, the Commission pointed out that none of the witnesses to whom appellant stated he had reported his injury corroborated his testimony, including the person with whom appellant said he was working at the time of the injury. The Commission also noted that appellant had failed to call as witnesses a number of other persons who he stated could corroborate his testimony. The Commission commented that, perhaps more importantly, appellant’s own testimony “is contradictory, thereby indicating that his testimony is not credible.” It then discussed several instances in which appellant’s testimony had been contradictory, both as to his actions following the alleged work-related injury and as to his medical history regarding prior injuries to his back. Finally, the Commission noted that the April 6, 1988, report of Dr. James Grissom reflected that appellant had sought treatment for back pain that had been present for “quite some time” and indicated that appellant made no mention to him of an on-the-job injury. The Commission concluded as follows:
Given all the facts in this case, we find that the claimant has failed to meet his burden of proving by a preponderance of the evidence that he suffered a compen-sable injury. Here, claimant’s testimony is not corroborated by anyone working for the respondent or even claimant’s friends. Further, the evidence reveals that the claimant mistakenly remembered an entire conversation which never occurred. Given those facts, we find that claimant’s testimony is not credible. . . . Here, the evidence of record indicates the claimant’s testimony is not corroborated and that he has made numerous inconsistent statements.
Accordingly, we find that the claimant has failed to meet his burden of proof and affirm the Administrative Law Judge’s decision. Therefore, this claim is respectfully denied and dismissed. [Emphasis added.]
It is clear that the burden was upon appellant to prove by a preponderance of the evidence that he had suffered a compensable injury. It is also clear, on the facts of this case, that appellant’s credibility was of vital importance to his carrying of that burden. From our review of the record, we conclude that the Commission’s finding that appellant was not credible was a permissible one and that the Commission’s opinion displays a substantial basis for the denial of relief. See Linthicum v. MarBax Shirt Co., supra.
Appellant also argues that this court should follow the rule applied in federal courts and some sister states that a decision of an administrative agency must be supported by “substantial evidence on the record as a whole.” This argument was expressly rejected by the supreme court in Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991).
Appellant next contends that, because the Commission reached the same result as the administrative law judge, the Commission failed to conduct the required de novo review of the record and thus deprived him of his right to due process of law. We find no merit in this contention for a number of reasons. In the first place, the Commission’s opinion recites that it made a de novo review of the record, and we will not presume otherwise. Furthermore, the Commission wrote a lengthy and detailed opinion, demonstrating that it did, in fact, review the record de novo.
We also note that the due process issue was not raised before the Commission. In Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989), and Hamilton v. Jeffery Stone Co., 6 Ark. App. 333,641 S.W.2d 723 (1982), we held that the rule that prohibits presentation of constitutional issues for the first time on appeal applies with equal force to appeals from the Commission. In Hamilton, we pointed out that such issues should be raised at the administrative law judge or Commission level because constitutional questions often require an exhaustive analysis and the preparation of a record that we can review. This case demon strates the wisdom of such a rule. In support of appellant’s contention that there is “a staggering ratio of affirmations of the opinions of the Administrative Law Judges as opposed to reversals,” he argues from what he asserts is a compilation of statistics showing numbers of cases affirmed and reversed by the Commission in 1988,1989, and 1990. These statistics are not in the record and opposing counsel had no opportunity to develop the issue, present rebutting evidence, or contradict the conclusions arrived at by appellant. The Commission had no opportunity to determine their correctness or applicability. The issue, therefore, should not be addressed for the additional reason that we do not address arguments that are based on facts not properly contained in the record. See General Electric Credit Auto Lease, Inc. v. Paty, 29 Ark. App. 30, 776 S.W.2d 829 (1989).
Affirmed.
Danielson and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an'appeal from a decision of the Workers’ Compensation Commission which awarded compensation benefits to the claimant, Roger D. Patterson, upon a finding that he had sustained a work-related hernia. Appellant argues the decision is not supported by substantial evidence and is contrary to law.
The record contains evidence that on December 28, 1988, Patterson, a 29-year-old welder, was pulling a sixty-pound part from a jig when he felt a pulling sensation on his right testicle. He testified that he had a sudden flash of severe pain; that he stopped work and reported the incident to his supervisor; and that the lunch bell rang about that time. The pain subsided during the lunch hour and he went back to work. He said he worked for the next two weeks with a nagging pain which was not really severe but which got worse, and by January 16 the pain became so severe that he went to see his doctor.
In a letter dated March 1, 1989, Dr. W. F. Dudding stated that he saw the claimant on January 16, 1989, and his examination, “revealed tenderness in the right testicle with no marked epididymal swelling, a mild fingertip inguinal hernia on the right with tenderness in this area.” His letter then states that “a diagnosis of inguinal strain versus small hernia versus epididymitis was entertained and patient was treated with anti-inflammatory medication for about a week.” The letter also stated that the claimant suffered increasing discomfort and that Dr. Dudding sent the claimant to see a surgeon, Dr. John J. Weisse, who found an inguinal hernia and repaired it on January 20,1989. Dr. Dudding’s letter of March 1,1989, also stated that the “facts are consistent with an on-the-job injury on December 28,1988, as per Mr. Patterson’s story,” and “it is not unusual that a very small hernia be very painful, yet still be very difficult to detect even by a professional let alone a layman who could not be expected to determine what the problem was.”
The history and physical report made by Dr. Weisse for the claimant’s admission to the hospital states that the doctor’s examination had “confirmed a right inguinal hernia.” As his “impression at the time of admission,” Dr. Weisse recorded a “job related right inguinal hernia.” The “operative report” lists the postoperative diagnosis as a “right direct inguinal hernia,” and describes in detail the “hernia repair procedure” which occurred on January 20, 1989.
Arkansas Code Annotated Section ll-9-523(a) (1987) provides:
(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That the pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.
The Commission held that these criteria had been met and found the claimant’s hernia to be compensable. It stated:
We find that Patterson’s effort of pulling on the jig and feeling sudden pain in his testicle constitute the sudden effort and severe pain satisfying the first two criteria. The Administrative Law Judge erred in ruling that the occurrence of a hernia did not “immediately” follow the pulling incident, since “immediately” does not mean “instantly”; rather, it is only necessary for the hernia to occur in a time and manner making clear the causal connection between it and the strain that occurred. Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985). We find such to be the case, because Patterson gave credible testimony that he was in distress throughout the two weeks before the cause of pain was diagnosed. The employer appears not to deny that Patterson ceased working and complained to his supervisor contemporaneously with the incident. Thus, it can be seen that all requirements of the statute are met if Patterson’s physical distress was such that the attendance of a licensed physician was required within seventy-two (72) hours after the occurrence. The law on this point has been set out in Ayres v. Historic Preservation Associates, 24 Ark. App. 40, 747 S.W.2d 587 (1988).
The Commission then quoted from our opinion in Ayers, which quoted from other cases, including the final sentence of the opinion in Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985), which states, “The diagnosis of a hernia would confirm the need of the services of a physician . . . .” See Osceola, 14 Ark. App. at 103. The Commission stated:
We understand the requirements of the fifth subsection to have been effectively negated by the Ayres holding. If the diagnosis of a hernia confirms the fact that the claimant needs a physician, it logically follows that any claimant who can prove a work-related hernia has satisfied the fifth requirement. Since we find that Patterson did comply with subsections 1 through 4 and that the injury did occur within the scope and course of his employment, he has met his burden of proof under Section 523(a) and is entitled to appropriate benefits.
Appellant cites a number of Arkansas appellate decisions and argues that the claimant in this case is not entitled to compensation because the Commission’s decision is not supported by substantial evidence and because the Arkansas appellate courts have construed too liberally the statutory provisions regarding hernia. As to the five factual requirements set out in Ark. Code Ann. § ll-9-523(a), the appellant contends that the appellee did not “experience that type of severe pain as contemplated by the statute, did not experience continued severe pain after the December 28, 1988, incident, was able to perform his regular employment duties involving strenuous manual labor, and had absolutely no reason to believe medical attention was required until a few days prior to January 16, 1989.”
When reviewing a decision of the Workers’ Compen sation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). We believe that there is substantial evidence to support the Commission’s findings of fact in this case.
We next examine the appellate decisions which the appellant contends “have construed too liberally the statutory provisions regarding hernia.” Those decisions were concerned with the fifth requirement of the statute which requires that “the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two hours after the occurrence.” The appellant argues that the Commission’s decision in the present case “erroneously found the fifth statutory requirement had been negated by Court decisions.”
