text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Larry D. Vaught, Judge.
This is an appeal from a trial court’s order dismissing appellants’ wrongful-death complaint based on medical negligence because all of the heirs at law had not been named and the two-year statute of limitations had run. On appeal, appellants contend that the trial court erred in granting appellees’ motion to dismiss and in prohibiting the appellants from amending their complaint to add a party plaintiff. Finding no error, we affirm.
Appellants, James and Melissa Andrews, are the natural parents of Tyler Garrett Andrews (“deceased”), who was born on December 18, 1999, and died on December 23, 1999. Appellants filed a wrongful-death action against appellees on August 3, 2000, alleging that their negligence led to the death of their newborn child. Specifically, they alleged that appellees, including Dr. Bo Lin, M.D., allowed the deceased’s incubator to run out of oxygen while he was being transported to a hospital by an Air Evac helicopter, which resulted in brain damage and ultimately led to his death. At the time of death, the deceased had a minor half-brother (Jeffrey Andrews) who was not named as a plaintiff in the complaint.
On July 10, 2002, appellants filed a motion to add a necessary party in order to include the minor half-brother as a party plaintiff. Appellees filed a joint motion to dismiss in response, alleging that Arkansas law requires that a wrongful-death action be brought in the names of all the heirs at law in the absence of a personal representative. They argued that because the half-brother was not named as a plaintiff, appellants lacked standing to bring the complaint. Based on this, appellees contended that the original complaint was a nullity and void ab initio, and that the trial court lacked jurisdiction. Appellees pled further that the statute of limitations had expired and thus the complaint should be dismissed with prejudice.
A hearing was held on April 24, 2003. At the conclusion of the hearing, the trial court dismissed appellants’ complaint with prejudice, holding that the original complaint was a nullity and void ab initio. In addition, the trial court held that the statute of limitations had run on all claims. An order reflecting the trial court’s decision was filed May 20, 2002, and a timely notice of appeal was filed June 19, 2002.
Appellants first contend that the trial court erred in granting appellees’ joint motion to dismiss and in prohibiting appellants from amending their complaint to add a party plaintiff. In Arkansas, a wrongful-death action must be brought by and in the name of the personal representative of the deceased person. Ark. Code Ann. § 16-62-102(b) (Supp. 2003). If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. Id. The supreme court has construed the term “heirs at law” as used in this section to mean all of the beneficiaries of the wrongful-death suit. Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). A wrongful-death action is a creation of statute and exists only in the manner and form prescribed by the statute; thus, the wrongful-death statute must be strictly construed and nothing may be taken as intended that is not clearly expressed. Ramirez v. White County, 343 Ark. 372, 38 S.W.3d 298 (2001). In applying all of the standard rules of statutory construction, the supreme court held that the language of Ark. Code Ann. § 16-62-102(b) was clear and unambiguous. Id. If there is no personal representative of the deceased person, then a wrongful-death action must be brought by all of the heirs at law. Id. Because the wrongful-death action is a creation of statute and only exists in the manner and form prescribed by statute, an action brought by less than all of the heirs of the deceased is a nullity. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002); see also Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003); and McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.3d 442 (2002).
Appellants argue that while Ramirez, supra, indicates that all heirs must be joined as party plaintiffs, the failure to do so should not render the complaint a nullity. Appellants suggest that St. Paul, supra, is inapplicable to this case because it involved a survival action, which could only be brought by an executor or administrator and not the heirs at law. We disagree, as the same reasoning has been applied in wrongful-death actions as well. See, e.g., Sanderson v. McCollum, supra; see also Estate of Daisy Byrd v. Tiner, 81 Ark. App. 366, 101 S.W.3d 887 (2003); McKibben v. Mullís, supra. This court in Sanderson affirmed the trial court’s dismissal of appellants’ wrongful-death complaint, holding that the pro se complaint brought by the decedent’s wife in her individual capacity was a nullity because it was not brought in the names of all the heirs. In addition, we stated that the amended complaint brought by the wife on behalf of herself and the heirs and estate was also a nullity because she had not been appointed as the personal representative and could not bring the suit in the representative capacity. Here, because the decedent’s half-brother was not named as a plaintiff, it was not brought by all the heirs at law, and therefore was a nullity.
Appellants also contend that based on Rules 15 and 17 of the Arkansas Rules of Civil Procedure, they should have been allowed, as a matter of law, to add the minor half-brother as a plaintiff. This argument too has been addressed previously. In Davenport v. Lee, supra, it was held that if the original complaint is a nullity, Rules 15 and 17 cannot apply because the original complaint never existed, and thus, there was nothing to relate back. See Davenport, supra; Estate of Daisy Byrd v. Tiner, supra.
Finally, appellants argue that the trial court erred in finding that the statute of limitations had run as to the half-brother’s claim. They state that according to Ark. Code Ann. § 16-114-203(c)(l) (Supp. 2003), the minor half-brother shall have until his eleventh birthday to commence an action on behalf of his brother for wrongful death and that under Ark. Code Ann. § 16-56-116 (Supp. 2003), he should have until his twenty-first birthday to commence an action.
Section 16-114-203 (Supp. 2003) provides the statute of limitations for a medical-malpractice claim. Subsection (c)(1) provides:
(c)(1) If an individual is nine (9) years of age or younger at the time of the act, omission, or failure complained of, the minor or person claiming on behalf of the minor shall have until the later of the minor’s eleventh birthday or two (2) years from the act, omission, or failure in which to commence an action.
Based on this language, it is clear that the tolling provision applies to a minor’s injury, not to a beneficiary’s derivative claim in a wrongful-death action based on medical negligence. Appellants cite no authority for their argument other than the statutes. Likewise, appellants’ argument with respect to section 16-56-116(a) is also unavailing. This section provides:
(a) If any person entided to bring any action under any law of this state is, at the time of the accrual of the cause of action, under twenty-one (21) years of age, or insane, that person may bring the action within three (3) years next after attaining full age, or within three (3) years next after the disability is removed.
Appellants also cite no case law suggesting that this statute should apply. In fact, based on the plain language of this statute, the minor half-brother is not a “person entitled to bring” a wrongful-death action because it cannot be brought by an individual heir alone. In Ramirez, supra, the supreme court held one heir at law would have no standing to bring a wrongful-death action where several heirs existed, and thus there would be no jurisdiction.
Affirmed.
Hart, J., agrees.
Baker, J., concurs.
We express no opinion on the issue of whether Jef&ey Andrews’s status as a half-brother of the deceased is of any significance under Ark. Code Ann. § 16-62-102(b). The issue was not raised either before the trial court or on appeal. | [
-16,
108,
-59,
60,
57,
-29,
106,
26,
83,
-29,
97,
-45,
-17,
-61,
85,
107,
113,
45,
-15,
-5,
98,
-73,
7,
-96,
-38,
-77,
120,
-42,
48,
-19,
-10,
-66,
72,
32,
74,
-43,
66,
78,
-19,
80,
-58,
8,
9,
-28,
89,
-109,
48,
-14,
28,
7,
53,
-98,
-13,
43,
62,
-30,
44,
44,
89,
-68,
-64,
16,
-117,
5,
-34,
16,
-79,
-89,
-72,
-92,
88,
30,
-40,
-80,
32,
-20,
50,
-74,
-126,
116,
99,
-103,
8,
102,
-10,
32,
13,
-25,
-8,
-72,
47,
-82,
31,
-89,
-110,
97,
75,
13,
-66,
61,
120,
84,
-113,
122,
110,
-50,
92,
-68,
-96,
-118,
-106,
-79,
-10,
-128,
-100,
43,
-29,
7,
48,
117,
-36,
-30,
92,
71,
113,
-37,
-106,
-42
] |
Olly Neal, Judge.
Lamar Outdoor Advertising appeals from the State Highway Commission’s denial of its application to erect a billboard along Highway 67/167 near Jacksonville. Lamar argues that the Commission erred in denying the application and that, when the Commission’s decision was appealed to Pulaski County Circuit Court, the court erred in failing to conduct a de novo hearing. We affirm in all respects.
The statutes and regulations pertinent to this case were promulgated pursuant to the federal and state Highway Beautification Acts. Congress passed the federal Highway Beautification Act in 1965 for the purpose of protecting the public investment in highways, promoting the safety and recreational value of public travel, and preserving natural beauty. See 23 U.S.C. § 131(a) (2001); Files v. Arkansas State Highway & Transp. Dep’t, 325 Ark. 291, 925 S.W.2d 404 (1996). The Act required the states to, among other things, effectively control the erection of outdoor-advertising devices within 660 feet of interstate and primary highway rights-of-way or suffer a reduction in federal-aid highway funds. See 23 U.S.C. § 131(b) (2001); Yarbrough v. Arkansas State Highway Comm’n, 260 Ark. 161, 539 S.W.2d 419 (1976). Under 23 U.S.C. § 131(d), certain outdoor signs could be erected within the 660-foot parameter in “unzoned commercial or industrial areas” as determined by agreement between each state and the federal Secretary of Transportation.
The Arkansas Highway Beautification Act, like the Federal Act, permits outdoor-advertising signs within the 660-foot parameter “within those unzoned commercial or industrial areas which may be determined by agreement between the commission and the United States Secretary of Transportation.” See Ark. Code Ann. § 27-74-204(a)(2) (Repl. 1994). The Arkansas State Highway Commission entered into an agreement with the federal Secretary of Transportation in 1972 that resulted in the adoption of the Regulations For Control Of Outdoor Advertising On Arkansas Highways. Regulation 1(H)(2) defines an unzoned commercial, business, or industrial area — where billboards are permitted — as follows:
the land occupied by the regularly used building, parking lot, and storage or processing area of a commercial, business, or industrial activity, and that land within 600 feet thereof on both sides of the highway. The unzoned land shall not include:
2. Land predominantly used for residential purposes.
It was this regulation that formed the basis for the Commission’s denial of Lamar’s application. The Commission determined that the site where Lamar proposed to erect a billboard did not qualify as an “unzoned commercial area” because it was predominantly used for residential purposes.
The evidence at the administrative hearing revealed that the proposed site was owned by a commercial business, Andrews Paving Company. Jeff Ingram, the Commission’s Highway Beautification Coordinator, inspected the site and determined that, within the area 660 feet from the highway right-of-way and 600 feet along either side of the commercial lot, there were two residences and parts of the yards of two others. Ingram also discovered that the entire area had been platted as part of a residential subdivision in 1967, although there had been no development in the area since 1979 due to flooding problems. Ingram further located a Bill of Assurance filed with the subdivision plat, which provided that no lot would be used except for residential purposes; that no signs could be displayed on any lot, with the exception of certain small or specialized signs; that the Bill was binding for thirty years from its recordation date; and that it would be automatically renewed for successive ten-year periods unless changed by a majority of the landowners.
Following Ingram’s investigation, the Commission denied Lamar’s application on the ground that the area was predominantly residential and thus did not meet the definition of an unzoned commercial area. Thereafter, a hearing was held before an administrative officer. Both Ingram and Larry Long, who is the head of the Commission’s Beautification Section, testified that the Commission operated under a rule of thumb that if there were more houses than businesses in an area, the area would be considered predominantly residential. Applying that rule, they determined that the subject area was predominantly residential because it had a ratio of four residences to oné business.
To counter the Commission’s evidence, Lamar presented an opinion letter prepared by Robert Holloway, a civil and environmental designer. Holloway stated that, given the flooding problems in the area, the subdivision could not be further developed residentially.
The administrative officer denied Lamar’s application, ruling that the proposed billboard site was in an area that was predominantly residential and therefore did not qualify as an unzoned commercial area. Lamar appealed the administrative finding to the Pulaski County Circuit Court, where it was affirmed. Appeal was then taken to this court by the filing of a timely notice of appeal.
Lamar argues first, as it did at the administrative hearing, that the Commission misinterpreted Ark. Code Ann. § 27-74-204(a) and Regulation 1(H)(2) to mean that a billboard could not be placed on a commercial lot if the area surrounding the lot was predominantly residential. Lamar contends that, so long as the billboard is to be placed on the commercial lot rather than on one of the surrounding lots, the residential character of the surrounding lots should not be considered. We disagree.
Issues of statutory construction are reviewed de novo. See Holland v. Lefler, 80 Ark. App. 316, 95 S.W.3d 815 (2003). However, an administrative agency’s interpretation of statutes or its own rules and regulations will not be disregarded unless clearly wrong. See ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997); Arkansas Dep’t of Human Servs. v. Hillsboro Manor Nursing Home, Inc., 304 Ark. 476, 803 S.W.2d 891 (1991). The Arkansas Highway Beautification Act is remedial in nature and must be broadly construed to effectuate the purpose sought to be accomplished by its enactment. Files, supra.
Arkansas Code Annotated section 27-74-204(a) and Regulation 1(H)(2) recognize that billboards may be placed in an unzoned commercial area, and the regulation defines that area as the land occupied by the commercial building and its parking lot, storage, or processing area, plus the land within 600 feet thereof on both sides of the highway. It is within this entire area that the law generally permits a billboard to be erected. This is made clear by an illustration in the Regulations For Control Of Outdoor Advertising On Arkansas Highways that depicts an “unzoned commercial area” as being a box, measuring 600 feet on either side of the business and 660 feet back from the highway. The illustration then describes the area within the box as “where signs will be legal.” Under the terms of Regulation 1(H)(2), however, an area is precluded from being classified as unzoned commercial if it includes land predominantly used for residential purposes. Contrary to Lamar’s proposed construction, the statute and regulation do not require a different analysis if the billboard is placed directly on the commercial lot as opposed to a lot in the surrounding area; it is the character of the entire “boxed” area that is to be considered, regardless of where the billboard is placed in that area.
Given the purposes of the state and federal Highway Beautification Acts, it is reasonable to conclude that the Acts intended to prohibit billboards in areas where, although a commercial use exists, there also exists a predominantly residential use. To interpret the statute and regulation as Lamar suggests would mean that a billboard could be placed on a single unzoned commercial lot even if that lot were closely surrounded by residential use, which would be at odds with the purpose of the Acts. We therefore uphold the Commission’s interpretation.
Lamar argues next that, even if we interpret the statute and regulation as the Commission would have it, the Commission erred in determining that the area in question was predominantly used for residential purposes. Unlike the previous issue, which involved a de novo review of statutory interpretation, this issue involves a factual finding by the Commission. Thus, we employ the standard of review required by the Administrative Procedure Act, as we did in Lamar Outdoor Advertising, Inc. v. Arkansas State Highway & Transp. Dep’t, 84 Ark. App. 72, 133 S.W.3d 412 (2003). There, we recognized that our review is directed not toward the circuit court but toward the decision of the agency 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. We also observed that our review of administrative decisions is limited in scope, and administrative decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id.
Substantial evidence is evidence that is valid, legal, and persuasive and that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Williams v. Arkansas State Bd. of Physical Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). The question is not whether the evidence would have supported a contrary finding, but whether it would support the finding that was made. See id. The appellant has the burden of proving that there is an absence of substantial evidence. See id. To establish an absence of substantial evidence to support the decision the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id.
An administrative decision should be reversed as arbitrary and capricious only when it is not supportable on any rational basis, not simply because the reviewing court would have acted differently. Moore v. King, 328 Ark. 639, 945 S.W.2d 358 (1997). The party challenging the agency’s action must prove that such action was willful and unreasonable, without consideration, and with a disregard of the facts or circumstances of the case. Id.
Given the strict standard of review and the great deference accorded to an administrative agency’s findings, we affirm the Commission’s action in this case. The area in question has more residential use than commercial use, there being two full residences and parts of two others as opposed to one commercial lot. A use is “predominate” if it is “most common or conspicuous.” American Heritage Dictionary at 976 (2d ed. 1985). Further, the lots in the area are platted for residential use and served by a Bill of Assurance that restricts the area to residential use. Thus, we cannot say that the Commission had no reasonable basis for its denial of Lamar’s application or that its action was willful and unreasonable in disregard of the facts and circumstances. Certainly, some evidence was presented that would support a contrary finding, in particular the fact that, for the last twenty-five years, the subdivi sion has not been capable of supporting residential development due to flooding problems. However, our inquiry on appeal is not whether the evidence would have supported a contrary finding, but whether it supports the finding that was made. Williams v. Arkansas State Bd. of Physical Therapy, supra. The evidence in this case supports the finding that was made by the Commission, and we therefore affirm.
Before leaving this point, we discuss a matter that is troublesome to the dissenting judges and gives us some concern as well. In Act 735 of 1979, the legislature defined the term “land predominantly used for residential purposes” as follows:
(a) It is the legislative intent and purpose of this section to specifically define a certain term used in the agreement entered into between the State Highway Commission and the Secretary of Transportation pursuant to the authority granted in this chapter, as amended, particularly the term “land predominantly used for residential purposes” as that term is used in enumerating exclusions in the definition of “unzoned commercial, business, or industrial areas,” in order to clarify the terms of agreement and to enable the commission to more effectively and efficiently and uniformly administer the provisions of this chapter, as implemented by the agreement entered into between the commission and the Secretary of Transportation.
(b) As used in the agreement entered into between the commission and the Secretary of Transportation pursuant to the provisions of this chapter, “land predominantly used for residential purposes” means only those tracts of land within an unzoned commercial, business, or industrial area on a primary or interstate highway which are occupied by a building regularly and principally used as a residence and those tracts of land adjacent to those residential tracts which are under the same ownership as the residential tracts and which are actively used and maintained for residential purposes.
Ark. Code Ann. § 27-74-210 (Repl. 1994) (emphasis added). Lamar argues that we should apply this definition in determining whether the land in question was being used for predominantly residential purposes. However, Lamar did not argue the application of this statute to the Commission, although the statute was cited in the briefs filed in circuit court. It is an appellant’s duty to raise an argument at the Commission level before raising it on appeal. See Arkansas Health Servs. Agency v. Desiderata, 331 Ark. 144, 958 S.W.2d 7 (1998). In Desiderata, the supreme court declined to consider a constitutional argument that the appellant raised for the first time in the circuit court proceeding. On numerous other occasions, the supreme court has held that it will not reach arguments, either constitutional or otherwise, that were not made at the administrative level. See, e.g., Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 892 S.W.2d 262 (1995) (declining to review appellant’s arguments that she was denied due process and her right to a hearing under Ark. Code Ann. § 25-15-208 where such arguments were not made to the administrative tribunal); Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992) (declining to reach “several arguments” that were not raised before the Board); Alcoholic Bev. Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985) (declining to reach a challenge to the timing of two local option elections because the argument was not raised before the Board). The rationale behind this rule is that, if the appellate court were to set aside an administrative determination on a ground not presented to the agency, it would usurp the agency’s function and deprive the agency of the opportunity to consider the matter, make its ruling, and state the reasons for its action. See Franklin, supra; Wright v. Arkansas State Plant Bd., supra.
In the present case, the Commission was never given the opportunity to consider and rule upon the application of section 27-74-210. We note that an agency ruling would have been particularly important in this case because there is some question about the validity of the statute. Arkansas Code Annotated section 27-74-211(b) states that the definition of an unzoned commercial area “shall be determined by an agreement between the commission and the Secretary of Transportation.” Thus, there is a question regarding whether legislative action was the proper means of defining an unzoned commercial area. In any event, Lamar did not argue the application of the statute to the Commission, and the Commission did not rule on its application. Therefore, as the supreme court has done in like cases, we will not address Lamar’s argument for the first time on appeal.
The remaining issue is whether the circuit court erred in failing to conduct a de novo hearing upon an appeal from the Commission. This issue was fully developed and resolved in Lamar’s first appeal, where we held that a de novo hearing was not required under these circumstances. See Lamar Outdoor Advertising, Inc. v. Arkansas State Highway & Transp. Dep’t, supra. We therefore affirm that point without further discussion.
Affirmed.
Gladwin, Bird, and Crabtree, JJ., agree.
Robbins and Roaf, JJ., dissent.
In three prior appeals, we affirmed the Commission’s denial of Lamar’s applications to erect billboards at other locations. Lamar Outdoor Advertising, Inc. v. Arkansas State Highway & Transp. Dep’t, 84 Ark.App. 72, 133 S.W.3d 412 (2003); Lamar Outdoor Advertising, Inc. v. Arkansas State Highway & Transp. Dep’t, No. CA03-412 (Ark. App., May 5, 2004); and Lamar Outdoor Advertising, Inc. v. Arkansas State Highway & Transp. Dep’t, No. CA03-413 (Ark. App., May 5, 2004).
The record does not reveal how the Andrews commercial lot came to be placed in this subdivision.
Other parts of the regulations clarify that “on both sides of the highway” means on both sides of the business along the highway. | [
-13,
-21,
-44,
60,
-53,
66,
82,
-107,
27,
-95,
125,
67,
-17,
-62,
29,
113,
-89,
107,
-15,
27,
-43,
-78,
81,
66,
114,
-13,
-53,
-41,
48,
89,
-20,
125,
78,
112,
-54,
-43,
100,
74,
-123,
-34,
110,
32,
27,
93,
-39,
-63,
52,
43,
70,
-113,
85,
-115,
-42,
60,
24,
-62,
41,
108,
89,
41,
75,
-72,
-39,
29,
127,
20,
49,
116,
25,
1,
-22,
24,
-112,
48,
24,
-8,
119,
-90,
86,
100,
79,
-39,
8,
-80,
103,
0,
29,
-33,
-84,
-71,
7,
-38,
-87,
-90,
-62,
25,
75,
7,
-97,
20,
56,
18,
70,
122,
-1,
69,
83,
108,
-125,
10,
48,
-79,
103,
48,
20,
81,
-53,
-59,
-110,
85,
-49,
-41,
87,
29,
18,
95,
-122,
-63
] |
Olly Neal, Judge.
In this appeal from the Saline County Circuit Court, appellant challenges the sufficiency of the evidence used to support a conviction for possession of a counterfeit substance with the intent to deliver under Ark. Code Ann. § 5-64-401 (Repl. 1997), and the court’s failure to give a proffered instruction recommended by appellant. Because we hold that there was insufficient evidence to convict appellant of possession of a counterfeit substance with the intent to deliver, we reverse.
Detective Michael Hardester of the Saline County Sheriffs Office testified that, on January 9, 2002, he was investigating reports of illicit drug trafficking in the Little Rock area of West Baseline Road and Margo Lane. Hardester said that he and another officer, Detective Kevin Cooper, were in an undercover car and in plainclothes when they observed appellant standing on a street corner. Hardester rolled down the window on his truck and appellant approached the vehicle, leaned in, and asked what they needed. Hardester said that he told appellant he needed a “20 rock.” Appellant instructed them to drive down the road, turn around, and return. The officers complied, and when they returned, other people were in the area — one individual even standing pretty close to the vehicle. Appellant gave Hardester the rock of cocaine, and Hardester paid appellant twenty dollars.
Hardester testified that, because other people were present, he and Cooper decided not to arrest appellant immediately, but decided to call in help since they would be outnumbered. Hard-ester saw appellant walking down the street and approached him, stating that he wanted to buy more cocaine. In response, Hardester testified that appellant “stuck his right hand in his right front pocket of his jeans and we placed him in custody.” By that time, backup had arrived, and appellant was searched. They found several “small rock-like substances” in appellant’s pocket.
Detective Cooper corroborated Detective Hardester’s testimony by testifying that they pulled up on Margo Lane by appellant and that:
I stepped out of the passenger side and said I needed two more. Detective Hardester had gotten out of the front and had walked around behind the defendant. The defendant stuck his hand in his right front pocket and at that time we placed him under arrest.
A drug chemist from the crime lab testified that the rock-like substances Hardester purchased were cocaine-based and weighed .084 grams. The other substance weighed 1.365 grams, but no controlled substances were detected in it.
Following trial, appellant was convicted of one count of delivery of a controlled substance and one count of possession of a counterfeit substance with the intent to deliver. It is from appellant’s conviction for the latter count that he appeals. On appeal, appellant argues first that the evidence used to support a conviction for possession of a counterfeit substance with the intent to deliver was insufficient. We agree.
Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Evidence is viewed in the light most favorable to the State; only evidence that supports a verdict is considered. Clements v. State, 80 Ark. App. 137, 91 S.W.3d 532 (2002). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Saulsberry v. State, supra. Decisions regarding the credibility of witnesses are for the trier of fact. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). The fact finder is not required to believe any witness’s testimony, especially the testimony of the accused, because he is the person most interested in the outcome of the trial. Winbush v. State, 82 Ark. 365, 107 S.W.3d 882 (2003). We do not weigh the evidence presented at trial nor do we weigh the credibility of the witnesses. Polk v. State, 82 Ark. App. 210, 105 S.W.3d 797 (2003).
Under Arkansas Code Annotated section 5-64-401(b) (Repl. 1997), “it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance.” Arkansas Code Annotated section 5-64-101 (Repl. 1997) defines a counterfeit substance and the proof required to make out a prima facie case for qualifying a noncontrolled substance as a counterfeit substance as follows:
(e) The term “counterfeit substance” means a noncontrolled substance, which by overall dosage unit appearance (including color, shape, size, markings, packaging, labeling, and overall appearance) or upon the basis of representations made to the recipient, purports to be a controlled substance or to have the physical or psychological effect associated with a controlled substance;
In determining whether a substance is counterfeit, the following factors shall be utilized. A finding of any two (2) of these factors constitutes prima facie evidence that a substance is a “counterfeit substance”:
(1) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect;
(2) The physical appearance of the finished product containing the noncontrolled substance is substantially the same as that of a specific controlled substance;
(3) The noncontrolled substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance;
(4) The noncontrolled substance is not labeled in accordance with 21 U.S.C. § 352 or § 353;
(5) The person delivering, attempting to deliver, or causing delivery of the noncontrolled substance states or represents to the recipient that the noncontrolled substance may be resold at a price that substantially exceeds the value of the substance;
(6) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities;
(7) Prior convictions, if any, of an owner, or anyone in control of the object under state or federal laws related to controlled substances or fraud[.]
According to the above-referenced statutory sections, the offense of delivery of a counterfeit substance requires proof that the substance in question is a “noncontrolled substance.” Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999).
In support of the conviction, the State points to the testimony of state crime lab chemist Kim Brown who testified that one of the substances she tested was a rock-like substance that did not contain a cocaine base. It also points to the substance’s similar appearance to the cocaine that appellant had previously sold to the undercover officers; the fact that it came out of the same pocket; and the fact that they “were both referred to by the appellant as ‘candy,’ a common street name for rock cocaine.” However, the State failed to prove any two of the above-cited factors.
In criminal cases, the State has the burden of proof. See Strickland v. State, 74 Ark. App. 206, 46 S.W.3d 554 (2001) (in our system the government has the burden of proof; when one is accused of a crime, what is on trial is the government’s proof against the accused); Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995) (the trial court followed the traditional format in criminal cases, where the State has the burden of proof). Moreover, the basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. S.T. and C.B. v. State, 318 Ark. 499, 885 S.W.2d 885 (1994). Criminal statutes must be strictly construed, and the State’s failure to prove that the substance was a statutorily-defined counterfeit substance was fatal to appellant’s criminal conviction. See Shaw v. State, supra.
Under Ark. Code Ann. § 5-64-101, two of seven factors must be present to constitute prima facie evidence that a substance is a “counterfeit substance.” The only factor that the State proved was number two — the physical appearance of the finished product containing the noncontrolled substance was substantially the same as that of a specific controlled substance. The officers and the chemist testified to the rock-like appearance of the drugs found on appellant incident to his arrest, suggesting that its appearance was substantially the same as that of rock cocaine. Nevertheless, the State failed to prove any other factor.
Additionally, there is no evidence of attempted delivery. Detective Hardester testified that:
The defendant was [walking] up Margo Lane back towards the original corner where we made contact. After we stopped[,] [w]e had put our badges around our necks to identify us as police officers when we were about to make the arrest, and placed our guns on. We got out of the vehicle and engaged in conversation with the defendant, told him we needed two more, something to that effect. He stuck his right hand in his right front pocket of his jeans and we placed him in custody. ... We displayed our badges and guns once the call was made to make the arrest. We put them on while we-were talking to the backup officers.
Further, Detective Cooper testified that:
Detective Hardester drove to Margo and West Baseline to where the defendant was walking from Margo, we pulled into Margo Lane, and he’s walking towards me. I get out of the vehicle. At that time, I’ve got my badge displayed and a gun on my side. I step out of the passenger side and said I need two more. Detective Hardester had gotten out of the front and had walked around behind the defendant. The defendant stuck his hand in his right front pocket and at that time, we placed him under arrest. When he put his hand in his right front pants pocket, that’s when I made contact with him, and Detective Hardester got the other side of him, [and] we placed him on the ground and put handcuffs on him.
* * 4
When I asked him for two more rocks, I had my badge and gun on. The badge was visible, but he probably couldn’t see my gun.
While appellant was on the ground, Cooper testified that appellant giggled and stated, “A1 sold you candy.” The State attempts to use this statement to prove factor one — statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect. However, appellant’s statement refers to the sale of cocaine to the undercover officers. Appellant had not produced anything else to the officers for sale. Therefore, because (1) the State failed to prove two of the factors necessary to establish prima facie evidence that the substance was a “counterfeit substance;” (2) the State failed to prove attempted delivery; and (3) penal statues are strictly construed, placing the burden of proof on the State, we reverse and dismiss appellant’s conviction for possession with intent to deliver a counterfeit substance.
Because we reverse on appellant’s first point, we need not reach his second point on appeal that the trial court erred in not giving his proffered instruction.
Bird and Roaf, JJ., agree.
Robbins, J., concurs.
Pittman and Vaught, JJ., dissent. | [
80,
-17,
-23,
12,
40,
96,
62,
42,
83,
-105,
116,
115,
-19,
-60,
5,
59,
-82,
127,
116,
105,
-37,
-73,
103,
33,
-62,
-13,
121,
-57,
54,
73,
-20,
-36,
13,
80,
-118,
93,
38,
-56,
-25,
88,
-50,
1,
-103,
83,
82,
0,
32,
42,
22,
15,
113,
-106,
-14,
43,
28,
-54,
77,
44,
11,
-67,
123,
-16,
-71,
-33,
-83,
22,
-127,
20,
-103,
5,
-40,
126,
-100,
49,
0,
-24,
115,
-90,
-126,
116,
15,
-101,
-124,
96,
-30,
33,
29,
-51,
-84,
-116,
62,
59,
-97,
-90,
112,
72,
65,
108,
-106,
-106,
44,
18,
14,
-22,
115,
77,
93,
108,
39,
-49,
-16,
-111,
13,
48,
-108,
-37,
-53,
1,
116,
113,
-49,
-62,
84,
84,
80,
-101,
-50,
-41
] |
Andree Layton Roaf, Judge.
This is a workers’ compensation case. Appellant Guy Dixon suffered an injury while operating a forklift at the Salvation Army. Dixon was enrolled in the Salvation Army’s residential alcoholism program at the time of the injury. Dixon applied for workers’ compensation benefits, which were denied. The Commission found that Dixon was not entitled to benefits because he was not under a contract of hire, express or implied, and therefore, was not an employee. For his sole argument on appeal, Dixon argues that the Commission erred in finding that there was no implied contract of employment between him and the Salvation Army. We reverse and remand for an award of benefits.
Dixon sought assistance from the Salvation Army for alcoholism. He enrolled in their sixteen-week residential program and signed a Beneficiary Enrollment Form. Dixon had been in the program a total of four times. The form provided in part that Dixon agreed that the Center owed no obligation to him; that Dixon understood that he was not an employee of the Center; and that Dixon waived his right and the right of his heirs and assignees to bring suit against the Center for any injury sustained while he was enrolled in the program.
As an enrollee, Dixon was required to live on the premises, attend church on Sunday and Wednesday, attend morning devotionals, attend AA meetings, and perform jobs as assigned. The job duties were considered “work therapy,” and the Beneficiary Enrollment form characterized the performance of the duties assigned as “volunteer.” Dixon was paid $7 per week, with a $1 increase weekly, not to exceed $20. Donald Montgomery, program director, testified that the services were required as a part of work therapy, and the nominal payment was not intended as compensation, but was gratuitous.
As part of his assigned duties, Dixon repaired small appliances and operated a forklift in the Salvation Army’s warehouse. Dixon was assigned these tasks because of his prior experience as indicated in his enrollment application. Montgomery testified that the refurbished products were resold and the proceeds used to support the program.
On August 24, 2001, Dixon was injured while operating the forklift. At the time of the accident, Dixon was working a forty-hour work week at the warehouse. He was treated for his injuries, which required the use of a wheelchair for a time. Because the program home was not equipped for individuals in wheelchairs, Dixon was not allowed to return. Montgomery stated:
We did not allow him to stay at the Salvation Army headquarters during the period of time he was not working for us after the accident. We did not feel there was any work he could do at the warehouse and he was not allowed to continue in the program because he couldn’t work while he was on a crutch. As the director of the program, I did not give him the opportunity to give him any work other than driving the forklift after he was hurt.
After Dixon recovered, he returned to the Salvation Army and applied for regular employment on October 4, 2001. On the application, Dixon indicated that the Salvation Army had not previously employed him, nor had he previously applied for employment with them. Dixon began work as a full-time employee on October 8, 2001, after his application was approved. He was given the same forklift-operator job that he had prior to his injury and was paid an hourly salary for forty hours per week. He worked until October 20, 2001. On February 9, 2002, Dixon was found dead. His mother has continued his claim for workers’ compensation benefits for the August 2001 injury.
The ALJ denied Dixon benefits, finding that Dixon was not entitled to workers’ compensation benefits because he was not under a contract of hire, express or implied, at the time of the injury. The ALJ noted that although he was performing similar work during the two time periods, the relationship between Dixon and the Salvation Army was significantly different. The Commission affirmed and adopted the ALJ’s decision, and Dixon appeals.
On review, the appellate court must determine whether the Commission’s decision is supported by substantial evidence. Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. The Commission’s decision will be affirmed unless a fair-minded person presented with the same facts could not have arrived at the conclusion reached by the Commission. Second Injury Fund v. Stephens, 62 Ark. App. 255, 970 S.W.2d 331 (1998). The credibility of witnesses’ testimony is within the province of the Commission. Williams v. Brown’s Sheet Metal/CNA Ins. Co., 81 Ark. App. 459, 105 S.W.3d 382 (2003).
Arkansas Code Annotated section 11-9-102(9)(A) (Supp. 2003) defines “employee” as:
Any person, including a minor, whether lawfully or unlawfully employed in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his or her employer and excluding one who is required to perform work for a municipality or county or the state or federal government upon having been convicted of a criminal offense or while incarcerated. (Emphasis added.)
Our workers’ compensation law further provides that, other than with respect to certain exceptions not relevant to this case, the waiver of workers’ compensation benefits by an employee is void. Arkansas Code Annotated section 11-9-108 (Repl. 2002) provides in pertinent part:
No agreement by an employee to waive his or her right to compensation shall be valid, and no contract, regulation, or device whatsoever shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this chapter, except as specifically provided elsewhere in this chapter.
See also Bryan v. Ford, Bacon & Diver, 246 Ark. 325, 438 S.W.2d 472 (1969).
On appeal, Dixon argues that the Commission erred in failing to consider that a contract of employment or employment relationship may be implied, and that the work performed by Dixon conferred a benefit on the Salvation Army that was necessary to its operations in processing goods through the stream of commerce. Dixon contends that the benefit conferred upon the Salvation Army provides the underlying basis for the employment as required by Ark. Code Ann. § ll-9-102(9)(a). In response, the Salvation Army argues that Dixon is not entitled to workers’ compensation benefits because there was no contract of hire. The Salvation Army points out that (1) Dixon was a beneficiary of its substance-abuse program and volunteered to perform the services; (2) he signed a form indicating that he understood that he was not an employee; and (3) following the incident Dixon applied for actual employment with it, indicating on the application that he was not previously an employee.
The Salvation Army also cites Ark. Code Ann. § 11-9-102(11) (Supp. 2003) and asserts that Dixon’s activities would not be considered employment pursuant to the exception provided for “a person performing services for any non-profit, religious, chari table, or relief organization.” However, this issue was not raised to nor decided by the Commission. The Salvation Army asserts that this section is relevant only to point out that Dixon’s argument fails to account for organizations like the Salvation Army that have both volunteers and actual employees, and that persons such as Dixon are only a part of its overall organization and not the only persons responsible for carrying out the objectives of the entity. The Salvation Army contends, as it did to the Commission, that Dixon is merely a beneficiary of its rehabilitation program and not one of its employees.
This is a case of first impression in Arkansas. However, there have been a number of reported cases involving similar claims for workers’ compensation benefits brought against the Salvation Army in other jurisdictions. In McBeth v. Salvation Army, 314 So. 2d 468 (La. Ct. App. 1975), the claimant, like Dixon, was enrolled in a rehabilitation program for homeless men, most of whom were alcoholics. McBeth was injured in an accident while riding in a Salvation Army truck that was being used to pick up clothes at its receptacles. McBeth brought both a tort claim and a claim for workers’ compensation benefits. On appeal of the dismissal of his tort claim, the issue was whether McBeth was an employee of the Salvation Army within the contemplation of the Louisiana workers’ compensation law. The court declined to address whether the “beneficiary” form executed by McBeth constituted a waiver of compensation and held that McBeth was not entitled to benefits because he was not “rendering a service for” the Salvation Army within the contemplation of the workers’ compensation law. The court stated that the program in which McBeth was a participant was instituted solely for his benefit and for others similarly situated, that the work he performed, as a beneficiary, was a part of the rehabilitation portion of the program and did not accrue to the benefit of the Salvation Army. The court found that there was no contract of hire, express or implied, and that based upon his application for admission, he was fully aware he was a beneficiary, a person being helped by a charitable organization, and “not in any reasonable sense” an employee.
However, two other jurisdictions have reached the opposite conclusion. In Hall v. Salvation Army, 261 N.Y. 110, 184 N.E. 691 (1933), the claimant, a charity inmate, was injured while working as a cook in the appellee’s industrial house, serving three meals a day, for $13 a day and room and board. The court concluded that Hall was performing work of the same nature as he performed before entering the home, that the work was necessary to the activities of the program, that he was under the direction and control of the appellee, and that he was performing its regular work, for which the organization received a benefit. The court further stated that the decision was not intended to cover inmates “who are taken in as a matter of charity, furnished with food and lodging, and sometimes given small sums of money, even though such persons are required to perform slight manual services for the . purpose of maintaining their health and building up their morale.” But see Seymour v. Odd Fellows Home, 267 N.Y. 354, 196 N.E. 287 (1935) (finding no contract of hire where resident was not required to work).
In Schneider v. Salvation Army, 217 Minn. 448, 14 N.W.2d 467 (1944), the claimant was injured while assigned regular work trucking bales of newspaper and operating a freight elevator. The appellee claimed that Schneider was a client or patient in its industrial home, who was given board, lodging and small cash grants for work done by him as a charity, and to sustain his self-respect. The Minnesota Supreme Court found that there was an employment relationship between the parties, stating:
The work which respondent did was of a permanent nature and was necessary to the carrying on of the activities of the [project]. He was under the continuous control and direction of relator, doing its regular work at regular hours, from week to week and month to month, for the benefit of the project which it was sponsoring, as well as for himself. Such work required the services of at least some trained, experienced, and permanent employees, who were chosen, where possible, from the list of inmates.
That relator sought by its rules and regulations to avoid the creation of an employer-employee relationship at the time respondent was admitted to its home in 1928 and readmitted in 1931 and again in 1936 may be conceded. Yet that fact did not prevent the parties from subsequently establishing such relationship by implied agreement, as the statute permits. And it must be kept in mind that ‘the mere form put on the transaction by the parties should be disregarded and its real substance made controlling. An employee entided to compensation cannot contract away that right.’
In so holding, the court distinguished an earlier case, Hanson v. St. James Hotel, 191 Minn. 315, 254 N.W. 4 (1934), in which it had found an enrollee in the Union City Mission not an employee. Hanson was injured after he had sought lodging and was put to work for seven days washing walls for the Mission. However, in Hanson, the court found it relevant that the work Hanson was assigned was not a return for the services rendered to the Mission and that he was not required to work at all if he did not so desire. The Hanson court further stated that the Mission may require an inmate to perform “occasional services” in or about its facility as a condition of continued residence there without being subject to the provisions of the workers’ compensation laws.
While some jurisdictions have been hesitant to declare persons in Dixon’s situation as employees, there have been exceptions, most notably those found in Schneider, supra, to which Dixon’s case can be analogized. Like the beneficiary in Schneider, supra, there was somewhat of a history between Dixon and the Salvation Army. In Schneider, there was a fourteen-year history, during which the claimant had been enrolled in the men’s program on three separate occasions. In this case, it is not clear how long Dixon had worked for the Salvation Army, but the evidence shows that he had been enrolled in the program four times.
It is likewise clear that Dixon was providing a benefit to the Salvation Army, as well as receiving a benefit for himself. As in Schneider, the work performed by Dixon directly benefitted the Salvation Army. Montgomery testified that the small appliances and items of that nature were refurbished by Dixon and resold, with funds going to support its program. As such, the work Dixon was performing was necessary and integral to the overall operations of the Salvation Army.
Additionally, Dixon was supervised and under the direct control of the Salvation Army. He was required to work. In fact, once he was injured, he was ousted from the program. Montgomery testified that because Dixon was in a wheelchair and could not work in the warehouse, he was sent home. Montgomery never offered Dixon any alternative job duties, which could have permitted him to stay in the program. The fact that Dixon was required to work also distinguishes this case from Seymour, supra, and Hanson, supra, in that the courts found it significant that those claimants were not required to work as part of the program. Moreover, Dixon worked a forty-hour week, as an alleged “beneficiary” of the program. In Schneider, supra, the court noted that the claimant worked a regular shift, while in Seymour, supra, the court noted that the claimant worked only at his leisure. Moreover, the work Dixon performed required skill and expertise. Dixon was specifically assigned to the duties in the warehouse and was also charged with repairing small appliances because of his prior experience and expertise.
Finally, the agreement signed by Dixon does not necessarily waive his status as an employee, particularly, as the Schneider court noted, where the conduct of the parties shows an implied contract of hire after the agreement was signed. The mere fact that Dixon signed such an agreement does not defeat the substance of the parties’ relationship. Further, even in this time of strict construction, the legislative intent of the workers’ compensation laws is still to protect workers. Because of the nature and purpose of these statutory schemes, it is of no small significance that employees cannot waive their status or protection provided under these statutes. Therefore, we conclude that the form signed by Dixon did not operate to waive his rights under the workers’ compensation laws.
It is also significant that the statutory provision determining who is an “employee” for the purpose of inclusion within the scope of the protection of our workers’ compensation laws includes specific exclusions that cannot be said to apply to Dixon. His duties were clearly not casual and were within the course of the well-known and long-standing commercial trade, business, profession or occupation of the Salvation Army. It is significant that the provision also specifically excludes persons performing work for a governmental entity upon having been convicted of a criminal offense or while incarcerated. Accordingly, we conclude that if non-profit organizations such as the Salvation Army are deserving of some special exemption from the workers’ compensation statutes because it is feasible, economical, or otherwise desirable for them to utilize their “beneficiaries” in this way, it is more appropriate to establish such an exemption legislatively rather than for this court to hold that a person such as Dixon is not an employee because he is not “rendering service” to the Salvation Army, but is instead a mere volunteer.
Reversed and remanded for an award of benefits.
Neal and Vaught, JJ., agree.
We note that this section is found under the definition of “Employment” at Ark. Code Ann. § 11-9-102(11) (Supp. 2003), which establishes that “employment” means an employer with three or more employees regularly employed in the course of business, excepting “any person performing services for any nonprofit religious, charitable, or relief organization.” Ark. Code Ann. § 11-9-102(11)(A)(iv) (Supp. 2003). Although this version of Ark. Code Ann. § 11-9-102(11)(A)(vi) (Supp. 2003) has not been interpreted, this court has interpreted the previous version of the statute, which instead excepts “institutions maintained and operated wholly as a public charity.” Ark. Code Ann. § 11-9-102(3)(A)(iii) (1987). See Sloan v. Voluntary Ambulance Serv., 37 Ark.App. 138, 826 S.W.2d 296 (1992) (denying workers’ compensation benefits to an employee after finding that the employer was being maintained and operated wholly as a public charity); Marion Hospital Assoc. v. Lanphier, 15 Ark.App. 14, 688 S.W.2d 322 (1985) (reversing and remanding with directions to dismiss the appellee’s workers’ compensation claim after finding that the appellant was an institution maintained and operated wholly as a public charity so as to come within the exception found in Ark. Stat. Ann. § 81 — 1302(c)(1)).
This issue has also been addressed in a number of jurisdictions at the agency level. Everett v. Salvation Army, Case No. 1,010,612 (Kansas Div. of Work. Comp., September 2003); Pearson v. Salvation Army, Case No. 98-087214 (Mo. Div. of Work. Comp., August 13, 2001); Pompei v. Salvation Army, Slip Op., Case No. 9661 4422 (NY Work. Comp. Board, October 24, 2000); Anderson v. Salvation Army, Slip Op., Case No. A97-1208 (Pa. Work. Comp. Appeals Board, October 10, 1998); Bell v. Liberty Mutual Insurance Co., Slip Op., Case No. AU/95-114702-01-CC-AU41 (Texas Work. Comp. Commission, April 8, 1996); Wheeler v. Salvation Army, Slip Op., Case No. 94-00615R (Okla. Work. Comp. Court, April 8, 1994); Oaks v. Salvation Army, Slip Op., Case No. IC 90-713791 (Idaho Industrial Commission, December 15, 1993); Suchowlec v. Salvation Army, Slip Op., Case No. SJO 0137652 (Calif. Work. Comp. Appeal Board, October 24, 1991). | [
-112,
-8,
-40,
-100,
10,
-32,
50,
62,
85,
-126,
55,
27,
-21,
-59,
77,
107,
-31,
125,
65,
121,
-43,
-77,
19,
41,
-6,
-13,
-7,
71,
-79,
111,
-32,
116,
77,
48,
-126,
-43,
-18,
-63,
-52,
80,
-62,
7,
42,
-23,
-7,
2,
48,
-82,
-108,
27,
49,
-98,
51,
42,
28,
-49,
45,
40,
89,
45,
81,
-7,
-62,
5,
127,
1,
-93,
4,
-100,
39,
-38,
24,
-116,
-111,
16,
-56,
83,
-74,
-126,
116,
67,
-119,
-123,
98,
98,
-112,
21,
-11,
-44,
-72,
15,
-114,
-99,
-91,
-111,
57,
123,
14,
-75,
-97,
74,
20,
46,
92,
-6,
85,
95,
36,
-117,
-122,
-4,
-79,
-51,
96,
-36,
-122,
-49,
-123,
50,
113,
-34,
-14,
93,
71,
122,
-97,
-81,
-102
] |
Wendell L. Griffen, Judge.
This case involves the Arkansas Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 — 109 (Repl. 2002 & Supp. 2003), hereafter referred to as “FOIA.” David Harris filed this FOIA action against the City of Fort Smith, Bill Harding (the city administrator), C. Ray Baker, Jr. (the mayor), and the members of the City’s board of directors (the Board), contending that those defendants violated the FOIA when Harding engaged in a series of one-on-one conversations with individual Board members before he made a successful bid on real estate on behalf of the City at a public auction held in April 2002. The parties filed cross-motions for summary judgment based on facts that were essentially agreed. At the hearing on the cross-motions for summary judgm'ent, appellant waived the remedy of rescission and limited his requested relief to an injunction prohibiting the City from engaging in such conduct in the future. The trial court entered judgment in favor of the City on its motion for summary judgment based on a holding that no FOIA violation occurred by the serial one-on-one conversations between Harding and the individual directors. We now hold that the serial conversations between Harding and the individual directors about a matter that involved a recommendation that the City submit a bid on the land constituted a “meeting” within the intent of the FOIA, for which the public was entitled to prior public notice. Thus, we reverse the decision by the trial court and remand the case for entry of a decree granting prospective injunctive relief and statutory attorney’s fees pursuant to the FOIA.
Factual History
On April 5, 2002, Fort Smith Deputy City Administrator Ray Gosack submitted a memorandum to his superior, city administrator Harding, as follows:
As you may know, Fort Biscuit Company located at Parker and South 5th Street has gone bankrupt. Its Fort Smith property is in foreclosure and will be sold by auction on April 18th.
The availability of this property presents an opportunity to correct a long-standing problem with the truck route through that part of downtown. The truck route currently makes two 90E turns and a stop in the vicinity of the federal and county courthouses.The loud noises from these truck movements have caused problems when the nearby courtrooms are in use.
Attached is a drawing which shows how Wheeler Ave. could be realigned into South 5th Street across the Fort Biscuit property.This is a very conceptual drawing and would need additional work if we proceed with the project. The realignment would help solve the truck route problem by reducing the turning and stopping/starting movements for trucks near the courtrooms. In order to construct this project, the city would have to acquire some of the Fort Biscuit property.
Acquisition of the Fort Biscuit property would be somewhat unusual.The property will be sold at an auction.We understand the bankruptcy trustee will take bids on each tract individually and on all tracts. The trustee will then determine which option produces the greatest amount of proceeds.
Acquiring this property through an auction creates some unusual challenges for the city.
Normally, we seek formal board approval, including an offer price, before acquiring property. If we obtain formal board approval for acquisition of the Fort Biscuit property, the city won’t be able to competitively bid for the property since our maximum offer would be public information.
If the city bids, we’ll also need to be prepared to bid for the purchase of all_tracts.The tracts not needed for the truck route project could be sold or used for another public purposes [sic].
If the city was the successful bidder on the project, the board would need to, be prepared to publicly approve the acquisition shortly after the acquisition date. Backing out of the bid after the auction would be very difficult and unfair to the seller.
Our purpose now is to gauge the board’s interest in pursuing ' acquisition of the Fort Biscuit property for realignment of the truck route. Given the number of tracts involved, the board might find it useful to visit the site.
If the board is interested, we’ll need to have some appraisal work performed to determine how much the city should offer for the property. We would then informally review a maximum offer amount with the board.We’d want to have the board’s concurrence on a maximum offer amount before participating in the auction.
We’ll contact you in the next few days to gauge your interest in this project. If you have any questions or need more information, please call me at 784-2204.
Over the course of several days after Gosack’s April 5, 2002 memorandum to Harding, Harding conducted a series of one-on-one conversations with the mayor and each member of the Board during which he explained the importance of the property to the City and the City’s practice of not bidding more than fifteen percent above the appraised value of property. During those conversations, Harding asked each Board member if he or she was “comfortable” with that bidding range on the land. Each responded positively. The parties stipulated that Harding did not speak with more than one Board member in the same conversation and that he spoke with all of the members. The record reflects that process as revealed by the following memorandum, dated April 16, 2002, from Harding to the mayor and the members of the Board:
This Thursday morning, April 18th, the Fort Biscuit property will be auctioned off to the highest bidders. The real estate portion of the auction is due to start at 11:00 am. [sic] We were able to speak to each of you over the last several days and the unanimous response was to go forward with an attempt to purchase the property as a means to alleviate some of the major problems associated with the existing truck route.
Since receiving the “go-ahead” from you we retained Calvin Moye to provide us an opinion as ,to the value of the real estate to be auctioned. Those values are reflected in the attachment in Tables 1 through 3.
We have no interest in purchasing tracts 1 and 2. Tracts 3 through 6 are going to be auctioned individually and then auctioned again as a group to determine the best return for the property owner. Tract 6 has no value to the city for the truck route issue and we have no intentions of bidding on tract 6 separately. We will be actively bidding on Tracts 3,4 and 5 to secure the right-of-way for the project and to give us maximum opportunity for radius and right-of-way design. It is likely that we may have to bid again when tracts 3 through 6 are offered together as a package in order to protect our interest in tracts 3,4, and 5.
As such we are asking for authority to bid up to the amount reflected in the Appraisal + 15% column, (tracts 3, 4, 5 and 6), in Table 3 of the attachment. As you can see the maximum exposure to the city is $1,099,688 or $1.1 million.
After you have had an opportunity to review the information I will be in contact with you to determine your position on our recommendation.
Harding successfully bid on the property for $615,000, which was below the appraised value. On April 19, 2002, he sent another memorandum to the Board, stating:
On Thursday April 18th the Fort Biscuit property was auctioned by the Commissioner of the Court in Sebastian County Circuit Court. Having obtained permission from you in advance of the sale to bid on the property I attended the auction and successfully bid to acquire a portion of the real estate for the purpose of constructing a new alignment and certain other improvements to the downtown area truck route.
Tracts 3 through 6 on the attached locator map were purchased by the City for $615,000. The purchase price is approximately 2/3rds of the amount of the appraised value that the staff obtained prior to attending the auction. The manner in which the property was offered required the city to bid on more land than would be necessary to construct the truck route improvements.We anticipate selling off the surplus property to interested parties once the construction project needs have been identified. The attached locator map indicates a conceptual alignment of the reconstructed truck route. A considerable amount of additional review and analysis will be necessary in order to begin identifying the precise routing.
If the Board approves the confirming resolution, the property will be purchased with street sales tax funds. If approved, we plan to begin immediately to conduct a Level 1 Environmental Impact Review on the buildings and other improvements that exist on the property. We will likely be approaching the Board in the very near future regarding a demolition plan for the buildings on the property as they have no value or utility to the City.
I respectfully request your approval of the attached resolution. Please contact me if you have any questions or need any additional information concerning this matter.
According to the parties, the City was required to post a bond securing the purchase by April 23, 2002. The Board was called into special session on April 23, 2002, to vote on the purchase, and the public was given notice of that meeting. Appellant attended the meeting and argued that Harding and the Board had violated the FOIA. At this meeting, the Board voted to approve the purchase of the property. Appellant then brought this action, contending that the FOIA’s “open meetings” provision in Ark. Code Ann. § 25-19-106(a) (Repl. 2002) had been violated by Harding’s series of one-on-one conversations with the members of the Board before the auction. Upon granting the City’s motion for summary judgment, the circuit court held that Harding’s one-on-one meetings with the members of the Board did not constitute a “meeting” within the terms of the FOIA. This appeal followed.
The “Open Meetings” Provision of the FOIA
Our standard of review is well settled. On review of a case in which the facts are not in dispute, we simply determine whether the appellee was entitled to judgment as a matter of law. National Park Med. Ctr., Inc. v. Arkansas Dep’t of Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995).
Appellant argues that Harding’s succession of one-on-one conversations with each member of the Board violated the “open meetings” provision of the FOIA. We agree. Arkansas Code Annotated section 25-19-106(a) (Repl. 2002) provides:
Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings.
By the express terms of this statute, the legislature made it crystal clear that even informal meetings, i.e,, those lacking the outward appearance of formal meetings, are subject to the FOIA. The Arkansas Supreme Court expounded on this subject in Mayor & City Council of El Dorado v. El Dorado Broadcasting Co., 260 Ark. 821, 823-24, 544 S.W.2d 206, 207 (1976):
In discussing informal meetings the Court in Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 69 Cal. Rptr. 480, 487, 263 Cal. App. 2d 41, 50 (1968) stated:
An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors ....
The Freedom of Information Act applies alike to formal and informal meetings and since we are required to give the Act a liberal interpretation, we cannot agree with appellants that it applies only to meetings of officially designated committees. We can think of no reason for the Act specifying its applicability to informal meetings of governmental bodies unless it was intended to cover informal but unofficial group meetings for the discussion of governmental business as distinguished from those contacts by the individual members that occur in the daily lives of every public official. Any other construction would obliterate the word “informal” as applied to meetings and make it simpler to evade the Act than to comply with it.
Accord Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975).
The supreme court has also held that a series of telephone conversations can, in certain circumstances, constitute a “meeting” within the meaning of the FOIA. In Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985), the court held that the FOIA was violated when the executive director of Delta-Hills conducted, without notice to the press, a telephone poll of most of Delta-Hills’ executive committee about filing a motion for reconsidera tion of the Arkansas State Health Planning and Development Agency’s issuance of a certificate of need to Rehab Hospital Services Corporation.
There can be no doubt that, in enacting the FOIA, the legislature intended that members of the public have notice of the actions of public officials responsible for conducting government business. Since the FOIA was enacted in 1967, it has been broadly construed in favor of disclosure. Kristen Inv. Props., Inc., LLC v. Faulkner County Waterworks & Sewer Pub. Facilities Bd., 72 Ark. App. 37, 32 S.W.3d 60 (2000). The FOIA was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989). The General Assembly enunciated those purposes in Ark. Code Ann. § 25-19-102 (Repl. 2002), which states:
It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials.
It is readily apparent to us that Harding’s serial one-on-one conversations with each Board member to discuss the City’s business were a subterfuge designed to circumvent the FOIA’s public-disclosure requirements and that, through those conversations with its straw man (Harding) the Board held a “meeting” within the intent of the FOIA. Through Harding, the Board members unquestionably conducted the City’s business; they agreed to bid on the property, settled on the maximum amount of the bid, and committed themselves to follow through with the sale in the event that the City’s bid was successful. Unless the Board intended to purchase the property, there was no reason to obtain an appraisal or to permit Harding to place a bid on the property. In short, it is obvious that appellees’ actions resulted “in a consensus being reached on a given issue, thus rendering the formal meeting held before the public a mere charade.” John Watkins, Arkansas Freedom of Information Act 275 (3d ed. 1998).
To justify their actions, appellees offer several reasons why they attempted to keep the Board’s authorization of the bid secret. They argue that the City’s ability to bid competitively at the auction would have been compromised if its intent to bid and the maximum amount of the bid had been publicly disclosed before the auction. They also assert that to forbid a city administrator from discussing city business with a single member of its board would create an “administrative nightmare.”
In our view, these reasons are, at best, disingenuous. The FOIA does not contain an expediency exception, nor has it ever provided for government business of this nature to be conducted outside public view for the sake of administrative convenience. By no reasonable construction can the FOIA be read to permit governmental decision-makers to engage in secret deal-making on the ground that they are saving money. We are also unpersuaded that a stratagem of the nature employed by appellees must be used in order for the City to conduct its business. As for the purported need to keep the City’s intent to bid and the maximum amount of that bid secret, we .must point out that the FOIA not only protects the City’s residents; it also protects those members of the public who might want to bid at such auctions. Whether one favors or opposes a prospective governmental decision, and no matter whether public disclosure will make the desired governmental action more or less difficult or expensive to undertake, Arkansas law is unmistakably clear. The people rule (■regnat populus). They have a right to know, whether government officials find that knowledge convenient or not.
For these reasons, we reverse and remand this case with directions to the circuit court to enter an injunction prohibiting further violations of the FOIA by appellees and granting attorney’s fees, as authorized by the FOIA, to appellant.
Reversed and remanded.
Hart and Gladwin, JJ., agree. | [
52,
-19,
-28,
14,
42,
-64,
24,
-66,
88,
-25,
63,
83,
-17,
8,
12,
13,
-29,
25,
117,
73,
-59,
-78,
103,
122,
98,
-77,
-5,
-43,
-5,
-113,
-12,
22,
90,
49,
-54,
-107,
38,
-64,
-113,
94,
78,
3,
2,
-11,
-35,
64,
16,
43,
0,
15,
53,
-68,
-29,
60,
25,
67,
9,
44,
-49,
-83,
-16,
-15,
-7,
12,
91,
23,
-127,
-12,
-104,
71,
-32,
40,
-48,
49,
9,
-88,
115,
-90,
-126,
116,
107,
-37,
44,
42,
96,
2,
-59,
-1,
-76,
-116,
7,
-38,
-115,
-90,
-62,
57,
99,
41,
-98,
-107,
125,
18,
7,
-6,
-25,
5,
25,
108,
-113,
-50,
22,
-127,
63,
-7,
20,
19,
-21,
19,
16,
117,
-51,
-18,
93,
78,
51,
-117,
-50,
112
] |
John Mauzy Pittman, Judge.
The appellants, residents of the Pleasant Valley Subdivision in Little Rock, operated a day-care center out of their home despite a bill of assurance prohibiting any commercial or business use of property in the subdivision. Appellant Nancy Witcher admitted that she operated a business out of her home, caring for seven children and receiving payment in return. Appellees, who are also residents of the subdivision, filed suit against appellants in the Chancery Court of Pulaski County to enjoin operation of the day care. The trial court found that appellees waived the right to assert the bill of assurance by failing to assert it until three years after they were notified that appellants had filed for a permit to operate a day care in their home. On the first appeal, we held that the trial court erred in finding that appellees waived the right to assert the bill of assurance, and we reversed and remanded. McGhee v. Witcher, 81 Ark. App. 255, 101 S.W.3d 262 (2003). On remand, appellants asserted that our order required the trial judge to conduct a new trial. The trial court refused to grant a new trial and, on the basis of the evidence adduced at the original trial, entered an order enjoining operation of the day care. This appeal followed.
For. reversal, appellants contend that the trial court erred in refusing to grant them a new trial on the issues of waiver and estoppel, and whether their day care was a commercial day care in violation of the bill of assurance. We find no error, and we affirm.
The trial court did not err in ruling that a new trial was not mandated by our order of remand. Had we intended to require the trial judge to conduct a new trial, we would have expressly directed him to do so. Because new trials are seldom directed on reversal of chancery (equity) decrees, the established procedure is to give special direction for new trials on remand when that is the appellate court’s intention. Deason & Keith v. Rock, 149 Ark. 401, 232 S.W.2d 583 (1921). Instead, our remand was a general one for further consistent proceedings to allow the trial judge to make the factual findings regarding the merits that he never made in his initial order. Such an order simply means that the trial court shall render a decree in accordance with the record made, and does not require a new trial. Id.
Affirmed.
Neal and Baker, JJ., agree. | [
112,
-22,
-12,
108,
72,
96,
48,
-100,
67,
-117,
39,
83,
-81,
-58,
84,
109,
-93,
127,
81,
97,
-63,
-73,
5,
0,
-13,
-6,
19,
-41,
-70,
73,
-28,
-105,
-52,
121,
-54,
-43,
70,
-64,
-59,
16,
6,
-119,
-102,
97,
-63,
-62,
48,
107,
16,
11,
53,
30,
-93,
44,
25,
-53,
40,
46,
27,
53,
88,
-7,
-102,
13,
79,
37,
-79,
36,
24,
5,
64,
42,
-104,
49,
8,
-24,
114,
50,
-126,
116,
67,
-71,
40,
98,
99,
-93,
16,
-17,
-72,
-88,
38,
126,
-99,
-90,
-110,
120,
75,
15,
-65,
-11,
88,
28,
6,
126,
110,
-107,
90,
108,
10,
-49,
-42,
-79,
-116,
56,
-108,
-127,
-25,
3,
52,
116,
-54,
-12,
92,
67,
17,
-101,
-34,
-109
] |
John F. Stroud, Jr., Chief Judge.
In our original opinion, Young v. The Gastro-Intestinal Center, Inc., CA 03-575 (May 12, 2004), we described the duty involved in this case as one of ordinary care. Although not an issue below, it is now clear from the petition for rehearing, the responsive brief, and a re-examination of the original appeal briefs that both parties treated this case as an action governed by the Arkansas Medical Malpractice Act. Although we deny the petition for rehearing, in this substituted opinion we apply the standards set forth in that Act. The outcome is the same.
In this case, the decedent, Earnest Young, was a patient of appellee Gastro-Intestinal Center, Inc. Appellee Diane Brown is a registered nurse employed by the Center. Mr. Young refused to follow the Center’s directives not to drive after being sedated for a colonoscopy, and he was killed in a one-car collision while driving home to El Dorado. Appellant, Maggie Young, his wife, individually and as executrix of the estate, filed a negligence action against the appellees. Appellees filed a motion for summary judgment, which was granted by the trial court. Appellant raises two points of appeal: 1) the trial court erred in entering judgment against appellant on the ground that defendants owed no duty to Ernest Young as a matter of law; 2) if the trial court intended to enter judgment against appellant on the basis of causation, it was error to do so. We attempted certification of this case to the Arkansas Supreme Court, and it was denied. We reverse and remand for trial.
Mr. Young arrived at the Center in Little Rock on January 29, 1999, to undergo a colonoscopy. It is undisputed that the Center had a duty to warn Mr. Young that he should not drive after the procedure because of the effects of the sedation that would be used in the colonoscopy. Neither is it disputed that the Center issued such a warning to him. In fact, Mr. Young had been at the Center just nine days earlier for a procedure that also involved a post-procedure driving prohibition. On that occasion, his wife, the appellant herein, accompanied him and was designated as his driver; however, upon reaching the parking lot, and unbeknown to anyone at the Center, Mr. Young insisted upon driving to El Dorado and did so. When he arrived at the Center on January 29, he was asked for the name of the person who would be driving him home. He reported that a friend named Trundle Smith would pick him up after the procedure, and that name was recorded. After the procedure was performed, however, Trundle Smith did not arrive, and it became clear that Mr. Young had his own vehicle and planned to drive himself. Appellee Brown called appellant, Young’s wife, and was told that no one was available to transport Mr. Young to his other appointment and then home to El Dorado. Appellee Brown attempted to get Mr. Young to wait at the Center for the designated period of time, or until someone was available to drive him. He refused to do so. Before leaving, appellee Brown asked Mr. Young to sign a form, which indicated that he understood that he was not supposed to drive and that he was leaving against medical advice. He signed the form and left to go to another medical appointment in Little Rock. After leaving the second facility, on his way home to El Dorado, he was severely injured in a one-car automobile accident and later died.
For her first point of appeal, appellant contends that “the trial court erred in granting summary judgment to appellees on the basis that they owed no duty to Ernest Young as a matter of law.” We find error in the trial court’s granting of summary judgment.
At the conclusion of the hearing on the motion for summary judgment, the trial judge made the following comments:
I just feel that the courts ought to be a gatekeeper for these things. ... I think that this is one of those cases where you’ve got [an impossible] burden placed on a medical provider. You’ve got a provider who warns this man, who knows of the danger, who either lies or for whatever reason doesn’t tell the truth ... when he goes in for the procedure, and if the medical provide'r can’t rely on the patient at that point,... I don’t know that there is a duty in this area and this locale that says to the doctor you’re going to be responsible for a patient who lies to you. ... I don’t think you’ve got to hog tie a [patient] to the chair in a waiting room and make sure that. . . they’re not going to run away ....
I think you’ve just got to rely on the good sense of the people coming in that you’re dealing with, and at conclusion, I think you’re right. You’ve got a problem, and they knew they had a problem, and they tried to work it through sitting with him, talking with him, but at some point,you’re going to violate the law if you grab a [hold] of him and stop him.... So, having said all of that, I think that I’d rather have the Court ofAppeals or the Arkansas Supreme Court tell me that, that this duty existed in this situation to, to not rely on what the guy told them, and to do something more than that reliance on this statement. I just think that’s an unfair burden.
The burden of proof in a medical-malpractice action is defined by statute. Arkansas Code Annotated section 16-114-206 (Supp. 2003) provides in pertinent part:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
The question of what duty, if any, is owed by one person to another is always a question of law. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998).
Because this case was decided on summary judgment, the evidentiary items before the trial court consisted of pleadings, depositions, exhibits, and affidavits. Those items included a wide range of expert opinions regarding whether appellees had breached their duty of care to Mr. Young. For example, the affidavits and depositions ranged from expert opinions that appellees’ conduct satisfied their duty of care, to opinions that it did not because they should have checked Mr. Young into a hotel, or should have hired a cab to drive him from Little Rock to El Dorado, or should have stood in front of his car. Yet, summary judgment was granted solely on the basis of the trial court’s determination that, under the circumstances of this case, appellees owed no further duty to Mr. Young beyond the actions that they had already taken.
The center’s own policies and procedures included the following pertinent portions:
Patient Admission. Upon arrival for a procedure previously scheduled through the attending physician’s office, the patient will proceed as follows: ... 2. Confirm and give name of responsible adult/driver.... If the patient’s family/companion decides to leave the Center during the procedure time, the receptionist should obtain the name and expected time of their return. A phone number should be exchanged between the patient’s family/driver and the Center for communication in case of an emergency or a delay.. .. Patients will not be discharged from the recovery room until accompanied by a responsible adult.
Patient Discharge. No patient shall be discharged from The Gastro-Intestinal Center unless he/she is accompanied by a responsible adult. This shall be included in pre-procedure instructions given to the patient and will be reaffirmed by GI Center personnel prior to procedure. If transportation is not available, the procedure shall be cancelled and rescheduled.... Patients should not drive for at least 8 hours after procedure.
Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated and that the moving party is entitled to judgment as a matter of law. Van DeVeer v. RTJ, Inc., 81 Ark. App. 379, 101 S.W.3d 881 (2003). All proof must be viewed in the light most favorable to the nonmoving party, and any doubts must be resolved against the moving party. Id.
Here, the appropriate burden of proof for a medical-malpractice action is defined by statute, but differing expert opinions exist concerning whether appellant’s conduct satisfied the required standard of care. Therefore, we conclude that a question of fact was created, and that it must be decided by a jury. Consequently, we find that the trial court erred in granting summary judgment.
With respect to appellant’s second point of appeal, involving causation, we hold that the trial court did not grant summary judgment on that basis, and it is therefore not necessary to address the point. Accordingly, we reverse the grant of summary judgment and remand for trial.
Reversed and remanded.
Hart, Gladwin, Griffen, Crabtree, and Baker, JJ., agree. | [
16,
-22,
-43,
-67,
90,
-61,
48,
8,
81,
-82,
103,
19,
-81,
-29,
-107,
111,
-21,
-73,
81,
97,
-43,
-77,
7,
96,
-46,
-1,
-45,
-42,
-80,
-49,
-28,
-68,
77,
40,
-118,
-107,
102,
75,
-53,
82,
-62,
12,
-120,
113,
89,
-110,
48,
60,
-44,
7,
33,
31,
-29,
44,
55,
-49,
44,
36,
91,
36,
-48,
-112,
-103,
5,
111,
0,
-95,
-92,
-69,
37,
90,
60,
-48,
-79,
56,
-72,
114,
-74,
-61,
116,
79,
-103,
-116,
98,
98,
-96,
13,
-11,
-72,
-68,
31,
-82,
13,
-122,
-118,
121,
-55,
2,
-73,
-67,
114,
28,
14,
122,
-11,
-43,
79,
100,
73,
-113,
-44,
-79,
-57,
-15,
-52,
-96,
-9,
71,
16,
21,
-118,
-90,
93,
-57,
114,
-97,
-22,
-74
] |
Donald L. Corbin, Chief Judge.
This appeal comes to us from White County Circuit Court. Appellant, General Electric Supply Company, appeals the court’s failure to award judgment against appellees, Stuart Construction Company, Inc. (hereinafter Stuart) and American States Insurance Company (hereinafter American) and its failure to award costs, penalty, interest and attorney’s fees against American. We affirm in part, reverse in part, and remand.
Appellee Stuart was the prime contractor for The Downtown Church of Christ. Appellee American executed a performance and payment bond with Stuart as principal. Appellee La-Van Electric, Inc. (hereinafter La-Van) was a subcontractor to Stuart and received materials to use in the job from appellant. Appellant failed to receive payment and initiated this action. The action was voluntarily dismissed against The Downtown Church of Christ prior to trial. At trial, the court awarded judgment against appellee La-Van in the amount of $7,035.84. The court found in favor of appellees Stuart and American and dismissed the action against them. It is this finding of non-liability from which appellant appeals.
For reversal, appellant alleges that the court erroneously refused to grant judgment against Stuart and American and failed to award costs, penalty, attorney’s fees and interest against American. We agree with part of its contentions.
In its point for reversal and in one sentence in its brief, appellant contends that the court erred in finding for appellee, Stuart. However, it fails to state any argument for reversal. Where an assignment of error is unsupported by convincing argument or citation of legal authority, the appellate court does not consider it on appeal unless it is apparent without further research that it is well taken. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986). For this reason, we affirm-as to appellee Stuart.
Appellant also contends that the trial court erred in failing to award judgment against American under the bond. Findings of fact by a trial judge will not be set aside by the appellate court unless clearly erroneous. Ark. Blue Cross & Blue Shield v. Fudge, 12 Ark. App. 11, 669 S.W.2d 914 (1984).
With regard to American, the trial court stated in its findings of fact and conclusions of law that the general rule of law was that a surety’s liability on a bond is limited to that of the principal. The court noted that an exception to that general rule exists where a direct cause of action can be maintained against the bonding company without making the principal a party. The court further stated that appellant could not have maintained a separate action in this case because (1) this did not involve a public construction, which would have precluded appellant from pursuing a statutory lien for labor and materials, and (2) appellant did not file a lien with the circuit clerk as prescribed by Arkansas Statutes Annotated § 51-631 (Supp. 1985). The court found that no exception existed to the general rule that a surety’s liability cannot exceed that of its principal. Because the principal (Stuart) was found to have no liability, the court also found American not liable. We find this portion of the court’s findings clearly erroneous.
Arkansas Statutes Annotated § 51-633 (Repl. 1971) is applicable in the present case and states:
No contract in any sum exceeding $1,000 providing for the repair, alteration, or erection of any building, structure or improvement shall be entered into by any church, religious organization, charitable institution or by any agency of the foregoing, unless the contractor shall furnish to the party letting the contract a bond in a sum equal to the amount of the contract.
The bonding of a church construction job is mandatory under the statute. Arkansas Statutes Annotated §51-635 (Repl. 1971) requires that the bond “be conditioned that the contractor shall faithfully perform his contract, and shall pay all indebtedness for labor and materials furnished or performed in the repair, alteration or erection.” The statutes further provide that the bond shall be filed and that any person to whom there is due any sum for labor or material furnished may bring an action on the bond for recovery of the indebtedness. Ark. Stat. Ann. § 51-631. Therefore, if the bond complies with the statutory requirements, appellant could have maintained a separate and direct cause of action against American, contrary to the trial court’s finding.
The bond, titled “Arkansas Statutory Performance and Payment Bond,” was issued by American, as surety, to Stuart, as principal, and in favor of The Downtown Church of Christ, as obligee. The language of the bond states in essence that if Stuart faithfully performs under the construction contract and pays all persons who have contracts directly with it for labor or materials the surety’s obligation becomes null and void. This language differs from the statutory condition only in its attempt to limit liability to those who contract directly with Stuart. The surety on a bond is presumed to know that the bond is executed as though the terms of the statute were a part thereof. Reiff v. Redfield School Bd., 126 Ark. 474, 191 S.W. 16 (1916). Neither party argues that this language prevents the bond from being construed as a statutory bond, and we agree, especially in light of Sweester Constr. Co. v. Newman Bros., Inc., 236 Ark. 939, 371 S.W.2d 515 (1963), which stated that a person who furnishes material to a subcontractor is in privity with the prime contractor and has recourse to a prime contractor’s bond for the payment of his account. Id. at 943-44, 371 S.W.2d at 517-18. Therefore, even if American limited its liability to those who contract with Stuart, appellant had sufficient privity with Stuart to have recourse against American.
Another requirement under the statutes is that the bond be filed in the office of the clerk of the circuit court in the county in which the property is situated. Ark. Stat. Ann. § 51-631. The same statute provides that if the bond is not filed, all persons furnishing material or performing labor shall have a lien upon the property for the unpaid amount of the claim. Appellee asserts that the bond was not filed. The court, at least impliedly, found that to be true since it noted that no lien had been filed under the section and the section provides for a lien only in the absence of filing the bond. Appellant contends in its brief that it is entitled to recover regardless of whether the bond was statutory or not and cites cases allowing recovery where the bond was unfiled, never challenging the bond’s treatment as unfiled. However, our limited review shows that the bond was introduced into evidence with a certificate showing that it was filed of record on September 10, 1981, with the White County Circuit Clerk and Recorder. We know of no reason to treat the bond as unfiled.
The bond in issue fully complies with the conditions and requirements of the statutes governing construction bonds for religious or charitable organizations. We find the trial court’s findings that appellant was not entitled to bring a separate action on the bond clearly erroneous. Arkansas Statutes Annotated § 51-631 clearly gives appellant a direct action on the statutory bond and it was entitled to have judgment entered against American as a matter of law.
Finally, appellant argues that the court erred in failing to awards costs including attorney’s fees, 12% statutory damages, and interest against American pursuant to Arkansas Statutes Annotated § 66-3238 (Repl. 1980). The statute states:
In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety . . . insurance company . . . liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation, and/or association shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve percent (12 %) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss. . . . [Emphasis added].
This statute was applied to a surety on a contractor’s bond in Ray Ross Constr. Co., Inc. v. Raney, 266 Ark. 606, 587 S.W.2d 46 (1979). In Raney, the supreme court affirmed an award of attorney’s fees, 12 % penalty, and interest to a subcontractor who recovered a verdict against the prime contractor and surety in the dollar amount for which he prayed. We see no material difference between Raney and the case at bar. Although in Raney, the party seeking to recover the penalty, interest and fees was a subcontractor rather than a materialman and judgment had also been entered against the principal on the bond, the particular fact situation had no bearing on the statute’s applicability to a surety on a contractor’s bond. The only question in Raney was whether the surety actually contested the claim and failed to pay it after demand. The court held that it had done so.
Because of our disposition on the issue of American’s liability, appellant has been awarded judgment in the amount for which it prayed as is required to invoke the statute. American offered no argument against allowing the penalty and attorney’s fees and we are aware of none.
We therefore reverse and remand, directing the trial court to enter judgment against La-Van and American jointly and severally and to award appellant sums due to it under Arkansas Statutes Annotated § 66-3238.
Affirmed in part, reversed in part, and remanded.
Cracraft and Jennings, JJ., agree. | [
16,
110,
-39,
-116,
-120,
-128,
58,
26,
85,
-32,
-28,
83,
-83,
-22,
28,
111,
-29,
125,
101,
104,
67,
-77,
23,
99,
-45,
-77,
51,
-43,
-71,
109,
100,
-98,
76,
64,
-54,
-107,
102,
-128,
-59,
88,
14,
-124,
-70,
-20,
-39,
-64,
48,
-18,
20,
11,
49,
-122,
-29,
47,
28,
-21,
105,
42,
121,
41,
64,
-15,
2,
5,
111,
21,
-79,
52,
-104,
69,
-56,
22,
-40,
49,
16,
-7,
114,
-90,
-121,
116,
99,
25,
8,
120,
102,
1,
16,
-49,
-24,
-104,
30,
-34,
-97,
-89,
-102,
57,
91,
11,
-74,
-97,
124,
18,
-122,
126,
-18,
28,
91,
108,
3,
-50,
-48,
-94,
111,
64,
-40,
-125,
-17,
3,
48,
117,
-51,
-86,
93,
6,
51,
63,
-98,
-94
] |
Josephine Linker Hart, Judge.
Terry Richardson’s appeal from an order of the Jefferson County Circuit Court adjudicating her daughter A.C. dependent neglected is once more before us after our unpublished order of November 19, 2003, instructed the parties to file supplemental briefs addressing whether or not this case was moot. We ordered briefing of this issue because, subsequent to the filing of her notice of appeal of the adjudication order, a review and closure order was entered, returning A.C. to Richardson’s custody. On the mootness issue, Richardson argues that her appeal is not moot, because the relief she requested, to be relieved of the finding of parental unfitness, was not remedied by the review and closure order that returned A.C. to her custody. In the alternative, she asserts that if we were to find that the case was moot, it should nonetheless be addressed because it is an issue of public importance .that is likely to recur. The appellee, the Arkansas Department of Human Services, hereinafter “DHS,” contends that the case is moot, but asks that it be decided on the merits because 1) an appellate review serves the public interest; and 2) dependency-neglect adjudications are the “species” of cases that are frequently moot before an appellate decision can be reached. DHS also “acknowledges” that an adjudication based on a finding of parental unfitness “carries with it some type of stigma.” For the reasons outlined below, we hold that this case is moot, and we dismiss this appeal.
We first address Richardson’s argument that this case is not moot because the relief she seeks is the erasure of the judicial finding of parental unfitness. While we might agree, as does DHS, that such a finding might be “stigmatizing,” we believe that this argument reflects a fundamental misunderstanding of the purpose of our appellate jurisdiction. It is not enough that Richardson disagrees with a finding of the trial court; for us to review it, there must exist a justiciable controversy that our decision will settle. See Mastin v. Mastin, 316 Ark. 327, 329, 871 S.W.2d 585, 586 (1994). To put it another way, a case is moot when any decision rendered by this court will have no practical legal effect on an existing legal controversy. K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000). (Emphasis added.) Here, Richardson has already regained custody of A.C., so a decision on the merits, either affirming or reversing the trial court, will have absolutely no legal effect on the issue of A.C.’s custody.
We are aware that there are exceptions to the rule that the appellate courts of Arkansas do not decide cases that are moot, render advisory opinions, or answer academic questions. Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989). The most notable exceptions are cases that involve the public interest or tend to become moot before litigation can run its course, or situations where a decision might avert future litigation. Id. However, given the fact that this case turns not on a principle of law, but rather on the adequacy of the evidence to support a trial judge’s findings of fact, we hold that the instant case does not embrace an issue of public interest. Furthermore, we do not believe that adjudications of dependent neglect are necessarily of such short duration that they will evade appellate review. Finally, we do not believe that our decision today could help avert future litigation in this case. If DHS indeed does again become involved in A.C.’s life, which we certainly cannot foresee, it will be because of facts and circumstances that are not presently before us.
We are not unsympathetic to the terrible tragedy that has befallen Ms. Richardson and A.C. Nor are we unmindful that a finding of parental unfitness is an especially stinging blow to a person who already has suffered so much. However, decisions of an appellate court can do nothing to assuage the personal pain of all those involved, nor serve as an imprimatur of Ms. Richardson’s parenting abilities.
Dismissed as moot.
Vaught and Baker, JJ., agree. | [
-48,
-20,
-43,
60,
106,
64,
90,
60,
65,
-93,
101,
-45,
47,
-53,
20,
109,
-83,
43,
83,
104,
67,
-73,
35,
66,
-9,
-14,
-110,
-35,
-77,
75,
-28,
-12,
76,
112,
-118,
-43,
98,
-61,
-41,
16,
-114,
3,
-70,
105,
81,
-126,
40,
35,
26,
15,
21,
-97,
-26,
40,
26,
-61,
-120,
47,
88,
61,
92,
-48,
-102,
5,
95,
4,
-111,
36,
-66,
-89,
80,
46,
-104,
57,
8,
-20,
49,
38,
-126,
116,
79,
-103,
-115,
113,
-30,
-127,
60,
-29,
-7,
-120,
110,
-34,
-99,
-90,
-102,
88,
75,
5,
-82,
-11,
124,
20,
14,
122,
-1,
5,
118,
108,
68,
-114,
-98,
-79,
-49,
8,
12,
3,
-21,
97,
32,
116,
-35,
-14,
84,
83,
51,
27,
-58,
-70
] |
George K. Cracraft, Judge.
McDaniel Brothers Construction Company, Inc., McDaniel Brothers Construction Company, a partnership, and the individual partners appeal from judgments totaling $1,389,785.45 rendered against them in favor of Simmons First Bank of Jonesboro. On appeal, the appellants advance several points for reversal. We find sufficient merit in appellants’ argument that the trial court erred in finding the doctrine of res judicata inapplicable to the case to warrant reversal.
Between April of 1980 and February of 1983, the appellants in their various capacities executed six unsecured notes payable to appellee’s predecessor. In 1983, all of these notes were secured by the execution of second mortgages on properties owned by appellants and leased to the United States Postal Services located in Pulaski and Mississippi Counties, Arkansas, and in the States of Missouri and Alabama. Both parties agreed that each of the four second mortgages secured all six notes rather than any particular one. The notes subsequently became in default. It was agreed that the law of Missouri and Alabama provided for nonjudicial foreclosure, to be followed by suits for deficiency judgments. The properties in those two states were sold under the powers of the mortgage, but the proceeds were not sufficient to provide funds for application to those notes secured by the second mortgages. No action for deficiency judgment was taken in either state.
Appellee then brought foreclosure actions in both Pulaski and Mississippi counties. The complaint in each case alleged the execution of the six notes and the subsequent execution of the real estate mortgages. Neither complaint prayed for personal judgments on the notes but only that the amount due on the notes be determined, the lien of the mortgages be foreclosed, and the proceeds applied to the indebtedness. The actions were removed to the United States District Court for the Eastern District of Arkansas because the postal department was a lessee of the premises and a necessary party to the action.
Separate decrees were entered in 1984 by the federal district court, which found the amounts due on the defaulted notes and ordered the lands sold and the proceeds applied to the indebtedness. No personal judgment was entered against the appellants, and the court retained jurisdiction only to confirm the sales and order distribution of the proceeds. It was agreed by all of the parties that the sales were confirmed and that the proceeds were inadequate to discharge any of the notes in full.
On August 22,1985, the appellee brought this action in the circuit court of Craighead County seeking to recover a judgment for the deficiency. The appellants appeared and answered interposing various defenses, including the contention that the present action was barred under the doctrines of res judicata and waiver. The trial court entered an order in which it found that the appellants had failed in their burden of proving acts sufficient to make any of its defenses applicable and entered judgments against the appellants in the amount sued for on the notes. We agree that the trial court erred in its ruling as to the defense of res judicata.
Our rule applicable to the doctrine of res judicata is perhaps best stated in the case of Eiermann v. Beck, 221 Ark. 138, 141, 252 S.W.2d 388, 389 (1952), in the following language:
Our cases do not draw a distinct line beyond which res judicata invariably applies and within which it does not. The very nature of litigation makes that impossible. The rule, however, seems to be that if the forum selected by the plaintiff has jurisdiction of the person and the subject-matter, and the parties in each instance are the same, and if claims that were made or could have been made grew out of the same transaction, then it is the duty of the aggrieved party or parties to include in one action all rights subject to judicial determination at the time suit was brought, thus preventing multiple litigation.
Our courts have consistently held that the doctrine of res judicata applies not only to those issues which have actually been tried, but also to those which, could have and therefore should have been determined in the one action.
Here, the forum selected by the appellee was the court of equity, which undoubtedly had jurisdiction not only to foreclose the mortgage lien but also to enter judgment on the notes. The federal district court to which the action was removed likewise had jurisdiction to settle both issues in the same proceeding. That court had before it the notes sued on in this case, determined the amount due on them, ordered the land sold, confirmed the sale, and applied the proceeds to the discharge of the indebtedness. The amount of judgment to be awarded on the notes was a matter which the court could have adjudicated in that action. Further action is therefore estopped by that initial adjudication in the absence of facts and circumstances preserving the issue for future litigation.
In Pfeiffer v. Missouri State Life Insurance Co., 177 Ark. 1013, 8 S.W.2d 505 (1928), our supreme court recognized that competent persons can expressly agree that there will be no personal judgment taken against them at any time. It has also recognized that parties can by express agreement reserve the right to sue for a deficiency in subsequent proceedings and that, where such an agreement has been made, the doctrine of res judicata will not be applied. Farrell v. Steward, 134 Ark. 605 (mem.), 204 S.W. 423 (1918); A. Hughes, Arkansas Mortgages § 405a (1930).
Here, the trial court filed written findings of fact and conclusions of law in which it expressly found that the appellee had never expressly agreed to waive its right to pursue a deficiency judgment. Although this is a permissible finding to be made on the conflicting evidence, it does not dispose of the issue of res judicata. In Pfeiffer, the court found that the parties had in fact made an express agreement that the mortgagee would not pursue a deficiency judgment against the mortgagor. It further found that this was an agreement that the parties had a right to make. It is clear from that opinion, however, that the failure to prove the existence of such an agreement would not have changed the result in that case, as the court concluded:
We think the agreement between the parties constituted a waiver of the right to a personal judgment against Mrs. Pfeiffer. Appellee was entitled to have the question of personal liability of Mrs. Pfeiffer settled in the original suit, and, if it were not settled by the agreement, it was an issue in the case, and could have been settled, and it is therefore res judicata.
Pfeiffer, 177 Ark. at 1018, 8 S.W.2d at 507 (emphasis added). We conclude that the existence or nonexistence of an agreement to waive a deficiency judgment has no effect on the application of the doctrine of res judicata, for the existence of such an agreement is merely an alternative basis for denying recovery.
Here, the trial court further found:
[Appellee] did not pray for in personam judgments in the judicial foreclosure actions in the State of Arkansas and the issue of in personam judgment was not submitted to the Court in either foreclosure action. The [appellants] approved the foreclosure decrees which solely were in rem foreclosure rights, which established that the parties were reserving any rights that they may have had concerning the issue of the [appellants’] personal liabilities on the underlying debts.
We do not agree. To the contrary, the quoted language from Pfeiffer would dictate an opposite result. The notes secured by . these mortgages were introduced in the federal court action, as underlying debts secured by the lien sought to be foreclosed. Judgment could have been sought and rendered on those notes in the federal proceeding and, that not having been done, a separate action to recover the deficiency is barred absent an agreement preserving the issue for future litigation. From our review of the record, we find no evidence which would sustain the required finding that the parties had expressly agreed that the issue be preserved. The judgment of the trial court is therefore reversed and the case dismissed.
Jennings and Cooper, JJ., agree. | [
-80,
-24,
-79,
-18,
-118,
64,
56,
26,
90,
32,
-76,
87,
125,
-59,
77,
109,
-26,
105,
-11,
121,
-59,
-77,
55,
97,
-46,
-13,
-63,
-59,
-79,
-3,
-28,
-105,
76,
112,
-54,
23,
-26,
-126,
-57,
80,
-82,
5,
57,
-58,
-39,
65,
52,
-21,
84,
15,
17,
-115,
-14,
45,
61,
75,
104,
42,
-53,
61,
80,
-71,
-103,
5,
127,
21,
-111,
117,
-102,
67,
120,
30,
-112,
53,
0,
-24,
114,
-74,
-58,
84,
73,
91,
13,
36,
98,
18,
-127,
-49,
-8,
-88,
7,
-1,
-99,
-90,
-110,
24,
2,
33,
-74,
-99,
92,
7,
4,
-12,
-26,
-123,
29,
108,
7,
-49,
-42,
-77,
45,
121,
-98,
11,
-10,
3,
48,
113,
-50,
-96,
93,
71,
59,
-101,
-114,
-47
] |
James R. Cooper, Judge.