In the discussion of this issue, we first note that the fifth requirement does not provide that a claimant must prove that he was actually attended by a physician within seventy-two hours after the injury, but the statute provides only that the physical distress following the occurrence of the hernia was such as to require the attendance of a physician within seventy-two hours after the occurrence. The purpose of this requirement was explained in Harkleford v. Cotter, 248 Ark. 811, 454 S.W.2d 76 (1970), where the court said:
It is a matter of common knowledge that witnesses do not see hernias sustained by fellow workmen as they would see a broken leg or broken arm. Consequently the people have seen fit to make, and the legislature has seen fit to leave, a compensable hernia a rather dramatic occurrence under the statute, with little or no room left for question or doubt that it did occur within the course of employment....
248 Ark. at 820. The court in Harkleford reversed a Commission decision awarding compensation for a hernia claim, but it did not hold that the claimant must actually see a physician within the required period (48 hours at that time). That issue was settled in Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S.W.2d 929 (1963), where the court adopted the interpretation given in Mississippi to a similar statutory provision in that state. Also, Prince noted that one of the meanings of “require” is “to need.” In Miller Milling Co. v. Amyett, 240 Ark. 756, 402 S.W.2d 659 (1966), Justice George Rose Smith said of the Prince case:
We followed a very similiar Mississippi case, where the court reasoned that for an injury “to require” a physician’s attendance within a certain number of days does not invariably mean that the physician must actually be consulted within that time. A substantial compliance may be sufficient.”
240 Ark. at 758.
The Prince decision was again referred to in Ammons v. Meuwly Machine Works, 266 Ark. 851, 587 S.W.2d 590 (Ark. App. 1979), where the Arkansas Court of Appeals said, “As pointed out in the Prince case, the statute does not require claimant to prove he was actually attended by a physician within 72 hours after the injury.” 266 Ark. at 854. In Ammons the claimant tried, but was unable, to see a doctor within 72 hours after injury, and we said the statutory requirement is met “if the evidence shows that within 72 hours after the injury the claimant’s condition was such that he sought and needed the services of a physician.” The word “sought” was applicable in light of the evidence in that case, but our reference to Prince made it clear that we did not think it was necessary that the services of a physician be sought within 72 hours; that it was only necessary to show that such services were required or needed within that period.
The Arkansas Court of Appeals again relied upon Prince in Brim v. Mid-Ark Truck Stop, 6 Ark. App. 119, 639 S.W.2d 75 (1982), where the Commission’s failure to award compensation was reversed. Although the claimant in that case did not see a doctor until 36 days after her injury, we held that the claimant “adequately met her burden of proof that she needed the services of a physician within 72 hours.” See 6 Ark. App. at 122.
In the Osceola Foods, Inc. v. Andrew, case, supra, one of the contentions made by the appellant was that the claimant’s distress following the hernia did not require the services of a physician within the prescribed time because the claimant went to the doctor for treatment of an allergic reaction to a pain pill, not because of the hernia that caused the pain. We relied upon Brim for the holding that the claimant was not required to prove that he was “actually attended by a physician within 72 hours but only that he needed the services of a physician within that period.” Therefore, in Osceola, in the context of the appellant’s contention that the claimant’s physical distress from the hernia did not require the attention of the doctor who diagnosed the hernia at the time he was seen for the allergic reaction, we stated, “The diagnosis of a hernia would confirm the need of the services of a physician which is all that section requires.” See 14 Ark. App. at 103.
Returning now to the Commission’s decision in the present case, we think the Commission was clearly in error when it held that the fifth subsection of Ark. Code Ann. § 1 l-9-523(a) (1987), was “effectively negated by the Ayres holding.” Thus, the Commission was also in error in its next statement that “if the diagnosis of a hernia confirms the fact that the claimant needs a physician, it logically follows that any claimant who can prove a work-related hernia has satisfied that fifth requirement.” The statement that “the diagnosis of a hernia would confirm the need of the services of a physician” was first made in Osceola and was correct in that case because, as we have explained, it applied to the employer’s contention in that case.
In Ayres we cited Osceola, and relied upon its language, when we held there was no substantial evidence to support the Commission’s decision that the claimant in that case had not needed the services of a physician within 72 hours of the occurrence of the hernia. We did not, however, hold that “any claimant who can prove a work-related hernia has satisfied the fifth requirement” of the statute, and the statutory requirement was not “effectively negated” by our decision in Ayres. In fact, we specifically referred to the statement from Osceola only in the context of our discussion of the sufficiency of the evidence.
However, the Commission’s statement in the present case as to its “understanding” of our decision in Ayres is not a finding of fact but amounts only to a conclusion of law. It has been the rule in Arkansas for many years that the Commission must make findings of fact in sufficient detail that the reviewing court may perform its function to determine whether the Commission’s findings as to the existence or nonexistence of the essential facts are supported by the evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 507-08, 579 S.W.2d 360 (1979); Mosley v. McGhee School District, 30 Ark. App. 131, 133, 783 S.W.2d 871 (1990). The Commission has done this in the instant case.
In its opinion the Commission held that the first two requirements of Ark. Code Ann. § 11-9-523 (a) (1987) were met because under the law “it is only necessary for the hernia to occur in a time and manner making clear the causal connection between it and the strain that occurred.”
As to statutory requirements three and four, the Commission’s opinion states, “The employer appears not to deny that Patterson ceased working and complained to his supervisor contemporaneously with the incident.” This is, of course, a finding of fact. Moreover, no one testified in this case except the claimant. We have already detailed his testimony as to the “sudden flash of severe pain” and that he stopped work and reported the incident to his supervisor. In fact, he testified that he “stepped back and put my hands on the table, waited a second” and “hollered to the shop foreman.” Certainly there is substantial evidence to support the Commission’s finding that the third and fourth statutory requirements were met.
And, as to the fifth requirement, the Commission said, “Since we find that Patterson did comply with subsections 1 through 4 and that the injury did occur within the scope and course of his employment, he has met his burden of proof under Section 523(a) and is entitled to appropriate benefits.” While the Commission was wrong in thinking that Ayres “effectively negated” the fifth requirement of the statute, the Commission specifically found that the claimant “met his burden of proof under Section 523(a).” That is definitely a finding of fact. Moreover, it is a summary of other factual findings which are in sufficient detail for us to determine whether they are supported by substantial evidence. The findings .here are not like those in Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986), where the Commission simply found that “claimant has failed to prove her claim by a preponderance of the evidence.” There, we said “the record contains no finding as to whether a compensable injury actually occurred on the job, or whether claimant became disabled, or whether she required further medical services, or whether a job-related injury aggravated a preexisting latent spinal disease.” So we concluded, “Absent any findings of essential additional facts, this court is not in a position to make a meaningful review of the decision of the Commission.” See also Jones v. Tyson Foods, Inc., 26 Ark. App. 51, 759 S.W.2d 578 (1988), which we said was “surprisingly similar” to Wright. In the instant case, however, the Commission has found:
(1) That “Patterson’s effort of pulling on the jig and feeling sudden pain in his testicle constitute the sudden effort and severe pain satisfying the first two criteria.”
(2) That “the employer appears not to deny that Patterson ceased working and complained to his supervisor contemporaneously with the incident.”
(3) That “Patterson gave credible testimony that he was in distress throughout the two weeks before the cause of pain was diagnosed.”
Thus, the Commission found in (1) that the first two requirements of Ark. Code Ann. § 1 l-9-523(a) had been satisfied. In (2), the Commission found that it did not appear that the employer even contended that the third and fourth requirements of the statute had not been met. And in (3) the Commission found from the claimant’s credible testimony that he was in distress throughout the two weeks before the cause of pain was diagnosed. The Commission then summed up these findings by stating that the claimant “met his burden of proof under Section 523(a).” Had the Commission made only this last statement we would be faced with the situation in Wright and Jones v. Tyson, but that is not our situation in this case. Here, the requirements of Wright and Jones v. Tyson, which were based upon Clark v. Peabody Testing Service, supra, were fully met. In appeals from the Commission, it is our duty to
view and interpret the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the commission and give the testimony its strongest probative force in favor of the action of the commission, whether it favored the claimant or the employer.
Clark v. Peabody Testing Service, supra, at 265 Ark. 496-97. See also Fowler v. McHenry, 22 Ark. App. 196, 203, 737 S.W.2d 663 (1987).
Obviously, it can be argued that the Commission’s understanding of the law in Ayres caused it to make the factual findings that it made in regard to the requirements of Ark. Code Ann. § 11 -9-523(a); but it nevertheless made those findings, and they are in sufficient detail for us to review. Therefore, although we do not agree with the Commissions’s conclusion of law that our decision in Ayres “effectively negated” the fifth requirement of Ark. Code Ann.§ ll-9-523(a) (1987), when we consider that the only evidence in the record comes from the claimant and the medical reports, and that the Commission’s opinion states the claimant gave “credible testimony,” and “met his burden of proof under Section 523(a)” (which includes the fifth subsection), we think the Commission’s findings of fact are so clearly supported by substantial evidence that we do not believe those findings were affected by the Commission’s misunderstanding of our decision in Ayres.
Affirmed.
Cracraft, C.J., Cooper, and Jennings, JJ., dissent. | [
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John F. Stroud, Jr., Judge.
On September 9, 1994, appellant, Carlos Deere, entered a plea of nolo contendere to the charge of theft by receiving. The court suspended imposition of sentence for five years. During that period, appellant was to comply with several conditions of suspension, including the conditions that he was not to commit any offenses punishable by imprisonment; he was not to possess any weapons; and he was not to use, possess, sell, carry, or otherwise handle any controlled substances without a valid doctor’s prescription. On February 17, 1996, a warrant was executed to search appellant’s apartment, based upon information that appellant was selling drugs from his apartment. The deputies conducting the search discovered “green vegetable-like material” that later tested positive for marijuana, razor blades, a set of scales, and a .22 caliber pistol. Appellant was arrested on February 20, 1996. On April 10, 1996, the State filed a petition for revocation, asserting that appellant had been arrested for possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and possession of a firearm, all of which were in violation of the conditions of his suspended imposition of sentence. Following the revocation hearing, the court sentenced appellant to ten years in the Arkansas Department of Correction and suspended the imposition of an additional sentence for ten years to ran from the date of his release from prison. We affirm.
Appellant raises eight points on appeal. We note at the outset that the abstract prepared by appellant’s counsel is flagrantly deficient with respect to most of the points raised on appeal. Neither the search warrant nor affidavit exhibits were abstracted, even though the arguments under the first four points of appeal challenge the validity of the February 17 search and the evidence that was procured pursuant to it. Moreover, appellant’s counsel did not abstract the original plea statement, conditions of suspension, petition for revocation, judgment and commitment order, and conditions of suspension related thereto. Further, the record and envelope containing the original exhibits were checked out by appellant’s counsel. The record was returned to the clerk’s office, but the exhibits were not timely returned, even though the clerk’s office requested their return. Appellant’s counsel has previously been notified about abstracting deficiencies. See Allen v. Routon, 57 Ark. App. 137, 943 S.W.2d 605 (1997). We direct the clerk to forward a copy of this opinion to the Supreme Court Committee on Professional Conduct.
Under the first point of appeal, appellant argues that the deputies’ entry into his apartment was “warrantless.” The basis for this assertion is not clear from appellant’s argument, and the abstracting deficiencies noted at the outset of this opinion make it impossible to render a decision on the merits. Moreover, it has long been the law in this State that the exclusionary rule does not apply in revocation hearings. Robinson v. State, 29 Ark. App. 17, 775 S.W.2d 916 (1989). We have suggested that a possible exception might be made if the police officers do not act in good faith. Id. Here, however, the abstract and argument presented by appellant’s counsel do not persuade us that there was bad faith in the procurement and execution of this search warrant.
Under the second point of appeal, appellant argues that the search warrant left at appellant’s apartment did not satisfy the requirements of Rules 13.2 and 13.3 of the Arkansas Rules of Criminal Procedure in that it did not identify the issuing judicial officer, did not indicate a time and place of issuance, and was not executed by a judicial officer. Once again, the abstract is of no help in understanding this argument, and we are not persuaded that the exclusionary rule should be applied in this case.
As his third point of appeal, appellant argues that the affidavit supporting the issuance of the search warrant did not satisfy the requirements of Rule 13.1 of the Arkansas Rules of Criminal Procedure in that it does not set forth particular facts bearing on the informant’s reliability. Moreover, appellant argues that the testimony from Officer Leary and Judge Baird Kinney did not establish probable cause for issuing the search warrant. The affidavit was not abstracted, but it appears to be set out in full in the argument section of appellant’s brief. However, the testimony of Leary and Kinney is not sufficiently abstracted to decide this argument on the merits. Finally, we find no reason to apply the exclusionary rule in this case. Robinson v. State, supra.
Appellant argues under the fourth point of appeal that the requirements of Rule 13.2(c) of the Arkansas Rules of Criminal Procedure were not satisfied in that there was no factual basis warranting a nighttime search. In making this argument, appellant relies in part on what he describes as a “misdrawn diagram” attached to the “unexecuted affidavit of search warrant.” The abstract deficiencies make it impossible to address this argument on the merits. Moreover, as noted with respect to the previous points of appeal, we are not persuaded that the exclusionary rule should be applied in this case. Robinson v. State, supra.
Points five and six make allegations of misconduct, conspiracy to obstruct justice, and bias against the police officer, the “state’s attorney,” the judge that issued the warrant, and the presiding judge. Once again, however, the abstracting deficiencies make it difficult to understand the arguments and to discern their validity. Point five argues that “the evidence and testimony relied upon to revoke appellant’s suspended imposition of sentence was a result of a conspiratorial attempt to obstruct appellant’s receipt of justice in State court.” The argument relies in large part on the warrant exhibits that were not abstracted. The remainder of the argument is almost pure speculation about wrongdoing and conspiracy. It is impossible to address the argument on the merits. The evidence found as a result of the search was sufficient to show that appellant violated several of the conditions of his suspension, and appellant has not established any basis for applying the exclusionary rule in this revocation case. Robinson v. State, supra. Point six argues that the presiding judge should have recused. First, appellant’s counsel did not abstract the motion to recuse, nor the transcript of the hearing on the motion. Moreover, a judge’s recusal is discretionary, his impartiality is presumed, and a party seeking disqualification bears a substantial burden to prove otherwise. Duty v. State, 45 Ark. App. 1, 871 S.W.2d 400 (1994). Appellant has not presented us with an abstract or an argument to demonstrate that the lower court abused its discretion in denying the motion to recuse in this matter.
As his seventh point of appeal, appellant argues that the punishment he received upon revocation of his suspension was excessive, a clear abuse of discretion, and the result of prejudice. We disagree. First, appellant did not abstract either the original conditions of suspension or the judgment and commitment order imposing the sentence from which he appeals. Even so, the range of punishment for theft by receiving is five to twenty years. It is within the trial court’s discretion to set punishment within the statutory range of punishment provided for a particular crime. Adams v. State, 25 Ark. App. 212, 755 S.W.2d 579 (1988). Upon revocation of his suspended sentence, the trial court sentenced appellant to ten years in the Arkansas Department of Correction and suspended the imposition of an additional sentence for ten years to run from the date of his release from prison. This sentence is within the appropriate range and therefore not excessive. Our previous discussion with respect to recusal disposes of appellant’s argument that the sentence was the result of prejudice.
As his eighth and last point appellant argues that the trial court was clearly erroneous in revoking appellant’s suspension. We disagree. Evidence that may not be sufficient to support a criminal conviction may be sufficient to demonstrate the violation of the conditions of suspension. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). We will not reverse the trial court unless its findings are clearly against the preponderance of the evidence, giving due regard to the trial court’s superior posi tion to determine the credibility of the witnesses and the weight to be given to their testimony. Id.
Appellant’s argument under this point essentially challenges the trial court’s credibility determinations. Decisions regarding credibility of witnesses are for the trier of fact. Id.; Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). The evidence showed that appellant possessed marijuana, scales, and a firearm. The possession of these items constituted a violation of appellant’s conditions of suspension. We hold that the trial court’s decision to revoke appellant’s suspended sentence was not clearly against the preponderance of the evidence.
Affirmed.
Bird, J., agrees.
Griffen, J., concurs. | [
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Margaret Meads, Judge.
Appellant, Charles Durdin, was convicted in a jury trial of aggravated robbery and theft of property and sentenced to five years and thirty years respectively, to be served concurrently in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his motion to dismiss for violation of his speedy-trial rights; that the Interstate Agreement on Detainers is not applicable in this case; and that the trial court erred in denying his motion for directed verdict due to insufficiency of the evidence. Because we find appellant’s speedy trial and Interstate Agreement on Detainers arguments to be persuasive, we reverse and dismiss his convictions.
With regard to appellant’s speedy-trial argument, Rule 28.1(c) of the Arkansas Rules of Criminal Procedure provides:
Any defendant charged ... in circuit court and held to bail, or otherwise lawfully set at liberty, . . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
For speedy-trial purposes, the time for bringing Durdin to trial began to run November 6, 1992, when a criminal information was filed and a bench warrant issued for appellant on charges of aggravated robbery and theft of property. Ark. R. Crim. P. 28.2(a). Thus, appellant should have been brought to trial no later than November 6, 1993, barring only periods of necessary delay. However, appellant was not tried on these charges until September 10, 1996. Once a defendant presents a prima facie case of a violation of his right to a speedy trial, the burden shifts to the State to show that the delay was legally justified or the result of defendant’s conduct. Bradford v. State, 329 Ark. 620, 953 S.W.2d 549 (1997); Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992).