Larry R. Hibbs appeals from a decision of the Pulaski County Circuit Court affirming a decision of the City of Jacksonville Civil Service Commission. Hibbs was fired by the Chief of Police from his position as Assistant Police Chief. He appealed to the Jacksonville Civil Service Commission, which conducted a hearing after which it reinstated Hibbs to the police department but demoted him to the rank of captain. Hibbs appealed to the Pulaski County Circuit Court, which reviewed the transcript of the proceedings before the Civil Service Commission and found that, while there were procedural errors committed by the Commission, the errors were not prejudicial. The court further found that the evidence supported the Commission’s decision to reinstate Hibbs at a lower rank and to put him on six months probation. We affirm.
On appeal, we must determine whether the Commission’s decision is supported by substantial evidence, and in determining the sufficiency of the evidence, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee. Briley v. Little Rock Civil Service Commission, 266 Ark. 394, 583 S.W.2d 78 (1979).
First, the appellant claims that the Commission erred in requiring him to address the allegations against him as recited in a termination letter from the Chief of Police before any other evidence against him was produced. The appellant argues that the circuit court erred in finding that this procedure was erroneous but was nevertheless harmless and not prejudicial to the appellant. The appellant asserts, and the appellee seems to agree, that error is presumed prejudicial, relying on Hanna Lumber Co. v. Neff, 265 Ark. 462, 579 S.W.2d 95 (1979), and Allen v. Arkansas State Highway Commission, 247 Ark. 857, 448 S.W.2d 27(1969). However, it is no longer presumed that error is prejudicial. Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); Donoho v. Donoho, 22 Ark. App. 150, 737 S.W.2d 162 (1987). See also McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). Unless the appellant demonstrates prejudice accompanying error, we do not reverse. Peoples Bank and Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986).
The circuit court reviewed the transcript of the proceedings before the Jacksonville Civil Service Commission and affirmed its decision. We have reviewed the transcript and, in light of that review, we cannot say that the decision of the Commission is not supported by substantial evidence. There was evidence that the appellant, when the Chief of Police was absent, had countermanded directives of the Chief in regard to lunch hours for jailers and radio operators and had countermanded the Chief with regard to a rule violation inquiry within the department. There was also evidence that the appellant had wrongly disseminated departmental information and had been uncooperative or untruthful with regard to his actions.
In summary, the appellant had been terminated from a high-ranking position with the Jacksonville Police Department for alleged infractions but nevertheless won reinstatement, albeit at a lower rank, from the Civil Service Commission, after his hearing. Since there is substantial evidence to support the Commission’s decision and because the procedural errors have not been shown to have prejudiced the appellant, we affirm.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
48,
106,
-31,
-36,
10,
65,
26,
52,
87,
-71,
-9,
115,
-89,
-101,
29,
123,
-30,
125,
-44,
107,
-59,
-78,
7,
33,
70,
-77,
-7,
-34,
49,
-19,
-16,
-44,
93,
56,
-118,
-47,
102,
72,
-57,
80,
-54,
7,
123,
109,
88,
-40,
52,
38,
48,
-97,
49,
-82,
-29,
62,
16,
-61,
104,
44,
-39,
40,
16,
-15,
-104,
-123,
110,
4,
-77,
36,
-101,
-121,
-4,
62,
-40,
57,
32,
-8,
115,
-74,
-110,
116,
107,
57,
-115,
96,
54,
3,
-99,
-49,
-88,
-56,
30,
-66,
-113,
-90,
-104,
25,
75,
5,
-106,
-98,
68,
84,
14,
-12,
99,
68,
93,
108,
-117,
-50,
-16,
-13,
93,
37,
-106,
-109,
-53,
7,
52,
116,
-114,
-30,
85,
6,
19,
91,
-26,
-42
] |
Sam Bird, Judge.
Appellant Glenda Miller filed this action in Faulkner County Circuit Court against appellee Hometown Propane Gas, Inc., regarding personal injury and property damages caused by the September 29, 1999, explosion of Miller’s home in Damascus, Arkansas. The home was heated primarily by propane gas. Miller’s complaint alleged that Hometown’s failure to properly provide propane gas service caused the explosion and resultant injuries to Miller; the destruction of the house and its contents, surrounding trees and foliage, household pets, and farm animals; and other property damage.
The case proceeded to a jury trial. Witnesses who testified included Doyle Durdin, the owner of Hometown at the time of the trial; Allan Looney, the employee who had filled the propane tank outside of Miller’s home on the date the home exploded; and Miller. The jury returned its verdicts on interrogatories, finding Miller eighty percent at fault and Hometown twenty percent at fault, but awarding Miller $15,000 in damages. As a result of the jury’s verdicts, the circuit court dismissed the complaint, ruling that neither party take anything by way of damages. Miller subsequently filed a motion for a new trial under Ark. R. Civ. P. 59, asking the court to return the case to the jury, objecting to entry of judgment, and moving for new trial. All requests were denied.
Miller raises four points on appeal. She contends that the trial court erred (1) by excluding evidence of a telephone message she left on appellee’s answering machine, informing appellee that a pressure test needed to be done before her propane gas tank was filled, (2) in allowing appellee “to question a lay witness who assumed certain facts on which he based an opinion,” (3) in allowing appellee to use a “questionable” demonstrative aid, and (4) by giving an improper jury instruction regarding the doctrine of “last clear chance.” For the reasons explained in this opinion, we affirm.
1. Whether the trial court erred by excluding evidence of appellant’s telephone message on appellee’s answering machine
A pretrial hearing was held on Hometown’s motion in limine requesting that Miller not be allowed to testify that she had left two telephone messages on Hometown’s answering machine, in the first call saying that she was out of propane gas and that Hometown should conduct a pressure test when they filled her tank, and in the second call merely stating her name and that she needed propane. Both parties acknowledged that the employee who serviced the tank (Allan Looney) admitted that he went to Miller’s house because he got “a message.” Hometown argued that Miller’s testimony about leaving the message could not be verified, that telephone messages “get recorded over,” and that hearsay statements made by a declarant other than when testifying at trial are excluded under the rules of evidence. Miller argued that her statement was admissible as an exception to the hearsay rule as evidence of her motive and intent for calling and asking for services because she was out of gas. The court withheld its ruling.
At an in-camera hearing on the morning of trial, Hometown again raised the hearsay objection and argued that there was no way to determine whether Miller’s first message had been received because Hometown did not deliver her propane until after the second message. Miller contended that although the messages were hearsay, they were admissible under the state-of-mind exception because they demonstrated her state of mind that she was out of propane gas. The trial court excluded the evidence as hearsay.
On appeal, Miller argues, as she did before-the trial court, that testimony regarding the content of her telephone messages should have been allowed as an exception to the hearsay rule, either to show her motive for having her tank filled or under the residual exception of Ark. R. Evid. 803(24); or that it should have been allowed under Ark. R. Evid. 1004, the best evidence rule, in that the original message was lost or destroyed.
The evidence at issue here does not fall within an exception to the hearsay rule because the messages that Miller claims to have left on Hometown’s answering machine are not hearsay. Arkansas Rule of Evidence 801(c) (2003) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Arkansas courts have held that certain statements are not hearsay when they are not offered to prove the truth of the matter asserted, but rather to show that the statements were made. Gautney v. Rapley, 2 Ark. App. 116, 617 S.W.2d 377 (1981). See also Wal-Mart Stores, Inc. v. Dolph, 308 Ark. 439, 825 S.W.2d 810 (1992). Miller argued at the in-camera hearing that her testimony about the telephone message she left was a pivotal issue because the person who had serviced her tank would testify that her propane tank was not empty, and that whether the propane tank was or was not empty was determinative of the procedures he should have taken to ascertain whether there was a leak in the tank and to prevent the explosion.
We affirm on this point because Miller’s objection at trial that her messages were admissible as an exception to the hearsay rule was incorrect. Miller’s purported recorded messages, informing Hometown that she needed propane gas and that her propane tank would need pressurizing, were not hearsay because they were not offered for the purpose of proving either that Miller needed propane gas or that her propane tank needed pressurizing. Rather, the messages were offered and were admissible to prove that Hometown had notice of those facts. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Miller erroneously conceded at trial that her testimony was hearsay and argued that her testimony was admissible under exceptions to the hearsay rule. It is clear to us, however, that appellant’s testimony as to what she said in the messages she left on Hometown’s telephone message recorder should have been admitted because the messages were not hearsay. However, Miller did not make this argument to the trial court.
The only argument preserved for appeal under this first point is whether Miller’s telephone messages fell within the hearsay exception of Rule 803(3) as the declarant’s then existing state of mind or motive. Rule 803(3) provides:
A statement is excluded from the hearsay rule if it is a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
As discussed above, evidence of the messages that Miller left on Hometown’s recorder was offered as attempted substantive proof of Hometown’s knowledge that she was out of gas; it was not offered to express a current feeling, physical condition, or state of mind of the declarant. The admission of evidence is left to the sound discretion of the trial court; on appeal, the trial court’s ruling will not be reversed absent a manifest abuse of discretion. Metzgar v. Rodgers, 83 Ark. App. 354, 128 S.W.3d 5 (2003). Here, we find no abuse of discretion in the trial court’s ruling that the evidence was inadmissible under Rule 803(3).
2. Whether the trial court erred in allowing appellee to question a lay witness who assumed certain facts on which he based an opinion
Doyle Ray Durdin Jr. testified that he bought Hometown Propane on January 27, 2000; that he had not been affiliated with the business in September 1999; and that he had no firsthand knowledge about the explosion at Miller’s home. Durdin also testified that Looney had told him that after noticing that the percentage gauge on Miller’s tank was low, Looney stuck his thumb in the filler valve because he was concerned about the pressure and he tried to push the filler valve down to make sure that there was still gas in the system before he filled it. Durdin said that Looney told him that there had been no report of gas outages or other problems at the residence, and that Looney had offered to light the pilot lights.
Miller objected that no foundation had been laid when Durdin was asked to assume he was the one driving the truck on the day in question. Rephrasing the question, appellee asked, “Based upon your experience as a truck driver of propane and deliveryman back in ’99, would you have done anything different than Mr. Looney?” Counsel renewed her objection, but the court allowed the testimony. Durdin then answered that, based on his experience as a truck driver of propane and deliveryman in 1999, he “would have done nothing different than Mr. Looney.”
Rule 702 of Ark. R. Evid. (2003) provides that if expert testimony will assist the jury in understanding a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Whether to allow a witness to give expert testimony rests largely within the sound discretion of the trial court, and the court’s determination will not be reversed absent an abuse of that discretion. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999).
The appellant in Dildine v. Clark Equipment Co., 285 Ark. 325, 686 S.W.2d 791 (1985), who was injured while operating a front-end loader called a 632 Bobcat, contended that the trial court had erred in allowing an employee of the Bobcat distributor to testify as an expert. The supreme court disagreed, explaining:
Uniform R. Evid. 702 provides that a witness qualified “by knowledge, skill, experience, training, or education” may testify in the form of opinion or otherwise. Combs was qualified under this rule in that he has worked for Town & Country for six years; has been service manager for the equipment, including Bobcats, for three years; performed the pre-delivery inspection on this Bobcat; shows rental customers how to operate a Bobcat; has driven, maintained and serviced this Bobcat; and has operated all Bobcat models. He has the knowledge, skill, experience and training and was qualified to testify under Rule 702.
Dildine, 285 Ark. at 328-29, 686 S.W.2d at 793.
Durdin, the owner of Hometown at the time of trial, had a background as an experienced propane deliveryman in 1999, the year of the propane explosion that led to the lawsuit. Clearly, the trial court could have determined from this evidence that Durdin was qualified to testify as an expert for the limited purpose of expressing his opinion that Looney followed normal procedures, as the witness understood them, in filling Miller’s propane tank. We find no abuse of discretion in the trial court’s admission of Durdin’s opinion testimony that he “would have done nothing different than Mr. Looney.”
3. Whether the trial court erred in allowing appellee to use a questionable demonstrative aid
In his opening statement to the jury, counsel for appellee “flicked” a Bic cigarette lighter on and off. Miller’s objection to its use was overruled. On appeal Miller complains that although she would later testify that she had “checked her lines” with a lighter, there was no evidence offered concerning what type of lighter she used.
The trial court is granted wide discretion in determining whether to allow the use of a demonstrative aid, and the appellate court need not address an argument if an appellant fails to present convincing legal authority or argument that the use of a demonstrative aid was an abuse of discretion. See Hamilton v. State, 348 Ark. 532, 540, 74 S.W.3d 615, 619 (2002); Berry v. St. Paul Fire and Marine Ins. Co., 328 Ark. 553, 563, 944 S.W.2d 838, 845 (1997). Furthermore, here Miller testified at trial that, “You know, I’ve been flicking my Bic for seven years in that house. If I hadn’t had a leak under it, I could still be flicking my Bic in it. I flicked my Bic next to the floor.” Considering the foregoing testimony by Miller, we cannot see how she was prejudiced by appellee’s counsel’s “flicking” of a Bic lighter in his opening statement, and we find no abuse of discretion by the court in allowing counsel’s use of the Bic lighter as a demonstrative aid.
4. Whether the trial court erred by giving improper jury instructions regarding the affirmative defense of “last clear chance”
The issue on this point centers around a modified form of Arkansas Model Jury Instruction 206, which was given over Miller’s objection. The modified form reads as follows:
Hometown Gas, Inc., contends that there was negligence on the part of Glenda Miller which was a proximate cause of her own injuries and damages and that Glenda Miller had the last clear chance to avoid injury or damage. Hometown Propane has the burden of proving this contention.
(Emphasis ours.)
Miller argued to the court that the instruction on last clear chance was inappropriate because there was no evidence of a foreseeable risk that she chose to ignore, and that the last-clear-chance doctrine was not applicable in the absence of a known peril that she chose to ignore, i.e., a large pool of propane gas under the floor of her house.
Similar to making an incorrect objection to the court’s hearsay ruling, Miller also made the wrong objection to the court’s giving of the last-clear-chance instruction. Last clear chance, prior to the enactment of the comparative negligence statute, was a tool that a plaintiff could use against a defendant to avoid the harsh effect of Arkansas’s pre-1955 contributory negligence statute under which any negligence on a plaintiffs part was a complete bar to the plaintiffs recovery. See Comment to AMI Civil 2d (1974) No. 617. Under last clear chance, a negligent plaintiff could still recover damages by proving that, notwithstanding such negligence, the defendant had the last clear chance to avoid the event that resulted in plaintiffs damages. To prevail, the plaintiff had to prove that the defendant knew of the risk that had been created by plaintiffs contributory negligence and had, but failed to avail himself of, the last clear chance to avoid it.
However, in the case at bar, the last-clear-chance instruction was offered by Hometown, the defendant, in an apparent, but misguided, attempt to avail itself of the defense of assumption of the risk, the counterpart of the doctrine of last clear chance. A proper objection to this instruction would have been that neither the doctrine of last clear chance nor assumption of the risk is the law of Arkansas, and that both doctrines have been subsumed by the adoption of the comparative negligence statutes in 1955 and 1957. Instead, Miller’s objection erroneously accepts the proposition that last clear chance is still the law in Arkansas, but argues that an instruction on the issue is not proper where it is not proved that she had knowledge of the peril caused by propane gas collecting beneath her house.
Miller did not make an appropriate objection to Hometown’s misguided last-clear-chance “defense.” Our Model Jury Instructions Committee has taken the position that the doctrine of last clear chance has been abrogated by comparative negligence. See H. Woods, Comparative Fault § 8.3 at 182 (2d ed. 1987); Comment to AMI Civil 2d (1974) No. 617 (stating that the instruction on the doctrine of discovered peril is purposely omitted); AMI Civil 3d (1989) No. 617 (“No instruction”). Miller’s erroneous objection, that last clear chance is inapplicable because there was no foreseeable risk for her to ignore, does not suffice to reverse the giving of the last-clear-chance instruction, even though the instruction was erroneous for a different reason. Furthermore, Miller made no argument that comparative negligence was applicable to the case, nor did she offer a comparative negligence instruction. Miller’s objection merely presented the trial court with the alternative of giving or refusing to give the last-clear-chance instruction, depending upon which facts the court found to be supported by the evidence. The objection did not apprize the court that a last-clear-chance instruction was an erroneous statement of the law, regardless of what facts the evidence supported. A proper objection to a jury instruction must specify a correct ground and give the trial court an opportunity to instruct the jury properly. Dickerson Constr. Co., Inc. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979).
Affirmed.
Pittman, J., concurs.
Robbins, J., agrees.
Miller’s arguments concerning the residual exception and the best evidence rule were not raised to the trial court. An argument that has not first been presented to the trial court for resolution will not be considered for the first time on appeal. Hardy Constr. Co. v. Arkansas State Hwy. & Transp. Dep’t, 324 Ark. 496, 922 S.W.2d 705 (1996).
Section 1 of Act 191 of 1955 reads: “In all actions hereafter accruing for negligence resulting in personal injuries or wrongful death or injury to property, including those in which the defendant has had the last clear chance to avoid the injury, the contributory negligence of the person injured, or of the deceased, or of the owner of the property, or of the person having control over the property, shall not bar a recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the injured person or to the deceased or to the owner of the property or to the person having control over the property.”
Act 191 of 1955 abolished the common law rule of contributory negligence whereby formerly a plaintiffs negligence in any degree would bar his recovery. D. Dobbs, Acts of 1955 Arkansas General Assembly, 9 Ark. L. Rev. 4 (1955). In Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958), the supreme court held that a plaintiffs right to recover substantial damages despite his own contributory negligence under Act 191 of 1955 was preserved rather than destroyed by Act 296 of 1957. | [
-16,
-20,
-31,
-100,
12,
97,
40,
-100,
102,
-95,
-11,
-45,
-25,
-52,
-104,
105,
43,
125,
117,
106,
-47,
-77,
23,
66,
-42,
-101,
49,
-43,
-72,
75,
-12,
-17,
88,
96,
-54,
-35,
-90,
66,
-57,
84,
-122,
22,
-117,
112,
89,
-62,
36,
58,
118,
11,
37,
-113,
-13,
44,
53,
-49,
109,
44,
105,
45,
73,
-15,
24,
13,
77,
3,
-95,
100,
-106,
39,
-6,
26,
-112,
57,
8,
-88,
115,
-90,
-126,
-76,
107,
-103,
44,
-28,
98,
33,
21,
-59,
-24,
-120,
7,
-98,
-97,
-89,
26,
41,
-37,
47,
-97,
-107,
120,
82,
22,
126,
-18,
5,
95,
108,
26,
-58,
-108,
-15,
7,
36,
-100,
17,
-21,
-89,
52,
116,
-51,
-14,
90,
69,
115,
-101,
-50,
-2
] |
Karen R. Baker, Judge.
Appellant, Charles Vinson, III, appeals from an order of dismissal with prejudice entered by the Benton County Circuit Court based upon a defective summons. On appeal, he argues that the trial court erred in dismissing his complaint for defective summons. We affirm.
Originally, appellant filed a complaint against the appellee, Dr. David W. Ritter, on February 2, 2000, alleging medical negligence in a procedure performed on February 2, 1998, in Springdale, Arkansas. After receiving an extension of service until July 31, 2000, appellant served appellee on July 28, 2000. Appellant later moved for a voluntary nonsuit, which was granted by the trial court in an order dated December 5, 2000.
Appellant filed a subsequent complaint against appellee on December 5, 2001. Before any attempted service, appellee was notified of the filing of the complaint and answered it on February 6, 2002. In appellee’s answer, he specifically denied the court’s jurisdiction over his person, and expressly reserved objections based on lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, and failure to state facts upon which relief can be granted. The answer further asserted the objections as additional defenses.
An unsuccessful attempt to deliver a summons and complaint was made to appellee at his former work address in Spring-dale. A second summons and complaint was delivered to appellee at his Texas address on April 4, 2002. However, the second summons incorrectly stated that appellee had twenty days in which to respond rather than the thirty days allowed to an out-of-state defendant. In addition, the summons was dated September 5, 2001, which was three months prior to the actual filing of the complaint, and the summons incorrectly listed appellee’s address as Springdale, Arkansas. On September 10, 2002, appellee filed a motion to dismiss based upon defective service. The motion to dismiss also asserted that, because of appellant’s previous nonsuit, the statute of limitations had run, and the time for service of process had expired; therefore, the dismissal must be with prejudice. In an order filed March 5, 2003, the trial court granted the motion to dismiss with prejudice. This appeal followed.
Under Rule 4(a) of the Arkansas Rules of Civil Procedure (2003), the clerk must issue a summons upon the filing of a complaint, and Rule 4(b) mandates the form of the summons. Rule 4(a) states that “[u]pon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a person authorized by this rule to serve process.” Further, Rule 4(b) states that “[t]he summons shall be styled in the name of the court and shall be dated and signed by the clerk; under the seal of the court; contain the names of the parties; be directed to the defendant; state the name of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in the case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.”
Arkansas law is well settled that service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003) (citing Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001)). Our case law is equally well settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Id. (citing Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996), Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989), and Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). Moreover, strict compliance also specifically applies to the technical requirements of a summons. See Smith, supra.
In his argument, appellant asserts that this court should readopt the former standard of substantial compliance when dealing with defective summons. In support of his argument, appellant’s cites this court to Ford Life Insurance Co. v. Parker, 277 Ark. 516, 644 S.W.2d 239 (1982). In Ford, our supreme court found that a defective summons was harmless error where no prejudice was shown and following the substantial compliance rules in dealing with defective summons. However, our supreme court overruled that portion of Ford in Southern Transit Co. Inc. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998), holding that because the summons did not strictly comply with the technical requirements Ark. R. Civ. P. 4 in that it incorrectly directed the summons to Bruce Peck instead of Southern Transit, the trial court could have held that the default judgment was “void ab initio” regardless of the fact that Southern Transit had actual knowledge of the complaint against it. The court in Southern Transit went on to explain:
In reaching this conclusion, we are not unmindful of two older Arkansas cases where we said that only “substantial compliance” with Ark. R. Civ. P. 4 is required. Ford Life Ins. Co. v. Parker, 277 Ark. 516, 644 S.W.2d 239 (1982); Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). These cases, however, were decided before Rule 55 was revised in 1990, and accordingly they are no longer applicable. See Addition to Reporter’s Notes to Rule 55, 1990 Amendment (explaining that “[b]ecause the [revised] rule represents a significant break from prior practice, many cases decided under the old rule and the statute from which it was derived will no longer be of precedential value”). For these reason^, Southern Transit is correct in its assertion that the trial court could have rendered the default judgment void due to the defective summons.
Id. at 175-76, 966 S.W.2d at 908. However, in Southern Transit, the supreme court did not reverse on the basis that the trial court could have rendered the default judgment void due to the defective summons because Southern Transit waived the defense of insufficiency of process by failing to raise that defense in its first responsive pleading. Id.
Appellant also asserts that appellee is estopped from objecting to the manner in which service was made because appellee filed an answer. In Farm Bureau Mutual Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), our supreme court upheld the trial court’s granting of a motion to dismiss holding that the defendant was not estopped from asserting that the court lacked jurisdiction even though the defendant had filed an answer, which reserved his right to contest the summons, and had participated in discovery. In Campbell, the court stated:
[Although this court has said that a defendant may, by his conduct, be estopped to object to the manner in which service is made, the court also cautioned that estoppel does not apply where the defect in the summons itself is so substantial as to render the process void. Storey, 232 Ark. 552, 339 S.W.2d 112. Here, as discussed in the trial court’s findings set out hereinabove, the Campbells admitted that no service of summons whatever was made on Farm Bureau, thus, estoppel simply is inapplicable in these circumstances. For the reasons given above, we hold the trial court was clearly correct in dismissing the Campbells’ complaint for insufficiency of process.
Id. at 141, 865 S.W.2d at 646. The facts of this case establish that the defects in the summons, which included appellee’s wrong address, the incorrect amount of time for an out-of-state defendant to file a pleading, and the incorrect date rendered the process void. Thus, pursuant to Campbell, we hold that estoppel does not apply in this case. In addition, pursuant to Ark. R. Civ. P. 12(h), appellee, as in Campbell, reserved his right to assert insufficiency of process as well as insufficiency of service of process in his answer. Moreover, our supreme court also held in Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996), that actual knowledge of the proceeding does not validate defective service.
In this case, the summons issued to appellee was clearly defective in two respects. First, the summons was incorrectly dated September 5, 2000, exactly three months prior to the filing of the complaint on December 5, 2000. Arkansas Code Annotated section 16-58-103(a) (year) states that, “No summons or order for a provisional remedy shall be issued by the clerk in any action before the plaintiffs complaint or petition therein is filed in his office.” Moreover, the summons incorrectly stated that appellee had only twenty days to answer rather than thirty days. Rule 12(a) of the Arkansas Rules of Civil Procedure states that, “[a] defendant shall file his answer within twenty (20) days after the service of summons and complaint upon him, except when service is upon a non-resident of this state, in which event he shall have thirty (30) days after service of summons and complaint upon him within which to file his answer.” In Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., supra, our supreme court held that where the summons misstated the time in which the defendants were required to respond, the circuit court properly dismissed the complaint for failure of service of valid process under Rule 12(b). Here, appellee testified that he became a resident of Texas in 1998. Thus, he was an out-of-state defendant on April 4, 2002, when he was served with the summons.
Ultimately, appellant urges this court to readopt the prior standard of substantial compliance and overrule the supreme court’s precedent. We have no authority to do so, and accordingly affirm the decision of the trial court dismissing the complaint with prejudice.
Hart and Vaught, JJ., agree.
Appellee no longer lived in.Northwest Arkansas; he moved to Texas in the summer of1998. | [
-16,
-24,
-28,
12,
9,
-31,
50,
46,
80,
-85,
111,
83,
-19,
-46,
28,
111,
107,
45,
113,
121,
69,
-93,
71,
96,
114,
-109,
82,
85,
-67,
-49,
-28,
-4,
72,
56,
-54,
-41,
70,
-64,
-115,
24,
-58,
-95,
-87,
104,
17,
-126,
16,
-85,
18,
7,
85,
-82,
-29,
46,
59,
-61,
44,
104,
-5,
61,
-62,
-112,
-118,
13,
127,
4,
49,
-90,
-102,
-121,
80,
46,
-128,
57,
50,
-8,
50,
-74,
-126,
116,
103,
57,
32,
96,
98,
35,
29,
-25,
104,
-88,
15,
62,
31,
-90,
-103,
105,
75,
37,
-74,
-67,
119,
22,
7,
-4,
111,
-43,
30,
44,
10,
-54,
-112,
-75,
-25,
16,
60,
3,
-25,
-105,
20,
113,
-113,
-32,
92,
71,
51,
-101,
-58,
-68
] |
Sam Bird, Judge.
Following a bench trial in Washington County, the trial court awarded appellee $12,951.87 on its complaint against appellant to recover for goods sold. Appellant argues on appeal that the trial judge erred in 1) denying its motion for a directed verdict, and 2) finding that it waived the right to rely on a contractual term that required appellee to immediately confirm all orders by fax or email. Finding no error, we affirm.
Appellant is a manufacturer of nutritional supplements. In September 1999, it began purchasing raw materials from appellee, which operated through its president, Detleff Fuhrmann. Over a period of four months, appellant placed approximately seventeen orders with appellee.
According to Detleff Fuhrmann, the parties transacted most of their business by telephone. He.explained that he was in almost daily telephone contact with appellant and that if he could locate material that appellant was interested in purchasing, he would telephone one of appellant’s personnel and advise of the material’s availability and price. If agreeable, appellant would then issue a purchase order to appellee. Each purchase order would recite the material being ordered, the quantity, the unit price, the total price, appellant’s shipping address, and six “Terms of Contract,” including the following: Order/price confirmation w/ship date must be faxed/e-mailed immediately. Upon receiving the purchase order, appellee would order the material from its supplier and pay for it in advance. When the material became available, it would be shipped to appellant, and appellee would send appellant an invoice that referenced appellant’s purchase order number. It is undisputed that appellee never faxed or emailed a confirmation to appellant on any order. According to Fuhrmann, confirmations were handled by telephone.
Despite the lack of written confirmation, appellant received and paid for several orders from appellee without protest or complaint. However, in January and February 2000, appellant attempted to cancel numerous orders by writing “CANCEL” across the orders and faxing them to appellee. During this same period, appellant also requested return authorizations for some of the materials that it had received. All but one of these return requests listed “Inadequate Purchase Order Confirmation” as a reason for return.
Fuhrmann testified that he was surprised to receive the cancellation notices and return requests because he had never had any previous complaints from appellant. He told appellant that he did not want to accept a return of the goods that had already been shipped, and he asked appellant to pay for those goods. At one point appellant paid appellee $8,000, which apparently covered only part of the outstanding balance. No further payments were made.
On August 10, 2000, appellee sued appellant to collect the balance due on three purchase orders. Appellant defended on the ground that appellee had not confirmed the purchase orders as required. Following a bench trial, the circuit judge entered a verdict in appellee’s favor for $12,951.87. Appellant now appeals from that verdict.
We first address appellant’s argument that the trial court erred in denying its motion for a directed verdict. A party in a nonjury trial may challenge the sufficiency of the evidence by moving to dismiss the opposing party’s claim for relief. See Ark. R. Civ. P. 50(a) (2004). When a party moves for a “directed verdict” or dismissal in a bench trial, it is the duty of the trial court to consider whether the plaintiff s evidence, given its strongest probative force, presents a prima facie case. See Henley’s Wholesale Meats v. Walt Bennett Ford, 4 Ark. App. 362, 631 S.W.2d 316 (1982). It is not proper for the court to weigh the facts at the time the plaintiff completes his case, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted. Id. On appeal, in determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict was sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001) (citing Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992)).
At the close of appellee’s evidence, appellant sought a directed verdict on two of the purchase orders, arguing that appellee’s failure to fax or email a confirmation of those orders meant that appellee had not “accepted” the purchase order “offers” in accordance with their terms, and thus no contract was formed. The trial court denied the motion, ruling that a question remained as to whether appellee had the right to rely on the parties’ course of dealing in not faxing or emailing a confirmation. Ultimately, the court found that a contract had been formed as to the two orders.
Appellant argues on appeal, as it did below, that its purchase orders were offers and that they required acceptance by one means only — faxing or emailing a confirmation; thus, when appellee failed to accept in the required manner, no contract was formed. We hold that appellant was not entitled to a directed verdict on this point.
We note first that it is true that a purchase order is generally considered an offer. See Smyth Worldwide Movers v. Little Rock Packing Co., 235 Ark. 679, 361 S.W.2d 534 (1962); 2 Ronald Anderson Uniform Commercial Code §§ 2-204:14; 2-206:37 (3d ed. 1997). However, even if we consider appellants’ purchase orders to be offers, we disagree with appellant that they clearly invited acceptance by only one means. Under the Uniform Commercial Code, an offer may generally be accepted in any manner and by any medium reasonable in the circumstances. See Ark. Code Ann. § 4-2-206(1)(a) and (b) (Repl. 2001); Anderson, supra, at § 2-206:44. However, as appellant points out, an offeror may specify a particular manner in which the offer may be accepted. Anderson, supra, at § 2-206:59. When that occurs, the offeree must comply in the manner specified in order to accept the offer. See Anderson, supra, at § 2-206:62. See also Ark. Code Ann. § 4-2-206(1)(a) (Repl. 2001), which reads:
(1) Unless otherwise unambiguously indicated by the language or circumstances:
(a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances [.]
The purpose of this statutory language is to make it clear that any reasonable manner of acceptance is intended to be regarded as available unless the offeror has made it quite clear that it will not be acceptable. Ark. Code Ann. § 4-2-206, Comment 1 (Repl. 1995).
The confirmation requirement contained in appellant’s purchase orders is, by the orders’ express language, a term of the parties’ contract. It is not unambiguously set out as a means of accepting an offer. In fact, nothing is said in the purchase orders regarding a specific means of acceptance. Therefore, we cannot say that the purchase orders expressly require acceptance by only one means.
Further, purchase orders may sometimes be considered an acceptance rather than an offer. See Anderson, supra, at § 2-206:40. The circumstances of this case would allow for that possibility, given the parties’ course of dealing. Fuhrmann testified that he was in constant telephone contact with appellant and that prior to appellant’s issuance of a purchase order, he provided appellant with information about the price and availability of the materials appellant sought. Thus, it is possible that appellant’s purchase order actually operated as an acceptance of appellee’s offer. It is also possible that appellant’s purchase order was simply confirmation of a contract that had already been made. The UCC contemplates that parties may enter into oral agreements that are subsequently confirmed in writing. Ark. Code Ann. § 4-2-201(2) (Repl. 2001). Appellant’s purchase orders identified the product to be shipped and contained the quantity, price, terms of payment, and shipping information. Further, the orders contained several “terms of contract.” Therefore, it would be reasonable to infer, given the parties’ regular course of dealings, that they had already made an oral contract and that Fuhrmann was simply awaiting confirmation in the form of appellant’s purchase order before obtaining the materials.
In light of these reasonable inferences, which our standard of review requires us to consider, we conclude that the trial court did not err in refusing to grant a directed verdict on the ground that no contract had been formed.
Appellant also argues that, in denying the directed verdict, the trial judge wrongly considered the parties’ course of dealing and should only have considered the language of the purchase orders in determining whether a contract was formed. Appellant cites Ark. Code Ann. § 4-2-208 (Repl. 2001), which provides that the express terms of the agreement and the parties’ course of performance shall be construed whenever reasonable as consistent with each other, but when such a construction would be unreasonable, the express terms control course of performance. Appel lant argues that, in this case, the purchase orders’ express terms should govern over course of performance.
As.we have already determined, the express terms of the purchase orders do not clearly require written confirmation as a prerequisite to the formation of a contract. Thus, the terms are not so clear that the court should have disregarded the parties’ course of performance. Under certain circumstances, course of performance is relevant in determining the meaning of an agreement for the sale of goods. See Ark. Code Ann. § 4-2-208(1) (Repl. 2001). The comment to section 4-2-208 recognizes that the parties themselves know best what they have meant by their words of agreement and “their action under that agreement is the best indication of what that meaning was.” Additionally, the parties’ course of performance is relevant to the question of whether written confirmation had been waived. See Anderson, supra, at § 2-208:24 and :29.
When these premises are considered, we cannot say that the trial court erred in denying appellant’s motion for a directed verdict.
Appellant argues next that the trial court erred in ruling that it waived the confirmation requirement. Appellant’s first contention is that the purchase orders were contracts “independent and enforceable on their own terms” and were “separate and distinct transactions”; thus, the trial court erred in considering appellant’s actions with regard to one purchase order as relevant to any other purchase order. This argument ignores the clear language of Ark. Code Ann. § 4-2-208(1), which reads:
Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.
(Emphasis added.) In the case at bar, there were repeated occasions for performance over the course of several months, during which appel-lee persistently failed to confirm appellant’s orders by fax or email, and during which appellant acquiesced without objecting to such failure. This state of facts fits squarely within the above-quoted statute.
Appellant also argues that the facts generally do not support a finding of waiver. Waiver is the voluntary abandon ment or surrender by a capable person of a right known to him to exist, with the intent that he shall forever be deprived of its benefits, and 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. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). As to this particular argument, we are reviewing the trial court’s findings of fact, which should not be reversed unless clearly erroneous. See Beal Bank v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000). We do not believe that the trial court’s finding of waiver is clearly erroneous.
It is undisputed that appellant accepted and paid for several orders that appellee shipped in October and December 1999, despite the fact that appellee had not complied with the confirmation requirement. According to Fuhrmann, the parties were in daily telephone contact and confirmations were accomplished by telephone, without protest by appellant. There was also testimony by appellant’s purchasing agent, Trail Benedict, that, although he generally required written confirmation of orders, he had made some exceptions to that rule and initially made an exception with appellee. Additionally, prior to appellant’s cancellation of orders in January and February 2000, Fuhrmann was never notified that any shipments were unacceptable for failure to fax or email a confirmation order. Finally, as the trial court found, there is no evidence that appellant ever retracted its waiver pursuant to Ark. Code Ann. § 4-2-209(5) (Repl. 2001), which reads:
A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on' the waiver.
In light of the foregoing, we hold that the trial court’s finding of waiver is not clearly erroneous.
Affirmed.
Vaught and Crabtree, JJ., agree.
Although numerous orders were canceled by appellant, appellee was able to prevent a loss on some orders by making a timely cancellation with its own suppliers. Further, appellee applied the $8,000 it received from appellant to reduce the total balance due. Thus, appellee sought payment at trial on only three purchase orders.
Appellant admitted that a contract had been formed as to the third purchase order.
The statute provides that such a writing takes the oral agreement out of the statute of frauds. | [
-80,
-20,
104,
-116,
26,
34,
56,
-102,
84,
-95,
39,
83,
-19,
-46,
-108,
123,
-11,
121,
-12,
104,
68,
-77,
39,
64,
-42,
-77,
-53,
-43,
-79,
106,
-28,
-36,
76,
48,
-62,
5,
70,
-61,
-63,
90,
-64,
2,
25,
-21,
-7,
71,
-112,
59,
50,
67,
113,
-52,
115,
44,
25,
75,
41,
44,
109,
13,
-56,
-7,
-69,
13,
109,
22,
-109,
36,
-101,
7,
-40,
110,
-128,
57,
10,
-55,
114,
-74,
-126,
116,
11,
-71,
8,
102,
99,
48,
13,
-19,
-36,
-40,
46,
94,
-98,
-90,
-45,
8,
67,
45,
-74,
-99,
116,
18,
23,
-2,
126,
-115,
-99,
-20,
11,
-58,
-106,
-125,
63,
118,
-98,
-106,
-17,
2,
21,
81,
-49,
-16,
92,
70,
122,
-109,
-50,
-109
] |
Wendell L. Griffen, Judge.
Barbara Patchell appeals from a decision of the Arkansas Workers’ Compensation Commission (Commission) that denied her continued medical treatment for a chronic-pain condition associated with her compensable injury. Appellant contends that the Commission erred because there is not substantial evidence to support the finding that she failed to prove by a preponderance of the evidence that she is entitled to additional medical treatment. We hold that the Commission’s decision that appellant is not entitled to additional treatment does not display a substantial basis for denial of relief. Thus, we reverse.
Appellant began working for Wal-Mart in February of 1996 as a store-planning mailroom employee. Her job consisted of sorting and delivering mail. On April 24, 1997, appellant was moving a table when she suffered a compensable injury to her coccyx after she fell over some boxes onto a concrete floor. Appellant was treated by the company doctor, Dr. James Arkins, on May 9, 1997, due to the pain she was experiencing in the rectal area. Dr. Arkins diagnosed appellant with a fractured coccyx, prescribed ibuprofen and Darvocet for her pain, and then referred appellant to Dr. Roger Dickinson, an orthopedic surgeon. Dr. Dickinson treated appellant from April 24, 1997, until her claim was denied on March 28, 2001. He diagnosed appellant with a syndrome of coccydynia secondary to her fall and performed injections that appellant claims “took the edge off,” but did not alleviate the pain. Dr. Dickinson referred appellant to Dr. William Ackerman in July 1998 for epidural steriod injections. According to Dr. Ackerman’s notes, appellant sustained a fracture to her coccyx. Dr. Dickinson also ordered therapy and prescribed a coccyx cushion.
Wal-Mart’s claim-management agency directed appellant to undergo three independent medical examinations. The first was with Dr. Carl Kendrick on April 21, 1999. Dr. Kendrick did a complete physical examination and diagnosed appellant with coc-cydynia that was persistent and directly related to the injury she sustained at Wal-Mart. He also noted a developing degenerative disc at L4 and L5 with facet arthropathy that is not related to her injury. He assessed appellant with a three-percent disability rating to the body as a whole as a result of the injury. Meanwhile, appellant continued to see Dr. Dickinson for pain medications and injections. Dr. Dickinson took her off work on May 15, 2000, because her pain had worsened.
Wal-Mart directed that appellant submit to a second independent examination which was performed on July 6, 2000, by Dr. Michael Wolfe. Dr. Wolfe took x-rays, conducted a rectal exam, and agreed with Dr. Kendrick and Dr. Dickinson that appellant was suffering from coccydynia. Dr. Wolfe also noted mild degenerative changes in the lower lumber spine to both the discs and the facets. He opined that the pain symptoms were related to the injury.
Appellant was off work for a three-month period but continued to be under the care of Dr. Dickinson, who prescribed injections every two or three months for appellant’s pain. On February 8, 2001, appellant saw Dr. David Cannon for pain management upon a recommendation from Wal-Mart’s claim management case manager and Dr. Dickinson. Dr. Cannon discussed the following treatment options with appellant: (1) a TENS trial, (2) addition of Neurontin to see if it is helpful, (3) consideration of a possible cryoneurolysis of the sacrococcygeal ligament and nearby structures; or (4) placement on long-acting opioids. He presented the options to the Wal-Mart caseworker, and the caseworker and appellant were to discuss which of the options they would pursue. Dr. Cannon’s recommendation was the TENS unit and the Neurontin. Appellant began a trial use of TENS unit on February 27, 2001. According to appellant’s testimony, she discontinued using the TENS unit because it made welts on her body where the electrodes attached to the patches. There is no record that she received a prescription for Neurontin.
Appellant testified that when she returned home from her daughter’s funeral on March 28, 2001, she found a card in her mailbox directing that she call her caseworker. When she called her caseworker, appellant was told that as of March 28, 2001, she would be denied any further coverage. The record includes a letter from Wal-Mart’s attorney to counsel for appellant dated July 16, 2001, in which Wal-Mart’s attorney asked counsel for appellant to consult his client on whether she was interested in resigning and settling her case by joint petition. A relevant portion of the letter reads as follows:
If the above does not pan out, then my client will probably want to have another IME performed here in Northwest Arkansas. I am not sure where that would lead but there has got to be something better for her than being placed indefinitely on long-acting opioids per Dr. Cannon’s report on February 8,2001. Maybe another physician can give everyone a fresh perspective of the situation and possibly offer up a treatment plan that has not been previously considered. Please understand that it is not my client’s intent to cut Ms. Patchell’s future medical treatment off altogether. To the contrary, my client is just having a big problem with that particular recommendation of Dr. Cannon.
So at Wal-Mart’s direction, appellant submitted to a third independent examination that was conducted by Dr. David Davis, a neurologist, on September 18, 2001. Dr. Davis performed a physical examination on appellant. Dr. Davis opined that appellant may have been addicted or at least habituated to Roxicet because she had been taking it six times per day for four years. He suggested that she needed to be in a formalized program of gradual drug withdrawal and substitution with the expectation that she would be on no opiate pain medications. According to Dr. Davis, there is little verification for appellant’s pain, because he found no unhealed or displaced fractures. However, on October 12, 2001, after reviewing the medical records from her previous physicians, Dr. Davis reported, “it is agreed that she has coccydynia or coccygeal pain.” Even with this recommendation, Dr. Davis recommended that the gradual drug-substitution and replacement-treatment regimen be directed by Dr. Cannon. Instead of providing appellant with some treatment for her chronic pain condition, however, Wal-Mart refused to provide any further treatment.
Appellant admits that her family physician, Dr. Jerry Hitt, prescribed additional medication for her during the time she was receiving medications for her coccyx injury. She testified that Dr. Hitt did not write any prescriptions other than the one on April 1, 2000, and she never requested pain medications from him. Appellant suffers from degenerative arthritis, and had surgery for work-related carpal tunnel syndrome in both hands. She was sixty-four at the time of the workers’ compensation proceeding on May 8, 2002.
An administrative law judge entered an opinion on May 30, 2002, finding that appellant met her burden of proving by a preponderance of the evidence that she was entitled to additional medical treatment as recommended by Dr. Dickinson, her treating physician. The Commission reversed that finding and denied appellant’s claim for further medical benefits in a split decision on June 18, 2003.
The issue litigated before the Commission was whether appellant was entitled to the medical treatment recommended by Dr. Dickinson, her treating physician. On appeal, we analyze whether the Commission’s decision to deny benefits contains a substantial basis for denial of relief. Superior Indust. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if the findings are supported by substantial evidence. Id. The Commission’s decision will not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id. We do not review the decision of the administrative law judge; we review the decision of the Commission. Daniels v. Affiliated Foods Southwest, 70 Ark. App. 319, 17 S.W.3d 817 (2000).
When medical testimony is conflicting, resolution of the conflict is a question of fact for the Workers’ Compensation Commission. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977). It is the province of the Commission to weigh conflicting medical evidence, but the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001).
The workers’ compensation law provides that an employer shall provide the medical services that are reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).
We hold that the Commission’s decision does not display a substantial basis for denial of additional medical treatment. According to the Commission, appellant failed to prove by a preponderance of the evidence that she was entitled to medical treatment because her coccygeal fracture was never firmly established from any objective measurable standpoint. However, all the physicians who treated appellant agree that she suffers from coccydynia, and several agreed that she sustained a coccygeal fracture. Dr. Arkins’ diagnosis was a fractured coccyx. Dr. Dickinson’s notes showed that appellant sustained a fracture to her coccyx. Both Dr. Kendrick and Dr. Wolfe opined that appellant suffers from coccydynia related directly to her compensable injury, and a developing degenerative disc at L4 and L5.
Even Dr. Davis, the third physician appellant was referred to by Wal-Mart, agreed that appellant had coccydynia or coccygeal pain. Before Dr. Davis reviewed appellant’s medical records, he found little verification for her pain, because he found no unhealed or displaced fractures. After viewing the records, however, Dr. Davis verified the view that appellant had a sacral fracture, but reasoned that it had healed. According to Dr. Davis, “With respect to her problem, it seems agreed that she has coccydynia or coccygeal pain.” There is no evidence in the record that appellant does not suffer from coccydynia or coccygeal pain, or that her pain condition stems from anything other than the compensable injury she sustained at Wal-Mart. Furthermore, it is well settled that a claimant may be entitled to ongoing medical treatment after the healing period has ended, if the medical treatment is geared toward management of the claimant’s injury. Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
It is clear that the Commission arbitrarily used the concern that Dr. Davis expressed about addiction to narcotics as justification for denying appellant any additional treatment for the chronic pain condition that even Dr. Davis acknowledged existed. This decision, and Wal-Mart’s effort to obtain this result, contradicted the July 16, 2001 letter written by Wal-Mart’s attorney to counsel for appellant that mentioned Wal-Mart’s desire for appellant to undergo a third independent evaluation in northwest Arkansas because another physician could provide a fresh perspective of the situation. That letter stated, “Please understand that it is not my client’s intent to cut Ms. Patchell’s future medical treatment off altogether.” Wal-Mart’s action to deny any additional treatment to appellant, in the face of its own lawyer’s letter and the overwhelming proof of her pain condition, is telling.
The Commission’s decision also appears contrary to Dr. Davis’s recommendation. Nothing in the recommendation suggests appellant should not receive any additional medical treatment. His recommendation included gradual drug withdrawal and substitution. His goal was to prevent appellant from using opiate pain medications. Nothing in the record suggests that Dr. Davis’s recommendation was that appellant be completely barred from additional medical treatment; rather, he intended a treatment course that would address his concerns that appellant was addicted to the drugs she was using.
The record amply demonstrates that appellant suffers from chronic pain related to the injury she sustained while working at Wal-Mart. There is no proof that appellant’s condition does not warrant further treatment. To the contrary, each of the three physicians who independently examined appellant, at Wal-Mart’s specific direction, recommended additional treatment for her chronic-pain condition.
We hold that the Commission’s findings are not supported by substantial evidence, because fair-minded persons could not have reached the same conclusion if presented with the same facts. Thus, we reverse and remand appellant’s claim to the Commission and direct that it award additional medical benefits consistent with this opinion.
Reversed and remanded.
Stroud, C.J., and Pittman, J., agree. | [
16,
-17,
-3,
-116,
8,
67,
50,
42,
123,
-93,
103,
83,
-83,
-19,
-115,
125,
-85,
125,
80,
125,
-41,
-77,
19,
72,
-46,
-37,
123,
-57,
-79,
107,
-12,
-75,
77,
56,
-118,
-59,
-26,
74,
-59,
84,
-64,
6,
-101,
-51,
89,
-126,
56,
46,
88,
7,
49,
-116,
-61,
46,
24,
-49,
40,
104,
75,
61,
-48,
-87,
-102,
13,
-1,
21,
-95,
4,
24,
39,
-38,
30,
-104,
48,
40,
-24,
18,
-74,
-62,
52,
123,
-103,
4,
97,
99,
33,
12,
-3,
104,
-72,
30,
-18,
-113,
-124,
-117,
56,
106,
11,
-74,
-76,
126,
76,
12,
88,
-6,
77,
79,
44,
-117,
-114,
-108,
-79,
-49,
-15,
-100,
-93,
-25,
7,
-104,
85,
-49,
-30,
93,
-57,
123,
-102,
58,
-74
] |
Sam Bird, Judge.
This -is an appeal from an order of the Pulaski County Circuit Court that reversed an order of the Office of Appeals and Hearings (OAH) of the Arkansas Department of Human Services (ADHS) concerning the listing of James and Versie Burgess on the Child Maltreatment Central Registry. We affirm the circuit court’s order, reverse OAH’s order, and remand the case to the OAH to conduct an administrative hearing to determine whether the Burgesses’ names should remain on the registry.
On January 29, 2002, appellee Versie Burgess phoned the Child Maltreatment Hotline operated by appellant ADHS, Division of Children and Family Services (DCFS), requesting that her adopted teenage son, SB, be removed from her home. Antoine Williams, an ADHS investigator, responded to Versie’s request and interviewed SB. Based upon the information he received from interviewing SB and Versie, ADHS on February 1 filed a petition for emergency custody alleging that SB was dependent/neglected because he had been abandoned. On the same day the Pulaski County Circuit Court, Tenth Division, entered an emergency order placing SB in the custody of ADHS, and on February 2, found probable cause that SB was dependent/neglected. On March 20, an adjudication order was entered in which the court found that SB was a dependent-neglected child and that the allegations in ADHS’s petition were true and correct. The Bur-gesses did not appeal the decision finding SB dependent-neglected.
On February 27, 2002, a document entitled “Child Maltreatment Assessment Determination Notification” was sent only to Versie Burgess by ADHS-DCFS, notifying her that on January 29, 2002, DCFS had received an allegation of suspected child maltreatment involving her child, that James and Versie Burgess were named as the offenders, and that her name would be placed in the Arkansas Child Maltreatment Central Registry. The notice also stated that if she disagreed with the determination and the placement of her name in the registry, she could request an administrative hearing within thirty days of receipt of the notice. On March 19, 2002, Versie Burgess responded in writing that she disagreed with the child-maltreatment determination and with the placement of her name on the registry. She requested an administrative hearing. On April 10 Versie was notified by OAH that an administrative hearing regarding the alleged child maltreatment would be conducted on June 20, 2002.
On June 14, 2002, ADHS filed a motion to dismiss Versie Burgess’s request for a hearing, stating that the issues had already been litigated in the Pulaski County Circuit Court, Tenth Division, and that the circuit court had found by a preponderance of the evidence that the allegations in the petition for dependency-neglect were true and correct, i.e, that SB had been abandoned. Both James and Versie Burgess responded to the motion, denying that the issues litigated in the Pulaski County Circuit Court, Tenth Division, relating to ADHS’s Petition for Emergency Custody, were the same as the issues upon which she requested a hearing under the Arkansas Child Maltreatment Act, and requesting that they be granted a hearing on the issue of the placement of their names on the child maltreatment central registry.
Without conducting a hearing, the law judge for OAH entered an order on June 18, 2002, stating that ADHS had met its burden ofproving, by a preponderance of the evidence, that Versie Burgess neglected her son, SB, by abandonment. The law judge further found:
In a dependency-neglect hearing the juvenile judge found that Versie Burgess had abandoned her son SB. The definition of abandonment is the same under the Arkansas Child Maltreatment Act as it is under the Arkansas Juvenile Code. That issue has been litigated in this case. The only other issue raised by petitioner is the placement of her name on the state child maltreatment registry. The juvenile court did not and could not make a finding as to the placement of Versie Burgess’ name onto the child maltreatment central registry. That decision is made by the DHS Office of Appeals & Hearings. Abandonment of a child by a parent is child maltreatment.
Based upon the circumstances of this case, I find that the agency has presented by a preponderance of the evidence that Versie Burgess neglected by abandonment her son SB.
Versie Burgess’ name shall remain on the Child Maltreatment Central Registry insofar as the entry pertains to the child maltreatment report of 1/29/02.
The law judge’s order never mentioned James Burgess.
The Burgesses then filed a petition for judicial review, stating that the law judge erred in denying their statutory right to appeal under the Arkansas Child Maltreatment Act because material evidence exists that was not presented at the adjudication hearing in circuit court that is relevant to the issue of whether or not the Burgesses’ name should be placed on the Child Maltreatment Central Registry. The Burgesses’ petition was assigned to the Third Division of the Pulaski County Circuit Court, which, after reviewing the record of the proceedings and briefs of the parties, found that the Burgesses’ substantial rights had been prejudiced by the OAH’s denial of an administrative hearing, reversed the decision of the administrative law judge, and remanded the matter to the OAH for an administrative hearing. ADHS brings this appeal.
On appeal from the circuit court, our review of administrative decisions is directed to the decision of the administrative agency, rather than the decision of the circuit court. Vallaroutto v. Alcoholic Bev. Control Bd., 81 Ark. App. 318, 101 S.W.3d 836 (2003). We rely heavily upon the principle that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying issues. Id. Judicial review is limited in scope and the administrative agency decision will be upheld if supported by substantial evidence and not arbitrary, capricious, or an abuse of discretion. Id.
James Burgess
For ADHS’s first point on appeal, it argues that the circuit court lacked jurisdiction to order that James Burgess be given a hearing because James Burgess never filed an appeal from the notice that his name was being placed upon the central registry.
ADHS argues that the trial court was without jurisdiction to consider James Burgess’s petition for judicial review because James Burgess had failed to exhaust his administrative remedies. ADHS argues also that James failed to file a timely notice of appeal, stating that James was clearly notified that his name was on the central registry. ADHS argues that because James Burgess never requested an administrative hearing, the circuit court was without jurisdiction to order it to conduct a hearing and that James Burgess’s name should remain on the child maltreatment registry.
Under the provisions of Arkansas Code Annotated § 12-12-512(c)(l) (Repl. 2003), upon completion of an investiga tion of a report of an allegation of child maltreatment and a determination that such allegation is true, the Department of Human Services is required to notify each subject of the report of its determination, in writing by certified mail, restricted delivery, or by process server. The notification must also inform the person named as the offender of his or her right to request an administrative hearing within thirty days of the receipt of such notice.
ADHS concedes in its reply brief that the record does not reflect that James was ever notified that his name was placed in the central registry. ADHS argues, however, that the administrative law judge (and, thus, the circuit court) had no jurisdiction to consider James’s argument because James never filed a notice of appeal. We do not agree. First, Ark. Code Ann. § 12-12-512(c)(l) does not require the recipient of such a notification to file a “notice of appeal.” Rather, it requires the person named as the offender to make a request to the department for an administrative hearing. Second, since James never received the statutorily required notification from ADHS, the thirty days within which he would have been required to make such a request was never triggered. Notwithstanding the lack of notification, James made his request for an administrative hearing when he responded to ADHS’s motion to dismiss in which ADHS requested that Versie’s “appeal” be dismissed. Since ADHS never complied with the statutory requirement of notifying James of its “true” determination resulting from its child maltreatment investigation and of his right to request a hearing, James’s request for a hearing was not untimely.
ADHS suggests, as proof that the law judge did not believe that James had requested an appeal, that the OAH law judge’s order mentions only Versie Burgess. As we have already mentioned, the statute does not require the alleged maltreatment offender to file an appeal. Furthermore, we do not consider a request for an initial hearing before OAH on the issue of whether an alleged child maltreatment offender’s name should remain on the central registry to be an appeal. It is merely a request for a hearing on the issue of the validity of the result of a child-maltreatment investigation by ADHS. What the law judge “believed” was obviously inaccurate. The record does not reflect that James ever received the required statutory notification, and it reflects that James timely requested an administrative hearing, which, by clear implication, he was denied.
The circuit court found that James’s rights were prejudiced because he was denied an administrative hearing. Because James Burgess’s name was placed in the central registry, he has a statutory right to an administrative hearing upon timely request. Since he was never properly notified that his name was being placed in the central registry and that he had a right to a hearing, the thirty days within which he would have been required to request a hearing never began to run. For this reason, we affirm the circuit court’s order, and we reverse the administrative law judge’s order and remand James Burgess’s case to an administrative law judge for a hearing.
The concurring opinion suggests that since James Burgess’s name was not included in the caption of the case and the order appealed from does not mention his name, and because we are limited to a review of the order of the administrative agency, we are without authority to afford any relief to him on appeal. We disagree. It is clear from the record that James’s name has been placed in the central child maltreatment registry, that ADHS did not provide to him the requisite notice of his right to request a hearing, and that, notwithstanding such lack of notice, he requested a hearing before the OAH.
We have decided that James should be afforded relief in the form of an administrative hearing, not because he is otherwise without a remedy for his predicament, but because he has done everything required of him under the law that entitles him to a hearing. In limiting our review to the order of the administrative agency, we are not required to wear blinders and ignore the absence of what should obviously be present. Both James and Versie requested a hearing before the OAH, yet the law judge entered an order expressly denying Versie’s request but inexplicably making no mention of James. In directing our review to the decision of the administrative agency, we have concluded that this omission was erroneous, a decision we consider to be within our jurisdiction and in keeping with the appropriate standard of review.
Versie Burgess
For ADHS’s second point on appeal, it contends that the administrative law judge correctly found that the issue of whether the Burgesses had abandoned their son was precluded from being relitigated. Therefore, ADHS argues that the circuit court erred in reversing the law judge’s order and remanding for a hearing. ADHS contends that by providing an administrative hearing to the Burgesses, the department is being forced to litigate the same issue twice, that issue being whether the Burgesses abandoned their son. ADHS argues that because the definition of neglect under the child-maltreatment statutes is similar to the definition of abandonment under the juvenile code, and because the circuit court in the dependency-neglect hearing, when deciding whether SB was dependent neglected, determined that he was abandoned, then the issue of whether the Burgesses’ name should be included on the central registry is barred by the doctrine of issue preclusion because it was already decided in the dependency-neglect hearing and encompassed in an order from which the Burgesses did not appeal.
To establish that the Burgesses committed child maltreatment, ADHS would have to prove that they either neglected or abandoned SB. Abandonment under the juvenile code means the failure of the parent to provide reasonable support and to maintain regular contact with the juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future and failure to support or maintain regular contact with the juvenile without just cause or an articulated intent to forego parental responsibility. See Ark. Code Ann. § 9-27-303(2) (Repl. 2002).
Arkansas Code Annotated section 12-12-503(6) defines child maltreatment as “abuse, sexual abuse, neglect, sexual exploitation or abandonment.” Ark. Code Ann. § 12-12-503(1)(A) defines abandonment as follows:
(1)(A) “Abandonment” means:
(i) Failure of a parent to:
(a) Provide reasonable support and to maintain regular contact with a juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future;
(b) Support or maintain regular contact with a juvenile without just cause; and
(ii) An articulated intent to forego parental responsibility.
The doctrine of issue preclusion bars the relitigation of issues of law actually litigated by parties in the first suit. Arkansas Dep’t of Human Servs. v. Dearman, 40 Ark. App. 63, 842 S.W.2d 449 (1992). It is based upon the policy of limiting litigation to one fair trial on an issue and is applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Id. Under the doctrine of collateral estoppel, four criteria must be met before a determination is conclusive in a subsequent proceeding: (1) The issue sought to be precluded must be the same as that involved in prior litigation; (2) That issue must have been actually litigated; (3) It must have been determined by a valid and final judgment; and (4) The determination must have been essential to the judgment. Id.
While we agree that the definitions of abandonment under Ark. Code Ann. § 9-27-303(2) and § 12-12-503(1)(A) are practically identical and that the circuit court, in the dependency-neglect hearing, found the allegations of the petition alleging that SB was dependent/neglected to be true, we do not find that the doctrine of issue preclusion applies to this case. The issue before the Tenth Division of the Pulaski County Circuit Court in the dependency-neglect hearing was whether SB was dependent/neglected. That action was initiated by ADHS at the request of Versie Burgess, who complained that SB was a danger to the rest of her family and requested that SB be removed from her home. An affidavit attached to ADHS’s petition described conduct on SB’s part that Versie considered as dangerous and threatening to her and the rest of her family. ADHS characterized this action by Versie as an abandonment. In its Adjudication Order of March 7, 2002, the court states that it “accepts the agreement of the parties and finds that the child is dependent/neglected.” Although the court also made the general finding that “the allegations in the petition are true and correct,” the court made no finding that the basis of its dependency-neglect determination was that SB had been abandoned. In any event, since the court’s order appears to have been based upon some agreement between ADHS and the Burgesses, the terms of which are not revealed in the order or elsewhere, and since it is not clear to us that the issue of SB’s abandonment by the Burgesses was actually litigated, we hold that the doctrine of issue preclusion does not apply.
Furthermore, the issue before the law judge in the administrative hearing would have been whether the Burgesses’s names should be placed or remain upon the child-maltreatment registry. Whether their names should be on the central registry has not been actually litigated, and it has not been determined by a valid and final judgment.
Therefore, we affirm the circuit court’s order, reverse the OAH law judge’s order, and remand to the OAH to conduct an administrative hearing as requested by James and Versie Burgess.
Affirmed.
Pittman, J., agrees.
Robbins, J., concurs.
This is an apparent reference to ADHS’s Petition for Emergency Custody filed February 1,2002. | [
-112,
108,
-51,
44,
25,
-31,
58,
36,
67,
-93,
102,
-45,
111,
-30,
16,
107,
-61,
43,
-47,
121,
-57,
-73,
83,
64,
107,
-14,
-80,
87,
-13,
93,
101,
-10,
88,
112,
-54,
-15,
66,
-64,
-83,
28,
-122,
3,
-119,
77,
115,
67,
44,
43,
26,
11,
53,
-66,
-124,
46,
62,
-49,
42,
12,
-39,
-71,
-40,
-110,
-37,
23,
-49,
6,
-79,
116,
-102,
-123,
90,
45,
-116,
57,
-128,
-24,
51,
38,
-106,
116,
71,
-39,
33,
100,
-30,
3,
28,
-9,
-8,
8,
78,
-66,
-99,
-90,
-70,
104,
67,
13,
-73,
-76,
119,
-44,
78,
-2,
111,
77,
28,
104,
-64,
-49,
-106,
-111,
85,
-112,
-100,
43,
-21,
71,
48,
53,
-49,
-46,
85,
-57,
115,
-109,
-10,
-14
] |
Andree Layton Roaf, Judge.
Appellant Tyrell Benson was convicted of two counts of committing a terroristic act. Benson was sentenced to thirty years’ imprisonment in the Arkansas Department of Correction pursuant to the “three strikes” provision of Ark. Code Ann. § 5-4-501(d)(l) (Repl. 1997). For his sole point on appeal, Benson argues that the trial court erred in denying his motion to dismiss the three-strike enhancement. We affirm.
Benson does not challenge the sufficiency of the evidence to support his convictions. Accordingly, a long recitation of the facts is not necessary. The charges against Benson arose out of an incident in which he fired shots that struck a vehicle occupied by two people on March 29, 2002. On February 19, 2003, a jury convicted Benson of two counts of committing a terroristic act, a Class B felony, and following the jury’s recommendation, the trial court sentenced him to thirty years’ imprisonment. Benson’s sentence was subject to an enhancement pursuant to the “three-strikes” provision of Ark. Code Ann. § 5-4-501(d) (Repl. 1997), based on the fact that he had been convicted the previous month of three counts of aggravated robbery in an unrelated case. Before the trial, Benson moved to reduce the number of previous “strikes” from three to one, arguing that although he had been convicted of three counts of aggravated robbery in January 2003, his convictions stemmed from a single criminal act. He argued that the single criminal act should be considered one strike under Ark. Code Ann. § 5-4-501, rather than three. His motion was denied, and Benson appeals.
Arkansas Code Annotated § 5-4-501(d)(l) provides in pertinent part:
A defendant who is convicted of a felony involving violence enumerated in subdivision (d)(2) of this section and who has previously been convicted of two (2) or more of the felonies involving violence enumerated in subdivision (d) (2) of this section shall be sentenced to an extended term of imprisonment without eligibility except under § 16-93-1302 for parole or community punishment transfer as follows:
* * *
For a conviction of a Class B felony or for a conviction of an unclassified felony punishable by life imprisonment, a term of not less than thirty (30) years nor more than sixty (60) years
* * *
For the purposes of this subsection, a felony involving violence means... aggravated robbery [and] ... terroristic act.
The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary meaning. Laster v. State, 76 Ark. App. 324, 64 S.W.3d 800 (2002). If the language is plain and unambiguous, and conveys a clear and definite meaning, then there is no reason to resort to the rules of statutory interpretation. Id. Penal statutes are strictly construed, and all doubts are resolved in favor of the accused. Id. However, penal statutes will not be construed to defeat an obvious intent of the legislature. Id.
Benson urges this court to construe Ark. Code Ann. § 5-4-501(d) as requiring the three-strike enhancement for only those defendants who have entered and exited the penitentiary without being rehabilitated. ■ He argues that it was not the legislature’s intent to apply the statute to persons who, like himself, have never entered the penitentiary, but who pick up multiple charges from a single criminal episode. For support, Benson notes that before a 1997 amendment, Ark. Code Ann. § 5-4-501 applied only to defendants “who ha[d] previously been convicted on two (2) or more separate and distinct prior occasions.” (Emphasis added.) Benson argues, moreover, that Ark. Code Ann. § 5-4-501 (a) contemplates his circumstance by requiring an enhancement for habitual offenders who have committed more than one, but fewer than four felonies. See also Ark. Code Ann. § 5-4-501(b) (Repl. 1997) (requiring a sentencing enhancement for defendants who have committed more than four felonies). Benson argues that under the rules of statutory construction, when viewing sections 5-4-501 (a) and (d) side by side, this court should conclude that the three(strike enhancement in subsection (d) applies only to true repeat offenders who enter and exit the penitentiary without rehabilitation.
The language of Ark. Code Ann. § 5-4-501 (d) is plain and unambiguous and, thus, should be given its ordinary meaning. Subsection (d) requires a sentence enhancement for defendants who have committed three felonies involving violence. On the other hand, subsections (a) and (b) require sentence enhancements for defendants who have committed more than one felony without regard to the nature of the offense. From the statute’s plain language, it appears that the legislature’s intent was to impose harsher sentence enhancements on those defendants who are convicted of three or more violent felonies. Ark. Code Ann. § 5-4-501 (d)(1) (Supp. 2003). Benson’s proposed construction of Ark. Code Ann. §§ 5-4-501 (a) and (d) is not persuasive because he was convicted of three violent felonies. Thus, it does not appear that the distinction between subsections (a), (b), and (d) lies with the number of times the defendant' has entered and exited the penitentiary or the number of criminal episodes he has been involved in, but instead hinges on the number of previous violent felony convictions as defined in subsection (d)(2) of the statute. This construction becomes more apparent when we consider “that the provisions of the Arkansas Habitual Criminal Statute, to which Ark. Code Ann. § 5-4-501 (d)(1) is a relatively recent addition, are not deterrent, but punitive in nature.” Beavers v. State, 345 Ark. 291, 299, 46 S.W.3d 532, 538 (2001). Moreover, the legislature omitted the “separate and distinct” language in the 1997 amendment, which counters Benson’s argument that subsection (d)(2) should be construed to require at least two prior, separate convictions.
Benson further relies on Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), for the proposition that it is improper to consider multiple convictions arising from one criminal incident for purposes of enhancing a sentence. In Tackett, supra, the appellant struck a vehicle causing it to lose control and crash. One of the passengers was killed instantly. Another passenger was injured and went into a coma. The appellant was charged with manslaughter and leaving the scene of an accident for the death of the first passenger. The second passenger later died, and the appellant was again charged with manslaughter. At the second trial, the trial court permitted the State to use the first manslaughter and leaving-the-scene convictions to enhance the sentence for the appellant’s second manslaughter conviction. On appeal, the appellant argued that the trial court erred in allowing the State to use a conviction from the same incident to enhance the second manslaughter conviction. The supreme court agreed that it was improper for the trial court to permit the State to use the convictions arising from the same incident to enhance the sentence for the second manslaughter conviction. The supreme court stated:
The obvious intent of the Act is to enhance punishment of a party who has a habit of criminal conduct. The manslaughter charge in connection with the death of Nancy House and the charge for leaving the scene of the accident for which Tackett was previously convicted and the manslaughter charge in connection with the death of Denise Barrentine in the case at bar all arose from Tackett’s single act of recklessly driving his car into the victim’s car. To utilize these prior convictions arising from one single act to enhance punishment pursuant to the Habitual Offender Act contravenes fundamental fairness and due process. Simply put, there is nothing habitual about the commission of a single criminal act resulting in multiple charges and convictions.
Id. at 25-26, 766 S.W.2d at 412-13.
However, Benson’s case is distinguishable from Tackett, supra, in which the State attempted to use a prior conviction from a single criminal act to enhance a conviction arising from the same criminal act. In Benson’s case, the State did not use convictions from the same criminal episode. Rather, it used the three prior convictions stemming from his January 2003 trial for aggravated robbery to enhance his sentence in an unrelated terroristic threatening case. The two situations are not similar, and the holding in Tackett, supra, simply does not apply.
To the extent that Benson challenges the State’s ability to charge him with three separate counts of aggravated robbery for one criminal episode, this is not an issue that can be addressed in the present appeal; we are limited instead to a consideration of whether all three of the prior convictions can be considered under the violent-felony enhancement statute.
Moreover, Tackett, supra, is a 1989 opinion, and Ark. Code Ann. § 5-4-501 (d) was amended in 1997. Under the rules of statutory construction, we presume that the legislature is fully aware of prior legislation and case law under preexisting law. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2002). We must presume that when amending section 5-4-501 in 1997, the legislature was fully aware of the supreme court’s interpretation of section 5-4-501 as requiring convictions arising from separate criminal acts, and that it was the legislature’s intent to abandon this interpretation by omitting the “separate and distinct prior occasion” language.
Accordingly, because Benson had previously been convicted of three felonies involving violence, the trial court did not err in denying his motion to dismiss the “three strikes” enhancement.
Affirmed.
Gladwin and Bird, JJ., agree.
Under the “three-strikes” enhancement law, Benson’s sentencing range for the Class B felony was thirty (30) to sixty (60) years. Under the normal habitual offender statute, the sentencing range for a Class B felony is five (5) to thirty (30) years.
In that case, Benson was convicted of three counts of aggravated robbery for using a firearm while stealing personal property simultaneously from three different victims, and was also sentenced to thirty years. The incident occurred on March 29,2002, one week prior to the shooting incident involved in the instant case. In an unpublished opinion, this court affirmed the robbery convictions on March 31,2004. The thirty-year sentence in the instant case is consecutive to the sentence imposed in the January conviction.
Although not an issue in the case now before us, in Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1998), the supreme court upheld seven separate terroristic threatening convictions arising out of one incident, because there were seven different victims and because terroristic threatening was not defined as a “continuing course of conduct” pursuant to Ark. CodeAnn.§ 5-1-110(a)(5). Aggravated robbery is likewise not a continuing offense. Rhodes v. State, 293 Ark. 303, 742 S.W.2d 911 (1988). | [
112,
-6,
-63,
-66,
9,
65,
56,
-72,
82,
-121,
113,
115,
101,
-49,
5,
121,
99,
123,
85,
121,
-16,
-73,
55,
65,
-30,
-69,
-79,
-45,
-78,
111,
-4,
-108,
28,
112,
-54,
-43,
38,
64,
-25,
92,
-54,
-127,
-85,
69,
83,
2,
44,
47,
68,
11,
117,
-114,
-93,
43,
-102,
-50,
9,
104,
75,
45,
82,
-71,
-103,
-49,
-23,
16,
-93,
36,
-101,
4,
-14,
46,
-100,
61,
0,
120,
115,
18,
-126,
116,
109,
25,
13,
98,
98,
0,
21,
79,
-84,
-88,
63,
63,
-115,
-89,
-104,
104,
67,
12,
-105,
-76,
126,
-108,
14,
-2,
119,
78,
49,
108,
-123,
-49,
-76,
-111,
45,
40,
22,
-6,
-29,
37,
16,
117,
-58,
-26,
84,
85,
119,
-97,
-121,
-11
] |
Larry D. Vaught, Judge.
Terri Key, the mother of Taylor Key, appeals from the dismissal of her complaint against a Catholic school in West Memphis that Taylor attended for over two years, its current and former teachers and administrators, and the Bishop of the Catholic Diocese of Little Rock. She argues on appeal that she stated claims for breach of contract, outrage, breach of fiduciary duty, negligence, and gross negligence. We affirm the circuit court’s decision in all respects.
In her complaint, appellant alleged that Taylor, who was born in 1992, had been diagnosed as having Tourette’s syndrome, “OCD,” and “ADHD.” Appellant was not pleased with Taylor’s experience in the Marion public schools, and she enrolled him in the second grade at St. Michael’s Catholic School for the school year 1999-2000. Taylor remained at St. Michael’s until just before Christmas of the fourth grade, when the school forced appellant to withdraw him because of his persistent behavior problems and because appellant purportedly caused trouble with other parents who, like appellant, felt that their children were not being treated well by the school.
On December 16, 2002, appellant filed this action in the Crittenden County Circuit Court, individually and on Taylor’s behalf, against appellees St. Michael’s; its principal, Steve Coryell; its former principal, Sister Georgia Felderhoff; his second-grade teacher, Lisa Hood; his third-grade teacher, Sister Christopher Flowers; Mary Jo Dagastino; Sara Wilbanks; and the Bishop of the Catholic Diocese of Little Rock. The gist of her complaint was that Taylor’s special educational needs were not met at St. Michael’s. She asserted causes of action for breach of contract, intentional infliction of emotional distress (outrage), breach of fiduciary duty, negligence, and gross negligence. On January 8, 2003, appellees filed a motion to dismiss for failure to state facts on which relief may be granted under Ark. R. Civ. P. 12(b)(6). Appellant filed a response to this motion and a brief, to which she attached a copy of the school handbook. She also filed a motion for leave to amend the complaint on February 10, 2003, and attached a proposed amended complaint to her motion. The amended complaint was not signed or filed. The court took no action on her motion for leave to amend.
On August 18, 2003, the circuit court granted appellees’ motion to dismiss on all counts. The court stated that appellant did not allege facts arising out of a contractual obligation for which appellees would be obligated to appellant or her son; that appellant failed to state incidences of specific conduct so outrageous in nature as to go beyond all possible bounds of decency and to be regarded as intolerable in a civil society; that appellant failed to establish the existence of a fiduciary duty; that she failed to establish a standard of care owed or breached by appellees; and that she failed to state facts demonstrating any intentional failure on the part of any appellee to perform a manifest duty in reckless disregard of the consequences. From that dismissal, appellant pursues this appeal.
In reviewing the circuit court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Travelers Cas. & Sur. Co. of Am. v. Arkansas State Highway Comm’n, 353 Ark. 721, 120 S.W.3d 50 (2003). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint and the pleadings are to be liberally construed. Id. However, Arkansas law requires fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Rippee v. Walters, 73 Ark. App. 111, 40 S.W.3d 823 (2001). According to Ark. R. Civ. P. 8(a)(1), a pleading that sets forth a claim for relief shall contain a statement in ordinary and concise language of facts showing that the pleader is entitled to relief. Rule 12(b)(6) provides for the dismissal of a complaint for failure to state facts upon which relief can be granted. These two rules must be read together in testing the sufficiency of a complaint. Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Country Corner Food & Drug, Inc. v. First State Bank & Trust Co., 332 Ark. 645, 966 S.W.2d 894 (1998).
Appellant argues throughout her brief that the circuit court should have made findings of fact. We disagree. As stated above, when a motion to dismiss has been made, the circuit court resolves all inferences in favor of the complaint and does not engage in determining questions of fact. Further, Ark. R. Civ. P. 52(a) provides that findings of fact are unnecessary on decisions of motions brought under the rules of civil procedure, in any event, appellant did not make this argument to the circuit court, and we need not consider an argument made for the first time on appeal. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). When a party fails to ask the court to make findings of fact, that issue is waived. See Hickman v. Culberson, 78 Ark. App. 96, 78 S.W.3d 738 (2002).
Appellant also argues throughout her brief that the circuit court should have granted her motion for leave to amend the complaint. Appellant, however, failed to obtain a ruling on her motion. Her failure to do so is a procedural bar to our consideration of that issue on appeal. Travelers Cas. & Sur. Co. of Am. v. Arkansas State Highway Comm’n, supra; Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002); Brown v. Fountain Hill Sch. Dist., 67 Ark. App. 358, 1 S.W.3d 27 (1999).
Appellant additionally argues that the circuit court should have considered her amended complaint and found it sufficient to state claims for relief under Rule 12(b)(6). Although Arkansas Rule of Civil Procedure 15(a) provides that a party may amend her pleadings at any time without leave of the court, appellant did not file her amended complaint. She had from January 8, 2003, when appellees’ motion to dismiss was filed, until August 18, 2003, when the order of dismissal was entered, to file the amended complaint but did not do so. Obviously, the unsigned and unfiled copy of the amended complaint that appellant attached to her motion for leave to amend was ineffective. See David Newbern & John Watkins, Arkansas Civil Practice & Procedure § 8-16 (3d ed. 2002). Therefore, the circuit court need not have considered it.
Appellant argues that the trial court erred in concluding that she did not establish claims for (1) breach of contract, (2) outrage, (3) breach of fiduciary duty, (4) negligence, and (5) gross negligence.
Breach of Contract
The elements of a contract are: (1) competent parties; (2) subject matter; (3) legal consideration; (4) mutual agreement; (5) mutual obligation. Cash In A Flash Check Advance of Ark., LLC v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002). Arkansas law recognizes that, to have a valid contract, all terms should be definitely agreed upon, Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992), and the terms must be “reasonably certain.” ERC Mtg. Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990). Terms are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. Id.
In Ross v. Creighton University, 957 F.2d 410 (7th Cir. 1992), the court recognized that, in Illinois, the relationship between a student and an educational institution is, in some of its aspects, contractual. The court cautioned, however, that to state a claim for breach of contract, the plaintiff must do more than simply allege that the education was not good enough. Instead, he must point to an identifiable contractual promise that the defendant failed to honor; the essence of the complaint would not be that the institution failed to perform adequately a promised educational service but that it failed to perform that service at all. In Ross, supra, the court held that the plaintiff, who set forth specific promises that the defendant failed to honor, stated a breach-of-contract claim.
Appellant’s original complaint alleged the following facts about the school’s agreement with appellant: (1) Sister Georgia assured appellant that her son’s educational and special needs would be met and that he would be in a loving, supportive environment; (2) Steve Coryell told appellant during the summer before Taylor entered fourth grade that he would work with her to improve matters and that he talked her into re-enrolling Taylor; (3) Mr. Coryell told appellant that Taylor’s fourth-grade teacher had twenty-seven years’ experience in the Memphis schools and “could handle things.” Here, because the terms of the purported contract set forth in the complaint were so indefinite, we have no choice but to hold that there was no contract between the parties of sufficiently definite terms by which a remedy could be fashioned in the event of a breach. Accordingly, the circuit court correctly concluded that appellant failed to state a claim for breach of contract.
Even if we were to consider the unfiled amended complaint, the result would be the same. In addition to the above allegations, appellant stated:
A valid contract was signed by all parties and all parties were competent. In said contract, [appellant] agreed to pay tuition as required by the contract, starting with a $200.00 deposit, and that, in return, the school would provide an education at the appropriate grade level for her son, Taylor Key, and provide the services needed to meet the special needs of her son. In addition, this contract was bolstered by a student handbook that was distributed to all parents and required the signatory acceptance of same. This said handbook sets out the educational philosophy and in part reads: “... to strive to provide a Christian atmosphere and to promote the maximum spiritual, intellectual, emotional, social and physical growth of each student. As a Catholic school, St. Michael’s exists to free students from fear and ignorance enabling them to love God, themselves, and other [sic] eagerly and openly. The school recognizes the rights of individuals as children of God deserving honor and respect ...” This same handbook sets out goals and objectives for the educational process. These include: “(1) To provide St Michael Catholic School students a well-rounded academic program with Catholic fundamentals as its core; (2) To provide quality education ...; (3) To instill a positive attitude towards the learning process while provid ing students with the opportunity to achieve academic success; (4) To promote Christian values and moral behavior; (5) To promote unity, love, respect, and understanding among all people regardless of race, religion, or socio-economic group; (6) To foster positive self-esteem and mature responsible behavior ...; (7) To encourage teachers to strengthen their commitment and professional growth.” Attached to each of these student handbooks was a sheet entitled “Parent-Student Statement of Responsibility.” This document was signed and returned to school as an acknowledgment and a further binding of the contractual relationship between the student, the parent and the school.
Arkansas courts have never held that a contract between a student and a school or an educator is created by a student handbook. Even in the context of employment cases, a handbook can create an.enforceable contract only in limited circumstances. See Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991). Other state courts have held that the materials provided to a student, including enrollment agreements and catalogs, may become part of an agreement between a student and an educational institution. See Christensen v. Southern Normal Sch., 790 So. 2d 252 (Ala. 2001); Cencor, Inc. v. Tolman, 868 P.2d 396 (Colo. 1994). Here, however, the handbook was not appended to the complaint and thus was not considered by the court. In any event, even if the handbook was a part of the “agreement” that appellant had with appellees, its terms were so vague and general that they are not enforceable.
Outrage
The four elements that are essential to establish liability for the tort of outrage are: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiffs distress; (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000). Arkansas appellate courts give a narrow view to the tort of outrage and require clear-cut proof to establish the elements in outrage cases. Id.; Brown v. Fountain Hill Sch. Dist., supra (rejecting an injured student’s outrage claim against school district, its officials, and the employee who removed a table saw’s blade safety guard). This cause of action was not intended to provide a remedy for every slight insult or indignity one must endure. Miller v. Kroger Co., 82 Ark. App. 281, 105 S.W.3d 789 (2003).
Without citation to authority, appellant argues that the standard should be what a fourth-grade child with neurological problems would have perceived. Although the standard is tied to what a reasonable person could endure, Taylor’s problems would be relevant as to whether he was more vulnerable, and thus more susceptible, to outrageous conduct. See Crockett v. Essex, supra. Appellant also contends that we should consider the “totality of the circumstances.” In Thornton v. Squyres, 317 Ark. 374, 877 S.W.2d 921 (1994), the appellant argued that, viewed within the totality of the circumstances, the appellee’s conduct could be regarded as outrageous. Although the supreme court disagreed with her view of the facts, it did not disapprove of her “totality of the circumstances” argument in the context of an outrage case.
According to appellant, the following actions taken by appellees are sufficient to state a claim for the tort of outrage: (1) Taylor’s second-grade teacher informed appellant that she was a teacher, not a babysitter, and referred to Taylor as the “class clown”; (2) his third-grade teacher told him that he was bad and that his behavior was unacceptable; (3) his third-grade teacher yelled at Taylor and told him to shut up and that he was driving her crazy; (4) the sisters prayed for Taylor to get “better control”; (5) Taylor’s fourth-grade teacher yelled at him and knocked his books off his desk; (6) Taylor did not receive an award; (7) Taylor missed the Christmas party after he was involuntarily withdrawn from the school; (8) Taylor’s fourth-grade picture was not in the yearbook.
Even if all of these allegations are true, whether considered separately or together, they do not satisfy the legal elements of a claim for the tort of outrage. Although Taylor may have experienced guilt, reduced self-esteem, frustration, and disappointment, we cannot say that, as a matter of law, appellees’ conduct was so outrageous in character or so extreme in degree as to go beyond all possible bounds of decency and to be regarded as utterly intolerable in a civilized society. For these reasons, we affirm the dismissal of appellant’s outrage claim.
Fiduciary Duty
Appellant further argues, without citation to any supporting authority, that the relationship of a student with special needs and an educator who represents that he or a school can meet those needs and provide an education appropriate for the student’s age and grade level is of a fiduciary nature. We are aware of no case in Arkansas that supports appellant’s argument. A person standing in a fiduciary relationship with another is subject to liability to the other for harm resulting from a breach of the duty imposed by the relationship. Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996). Breach of fiduciary duty involves betrayal of a trust and benefit by the dominant party at the expense of one under his influence. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002), cert. denied, 537 U.S. 1003 (2002). It is vital, however, that the existence of a fiduciary duty be established. The issue of what duty is owed, if any, is always a question of law. Long v. Lampton, supra. In Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996), the supreme court held that a defendant priest did not owe a fiduciary duty to a parishioner. We cannot say that appellees owed appellant and Taylor any greater duty than a priest owes a parishioner. See also Hendricks v. Clemson Univ., 353 S.C. 449, 578 S.E.2d 711 (2003); Shapiro v. Butterfield, 921 S.W.2d 649 (Mo. Ct. App. 1996).
We affirm the dismissal of appellant’s claim for breach of fiduciary duty.
Educational Malpractice
Appellant also argues that this is a case of “professional negligence.” She points to no Arkansas cases, however, that have applied that theory in the context of a student/educator relationship. To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty that the defendant owed the plaintiff under the circumstances surrounding them. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Id. The question of what duty, if any, is owed by one person to another is always a question of law. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998).
Most out-of-state cases that have addressed this issue reject the existence of an “educational malpractice” cause of action. See Hendricks v. Clemson Univ., supra; Christensen v. Southern Normal Sch., supra; Page v. Klein Tools, Inc., 461 Mich. 703, 610 N.W.2d 900 (2000); Blane v. Alabama Commercial College, Inc., 585 So. 2d 866 (Ala. 1991); D. S. W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554 (Alaska 1981); Miller v. Loyola Univ. of New Orleans, 829 So. 2d 1057 (La. Ct. App. 2002); Vogel v. Maimonides Acad. of W. Conn., Inc., 58 Conn. App. 624, 754 A.2d 824 (2000); Tubell v. Dade County Pub. Schs., 419 So. 2d 388 (Fla. Dist. Ct. App. 1982). The cases dealing with this issue generally hold that a cause of action seeking damages for acts of negligence in the educational process is precluded by considerations of public policy, among them being the absence of a workable rule of care against which the defendant’s conduct may be measured, the inherent uncertainty in determining the cause and nature of any damages, and the extreme burden that would be imposed on the resources of the school system and the judiciary. See Hunter v. Board of Educ. of Montgomery County, 292 Md. 481, 439 A.2d 582 (1982); Rich v. Kentucky Country Day, Inc., 793 S.W.2d 832 (Ky. Ct. App. 1990). On the other hand, the Supreme Court of Iowa recognized such a cause of action in limited situations in Sain v. Cedar Rapids Community School District, 626 N.W.2d 115 (Iowa 2001).
We find the majority view more persuasive and choose not to recognize a cause of action for educational malpractice in Arkansas. Therefore, we affirm the circuit court on this issue.
Gross Negligence
We also hold that appellant did not state a cause of action for gross negligence, which is the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. Doe v. Baum, supra. As with negligence, there must be a duty imposed by law for this claim to survive a motion to dismiss. Because appellant failed to establish such a duty, the court’s dismissal of this claim is affirmed.
Affirmed.
Bird and Crabtree, JJ., agree.
Appellant identifies these acronyms in her statement of the case as “obsessive compulsive disorder” and “attention deficit hyperactivity disorder.” | [
-112,
-20,
-36,
44,
8,
97,
90,
46,
115,
-125,
37,
-45,
-83,
-16,
20,
105,
-25,
111,
-63,
104,
-45,
-74,
66,
32,
-78,
-9,
-72,
-59,
-71,
79,
-12,
-1,
88,
112,
-118,
93,
-58,
75,
-51,
80,
-122,
3,
-120,
-58,
91,
-61,
40,
59,
26,
15,
53,
-34,
-77,
45,
56,
75,
108,
46,
-7,
-87,
64,
17,
25,
23,
127,
5,
-69,
-76,
-98,
-123,
66,
42,
-38,
48,
51,
-84,
51,
-78,
-62,
84,
107,
-119,
-115,
100,
98,
3,
-88,
-27,
-8,
-119,
111,
62,
61,
-90,
-101,
73,
99,
5,
-73,
-100,
116,
80,
13,
124,
67,
12,
22,
108,
44,
-113,
80,
-95,
-113,
-88,
94,
35,
-29,
27,
48,
81,
-49,
-76,
92,
67,
58,
-101,
-34,
-97
] |
Larry D. Vaught, Judge.
The appeal and cross-appeal in this case question the amount of damages awarded for the conversion of a building, whether that building was a fixture, whether the owners of the building should be allowed to demolish the building, and whether the owners were entitled to an award for their attorney’s fees. The trial court found that the building was not a fixture and allowed its removal. The trial court also awarded damages and ruled that each party was responsible for its own attorney’s fees and costs. We affirm.