Appellant’s motion to dismiss was argued orally to the court prior to the commencement of trial, but no testimony or documentary evidence was offered by either party. At the time the information was filed on November 6, 1992, Durdin’s whereabouts were unknown. The State asserted that appellant’s location remained unknown until April 1, 1993, when it learned that he was in custody in Chicago and that he was fighting extradition. The State further asserted that it placed a detainer on appellant but that on June 29, 1993, it received notice from Chicago that appellant had been released. After his release from custody in Chicago, appellant’s whereabouts were unknown until December 16, 1993, when the outstanding bench warrant was served on him in Pine Bluff, Arkansas, and he was taken into custody. Appellant posted bond and was released sometime after December 16, 1993.
Appellant’s first appearance before the court was January 3, 1994, at which time his case was continued until February 7, 1994. When appellant failed to appear for his February 7 court date, an alias warrant was issued for his arrest. His whereabouts remained unknown until November 4, 1994, when, according to the State, it was notified that appellant was serving time on unrelated charges in the Illinois Department of Correction and that he was waiving extradition. The State asserted that an officer was dispatched from the sheriff s department to retrieve appellant, only to be informed upon arrival that he had time remaining to be served on his sentence in Illinois and would not be released. The State asserted that a second detainer was placed on appellant at that time; however, it was not until November 3, 1995, that the State learned appellant was fighting extradition, and thus it began preparing governor’s warrants to obtain appellant’s presence for trial in Arkansas.
Appellant was returned to Arkansas on February 8, 1996, and his case was set for February 16, 1996; however, he was hospitalized at that time and unable to appear. Because of appellant’s illness, the trial judge continued the case from February 16, 1996, until June 3, 1996; this is evidenced by an amended order filed of record on April 10, 1996. On June 20, 1996, an order was entered setting trial for August 29, 1996. On August 28, 1996, the State requested and received a continuance, and trial was rescheduled for September 10, 1996.
Portions of this time period are unquestionably chargeable to the State for purposes of calculating the time for speedy trial. From June 20, 1996 (when the judge set trial for August 29, 1996) until August 28, 1996 (when the State requested a continuance), and from August 28, 1996, until September 10, 1996, is a total of eighty-two days chargeable to the State and thus includ able in the speedy-trial calculation. Regarding the November 4, 1994, to November 3, 1995, interval, the State acknowledged at the pretrial hearing that it knew appellant was in the custody of Illinois authorities. Although the State asserted that it received several contacts concerning appellant from Illinois law enforcement officials and that detainers and governor’s warrants were issued to return appellant to Arkansas, it presented no tangible proof in the record to document these assertions. Because statements and arguments of counsel are not evidence, Robinson v. State, 49 Ark. App. 58, 896 S.W.2d 442 (1995), we find that the State failed to meet its burden of proving that this period of time was excludable from the speedy-trial calculation under Ark. R. Crim. P. Rule 28.3. These two time periods alone place the State outside the requisite twelve-month period to bring appellant to trial. Because it would unnecessarily lengthen this opinion and is not necessary to the outcome, we do not address the other time intervals between November 6, 1992, and September 10, 1996.
In order to establish legal justification for periods of delay resulting from the absence or unavailability of appellant, the State could have offered the testimony of local or out-of-state law enforcement authorities, as in Caulkins v. Crabtree, 319 Ark. 686, 894 S.W.2d 138 (1995), and Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988); or the testimony of the prosecuting attorney, as in Wilson v. State, 10 Ark. App. 176, 662 S.W.2d 204 (1983). It could have introduced copies of the detainers which were purportedly issued, or extradition materials as in Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). Because the record is devoid of the requisite proof, appellant’s conviction must be reversed and the charges against him dismissed.
The State further argued that the Interstate Agreement on Detainers, Ark. Code Ann. §§ 16-95-101 — 107 (1987), applies and that appellant’s time for a speedy trial did not begin to run until his return to Arkansas on February 8, 1996. This agreement provides, in pertinent part:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, infor mation, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint ....
Ark. Code Ann. § 16-95-101, Art. 111(a) (emphasis added). The State contends, citing Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991), that because appellant did not affirmatively request trial, his right to a speedy trial did not begin to run until his actual return to Arkansas on February 8, 1996.
This argument must fail. The Arkansas Supreme Court has held that an accused in prison in another state, for a different crime, must affirmatively request trial in order to activate the speedy-trial rule. White v. State, 310 Ark. 200, 833 S.W.2d 771 (1992); Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991); Dukes v. State, 271 Ark. 674, 609 S.W.2d 924 (1981). Yet, it is also incumbent upon the prosecutor to promptly file a detainer upon learning that an accused is imprisoned elsewhere and to request that the official having custody of the accused advise the prisoner of the filing of the detainer and of the prisoner’s right to demand trial. Ark. R. Crim. P. 29.1(b); Dukes v. State, 271 Ark. at 677, 609 S.W.2d at 925. The prisoner then has the right to demand trial, and such trial must be had within 180 days unless there is good cause for a delay. Id.
There is no proof in the record that the State filed a detainer or that appellant was served with a detainer while incarcerated in Illinois; therefore, we find that the Interstate Agreement on Detainers was never triggered.
Because we find that appellant’s motion to dismiss based on lack of speedy trial should have been granted, we do not address the sufficiency-of-the-evidence argument. Horn v. State, 294 Ark. 464, 743 S.W.2d 814 (1988).
Reversed and dismissed.
Pittman and Jennings, JJ., agree. | [
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Andree Layton Roaf, Judge.
Washington County Assessor Sue Phillips (assessor) appeals a circuit court finding upholding a tax exemption for the appellee Mission Fellowship Bible Church (church) for a building and the 1.05-acre tract of land that it sits on. On appeal, the assessor argues that the circuit court erred in finding that the property was not the property of the church’s pastor, Rev. Jay D. Cole, and his wife, Thelma G. Cole, or in the alternative, that the church was not entitled to a tax exemption for the entire 1.05 acres. We affirm.
The church has existed as a domestic nonprofit corporation since 1991. Under I.R.S. guidelines, it qualifies as a church for federal tax-exempt status. The church is governed by a three-member board, elected by the congregation upon the recommendation of Rev. Cole. At the time this matter was litigated, Rev. Cole was a board member. Rev. Cole is an ordained Baptist minister, and the church’s congregation has some seventy “attendees.” Sunday worship service attendance varies between twenty-ñve and thirty-eight. All services are advertised and open to the public.
The property in question is a 1.05-acre tract upon which is situated the church building, a 6,800 square-foot structure that contains a sanctuary, chapel, Sunday School classrooms, a religious lending library, fellowship areas, administrative offices, and guest quarters for visiting pastors and missionaries. The balance of the property consists of landscaped grounds, approach roads, and a parking area. The 1.05-acre tract was part of a fifty-five-acre tract that was subject to a number of transactions between 1975 and 1992 involving the Coles as individual owners and Rev. Cole as an officer of a succession of nonprofit corporations engaged in religious activities.
Originally, the fifty-five-acre tract was acquired by Rev. and Mrs. Cole in November 1975, but was conveyed a month later by correction deed to United Missionary Aviation, Inc. The property was deeded back to the Coles in 1977 and was again deeded to United Missionary Aviation, Inc., in 1988. Since 1991, the fifty-five-acre tract has been owned by the church and is presently encumbered by a $750,000 mortgage to the Coles. The debt secured by the mortgage is the result of Rev. Cole’s advancing to the church more than $100,000 per year to support its television ministry. The church has never made payments on this debt.
On October 11, 1994, at the suggestion of the Washington County Board of Equalization, which had apparently rejected the church’s application for a tax exemption for the entire fifty-five-acre tract, a quitclaim deed signed by Rev. Cole on behalf of the church conveyed 1.05 acres including the church building to Rev. and Mrs. Cole. On the same day, the Coles conveyed the 1.05 acres back to the church. The Coles built and occupy a 3,000 square-foot residence on the portion of the fifty-five-acre tract not affected by the quitclaim deed. This residence is not tax-exempt.
The Washington County Board of Equalization approved a tax exemption for the church building and the 1.05-acre tract. The assessor appealed to the Washington County Court, which upheld the tax exemption. The assessor then appealed to the Washington County Circuit Court which, based on the pleadings and stipulated facts submitted by the parties, also upheld the tax exemption. The assessor appeals from this ruling.
The assessor first argues that the trial court erred in finding that Rev. Cole and his wife were not the “de facto” owners of the church property because of Rev. Cole’s “self-dealing” and “constructive fraud,” which included the execution of a mortgage that is currently in default and could result in the property reverting back to the Coles at any time. Consequently, the assessor argues, if this court finds that the Coles actually own the property, it would not be “dedicated church property” as contemplated by Ark. Code Ann. § 26-3-301 (Supp. 1995) or a church “used as such“ as required in Article 16, § 5, of the Arkansas Constitution.
It is well settled that tax exemptions must always be strictly construed against the exemption. City of Fayetteville v. Phillips, 320 Ark. 540, 899 S.W.2d 57 (1995). Moreover, the supreme court has said that, on appeal, all tax cases are reviewed de novo and the findings of the trial court are set aside only if clearly erroneous. City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995); Agape Church, Inc. v. Pulaski County, 307 Ark. 420, 821 S.W.2d 21 (1991).
The Arkansas Constitution exempts “churches used as such” from county ad valorem taxes. Ark. Const, art. XVI, § 5(b). Arkansas case law has interpreted this section to require that the property satisfy two requirements: 1) the property must be part of a designated class of property, i.e., a church; see Agape Church, supra (holding that land where the church constructed a 700-foot broadcast tower to transmit Christian programming was not entitled to a tax exemption because the statute contemplated a building, and a radio tower was not a building); and 2) the property must be used exclusively for the purpose suggested by the classification. Pulaski County v. First Baptist Church, 86 Ark. 205, 207, 110 S.W. 1034, 1035 (1908) (denying a tax exemption for a separate church-owned lot where outhouses were located even though they were used exclusively by the congregation).
Ownership is not listed as a condition for tax-exempt status in either Article 16, section 5, or in Ark. Code Ann. § 26-3-301, and it has never been found to be dispositive in the case law interpreting these sections where churches were concerned. Use, however, is determinative of entitlement to a tax exemption. See, Burbridge v. Smyrna Baptist Church, 212 Ark. 924, 927-28, 209 S.W.2d 685, 687-88 (1948) (abandoned church property subject to taxation except for a separately fenced cemetery which remained tax-exempt under a different clause in Article 16, section 5.); see also, City of Fayetteville v. Phillips, supra, (analogous clause of Ark. Const, art. XVI, § 5(b), regarding exemptions of property held for public purposes did not allow tax-exempt status for the publicly owned Walton Arts Center because it was not used exclusively for public purposes). Accordingly, even if this court were to be persuaded that Rev. and Mrs. Cole were the “de facto” owners of the property, there was no proof that the property was used for anything but church purposes.
Similarly unpersuasive is the balance of the assessor’s argument, in which she asserts that the property was not “dedicated church property” as contemplated by Ark. Code Ann. § 26-3-301 (Supp. 1995). The statute provides in pertinent part that:
All property described in this section, to the extent limited, shall be exempt from taxation:
(11) (A) Under the provisions of this section, all dedicated church property, including the church building used as a place of worship, buildings used for administrative or missional purpose, the land upon which the church buildings are located, all church parsonages, any church educational building operated in connection with the church, including a family life or activity center, a recreation center, a youth center, a church association building, a day care center, a kindergarten, or a private church school shall be exempt.
The circuit court made a specific finding of fact that the building is dedicated for use exclusively for worship and church-related matters. The assessor offered no proof to the contrary, nor did she even dispute the fact that the building was used exclusively for church purposes. Under the circumstances, we cannot say that the trial court’s finding was clearly erroneous.
The assessor also argues that if the property is determined to be the property of the church, the trial court erred in finding that the entire 1.05 acres is entitled to exemption from taxes, and asks that this court remand the case to the trial court for a determination of the extent of the exemption to be allowed. She argues that the church building only occupies fifteen percent of the 1.05-acre tract, and the rest should be subject to taxation. She contends that the parking lot, connecting driveways, and landscaped areas are not the land on which the church building is located, as required by Ark. Code Ann. § 26-3-301 (Supp. 1995) or a church “used as such” as required in Article 16, § 5, of the Arkansas Constitution. This argument fails to persuade because the plain language of § 26-3-301 specifically grants an exemption to “all dedicated church property.” Nowhere in the record is there proof that the adjacent land in the 1.05-acre plot was used for any other purpose.
On this point, the assessor urges this court to find dispositive Pulaski County v. First Baptist Church, supra, Agape Church, Inc. v. Pulaski County, supra, and Burbridge v. Smyrna Baptist Church, supra. However, her reliance on these authorities is misplaced, as they are easily distinguished from the instant case. At issue in Pulaski County v. First Baptist Church, supra, was not the land that the church was situated on, but a separate lot owned by the church on which a well and some outhouses were located. The instant case involves a single lot. Moreover, the court in Pulaski County v. First Baptist Church grounded its ruling in its concern that the use by a 1,500-member congregation of outhouses situated a distance from the church, instead of modern plumbing connected to city water and sewer mains, represented a health hazard.
Similarly, the land in Agape Church, Inc. v. Pulaski County, supra, was a separate twenty-six-acre tract located some distance from the church. Unlike the instant case where the church building itself is the only structure on the lot, a 700-foot transmission tower for broadcasting Christian programming was the only structure on the acreage.
As to Burbridge v. Smyrna Baptist Church, supra, this case involved the withdrawal of a tax exemption for eighteen of the twenty acres of a tract where a church had burned down. However, the exemption was maintained, pursuant to a different clause in Article 16, § 5, for two acres used as a cemetery. In the instant case, there is an active church being used as such, and the grounds surrounding the church are but a fraction of the twenty-acre tract that was exempt in Burbridge prior to the fire.
We also find unpersuasive the authority from a foreign jurisdiction cited by the assessor to support her contention that the parking area and driveways should not be exempt. In Second Church of Christ Scientist v. City of Philadelphia, 157 A.2d 54 (Pa. 1959), the Pennsylvania Supreme Court construed a section of the Pennsylvania state constitution relating to tax exemptions for church property that was considerably more restrictive than Article 16, § 5, of the Arkansas Constitution. The pertinent section of the Pennsylvania Constitution allowed tax exemptions for only the “actual place of religious worship.” Art. IX, § 1. The equivalent section of the Arkansas Constitution allows exemptions for “churches used as such.”
Finally, in oral arguments, the assessor’s counsel agreed that, based on the placement of the driveways and parking lot surrounding the church, he could not say that the 1.05-acre parcel could have been reduced in size. In sum, we cannot say that the trial court’s finding that the church’s property is exempt is clearly erroneous, and the judgment is affirmed.
Affirmed.
Robbins, C.J., and Meads, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a chancery court order dismissing the complaint filed by the appellants. The complaint alleged that appellants and appellee entered into a written lease agreement under which the appellee leased to the appellants the front boutique of the premises at 1917 North Grant Street, Little Rock, Arkansas. The lease provided that during its term the appellants would have the right of first refusal if the back boutique of the premises should become available.
The complaint further alleged that during the term of the lease the back boutique became vacant but that appellee let that portion of the building to other parties without notifying appellants; that when appellants discovered the back boutique had been relet, they demanded that if the premises again became vacant during the term of the lease, the appellee make the premises available to appellants; that the premises did again become vacant during the term of the lease but the appellee again breached the lease by letting the property to another party without notice to appellants. The complaint alleged that due to business expansion, and appellee’s breach of the lease, the appellants were forced to move to another location to meet business needs; that they sustained damages as a result of the breach of the lease; and that they should have judgment for those damaged sustained.
The appellee answered and raised the defenses of laches, acquiescence, waiver, and estoppel based upon the allegation that appellants had known of the vacancies but had failed to contact the appellee about leasing the back boutique. On the same day, the appellee filed a motion to transfer to chancery because of the equitable defenses raised. That motion was subsequently granted over the appellants’ objection.
On the day set for trial, the chancellor talked in chambers to counsel for both parties. After reviewing the pleadings, the court said it found from the statements of counsel that the appellants’ cause of action was barred by acquiescence, waiver, and estoppel. The court then dismissed the complaint on its own motion.
On appeal to this court, the appellants first argue that the chancellor was in error procedurally. However, in Millsaps v. Nixon, 102 Ark. 435, 144 S.W. 915 (1912), the court, on its own motion, while the opening statement was being made by defense counsel, stopped the proceedings and directed a verdict for the defendant on the basis that the opening statements of counsel showed that the plaintiff did not have a cause of action. This procedure is generally conceded to be within the power of the trial court. See 75 Am. Jur. 2d Trial § 505 (1974). Furthermore, in Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W.2d 492 (1966), the Arkansas Supreme Court treated the trial court’s ruling on a motion to dismiss as a ruling on a motion for summary judgment. But in either procedure, no summary disposition of the litigation may be made if there are issues of fact to be resolved. Griffin and Am. Jur. 2d, supra. See also Ark. R. Civ. P. 56.