Appellants B.S. Brown and C.G. Watkins formed a partnership, B&W Partnership. The partnership leased land from Burlington Northern Railroad (and its predecessors in title) in Crit-tenden County and erected a building to house a liquor store on the property. Paragraph fourteen of the lease provided that either party may cancel the lease upon thirty days’ notice and that appellants would have thirty days in which to remove any improvements not owned by Burlington and restore the ground to a condition acceptable to Burlington. In 1997, appellants subleased the building to BBBC Enterprises, LLC, and Robert Blake, individually, for use as a check-cashing store. Robert Blake is the father of appellee Dwight Blake, who was also involved in BBBC Enterprises. At some point, Burlington conveyed the property to ANT, LLC, which later conveyed the property to appellee by deed dated December 28, 1999.
Appellee, through attorney John Morse, on December 31, 1999, sent appellants a letter by certified mail advising appellants that D&E Properties had purchased the property from ANT and had obtained an assignment of the lease. The letter further advised appellants of the termination of the lease in accordance with paragraph fourteen. The letter also stated that, “in the event B&W elects not to remove any of the improvements on the property, our client is willing to hold B&W harmless for its failure to remove such improvements.”
On February 3, 2000, appellee filed suit seeking injunctive relief. The complaint alleged appellee’s purchase of the land and that notice of the termination of the lease had been given to appellants. The complaint also alleged that, pursuant to paragraph fourteen of the lease, title to the building vested in appellee upon appellants’ failure to remove the building within thirty days of notice of termination of the lease. The complaint further alleged that appellants intended to commence demolition of the building and that appellee would suffer irreparable harm if the building was destroyed. An ex parte order enjoining appellants from proceeding with the removal or destruction of the building issued the same day and set a hearing for February 9, 2000.
Appellants answered, asserting that the notice of termination of the lease was improper because it was given in the name of D&E Properties and not in the name of the property owner(appellee. Appellants admitted that they planned to destroy the building and asserted that appellee was engaged in a plan to mislead appellants and the trial court as to the true owner of the property so that appellee could obtain the building without paying for it. Appellants also filed a counterclaim seeking both compensatory and punitive damages for appellee’s fraudulent misrepresentations.
Following the February 9 hearing, the trial court dissolved the ex parte order of February 3, 2000, finding that appellee gave an improper notice of the termination of the lease, that appellee could not show irreparable harm or a likelihood of success on the merits, and that equity abhors a forfeiture, which would result because appellants were prepared to remove the building but were prevented from doing so by issuance of the restraining order. The trial court reserved the issue of damages for further hearing.
At trial, appellee admitted that paragraph fourteen of the lease provides that appellants shall remove all property or improvements not owned by Burlington within thirty days of termination of the lease and, if not removed, appellants grant Burlington the absolute right to keep, convey, or destroy the property in any manner it chooses. He also admitted that attached to his petition was a'letter from his lawyer, John Morse, in which Morse made a false statement when he asserted that D&E Properties owned the land. Blake stated that the land was never owned by D&E Properties and that, when he signed the verified petition, he had already received a letter from Mr. Brown indicating that Brown did not realize who actually owned the property. Blake admitted that he never talked to Brown to disabuse him of his understanding between Brown’s January 17, 2000 letter and February 3, 2000, when appellee filed his petition. Blake stated that there was a sublease between appellants and a check-cashing store controlled by appellee and his father. Appellee stated that his father made an offer that, if appellants were to come into possession of the property, he (Robert Blake) would be willing to pay a reasonable price for the property. However, appellee stated that he did not know whether his father ever told appellants that he would buy the building from them.
Appellee testified that, after ANT purchased the property, he met with appellant Brown to discuss buying the building. Blake stated that Brown showed him a letter that was a part of the correspondence between Brown and ANT concerning purchase of the property. Blake stated that, after his last meeting with Brown, Brown informed him that ANT had requested his (appellee’s) name to contact appellee to discuss the purchase further, and that he made contact with ANT immediately through his attorney, Pat Mason, and that Mason arranged the transaction by which Blake purchased the property. Blake admitted that, when he purchased the property, he purchased it subject to the lease between Burlington and appellants.
Blake admitted that he was not aware of any correspondence advising appellants that he, appellee, was the true owner of the property and that the only notice appellants received of the termination was Morse’s letter of December 31. Blake also stated that paragraph fourteen of the lease did not lead him to believe that the building was owned by appellants; it was his position that the building belonged to the land and he would not allow appellants to remove the building.
Blake admitted that he has used the building since February 1, 2000. He also admitted receiving $1,800 per month rent from the check-cashing store under the lease between D&E Properties and the check-cashing store. He stated that he never had the opportunity to inform Brown that he had purchased the property but that there was no particular reason why he did not want to directly tell appellants that he had purchased the property. Blake stated that he did not think it was wrong for Morse to represent to the court that he (appellee) was D&E Properties.
Billy Brown, a member of B&W Partnership, testified that the partnership built a building in 1976 for the purpose of operating a liquor store. He stated that this building was located on the property appellee purchased from ANT. Brown stated that he did not own the real estate when the building was built but that the partnership held leases with the railroad. Brown testified that they ultimately leased the building to an entity in which the Blakes had an interest. Brown testified that the construction of the building was paid for by the partnership and that the building had been fully depreciated.
He admitted to having approximately six conversations with appellee about buying the property. He stated that ANT contacted him, advising that they had purchased the property from the railroad and wanting to know if he would be interested in buying it, that he communicated this to appellee and, when he told appellee that he wanted to buy the property, appellee stated that he also was interested in purchasing it. Brown admitted that appellee did not impede his efforts to purchase the property from ANT. He stated that he could not purchase it from ANT simply because he and ANT could not agree on a price. He stated that it was only after negotiations had broken down with ANT that he told appellee about ANT’s ownership of the property and its desire to sell the property to somebody. Brown admitted not having paid rent to appellee for the last three years under the original lease. He admitted that he was not able to negotiate the purchase of the property from ANT and advised appellee that he had been unsuccessful. He stated that he suggested to appellee that it might be better if he (appellee) negotiated for the purchase himself. Brown also stated that he made it known to appellee that, if appellee purchased the property and he could not sell the building to appellee, he was going to tear the building down.
He stated that his options were to either purchase the property for $32,500 or sell the building to appellee who could then consider purchasing the real estate. Brown testified that, prior to service of the injunction, he was unaware that appellee owned the property because he believed that D&E Properties owned the property and did not have any reason to believe that appellee was D&E Properties. He admitted that, after the temporary order was rescinded, he attempted to demolish the building but was prevented from doing so. He also stated that he never agreed that appellee could use the property after February 2000. Brown stated his opinion that the fair market value of the rental property was $1,000 per month and that appellee and the other entities had it rent free for three years. He stated that he did not want appellee to keep the building if the court ruled that it was his building. He stated that he would like to receive the fair market rental value for the property plus the insurance and other payments he has had to make. Brown stated that he never received money back from appellee for the prepaid rent that he had paid to ANT under the lease assigned to ANT by the railroad. Brown stated that the building cost approximately $40,000 to build in 1976. He admitted that it was a permanent building, constructed with concrete cinder blocks. He also admitted that the only way to remove the building is to demolish it. He stated that it is not a portable or modular building. He admitted that the requirement to tear down the building was the railroad’s requirement and that it was not something that he had specific negotiations about.
In its judgment, the trial court found that appellee and his attorney, John Morse, misrepresented the true owner of the property to appellants and did not give proper notice of termination of the lease until the ex parte order and complaint were served upon appellants. The trial court awarded compensatory damages of $790 for an additional month’s rent, $195.82 in property taxes, and $785 for insurance premiums, for a total of $1,770.82. The trial court also found that appellee tried to acquire the building by deceit after being unsuccessful in buying the building. The trial court also noted that appellee had acquired the land and had occupied the building for two years without paying rent. The trial court awarded appellants punitive damages in the sum of $10,000. The trial court, noting that parties are free to contract as they will and that it is the court’s duty to enforce contracts as written, rejected appellee’s argument that the building was a fixture. The court then concluded that appellants had the right under the contract to remove the building and allowed appellee ninety days to vacate the building. Appellants were then given thirty days after appellee vacated the building to tear down the building. This appeal and cross-appeal followed.
Appellants raise two points on appeal: first, that the trial court’s award of compensatory and punitive damages was insufficient as a matter of law and, second, that the trial court erred in failing to award an attorney’s fee. Appellee also raises two points on cross-appeal: that the trial court erred in allowing appellants to take possession and demolish the building because it had become a fixture to the realty, and that there was insufficient evidence upon which to support an award of compensatory or punitive damages.
When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is whether the trial court’s findings are clearly erroneous, or clearly against the preponderance of the evidence. Buck v. Gillham, 80 Ark. App. 375, 96 S.W.3d 750 (2003). Recognition must be given to the trial judge’s superior opportunity to determine the credibility of the witnesses and the weight to be given to their testimony. Gosnell v. Independent Serv. Fin., Inc., 28 Ark. App. 334, 774 S.W.2d 430 (1989).
We will discuss the points out of order in what we believe to be a more logical manner. Appellee, arguing that the building became a fixture, first challenges the trial court’s finding that appellants would be allowed to demolish the building. According to appellee, the building is a fixture because it was attached to the realty and could be removed only by destroying the building. The trial court found that, because the parties can contract in any manner in which they choose, appellants should be allowed to remove the building. Although it is true that there are cases, cited by appellee, in which similar installations were found to have been fixtures, rather than personalty, see e.g., Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W.2d 949 (1979); Dobbins v. Lacefield, 35 Ark. App. 24, 811 S.W.2d 334 (1991); Barron v. Barron, 1 Ark. App. 323, 615 S.W.2d 394 (1981), it does not follow that the building is a fixture as a matter of law. The question of whether particular property constitutes a fixture is usually a mixed question of law and fact. Corning Bank, supra. In determining whether items are chattels or fixtures, it is necessary to consider: (1) whether the items are annexed to the realty; (2) whether the items are appro priate and adapted to the use or purpose of that part of the realty to which the items are connected; and (3) whether the party making the annexation intended to make it permanent. McIlroy Bank & Trust v. Federal Land Bank, 266 Ark. 481, 585 S.W.2d 947 (1979); Adamson v. Sims, 85 Ark. App. 278, 151 S.W.3d 23 (2004); Garmon v. Mitchell, 53 Ark. App. 10, 918 S.W.2d 201 (1996). Appellee’s argument focuses on the permanent nature of the building and not on appellants’ intent, as evidenced by the lease, when erecting the building. The supreme court has indicated that the intentions of the party making the annexation is the most important test. Pledger v. Halvorson, 324 Ark. 302, 921 S.W.2d 576 (1996); Kearbey v. Douglas, 215 Ark. 523, 221 S.W.2d 426 (1949).
In the case at bar, it is clear that neither appellants nor Burlington intended for the annexation to be permanent because the lease agreement expressly provided that the appellants should have the right to build on the property and, within thirty days of termination of the lease, “shall remove all property or improvements not owned by Burlington.” Appellee tries to distinguish Garmon by arguing that the lease in that case provided that the lessee shall have the right to remove the building while, in the present case, appellants had the obligation to remove the building. However, this is a distinction without a difference because rights and obligations are two sides of the same coin: if appellants exercise their right to erect a building on the land, then their obligation arises to remove the same building on termination of the lease. Given this clear expression of the intent of the party making the annexation to treat the building as a chattel, this court cannot say that the trial court clearly erred in holding that it was not a fixture. See Garmon, supra.
We affirm on this point.
Both parties challenge the trial court’s award of damages, appellants arguing that the award was insufficient and appellee arguing that there was insufficient evidence on which to base an award of damages.
Conversion is a common-law tort action for wrongful possession or disposition of another’s property. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). In order to establish liability for conversion, a plaintiff must prove that the defendant wrongfully committed a distinct act of dominion over the property of another, which is a denial of or is inconsistent with the owner’s rights. Id. Where the defendant exercises control over the goods in exclusion or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s own use or another’s use. Id. Conscious wrongdoing is not the requisite intent for conversion; rather what is required is that a person has the intent to exercise control or dominion over the goods. Id. To be sufficient, the complaint must state that the plaintiff had a property interest in the subject goods and that the defendant wrongfully converted them. Big A Warehouse Distribs. v. Rye Auto Supply, 19 Ark. App. 286, 719 S.W.2d 716 (1986). The property interest may be shown by a possession or a present right to possession when a defendant cannot show a better right. Id. Ordinarily, the proper measure of damages for conversion of property is the market value of the property at the time and place of its conversion. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979).
Appellee argues that there was not sufficient evidence to justify an award of either compensatory or punitive damages. It was undisputed that appellee failed to give proper notice of termination of the lease to appellants. It is also undisputed that appellants were not allowed to regain possession of the building by appellee’s having obtained the ex parte restraining order and have not been able to exercise control of the building since that time. Appellee, on the other hand, has been in possession of the building without appellants’ permission for some three years. As such, this was a conversion of appellants’ building, making appellee liable to pay damages. McQuillan, supra. See also Hofreiter v. Schwabland, 72 Wash. 314, 130 Pac. 364 (1913),where the converted property was a house.
Appellants argue that the amount of damages was insufficient and that the trial court should have awarded them the fair market value of the building, which they assert was $40,000, or the rental value of the property of $1,800 per month. However, the market value of the property is not the only measure of the damages recoverable in an action for conversion; the circumstances of the case may require a different standard, including a measure of the expenses incurred as a result of the conversion. First Nat’l Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984). In Frey, the bank refused to pay a certificate of deposit and was held liable for conversion of $491.74 in interest the certificate owners would have received, together with $35,000 in punitive damages. The $491.74 amount was actual damages suffered by the certificate owners because of the bank’s failure to pay the certificate plus interest. Alternatively, in Holland v. Walls, 3 Ark. App. 20, 621 S.W.2d 496 (1981), we held that the seller of an abstract company exercised dominion over, and thereby converted, a duplicate copy of the tract books she had sold to the appellant. This court reversed the trial court and remanded for an award of damages based on the seller’s unjust enrichment through the use of the copies of the tract books.
We believe that the trial court was using the actual damages measure found in Frey, supra, when it awarded appellants damages of $790 for an additional month’s rent, $195 in property taxes, and $785 in insurance premiums. Because the lease allowed for the termination of appellants’ tenancy upon thirty days’ notice, we cannot say that this award is clearly erroneous, even though the court could have used a different measure of damages in the first instance, such as the amount by which appellee was unjustly enriched. See Holland, supra.
Both parties also take issue with the award of punitive damages. Punitive damages are a penalty for conduct that is malicious or done with the deliberate intent to injure another. Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998). Malice does not necessarily mean hatred; it is rather an intent or disposition to do a wrongful act greatly injurious to another. See Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000). The fraud found by the trial judge in this case is the type that was intended to cause injury to another. The judge found that appellee and his attorney misrepresented the true ownership of the land to appellants in order to obtain a building without paying for it. See Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993) (holding that where there is substantial evidence of deliberate misrepresentation, fraud, or deceit, the issue of punitive damages may be submitted to the fact-finder). Here, appellee admitted that Morse’s letter to appellants contained a false statement that D& E owned the land. Further, this same misrepresentation was repeated when appellee obtained the ex parte order preventing appellants from removing the building. Thus there is a proper foundation for an award of punitive damages. The supreme court has also refused to set a particular formula for measuring punitive damages; rather, the calculation of those damages lies within the discretion of the fact-finder after due consideration of all the attendant circumstances. Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996). We cannot say that the amount of the punitive damages award is an abuse of the trial court’s discretion. It is, at 5.647 times the award of compensatory damages, within the single-digit rule. See Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003). We affirm on this point.
Appellants argue that they should have been awarded attorney’s fees, either as part of their damages in a conversion action or pursuant to statute, Ark. Code Ann. § 16-22-308. The general rule in Arkansas is that attorney’s fees are not awarded unless expressly provided for by statute or rule. Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993). Arkansas Code Annotated section 16-22-308 provides for a reasonable attorney’s fee in certain civil actions, including actions to recover for breach of contract. This statute does not, however, provide for the recovery of attorney’s fees in tort actions. Reed v. Smith Steel, Inc., 77 Ark. App. 110, 78 S.W.3d 118 (2002). The prevailing party in a conversion action is not entitled to an award of attorney’s fees. Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993).
In McQuillan, supra, the Arkansas Supreme Court drew a distinction between legal fees incurred in attempting to recover property and those incurred in litigating a conversion claim. It held that the secured party was not entitled to an award of attorney’s fees for its expenses incurred in litigating conversion and replevin claims, as opposed to the costs incurred in the recovery of the property itself. Here, the trial court could have awarded appellants their fees in attempting to recover possession of the building. Further, the trial court could have also awarded fees under section 16-22-308 because the case involved the interpretation of a written contract, the lease between appellants and Burlington, and the breach of that agreement.
A trial court is not required to award attorney’s fees and, because of the trial judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, appellate courts usually recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). A grant of attorney’s fees is an issue within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Chrisco, supra. Appellants have not shown that the trial court abused its discretion.
Affirmed on direct appeal; affirmed on cross-appeal.
Hart and Baker, JJ., agree. | [
-16,
106,
-47,
76,
-104,
-30,
50,
-72,
74,
-31,
39,
87,
-19,
-30,
65,
41,
-14,
93,
117,
123,
-61,
-13,
67,
99,
-106,
-77,
-45,
-59,
-79,
77,
112,
-41,
76,
32,
-62,
21,
-58,
-64,
-35,
-36,
14,
37,
57,
108,
-47,
65,
52,
-22,
0,
15,
17,
-35,
-73,
44,
24,
71,
72,
60,
111,
-71,
81,
-71,
-86,
5,
109,
23,
-95,
37,
-104,
-125,
120,
10,
-112,
53,
-128,
-24,
-13,
-92,
6,
116,
3,
-119,
-119,
98,
99,
0,
1,
-17,
-20,
-88,
38,
-68,
-97,
-89,
-112,
24,
83,
33,
-67,
-98,
116,
0,
-123,
-2,
-26,
4,
27,
108,
-123,
-50,
-10,
-73,
-121,
-8,
-98,
23,
-2,
3,
49,
116,
-49,
-54,
93,
-42,
57,
27,
-34,
-60
] |
Robert J. Gladwin, Judge.
Appellant Stephanie Miller ^appeals from an order of the Greene County Circuit Court that changed custody of the parties’ minor daughter, A.J., from appellant to the child’s father, appellee Ronnie Joiner. Appellant contends that the trial court erred in granting a change of custody in a dependency-neglect case that had been consolidated with a change-of-custody case. We affirm.
This cause of action originated as a dependency-neglect case when appellee Arkansas Department of Human Services (DHS) took emergency custody of A.J. and her half-brother, Z.M., on December 29, 2000. Z.M., only five weeks old at the time, had been physically abused while in appellant’s care, suffering severe bruising, two broken ribs, and a broken femur. The medical evidence indicated that some of these were old injuries. The abuse was allegedly committed by appellant’s brother when he was living in appellant’s home. Pursuant to appellant’s compliance with the case plan and court orders, Z.M. was eventually returned to appellant’s custody. Only .the custody of A.J. is at issue in this appeal.
On January 8, 2001, the trial court found that there was probable cause that the emergency conditions that necessitated removal of the children continued so that it was necessary that the children remain in the custody of DHS. The court granted appellee visitation rights as to A.J., his daughter, and ordered that a home study be conducted on appellee pursuant to his request for temporary custody.
Appellant and appellee had never married, but appellee had, in December of 1999, been adjudicated the natural and biological father of A.J. Since that time, appellee had paid child support and exercised visitation rights with A.J. When A.J. was removed from appellant’s home, appellee filed an answer and a petition, notifying the court that he had filed a petition for change of custody of A.J. He stated that he had not been given immediate notice of A.J.’s removal from appellant’s home and contended that emergency custody of A.J. should have been placed with him at the time of removal. He also contended that he was the proper person to have custody of A.J. during the pendency of the dependency-neglect matter and the change-of-custody case.
At the February 27, 2001, adjudication hearing, the trial court found the children to be dependent-neglected. A.J. was placed in the temporary custody of appellee, with the goal of the case continuing to be reunification with appellant.
On May 18, 2001, a review hearing was held, at which time the trial court found that continuation of custody of A.J. with her father was in the best interest of and necessary to the protection of her health and safety. This decision was based in part on the court’s consideration of a report filed by DHS employee Kim Simpson, which noted that A.J. had adjusted well to placement with her father. DHS recommended that A.J. remain in the custody of appellee. At the review hearing held on September 24, 2000, the court continued custody of A.J. with her father, and granted appellee’s petition to consolidate the change-of-custody and dependency-neglect proceedings. The court again continued custody of A.J. with appellee at the review hearings held on November 5, 2001, and December 3, 2001.
A final hearing was held on February 12, 2002. The trial court found there was clear and compelling evidence that there had been a material change in circumstances since the entry of the court’s order on December 10, 1999. That order had addressed the aforementioned paternity action and the child support and visitation rights regarding A.J. and her father, appellee Ronnie Joiner. In support of the decision finding a material change in circumstances, the court cited the following factors: A.J. was in the care and custody of appellant during the time in which the infant, Z.M., sustained serious physical injury; appellant persisted in her statement that she did not know how Z.M. received his injuries; she acknowledged that she had failed to protect her children; appellant had failed to comply with the court order requiring counseling; the relationship between A.J. and appellant’s husband had become very hostile and antagonistic; A.J. became anxious before visits with appellant; A.J. had adapted well to being in her father’s home; DHS reports indicated that A.J.’s progress in counseling had been slow; A.J. demonstrated aggressive behavior with dolls during play therapy, which escalated in October of2001 after she expressed that there were problems between herself and her step-father; A.J. had demonstrated no aggression toward her half-brother living with her in her father’s home, toward her half-sister living in her mother’s home, or toward other children she was around in daycare, but she had demonstrated aggression toward her half-brother Z.M.; and A.J. had resided with her father, appellee, for a period in excess of twelve months. The court also noted that appellant had refused to bring A.J.’s siblings to visitation at the DHS office, even though A.J. had asked her to do so. The court concluded that this conduct was evidence of the fact that appellant does not consider what is in A.J.’s best interest. Having found clear and compelling evidence of a material change in circumstances, the court then found that it would be in the best interest of A.J. to be in the custody of her father, subject to appellant’s visitation rights.
Appellant argues on appeal that the trial court erred in granting a change of custody in a dependency-neglect case that had been consolidated with a petition for. a change of custody. Appellant filed no response to appellee’s petition to consolidate the two matters, and the record reflects that the petition was granted by the court at the September 24, 2001, review hearing without objection from appellant. Appellant failed to preserve this argument for appeal and has thus waived any argument that the cases should not have been consolidated. See Seeco, Inc. v. Hale, 341 Ark. 673, 22 S.W.3d 157 (2000).
Even if the issue had been preserved for appeal, appellant would not prevail. Under Rule 42 of the Arkansas Rules of Civil Procedure, a court may order consolidation of all actions involving a common question of law or fact that are pending before the court. Appellant argues that there was an inherent conflict between the two matters, as the goal of the dependency-neglect proceeding was the child’s reunification with appellant, while the goal of the custody proceeding was to change custody to appellee. Appellant confuses the obviously opposing goals of the adversarial parties with the overall goal of the proceeding. Even though reunification is often the goal throughout much of a dependency-neglect proceeding, the supreme court has stated that it is not necessary to institute reunification if it proves to be against the best interest of the child. See Nance v. Arkansas Dep’t of Human Servs., 316 Ark. 43, 870 S.W.2d 721 (1994). In any case involving custody of a child, the primary consideration is the welfare and best interest of the child; all other considerations are secondary. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003). Regardless of the goals of the parties, or even the typical goal of a particular type of proceeding, the trial court is charged with reaching a decision that promotes the best interest of the child.
However, we believe it important to note that when a trial court chooses to consolidate matters that involve the custody of a child, the court may be required to address different criteria in determining the best interest of the child. In these situations, the trial court should determine under which theory it is proceeding and address the appropriate factors.
For example, where a trial court decides that a change of custody should be effected under the juvenile code, the court must follow the procedures and dispositions set forth in the code. In Nance v. Arkansas Department of Human Services, supra, the trial court had placed custody of the child with her father subsequent to her having been removed from the custody of her mother under a dependency-neglect proceeding. The trial court had concluded that although both parties were fit to raise the child, it was in her best interest to be placed with her father. The trial court then dismissed the proceedings. In the supplemental opinion on denial of rehearing, the supreme court stated that although the record tended to support the juvenile court’s continuing the custody of the child with her father, the court erred in dismissing the dependent-neglect case where it had also determined that the appellant had been in substantial compliance with the case plan. The supreme court remanded the case with directions to reinstate the case for periodic review as required by the code provisions then in effect.
On the other hand, when a trial court is making a custody determination pursuant to a petition for a change of custody, it must first determine whether a material change in circumstances has occurred since the last order of custody. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). If that threshold requirement is met, the court must then determine who should have custody, with the sole consideration being the best interest of the child. Id.
Having found that appellant had complied with the case plan, the trial court herein properly made the custody determination pursuant to the change-of-custody petition that had been filed by appellee. The court found that there had been a material change in circumstances, noting, among other things, that A.J. had been in the care and custody of appellant at the time her infant brother sustained serious physical injury; that appellant persisted in her statement that she did not know how the infant had received his injuries; that appellant admitted to the psychological examiner that she had failed to protect her children; that the relationship between A.J. and appellant’s husband had become very hostile and antagonistic; that A.J. became anxious before her visits with appellant; that appellant had refused to bring A.J.’s siblings to visitation as requested by A.J., and that this conduct was evidence of the fact that appellant did not consider what was in the best interest of A.J.; and that A.J. had adapted well to being in her father’s home. The court then found that it would be in the best interest of A.J. to be in the custody of her father, appellee, subject to appellant’s visitation rights.
Appellant argues on appeal that appellee failed to prove there was a material change in circumstances that would warrant a change of custody. In support of this argument, appellant points out that (1) there was never any proof of any physical abuse toward A.J., and (2) the abuse inflicted upon A.J.’s infant brother “was not material” because he was later returned to appellant’s home. Regardless of whether there was any proof of physical abuse toward A.J., the fact that her five-week-old brother had sustained serious physical injuries while he and A.J. were in appellant’s care certainly constitutes a material change in circumstances which affected the welfare of both children. See Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999) (holding that 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). The fact that the infant was later returned to appellant’s custody does not change the fact that A.J. was living in a home where serious physical abuse of a child had occurred. Aside from the abuse that resulted in the dependency-neglect proceeding, the court also considered many other factors, including the fact that the relationship between A.J. and appellant’s husband had become hostile and antagonistic; that A.J. became anxious before visiting her mother; that appellant exhibited behavior that reflected that she did not consider what was in A.J.’s best interest; and that A.J. had adapted well to living in her father’s home and was slowly making progress in counseling.
Although this court reviews child-custody decisions de novo on the record, the findings of the trial court will not be disturbed unless it is shown that they are clearly against the preponderance of the evidence. Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003). A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court gives special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as in those involving children. Id.
We cannot say the findings of the trial court are clearly against the preponderance of the evidence. The court determined that there had been a material change in circumstances, giving a detailed account of the events constituting such a change, and then found it to be in the best interest of the child to order a change of custody from appellant to appellee. This decision is supported by the evidence.
Affirmed.
Bird and Roaf, JJ., agree. | [
-48,
-24,
-19,
108,
-102,
97,
42,
60,
82,
-61,
-27,
-45,
-85,
-60,
16,
109,
-63,
111,
97,
124,
-47,
-73,
86,
96,
-34,
-13,
-80,
-45,
-78,
79,
116,
-42,
92,
112,
-118,
-47,
74,
-126,
-51,
-108,
-58,
11,
-85,
108,
80,
-61,
32,
-21,
88,
15,
53,
-82,
-94,
44,
-79,
-39,
108,
14,
-39,
-75,
-40,
124,
-37,
21,
-33,
6,
-79,
-108,
-102,
36,
88,
124,
-128,
-80,
0,
-20,
50,
-106,
-126,
52,
113,
-103,
9,
96,
102,
2,
-67,
-25,
-7,
-128,
-18,
62,
-99,
-26,
-47,
112,
27,
15,
-65,
-75,
121,
20,
78,
124,
104,
77,
29,
100,
4,
-49,
20,
-111,
-49,
41,
-40,
-109,
-62,
13,
48,
49,
-41,
-28,
84,
71,
115,
-101,
-2,
-46
] |
Wendell L. Griffen, Judge.
Phillip Chase appeals from a final order terminating his parental rights to his son, N.C. (born February 24, 1993). Appellant argues that the evidence was insufficient to support termination of his parental rights, and he asks that we reverse the trial court’s order. We hold that the trial court’s decision to terminate the parental rights of the appellant was not clearly erroneous. Thus, we affirm.
On January 27, 2000, the Department of Human Services (“DHS”) filed a petition for emergency custody of N.C. because N.C. had bruises and bedsores for which the appellant had not sought medical treatment, because N.C. had not been in school since November 1999, and due to allegations of sexual abuse. On February 1, 2000, the trial court found probable cause to remove N.C. from appellant’s custody , ordered appellant to attend parenting classes, undergo a psychological evaluation, and attend counseling if recommended as a result of the psychological evaluation. N.C. was found to be dependent-neglected by the trial court on March 7, 2000. DHS failed to prove that there was sexual abuse by a preponderance of the evidence. The parties stipulated that there was medical neglect, educational neglect and physical abuse. During the next review hearing, appellant was found to be in partial compliance with the court’s earlier orders. He was ordered to obtain appropriate housing, to obtain counseling, and to attend and complete domestic violence classes.
A permanency planning hearing was held and an order issued on March 12, 2000. DHS filed a petition for the termination of parental rights on December 15, 2000, but the petition was denied after a February 12, 2001 hearing. Due to appellant’s partial compliance with the trial court’s orders, inconsistency with housing, and failure to comply with counseling, DHS filed another petition for termination of appellant’s parental rights on October 4, 2001. The trial court referenced the fact that appellant had remarried since N.C. went into the State’s custody, and his wife, Priscilla, was an untreated alcoholic. However, the petition was denied again.
. At a-May 16, 2002 review hearing, the trial court approved a trial placement between appellant and N.C., in addition to a visitation arrangement. The conditions of visitation included that appellant pay for daycare services for N.C. while he was at work. In addition, N.C. was not to be left alone with appellant’s wife, Priscilla. The trial placement took place from August 15, 2002, until November 7, 2002. On November 12, 2002, the court ordered that the trial placement with appellant be terminated and that N.C. be returned to foster care. The trial court terminated the trial placement based on evidence that N.C. had not received his medication, appellant failed to take N.C. to counseling, N.C.’s grades deteriorated, he was dismissed from his after-school program because appellant did not pick him up on time, and because appellant’s home was roach infested.
On March 26, 2003, DHS filed a new petition for termination of appellant’s parental rights, and asked the court to grant a consent to adoption petition. Appellant’s rights were terminated on June 23, 2003. The trial court found that N.C. had been out of appellant’s home since January 25, 2000, and, that despite meaningful efforts on the part of DHS to provide services to effect reunification and to rehabilitate the home, appellant had not remedied the conditions that caused the removal.
The standard of review in termination of parental rights cases is as follows:
We have held that when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous question, we must give due regard to the opportunity of the [trial court] to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations.
Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 328, 42 S.W.3d 397, 403-04 (2001) (citing Ullom v. Arkansas Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 208 (2000)) (citations omitted).
Appellant argues that there was insufficient evidence to terminate his parental rights. The trial court terminated the appellant’s parental rights pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2002) , which states that a parent’s rights can be terminated if there is clear and convincing evidence that the juvenile has been adjudicated dependent-neglected, has been out of the home for twelve months, and despite an effort by DHS to rehabilitate the home, those conditions have not been remedied by the parent. We hold that the trial court’s determination is not clearly erroneous.
Appellant did not have legal custody of his child for three years before the trial court issued its order terminating his parental rights. DHS put forth extensive efforts to rehabilitate the home. DHS provided homemaker services that addressed parenting, budgeting, and cleanliness of the home. DHS also provided transportation assistance and discussed with appellant what was expected from him on the case plan. In addition, DHS provided furniture, HUD referrals, and food stamps.
The trial court ordered a trial placement that began on August 15, 2002, and was terminated on November 7, 2002. During the trial placement, the court found that, among other things, N.C.’s health needs were not being met and his grades were lower than when he was in foster care. Appellant partially complied with the case plan, but he continued to make decisions adverse to the child. Even though the trial court had ordered that no one with head lice was to visit appellant’s home, a DHS worker observed three children with head lice in the home during N.C.’s trial placement. Appellant failed to take N.C. to counseling during the trial placement, and N.C. was discharged from an after school program because appellant failed to pick him up on several occasions. N.C.’s medicine was also not properly administered during the trial placement, and the court found that appellant’s housing was not appropriate.
The court’s initial probable cause order finding the juvenile dependent-neglected found that there was medical neglect, educational neglect, and physical abuse. Under Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)(a) (Repl. 2002), the court can terminate appellant’s parental rights if those areas are not remedied after twelve months, and DHS made a reasonable effort to rehabilitate the home. In this case, after three years appellant failed to demonstrate the ability to properly care for his son. During the trial placement he neglected his son’s medical and educational needs. We hold that the trial court’s decision terminating appellant’s parental rights regarding N.C. is not clearly erroneous.
Affirmed.
Gladwin, Neal, and Vaught, JJ., agree.
Hart and Roaf, JJ., dissent.
The mother of N.C. is deceased.
Ark. Code Ann. 9-27-341 (b) (3) (B) (i) (a) was amended in 2003, but the changes were only stylistic. | [
-79,
-20,
-35,
60,
26,
33,
90,
20,
74,
-29,
119,
115,
-85,
-26,
20,
106,
-34,
11,
113,
120,
-61,
-73,
118,
32,
114,
-14,
-45,
-43,
-13,
79,
-12,
-33,
8,
121,
-54,
-44,
98,
65,
-57,
80,
-118,
29,
-70,
-83,
81,
-62,
36,
115,
82,
15,
21,
30,
-61,
44,
25,
-61,
40,
44,
-37,
-7,
-40,
-7,
-104,
5,
-49,
2,
-77,
4,
-78,
6,
122,
111,
-120,
57,
0,
-24,
50,
-74,
-125,
116,
75,
9,
-88,
100,
98,
-127,
121,
-4,
-68,
-120,
46,
28,
-115,
-90,
-101,
49,
43,
33,
-74,
-65,
84,
-108,
15,
126,
71,
-115,
63,
-20,
12,
-49,
30,
-95,
-52,
33,
12,
48,
-26,
113,
16,
112,
-57,
-28,
84,
71,
115,
-39,
-82,
-102
] |
Sam Bird, Judge.
The Consumer Utilities Rate Advocacy Division of the Attorney General’s Office (the AG) appeals from Order No. 20 entered by the Arkansas Public Service Commission. In Order No. 20, the Commission approved a Joint Stipulation and Settlement Agreement in response to Arkansas Oklahoma Gas Corporation’s application for a rate increase of $7,236,716. The Settlement Agreement was proposed by Arkansas Oklahoma Gas Corporation (AOG), the general staff of the Arkansas Public Service Commission (Staff), Seminole Energy Services, LLC (Seminole), Commercial Energy Users Group (CEUG), and West Central Arkansas Gas Consumers, Inc. (WCAGC). The AG was also a party to the negotiations leading to the Settlement Agreement but objected to certain provisions of it and urged the Commission not to approve it. On appeal, the AG argues four points for reversal: that the rates put into effect pursuant to the class cost allocation of the Agreement unreasonably discriminate against the residential ratepayers; that the Agreement’s provision for pooling services to transportation customers, without imposing a pooling charge, unreasonably discriminates against sales customers; that the Agreement’s treatment of lost-and-unaccounted-for gas (LUFG) results in unreasonable rates; and that the Agreement’s increase in the dollar amount of the monthly residential customer service charge is not supported by substantial evidence.
On February 12, 2002, AOG filed an application for a rate increase of $7,236,716 based on its purported total revenue requirement of $73,058,046. Intervention was sought and granted to WCAGC, Seminole, and CEUG. The AG also notified the Commission of its intention to participate in the docket. Order No. 1 entered by the Commission established Docket No. 02-024-U to consider AOG’s application and set a procedural schedule for testimony to be filed by Staff, AOG, and the intervenors. Fourteen members of Staff, five witnesses for WCAGC, three witnesses for CEUG, and one witness for the AG filed responsive testimony to AOG’s application. Eleven witnesses from AOG filed rebuttal testimony. In September 2002, a joint procedural motion filed by AOG and Staff requested that the “purchase gas cost issues” included in AOG’s rate application be severed from the existing docket and transferred to a new docket. No objections were filed in response to the severance motion, and it was granted by Commission Order No. 14. Thereafter, approximately 1,200 pages of rebuttal and surrebuttal testimony were filed by the various parties.
On November 4, 2002, AOG, Staff, WCAGC, CEUG, and Seminole (collectively referred to as the Settling Parties) filed a joint motion seeking the Commission’s approval of a Joint Stipulation and Settlement Agreement (Agreement) that they proposed in full resolution of all outstanding issues in the docket. Although the AG participated in the settlement negotiations, it opposed certain provisions of the Agreement and the Commission’s adoption of the Agreement.
The Settling Parties filed testimony in support of the Agreement, and rebuttal testimony was filed by the AG. A public evidentiary hearing was also held by the Commission in which it heard testimony and the examination of witnesses in support of and against the Agreement and comments from customers of AOG. On December 11, 2002, the Commission entered Order No. 20, approving the Agreement. The Commission found that the provisions of the Agreement were clearly within the range of the litigation positions of the parties and held that there was substantial evidence of record to support its finding that the Agreement fulfills the Commission’s legal responsibilities, represents a just and reasonable resolution of all the issues in the case, and is in the overall public interest. The Commission also ordered AOG to begin tracking the specific costs it incurs in administering and providing pooling service. The AG responded by filing a petition for rehearing, in which it requested that the Commission reverse its ruling in Order No. 20 and reject the Agreement or, in the alternative, reconsider four provisions of the Agreement that it contended result in unreasonable and unlawful rate discrimination among the customer classes and rates that are not supported by the evidence. No written order was entered by the Commission in response to the AG’s petition, and on February 28, 2003, the AG filed its notice of appeal.
For its appeal, the AG challenges four separate provisions of the Agreement that it contends require reversal of Order No. 20. The Commission, AOG, and WCAGC argue in response that the AG’s arguments do not have to be considered because the AG, instead of alleging that the total effect of the Agreement is unjust, unreasonable, or discriminatory, focuses on four elements of the Agreement with which it does not agree. The Commission agrees that the AG has “cherry-picked” its issues for appeal and argues that, because the AG is not challenging the order as a whole, it is only necessary for the appellees to show that the Commission made an independent finding, supported by substantial evidence, that the settlement agreement resolves the matters in dispute in a way that is fair, just, and reasonable, and in the public interest. See Bryant v. Arkansas Pub. Serv. Comm’n, 64 Ark. App. 303, 307, 984 S.W.2d 61, 63 (1998).
Our standard of review is defined by Ark. Code Ann. § 23-2-423 (c)(3), (4) and (5) (Repl. 2002). On review, this court must determine whether the Commission’s findings of fact 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 the constitutions of the State of Arkansas or the United States. Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm’n, 76 Ark. App. 547, 551, 69 S.W.3d 889, 892 (2002); Bryant v. Arkansas Pub. Serv. Comm’n, 64 Ark. App. at 306, 984 S.W.2d at 63. See also Arkansas Gas Consumers v. Arkansas Pub. Serv. Comm’n, 354 Ark. 37, 118 S.W.3d 109 (2003). The Commission’s statutory authority is broad enough to allow it to consider non-unanimous stipulations; however, in doing so, it must afford a nonstipulating party adequate opportunity to be heard on the merits of the rate application and the stipulation agreed to by some of the parties, and it must make an independent finding, supported by substantial evidence, that the stipulation resolves the issues in dispute in a way that is fair, just and reasonable, and in the public interest. Bryant, 64 Ark. App. at 307, 984 S.W.2d at 63; Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 98, 877 S.W.2d 594, 599 (1994). A stipulation represents a compromise of the parties’ positions, and it is the total effect of a rate order that must be reviewed. Bryant v. Arkansas Pub. Serv. Comm’n, 57 Ark. App. 73, 89, 941 S.W.2d 452, 461 (1997). If the total effect of a rate order cannot be said to be unjust, unreasonable, unlawful, or discriminatory, judicial inquiry is concluded. Id.; Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. at 103, 877 S.W.2d at 602. Although we agree that the individual points raised by the AG must be considered in the context of the entire Agreement, we do not agree that this court need only determine whether there is substantial evidence to support the Commission’s approval of the Agreement. On review, the appellate court must determine not whether the conclusions of the Commission are supported by substantial evidence but whether its findings of fact are so supported. Bryant, 64 Ark. App. at 308, 984 S.W.2d at 63.
I.
Whether the Rates Put into Effect Pursuant to the Class Cost Allocation Approved by Order No. 20 Unreasonably Discriminate Against Residential Ratepayers
In its initial application, AOG argued that it was entitled to a rate increase of $7,236,716. However, the Commission in Order No. 14 severed the “purchased gas costs” from the present docket. AOG then amended its petition and argued that it was entitled to a non-gas revenue increase of $3,985,835. Staff, however, recommended that AOG receive a non-gas revenue increase of only $1,416,180. The Agreement approved by the Commission provides for AOG to receive a non-gas revenue increase of $1,763,478. This is a 10.53% increase for AOG and will increase residential rates by 7.65%. The AG does not challenge the amount of this revenue increase, but it does challenge the allocation of this increase among the rate classes, arguing that the allocation of the increase unreasonably discriminates against the residential ratepayer.
The AG contends that, under the Agreement, the residential class receives a percentage increase higher than the system average, despite the fact that the Commission specifically found that Staff and AOG were the only parties to perform complete cost-of-service studies, and that these studies advocated increasing the residential rates by a percentage “lower than the system average.” The AG contends that, in determining whether rates are reasonable, the Commission must base its decision on the costs to serve customers and, therefore, the Commission is bound by the results of the cost-of-service studies in determining rates. We disagree.
In Bryant v. Arkansas Public Service Commission, 50 Ark. App. 213, 237, 907 S.W.2d 140, 153 (1995), this court recognized that a cost-of-service study is merely one of the tools that may be used in rate-design determinations, and that noncost factors can also be taken into consideration. We reiterated this holding in Bryant v. Arkansas Public Service Commission, 57 Ark. App. at 73, 941 S.W.2d at 452. In that case, the AG had relied on the individual cost-of-service studies prepa'red by the expert witnesses and Staffs witnesses for its contention that the Agreement’s provision that allowed 98% of the rate increase to be allocated to the residential ratepayers was not supported by substantial evidence. These studies showed that ARKLA was earning a positive rate of return from its residential class and a negative rate of return from some of its industrial classes. In affirming the Commission’s decision to approve the Agreement, this court explained that the cost-of-service studies were not the only evidence before the Commission and that the Commission is never compelled to accept the opinion of any witness on any issue before it, nor is it bound to accept one or the other of any conflicting views, opinions or methodologies. Id. at 81, 941 S.W.2d at 456. We further noted that the AG had admitted in its brief that the Commission does not have to rely entirely on a particular cost-of service-study to decide how rates are allocated per class. Id. at 85, 941 S.W.2d at 459. Arkansas Code Annotated section 23-3-114(a)(2) (Repl. 2002) provides that “[n]o public utility shall establish or maintain any unreasonable difference as to rates or services, either as between localities or as between classes of service.” However, this statute does not prohibit rate differences; it merely prevents unreasonable rate differences. Bryant, 57 Ark. App. at 87, 941 S.W.2d at 460. Whether a rate difference is unreasonable is a question for the Commission. Id. This court has repeatedly held that the Commission has wide discretion in choosing its approach to rate regulation, and the appellate court may not advise the Commission as to how to make its findings or exercise its discretion. Id. at 78, 941 S.W.2d at 457.
Furthermore, the AG’s argument implies that the percentage increase allocated to the residential ratepayers could be appropriate under certain factual situations but emphasizes that those facts are not present in this case. The AG states in its brief that it is only because Order No. 20 accepts unreasonable positions on allocation issues that it allows significant rate reduction for numerous classes, while raising residential rates much more than justified by either the testimony submitted by Staff or AOG. The AG does not explain what it means by “unreasonable positions,” and therefore, this court is unable to address this statement, except to note that, throughout this proceeding, significant testimony was developed concerning the effects of bypass on rate allocation and the Commission referenced this testimony in approving the Agreement’s cost allocation.
Bypass occurs when large industrial customers arrange direct access to a pipeline supplier, allowing that large customer to avoid purchasing gas from the local distribution company, in this case AOG. The resulting effect is diminished contribution to fixed costs, which adversely affects remaining ratepayers with stranded investment, duplicative facilities, and higher rates. Bryant, 57 Ark. App. at 81, 941 S.W.2d at 457; Bryant, 46 Ark. App. at 92, 877 S.W.2d at 596.
The threat of bypass has only recently become a significant issue in the natural gas industry. Restructuring in the natural gas industry has changed the function of both local distribution companies (LDCs), such as ALG [Arkansas Louisiana Gas Company], and interstate pipelines.Traditionally, LDCs and the pipelines provided service in the same service area with the pipeline engaging in the transportation and wholesaling of natural gas and the LDC providing the retail distribution and sale of the gas. Pursuant to the Federal Entergy Regulatory Commission’s (FERC’s) recent pro-competitive “open access” policy, LDCs and consumers may now purchase spot-market gas or gas direcdy from producers and purchase transportation from the interstate pipelines. Transportation has become a significant part of the interstate pipeline’s business. Because the LDC maintains the only gas fines connecting an industrial consumer with the pipeline, LDCs have been encouraged to unbundle their services in order to transport gas owned by industrial consumers. A consumer may bypass the LDC, however, by constructing its own fines for local transportation. Bypass of a regulated utility may result in stranded investment, duplicative facilities, and higher rates for remaining customers. In a prior proceeding, the Commission discussed the effects of bypass as follows:
When larger customers abandon the LDC, the LDC may attempt to shift the resultant lost contribution to its fixed costs to those core customers who cannot afford the option of bypass. We see this as potentially disastrous for the LDC and its core customers and, perhaps, ultimately disastrous even for the by-passer. If bypass is no longer economically advantageous, the bypasser may not have a viable LDC system to which it may return.
Re Transportation, Bypass, and Standby Service in the Natural Gas Industry, 84 PUR 4th 646, 649 (1987).
Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. at 235, 907 S.W.2d at 152 (1995). This court has previously acknowledged the significant risk that bypass poses to local distribution companies’ remaining customers and found that substantial evidence existed for the Commission’s approval of a stipulation that allocated 98.3% of a rate increase to the residential class as a just and reasonable response to the threat of bypass. See Bryant, 57 Ark. App. at 88, 941 S.W.2d at 458.
In the case at bar, there was evidence of interclass subsidies among the rate classes and that bypass was a continuing threat. AOG president, Michael Carter, testified in his prefiled testimony that AOG’s single largest customer, MacSteel, threatened to bypass AOG in the spring of 1998; through negotiations, bypass was avoided; but that the issue will arise again. He also testified that Southwestern Glass attempted to bypass AOG’s system but is currently in bankruptcy.
WCAGC witness Jerrell Clark, testifying in support of the Agreement, stated that the Commission has encouraged eliminating, or at least not exacerbating, interclass subsidies in previous AOG decisions and that objective was followed in obtaining this Agreement. He stated that the new rates based on the agreed cost-of-service methodologies should have the effect of mitigating the risk of bypass, although they do not eliminate interclass subsidies. He also stated that the benefit of preventing bypass by individual and large commercial customers inures to all ratepayers because they will avoid cost shifts.
Adrian Moorehead, who filed testimony on behalf of WCAGC, testified that Commission Order No. 23 (Supplemental Order on Remand) in Docket No. 96-420-U found that AOG’s existing rates contained considerable cross-subsidies among the classes of ratepayers with AOG’s industrial customers providing subsidies of $1.8 million per year and AOG’s residential customers receiving subsidies of $1.4 million per year. Moorehead testified that the Commission found that these types of subsidies should be eliminated and that, while the stipulation in Docket 96-420-U made significant progress in eliminating a substantial part of the subsidies, the Commission should eliminate the remainder of the subsidies in this case.
Additionally, evidence was presented that, although the Agreement allocates to the residential class an increase “higher than the system average,” the residential increase is lower than the increases for three of the other classes: small commercial, larger commercial, and federal housing. Staff witness Robert Booth testified that the average total impact on the residential class is $18.06 per year, the highest monthly impact is $2.00, and the average monthly impact is $1.51.
In approving the Agreement in Order No. 20, the Commission referred to testimony and exhibits to support its finding that the Agreement achieved a balanced cost allocation among the various customer classes and furthered the Commission’s policy of eliminating inter-class cost subsidies. The Commission held:
The Agreement allocates a smaller proportion of AOG’s cost of service to small customers than would the cost of service allocation contained in AOG’s existing rate structure. Order No. 15 which approved the setdement agreement in AOG’s last rate case in Docket No. 96-420-U stated that “it was the position of AOG, Staff, and WCAGC that AOG’s rates should be redesigned to eliminate interclass subsidies and that AOG’s rates be set based upon the cost of providing service to each class.” (Order 15, pg 2) In the current case, while each class was basically assigned equal rates of return, Mr. Booth testified that there still remain some subsidies in the industrial customer rate. (Tr. 1339-1340) Also, comparing this docket to AOG’s last rate case, the overall rate increase in total revenue requirement is only 2.42%, with the residential class receiving a revenue requirement increase of only 2.93%. The Agreement also embodies overall and residential increases far less extreme than AOG’s original case (10.99% system and 10.21% residential). Regarding the allocation of mains, the Agreement’s 42% customer and 58% demand allocation, while higher than Staffs 34-66 allocation recommendation, is still more favorable than AOG’s 50-50 customer/demand allocation.
It has been the longstanding policy of this Commission that each rate class pay their cost of service. The Commission continues to hold that inter-class subsidies should be eliminated in order to reduce the possibility of uneconomic bypass of AOG’s system by its larger customers. Such uneconomic bypass eventually increases the cost to serve all remaining customers. Therefore, the Commission rejects the AG’s cost allocation proposal. The Commission finds that the Agreement achieves a balanced cost allocation among the various customer classes and furthers the Commission’s policy of eliminating inter-class cost subsidies.
Order No. 20 at 16-17.
We find that substantial evidence existed for the Commission’s approval of the Agreement’s allocation of the rate increase to the residential class and that the AG has failed to show that the allocation to the residential ratepayer is unjust, unreasonable, or discriminatory.
II.
Whether the Stipulation’s Provision that Provides Pooling Services to Transportation Customers Without Imposing a Pooling Charge Unreasonably Discriminates Against Sales Customers
The AG argues that providing pooling services to transportation customers without charging them for the expense of pro viding such service unlawfully discriminates against the sales customers who do not receive any benefit from the service. The basic thrust of the AG’s argument is that, because only transportation customers can avail themselves of AOG’s pooling service, sales customers, which include all residential customers, derive no benefit from it, and that it is therefore unfair to make them pay for the costs of administering the service.
In AOG’s initial rate application, it proposed eliminating its pooling service to transportation customers entirely; however, several of the parties including Staff objected to this proposal.
CEUF witness Daniel Frey of Seminole described pooling service as
a service whereby a natural gas supplier, such as Seminole Energy, can aggregate supplies into a single “pool” and then sell gas to customers from the pool. The purpose of the pool is to use supply and demand diversity to mitigate the effects of variations on both ends of the pipe. For example assume that a customer has 1000 MMBtu of load each day. In order to serve that customer without a pool, Seminole Energy would need to line up multiple receipts points, wells and pipeline interconnects, and specifically designate them to serve the customer. Seminole Energy would then need to engage in a similar matching of supply to load for each of its other customers.
[With pooling] Seminole Energy can contract for the aggregate amount of supply it needs to serve all of its customers and put all of that gas into a single pool. Then, the Seminole Energy is able to allocate the gas out of the pool to each of its customers based upon each customer’s load. This gives Seminole Energy the benefit of diversity on both the supply and the demand end. As individual wells vary in production over time, it tends to balance out. The same is true for customers. Pooling gives the supplier the benefits of diversity, as well as the administrative convenience of allocating gas to customers from a single supply source.
Frey also testified in support of continuing and expanding pooling service:
Pooling is vital for suppliers to use gas from individual wellheads to serve customers. For this reason, most pipelines connected to production areas offer some form of pooling. Without pooling, serving customers on AOG’s system would be an administrative nightmare and, as a result, much more expensive. In fact, AOG itself engages in a form of pooling when it supplies sales gas customers, in that it aggregates all of its supplies and serves all of its customers without a direct matching of supply and demand. If the Commission were to eliminate pooling for transportation customers, it would deny transportation customers access to competitively priced gas supplies. AOG’s proposal to eliminate pooling service for transportation customers, or to impose unjustified costs and further limitations on the service, will force Seminole Energy off the AOG system as a competitor for on-system gas supplies, and will be detrimental to AOG’s transportation customers. It will also be detrimental to other customers to the extent that it reduces the competitive market for selling gas on AOG’s system. The Commission should foster the development of a competitive on-system gas supply market in AOG’s area by directing AOG to remove unreasonable constraints.
Staff witness Robert Booth also supported the continuation of the pooling system, stating that the Pooling Service Agreement (PSA) is necessary to facilitate transportation of natural gas for large industrial transportation customers.
Martin Waelder of Waelder Oil and Gas testified that his company’s gas production was switched to AOG from Reliant Energy after AOG’s last rate case, which made it possible for marketers to create pools and for large industrial customers to transport their gas. He stated that “we still feel this is an attractive market” and that “keeping the market attractive to producers should benefit all consumers on the system as far as the commodity component of their gas bill.”
Timothy Staley testified on behalf of CEUG:
First, it is important to understand the definition and benefits of a Pooling Service option. This option allows customers and their suppliers to aggregate loads for the purposes of load management. This is a significant benefit for customers or suppliers, as it is always easier to manage a larger volume than a smaller volume (because individual customer imbalances are typically offsetting).The Company effectively pools the volumes of the retail rate classes and the LIS rate class for the purposes of managing their combined supplies. This is evidenced by the fact that the Company has been able to effectively manage imbalances on its system without having to construct on-system storage facilities. This could only be achieved through aggregate load management. This has resulted in deferred investment by the Company and lower rates for retail sales customers and LIS customers.
Although these parties maintained that AOG’s pooling service was beneficial to all of AOG’s customers, the AG, referencing the testimony of AOG witness Michael Callan, disputed that this service was of any benefit to residential customers. Callan testified:
It is surprising to see the Staff take this position with respect to pooling service, especially when Staff s position works to the benefit of those customers who have the ability and expressed desire to provide natural gas supplies for themselves; and works to the detriment of residential and commercial customers who do not have that ability.
The AG argues that, because the evidence-shows that pooling only benefits transportation customers, the Commission erred in not requiring the transportation customers to pay the estimated cost of $100,000 for administering this service.
Callan confirmed that $100,000 would be a good estimate of the cost to AOG for providing pooling service but also stated that the administrative costs about which the AG is concerned are carried on by a number of AOG employees who would still be doing most of their same functions even if AOG were not providing pooling service. He admitted that, according to AG witness Marcus’s testimony, three-fourths of the costs were going to sales customers but also testified that no loss of employees would result if pooling for whatever reason was terminated by the company as a result of this proceeding.
Staff witness Robert Booth disagreed with the $100,000 figure and testified that Staff did not have information to confirm the AG’s estimation that the cost of pooling is $100,000 per year or that the administration of pooling service requires one full-time equivalent employee. He stated:
The fact of the matter is the administrative costs associated with pooling are not known at this time.
To properly determine the cost of AOG providing a pooling service would require that AOG’s cost be reviewed and tracked. While Mr. Marcus points to this one expense as being a subsidy, other parties could argue that other expenses are being shared by pooling customers that likewise should be more fully assigned to other customers.
Finally, the company’s indicated informally that it intends to track the costs associated with AOG’s pooling service. While I don’t believe there’s enough information currently to warrant a pooling fee, nothing in this agreement precludes Staff from continuing to evaluate this issue in the time between this case and AOG’s next rate case.
In Order No. 20, the Commission found that the AG and the Settling Parties have confirmed that pooling customers should be charged the appropriate costs incurred by AOG in providing pooling service on their behalf. The Commission also agreed with AOG and Staff that, while AOG had begun to review the source of supply and number of customers involved in the pooling processes, AOG did not have sufficient information at this time to develop a cost-based pooling rate and, therefore, the Commission could not adopt the AG’s recommendation to impose an estimated pooling charge. The Commission then ordered AOG to begin tracking and quantifying the costs of pooling so that a cost-based pooling rate could be developed in time for AOG’s next rate case. Order No. 20 at 13.
The AG cites Cullum v. Seagull Mid-South, Inc., 322 Ark. 190, 907 S.W.2d 741 (1995), for the proposition that the law prevents a utility from charging its customers for costs that are not incurred in providing utility service. The facts in Cullum, however, are distinguishable from the case at bar. Cullum did not involve utility costs being charged to a particular group of customers who may not have benefitted from the particular service, but the cost of developing and producing oil and gas, which the supreme court held was an expense associated with the private business of the utility and could not be passed on to the ratepayers. This is not the situation here. The evidence clearly established that whatever costs AOG incurs in providing pooling service, providing pooling is a utility service that is beneficial to some, if not all, of AOG’s customers.
Based on the tentative evidence before the Commission regarding the amount of costs incurred in providing pooling service, we do not agree that the Commission acted arbitrarily in refusing to impose a charge on AOG’s transportation customers and choosing instead to require AOG to begin tracking its costs so that a cost-based rate could be developed in AOG’s next rate case. In Bryant v. Arkansas Public Service Commission, 57 Ark App. at 73, 941 S.W.2d at 452, this court approved a stipulation where the Commission required Arkla to keep and provide detailed justification records so that the Commission could consider at Arkla’s next rate hearing all factors and circumstances bearing on the issue of corridor rates. This court stated:
The Commission took the steps that it deemed necessary to determine whether the allocated revenues should be recovered. We have repeatedly held that the Public Service Commission has wide discretion in choosing its approach to rate .regulation, and the appellate court does not advise the Commission on how to make its findings or exercise its discretion. Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. at 219.
Id. at 90, 941 S.W.2d at 461.
Ill
Whether the Treatment of Lost-and-Unaccounted-for Gas Approved by Order No. 20 Results in Unreasonable Rates, or is Arbitrary and Capricious
The AG contends that the Agreement’s treatment of lost-and-unaccounted-for gas (LUFG) , approved by Order No. 20, will benefit transportation customers but will provide only minimum benefits to sales customers while resulting in higher prices to them. The AG does not explain the nature of the error in the Agreement’s treatment of LUFG but instead faults the Commission’s reliance on the testimony of CEUF witness Timothy Staley, contending that his testimony is contradicted by his own exhibit, TPS Oral Testimony Exhibit 1, Line 64. The AG argues:
Mr. Staley’s Exhibit is the only substantial evidence (other than that presented by the AG’s witness William Marcus) on this issue. Neither his Exhibit nor Mr. Marcus’ testimony or exhibits support the Commission’s holding that rates for sales customers will be lower under the Stipulation, approved by Order No. 20. Instead,TPS Oral Testimony Exhibit 1 establishes beyond dispute that transportation customers receive 100% of the benefits of the Stipulation’s treatment of LUFG, while other customers will likely only see rate increases.This is unreasonable rate discrimination, and this provision of Order No. 20 should be reversed.
The AG points out that, although Ark. Code Ann. § 23-3-114(a)(l) does not require that the rates charged to different customer classes be the same, this section„.does prohibit “unreasonable rate differences among the classes.” In determining whether rates are reasonable, the AG argues that the Commission must base its decision upon the costs to serve customers. However, as we noted in the first issue, the Commission has wide discretion in choosing its approach to rate regulations and the appellate court does not advise the Commission how to make its findings or exercise its discretion. Bryant, 57 Ark. App. at 78, 941 S.W.2d at 455. A utility’s costs in serving its customers is not the sole criterion that the Commission considers in determining whether rates are reasonable. In Bryant v. Arkansas Public Service Commission, 50 Ark. App. at 213, 907 S.W.2d at 140, this court affirmed a Commission decision where it had balanced both cost and noncost factors and had made choices among public policy alternatives. Different rates are certainly related to the cost of service, but “that concept involves a ‘myriad of facts’ and other considerations are also proper.” Id. at 238, 907 S.W.2d at 143 (quoting Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 20 Ark. App. 216, 224, 727 S.W.2d 146, 151 (1987)). Whether a rate difference is unreasonable is a question for the Commission. Bryant, 57 Ark. App. at 87, 941 S.W.2d at 460. “The Commission’s action maybe 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.” Alltel, 766 Ark. App. at 551, 69 S.W.3d at 892; Bryant v. Arkansas Pub. Serv. Comm’n, 55 Ark. App. 125, 135, 931 S.W.2d 795, 800 (1996).
In his surrebuttal testimony, Marcus stated that there are two separate issues associated with LUFG — how to forecast it and to what extent LUFG should be charged to off-system transportation customers. He argued that there was a potential linkage between the allocation of LUFG to transportation customers and the cost of gas to sales customers and that changes in LUFG allocation could ultimately affect prices of gas paid by sales customers. He recommended that the Commission incorporate the record on this issue into Docket No. 02-179-U and, in the interim, preserve the status quo by maintaining the current LUFG treatment.
At the public hearing on the Consideration of the Agreement, Staffs attorney Gregory Glisich responded to Marcus’s recommendation that the treatment for LUFG should be postponed for consideration in the pending gas-cost docket, arguing that the AG did not oppose the motion that led to the establishment of the gas-cost docket, which expressly reserved the LUFG issue for the pending docket. He also described how the settlement agreement addressed the problem of LUFG, stating that, when AOG renegotiates its off-system transportation contracts in the future or enters into new contracts, AOG will recover roughly through each contract or instead will impute losses so that no customer pays more than its appropriate share of that expense.
Scott Trotter, attorney for CEUG, explained that the Agreement imposes caps on AOG’s recovery of LUFG that are more aggressive than what CEUG proposed and which seemed to go along with AG witness Marcus’s testimony that recovery of LUFG might be appropriate with reasonable caps. He also noted that the Agreement requires that LUFG volumes be allocated to transportation customers.
On appeal, the AG argues that the Commission relied on the testimony of CEUG witness Tim Staley, who testified that sales customers will not see higher rates as a result of the Agreement’s treatment of LUFG, for its holding that the AG was not able to show that sales customers will be worse off under the Agreement’s treatment of LUFG. The AG contends that this finding is not supported by substantial evidence because Staley’s testimony is contradicted by Staley’s own exhibit. The AG argues that Line 64 of Staley’s exhibit, TPS Oral Testimony Exhibit 1, shows that, under one of Staley’s own assumptions, the unit cost of gas inclusive of LUFG and CUG (company use gas) recovery would have been $5.0832 under AOG’s application, but under the Agreement, the cost for the period 12/2002-12/2003 will be $5.0991, which is higher than AOG’s application. It also notes that the cost from 01/2004-12/2004 will be $5.0890 — still higher. The AG argues that this exhibit convincingly demonstrates that, if one of Staley’s assumptions comes true, sales customers will see higher rates as a result of the Agreement’s treatment of LUFG.
At the hearing, Staley explained that TPS Oral Testimony Exhibit 1 is a work paper that he developed to try to analyze the impact of several different scenarios. He stated that there had been a lot of discussion regarding the impact of the settlement’s LUFG and CUG on the cost of gas to customers compared to what is currently in effect and that what he had done on his work paper was evaluate the settlement versus the LUFG and CUG recovery included in AOG’s original application. He stated that he tried to portray not only a recent cost of gas but also a worst-case scenario for the retail class customers and that basically what appears on his work paper is the worst-case allocation of LUFG and CUG. He also emphasized that recent estimates from AOG indicated that the numbers are likely to be significantly less than those caps, which means that the relative impact under the Agreement is going to be much better. He concluded that the actual long-term impact of the Agreement would give a lower cost of gas to the retail rate class of customers even under a worst-case scenario.
In Order No. 20, the Commission addressed the AG’s objections to Staley’s testimony:
In reply to Mr. Marcus’ claim that Mr. Staley’s testimony supports the AG’s contention that sales customers will be harmed by the Agreement’s treatment of LUFG, Mr. Staley testified that Mr. Marcus chose to quote out of context only a portion of his testimony and omitted that part of his testimony that states that the LUFG and CUG caps will reduce costs annually over the next two years, providing even more benefit to retail customers. Mr. Staley also introduced a work paper he prepared to support his conclusion that as the LUFG and CUG percentages are ratcheted down, any punitive impact on sales customers will be more than offset and result in a better cost of gas to sales customers. (Tr. 1385-1401)
With regard to Mr. Marcus’s charge that sales customers will pay more for gas under the Agreement’s treatment of LUFG, Mr. Staley, using the work paper he introduced during the hearing, has shown, even under a worse case scenario [footnote omitted], the actual long-term impact of the Agreement will give a lower cost of gas to retail sales customers as the LUFG/CUG caps are ratcheted down over the three years contemplated in the Agreement. (Tr. 1393-1394) Mr. Staley’s work paper shows at Line 64 that in 2005, the third year of the Agreement, the Agreement will produce a lower cost of gas, which would be $5.0794 per Mcf compared to AOG’s original application cost of gas of $5.0832 per Mcf. Mr. Staley also pointed out that recent estimates from AOG indicate that the LUFG amounts will likely be far less than the capped LUFG amounts, producing much better results than the work paper shows. (Tr. 1391) The AG, neither in his cross-examination of Mr. Staley (Tr. 1395-1400) nor by any calculation of his own, was able to show, as Mr. Marcus claimed, that sales customers will be worse off under the Agreement’s treatment of the LUFG/CUG issue. Neither was the AG able to refute Mr. Staley’s conclusion that sales customers will receive a lower cost of gas even under a worse [sic] case scenario. Therefore, the Commission accepts the Agreement’s provisions on this issue.
Order No. 20 at 14-15.
The burden was on the AG to show that the Commission’s approval of the Agreement’s treatment of LUFG was not supported by substantial evidence. For purposes of determining whether an administrative agency’s decision is supported by substantial evidence, the question on review is not whether the testimony would support a contrary finding but whether it supports the finding that was made. To do this an appellant must show that the proof before the Commission was so nearly undisputed that fair-minded persons could not reach the conclusion the Commission did. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 68 Ark. App. 148, 5 S.W.3d 484, 491 (1999). Evaluation of testimony is for the Commission, not the courts; to hold that testimony does not constitute substantial evidence, this court must find the testimony has no rational basis. Bryant v. Arkansas Pub. Serv. Comm’n, 57 Ark. App. at 85, 941 S.W.2d at 459.
We find that there is substantial evidence to support the Commission’s, approval of the Agreement’s treatment of LUFG and affirm on this point.
IV.
Whether the Dollar Amount of the Monthly Customer Service Charge Approved by Order No. 20 is Not Supported by Substantial Evidence
The AG’s final point concerns the Commission’s approval of the monthly customer service charge included in the Agreement. The Agreement increased this charge from $9.00 to $9.90 for residential customers. The AG argues that the $9.90 customer service charge for residential customers will be the highest service charge for any Arkansas gas utility, is higher than other gas utilities in the region, and that this increase is not supported by substantial evidence.
The customer service charge is a fixed amount to be paid periodically by the customer without regard to demand or energy consumption. Glossary for the Gas Industry at 14. At the hearing, Michael Callan for AOG testified in support of the $9.90 charge:
As a part of AOG’s application, AOG performed a cost of service study. AOG’s numbers indicated initially that the tme customer charge should be approximately $16.75 per month. Staff did its own analysis. I think Staffs numbers actually came up with somewhere in the $12.30 range is what the cost of study would indicate. Obviously ratemaking principles, if you took them in a vacuum, you would want the appropriate customer charge to be set as high as possible.
In the past there have been concerns at the Commission and at the company on volatility. Obviously, a larger customer charge does in some way lessen volatility on residential customers. However, there are public policy reasons for not going that high that fast. That is why the company believed the appropriate increase was 10 percent.
We agreed to a $9.90 customer charge which is a lot less of a rate shock on a residential customer. At the same time, it’s a delicate balancing act and I’m not sure anybody has the appropriate answer of how to balance volatility, true cost of service, and the negative impact these type of charges have on especially fixed income residential and small business customers.
The AG disputes the “customer-related costs” that AOG used in its cost-of-service study to determine its customer service charge. The AG claims that AOG is including costs that are inappropriate for determining the residential customer service charge. Its sole authority for this claim is the testimony and exhibits presented by Staff witness Karen Fricke in another docket involving a rate increase for AR.KLA.
In Docket No. 01-243-U, Fricke, in her prepared testimony, testified that her Exhibit KF-3 supported a customer charge of $9.00 for the residential class. Fricke did not use the phrase “Total Customer Specific Costs” in her testimony, but on Exhibit KF-3 and surrebuttal Exhibit KF-8, this phrase appeared at the end of a column that included costs for meters, services, meter installation, “house req. and installation,” and customer accounts. Relying on these two exhibits, the AG argues that these five cost items, which compose the column labeled “Total Customer Specific Costs,” are the only costs that AOG and Staff should have considered in calculating the customer service charge. The AG summarizes that, had the residential customer service charge in the present docket been calculated using only these five cost items, the charge would be $6.56 and, therefore, the evidence does not support the $9.90 charge included in the Agreement.
The AG does not cite this court to any authority that only the five cost items listed on Fricke’s exhibits in a previous unrelated docket can be considered in computing the customer service charge. Instead, the AG relies entirely on the word “total” that appears at the bottom of a column of figures in Fricke’s exhibits. At the hearing, Staff witness Robert Booth explained why the cost factors used in the ARKLA docket were different than the present docket:
Staffs recommendation in the ARKLA case was limited to the minimal level of customer related cost because of the significant rate impact. The minimum level of customer related costs set forth in Staffs case was set forth in Staffs case to explain the basis for the level of increase, not to identify all customer related costs which could be recovered through the customer charge.
Customer related cost, including those costs necessary for the company to provide gas regardless of an amount of gas delivered, including such costs as plant in the ground, standing ready to provide service, meter reading' and billing are included in the customer charge.
The AG claims that Booth’s testimony “does not square with the plain words of Ms. Fricke’s Testimony in Docket No. 01-243-U,” and contradicts her Exhibits KF-3 and KF-8 in that docket, as both refer “to ‘Total Customer Specific Costs.’ ” However, the Commission disagreed:
The AG’s objection that Staff has used a different customer charge calculation methodology in this case than it did in the Arkla case is of no consequence. Neither the Staff nor the Commission are bound to use the same methodologies in different cases. Further, the setdement agreement in the Arkla case at Section 7D specifically provides that the parties thereto were not bound, from a precedential standpoint, from taking a different position on any issue in any subsequent proceeding. The AG was a signatory party to the Arkla settlement agreement which was approved by the Commission.
Order No. 20 at 18.
In Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 267 Ark. 550, 567, 593 S.W.2d 434, 445 (1980), the supreme court emphasized that it could not require the Commission to take the same approach to every rate application, or even to consecutive applications by the same utility, when the Commission, in its expertise, determines that its previous methods are unsound or inappropriate to the particular application.
In effect,Bell is asking us to apply the doctrine of res judicata to require PSC to apply the methodology used by it in entering the 1975 order. But res judicata has little application to regulatory action by an agency in fixing utility rates, because rate-making is a legislative, not a judicial function. It has been held that every rate order may be superseded by another, not only when conditions change, but also when the administrative understanding of the same conditions changes.
Id. at 567, 593 S.W.2d at 445 (citations omitted).
There is substantial evidence to support the Commission’s approval of the $9.90 cost-of-service rate for residential customers. Michael Callan testified that AOG’s cost-of-service study supported a rate increase of $16.75 per month and Staffs analysis supported a $12.30 range. Staff witness Patti Kelly testified that Staffs cost of service indicated that the customer charges for the residential and small commercial classes do not recover all customer-related costs but recommended that their rates be increased by no more than ten percent. This court has repeatedly held that the appellate court views only the evidence most favorable to the appellees in cases presenting questions of substantial evidence, and the burden is on the appellant to show a lack of substantial evidence to support an administrative agency’s decision. Bryant, 57 Ark. App. at 79, 941 S.W.2d at 455. To establish an absence of substantial evidence to support a decision, the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The question on review is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id.; Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 72, 813 S.W.2d 263, 277 (1991).
Affirmed.
Hart, Gladwin, Vaught, Baker, and Roaf, JJ., agree.
“Cost of service” in public utility regulation refers to the total number of dollars required to supply any total utility service (i.e., revenue requirements). It must include all of the supplier’s costs, an amount to cover operation and maintenance expenses, and other necessary costs such as taxes, including income taxes, depreciation, depletion, and amortization of the property not covered by ordinary maintenance. Cost of service must include a fair return in order that the utility can maintain its financial integrity, attract new capital, and compensate the owners of the property for the risks involved. American Gas Association, Glossary for the Gas Industry 13 (4th ed. 1986). See also Bryant, 57 Ark.App. at 80 n.2, 941 S.W.2d at 455-56.
A “cost of service study” is made in order to assist in determining the total revenue requirements to be recovered from each of the various classes of service. The amounts to be recovered from each of the classes of service is determined by the management or a commission after study of the various factors involved in rate design. Cost analysis or cost allocation is an important factor in rate design but only one of several important factors. Cost analysis does not produce a precise inflexible “cost ofservice” for any individual class of service because cost analysis involves judgment in certain cost areas. Its principal value is in determining the minimum costs attributable to each class of service. Other factors that must be considered in rate design are the value of the service, the cost of competitive services, the volume and load factor of the service and their relation to system load equalization and stabilization of revenue, promotional factors and their relation to the social and economic growth of the service area, political factors such as the sizes of minimum bills, and regulatory factors.
Id.
LUFG is the difference between the total volume of gas purchased from all sources and the volume delivered and billed to customers. Bryant, 46 Ark. App. at 102 n.3, 877 S.W.2d at 602.
Gas line loss. The difference between the input of gas into the system and the output chargeable to ratepayers as unaccounted-for volume or “line loss.” The loss may be attributable to line leakage, inaccurate measurement reading, or differences in pressure throughout the system. The allowance must be reasonable, and periodically revisited to make certain ratepayers are not overpaying for this factor. A reduction in loss factor, all else remaining equal, results in the company’s obtaining a greater margin from existing rates, which offsets the need for a rate increase. Absent any adjustment, and again all else remaining equal, the company could realize the equivalent of a net revenue increase.
Leonard Saul Goodman, The Process of Ratemaking 1,328 (Public Utility Reports, Inc. 1998).
Consolidated with Docket No. 01-266-U. | [
18,
104,
-7,
108,
-116,
96,
24,
-112,
87,
-15,
-25,
83,
-93,
-52,
20,
115,
-45,
121,
-32,
105,
-45,
-77,
113,
98,
-53,
-77,
51,
-57,
-80,
127,
-12,
-121,
72,
73,
-54,
85,
70,
-62,
-27,
92,
2,
3,
-21,
96,
-23,
67,
48,
47,
18,
-117,
53,
-121,
-5,
44,
29,
64,
109,
12,
89,
40,
-61,
114,
106,
-113,
125,
4,
0,
100,
-102,
21,
-8,
30,
-112,
48,
40,
-36,
115,
38,
6,
117,
13,
25,
12,
-88,
103,
65,
-92,
-57,
-84,
40,
6,
-98,
-115,
-90,
-14,
57,
106,
7,
-105,
20,
118,
18,
7,
-2,
-10,
-107,
87,
-20,
-124,
-82,
-100,
-29,
-41,
-59,
-104,
27,
-17,
70,
52,
117,
-51,
-14,
125,
-49,
50,
-37,
86,
-80
] |
Robert J. Gladwin, Judge.
Appellant Michael Shane udgeby . Garland County jury of residential burglary and sentenced to eighteen years in the Arkansas Department of Correction. On appeal, he challenges the sufficiency of the evidence related to the conviction and argues that the trial court erred in denying his motion to enforce a plea offer made by the State, which was subsequently withdrawn. We affirm.
On or about October 27, 2003, Phyllis Johnson was alone in her home in rural Garland County, Arkansas. She retired to her bedroom at her usual time of approximately 11:15 p.m. As she typically did, Ms. Johnson turned on the lamp and television in her bedroom, but soon thereafter, she experienced a power outage. This was a frequent occurrence in the area, so Ms. Johnson initially attempted to go to sleep without investigating the power outage.
After approximately fifteen or twenty minutes, Ms. Johnson heard knocking sounds at the door leading to her carport. She ignored it, but the knock repeated a short time later. Ms. Johnson got out of bed and walked to the living room to look outside for the source of the noise. She did not see anyone at the door when she looked through the window; however, she did notice that she was the only one on her block experiencing a power outage and that all of the street lights were operating normally.
It was at this time that Ms. Johnson became extremely frightened. As she walked back to her bedroom to retrieve her gun, she heard a voice outside the house in the front part of the garage. Next, when she reached her bedroom, she heard a heavy scratching sound above her, specifically a “long, drawn-out, shuffle, slide, dragging-type noise” in the attic that sounded too heavy to be an animal. In her frightened state, Ms. Johnson broke off the key of her gun’s trigger lock in the lock, effectively rendering the gun useless to protect her. Her land-line phone would not operate without electricity, but Ms. Johnson remembered her mobile phone and used it to call 911. She remained on the line with the 911 dispatcher until Garland County Sheriff’s Department officers arrived.
Corporal Scott West, one of the first officers to arrive, accompanied a shaken Ms. Johnson outside to survey the area. They noticed muddy footprints and small dents on the hood of her car and realized that the attic-access door, which was located just above the car, was open. Once other officers arrived, Officer West made his way up into the attic where he noticed what appeared to be a “trail” where someone had crawled through the insulation. At the end of the path, appellant was discovered lying between two floor joists under the insulation. He was wearing a black jacket, and when he initially put his hands up in the air at the direction of the officers, the officers noticed he was wearing latex or surgical-type gloves. Appellant quickly put his hands back under the insulation, prompting officers to order him to raise them again. When he did, the gloves were no longer on his hands. Subsequent to appellant being removed from the attic, Officer West returned to appellant’s hiding place where he discovered the latex gloves and a large, serrated kitchen knife. Ms. Johnson testified that she did not store knives in the attic and that the knife was not hers.
Deputy Ron Stone arrived at the scene later and stayed with Ms. Johnson while the other officers took appellant into custody. While Officer Stone and Ms. Johnson looked around the house to make sure the area was secure, they noticed that the breaker box had been opened and the power shut off. They flipped the switch, and the power was restored. Nevertheless, Ms. Johnson spent the remainder of the night with her son. The following day, she returned to the house with her daughter and discovered that the telephone lines had been pulled out of the box through which the line passes into her home.
Appellant explained to the officers that he had escaped from Robert Blackstead, who had kidnapped him, and that he had taken the knife from Blackstead’s residence during his escape. He claimed that he was merely hiding from Blackstead in Ms. Johnson’s attic and then asked to speak to a “Hot Springs drug agent.”
Appellant was charged with residential burglary, specifically with entering or remaining unlawfully in a private residence with the purpose of committing assault in the third degree, an offense punishable by imprisonment. At the close of the State’s case, the trial judge ordered a short recess. The parties and counsel met in chambers during the recess, at which time appellant moved for a directed verdict. The motion was denied, and appellant’s counsel rested the defense’s case without putting on any evidence. While appellant did not renew his motion for a directed verdict, as generally required by Rule 33.1(a) of the Arkansas Rules of Criminal Procedure, he was not required to do so, where, as here, he rested without presenting a case. See Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994); Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001). The jury was instructed that, in order to find appellant guilty of residential burglary, they had to find that he intended to commit third-degree assault, which was defined as purposely creating apprehension of imminent physical injury in the victim. From his conviction on that charge, comes this appeal.
I. Denial of Motion for Directed Verdict
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. Additionally, when reviewing a challenge to the sufficiency of the evidence, we consider all the evidence, including that which may have been inadmissible, in the light most favorable to the State. Id.
A person commits the offense of residential burglary if he “enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201 (a)(1) (Repl. 1997). A person commits third-degree assault, which is punishable by up to thirty days’ imprisonment, if he “purposely creates apprehension of imminent physical injury of another person.” Ark. Code Ann. § 5-13-207(a) (Repl. 1997). Appellant maintains that the State failed to prove that he had the. intent to commit third-degree assault. With regard to a person’s intent, the Arkansas Supreme Court has stated:
A person’s state of mind at the time of a crime is seldom apparent. One’s intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances shown in evidence. Since intent cannot be proven by direct evidence, members of the jury are allowed to draw upon their common knowledge and experience to infer it from the circumstances.
Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). While appellant admits that he entered or remained unlawfully in Ms. Johnson’s attic, he asserts that there is nothing else that can be said about his actions that indicates a certain intent. He concedes that Ms. Johnson was terrified, but maintains that no inference can be fairly drawn from her “state” that his purpose of going into the attic was to instill such an apprehension. He argued at trial, and continues to argue, that inferring the intent from the act of illegally entering or remaining, itself, is something that is strictly forbidden by the United States Constitution. See Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980). He maintains that the following evidence against him is insufficient to infer the requisite intent: (1) entering and remaining in the attic; (2) the facts surrounding his arrest, including the possession of latex gloves and a serrated kitchen knife, and his statement that he escaped from his kidnapper, Robert Blackstead; (3) the breaker switch having been turned off, presumably by appellant; (4) the telephone wires having been pulled out of the outside box. He states that at the time the events that prompted Ms. Johnson to call the police occurred, she did not know that he had a knife in the attic, nor did she know that he had turned off her electricity by switching off the power or that he had pulled her telephone wires out of the box. All she knew is that someone was in the attic, and appellant maintains that that is not sufficient to sustain the conviction.
There was far more evidence presented to the trial court than that appellant merely entered the residence. There is evidence from which the fact finder could conclude that he took steps to hinder Ms. Johnson’s ability to summon help by turning off the power and pulling out the phone lines. At a minimum, she knew that power was off only to her residence after noticing the rest of the houses on the block had power and the street lights were functioning properly. Secondly, appellant banged on her carport door and noisily crawled through her attic, which she could easily hear, and which could, and did, frighten her. She might not have known that appellant had a knife with him, but the fact that he had a potentially deadly weapon on his person could at least raise an inference that he intended to, at the very least, place her in fear for her physical well-being.
Appellant’s argument that the State is required to prove that he was planning to do harm to Ms. Johnson if there had not been police intervention is misguided. Appellant was engaged in a deliberate course of conduct, which led to the natural consequence that Ms. Johnson was placed in imminent fear of bodily harm. The law presumes that it was his intent to do so. See Dye v. State, 70 Ark. App. 329, 333, 17 S.W.3d 505, 508 (2000). The State contends that the best evidence that appellant entered Ms. Johnson’s home with the purpose of committing third-degree assault is the fact that he did in fact commit the offense when he entered and remained there. Substantial evidence exists to support the verdict; therefore, we affirm on this point.
II. Denial of Motion to Enforce Plea Offer
At a pretrial hearing, appellant asked that a plea agreement agreed upon by the parties be enforced. The essence of the proposed agreement was that the State would reduce the charge to criminal attempt to commit burglary and recommend a sentence of three years’, which would also have resolved another pending charge of aggravated assault. Subsequent to appellant agreeing to the terms of the plea agreement and signing all the related documents, his counsel received a telephone call from the prosecuting attorney’s office withdrawing the plea offer. The deputy prosecutor explained that he had assumed the victim, Ms. Johnson, had agreed to the plea agreement, but that his assumption had been incorrect. Also, his supervising attorney had declined to authorize the plea agreement. The deputy prosecutor explained that the plea offer could be withdrawn so long as appellant had not suffered any detriment and pointed out that the only detriment suffered so far was the lack of time to prepare for trial, because appellant had been planning on pleading guilty. In order to compensate for this issue, the State moved for a continuance, at its expense, in order to allow appellant adequate time to prepare for trial.
Appellant verbally moved the court to enforce the plea agreement, and the trial court denied it, holding that the guilty plea would not have been accepted by the trial court, anyway, if the victim did not go along with the agreement. Subsequently, appellant was allowed to file a formal written motion to enforce the plea agreement, setting out the following ways in which he was prejudiced by the rescission of the offer:
(1) The plea offer was to reduce the charge from a Class B to a Class C felony, and if he were to be tried for the original burglary charge, it would have a maximum sentence in excess of the three years he had bargained for;
(2) If convicted of the original residential burglary charge, appellant would be classified as a habitual offender when he faced the other pending aggravated assault charge;
(3) A conviction of residential burglary would be a second conviction for appellant, which would automatically enhance the amount of time he would serve before being eligible for parole;
(4) He would still be required to face the other pending aggravated assault charge, and if convicted, he would in all probability receive a sentence consecutive to the sentence assessed in this matter.
All parties agreed that the motion did not become ripe unless and until appellant had been convicted and suffered a sentence more severe than he had bargained for under the proposed plea agreement, and further agreed that the motion should be reviewed after the completion of the trial in this matter. It was so heard, and the trial court once again denied appellant’s motion.
Appellant acknowledges that the Arkansas Supreme Court stated in Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988), that parties have no power to bind the trial court and that it is “illusory to say that the state is bound by such an agreement before it is consummated by the acceptance of a guilty plea by the [trial] court.” Caldwell, 295 Ark. at 152, 747 S.W.2d at 101. He relies, however, on Santobello v. New York, 404 U.S. 257 (1971), which states that when a criminal defendant’s inducement to enter a plea of guilty is a promise or agreement of the prosecutor, that promise must be fulfilled. He maintains that in Caldwell, supra, the Arkansas Supreme Court left open an avenue of relief related to the Santohello holding that has not been previously dealt with, as the cases that have addressed this issue have focused on the incorrect issue. Appellant asserts that the issue should not be whether the trial court accepts the guilty plea, but rather whether the prosecution bargains in good faith with the defense when it proposes the guilty plea agreement. He argues that, in his case, members of the prosecuting attorney’s office were acting “without knowledge of the ultimate decision makers.” That was not his fault, and he contends that it was a denial of due process to deprive him of the benefits of that plea agreement because of the errors of attorneys for the State who did not represent him.
Santobello, supra, is distinguishable in that there, the defendant had entered a plea to a reduced charge, and the trial court set the matter for sentencing at a later date. Here, the guilty plea had not been accepted or entered, accordingly, appellant had not suffered judgment for an offense. Likewise, in Caldwell, the prosecutor made the defendant a plea offer whereby the prosecutor would recommend a probationary sentence in exchange for his guilty plea. Prior to the parties appearing in court, a new prosecutor took over and rescinded the plea offer. The motion to enforce the plea offer was denied, and the Arkansas Supreme Court affirmed, distinguishing situations of where plea offers have been entered from those where they have not. Because the defendant could not show other detrimental reliance, beyond merely accepting the plea offer, he was not entitled to enforce it.
Appellant’s four alleged points of “detrimental reliance” are illusory. All of the facts he asserts would have occurred if, and only if, the trial court had accepted the plea agreement, which it stated it would not have done because of the victim’s objection to the agreement. Additionally, the supreme court in Caldwell suggested that, in a case in which an accused detrimentally relies on a withdrawn plea offer, the withdrawal may affect only the evidence available to the prosecution. Caldwell, 295 Ark. at 152, 747 S.W.2d at 101. Pursuant to Caldwell, a defendant is required to show more than the mere fact that he desired the concessions contemplated by the withdrawn plea offer, and even if he does show it, the appropriate remedy would seem to be to withdraw the guilty plea and limit to some extent the prosecution’s evidence in the matter. Here, appellant failed to prove detrimental reliance, and accordingly, we affirm on this point as well.
Affirmed.
Pittman, C.J., and Hart, J., agree.
There is some discrepancy as to whether it was for probation or prison time. | [
-47,
-32,
-20,
-84,
41,
-31,
58,
-72,
-14,
-9,
-78,
-45,
-89,
96,
93,
105,
26,
103,
117,
97,
-63,
-73,
119,
97,
-94,
-5,
57,
-47,
-70,
75,
-12,
-97,
89,
112,
-54,
69,
38,
-56,
-27,
88,
-114,
5,
-39,
-16,
33,
2,
44,
43,
92,
15,
53,
-113,
-13,
-86,
17,
71,
73,
42,
115,
-91,
80,
115,
-69,
23,
-19,
20,
-93,
-90,
-102,
-125,
-8,
30,
-107,
61,
0,
-8,
-13,
-106,
-126,
124,
7,
27,
-92,
102,
98,
0,
-83,
-21,
-84,
-87,
39,
-74,
-99,
-90,
-104,
40,
75,
8,
-105,
-99,
120,
21,
14,
124,
119,
-60,
127,
100,
-124,
-49,
-108,
-111,
77,
97,
-108,
-70,
-25,
37,
50,
97,
-49,
-30,
118,
70,
115,
-101,
-114,
-15
] |
John Mauzy Pittman, Chief Judge.
The appellant filed a claim for workers’ compensation benefits asserting that she sustained a compensable gradual onset injury to her left shoulder while shoveling ice in the course of her employment by appellee. At the hearing, appellant changed her contention to allege that the injury to her left shoulder was caused by a specific event rather than gradual onset. The Arkansas Workers’ Compensation Commission denied benefits, finding that appellant failed to prove by a preponderance of the evidence that she sustained an injury to her left shoulder resulting from a specific incident, and thus failed to prove the elements necessary to establish a compensable specific incident injury. On appeal, appellant contends that the Commission’s finding is not supported by substantial evidence. We do not agree, and we affirm.