The first reason given in the trial court’s judgment for dismissing the appellants’ complaint was that their cause of action was barred by acquiescence. In 3 Pomeroy Equity Jurisprudence (5th ed.) § 817 (1941), it is said that acquiescence is simply a bar to equitable relief and leaves one to his legal action alone, and in order for this to occur “the acquiescence must be with knowledge . . . must be voluntary . . . and it must last for an unreasonable length of time.”
The second basis stated for the chancellor’s action was that the appellants’ cause of action was barred by waiver. This involves an intentional surrender of a right.
Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. . . . [CJonduct amounting to waiver should be carefully inspected and all evidence upon the subject impartially scrutinized. [Citations omitted.]
Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 1039, 479 S.W.2d 518 (1972).
The final ground stated by the judgment as a reason for barring appellants’ claim was estoppel. The rule with respect to estoppel has been stated as follows:
A party who by his acts, declarations or admissions, or by his failure to act or speak under circumstances where he should do so, either with design or willful disregard of others, induces or misleads another to conduct or dealings which he would not have entered upon, but for such misleading influence, will not be allowed, because of estoppel, afterward to assert his right to the detriment of the person so misled. . . . A party claiming estoppel must prove that he has relied in good faith on the conduct of the party against whom the estoppel is asserted to his detriment. [Citations omitted.]
Bethell v. Bethell, 268 Ark. 409, 424, 597 S.W.2d 576 (1980).
In his statements to the chancellor, counsel for the appellants did not admit or concede that the elements necessary for acquiescence, waiver, or estoppel existed. Nor can we find from his statements any indication that the existence of these issues would not depend upon the evidence presented. We, therefore, find that the chancellor erred in the summary dismissal of appellants’ complaint.
Reversed and remanded.
Cooper and Coulson, JJ., agree. | [
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Andree Layton Roaf, Judge.
This case involves a pro se petition filed by appellant Steven Schueller requesting that the trial court require his former wife, Allison Schueller, to file a quarterly report of child- support funds as authorized by Arkansas Code Annotated section 9-14-103 (Repl. 2002). The trial court denied the petition. On appeal, Steven argues that the trial court erred in (1) ruling that 100% of the child-support payments did not have to go the child; (2) ruling that he was required to establish that the payments were not being utilized for the child in order for a quarterly report of funds to be ordered; (3) ruling that evidence that the payments were being spent inappropriately would be shown by proving that the money was spent in bars, clubs, liquor stores, casinos, and the like; (4) denying his petition for a quarterly report; (5) ruling that Allison’s counsel could not be called to testify about her attorney’s fees; and (6) suggesting that his petition for a quarterly report was frivolous. We find that there is no merit to his arguments and affirm.
The parties were divorced in 1999. The divorce decree gave Allison custody of the parties’ youngest child, Nathaniel, now age fifteen, and awarded her child support in the amount of $570 per month. On June 19, 2002, Steven filed a Petition for Abatement of Child Support and on June 25, 2002, a Petition for a Quarterly Report of Child Support. The petitions were mailed to Allison’s attorney, who filed a response to the Petition for a Quarterly Report on July 8, 2002.
A hearing on the Petition for a Quarterly Report was held on December 6, 2002. Steven appeared pro se and Allison appeared, represented by counsel. The following testimony was elicited at the hearing. Allison denied misusing the child-support funds she receives and contended that there was no evidence that the money was not being spent properly. Out of the $570, Allison pays $250 for medical insurance for her and her son, with the remaining money going toward daily living expenses, including household items, shoes, clothing, food, haircuts, and internet services. Allison stated that she spends seventy-five dollars per week on food; that approximately one-half of the household expenses could be attributed to Nathaniel; that one-third of the transportation expenses are attributed to Nathaniel because she takes him to school and to his sports activities; that her monthly household expenses for three people was $1970 in June 2001, but that since then only two people reside in the house and her expenses have increased; that Nathaniel also receives gifts and other things not associated with the household expenses, including gift certificates, a CD player, about $200 in birthday presents, and Christmas gifts. She testified that providing Steven with all of her receipts would be burdensome.
During Allison’s testimony, Steven asked her if she was aware that 100% of funds received for child support must go to the child. At that point, the trial court stated that the law does not require that 100% percent of the funds go to the child, and that it is permissible for the money to be spent on common expenses such as utilities, house payments, rent, and insurance. The trial court also reminded Steven that the statutory language indicates that the court “may” order a quarterly report, and stated:
I draw your attention to the first sentence, the Court “may.” It is totally discretionary. It is entirely incumbent upon you to establish why it is necessary for an accounting. You need to establish that this child support is not being utilized for the child, but you don’t do that by getting a quarterly report. You do that, for instance, if your child support checks were all being endorsed at Joe’s Bar and Grill, or down at the Sleazy Club, but the burden is on you to prove that the report is necessary. It is not on her to prove that it is not necessary.
Steven responded that the statute authorizes an accounting to determine whether child-support payments are being used appropriately. He argued that the legislature’s intent was that section 9-14-103 be used as a vehicle to enforce the appropriate use of child-support payments. He also argued that the section requires that the child receive 100% of the funds and maintained that the statute requires “that it be shown that [Nathaniel] gets it.” The trial court advised Steven to develop a record demonstrating that he was entitled to an accounting.
Steven also inquired about Allison’s expenses, including her attorney’s fees. Allison testified that her attorney’s fees were $10,000. She testified that in addition to paying her attorney’s fees, she has had to take off work and travel from Illinois to Arkansas to attend court with very little reimbursement, and asserted that Steven’s intent was to harass her with numerous “nonsensical” claims. Steven then attempted to call Allison’s attorney to testify about her fees. He argued that he was entitled to call the attorney to question her about the fees, pursuant to Rule 3.7 of the Model Rules of Professional Conduct. Allison’s attorney objected, and the trial court sustained the objection.
Steven testified on his own behalf. He contended that he was seeking “justice for the child” stating, “I am paying a substantial amount of money for the support of my son, Nathaniel, and I would like to see that it all goes to him as the Legislature has indicated.” He again argued that section 9-14-103 establishes a mechanism to enforce appropriate use of child support through quarterly reports, and opined that the quarterly report should be mandated in all proceedings where child support is ordered. Steven further asserted that he did not believe that more than forty percent of the child support is being spent on Nathaniel.
The trial court entered an order on January 10, 2003, denying Steven’s Petition for a Quarterly Report, admonishing him about filing frivolous motions, and warning him that in the future frivolous motions would result in an award of attorney’s fees for Allison. From the bench, the court stated that Steven had the . burden of proving that the child support was being utilized for something other than the benefit of the child, mentioning by way of example, use of the funds at bars or clubs, and found that he had not met this burden. The trial court declined to award Allison any attorney’s fees. From this order, Steven appeals.
Although Steven raises six separate issues on appeal, essentially his arguments can be addressed as four points. They are: (1) whether the trial court erred in ruling that 100% of the child-support funds did not have to go to the child; (2) whether the trial court erred in denying his Petition for a Quarterly Report; (3) whether the trial court erred in ruling that Allison’s counsel could not be called to testify about her attorney’s fees; (4) whether the trial court’s admonition regarding frivolous motions was appropriate.
Steven first argues that the trial court erred in ruling that 100% of the child-support funds did not have to go to Nathaniel. However, the order states only that Steven’s Petition for a Quarterly Report is without merit, and makes no mention of whether 100% of the child-support funds must go to the child. In this regard, however, we note that, while the supreme court, in Longinotti v. Longinotti, 169 Ark. 1001, 277 S.W. 41 (1923), held that child-support payments are intended for the sole benefit of the child, the court has suggested that child support may be used for common household expenses, including rent and utilities. See Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991). Moreover, when determining an appropriate child-support award, Arkansas courts consider expenses for food, shelter, utilities, clothing, medical expenses, educational expenses, dental expenses, childcare, accustomed standard of living, recreation, insurance, and transportation. Administrative Orders of the Supreme Court, No. 10., §V (2004).
Steven also challenges the denial of his Petition for a Quarterly Report. Included in this discussion are Steven’s points that the trial court erred in ruling that he was required to show that the funds were being misused before it would order a quarterly report, and that the trial court erred in holding that Steven must show that the funds were being used in places such as bars, clubs, casinos, and liquor stores, before the quarterly report would be ordered.