In reviewing decisions of the Arkansas Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). Where, as here, the Commission has denied a claim because of the claimant’s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979).
Gradual onset injuries are compensable only under limited conditions under the Arkansas Workers’ Compensation Law; in contrast, accidental injuries, caused by a specific incident and identifiable by time and place of occurrence, are generally compensable. Compare Ark. Code Ann. § 11-9-102(4) (A)(i) and (ii) (Supp. 2005). In finding that appellant failed to prove that her injury was the result of a specific incident, the Commission relied upon the testimony of Ms. Faye Shales, appellee’s medical department supervisor. Ms. Shales stated that she helped appellant file the first report of injury on October 16, 2001, and that appellant described the injury to her as something that gradually happened to her shoulder after shoveling ice the previous month. The Commission also relied upon evidence that the worker’s compensation forms completed and signed by appellant stated that this was a gradual onset injury.
The appellant testified at the hearing that she was injured by a specific incident in August during which, while pushing hard with her shovel against the ice, she felt a sudden pain in her shoulder as if someone had hit her and that she immediately reported this to the nurse but that it was not recorded. She also stated that she subsequently returned to the nursing station almost every day with complaints of shoulder pain until Ms. Shales ultimately helped her fill out the injury report on October 16, 2001. Finally, appellant stated that she did not know what “gradual onset” meant and that she put that on the injury report because she was instructed to do so by Ms. Shales.
The question of the sufficiency of the evidence in this case turns largely upon the credibility of the witnesses. The Commission is not required to believe the testimony of the claimant or any other witness. The testimony of an interested party is always considered to be controverted. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Department of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncon-troverted, and when it does so, its findings have the force and effect of a jury verdict. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). Although appellant’s testimony quite clearly would have supported a finding that her injury was the result of a specific incident, the -question on appeal is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case ie novo. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). On this record, we cannot say that'no reasonable, fair-minded persons could have reached the conclusion arrived at by the Commission, and we must therefore affirm.
Affirmed.
Gladwin, Robbins, and Bird, JJ., agree.
Neal and Baker, JJ., dissent. | [
116,
-22,
-12,
-52,
9,
97,
58,
58,
97,
-123,
117,
115,
-25,
-16,
29,
111,
-29,
125,
-43,
97,
-45,
-77,
19,
72,
-30,
-41,
49,
-41,
49,
111,
100,
20,
77,
48,
-62,
-43,
-26,
10,
-49,
26,
-118,
0,
-118,
-19,
121,
-128,
56,
46,
-6,
7,
49,
-100,
-69,
40,
24,
-49,
47,
44,
75,
62,
-48,
-88,
-62,
5,
109,
16,
35,
36,
-98,
111,
-38,
24,
24,
49,
48,
-56,
50,
-74,
-62,
52,
123,
-103,
12,
96,
98,
33,
29,
-27,
40,
-70,
55,
119,
29,
-90,
-78,
121,
75,
11,
-105,
-107,
122,
20,
44,
122,
-1,
85,
30,
108,
-53,
-122,
-106,
-79,
29,
100,
20,
35,
-17,
-113,
-108,
37,
-50,
-30,
92,
-125,
115,
-101,
-50,
-102
] |
Olly Neal, Judge.
Appellant Gary Davis was found guilty of aggravated assault, a violation of Ark. Code Ann. § 5-13-204; felon in possession of a firearm, a violation of Ark. Code Ann. § 5-73-103; and use of a firearm in commission of a felony, a violation of Ark. Code Ann. § 16-90-120. He was sentenced to 120 months in the Arkansas Department of Correction. On appeal, appellant does not contest his aggravated-assault and felon-in-possession convictions. However, he does challenge his use of a firearm in the commission of a felony conviction. He specifically argues that “the trial court erred in instructing the jury as to the charge of use of a firearm in the commission of a felony when that [sic] underlying felony required use of a firearm as an element of the conviction.” We affirm.
Appellant’s argument on appeal is essentially a double-jeopardy argument. However, before reaching the merits of appellant’s argument, we must first determine if it is preserved for appellate review. The State argues that appellant failed to raise a specific double-jeopardy argument below. The abstract indicates that appellant raised the following objection:
I object to Number 19 having to do with firearm enhancement. The primary element of the underlying aggravated assault is displaying a firearm. Enhancing that conviction enhances the punishment for what the legislature determined to be a Class “D” felony. You can’t commit aggravated assault unless you display a firearm. The elements duplicate themselves. The firearm enhancement law should not be permitted to be used to enhance a crime that requires the use of a firearm in order to be committed.
Although appellant failed to specifically use the words “double jeopardy,” his objection below was sufficient to preserve this matter for appeal.
The double-jeopardy clause consists of several protections:
It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments of the same offense.
Garrett v. State, 347 Ark. 860, 866, 69 S.W.3d 844, 848 (2002) (quoting Schiro v. Farley, 510 U.S. 222 (1994)). A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he either (1) purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person, or (2) purposely displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. § 5-13-204(a) (Supp. 2005). Arkansas Code Annotated section 16-90-120 (1987) provides, in pertinent part:
(a) Any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
(b) The period of confinement, if any, imposed pursuant to this section shall be in addition to any fine or penalty provided by law as punishment for the felony itself. Any additional prison sentence imposed under the provisions of this section, if any, shall run consecutively and not concurrently with any period of confinement imposed for conviction of the felony itself.
Appellant specifically argues that, because displaying a firearm was a necessary element of his aggravated-assault conviction, section 16-90-120 should not have been applied to further enhance his sentence. Based upon our supreme court’s recent decision in Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005), we hold that appellant’s argument lacks merit. In Williams, upon looking at the clear language in section 16-90-120, the supreme court observed that the legislature intended for the section to serve as an enhancement of the original sentence imposed for the crime upon which the defendant was convicted. The court reasoned that, where the stand-alone offense does not contain a separate enhancement provision, the legislature, by enacting section 16-90-120, gave the sentencing court discretion to enhance the sentence up to fifteen years when a firearm is employed in the commission of a felony.
We interpret the court’s holding in Williams to mean that, when section 16-90-120 is used to enhance a defendant’s sentence, the double-jeopardy clause is not offended. Therefore, we hold that the trial court did not err when it instructed the jury on the charge of use of a firearm in the commission of a felony when the underlying felony required the use of a firearm as an element of that offense. Accordingly, we affirm.
Affirmed.
Glover and Vaught, JJ., agree.
In Williams, the appellant was convicted of aggravated robbery and sentenced to twelve years imprisonment. Section 16-90-120 was used to impose an additional five years’ to the appellant’s sentence, resulting in a total sentence of seventeen years’ imprisonment. On appeal, the appellant in Williams argued that (1) the five-year sentence imposed on him for having used a firearm to commit aggravated robbery was forbidden by the plain meaning of Arkansas Code Annotated § 5-4-104(a) (Repl. 1997); and (2) five years of his seventeen-year aggregate sentence of imprisonment was illegal because it resulted from stacking a general statute imposing a sentence for use of a firearm to commit a felony offense onto the specific sentence enhancement for the use of a deadly weapon contained in the definition of aggravated robbery. | [
-16,
-22,
-3,
95,
11,
97,
56,
-72,
18,
-109,
-26,
83,
47,
-34,
5,
121,
-95,
127,
93,
105,
-60,
-65,
51,
97,
118,
-69,
-109,
-45,
58,
-53,
-19,
-28,
28,
112,
-30,
85,
70,
2,
-27,
24,
-54,
1,
-101,
65,
115,
70,
52,
38,
28,
-113,
49,
-98,
-69,
43,
22,
-53,
73,
104,
75,
-67,
97,
-104,
-46,
77,
-20,
20,
-77,
-92,
-101,
5,
-46,
40,
-108,
57,
0,
104,
115,
-122,
-126,
116,
105,
-103,
-116,
98,
114,
0,
93,
-51,
-88,
-88,
63,
127,
-97,
-89,
-104,
65,
75,
46,
-106,
-107,
126,
116,
14,
122,
127,
-51,
83,
108,
7,
-60,
-104,
-79,
109,
104,
66,
-13,
-61,
-93,
-80,
53,
-49,
-26,
92,
84,
88,
-101,
-125,
-43
] |
John Mauzy Pittman, Chief Judge.
This condemnation case raises the issue of juror misconduct concerning statements allegedly made by one or more jurors in the jury room, during deliberations, indicating that they had made up their minds concerning the amount of compensation to be awarded. Finding no error, we affirm.
Appellee Arkansas State Highway Commission filed separate . declarations of taking and complaints for condemnation on each of two tracts owned by appellants D.B.&J. Holden Farms Limited Partnership; Brouce Holden, Jr., Trust; and James R. Holden Trust (collectively Holden). The trial court, by agreed order, consolidated the two cases. The Commission estimated the condemned property to be worth $138,661 and deposited that amount into the registry of the court.
At trial, the Commission’s expert, Tommy Matthews, testified that, in his opinion, the difference in the before and after values of the two tracts was $138,661. Holden’s expert, John Conner, Jr., testified that he calculated the difference in the before and after values of the two tracts to be $1,364,932. The jury retired to deliberate but returned five minutes later with a verdict in the amount of $138,779. Judgment was entered on the verdict.
Holden filed a motion for new trial based on jury misconduct and attached affidavits from three jurors. The affidavits recited that juror Helen Sharp made a statement upon entering the jury room to the effect that she had made up her mind as to the amount of compensation to be awarded to Holden and was ready to vote. The affidavits also stated that another juror, Ronny Dale Templeton, had probably made up his mind beforehand. The trial court struck the affidavits as being barred by Ark. R. Evid. 606(b) and denied the motion for new trial. Holden raises two points on appeal: that the trial court abused its discretion in striking the affidavits and that the trial court erred in denying the motion for a new trial.
Holden’s first point is that the trial court erred in striking the juror affidavits pursuant to Ark. R. Evid. 606(b). That rule provides as follows:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
Following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct. State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000). This court will not presume prejudice in such situations. Id. Jurors are presumed unbiased and qualified to serve, and the burden is on the appellant to show otherwise. McIntosh v. State, 340 Ark. 34, 8 S.W.3d 506 (2000); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). Whether prejudice occurred is also a matter for the sound discretion of the trial court. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001).
By its plain language, Arkansas Rule of Evidence 606(b) precludes inquiry into “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon [the juror’s] or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict[.]” See also Butler v. State, 349 Ark. 252, 82 S.W.3d 152. (2002). A juror “may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Ark. R. Evid. 606(b). The purpose of the rule is to balance the freedom of secret jury deliberations with the ability to correct an irregularity in those deliberations. Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997). Holden does not allege any improper external influence.
The trial court properly refused to consider the affidavits because they referred to events occurring during the internal deliberations of the jury. Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985). Rule 606(b) embodies the public interest in preserving the confidentiality of jury deliberations, see National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990), and ensures that jury deliberations remain secret, unless it becomes clear that the jury’s verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence. Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988).
Relying on State v. Cherry, supra, Holden argues that the supreme court has construed Rule 606(b) as only applying to formal jury deliberations and that such deliberations did not occur in the present case. Cherry is distinguishable from the present case. In that case, Cherry was convicted of first-degree murder and sentenced to life in prison. He filed a motion for new trial alleging jury misconduct. During the trial, an alternate juror had informed the trial court that the jurors had been discussing the case during breaks and that some of the jurors had made up their minds concerning Cherry’s guilt before the case was submitted to them. The State argued that there was no precedent for granting a new trial based on juror misconduct when the conduct did not involve extraneous prejudicial materials or improper outside influence. After conducting a hearing, the trial court found that, based on the testimony of the alternate juror, Cherry was entitled to a new trial. On appeal, the supreme court held that Cherry was deprived of a fair trial because some jurors may have made up their minds concerning his guilt before the case was submitted to them. Because the issue arose after the conclusion of the trial, the only appropriate option for the trial court was to grant a new trial.
Unlike Cherry, the only evidence of jury misconduct in the present case occurred after formal deliberations had begun. We believe that formal deliberations had begun because the jury had received its instructions and heard the arguments of counsel before retiring to the jury room. See Ark. Code Ann. § 16-64-114 (1987). Deliberation in the context of the jury function means that a properly formed jury, comprised of the number of qualified persons required by law, are within the secrecy of the jury room analyzing, discussing, and weighing the evidence which they have heard with a view to reaching a verdict. Borman v. Chevron USA, Inc., 65 Cal. Rptr. 2d 321 (Cal. App. 1997); Rushing v. State, 565 S.W.2d. 893 (Tenn. Crim. App. 1977). Under our case law, any inquiry into events occurring in the sanctity of the jury room is prohibited by Rule 606(b). We cannot say that the trial court abused its discretion in striking the jurors’ affidavit and, therefore, affirm on this point.
Holden’s second point is that the trial court erred in failing to grant the motion for new trial, based on the alleged jury misconduct. Jury misconduct is a basis for granting a new trial under Ark. R. Civ. P. 59(a)(2). See Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). The decision whether to grant a new trial under Rule 59(a)(2) is discretionary with the trial court, which will not be reversed absent an abuse of that discretion. Id. The burden of proof in establishing jury misconduct is on the moving party. Id. The moving party must show that the alleged misconduct prejudiced his chances for a fair trial and that he was unaware of this bias until after trial. Id.; Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); Hendrix v. State, 298 Ark. 568, 768 S.W.2d 546 (1989). The appellant bears the burden of demonstrating that a reasonable possibility of prejudice resulted from the alleged improper conduct. See Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995).
Without the juror affidavits, Holden cannot prove jury misconduct. Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982). Further, Holden cannot show prejudice from the alleged misconduct. The length of time of jury deliberation is not, of itself, a ground for a new trial. Dovers v. Stephenson Oil Co., 354 Ark. 695, 128 S.W.3d 805 (2003); Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983); Breitenberg v. Parker, 237 Ark. 261, 372 S.W.2d 828 (1963). As the supreme court stated in Breitenberg:
The fact that the jury returned a verdict in about eight minutes after having the case submitted to them does not indicate to us that Beach did not receive a fair trial when the issues of fact were so clearly drawn. It is true that a verdict should be the result of dispassionate consideration and the jury, if necessary, should deliberate patiently until they reach a proper conclusion concerning the issues submitted to them. Yet where the law does not positively prescribe the length of time a jury shall spend in deliberation, the courts will not apply an arbitrary rule based upon the limits of time.
237 Ark. at 265, 372 S.W.2d at 831 (quoting Beach v. Commonwealth, 246 S.W.2d 587 (Ky. 1952)). The Commission’s expert testified that the difference in the before and after values of the two tracts was $138,661. The jury could have reasonably relied on this testimony in arriving at its verdict. We affirm on this point.
Affirmed.
Hart and Gladwin, JJ., agree.
Holden does not argue that the relevant event was Sharp’s making up her mind prior to the submission of the case to the jury and that this event occurred in the courtroom, before deliberations began. We express no opinion on this point. | [
112,
-20,
-96,
-36,
40,
96,
42,
-104,
99,
-123,
50,
83,
111,
-62,
16,
43,
-30,
61,
85,
41,
-60,
-77,
7,
115,
-30,
-45,
121,
-59,
48,
73,
-28,
-44,
92,
116,
-54,
-43,
-94,
-54,
-51,
90,
-122,
6,
-117,
117,
-40,
-64,
52,
-73,
4,
75,
53,
-114,
-6,
45,
61,
-53,
77,
44,
107,
43,
64,
-80,
-72,
13,
79,
22,
-79,
38,
-102,
0,
74,
44,
-40,
55,
9,
-40,
115,
-74,
-126,
84,
105,
-101,
12,
46,
102,
17,
21,
-57,
-72,
-116,
46,
-1,
9,
-89,
-102,
73,
75,
15,
-105,
-43,
80,
16,
-114,
126,
-11,
21,
29,
96,
1,
-49,
22,
-95,
-83,
44,
-100,
3,
-37,
-121,
16,
101,
-51,
-14,
92,
7,
114,
-101,
-113,
-109
] |
Andree Layton Roaf, Judge.
This appeal arises from the Marion County Circuit Court granting a petition filed by appellee, Arkansas Department of Human Services (ADHS), to terminate the parental rights of appellant, Rebecca Causer, in a dependency-neglect action. Causer’s attorney has filed a no-merit brief and a motion to withdraw, and Causer has filed a letter stating her pro se points for reversal. We must order rebriefing because counsel has failed to address all adverse rulings that occurred during the termination hearing.
Appellant Rebecca Causer is a thirty-two-year-old single mother of three children. On March 7, 2003, ADHS removed three children from her home because she was arrested for possession of methamphetamine. At the time they were removed from the home, the children were the following ages: D.M., age twenty months; B.C., age seven; and K.C., age thirteen. K.C. has cerebral palsy. Probable cause to remove the children was found on April 5, 2003. An adjudication that the juveniles were in need of services and were dependent/neglected was made on April 9, 2003. Reunification was set as the goal of the case and Causer was ordered to undergo a drug evaluation and random drug testing, to attend parenting classes, and to receive job skills training.
ADHS provided Causer with intensive family services, homemaker services, transportation, budgeting, and family/individual counseling. After treatment, Causer remained clean and sober, and she was put on probation for her criminal charges. Approximately nine months after the children were removed, they were returned to Causer’s care on a trial placement in December 2003.
During a March 10, 2004 hearing, it was revealed that Causer had been arrested due to prescription drugs being found on her person. On March 12, 2004, the children were returned to foster care because of Causer’s arrest for disorderly conduct at her children’s day clinic. K.C. and B.C. were behind in school and D.M. had lost twenty-five percent of her body weight during the time she was in her mother’s care. During the three months that Causer had the children, she had been arrested three times. Causer’s probation was then revoked because she tested positive for drugs. On March 22, 2004, the trial court found that there was probable cause to place the children back into foster care.
The permanency planning hearing continued the goal of reunification. The trial court found that Causer should have another chance to comply with the case plan to get her children back and to resolve her criminal issues. The trial court allowed B.C. to be placed in the custody of his father. On September 8th and 15th, a fifteen-month permanency planning hearing was held. At this hearing, the trial court found that Causer had not complied with the case plan and other orders of the court. Specifically, she continued smoking in the home, she failed to work on menus for nutritional meals, and she did nothing of her own volition and relied solely on assistance. The trial court found that reunification could not occur within a reasonable time frame consistent with the children’s needs and that Causer does not know how to be a mother.
The termination hearing began on December 8, 2004. Melinda Fulton, a clinical social worker and therapist for K.C., testified that Causer has trouble treating K.C. like a child and Causer inappropriately divulges information to her. She also stated that K.C. was thrust into a parenting role with D.C. when Causer was not doing a good parenting job.
Diana Mitchell, a caseworker for ADHS, testified that ADHS has offered Causer numerous services and that there were no other services they could offer to Causer. She stated that she thought Causer was capable of parenting but that Causer was just not doing it.
Glenn Blacksher, one of the foster parents for the children, testified that he had noticed a positive change in Causer and noted that she was participating in drug court. He stated that the children were doing well in his home. Sharon Blacksher, the other foster parent, also stated that the children were doing well in their care. Sharon Blacksher stated that she thought it was in the children’s best interest to return home to Causer.
Causer testified that she was participating in a drug court program. She stated that she had been clean for six months. She wanted her children back and stated that she had done her best to comply with the case plan. She has been diagnosed with OCD and has been taking her medication. She completed the OMART rehabilitation program. She kept up with after-care meetings while someone was “looking over her shoulder.” When it was up to her, though, she did not keep up with her after-care. K.C. testified at the hearing, and she stated that she wanted to live with her mother.
The trial court found that the conditions that caused removal from the home, drug use, had not been remedied and that Causer has manifested the incapacity to remedy subsequent issues (the inability to effectively parent) that have arisen since the original petition. The order stated that Causer has not demonstrated the ability to focus on her children while attending to her own needs. The trial court terminated the parental rights of Causer as to her three children. The trial court ordered K.C. and D.M. to be placed for adoption as a sibling unit and gave sole custody of B.C. to his father.
Causer now appeals the trial court’s order terminating her parental rights. Our standard of review in termination-of-parental rights cases is well-settled.
When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence, and in reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous questions, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations.
An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. In addition to determining the best interests of the child, the court must find clear and convincing evidence that the circumstances exist that, according to the statute, justify terminating parental rights. (Citations omitted.)
Johnson v. Ark. Dep’t of Human Serv’s., 78 Ark. App. 112, 119, 82 S.W.3d 183, 187 (2002).
Our termination statute, Arkansas Code Annotated section 9-27-341 (Supp. 2003), states:
(b)(1)(A) The circuit court may consider a petition to terminate parental rights if the court finds that there is an appropriate permanency placement plan for the juvenile.
(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents, and
(B) Of one (1) or more of the following grounds:
(i) (a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
(vii)(a) That other factors or issues arose subsequent to the fifing of the original petition for dependency-neglect that demon- state that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
Causer’s attorney has filed a motion to withdraw and a no-merit brief pursuant to Linker-Flores v. Ark. Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). Causer did not appeal from final orders from the adjudication hearing, review, and permanency-planning hearings. Thus, we are precluded from reviewing any adverse rulings from these portions of the record. See Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). Pursuant to Ark. R. App. P. — Civ. 2(c)(3), our review of the record for adverse rulings is limited to the termination hearing. See id. No-merit briefs in termination-of-parental-rights cases “shall include an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.” See Ark. Sup. Ct. R. 4-3(j); Lewis, supra. If a no-merit brief fails to address all the adverse rulings, we will generally send it back for rebriefing. Lewis, supra; Linker-Flores v. Ark. Dep’t of Human Servs., 364 Ark. 224, 217 S.W.3d 107 (2005) (“Linker-Flores IF’).
In this case, our review of the record reveals at least three rulings adverse to Causer in the termination hearing that were not abstracted or included in the argument sections. Causer made a hearsay objection during the testimony of Melinda Fulton, which the trial court overruled. ADHS objected to speculative testimony by Causer, and the trial court sustained the objection. During Causer’s testimony, the trial court allowed a letter into evidence over Causer’s objection. Because these adverse rulings were not abstracted and discussed, counsel’s brief fails to comply with the requirements of Ark. Sup. Ct. R. 4-3(j) and supreme court precedent. See Linker, supra; Lewis, supra. Accordingly, we deny counsel’s motion to withdraw and order rebriefing.
Rebriefing ordered.
Griffen and Vaught, JJ., agree.
JANUARY 11, 2006
SUPPLEMENTAL OPINION UPON GRANT OF REHEARING
Appeal from Marion Circuit Court; Gary Isbell, Judge;
Kimberly H. Johnson, for appellant.
Deanna S. Evans, Attorney Ad Litem, for the children.
Andree Layton Roaf, Judge. We previously rendered a decision in this case in which we ordered rebriefing for failure to comply with the requirements of Linker-Flores v. Ark. Dep’t of Human Servs., 364 Ark. 224, 217 S.W.3d 107 (2005), and Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). See Causer v. Ark. Dep’t of Human Servs., 93 Ark. App. 483, 220 S.W.3d 270 (2005). In response our opinion, Causer’s attorney has petitioned this court to reconsider its order to rebrief, contending that rebriefing in this case would cause further delay and that the four adverse rulings that were not fully discussed in the brief are not meritorious. After reviewing this case, we have treated the petition as a petition for rehearing, and we agree with Causer’s attorney and affirm this case.
Causer’s attorney has filed an attachment to her motion to reconsider that specifically addresses and discusses all adverse rulings in the termination hearing. The attachment complies substantively with the requirements for argument sections of termination-of-parental-rights no-merit briefs as set out in Linker- Flores, supra, and Lewis, supra; therefore, rebriefmg in this case is no longer necessary. After a review of the record, we find that all adverse rulings are clearly not meritorious. We affirm today without rebriefing so as to avoid any further delay of this case and grant the motion to withdraw as counsel.
Pittman, C.J., Bird, Griffen, Vaught, and Neal, JJ., agree. | [
-112,
-20,
-59,
44,
58,
-31,
122,
60,
66,
-21,
119,
83,
-85,
-25,
17,
105,
-54,
79,
81,
121,
-45,
-74,
87,
0,
-30,
-45,
-80,
82,
-69,
79,
116,
-44,
76,
112,
-113,
81,
66,
-62,
-3,
88,
-126,
3,
-119,
109,
67,
-126,
44,
107,
26,
14,
53,
-82,
-110,
40,
60,
-49,
12,
78,
-55,
-67,
8,
-24,
-101,
7,
-53,
23,
-95,
52,
-101,
1,
-16,
63,
-100,
56,
-119,
-24,
51,
22,
-126,
116,
87,
25,
5,
113,
98,
-127,
-68,
-59,
-72,
-120,
30,
-73,
-67,
-90,
-104,
89,
83,
79,
-73,
-76,
124,
20,
10,
-2,
99,
-121,
119,
108,
-128,
-53,
88,
-111,
-116,
-104,
-44,
35,
-29,
-59,
48,
53,
-61,
-26,
84,
-125,
115,
-101,
-18,
-6
] |
Wendell L. Griffen, Judge.
Clifton Robert Warner ap-udge. for rape. He argues that the trial court erred in allowing testimony regarding a hearsay statement that the victim made and erred in determining that the victim, who was seven years old at the time of the trial, was competent to testify. We disagree and affirm.
Appellant is not related to the victim but was living with the victim’s family at the time the alleged abuse occurred. The victim, K.P., who was then five years old, alleged that appellant touched her on the inside of her “pee pee” with his finger. K.P. initially confided in her uncle, Billy Powell, while visiting Powell and his family in Oklahoma. She later disclosed the events to the Children’s Advocacy Center in Little Rock, Arkansas.
Based on K.P.’s allegations, appellant was charged with rape as a habitual offender. During pre-trial proceedings, appellant made an oral motion in limine to exclude the hearsay testimony of K.P.’s second cousin, Debbie Pulliam, regarding an incriminating statement made by K.P. after the alleged event. The trial court held a hearing and denied appellant’s motion on the ground that K.P.’s statement qualified as an excited-utterance exception to hearsay pursuant to Ark. R. Evid. 803(2). At the subsequent jury trial, Pulliam testified that when K.P. saw her sister getting into a truck in which the defendant was a passenger, K.P. shouted, “Robert, don’t you hurt my sister like you hurt me.”
The issue of K.P.’s competency arose during the trial. When the State attempted to call her as a witness, she initially indicated in the jury’s presence that she did not know the difference between the truth and a lie. The court then conducted a sua sponte hearing outside of the jury’s presence. After subsequent questioning of K.P., the court was ultimately convinced that she was competent. K.P. thereafter testified that appellant touched her on the inside of her “pee pee” with his finger and that it made her feel “scared” and “all shaky.” She also identified appellant in court as the offender. The jury found appellant guilty and sentenced him to serve twenty years in the Arkansas Department of Correction. This appealed followed.
I Witness Competency
Although appellant challenges the trial court’s determination that K.P. was competent to testify in his second point on appeal, we address this issue first before considering any eviden-tiary errors. The question of the competency of a witness is a matter lying within the sound discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). Any witness is presumed to be competent unless proven otherwise. Id.; Ark. R. Evid. 601. The party alleging that a witness is incompetent has the burden of persuasion. Clem, supra. The issue of the competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clem, supra.
A witness’s competency may be established by the following criteria: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt, or heard. Clem, supra. As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Clem, supra.
Further, in a case involving the rape of a child, the trial court is in the best position to determine the child’s intelligence and understanding of the need to tell the truth. Conley v. State, 20 Ark. App. 56, 723 S.W.2d 841 (1987). In determining the competency of a child witness, the trial court will examine the child’s testimony in its entirety and will not solely rely on the preliminary questioning. Id.
The competency hearing proceeded as follows:
Court: Would you tell me what your name is?
A: [K.P.]
Court: And what is your last name?
A: [K.P.]
Court: And how old are you [K.P.]?
A: Seven.
Court: Eleven?
A: Seven.
Court: Seven, okay and [K.P.] do you know what the truth is?
A: Yes.
Court: Do you know what a he is?
A: Um hum —
Court: You don’t, you don’t know the difference? What do you think the truth is?
A: The truth is —
Court: I’m sorry?
A: — what Robert did. The truth is what Robert did.
Court: Well, what’s a lie?
A: I don’t know the He.
Court: I’m sorry?
A: I don’t know the he.
Court: You don’t know what, you don’t lie or you don’t—
A: I don’t know it.
Court: You don’t know it, you didn’t do it.
A: I don’t know the he.
Prosecution Examination:
Q: Hey [K.P.], when we talked about this today do you know the difference between the truth and a lie?
A: No.
Q: Are you going to tell the truth today?
A: Yes.
Q: Okay, are you — you know, we talked about raising your right hand and having to tell the truth?
A: Yes.
Q: Okay.
Q: Are you satisfied, Judge?
Court: No.
Q: Hey, [K.P.], do you know what a lie is, do you know that a lie is not telling the truth?
A: Yes.
Q: And do you know that the truth means to tell what really happened?
A: Yes.
Q: And that you just have to answer us truthfully?
A: Yes.
[Bench conference held outside of the hearing of the jury.]
Court: Counsel, approach. She doesn’t know.
Prosecutor: Judge, she does.
Court: Well, she’s not saying she does.
Prosecutor: She knows, we talked to her about telling the truth and you know, that she can’t He on the witness stand. She says that we’re asking her if she’s going to He.
Court: WeH, she doesn’t understand, I . . .
Prosecution Examination:
Q: Hey, [K.P.], that nice man up there you were just talking to?
A: Um hum.
Q: Do you see he has a robe on, what color is that robe?
A: Black.
Q: It’s black, if I told you that the robe that the Judge has on was green, would that be the truth or a lie?
A: I don’t know.
Q: Would I be telling the truth if I said that robe was black?
A: You’d be telling the truth.
Q: Hey, [K.P.], do you have any pets?
A: Yeah.
Q: You do, what kind of pets do you have?
A: I’ve got one that’s a Pomeranian.
Q: Is a Pomeranian a dog or a cat?
A: It’s a dog.
Q: If you told me that your Pomeranian was a cat would that be the truth or would that be a He?
A: Alie.
Q: And if you told me your Pomeranian was a dog, would that be the truth or would that be a lie?
A: The truth.
Q: If you told me [K.P.] that the Judge’s robe was black, would that be the truth or a He?
A: Truth.
Q: If you told me [K.P.] that the Judge’s robe was green, would that be the truth or a He?
A: Alie.
Q: What about my suit, [K.P.], what color is this?
A: Black.
Q: If you told me that this suit was yellow, would that be the truth or a lie?
A: A he.
Q: Okay, and if you told me it was black, would that be the truth or a lie?
A: Truth.
Q: Okay.
Defense Examination:
Q: And we talk about the truth and lies sometimes too, okay, if.I told you that it was the truth that the Judge’s robe was green, would that be the truth?
A: No.
Q: Okay, sometimes Jackson [his son] and I play a game, I’ll tell you something, I hate to tell on Jackson, one time Jackson said that his Daddy was a dummy, now, what did Jackson say?
A: He said his daddy was a dummy.
Q: Okay.
Court: I didn’t hear it.
Q: What did you say.
Court: What did you say?
A: He said his name was a dummy.
Q: Do you know that’s the truth?
A: No.
Q: But I told you it was the truth didn’t I?
A: Yes.
Q: Just because I say it, does that make it the truth?
A: No.
Q: Okay.
Defense: Judge, if I might. Your honor, I noted the Court’s consternation. [K.P.j’s initial responses to the questions were that she did not know the difference between a truth and a He and she stuck to that assertion several times. Now, in all fairness, she was able to name her colors and differentiate between your robe being black and green and Shane’s coat being blue and black or whatever, but I’m not firmly convinced that she truly appreciates the difference between the truth and telfing a lie. I think she figured out what we wanted her to say. And I think she sort of got the game of the questions, that this is different so I said a He, this is the same so I say the truth, but I don’t — I didn’t detect that synthesis level knowledge of falsehood versus truth and I’m not prepared to stipulate to her competency at this time. I’d ask the Court to make a ruling.
Court: [K.P.] is competent to testify. She was able to grasp several important points, one of them being just because someone said something was true it’s not, doesn’t make is true. Did a good job there, [prosecutor].
Prosecutor: Thanks.
Court: And also she was able to distinguish between fact and fiction and I find her to be competent....
Appellant asserts that K.P. was incompetent to testify because she stated several times that she did not know what a lie is and because there was no evidence indicating that she understood the consequences of false swearing or that she had a moral awareness of the obligation to tell the truth. His argument does not persuade.
K.P. originally testified that the truth is what appellant did, and that she did not “know the lie.” She also stated that she did not know the difference between the truth and a lie. However, upon further questioning, she indicated that she understood that “the truth” means to tell what really happened and that she knew that a lie is not telling the truth.
In addition, her subsequent responses indicated that she knew the difference between the truth and a lie, as shown in the questions concerning the color of the judge’s robe, the attorneys’ suits, and her pet Pomeranian dog. While appellant’s attorney argued below that K.P. had merely figured out “the game of the questions” that “same” equals “truth” and “different” equals “lie” and that K.P. had merely demonstrated knowledge of different colors, her responses went far beyond that. Rather, her responses established that she knew the difference between the truth and a lie, or as the trial court stated, between fact and fiction.
While appellant also asserts that there was no evidence to indicate that K.P. understood the consequences of false swearing, that is of no moment, because a witness’s competency can be established by an understanding of the consequences of false swearing, or by the ability to understand the obligation of an oath and to comprehend the obligation imposed by it, in other words, by an awareness of the moral obligation to tell the truth, or the ability to receive, retain, and transmit accurate impressions. Modlin v. State, 353 Ark. 94, 110 S.W.3d 727 (2003); Clem, supra. The Modlin court specifically stated that it was not necessary for the witness in that case to understand the nature of an oath, the legal concept of false swearing, or why he was holding up his hand because his testimony demonstrated a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts.
Similarly, here, K.P. demonstrated awareness of her moral obligation to tell the truth and her ability to receive, retain, and transmit accurate impressions. She stated that she was going to tell the truth and she remembered the discussion about swearing an oath to tell the truth, which the prosecutor referred to as “raising your right hand and having to tell the truth.” She further indicated that she knew a lie is not telling the truth, that the truth means to tell what really happened, and that she was required to answer truthfully.
In addition, as indicated by her answers to the questions posed to her by defense counsel’s questions concerning his son calling him a “dummy,” K.P. demonstrated her ability to receive, retain, and transmit accurate impressions and demonstrated that she understood that simply because a statement is made does not mean the statement is true. Certainly, her questions regarding her pet dog and regarding the “dummy” statement indicated more than a mere comprehension that “same equals true” and “different equals lie.”
In sum, when all of K.P.’s testimony is considered in its entirety, it is apparent that the record is one upon which the trial judge could find that she possessed moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts. Modlin, supra; Clem, supra. As such, we hold that the trial court did not abuse its discretion in allowing K.P. to testify.
II. Excited Utterance
Appellant further argues that the trial court erred in admitting Pulliam’s testimony pursuant to the excited-utterance exception to hearsay. This rule, found at Ark. Rule Evid. 803(2) allows the admission of a statement that relates to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition. The testimony at issue is Pulliam’s testimony that on August 2, 2002, several weeks after the abuse was disclosed, K.P. shouted at appellant, “Robert, don’t you hurt my sister the way you hurt me” when her sister got into the vehicle in which appellant was a passenger.
For the excited-utterance exception to apply, there must be an event which excites the declarant and the resultant statement must be uttered during the period of excitement and must express the declarant’s reaction to the event. Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). The factors to consider in determining whether a statement is an excited utterance include: (1) the age of the declarant, (2) the physical and mental condition of the declarant, (3) the characteristics of the event, (4) the subject matter of the statement. Id. (citing United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)). The lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive whether a statement is an excited utterance. Id. In order for this exception to apply, it must appear that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. Peterson v. State, 349 Ark. 195, 76 S.W.3d 845 (2002). It is within the trial court’s discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect. Moore, supra.
Appellant challenges the admission of Pulliam’s testimony on the grounds that: 1) K.P.’s statement was not made under the stress of the “startling event,” because too much time had elapsed between the rape and K.P.’s statement, and 2) Pulliam’s testimony was so inconsistent that it was an abuse of discretion to admit it. We hold that the trial court did not abuse its discretion in admitting Pulliam’s testimony.
It is not precisely clear when the abuse occurred in this case. K.P. testified that she was five years old when the abuse occurred. She first reported the abuse during the early part of July 2002. According to Billy Powell, K.P.’s uncle, she came to visit his family near the July 4 holiday. He testified that she reported the incident to him during the second day of her visit.
The testimony is also unclear regarding when K.P. returned to Arkansas. Billy testified that K.P. stayed approximately two weeks. Vonda Powell, K.P.’s mother, testified that K.P. had been back approximately one week before K.P. saw appellant on August 2 incident. Pulliam, by contrast, testified that K.P. returned to Arkansas on August 1, 2002.
In any event, Pulliam testified that on August 2, 2002, she, Vonda, K.P., K.P.’s sister Jordan, and Pulliam’s two children were riding in Pulliam’s vehicle on the way to the Children’s Advocacy Center. According to Pulliam, the rape allegations had not been discussed with K.P. that day and K.P. was unaware of the reason they were visiting the Center. She further testified that K.P. had not seen appellant that day, and to the best of Pulliam’s knowledge, K.P. had not seen appellant since her return (which appellant does not dispute).
Prior to seeing appellant, K.P. was laughing and joking with Pulliam’s son, who was in the back seat with her. Pulliam stopped in the road when they met Linda Powell’s vehicle. Linda is Pulliam’s aunt and K.P’s grandmother. Appellant was in the passenger seat of Pulliam’s vehicle. Pulliam and Linda, who conversed for approximately one minute with their windows down, agreed that Jordan and Pulliam’s daughter would go to Linda’s house. Pulliam testified that when K.P. saw Jordan getting into the vehicle in which appellant was seated, K.P. removed her seatbelt, jumped between the bucket seats into Pulliam’s lap, stuck her head out of the driver’s side window and yelled, “Robert, don’t you hurt my sister like you hurt me.”
Pulliam further testified that K.P. repeated the statement four or five times, and that she was “very upset” and that “tears [were] coming out of her eyes, streaming.” She returned K.P. to her seat and began to drive away, but had to pull over to soothe and comfort her.
On these facts, we hold that the trial court did not err in admitting Pulliam’s testimony. First, appellant is simply wrong in asserting that the exciting event must be the crime itself. For support, he erroneously relies on cases in which the startling event was the crime itself but ignores authority affirming the admission of statements made in relation to an event that was not the crime itself.
For example, in George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), the Arkansas Supreme Court affirmed the admission of a child sexual abuse victim’s statement as an excited utterance where, following a nightmare, the child told her mother that the defendant had bitten her on her genital area. In that case, as here, it was not certain how much time had passed between when the abuse had occurred and when the startling event occurred. The victim in George had been enrolled in the defendant’s day-care program from September 1988 through September 1989, but returned on occasion through October 1989, and visited with the George defendant and his wife on October 31, 1989. The victim was willing to see the defendant two weeks prior to Halloween but did not want to visit him on Halloween.
In George, the two-and-a-half year old victim awoke from a nightmare on November 2, 1989, complaining that there were dinosaurs in her room that might bite her. When her mother tried to allay her daughter’s fears, the victim insisted, “Yes, there’s dinosaurs in there and they are going to bite me and they are going to bite me like [the George defendant] bites me.” When asked by her mother what she meant, the victim stated, “He bites me on my tee tee” and then pointed to her genital area. The George court held the victim’s statements were admissible as excited utterances because “they were made at an unusually late hour following a nightmare that clearly terrified the victim.” Id. at 366, 813 S.W.2d at 796.
Thus, it is clear under George that the startling event may be something other than the crime alleged. To that extent, appellant’s reliance on cases in which our courts have excluded statements regarding abuse as excited utterances because too much time had passed between the abuse and the statement is misplaced. Instead, the issue for this court is whether K.P.’s observance of her sister getting into a vehicle with K.P.’s alleged rapist was a startling event, and whether K.P.’s statement was made in response to that event, while she was under the stress of that event.
We are convinced that a sexual abuse victim’s observance of her sister getting into a vehicle with the alleged rapist only a few weeks after the victim had disclosed the abuse would be even more startling than the victim merely having a seemingly unrelated nightmare, as occurred in George. Further, the evidence is clear that K.P. was responding to the stress of seeing appellant and seeing her sister get into the vehicle with him. Pulliam testified that the issue of the rape had not been discussed that day, and that, to the best of her knowledge, the August 2 incident marked the first time after K.P.’s return from Oklahoma that K.P. had seen appellant. Prior to seeing appellant, K.P. was laughing and joking with her cousin in the back seat. However, when K.P. realized that her sister was getting into the same vehicle as appellant, her demeanor markedly and immediately changed. She left her seat, jumped into Pulliam’s lap, and repeatedly yelled at appellant not to hurt her sister the way he had hurt her. K.P. was also shaking and crying and had to be comforted. On these facts, there is no doubt that K.P.’s response was immediate and that it was made under the stress of the event of seeing her sister get into the vehicle with the alleged rapist.
Appellant also argues that the trial court erred in admitting Pulliam’s testimony because her testimony was inconsistent in some respects. However, this argument is to no avail, because it is well-settled that it is the job of the jury, as fact finder, to weigh inconsistent evidence and make credibility determinations. Harmon v. State, 340 Ark. 18, 8 S.W.3d. 472 (2000). Further, a witnesses’s inconsistent testimony does not render it insufficient as a matter of law. Id. As the State notes, although some of the peripheral details were difficult for Pulliam to recall, such as whether she had planned to meet Linda Powell, Pulliam’s account of K.P’s statement and response to the event were consistent. As such, we hold that the trial court did not err in admitting Pulliam’s testimony.
Affirmed.
Robbins and Bird, JJ., agree.
The record is not clear regarding when Billy Powell reported the abuse to the family, when the family reported the abuse to the police, or whether appellant was allowed to remain in K.P.’s household after the allegations were made. | [
112,
-20,
-19,
-3,
9,
97,
40,
48,
2,
-121,
53,
-14,
43,
-62,
12,
121,
43,
61,
84,
33,
-48,
-77,
23,
-63,
-14,
-5,
-8,
86,
-78,
79,
-20,
-11,
77,
112,
74,
-47,
98,
-54,
-9,
92,
-122,
-114,
-119,
64,
64,
-126,
100,
55,
34,
7,
53,
-98,
-29,
42,
60,
-57,
107,
44,
79,
-65,
72,
50,
-33,
23,
63,
20,
-93,
6,
-65,
13,
120,
0,
-36,
-79,
33,
-68,
122,
-74,
-126,
-11,
111,
-117,
12,
32,
66,
32,
13,
-125,
-67,
-87,
-65,
126,
-68,
-89,
-104,
104,
65,
13,
-73,
-47,
68,
80,
11,
-6,
-9,
12,
93,
100,
-85,
-49,
-100,
-71,
13,
36,
-102,
58,
-29,
-67,
16,
101,
-49,
-32,
84,
85,
-6,
-45,
-66,
-78
] |
David M. Glover, Judge.
In an order entered November dge. parental rights of Katheryn and Mateus Neves da Rocha, appellants herein, were terminated as to their daughter, V.N. Appellants now appeal that order, arguing that the trial court misapplied the doctrines of res judicata and collateral estoppel in this case, thereby improperly dispensing with DHS’s burden of proof and depriving appellants of a proper opportunity to be heard. Under this broad point of appeal, appellants have delineated eight subpoint headings:
A.Definitions of res judicata and a particular type thereof: collateral estoppel.
B.The Neves da Rochas did not receive the full and fair hearing in the earlier proceedings required for application of the doctrines.
C.The preclusion doctrines are inapplicable because of differences in the standard of proof.
D.The preclusion doctrine is particularly inapplicable to the termination hearing because the case was on appeal at the time.
E.The circuit court abused its discretion by permitting the use of offensive collateral estoppel.
F.The apparent application of Ark. Code Ann. § 9-27-341 as a basis to apply preclusion doctrines is also flawed.
G.In addition to the structural problems caused by the circuit court’s rulings, the Neves da Rochas can demonstrate actual prejudice from the denial of their right to call an expert witness.
H.The denial of continuances also prejudiced the Neves da ' Rochas.
In Bearden v. Department of Human Services, 344 Ark. 317, 328, 42 S.W.3d 397, 403-04 (2001) (citations omitted), our supreme court, citing Ullom v. Department of Human Services, 340 Ark. 615, 12 S.W.3d 208 (2000), set forth the well-settled standard of review in cases where parental rights have been terminated:
We have held that when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations.
In the present case, a petition for emergency custody was filed by DHS on January 25, 2004. In the affidavit in support of that petition, Raeshunna Robinson, a DHS employee, stated that V.N., who was born on December 2, 2003, was taken to the emergency room at Arkansas Children’s Hospital for a second time on January 15, . 2004, where it was determined that she had multiple bone fractures all over her body that were of varying ages. She had previously been taken to the emergency room on January 10, 2004, at which time she was diagnosed with a broken clavicle and humerus. Robinson stated in her affidavit that V.N. was taken into DHS custody on January 22, 2004, because she had too many unexplained broken bones in her body and that the agency was concerned for her safety and welfare. An order of emergency custody was filed of record on January 26, 2004, placing custody of V.N. with DHS; appointing Stasia Burk as attorney ad litem for her; and setting the probable-cause hearing for January 30, 2004.
The probable-cause hearing was held on January 30, 2004, at which time the trial judge found that it was contrary to V.N.’s health and welfare to be returned to her parents due to the multiple number of fractures she had sustained without any explanation. At that hearing, both parents testified that they did not know what caused all the fractures, and they denied harming their child. Katheryn Neves da Rocha testified that V.N.’s bone densitometry test and parathyroid and vitamin D levels were all normal; however, the results of a collagen test to determine whether she had osteogenesis imperfecta (brittle-bone disease) were not back at the time of this hearing. The trial judge scheduled the adjudication hearing for March 18 and 24, 2004, setting the date out as far as possible in order to hopefully have the results of the collagen test at that time, but stating that the matter absolutely had to be heard within sixty days, and that under no circumstances could the trial court continue the hearing any later than sixty days. See Ark. Code Ann. § 9-27-327(a)(1)(B) (Supp. 2005) (adjudication hearing to be held within thirty days after the probable-cause hearing; adjudication hearing can be continued for thirty days upon motion of court and parties for good cause shown, but the adjudication hearing shall not be completed more than sixty days after the probable-cause hearing).
The adjudication hearing was held on March 24, 2004. At the beginning of the hearing, appellants’ attorney objected to holding the hearing that day, arguing that the statute mandating that the adjudication hearing be held within sixty days of the probable-cause hearing was unconstitutional and violated his clients’ rights to procedural and substantive due process because the one definitive test regarding brittle-bone disease had not yet been completed.
In response, DHS cited Hathcock v. Arkansas Department of Human Services, 347 Ark. 819, 69 S.W.3d 6 (2002), in which our supreme court held that the purpose of the time limit on continuances for adjudication hearings was clear, and that the limited continuance provision of the juvenile code controlled rather than Rule 40(b) of the Arkansas Rules of Civil Procedure because it served the specific purpose of expediting hearings involving children in out-of-home placements. Based upon this case, the trial court denied appellants’ request to continue the hearing until the results of the brittle-bone test could be learned.
At the adjudication hearing, Katheryn Neves da Rocha testified again that she did not know what caused V.N.’s injuries. She stated that except for her husband dropping V.N. one time, they did not know who could have done this to their child. Mateus Neves da Rocha testified that one of the fractures could be explained by the incident when he accidentally dropped his daughter, but he did not have an explanation for any of the other fractures. Both parents expressed that they thought V.N. would be safe with them.
In its amended adjudication order, the trial court found that V.N. was dependent/neglected; that the injuries suffered by V.N. were not accidental; and that one or both of the parents were the likely ones who caused the injuries. The trial court noted that this was a sad case, but it had to rule on the testimony that had been presented. The trial court pointed out that both parents denied harming the child, but X-rays indicated fractures of varying ages, ranging from two to four weeks old. The trial court found that there were several types of fractures, some consistent with fractures that a child-abuse victim might have, including bucket-handle fractures and oblique fractures, and that the radiologist’s findings were suspicious of trauma. The trial court also found that the evidence and observation of medical personnel did not reveal symptoms of brittle-bone disease, while noting that the results of the one test that would determine brittle-bone had not been returned. The trial court further found that V.N. was not safe in her parents’ home. The findings in this adjudication order were not appealed.
At the disposition hearing on April 7, 2004, the trial court found that adoption should be the goal because it was in V.N.’s best interests due to her injuries and the fact that one or both of her parents likely caused the injuries. On May 13, 2004, the trial court entered a no-reunification-efforts order, finding that it was in V.N.’s best interests that no reunification services be provided. The trial court found that V.N. had been subjected to extreme and repeated cruelty; that the injuries were not accidental; and that one or both parents likely caused the injuries. The trial court also noted that the last bone test, the one for osteogenesis imperfecta, had come back with no abnormal findings.
At the no-reunification hearing, DHS’s attorney moved to incorporate the record of the case into the hearing, and there were no objections. Also at that hearing, the trial court denied appellants’ motion to allow Dr. Charles Hyman to testify regarding alternative theories of the source of V.N.’s injuries other than from her parents, finding that all of the issues that Dr. Hyman would testify about had already been litigated, and that it was res judicata and not relevant to that stage of the proceeding. Appellants filed a notice of appeal after entry of the no-reunification order.
The trial court entered an order on November 16, 2004, from the October 29, 2004 termination hearing finding that it was in V.N.’s best interests to terminate appellants’ parental rights. In that order, the trial court noted that it incorporated into the record all of the pleadings and testimony in the case incurred before the termination of parental rights hearing; that it denied appellants’ request to allow Dr. Hyman to testify; and that it granted the termination of appellants’ parental rights. Appellants also filed a notice of appeal from this order.
Each of the first six subpoints of appellants’ argument pertain to the trial court’s refusal to allow appellants to present testimony from Dr. Charles Hyman at the no-reunification hearing that refuted a finding of child abuse on the part of appellants. The trial court refused to allow Dr. Hyman to testify, stating, “All the issues that Mr. Smith believes Dr. Hyman can testify about have already been litigated. It is res judicata. It is not relevant to this stage of the proceeding.”
The process through which a parent or parents travel when a child is removed from their home consists of a series of hearings — probable cause, adjudication, review, no reunification, disposition, and termination. All of these hearings build on one another, and the findings of previous hearings are elements of subsequent hearings. “[T]he proceedings and orders pertaining to the termination of parental rights [are] in fact a continuation of the original dependency-neglect case.” Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 361, 990 S.W.2d 509, 514 (1999). Furthermore, a second dependency-neglect adjudication is not required at the final hearing — DHS must only prove that the child has been previously adjudicated dependent/neglected. Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).
In this case, appellants had the opportunity at the adjudication hearing to present competing evidence to DHS’s assertion that they had abused their child — yet they presented none. This was the place for Dr. Hyman’s testimony — prior to the adjudication of V.N. as dependent/neglected and the trial court’s findings that the injuries were not accidental, that appellants were the ones who likely caused the injuries, and that V.N. was in fact a victim of child abuse.
It is not necessary to address appellants’ arguments concerning res judicata because they did not appeal the adjudication order, which is an appealable order. Ark. R. App. P. - Civ. 2(c)(3)(A). Because appellants failed to appeal this order, in accordance with our supreme court’s decision in Jefferson v. Arkansas Department of Human Services, 356 Ark. 647, 158 S.W.3d 129 (2004), this court cannot now consider arguments relating to errors made during the adjudication hearing. Appellants are trying to relitigate the merits of the adjudication hearing with the introduction of Dr. Hyman’s testimony at both the no-reunification hearing and the termination hearing, and Jefferson makes it clear that that is improper. See also Lewis v. Arkansas Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005).
In their next subpoint, appellants argue that they can demonstrate actual prejudice from the denial of their right to call Dr. Hyman as an expert witness. However, as discussed above, Dr. Hyman’s intended testimony was offered to refute the earlier adjudication-hearing finding that V.N. had been abused, and that is not allowed under our supreme court’s holding in Jefferson, supra.
Appellants’ last subpoint, that the denial of continuances prejudiced them, is broken down into the denial of the original continuance in the dependency-neglect hearing and the denial of the continuance at the termination hearing. With regard to the denial of the continuance in the dependency-neglect hearing, it is clear that we are bound by the reasoning set forth above from Hathcock v. Arkansas Department of Human Services, supra, which is applicable in this case and which supports the denial of appellants’ motion for continuance at the dependency-neglect hearing.
We also find no error with regard to the denial of the continuance at the termination hearing to afford Dr. Hyman an opportunity to examine V.N. As the trial court stated at the hearing, it could see no other purpose for Dr. Hyman’s testimony than to refute the original cause of the injuries and the finding of dependency neglect from the adjudication hearing, which, as discussed above, is not permitted by our supreme court’s holding in Jefferson, supra.
Affirmed.
Neal and Vaught, JJ., agree.
The statutory provision in place at the time Hathcock was decided was fifty days, which has now been increased to sixty days. See Ark. Code Ann. § 9-27-315(d)(2) (Supp. 2005).
This court granted appellants’ motion to hold briefing in abeyance until the record from the termination hearing could be lodged. | [
-80,
-20,
-12,
108,
26,
99,
122,
-102,
83,
-85,
103,
-45,
-27,
-38,
16,
127,
-17,
47,
82,
104,
-45,
-77,
6,
-127,
116,
-13,
48,
-44,
-77,
109,
-26,
84,
-52,
112,
-58,
-11,
70,
81,
-51,
16,
-114,
19,
-120,
105,
25,
-122,
48,
115,
18,
31,
81,
-82,
-93,
42,
57,
-57,
-88,
10,
79,
-67,
-36,
-104,
-98,
-123,
94,
17,
-79,
36,
-102,
99,
-40,
46,
0,
57,
1,
-24,
51,
-76,
-122,
52,
75,
25,
-95,
112,
98,
1,
124,
-11,
-16,
-120,
110,
-100,
-97,
-90,
-102,
25,
75,
109,
-74,
-80,
76,
69,
46,
110,
103,
-116,
94,
100,
10,
-113,
-42,
-95,
-116,
-48,
-104,
3,
-25,
-62,
16,
113,
-58,
-16,
84,
83,
115,
-103,
-90,
-74
] |
Andree Layton Roaf, Jfrom a termination of
This is a no-merit appeal from a termination of parental rights. Counsel for Donna Smith has filed a motion to withdraw and a no-merit brief pursuant to Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004) (Linker-Flores I), and Ark. Sup. Ct. R. 4-3(j)(1). Smith was provided a copy of counsel’s brief, and filed pro se points for reversal pursuant to Ark. Sup. Ct. R. 4-3(j)(2). Arkansas Department of Human Services (DHS) has filed a brief in response. We affirm the trial court’s termination of Smith’s parental rights.
Because this is a no-merit appeal, only a brief recitation of the event that led to the minor child’s removal from the home is necessary. On January 17, 2003, DHS exercised a seventy-two hour hold on M.S. after her mother, Donna Smith, was arrested on drug-related charges. DHS received a call reporting that five children, including M.S., had been found in a home in which there had been a methamphetamine lab raid. The lab, including chemicals and a Bunsen burner, was found in a closet adjacent to a room in which the children slept. The house was in disarray with a bad odor, and roaches were everywhere. M.S. was very sick and had to be taken to the doctor. After M.S. was taken into DHS custody, Smith was arrested, because DHS did not want the mother arrested in front of the children. DHS then filed a petition for emergency custody alleging that Smith’s home was environmentally unsafe; that M.S.’s health and safety were at risk because there was a methamphetamine lab next to the bedroom where she slept; and that M.S. had no appropriate caregivers because both of her parents were incarcerated.
The termination hearing in this case was held on July 7, 2004, a year and a half later. At that time, Smith was incarcerated, having been convicted of the methamphetamine-related offenses that led to her arrest at the beginning of the case. She was sentenced to seventy-two months’ imprisonment. Because she was incarcerated, she was not in attendance at the hearing. Apparently, her attorney had only filed his request for transportation of Smith to the hearing a few days earlier. The request had not been granted, and he moved for a continuance. The motion was denied, and Smith’s testimony was taken via telephone. The denial of Smith’s motion for continuance is the sole adverse ruling resulting from the termination hearing, in addition to the trial court’s ultimate decision to terminate.
In Linker-Flores I, supra, our supreme court held that the no-merit procedure set forth in Anders v. California, 386 U.S. 738 (1967), shall apply in cases of indigent-parent appeals from orders terminating parental rights. The court held that appointed counsel for an indigent parent on a first appeal from a termination order may petition to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Id. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. Id. The indigent parent must be provided with a copy of the brief and notified of her right to file points for reversal within thirty days. Id. If the appellate court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel’s motion and dismiss the appeal. Id. If the court finds any of the legal points arguable on the merits, it will appoint new counsel to argue the appeal. Id. The court allowed Linker-Flores’s counsel to file a no-merit brief. On November 17, 2005, the supreme court decided Linker-Flores II, based upon the Anders procedure. Linker-Flores v. Ark. Dep’t of Human Servs., 364 Ark. 224, 217 S.W.3d 107 (2005) (Linker-Flores II). In a companion case to Linker-Flores II, handed down on the same day, Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005), the court also held that a “conscientious review of the record” requires the appellate court to review all pleadings and testimony in the case on the question of the sufficiency of the evidence supporting the decision to terminate, when the trial court has taken the prior record into consideration in its decision. The supreme court further held that only adverse rulings arising at the termination hearing need be addressed in the no-merit appeal where there has been no appeal from the prior orders in the case, because the prior orders are considered final appealable orders pursuant to Ark. R. App. P. — Civ. 2(c)(3). Accordingly, this court must review the entire record on the issue of the trial court’s ultimate decision to terminate, and, additionally, any adverse ruling made in the course of the termination hearing itself.
In this case, the trial court found that the child had come into care due to the parents’ drug use and instability; that the child had been out of the home in excess of twelve months and conditions had not been remedied, that the mother was incarcerated again for drugs and had failed to provide support for the child, that the mother had been sentenced to 144 months in prison for having a meth lab in her home with the child present; that she had been incarcerated twice in the child’s short life; and that she had failed to provide permanency, support, or for the basic needs of the child.
Based upon our review of the record, the trial court’s findings in this regard are supported by the record and constitute more than clear and convincing evidence warranting termination, pursuant to Ark. Code Ann. § 9-27-341 (Repl. 2002) and the prior published case law from both this court and the supreme court. See Trout v. Ark. Dep’t Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004). There simply is no case authority upon which to base reversal of a trial court’s decision to terminate under circumstances such as were present in this case, even where the parent has made some attempts to rectify her conditions. There were no such attempts made in this case in any event. An appeal on the merits of this case would indeed be wholly frivolous. See Trout, supra; Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005).
With regard to the adverse ruling which occurred at the termination hearing, a trial court shall grant a motion for continuance only upon a showing of good cause and only for so long as is necessary. Green v. State, 354 Ark. 210, 118 S.W.2d 563 (2003). The law is well established that the granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Id. When deciding whether a continuance should be granted, the trial court should consider the following factors (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the witness’s attendance in the event of postponement; (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Id. Additionally, the appellant must show prejudice from the denial of a motion for continuance. Id.
This issue also does not present a meritorious issue on appeal. Smith’s counsel was not diligent in requesting the transportation order and did not make a motion for continuance until the day of the termination hearing, which was not diligent. Moreover, Smith was not prejudiced, as she was allowed to testify via telephone.
Finally, Smith has filed what purports to be points for reversal in the form of a letter to the clerk. Her letter advised that she expected to be out of prison by September 2005 and prayed that she be given more time to prove to the court that she can change. A subsequent letter advised that she is now out of prison, has a home and a job, and asks to see her daughter. Smith does not raise any issue in her letters which would provide a basis for a meritorious appeal. Accordingly, counsel’s motion to withdraw is granted, and the trial court’s order terminating parental rights is affirmed.
Bird and Baker, JJ., agree.
The appropriate procedure pursuant to Anders is to grant counsel’s motion to withdraw and affirm the conviction, not dismiss the appeal. See Moore v. State, 362 Ark. 70, 207 S.W.3d 493 (2005). | [
-79,
-22,
108,
-68,
10,
-31,
88,
-68,
83,
-37,
119,
115,
-17,
38,
21,
107,
-117,
103,
80,
105,
-45,
-77,
87,
33,
86,
-13,
58,
-47,
-70,
-49,
116,
-36,
76,
112,
-118,
-43,
66,
-46,
-25,
80,
-118,
17,
-120,
-23,
81,
-122,
40,
43,
-102,
14,
53,
-98,
-70,
45,
25,
-53,
40,
42,
-37,
61,
92,
-15,
-101,
7,
-33,
54,
-93,
52,
-78,
-123,
80,
127,
24,
57,
0,
-24,
48,
-76,
-126,
60,
70,
25,
4,
33,
-22,
-128,
25,
-9,
-80,
-120,
-2,
-66,
-99,
-90,
-119,
41,
83,
33,
-66,
-68,
109,
20,
46,
-6,
99,
5,
117,
-20,
8,
-49,
58,
-127,
28,
-119,
84,
-69,
-29,
-95,
48,
117,
-59,
-94,
92,
-41,
115,
-39,
-50,
-69
] |
John B. ROBBINS, Judge.
This is an appeal from a decision of the Arkansas Board of Review holding that appellant was disqualified to receive unemployment compensation for a period of eight weeks because he had been discharged from his last work for misconduct in connection with the work. We hold that there is no substantial evidence that supports the Board’s decision and reverse.
Appellant Freddie Yarbrough was employed for over three years as an account executive in sales for appellee Conway Transportation Service. His employer held annual sales meetings that appellant was expected to attend. It was at the February 21-22, 2001, meeting that appellant was discharged. The sales meeting began at 7:30 a.m. each day. Appellant appeared timely the first day, but was tardy the second day. Johnny Thompson, appellee’s service center manager, testified that appellant was forty-five to sixty minutes late, and the explanation appellant gave him was that he had set his alarm clock but his pet had somehow pulled the cord from the wall and he did not wake up early enough to get to the meeting on time. Thompson said that this incident of not reporting on time was the terminating event, but there had been some overall attendance problems and some issues with his personal life.
Appellant acknowledged that it was mandatory to attend both days of the meeting, that there were alcoholic beverages served the evening of the first day of the meeting, and that he drank too much. He said when he arrived fifteen minutes late the second morning of the meeting, he was sent home without being given an opportunity to explain that his daughter’s puppy knocked over his alarm clock.
The Board found that appellant was discharged for failing to report on time on the second day of the sales meeting, and further found that the “employer credibly testified that, due to personal problems, the claimant’s attendance had declined and was generally unsatisfactory.” Consequendy, the Board concluded that appellant’s conduct violated a standard of behavior the employer had a right to expect and constituted misconduct.
Our standard of review in cases from the Board of Review is as follows:
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.
Walls v. Director, 74 Ark. App. 424, 427, 49 S.W.3d 670, 672 (2001). The statutory authority cited by the Board in its decision was Ark. Code Ann. § ll-10-514(a)(l) (Supp. 2001), which states that “an individual shall be disqualified for benefits if he was discharged from his last work for misconduct in connection with his work.” In earlier decisions we have given the following definition to the term “misconduct:”
[MJisconduct involves: (1) disregard of the employer’s interests, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer.
To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.
Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 118, 613 S.W.2d 612, 614 (1981); see also Walls v. Director, supra.
Showing up at work, whether at the plant, the office, or even a sales meeting, is certainly a standard of behavior that an employer has a right to expect of its employees. Even a single incident of missing work has been held to violate a standard of behavior that a restaurant employer had a right to expect and constituted employee misconduct. Parker v. Ramada Inn & Daniels, 264 Ark. 472, 572 S.W.2d 409 (1978). However, since Parker was decided by our supreme court, the applicable statute was amended, to-wit:
Arkansas Code Annotated section 11-10-514.
Disqualification — Discharge for misconduct.
(a)(1) If so found by the Director of the Arkansas Employment Security Department, an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work.
(2) In all cases of discharge for absenteeism, the individual’s attendance record for the twelve-month period immediately preceding the discharge and the reasons for the absenteeism shall be taken into consideration for purposes of determining whether the absenteeism constitutes misconduct. (Italics added.)
The italicized sentence of subsection (2) was added by Act 482 in the 1983 legislative session. This amendment clearly evinces a public policy to require consideration of an employee’s attendance record for the preceding twelve-month period when determining whether the employee’s absence constitutes such misconduct as to disqualify the employee from entitlement to unemployment compensation.
Appellant was not discharged for being absent; he was discharged for being tardy, sixty minutes at most. Surely, if a determination of misconduct for missing an entire work shift requires consideration of the employee’s attendance history for the previous twelve months, a single incident of tardiness should receive no less consideration. The appellant’s tardy arrival on this single occasion and the vague reference by appellant’s manager to “some overall attendance problems” does not constitute substantial evidence that appellant intentionally violated his employer’s requirements of punctuality so as to manifest wrongful intent or evil design. See Walls v. Director, supra.
We reverse and remand for an award of benefits.
GRIFFEN and ROAF, JJ., agree. | [
60,
-24,
-35,
28,
11,
64,
50,
-66,
85,
-81,
119,
83,
-89,
-9,
29,
121,
-13,
111,
80,
106,
-43,
-77,
115,
98,
-62,
-13,
-39,
69,
-75,
107,
-76,
124,
76,
48,
-62,
-41,
102,
72,
-51,
80,
-94,
7,
43,
105,
121,
-128,
40,
46,
-78,
15,
49,
-100,
-21,
60,
24,
79,
108,
44,
127,
62,
80,
-15,
-54,
13,
111,
0,
-109,
-60,
-101,
15,
-40,
46,
-100,
48,
0,
-56,
112,
-74,
-126,
52,
105,
-103,
12,
98,
98,
32,
29,
-25,
-84,
-88,
22,
-74,
-99,
-90,
-80,
121,
11,
77,
-98,
-99,
126,
20,
46,
-2,
-6,
-59,
31,
100,
14,
-50,
-66,
-77,
29,
-27,
-106,
-117,
-17,
-93,
-112,
113,
-50,
-30,
92,
69,
83,
27,
-114,
-80
] |
Karen R. Baker, Judge.
Appellant Charles Weatherford udgeby . Fort Smith Police Department on December 30, 2003, and charged with possession of methamphetamine with intent to deliver, possession of drug paraphernalia, and simultaneous possession of drugs and a firearm. Appellant filed a motion to suppress the evidence seized, arguing that information provided by an informant was overly vague and insufficiently detailed, and also that the informant did not meet the legal requirements for reliability. The trial court denied the motion and the appellant entered a conditional plea of nolo contendere. Appellant was found guilty and sentenced to ten years in the Arkansas Department of Correction with an additional suspended term of ten years. We find no error by the trial court and affirm.
An appellate court conducts a de novo review of a denial of a motion to suppress evidence based on a totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003).
The trial court judge held a hearing following the appellant’s motion to suppress in which the State presented two witnesses — Detective Barnett of the Fort Smith Police Department’s Vice-Narcotics unit and Investigator Reese of the Twelfth-Twenty-First Judicial District Drug Force.
Detective Barnett testified that Investigator Reese contacted him prior to the appellant’s arrest and advised him that there was reliable information from a confidential informant that the appellant was at Justin Burns’s body shop in possession of methamphetamine, ephedrine, and a gun. Barnett drove to the location in an unmarked vehicle to assist Reese and began surveillance. Barnett testified that he was given a description of the vehicle and trailer the appellant would be driving, which he subsequently observed leaving the location under surveillance. Barnett was in contact with Reese by cell phone during the surveillance and notified him that the appellant was leaving the body shop. Based on his contact with Reese and observation of the vehicle and trailer as described by the informant, Barnett contacted a marked police vehicle to conduct a traffic stop of appellant’s vehicle.
Barnett frisked the appellant and found a glass pipe of the type commonly used to smoke methamphetamine and placed him under arrest. Additional pipes, a small quantity of methamphetamine, and a large sum of cash were found on the appellant following his arrest. During this search Barnett asked the appellant if there was a gun in the vehicle, and the appellant said that there was a gun located in his briefcase. In the course of his inventory of the vehicle, Barnett found the gun, five bags of methamphetamine, and digital scales in the briefcase. There was also a gym bag found in the vehicle that contained two large bags of powder with a strong odor that Barnett surmised was Acetone — a solvent often used to break down pills containing pseudoephedrine or ephedrine for the manufacture of methamphetamine.
Investigator Reese testified that in the course of his narcotics duties in Sebastian and Crawford counties he was contacted by a police officer who had contact with an informant who had voluntarily brought information to his attention. Although Reese knew the informant by name, the informant had not provided Reese with information previously. The police officer brought the informant to Reese’s office, and Reese conducted an interview with him that Reese described as “extensive” and that lasted over an hour. Reese testified that his personal knowledge previously acquired through narcotics investigations and intelligence corroborated the information that the informant provided during the interview. Specifically, Reese testified that Justin Burns’s body shop was a location known for criminal activity and Justin Burns had confessed to producing methamphetamine. Reese additionally testified that he was also able to independently verify the informant’s description of the vehicle and the appellant’s methods of operation.
On December 30, 2004, Reese began surveillance of the location where the informant told him that the appellant would be located, and observed the trailer but not the vehicle. At that time Reese contacted the informant, who stated that he had been at the location and that the appellant’s vehicle was inside, and also that the appellant was preparing to leave. The informant verified that there was a gun and methamphetamine in the appellant’s vehicle.
At some point after this conversation with the informant Reese had to leave the scene temporarily to meet with the informant and Detective Barnett, and the Fort Smith Police Department took over the surveillance. Reese notified the Fort Smith police that the vehicle was inside and that the appellant was preparing to leave. Shortly thereafter Reese was told that the vehicle was backing out of the location and hooking up to the trailer. Reese, who met with the informant for approximately ten minutes, told the Fort Smith police that he was at too great a distance away to make the traffic stop and instructed them to do so. Reese testified that he was confident of the reliability of the informant, because the information provided had all been previously proven to be truthful and corroborated by his personal knowledge and narcotics intelligence. Therefore, he had no reservations in ordering the traffic stop of the appellant.
At the conclusion of testimony by Detective Barnett and Investigator Reese the trial judge determined that the informant and information he provided was reliable based on the totality of the circumstances. The trial judge particularly noted that the informant provided the information voluntarily, and that there was subsequent contact between the police and the informant during which the informant stated that he had again seen the items to be found in the appellant’s vehicle through personal observation. The appellant’s motion to suppress was denied. Appellant contends that the trial court’s determination that the informant was reliable was unsupported by’ testimony or Arkansas law and, therefore was in error.
The appellant mistakenly relies on Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988), to support his argument. In Kaiser, the Arkansas Supreme Court addressed the question of whether the State presented evidence sufficient to support reason able suspicion to stop a vehicle that was suspected of carrying marijuana, a gun, and a large amount of cash. The stop was based on a tip from the Missouri State Police who told the Randolph County Sheriffs Office that the information was provided by a reliable informant. Id. The supreme court stated that while the Arkansas authorities “did not act improperly in stopping Kaiser’s car on the basis of the information from the Missouri State Police” there had to have been reasonable suspicion by the Missouri State Police based on the reliability of the informant. Id. at 127-128, 752 S.W.2d at 273. The Kaiser court found that while the informant may have indeed been reliable, there was no testimony to support that conclusion. Id. at 129, 752 S.W.2d at 274. Here, in contrast to Kaiser, there was testimony provided by Investigator Reese that allowed the trial court to determine that the informant was sufficiently reliable, including his independent corroboration of the vehicle’s location, specific description, and the appellant’s method of operation.
Reliability of informants is determined by a totality of the circumstances analysis that is based on a three-factored approach the Arkansas Supreme Court adopted in Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998) (citing State v. Bybee, 131 Or. App. 492, 884 P.2d 906 (1994)). The factors are: 1) whether the informant was exposed to possible criminal or civil prosecution if the report is false; 2) whether the report is based on the personal observations of the informant; 3) whether the officer’s personal observations corroborated the informant’s observations. Id. at 118, 959 S.W.2d at 741. The Frette court examined the satisfaction of these factors:
The first factor is satisfied whenever [the informant] gives his or her name to authorities or if the person gives the information to the authorities in person. With regard to the second factor, “an officer may infer that the information is based on the informant’s personal observation if the information contains sufficient detail that ‘it [is] apparent that the informant had not been fabricating [the] report out of whole cloth . . . [and] the report [is] of the sort which in common experience may be recognized as having been obtained in a rehable way.’ ” The third and final element may be satisfied if the officer observes the illegal activity or finds the person, the vehicle, and the location as substantially described by the informant.
Id. (quoting Bybee, supra).
The Frette court termed this explanation of the satisfaction of the factors a “useful analytical framework” and applied them to determine that an informant’s tip “carried with it sufficient indicia of reliability to justify an investigatory stop.” Frette at 118, 959 S.W.2d at 741. Because the informant in Frette was identifiable and thus subject to prosecution for making a false report, he was found to have greater reliability and satisfied the first factor. The informant’s personal observation of the criminal activity gave him a reliable basis of knowledge and satisfied the second factor. The third factor was satisfied when the informant’s information was corroborated by a law enforcement officer. Id. at 121, 959 S.W.2d at 743.
Under the totality of the circumstances in the instant case — and applying the factors to determine sufficient indicia of reliability of an informant — we hold that the trial court committed no error in denying the appellant’s motion to suppress. Contrary to the appellant’s argument, there were sufficient facts to support the reliability of the informant. The reliability of the informant was established by the fact that he was identifiable and therefore subject to prosecution for making a false report. Additionally, Investigator Reese interviewed the informant personally for over an hour in order to determine his reliability. The information was based on personal knowledge and observation of the informant — observation which was verified again by Investigator Reese during the surveillance of the appellant and just prior to his arrest. Finally, Investigator Reese testified that he was able to corroborate information that the informant provided based on narcotics investigations and intelligence as well as with his own personal knowledge.
Based on the testimony of law enforcement officers involved in the appellant’s arrest and applying that testimony to the factors to provide sufficient indicia of reliability of an informant, we find that the trial court did not err in its denial of the appellant’s motion to suppress. We therefore affirm.
Gladwin and Robbins, JJ., agree. | [
-80,
-22,
-28,
30,
43,
97,
58,
-88,
82,
-29,
110,
83,
101,
64,
4,
57,
-86,
29,
84,
105,
-59,
-73,
71,
67,
-30,
-45,
24,
-43,
-66,
-53,
-20,
-36,
77,
124,
-29,
-43,
38,
-56,
-89,
26,
-50,
1,
-96,
97,
82,
-126,
32,
43,
26,
15,
33,
31,
-13,
46,
19,
-49,
73,
60,
75,
-67,
72,
-15,
-104,
93,
-51,
22,
-93,
52,
-107,
7,
-40,
126,
-40,
48,
0,
104,
51,
-106,
-126,
84,
103,
-101,
12,
96,
98,
1,
13,
-51,
61,
-116,
31,
62,
-99,
-89,
-40,
105,
73,
13,
-106,
-75,
126,
22,
-114,
-6,
115,
53,
113,
108,
-125,
-50,
-76,
-111,
13,
49,
-106,
119,
-1,
-89,
16,
117,
-49,
-30,
94,
86,
115,
27,
-57,
-75
] |
David M. Glover, Judge.
This appeal is a result of a boundary dispute. Appellants, David and Linda Ware and Robert Hattabaugh, argue that the trial judge erred in quieting title in favor of appellee, Jacquelyn Housley, and in finding that an existing fence was not the boundary by acquiescence. We agree that the trial court was clearly erroneous in finding that the fence line in this case had not become the boundary by acquiescence; therefore, we reverse and remand.
Our standard of review in boundary-line cases is set forth in Hedger Brothers Cement & Material, Inc. v. Stump, 69 Ark. App. 219, 222, 10 S.W.3d 926, 928 (2000) (citations omitted):
Although chancery cases are reviewed de novo on appeal, we will affirm a trial court’s finding of fact with regard to the location of a boundary line unless the finding is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, we are left, after considering all of the evidence, with the definite and firm conviction that a mistake has been committed.
In the present case, appellee and her late husband purchased their property in 1977, and in 1980, the late Mr. Housley erected a fence without the benefit of a survey that, according to Mrs. Housley’s testimony, was where Mr. Housley thought that the property line “might be.” Mrs. Housley said that it was her husband’s intention to build the fence on the property line. She testified that she was present at her son’s deposition and heard him testify that the late Mr. Housley had treated the fence line as the property line. Mrs. Housley testified that she removed the fence after a 2002 survey she had done indicated that the fence was not the property line, but she said that for the twenty years prior to the survey, she had never used the property on the other side of the fence.
Ron Daniel, who owns a portion of the property on the east side of Mrs. Housley, testified that he thought that the fence was the property line when he purchased his property in 1990. He said that he had used the land on his side of the fence exclusively for the last fourteen years and that no one had told him that they claimed it. Daniel said that all of Mr. Housley’s behavior indicated that he treated the fence line as the property line, and Daniel said that he understood that the fence line was the property line not only between his property and the Housley property, but also between the Housley property and the Hattabaugh property.
David Ware, who owns the property south of the Housley property and who is one of the appellants, testified that he bought his land twenty years ago and that there was an old fence there when he purchased his property. Ware testified that although Mr. Housley never made specific statements as to what he was treating as the property line, the actions that Mr. Housley took indicated that the fence line was the property line.
During appellants’ case in chief, appellant Robert Hat-tabaugh testified that he owned fifteen acres to the east of the Housley property, which he acquired in 1989. He stated that when he bought the property, he understood that the fence was the western boundary of his property. Hattabaugh testified that he had cut timber off all of the property, including the land in question; that he had built a pond right next to the fence line; and that he had built a “food plot” there for his animals. He also said that he had always maintained a road that ran “right up to the fence line.” He said that whenever anyone needed access to the property, they came to see him, and that when the Housleys had some dozer work done, they only dozed the property on their side of the fence.
In Hedger Brothers Cement, supra, we set forth the requirements to establish a boundary by acquiescence:
Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and appar-endy consent to that line, it becomes a boundary by acquiescence. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). A boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Id. The location of a boundary line is a question of fact. Id. ... Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Neely v. Jones, 232 Ark. 411, 337 S.W.2d 872 (1960).
69 Ark. App. at 222-23, 10 S.W.3d at 928.
In McWilliams v. Schmidt, 76 Ark. App. 173, 181, 61 S.W.3d 898, 905 (2001), this court held:
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 line 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).
In the case Boyette v. Vogelpohl, 92 Ark. App. 436, 214 S.W.3d 874 (2005), this court reversed the trial court’s finding that appellants had not established a boundary by acquiescence and reiterated the requirements for a boundary by acquiescence, citing Summer v. Dietsch, supra. In Boyette, the appellees had possession of their property for eight years prior to taking any action regarding the fence line in question. The fence line in that case had been in existence for forty years, with the Boyette family continually claiming the property on one side and other predecessor owners claiming the property on the other side of the fence. In reversing, this court held that it was of no consequence that the fence line was not originally erected to serve as a boundary line, but rather it was the conduct of the parties that determined whether there was a boundary by acquiescence.
In the present case, Mrs. Housley’s testimony indicates that her husband believed that he placed the fence on the property line. However, even if Mr. Housley had known that he did not put the fence on the property line, all of the evidence, even Mrs. Housley’s testimony, is consistent and not disputed, indicating that all of the parties treated the fence as the boundary line for over twenty years, which, according to case law, indicates that there was in fact a boundary by acquiescence, and the trial court erred in holding otherwise.
Reversed and remanded with instructions to quiet title in the appellants.
Griffen, Vaught, and Roaf, JJ., agree.
Hart and Crabtree, JJ., dissent.
We note that appellee argues, as an additional basis for affirming the trial court’s decision in her favor, that appellants did not plead in a compulsory counterclaim the theory of boundary by acquiescence. We disagree. A review of the pleadings indicates that appellants did sufficiently plead the theory of boundary by acquiescence in their counterclaims. | [
-16,
108,
-35,
-4,
-118,
96,
56,
-118,
107,
-117,
119,
83,
-81,
-56,
16,
123,
-125,
127,
17,
41,
-41,
-78,
83,
-61,
118,
-13,
-109,
-35,
-77,
108,
-10,
86,
76,
32,
-54,
-43,
70,
-54,
-17,
90,
-114,
6,
-117,
77,
-63,
-64,
52,
42,
20,
79,
53,
-114,
-77,
44,
25,
-61,
-23,
46,
107,
61,
16,
88,
-82,
13,
95,
7,
17,
53,
-102,
37,
122,
106,
-112,
57,
2,
-24,
115,
-74,
-106,
116,
7,
-69,
40,
102,
99,
0,
77,
-17,
40,
-104,
46,
126,
13,
-90,
-46,
24,
75,
37,
-98,
-99,
120,
112,
38,
126,
-26,
76,
94,
72,
1,
-57,
-74,
-111,
31,
48,
-112,
71,
-29,
-125,
-111,
112,
-59,
-22,
93,
98,
19,
-101,
-114,
-110
] |
Wendell L. Griffen, Judge.
Samuel Jefferson appeals from his conviction for possession of cocaine. He argues that the trial judge erred in denying his motion to suppress because his stop and detention were not based upon reasonable suspicion and because the seizure of the evidence was impermissibly tainted by his subsequent illegal detention. We agree. Therefore, we reverse and remand for a new trial.
In the early morning hours of August 19, 1999, appellant was stopped by officers of the Little Rock Police Department as he walked through Vorhees Trailer Park in Little Rock. The officers stopped appellant in an attempt to ascertain his identity. As appellant approached the officers, he dropped a small package, which the officers retrieved. Subsequent chemical analysis of the package confirmed that the package contained 2.138 grams of cocaine. Appellant was charged with possession of cocaine with intent to deliver.
Appellant filed a motion to suppress the evidence seized in the search. Citing Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), he alleged that the initial encounter was impermissible under Arkansas Rule of Criminal Procedure 2.2, in that the information requested was not being sought in the investigation or prevention of a crime. Appellant also asserted that the officers had no reasonable or articulable suspicion that he was armed and dangerous, or had committed or was about to commit a felony or a misdemeanor as described in Rule 3.1.
The testimony at trial established that Officer Charles Allen and Officer Charles Johnson were conducting a routine patrol in Vorhees Trailer Park on August 19, in response to numerous complaints and arrests due to narcotic activity by residents and nonresidents in the area. The officers came into the trailer park with their fights off at around 2:30 a.m., and observed appellant walking through the trailer park. When appellant walked in front of the police car, Johnson turned on his headlights. Appellant appeared startled when he saw the vehicle and changed the direction in which he was walking. The officers stopped, and Allen stepped out of the vehicle and asked appellant to approach so that they could determine whether he was a resident of the trailer park. Initially, appellant did not approach the car. Johnson testified that appellant hesitated and attempted to “evade” the officers.
Allen again called to appellant, who then approached the police car. As appellant approached Allen’s side of the car, he had his hand in his right pocket. Allen testified that appellant acted as if he were going to turn away. Allen again commanded appellant to approach the vehicle and drew his weapon. Allen saw appellant throw something to the ground as appellant moved toward the vehicle. The officers ascertained appellant’s identity and searched the immediate area. Allen retrieved the item that appellant had thrown, which was a pill botde containing ten to fifteen pieces of an off-white rock-like substance.
After the officers’ testimony, appellant’s counsel moved to suppress the evidence of the pill botde and its contents. The trial court found that appellant had not been actually detained until after the officer observed him throw something from his hands and that he was not searched in order to lead to the evidence that was introduced against him. It further noted that if appellant had discarded something, the officers had a right to pick it up. The court found that given the time of the day, the officers’ knowledge regarding the known drug activity at that location, and the fact that appellant was coming from between two trailers (as opposed to being on a public street) gave the officers authority to stop him and determine the reason for his presence to prevent crimes. The trial court denied appellant’s motion to suppress. After a jury trial, appellant was found guilty of the lesser-included offense of possession of cocaine and received a five-year prison sentence. He appeals solely from the denial of his motion to suppress.
In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances. See Hale v. State, 61 Ark. App. 105, 968 S.W.2d 627 (1998). Where the trial court denied a defendant’s motion to suppress, we will reverse only if, in viewing the evidence in the light most favorable to the nonmoving party, the trial court’s ruling is clearly against the preponderance of the evidence. See id.
I. Whether the Initial Stop was Proper
Appellant argues that the trial court erred in denying his motion to suppress because at the time of the stop, the officers lacked reasonable suspicion that he had committed or was about to commit any criminal offenses and because the officers were not investigating a particular crime. He maintains that his behavior did not give the officers reasonable suspicion to make the initial stop and, therefore, the subsequent search was illegal. Specifically, he argues that the fact that he was outside at 2:30 a.m. in a high-crime area did not give the officers ground for reasonable suspicion, nor did the fact that he initially hesitated before complying with the order to approach the vehicle. He asserts that pursuant to Illinois v. Wardlow, 528 U.S. 119 (2000), citizens have the right to ignore police who approach them without probable cause or reasonable suspicion and may go about their business with no response. Appellant also argues that although he changed his direction of travel, he did not engage in unprovoked flight as did the defendant in Ward-low, and he was merely ignoring the police, as he is permitted to do. Finally, he maintains that a person’s mere refusal to cooperate does not iustify detention or seizure. See Florida v. Bostick, 501 U.S. 429 (1991).
We agree that nothing about appellant’s behavior prior to the stop gave the officers reasonable suspicion that would justify a stop under Rule 3.1 or Rule 2.2. Rule 3.1 provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
Rule 2.1 defines reasonable suspicion as “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Factors that support a reasonable finding of reasonable suspicion include: a person’s conduct and demeanor, his gait and manner, the time of day or night the suspect is observed, the location involved, the incidence of crime in the immediate neighborhood, a person’s apparent effort to conceal an article, and a person’s effort to avoid identification or confrontation by the police. See Ark. Code Ann. § 16-81-203 (1987). Although an officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime, this encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. See Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998).
Rule 2.2 provides that a law enforcement officer may request any person to furnish information or to otherwise cooperate in the investigation or the prevention of a crime. The officer may request, hut may not require the person to respond to such requests. Appellant also argues that the search was not justified under Rule 2.2 because there was no evidence that the officers were investigating a particular crime. Although the area was a known high drug-traffic area, the officers did not testify that they had reports of any drug activity that evening. Nor was there any evidence that he was hiding or acting furtively, that he fled, that he was wearing bulging clothing that might conceal contraband, or that he was known to the officers as a prior offender. He argues that even in a high-crime area, unless a person is doing something indicative of criminal activity, the police may not approach that person, even under the guise of ascertaining his identity.
Appellant maintains that the application of these rules in Stewart v. State, 332 Ark. 138, 864 S.W.2d 793 (1998), and Jennings v. State, 69 Ark. App. 50, 10 S.W.3d 105 (2000), compels reversal in this case. We agree. In those cases, the Arkansas Supreme Court reversed on similar facts. In Stewart, the police officer was patrolling a known drug area at 1:45 a.m. He spotted the defendant standing on the corner outside of her home. Based upon the late hour, the place where she was standing, and the fact that he had made several prior arrests in that area, the officer suspected the defendant might be engaged in drug trafficking. He pulled his vehicle up to where the defendant was standing and asked what she was doing. She stated that she was about to go for a walk, and placed her right hand inside her coat pocket two or three times despite the officer’s request for her to keep her hands outside of her coat. See Stewart v. State, supra. Believing that the defendant had a weapon in her coat, the officer performed a pat-down search and felt a large bulge in her right coat pocket. The officer reached into the pocket and retrieved thirty-five one dollar bills, a one-hundred dollar bill, and a matchbox. The officer then opened the matchbox and found two rocks of crack cocaine. See Stewart v. State, supra.
The Stewart court reversed, finding that the officer’s only justification for the stop was that the defendant was in the wrong place at the wrong time, because there was nothing about the defendant’s actions or demeanor to indicate that she was involved in any illegal activity. Further, the court found that the defendant’s conduct in placing her hand in her pockets did not occur until after the officer asked her to approach the car and therefore, could not be used as a justification for the stop. See Stewart v. State, supra. Therefore, the Stewart court held that the stop was unreasonable under Rule 2.2. The court further found that the stop was not justified under Rule 2.2 because an encounter under that rule is permissible only if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime. See Stewart v. State, supra; See also Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997). The Stewart court stated that the officer was not investigating a nearby crime nor was he acting on a tip from an informant at the time of the encounter. Therefore, the court concluded that the encounter was not permissible under Rule 2.2. See Stewart v. State, supra.
In Jennings v. State, supra, our court reversed the denial of a motion to suppress on similar grounds. In Jennings, an officer spotted the defendant and a person known to the officer to be a high school student at the corner of an intersection in an area known for its drug trafficking. Because the area was a known drug area, a sign was posted on the corner forbidding standing or parking. See Jennings v. State, supra. The officer asked the men what they were doing and they responded they were waiting for a bus. There were several bus stops along that route, but none at that particular intersection. The officer did not know the defendant and requested his identification. She asked the men to move out of the roadway, and spotted what appeared to- be a brown paper bag containing an alcohol flask in the minor student’s pocket. See Jennings v. State, supra. She confiscated the bottle and conducted a pat-down search for her safety. The officer asked both men if they had any weapons. They each responded, “No.” The officer found a small handgun at the defendant’s waistline. A subsequent search of the defendant revealed two small plastic bags containing cocaine.