Although Ark. Code Ann. § 9-14-103 was first enacted in 1947, it has not been construed by either this court or our supreme court. It provides:
(a)(1) Upon application of any interested person to any judge of any court of record having jurisdiction of the cause of action, the court may require any person receiving as guardian of the person, either by adoption of law or order of any court, any funds, moneys, credits, goods, chattels, or anything of value for the support, maintenance, care, or custody of a minor child to file a verified quarterly report of all moneys or goods received therefor. The report shall state the items, goods, or services, the date purchased, and from whom purchased.
(2) The quarterly report shall be filed with the clerk of the court or other body rendering the original order or decree between the first and fifteenth day of the calendar month immediately following the end of each calendar quarter.
(b) This section shall apply to all awards, orders, or decrees made by any court or legally constituted body making such award. Any report required to be made under this section shall be a public record.
(c) It is the purpose of this section and the intention of the General Assembly that any funds, moneys, credits, chattels, goods, or anything of value which have been or are ordered, decreed, adjudged, adjudicated, or awarded for the use and benefit of any minor child shall be used and inure solely to the use and benefit of the minor child for which it is or was ordered paid. (Emphasis added.)
This court reviews questions of statutory interpretation de novo because it is for the appellate courts to decide what a statute means. Dooley v. Automated Conveyor Sys, Inc., 84 Ark. App. 412, 143 S.W.3d 585 (2004). The basic rule of statutory construction is to give effect to the legislative intent. Id. The doctrine of strict construction is to use the plain meaning of the language employed. Id. Where the language of the statute is unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. Id. The word “may” in Ark: Code Ann. § 9-14-103 is the operative word. See Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001). “The word ‘may’ is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used.” Id. at 164, 40 S.W.3d at 237. On the other hand, the word “shall” in a statutory context indicates mandatory compliance with the statute’s terms. Id. at 165, 40 S.W.3d at 238; See also Cogburn v. Wolfenbarger, 85 Ark. App. 206, 148 S.W.3d 787 (2004).
It is clear that Ark. Code Ann. § 9-14-103 grants the trial court discretion to require a quarterly report when the circumstances warrant it. This wording is unambiguous and when given its ordinary meaning must be interpreted to permit, not require, a quarterly accounting. Dooley, supra; Marcum, supra. Accordingly, the trial court’s denial of Steven’s petition was not erroneous, where he produced insufficient evidence to support the need for an accounting of the child-support funds. Contrary to Steven’s assertions, an accounting has not been viewed as a vehicle by which the non-custodial parent can discover whether child-support payments are being properly used . Rather, the court, in its discretion, can order an accounting upon a showing that it is warranted.
In this case, Steven failed to demonstrate that an accounting was warranted or necessary. Steven pays $570 per month in child support, which the trial court indicated was below the chart amount based on Steven’s income. Allison pays $250 for medical insurance alone. She is left with a little over three hundred dollars per month to provide Nathaniel with shelter, food, clothes, shoes, utilities, transportation, school supplies, funds for extracurricular activities, computer and internet, haircuts, and any other day-to-day necessity. She also provides gifts for holidays and other special occasions. Faced with this evidence, Steven stated that, from what he heard from Nathaniel, only forty percent of the money was being used for him. Steven did not allege that Nathaniel was not being properly cared for, nor did he present evidence of this bare allegation in support of his petition for the accounting. In his brief, he now asserts that Allison receives reimbursement for mileage from work, attended school, and sometimes purchases alcohol. However, these assertions, even if made to the trial court, would not support the grant of an accounting, and the trial court did not abuse its discretion in denying the petition.
We note, however, that Steven was not required to show that the child-support funds were being spent at bars, casinos, liquor stores, or the like, in order to invoke the statute, which provides that support funds “be used and inure solely to the benefit of the minor child. . . .” In the above-noted cases from foreign jurisdictions, the allegations against the custodial parents included purchasing new vehicles and taking expensive vacations and trips, to supporting live-in boyfriends or new husbands. We cannot conclude that only expenditures for activities perceived as vices or unwholesome in nature would warrant the grant of an accounting. However, in this instance, it is clear that the trial court was simply providing Steven with an example of circumstances under which an accounting might be in order, in ruling that he had not met his burden of proving that the accounting was necessary.
Steven’s third point involves the court’s refusal to permit him to question Allison’s attorney about her attorney’s fees. Allison’s counsel objected, citing attorney-client privilege. Steven contended that he was entitled to question Allison’s counsel about her fees because Allison was seeking an award of attorney’s fees in connection with her defense of his petition. The trial court held that the Code of Professional Conduct did not provide for such testimony except in a dispute between an attorney and client regarding fees. Rule 3.7 of the Model Rules of Professional Conduct provides, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where . . . the testimony relates to the nature and value of legal services rendered in the case.” However, we need not consider the merits of this argument because the trial court declined to award Allison any attorney’s fees. Thus, any error in this case would be harmless, and this court does not reverse absent a showing of prejudice. Hibbs v. City of Jacksonville, 24 Ark. App. 111, 749 S.W.2d 350 (1988).
Steven’s final challenge involves the court’s admonition regarding his frivolous petitions and motions. We first note that Steven received no adverse treatment as a result of this admonition. The trial court considered imposing attorney’s fees, but declined to do so. He instead cautioned Steven about filing frivolous pleadings and warned that attorney’s fees may be assessed in the future.
At any rate, Ark. R. Civ. P. 11 permits the trial court to order sanctions in cases where the court finds that a party or attorney has filed a pleading without any legal or factual basis or with the intent to harass. The record shows that Steven has filed a number of motions and petitions in this case. In past proceedings, Steven has likewise filed numerous petitions and motions, which required Allison to travel to Arkansas to defend against them. In fact, the trial court has awarded Allison attorney’s fees on at least two prior occasions. Additionally, Steven has filed several appeals throughout the history of this case. Based on this history, we cannot say that it was improper for the trial court- to issue an admonition to Steven.
Affirmed.
Robbins, J., agrees.
Pittman, J., concurs.
Other jurisdictions addressing this issue likewise hold that an accounting may be required upon a showing that the child-support funds are being used inappropriately. See Rico-Perez v. Rico-Perez, 734 So.2d 1177-78 (Fla. Ct.App. 1999) (stating that the complaining party must request an accounting and demonstrate to the court that thefacts warrant an accounting; cautioning “that there is no reason a properly structured order for accounting of the child’s expenses should become an intrusion into the [non-custodial parent’s] records”); Bacardi v. Bacardi, 727 So.2d 1137-38 (Fla. Ct. App. 1999) (concluding that the parties’ agreement intended that child-support payments cover more than what is ordinarily contemplated, and “more significantly, no showing has been made in this case to warrant such a monumental intrusion into [the appellant’s]financial recoids.”); Kovenock v. Mallus, 660 N.E.2d 638 (Ind. Ct. App. 1996) (stating that the accounting was properly denied where the appellant did not show that the children’s basic needs where not being met, notwithstanding his allegations that the child support payments were being used to subsidize the appellee and her husband’s business and living expenses, where the Indiana Code § 31-1-11.5-13(e) provides that the court may make an order, upon a proper showing of necessity, require an accounting; and noting that “an accounting is a ‘pretty severe’ undertaking”); Olive v. Olive, 650 N.E.2d 766 (Ind. Ct. App. 1995) (holding that it is within the trial court’s discretion to order an account upon a showing of necessity, and finding that the trial court did not abuse its discretion in denying the accounting where the mother testified that she used the funds for the benefit of the child, notwithstanding dad’s testimony that the money was being used for mother’s personal expenses, including a trip to Hawaii); Katz v. Katz, 380 N.W.2d 527 (Minn. Ct. App. 1986) (affirming the trial court’s denial of relief to the appellant, stating that there was no indication in the record that the appellee was misusing funds); Trunzler v. Trunzler, 431 So.2d 1115 (Miss. 1983) (affirming the trial court’s denial of the appellant’s petition for an accounting and opining that the trial court could require the custodial parent to periodically account for child support payment,“if, but only if the circumstances so require”); Cohen v. Barris, 220 Ga. 131-32, 137 S.E.2d 469, 470 (1964) (holding that the petition “fail[ed] utterly to show ... that the mother has misused or misapplied the funds or reasons why the petitioner is entided to an accounting,” and stating that statements that the dad had “reason to believe” the funds were being misused, and hearsay statements of the mother to the children that they are destitute, did not show a misapplication or misuse of the child support funds). | [
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Andree Layton Roaf, Judge.
This appeal concerns the interpretation and construction of a promissory note and security agreement signed by three debtors, the appellees, and containing a future-advances clause. The trial court held that the future-advances clause did not extend to cover a later, separate note signed by only one of the original debtors, and the appellant, First National Bank of Izard County (FNBIC) appeals. We affirm.
The parties submitted this case to the trial court on stipulated facts. On May 6, 1993, appellees Boyd Garner, Janet Garner, and Phillip Garner executed a promissory note in favor of FNBIC in the principal amount of $51,890.12, for the stated purpose of purchasing real estate. As security for the note, appellees executed a mortgage on certain real property in Izard County. In addition, appellees executed a financing statement and security agreement granting FNBIC a security interest in a Ford tractor. At the time the note, mortgage, and financing statement and security agreement were executed, Boyd Garner and Janet Garner were husband and wife. Phillip Garner is the son of Boyd Garner but not the son of Janet Garner. The Ford tractor referenced in the security agreement was owned by Boyd Garner prior to his marriage to Janet Garner.
The promissory note contained the following provisions:
Definitions — “I” means each borrower who signs this note and each other person or legal entity (including grantors, endorsers, and sureties) who agrees to pay the note. The term ‘note total’ means the total amount I am obligated to pay on the note.
Secured Obligations • — ■ This agreement secures the payment of the note and any additional amount I am or will become obligated to pay to you under the terms of the note (including all extensions, renewals, refinancing and modifications of the note) and the security agreement. This agreement also secures all other debts I may now or later owe you (including notes, insurance premiums, overdrafts, letters of credit, guarantees, and all extensions, renewals, and modifications of such debts)....
In June 2001, Janet Garner executed a promissory note to FNBIC in the original principal amount of $17,021.54. As security, Janet Garner granted FNBIC a security interest in a new Chevrolet Cavalier automobile and in the Ford tractor listed in the original May 1993 note. In January 2002, the Chevrolet automo bile was damaged, and insurance on the automobile paid $9,000 toward the satisfaction of the promissory note. As of May 10, 2002, there was a balance owed on the note of $7,232.14, plus late charges of $178.65. FNBIC attempted to take possession of the Ford tractor under the security agreement granted in connection with the May 1993 note, but the Gamers refused to allow FNBIC to do so.
At the time the May 1993 note was executed, Boyd Garner and Janet Garner were living together as husband and wife. They separated in 2000, reconciled, and separated again in February 2001. They were divorced later that year, and Boyd Garner received the Ford tractor in the divorce decree. Neither Phillip Garner nor Boyd Gardner signed any of the loan documentation in connection with the June 2001 note executed by Janet Garner.
FNBIC filed suit seeking a judgment against Janet Garner for the unpaid balance of the note, interest, and attorney’s fees. FNBIC sought an order requiring Boyd Garner and Phillip Garner to make the Ford tractor available so FNBIC could take possession and sell the tractor and apply the proceeds to the 2001 Janet Garner note. Boyd Garner and Phillip Garner answered, denying the allegations of the complaint.
The trial court found that FNBIC’s claim hinges on the meaning of “I” as defined in the stipulated facts. The court referred to the definition of “each” provided by the dictionary as meaning “each one; every individual one.” The trial court reasoned that, in order for FNBIC to have an interest in the tractor, it would have been necessary for “every defendant” to have signed the Janet Garner note dated June 2001. The court ruled that, because that did not happen, FNBIC had no security interest in the tractor and was not entitled to take possession of this tractor and dispose of and apply the proceeds to the June 2001 note. This appeal followed.
FNBIC raises one issue on appeal: that the trial court erred when it held that the security agreement executed in 1993 by Boyd Garner, Janet Garner, and Phillip Garner did not also secure the later, separate note executed by Janet Garner in 2001.
The standard of review of a circuit court’s findings of fact after a bench trial is whether those findings are clearly erroneous. Ark. R. Civ. P. 52; Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000). 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. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998).
The Uniform Commercial Code, in Ark. Code Ann. § 4-9-204(c) (Repl. 2001), provides, in part, that “[a] security agreement may provide that collateral secures... future advances or other value, whether or not the advances or value are given pursuant to commitment.” In construing future-advances clauses, the intention of the parties governs and is to be determined by considering all the circumstances surrounding the execution of the mortgage. Union Nat’l Bank v. First State Bank & Trust Co., 16 Ark. App. 116, 697 S.W.2d 940 (1985).
Courts have stated that future-advances clauses cover only advances shown to have been within the contemplation of the parties at the time the security agreement was executed. In re Swanson, 104 B.R. 1 (Bankr. C.D. Ill. 1989). In determining intent, we look to whether the later loan is related to or within the same class as the original debt, which allows us to infer that it was covered by the earlier agreement. See Security Bank v. First Nat’l Bank, 263 Ark. 525, 565 S.W.2d 623 (1978) (involving a real-estate mortgage); Union Nat’l Bank v. First State Bank & Trust Co., supra (same). This “relatedness” rule does not defeat future-advances clauses; rather, it helps determine the parties’ intent by looking at the relationship between the original security agreement and the later debt. See In re Estate of Simpson, 403 N.W.2d 791 (Iowa 1987).
In Security Bank, supra, Gene and Shirley Prater executed a deed of trust on their home to secure a promissory note. The trust deed contained a future-advances clause that stated that the trust deed secured not only “the indebtedness hereinafter described but any other indebtedness now or hereafter owing by parties of the first part... and any time prior to the release or foreclosure of this instrument.” Subsequently, Gene Prater, individually and doing business as Prater’s Electric & Wiring Co., executed a series of notes for business purposes. The trial court held that these subsequent notes were covered by the future-advances clause of the original deed of trust. However, the Arkansas Supreme Court reversed, holding that the subsequent notes were all for business obligations and were not of the same class as the obligation created by the Praters in connection with the purchase of their home.
In a somewhat factually similar case, In re Swanson, supra, the court held that the parties did not intend that the security interest secure the debts of the debtors’ son, even though the debtors had guaranteed their son’s debts and the note contained a future-advances clause covering the note and all other existing and future indebtedness and obligations ofthe’debtors. The debtors and their son carried on separate farming operations utilizing land owned solely by the parents. On September 15, 1983, the parents executed a guaranty of their son’s debts. On September 16, 1983, the father executed the note in question and the son borrowed money from the bank. In December 1986, the son signed another note for the balance then due. In the parents’ bankruptcy case that followed, the bank and husband contended that they intended the security agreement to cover the son’s 1986 note, while a secured creditor contended that the original 1983 note did not clearly and unambiguously grant a security interest in the collateral to- cover the son’s later debt. As noted, the trial court ruled that the parties did not intend that the security agreement would extend to the later debt, based, in part, on husband’s demeanor while testifying.
In the present case, the parties considered the promissory note and security agreement as an issue dependent merely upon the construction to be given the language contained in those documents. The May 1993 security agreement provides that “[t]his agreement secures the payment of the note and any additional amounts I am or will become obligated to pay you....” The trial court found that FNBIC’s claim hinges on the meaning of “I” as defined in the stipulated facts. We agree. If the construction urged by FNBIC is correct, Boyd Garner or Phillip Garner would have intended to grant a security interest for an obligation they do not owe and for which they are not responsible. Such a construction goes against the plain language of the note and security agreement. Further, the tractor belonged to Boyd Garner prior to his marriage to Janet Garner, and she may not have had any right to pledge the tractor to secure her sole debt. FNBIC also did not offer any proof that Boyd Garner had any knowledge that Janet Garner was pledging the tractor or that he agreed to her doing so. The transaction also took place after the final separation of Janet and Boyd Garner.
Moreover, one of the rules of contract construction or interpretation is that any ambiguities will be construed strictly against the drafter of the contract. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). An ambiguity will be found when a provision is susceptible to more than one reasonable interpretation. Unigard Sec. Ins. Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 962 S.W.2d 735 (1998); State Farm Fire & Casualty Co. v. Midgett, 319 Ark. 435, 438, 892 S.W.2d 469, 471 (1995). In this instance, FNBIC was the drafter of the instrument, and we cannot say that the trial court’s interpretation of the provisions at issue is not reasonable.
In addition to arguing the definition of “I” found in the note, FNBIC also argues that the note, in the section listing the borrower’s name, states that “ T includes each borrower above, jointly and severally.” However, FNBIC did not make this argument to the trial court. This court will not address arguments raised for the first time on appeal. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).
FNBIC relies solely on the language of the security agreements. In the absence of evidence to the contrary, the trial court was correct in concluding that Janet Garner’s June 2001 note was not secured by the Ford tractor.
Affirmed.
Gladwin and Bird, JJ., agree.
The answer was submitted on behalf of Boyd Garner and Phillip Garner. Likewise, the brief to this court is submitted only on behalf of Boyd and Phillip Garner. | [
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