The officer in Jennings stated that she initially stopped appellant and the student because she recognized the student because there was a sign prohibiting loitering, because the area was a known drug area, and she intended to “check them out” to see if they were doing anything wrong. See Jennings v. State, supra. The Jennings court, citing Stewart v. State, supra, held that the stop was improper under Rule 3.1 because the defendant was merely in the wrong place at the wrong time. The Jennings court found that there was no indication that the defendant was committing or was about to commit a crime, and that the only factor present from section 16-81-203 was the fact that appellant was in a known drug area. As in Stewart, the Jennings court also found that the stop was improper under Rule 2.2 because there was no testimony that the officer was investigating or preventing a crime when she encountered the defendant. See Jennings v. State, supra.
The State agrees that the time of night and appellant’s presence in a high-crime area might not be sufficient to support a finding of reasonable suspicion. However, the State maintains that it showed factors in addition to appellant’s presence in a high crime area at 2:30 in the morning that, under the totality of the circumstances, gave rise to more than a bare suspicion. It is true that the location as a high-crime area and defendant’s nervous and evasive behavior are proper considerations when determining reasonable suspicion. See Illinois v. Wardlow, supra; United States v. Sokolow, 490 U.S. 1 (1989).
However, it is only the totality of the circumstances preceding the stop that this court may consider. Pursuant to Stewart and Jennings, and Rules 3.1 and 2.2, we hold the stop was impermissible because nothing about appellant’s behavior prior to the stop provided the officer with reasonable suspicion to believe that appellant had committed or was about to commit a crime as described in Rule 3.1. The fact that appellant was out late walking in a high-crime area did not give the officers a sufficient reason to stop him. See Stewart v. State, supra. Nor did the fact that appellant appeared startled and turned away when the officer turned his headlights on after appellant stepped in front of the car, as any person would likely do. Further, appellant was not required to obey the officer’s demand that he approach the officer’s vehicle. See Illinois v. Wardlow, supra. Therefore, appellant’s initial reluctance to cooperate did not provide the officer with reasonable suspicion. See Florida v. Botsick, supra. Even though separate innocent acts, taken together, may give rise to reasonable suspicion, here, appellant merely appeared starded when the officer turned on his headlights, changed his direction of travel, then stopped and shortly thereafter complied with the officer’s demand. Even viewed collectively and in the light most favorable to the State, appellant’s conduct does not support a finding of reasonable cause to detain him.
Moreover, the trial court erred in finding that appellant was not detained until after he discarded the pill bottle. Appellant was “seized” within the meaning of the Fourth Amendment when Johnson turned on his headlights and Allen ordered him to approach the car because the use of headlights coupled with the demand to approach would indicate to a reasonable person that he was not free to leave. See Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997) (holding that the defendant parked in a parking lot was seized for Fourth Amendment purposes, when police turned on the blue light on his vehicle, because the use of the light was display of authority that would indicate to reasonable person that he was not free to leave). Appellant’s only conduct prior to the stop was walking in the trailer park, a known high-crime area, at 2:30 a.m. Certainly, this behavior alone would not give rise to reasonable suspicion under Rule 3.1. He thereafter removed the pill bottle from his pants and threw it down. Therefore, because he threw away the pill botde after the stop, the State cannot use that conduct to justify the stop. See Stewart v. State, supra.
Nor is the stop justified under Rule 2.2, because there was no evidence that the officers were investigating a particular crime. As in Stewart and Jennings, there was no evidence presented that they were acting on a tip from an informant or investigating or seeking to prevent a particular crime. To the contrary, both officers testified that they were on routine patrol because the area was known for narcotics trafficking. To suggest that the stop was proper under this rule because the officers were merely seeking to ascertain appellant’s identity ignores the fact that the officers were not authorized to do so unless they were investigating a particular crime. See Hammons v. State, supra; Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). Based on the foregoing authorities, we hold that the initial stop of appellant was improper.
II. Whether Appellant Abandoned the Pill Bottle
However, the State argues that even if the officers’ conduct in stopping appellant was unreasonable, the evidence should not be suppressed because it was discovered as a result of appellant’s independent calculated act. Appellant maintains that just as a confession obtained during an illegal detention is tainted, so is the seizure of contraband thrown down during an illegal detention. He also argues that property is not considered “abandoned” when a person discards it due to the unlawful activities of police officers.
This appears to be an issue of first impression in Arkansas. Generally, under Arkansas law, where an initial stop is improper, any subsequent search is improper and any evidence found in the course of an illegal search is inadmissible. See Jennings v. State, supra. However, the seizure of abandoned property without a search warrant is permissible because a person has no legitimate expectation of privacy in the area searched or the items seized when he has abandoned an item. See, e.g., Rockett v. State, 318 Ark. 831, 980 S.W.2d 235 (1994) overruled on other grounds by MacKintrush v. State, 33 Ark. 390, 978 S.W.2d 293 (1998); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). Because there is no expectation of privacy in abandoned property, one may not assert Fourth Amendment protections to abandoned property. See Edwards v. State, supra; Bernal v. State, 48 Ark. App. 175, 892 S.W.2d 537 (1995).
The State counters that we should inquire into appellant’s motive for discarding the pill bottle and the intent of the officers in engaging appellant, rather than automatically excluding the evidence. See, e.g., People v. Boodle, 391 N.E.2d 1329 (1979). The State also maintains that appellant’s abandonment of the pill bottle was an independent act involving a calculated risk, and was not the fruit of an unlawful search or seizure. Finally, the State argues that the officers’ actions did not demonstrate a purposefulness to discover contraband because the purpose of the initial contact was to ascertain appellant’s identity and to determine the lawfulness of his presence, because of the complaints that nonresidents were trafficking in illegal drugs.
Abandonment is a question of whether the person has voluntarily discarded or otherwise relinquished his interest in property so that he no longer retains a reasonable expectation of privacy in the property as of the time of the search. See Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992). Thus, abandonment is a question of intent. See id. If the defendant has abandoned his property, then he has no right to assert Fourth Amendment protections. In determining whether property has been abandoned, our courts have primarily examined whether the defendant had been seized when the property was abandoned, see, e.g., Rabun v. State, 36 Ark. App. 237, 821 S.W.2d 62 (1991) or whether the defendant intended to abandon the property. See, e.g., Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989); Kirk v. State, supra. Therefore, the issue before us is whether we should adopt a bright-line rule that property discarded as a result of an illegal detention is not abandoned for Fourth Amendment purposes.
Instead of adopting such a rigid rule, we hold that the totality of the circumstances in this case demonstrate that appellant did not voluntarily discard the pill bottle so as to justify a finding of abandonment. He had already been illegally detained before he discarded the pill bottle, as previously mentioned. Furthermore, the record clearly shows that after appellant was illegally stopped, one officer drew a weapon on him. To deem appellant’s action in discarding the pill bottle as being voluntary in the face of these facts is to ignore both the reality of his illegal detention and the coercive force of a pointed gun. To hold that appellant’s conduct in discarding the pih bottle was abandonment would undermine the deterrent purpose of the Fourth Amendment to discourage police from engaging in unreasonable searches and seizures. A confession obtained following an illegal detention, at the point of a gun, and under glaring lights is involuntary. We view the discarded pill bottle in this case from the same perspective.
For the above reasons, we hold that the trial court erred in denying appellant’s motion to suppress. Thus, we reverse and remand for a new trial.
Reversed and remanded.
STROUD, C.J., agrees.
Pittman, J., concurs. | [
-16,
-17,
-20,
28,
40,
65,
26,
52,
83,
-93,
-11,
83,
-81,
-46,
12,
49,
-30,
95,
117,
121,
-51,
-73,
103,
33,
-30,
-41,
88,
-41,
-73,
-49,
-20,
-12,
12,
48,
-53,
-43,
100,
72,
-89,
92,
-122,
1,
-80,
74,
16,
66,
32,
34,
126,
15,
49,
30,
-29,
46,
25,
-53,
-51,
44,
75,
61,
-38,
90,
-37,
13,
-17,
22,
-93,
54,
-103,
5,
-6,
124,
-100,
49,
0,
-24,
115,
-90,
-126,
116,
71,
-101,
-96,
96,
98,
2,
93,
-20,
52,
-120,
62,
-82,
-99,
-89,
-40,
65,
73,
37,
-73,
-97,
108,
16,
-114,
-22,
106,
13,
93,
108,
3,
-50,
-76,
-79,
15,
48,
22,
112,
-21,
5,
52,
112,
-49,
-30,
92,
85,
83,
-101,
-34,
-106
] |
John E. JENNINGS, Judge.
This is an appeal from an order of paternity. For reversal, appellant contends that the paternity action brought against him was barred under principles of both res judicata and collateral estoppel. We disagree and affirm.
The parties agreed on the following facts. Appellant Shaun Smith and Michelle Lowery (then Michelle Gillian) dated in 1994 during the months of May through October. Shordy after that relationship ended, Michelle began dating Willis Lowery. Michelle at first told appellant that she was pregnant with his child. She gave birth to a baby girl on June 29, 1995. Michelle and Lowery executed an acknowledgment of paternity, and Lowery’s name was placed on the child’s birth certificate. On April 1, 1996, Michelle and Lowery were married.
Michelle filed for divorce against Lowery after they separated in August of 1996. Lowery entered his appearance in the divorce by fifing a written waiver to the proceedings. The decree, dated August 18, 1997, recited that the parties had married on April 1, 1996, and it provided that one child had been born of the marriage, a female born on June 29, 1995. Michelle was awarded custody of the child, while Lowery was granted reasonable visitation rights and was ordered to pay child support and one half of the child’s medical expenses not covered by insurance.
Michelle later assigned her child-support rights to appellee, the Office of Child Support Enforcement. On November 24, 1998, appellee filed a motion for contempt against Lowery alleging that he had failed to pay child support. Lowery defended that action by contending that he was not the child’s biological father. The court ordered DNA testing, and the results excluded Lowery as the father of the child. On April 6, 1999, the court entered an order finding that Lowery was not the child’s father and relieving him of his financial obligations with regard to the child.
On June 14, 1999, appellee filed this paternity action against appellant. In response, appellant affirmatively pled that Michelle and Lowery’s 1997 divorce decree established paternity of the child in Lowery and that any claim against him was barred by res judicata and collateral estoppel. The parties agreed, however, to DNA testing, and the results indicated a 99.99% probability that appellant was the child’s biological father. On December 11, 2000, the court entered a judgment of paternity against appellant. This appeal followed.
As he argued below, appellant contends that the 1997 divorce decree reciting that “one child was born of the marriage” established paternity of the child in Lowery and that this suit against him was barred by res judicata and collateral estoppel. In support of this argument, he relies on the decision in Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999). There, the court held that, as between parties to a divorce, res judicata does bar a former husband and wife from refitigating paternity when they agreed in the divorce action that a child had been born of the marriage. Appellant acknowledges that he was not a party to the 1997 divorce, but he contends that it is of no consequence. The supreme court, however, has recently addressed this precise argument under facts similar to the case at bar and has decided the issue unfavorably to appellant’s position. Office of Child Support Enforcement v. Willis, 347 Ark. 6, __ S.W.3d _ (November 15, 2001).
In Willis, John and Marigayle Triplett divorced in 1992. The decree stated that the “parties hereby have one (1) child,” and the decree provided that Marigayle would have custody of the child and John would pay support. The Tripletts later remarried, but Mari-gayle again filed for divorce in 1997. In that proceeding, John asserted that he was not the child’s biological father, and genetic testing proved him not to be. In the 1998 decree, the court found that John was not the child’s father, and John was not ordered to pay child support.
The Office of Child Support Enforcement (OCSE) began paying support to Marigayle, who then stated in an affidavit that Christopher Willis was the child’s biological father. Genetic testing showed that there was a 99.98% probability that Willis was the child’s father. OCSE then filed a paternity action against Willis, who raised the affirmative defenses of res judicata and collateral estoppel based on the 1992 decree. The trial court agreed with Willis, but the supreme court reversed, holding that the suit was not barred by either res judicata or collateral estoppel.
The court noted that 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 on 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. The court held that res judicata did not apply because Willis was not a party to the divorce decree and was not in privity with either John or Marigayle, the parties to the divorce decree.
In rejecting Willis’s defense of collateral estoppel, or issue preclusion, the court observed that four elements are required before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. In addition, citing Arkansas Dep’t of Human Servs. v. Dearman, 40 Ark. App. 63, 842 S.W.2d 449 (1992), the court adopted the rule that, although collateral estoppel may be asserted by a stranger to the first judgment or decree, the party against whom it is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in the first proceeding. The court held that collateral estoppel did not bar the present suit because the issue of paternity was not “actually litigated” in the 1992 divorce proceeding since neither John nor Marigayle had put the child’s paternity in issue. The court also held that the “ Dearman rule” was not satisfied in that John did not have the opportunity to fully and fairly litigate the issue of paternity in the 1992 divorce proceeding because he did not have any idea at that time that he was not the child’s father.
In fight of the decision in Willis, the appellant in this case cannot succeed in his claim that this action is barred under principles of res judicata or collateral estoppel. Appellant was not a party to the 1997 divorce, nor was he in privity with the parties to the divorce. Furthermore, the issue of paternity was not actually litigated in the 1997 divorce. The trial court did not err in its ruling.
Appellant also contends that he should have been made a party to the contempt action brought against Lowery and that his absence impeded his ability to protect his interests. Appellee responds that appellant’s defenses of res judicata and collateral estoppel would have failed because Lowery had executed an acknowledgment of paternity without benefit of genetic testing and that the version of Ark. Code Ann. § 9-10-115 (Supp. 1995) in effect at the time allowed modification within a five-year period. We simply note that the defenses raised by appellant are not valid now, nor would they have been at that earlier point in time.
Affirmed.
Pittman and Vaught, JJ., agree. | [
-16,
108,
-44,
124,
15,
65,
-93,
51,
112,
-69,
103,
-45,
-81,
-26,
76,
121,
-87,
45,
97,
104,
-37,
-73,
12,
96,
-10,
-13,
-16,
-37,
-77,
77,
-17,
-10,
76,
48,
10,
-43,
66,
-118,
-121,
20,
-26,
-110,
57,
-19,
-39,
-58,
52,
123,
18,
79,
33,
-114,
-110,
44,
56,
-54,
-88,
46,
-41,
60,
72,
48,
-73,
5,
-33,
11,
-77,
21,
-102,
76,
72,
10,
-112,
56,
64,
-24,
115,
-106,
-58,
116,
105,
-71,
0,
112,
106,
0,
1,
-4,
-102,
-104,
-17,
127,
-99,
-90,
-101,
120,
9,
111,
-74,
-66,
108,
84,
-82,
126,
111,
-115,
29,
108,
10,
-54,
-44,
-77,
14,
16,
20,
67,
-26,
-14,
16,
112,
-41,
32,
92,
70,
115,
-37,
-122,
-74
] |
Karen R. Baker, Judge.
Appellant, Linda Breakfield, brings this appeal from a decision of the Workers’ Compensation Commission finding that her healing period ended when she abandoned her course of treatment. The Commission found that appellant abandoned her course of treatment and thus failed to prove that she remained within her healing period beyond the date of her last documented medical treatment on February 5, 1999. We affirm.
Appellant, sustained an incapacitating back injury on October 23, 1996. Her original requests for appellee’s insurance carrier to pay medical expenses, including epidural steroid injections, were denied. Medical reports dated December 22, 1998, contain notes indicating that the claims had been denied initially because the matter had been in litigation but that the insurance company was now asking Ms. Breakfield’s physician, Dr. Greenspan, to address certain issues concerning Ms. Breakfield’s condition and treatment. One issue Dr. Greenspan was asked to address was surgical possibilities. Records further indicate that Dr. Greenspan concluded that Ms. Breakfield would probably benefit from surgical decompression and that Ms. Breakfield was receptive to undergoing the surgery. On January 19, 1999, Dr. Greenspan proposed performing a series of three translumbar epidural injections with physical therapy to determine whether or not the claimant was a surgical candidate. The physician’s note indicates that if this treatment helped the claimant, she would be a good candidate for decompression surgery. Significantly, handwritten notes in the medical records stated that a conversation occurred on that date between personnel in Dr. Greenspan’s office and appellee’s insurance company and that the epidural steroid injections had been approved by the insurance company.
Ms. Breakfield received the first of the scheduled injections on February 5, 1999; however, the medical records indicate that she failed to show up for her follow-up appointment on February 11, 1999. Although she testified at trial that Dr. Greenspan had recommended surgery in July of 1999, no other medical records were introduced that indicated that she had any medical contact with Dr. Greenspan after failing to make the February 11, 1999 appointment. Ms. Breakfield also explained at trial her belief that what had prevented her from having the surgery was the insurance company’s refusal to pay for the surgery.
The Commission found that Ms. Breakfield abandoned her medical treatment on February 11, 1999, relying upon three critical facts from the medical records: (1) Dr. Greenspan proposed three epidural steroid injections to determine what to do next; (2) appellee was willing to pay for the treatment; (3) Ms. Breakfield failed to show up for the February 11, 1999 follow-up appointment and never rescheduled. The Commission therefore concluded that Ms. Breakfield had abandoned her medical treatment on February 11, 1999, and failed to establish that she remained within her healing period after February 5, 1999, the last day she received medical treatment for her condition. However, the Commission also found that Ms. Breakfield was entitled to return to Dr. Greenspan, if she so chose to do so, to determine what additional treatment, if any, that he might propose for treatment of her compensable back injury. The Commission noted that even though it had been nearly three years from the time Ms. Breakfield last saw Dr. Greenspan in February 1999 to the date of the Commission’s decision, medical reports indicated that Dr. Greenspan never released Ms. Breakfield from additional care altogether.
Temporary disability is that period within the healing period in which an employee suffers a total or partial incapacity to earn wages. Thurman v. Clarke Indus., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). The healing period is defined as 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. Arkansas Highway and Transp. Dep’t v. McWilliams, 41 Ark.App. 1, 846 S.W.2d 670 (1993). The determination of when the healing period ends is a factual determination to be made by the Commission. Thurman v. Clarke Indus., Inc., 45 Ark.App. at 90-91, 872 S.W.2d at 421. 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.; Mad Butcher, Inc. v. Parker, 4 Ark.App. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Arkansas Highway and Transp. Dep’t v. McWilliams, supra; J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark.App. 200, 785 S.W.2d 51 (1990).
When reviewing a decision of the Workers’ Compensation Commission, the Court of Appeals views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Rice v. Georgia Pacific Corp., 72 Ark.App. 148, 35 S.W.3d 328 (2000). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court 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, the appellate court must affirm its decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
We conclude that there is substantial evidence to support the Commission’s finding that Ms. Breakfield had abandoned her course of treatment by failing to return to her treating physician after the first of the three prescribed epidural injections. The evidence was that although appellee’s insurance company refused to pay for the injections when they were first requested, the company had been in contact with the doctor’s office and not only agreed to pay for the procedures, but was requesting Ms. Breakfield’s physician to evaluate surgical possibilities. Although Ms. Breakfield testified as to her belief that they were refusing to pay, she offered no evidence to explain how she had reached that conclusion or to contradict the evidence that the company was paying for procedures at the time that she failed to continue the course of treatment suggested by her treating physician. The mere existence of a form of treatment that could improve a claimant’s condition does not prohibit a finding that a claimant’s healing period had ended when the claimant refuses to undergo that treatment. See Thurman v. Clarke Indus., Inc., supra. In this case, the claimant refused to undergo the treatment based upon her apparently mistaken belief that the insurance company would not pay for treatment. Appellee produced substantial evidence to support the Commission’s finding that this refusal was unjustified. Accordingly, we affirm.
Robbins and Vaught, JJ., agree. | [
-112,
123,
-107,
-116,
26,
97,
50,
10,
119,
-46,
103,
81,
-83,
-17,
-99,
43,
67,
125,
96,
101,
-41,
49,
83,
107,
-10,
-45,
-5,
-33,
-79,
111,
-12,
-67,
77,
40,
-118,
-44,
-26,
-118,
-51,
88,
-64,
-121,
-101,
-19,
25,
-61,
48,
59,
-40,
77,
49,
-34,
3,
36,
52,
-17,
40,
10,
107,
45,
-112,
-87,
-117,
5,
111,
0,
-96,
4,
28,
39,
-6,
30,
-104,
-72,
48,
-88,
50,
-10,
-126,
116,
38,
-85,
4,
99,
106,
49,
65,
-3,
120,
-72,
62,
62,
-99,
-121,
-61,
9,
81,
9,
-76,
-67,
104,
28,
31,
124,
-4,
73,
15,
44,
-119,
-118,
-106,
-77,
-49,
124,
-100,
-117,
-25,
-81,
-98,
101,
-51,
-30,
92,
-58,
123,
51,
90,
-70
] |
David M. Glover, Judge.
McDonald Mobile Homes, Inc., d/b/a Harrison Home Center, appeals from a judgment entered by the Carroll County Circuit Court for appellee BankAmerica Housing Services. We reverse the circuit court’s decision and remand for further proceedings consistent with this opinion.
This case had its origin in a contract entered into by appellant and Charles Copeland and his wife, Elinor Copeland (now deceased), on April 28, 1997, whereby appellant sold a purportedly new manufactured home to tbe Copelands for $80,201.50. Saturn Housing, LLC, manufactured the home. The Copelands gave a cash down payment of $4350 and financed the balance. The installment contract provided that any holder of the contract would be subject to all claims and defenses that the Copelands could assert against appellant. It also set forth the following assignment provision regarding appellee, which was described as the “Creditor”:
With respect to this retail installment contract (“contract”) signed by one or more buyers (“Buyer”), SELLER represents and warrants that: (1) Buyer’s credit statement submitted herewith is completely accurate unless otherwise specified; (2) Buyer is legally competent to contract at the time of Buyer’s execution of this contract; (3) this contract arose from the bona fide sale of the merchandise described in this contract; (4) the downpayment was made by Buyer in cash unless otherwise specified and no part thereof was loaned direcdy or indirectly by Seller to Buyer; (5) any trade-in, or other consideration, received as any part of the down-payment is accurately described on page 2 and has been valued at its bona fide value, and any amount owed on such trade-in or other property is accurately described on page 2 and has been paid offby Seller prior to or contemporaneously with the assignment of this contract to Creditor; (6) there is now owing on this contract the amount set forth herein; (7) this contract and any guaranty submitted in connection herewith is in all respects legally enforceable against each purported signatory thereof; (8) Seller has the right to assign this contract and thereby to convey good title to it; (9) in the event of any claim or defense asserted by any Buyer, or any heirs or assigns of Buyer, with respect to the Manufactured Home or other property or consideration transferred pursuant to this retail installment contract, Seller agrees that it will indemnify and hold Creditor harmless from all such claims and defenses as well as from all costs reasonably incurred by Creditor in connection therewith, including but not limited to reasonable attorney fees and court costs; and (10) in accordance with the Fair Credit Reporting Act, Seller has notified Buyer that this contract is to be submitted to Creditor.
For value received, Seller hereby assigns to Creditor all its rights, title and interest in this contract and the property which is the subject matter hereof and authorizes Creditor to do everything necessary to collect and discharge same. All the terms of any existing written agreements between Seller and Creditor governing the purchase of contracts are made a part hereof by reference, it being understood that Creditor relies upon the above warranties and upon said agreements in purchasing this contract.
This provision related to a 1994 agreement between appellant and appellee’s predecessor in interest, Security Pacific Housing Services, a Division ofBank of America FSB, whereby appellee agreed to purchase retail installment contracts, security agreements, and the related promissory notes from appellant. That contract contained the following provisions:
4. With respect to each Account purchased by SPHS, Dealer represents, warrants and agrees that:
b. the Account and each guaranty and/or additional collateral agreement in connect therewith shall be legally enforceable by SPHS as assignee against each purported signatory thereof;
j. the manufactured home and related services have been furnished to the satisfaction of Customer and all obligations of warranty to Customer either express or implied have been and will continue to be fulfilled by Dealer.
5. As additional consideration for the purchase of any Account in accordance with the terms of this Agreement, Dealer agrees to repurchase upon demand of SPHS, any Account wherein the purchaser fails to pay SPHS by reason of breach of warranty, misrepresentation with respect to the equipment sold, or failure on the part of Dealer to provide adequate service regarding such manufactured home sold at retail.
6. In the event of breach of any one or more of the warranties set forth in Paragraph 4 or 5 above, or should Dealer fail to perform any obligations to SPHS under this Agreement, Dealer shall, upon demand, repurchase without warranty or representation, expressed or implied, any Account then owned by SPHS which is affected by such breach, and will promptly pay SPHS therefore [sic] the amount then remaining to be paid by the Customer thereunder less any unearned finance charge thereon; but such obligation on part of Dealer shall not preclude SPHS from enforcing, at SPHS’s election, any other remedies available by reason of such breach. Upon such payment by Dealer, the applicable accounts shall upon written request be reassigned by SPHS to Dealer without recourse to SPHS.
7. Upon SPHS’s request, and within thirty (30) days thereafter, Dealer shall repossess and transport, or make arrangements to repossess and transport, to a location designated by SPHS, collateral covered by Accounts in default and accept as reimbursement therefor a maximum amount of the actual out-of-pocket costs incurred. Dealer shall, at no cost to SPHS, store and protect such repossessed collateral until resold. Dealer agrees to resell repossessed collateral at SPHS’s request at a price to be established by SPHS, in its sole discretion, and to accept as reimbursement therefor a maximum amount of 10% of the selling price. Dealer agrees to indemnify and save SPHS harmless from any and all claims which may be made upon SPHS in connection with, or as a result of, any efforts, or conduct by Dealer, or Dealer’s agents, in endeavoring to obtain possession of any collateral, it being understood and agreed that any efforts, which Dealer or Dealer’s agents may make shall be for Dealer’s own benefit, at Dealer’s risk, and not as an agent of SPHS. SPHS shall have the sole right to commence collections on all Accounts and Dealer agrees not to accept the return of nor make any substitution of collateral except with SPHS’s prior written consent.
8. Dealer shall indemnify and hold SPHS harmless for any and all claims, damages and costs (including attorney’s fees) which may be made upon SPHS in connection with or as a result of, any breach by Dealer of any of the terms of this Agreement, or any claim which, if true or proven, would constitute such a breach, or by reason of Dealer’s repossession of any manufactured home, whether such repossession is at the direction of SPHS or otherwise.
14. Dealer’s liabilities shall not be affected hereunder by any settlement, extension, forbearance, variation in terms, discharge, release of the obligations of buyer or any other person (by operation of law or otherwise) which SPHS may grant a buyer or any other person in connection with any accounts).
The contract between the Copelands and appellant was assigned to appellee, to whom the Copelands sent their payments. The home was delivered on May 16, 1997. Immediately after moving into the manufactured home, the Copelands found numerous defects with it. After unsuccessfully attempting to obtain satisfaction from appellant, the Copelands eventually stopped making their payments to appellee. On September 10, 1999, appellee sued the Copelands for the full balance due, $83,501.31, and requested “immediate possession to be made permanent on final judgment, for sale of the unit in conformity with the Uniform Commercial Code and judgment for the difference between the debt and amount produced, for costs, fees, and all other proper relief.” In an attached affidavit, appellee’s attorney stated that the value of the mobile home was approximately $67,159. In response, the Copelands asserted the defenses of set-off, fraud in the inducement, and breach of warranty. They filed a counterclaim against appellee and a “cross-claim” against appellant, revoking their acceptance of the mobile home; rescinding the contract; asserting misrepresentation, breach of warranty, and deceptive trade practices; and seeking damages. In its answer to the counterclaim, appellee asserted that it was entitled to “contribution or indemnity from others. . . .”
On December 8, 1999, the circuit judge entered an order awarding possession of the mobile home to appellee. In an amended complaint filed January 27, 2000, appellee stated that the mobile home had been repossessed and that the balance due, including repossession expenses, was $86,705.25.
On February 4, 2000, appellant filed a third-party complaint against Saturn. On November 22, 2000, appellee 'filed a cross-claim against appellant and Saturn, in which it stated:
7. McDonald mobile homes signed a Dealer’s Agreement with BankAmerica Housing Services, attached hereto as Exhibit “A” and incorporated herein by this reference. This agreement states that McDonald agrees to indemnify and hold BankAmerica Housing Service[s] harmless from any and all claims, damages and costs, including attorney’s fees, which may be made upon BankAmerica Housing Services in connection with or as a result of any breach by McDonald of any terms of the Dealer’s Agreement; that the Dealer’s Agreement defines a breach to include failure of the purchaser to BankAmerica Housing Services by reason of breach of warranty or failure on the part of the dealer to provide adequate service regarding such manufactured homes sold by McDonald.
8. BankAmerica Housing Services is entitled to Judgment over and against McDonald for indemnity for all claims, damages and costs, including attorney’s fees, which Copelands may recover against BankAmerica Housing Services in this lawsuit, or Bank-America may demand repurchase of the Copelands’ contract with BankAmerica, which is affected by any breach on the part of McDonald.
In an amended counterclaim and cross-claim filed May 24, 2002, Mr. Copeland asserted that appellee, under the terms of the contract between the parties, was subject to each of the claims and defenses set forth therein, including rescission and cancellation.
The circuit judge severed the claims involving appellee, and Mr. Copeland’s claims against appellant and Saturn were tried to a jury. The jury returned a verdict on interrogatories finding that the mobile home did not conform to express warranties given by appellant and Saturn and that Mr. Copeland had been damaged in the amount of $6550. The jury allocated forty percent of the total responsibility for the compensatory damages against appellant and sixty percent to Saturn. It awarded $10,000 in punitive damages against appellant and $30,000 in punitive damages against Saturn. The court entered judgment on the verdict on June 27, 2002, and awarded an attorney’s fee against appellant and Saturn in the amount of $9600. Appellant satisfied Mr. Copeland’s judgment against it.
On July 10, 2002, the court entered an order stating that, upon mutual motions for voluntary nonsuit, all claims between the Copelands and appellee would be dismissed without prejudice. The court also denied appellant’s motion to dismiss appellee’s cross-claim and stated: “The Court further Orders that the cross-claim of BankAmerica Housing Services against McDonald Mobile Homes, Inc., d/b/a Harrison Home Center and Saturn Housing, LLC, remains pending and the Court, despite McDonald’s objection, hereby severs the cross-claim for trial at a future date. This Order is entered Nunc Pro Tunc.”
On July 23, 2002, appellee moved for summary judgment, stating that no appeal had been filed from the jury’s verdict against McDonald and that, because of appellant’s agreement to repurchase any account where the purchaser failed to pay appellee by reason of breach of warranty and/or misrepresentation, appellant was estopped to raise any defenses it might have with regard to those issues. Appellee requested judgment against appellant in the amount of $75,845.50, representing appellee’s payments to Green-tree Financial Services, the loan servicer, of $59,640 and to appellant of $16,205.50 for its equity. Appellee attached a copy of the jury’s verdict on interrogatories and its agreement with appellant and argued that appellant’s breach of warranty and material misrepresentations had been conclusively determined. In response, appellant contended that the motion for summary judgment should be denied because the only prayer for relief in appellee’s cross-claim against it on November 22, 2000, sought no judgment for deficiency against appellant. It argued that there was
simply no claim pending against this [appellant] for a deficiency judgment, or any other judgment, for that matter. The original claim was for indemnity as to any judgment that might be awarded AGAINST BankAmerica, but no indemnity could apply where Copeland dismissed all claims against BankAmerica. Therefore, no claim [is] presently pending against [appellant] and [appellee] is most certainly not entitled to a judgment, summary or otherwise, for damages it has not sought, pled, and proven.
On August 16, 2002, appellee amended its cross-complaint against appellant, stating:
1. That on September 1, 1994, [appellant] entered into a contractual agreement, whereby [appellant] agreed to repurchase customer’s account in the event the customer failed to make payments to [appellee] by reason of breach of warranty and/or misrepresentation.
2. That [appellant], in the event of a determination of breach of warranty and/or misrepresentation, is obligated by contract to repurchase defendant Copeland’s account with [appellee] in the amount of $75,845.50.
In its August 30, 2002 answer to the amended cross-complaint, appellant denied having entered into a contract as described by appellee and moved to dismiss for failure to state facts upon which relief could be granted. It also stated: “Further, the Amendment to Cross-Complaint seeks monetary judgment while seeking to enforce a specific agreement to repurchase a contract between [appellee] and [appellant], an opportunity that has never been given to [appellant].” Appellant also asserted laches and estoppel on the ground that appellee had failed to notify appellant of its actions in repossessing the collateral, holding it for sale, and selling it at public or private sale, or of any balance due, rendering it impossible for appellant to mitigate any possible damages by repurchasing the mobile home and using its expertise to sell it at a more reasonable price. Appellant stated that appellee had never asked it to repurchase the contract and, by failing to notify appellant of its actions, rendered it impossible for such a repurchase to occur. Appellant also alleged that appellee had failed to sell the collateral in a commercially reasonable manner in violation of the UCC and had sold it for less than its true market value. Additionally, appellant argued that, even if such a contractual relationship existed between the parties, appellee was under an obligation to mitigate its damages, which it had failed to do by settling with Mr. Copeland.
On June 23, 2003, appellee filed a second amended cross-claim, stating:
6. The Retail Installment Contract contains an Assignment by Seller wherein the Seller, McDonald, agrees to indemnify the Creditor, BankAmerica, from all claims asserted by the buyer and defenses as well as from all costs reasonably incurred by BankA-merica in connection therewith, including attorney fees.
7. [Appellant], in the event of a determination of breach of warranty and/or misrepresentation, is obligated by contract to repurchase Defendant Copeland’s account with BankAmerica Housing Services in the amount of $75,845.50.
The same day, appellee filed an amended motion for summary judgment on the basis of appellant’s agreement to repurchase following the buyer’s breach and to indemnify appellee from all claims and defenses asserted by the buyer.
In its July 10, 2003 answer to the second amended cross-complaint, appellant again moved to dismiss for failure to state facts upon which relief could be granted. It alleged that the manufactured home time sales agreement was, at least as interpreted by appellee, unconscionable because appellee had repossessed the mobile home with no notice to appellant or any request that appellant repurchase it. In response to the amended motion for summary judgment, appellant argued that appellee had failed to mitigate its damages, sell the collateral in a commercially reasonable manner, or give appellant the opportunity to repurchase the contract. Appellant also contended that appellee’s voluntary dismissal of its claims against the Copelands barred a judgment against appellant.
This case was tried to the circuit judge, who entered judgment for appellee in the amount of $60,360.11 on February 11, 2004. Appellant filed its first notice of appeal on February 25, 2004. On February 9, 2005, we dismissed the appeal because the claims involving Saturn had not been determined. On March 18, 2005, the circuit court dismissed appellee’s cross-claim against Saturn without prejudice, thereby solving the finality issue. On April 6, 2005, appellant filed its second notice of appeal.
When reviewing a judgment entered by a circuit judge after a bench trial, we will not reverse unless we determine that the circuit judge erred as a matter of law or we decide that his findings are clearly against the preportderance of the evidence. Taylor v. George, 92 Ark. App. 264, 212 S.W.3d 17 (2005). Disputed facts and the determination of the credibility of witnesses are within the province of the circuit judge, sitting as the trier of fact. Id.
Appellant does not dispute that it breached its warranties to the Copelands but raises the following points on appeal: (1) the trial judge erred in refusing to dismiss appellee’s cross-claim against appellant after appellee and Mr. Copeland nonsuited their claims against each other; (2) the trial judge erred in failing to find that appellee’s recovery was barred because it failed to notify appellant of the sale and to sell the collateral in a commercially reasonable manner; (3) as interpreted by the trial judge, the contract between appellant and appellee was unconscionable. Because of our disposition of the first and second points on appeal, we need not reach appellant’s third point.
Appellant first argues that, after appellee and Mr. Copeland dismissed their claims against each other, the trial judge should have dismissed appellee’s claim against appellant. It asserts that appellee had only prayed for indemnity in the event that Mr. Copeland obtained a judgment against it, and after those claims were dismissed, appellee could no longer be considered a co-party within the meaning of Ark. R. Civ. P. 13(g), which states: “[PJersons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20 [which concern the joinder of parties].”
We disagree with appellant. Appellee’s cross-claim also recited that app.ellee might demand that appellant repurchase the contract. Instead of dismissing appellee’s claim against appellant, the trial judge severed it for trial at a later date, as permitted by Ark. R. Civ. P. 18(b)(1), which provides: “Any claim against a party may be severed and proceeded with separately.” Also, Ark. R. Civ. P. 42(b) states that, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, the judge may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue. The trial judge has extensive discretion in deciding whether to order severance of claims or issues. Carpetland of N. W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991). Additionally, appellee later amended its cross-claim to include a request that appellant repurchase Mr. Copeland’s account in the amount of $75,845.50. Ark. R. Civ. P. 15 vests broad discretion in the trial judge to permit amendments to pleadings and the exercise of that discretion by the trial judge will be sustained unless it is manifestly abused. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983). We cannot say that the circuit judge abused his discretion in this matter.
Appellant’s second argument, however, is more persuasive. It asserts that the trial judge erred in refusing to apply the UCC and that appellee’s failure to notify it of the sale of the collateral and its failure to prove that the sale was commercially reasonable should have barred its right to recover any deficiency from appellant. Because the sale of the collateral occurred on March 12, 2001, we refer to the statutes that were in effect on that date. Arkansas Code Annotated section 4-9-501 (Repl. 1991) provides:
(1) When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this part and except as limited by subsection (3) those provided in the security agreement. He may reduce his claim to judgment, foreclose, or otherwise enforce the security interest by any available judicial procedure.... The rights and remedies referred to in this subsection are cumulative.
(3) To the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the subsections referred to below may not be waived or varied except as provided with respect to compulsory disposition of collateral (§ 4-9-504 and § 4-9-505), and with respect to redemption of collateral (§ 4-9-506), but the parties may by agreement determine the standards by which the fulfillment of these rights and duties is to be measured if such standards are not manifestly unreasonable:
(a) Section 4-9-502(2) and § 4-9-504(2) insofar as they require accounting for surplus proceeds of collateral;
(b) Section 4-9-504(3) and § 4-9-505(1) which deal with disposition of collateral;
(c) Section 4-9-505(2) which deals with acceptance of collateral as discharge of obligation;
(d) Section 4-9-506 which deals with redemption of collateral; and
(e)Section 4-9-507(1) which deals with the secured party’s liability for failure to comply with this part.
It is apparent that section 4-9-501(3) limits the parties’ freedom of contract. See James J. White & Robert S. Summers, Uniform Commercial Code § 34-1 (4th ed. 1995).
Arkansas Code Annotated section 4-9-504 (Repl. 1991) states in relevant part:
(1) A secured party after default may sell, lease, or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing.
(3) Disposition of the collateral may be by public or private proceeding and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms, but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods, no other notification need be sent. In other cases, notification shall be sent to any other secured party from whom the secured party has received (before sending his notification to the debtor or before the debtor’s renunciation of his rights) written notice of a claim of an interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, he may buy at private sale.
Under the UCC, once the collateral has been disposed of, the debtor remains liable for any deficiency. Ark. Code Ann. § 4-9-504(2) (Repl. 1991); Greenlee v. Mazda Am. Credit, 92 Ark. App. 400, 214 S.W.3d 290 (2005). However, a creditor may be barred from seeking a deficiency judgment if the sale of the collateral was not commercially reasonable. Id. The creditor bears the burden of proving that the sale proceeded in a commercially reasonable manner. Id. Whether the sale of collateral was conducted in a commercially reasonable manner is essentially a factual question. Id. It is recognized that a seller of chattel paper with recourse has a financial stake in the creditor’s disposition or sale of the collateral that is similar to the debtor’s possible liability for a deficiency. James J. White & Robert S. Summers, Uniform Commercial Code § 34-13 (4th ed. 1995). For example, in City Nat’l Bank of Fort Smith v. Unique Structures, Inc., 49 F.3d 1330 (8th Cir.1995), the Court of Appeals held that a mobile home dealer that had sold installment contracts “with recourse,” thereby assuming liability for payment in the event of default by the buyer, did not have to pay a deficiency to the bank because the bank failed to prove that its sales of the collateral were commercially reasonable.
In Norton v. Nat’l Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S.W.2d 538 (1966), overruled on other grounds, First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987), the Arkansas Supreme Court held that a car dealer was a “debtor” within the meaning of Ark. Stat. Ann. § 85-9-504(3) (now found in section 4-9-504) and, therefore, entitled to notice of the sale of collateral. The car dealer took a note and conditional sales contract from a buyer and assigned it to a bank, promising that it would repurchase the note and contract if the buyer defaulted. After the buyer defaulted, the bank sold the car without notice to the dealer. The supreme court held that the dealer was one who, under the statute, was a debtor and, because the amount obtained in the sale fixed his pecuniary liability, was entitled to notice as a matter of simple fairness. The court also held as ineffective under Ark. Stat. Ann. § 85-9-501(3) Norton’s purported waiver of his right to notice of the sale by signing a printed assignment of the conditional sales contract (prepared by the bank) that recited that Norton waived all notices to which he might otherwise have been entitled. Based on that statute and the court’s interpretation of it in Norton, we hold that the trial judge in this case was wrong in concluding that appellee was not required to follow the UCC and sell the collateral in a commercially reasonable manner.
Under Arkansas law, inadequacy of sale price, alone, is not dispositive of whether a sale was commercially reasonable. Greenlee v. Mazda Am. Credit, supra. However, a large discrepancy between the sale price and fair market value of the collateral signals the need for close scrutiny of the sale procedures. Id. The trial court is required to consider evidence regarding the reasonableness of the method, time, manner, and place of the disposition of the collateral. Id. Commercial reasonableness requires that the secured party act in good faith to maximize returns on collateral. Eagle Bank & Trust Co. v. Dixon, 70 Ark. App. 146, 15 S.W.3d 695 (2000). Testimony by a witness without personal knowledge of the activities surrounding the sale or disposition of the property is not sufficient. In Greenlee, the creditor submitted no evidence of the value of the collateral, its condition, or the manner of the sale, other than the statement contained in a computer printout that the disposition had occurred at an “auction,” or how the sale was advertised, and we reversed the trial court’s award of a deficiency judgment. Although appellee presented evidence of its usual procedure, which included sending notice to dealers, it offered no information about the advertising or solicitation of bids, the value of the collateral, or whether appellant was actually notified about the sale. Because Norton, and thus the UCC, apply to this case, appellee was required to demonstrate that the sale was commercially reasonable. However, the trial judge did not make any findings on whether the sale was commercially reasonable because he erroneously believed that the UCC did not apply in this situation. We therefore reverse and remand this case for further proceedings on the issue of whether the sale was commercially reasonable.
Reversed and remanded.
Neal and Vaught, JJ., agree.
Arkansas Code Annotated section 4-9-105(1)(d) (Supp. 1999) defines “debtor” as: “the person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, and includes the seller of accounts or chattel paper.” | [
-47,
124,
-56,
-20,
10,
96,
56,
-112,
-86,
-78,
38,
91,
103,
-50,
20,
107,
-25,
127,
96,
109,
113,
-77,
7,
66,
-16,
-77,
-85,
-43,
-79,
77,
-75,
-105,
-52,
32,
-64,
-59,
-62,
-118,
-91,
90,
-18,
-125,
59,
-28,
-47,
-61,
52,
62,
0,
14,
37,
-124,
-13,
44,
25,
75,
45,
42,
113,
57,
-48,
-28,
-101,
5,
111,
15,
-111,
52,
-104,
35,
-24,
24,
-112,
49,
32,
-23,
122,
54,
-58,
52,
67,
-97,
8,
36,
103,
32,
-127,
-19,
-40,
-100,
14,
-34,
-97,
-90,
-77,
25,
19,
12,
-74,
-100,
116,
26,
12,
-2,
102,
-123,
25,
108,
15,
-50,
-106,
-77,
13,
112,
-101,
11,
-2,
6,
48,
112,
-49,
-78,
93,
66,
59,
-117,
-97,
-7
] |
Andree Layton Roaf, JuBell from
Appellant Southwestern Bell Telephone appeals from the November 8, 2004 Board of Review’s decision granting unemployment benefits under Ark. Code Ann. § 11-10-513(c) (Supp. 2003) to appellee Stephen Barkley, who voluntarily participated in a work-force reduction process. On appeal, Southwestern Bell argues that the Board’s decision that Barkley left his employment after it “asked for volunteers” for a permanent work force reduction is not supported by substantial evidence and that it amounts to an erroneous construction of Ark. Code Ann. § 11-10-513(c). We affirm.
Barkley, who began working for Southwestern Bell in 1974, ended his employment as a cable-splicing technician on July 8, 2003, after participating in Southwestern Bell’s Voluntary Severance Program (“VSP”). Southwestern Bell’s collective bargaining agreement requires it to offer eligible employees the opportunity to sign up for a voluntary severance package when it determines that there is a surplus of employees in a certain area and that a work force reduction will be necessary. Participation in this VSP is based on seniority, and the most senior employees are allowed to participate until the workgroup that contains a surplus is reduced by the required number of employees. Southwestern Bell will only begin to lay off employees when not enough eligible employees participate in the VSP, and it will begin with the least senior employee first.
Southwestern Bell announced a surplus in Paragould in the summer of 2003. Barkley was employed in Jonesboro, but Para-gould is within his force adjustment area. According to Barkley, there was not a surplus within his particular workgroup, but he was eligible for the VSP because there was a surplus within his force adjustment area. He requested a “Voluntary Candidate Request Form” from his manager and filled it out on May 9, 2003, stating that he wished to participate in the VSP. Barkley then received a “Voluntary Severance Candidate Request Conditional Offer,” which stated that his form had been received and that the company was trying to establish a pool of voluntary severance candidates. The letter explained that Southwestern Bell was trying to determine if Barkley would be willing to accept an offer should a match be made for his position. The letter also stated that, if Barkley decided he was willing to accept the offer and sign the form, his decision was irrevocable.
Barkley signed this document on June 30, 2003. He testified that he had applied for the VSP and had been made conditional offers on prior occasions but that he did not accept the offers at those times because he was not “ready to go.” In this instance, Southwestern Bell offered Barkley a severance payment of $46,700, a lump sum pension payment of approximately $244,000, and a $4000 payment for vacation days not taken. Barkley decided to take the offer, and Southwestern Bell matched him with another employee in Paragould, who would have lost his job had Barkley not accepted the voluntary severance offer. Barkley testified that his job was not in jeopardy at that time and that he could have continued to work at Southwestern Bell if he had not participated in the VSP. According to Barkley, it was “general knowledge” within the company that the VSP was available once there was an announced surplus. He stated that no one at Southwestern Bell approached him and asked him to volunteer.
Allen Jay Simmons, Barkley’s workgroup manager, testified that Barkley was one of the employees in his workgroup and that Barkley asked to fill out the “Voluntary Candidate Request Form” after the surplus was announced within his force adjustment area. He corroborated Barkley’s testimony that Barkley’s job was not at risk. According to Simmons, he kept the VSP forms on his desk so that an employee could request the form, fill it out, and send it in. He stated that the employee from Paragould who was matched with Barkley had taken over Barkley’s position in Jonesboro.
After leaving his employment with Southwestern Bell, Barkley was denied unemployment compensation by the Arkansas Employment Security Department (ESD) on the basis that he voluntarily and without good cause left his work. Barkley appealed to the Appeal Tribunal, and it reversed the ESD’s decision and awarded him unemployment benefits, finding that he was discharged from his last work for reasons other than misconduct in connection with the work. Southwestern Bell then appealed to the Board of Review, and it affirmed and modified the Appeal Tribunal’s decision. It found that Barkley was entitled to benefits under Ark. Code Ann. § 11-10-513(c), because he voluntarily participated in a permanent reduction in the employer’s work force after the employer had announced a pending reduction and asked for volunteers.
Southwestern Bell appealed the Appeal Tribunal’s decision to the Arkansas Court of Appeals, arguing that the Board’s decision was not supported by substantial evidence and that it amounted to an erroneous construction of § 11-10-513(c). This court reversed and remanded the case so that the Board could make a finding as to whether, and if so, in what manner, Southwestern Bell asked for volunteers pursuant to § 11-10-513(c). Upon remand, the Board of Review, in its opinion dated November 8, 2004, found that Southwestern Bell did ask for volunteers within the plain meaning of § 11-10-513(c) and held that Barkley was entitled to unemployment benefits. Southwestern Bell now appeals the decision of the Board of Review, arguing again that the Board’s decision was not supported by substantial evidence and that it amounted to an erroneous construction of Ark. Code Ann. § 11-10-513 (c).
On appeal, the findings of the Board of Review are affirmed if they are supported by substantial evidence. Billings v. Director, 84 Ark. App. 79, 133 S.W.3d 399 (2003). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence in the light most favorable to the Board’s findings. Id. Even where there is evidence upon which the Board might have reached a different conclusion, appellate review is limited to a determination of whether the Board could reasonably reach its decision upon evidence before it. Id.
Arkansas Code Annotated section 11-10-513(a)(1) (Supp. 2003) states that “an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.” The legislature, however, added a new subsection to this statute that became effective on April 11, 2003, which states:
(c)(1) No individual shall be disqualified under this section if he or she left his or her last work because he or she voluntarily participated in a permanent reduction in the employer’s work force after the employer announced a pending reduction in its work force and asked for volunteers.
(2) Such actions initiated by the employer shall be considered layoffs regardless of any incentives offered by the employer to induce its employees to volunteer.
(3) Any incentives received shall be reported under § 11-10-517.
(Emphasis added.)
Southwestern Bell does not dispute the fact that it had declared a surplus in certain workgroups, but it argues that there was no evidence that it “asked for volunteers” for the VSP, as is required under Ark. Code Ann. § 11-10-513(c)(1). According to Southwestern Bell, Barkley chose to apply for the VSP without being asked to volunteer, and the Board’s finding that it asked for volunteers by making this option available to its employees is an erroneous construction of the statute.
The VSP at issue in this case has previously been addressed by this court in the context of Ark. Code Ann. § 11-10-513 in Billings, supra. This court held in Billings that employees who chose to leave their employment with Southwestern Bell by participating in the VSP were not entitled to unemployment benefits under § 11-10-513. The 2003 amendment to § 11-10-513, however, was not in effect at the time these employees were denied benefits. In the present case, the 2003 amendment that added subsection (c) to § 11-10-513 was applicable at the time of Barkley’s separation from his employment and the Board’s decision. In fact, the Board awarded benefits to Barkley pursuant to Ark. Code Ann. § 11-10— 513(c).
The intent of the Arkansas Legislature controls the construction of our unemployment security laws. Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). Unemployment benefits are intended to benefit employees who lose their jobs through no fault of their own. Bradford v. Director, 83 Ark. App. 332, 128 S.W.3d 20 (2003) (citing Osterhout v. Everett, 6 Ark. App. 216, 639 S.W.2d 539 (1982)). The policy of the Arkansas Employment Security Act is “to encourage employers to provide more stable employment” and to systematically accumulate “funds during periods of employment from which benefits may be paid for periods of unemployment.” Ark. Code Ann. § 11-10-102 (Repl. 2002).
Where the language of a statute is plain and unambiguous, legislative intent is determined from the ordinary meaning of the language used. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). While not conclusive, an administrative agency’s interpretation of a statute is highly persuasive and will not be overturned unless it is clearly wrong. Death & Perm. Total Dis. Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). Changes to statutes by subsequent amendments can be used as a determining factor to legislative intent. Pledger v. Mid-State Constr. & Materials, Inc., 325 Ark. 388, 925 S.W.2d 412 (1996).
In its brief Southwestern Bell states that, after it declares a surplus, “employees are canvassed to determine if they are interested in the VSP.” Eligible employees are then allowed to apply for the VSP, under which the employee may be offered a severance payment in exchange for their voluntary retirement. Simmons testified that the Voluntary Candidate Request Forms were available on his desk to employees who request them. In this instance, after the surplus was announced in his force adjustment area, Barkley decided to apply for the VSP. He requested and completed the form, and Southwestern Bell sent him a conditional offer. The offer stated that, if Barkley accepted, he would be added to a pool of voluntary severance candidates and that his acceptance would be irrevocable. Barkley accepted the offer, and Southwestern Bell “matched” Barkley with another employee whose job would otherwise be at risk. Barkley then left his employment with Southwestern Bell.
Southwestern Bell strongly asserts that it absolutely did not ask for volunteers. It argues that the only thing it did in this case was to “make the VSP available, as it is required to do ‘pursuant to [its] union contract’ whenever a surplus is declared,” and that the use of the term “offer” in the VSP was incorrectly translated by the Board to mean “ask.” Southwestern Bell maintains that providing an opportunity for its employees to volunteer is not the same as asking for volunteers. This argument, however, is not persuasive.
Southwestern Bell may not have addressed each employee directly to ask them if they would volunteer, but Southwestern Bell’s policy of making the VSP available to employees when there is an announced surplus provided the means by which the employees could volunteer to leave their employment and reduce the surplus. This policy is essentially a way for Southwestern Bell to solicit volunteers for its VSP.
This court does not engage in statutory interpretations that defy common sense and produce absurd results. Green v. Milk, 339 Ark. 200, 4 S.W.3d 493 (1999). The legislature amended Ark. Code Ann. § 11-10-513 to add subsection (c), which supports the fact that the legislature intended to provide benefits to employees under circumstances such as in the present case. Thus, the Board’s finding that Barkley left his employment with Southwestern Bell after it asked for volunteers for a permanent work force reductions and that he is entitled to unemployment benefits under Ark. Code Ann. § 11-10-513(c) is supported by substantial evidence.
Affirmed.
Baker, J., agrees.
Crabtree, J., concurs. | [
20,
120,
-108,
-116,
-120,
-32,
18,
22,
91,
-109,
103,
83,
-17,
-92,
29,
107,
-29,
93,
65,
121,
-9,
-121,
1,
114,
74,
-13,
81,
-59,
-7,
79,
-28,
-36,
-53,
0,
-118,
-43,
-90,
-64,
-51,
28,
-110,
5,
-117,
-55,
123,
-60,
53,
126,
20,
-117,
48,
-20,
-79,
44,
24,
-17,
124,
58,
127,
-95,
82,
121,
-56,
5,
-33,
4,
11,
1,
24,
7,
-16,
126,
24,
52,
-120,
-120,
82,
54,
-94,
20,
9,
-7,
-116,
98,
98,
18,
-100,
-81,
-4,
-72,
-106,
-34,
-99,
-28,
-15,
57,
3,
12,
-107,
-97,
-110,
20,
6,
-4,
-13,
-124,
31,
-28,
-118,
-50,
-106,
-77,
29,
-12,
-108,
43,
-1,
66,
16,
97,
-50,
-14,
92,
71,
50,
-97,
-18,
-40
] |
Josephine Linker Hart, Judge.
In this case, we are asked to determine whether a $3.08 million punitive-damage award imposed by the trial court meets the due-process requirements of the United States Constitution. We are also asked, on cross-appeal, to reinstate the jury’s original $5 million punitive-damage verdict. Based on our de novo review, we believe that the trial court properly applied the due-process considerations in awarding $3.08 million, and we therefore affirm on direct and cross-appeal.
Direct Appeal
This is the second time that this case has come before us. The first appeal was brought following a jury trial in which damages were awarded against appellant Superior Federal Bank and in favor of appellee Jones and Mackey Construction Company, LLC (hereafter, the LLC), as follows: $411,000 for breach of contract; $210,000 for promissory estoppel (which the trial judge set aside); $175,000 for defamation; and $5,000,000 in punitive damages. In Superior Federal Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003) (Mackey I), this court reversed the breach-of-contract award, reinstated the promissory-estoppel award, and affirmed the defamation award, with the net result being that the LLC’s compensatory verdict was reduced from $796,000 to $385,000. As for the punitive damages, we remanded that award to allow the trial judge to review it in light of the considerations expressed by the United States Supreme Court in State Farm Mutual Insurance Co. v. Campbell, 538 U.S. 408 (2003), which was decided while the appeal was pending. Upon remand, the trial judge reduced the punitive award to $3.08 million. Appellant Superior Federal now appeals and argues that the punitive damages, even as reduced, remain excessive. Our review of this argument will be undertaken de novo. See Union Pac. R.R. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004).
The pertinent facts are contained in Mackey I, but we believe it is helpful to reiterate at least some of those facts here and add others for the purpose of explaining our affirmance of the punitive award. The LLC is a construction company owned by Mr. George Mackey. Although Mackey has a background in accounting and banking and is the former vice-president of the Arkansas Development Finance Authority, he decided in 1998, while he was still with the ADFA, to join forces with an experienced builder, Mr. Robert Jones, and pursue a career in the construction business. They formed the LLC and successfully completed several projects. By virtually all accounts, the company enjoyed a stellar reputation, as did Mr. Mackey himself.
In late 1998, after the LLC began to do business in Faulkner County, Mackey received a phone call from Rick Baney, one of appellant’s loan officers, who expressed an interest in financing the company’s next project. As a result, in early 1999, appellant financed the purchase of two residential lots and the construction of a home. At about this same time, Mackey became sole owner of the LLC.
The controversy that led to the present lawsuit began when the LLC purchased a piece of property near a hospital in Faulkner County for the purpose of constructing a medical-office building. In April 1999, the LLC obtained a $270,000 loan from appellant to purchase the land. However, on May 10, 1999, the University of Central Arkansas (UCA), which owned land adjacent to the LLC parcel, filed suit to enjoin all work on the LLC parcel in an attempt to acquire it through eminent domain. Ultimately, UCA’s petition was denied, and on May 18, 1999, appellant sent the LLC a conditional commitment letter for $1.8 million in construction financing. Upon receiving this letter, Mackey tendered his resignation to the AD FA and began work on the project.
Several weeks later, the LLC received a fax from appellant implying that the construction financing had not yet been approved, including, specifically, several conditions that had not been set out in the previous commitment letter. In an attempt to resolve the situation, Mackey met with appellant’s regional manager of commercial loans, Tom Wetzel. As we noted in our prior opinion, Mackey and Wetzel “clashed immediately, and their relationship deteriorated to the point of outright hostility.” Mackey I, 84 Ark. App. at 10, 129 S.W. 3d at 330. Following a few combative meetings and telephone calls, and an attempt by a third person, Bernard Veasley, to intervene on the LLC’s behalf, Wetzel sent the LLC a letter on August 24, 1999, declining the' LLC’s construction loan on the medical-office building. Once the financing on that major project, which was already under way, fell through, the LLC began to lose money rapidly and was unable to pay its bills or continue other construction. Ultimately, numerous lawsuits were filed against the LLC, asserting claims of approximately $1.3 million.
On May 1, 2000, Mackey and the LLC sued appellant, alleging that, in reliance on appellant’s commitment to provide financing, they had expended substantial resources on the medical-building project and suffered considerable financial losses when appellant’s commitment was withdrawn. It was this allegation that eventually led to the LLC’s recovery of breach-of-contract and promissory-estoppel damages following a jury trial. As previously mentioned, this court reversed the breach-of-contract verdict and affirmed the jury’s $210,000 promissory-estoppel award.
Mackey and the LLC also contended in their complaint and at trial that, around the same time period that appellant withdrew its financing commitment, appellant defamed Mackey and the LLC by virtue of five incidents that destroyed their once excellent reputations. These incidents are fully recounted in our prior opinion, but, again, we will repeat them here for the sake of explanation.
The first incident that we discussed in Mackey I involved statements made by two of appellant’s officers to the Gospel Temple Baptist Church. The church had obtained a $300,000 building loan from appellant and had entered into a contract with the LLC to construct the building. However, when appellant’s officers learned that the LLC would be the church’s contractor, they told the church that the LLC was not on its “approved builders list,” even though there was considerable evidence that no such list existed. Eventually, the church canceled its contract with the LLC and requested a refund of $133,000 it had paid on the contract. We held that this incident alone supported the jury’s $175,000 defamation award, given that the LLC had to refund the money that the church had already paid and sustained reputational damage as well. Id. at 14-15, 129 S.W.3d at 332-33. However, we went on to discuss the other four incidents “in the interest of providing a complete account of the events that occurred in this case and because it may prove useful to the trial court’s reconsideration of the punitive-damage issue . . . .” Id. at 16, 129 S.W.3d at 333.
Of those four incidents, the first involved appellant’s returning some of the LLC’s checks marked “NSF” (insufficient funds). This situation arose after Mackey had deposited a $65,000 check into the LLC account and immediately wrote $40,000 in checks thereon. When the $65,000 check turned out to be bad, Mackey was notified of that fact, and he promptly deposited $40,000 to $50,000 to cover the checks that the LLC had written. However, despite Mackey’s quick action, appellant returned the LLC’s checks marked “NSF” and accused Mackey of check-kiting, notwithstanding the fact that appellant and the LLC had established a course of dealing covering overdrafts up to a certain amount. In Mackey I, we stated that this incident would not support the jury’s defamation award because the LLC presented insufficient proof that its reputation was damaged by the NSF notations. However, we expressed “our conviction that [appellant’s] conduct in this instance was particularly egregious and seemingly calculated to do harm to the LLC by unexplainedly abandoning an established practice.” Id. at 17, 129 S.W.3d at 334.
The next incident occurred when appellant’s loan officer, Tom Wetzel, told an officer at Regions Bank that appellant “wasn’t lending Mr. Mackey any more money” and was “no longer doing business with Mr. Mackey.” We declared these statements to be defamatory by implication because they were incomplete and tended to suggest, incorrectly, that Mackey and the LLC were unworthy of a loan. However, we said that the statements would not support the defamation verdict because Mackey and the LLC did not prove reputational damage by virtue of the statement.
The final two incidents concern statements that Tom Wetzel made about George Mackey. Wetzel told Bernard Veasley, who was attempting to intercede in the construction-financing conflict to help the LLC, that Mackey was a “big, fat, damn slob” who was “pe**ing Up ” "Wetzel also called Mackey, who is an African-American man, a “big, black gorilla.” In the prior appeal, appellant argued that these statements about Mackey personally did not support the jury’s defamation award in favor of the LLC. We declined to reach that argument, having already decided that the defamation verdict was supported by one of the other incidents. However, we said that there was “no doubt that these statements are defamatory” and that “actual reputational damage was caused.” Id. at 18-19, 129 S.W.3d at 335. We further took the opportunity to “express our revulsion toward such malicious and hateful language uttered by a bank about its customer.” Id. at 19, 129 S.W.3d at 336.
Having affirmed the defamation verdict, we turned to appellant’s challenge to the $5 million punitive-damage award. After ruling that appellant had waived any argument regarding a lack of substantial evidence to support a punitive-damage verdict, we examined the argument that the award was unconstitutionally excessive. We decided to remand that issue to the trial court because, while the appeal was pending, the United States Supreme Court decided State Farm Mutual Insurance Co. v. Campbell, 538 U.S. 408 (2003), in which the Court offered new thoughts and considerations on the constitutionality of punitive-damage awards. That remand gave rise to the present legal proceeding.
Upon remand, no new evidence was taken by the trial judge; rather, he ordered the parties to file briefs to assist him in re-evaluating the punitive-damage award. On September 23, 2004, the judge entered an order reducing the punitive award to $3.08 million. His decision was based, in part, on the fact that the award created what he considered to be a constitutionally acceptable 8-to-l ratio of punitive damages to compensatory damages when both the defamation and promissory-estoppel verdicts were combined. The judge also determined that the award was supportable in light of the reprehensible nature of appellant’s conduct and in comparison to sanctions imposed for similar conduct in this state. Appellant appeals from that ruling and argues generally (along with some specific arguments that will be addressed later in the proper context) that the $3.08 million punitive-damage award does not comport with the due-process considerations established by the United States Supreme Court in cases such as Campbell, supra, and BMW of North America v. Gore, 517 U.S. 559 (1996).
As appellant correctly states, the Due Process Clause of the Fourteenth Amendment imposes limits on punitive-damage awards. See TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993). The reason behind such limits is that elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that may be imposed. See Campbell, supra. In 1996, the Supreme Court in Gore, supra, developed three guideposts for evaluating the constitutionality of a punitive-damage award: 1) the degree of the defendant’s reprehensibility or culpability; 2) the disparity between the penalty and the harm or potential harm suffered (usually defined by reference to the punitive-to-compensatory ratio); 3) the civil penalties authorized or imposed in comparable cases. We will now review the trial court’s $3.08 million award in light of these considerations.
Reprehensibility of the Defendant’s Conduct
We begin by addressing a specific argument raised by appellant concerning the particular conduct that may be viewed in determining the degree of reprehensibility. Appellant contends that, because Mackey I held that only one defamatory statement — made by appellant’s officers to the Gospel Temple Church — was proven to support the defamation award, only that conduct should be considered in determining reprehensibility, and this court should not consider the other four defamatory statements. We disagree.
Appellant bases its argument on language in Campbell, supra, that “a defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.” Campbell, 538 U.S. at 423 (emphasis added). According to appellant, this language means that, in assessing a punitive-damage award, a court should not consider conduct by a defendant that did not result in compensated harm to the plaintiff. However, when Campbell’s language is viewed in the light of its full holding, it is not as limiting as appellant suggests. In Campbell, State Farm was sued for bad faith, fraud, and outrage in connection with its failure to settle a liability claim against its insureds, the Campbells. At trial, evidence of State Farm’s claims practices in other states was admitted and relied upon by the Utah appellate court in upholding the jury’s $145 million punitive-damage award. The United States Supreme Court, in reviewing the award, noted that much of the evidence concerning State Farm’s practices occurred in other states and bore no relation to claims like the Campbells’. As a result, the Court determined, the Campbells’ case was “used as a platform” to expose and punish perceived deficiencies in State Farm’s operations throughout the country. Campbell, 538 U.S. at 420. It was this concern that gave rise to the Court’s pronouncement that a defendant should be punished for the conduct that “harmed the plaintiff.” The Court was cautioning against evaluating a punitive award by considering conduct that may have harmed other, unrelated persons. We do not understand the Court to say that conduct bearing some nexus to the plaintiffs harm should be ignored. In fact, other language in Campbell makes it clear that such conduct may be considered. The Court noted that State Farm was improperly being condemned for its nationwide policies “rather than for the conduct directed toward the Campbells” and that punitive damages were improperly awarded to punish conduct “that bore no relation to the Campbells’ harm.” Id. at 420, 422. Further, the Court stated that a defendant’s “dissimilar acts, independent from the acts upon which liability was premised, may not serve as a basis for punitive damages.” Id. at 422-23 (emphasis added).
By contrast, in the case at bar, the other defamatory statements that appellant asks us to disregard were not directed to other persons and did not involve separate, unrelated claims; nor were they dissimilar acts, independent from the acts upon which liability was premised. Instead, they were part of a pattern of behavior directed toward the LLC, and they paint a telling picture of appellant’s overall conduct and intent to cause harm.
Appellant’s argument is also contrary to our specific language in Mackey I, wherein we made a point of discussing the four remaining statements “in the interest of providing a complete account of the events that occurred in this case, and because it may prove useful to the trial court’s reconsideration of the punitive-damage issue.” Mackey, 84 Ark. App. at 16, 129 S.W.3d at 333 (emphasis added). We went on to note at various points that appellant’s conduct was “egregious” or “seemingly calculated to do harm,” and we expressed our “revulsion” at the “malicious and hateful” statements made against Mackey personally. Id. at 17-19, 129 S.W.3d at 334-36. Thus, we contemplated that, upon remand, the trial judge would consider the full scope of appellant’s behavior as it relates to this case. See also Barber, supra, a case involving a dangerous railroad crossing, where our supreme court, in determining the degree of the railroad’s reprehensibility, considered a factor separate and apart from the personal injuries that occurred — the railroad’s destruction of evidence after the accident. Barber, 356 Ark. at 303, 149 S.W.3d at 348.
In light of the above, we conclude that we may consider all of appellant’s egregious conduct in connection with the harm that befell the LLC. With that in mind, we now turn to the factors that weigh on a defendant’s degree of reprehensibility.
In Campbell, supra, the Supreme Court elaborated on the matters to be considered when assessing the degree of a defendant’s reprehensibility: 1) whether the harm caused was physical as opposed to economic; 2) whether the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; 3) whether the target of the conduct had financial vulnerability; 4) whether the conduct involved repeated actions or was an isolated incident; 5) whether the harm was the result of intentional malice, trickery, or deceit, or mere accident. Campbell, 538 U.S. at 419. Appellant claims that only two of the five factors exist here • — • financial vulnerability and malice. However, in light of our holding that it was proper to consider conduct by appellant in addition to the one defamatory statement, a third factor also exists — conduct involving repeated actions — given that several statements were made by appellant in what seemed to be a continuing effort to inflict harm. With three of the five factors in existence, particularly the existence of malice, there is ample evidence from which the trial court could have assessed appellant’s conduct as having a significant degree of reprehensibility. The circumstances in this case, when viewed as a whole, would warrant a finding that appellant, at a time when the LLC was financially vulnerable and operating in good faith to conduct business that appellant had solicited, acted in a malicious manner calculated to do harm to a once-reputable business. There is also evidence that at least part of appellant’s motivation may have been racial animosity, given Tom Wetzel’s comments. Although appellant downplays the racial element because Mackey and the LLC did not file a discrimination action, we see no reason why the trial court or this court should be prohibited from considering a possible racial motivation simply because no claim was brought under the state Civil Rights Act or the federal Equal Credit Opportunity Act. Whatever legal strategy was involved in deciding not to pursue such claims, it has no bearing on the fact that appellant is to be judged by its conduct in this case and not on the plaintiffs’ choice of remedies.
When all is considered, we conclude that there is a substantial degree of reprehensibility on appellant’s part. Through malicious, calculating, and egregious acts and statements, appellant inflicted harm on the LLC to the point that it suffered considerable economic and reputational injuries. As our supreme court recognized in Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003), the presence of bad faith, deliberate false statements, and acts of affirmative misconduct — all of which are present here — bear on whether a defendant’s conduct has been reprehensible. While that same opinion notes that the infliction of purely economic harm, as arguably occurred in this case, is a factor weighing against reprehensibility, the U.S. Supreme Court noted in Gore, supra, at 576, that infliction of economic injury, especially when done intentionally through affirmative acts of misconduct or when the target is financially vulnerable, can warrant a substantial penalty.
Ratio of Punitive Damages to Compensatory Damages
Our research indicates that this factor seems to engender great confusion and controversy in comparison with the other factors. We believe that this is due in no small part to the U.S. Supreme Court’s rather conflicting statements on the matter. In one of the first cases to address the constitutionality of punitive damages, Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 23-24 (1991), the Court stated that a punitive-damage award of more than four times the amount of compensatory damages might be “close to the line.” However, two years later, in TXO, supra, a case involving an oil company’s scheme to reduce or eliminate its royalty obligations, the Court approved a $10 million punitive-damage award that accompanied a $19,000 compensatory verdict, a 526-to-l ratio. The Court noted that it would not draw a mathematical bright line between acceptable and unacceptable punitive awards but stated that “a general concern of reasonableness properly enters into the constitutional calculus.” 509 U.S. at 458. Three years after TXO, the Court decided Gore, supra, which involved an auto company painting over a damaged vehicle without revealing the damage to the buyer. The Court reversed a $2 million punitive award that accompanied a $4000 compensatory verdict, a 500-to-l ratio.
Finally, in Campbell, supra, the Court dealt with a situation in which the plaintiffs received $1 million in compensatory damages and $145 million in punitive damages, a 145-to-l ratio. The Campbell Court stated that it would not impose a bright-line ratio but observed that, in practice, few awards exceeding a single-digit ratio, to a significant degree, will satisfy due process. Campbell is the most recent statement on this subject by the U.S. Supreme Court.
With these cases in mind, we review the particular arguments made by appellant. Appellant contends first that the trial judge erred in calculating the ratio in this case. The judge combined the defamation and promissory-estoppel verdicts to arrive at $385,000 as the “denominator” figure in the ratio and used that figure to support a punitive award of $3.08 million, an 8-to-l ratio. Appellant claims that only the $175,000 tort award should have been used and, had that occurred, the punitive award would have borne a more constitutionally suspect 17.6-to-l ratio.
On this point, we first consider appellant’s claim that, in Mackey I, this court recognized that only the defamation damages should be considered in arriving at the ratio. Appellant is referring to the statement that we made in Mackey I that the punitive award bore a 28.5-to-l ratio to the compensatory award — a figure we could only have reached by considering the $175,000 awarded for defamation as the compensatory denominator. According to appellant, our statement is now law of the case on this issue. We disagree.
It is well settled that the decision on the first appeal becomes law of the case and is conclusive of every question of law or fact decided in the former appeal. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). However, the context of the appellate court’s ruling in the first appeal must be considered, and the court’s pronouncements are generally effective only on issues that it actually decides. See id. In referring to the 28.5-to-1 ratio in Mackey I, we were simply echoing what the trial court and appellant had declared the ratio to be at the trial level; we made no independent calculation of our own. Moreover, the issue of the makeup of the compensatory denominator was not before us, and we made no studied assessment of what compensatory damages should be included in the ratio; we merely remanded the damage award for reconsideration. Our case law is clear that we are not bound by a conclusion stated as obiter dictum, even if couched in terms that infer that the court reached a conclusion on the matter. See, e.g., Clemmons v. Office of Child Support Enfcm’t, 345 Ark. 330, 47 S.W.3d 227 (2001); Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000); see also Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003). We therefore reject appellant’s law-of-the-case argument.
Appellant continues by arguing that a punitive recovery should only be “predicated” on tortious acts, given that Arkansas law does not permit recovery of punitive damages on contract or equitable theories. See L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984) (holding that, ordinarily, punitive damages for breach of contract are not allowed); Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983) (holding that equity will not ordinarily enforce penalties). While it is generally true that contract damages do not support a punitive award, they may be awarded where the defendant commits a willful and malicious act in connection with the contract. See, e.g., Dews v. Halliburton Indus., 288 Ark. 532, 708 S.W.2d 67 (1986). However, we need not reach the substance of this issue. Even if appellant is correct that the trial court should have considered only the $175,000 defamation verdict in evaluating the reasonableness of the punitive award, we do not believe that the ensuing 17.6-to-1 ratio would be unconstitutionally excessive under the circumstances of this case. In Barber, supra, our supreme court stated that the standard to be employed in reviewing a punitive-to-compensatory ratio is whether the ratio is “breathtaking.” Barber, 356 Ark. at 303, 149 S.W.3d at 348. The conduct by appellant, as recited earlier in this opinion, is such that a 17.6-to-l ratio is not breathtaking. Moreover, even though this ratio is greater than the single-digit ratio mentioned in Campbell, supra, the Supreme Court has made it clear that it will not draw a bright line on this matter. Even Campbell recognizes that “the precise award in any case . . . must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff.” 538 U.S. at 425.
Punishment for Comparable Conduct
Under this guidepost, courts ordinarily consider both the comparable criminal penalties for the type of conduct involved and the awards that have been made in similar court cases. Arkansas Code Annotated section 5-15-105 (Repl. 1997) makes it a crime to utter certain types of slander, including that which injures credit or business standing. Arkansas Code Annotated section 5-15-101 provides that slander shall be a felony, with punishments of six months to three years in prison and fines of $50 to $3000, or both. Thus, the punitive award in this case far exceeds the monetary penalty provided by the criminal statute; but, we note that the statute also permits the imposition of a significant period of incarceration.
As for comparable cases, appellant cites two defamation cases decided by our supreme court in recent years, Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999), and United Insurance Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998), where punitive damages in ratios of 1-to-l and 3.3-to-l were imposed, respectively. However, we observe that neither of those cases engaged in the federal due-process analysis set forth in Gore. Further, the ratios do not tell the whole story. The Murphy case, in which the monetary value of the punitive verdict was $2 million, should certainly give notice that a substantial exemplary award in the millions of dollars may be imposed in a defamation case. See also Routh Wrecker Service v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998), a case involving a non-physical-injury tort, abuse of process, where a 75-to-l ratio was allowed to stand after undergoing the Gore analysis.
In light of the foregoing, and given the unique facts and circumstances of this case, we believe that the $3.08 million punitive award is in line with federal due-process considerations. We therefore affirm the award.
Cross-Appeal
The LLC contends on cross-appeal that the jury’s original $5 million verdict should be reinstated. It argues that the egregious nature of appellant’s conduct, the State’s interest in protecting its citizens from defamation and racial animus, and the respect to be accorded a jury’s verdict, justify reinstatement of the full award. The LLC also points to “the defendant’s wealth,” which is a factor we address when evaluating a punitive-damage award under Arkansas common law. See Hudson, supra.
The points made by the LLC are well taken. However, appellate consideration of a punitive-damage award under the United States Constitution is not a review of a jury’s finding of fact. See Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424 (2001). Rather, our task is to engage in a de novo, independent review and determine whether the award is excessive under constitutional guidelines. See id. To say the least, such a review is not an exact science but is a fluid analysis, based on the particular facts and circumstances of each case. We therefore conclude, without the need for further discussion, that, in light of all of the factors previously discussed in this opinion, the $3.08 million punitive award serves the requirements of due process better than the $5 million award. We therefore affirm on cross-appeal.
Affirmed on direct appeal and cross-appeal.
Pittman, C.J., and Gladwin, J., agree.
There was no testimony from the payees of the checks or anyone who had seen the NSF notation.
The Regions officer testified that he would have no problem with the LLC’s being a contractor on a project.
See Gore, supra, 517 U.S. at 574, n. 21, and TXO, supra, 509 U.S. at 462, n. 28 (1993), recognizing that evidence of other transactions may be relevant in determining a defendant’s degree of reprehensibility. TXO also considered evidence of a “pattern of fraud, trickery, and deceit.” 509 U.S. at 462.
Although it is not clear, it also appears that, in Hudson v. Cook, 82 Ark. App. 246, 105 S.W.3d 821 (2003), this court, in evaluating a punitive-damage award, considered conduct other than that for which the plaintiff received compensatory damages.
These statutes were repealed by our legislature by Act 1994 of 2005. However, they were in effect at the time of appellant’s conduct in this case.
The trial court found that the $3.08 million award was less than three percent of appellant’s net worth.
The LLC also argues that, in the prior appeal, appellant waived any argument regarding the excessiveness of the punitive damages. We obviously believed in Mackey I that the issue was not waived because we remanded it to the trial court for reconsideration. | [
-16,
126,
-16,
-83,
8,
-30,
2,
-102,
17,
-64,
-89,
83,
-69,
-25,
-60,
107,
-25,
125,
65,
107,
-47,
-77,
23,
66,
-109,
-78,
-69,
-59,
-72,
79,
-27,
-41,
92,
48,
-30,
-107,
102,
-62,
-59,
-44,
-114,
28,
43,
-20,
-3,
68,
-68,
-69,
48,
78,
49,
-116,
-77,
36,
29,
-53,
44,
46,
89,
41,
81,
-79,
-54,
5,
111,
21,
-79,
4,
-98,
103,
-48,
14,
-104,
49,
24,
-24,
114,
-78,
-122,
-108,
99,
-103,
-115,
38,
98,
-112,
1,
-51,
76,
-104,
6,
-34,
-113,
-121,
-110,
72,
27,
75,
-73,
-100,
108,
4,
6,
124,
-66,
5,
29,
108,
-127,
-49,
-48,
-93,
-81,
100,
-98,
-126,
-17,
-125,
48,
68,
-50,
-94,
92,
7,
59,
-37,
-49,
-65
] |
Sam BIRD, Judge.
Appellants, Wayne McFarland and Phillip Pittman, are the lessees of mineral rights in land owned by appellee Bennie Taylor and his neighbors in Union County. Since acquiring their leases in 1998, appellants used a road across appel-lee’s land for access to a well that was located on land to the west of appellee’s property. In 2000, appellee blocked this road. Rather than use another road, appellants filed suit for an injunction directing appellee to remove the obstruction across the disputed road. After the chancellor refused to issue an injunction, appellants filed this appeal. Because the chancellor did not abuse his discretion in denying appellants’ petition for an injunction, we affirm.
After living nearby for about twenty years, appellee purchased this tract of land in 1983 for the purpose of budding a house there. Appellee built a house, but it was destroyed by fire before he could occupy it. According to appellee, there were no wells on the adjoining land at that time but that, soon afterward, the oil well to the west was constructed and he gave its operators permission to use his road, which extends from Arkansas Highway 275 to the western boundary of appellee’s property. Different oil-well operators used the road over the next decade. At trial, appellee testified that he gave express permission to use his road to all operators of the well but that he cautioned them that their use could continue only until he withdrew his permission. At some point, another road leading from Highway 15 to the well was built.
In 1998, appellants obtained assignments of the mineral leases and began using the Highway 275 road. Appellee testified at trial that, as before, he gave appellants conditional approval to use this road until he withdrew his permission. Appellants also made some improvements to the Highway 15 road.
In 1997 or 1998, appellee’s son and daughter-in-law, Brent and Chelsea Taylor, and their small daughter, moved into a mobile home on appellee’s land. Mr. and Mrs. Taylor testified that there is a significant amount of traffic at all hours of the day and night on the Highway 275 road, which is used as their driveway, and that they were concerned about the safety of their three-year-old daughter. Mrs. Taylor also testified that she was worried about her own safety, because her husband works the 3:00 p.m. to 11:00 p.m. shift. Appellants did not dispute that they use the Highway 275 road at night. These concerns prompted appellee to withdraw his permission for appellants to use the Highway 275 road. His blocking of the road prompted appellants to file this lawsuit.
Although appellants testified that the Highway 15 road could not be used as an alternate route without much improvement at great expense, appellee presented evidence to the contrary. Gordon Height, an engineer with the Arkansas Highway and Transportation Department, testified that the Highway 15 road could be adequately improved for between $1,000 and $1,500. Sam Jean, who has twenty-five years’ experience in “dirt work” and who has previously worked on the Highway 15 road, testified that he could make that road usable for heavy trucks for no more than $1,500. In his letter opinion, the chancellor stated that he was impressed with Mr. Jean’s “experience, his knowledge, and his forthrightness.”
The chancellor made the following findings in his letter opinion, which was incorporated in his order denying appellants’ petition for an injunction:
If the issue before me was whether it was reasonable for the [appellants] to use the Highway 275 road once or twice a month for an eighteen wheeler and/or a workover rig, I would have no difficulty in concluding that such a limited amount of use would be reasonable. However, taking into account the testimony from the July hearing as to the considerable amount of traffic over the road at all hours of the day and night and taking into account that workover rigs will have to visit the well sites in order to make the wells operational and keep them operational, and taking into account that Highway 15 road can be made fully usable for not more than $1,500.00, it is my conclusion that the most reasonable ingress and egress for [appellants] to their oil and gas properties is from Arkansas State Highway 15.
Appellants argue on appeal that the chancellor erred in denying their request for an injunction. Generally speaking, the granting or denying of an injunction is a matter within the discretion of the chancellor. Tri-County Funeral Serv., Inc. v. Eddie Howard Funeral Home, Inc., 330 Ark. 789, 957 S.W.2d 694 (1997). This court does not reverse unless there has been a clearly erroneous factual determination or unless the decision is contrary to some rule of equity or the result of an improvident exercise of judicial power. Id.; City Slickers, Inc. v. Douglas, 73 Ark. App. 64, 40 S.W.3d 805 (2001). The prospect of irreparable harm or the lack of an otherwise adequate remedy is at the foundation of the court’s power to issue injunctive relief. Paccar Fin. Corp. v. Hummel, 270 Ark. 876, 606 S.W.2d 384 (Ark. App. 1980).
Appellants argue that the chancellor erred in considering whether it would be reasonable to use an alternate route across appellee’s land because it was not used as a mobile-home site before appellants began production under their lease. According to appellants, a comparison of the reasonableness of using an alternate route can be made only when there is a preexisting use by the surface owner. Appellee responds that appellants are factually and legally incorrect. We agree with appellee.
We are not prepared to hold that, as a matter of law, a mineral owner is always entitled to choose between two or more means of access to the minerals, without regard to necessity or to the harm it may cause the surface owner, if the surface owner’s use did not predate the mineral owner’s use. The respective rights of mineral and surface owners are well settled. The owner of the minerals has an implied right to go upon the surface to drill wells to his underlying estate, and to occupy so much of the surface beyond the limits of his weE as may be necessary to operate his estate and to remove its products. Diamond Shamrock Corp. v. Phillips, 256 Ark. 886, 511 S.W.2d 160 (1974). His use of the surface, however, must be reasonable. Id. The rights implied in favor of the mineral estate are to be exercised with due regard for the rights of the surface owner. See id. (citing Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971)).
In Martin v. Dale, 180 Ark. 321, 21 S.W.2d 428 (1929), the Arkansas Supreme Court made it clear that, in all circumstances, the mineral owner’s use must be necessary and the potential harm to the surface owner must be considered:
It is not questioned that Lenz, as agent for the trustee to whom the lease was given, had the right of access to the lands covered by the lease; but this is a right which arose out of necessity, and not as a matter of convenience. In other words, while the right of entry was implied, this right did not authorize Lenz to enter as he pleased; it was his duty to do so in the manner least injurious to his grantor, and if a means of ingress existed when the lease was taken, and which continued to be available, this entry, and no other, should have been used, although it was not the most convenient.
180 Ark. at 324, 21 S.W.2d at 429.
In any event, appellee demonstrated that the road in question had been used for residential purposes for many years. Appellants have apparendy based their argument on the incorrect factual assumption that the Highway 275 road was built as part of the oh and gas operations near appellee’s land. Appellee, however, testified that this road has been used for decades as access to a barn and a potato shed. He said that he has been familiar with this land since 1965 and that this road had been used many years before there were any oh wells on the adjacent land. Appellee also testified that, when he bought his land in 1983 for the purpose of buhding a house there, the road was not being used for access to an oh well. Appellee further stated that appehants and their predecessors had used the Highway 275 road with his permission. He said he had informed them that they could use it unth he told them “to quit.” Clearly, appehee’s testimony would support a finding that this road had been in residential use for many years before the nearby oh production began.
Therefore, the chancellor was correct in considering whether it was necessary for appehants to use the Highway 275 road and whether it would be reasonable to require them to use the alternative Highway 15 road. He found that the “most reasonable ingress and egress for [appehants] to their oh and gas properties is from Arkansas State Highway 15.” Generally, what is reasonable is a question of fact. Salem v. Lane Processing Trust, 72 Ark. App. 340, 37 S.W.3d 664 (2001). Although we review chancery cases de novo, we will not reverse a chancellor’s finding of fact unless it is clearly erroneous. Id. In light of the testimony credited by the chancellor and discussed in his letter opinion, his finding of fact in this regard is not clearly erroneous.
Based on the evidence presented, we cannot say that the chancellor abused his discretion in denying injunctive relief to appellants.
Affirmed.
Pittman and Roaf, JJ., agree. | [
113,
104,
-12,
12,
24,
97,
88,
-110,
65,
-77,
-27,
83,
-81,
-34,
12,
113,
-29,
57,
69,
109,
-45,
-78,
65,
64,
66,
-13,
89,
-51,
-96,
91,
-44,
87,
76,
16,
-54,
93,
70,
64,
-17,
-36,
-122,
1,
-101,
108,
-39,
-125,
48,
43,
18,
79,
17,
-123,
-14,
45,
25,
-25,
-55,
46,
-49,
61,
89,
114,
15,
20,
125,
4,
-127,
100,
-104,
5,
-38,
10,
-112,
-72,
8,
-84,
115,
-74,
-112,
116,
43,
-99,
8,
-74,
99,
49,
-127,
-27,
-24,
8,
14,
-6,
9,
-90,
-46,
24,
99,
11,
-105,
-107,
124,
85,
87,
-2,
-28,
5,
92,
44,
7,
-49,
-106,
-95,
15,
-72,
-107,
17,
-21,
7,
52,
113,
-51,
-30,
124,
71,
119,
31,
23,
-79
] |
Terry Crabtree, Judge.
The Pulaski County Circuit Court entered judgment against the appellant, John Thurman, for the amount of a promissory note payable to the appellee, Marie Baker, acting as the attorney in fact for Lorraine DeBlack. On appeal, appellant claims (1) that the statute of limitations barred recovery on the note, and (2) that appellee’s principal had waived and forgiven the indebtedness. We affirm.
This is the second appeal taken in this case. We dismissed the first appeal for lack of a final appealable order. See Thurman v. Baker, CA 00-328 (Ark. App. Dec. 6, 2000). On remand, the circuit court set aside the original order and entered judgment against appellant for a promissory note in the amount of $141,800 and dismissed with prejudice all of the remaining counts of appellee’s amended complaint.
Appellee instituted this action on June 14, 1995, as the attorney in fact for Lorraine DeBlack seeking to recover damages for alleged negligence, malpractice, fraudulent misrepresentations, and to collect an indebtedness represented by a promissory note dated August 15, 1990. In response, appellant alleged that appellee, acting as DeBlack’s attorney in fact, had no standing to bring this action because DeBlack was incompetent at the time she executed her durable power of attorney on December 20, 1994. Appellant moved to dismiss the complaint. Instead, the suit was transferred to probate court to determine if DeBlack was in fact incompetent. However, the probate court did not hold a hearing on that issue, but rather, in a separate proceeding instituted .by appellee, appointed appellee as the guardian of the estate of DeBlack on October 8, 1997, and transferred the case back to circuit court.
On November 2, 1998, appellee filed an amended complaint, alleging that she was now acting as the guardian of DeBlack’s estate. Appellant again moved the court for dismissal on the ground that there had been no determination of the competency of DeBlack as of the execution of the power of attorney; that the substitution of appellee as guardian of the estate did not relate back to the initial fifing of the complaint; that appellee acting as guardian had not been authorized by the probate court to intervene or to be substituted as a party plaintiff; that appellee had not petitioned the circuit court for authority to be substituted as a party plaintiff and that the statute of limitations barred recovery by the estate. Along with the motion to dismiss, appellant attached the affidavit of Dr. Robert Ritchie, DeBlack’s personal physician. Dr. Ritchie stated that on December 20, 1994, DeBlack was not competent to transact business, was unable to comprehend what was going on around her, and was unable to take care of herself.
In denying appellant’s motion to dismiss, the lower court found that under Arkansas Rule of Civil Procedure 17(a) (1995), appellee acting as guardian, could be substituted as the real party in interest; that the substitution related back to the initial filing date; and that the substitution was not to be considered the filing of a new action in regard to the statute of limitations. Based upon this order, the case was submitted to the trial court with only the deposition of appellant, and the court awarded appellee judgment for the principal amount of the promissory note.
For appellant’s first point on appeal, he argues that the trial court erred in refusing to dismiss the amended complaint and in awarding appellee judgment for the amount of the promissory note because appellee’s action was barred by the statute of limitations. Arkansas Code Annotated section 16-56-111 (a) (1987) provides that actions to enforce written obligations, duties, or rights, must be commenced within five years after the cause of action accrues. Here, the promissory note was dated August 15, 1990, and required payment of interest only on a quarterly basis with principal due upon demand. Appellant specifically contended that the five-year statute of limitations period on the promissory note ended before appellee was appointed guardian and before she was substituted as the plaintiff in the circuit court case. Appellant contended that appellee’s substitution as party plaintiff constituted a new action in regard to the statute of limitations. We believe, as did the trial court, that appellee’s substitution as the proper party to the action related back to the initial filing of the suit on June 14, 1995. See Ark. R. Civ. P. 17(a); McMaster v. McIlroy Bank, Trustee, 9 Ark. App. 124, 654 S.W.2d 591 (1983).
Arkansas Rule of Civil Procedure 17(a) states:
Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian (conservator), bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or the State or any officer thereof or any person authorized by statute to do so may sue in his own name without joining with him the party for whose benefit the action is being brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
What constitutes a reasonable time under Rule 17 is a matter of judicial discretion and will depend upon the facts of each case. White v. Welsh, 327 Ark. 465, 939 S.W.2d 299 (1997). We hold that appellee, in protecting DeBlack’s interest in this cause, was properly and timely substituted and ratified under the terms of Rule 17.
Appellant maintains that appellee’s claim was barred by the five-year statute of limitations because our supreme court has held that when an action is brought in the name of a nonexisting plaintiff, an amendment of the complaint by substituting the proper party to the action as plaintiff will be regarded as the institution of a new action in regard to the statute of limitations. Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910 (1971). However, we find Ark-Homa Foods to be distinguishable from the case at bar. In Ark-Homa Foods, Ark-Homa moved to substitute its insurer as plaintiff after the insurer had fully paid Ark-Homa for the amount of its losses. The lower court denied the motion, and our supreme court, in affirming the decision, cited to 157 A.L.R. 1247 (1945), which states, “an insured who has been paid in full for a loss by his insurer is not the real party in interest and cannot maintain an action in his (the insured’s) name against the tort-feasor causing the loss.”
In the present case, appellant never obtained a determination from the probate court that DeBlack was in fact incompetent at the time she executed her power of attorney. Therefore, we must proceed under the assumption that DeBlack was competent and that appellee’s status as attorney in fact was valid. Thus, appellee, acting as the attorney in fact, was not functioning as a nonexisting plaintiff. Whereas in Ark-Homa Foods, supra, the insured was functioning as a nonexisting plaintiff because it had been paid in full by its insurer. We hold that because appellee was not functioning as a nonexisting plaintiff when she initially filed the lawsuit, the trial court properly allowed appellee as guardian of the estate to substitute herself as plaintiff. In sum, appellee was simply wearing two hats, as attorney in fact and as guardian of the estate, in representing the interests of DeBlack. We agree with the trial court that the November 2, 1998 amended complaint related back to the initial June 14, 1995 complaint.
For appellant’s second point on appeal, he contends that the lower court erred in awarding judgment on the promissory note because the only evidence adduced at trial established that payment of the indebtedness represented by the note had been waived by appellee’s principal. Although appellant raised the issue of waiver in his answer, he never obtained a ruling from the trial court regarding waiver of the principal indebtedness. He only obtained a ruling that the interest was waived. Failure to obtain a ruling from the trial court is a procedural bar to the consideration of the issue on appeal. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001). Therefore, we do not reach the merits of appellant’s second argument.
For the reasons stated above, we affirm.
Stroud, C.J., and Jennings, J., agree. | [
-12,
108,
92,
61,
11,
96,
50,
-94,
112,
-61,
99,
83,
107,
-29,
25,
47,
114,
57,
113,
105,
-41,
-77,
7,
64,
-14,
-69,
-104,
85,
-79,
-37,
-27,
-10,
76,
48,
-54,
-43,
70,
8,
-11,
16,
70,
35,
-117,
-28,
121,
-58,
48,
59,
20,
13,
117,
-50,
-2,
47,
57,
78,
76,
44,
121,
-71,
88,
-96,
-97,
5,
127,
18,
-79,
-91,
-100,
6,
88,
110,
-120,
49,
0,
-24,
50,
-74,
-126,
116,
75,
25,
8,
102,
98,
-80,
-123,
-17,
-104,
-120,
6,
126,
-97,
-90,
-48,
105,
75,
77,
-74,
-100,
102,
80,
99,
-4,
-26,
13,
29,
108,
0,
-50,
-42,
-79,
6,
-42,
-100,
11,
-18,
7,
52,
113,
-115,
-30,
93,
71,
57,
-101,
-57,
-77
] |
John E. Jennings, Judge.
Appellant, Lori Price, appeals from an order of the Cleburne County Circuit Court that changed the custody of the parties’ minor child from appellant,to the appellee, Gregory Garrett. Appellant’s sole point on appeal is that the trial court erred in changing custody. Because we hold that we have no appellate jurisdiction, we dismiss the appeal.
The parties in this case were divorced on April 1, 1999. Mrs. Price was awarded primary custody of the parties’ minor child. Mr. Garrett subsequendy filed a petition to modify the decree, seeking primary custody of the child, and the trial court held a hearing on June 22, 2001. On June 27 the court filed a letter opinion which recited, in pertinent part:
I am persuaded by the testimony and exhibits that the mother and step-father are a dysfunctional family. Circumstances have changed since April 1999. It is encouraging that professional help has been sought by each. However, my obligation and responsibility is to decide what is best for the little boy. My decision is that the child shall live with his father. I don’t like to separate siblings, but the future well-being of the child requires such. The mother shall have my standard visitation rights.
On July 6 the court entered a judgment consistent with its letter opinion.
Following the court’s decision, Mrs. Price changed attorneys and on July 19 present counsel filed a “Motion for Findings of Fact and Conclusions of Law.” The motion recited that appellant “requests] this court pursuant to Arkansas Rules of Civil Procedure, Rule 52, . . . [to] make specific findings of fact and conclusions of law and set them [forth] on a separate document.” The court took no action on the motion, and appellant filed her notice of appeal on August 28.
Rule 4(a) of the Rules of Appellate Procedure-Civil provides that “except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty days from the entry of the judgment, decree or order appealed from.” Rule 4(b)(1) provides:
(b) Extension of time for filing notice of appeal.
(1) Upon timely filing in the trial court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), or a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
Rule 52(a) of the Arkansas Rules of Civil Procedure provides, in part:
If requested by a party in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58. . . Requests for findings are not necessary for purposes of review. . . If an opinion memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.
Rule 52(b) is entitled “Amendment” and subsection (1) provides:
(1) Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
Clearly the motions provided for in Rule 52(a) and Rule 52(b) are quite different motions with different consequences. A Rule 52(a) motion or request must be filed at least prior to the date of entry of judgment. A Rule 52(b) motion may be filed “not later than ten days after entry of judgment.” Rule 52(a) is mandatory. See McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000). Rule 52(b) is clearly not mandatory on the trial court. The rule states that “the court may amend its findings of fact. . .” Rule 4 of the Rules of Appellate Procedure establishes that a motion made under Rule 52(b) will serve to extend the time for the filing of a notice of appeal. No such provision is made for the filing of a motion or request under Rule 52(a).
The question then becomes whether the motion filed in this case was a 52(a) motion or a 52(b) motion. When we examine the caption of the motion, its contents, its characterization by the appellant in her own brief, and view it in the context of the case, it becomes clear that the motion is what it purports to be, a motion under Rule 52(a).. Such a motion could not extend the time for the filing of a notice of appeal under Rule 4 of the Rules of Appellate Procedure. While the issue on which we decide this case is not raised by either party, we have the duty to raise it on our motion because it is a matter that goes to this court’s jurisdiction. Farm Bureau Mut. Ins. Co. v. Running M Farms, Inc., 348 Ark. 313, 72 S.W.3d 502 (2002); Haase v. Starnes, 337 Ark. 193, 987 S.W.2d 704 (1999).
When the appellate court dismisses an appeal for lack of appellate jurisdiction, based on what may be reasonably seen as technical grounds, surely the better practice, generally, is to withhold any view on the merits of the case. But every rule has its exception, and we do not think it inappropriate to say that we would have affirmed on the merits had we reached them.
Dismissed.
Vaught and Crabtree, JJ., agree.
The rule itself implies that the request must be made prior to the entry of judgment. In McClain v. Giles, 271 Ark. 176 (Ark. App. 1980), we held that a Rule 52(a) motion filed twenty-two days after a decision letter had been written was untimely, even though filed before judgment was entered. In McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000), we found that a 52(a) motion made after the issuance of a letter opinion, but prior to entry of judgment, was timely. | [
-16,
-32,
-11,
12,
-117,
65,
90,
-72,
66,
-53,
103,
-45,
-81,
-62,
28,
107,
99,
43,
100,
96,
-45,
-89,
86,
97,
98,
-5,
-111,
86,
-73,
127,
-18,
-10,
76,
112,
-118,
-43,
70,
-56,
-113,
-108,
-82,
11,
-53,
108,
72,
2,
56,
107,
58,
15,
21,
-65,
-30,
44,
57,
-54,
-20,
44,
-37,
61,
-40,
56,
-101,
15,
95,
4,
-111,
-110,
-102,
-60,
88,
106,
-108,
56,
0,
-24,
114,
22,
-126,
116,
69,
89,
-119,
104,
114,
1,
13,
-25,
-8,
40,
126,
28,
-99,
-90,
-102,
81,
75,
47,
-74,
-75,
109,
-108,
13,
-2,
-30,
13,
94,
108,
-94,
-50,
-46,
-79,
-121,
9,
92,
26,
-29,
-29,
48,
117,
-49,
-26,
84,
-58,
51,
-101,
-50,
-112
] |
Sam BIRD, Judge.
Appellants William G. (Bill) and Anne Abernathy, husband and wife, doing business as Wonder City, Inc., bring this appeal from an order of the Circuit Court of Crittenden County, which granted a motion for directed verdict in favor of appellees, Kenneth J. Knych, Inc., Wonder City Restaurant, Inc., and Kenneth J. Knych, Michael Freyaldenhoven and William Kendall Thomas, individually. From our review of the record, considering the evidence in the light most favorable to appellants, we hold that substantial evidence was presented by appellants that would support a finding by the jury that appellees’ contract with Schneider National Carriers for the operation of a cafeteria was terminated for cause. Accordingly, we reverse and remand for a new trial.
The appellants in this case operated a restaurant under the name of Wonder City, Inc., and had entered into an agreement with Schneider National Carriers, which is a trucking firm, to provide Schneider with cafeteria services at its trucking station in West Memphis. The appellants sold their restaurant business on June 30, 1995, to appellees. Under the contract of sale, the appel-lees were granted the right to continue to provide cafeteria services to Schneider’s West Memphis Center and, in return, appellees agreed to pay to the appellants six percent of the gross sales of the cafeteria operation at Schneider for a ten-year period. The contract also provided:
in the event the Schneider National Carriers Cafeteria operation is lost by them for cause, [appellees] individually shall be hable to Seller in the amount of $150,000.00 for the first year of loss and said liability shall be reduced ten percent (10%) for each year of the remaining ten (10)-year contract in the Schneider National Carriers’ phase of said contract.
On July 1, 1995, appellees began operating the cafeteria for Schneider. On February 13, 1996, Schneider entered into a written contract with appellees for the operation of the cafeteria at Schneider’s West Memphis trucking center. Among other things, this contract provided:
1.1 Term. The initial term of this Agreement is one (1) year from the Effective Date. This Agreement shall continue after the initial one (1) year term on a month to month basis until terminated by either party with or without cause on sixty (60) days prior written notice. After the initial one year term, the parties may adjust the specific terms, commissions or guarantees of this Agreement where circumstances beyond the control of either party require adjustments.
1.2 Termination for Cause. Notwithstanding Section 1.1, in the event that either party defaults in the performance of any of its duties or obligations under this Agreement, which default is not cured within ten (10) days after written notice thereof is given to the defaulting party by the non-defaulting party specifying the default, then the party not in default may, by giving written notice thereof to the defaulting party, immediately terminate this Agreement.
On January 7, 1998, Schneider notified appellees by letter that it was terminating its contract with them, effective sixty days thereafter. Because the appellees refused to pay to appellants the money that the appellants believed was due under the June 30, 1995, contract because of its termination, appellants filed a complaint against appellees, alleging that Schneider’s termination of its contract with appellees was for cause. Therefore, appellants alleged, appellees were obligated to pay to appellants, in accordance with the formula set forth in their contract, the sum of $120,000.
During the jury trial, Bill Abernathy testified that he was the former owner of Wonder City Cafeteria. He stated that he began working with Schneider by providing catering service for its driver appreciation events, called “handshakes.” Schneider completed its new cafeteria facility at its truck stop location and entered into an agreement under which Abernathy agreed to also provide food services for Schneider’s West Memphis cafeteria.
He testified that he sold all of the real estate, building, furnishings, and equipment of Wonder City Cafeteria to the appellees. In addition, he stated that he sold appellees the right to provide food services to Schneider’s cafeteria. Abernathy testified that appellees lost the right to operate the Schneider cafeteria for cause during the third year that they were in business and that, pursuant to the contract, appellees owed him $120,000.
Abernathy stated that the cafeteria was initially run “pretty well” under the managership of appellee Michael Freyaldenhoven. However, he stated that when Ed Camper began managing the cafeteria, problems began to arise, i. e., more drivers began complaining about the lack of service, lack of food, the temperature of the food, the cleanliness of the facilities, and the lack of the use of gloves. Abernathy said that under the contract, he was to have the right of approval over certain matters concerning the operation, but that appellees never sought his approval on any matters. He said that when he offered the appellees suggestions about the cafeteria’s operation, he was ignored to the point that he finally stopped telling them anything.
Abernathy stated that in August 1996, he received a letter from Doug Helton, Operation Support Manager for Schneider, in which Schneider placed appellees on a forty-five day probation period for having received no response from appellees regarding complaints. The letter stated that if the problems that were detailed in the letter were not improved upon, the company would find a new vendor. Abernathy stated that after he learned that the contract might be terminated, he spoke to appellees Knych and Thomas, but that no changes in the operation of the restaurant occurred.
Through Abernathy’s testimony, the appellants introduced a copy of Schneider’s letter informing appellees that their contract was to be terminated in sixty days. In addition to notifying appellees of the termination of the food service agreement, Schneider’s letter informed appellees that “there were service and quality issues that Schneider was looking to improve upon.”
On cross-examination, Abernathy admitted that he was aware that Best Vendors had been hired by Schneider to oversee their entire cafeteria operation and that Best Vendors was taking bids on the operation. He also admitted that he had made a bid on the operation but had not informed appellees and that Best Vendors had changed the terms of the operation of the cafeterias by requiring the operator to pay rent for use of the cafeteria space and to pay Schneider a percentage of the gross sales. Additionally, he admitted that when he operated the Schneider cafeteria, he had not had to pay Schneider rent or a percentage of his gross profits, and that appellees’ contract with Schneider did not require such payments.
Two former employees of the Abernathys, who worked for appellees after the restaurant business was sold, testified that after appellees took over the business, the food quality at Schneider’s restaurant deteriorated because appellees quit using some seasonings and spices that should have gone into the food, switched from fresh to frozen vegetables, prepared food from day-old meat, and often re-used food a second day. One of the employees also testified that under appellees’ management, there were often delays in the preparation and serving of food because they would run out of food products, and that they frequently ran out of cleaning supplies.
Janice Brewer testified that she had worked as the operating manager of Schneider’s trucking center in West Memphis from 1991 until 1998. She said that although she left Schneider in March 1998, she was familiar with the cancellation of Schneider’s contract with appellees because the contract was terminated prior to her departure. She testified that during the time that she managed the Schneider trucking center, Schneider held quarterly celebrations for its drivers, called “handshakes,” and that prior to his sale of the business, Abernathy had provided the food for those events. She said that Abernathy began providing the food service to Schneider’s cafeteria about the time she began managing the center.
Brewer testified that after the Abernathys sold their rights to operate the restaurant to the appellees, the cafeteria was operated in about the same manner as Abernathy had operated it until about November 1995, when the cafeteria came under the management of Ed Camper. Brewer said that Camper had another job and was not around the cafeteria very often. She said that in 1996 she began to receive complaints from drivers about the operation of the cafeteria. According to Brewer, the complaints included “rudeness, not being waited on, dirty dishes, dirty cooking area, no onsite manager, no chemicals for the dishwasher, servers eating in the kitchen food prep area, servers and cook not wearing gloves or hair nets, not charging the correct price and equipment not being properly cleaned and the employees not wearing uniforms.” In addition, Brewer stated that Camper had committed to catering a “handshake,” and that the event was “poorly planned,” because there was no food at the event. She said that a vice-president of Schneider corporation was in town for the handshake and, because of appel-lees’ performance, the vice-president stated, “get rid of these people.”
Brewer testified that in August 1996, a letter was sent to appel-lees from Schneider’s national operations support manager expressing concerns about recurring problems that had been encountered in the operation of the cafeteria. The letter, introduced into evidence without objection, stated that Camper had been made aware of the problems but that no improvements had been made. The letter stated that appellees were being put on forty-five days probation and that a meeting would be scheduled within seven days to discuss corrections that must be made immediately or a new vendor would take over the cafeteria’s operation. Brewer recalled that the meeting was held around the first of September 1996, and that appellees Knych and Thomas were late. She said that at the meeting, Knych and Thomas were very apologetic and promised to solve the problems. She said that the situation improved briefly, but that “then it started going down again.”
Brewer testified:
During 1997, I wanted them out of there. I wanted to terminate them for cause. This decision was made sometime during 1997, but the actual termination letter did not occur until January 7, 1998.
There was conversation with the Schneider people in Green Bay and as a result of the conversation, the letter dated January 7, 1998, was sent as opposed to a letter stating that termination was for cause. ... I discussed with Bill Abernathy that I was going to terminate the contract with Mr. Knych and Mr. Thomas for cause in 1997.
On cross-examination, Brewer testified that she was the person in charge of the cafeteria at the Schneider trucking center, that she had the authority to make the decision whether to terminate the contract, and that she told Bill Abernathy in 1997 that she was going to terminate the contract for cause.
She also stated that Best Vendors was going to take bids for the operation of all ten of Schneider’s cafeterias and that the cafeteria at the West Memphis center was going to be the first one bid, “in order to get the operators out of there.” Brewer stated, “Schneider terminated the contract with Wonder City for cause.” However, she stated that even though Schneider informed her that they were going to send a “for cause” termination letter, the contract was terminated pursuant to the sixty-day provision.
At the end of Brewer’s testimony, appellees moved for a directed verdict, stating that appellants had presented no evidence that the contract was terminated for cause. The court granted the motion, stating:
Although plaintiff argued that the contract was terminated because of bad services and bad supervision, that was not the reason given. The easy way was used, which the contract gave them an option to do. It was an at will termination with 60 days notice. Additionally, there was the modification. The modification of the terms of the anticipated contract modified any profits that would have been realized as a result of it. This would have been grounds for recission of the contract in the first place. For those two reasons, there was not a jury question.
Appellants bring this appeal, contending that the court erred in directing a verdict in appellees’ favor because there was substantial evidence presented that the appellees’ contract with Schneider was terminated for cause. The testimony presented, appellants argue, unquestionably created a fact question.
In ruling on a motion for directed verdict, the trial court views the evidence most favorably to the nonmoving party and gives that evidence its highest probative value, taking into account all reasonable inferences Reducible from it. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). The motion should only be granted where the evidence is so insubstantial as to require that a jury verdict for the nonmoving party be set aside. Id. On the other hand, if there is substantial evidence to support the jury verdict, the motion should be denied. Id. Substantial evidence is evidence of sufficient force and character that it will compel a conclusion one way or the other and it must induce the mind to pass beyond mere suspicion or conjecture. Id.
In determining whether a directed-verdict motion should have been granted, the appellate court reviews the evidence in the light most favorable to the party against whom the verdict is sought and gives it its highest probative value, taking into account all reasonable inferences deducible from it. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id.
We do not agree with the trial judge’s conclusion that Schneider’s use of the sixty-day notice provision to accomplish the termination of its contract necessarily precludes a jury finding that the termination was for cause. Although the Schneider contract contained two procedures by which the contract could be terminated, either one of them could be used to terminate the agreement for cause. Section 1.1 of the contract provided that the contract could be terminated by either party “with or without cause on 60 days prior written notice.” Section 1.2 provided that if either party defaulted in its performance of the agreement and the default was not cured within ten days after written notice, the non-defaulting party could give written notice of its immediate termination of the agreement. Under either section 1.1 or 1.2, the contract could be terminated for cause. The only significant difference in the sections is the length of time to elapse between the notice and the termination.
The testimony of Janice Brewer is certainly substantial evidence that the contract was terminated for cause. The January 7, 1998, letter from Schneider to appellees, giving the sixty-day notice and stating that there were “service and quality issues” upon which Schneider wished to improve, is substantial evidence that the agreement was being terminated because Schneider was dissatisfied with appellees’ performance of the food service agreement. Additionally, inferences could be drawn from the testimony of the former employees about the decline in the quality of the food and services at Schneider’s cafeteria that support a conclusion that Schneider terminated the contract because of dissatisfaction with appellees’ services.
Viewing this evidence in the fight most favorable to appellants, giving it the highest probative value, and taking into account all reasonable inferences deducible therefrom, we find that fair-minded people might reach different conclusions. Whether this evidence establishes that Schneider’s termination of its contract with appellees was for cause is a question for the jury to answer. Consequently, we hold that the trial court erred in granting a directed verdict in favor of the appellees.
Reversed and remanded.
Robbins, Griffen, Crabtree, and Baker, JJ., agree.
ROAF, J., dissents. | [
80,
-4,
104,
-52,
26,
96,
48,
-102,
123,
-93,
39,
83,
-17,
-58,
29,
105,
-25,
93,
-48,
120,
-42,
-77,
1,
98,
-45,
-5,
-7,
-63,
-80,
78,
-28,
-44,
-52,
68,
-54,
29,
-26,
-45,
-55,
30,
74,
-128,
11,
97,
121,
-126,
48,
-6,
82,
71,
113,
-116,
-5,
44,
24,
-57,
-20,
44,
105,
45,
-47,
113,
-29,
5,
15,
7,
-126,
100,
-102,
-121,
-38,
62,
-112,
49,
25,
-24,
114,
-74,
-58,
52,
75,
29,
5,
34,
119,
2,
21,
-27,
-52,
-120,
6,
95,
-99,
-89,
-104,
89,
3,
5,
-65,
29,
82,
23,
-123,
-2,
-3,
5,
27,
108,
3,
-50,
-11,
-93,
-81,
96,
22,
3,
-1,
35,
-79,
116,
-52,
-32,
93,
71,
51,
19,
-50,
-111
] |
Terry Crabtree, Judge.
Appellants Joe and Margaret Whisenhunt appeal from the trial court’s reformation of a deed. The deed reflected a 1999 transaction in which appellants sold a commercial lot in Conway to John Allison and Robert Adcock. Allison and Adcock in turn sold the lot to appellee First State Bank. In 2001, the Bank asked the trial court to reform the deed to extend the lot’s border a few feet westward. That relief was granted by the trial court. We reverse and remand for the reasons explained hereafter.
In 1995, appellants purchased 13.5 acres of commercial property in Conway for use as a shopping center. The tract is bound on the north by Prince Street and on the east by Salem Road. It is irregularly shaped and can best be described by including a small adjacent “out-parcel” not purchased by appellants. With that parcel, the property is rectangular in shape. The longer sides on the east and west measure approximately 1,313 feet, and the shorter northern and southern sides measure 494 and 496 feet respectively. The out-parcel is a 240-foot by 260-foot lot on the northeast corner of the rectangle, occupied by Regions Bank. Except for that parcel, appellants owned the remainder of the rectangle.
Appellants divided the 13.5 acres into four lots. The lots were designated as Lot 1 (measuring 10.19 acres) and Lots 2, 3, and 4 (which were smaller). They would eventually sell Lots 2, 3, and 4, but they retained Lot 1 for themselves. Lot 1 contained a Kroger store at the south end of the tract (facing northward), the Kroger parking lot, and all other property lying outside Lots 2, 3, and 4.
Lot 2, situated on the northwest corner of the tract (directly west of Regions Bank) is occupied by First Community Bank. Between it and the Regions Bank lot on the northeast corner, a paved roadway turns south into the shopping center from Prince Street. The roadway, called Kroger Drive, runs south for a short distance, then runs slightly southeast toward the Kroger store and parking lot at the southern end of the tract.
Lot 3 (later designated Lot 3R) is situated direcdy south of the Regions Bank parcel. It is occupied by appellee First State Bank. Lot 4 (later designated Lot 4R) is located south of Lot 3R and is occupied by a car wash.' As Kroger Drive makes its way south from Prince Street, it runs close to, but not right up against, the western borders of Lots 3R and 4R. The area between Kroger Drive and the western borders of Lots 3R and 4R is owned by appellants and contains landscaped islands. It was standard practice for appellants to place landscape buffers on the edges of their retained property in order to control their grantees’ access to drives.
In the summer of 1998, John Allison and Robert Adcock met with appellants’ son, Joe Whisenhunt, Jr., who handled all of appellants’ dealings in this matter, and informed him that they were interested in Lot 3R as a location for a branch of First State Bank. From observing the lot, Allison and Adcock were under the mistaken impression that the western border of Lot 3R extended all the way to Kroger Drive; they did not realize that the lot stopped several feet short of Kroger Drive. Their mistake was reinforced when, during the meeting with Whisenhunt, the three discussed ingress and egress onto the drive from Lot 3R and curb cuts leading from the lot onto Kroger Drive. Despite these discussions, Whisenhunt did not mention to Allison and Adcock that the lot did not extend to Kroger Drive.
Following the meeting, Allison and Adcock agreed to purchase the lot for $465,000. A deed was executed, describing the property as follows:
LOT 3R OF THE REPLAT OF LOTS 3 & 4, PRINCE/ SALEM SUBDIVISION TO THE CITY OF CONWAY, FAULKNER COUNTY, ARKANSAS, CONTAINING 1.13 ACRES, MORE OR LESS, AS SHOWN IN THE REAL ESTATE RECORDS OF FAULKNER COUNTY, ARKANSAS, IN PLAT BOOK “J”, PAGE 69; SUBJECT TO ALL RIGHTS OF WAY, EASEMENTS, RESERVATIONS, COVENANTS AND RESTRICTIONS THAT ARE OF RECORD.
A few weeks after closing, Allison obtained a survey that revealed an “asphalt drive” as running along the same contours as Lot 3R’s western border, but eight to ten feet west of it. The record does not reveal whether Adcock and Allison failed to look at the survey or looked at it and noticed nothing untoward, but, in any event, they proceeded to construct a building on the lot while laboring under the impression that the lot extended all the way to the “asphalt drive,” i.e., Kroger Drive. Construction was completed in late 1999 and included at least one curb cut leading from Lot 3R onto Kroger Drive.
At some point after construction was completed, Allison and Adcock sold the lot to appellee First State Bank. The deeds were executed in May 2001, although there was some testimony that the sale was actually made in early 2000.
On January 19, 2001, long after construction of the bank was completed, appellants sued appellee, asking the court to enjoin appellee from using an access over appellants’ property to reach Kroger Drive, referring to appellee’s curb cut that crossed the eight-to-ten-foot strip between Lot 3R and Kroger Drive. Appellee counterclaimed for reformation of the deed on the basis that appellants had fraudulently represented that Lot 3R extended to Kroger Drive. Following a trial, the circuit judge ruled in appellee’s favor and made the following findings: 1) the basis of the parties’ bargain was that Lot 3R extended from Salem Road on the east to Kroger Drive on the west; 2) curb cuts were discussed at the parties’ meeting and access to Kroger Drive was discussed; 3) Whisenhunt did not protest when, during the construction process, he saw the curb cuts being made onto Kroger Drive; 4) Allison and Adcock detrimentally relied on representations that they could have a curb cut onto Kroger Drive. Based on these findings, the judge reformed the deed as requested by appellee.
Reformation proceeds on the theory that a contract was made but was not correctly reflected on the written instrument. See Yeargan v. Bank of Montgomery County, 268 Ark. 752, 595 S.W.2d 704 (Ark. App. 1980). It is a remedy in which the trial court revises the terms of a written instrument to reflect the intent of the parties. Roberson Enters., Inc. v. Miller Land & Lumber Co., 287 Ark. 422, 700 S.W.2d 57 (1985). Reformation requires clear, convincing, and decisive proof of either mutual mistake or unilateral mistake accompanied by inequitable conduct. Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993). On appeal, we must determine whether the trial court’s finding that clear and convincing evidence existed is clearly erroneous. See Lambert v. Quinn, 32 Ark. App. 184, 798 S.W.2d 448 (1990).
Appellee’s suit for reformation was not premised on mutual mistake but on unilateral mistake accompanied by appellants’ inequitable conduct. Appellants advance numerous reasons why appellee is not entitled to reformation, one of them being that appellee was not a party to the original deed but was a subsequent grantee with knowledge of the true facts. We agree with appellants’ argument on this point.
Generally, reformation may be had not only by the original parties to the instrument, but also by a party claiming privity with a party to the instrument, such as a grantee. 66 Am. Jur. 2d Reformation of Instruments § 59 (2d ed. 2001). This court has recognized that a successor-in-interest may pursue reformation of a deed. See Johnston v. Sorrels, 21 Ark. App. 87, 729 S.W.2d 21 (1987). It is apparent then that appellee’s status as a subsequent grantee does not, standing alone, bar its action for reformation. However, in addition to establishing a subsequent grantee’s right to pursue reformation, Johnson set out certain requirements that a grantee must meet in order to achieve that remedy:
[I]f the party seeking reformation was not a party to the instrument sought to be reformed, he must be able to introduce additional evidence raising a question of fact as to whether he was simply ignorant of the former mistake and intended to buy the property as described or whether he had assumed, for example, that the particular piece of land was described when in fact it was not.
These requirements having been met, the fact finder must then determine whether as between each successive party there has been such a mutual mistake or mistake by one and inequitable conduct by another as would actually warrant reformation under the facts of the case.
Id. at 93, 729 S.W.2d at 24.
Appellee was not ignorant of the true boundaries of Lot 3R when it acquired ownership of it. When it took title to what the deed called “Lot 3R,” appellee knew or should have known exactly what that language described: a lot whose western border stopped short of Kroger Drive. The deeds vesting title in appellee were executed in May 2001, approximately five months after appellants filed this lawsuit asserting ownership of the disputed strip. Further, there had been in existence since October of 1998 a survey showing Lot 3R’s true boundary in relation to Kroger Drive. Appellee, therefore, was not or should not have been ignorant of the true dimensions of Lot 3R. It follows that it would be illogical to say that appellee was entitled to reform the deed on the basis of a mistake, knowing the true facts as it did.
Appellee urges us to consider the holding in Anderson v. Weise, 95 Nev. 540, 598 P.2d 1144 (1979), in which grantees who consummated a land sale knowing that their predecessor’s deed contained a mistake were not barred from seeking reformation. First of all, we are not bound to follow the Nevada court’s decision. Secondly, the grantees’ pursuit of reformation in Anderson v. Weise was deemed reasonable because they were close friends with the original vendor and assumed that he would correct the mistake. By contrast, appellee knew or should have known in this case that appellants had no intention of correcting whatever erroneous description the deed might contain.
In light of the foregoing, we hold that appellee was not eligible to pursue reformation of the deed. This holding makes it unnecessary for us to address the remaining issues presented by appellant. We therefore reverse and remand the case for entry of an order consistent with this opinion.
Reversed and remanded.
Jennings and Bird, JJ., agree.
Allison and Adcock were instrumental in acquiring the bank’s charter and later became executive officers of the bank.
The trial judge did not mention reformation in his ruling. We have considered the possibility that he intended to merely grant appellee some type of easement over the disputed strip or some other equitable remedy instead of reforming the deed to reflect appellee’s ownership of the strip. Indeed, this case does not seem well-suited to a reformation theory. However, when the judge was asked by appellee’s counsel at the end of the trial if he was granting appellee’s counterclaim to reform the deed, the judge responded that he was. In light of that statement, and based on the parties’ characterization of this case as a reformation case, we will conduct our review accordingly.
Although Johnston involved reformation for mutual mistake, language in the opinion indicates that its holding applies equally in cases of unilateral mistake accompanied by inequitable conduct. | [
112,
110,
-48,
-82,
26,
98,
58,
-65,
106,
-90,
36,
123,
-81,
-63,
17,
41,
-29,
-39,
85,
-23,
-43,
-77,
39,
-30,
-46,
-77,
83,
69,
-80,
-35,
-12,
-42,
76,
52,
-54,
93,
70,
-32,
-17,
-108,
14,
3,
-85,
85,
-47,
64,
44,
-69,
66,
15,
49,
-115,
-78,
36,
28,
-54,
104,
44,
73,
60,
81,
-72,
-72,
-123,
95,
7,
-127,
39,
-70,
3,
90,
8,
-112,
57,
-96,
-23,
115,
-74,
-122,
116,
73,
-101,
8,
38,
98,
0,
77,
-17,
-24,
-115,
14,
-2,
45,
-89,
-112,
120,
1,
2,
-65,
-98,
124,
24,
0,
124,
-18,
4,
29,
108,
11,
-58,
-42,
-127,
-121,
-72,
-120,
82,
-1,
15,
48,
97,
-49,
-30,
93,
-58,
113,
-125,
30,
-15
] |
Olly Neal, Judge.
Lewis Albert Brooks was found guilty of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. He received sentences of forty years’ imprisonment for the cocaine charge and ten years’ imprisonment for the marijuana charge, with the sentences running consecutively. Brooks was also fined $50,000 for each offense. On appeal, Brooks argues that (1) the trial court erred in allowing the State to introduce a statement, allegedly made by Brooks to a police officer but not disclosed to Brooks or his counsel prior to trial, even though Brooks filed a motion for discovery; (2) the trial court erred in denying his motion for a new trial; and (3) the trial court erred in denying his motion for a new trial without allowing a hearing as requested by Brooks. We affirm.
On the morning of September 13, 2000, Brooks was stopped by an Arkansas State Trooper due to his erratic driving in a construction zone. During the stop, he consented to a search of his vehicle. Thirty-four bundles of marijuana and two bundles of cocaine were found in a hidden compartment located in the floor of the vehicle.
Brooks was charged with possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. Brooks’s counsel filed a motion for discovery, requesting copies of any written or recorded statement and the substance of any oral statements made by Brooks. The State responded to the request by reporting that Brooks had made oral statements, and they were attached to the officer’s report. The State also provided a copy of an audio recording of the traffic stop. A jury trial was held January 26, 2001, in the Crawford County Circuit Court.
During cross-examination, Brooks denied telling the officers that he and his wife were separated, and that he was hauling the drugs in order to earn money to get back together with her. Following the close of Brooks’s case, the State recalled Agent Richard Hoffman. Hoffman contradicted Brooks’s testimony, stating that Brooks told him he was hauling the drugs so he could get back together with his wife. Brooks objected to Hoffman’s testimony because the statement had not been disclosed during discovery. The trial court overruled the objection. Hoffman went on to testify that he had told the State about the statement on the day he completed his paperwork. Brooks took the stand again and denied making the statement. Due to the State’s failure to disclose the inculpatory statement, Brooks filed a motion for new trial and requested a hearing on his motion. Brooks alleged that withholding the statement prejudiced him and was a denial of due process. The court denied the motion without holding a hearing.
On appeal, Brooks alleges the trial court erred in allowing the State to introduce the inculpatory statement that was not disclosed to him or his counsel prior to trial despite his filing of motions for discovery. We hold that Brooks waived his argument. A party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. Marts II v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Similarly, objections to discovery violations must be made at the first opportunity in order to preserve them for appeal. Marts II, supra. Thus, Brooks waived his argument when he failed to object to the inculpatory statement during cross-examination.
Had we reached the merits of Brooks’s argument, we would hold that the admission of the statement was not prejudicial. Rule 17.1(a)(ii) of the Arkansas Rules of Criminal Procedure imposes a duty on the prosecution to disclose upon timely request “any written or recorded statements and the substance of any oral statements made by the defendant.” See also Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000); Henry v. State, 337 Ark. 310, 989 S.W.2d 894 (1999). Arkansas Rule of Criminal Procedure 19.7 provides that if the court learns that the prosecution has failed to comply with a discovery rule such as Rule 17.1, the court may order the prosecution to permit the discovery or inspection of the material not previously disclosed, grant a continuance, prohibit the party from introducing the undisclosed material, or enter such order as it deems proper under the circumstances. Henry v. State, supra. When testimony is not disclosed pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). Upon the introduction of his inculpatory statement, Brooks should have asked for a continuance. Furthermore, he has failed to show that the omission undermines confidence in the outcome of the trial.
Brooks’s second argument on appeal is that the trial court erred in denying his motion for new trial. The decision on whether to grant or deny a motion for new trial lies within the sound discretion of the trial court. State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000). We do not reverse that decision absent an abuse of discretion. Bunton v. State, 36 Ark. App. 170, 820 S.W.2d 466 (1991). Brooks has failed to show that the trial court abused its discretion; therefore, we affirm the denial of his motion for new trial.
Brooks also argues that the trial court erred in denying his motion for new trial without allowing a hearing as he requested. Arkansas Rule of Criminal Procedure 33.3 provides that “the trial court shall designate a date certain if a hearing is requested ... to take evidence, hear and determine all of the matters presented. The hearing shall be held within ten (10) days of the filing of any motion unless circumstances justify that the hearing or determination be delayed.” Our supreme court has held appropriate a trial court’s denial of a motion for new trial without a hearing where the holding of a hearing would have been superfluous. See Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). Here, judicial economy would not have been served by holding a hearing, because Brooks failed to set out any new evidence. Therefore, we hold that it was appropriate for the trial court to deny Brook’s motion for new trial without holding a hearing.
Affirmed.
Robbins and Crabtree, JJ., agree. | [
16,
111,
-11,
28,
25,
-32,
62,
24,
120,
-25,
-32,
83,
-85,
-59,
5,
57,
-69,
127,
116,
-23,
-35,
-89,
5,
67,
-30,
-105,
105,
-41,
53,
75,
-19,
-43,
77,
20,
-62,
117,
-25,
72,
-25,
88,
-118,
0,
-103,
98,
18,
26,
32,
46,
26,
15,
49,
30,
-57,
42,
30,
-50,
109,
28,
107,
-67,
88,
-8,
26,
55,
-83,
18,
-93,
-92,
-103,
5,
-8,
124,
-36,
49,
0,
104,
-13,
-106,
-126,
84,
77,
-103,
-116,
32,
98,
33,
93,
77,
-96,
-119,
62,
-81,
-67,
-89,
88,
73,
65,
13,
-105,
-108,
108,
82,
14,
-6,
99,
85,
5,
44,
13,
-54,
-68,
-111,
13,
124,
-108,
122,
-53,
39,
20,
69,
-49,
-26,
84,
85,
120,
-101,
-103,
-107
] |
John B. ROBBINS, Judge.
Appellant John William Davidson appeals his convictions for possession of cocaine, possession of methamphetamine, possession of marijuana with intent to deliver, possession of drug paraphernalia, and possession of prohibited weapons. He was sentenced to four ten-year and one one-year prison terms, respectively, which the trial judge ordered to run consecutively for a forty-one-year prison sentence. He appeals arguing that the trial court erred in (1) denying his motion to suppress, and (2) abusing its discretion or failing to exercise its discretion in ordering the sentences to be served consecutively. We disagree with his arguments and affirm his convictions.
The following events led to the request for a search warrant to search appellant’s home. On the morning of July 7, 2000, a Hemp-stead County sheriff s investigator participated in a helicopter patrol over Hempstead County including the rural sections of the county. Near the Hempstead and Nevada County line, the investigator observed several containers of what appeared to be marijuana plants on the bed of a trailer parked behind a barn, which was approximately 100 feet from appellant’s house. There appeared to be a water hose running from the house to the trailer holding the plant containers. The investigator contacted the Nevada County Sheriff at approximately 9:15 a.m., telhng the sheriff what was observed. The sheriff and three deputies drove to appellant’s house, walked to the trailer, and observed nineteen plants that they believed to be marijuana growing in five containers. The sheriff then walked to the residence and knocked on the doors, but he received no response. After about ten minutes elapsed, appellant awoke, came out of the house, and was read his Miranda rights by the sheriff. When asked whose trailer it was, appellant replied that it was his. Appellant denied knowing what was on the trailer, and when he was shown the plants, he began to curse and disclaimed ownership of them. The sheriff asked for consent to search the house, but it was denied. Appellant reportedly said, “If I let y’all in the house, I’m not going to be sitting well.” A deputy was dispatched to obtain a warrant.
The sheriff’s deputy prepared an affidavit to support his request for a search warrant to search appellant’s residence. The items supposedly concealed there were contained in a list predrafted in the sheriffs computer for use in drug cases. The three-paragraph list of items expected to be in appellant’s residence were:
1. Narcotics and/or compounds or derivatives thereof;
2. Scales, books, papers, records or narcotics notations, plastic baggies and any items which would be used to ingest narcotics and/or dangerous drugs into the human body.
3. Personal property tending to show residence on the premises and not limited to keys, safes, canceled mail, envelopes, rental agreements, receipts, bills for telephone and utility services, photographs, ledgers, phone lists, records of ownership to vehicles and personal property including clothing and/or jewelry, and any and all U.S. currency related to narcotics, any and all keys belonging to safe deposit boxes, bank books, bank records, ledgers (as it has been my training and experience that subjects dealing in profits keep ledgers), personal property affects such as non-cash items used to pay for narcotics, such as radios, scanners, jewelry, televisions, firearms, etc.
The deputy testified at the suppression hearing that these items were listed in the computer based upon training and experience as to what officers could reasonably expect to find during drug-related searches; the sheriffs office considered this “standard language” used in all drug cases. The facts listed in support of the application for a search warrant were the overhead sighting of marijuana plants, the subsequent location on the ground of the five containers of such plants, the encounter with appellant at his door and his admission of ownership of the trailer but not the plants, the request for consent to search appellant’s premises, and the denial of that request. The warrant was granted to the deputy, and it was executed that day, locating the items that led to the additional charges and eventual convictions. Among the items found were guns and ammunition, cocaine, methamphetamine, marijuana, paraphernalia, and large sums of cash. A motion to suppress was heard and denied.
When this court reviews a trial court’s ruling on a motion to suppress, we review the evidence and make an independent determination based upon the totality of the circumstances. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). We will reverse a trial court’s ruling on a motion to suppress only if the ruling was clearly erroneous. Id.
Appellant attacks this warrant on the basis that the affidavit did not establish reasonable cause to believe that the items listed in the affidavit would be found inside the house. Appellant cites to Arkansas Rule of Criminal Procedure 13.1(b) (2000), which provides:
The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.
The test for adequacy of the affidavit set out in Illinois v. Gates, 462 U.S. 213 (1983), and adopted by our supreme court in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), was recently quoted in State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999), whereby:
[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying the hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed. State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993); Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).
State v. Rufus, 338 Ark. at 312. Although the existence of a fact may be proved by circumstances as well as by direct evidence, the circumstantial evidence must be sufficient to lead to the inference. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). Where circumstantial evidence is relied upon to establish a fact, the circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create the basis for a legal inference and not mere suspicion. Id.
Appellant argues that the search warrant should not have been issued because it could not be inferred from the affidavit that the items listed in the warrant could be found in appellant’s home. Thus, he argues that this warrant was based upon speculation and conclusory language, not facts. Appellant recognizes that computer-generated language is not fatal per se when that language is coupled with additional facts to support a reasonable belief that contraband will be found. See, e.g., Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992). However, he notes that the success of the search will not validate the search if it was unlawful in its inception. Willett v. State, 298 Ark. 588, 769 S.W.2d (1989); Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968).
The State, while not agreeing that the warrant was deficient, asserts that the “good-faith exception” enunciated in United States v. Leon, 468 U.S. 897 (1984), would support denial of the motion to suppress. Therefore, it posits that if the officers relied in good faith on'the issuance of the search warrant by the magistrate based upon the magistrate’s flawed determination of probable cause, then the fruits of the search are not subject to suppression. In answering whether the officer is acting in good faith, the analysis requires an objective standard, which requires the officers to have a reasonable knowledge of the Arkansas Rules of Criminal Procedure. Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). We agree with the State that the good-faith exception would support the denial of suppression in this instance. Thus, we need not address the existence of probable cause to issue the warrant.
The State points us to the holding in Yancey, supra, as support for that proposition. In that case, our supreme court refused to suppress evidence seized in searches of the homes of two suspects, which were located approximately five miles away from where the suspects were observed watering some marijuana plants, based upon the officers’ good-faith reliance on a warrant, although the warrant was invalid because it had been issued without probable cause.
Appellant counters that this affidavit was so lacking in probable cause as to render official belief that probable cause resides in it entirely unreasonable, and thus the exclusionary rule should still apply. Appellant notes that there are four errors, noted in Leon, which an officer’s objective good faith cannot cure. These errors occur (1) when the magistrate is misled by information the affiant knew was false; (2) if the magistrate wholly abandons his detached and neutral judicial role; (3) when the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when a warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 914-15. Appellant argues that “it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued,” and that these are such circumstances. Leon, 468 U.S. at 922; see also Bennett v. State, 345 Ark. 48, 44 S.W.3d 310 (2001). We disagree with appellant.
The knowledge of the police here was that there were growing marijuana plants in plain view on a trailer bed approximately 100 feet from the residence on appellant’s property. Appellant was at home in his residence and claimed ownership of the trailer. Though the sheriff believed he already had probable cause to search, the law enforcement officers waited until they had procured a warrant before searching the premises.
The purpose of the exclusionary rule is to deter police misconduct. Landrum v. State, 326 Ark. 994, 936 S.W.2d 505 (1996). Because the goal of the exclusionary rule is to deter future police misconduct, it only makes sense to apply the rule where its application has a deterrent effect, and where the officers acted in objective good faith or where the transgressions are minor, the magnitude of the benefit conferred upon guilty defendants offends the basic concepts of the justice system. Leon, supra; Yancey, supra. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically correct. Leon, supra. Thus, once the warrant issues, there is literally nothing more the officer can do in seeking to comply with the law. Leon, supra. See also Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988). We affirm the trial court’s denial of the motion to suppress.
In his second point on appeal, appellant argues that the trial court did not exercise its discretion or abused its discretion when it sentenced him to consecutive prison terms, contrary to the jury’s recommendation that the sentences run concurrently and with rehabilitation. We disagree with his contention. Arkansas Code Annotated § 5-4-403 (Repl. 1997) states in part that “when multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense . . . the sentences shall run concurrently unless the court orders the sentences to run consecutively.” Appellant concedes that it is solely within the trial court’s discretion whether to sentence a defendant to serve concurrent or consecutive sentences, but argues that the trial court did not exercise its discretion or, alternatively, abused its discretion in mandating that his sentences run consecutively for forty-one years.
The sentencing hearing included testimony from appellant, his family, and friends, who all stated that appellant was a good person who had a drug addiction. That addiction had cost him his last marriage and a great deal of money. Appellant desired rehabilitation to assist in freeing himself of the addiction. The jury deliberated on his sentences, writing on the forms that appellant be sentenced to ten years on each of the drug charges “concurrent with rehabilitation.” On the possession-of-a-prohibited-weapon conviction, the jury wrote “suspended sentence.” The trial judge read these forms, stated that they were not in compliance with the law, and sent the jury back to deliberate further. The jury returned the forms with the same notations, with the exception of the verdict form on the possession-of-a-prohibited-weapon charge, upon which the jury-noted a one-year sentence but added the word “(concurrent).” The jury also recommended in writing that appellant be eligible for transfer.
The trial judge stated that he would ignore the notations. The trial judge pronounced judgment of four ten-year sentences and one one-year sentence, to run consecutively. A posttrial motion to reconsider sentencing was filed to which appellant attached a document with ten of the twelve jurors’ signatures on it recommending that the sentences run concurrently. The motion went unanswered and was deemed denied.
The appellant, by challenging this determination, assumes the heavy burden of showing that the trial judge failed to give due consideration in the exercise of his discretion. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). There is nothing in the record to demonstrate that the trial judge did not exercise his discretion. Indeed, he obviously exercised discretion when he departed from the jury’s recommendation. It is when the trial judge has a standard manner of sentencing or merely implements whatever the jury wants that the appellate court steps in and remands for resentencing. See, e.g., Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980); Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985); see also Blagg v. State, 72 Ark. App. 32, 31 S.W.3d 872 (2000) (holding that the trial judge stated that the ultimate decision would be made by the court, thereby indicating his understanding that the jury’s recommendation was purely advisory). Considering that these sentences were within the statutory maximum and minimum and the trial judge contemplated whether to “stack” them or not, it is abundantly clear that the trial judge exercised discretion when sentencing, and we cannot say that the trial court abused it in that exercise.
Affirmed.
Crabtree and Roaf, JJ., agree.
We deem it imPortant to Point out that appellant’s assertion of his constitutional right to deny consent to search his residence does not suPPly Probable cause to search. See, eg, Florida v. Bostick, 501 U.S. 429 (1991) (holding that a suspect’s mere assertion of constitutional rights cannot constitute the sole basis for establishing probable cause to conduct a search); United States v. Hyppolite, 65 F.3d 1151 (4th Cir. 1995) (holding that the mere assertion of the constitutional right to refuse consent to search does not supply probable cause to search); Snow v. State, 84 Md. App. 243, 578 A.2d 816 (1990) (holding that the driver’s refusal to consent to search of his automobile did not give rise to reasonable suspicion that the vehicle contained narcotics). | [
49,
-20,
-3,
30,
58,
-32,
59,
52,
90,
-77,
-10,
19,
-81,
-30,
5,
59,
-7,
127,
117,
-7,
-57,
-74,
99,
32,
-94,
-13,
-55,
-43,
51,
79,
-4,
-36,
10,
48,
-118,
117,
102,
-120,
-81,
88,
-122,
3,
-103,
114,
19,
74,
32,
43,
15,
15,
49,
31,
-29,
46,
17,
-21,
-55,
44,
-53,
60,
89,
-7,
-69,
29,
75,
6,
-125,
37,
-125,
-123,
-6,
124,
-108,
17,
0,
-22,
-13,
-74,
-128,
116,
15,
-69,
-124,
36,
98,
33,
109,
-19,
-23,
-120,
14,
60,
-81,
39,
-38,
72,
105,
100,
-106,
-65,
100,
48,
46,
-2,
106,
-44,
85,
108,
4,
-42,
-108,
-109,
9,
112,
28,
-6,
-21,
35,
48,
113,
-51,
-30,
92,
100,
113,
31,
-113,
-106
] |
JOHN E. JENNINGS, Judge.
Wal-Mart Stores, Iiic., appeals from a $25,000 judgment awarded to the appellee, Felicia Thomas, after a bench trial. For reversal, appellant contends that there is insufficient evidence to support appellee’s claims of relief for malicious prosecution, outrage, or defamation. We hold that the evidence is sufficient to support appellee’s claim of malicious prosecution and affirm.
This case arose out of a dispute between appellee and Michelle Mitchell, a manager at the Wal-Mart store in Texarkana, over an item appellee wished to return. Appellee wanted to exchange a garment that she said was too small. Ms. Mitchell would not accept the return of the garment because, even though appellee had a receipt, she believed that it had been worn because there were crease marks and a stain on it. Appellee maintained that she had only worn the garment a few minutes when she had tried it on to see if it fit, and she denied that it was stained. Their discussion lasted from fifteen to twenty minutes and took place at the service desk. At its conclusion, appellee asked Ms. Mitchell to call the police so she could lodge a complaint. Ms. Mitchell called the police for appellee, and appellee went to the layaway department to await their arrival.
Ms. Mitchell testified that, although appellee was persistent in her demands, she was not verbally abusive and had not caused a disturbance of any kind. She stated that she had no reason to have appellee removed from the store, that she had not asked her to leave, and that the police would not have been called had it not been for appellee’s request for them to be summoned. She said that she had no problem with appellee waiting in the layaway department, as the purpose of having customers in the store is so that they will spend money. She denied that she told the police to either remove appellee from the store, or to arrest her.
Officer Stacy Williams of the Texarkana Police Department responded to the call. By deposition, she testified that she met Ms. Mitchell at the front of the store and that Ms. Mitchell explained that there was a problem with a customer about a refund, that the customer had caused a disturbance, and that the customer had refused her request to leave the store. Officer Williams said that Ms. Mitchell asked her to remove and ban the customer from the store and that Ms. Mitchell pointed appellee out to her in the layaway department. Williams testified that she approached appellee and told her that she must leave the store because the manager wanted her to go. Williams said that appellee became upset, that she was trembling, that her voice was quivering, and that she had tears in her eyes. Williams said that appellee refused to leave and said that she would not leave until she said what she had to say, but Williams said that appellee would not speak to her. Williams advised appellee that she would be arrested for criminal trespass if she did not leave because the store personnel wanted her to go. Williams testified that appellee appeared to be unstable and was being uncooperative in that she refused to identify herself or talk to her, so Williams decided to arrest her. When Williams tried to handcuff appellee, appellee grabbed a counter with both hands and then slapped and hit at Officer Williams.
At about that time, Officer Lynn Sanders arrived. At trial, Sanders recalled meeting briefly with Ms. Mitchell at the front of the store, but he said he could not remember receiving any specific instructions from her. He admitted, however, that in an earlier deposition he had testified that Ms. Mitchell had told him that appellee was causing a problem and that she wanted appellee removed from the store. He described the scene he encountered in the layaway department as a “Mexican standoff,” and he said that a small crowd had gathered. After being informed by Officer Williams that appellee was to be arrested, Sanders said that he tried to speak with appellee but that she was tensed up and would not respond to any of his questions. Officer Sanders testified that he departed from his normal routine and even begged appellee to submit to the arrest. When appellee did not, he placed her in a “full Nelson,” which allowed Officer Williams to get the handcuffs on her. Sanders then dragged appellee out of the store.
Appellee was taken to jail and charged with criminal trespass, loitering, and resisting arrest. The charges were later nolle prossed.
To prove malicious prosecution, the plaintiff must establish each of the following elements: (1) an earlier 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; and (5) damages. Carmical v. McAfee, 68 Ark. App. 313, 7 S.W.3d 350 (1999). Appellant argues on appeal that appellee failed to present sufficient proof on the first, third, and fourth elements.
In bench trials, the standard of review on appeal is whether the judge’s findings are clearly against the preponderance of the evidence. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). Resolving disputed facts, and determining the credibility of the witnesses are matters within the province of the circuit court, sitting as the trier of fact. Heartland Community Bank v Holt, 68 Ark. App. 30, 3 S.W.3d 694 (1999).
Appellant first contends that there is no evidence that it instituted a proceeding against appellee because there was no testimony that Ms. Mitchell specifically asked the officers to arrest appellee. Appellant also suggests that it was appellee’s own conduct that led to her arrest. As the trier of fact, the trial judge was entitled to accept or reject all of the testimony, or any part thereof that it believed to be true or false. White v. State, 39 Ark. App. 52, 837 S.W.2d 479 (1992). Based on the testimony, the trial court could find that the appellee was arrested for criminal trespass because Officer Williams believed that appellee had caused a disturbance and had refused Ms. Mitchell’s request to leave the store. The trial court could also have found that appellee had not been disruptive and that Ms. Mitchell had not asked her to leave the store. Thus, the court could conclude that Ms. Mitchell falsely accused appellee of trespassing and that this false accusation set in motion the chain of events that led to appellee’s arrest. In discussing this element of malicious prosecution, the supreme court has observed that when a private person makes an accusation of criminal misconduct about another to an official, the person must believe the accusation or information is true. If, however, the information is known by the giver to be false, an intelligent exercise of the officer’s discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information. South Arkansas Petroleum Co. v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001). We cannot say the judge’s finding that the criminal trespass charge was instituted at the behest of appellant is clearly against the preponderance of the evidence.
Appellant next argues that appellee failed to prove the absence of probable cause. In the context of malicious prosecution, the term “probable cause” is defined as a state of facts or credible information which would induce an ordinarily cautious person to believe that the accused is guilty of the crimes charged. Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995). Further, ordinary caution is a standard of reasonableness that presents an issue for the trier of fact when the proof is in dispute or subject to different interpretations. See Kellerman v. Zeno, 64 Ark. App. 79, 983 S.W.2d 136 (1998).
Appellant contends that it has the right to select persons with whom it does business under Ark. Code Ann. § 4-70-101 (Repl. 1996), and that appellee committed a trespass under that statute when she refused the officer’s request to leave. The trial court found, however, that Officer Williams asked appellee to leave and arrested her for criminal trespass when she did not comply, only because Ms. Mitchell had led her to believe that appellee had caused a disturbance and had already committed a trespass by refusing Ms. Mitchell’s directive to leave the store. The trial court further found that Ms. Mitchell had never asked appellee to leave the store. It was also Ms. Mitchell’s testimony that she had no cause to ask appellee to leave and that there was no problem with appellee remaining in the store. The trial court’s finding that there was no probable cause to support the charge of criminal trespass is not clearly against the preponderance of the evidence.
Appellant also argues that there was probable cause to suspect appellee of loitering because appellee refused to identify herself to the officers or give them a reasonably credible account for her presence. The loitering statute, found at Ark. Code Ann. § 5-71-213, also requires the accused to linger or remain at the premises without apparent reason and under circumstances that warrant alarm or concern for the safety of persons or property. Again, it was Ms. Mitchell’s testimony that appellee was not causing any kind of disturbance and that she remained at the store for the legitimate purpose of conducting further business. We cannot say that appellant had probable cause to believe that appellee had committed this offense.
Next, appellant argues that there was probable cause for the charge of resisting arrest. The trial court found, however, that appellee had not been asked to leave the store and had no reason to expect the police to ask her to go. The court also found that the officers were unaware that their presence had been requested by appellee. The court further found that the officer was under the mistaken impression that appellee had remained in the store despite Ms. MitcheÜ’s request for her leave. The court thus concluded that appellee was confronted with a situation that she did not understand, which led to the conflict. In our view, resisting arrest was but one of the charges brought against appellant. As there was sufficient evidence to support the absence of probable cause for levying the charges of criminal trespass and loitering, we affirm under this point. Moreover, appellant has cited no authority that a plaintiffs reaction to charges that are shown to have been wrongfully brought works to insulate the defendant from liability for malicious prosecution for bringing those false charges.
Finally, appellant contends that malice was not shown. The evidence shows that Ms. Mitchell and appellee had argued over the return of the garment and that Ms. Mitchell set the police on appellee to remove her from the store by telling the officers, falsely, that appellee had caused a disturbance and had refused to leave the store. Malice may also be inferred from the lack of probable cause. Wal-Mart Stores, Inc. v. Williams, 71 Ark. App. 211, 29 S.W.3d 754 (2000). This finding is not clearly erroneous.
Because we affirm the judgment based on malicious prosecution, it is not necessary for us to decide whether there is also sufficient evidence to support claims for outrage and defamation.
Affirmed.
Bird, Vaught, and Baker, JJ., agree.
Robbins and Crabtree, JJ., dissent. | [
-79,
-26,
-32,
-116,
42,
-32,
50,
-70,
114,
-93,
119,
-45,
37,
-29,
25,
123,
-5,
125,
113,
104,
-45,
-93,
69,
96,
122,
-70,
24,
-43,
-80,
127,
-28,
-4,
76,
48,
-30,
-43,
102,
-64,
-27,
92,
-86,
3,
-71,
122,
-15,
-126,
32,
42,
86,
7,
49,
-84,
-13,
44,
24,
-54,
109,
44,
107,
61,
100,
-8,
-109,
13,
127,
22,
-109,
36,
-101,
39,
-40,
26,
-104,
48,
0,
-24,
115,
-74,
-126,
116,
111,
-101,
0,
96,
96,
34,
-119,
-89,
-4,
-72,
-82,
125,
-97,
-90,
-112,
56,
8,
77,
-66,
-68,
124,
0,
13,
-10,
-2,
-52,
94,
108,
11,
-50,
-44,
-79,
-115,
52,
-98,
30,
-17,
-93,
48,
81,
-49,
-22,
93,
69,
119,
-101,
-50,
-107
] |
Larry D. Vaught, Judge.
Appellant argues that the trial court erred in its grant of partial summary judgment in favor of appellees’ petition to quiet title to certain real property under the dual theories of collateral estoppel and res judicata.
Collateral estoppel, or issue preclusion, bars relitigation of issues of law or fact previously litigated by the parties. Palmer v. Arkansas Council on Econ. Educ., 344 Ark. 461, 40 S.W.3d 784 (2001). The test in determining whether res judicata applies is whether the matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994). Therefore, before we can determine if the trial court properly granted summary judgment based on the doctrines of collateral estoppel and res judicata, we must be able to determine the specific claims and issues that were presented and resolved in the prior suit. Id. We cannot do so without reviewing the judgment in the prior proceeding; however, appellant failed to include the letter opinion from the first trial in the addendum to her brief.
Failure to abstract an item essential to the understanding of the appeal has traditionally been regarded as a fatal error, and the cases are legion where this was held to be adequate grounds to affirm for noncompliance with the abstracting rules. However, the court must now allow rebriefing before summarily affirming. The modification of the abstracting rules set out in In Re: Modification of the Abstracting System, 345 Ark. Appx. 626 (2001), sets forth the applicable version of Ark. Sup. Ct. R. 4-2(b)(3), which provides that:'
(3) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2 (a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
We find appellant’s abstract and addendum to be deficient such that we cannot reach the merits of the case. Therefore, she has fifteen days from the date of this opinion to file a substituted abstract, addendum, and brief to conform to Rule 4-2 (a) (5). See In re: Modification of the Abstracting System, supra; Ark. Sup. Ct. R. 4-2(b)(3). Mere modifications of the original brief will not be accepted. Id. Upon filing of the substituted brief, appellees shall have fifteen days to revise or supplement their brief at appellant’s expense. According to Rule 4-2(b)(3), if appellant fails to file a complying abstract, addendum, and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the rule.
Rebriefing ordered.
Jennings and Crabtree, JJ., agree.
The record in the present case was filed on December 13, 2001. The amendments to the abstracting rules set out in the supreme court’s per curiam are effective as to cases in which the record is lodged with our clerk on or after September 1, 2001. | [
-16,
-20,
-43,
-116,
-56,
98,
50,
-104,
-48,
-85,
101,
81,
-81,
-53,
4,
41,
-26,
13,
100,
42,
-42,
-74,
95,
97,
86,
-109,
82,
87,
-12,
127,
118,
-42,
-52,
48,
-62,
-59,
70,
64,
-63,
22,
-114,
-122,
-56,
109,
-55,
-26,
56,
51,
112,
15,
49,
-2,
-29,
44,
57,
66,
104,
46,
-24,
-75,
-64,
-40,
-102,
7,
121,
23,
49,
22,
-72,
67,
-40,
-114,
-108,
60,
1,
-24,
50,
54,
-126,
86,
107,
-103,
8,
102,
107,
0,
60,
-21,
-72,
-68,
39,
-4,
15,
-89,
-110,
17,
75,
45,
-74,
-99,
109,
4,
7,
110,
-26,
-115,
90,
108,
11,
-113,
-46,
-77,
31,
124,
-104,
-109,
-13,
-29,
48,
117,
-52,
-60,
88,
23,
19,
-101,
-58,
-108
] |
John E. Jennings, Judge.
Merlene Duncan appeals from a decision by the Board of Review in an unemployment compensation case. Duncan’s argument in essence, is that the Board’s decision is not supported by substantial evidence. We agree and reverse.
The Board fairly summarized the testimony:
The claimant testified that she began working for the listed employer in either 1991 or 1992. She said that she was working in the bakery/deli at the time she quit on September 29, 2001. She stated that she quit because her hours were reduced from forty hours per week to approximately twenty-eight hours per week and she could not pay her bills. She believed that the reduction in work hours was a result of a Wal-Mart Super Center opening in her town, Clinton, Arkansas. She reported that because she could not afford to maintain her home on her reduced salary, she had to move to California to live with her nephew. She noted that she sought employment for one month before she filed a claim for unemployment insurance benefits. The claimant estimated that she worked the reduced hours for six or seven weeks before she quit. She added that she informed the store manager that if she could not be given more hours of work that she would have to quit. She maintained that she also asked for a leave of absence, but the employer did not grant her request. The claimant acknowledged that her intention was to visit her nephew in California until January 2002, and then return to Arkansas.
The store manager testified that he took over the store in June 2001, and the claimant’s hours had already been reduced. He said that after June 1, 2001, the claimant worked an average of thirty hours per week. He thought that the reduction in hours was because of the increased competition from the Wal-Mart store. He noted that his store “released a lot of full-time/part-time people because they just didn’t need them anymore.” He indicated that the claimant was able to work more hours only when someone went on vacation. He recalled that the claimant asked for a leave of absence so she could move to California to earn more money, but his company does not grant leave of absences. He argued that the claimant quit her job with his company to move to California to earn more money, and he did not believe his company was responsible for the claimant being unemployed because if she had stayed she could have continued to work.
The Board then found and concluded:
Based on the evidence, the Board of Review finds that the claimant voluntarily and without good cause connected with the work, left last work. Allegations of a substantial decrease in wages may be considered good cause for voluntarily leaving one’s employment. See Hopkins v. Stiles, 10 Ark. App. 77, 662 S.W.2d 177 (1983); rev’d on other grounds, 282 Ark. 207, 666 S.W.2d 703 (1984). While the Board is aware of the Court’s holding in Hopkins, the Board believes that other factors must be considered in this case to determine if the claimant’s reason for quitting was good cause. Factors such as, the claimant worked the reduced hours approximately four months; the reduction in work hours affected all employees and was due to increased competition; and the claimant wanted a leave of absence so she could leave the state to live, and allegedly work, a brief time in California. The Board finds that while the claimant’s wages may not have been what she wanted, she has not established that her reason for quitting rose to the level of good cause. Additionally, the Court has held that general economic conditions which lead to a claimant’s seeking higher wages or lower living costs do not constitute “good cause connected with the work” as contemplated in Ark. Code Ann. § 11-10-513. Broyles v. Daniels, 269 Ark. 712, 600 S.W.2d 426 (Ark. App. 1980). Therefore, the decision of the Appeal Tribu nal, which reversed the Department determination, is reversed on the finding that the claimant voluntarily and without good cause connected with the work, left last work.
The Board recognized that a substantial decrease in wages may be considered good cause for quitting one’s work and, by implication, found that this appellant had incurred a substantial decrease in wages. The Board then considered “other factors.” This was entirely appropriate — when a case is not clearly governed by applicable precedent, the administrative agency must simply do the best it can.
Nevertheless, we conclude that none of the “other factors” recited by the Board justify a denial of compensation here. The first and third are immaterial. The second reason given by the Board is worthy of consideration. Clearly, the reduction in appellant’s hours was not the fault of the employer.
Even so, the general rule is that a substantial reduction in pay, even if attributable to economic conditions beyond the employer’s control, will not bar a finding that the reduction constitutes good cause for quitting. See 76 Am. Jur. 2d Unemployment Compensation § 146 (1992). Finally, we consider the Board’s reference to Broyles v. Daniels, 269 Ark. 712, 600 S.W.2d 426 (Ark. App. 1980). That case did not involve a reduction in pay, but rather an increase in the claimant’s cost of living. It is not in point here.
We reverse and remand with directions for the Board to award benefits.
Reversed and remanded.
Vaught and Crabtree, JJ., agree. | [
-112,
-22,
-43,
44,
10,
-32,
58,
-102,
98,
-113,
39,
83,
-25,
-32,
84,
89,
-13,
45,
-47,
106,
-47,
-93,
17,
75,
-14,
-65,
-79,
-27,
-75,
111,
-12,
-36,
76,
18,
2,
-43,
102,
64,
-52,
88,
30,
7,
-117,
107,
-7,
-126,
56,
43,
32,
15,
49,
-36,
-77,
12,
-104,
78,
72,
47,
111,
-66,
112,
120,
-110,
13,
-25,
16,
-109,
85,
-70,
7,
-40,
46,
-104,
56,
-32,
-24,
114,
-74,
-62,
52,
97,
-103,
12,
32,
98,
50,
-67,
-17,
-20,
-119,
14,
118,
-97,
-90,
-48,
56,
11,
74,
-100,
-112,
124,
20,
8,
94,
-30,
4,
31,
108,
30,
-50,
-66,
-79,
-115,
101,
-100,
-117,
-25,
35,
-112,
113,
-50,
-86,
92,
4,
107,
26,
78,
-104
] |
Wendell L. Griffen, Judge.
Nan B. Blackford has appealed the decision of the Arkansas Board of Review concerning her claim for unemployment insurance benefits arising out of her employment with The National Medical Rental of Dardanelle, Arkansas. The Board of Review adopted the decision of the Appeal Tribunal upon the finding that Blackford was discharged from her job with National Medical Rental for misconduct connected with the work, and, therefore, held her disqualified from receiving unemployment benefits for eight weeks of unemployment pursuant to Ark. Code Ann. § ll-10-514(a) (Repl. 1996). Blackford’s appeal requires us to determine whether the finding of misconduct connected with the work is supported by substantial evidence. Because we hold that substantial evidence is not present to support the finding, we reverse and remand to the Board of Review so that Blackford’s benefits can be awarded.
Appellant was discharged from her position as a customer service representative on May 16, 1995, after having worked for National Medical Rental for eleven years. During the fall of 1994, she began falling behind in her work without apparent cause. She was counseled concerning this problem in January 1995, and her employer temporarily relieved her of some work duties so that she could bring her paperwork current. However, after appellant became current on the paperwork and resumed her regular workload she again fell behind. The record contains clear proof that appellant’s work in customer service had been substandard, including proof that she informed customers on several occasions that items would be delivered when she had not first verified that the items were available.
The proverbial last straw appears to have occurred on May 10, 1995, when appellant directed a delivery driver to a customer’s residence in Clinton, Arkansas. The customer was being released from hospitalization on that date, and was supposedly en route home. Although appellant informed the delivery driver about that situation, the customer had not arrived home two and a half hours after the driver arrived to make the delivery. After this incident, appellant was discharged due to poor job performance. Her claim for unemployment benefits was denied on the finding that she had been discharged for misconduct connected with the work.
In unemployment compensation cases, the scope of review by an appellate court is governed by the substantial evidence rule. Substantial evidence is defined as such relevant evidence as a reasonable person might accept as adequately supporting the conclusion. Haig v. Everett, 8 Ark. App. 255, 650 S.W.2d 593 (1983). Whether the findings of the Board of Review are supported by substantial evidence is a question of law, and the Court of Appeals may reverse a finding of the Board of Review which is not supported by substantial evidence. St. Vincent Infirmary v. Arkansas Emp. Sec. Div., 271 Ark. 654, 609 S.W.2d 675 (Ark. App. 1980).
This standard of judicial review requires us to determine whether the Board of Review’s finding that appellant was discharged from her last job because of misconduct connected with the work is supported by such relevant evidence as a reasonable person might accept as adequately supporting that conclusion. In doing so, we are guided by the long-standing principle that mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or an employee’s duties and obligations. Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980). We have repeatedly stated that misconduct which precludes benefits for unemployment compensation contemplates willful or wanton disregard of an employer’s interest as is manifested in the deliberate violation or disregard of those standards of behavior which the employer has a right to expect from its employees. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987). As we stated in A. Tennenbaum Co. v. Director, 32 Ark. App. 43, 796 S.W.2d 348 (1990), there is an element of intent associated with a determination of misconduct, and mere inefficiency or poor performance does not, in itself, constitute misconduct. The Board of Review must determine that there was an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design in order to find misconduct. For example, in St. Vincent Infirmary v. Ark. Emp. Sec. Div., supra, we reversed a finding by the Board of Review that two day care center workers had been discharged for “reasons other than misconduct” where the undisputed proof was that the workers left their workplace without permission during the busy period of the workday, and their absence placed the day care center in violation of regulations concerning the ratio of adult employees to the number of children present. In that case, we concluded that the actions of the discharged employees were intentional and displayed a substantial disregard of the employer’s interests as well as their duties and obligations as employees.
This case is fundamentally different. The parties do not dispute that appellant was discharged in the wake of the May 10, 1995, incident when she routed a delivery driver to the home of a customer who had been released from hospitalization, but who was not home two and a half hours after the driver arrived to make the medical supply delivery. Appellant’s evidence that she had spoken with the hospital and been informed that the customer was en route home was not contradicted. Appellant informed the delivery driver about the customer’s recent release, so it cannot fairly be said that she intentionally withheld information vital to the employer’s interest, or that she was deliberately inefficient, or guilty of such negligence as to be deemed in deliberate violation of the employer’s rules. Indeed, it is difficult to fathom how appellant could have been more dutiful in the situation, considering that the customer apparendy desired or needed the ordered item shordy after being released from the hospital.
Based upon our review of the record consistent with the substantial-evidence standard, we hold that the Board of Review’s decision that appellant was discharged from her last job because of misconduct connected with the work is not supported by substantial evidence. Therefore, we reverse that decision, and remand the case to the Board of Review so that an order can be issued granting appellant’s unemployment benefits.
Reversed and remanded.
Robbins, Stroud, and Neal, JJ., agree.
Pittman and Rogers, JJ., dissent. | [
16,
105,
-4,
-100,
8,
-32,
58,
-102,
67,
-125,
39,
83,
-19,
-14,
29,
123,
-29,
93,
-31,
107,
-45,
-77,
51,
67,
82,
-74,
113,
-43,
-103,
106,
-12,
92,
76,
48,
-22,
-59,
70,
88,
-51,
88,
-114,
7,
-88,
109,
121,
-128,
56,
-81,
-14,
79,
113,
-99,
-1,
44,
27,
-58,
76,
46,
75,
61,
120,
-31,
-126,
-115,
-1,
20,
-77,
4,
-98,
3,
-40,
46,
16,
48,
0,
-24,
114,
54,
-126,
36,
99,
-103,
-120,
100,
98,
16,
20,
-23,
100,
-120,
22,
-12,
31,
-90,
-104,
57,
75,
9,
-98,
-71,
28,
20,
4,
-2,
-5,
-52,
31,
108,
-118,
-50,
-80,
-79,
13,
36,
30,
59,
-25,
-29,
52,
117,
-51,
-30,
92,
5,
115,
-101,
-50,
-77
] |
John B. Robbins, Judge.
Appellant Patsy Trent brought a tort action against KMS, Inc. (the owner of a Bonanza Steakhouse in Jonesboro), and Dale Walker, the individual who had recently applied a sealant to the surface of the asphalt parking lot at this Bonanza restaurant. Mrs. Trent alleged that she slipped and fell on the slick asphalt and sustained injuries. She further alleged that her injuries were caused by improper sealing by appellee Dale Walker and the negligence of appellee KMS for allowing her to walk on asphalt that it knew or should have known was slick and dangerous. The appellees moved for summary judgment, which was granted against Mrs. Trent. She now appeals, arguing that the trial court erred in granting summary judgment. We agree and reverse.
In Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996), our supreme court summarized the standards for summary judgment review as follows:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden for sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). 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. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggot, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entided to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v.
Catrett, 477 U.S. 317 (1986).
In Mrs. Trent’s complaint against the appellees, she alleged that she and her husband were dining at this Bonanza on December 2, 1989. While walking in the parking lot after dinner, she slipped and fell, suffering injuries. Since the fall, Mrs. Trent has incurred medical expenses and has missed work, and asserted in her complaint that she is now permanendy and totally disabled. She alleged that her injures were the result of negligence on the part of KMS and Dale Walker. Specifically, she claimed that KMS was negligent in allowing customers to use a parking lot with a slick surface as a means of ingress and egress to and from the restaurant. Mrs. Trent further claimed that Mr. Walker was negligent because he failed to use sand or a similar agent in the sealant and this failure was a proximate cause of her injuries.
In their answers, both KMS and Mr. Walker admitted that Mrs. Trent had fallen and injured herself on the asphalt. However, both appellees denied any negligence or liability. In addition, both appellees pleaded contributory negligence on account of Mrs. Trent’s failure to give proper lookout and exercise ordinary care.
The motion for summary judgment filed by the appellees asserted that Mrs. Trent had submitted no evidence of negligence which would create a question of fact or support a verdict in her favor. The trial court agreed and granted the appellees’ motion for summary judgment.
In Mrs. Trent’s deposition, she indicated that on the evening that she fell, the parking lot was not well fit and she was walking down an incline. Although it was not raining and the asphalt was not wet, she found it to be very slippery. The deposition of Mr. Walker was also very informative. He stated that he has been in the sealing business for a number of years and that until about 1987 he mixed sand into his sealing compounds. However, he discontinued this practice and when he sealed the Bonanza parking lot in August 1989 he did not use sand. The evidence suggested that it is customary for sealers to use sand for this purpose. Mr. Walker produced an invoice which read, “Caution, sand or slag recommended in all sealer applications.” Despite this warning, he failed to use sand when he sealed the Bonanza parking lot. Mr. Walker remembered that the manufacturer said that it may be necessary to mix sand in the sealant on inclined areas.
Kelly Hale, manager of the Jonesboro Bonanza, also gave a deposition. He stated that between August 1989 and December 1989, when Mrs. Trent fell, at least three other ladies had slipped and fallen in the same area of the parking lot. Before Mr. Walker sealed the lot there had not been a problem with people slipping in this area, and prior to Mrs. Trent’s accident KMS had taken no action to remedy the problem.
We find that the undisputed facts of this case did not justify a summary judgment ruling in favor of either KMS or Mr. Walker. Mr. Walker knew that it was customary to combine sand with the sealing agent, yet failed to do so. KMS was apparently aware of prior accidents on the inclined area of the parking lot, yet failed to warn customers of potential danger or attempt to cure the problem. A property owner has a general duty to exercise ordinary care to maintain its premises in a reasonably safe condition for the benefit of invitees. Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989). The answers to interrogatories and depositions before the court presented genuine issues as to whether Mr. Walker’s actions and KMS’s inaction constituted negligence. This should have been a jury determination. Therefore, we reverse the trial court’s summary-judgment rulings.
Reversed and remanded.
Jennings, C.J., Cooper, and Mayfield, JJ., agree.
Pittman and Griffen, JJ., dissent.
We attempted to certify this case to the Supreme Court as one presenting a question about the law of torts pursuant to Rule of Supreme Court l-2(a)(16). However, certification was denied. | [
-11,
-20,
-47,
60,
11,
98,
50,
-86,
83,
-123,
55,
83,
-81,
-50,
12,
47,
-26,
63,
85,
114,
-105,
-93,
7,
33,
-58,
-77,
-39,
69,
-111,
90,
116,
-44,
76,
112,
-118,
-43,
102,
-54,
-59,
30,
-50,
-114,
26,
-24,
89,
32,
28,
123,
0,
15,
49,
-100,
-30,
40,
24,
-57,
109,
44,
123,
61,
-47,
112,
-38,
5,
125,
22,
-79,
100,
-98,
39,
-40,
24,
-44,
48,
2,
-24,
115,
-74,
-62,
116,
105,
-101,
-116,
102,
98,
33,
29,
-17,
-79,
-72,
47,
30,
-115,
-89,
-70,
24,
1,
43,
-97,
-99,
124,
4,
6,
-2,
-10,
69,
89,
44,
7,
-50,
-108,
-79,
-115,
116,
20,
-61,
-57,
-77,
48,
116,
-52,
-30,
92,
70,
19,
-101,
-49,
-78
] |
PER CURIAM.
The attorney general filed a motion in this case to dismiss appellant’s appeal from a second-degree murder conviction, alleging that his notice of appeal was not timely filed. The judgment and commitment order was entered on February 5, 1996. Appellant filed a motion for a new trial on March 6, and an addendum to the motion on March 12. The trial court held a hearing on the motion on April 1 and denied the motion from the bench, but did not enter a written order. Appellant filed a notice of appeal on April 4. Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994), is dispositive of the pertinent facts here. Nance provides that a notice of appeal must be filed within thirty days of the entry of the judgment and commitment order or the order denying a post-trial motion, that a notice of appeal filed prior to the entry of a final judgment is ineffective, that a decision announced from the bench denying the motion does not become effective until the order is filed, but that it is deemed denied thirty days from the filing of the motion. We agree with the attorney general that the notice of appeal was not timely filed.
As was stated in the three-judge dissent in Nance, the rules are ambiguous and should be interpreted to facilitate rather than thwart appeals. Nevertheless, until the rules or their interpretation is changed by the Arkansas Supreme Court, we must follow them.
The motion to dismiss the appeal is granted without prejudice to the appellant to file a petition with the supreme court for permission to file a belated appeal.
Robbins, Neal, and Griffen, JJ., agree.
Jennings, C.J., Pittman, and Rogers, JJ., concur.
Mayfield, J., dissents.
COOPER, J., not participating. | [
-16,
-24,
-36,
30,
-119,
96,
50,
60,
81,
-29,
45,
83,
-81,
75,
20,
121,
-45,
111,
117,
-7,
69,
-73,
119,
97,
34,
-77,
-63,
85,
-65,
-19,
-28,
-66,
76,
96,
-54,
-43,
70,
-64,
-63,
88,
-114,
9,
-101,
-20,
81,
67,
48,
35,
90,
-113,
53,
30,
-29,
-81,
26,
-54,
-24,
44,
89,
-81,
64,
-71,
-110,
15,
-1,
20,
-93,
-91,
-98,
-122,
80,
46,
-104,
49,
0,
-24,
48,
-90,
-106,
52,
109,
25,
8,
98,
98,
1,
21,
-17,
-71,
-120,
6,
126,
-99,
-90,
-104,
89,
75,
37,
-106,
-75,
119,
22,
37,
126,
125,
-51,
85,
108,
-128,
-50,
-108,
-79,
-49,
40,
6,
73,
-21,
37,
80,
117,
-52,
-22,
92,
71,
49,
-37,
-98,
-108
] |
MELVIN Mayfield, Judge.
The appellant was found guilty by a jury of aggravated robbery and theft of property of the value of more than $200, and he was sentenced to fifteen years in the Arkansas Department of Correction for aggravated robbery and three years for theft of property, to run concurrently.
On the morning of the trial, and before any evidence was presented, appellant’s counsel made a motion in limine to prevent the prosecution from offering evidence that the appellant had approached the victim and offered some type of restitution in return for the victim dropping the charges. At that time the prosecutor informed the court that, about three weeks before the trial, appellant had approached the victim at the same store where the robbery occurred, apologized to him, asked him to “go pretty easy on them,” and for doing this, the appellant offered to “pay [Sawyer] some of [his] money back.” The prosecutor said it was his position that this was an admission by the appellant. Counsel for the appellant argued that the apology and offer of restitution was not a direct admission and that it was too inflammatory and prejudicial for the jury to hear. The court denied the motion.
At trial Billy Sawyer testified that on February 19, 1995, he went to a convenience store near his home, the Dodge Store, at around 11:30 p.m. As he was leaving the store, he noticed two men hanging around his car. When he approached they asked him to take them to Dixie Addition, and he agreed. A few blocks down the street the man in the front seat pulled a gun, cocked it, put it to Sawyer’s head, and told him this was a robbery. Sawyer identified appellant as the man with the gun, and Sawyer said the man took about forty dollars and the car from him. Sawyer described his car as a 1977 Cadillac, two-door, and said he had bought it about twelve months prior to the robbery for $1,600. He testified that the car was in good shape when it was taken, and that it was still in good shape when it was returned to him.
Mr. Sawyer also testified that during the Labor Day weekend he had gone back to the Dodge Store, and the appellant approached him and asked him if he would “go pretty easy on” him, and said he would pay Sawyer “some of your money back.”
Appellant argues on appeal that the court erred in denying the motion in limine. He says that the victim’s testimony regarding the offer of reimbursement of his expenses in the case was “totally irrelevant because this offer was not an admission of guilt.” He suggests that civil litigants who are not liable frequently offer to settle a case to avoid the costs and risks of a trial. Similarly, he says his attempt to reach a compromise with the prosecuting witness was not an admission of guilt and should not have been admitted into evidence.
Appellant also argues that if this evidence was relevant, its relevance was outweighed by the unfair prejudice the evidence would create, and it should not have been admitted in keeping with Arkansas Rule of Evidence 403.
Arkansas Rule of Evidence 401, defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Arkansas Rule of Evidence 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
In McCormick on Evidence it is said:
The policy of protecting offers of compromise in civil cases does not extend to efforts to stifle criminal prosecution by “buying off” the prosecuting witness or victim. Indeed, such efforts are classed as an implied admission and generally admissible. The public policy against compounding crimes is said to prevail.
Kenneth S. Boun, et al., 2 McCormick on Evidence § 266, at 198 (4th Ed. 1992). See also State v. Burt, 249 N.W.2d 651 (Iowa 1977) (defendant returned to store and offered to pay for coat he was accused of shoplifting).
In Morris v. State, 21 Ark. App. 228, 230, 731 S.W.2d 230 (1987), we held that the appellant’s attempt to influence a witness to change his testimony possessed independent relevance, because it tended to show the appellant’s knowledge of her own guilt. Even evidence of other crimes is admissible under Ark. R. Evid. 404(b) if the evidence is independently relevant, and the probative value of the evidence outweighs the danger of unfair prejudice under Ark. R. Evid. 403. Smith v. State, 19 Ark. App. 188, 718 S.W.2d 475 (1986).
We think the question is one of unfair prejudice. Clearly, the jury could assume that the appellant’s attempt to induce the victim to drop the charges was evidence of appellant’s knowledge of his own guilt. This would be a common-sense evaluation of such evidence. However, we cannot say that the trial court was wrong in its apparent conclusion that the probative value of the evidence outweighed the danger of its unfair prejudice. After all, in considering the evidence, the jury is not required to set aside its common knowledge but has the right to consider all the evidence in the light of its own observations and experiences in the affairs of life. AMCRI 2d 103.
Affirmed.
Pittman and Stroud, JJ., agree. | [
112,
-22,
-31,
63,
8,
-64,
58,
24,
18,
103,
54,
19,
-93,
-60,
5,
41,
-78,
91,
85,
96,
-2,
-73,
39,
98,
-22,
-77,
121,
69,
-79,
73,
-12,
-42,
78,
50,
-30,
61,
38,
72,
-25,
84,
-114,
5,
-70,
112,
-38,
72,
96,
42,
5,
11,
49,
-116,
-77,
39,
53,
-50,
105,
44,
107,
-69,
80,
-5,
-46,
-113,
-19,
20,
-125,
36,
-101,
3,
-14,
73,
-100,
49,
32,
-8,
115,
-66,
-126,
116,
109,
-117,
12,
98,
98,
48,
5,
-49,
124,
-88,
46,
-2,
-115,
-121,
-8,
64,
3,
13,
-65,
-34,
122,
22,
12,
-36,
91,
-98,
93,
104,
7,
-34,
-108,
-112,
-83,
48,
22,
122,
-37,
39,
37,
117,
-113,
-26,
93,
85,
120,
-109,
-113,
-9
] |
JOSEPHINE Linker Hart, Judge.
After he entered his conditional pleas of guilty to the crimes of manufacture of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia, appellant, Randy Anhalt, appealed the circuit court’s denial of his motion to suppress evidence seized during a nighttime search. He does not argue that the search warrant affidavit failed to state grounds justifying a nighttime search. Rather, he argues that the search warrant authorizing a nighttime search was defective because, in issuing the search warrant, the issuing judicial officer failed to specifically state in the search warrant that he found that a nighttime search was justified. We affirm the court’s denial of the motion to suppress.
The search warrant in this case provided that the warrant could be served and the search made at any time in the day or night. While a paragraph in the affidavit listed what it described as “[ejxigent circumstances” for a nighttime search, as noted by appellant, there was no provision in the warrant stating why a nighttime search was necessary. Appellant notes that Ark. R. Crim. P. 13.2(c) provides as follows:
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 judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
Appellant also cites Carpenter v. State, 36 Ark. App. 211, 214, 821 S.W.2d 51, 53 (1991), which provides that “[t]he 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.” See also Hale v. State, 61 Ark. App. 105, 110, 968 S.W.2d 627, 629 (1998).
In view of the following analysis, however, we cannot conclude that the court erred in denying appellant’s motion to suppress. First, unlike the search warrant in Carpenter, the search warrant here specifically authorized a nighttime search. Second, despite our gratis dicta to the contrary in Carpenter and Hale, Rule 13.2(c) does not provide that the search warrant must state, with particularity, the judicial officer’s finding of reasonable cause to believe that circumstances provided in Rule 13.2 (i), (ii), or (iii) are present, justifying a nighttime search. Third, we are guided by Harris v. State, 262 Ark. 506, 509-10, 558 S.W.2d 143, 145 (1977), in which the supreme court concluded that there was not a substantial violation of the appellant’s rights requiring suppression of evidence even though the search warrant did not recite (as specifically required by the Ark. R. Crim. P. 13.2(b) (ii)) that the judicial officer found reasonable cause for the issuance of the search warrant. In Harris, the court concluded that “the magistrate’s actual issuance of the search warrant established his finding of reasonable cause even more positively than the insertion of a conclusory finding to that effect would have.”
Thus, because Rule 13.2 does not require in the warrant a written recitation of the judicial officer’s finding that a nighttime search is justified, and because the Harris court concluded that the judicial officer’s failure to insert a finding of reasonable cause for issuance of the warrant was not a substantial violation of the appellant’s rights, we must conclude that the judicial officer’s failure to specifically state in the warrant that a nighttime search was justified did not substantially violate appellant’s rights. As in Harris, the judicial officer’s issuance of a search warrant specifically authorizing a nighttime search established his finding that a nighttime search was justified “even more positively than the insertion of a conclusory finding to that effect would have.”
While certainly the better practice would be for the judicial officer to insert in the warrant a specific finding justifying a nighttime search, the judicial officer’s failure to do so does not require suppression of evidence seized pursu mt to the search warrant. We conclude that the circuit court prop .iy denied appellant’s motion to suppress.
Affirmed.
Pittman and Stroud, JJ., agree.
“A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state.” Ark. R. Crim. P. 16.2(e)(1999). | [
-11,
-18,
-19,
60,
10,
96,
11,
56,
-46,
-93,
-81,
83,
45,
-62,
-108,
121,
-70,
63,
117,
105,
-54,
-74,
99,
64,
82,
-45,
-38,
-43,
-9,
75,
-4,
-44,
12,
48,
-50,
-43,
102,
72,
-123,
88,
-114,
0,
-71,
105,
112,
-62,
40,
43,
110,
15,
-79,
-97,
-13,
42,
25,
75,
-119,
44,
75,
-67,
-14,
112,
-72,
31,
-53,
20,
-79,
52,
-112,
-124,
-8,
122,
-36,
17,
1,
-23,
121,
-108,
-126,
116,
15,
59,
-88,
98,
98,
33,
61,
-18,
-68,
-120,
34,
54,
-97,
-89,
-104,
8,
106,
-88,
-106,
-67,
116,
54,
14,
120,
99,
-59,
83,
108,
10,
-49,
-80,
-89,
15,
112,
-122,
-95,
-25,
33,
16,
48,
-50,
-27,
-34,
117,
81,
-101,
-58,
-107
] |
MAX MAX KOONCE, II, Judge.
This is an appeal from the Arkansas Workers’ Compensation Commission. Appellant sought medical benefits for treatment of carpal tunnel syndrome and de Quervain’s tenosynovitis. The Commission reversed the decision of the administrative law judge and held that appellant’s injury was not compensable because she had failed to prove that her carpal tunnel syndrome was the major cause of the need for treatment and because there were no objective findings in the record to support the diagnosis of de Quervain’s tenosynovitis. We affirm in part and reverse and remand in part.
Appellant began working for Frolic Footwear in 1996. For her first year at Frolic, appellant performed the job of “cementfing] vamps and quarters of shoes together.” She developed problems in her forearm, which the company nurse treated with an ace bandage. That problem disappeared. Appellant was transferred to a new position after approximately a year. At her new position, appellant “used a hot glue gun to glue the insole to” house shoes on a “woodpecker beater” machine. After about two weeks on the woodpecker beater, appellant began experiencing problems with her right hand. She informed her employer and kept working. Her supervisor told her that she just needed to get used to her new job. Appellant described the difficulties as cramping in her right hand similar to a charley horse, popping in her wrist when rotated, and sometimes feeling as if she had hit her funny bone. The symptoms continued to worsen and she eventually sought treatment. The company doctor placed appellant on steroids, but once she was taken off the steroids, her condition returned. Appellant went to her family doctor, Dr. Barré, and was later sent to Dr. Mahon by the Commission for an independent medical examination. Appellant sought no further treatment for her hand stating she could not afford it.
In a prehearing conference, the parties stipulated to the employer/employee relationship and agreed that the only issue to be litigated was “compensability regarding a carpal tunnel syndrome caused by rapid and repetitive motion.” Only two medical reports were introduced into evidence and no medical testimony was offered.
The report of Dr. Hal S. Barré stated that he saw appellant on July 21, 1997, complaining of pain in her right hand and wrist. Appellant informed Dr. Barré that she had undergone a nerve conduction study, which she claimed revealed carpal tunnel syndrome. The nerve conduction study was not entered into evidence and Dr. Barré made no independent diagnosis of carpal tunnel syndrome. Dr. Barré did note that appellant had a painful wrist, a positive Finkelstein test, and tendonitis at the base of her thumb. He refused to speculate as to whether the injury was work related because he was not Frolic’s workers’ compensation physician and had not initially seen appellant on the matter. Although appellant’s abstract of Dr. Barré’s report indicates his belief that her wrist condition appeared to have been caused by and continued to be caused by her present job, this is a misstatement. Dr. Barré actually refused to speculate as to whether the injury was work related. He simply agreed to do appellant a favor and write a note to Frolic requesting that appellant be transferred to her previous position.
The second medical report entered into evidence was a letter by Dr. Mahon noting that appellant was seen in his office on July 29, 1997, for an independent medical evaluation. She complained of a painful “pop” of the right wrist with certain motions, a “strained” feeling of the right forearm, and a tingling and stinging sensation of the wrist and hand. She also complained of her right hand and forearm “going to sleep.” Dr. Mahon described previous treatment which appellant had received in regard to this complaint. First, he noted that Dr. Carpenter described a swelling with a feeling of hardness in appellant’s right hand on April 15. Second, he noted that appellant was given EMG/NCV studies on May 19. Appellant informed Dr. Mahon that Dr. Kumar diagnosed her with carpal tunnel syndrome based upon the EMG/NCV. However, no records or reports by Dr. Carpenter or Dr. Kumar were introduced into evidence at the hearing.
Dr. Mahon performed various tests on appellant and reviewed the studies conducted by Dr. Kumar. These led him to a dual diagnosis: de Quervain’s tenosynovitis and carpal tunnel syndrome. Specifically, Dr. Mahon stated:
Although some of Ms. Steveson’s symptoms are compatible with carpal tunnel syndrome and mild electrical changes have confirmed that, her primary complaint in my office was in regard to the thumb and the first ray, with symptoms compatible with de Quervain’s tenosynovitis.
The carpal tunnel syndrome was substantiated by the electromy-ogram; however, the tenosynovitis was supported only by the complaints of the appellant and subjective tests done by Dr. Mahon in his office. Dr. Mahon recommended cortisone injections of both the carpal tunnel and the dorsal area. The administrative law judge granted compensation for appellant’s injuries. The Commission reversed, holding that appellant failed to prove that the carpal tunnel syndrome was the major cause of the need for treatment and that there were no objective findings in the record to support the diagnosis of de Quervain’s tenosynovitis.
For reversal, appellant argues that she should not be punished for the failure to provide additional objective medical evidence when the purpose of the hearing is to determine her eligibility to receive funds to obtain that medical evidence. She also argues that the Commission erred in finding that her carpal tunnel syndrome is not the major cause of her need for treatment.
In order to receive benefits for appellant’s alleged cumulative trauma injury of de Quervain’s tenosynovitis, appellant must satisfy all of the following requirements: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of her employment; (2) proof by a preponderance of the evidence that the injury caused external or internal physical harm to the body; (3) medical evidence supported by objective findings as defined in Ark. Code. Ann. § 11-9-102(16); (4) proofby a preponderance of the evidence that the injury was caused by rapid repetitive motion; and (5) proofby a preponderance of the evidence that the injury was the major cause of disability or need for treatment. Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997). We affirm that part of the Commission’s decision holding that there were no objective findings in the record to support the diagnosis of de Quervain’s tenosynovitis as required by Ark. Code. Ann. § 11 — 9— 102(5)(A)(ii)(a), thereby denying claimant’s entitlement to benefits for this diagnosis.
For appellant’s alleged cumulative trauma injury diagnosed as carpal tunnel syndrome, appellant must again establish the above requirements except for rapid repetitive motion, which is construed to be present with a diagnosis of carpal tunnel syndrome. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). The Commission erred in finding that appellant’s carpal tunnel syndrome was not the major cause of her need for treatment. The carpal tunnel injury was not only the major cause, but the only cause of appellant’s need for treatment for carpal tunnel syndrome. The fact that she also has a de Quervain’s injury that is not compensable does not affect the compensability of her carpal tunnel syndrome. As we stated in Tyson Foods, Inc. v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998), in affirming the Commission’s award of benefits for carpal tunnel syndrome and aggravation of a claimant’s arthritis and denial of benefits for tendinitis,
We do not view Arkansas Code Annotated section 11 — 9— 102(5)(E)(ii)(Supp. 1997), as precluding a finding that separate injuries or conditions that occur simultaneously or near in time to each other can be compensable. This is true even though the statute requires that both compensable injuries or conditions are the major cause of the disability or need for treatment. Neither does the fact that injuries are located in the same body member, as here, act to disqualify an award of benefits when a claimant meets the statutory requirements of the need for treatment.
Tyson Foods, Inc., 61 Ark. at 230, 966 S.W.2d at 918. Nonetheless, we must still remand this case to the Commission for further proceedings. In denying benefits to appellant, the Commission did not reach the issue of whether her carpal tunnel syndrome was causally related to her employment. We therefore reverse and remand to the Commission to determine whether appellant’s carpal tunnel syndrome arose out of and in the course of her employment with the appellee.
Affirmed in part; reversed and remanded in part.
Robbins, C.J., Pittman and Roaf, JJ., agree.
Stroud and Griffen, JJ., dissent. | [
17,
-3,
-100,
-84,
8,
-31,
48,
26,
81,
-125,
117,
51,
-25,
101,
-35,
109,
-25,
77,
80,
103,
85,
51,
87,
-54,
-62,
-37,
121,
-57,
-79,
107,
-28,
-43,
73,
48,
-118,
-43,
-26,
-128,
-55,
80,
-62,
4,
-117,
-24,
25,
-126,
56,
-81,
-40,
71,
49,
30,
-71,
46,
20,
-49,
40,
106,
123,
63,
-48,
-24,
-46,
5,
125,
21,
-94,
7,
-97,
15,
-38,
12,
-104,
49,
0,
-20,
19,
-74,
-62,
116,
75,
-71,
4,
97,
98,
34,
29,
-89,
108,
-88,
63,
-34,
-99,
-92,
-101,
41,
75,
3,
-106,
-107,
126,
6,
12,
122,
114,
93,
21,
108,
-117,
-122,
-106,
-109,
-49,
104,
-108,
-93,
-17,
15,
50,
101,
-34,
-29,
92,
-111,
115,
-101,
-102,
-102
] |
Andree Layton Roaf, Judge.
Robert Dooley appeals from the denial of his petition for writ of habeas corpus by the Yell County Circuit Court. Dooley was detained by Yell County when it was learned during a routine traffic stop that he was wanted by Texas'authorities for violating his parole by leaving Texas without permission, and Texas subsequently sought his extradition. On appeal, Dooley argues that the trial court erred in denying his petition because he was unconditionally released from prison according to Texas law, and therefore was not subject to the terms and conditions of parole. We affirm the trial court’s denial of the writ.
Dooley was sentenced in Texas on July 14, 1984. He was given a conditional release on November 23, 1992, however, he refused to sign the terms and conditions of his release. One of the conditions was that he would not leave the state of Texas without permission. During a routine traffic stop, an officer from Yell County discovered that Dooley was wanted out of Texas. The Texas Parole Department had filed a warrant stating that Dooley had violated the terms and conditions of his parole by leaving the state without permission. On May 26, 1999, an extradition-waiving hearing was held, and the court declared Dooley indigent, appointed him a public defender, and set a bond. Dooley subsequently filed a petition for a writ of habeas corpus in Yell County Circuit Court. A Governor’s warrant was issued for Dooley’s arrest between the filing of the petition and the setting of the hearing.
At the hearing on July 20, 1999, Dooley argued that he was not on parole under Texas law. Dooley contended that he is not subject to the condition that he not leave the state of Texas without permission, which is the basis for the Texas warrant, because he refused to sign the document regarding the terms and conditions of his release. Dooley argued that in order for the trial court to determine whether or not he was on parole, it needed to look at the parole requirements of Texas. The trial court denied Dooley’s petition for writ of habeas corpus, finding that (1) he is the individual being sought; (2) there is an outstanding Governor’s warrant; and (3) the Texas court system should decide whether or not he is in violation of the terms of his parole or probation. Dooley was returned to Texas. This appeal followed.
On appeal, Dooley argues that the trial court erred in denying his petition for a writ of habeas corpus. Dooley argues that the Governor’s warrant was facially defective because he was not on parole under Texas law, and therefore could not flee from a charge for which he is not guilty. In support of his argument, Dooley referred to a document that was attached to the Governor’s warrant entitled “Rules and General Conditions of Mandatory Supervision Release as Provided by the Texas Department of Criminal Justice Pardons and Paroles Division Article 42.18.” According to this document, one of the conditions of parole is that the parolee is not allowed to leave the state of Texas without the prior, written permission of the parole officer. At the bottom of the parole document, there is a line for the inmate to sign and agree to these conditions; however, Dooley refused to sign the document. Dooley argues that he was in essence unconditionally released because he did not sign the parole document, and therefore could not flee from Texas because he was not on parole. Dooley’s argument is without merit.
After a Governor’s rendition warrant on a request for extradition has been issued, the only two issues to be addressed in a habeas corpus hearing pertaining to the extradition request are whether the detained party is the person named in the warrant and whether he is a fugitive. McCray v. State, 290 Ark. 14, 715 S.W.2d 878 (1986); Glover v. State, 257 Ark. 241, 515 S.W.2d 641 (1974).
In Smith v. Cauthron, 275 Ark. 435, 631 S.W.2d 10 (1982), citing Pierce v. Cauthron, 266. Ark. 419, 584 S.W.2d 5 (1979), the supreme court noted that the Constitution of the United States, art. 4, § 2, cl. 2, states:
A person charged in any State with Treason, Felony, or other Crime who shall flee from Justice and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
In Stuart v. Johnson, 192 Ark. 757, 94 S.W.2d 715 (1936), Stuart was arrested in Craighead County upon a warrant charging her with having committed embezzlement in the state of Oklahoma and with having fled from that State. Stuart argued that the offense charged was barred by the statute of limitations. The supreme court stated: “That may be, or she may have been a fugitive so as to prevent the statute bar from attaching. At any rate, that is a matter of defense which may be offered in defense of the charge, but not here.” Id.
The evidence in this case established that Dooley was arrested and sentenced in Texas in July 1984 for a criminal offense committed in Texas. He was released on parole from the Texas Department of Correction on November 23, 1992. Dooley subsequently left Texas and came to Arkansas and was arrested during a routine traffic stop because of an outstanding Texas warrant. Dooley is a fugitive from justice within the meaning of the requisite laws. As in Stuart, the question of whether Dooley may have a defense to the Texas charge is not one that may be addressed by the Arkansas trial court. Therefore, the Arkansas trial court properly refused to discharge him. See also Letwick v. State, 211 Ark. 1, 198 S.W.2d 830 (1947).
Affirmed.
Crabtree and Koonce, JJ., agree. | [
48,
-59,
-59,
63,
10,
-95,
8,
-74,
-30,
-109,
118,
83,
-17,
-46,
0,
123,
105,
111,
85,
-7,
-55,
-73,
103,
113,
-13,
-13,
73,
87,
-77,
-49,
-2,
-44,
12,
40,
-86,
87,
102,
74,
-89,
88,
-114,
1,
-71,
90,
-47,
27,
40,
7,
8,
15,
17,
-98,
-126,
78,
57,
-54,
-119,
44,
91,
-83,
66,
-7,
-99,
15,
-33,
4,
-93,
20,
-72,
7,
-14,
62,
-112,
25,
1,
-8,
18,
-106,
-118,
119,
79,
-117,
36,
70,
35,
0,
77,
-3,
-75,
40,
54,
-5,
-105,
-90,
-47,
81,
106,
100,
-105,
-3,
107,
116,
12,
-12,
110,
-60,
85,
102,
-116,
-34,
-108,
-109,
31,
124,
-114,
26,
-53,
52,
0,
117,
-51,
-30,
92,
39,
113,
-101,
-114,
-46
] |
James R. Cooper, Judge.
The appellant, Columbus Rowe, appeals from his conviction by a jury of delivery of a controlled substance. He contends the trial judge erred in denying his motion for directed verdict at the close of the State’s case and his motion for judgment notwithstanding the verdict at the sentencing phase, both motions being based on the lack of sufficient evidence to convict. We conclude that Rowe waived his right to question the sufficiency of the evidence on appeal by failing to move for a directed verdict at the conclusion of all the evidence, and therefore we affirm.
In June 1989, an undercover agent was approached by the appellant and three other persons. The agent gave the appellant $35.00, and the appellant left and returned twenty minutes later with “rock” cocaine. At trial, the agent testified that he kept the substance in his possession until it was sent to the State Crime Laboratory. A chemist testified that the rock substance contained cocaine. The jury found the appellant guilty of delivery of a controlled substance.
No motion for a directed verdict was made at the close of the case as required by Ark. R. Crim. P. 36.21(b), which states that the defendant must “move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case” to preserve an argument based on sufficiency of the evidence. Failure to do so constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. See Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).
In Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991), the Court refused to address the sufficiency issue when the appellant failed to move for a directed verdict at the close of all the evidence but moved for a new trial on the basis that the verdict was contrary to the weight of the evidence. And, in Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991) it is stated that “the court has strictly followed the requirements of Rule 36.21 (b) and has refused to address sufficiency of the evidence questions unless both directed verdict motions were made.” See Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). In Easter, the appellant moved for a directed verdict at the close of the State’s case but failed to do so at the close of all the evidence. After the jury verdict, he again moved for directed verdict. The court held this to be, in fact, a motion for a new trial which did not preserve his argument that there was insufficient evidence.
Accordingly, where the motion for directed verdict was not renewed at the close of all the evidence, the motion for judgment notwithstanding the verdict made after the jury had rendered its verdict, and after the trial judge imposed sentence was not sufficient to comply with the requirements of Rule 36.21, and the issue was not preserved for appeal.
Affirmed.
Cracraft, C.J., and Jennings, J., agree. | [
112,
-28,
-3,
-100,
26,
96,
50,
56,
0,
-105,
100,
83,
109,
-50,
12,
123,
-93,
127,
85,
105,
-58,
-73,
39,
120,
-14,
-73,
35,
-57,
-9,
-21,
-28,
-44,
12,
112,
-118,
-11,
-26,
-56,
-61,
88,
-58,
-111,
-112,
-22,
81,
-54,
40,
98,
54,
31,
113,
-98,
-29,
43,
29,
-49,
-21,
44,
91,
-67,
90,
113,
-102,
47,
-17,
52,
-79,
20,
-97,
-92,
-6,
126,
72,
49,
1,
-8,
115,
-74,
-110,
-12,
65,
-101,
-120,
96,
99,
-127,
29,
-19,
61,
-104,
54,
62,
-51,
-90,
-104,
0,
73,
44,
-106,
-99,
110,
48,
6,
-24,
107,
93,
89,
124,
11,
-113,
-80,
-109,
13,
61,
22,
82,
-37,
-95,
16,
113,
-52,
-30,
92,
69,
83,
-101,
-41,
-106
] |
John E. Jennings, Judge.
Don E. Rummel and seven others were employed by Arkansas Power and Light Company (AP&L) at its White Bluff facility. The employment of all eight workers was terminated by AP&L as part of a general reduction in its work force. Their last day to work was December 6, 1994.
Each employee received a severance package under an agreement negotiated between their union, the International Brotherhood of Electrical Workers, and AP&L. The agreement provided that each would receive “administrative leave pay,” “separation pay,” and “vacation pay.”
Each of the employees filed a claim for unemployment benefits. The Agency initially denied the claims, but this decision was subsequently modified by the Appeal Tribunal. Finally, after an appeal to the Board of Review, the claims were once again denied.
On appeal to this court the claimants contend that the Board erred in concluding that they were not unemployed during the eight-week period in which they received administrative leave pay. In a second argument, which affects Mr. Rummel only, he contends that the Board improperly concluded that his receipt of vacation pay was disqualifying. We find no reversible error in the Board’s determination and therefore affirm.
The negotiated agreement provided that each employee would receive “two months administrative leave with full base pay. Administrative leave begins as determined by the company. At the end of the two-months administrative leave, employment will be terminated. ...” From the date he last reported to work in early December 1994, each claimant received his normal weekly wage based on a forty-hour work week, payable bi-weekly, as in the past. The claimants’ insurance benefits and credit union benefits continued during the “administrative leave.”
The parties agree that the primary issue on appeal is whether the claimant-appellants were unemployed during the two-month period designated as administrative leave. Arkansas Code Annotated section ll-10-214(a) (Repl. 1996) provides that an individual shall be deemed “unemployed” with respect to any week during which he performs no services and no wages are payable to him with respect to that week. The Board held that the administrative leave payments were wages. On the facts of this case we cannot say that the Board’s conclusion is not supported by substantial evidence. While we agree with the appellants that McVey v. Daniels, 270 Ark. 409, 605 S.W.2d 483 (Ark. App. 1980), cited by the Board, is not directly on point, it is also of no help to the appellants. In McVey, we merely recognized that the statutory definition of unemployment contained two parts: that the employee performed no services, and that no wages were payable to him with respect to the week in question.
Appellants also contend that the Federal Worker Adjustment and Retraining Notification Act, 29 U.S.C.S. §§ 2101-09 (1990), requires the Board to reach a different conclusion. We disagree. The WARN Act requires that an employer provide a sixty-day written notice to employees before a plant closing or mass layoff. Failure to provide such notice gives rise to employer liability for “back pay” up to a maximum of sixty days, reduced by “any voluntary and unconditional payment by the employer to the employee that is not required by any legal obligation.” 29 U.S.C.S. § 2104(a)(2)(B). Employees may enforce such hability by suing in Federal District Court.
In the case at bar it is not at all clear that the administrative leave payments were “WARN Act payments.” Appellants rely on Capital Castings, Inc. v. Arizona Dep’t of Economic Security, 828 P.2d 781 (Ariz. Ct. App. 1992); Georgia-Pacific Corp. v. Unemployment Compensation Bd. of Review, 630 A.2d 948 (Pa. Commw. Ct. 1993); and Westinghouse Electric Corp. v. Callahan, 658 A.2d 1112 (Md. Ct. Spec. App. 1995). These cases do tend to support appellants’ position. Labor & Indus. Relations Comm’n v. Division of Employment Sec., 856 S.W.2d 376 (Mo. Ct. App. E.D. 1993), and Division of Employment Sec. v. Labor and Indus. Relations Comm’n, 884 S.W.2d 399 (Mo. Ct. App. W.D. 1994), however, tend to support the Board’s view in the case at bar. In any event it is clear that each of the cases involving the application of the WARN Act in the state unemployment benefits context was determined under the particular unemployment compensation law of the state where the decision was rendered. We agree with the conclusion of the court in Capital Castings, supra, that the federal description of payments for purposes of WARN does not control classification of the payments for the purposes of unemployment compensation eligibility. The Arizona Court of Appeals noted that neither in WARN itself nor in its legislative history did Congress express an intent to control eligibility for state unemployment compensation. Capital Castings, 828 P.2d at 785.
Appellants also argue that the Board did not follow the precedent established in an earlier ESD case, but we know of no authority for the proposition that the Board’s earlier decisions constitute binding precedent upon itself. Although it hears appeals, the Board’s position in these cases is analogous to that of a trial court in the sense that it functions as the trier of fact. See Edwards v. Stiles, 23 Ark. App. 96, 743 S.W.2d 12 (1988); City of Fayetteville v. Daniels, 1 Ark. App. 258, 614 S.W.2d 680 (1981).
Mr. Rummel alone contends that the Board erred in finding his receipt of certain vacation pay disqualified him from receiving unemployment benefits. Mr. Rummel received payment for unused 1994 vacation and pay for the vacation that he would have received in 1995 had his employment not been terminated. The applicable statute, Ark. Code Ann. § 11 — 10— 517(5)(Repl. 1996), provides that a claimant shall be disqualified for benefits for any week with respect to which the claimant receives or has received remuneration in the form of vacation payments. The statute also provides:
However, [the claimant] shall be paid, with respect to the week in which the vacation period occurred, an amount equal to the weekly benefit amount less that part of the vacation pay, if any, payable to him, or in which he has been paid or will be paid at a later date with respect to such week, which is in excess of forty percent (40%) of [the claimant’s] weekly benefit amount, rounded to the nearest lower full dollar amount. For the purpose of this subdivision, the employer shall prompdy report the week or weeks involved in the vacation period as well as the corresponding amount of vacation pay with respect to such week or weeks [.]
On this issue the Board held:
With regard to the vacation pay issue, there was no dispute concerning the amount of vacation pay which the Department found the claimant to have received. Further, the Board of Review interprets § 11-10-517(5) to require that accrued vacation pay, paid at separation from employment, be allocated, until exhaustion, to the weeks immediately, following the separation. Also, there was no dispute with regard to the Department’s calculations which resulted in allocation of the claimant’s vacation pay to four benefit weeks, and the Board finds those calculations to be accurate. As a result, the Board finds the Department’s allocation of the vacation pay to the weeks ending February 11 through 25 and March 4, 1995, to be appropriate.
In support of his argument, appellant Rummel relies on several cases which were decided under prior law. Arkansas Code Annotated section 11-10-517 deals with the receipt of certain remunerations by a claimant and their disqualifying effect. Remu nerations in the form of separation payments, bonus payments, and vacation payments are included as disqualifying under the statute. Ark. Code Ann. § 11-10-517(1), (5), (6). In the instances where separation payments or bonus payments are made in one lump sum, the statute specifically provides that the payment will only be disqualifying for the week it is received. No such provision is found under vacation payment.
Thus, the Board of Review interpreted the statute to require that vacation pay, paid at separation from employment, be allocated, until exhaustion, to the weeks immediately following the separation. We agree with appellee, the Arkansas Employment Security Department, that this is consistent with the intent of the legislature. Because the legislature chose to specifically address the issue of lump-sum payments with regard to separation and bonus payments, and did not do so with vacation payments, it seems apparent that they contemplated vacation pay to be allocated to specific weeks until exhaustion. AP&L notified appellant Rummel that he would receive payment for his accrued vacation time for 1994 and 1995. Rummel also testified that he received this vacation pay as part of the severance agreement. Therefore, we cannot say that the Board of Review erred in finding that the vacation pay disqualified Rummel from receiving benefits pursuant to section 11-10-517(5).
Affirmed.
Meads and Roaf, JJ., agree. | [
16,
-24,
-42,
-68,
8,
65,
50,
-112,
90,
-81,
39,
81,
-17,
-77,
25,
121,
-13,
109,
112,
121,
-45,
35,
49,
104,
66,
-77,
121,
-59,
-72,
107,
-92,
-34,
-51,
57,
74,
-43,
-26,
-64,
-51,
92,
-28,
7,
-86,
-20,
-7,
-60,
48,
127,
-16,
91,
1,
-100,
-5,
-84,
16,
-53,
-52,
46,
93,
-89,
66,
122,
-118,
13,
-1,
17,
-109,
5,
-102,
7,
-48,
14,
-104,
48,
8,
-52,
115,
54,
-62,
52,
99,
-103,
12,
99,
98,
54,
-75,
-25,
-20,
-88,
22,
-74,
-99,
-96,
-104,
56,
10,
5,
-106,
-108,
94,
5,
-124,
124,
119,
-123,
94,
109,
-126,
-114,
-82,
-29,
15,
-20,
-106,
-118,
-21,
-57,
48,
116,
-98,
-94,
92,
71,
115,
31,
-58,
-48
] |
John E. Jennings, Judge.
This is an unemployment compensation case. Neither party is represented by counsel and no briefs have been filed. The claimant, Tracy Jennings, worked in appellant’s bakery as a packaging room helper and in loading ovens with bread until March of 1990 when she took a medical leave to have surgery performed for carpal tunnel syndrome. She was released by her doctor to return to work on August 18,1990. She attempted to return to her former duties but found that she could not physically perform the work. When the claimant asked the employer whether there was any work which she could physically do, she was told that there was not. The Board of Review found that she had been discharged and allowed benefits.
The document which serves as a notice of appeal to this court is a letter from Barbara Oswald, the personnel director of Holsum Shipley Baking Company. The letter states:
We would like to “petition for review” the decision in this case.
Shipley Baking Company does not wish to appeal the decision that benefits be allowed.
Shipley Baking Company from the onset of this claim has asked that the statutory provision involved be under “Law: A.C.A. 11-10-513(b)”; that her reasons for leaving her job were after making a reasonable effort to preserve her job rights, she left because of her injury. [Emphasis in original.]
We do not reach the question of whether the Board’s finding that the claimant had been discharged is supported by substantial evidence, because to do so would merely constitute an advisory opinion. See generally Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990); Dilday v. State, 300 Ark. 249, 778 S.W.2d 618(1989). As a general rule, no appeal lies from findings of fact, conclusions of law, or “mere rulings.” 4 Am. Jur. 2d Appeal and Error §76(1962). The posture of the present case is analogous to that presented to the supreme court in Long v. Henderson, 249 Ark. 367, 459 S.W.2d 542 (1970). There the court said:
Appellee asserts that the court erred in excluding consideration of the evidence relating to the broken leg received by Ruth Henderson in her fall, contending that the evidence linked the 1967 automobile accident with the 1968 fall from the truck. However, she says, “Appellee wants the issues on the cross appeal decided but does not want a remand if a direct appeal is affirmed”. We decline to grant the request to determine this issue, having stated that we do not render advisory opinions. Kays v. Boyd, 145 Ark. 303, 224 S.W. 617 (1920).
Likewise, the appellant in the case at bar asks us, in effect, to affirm the decision of the Board of Review but to change the basis for the decision. Under the authority cited above we decline to do so. The appeal is dismissed; see Beatty v. Clinton, 299 Ark. 547, 772 S.W.2d 619 (1989).
Cracraft, C.J., concurs in the result.
Cooper and Mayfield, JJ., dissent. | [
16,
-56,
-44,
-83,
10,
-64,
50,
-110,
97,
-121,
39,
83,
-17,
-108,
29,
47,
-15,
45,
-47,
123,
-45,
-77,
19,
9,
114,
-1,
-39,
-43,
-71,
75,
-28,
116,
77,
48,
-54,
-59,
-26,
-56,
-55,
24,
-56,
7,
-86,
-19,
121,
-126,
56,
42,
-16,
31,
81,
-98,
-1,
44,
24,
-49,
76,
44,
75,
61,
-47,
96,
-126,
13,
127,
4,
-111,
4,
-100,
7,
-48,
58,
-104,
48,
1,
-24,
112,
-74,
-62,
20,
107,
-103,
0,
98,
98,
50,
29,
-25,
12,
-72,
46,
118,
29,
-89,
-104,
25,
91,
75,
-100,
-99,
122,
20,
12,
124,
-6,
69,
30,
108,
3,
-54,
-76,
-79,
15,
100,
20,
-85,
-21,
39,
16,
117,
-36,
-93,
93,
70,
115,
31,
-50,
-110
] |
Terry Crabtree, Judge.
The parties in this case were divorced in May of 1992 and custody of their two minor children, Christal and Ben, was awarded to appellant, Karen Turner. Since their divorce, both appellant and appellee have remarried, and Christal has reached majority. In November of 1995, appellee sought custody of Ben, who was 13 years old at the time. After a hearing on August 1, 1996, the chancellor awarded custody to appellee. Appellant contends that the order changing custody was clearly against the preponderance of the evidence. We disagree and affirm.
In deciding whether a change of custody is warranted, a chancellor must first determine whether there has been a material change in the circumstances of the parties since the most recent custody decree. Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996). If a material change has occurred, the chancellor determines custodial placement with the primary consideration being the best interest of the child. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994).
Although chancery cases are reviewed de novo on appeal, we will not disturb a chancellor’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996). Since the question turns largely upon the credibility and demeanor of witnesses, this court defers to the superior position of the chancellor to make such determinations. Schwarz, supra. The deference to be accorded to the chancellor is even greater in cases involving child custody.
In those cases a heavier burden is placed on the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child’s best interest. We have often stated that we know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great a weight as those involving child custody. (Citations omitted.)
Milum v. Milum, 49 Ark. App. 3, 5, 894 S.W.2d 611, 612 (1995); see Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989).
In his petition, appellee alleged that appellant had begun using her husband’s surname (Turner) as Ben’s surname, that she had consistently interfered with appellee’s visitation schedule, and that she had made derogatory statements about appellee in Ben’s presence. Appellee pointed to the chancellor’s prior admonishments that Christal and Ben needed healthy relationships with both parents and argued that the above actions harmed his relationship with Ben.
Several witnesses testified on behalf of both parties at the hearing. Appellee and others testified to the good relationship he had with Ben and the animosity that Christal had developed toward him. Dr. DeYoub, a court-appointed psychologist, evaluated the parties and the children, and his reports were admitted into evidence. Of critical importance were his remarks regarding the relationship between appellee and Christal:
She did not make a single statement about Mr. Benson. I found the interview with her to be quite chilling. She rejects her father without the slightest display of emotion.
What happened to Christal is a serious matter, because that relationship is gone with her dad and time and maturity will only determine if she will ever change. The threat that Ben will do the same is a real one.
Dr. DeYoub indicated that a change of custody was a viable option, and that the court could do so immediately or wait to determine whether matters were otherwise resolved. Dr. DeYoub’s report stated that if the problems persisted, appellee should gain custody of Ben. He also opined that if custody were changed immediately, Ben’s relationship with appellant would remain strong, and his relationship with appellee would strengthen.
Dr. Tanner, a counselor hired by appellant, testified that Ben had a strained relationship with and feared appellee. Dr. Tanner recommended that custody remain unchanged.
Although appellant raises only one point on appeal, five points of argument are made thereunder. Two of these arguments are challenges to the chancellor’s consideration of the evidence. First, appellant contends that the change of custody was not warranted in light of appellee’s testimony that he and Ben enjoyed a good relationship. Second, appellant argues that Dr. DeYoub, the attorney ad litem, and Dr. Tanner unanimously recommended that Ben stay with appellant. This particular statement is not completely accurate. As stated, Dr. DeYoub’s opinion was that a change of custody was an option. The ad litem did not testify at trial, but did submit a letter in support of appellant’s motion to reconsider. However, no hearing was held on the motion. Only Dr. Tanner, who, as the chancellor recognized, was hired by appellant, recommended that custody not be disturbed.
The chancellor was in a superior position to judge the credibility and demeanor of the many witnesses at the hearing, and in doing so she utilized to the fullest extent all of her powers of perception in evaluating the witnesses, their testimony, and the child’s best interest, Milum, supra, and we cannot say that her findings were erroneous.
Appellant also contends that Dr. DeYoub’s report clearly reflected a desire on Ben’s part to live with appellant, and that the chancellor erred in not considering this preference. While the preference of the child is a factor to be considered when making a custody determination, Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986), the chancellor has the discretion to decline to give weight to the child’s preference, and it is not binding upon the court. Malone v. Malone, 4 Ark. App. 366, 631 S.W.2d 318 (1982). We cannot say that the chancellor abused that discretion in the present case.
Appellant’s fourth contention is that the chancellor erred in changing custody when the evidence showed that the good relationship between Ben and appellee had not been adversely affected. The chancellor stated that her concerns stemmed from appellee’s poor relationship with Christal and the fear that Ben’s relationship with appellee would suffer the same fate if custody were not changed.
Appellant was admonished three years prior to the custody hearing that she was alienating Ben from appellee. An award of custody to one parent does not lessen the noncustodial parent’s responsibility to the child, nor does it affect his right as a parent to provide guidance and to participate in decisions affecting the welfare of the children. Clark v. Reiss, 38 Ark. App. 150, 831 S.W.2d 622 (1992); see Provin v. Provin, 264 Ark. 551, 572 S.W.2d 853 (1978). Whether one parent is alienating a child from the other is an important factor to be considered in change-of-custody cases, for, just as the chancellor noted below, a caring relationship with both parents is essential to a healthy upbringing. The testimony of several witnesses left the chancellor with the clear impression that Ben was happy during visitation with appellee, but was uncomfortable in expressing his enjoyment when he returned to appellant. Former spouses are often hostile to one another; and it is unfortunate when their children are forced to bear the brunt of this bitterness. This type of alienation, knowing or otherwise, can hardly be said to be in the best interest of the child. Riley, supra.
Lastly, appellant argues that since there was evidence of a good relationship between Ben and appellee, the chancellor must have changed custody solely to punish appellant. Appellant points only to statements made by the court regarding the inappropriateness of allowing Ben to choose which name he should use at such a young age. It is important to note that while the chancellor did have a strong opinion as to the way appellant dealt with the situation, her statements, as abstracted by the parties, were well intentioned and warranted. No evidence of punishment was presented.
The chancellor made a difficult decision based on extensive and varied testimony. Because she was in a better position to determine the credibility of witnesses and the best interests of the child, and because her findings are supported by the evidence, we affirm.
Robbins, C.J., and Meads, J., agree. | [
-80,
-20,
-51,
108,
11,
96,
58,
-72,
99,
-61,
47,
-45,
-89,
-29,
20,
105,
18,
75,
81,
96,
-45,
-73,
70,
-63,
114,
-13,
-79,
-46,
-73,
108,
39,
87,
76,
112,
-102,
-43,
66,
-53,
-49,
80,
-122,
-121,
-70,
-27,
-54,
-106,
36,
113,
18,
15,
52,
-98,
-13,
44,
57,
-49,
-24,
46,
-35,
-67,
80,
49,
-102,
5,
127,
22,
-79,
20,
-72,
5,
80,
47,
-120,
-72,
11,
-22,
51,
-74,
-110,
102,
71,
57,
-119,
98,
114,
1,
-116,
-9,
-72,
-120,
110,
44,
29,
-26,
-101,
72,
75,
1,
-73,
-72,
100,
82,
46,
-2,
-25,
-115,
30,
100,
-126,
-114,
-44,
-77,
-116,
-63,
-40,
0,
-9,
-79,
17,
112,
-50,
-30,
93,
103,
27,
-45,
-74,
-89
] |
John E. Jennings, Judge.
Bill Moore is an owner of a business known as Moore Brothers Feed and Seed, in Black Rock, Arkansas. In February 1989, Moore sold a four-wheeler to Joy Hively. The vehicle was financed through First National Bank of Lawrence County and Moore retained a lien on the vehicle.
At the time of sale, Moore also sold Hively an insurance policy issued by Columbia Mutual Casualty Insurance Company. Moore told Hively that the policy was a theft policy and that for the four-wheeler to be covered it would have to be chained to a tree or something that would hold it.
In May of 1989, the four-wheeler was stolen. Hively had chained it to her mobile home and thieves had cut the chain.
Moore paid the balance of the note to the bank and he and Hively then sued Columbia Mutual on the policy. The policy provided coverage for: “Burglary from within a building or room. There must be evidence of visible entry.” The trial judge granted Columbia Mutual’s motion for summary judgment and Moore and Hively have now appealed.
The sole contention on appeal is that the policy provision was ambiguous and therefore it was error for the trial court to grant summary judgment. We affirm.
On deposition Moore testified that he had been told by Paul Morefield, an employee of Columbia Mutual, that for the vehicle to be covered, it would have to be “inside a shed or chained to a tree or chained to something that showed forcible entry.” In his deposition, Paul Morefield testified that he was a territory manager for Columbia Mutual. Morefield testified that the policy covers “theft.” His opinion was based on conversations with someone in the company’s research and development department who had told him that burglary and theft were synonymous.
Summary judgment is an extreme remedy which should only be granted when it is clear that there is no genuine issue of material fact to be litigated. See Ferguson v. Order of United Travelers, 35 Ark. App. 100, 811 S.W.2d 768 (1991) (supplemental opinion on denial of rehearing). The moving party has the burden of demonstrating that there is no genuine issue of fact for trial and any evidence submitted in support of the motion must be viewed most favorably to the party against whom the relief is sought. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). On motion for summary judgment, the court is authorized to ascertain the plain and ordinary meaning of a written instrument “after any doubts are resolved in favor of the party moved against,” and if there is any doubt about the meaning, there is an issue of fact to be litigated. Brooks v. Renner & Co., 243 Ark. 226, 419 S.W.2d 305 (1967); Ferguson, cited above. Furthermore, provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it is the duty of the court to do so. Home Indem. Co. v. City of Marianna, 297 Ark. 268, 761 S.W.2d 171 (1988).
On the other hand, summary judgment should be granted when the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c). When a contract is unambiguous, its construction is a question of law for the court. Floyd v. Otter Creek Homeowners Ass’n, 23 Ark. App. 31, 742 S.W.2d 120 (1988). The initial determination of whether or not a contract is ambiguous rests with the court. C. & A. Constr. Co. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974).
Appellants contend, and we agree for the sake of argument, that the term “burglary” as used in the policy is ambiguous. It may well be that under the circumstances of this case the policy could be construed to cover “theft.” There is, however, no ambiguity in the policy language requiring that the property be taken “from within a building or room.” Because that prerequisite for coverage was not met, the trial court was right in granting summary judgment. The situation is similar to that presented in Ray v. Shelby Mutual Ins. Co., 14 Ark. App. 265, 687 S.W.2d 526 (1985). In Ray we said:
The appellant argues that the agent who sold him the policy represented to him that the policy in question would cover such a loss as occurred here. Even if that allegation is true, at most it would give rise to a cause of action against the agent, but would not serve to provide coverage for losses which were specifically excluded by the unambiguous language of the policy.
Ray, 14 Ark. App. at 267; see also Batesville Ins. & Fin. Co. v. Butler, 248 Ark. 776, 453 S.W.2d 709 (1970). For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.
Mayfield, J., dissents. | [
52,
124,
-7,
-36,
8,
-31,
40,
-6,
83,
-127,
37,
-45,
-87,
-60,
5,
105,
-10,
123,
-44,
97,
-43,
-89,
47,
-94,
-62,
-69,
-5,
-59,
-67,
-53,
-20,
-41,
92,
32,
-122,
93,
-26,
-56,
-59,
-40,
78,
1,
-102,
113,
-19,
72,
48,
107,
52,
15,
53,
-97,
-94,
46,
17,
66,
105,
108,
107,
61,
-16,
-7,
-54,
15,
127,
23,
-109,
38,
-70,
-91,
122,
9,
-108,
49,
16,
-24,
115,
-90,
-106,
116,
79,
-101,
8,
34,
99,
19,
4,
-17,
-16,
-120,
55,
-74,
-113,
-122,
-98,
40,
3,
39,
-65,
-107,
115,
5,
-124,
124,
-17,
13,
93,
104,
5,
-49,
-78,
-125,
-115,
112,
28,
-85,
-2,
-125,
50,
113,
-49,
-22,
93,
69,
115,
-101,
14,
-73
] |
Per Curiam.
Lowell D. Fonken and Cynthia A. Fonken have moved for permission to file an amici curiae brief in the above-styled case, which arises from a lower court decision granting the adoption of one of two sisters to the appellees, Jim and Lana Couch. The movants assert that the lower court decision separates two sisters, ages two and three, who have been together all of their lives, and that the appellees do not wish to adopt both children because one of the sisters has cerebral palsy. The movants further assert that they have filed a petition seeking to adopt both children; that they did have custody of both children for approximately two months; and that they continue to have custody of the sister who suffers from cerebral palsy. The movants seek to file an amici brief in order to support the appellant’s position that an adoption should not be granted which separates the two sisters.
Amici curiae attorneys may file briefs with the permission of the court. Ark. R. Sup. Ct. 20. Whether or not to allow the amici brief is a matter within the appellate court’s discretion. See Holiday Inn v. Coleman, 29 Ark. App. 157, 778 S.W.2d 649 (1989) (Mayfield, J., concurring). In Ferguson v. Brick, 279 Ark. 168, 649 S.W.2d 397 (1983), the Arkansas Supreme Court noted that the undertaking of the amicus has changed from that of an impartial friend of the court to that of an acknowledged advocate. However, the cases discussed by the Ferguson court involve questions of public interest. Even though there may be a question of public interest involved in this case, the movants’ interest is limited to the result in this particular suit because of their personal stake in the outcome.
Amici curiae attorneys must take the case as they find it and cannot introduce new issues not raised at the trial level. Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). Moreover, although consent to file an amici curiae brief will be given:
when the filing is justified by the circumstances, yet leave to file will be denied where it does not appear that the applicant is interested in any other case which will be effected by the decision and the parties are represented by competent counsel. Under such circumstances, the need of assistance will not be assumed.
4 Am. Jur. 2d Amicus Curiae § 4 (1962). In the case at bar, the movants do not question the competence of appellant’s counsel, and since it appears that the movants are interested only in the outcome of the case at bar, permission to file an amici curiae brief is denied.
We note that the Arkansas Department of Human Services (ADHS) filed its motion for supersedeas and stay of the trial court’s order granting a temporary decree of adoption to the appellees with the Arkansas Court of Appeals on October 21, 1991. The motion was certified to the Arkansas Supreme Court on October 23,1991, and was denied on October 28, 1991. ADHS filed a petition for rehearing with the Supreme Court which was denied on December 9, 1991, without written opinion. The motion for permission to file an amici curiae brief is being considered here for the first time and has never been before the Supreme Court. | [
-16,
105,
-19,
44,
26,
97,
56,
62,
99,
-85,
119,
83,
-17,
-36,
84,
89,
103,
61,
67,
-5,
-43,
53,
87,
72,
-64,
-13,
-78,
86,
-15,
-19,
118,
86,
72,
104,
-118,
-43,
-62,
-46,
-113,
28,
-74,
1,
40,
101,
81,
-42,
32,
99,
24,
7,
21,
-18,
-77,
-88,
61,
-57,
104,
110,
-39,
61,
-47,
48,
-113,
-105,
-33,
22,
-95,
36,
-70,
-124,
80,
47,
-104,
16,
40,
-20,
48,
-90,
-102,
118,
75,
105,
-115,
99,
102,
32,
-100,
-25,
-4,
72,
110,
11,
-115,
-90,
-46,
73,
75,
65,
-74,
-11,
93,
16,
41,
90,
-2,
5,
30,
108,
-124,
-113,
-106,
-77,
29,
18,
92,
3,
-22,
23,
34,
117,
-38,
126,
92,
71,
58,
-109,
-114,
-70
] |
John F. Stroud, Jr., Judge.
This case involves a controversy over entitlement to the property of the late Quincy Coleman. Appellant/cross-appellee Brenda Coleman is the widow of Armnee Coleman, one of Quincy’s sons. Appellees/cross-appel-lants are the other eight children of Quincy Coleman. During Quincy’s lifetime, he placed Armnee’s name on his checking and savings accounts and on the title to his vehicle. Additionally, he deeded his house to “Armnee Coleman, Trustee.” When Quincy died in 1995, Armnee claimed ownership of the accounts, the vehicle, and the house. The other eight children alleged that Armnee had gained his purported ownership of the property through deception and coercion. On November 9, 1995, they filed a petition in Garland County Chancery Court seeking the imposition of a constructive trust. Armnee Coleman died during the pendency of the action and his wife, Brenda Coleman, was substituted as a party individually, as next friend of her daughter, Haley, and as executrix of Armnee’s estate.
After a hearing, the chancellor found that it was not necessary to decide whether a constructive trust should be imposed on the bank accounts because Quincy Coleman lacked the mental capacity to enter into the depositor’s contract whereby he placed Armnee’s name on the accounts. She further found that it had not been proven that Quincy, in placing Armnee’s name on the accounts, intended to make a gift to Armnee. She therefore ordered that the $72,181.78 in the accounts at the time of Quincy’s death be returned to Quincy’s estate. Regarding the house and the vehicle, the chancellor found that they should be awarded to Armnee’s wife and daughter on the grounds that appellees/cross-appellants failed to prove by clear and convincing evidence that a constructive trust should be imposed. 'Appellants/ cross-appellees appeal from that part of the chancellor’s order pertaining to the bank accounts. Appellees/cross-appellants appeal from that part of the order pertaining to the house and the vehicle. We reverse and remand on direct appeal and affirm on cross-appeal.
Direct Appeal
Quincy and Lois Coleman were the parents of nine children. Lois Coleman died on December 13, 1987. Shortly after her death, Quincy Coleman, accompanied by Armnee, removed Lois’s name from their checking and savings accounts and changed the accounts to reflect “Quincy Coleman or Armnee Coleman” as joint owners. Within a few days after this transaction, Quincy was admitted to the hospital suffering from grief reaction along with probable malnutrition and associated delirium. He remained hospitalized until January 10, 1988. According to various neighbors and relatives, Quincy was distraught over his wife’s death and suffered from depression and confusion. The youngest of the Coleman children, Bernard, returned home from college to take care of his father for several months. Bernard likened his task to taking care of a two-year-old. However, he stated that Quincy was back to normal by the summer of 1988.
In 1990 or 1991, Bernard Coleman had a discussion with his father regarding the bank accounts. He learned that Armnee’s name had been placed on the accounts. He told his father that he foresaw a family fight over the money and that “as far as I’m concerned I could care less about the money, they can stick it.” According to Bernard, his father told him not to be that way and that the money was as much his as anyone else’s. On another occasion, Quincy told Bernard that the only reason he didn’t put his name on the checking account was that he was still in college.
. In 1992, Quincy inherited over $96,000 from his sister. He deposited the money into the checking and savings accounts bearing his and Armnee’s names. A few days later, approximately $20,000 was withdrawn from the savings account and used to purchase a new car. The car was titled in the names of Quincy or Armnee Coleman.
On appeal, appellants concede that Quincy Coleman was mentally incompetent at the time he placed Armnee’s name on the bank accounts. However, they argue that subsequent events, i.e., Quincy’s acknowledgment to Bernard that Armnee’s name was on the accounts, Quincy’s deposit of the inheritance money into the accounts, the purchase of the jointly owned vehicle with funds from the accounts, along with the fact that bank statements bearing both names were sent monthly to Quincy’s residence, constitute a ratification of Quincy’s previously invalid action.
We review chancery cases de novo on the record and do not reverse a chancellor’s finding unless it is clearly erroneous. Smith v. Whitener, 42 Ark. App. 225, 856 S.W.2d 328 (1993). A finding is clearly erroneous if, upon our review, we are left with the firm conviction that a mistake has been committed. Id. Our review in this case leaves us with the firm conviction that the chancellor erred in disregarding the appellant’s ratification argument. It is well established- that a person who commits an act while lacking the mental capacity to do so may nevertheless affirm or ratify that act once he regains his capacity. Heskett v. Bryant, 247 Ark. 790, 447 S.W.2d 849 (1969); Antrim v. McKelroy, 229 Ark. 870, 319 S.W.2d 209 (1958); Brandon v. Bryeans, 203 Ark. 1117, 160 S.W.2d 205 (1942). We have also recognized that silence or acquiescence in a contract for any considerable length of time amounts to ratification. Kinkead v. Union Nat’l Bank, 51 Ark. App. 4, 907 S.W.2d 154 (1995). In this case, testimony by one of the appellees, Bernard Coleman, reveals that Quincy Coleman had regained his mental capacity by the summer of 1988. Certainly, for the chancellor to be consistent in her ruling, Quincy was mentally competent by August of 1990, the date on which he deeded his house to Armnee. The chancellor found no lack of capacity in that transaction. Quincy did not die until May 1995, which means that he lived in a competent state between five and seven years without removing Armnee’s name from his accounts. Further, he transferred other property to Armnee during that period and acknowledged to Bernard in 1990 or 1991 his awareness that Armnee’s name was on the accounts. Finally, Quincy placed a great deal of money into the accounts in 1992, a time when, according to Bernard’s testimony, he was aware that Armnee’s name was on the accounts. With this evidence in mind, we must hold that the chancellor’s failure to find that Quincy Coleman ratified his transaction was clearly erroneous.
The chancellor also erred in finding that appellants were not entitled to the accounts because Quincy did not intend to make a gift of the accounts to Armnee. One requirement of an inter vivos gift is that the donor must unconditionally release all future dominion and control over the property. See Estate of Sabbs v. Cole, 57 Ark. App. 179, 944 S.W.2d 123 (1997). We recognize that Brenda Coleman testified that, while Quincy was alive, Armnee never took money from the accounts without Quincy’s permission. However, appellants do not claim their right to ownership of the accounts by virtue of an inter vivos gift from Quincy to Armnee; their claim is based upon Armnee’s survivorship right as a joint tenant. Therefore, the chancellor was wrong in denying appellants’ claim on the grounds that they did not prove the requirements of an inter vivos gift.
Since we reverse on direct appeal, we do not find it necessary to reach appellants’ second argument regarding an award of attorney fees and calculation of the amount to be paid to the estate of Quincy Coleman.
Cross-Appeal
On cross-appeal, it is argued that the chancellor erred in failing to impose a constructive trust on the house that Quincy deeded to Armnee and on the car that was titled in both Quincy’s and Armnee’s names. Quincy executed the deed to the house in August 1990. According to attorney Richard Wootton, Armnee contacted him and told him Quincy wanted to transact some business regarding his real property. Shortly thereafter, Armnee and Quincy visited Wootton at his office. According to Wootton, he was not sure at first what Quincy wanted to do with the house; Quincy kept mentioning the word “trust.” Wootton explained to him that a trust would entail the drafting of a separate trust document. Quincy did not want such a document, so Wootton told him he could prepare a deed conveying the property to “Armnee Coleman, Trustee.” However, he explained to Quincy that the use of the word “trustee” would have no legal effect; the deed would operate as an outright conveyance to Armnee. According to Wootton, he spent an hour to an hour and a half with Quincy on the matter. Quincy indicated he understood that Armnee would have full title to the property.
There is no evidence in the record regarding the circumstances surrounding the placement of Armnee’s name on the car title other than the fact that Quincy paid cash for the car with money withdrawn from his and Armnee’s joint accounts.
Again, we acknowledge that our review is de novo and that we will not reverse a finding by the chancellor unless it is clearly erroneous. Smith v. Whitener, supra. We find no error on cross-appeal. Cross-appellants argue that evidence of undue influence exercised by Armnee mandates imposition of a constructive trust. However, the record supports the chancellor’s finding that no undue influence was proven with regard to either of these transactions. Attorney Wootton’s testimony reveals that he fully explained to Quincy the legal ineffectiveness of the use of the word “trustee” in the deed and that, as a result, title to the property would pass to Armnee. Further, there was testimony by other witnesses that Quincy wanted Armnee to have the house because Armnee had done so much to take care of him. Cross-appellants attack the credibility of these witnesses, but we defer to the superior position of the chancellor on credibility questions. O’Flarity v. O’Flarity, 42 Ark. App. 5, 852 S.W.2d 150 (1993). Regarding the car title, as we have already noted, there was virtually no evidence regarding the placement of Armnee’s name on the title.
Finally, cross-appellants ask us to “judicially repeal” Ark. Code Ann. § 18-12-604 (1987), the statute which provides that the appearance of the word “trustee” in a deed, without other language showing a trust, shall simply vest title in the grantee. Cross-appellants point to no constitutional infirmity in the statute, nor do they offer any authority for their argument. Assignments of error unsupported by convincing argument or authority will not be considered on appeal. Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994).
Reversed on direct appeal; affirmed on cross-appeal.
Bird and Griffen, JJ., agree. | [
-16,
108,
-59,
-84,
8,
96,
26,
24,
99,
-96,
36,
-45,
123,
-38,
69,
111,
117,
9,
-47,
123,
-41,
-77,
23,
-126,
-45,
-77,
-35,
79,
-95,
-51,
103,
119,
72,
98,
-118,
93,
66,
-88,
-25,
24,
-122,
1,
10,
32,
-47,
-53,
52,
39,
20,
13,
117,
-97,
-77,
44,
57,
102,
-52,
110,
123,
-67,
82,
-80,
-118,
4,
-33,
7,
-111,
4,
-72,
-123,
-8,
15,
-108,
48,
9,
-24,
50,
-90,
-126,
116,
107,
-101,
-120,
38,
99,
-126,
5,
-25,
-68,
-119,
38,
94,
-65,
-121,
-110,
89,
96,
37,
-73,
-97,
92,
85,
71,
124,
-18,
-124,
92,
100,
2,
-50,
-106,
-109,
-116,
-68,
-104,
-126,
-1,
-51,
48,
112,
-49,
-62,
89,
71,
63,
91,
-122,
-78
] |
Judith Rogers, Judge.
The appellant, Marcus Eugene Releford, was found guilty by a jury of two counts of aggravated robbery involving victims Jacqueline Schreckhise and Carmelita Echols. Respectively, he was sentenced to consecutive terms of eighteen and ten years in prison. As his two issues on appeal, appellant contends that there is no substantial evidence to support his convictions. We affirm.
A person commits robbery if, with the purpose of committing a felony or misdemeanor theft, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1993). A person commits aggravated robbery if he commits the offense of robbery, as defined above, and he is armed with a deadly weapon. Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1993). The focus of our robbery statutes is placed on the threat of physical harm to the victim as opposed to the taking of property. Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990); Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979).
The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury’s verdict. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Substantial evidence is that which is forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the State, and it is permissible to consider only that evidence which supports the guilty verdict. Galvin v. State, 323 Ark. 125, 912 S.W.2d 932 (1996).
Appellant’s convictions were based on events that transpired on December 1, 1995, at the Von Hatten’s Bakery in Fort Smith, Arkansas. The record discloses that Ms. Schreckhise, the manager of the bakery, was working alone when appellant and another man, Harvey Johnson, came into the bakery that afternoon. The men ordered an assortment of cookies, doughnuts, a pecan pie, and cinnamon rolls. Meanwhile, Ms. Echols entered the bakery to purchase rye bread. After Ms. Schreckhise had placed the pastries in a white sack, and as she was putting the pie in a box, appellant twice struck her in the head with a metal pipe. Appellant motioned to Johnson, who knocked Ms. Echols to the floor and forcibly snatched her purse. The two then fled the bakery with the pie-box and the sack of baked goods.
Patrolman Monty McMillen was dispatched to search the area for the suspects. He found appellant and Johnson in an outbuilding behind a vacant duplex, eating pie. They ran, but McMillen apprehended appellant after a short chase. Appellant was carrying a backpack, which contained a thick metal pipe about eight inches long. In his pocket, he had thirty-three dollars in cash. McMillen later returned to the outbuilding where he found Ms. Echols’s purse, her credit cards and other personal items, a white sack, and a box containing a partially eaten pie. He also found some partially burned papers, including a check bearing Ms. Echols’s name.
Appellant gave a statement to the police. In it, he stated that he and Johnson had discussed robbing the bakery because they needed money. Appellant said that he had been in the bakery the day before and felt like it would be an easy target since a woman worked there alone. He said that he found the metal pipe on their walk to the bakery. Appellant admitted striking Ms. Schreckhise, and said that he got scared and grabbed only the food without getting into the cash register. He said that they went through Ms. Echols’s purse and that he retained some thirty dollars in cash from it.
Appellant’s first argument on appeal is that there is no substantial evidence to support his conviction for aggravated robbery against Ms. Echols. He contends that the evidence is not sufficient because Johnson did not possess a deadly weapon when she was attacked and because there was no evidence that he used the metal pipe against her in any way. We find no merit in this argument.
The jury in this case received an instruction on accomplice liability. An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, coerces, aids, agrees to aid, or attempts to aid another person in planning or committing an offense. Ark. Code Ann. § 5-2-403 (Repl. 1993); Banks v. State, 315 Ark. 666, 869 S.w.2d 700 (1994). Factors relevant in determining whether a person is an accomplice include the presence of the accused near the crime, the accused’s opportunity to commit the crime, and association with a person involved in the crime in a manner suggestive of joint participation. Lanes v. State, 53 Ark. App. 266, 922 S.W.2d 349 (1996). When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally hable for the conduct of both. Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986); see also Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991). A participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Alford v. State, 33 Ark. App. 179, 804 S.W.2d 370 (1991). Here, the evidence shows that appellant and his accomplice acted in concert to commit this offense and that appellant was armed with a deadly weapon. Under principles of accomplice liability, appellant’s culpability is not diminished by the fact that the accomplice was not also in possession of a weapon. We thus cannot say that the conviction is unsupported by substantial evidence.
Appellant next argues that there is no substantial evidence to support the conviction involving Ms. Schreckhise. It is his argument that his confession provided the only evidence of his intent to commit a theft and that the confession was not sufficiently corroborated. This argument is based on Ark. Code Ann. § 16-89-111(d) (1987), which provides that a confession, unless made in open court, will not warrant a conviction unless it is accompanied by other proof that the offense was committed. The test of correctness under this statute is not whether there was sufficient evidence to sustain a conviction, but whether there was evidence that such an offense was committed, or, in other words, proof of the corpus delicti. Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989).. We believe that the testimony demonstrating that appellant did in fact steal the pastries provided ample corroboration of his intent. See e.g. McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984).
Affirmed.
Bird and Roaf, JJ., agree. | [
113,
-21,
-88,
-99,
40,
-32,
58,
24,
35,
-125,
113,
18,
-85,
-28,
16,
121,
64,
79,
-43,
97,
-42,
-121,
39,
115,
-30,
-77,
89,
-41,
48,
-53,
-84,
-44,
94,
112,
-62,
-59,
98,
72,
-25,
28,
74,
-127,
-86,
-45,
126,
6,
36,
62,
-32,
6,
-79,
-66,
-9,
11,
28,
-50,
73,
44,
75,
63,
-14,
-7,
-48,
95,
-115,
20,
-93,
36,
-69,
7,
-8,
46,
-100,
113,
0,
-24,
119,
-126,
-126,
84,
77,
9,
12,
98,
98,
16,
17,
-51,
12,
-128,
-73,
118,
-41,
-89,
-100,
65,
67,
45,
-65,
-97,
127,
23,
14,
-6,
-15,
84,
59,
108,
-121,
-33,
-76,
-79,
13,
44,
30,
122,
-5,
-93,
48,
117,
-50,
-94,
93,
81,
122,
-101,
-50,
-41
] |
D. Franklin Arey, III, Judge.
This is a workers’ compensation case in which the appellant, Forest McMillan, claims that he sustained a shoulder injury at work. The Workers’ Compensation Commission denied benefits. On appeal, appellant argues that he did prove a compensable injury, that his injury was causally related to his employment, and in the alternative, that his injury aggravated a preexisting condition. We affirm.
In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1991). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). Where, as here, the Commission has denied a claim because of a failure to show entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995).
In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id.
Appellant’s primary job consisted of operating a machine that made motor shafts. On Friday, January 13, 1995, near the end of his shift, appellant was taking a part out of the machine he was operating and replacing it with another. While following this procedure, appellant’s shoulder popped, and he experienced extreme pain, which he described as feeling “like somebody drove a shaft down through my neck and all the way down that came out my heel in my foot.” Appellant did not complete any additional production work during his shift; he completed some clerical duties and went home.
Appellant testified that he could not use his left arm that weekend. He returned to work the following Monday, using only his right hand and arm to perform his tasks. He did so again on Tuesday; when his supervisor noticed, appellant explained that he had hurt his shoulder the previous Friday. Appellant testified that he continued to work for more than a full week without seeking medical treatment, explaining that he had separated his right shoulder on two prior occasions, and only received medication as treatment.
Appellant contended that his employer required him to take off work because of his physical problems, and would not permit him to return to work without a full medical release. Appellant was examined at the Austin Medical Clinic on January 23, 1995. Appellant previously sought treatment at this clinic on November 2, 1994, for a similar problem with his left shoulder that he developed while chopping wood at home. The doctor’s notes from his January 23, 1995 visit reflect that the appellant’s problems were the same for which the doctor treated appellant on November 2, 1994.
Doctor Austin gave the appellant a release, but his supervisors would not accept it. Appellant testified that his supervisors told him they would not allow him to come back to work until he was “100%.” Appellant then went to see another physician, Dr. Robert Manis, at which time he was given anti-inflammatory medication and prescribed physical therapy. Dr. Manis’ notes reflect chronic pain syndrome secondary to old injuries of the appellant’s shoulders, with capsulitis of the shoulders.
Appellant stated that the physical therapy prescribed by Dr. Manis worsened his condition. He never returned to work for appellee. Appellant testified that he was unable to use his left arm for approximately two and one-half months following the alleged injury.
The Commission affirmed and adopted the Administrative Law Judge’s opinion. The Commission found appellant “to be a most credible witness;” it observed that appellant’s testimony concerning his complaints and the reporting of his problems to appel-lee was undisputed. Nonetheless, the Commission found that the medical evidence was in conflict with appellant’s testimony. In support of this observation, the Commission referred to the notes of Dr. Austin and Dr. Manis. Noting that it is appellant’s burden to prove the job relatedness of any injury, the Commission found that appellant was not entitled to benefits because of the inconsistency between his testimony and the medical evidence. It made the following two conclusions, among others:
3. Claimant has failed to prove by a preponderance of the evidence that he sustained an injury arising out of and during the course of his employment which is compensable under our Workers’ Compensation Laws.
4. Claimant has failed to prove by a preponderance of the credible evidence that his physical problems and/or disability is causally related to his employment.
The Commission’s opinion displays a substantial basis for the denial of relief. Appellant alleges that he sustained an injury as the result of a specific incident that is identifiable by time and place of occurrence. Thus, appellant had the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(5)(E)(i) (Repl. 1996). While the Commission found appellant to be a most credible witness, it also found the medical evidence to be conflicting. Specific reference was made to the doctors’ notes, that in turn referenced old injuries as the possible source of appellant’s pain. The inconsistencies between appellant’s testimony and the medical evidence persuaded the Commission that appellant failed to prove entitlement to benefits. The Commission concluded that appellant failed to prove by a preponderance of the evidence that he sustained an injury arising out of and during the course of his employment, or that there was a causal relationship between his injury and his employment. Because we believe there is a substantial basis for the Commission’s denial of relief, we affirm.
In affirming the Commission’s decision, we dispose of all three of appellant’s arguments on appeal. First, appellant argues that he suffered a compensable injury. A “compensable injury” is one “arising out of and in the course of employment. ...” Ark. Code Ann. § 11-9-102(5) (A) (i); see Deffenbaugh Indus. v. Angus, 313 Ark. 100, 103, 852 S.W.2d 804, 807 (1993). “Arising out of the employment” refers to the origin or cause of the accident. Deffenbaugh Indus., 313 Ark. at 103, 852 S.W.2d at 807. Thus, in order to prove a compensable injury appellant must prove, among other things, a causal relationship between his employment and the injury. By concluding that the appellant did not prove that there was a causal relationship between the injury and the employment, the Commission precluded a finding of a compensable injury.
Likewise, appellant’s second argument alleges a causal relationship between his employment and his injury. The Commission’s conclusions, and the findings in support of those conclusions, dispose of this argument.
Appellant offers an alternative argument for his third point: that the injury aggravated a preexisting cumulative trauma injury. This argument also requires proof of a compensable injury. It is the rule “that when a pre-existing injury is aggravated by a later compensable injury, compensation is in order.” Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 367, 768 S.W.2d 521, 523 (1989)(emphasis supplied). Thus, to prevail on this alternative argument, appellant must prove a compensable injury, which in turn requires proof of a causal relationship between his employment and the injury. Again, as explained above, the Commission’s conclusions foreclose this argument.
Affirmed.
Rogers, Griffen, and Crabtree, JJ., agree.
Pittman and Neal, JJ., dissent. | [
48,
-22,
-16,
-115,
10,
-32,
58,
90,
105,
-95,
103,
113,
-89,
-10,
13,
119,
-26,
95,
-43,
34,
-41,
-77,
18,
67,
-46,
-105,
123,
-105,
49,
111,
-92,
92,
69,
52,
-62,
-43,
-26,
-56,
-57,
94,
-118,
6,
-102,
-51,
57,
-48,
56,
110,
-46,
95,
49,
-105,
-21,
42,
24,
-57,
13,
46,
79,
40,
-16,
-39,
-118,
5,
91,
0,
-77,
100,
-100,
99,
-40,
26,
24,
48,
3,
-56,
49,
-74,
-62,
-12,
121,
-71,
8,
98,
99,
33,
28,
-115,
124,
-100,
31,
-20,
-97,
-92,
-110,
25,
75,
11,
-105,
-67,
120,
84,
14,
104,
-9,
69,
95,
108,
7,
-121,
-70,
-79,
29,
36,
-100,
-77,
-17,
-125,
-108,
81,
-52,
-78,
93,
5,
91,
27,
-114,
-70
] |
George K. Cracraft, Chief Judge.
Frederick Eugene Harris appeals from his conviction at a jury trial of battery in the second degree. He contends that the trial court erred in admitting as substantive evidence an unsworn prior inconsistent statement of a State’s witness. We agree and reverse.
On December 3, 1989, Damon Spencer was shot in the stomach during an altercation that took place on the parking lot of a nightclub in Monticello. As a result of the wound, Damon was hospitalized for several weeks and a portion of his stomach had to be removed. At trial, he testified that he was shot while he was fighting with David Karon Ridgell, but did not know who shot him.
Brenda Spencer, sister of the victim, testified that she was present when the fight between her brother and David took place. She stated that David knocked Damon to the ground and that appellant, who was not initially engaged in the fight, came up while Damon was on the ground, “shot him and took off. The gentleman ran up and stuck a pistol in his stomach while he was lying on the ground.” While the testimony indicates that a number of persons were present at the time, there were no other witnesses purporting to have seen the shooting.
The State also called Janice Ridgell, wife of David Ridgell, as a witness. She testified that although she was watching the fight at the time Damon was shot, she did not see who shot him. She admitted that she had given a statement to the police shortly after the incident but denied that she told them she had seen appellant on the parking lot or that she made the statement that appellant came up to where the victim and David were fighting and “reached down and shot him in the stomach.”
A police officer was subsequently called and produced a written, but unsworn, statement signed by Janice Ridgell in which she stated, “I was trying to pull [David] off because I thought [David] had knocked [Damon] out. Then I saw Damon trying to get up and go between [David’s] legs. He was trying to get to his car and get a gun. [Appellant] came up and reached down and shot Damon in the stomach. [Appellant] just disappeared.”
Appellant’s objection to the introduction of the written statement was overruled. Appellant then requested that the jury be advised that the evidence of the prior inconsistent statement could only be considered as affecting the credibility of Janice Ridgell and not as substantive proof of the truth of the matters asserted in the statement. The court refused to give such an instruction and permitted the statement to go to the jury as substantive evidence. We agree that this was error.
Rule 801(d)(1) of the Arkansas Rules of Evidence provides that a prior inconsistent statement is not hearsay when offered in a criminal proceeding if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983). Rule 613 permits extrinsic evidence of prior inconsistent statements of a witness for purposes of impeachment if the witness is afforded the opportunity to explain or deny the statement and does not admit having made it, and the other party afforded the opportunity to interrogate the witness on that statement. Ford v. State, supra. Unsworn prior statements made by a witness cannot be introduced as substantive evidence in a criminal case to prove the truth of the matter asserted therein. Smith v. State, 279 Ark. 688, 648 S.W.2d 490 (1983); Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). Here, although the statement in question was signed, it was not given under oath and subject to the penalty of perjury. Therefore, it was hearsay and inadmissible as substantive evidence.
Although the statement was inadmissible to prove the truth of the matter asserted, it was admissible for the purposes of impeachment. Whenever evidence that is admissible as to one party or for one purpose but not admissible as to another party or for any other purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Ark. R. Evid. 105. Therefore, we conclude that it was error for the trial court to refuse to give the requested limiting instruction.
The State contends that even if the court erred in its ruling, the error was not prejudicial because appellant admitted in his testimony to having shot the victim. It is true that appellant did admit firing the shot, but that admission was accompanied by his testimony of justification for the shooting, which was his sole defense to the charge. He also denied that he “reached down” and shot Damon in the stomach, stating that he (appellant) was “on the ground” and that Damon was “over” him when he fired the shot. The State’s reliance on Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), and Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986), is unavailing. The evidence of guilt in this case was not overwhelming as it was in Russell, nor was the objectionable statement merely cumulative or repetitious of numerous other witnesses as in Orr. Of the number of persons said to have been at the scene of the crime, only Brenda Spencer, the sister of the victim, testified in contradiction to appellant’s testimony that he acted in self-defense and his testimony about the manner of the shooting.
From our review of the record, we cannot conclude that the error was not prejudicial. The conviction is therefore reversed and the cause remanded for a new trial.
Reversed and remanded.
Danielson and Mayfield, JJ., agree. | [
-80,
-17,
-87,
31,
25,
96,
10,
-86,
114,
-61,
119,
115,
61,
-22,
65,
111,
-21,
109,
85,
-39,
92,
-77,
7,
1,
-14,
115,
83,
-41,
51,
-55,
116,
-71,
77,
114,
-22,
-35,
102,
10,
-27,
80,
-122,
-125,
-69,
-63,
18,
-46,
96,
118,
72,
15,
53,
-114,
-93,
42,
20,
-17,
73,
58,
91,
41,
64,
49,
-112,
5,
-17,
16,
-109,
-74,
-97,
4,
-40,
58,
-39,
48,
0,
-24,
115,
-124,
-64,
-12,
100,
-117,
-84,
38,
99,
1,
-55,
-36,
-84,
-87,
47,
95,
-98,
-89,
-97,
33,
73,
12,
-74,
-35,
124,
84,
-93,
-16,
-19,
92,
28,
116,
-93,
-49,
20,
-111,
29,
44,
-72,
10,
-29,
55,
16,
113,
-49,
-88,
92,
36,
89,
-37,
15,
-106
] |
Elizabeth W. Danielson, Judge.
Appellant Maurice Fields was charged with aggravated robbery and entered a plea of not guilty by reason of mental disease or defect. Appellant waived his right to a jury trial and was found guilty of the offense of aggravated robbery. He was sentenced as an habitual offender to twenty-eight years in the Arkansas Department of Correction. Appellant contends on appeal that (1) the trial court erred in finding he could appreciate the criminality of his conduct and conform his conduct to the requirements of the law and (2) the trial court erred in considering appellant’s exercise of his Miranda rights in finding appellant mentally responsible. We find no error and affirm.
The evidence reveals that on February 16, 1988, appellant entered a Union National Bank and handed a teller a note that stated: “This is a robbery. Don’t make it murder.” Appellant opened a bag and had the teller put money into it. He then left the bank on foot, pursued by a customer who was in the bank at the time of the robbery. Shortly thereafter, appellant was apprehended by the police, and charged with aggravated robbery.
After appellant entered a plea of not guilty by reason of mental disease or defect, he was evaluated by the Arkansas State Hospital. The hospital staff diagnosed appellant as not fit to stand trial, and requested that he be admitted for treatment. After three months of treatment, the State Hospital reported that appellant was fit to proceed, but concluded that he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time the crime was committed.
Appellant first contends that the trial court erred in finding appellant could appreciate the criminality of his conduct and conform his conduct to the requirements of the law. Appellant relies on Ark. Code Ann. § 5-2-313 (1987), which provides that on the basis of a psychiatric report filed pursuant to Ark. Code Ann.§ 5-2-305, “the court may, after a hearing if a hearing is requested, enter judgment of acquittal on the ground of mental disease or defect if it is satisfied that, at the time of the conduct charged, the defendant lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct.” Lack of capacity due to mental disease or defect is an affirmative defense and must be proved by a preponderance of the evidence. Ark. Code Ann. § 5-2-312 (1987); Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991). A motion for directed verdict based on this defense may be granted only when no factual issues exist. Franks, 306 Ark. 75, 811 S.W.2d 301.
Appellant did present evidence in support of his contention that he lacked the capacity to appreciate the criminality of his conduct at the time the crime was committed. However, there was also substantial evidence to support the trial court’s finding that appellant failed to prove his affirmative defense by a preponderance of the evidence. In reaching its decision, the trial court considered the medical testimony, testimony by family members, and evidence of appellant’s demeanor at the time of the crime and shortly thereafter.
The night before the robbery, appellant was trying to get money to leave town. He asked his parents for the money, but they declined to give it to him. The next day he robbed the bank. Witnesses to the crime testified that there was nothing unusual or bizarre about appellant’s appearance or actions on that day. Police officers who spoke with appellant shortly after the crime testified that he was lucid and in control, and that there was nothing bizarre about his behavior. A psychologist who had found appellant insane with regard to an earlier robbery testified that he had relied in part on the opinions of the police and eyewitnesses, and that his opinion might very well change in this case if the eyewitnesses and police officers described appellant as appearing normal at the time of the robbery.
Medical evidence that a defendant lacks the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law does not obligate a judge to acquit under § 5-2-313 if there is substantial evidence presented that would support the judge’s finding that the affirmative defense of mental defect was not proved by a preponderance of the evidence. See Franks, 306 Ark. 75, 811 S.W.2d 301; Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991). Substantial evidence is evidence of sufficient force and character to compel a conclusion of reasonable and material certainty. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). Wecannot say the trial court erred in finding appellant failed to prove by a preponderance of the evidence that he was incapable of conforming his conduct to the requirements of the laws at the time the crime was committed.
Appellant’s second contention is that the trial court erred in considering his exercise of his Miranda rights in finding appellant mentally responsible. During presentation of the state’s case, there was testimony by one of the officers involved in appellant’s arrest that appellant carried on normal conversation with them but invoked his right to remain silent and refused to make a statement.
For reversal on this point, appellant relies on Wainwright v. Greenfield, 474 U.S. 284 (1986), in which the United States Supreme Court held that use of a defendant’s exercise of his Miranda rights as evidence of his sanity violates due process. In Greenfield, the prosecutor introduced the testimony of two police officers who described the occasions on which the defendant had exercised his right to remain silent and had expressed his desire to talk to an attorney before answering any questions. Both officers repeated several colloquies with the defendant. In his closing argument, over defense counsel’s objection, the prosecutor reviewed the testimony of the officers and suggested that the defendant’s repeated refusals to answer questions demonstrated a degree of comprehension that was inconsistent with his claim of insanity.
On appeal, Greenfield relied on the case of Doyle v. Ohio, 426 U.S. 610(1976), in which the Supreme Court held that cross-examination regarding a defendant’s post-Miranda warnings silence was fundamentally unfair and violated the Due Process Clause of the Fourteenth Amendment. The court noted that the source of the unfairness was the implicit assurance contained in the Miranda warnings that one’s choice to remain silent would carry no penalty.
The court in Greenfield found that it was equally unfair to breach the implied promise of the Miranda warnings by using the defendant’s silence to overcome his plea of insanity. 474 U.S. at 292. In so holding, however, the court noted that “the State’s legitimate interest in proving that the defendant’s behavior appeared to be rational at the time of his arrest could have been served by carefully farmed questions that avoided any mention of the defendant’s exercise of his constitutional rights to remain silent and to consult counsel.” 474 U.S. at 295. In a footnote to this statement, the court observed that the defendant had not contested the point that a prosecutor may legitimately inquire into and comment upon purely demeanor or behavior evidence. Id.
In Greer v. Miller, 482 U.S. 756 (1987), the court again applied Doyle v. Ohio in determining whether a prosecutor’s question regarding a defendants’ postarrest silence required reversal of the conviction. In Miller, the trial court had sustained an objection to the prosecutor’s question about the defendant’s silence. The jury was instructed to disregard any questions to which an objection was sustained. The United States Supreme Court found no constitutional error, noting that the prosecutor was not allowed to undertake impeachment on or call attention to the defendant’s silence. 483 U.S. at 764. In Sims v. State, 30 Ark. App. 168, 786 S.W.2d 839 (1990), we held that “where a defendant’s silence is mentioned by the State, it is harmless error if there is no prosecutorial focus by repetitive questioning or arguing on a defendant’s silence where the evidence of guilt is overwhelming.” 30 Ark. App. at 172.
In the case at bar, the trial judge was aware of Wainwright v. Greenfield and the restrictions it imposed. In a letter to counsel for both parties, he stated, “ [ Wainwright v. Greenfield] would not prohibit police officers who had contact with Fields to be called to respond to carefully phrased questions about the defendant and his demeanor. It only prohibits this being coupled with reference to his Miranda warnings.”
There was certainly no prosecutorial focus on the defendant’s exercise of his rights; in fact, the prosecutor carefully framed her questions regarding appellant’s demeanor and instructed the witness not to testify as to what the defendant said. She asked questions such as whether appellant was coherent, whether he had exhibited bizarre behavior, and whether he had responded in an appropriate conversational manner. During the trial, the prosecutor never asked any questions regarding appellant’s exercise of his Miranda rights.
In response to the prosecutor’s question about appellant’s demeanor, one officer made reference to the fact that the defendant had exercised his rights and chose not to make a formal statement. The focus of the officer’s testimony was not on appellant’s exercise of his rights but on appellant’s demeanor and behavior as he conversed with the police officers. In Lindgren v. Lane, 925 F.2d 198 (7th Cir. 1991), the Seventh Circuit Court of Appeals found no violation of due process, although an officer did make a reference to the defendant’s post-Miranda silence, because the prosecutor did not call attention to the silence and the silence was not submitted to the jury as evidence of the defendant’s sanity. 925 F.2d at 201.
In response to objections to the officer’s testimony in this case, the judge replied in part that he did not have a problem with the reference to the Miranda rights being a little out of line because he, not a jury, was hearing the matter. He pointed out that in the Greenfield case a jury was involved, which created a potential problem, but that he knew “those things” happened, referring to the defendant’s choice to exercise his rights.
In cases tried without a jury, the judge is presumed to have considered only competent evidence, and this presumption is overcome only when there is an indication that the trial judge did give some consideration to the inadmissible evidence. Summerlin v. State, 7 Ark. App. 10, 643 S.W.2d 582 (1982). Here all indications are that the trial judge was well aware that he could not use appellant’s exercise of his Miranda rights as evidence of appellant’s sanity and that he did in fact restrict his considerations to evidence concerning appellant’s demeanor and behavior during the time appellant was conversing with the officers. Because there was no prosecutorial focus on appellant’s exercise of his Miranda rights and the judge did not use appellant’s exercise of his rights as evidence of sanity, the officer’s brief reference to the fact that appellant had exercised his rights did not result in a violation of appellant’s due process rights.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree. | [
16,
-22,
-71,
-65,
24,
64,
106,
-102,
67,
-85,
116,
51,
-31,
-62,
20,
105,
101,
-49,
84,
113,
-97,
-73,
103,
97,
-78,
-45,
88,
-59,
49,
75,
-4,
-42,
11,
112,
-54,
81,
102,
72,
-59,
88,
-114,
1,
-119,
112,
113,
2,
40,
43,
68,
6,
49,
-68,
-29,
42,
23,
-49,
105,
104,
75,
56,
80,
-6,
-62,
13,
-19,
20,
-93,
36,
-69,
7,
122,
60,
-104,
48,
1,
-8,
50,
-106,
-126,
116,
111,
-101,
12,
98,
98,
-111,
28,
-49,
-32,
-87,
55,
-2,
-97,
-121,
-112,
65,
73,
45,
-105,
-97,
127,
52,
14,
-8,
121,
-36,
112,
108,
7,
-50,
-74,
-111,
-51,
60,
86,
-5,
-21,
79,
48,
49,
-50,
-62,
92,
23,
121,
-101,
-102,
-108
] |
Judith Rogers, Judge.
This is an appeal from the Board of Review’s decision denying appellant, Jane Rodriguez, unemployment benefits. On appeal, appellant argues that there is no sub stantial evidence to support the Board’s decision and that the case should be remanded for further investigation. We disagree and affirm.
The record indicates that, since 1989, appellant had worked for Shinn’s Orchards planting, thinning, and harvesting peaches. She filed a claim for unemployment benefits in 1994. However, Shinn’s Orchards did not pay unemployment-insurance taxes at the time that appellant filed her claim. A district tax field representative was sent by the Employment Security Department (ESD) to investigate whether or not Shinn’s Orchards was an agricultural employer and whether it was required to pay insurance benefits. It was determined that Shinn’s Orchards was an agricultural business employing agricultural labor. The field representative investigated the employer’s checking account and determined, however, that Shinn’s Orchards was not a covered employer as defined under Ark. Code Ann. § ll-10-210(a)(5)(A) (Repl. 1996) and was thus not required to pay unemployment insurance. A hearing was held before the Appeal Tribunal during which the field representative and three people who had worked for Shinn’s Orchards testified. The Appeal Tribunal found that Shinn’s Orchards was a covered employer and that appellant was entitled to unemployment benefits. The Board of Review disagreed and reversed the Appeal Tribunal, finding that appellant had failed to prove that Shinn’s Orchard had employed ten or more employees for at least twenty weeks or that Shinn’s Orchard had paid $20,000 in remuneration during any quarter in question.
On appeal, the findings of fact of the Board of Review are conclusive if supported by substantial evidence. White v. Director, 54 Ark. App. 197, 924 S.W.2d 823 (1996). Our review is limited to determining whether the Board could reasonably reach its decision upon the evidence before it; we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Brown v. Director, 54 Ark. App. 205, 924 S.W.2d 492 (1996).
Appellant argues that there is no substantial evidence to support the Board’s finding that Shinn’s Orchard had not employed ten or more employees for at least twenty weeks. We disagree.
Arkansas Code Annotated § ll-10-210(a)(5) provides that “employment” means:
(5) Service performed by an individual in agricultural labor as defined in subdivision (f)(1) of this section when:
(A) The service is performed for a person who:
(i) During any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of twenty thousand dollars ($20,000) or more to individuals employed in agricultural labor; or
(ii) For some portion of a day in each of twenty (20) different calendar weeks, whether or not the weeks were consecutive, in either the current or preceding calendar year, employed in agricultural labor ten (10) or more individuals, regardless of whether they were employed at the same moment of time.
At the hearing, three people who had worked for Shinn’s Orchard testified concerning the number of people that had also worked for Shinn’s Orchard. Appellant’s husband testified that he worked three days in 1993 during the thinning season, which would have been at the end of May or June. He said that he saw nine other people working at that time. He also testified that he and several of the other workers had been paid in cash. Tobby Allen, a laborer, testified that he worked five weeks from June 25 through July 30, 1993. He also said that he saw about nine people working during that time. Appellant testified that she worked basically year round. She said that the thinning season lasted for two weeks and that picking season lasted from the first of June through the middle of August. The workers revealed that Mr. Shinn was essentially using Mexican laborers during the busy parts of the peach season and paying several of them by cash. When specifically questioned by the referee why Mr. Shinn could not recall any of the Mexicans that prior witnesses had testified worked for him, Mr. Shinn stated, “No comment.”
After reviewing the evidence, we are reluctantly unable to say that there is no substantial evidence to support the Board’s finding that appellant failed to prove that ten or more people worked twenty or more weeks. We are bound by our standard of review to affirm this point.
Appellant also argues that this case should be remanded for further investigation by the ESD with regard to the cash payments made by Shinn’s Orchards. Appellant contends that it was the ESD’s responsibility to provide her with a thorough and competent investigation so that she could establish her burden of proof. Appellant fails to cite to any authority in support of her argument that it was ESD’s duty to aid her in proving her claim. Where appellant fails to cite any authority or present any convincing argument, and it is not apparent without further research that appellant’s position is well taken, we will affirm. Equity Fire & Cas. Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996).
Without reaching appellant’s argument, we feel compelled to comment that Ark. Code Ann. § 11-10-307 (Repl. 1996) gives the Director of the Arkansas Employment Security Department the authority to set up and maintain an enforcement unit. The unit has the power to conduct investigations “in connection with the enforcement of this chapter to the end that fraudulent claims on the part of the claimants and the violation of this chapter on the part of employers may be curtailed to the minimum possible.” Ark. Code Ann. § 11-10-307(g)(1) (Repl. 1996). Even though it is not the duty of the ESD to aid appellant in proving her claim, it is legislatively mandated that an investigation by the ESD, if undertaken, be performed to curtail violations by employers. In this case, it is clear that the ESD investigated Shinn’s Orchard; however, from a review of the record it would appear that the investigation was wholly inadequate to achieve the purpose set forth in Ark. Code Ann. § 11-10-307.
Affirmed.
Bird and Roaf, JJ., agree. | [
-48,
110,
-35,
-84,
8,
-30,
114,
30,
83,
-113,
39,
19,
-17,
-46,
93,
109,
-23,
29,
65,
106,
-41,
-77,
21,
66,
122,
-69,
-55,
-3,
-71,
91,
-76,
84,
76,
16,
-118,
-59,
-26,
-16,
-53,
16,
-114,
7,
-5,
105,
-71,
64,
52,
43,
112,
75,
48,
-106,
-5,
44,
-112,
-53,
108,
44,
89,
61,
81,
-16,
-86,
-115,
71,
20,
-109,
65,
-68,
3,
-40,
46,
-104,
56,
32,
-56,
114,
-74,
-110,
84,
59,
-103,
8,
98,
98,
16,
28,
-18,
-20,
-127,
-90,
-34,
13,
-91,
-48,
49,
83,
10,
-100,
-100,
124,
86,
38,
126,
-6,
-60,
15,
108,
9,
-122,
-74,
-79,
-49,
-32,
-108,
3,
-17,
39,
-112,
101,
-50,
-14,
93,
69,
50,
95,
-49,
-44
] |
John E. Jennings, Judge.
This is a workers’ compensation case. Appellee, Roy “Junior” Tilley, was employed by appellant, Aeroquip, Inc., and performed manual labor. The Commission found that appellee sustained a compensable injury on July 30, 1994, while working for appellant, and awarded appellee temporary total disability benefits from August 7, 1994, through September 15, 1994, and temporary partial disability benefits for two weeks subsequent to September 15, 1994, based on six-hour working days. Appellant was also ordered to pay all reasonable and necessary medical costs associated with appellee’s injury and attorney’s fees.
Appellant and its insurance carrier appeal from the Commission’s decision arguing that: (1) the Commission’s finding that appellee proved he sustained a compensable injury is not supported by substantial evidence; and (2) the Commission erred in finding a compensable injury where there was “no medical evidence supported by objective findings of the injury.” We disagree and affirm.
On appeal in workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings and will affirm if those findings are supported by substantial evidence. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 128 (1995). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). 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. Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983).
It is the function of the Commission to determine the credibility of the witnesses and the weight given to their testimony. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for'the Commission. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Whaley, supra.
Appellant first argues on appeal that the Commission’s finding of a compensable injury is not supported by substantial evidence. Specifically, appellant argues that appellee failed to prove by a preponderance of the evidence that he sustained a compensa- ble injury that caused his current back problems. Appellee testified that, at the time of his injury, he was working on a bonding machine. According to appellee, in an effort to stop a rope from going through the machine too fast, he grabbed the rope to stop it and was jerked over the table. Appellee testified that the mandrel he grabbed weighed somewhere between 700 and 800 pounds. Appellee stated that he reported the incident to his supervisor, Jerry Claypool, the next day and went to the emergency room that day where he was treated by Dr. Black, who later referred appellee to Dr. Foster.
Appellee also testified that he has had previous back problems, dating as far back as the early 1980s. Appellee stated, as evidenced by the medical information presented, that he has seen various chiropractors, orthopedic doctors, and regular family practitioners regarding his back problems over the years. In addition, appellee testified that prior to this incident, he had recently missed work due to his current emotional problems.
Jerry Claypool, appellee’s supervisor at the time of the accident, testified that on July 29, 1994, he talked with appellee regarding his concern over attendance and told appellee that he had used up all of his vacation and sick time. Mr. Claypool stated that on July 31, 1994, appellee reported to him the accident resulting in his injury which had occurred the day before. Mr. Claypool further testified that he was unaware of appellee’s previous back condition and stated the reason for appellee’s missed work during the month of July was due to appellee’s nervous problems. Susan Hughes, the human resources administrator for appellant, testified at the hearing that in July of 1994, appellee had brought in a certification from the Twin Lakes Chiropractor Clinic requesting that he be off work for six days.
Medical reports in the record track appellee’s back problems since the early 1980s. The medical reports prior to appellee’s accident reveal that for the most part appellee’s back problems stem from degenerative disc disease of the lumbar spine. A report dated July 19, 1994, from the Kerr Medical Clinic, indicates that .appellee was experiencing low back pain. The report indicated that five films were taken, and the impression was that appellee suffered from a mild to moderate degenerative disc disease, mostly around L4 and L5.
Dr. Foster, who saw appellee after his accident, indicated in his report dated August 5, 1994, that appellee had a large disc herniation at L5-S1 on the left, being probably an extruded fragment, and which would likely require operative intervention. A medical evaluation dated November 16, 1994, by Dr. Ledbetter of Ozark Orthopedic Associates agreed with Dr. Foster’s assessments finding that appellee had a large L5-S1 ruptured disc with probable free fragment on the left. Dr. Ledbetter’s impression was that appellee suffered from herniated nucleus pulposus at L5-S1 left, with a large free fragment, as well as from a herniated nucleus pulposus at L4-5 with degenerative disc disease. Further, it was Dr. Ledbetter’s impression that appellee’s main symptoms stemmed from the L5-S1 left-sided herniated nucleus pulposus and that appellee would benefit from a discectomy at L5-S1.
The Commission found that, based on a review of the evidence, appellee had shown by a preponderance of the evidence that he had sustained a compensable injury which arose out of and in the course of his employment. The Commission further found that although appellee had suffered for some time from some degenerative disc disease, the main source of appellee’s current complaints and the recommended surgery arose from his L5-S1 problem area. We cannot say that, in the case at bar, reasonable minds could not have reached a similar result. The medical evidence prior to the accident showed that although appellee suffered from some back problems, none seemed to require operative intervention, nor did they include a large ruptured disc at L5-S1.
Appellant also claims that appellee had reason to feign the injury because he had no more time available to take a leave of absence (other than through workers’ compensation) and therefore his testimony in this case cannot be considered a credible basis for the finding. As we previously stated, it is the function of the Commission to determine the credibility of witnesses and the weight to be given to their testimony. Whaley, supra.
Appellant next argues that the Commission erred in finding a compensable injury in this case where there was “no medical evidence supported by objective findings of the injury.” More specifically, appellant argues that, although there is objective medical evidence of a herniated disc in this case, there is no objective medical evidence that the herniation occurred as a result of appellee’s accident on July 30, 1994. However, in Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997), we held that a claimant need not offer objective medical evidence to prove the circumstances under which the injury was sustained or the precise time of the injury’s occurrence. We stated in pertinent part that:
Although it is irrefutably true that the legislature has required medical evidence supported by objective findings to establish a compensable injury, it does not follow that such evidence is required to establish each and every element of compensability. The statutory definition of compensability as set out in Ark. Code Ann. § 11-9-102(5) contains many elements that simply are not susceptible of proof by medical evidence supported by objective findings. For example, a compensable accidental injury must be shown to have been caused by a specific incident and to be identifiable by time and place of occurrence. Ark. Code Ann. § ll-9-102(5)(A)(i). Injuries inflicted at a time when employment services were not being performed .are not compensable, Ark. Code Ann. § 11 — 9—102(5) (B)(iii), nor are injuries resulting from engaging in horseplay. Ark. Code Ann. § 11-9-102(5)(B)(i). We know of no type of medical examination or test that would result in objective findings to show exactly where and when an injury was incurred, or whether the employee was injured while performing employment services rather than engaging in horseplay. Even statutes that must be strictly construed will not be given a literal interpretation leading to absurd consequences that are clearly contrary to legislative intent. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993).
Stephens, 58 Ark. App. at 279-80, 950 S.W.2d 474-5 (1997).
Based upon the foregoing, we find that there was substantial evidence to support the Commission’s finding and affirm the Commission’s decision.
Affirmed.
Pittman and Meads, JJ., agree. | [
116,
-22,
-11,
-99,
9,
98,
59,
58,
65,
-91,
103,
83,
-25,
-10,
13,
119,
-30,
61,
-47,
35,
-45,
-77,
115,
107,
-46,
-73,
121,
-57,
49,
107,
-90,
124,
77,
52,
2,
-43,
-26,
-56,
-57,
16,
-56,
-114,
-86,
-19,
121,
-126,
56,
126,
-112,
87,
-79,
-106,
-21,
42,
24,
-61,
45,
46,
75,
41,
-56,
121,
-54,
5,
95,
17,
-77,
4,
-98,
70,
-40,
12,
-104,
-79,
0,
-24,
80,
-90,
-62,
52,
43,
-119,
12,
98,
99,
37,
29,
-27,
108,
-100,
31,
101,
31,
-92,
-101,
24,
75,
9,
-106,
-67,
118,
20,
14,
122,
-9,
93,
30,
108,
3,
-113,
-106,
-77,
29,
32,
28,
-85,
-17,
-125,
16,
101,
-49,
-78,
92,
5,
115,
-97,
-58,
-110
] |
Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that Act 796 of 1993 did not apply to this case and that appellee proved by a preponderance of the credible evidence that she sustained a compen-sable injury and was entitled to temporary total disability benefits from December 1, 1994, through a date yet to be determined. On appeal, appellant argues that the Commission erred in determining that Act 796 of 1993 did not apply and that there was no substantial evidence to support the Commission’s decision. We disagree and affirm.
First, appellant argues that the Commission erred in determining that appellee’s claim was not governed by Act 796 of 1993. Appellant contends that appellee did not sustain her injury until after Act 796 was in effect because she did not suffer a loss in earnings until December 1, 1994. Appellant cites Hall’s Cleaners v. Wortham, 38 Ark. App. 86, 829 S.W.2d 424 (1992), in support of its proposition. We find appellant’s rebanee on Hall’s Cleaners misplaced. In Hall’s Cleaners, we said that, for purposes of the running of the statute of limitations, the statute does not begin to run until the true extent of the injury manifests and causes an incapacity to earn the wages that the employee was receiving at the time of the accident. The issue in that case involved only the question of when does an injury become compensable so as to activate the running of the statute of limitations. In this case, on the other hand, we are determining, as a prerequisite, which act governs this particular claim. We are not deciding an issue that would already be governed by one of the acts, i.e., when the injury became compensable for statute of limitations purposes.
In our case of Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996), we made it clear that the provisions of Act 796 of 1993 shall apply only to injuries that occur after July 1, 1993. There is no indication in Act 796 or our opinion in Atkins Nursing Home that “injury” means compensable injury for purposes of when Act 796 becomes effective. In Atkins, we affirmed the Commission’s finding that the claimant suffered a recurrence on August 20, 1993. If we had determined that the claimant had not suffered a recurrence, but a new injury, then Act 796 would have been applicable to the facts of that case.
Here, the Commission determined that:
[w]here a claimant demonstrates the manifestation of an obvious and unresolved physical injury prior to the effective date of Act 796, which we find below that claimant in the instant case has done, the same logic as that relied on in Atkins ought to be applicable (regardless of whether a claim was previously filed). With regard to relevant statutory provisions, Act 796 itself provides that it “shall apply only to those injuries which occur after July 1, 1993”(See “effective dates” section preceding Ark. Code Ann. § 11-9-101 (Repl. 1996). There is no accompanying provision stating or implying that an “injury”, for purposes of determining whether the Act applies, is deemed to have occurred only upon a loss of wages. Nor can we impose such a rule in light of our statutory duty to strictly construe the new Act.
We cannot say that the Commission erred in determining that Act 796 of 1993 did not apply to this case because it is uncontradicted that appellee’s injury was objectively confirmed as carpal tunnel syndrome on June 7, 1993. Thus, the date that appellee’s injury occurred was before Act 796 became effective. Based on our resolution of this issue, we need not address appellant’s remaining arguments that involve Act 796 of 1993.
Appellant does argue under the old act, however, that there is no substantial evidence to support the Commission’s finding that appellee’s injury arose out of and in the course of her employment. Appellant contends that there is no substantial evidence to support a finding that appellee’s inability to work after November 30, 1994, was related to her employment with appellant. Also, appellant argues that appellee was not entitled to temporary total disability benefits.
We review decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Kildow v. Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). The Commission’s decision will be affirmed unless fair-minded persons presented with the same facts could not have arrived at the conclusion reached by the Commission. Id.
The record reveals that appellee worked for eleven and a half years, read water meters four to five hours a day, and wrote, in duplicate by hand, 250 to 300 water bills and receipts for each payment. During the last two years of her employment, appellee used a computer to enter all of the data. Appellee testified that she began experiencing pain in her hands in 1988, and that she mentioned it to at least two people, one being her supervisor at work. Appellee’s condition grew worse. Mayor Jane Roberts, appellee’s supervisor, testified that she saw appellee’s hands and said that they were “swelled, bad, and I said, Pat, what is that, and what caused that, and she it [sic] was carpal. . .tunnel syndrome.” Appellee testified that her hands hurt so badly that she thought she had suffered a stroke. She also said that her right hand was completely “dead” and had no feeling and that her left hand ached at night.
As early as July 20, 1992, Dr. Sam Brown believed that appel-lee was suffering from carpal tunnel syndrome. He prescribed medication and a splint, and he noted that a conduction test could be required in the future. Subsequently, Dr. Brown diagnosed appellee with carpal tunnel syndrome on June 7, 1993. He noted that the result of her NCV was positive for carpal tunnel, and it was his impression that she had bilateral carpal tunnel syndrome. He referred appellee to Dr. Richard Hilborn. On June 18, 1993, appellee saw Dr. Hilborn, who found that appellee was a candidate for bilateral carpal tunnel release. Dr. Charles Hollingsworth saw appellee and noted that appellee did have bilateral carpal tunnel syndrome and that she had “irreversible damage and permanent sensory loss.” He related appellee’s carpal tunnel to her job duties with the city. He said, “I certainly feel that this patient’s symptoms arose during her employment at Fouke City Hall and her job duties appear to have been the major instigating source of her problems.” Dr. Hilborn also noted that, based on appellee’s work history, it was certainly possible that her present condition was related to her former job.
Drs. Hilborn and Hollingsworth both recommended that appellee undergo corrective surgery. In its decision, the Commission noted that surgery had yet to be performed because of appellant had controverted appellee’s claim. The Commission, consequently, found appellee temporarily totally disabled based on appellee’s credible testimony that she could work if it were not for her hands, and also recognizing the need to protect appellee from increased damage to her condition, which Dr. Hollingsworth opined was already “irreversible.” Based on the medical evidence, which indicates severe carpal tunnel syndrome related to appellee’s work, and appellee’s testimony that she had no feeling in her right hand and that she cannot work, we cannot say that the Commission’s decision is not supported by substantial evidence.
Affirmed.
Robbins, C.J., and Neal, J., agree. | [
-112,
123,
-40,
-83,
9,
-29,
50,
-98,
107,
-89,
-89,
81,
-83,
-62,
29,
121,
-29,
39,
73,
105,
19,
-93,
83,
42,
-26,
-1,
-7,
71,
-93,
79,
100,
84,
76,
48,
-54,
-107,
-26,
-62,
-55,
28,
10,
14,
-118,
-19,
57,
2,
56,
126,
-36,
7,
49,
78,
-86,
46,
16,
-49,
45,
41,
91,
36,
-48,
-96,
-118,
13,
127,
22,
-77,
5,
-66,
15,
-8,
28,
-100,
-80,
32,
-88,
48,
-74,
-62,
52,
123,
-103,
12,
96,
98,
-96,
21,
-9,
72,
-72,
6,
-34,
-115,
-91,
-80,
24,
27,
3,
-65,
-99,
122,
20,
44,
126,
-10,
84,
95,
108,
-122,
-98,
-44,
-79,
-17,
97,
20,
-29,
-25,
-89,
-110,
117,
-50,
-94,
93,
69,
115,
-101,
-34,
-38
] |
Judith Rogers, Judge.
The appellant, Colleen Thompson, appeals from an order terminating her parental rights in her children J.T., R.T., D.T., and S.T. By this appeal, appellant contends that the chancellor’s decision was clearly erroneous only as to her two younger children, D.T., who was born on May 26, 1987, and S.T, who was born on June 15, 1988. We find no merit in her argument and affirm.
The record reflects that the children were first removed from the custody of appellant and her husband, Charles Thompson, the children’s adoptive father, in April of 1990. A full array of services was offered to the family such that reunification was achieved in August of 1992. On July 13, 1994, appellee was granted emergency custody of the children. By order of September 13, 1994, the chancellor determined that the children were dependent-neglected. This determination was based on evidence that J.T. had been physically abused and that R.T. had been sexually abused and was a sexually exploited juvenile. The chancellor found that D.T. and S.T. were dependent-neglected because appellant and Mr. Thompson were in jail awaiting trial.
In December of 1994, appellant was found guilty by a jury of raping J.T., and she was sentenced to a term of forty years in prison. The following March, she pled nolo contendere to the rape of R.T. and was sentenced to forty years in prison to be served concurrently with the former sentence imposed. Mr. Thompson was also convicted of raping J.T. and received a sentence of forty years in prison. His conviction was affirmed on appeal. See Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995).
On September 13, 1995, appellee filed a petition to terminate the parental rights of appellant and Mr. Thompson. By order of January 17, 1996, the chancellor granted the petition. Mr. Thompson has not joined appellant in bringing this appeal.
The chancellor’s decision was based on testimony taken at a hearing held on December 18, 1995. At the hearing, J.T., then age thirteen, testified on behalf of appellee. In his testimony, he described what can only be characterized as unspeakable acts of sexual abuse perpetrated by both appellant and Mr. Thompson upon him and his eleven-year-old sister, R.T. Further elaboration is not necessary for an understanding of the issue raised on appeal. Although he denied knowledge of such acts being committed against his younger brothers, D.T. and S.T., he testified that his parents told him that “when they got old enough they would start doing what they were doing to us to them.” He further testified that his younger brothers had been mistreated. He said that they were beaten, hit, and kicked, and had things thrown at them. He also spoke of appellant selling marijuana and said that he would have to sell it if a purchaser came by when she was not at home.
Dr. Rebecca Floyd, a family physician, testified that she had treated the children since 1992. She said that they were usually dirty and dressed in clothes that were torn and tattered. She testified that their appearances at the clinic were irregular but that she had established a form of control by refusing to write the children’s prescriptions for Ritalin unless they were seen by her. Dr. Floyd stated that the children had improved since they had been removed from appellant’s custody in that their behavior seemed less erratic. She testified, however, that D.T. and S.T. continued to have difficulty sleeping and that they suffered from recurring nightmares. She said that both children had repeatedly expressed that they were afraid of their parents and that D.T., in particular, had fears of his parents returning to get him. Her diagnosis was that D.T. and S.T. were suffering from posttraumatic stress syndrome. She testified that it would be devastating for them to have contact with the persons responsible for causing that condition and that their only hope was for them to be placed in a more stable environment and to undergo intensive psychotherapy.
Dr. Kathlene Kralik, a clinical psychologist, became involved with the children in 1992, and she had been seeing D.T. and S.T. on a regular basis since August 1994. She said that D.T. and S.T. were victims of severe maltreatment. Her diagnosis of D.T. was that he suffered from prolonged, chronic posttraumatic stress disorder, child neglect, and physical abuse. She said that it was suspected that D.T. had been sexually abused because of certain behaviors he exhibited. She said that both children had been anxious about the hearing and feared being taken from the home of their foster mother. She related that they had clearly, repeatedly, and specifically stated that they never wanted to see their parents again, even for a final visit. In responding to a hypothetical question based on the circumstances of the case, Dr. Kralik said that the two younger children could not be safely returned to the home. She stated that the parents had a severe character disorder that could not be treated, explaining that research had shown that perpetrators of sexual offenses against minors do not respond to treatment. She said that the only solution is to keep such persons away from children. It was her recommendation that the children have no further contact with their parents.
James Hurst, a criminal investigator with the Van Burén Police Department, described the Thompson home. He said that the house was filthy and infested with cockroaches. Clothes were strewn throughout the house, and dirty dishes were stacked all over the kitchen. He testified that the house was so nasty that he had trouble walking through it, and he felt that it was unsafe for children to five there.
Larry King, a case worker for appellee, testified that the department’s involvement with the family began in October of 1989, that they were removed from the home in April of 1990 and were returned in August of 1992. He said that during that time a case plan was developed and that services were provided to the family in the forms of crisis intervention, budgeting education, homemaker services, housing assistance, and parenting classes. He testified that appellant received individual counselling, joint coun-selling with Mr. Thompson, and counselling with the children. Mr. King stated that the children were returned to the home in 1992 against the department’s recommendation because, despite the extensive services that had been offered, they had not seen the kind of behavioral changes they felt were necessary to ensure the safety of the children.
Another case worker, Michelle Treadway, testified as to her belief that appellant’s parental rights should be terminated. She said that appellant had not demonstrated the ability to protect the children from future abuse. Her opinion was also based on appellant’s participation in sexual abuse and evidence that she allowed physical abuse to occur in her presence. She felt that further services would not effect rehabilitation in a timely manner for these children.
In her testimony, appellant stated that she had done none of the sexual acts spoken of by J.T., nor had she seen Mr. Thompson do any of the acts described. She said that J.T. had given her problems in the past and that the child must have been angry at her for him to say those things. She admitted that she smoked marijuana to calm her nerves and to relieve pain from back surgery but said that she did not sell it. As for the condition of the house, appellant testified that she worked eleven hours a day, five days a week, and half days on Saturdays, and had four children who did not want to do anything. She said that she was presently working on making better choices in her life and that she planned on going to school for interior decorating when released from prison.
For reversal, appellant contends that the chancellor’s decision to terminate her rights in D.T. and S.T. was clearly erroneous. She argues that there was no evidence presented that these two children were sexually abused or neglected in any manner, and thus contends that appellee failed to present clear and convincing evidence in support of its petition. We cannot agree.
Appellant is correct to point out that the grounds for termination of parental rights must be proven by clear and convincing evidence. Ark. Code Ann § 9-27-341(b) (Supp. 1995). When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the question we must answer on appeal is whether the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Beeson v. Arkansas Department of Human Services, 37 Ark. App. 12, 823 S.W.2d 912 (1992). In resolving the clearly erroneous question, we must give due deference to the opportunity of the chancellor to judge the credibility of the witnesses. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Repeatedly our courts have stated that there are no cases in which the superior position, ability, and opportunity to view the parties carry as great a weight as those involving minor children. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).
In terminating appellant’s parental rights, the chancellor based his decision on Ark. Code Ann. § 9-27-341 (b)(1) & (b)(2)(F) (Supp. 1995). In relevant part, the statute provides:
(b) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(1) That it is in the best interest of the juvenile;
(2) Of one or more of the following grounds:
(F)(i) The parent is sentenced in a criminal proceeding for a period of time which would constitute a substantial period of the juvenile’s life and the conditions in subdivision (b)(2)(A) or (B) of this section have also been established.
(ii) For purposes of this section, “substantial period” means a sentence, and not time actually served, of no less than fifteen (15) years, none of which have been suspended.
Arkansas Code Annotated § 9-27-341 (b)(2) (A) provides:
(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and, despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. It is not necessary that the twelve-month period referenced in this subdivision (b)(2)(A) immediately precede the filing of the petition for termination of parental rights, or that it be for twelve (12) consecutive months. The stated intent of this statute is to provide permanency in a juvenile’s life in all instances where return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period of time. Ark. Code Ann. § 9-27-241 (a) (Supp. 1995).
In the case before us, there is evidence that appellant stands convicted of crimes for which she has been sentenced to a total of forty years in prison. This sentence constitutes a “substantial period” of the children’s fives as set out in the statute. Also, the children had been declared to be dependent-neglected and had been out of the home for more than the requisite one-year period of time. There is further evidence that appellee’s efforts to rehabilitate the family had proved unsuccessful. The chancellor was also entitled to believe the testimony of J.T. and to disbelieve that of appellant. We also think that there is ample evidence in the record from which the chancellor could conclude that the safety and welfare of D.T. and S.T. world be best served by terminating appellant’s parental rights. Our case law is clear that termination of parental rights is an extreme remedy and is in derogation of the natural rights of parents. Anderson v. Douglas, supra. However, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Corley v. Arkansas Department of Human Services, 46 Ark. App. 265, 878 S.W.2d 430 (1994). We are unable to say that the chancellor’s findings that termination was in the best interest of the children and that the statutory requirements had been met are clearly against the preponderance of the evidence.
Affirmed.
Neal and Griffen, JJ., agree. | [
-80,
-20,
-59,
60,
25,
97,
-22,
60,
82,
-77,
-73,
83,
-81,
-30,
65,
123,
67,
99,
68,
104,
-45,
-73,
119,
97,
51,
-13,
-72,
-33,
51,
79,
-28,
-12,
72,
48,
-118,
-11,
66,
-61,
-17,
-44,
-114,
3,
-85,
-3,
89,
6,
36,
115,
88,
-121,
49,
-114,
-77,
104,
-100,
-61,
72,
38,
-37,
-76,
92,
-72,
-102,
7,
95,
22,
-77,
5,
-66,
4,
112,
36,
24,
57,
-128,
-22,
50,
-92,
-126,
117,
79,
9,
-119,
112,
103,
33,
60,
-9,
52,
9,
-26,
-66,
-67,
-90,
-103,
49,
99,
5,
-65,
-11,
100,
84,
43,
-2,
98,
78,
62,
-28,
12,
-98,
-42,
-71,
-113,
-88,
12,
50,
-13,
43,
18,
117,
-61,
96,
93,
85,
122,
-103,
-82,
-14
] |
John Mauzy Pittman, Judge.
The parties are the parents ofJ.D., a minor child. When J.D. was approximately one year of age, an order was entered establishing appellee’s paternity and vesting custody ofJ.D. in appellant. This custody order was made subject to detailed provisions setting out the specific time, date, and manner in which appellee’s visitation would be exercised. Shortly after J.D.’s second birthday, an order was entered altering the visitation schedule to conform with the chancellor’s opinion “that each parent is entitled [to] up to one-half of the child’s free time.” This appeal followed.
For reversal, appellant contends that the chancellor erred in ordering a modification of visitation absent a finding that there had been a material change of circumstances since the entry of the prior order. We agree, and we reverse and remand.
Modification of visitation rights is not permitted unless there is a sufficient change in circumstances pertinent to visitation. Harris v. Tarvin, 246 Ark. 690, 439 S.W.2d 653 (1969). In the case at bar, the chancellor candidly stated that no such change in circumstances had taken place. Instead, stating that he was clarifying his earlier decree by defining the meaning of a clause allowing for visitation at “other reasonable times arranged by the parties,” the chancellor radically altered the visitation schedule to allow each parent one-half of the child’s free time.
Although disagreements between the parties concerning the extent of visitation authorized by an indefinite decree may be resolved by setting out definite visitation rights, Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962), the original decree in the case at bar was neither indefinite nor ambiguous. To the contrary, the visitation provisions of the prior order, consisting of over two typewritten pages, were much more definite and clear than were the provisions contained in the order appealed from.
We are not bound by the terminology used by the chancehor to describe his order. See Kennedy v. Kennedy, 19 Ark. App. 1, 715 S.W.2d 460 (1986). Although characterized as a clarification of the prior order, the order appealed from is clearly a significant modification of visitation rights in the absence of a material change in circumstances. Consequently, we reverse and remand with directions to reinstate the original decree.
Reversed and remanded.
Stroud and Neal, JJ., agree. | [
-80,
-26,
-36,
124,
27,
97,
42,
-108,
66,
-45,
103,
83,
-21,
-42,
20,
125,
-101,
-21,
81,
121,
-43,
-93,
23,
-32,
-14,
-13,
-48,
83,
-13,
111,
110,
95,
12,
112,
-118,
-43,
66,
-61,
-49,
20,
-126,
2,
58,
105,
81,
3,
52,
104,
26,
15,
53,
-97,
-9,
44,
25,
-36,
104,
40,
-98,
60,
-40,
-40,
-101,
13,
79,
20,
-79,
20,
24,
-57,
88,
62,
-100,
57,
-120,
-23,
51,
-74,
-126,
118,
79,
-7,
-87,
98,
114,
-126,
109,
-58,
-72,
-72,
108,
2,
-99,
-90,
-103,
88,
74,
36,
-66,
-66,
100,
20,
-117,
126,
-30,
-123,
23,
100,
8,
-54,
82,
-79,
77,
80,
-100,
-96,
-29,
119,
48,
113,
-38,
-76,
92,
86,
19,
-101,
-122,
-111
] |
George K. Cracraft, Chief Judge.
Appellants Glenn Miller Bratcher, Jan Daggett Bratcher, Layne Bratcher, and Arthur B. Bratcher, Jr., appeal from an order of the Pulaski County Probate Court ordering distribution of certain funds in the estate of their deceased father, Arthur B. Bratcher, to appellee Norma Jean Bratcher, his surviving spouse. Appellants make several arguments for reversal, but we do not reach the merits of the case because we have determined that the probate court was wholly without jurisdiction to resolve these issues. In order to understand the decision we have reached, a brief statement of some of the essential background of the matter is necessary.
Arthur Bratcher and Norma Jean Bratcher were married in 1977. At that time, Arthur Bratcher’s total net worth consisted of 175 shares of stock in Twin City Beverage Company (TCB) and Twin City Development Company (TCD). Prior to the marriage, the parties entered into an antenuptial agreement under which appellee agreed that in the event of Bratcher’s death, she would forego all of her rights as surviving spouse in exchange for a “dower interest in the increase in value [after the date of the marriage] of the husband’s surviving ownership interest” in those two corporations. The agreement also awarded her several other items that are not in dispute here. In 1979, Bratcher sold all but twenty-five shares of his interest in the two corporations for $500,000.00 in cash and a promissory note for $1,800,000.00 bearing interest at the rate of ten percent. He also received other related benefits that were not involved in this litigation. The remaining shares of TCB and TCD were converted into stock of D & F Corporation and finally into stock certificates representing seventy percent of the stock in White River Beverage Company. In 1982, Bratcher created a revocable trust to which the bulk of his assets, including the White River Beverage Company stock, were eventually transferred. Appellants, Bratcher’s children by a former marriage, were named as beneficiaries of the trust in the event of his death. No provision was made for appellee in that trust.
In 1988, Bratcher died leaving a will that contained no provision for appellee but left his entire estate to his children. Appellee filed a petition in probate court electing to take against the will. The decedent’s children contested the petition, setting up the ante-nuptial agreement as a bar to her right to so elect. The probate court ruled that the agreement was valid and enforceable and served as a complete bar to appellee’s right to elect to take against the will. That ruling is not challenged on appeal.
Subsequently, appellee filed a motion seeking to have the probate court interpret the antenuptial agreement and set out with specificity the amounts to which she was entitled thereunder. The probate court held hearings on these issues, and by subsequent orders found that all of the assets of the estate at the time of death were traceable to the proceeds of the sale of the TCB and TCD stock. The court then determined the value of the stock as of the date of the marriage and the increase in value since that date, and directed the executor to pay appellee one-third of the amount of that increase in value, plus interest from the date of the decedent’s death. The probate court further determined that the White River Beverage Company stock, then in the hands of a trustee (who was not named as a party in the action), was also traceable to the proceeds of the TCB and TCD stock. The probate judge directed that the White River stock be obtained by the executor, that it be sold, and that one-third of the proceeds be delivered to appellee in accordance with the antenuptial agreement as he had interpreted it. He further ordered the executor to reimburse appellee for the expense incurred by her in obtaining the experts who assisted her in tracing and evaluating the assets involved, and calculating their value.
The order of the probate court determining that the contract was a valid one and effectively barred appellee’s right to elect to take against the will was within the jurisdiction of the probate court and has not been appealed. However, we conclude that all the provisions of the subsequent order with respect to the tracing of assets mentioned in the agreement and the award to appellee, calculated on the value of those assets, were wholly outside the jurisdiction of the probate court and void.
It has long been established that the probate court is a court of limited jurisdiction and has only such jurisdiction and powers as are conferred on it by the constitution or by statute, or are necessarily incident thereto. The extent of the jurisdiction of the probate court to resolve controversies between the personal representative and third persons or strangers to the estate has been the subject of exhaustive analysis by our courts in Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976), and Estate of Puddy v. Gillam, 30 Ark. App. 238, 785 S.W.2d 254 (1990). These cases adhere to our long-established rule that probate courts have no jurisdiction to resolve disputes as to property rights between a personal representative and third persons claiming adversely to the estate. They reaffirmed previous holdings that persons who are neither heirs, devisees, distributees, nor beneficiaries of the estate are third persons and “strangers” within the meaning of this rule. See Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942).
Here, Bratcher’s will made no provision for appellee. The probate court had held that she was barred from asserting her wish to take against the will and could not participate in the distribution of the estate as surviving spouse. Appellee’s claim was based entirely upon the antenuptial agreement and, therefore, was one by a third person or stranger to the estate. Probate courts lack jurisdiction to enforce such contracts. See Morton v. Yell, 239 Ark. 195, 338 S.W.2d 188 (1965); Merrell v. Smith, 226 Ark. 1016, 295 S.W.2d 624 (1956). The probate court likewise lacked the power to afford the equitable relief that it granted after tracing the assets into the hands of the trustee of the revocable trust and the executor. See Hilburn v. First State Bank, supra; Estate of Puddy v. Gillam, supra. Nor does the fact that part of the assets constituting the subject matter of the dispute was in the hands of the executor give the probate court jurisdiction to determine ownership as between the executor and a stranger. See Ellsworth v. Cornes, supra.
In oral argument, one of the attorneys stated that the trial court had jurisdiction because appellee’s rights under the agreement were in the nature of a “claim” against the estate, over which the probate court does have jurisdiction. The statutes relative to claims against an estate do not refer to claims of title or for recovery of property, for they are in no sense claims against the estate of a deceased. The statutes dealing with probation of claims against the estates of deceased persons include only those claims susceptible to probate and only specific money demands due or to become due. Evans v. Hoyt, 153 Ark. 334, 240 S.W. 409 (1922); see Fred v. Asbury, 105 Ark. 494, 152 S.W. 155 (1912).
Although the probate judge in his order recognized limitations on his jurisdiction, he failed to confine his rulings to these limitations. In any event, subject matter jurisdiction is always open, cannot be waived, and can be raised by this court sua sponte. It is not only the right but the duty of this court to determine whether there is jurisdiction of the subject matter. Hilburn v. First State Bank, supra; Estate of Puddy v. Gillam, supra. The parties cannot create jurisdiction where none exists.
Rulings in Hilburn and Puddy, and the cases cited therein, are controlling of the instant case, and it is our duty to follow them. We recognize that the distinction our courts have maintained between the powers of chancery and probate courts often results, as it has here, in a terrific waste of time and effort on the part of both the litigants and the courts. It is regrettable that this result must obtain even though the same person actually presides over both courts. However, the distinction is deeply rooted and of long standing in our jurisprudence. Since the adoption of Amendment 24 in 1938, the legislature has been vested with the power to remedy such results, including even the power to consolidate the two courts. However, it has not seen fit to exercise that power.
Reversed and remanded to the probate court with directions to enter an order not inconsistent with this opinion.
Jennings and Rogers, JJ., agree. | [
-15,
-18,
-52,
60,
-70,
-92,
58,
-70,
82,
-19,
55,
-45,
-23,
-6,
1,
41,
115,
-51,
81,
106,
-106,
-73,
23,
32,
-45,
-77,
-7,
-123,
-80,
75,
100,
-42,
76,
32,
10,
-43,
118,
-126,
-59,
84,
-60,
4,
11,
40,
-39,
-43,
52,
-21,
86,
79,
113,
-114,
-10,
41,
29,
75,
92,
46,
-101,
-67,
-64,
56,
-86,
4,
95,
22,
-127,
4,
-72,
-121,
88,
42,
24,
49,
9,
-32,
115,
-74,
-122,
116,
11,
-99,
13,
98,
99,
1,
20,
-17,
-72,
-120,
-114,
-18,
-67,
-59,
-48,
88,
98,
33,
-68,
-98,
122,
84,
71,
-4,
-18,
30,
29,
-20,
5,
-50,
-42,
-77,
-125,
60,
-116,
3,
-17,
-58,
34,
113,
-39,
32,
93,
39,
121,
-117,
-58,
-16
] |
James R. Cooper, Judge.
The appellant in this contract case issued to the appellee a commercial general liability policy providing certain types of liability coverage for the appellee, a private country club which operates tennis courts and a golf course in Forrest City for their members and guests. On April 26, 1988, during the time period the insurance coverage was in effect, Theresa Whitfield was advised that she could not play at the country club tennis court because of country club rules. Ms. Whitfield, who is black, filed through her parents a civil rights action in Federal District Court alleging that the policy of the appellee country club on the use of the tennis facility violated her rights under 42 U.S.C. §§ 1981 and 1983, and also violated the Interstate Commerce Clause in that Ms. Whitfield was denied equal access to a place of public accommodation because of her race. In addition to the civil rights violations alleged, Ms. Whitfield asserted that the combined action of the defendants constituted the tort of outrage. The appellee brought an action against the appellant seeking a declaratory judgment that the appellant had a duty to defend it against Ms. Whitfield’s lawsuit. The trial court found that the factual allegations in Ms. Whitfield’s complaint fell within the policy coverage and that the appellant had the duty to defend. From that decision, comes this appeal.
Although the issue of the appellant’s duty to pay is now moot because the federal suit resulted in a verdict in appellee’s favor, the appellant contends on appeal that the trial court erred in finding that the appellant had a duty to defend the suit of Whitfield v. Forrest City Country Club. We find no error, and we affirm.
As a general rule, the pleadings against the insured determine the insurer’s duty to defend. Baxley v. Colonial Insurance Company, 31 Ark. App. 235, 792 S.W.2d 355 (1990). Although it has been held that there can be situations where the duty to defend cannot be determined solely from the pleadings, the Arkansas Supreme Court has stated that the duty to defend is broader than the duty to pay damages, and it is enough if the possibility of damages exists; if injury or damage within the policy coverage could result, the duty to defend arises. Home Indemnity Company v. City of Marianna, 291 Ark. 610, 727 S.W.2d 375 (1987). The pleadings in Ms. Whitfield’s suit alleged:
10. That Plaintiff Theresa Whitfield, hereinafter referred to as “Plaintiff”, is a student in attendance in the Defendant Earle School District and a member of the Earle High School tennis team, one of the schools of that district.
11. That on April 26, 1988 the Plaintiff was in Forrest City, Arkansas, as a member of the Earle High School Girls’ Tennis Team pursuant to a scheduled match between Earle High School and the Forrest City High School Girls’ tennis teams. After the Earle High School Tennis Team had arrived in Forrest City, the coaches for both teams, Defendant Charles Bowlin for Forrest City and Defendant Jack Hosford for Earle drew up the bracketing for the tennis matches. The Defendants determined that some of the players would go play at the tennis facilities owned by the Defendant Forrest City Country Club and other players would go play their matches at the tennis courts of the Forrest City Civic Center. The Earle High Girls Tennis Team was transported to the Defendant Forrest City Country Club tennis facilities to begin their matches. The Plaintiff was with the team at the time. After the team had unloaded from the van in which they had been transported, the Defendant Bowlin saw that the Plaintiff was with the team. At that time the Defendant Bowlin approached the Defendant Hosford and stated that he did not think that the “little black girl” could play at the Country Club. The Defendant Bowlin then approached Plaintiff and told her that she could not play her match at the Defendant Forrest City Country Club tennis courts because “they do not allow it”. (Do not allow Blacks to play at the Country Club). The Defendant Hosford told the Plaintiff that he was sorry but this was a Country Club rule. The Plaintiff was then transported back to the Forrest City Civic Center to play her match. The Plaintiff was visibly upset and crying as a result of the humiliation she experienced.
12. That the Plaintiff was not allowed to play at the Defendant Forrest City Country Club tennis court and was transferred to the Forrest City Civic Center tennis court to play her match because of her race.
In addition, Ms. Whitfield alleged that Forrest City Country Club entered into an agreement for the use of the Country Club facilities with the understanding that the Forrest City School District would not allow black participants to play on the tennis court, and that the actions of Coach Bowlin and the other defendants were in the furtherance of a conspiracy to violate Ms. Whitfield’s civil rights. Finally, Ms. Whitfield alleged that the acts of the defendants constituted the common law tort of outrageous conduct and the common law tort of infliction of emotional distress.
The insurance policy issued by the appellant to the appellee country club provided that the appellant insurance company would have the right and duty to defend any suit seeking damages for “personal injury.” “Personal injury” was defined as injury, other than bodily injury, arising out of enumerated offenses, including “wrongful entry into, or eviction of a person from a room, dwelling or premises that the person occupies . . . .”
The crux of the appellant’s argument is that the facts alleged in the civil rights action brought by the Whitfields did not constitute an “eviction” from the country club property under the terms of the insurance policy. The appellant urges us to strictly construe “eviction” as a term limited to interference with a tenant’s enjoyment of the property; because Ms. Whitfield was a mere licensee and not a tenant, the appellant argues, no eviction occurred and no duty to defend arose under the terms of the policy. We do not agree because we conclude that the term “eviction” was ambiguous as used in the insurance policy at issue in the case at bar.
In order to be ambiguous, a term in an insurance policy must be susceptible to more than one reasonable construction. Watts v. Life Insurance Company of Arkansas, 30 Ark. App. 39, 782 S.W.2d 47 (1990). Moreover, the language in an insurance policy is to be construed in its plain, ordinary, popular sense. Columbia Mutual Casualty Insurance Company v. Coger, 35 Ark. App. 85, 811 S.W.2d 345 (1991). The appellant correctly states that the term “eviction” has been defined as meaning “interference with a tenant’s enjoyment of the premises.” See Burdan v. Walton, 286 Ark. 98, 689 S.W.2d 543 (1985). However, the word “evict,” used in its popular sense, also means merely to force out or eject. American Heritage Dictionary (2d College ed. 1982). An insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. Baskette v. Union Life Insurance Company, 9 Ark. App. 34, 652 S.W.2d 635 (1983). Construing the term “eviction” in that fashion, we hold that the allegations in Ms. Whitfield’s complaint sufficiently stated a cause of action within the policy coverage to give rise to the duty to defend.
Affirmed.
Jennings and Rogers, JJ., agree. | [
-80,
126,
-4,
-19,
8,
96,
48,
26,
122,
-31,
-27,
83,
-83,
-25,
29,
109,
-24,
-39,
116,
104,
-105,
-90,
19,
34,
-44,
-13,
-5,
85,
-118,
79,
-27,
-34,
68,
121,
-54,
-43,
-122,
-118,
-59,
28,
-94,
0,
-101,
101,
-39,
-61,
48,
121,
16,
79,
16,
-113,
-93,
40,
17,
-61,
40,
44,
91,
-88,
64,
49,
-54,
-113,
126,
21,
33,
37,
-103,
35,
-54,
8,
16,
49,
40,
-24,
115,
-90,
-126,
100,
105,
-103,
-55,
34,
99,
51,
40,
-49,
72,
-103,
47,
-2,
31,
-124,
-106,
121,
35,
10,
-74,
-97,
122,
20,
69,
-4,
-16,
-35,
93,
44,
75,
-113,
-108,
-79,
-25,
-24,
-46,
6,
-25,
67,
-76,
117,
-50,
-22,
93,
83,
119,
-109,
-97,
-34
] |
Judith Rogers, Judge.
Appellant, Get Rid of It, Inc., brings this appeal from an adverse decision on its request for declaratory judgment. For reversal, appellant contends that the chancellor erred in ruling that the Arkansas Privatization Act did not apply to the transaction for services between appellees, Union County and the City of Smackover, and their solid waste contractor. Appellant further contends that the chancellor erred in failing to declare County Ordinance #422 void as it pertains to the imposition of a penalty on delinquent solid waste accounts in excess of the maximum permitted under Arkansas law. We affirm because appellant’s abstract is flagrantly deficient.
On March 27, 1995, and July 21, 1996, Union County and the City of Smackover, respectively, entered into separate contracts with Solid Waste Management of Arkansas, Inc. for the collection and disposal of solid waste within their jurisdictions. The City of Smackover filed this suit to enjoin appellant from collecting solid waste within its jurisdiction in violation of the exclusive contract with Solid Waste Management. Appellant answered the complaint and filed a counterclaim joining Union County, its county judge, and quorum court members as parties to the suit. In its counterclaim, appellant urged the chancellor to declare that the contracts entered into by Union County and the City of Smackover with Solid Waste Management were invalid because of their failure to comply with the Arkansas Privatization Act found at Ark. Code Ann. §§ 8-5-601-612 (Repl. 1993) and to declare that County Ordinance #422 was void because the late fee charged on delinquent accounts exceeded the maximum penalty allowed under Arkansas law.
In its two issues on appeal, appellant claims error in the chancellor’s rulings with regard to the Privatization Act and County Ordinance #422. However, the decree from which this appeal arises has not been included in appellant’s abstract. Although we are not obliged to do so, we have examined the record only to find that the chancellor’s decision was communicated to the parties in a thirteen-page letter opinion which was incorporated into the final decree. We also discovered that the case was submitted to the court based on detailed stipulations and briefs submitted by the parties; however, only a few of the stipulations have been abstracted, and the briefs submitted by the appellees have been omitted entirely from appellant’s abstract. As a consequence, we do not learn from appellant’s abstract the arguments set forth by appellees in support of their actions or all of the pertinent facts relied upon by the chancellor in making his rulings. More importantly, we do not learn the basis for the chancellor’s decisions regarding the issues raised on appeal. These omissions leave us with only a one-sided account of what occurred below.
Rule 4-2(a)(6) of the Rules of the Supreme Court and Court of Appeals provides that an 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 court for decision. Further, Rule 4-2(b)(2) provides that we may affirm the judgment or decree for noncompliance with the rule if the abstract presented is flagrantly deficient. The supreme court’s reason for the rule is one of practicality in that there is only one transcript to be spread among seven members of that court. See McPeek v. White River Lodge Enterprises, 325 Ark. 68, 924 S.W.2d 456 (1996). However, it is no less burdensome for the judges of this court to pass around the lone transcript. Every case submitted has the potential of being heard by six members of this court if the three-judge panel assigned to the case does not reach a unanimous decision, a situation that occurs on a frequent basis. For us to require compliance with the abstracting rule cannot be considered a trap for the unwary, since some form of the rule has been in existence for over one hundred years. See Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986).
It is fundamental that the record on appeal is confined to that which is abstracted. In re Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996). We do not go to the record to reverse. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992); Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984). It has long been held that the judgment appealed from is a necessary constituent of an abstract. Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996); Hailey v. Kemp, 300 Ark. 120, 776 S.W.2d 828 (1989); Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988). To decide an appeal, this court must, at an absolute minimum, know what the trial court ruled before it can possibly determine any error. Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). Because of the flagrant deficiencies of appellant’s abstract, we affirm the chancellor’s decree.
Affirmed.
Bird and Roaf, JJ., agree. | [
-76,
-20,
-44,
28,
-84,
-63,
114,
-120,
83,
-85,
-27,
83,
-83,
-22,
21,
43,
-29,
95,
116,
121,
-41,
-77,
51,
98,
22,
-78,
-71,
85,
56,
79,
-27,
-50,
76,
1,
-54,
-99,
6,
66,
-57,
-36,
-30,
3,
-101,
108,
105,
65,
52,
-86,
50,
15,
17,
-65,
-6,
45,
25,
67,
73,
44,
-39,
-84,
91,
-6,
-70,
77,
127,
22,
-95,
4,
-103,
-127,
-38,
106,
-100,
57,
0,
-24,
115,
-90,
6,
116,
39,
-103,
8,
96,
99,
3,
36,
-41,
-4,
-120,
6,
-2,
29,
-90,
-128,
57,
91,
11,
-73,
-108,
100,
-98,
-113,
-2,
-26,
-123,
31,
108,
-117,
-50,
-44,
-79,
47,
32,
-100,
11,
-21,
-93,
48,
116,
-115,
-30,
92,
87,
18,
-101,
-34,
-16
] |
John B. Robbins, Chief Judge.
Appellant Kathy Stewart appeals her conviction after a bench trial for possession of a controlled substance, cocaine, for which she was sentenced to three years’ probation, ordered to pay a $250 fine plus court costs, and given thirty days in jail. Her sole point on appeal is that the trial court erred in declining to suppress the evidence seized from her person by the police officer who stopped her in the early morning of December 4, 1995. We agree with appellant and reverse her conviction.
The events leading up to appellant’s arrest are as follows. A Little Rock police officer was patrolling what he characterized as a “high drug traffic” area when he observed appellant standing on the corner of 27th Street and Broadway at approximately 1:45 a.m. This street corner was in front of her residence at 2715 Broadway. She was wearing a jacket, and when the officer approached her he asked her to remove her hands from her pock ets. She removed them, but according to the officer’s testimony, she continued to try to put her hand back into her right jacket pocket. At that point the officer determined he would do a “pat-down safety search.” Upon reaching into that pocket, he found thirty-five one dollar bills, a one-hundred dollar bill, and a small matchbox. He opened the matchbox and found two rocks that appeared to be crack cocaine.
When the public defender asked the officer at the bench trial what criminal activity aroused his suspicion about appellant when he approached her, the following exchange took place:
“I felt that she might have been engaged in drug trafficking.”
“Had you seen her do that?”
“Given the area, I’ve made numerous arrests in that area. Given the time of day and where she was standing — ”
“But did you see Ms. Stewart engage in any of those activities other than standing on the corner?”
“I felt that by being at that area, she was in engaged in that activity.”
“Did you see her talk to anyone, deliver any substance to anyone or do anything of that nature?”
“No, I did not.”
Appellant took the stand in her own defense. She testified that she was standing out in front of her residence. The police drove up to her, and she talked to the two officers. When they asked what was in her pockets, she told them that she had money from her paycheck, matches, and cigarettes. She approached the police car as they requested, and the police conducted a search of her outer clothing. She explained that the drugs in the matchbox belonged to her cousin who had borrowed money and her jacket earlier that evening.
The State first argues that we should not reach the merits of appellant’s appeal because she failed to preserve the issue for review. Specifically, it asserts that although appellant filed a motion to suppress the cocaine based upon an illegal search and seizure, brought it to the attention of the trial judge at the commencement of the bench trial, and renewed her motion at the close of the trial, she failed to object to the admission of the cocaine upon the same search and seizure argument when it was introduced through the testimony of the chain-of-custody officer.
The State cites Beck v. State, 12 Ark. App. 341, 676 S.W.2d 740 (1984), for this proposition, but in that case the appellant argued for the first time on appeal that the trial court should have excluded evidence based upon an illegal arrest. Such is not the case before us now; it cannot seriously be argued that this issue is being raised for the first time on appeal. The State also cites Rideout v. State, 22 Ark. App. 209, 737 S.W.2d 667 (1987), but that case involved an appellant who neither moved to suppress evidence nor objected to the evidence when it was admitted. Again, this is anything but true in the case before us today. The State presents no compelling authority that would require us to decline review of appellant’s argument.
We recognize that there are cases stating that, with regard to motions in limine, one must contemporaneously object to the evidence if the court initially declines to rule on the motion. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). However, those cases state that rule in the context of jury trials.
Indeed, we believe that appellant was not required in this case to object again as the State presented its version of the facts to the judge. At the beginning of the bench trial, the public defender stated that a motion to suppress the evidence seized had been filed and asked if that issue could be taken up during the course of the bench trial testimony. The trial judge responded, “Sure. Sure. Let’s do that.” The prosecutor said nothing, acquiescing in this decision. After the prosecutor ended her examination regarding the chain-of-custody of the cocaine and rested the State’s case, the public defender renewed the motion to suppress the evidence. She renewed the motion at the close of appellant’s case, and the trial judge denied it “for the same reasons I stated earlier.” Those reasons are not found in the record, but it is clear the motion was denied, and the trial judge found appellant guilty.
On the facts of this case, we cannot say that appellant failed to preserve this issue for our review. We emphasize that this was a bench trial, and it was the trial judge who would both find the facts and rule on evidentiary questions. With an agreement to take up the issue during the course of trial and with the trial judge as the determiner of all facts and rulings, we cannot say appellant failed to preserve this issue for appeal. For this reason we reach the merits of appellant’s argument.
In reviewing a trial court’s denial of a motion to suppress, we make an independent determination based upon the totality of the circumstances. We reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).
Appellant argues that the State could not stop and detain her based upon Rule 3.1 of the Arkansas Rules of Criminal Procedure. We agree. Rule 3.1 was the primary basis upon which the State argued that the initial stop was valid. Rule 3.1 states in pertinent part:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. '
“Reasonably suspects” means having a suspicion based on facts or circumstances that of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than bare suspicion; a suspicion that is reasonable as opposed to imaginary or conjectural suspicion. Ark. R. Crim. P. 2.1. Based upon the testimony elicited from the police officer, he had nothing more than “feelings” that appellant “might” be engaged in drug trafficking.
The State alternatively asserts that the police officer correctly stopped to question appellant under the authority found in Ark. R. Crim. P. 2.2, which provides that an officer may ask any person to furnish information or cooperate in the investigation of or prevention of crime. Although this was never urged as a basis to sustain the stop at the trial level, we recognize that we may affirm a trial court if it reached the right result for the wrong reason. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). The Arkansas Supreme Court has interpreted Rule 2.2 such that an officer may approach a citizen in much the same way that a citizen may approach another citizen and request aid or information. State v. McFadden, 327 Ark. 16, 938 S.W.2d 799 (1997). When the patrol car drove up to appellant standing on a street corner, this was simply a consensual public encounter and was not yet a seizure. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988). The initial encounter of appellant and the police on a public street corner fits most appropriately within the parameters of Ark. R. Crim. P. 2.2, considering the manner of the interference, the gravity of the crimes in the area, and the circumstances of the encounter. Therefore, the initial meeting between the officer and appellant was legitimate under Rule 2.2. See McFadden, 327 Ark. at 21.
The behavior of the police officer was proper until the subsequent search exceeded permissible limits. Pursuant to Ark. R. Crim. P. 3.4:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer . . . may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search he more extensive than is reasonably necessary to ensure the safety of the officer or others.
(Emphasis added.) The purpose of a frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968), is to allow an officer to pursue an investigation without fear of violence. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982).
"While this encounter did not rise to the level of suspicion of criminal activity as contemplated by Rules 3.1 and 3.4, police officers cannot be asked to risk what they perceive could be a lethal encounter in performing their public duties unless they are also allowed to make a protective frisk. Certainly an officer’s safety is as important during an encounter pursuant to Rule 2.2 as it is in the context of a Rule 3.1 stop with a reasonable suspicion of crime. Here, appellant’s furtive movements and unwillingness to keep her hand out of her pocket warranted a protective pat-down search.
However, after this protective search, the officer went beyond mere protection. We see nothing in the record to suggest that the matchbox taken from appellant’s pocket contained a weapon or posed a risk to the officer’s safety. Even if this is a high-crime area, without some evidence other than suspicion or a hunch that a matchbox contains a controlled substance, it is patently inappropriate for an officer, under the guise of maintaining his or others’ safety, to take a matchbox and open it. This was not a search incident to arrest. A protective search must be no more invasive than is necessary to ensure the officer’s safety; looking inside the matchbox ensured no more safety to the officer.
As the United States Supreme Court in Terry stated:
This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
Terry, 392 U.S. at 9, citing Union Pacific Railroad Co. v. Botsford, 141 U.S. 250 (1891). The Court went on to state:
Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.
Terry, 392 U.S. at 15.
People often have no choice but to live in what might be characterized as high-crime or high-drug-traffic areas. However, Fourth Amendment rights follow all citizens, no matter where they live. It is apparent that the police officer suspected that appellant was in possession of drugs, but searching appellant’s personal belongings when the officer’s safety was not in jeopardy exceeded constitutional bounds. The State asks us to follow Jackson v. State, 34 Ark. App. 4, 804 S.W.2d 735 (1991), wherein crack cocaine was discovered inside appellant’s matchbox that was found during a pat-down search. An equally divided court affirmed the search of the matchbox, the divisive point being whether the opening of the matchbox was constitutional. A case affirmed by an equally divided court is afforded no precedential weight. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987). On the issue before us, we are more aligned with the reasoning espoused by the dissenting judges in the Jackson case. Because this was an unreasonable search and seizure, the motion to suppress the fruit of the search should have been granted.
Reversed and remanded.
Crabtree and Meads, JJ., agree. | [
-112,
-22,
-7,
28,
57,
-64,
58,
-68,
67,
-111,
-12,
115,
-83,
78,
20,
59,
43,
-3,
116,
97,
-45,
-90,
5,
33,
-26,
-13,
56,
-43,
-73,
95,
-20,
-10,
12,
112,
-58,
17,
102,
74,
-25,
88,
-114,
19,
-54,
-62,
82,
66,
32,
43,
18,
15,
113,
30,
-29,
104,
16,
-50,
-23,
44,
111,
52,
88,
-14,
59,
29,
-113,
20,
-125,
37,
-109,
45,
-8,
92,
-36,
48,
0,
-24,
51,
-90,
-126,
116,
111,
-101,
4,
32,
98,
0,
77,
-17,
56,
-116,
54,
-66,
-99,
-89,
88,
89,
73,
109,
-73,
-100,
109,
-112,
14,
-20,
114,
-60,
93,
108,
-81,
-34,
-108,
-79,
13,
120,
-128,
-38,
-21,
-93,
116,
68,
-51,
-30,
92,
84,
83,
-101,
-114,
-106
] |
Melvin Mayfield, Judge.
This is the second appeal in this Workers’ Compensation case. In the first appeal we issued an unpublished opinion by which this case was reversed and remanded to the Commission for a determination as to whether the employer was given timely and proper notice of the claimant’s alleged occupational disease within the requisite 90-day period and, if not, whether claimant’s failure to do so fell within one of the statutory exceptions. Upon remand the Commission again awarded the claimant permanent partial disability benefits in an amount equal to 70% to the body as a whole. It is from this decision that the employer has now appealed.
A brief review of the facts is in order. The claimant was, at the time of the first hearing, a 64-year-old man who suffered from chronic obstructive pulmonary disease. The claimant had been employed by appellant as a carman and crane operator cleaning, repairing and overhauling railroad tank cars for approximately 21 years. While performing his job, the claimant was required to go down into railroad tank cars which had been steam cleaned but which still contained strong odors from previous loads. There was testimony that the cars contained anything from grain to asphalt to chemicals. The claimant was required to scrape rust and other substances from the interior walls of the tank cars and install fiberglass insulation. The claimant testified that the air he was forced to breathe in the tank cars contained fiberglass particles, chemical fumes, welding smoke and fumes, rust dust and paint fumes. Furthermore, the claimant had been a one-pack-a-day smoker for almost 30 years but had quit smoking in 1969 (when he was 45 years old).
In 1975 the claimant was diagnosed as having chronic obstructive pulmonary disease and acute bronchitis. He was hospitalized and treated but eventually was able to return to work. He continued to work for appellant until July 1985 when he developed breathing problems so severe he was unable to work. He took sick leave and annual leave for the remainder of 1985, attempted to work a few days in January 1986 but could not, then retired.
Dr. C.T. Marrow, who examined appellant on November 19, 1985, reported that the claimant was not able to continue work at North American Tank Car (the predecessor of Quality Service Railcar) because of the necessity of using a cutting torch and exposure to excessive environmental pollutants. By deposition Dr. Marrow testified that the claimant has predisposition to lung disease when exposed to industrial irritants, paint and welding fumes or other pollutants; that he has hyperirritable, hyper-responsive bronchi, and sensitivities to allergens, to dust, pollen, and a host of other things. He said that when a man who has this predisposition to lung disease is exposed to industrial irritants, paint and welding fumes or other pollutants, “it is a disaster waiting to happen.” In a letter written to the Social Security Administration on February 25, 1986, Dr. Marrow stated:
Mr. Jadell Williams, date of birth 3/15/24, is unable to continue work at Quality Service Railcar Repair Corporation because of the high level of air pollution. On each occasion of his returning to work, Mr. Williams has had severe respiratory distress, and on occasions, loss of consciousness. Working there, he is exposed to paint fumes, welding fumes, dust, sanding fumes, as well as chemical fumes.
... He has extensive pulmonary fibrosis, which has progressed rapidly since his last visit to this office because of inhalation of fumes.
On August 11, 1987, Dr. Joseph H. Bates, a pulmonary specialist at the University of Arkansas Medical Center at Little Rock, reported:
I am writing to provide my report regarding the medical condition of Mr. Jadell Williams of Fouke, Arkansas. In coming to my opinions I reviewed depositions given by Dr. Marrow of Texarkana, Mr. Williams and his wife, and medical reports from Drs. Pappas, Haynie, Marrow, Pa telle, and Stevens. In addition I had a telephone conversation with Dr. Stephen Parrish, the physician who cared for Mr. Williams when he was hospitalized in Texarkana during July, 1987. My conclusions are based on an analysis of all of these data, together with my own assessment following an interview and physical examination, and the review of blood tests, pulmonary function results, and chest x-rays made at the University of Arkansas Medical Center.
The major question is-did his work cause him to have bronchospastic disease? He worked on cars that had hauled plastic pellets, dietomaceous earth, clay, starch and grain, according to Mr. Benny Sinyard of Quality Service Railcar Repair Corporation. Most patients who develop bronchospastic disease at this age have no identifiable cause, except for cigarette abuse. . . .
It seems probable to me that Mr. Williams was born with a genetic predisposition to develop bronchospastic airways disease. He most probably would not have had this problem had he not abused tobacco. However, he stopped smoking in 1969 and the airways disease continued to worsen after this and has been especially severe in the 1980’s. It would not be correct to state that the work environment caused the disease, but it is true that strong odors and perhaps antigens from material hauled in the cars could induce episodes of bronchospasms in a person already diseased.
No reasonable physician would try to set out percentages regarding the weight of the various factors that caused him to develop bronchospastic lung disease. I have concluded that the two most important factors in his illness are a genetic predisposition and abuse of tobacco. The work environment made the process worse after it was established. Being away from the work environment will not prevent episodes in the future.
On this evidence the Commission found that the claimant was permanently and totally disabled, and although the work had not caused the claimant’s condition, his condition had been aggravated by his employment with appellant. The Commission also held that under Ark. Code. Ann. § 11-9-601 (c)(1) (1987), it was required to reduce claimant’s compensation to the proportion attributable to his occupational disease. Dr. Marrow had found that the claimant suffered a 40% loss in pulmonary function, which rendered the claimant permanently and totally disabled. He found 12 % of the 40 % attributable to cigarette smoking and 28 % attributable to the employment. The Commission found that this converted to a permanent partial disability of 70 % to the body as a whole and this percentage was attributable to claimant’s employment.
In the previous appeal we remanded the case to the Commission to make a finding of fact regarding compliance with the requirement of a 90-day written notice of occupational disease and, if the requirement had not been met, to determine whether the failure was excusable under one of the statutory exceptions. Upon remand the Commission found that the claimant suffered from a preexisting pulmonary disease which was aggravated by his exposure to pollutants at work; that the time period runs from the first distinct manifestation of a disease cognizable under workers’ compensation, not the first distinct manifestation of the disease; that the claimant was not aware his pulmonary condition was “a disease cognizable under workers’ compensation” until he attempted to return to work in January 1986, and suffered “a clear relapse”; and that on March 3, 1986, Dr. Marrow notified the appellant of the claimant’s work-related condition “by indicating on the insurance claim form the claimant’s condition arose out of his employment due to the exposure to various inhalants.” The Commission further found that even if the first distinct manifestation of an occupational disease occurred prior to January 1986, it would excuse the failure to give timely notice to the employer.
On appeal appellant first argues that the Commission erred in holding that the claimant had proven by clear and convincing evidence that his preexisting pulmonary disfunction was aggravated by his employment with appellant. 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, 1 Ark. App. 65, 644 S.W.2d 321 (1983).
Appellant argues that the various doctors disagree on whether or not the claimant’s condition was related to his work; that there was medical testimony that various odors and fumes in environments other than the work place would bring on an attack; that many environmental and emotional problems could trigger an attack; and that the building in which the claimant worked was well ventilated. Nevertheless, there was ample medical and lay evidence on which the Commission could rely in reaching its conclusion. Thus, we cannot say that reasonable minds with the same evidence before them could not reach the conclusion reached by the Commission.
Next appellant argues that the Commission erred in holding that the claimant-appellee is entitled to permanent partial disability benefits in an amount equal to 70 % of the body as a whole. Appellant argues that Dr. Marrow was the only physician who even attempted to place an estimate on the claimant’s loss of use of the lungs and that the Commission strains to extrapolate a 40% loss of the use of the lungs into a permanent and total disability. We disagree. The Commission has found that the claimant is permanently and totally disabled as a result of his lung disease and its consequences. That finding is supported by substantial evidence. Dr. Marrow attributed 12% of the 40% to cigarette smoking and 28 % to the exposure to irritants at work. Ark. Code Ann. § 11-9-601 (c)(1) (1987) provides:
Where an occuptional disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compen-sable, is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease, the compensation payable shall be reduced and limited to the proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as the occupational disease, as a causative factor, bears to all the causes of the disability or death.
Thus, under the situation in this case, the above statute requires that “the compensation payable shall be reduced ... to the proportion ... of the compensation that would be payable if the occupational disease were the sole cause of the disability. . . as the occupational disease, as a causative factor, bears to all the causes of the disability.” Under the evidence, the claimant is 100% disabled. However, that 100% must be reduced to the proportion that the occupational disease bears to all other causes of disability. Since the 100 % disability results from the 40 % loss of the lungs, and 28 % of the lung-loss was caused by occupational disease, then 40% is to 100% as 28% is to x. Mathematically, this relationship can be written as 40:100 = 28:x, and to determine the unknown term of this proportion, we multiply the means by the extremes. See 15 The World Hook Proportion 831-32 (1990). This multiplication produces 40x = 2800, and the division of those numbers makes x equal to 70%. Thus, the Commission’s finding that the appellant is liable for 70% of the claimant’s disability is not erroneous. Appellant’s suggestion that its liability is only 28 % of 40 %, or 11.20 % of the total disability, is obviously flawed. That calculation would make appellant liable for only the loss of the use of the lungs which was caused by claimant’s occupational disease. Appellant’s obligation, however, is for the disability of the man which was caused by the occupational disease.
Appellant also argues that the Commission erred in holding there was no basis for Second Injury Fund liability. It contends that the Commission “in essence” found that Section 13 (Ark. Code. Ann. § 11-9-525) and Section 14 (Ark. Code Ann. § 11-9-601) of the Workers’ Compensation Act are mutually exclusive, and appellant argues that the Commission was wrong in that regard. However, both the claimant and the Second Injury Fund think the Commission was right. The Fund points out that Section 14, which is now codified as Ark. Code Ann. § 11-9-601 (1987), provides in § ll-9-601(a) that “where an employee suffers from an occupational disease. . . and is disabled or dies as a result of the disease . . . the employee, or, in case of death, his dependents, shall be entitled to compensation as if the disablement or death were caused by injury, except as otherwise provided in this subchapter.” (Emphasis added). An exception “otherwise provided” is found in Ark. Code Ann. § 11-9-601(c)(1) (1987), which we have already quoted in this opinion, and as we have pointed out, that section contains provisions which clearly state that where an occupational disease is aggravated by a non-compensable disease the compensation payable is limited to the proportion of compensation that would be payable if the occupational disease were the only cause of disability. That is the formula that the Commission applied in this case, and it found that the claimant’s work caused 70 % of the claimant’s disability. Both of the appellees in this case rely upon Jenkins v. Halstead Industries, 17 Ark. App. 197, 706 S.W.2d 191 (1986), in which we affirmed the Commission’s finding that the appellant’s emphysema was 92% attributable to cigarette smoking and 8% attributable to his work. We stated:
We agree with the Commission’s conclusion that the legislature did not intend for our occupational disease apportionment statute to be interpreted and applied in the same manner as our accidental injury apportionment statute ....
17 Ark. App. at 201. Both of the appellees recognize that “this is simply not a Second Injury Fund case.”
In its opinion of September 28, 1990, the Commission pointed out that Ark. Code Ann. § ll-9-601(f)(l) places liability for occupational disease on “the employer in whose employment the employee was last injuriously exposed to the hazards of the disease,” and that the employer’s liability is limited by Ark. Code Ann. § 11-9-601 (c)(1) to the proportion that the occupational disease bears to all causes of the disability. In contrast, the Commission also pointed out that the Second Injury Fund statute, Ark. Code Ann. § 11-9-525, is designed “to limit the employer’s liability to the amount of disability or impairment suffered by the employee during his employment with that employer.” The Commission reached this conclusion:
Here a noncompensable pulmonary dysfunction was aggravated by an occupational disease. Therefore, the Administrative Law Judge was correct in apportioning liability for the degree of claimant’s permanent disability pursuant to § 601(c)(1) and in dismissing the Second Injury Fund from this case.
We believe the Commission’s decision on this point is clearly supported by both the evidence and the law.
Next, appellant argues that the Commission erred in finding that the claim was not barred by the claimant’s failure to give appellant notice of the occupational disease “within ninety (90) days after the first distinct manifestation thereof.” See Ark. Code Ann. § ll-9-603(a)(2) (1987). Appellant contends that the claimant became aware of his occupational disease in July 1985, and did not notify the employer until March 3, 1986. Furthermore, appellant argues that the claimant first became aware that his condition was related to his work in 1975 when he was told by Dr. Haynes in Shreveport that he needed to get away from his work environment.
The Commission found that the claimant was not aware, until he attempted to return to work in January 1986 and was not able to do so, that he suffered from a disease cognizable under workers’ compensation. The Commission relied on Desoto, Inc. v. Parsons, 267 Ark. 665, 590 S.W.2d 51 (Ark. App. 1979), for the rule that the time period for notice to the employer begins to run from “the first distinct manifestation of a disease cognizable under workers’ compensation, not the first distinct manifestation of the disease.” Although the Parsons case involved an injury rather than an occupational disease, the court in Parsons quoted with approval the following statement by the Commission: “Claimant was not in a position to give notice of injury because she wasn’t aware, until notified by her union, that she had a claim cognizable under workers’ compensation.” We think the rule stated by the Commission in the present case is correct. Another way to express the same rule is found in Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 115 (Ark. App. 1980), where the court said, “the statute does not begin to run until the employee knows or should reasonably be expected to be aware of the extent or nature of his injury.” We also agree the evidence in this case supports the finding that it was not until January 1986, when the claimant was unable to continue working, that he realized he was suffering from an occupational disease, and it is not disputed that the employer learned on March 3,1986, that the claimant was contending his condition was work related. Moreover, the Commission found that any failure to give timely notice of claimant’s occupational disease was excusable. The Commission said the evidence shows that the employer had as much knowledge of the causal connection between the claimant’s work and his disease as the claimant did. Under the case of Peerless Coal Co. v. Gordon, 237 Ark. 152, 372 S.W.2d 240 (1963), the authority of the Commission to excuse the failure to give notice under the statute relating to an injury (now Ark. Code Ann. §11-9-701) would also apply to the failure to give notice of occupational disease as required under Ark. Code Ann. § 11-9-603. We affirm the Commission’s finding that any failure to give notice was excusable.
Finally, the appellant argues the Commission erred in finding that the claimant is due a period of temporary total disability for 18 months from the cessation of his employment on or about July 4,1985. Appellant again relies on selected portions of the medical testimony to support its theory that the claimant’s condition could be aggravated by a plethora of allergens, whether at work or at home, and argues that the medical evidence taken as a whole dictates that appellee’s employment was not such that the hazards of such disease actually existed or that the characteristics thereof were peculiar to the trade, occupation, process or employment.
The record shows that the claimant became unable to breathe around July 4, 1985, and was hospitalized for several days. In the next year and a half he required hospitalization or treatment 36 times. He attempted to return to work in January 1986 but was unable to do so. Dr. Marrow testified:
There was permanent damage to the tune of roughly 40 %, permanent damage which was maintained even nine months after leaving North American. But the airways themselves have shown a tremendous ability to rebound and improve. He has had a 34 % improvement, a 23 % lung function when he left North American to a little better than 50 % nine months later. So these small airways are up to 51.7 % from 23 % over a period of nine months. So his small airways and large airways continue to improve. The time of improvement until he reaches what is called a steady stage, there is no further healing, is probably in the range of a year and a half. No doctor has a crystal ball and can give an exact time but if I had to make a guess that at 18 months he would continue to show some improvement in lung function barring a pneumonia or doing some welding or some crazy thing like going duck hunting and falling out of the boat and getting pneumonia or something like that. If he doesn’t do something crazy to damage his lungs further he should show continued but lessening improvement in his lung function up to about 18 months after leaving work.
In light of this testimony we cannot say the decision of the Commission to award the claimant 18 months of temporary total disability is not supported by substantial evidence.
Affirmed.
Jennings and Danielson, JJ., agree. | [
-108,
120,
-35,
-98,
10,
-95,
58,
90,
100,
-93,
-25,
91,
-17,
-9,
-99,
43,
-30,
125,
113,
59,
-9,
-93,
19,
66,
-46,
-9,
123,
-58,
-72,
75,
-28,
-10,
77,
48,
11,
-123,
-90,
64,
-60,
92,
-52,
7,
-85,
-19,
25,
18,
40,
110,
-48,
79,
57,
-98,
-29,
46,
25,
-49,
77,
32,
123,
41,
-64,
-32,
-70,
5,
-17,
0,
-94,
4,
-100,
-81,
-10,
27,
-104,
49,
80,
-84,
114,
-74,
-58,
-76,
35,
-71,
4,
98,
98,
-95,
21,
-27,
-24,
-72,
31,
-98,
-97,
-91,
-69,
57,
-104,
7,
-108,
-97,
118,
22,
28,
-8,
-38,
85,
93,
44,
-126,
-114,
-76,
-111,
-49,
96,
-100,
-93,
-21,
-85,
6,
117,
-40,
-94,
92,
7,
115,
-97,
19,
-102
] |
George K. Cracraft, Judge.
John F. Manuel appeals from an order of the Crittenden County Probate Court granting the petition of Ronald Harold McCorkle and Katherine Marie McCorkle for the adoption of two children of the former marriage of John Manuel and Katherine McCorkle. He contends that the court’s findings that his consent to the adoption was not required and that it was in the best interest of the minors that they be adopted by appellee Ronald McCorkle are not supported by the evidence. We disagree and affirm.
It is well settled that statutory provisions for the adoption of minors are to be strictly construed and applied. Bemis v. IIare, 19 Ark. App. 198, 718 S.W.2d 481 (1986). Under Ark. Stat. Ann. § 56-206 (Supp. 1985), a petition to adopt a minor may not be granted without written consent of the parents, unless that consent is not required in the subsequent section. Arkansas Statutes Annotated § 56-207 (Supp. 1985) provides that consent is not required of a non-custodial parent if that parent, for a period of at least one year, has failed significantly and without justifiable cause to provide for the care and support of the child as required by law or judicial decree.
The party seeking to adopt a child without the consent of a natural parent must prove by clear and convincing evidence that the failure to support the child not only continued for at least one year but also that it was willful, intentional, and without justifiable cause. Because one should not be permitted to assert a right until the facts on which it is predicated have accrued, the one-year period after which the parent may lose his right to consent to the adoption must accrue before the petition for adoption is filed. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985); Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987). The term “failed significantly without justifiable cause” does not mean that the parent must have failed totally but denotes a failure that is meaningful, important, and willful. Bemis v. Hare, supra.
The mere fact that a parent has forfeited his right to have his consent to an adoption required does not mean that the adoption must be granted. The trial court must further find from clear and convincing evidence that the adoption is in the best interest of the child. Bemis v. Hare, supra. On appellate review, we will reverse the trial judge’s determinations only if they are clearly erroneous or clearly against a preponderance of the evidence. Dixon v. Dixon, supra; Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983); Ark. R. Civ. P. 52(a).
The appellant first contends that the trial court erred in its finding that the appellant’s consent to the adoption was not required because he had failed significantly to support his two minor children without justifiable cause for a period of at least one year. We do not agree.
Appellant and appellee Katherine McCorkle were married in 1979, separated late in the summer of 1984, and were divorced on February 11,1985, by a decree which awarded custody of the minors to Mrs. McCorkle and ordered appellant to pay $25.00 per week for the support of the two children. Mrs. McCorkle testified that, from the date of their separation until after the petition for adoption of the children was filed on May 6, 1986, appellant paid a total of $25.00 for the support of the children and had given them a coloring book. She testified that when she and appellant separated she had no money or place to live and was forced to take her two children to live with her mother and sisters until she obtained a public grant for dependent children and public housing. During the period before she received these two grants, she and the children were forced to exist entirely on money and Food Stamps which her mother and sister shared with her. After she obtained welfare assistance, she was unable to even furnish the housing provided her. Her sister gave her two beds for the children, and her mother gave her a mattress and box spring which she placed on the floor for her own use. She testified that she and the two children continued to live on public welfare funds, with no help from the appellant, until she obtained several jobs and then married the appellee, who has supported them since their marriage on November 18, 1985.
She stated that, although there was a brief attempt at reconciliation in the fall of 1984, the appellant did not then furnish any support but forced her and the children to live on welfare payments. The appellant admitted that this was true. Mrs. McCorkle’s testimony as to the poverty to which she and the children were subjected for a period in excess of one year was amply corroborated by the testimony of other witnesses.
Appellant testified that, although directed to make his support payments through the registry of the court, he had made his payments to Mrs. McCorkle directly but had no other proof of having done so. He further testified that, in any event, his failure to support the children was not willful because he had injured himself and had been unable to work as a truck driver until after the petition was filed in May of 1986. However, his employer testified that he knew nothing of such an injury and stated that there was work available for appellant at a substantial weekly wage during that entire period if he had wanted it. There was also evidence that, in February of 1986, the court’s order for visitation had to be changed because of appellant’s “work schedule” driving trucks. There was further evidence that, in February of 1986, appellant was found to be in arrears in his child support payments in the amount of $ 1825.00, and was given a three-month period to see what he could do about paying some part of the arrearage. He made no payments pursuant to this order. He had remarried and was providing support for his new wife, her child, and a child of that marriage.
On this conflicting evidence, we cannot conclude that the trial court’s finding that appellant had significantly, willfully, and without justification failed to support his children for a period in excess of one year prior to the date of the filing of the petition for adoption is clearly erroneous.
Appellant next contends that, even if we conclude that his consent was not required because of his failure to provide for the care and support of his children, the trial court erred in finding that it was in the best interest of the children to be adopted. We do not agree. It has been stated that, all things being equal, the law will favor a natural parent over all others. In these cases, we have recognized that temporal and material enhancements are not conclusive of where the best interest of a child lies, but is a fact which may be considered in a proper case. Consideration must also be given to the fostering of moral, cultural, and spiritual values as well as family relationships. Best interest does not necessarily mean a higher station in life, and those parents who support their child in their own style of life, however poor or humble, should not be deprived of parental privileges except under compelling circumstances. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). This rule, however, is premised on the assumption that the parent is in fact contributing to the care and support of his children to the best of his abilities even though his abilities be meager.
It is well settled that parental rights are not proprietary ones and are subject to the faithful performance of the correlated duties and the obligations of a parent to care for and protect the child. The law will protect the preferential right of a parent only so long as that parent discharges these correlated duties, and this preference should not be continued beyond the point where those duties and obligations are ignored or have been shifted to others. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). It has been stated that this preference for natural parents is based on the presumption that they will take care of their children, bring them up properly, and treat them with kindness and affection, but when that presumption has been dissipated the courts will interfere and place the child where those duties will be discharged by someone more willing and able to do so. Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Brown v. Johnson, supra.
It is impossible to carefully define that point at which the interests of a child are best fostered by terminating existing parental relationships and creating new ones. Each case must be determined on its own peculiar facts and circumstances. For this reason, our courts very wisely give great deference to the superior position of the trial court to. make that determination. In these cases, a heavy burden is placed on the trier-of-fact to utilize to the fullest extent his powers of perception in the evaluation of witnesses, their testimony, and where the interest of the child actually lies. In no case does the superior position, ability, opportunity, and insight of the trial judge in observing the parties carry greater weight than those cases involving minor children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986).
Here, the chancellor found that the appellant unjustifiably failed to discharge his duties of care and support for these children. Instead, he permitted them to be supported by private and public charity and to exist in abject poverty and deprivation until such time as the mother married a person ready, willing, and able to provide the care, support, and protection they were entitled to receive. Since that time, the appellant continued his renunciation of those obligations to his children and was content to let appellee Ronald McCorkle furnish the children with comfortable housing, adequate food and clothing, and those additional necessities and pleasures that a child ought to have. In the home of the appellees, these children are secure and adequately provided for. It is clear from the chancellor’s closing remarks that he did consider all of the factors bearing on the best interests of the children, and he concluded that, “having considered it all, it is a difficult case, but I feel it is in the best interests of the children to grant the adoption.” Based on our review of the record, and giving due deference to the superior position of the chancellor to make that determination, we cannot conclude that his findings are clearly erroneous.
Affirmed.
Corbin, C.J., and Jennings and Cooper, JJ., dissent. | [
48,
-24,
-27,
60,
-70,
97,
105,
26,
83,
-85,
103,
83,
-17,
-2,
20,
-7,
74,
47,
64,
114,
-47,
-78,
6,
96,
114,
-14,
-79,
-43,
49,
-17,
100,
-4,
73,
112,
-54,
-11,
102,
74,
-115,
-110,
2,
3,
43,
101,
80,
-126,
32,
117,
82,
14,
17,
-98,
-73,
42,
60,
-53,
106,
108,
77,
-67,
-48,
-76,
-117,
7,
-34,
4,
-95,
100,
-110,
37,
96,
46,
24,
17,
1,
-24,
82,
54,
-125,
116,
95,
9,
8,
116,
102,
0,
76,
-9,
-7,
-104,
-2,
6,
45,
-90,
-102,
121,
73,
101,
-65,
-11,
8,
20,
12,
-6,
99,
-115,
31,
108,
32,
-113,
86,
-79,
12,
-8,
-100,
1,
-29,
87,
16,
53,
-33,
-12,
93,
66,
59,
-109,
-98,
-14
] |
Beth Gladden Coulson, Judge.
Appellant, Ñola Neher Hill, raises four points for reversal in this appeal from a decision of the Arkansas Workers’ Compensation Commission denying her claim. We find, however, that the appeal was not filed in a timely manner as required by Ark. Code Ann. § 11-9-711(b) (1987), and we therefore dismiss it.
On May 18,1987, the Commission filed its opinion denying appellant’s claim. Appellant filed a petition for reconsideration, which the Commission, declaring it to be “without merit,” denied on July 1, 1987. On July 20, 1987, appellant filed a notice of appeal with the Commission. Although the document indicates that the appeal is from the decision of the Commission denying reconsideration on July 1,1987, the substance of her appeal is in fact concerned with the Commission’s opinion dated May 18, 1987.
The time allotted for filing an appeal with this court from a decision by the Commission is prescribed by Ark. Code Ann. | 11-9-711(b)(1) (1987):
A compensation order or award of the Workers’ Compensation Commission shall become final unless a party to the dispute shall, within thirty (30) days from receipt by him of the order or award, file notice of appeal to the Court of Appeals, which is designated as the forum for judicial review of those orders and awards.
In Morrison v. Tyson Foods, Inc., 11 Ark. App. 161, 668 S. W.2d 47 (1984), we emphasized the finality of a Commission order in the absence of an appeal filed within thirty days. We also noted that the Commission has the authority to consider a motion for rehearing which is filed within the thirty days allowed for an appeal, but we stressed that “thefiling of a motionfor reconsideration, or rehearing, does not extend the time to file the notice of appeal.” (Emphasis added.)
The notice was not timely filed. The petition for reconsideration did not, as Morrison v. Tyson Foods, Inc., supra, establishes, extend the time allowed appellant for filing a notice of appeal.
Appeal dismissed.
Corbin, C.J., and Mayfield, J., agree. | [
-108,
-24,
-43,
-116,
8,
-31,
56,
-66,
65,
-87,
103,
83,
-89,
-10,
-100,
121,
-54,
13,
-43,
123,
-34,
-77,
19,
64,
-30,
-13,
81,
95,
-79,
111,
-12,
-66,
76,
48,
-54,
-59,
-58,
-64,
-53,
28,
-54,
7,
-117,
-19,
121,
-62,
56,
-86,
26,
79,
49,
-82,
-29,
-83,
24,
-61,
104,
40,
121,
45,
72,
57,
-126,
13,
-1,
20,
33,
-91,
-98,
-123,
90,
127,
-112,
48,
0,
-24,
82,
-90,
-106,
52,
123,
-103,
12,
34,
99,
0,
-107,
-25,
-120,
-88,
55,
14,
-99,
-90,
-72,
9,
75,
103,
-106,
-75,
127,
-122,
12,
126,
-2,
77,
86,
-84,
-128,
-122,
-76,
-79,
95,
8,
-108,
-93,
-21,
-109,
-110,
53,
-36,
-30,
92,
70,
55,
-37,
-58,
-112
] |
Donald L. Corbin, Chief Judge.
This appeal comes to us from the Grant County Probate Court. Appellants appeal from an order allowing attorney’s fees to be assessed against the assets of the decedent’s estate in the amount of $5,625 in a district court action in which the administrator was a defendant individually and in his representative capacity. We reverse and remand.
Prior to the decedent’s death, appellee’s name was placed on a bank account and several certificates of deposit with the decedent’s name. Appellee’s son and his wife also received a deed from the decedent to decedent’s homestead. Appellants, heirs of Walter Clark, sued appellee in federal district court personally and in his representative capacity alleging that the decedent was incompetent at the time the transactions were made. Appellee petitioned the court for authority to hire an attorney, and the petition was granted.
The court sustained the allegations of mental incompetency. Title to the homestead and one of the certificates of deposit was vested in the estate. Title to the remainder of the certificates was vested in Marie Croft who had been on the accounts with decedent, her brother, long before appellee’s name was added and prior to the decedent’s incompetency. Appellee and his son were divested of all property in dispute.
Appellee submitted a statement for attorney’s fees incurred in defense of the federal court action and the court ordered the fees to be paid from the assets of the decedent’s estate. From that order comes this appeal.
For reversal, appellant contends that the probate court had no jurisdiction to award attorney’s fees to be paid from assets of the estate for services rendered for the benefit of the administrator and his son. Appellant argues that the appellee never made any claim on behalf of the estate, and in fact was an adversary of the estate in the federal court action because appellee’s position of defending the decedent’s competency benefited only the appellee and his son.
It has long been recognized that probate courts can authorize the administrator to employ counsel in the necessary protection of the estate in his hands and may allow fees for such services rendered the administrator to protect and preserve the estate. Ark. Stat. Ann. § 62-2208(d) (Supp. 1985); Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900). Paget also recognized that the court has no jurisdiction to award fees for services rendered to an individual beneficiary. Id. at 525,55 S.W. at 939-40. Had appellee succeeded in defending the decedent’s competency, he and his son would be the only beneficiaries of the transactions in question. The estate stood to gain nothing. It is difficult to understand how such defense was necessary to protect and preserve the assets of the estate.
In In re Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521, cert. denied, 439 U.S. 883 (1978), the reduction of the attorney’s fees was upheld where the bulk of the services was performed on behalf of the executor in his individual capacity and the action was found to be in derogation of the interests of the estate. Se^also In re Jenkins Estate, 245 Iowa 939, 65 N.W.2d 92 (1954). Likewise, because appellee’s position was in derogation of the interests of the estate as a whole, the trial court abused its discretion in ordering the attorney’s fees to be paid from the assets of the estate. We therefore reverse the order of the trial court ordering that appellee’s attorney’s fees be paid from the assets of the decedent’s estate and remand for the court to enter an order consistent with this opinion.
Reversed and remanded.
Cracraft and Jennings, JJ., agree. | [
-14,
-20,
-52,
60,
-104,
96,
26,
-118,
83,
97,
37,
-45,
-17,
-54,
17,
47,
-13,
13,
101,
123,
-62,
-77,
86,
32,
91,
-5,
-69,
-35,
-77,
125,
-27,
-41,
72,
48,
74,
85,
98,
2,
-59,
80,
14,
2,
-117,
109,
-7,
64,
48,
33,
22,
29,
101,
-66,
115,
43,
53,
98,
92,
46,
89,
-84,
80,
-80,
-114,
5,
127,
23,
-111,
7,
-104,
75,
72,
43,
-104,
61,
0,
-24,
51,
-90,
-122,
84,
75,
25,
44,
98,
98,
48,
-80,
-17,
-112,
-120,
6,
-68,
-97,
-89,
-46,
17,
74,
39,
-74,
-97,
121,
-124,
79,
-12,
-12,
-100,
94,
44,
0,
-49,
-42,
-93,
-111,
104,
-99,
67,
-17,
-121,
116,
113,
-54,
-62,
93,
71,
49,
-101,
-122,
-48
] |
Donald L. Corbin, Chief Judge.
This appeal comes to us from Washington County Chancery Court. Appellant, Joe B. Reed, appeals from a divorce decree finding certain personal property to be the separate property of the appellee, Leanne Reed, and not subject to division upon divorce. We affirm in part, reverse in part, and remand.
Following the death of her father, appellee deposited money from her inheritance into a money market account and a savings account both in the joint names of the parties. Prior to filing for divorce, appellee withdrew part of the funds from the money market account and all of the funds from the savings account, and deposited them along with other funds into an account in her separate name. The chancellor found the balance of the funds in the money market account and the account in the separate name of appellee to be the sole property of the appellee and not subject to division upon divorce.
Appellant contends that the trial court erred in awarding to the appellee, in division of property on divorce, the proceeds of the joint account and the account in the sole name of appellee created just prior to the filing of this action.
The two accounts with which this appeal is concerned, are money market investment accounts. The first account, an account in the joint names of the parties, is made up of appellee’s inheritance, proceeds under a contract for sale of real property inherited by appellee, and interest and dividends earned thereon. The second account, opened in the separate name of appellee in contemplation of divorce, contains funds from several sources including a jointly held savings account, appellee’s salary check, a stipend, one month’s proceeds under a contract for sale of real property inherited by appellee, and funds withdrawn from the first money market account described above. The chancellor awarded the remainder of the funds in the first account and all of the funds in the second account to appellee as her sole property.
For reversal, appellant essentially contends that by placing the funds which she inherited in accounts bearing joint names, appellee created a tenancy by the entirety in the funds and that they must be divided pursuant to Arkansas Statutes Annotated § 34-1215 (Supp. 1985). We agree.
I.
First, we deal with the account held in joint names. The law applicable to personal property held by the entireties, accounts in particular, was recently clarified in Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). We recognize that the chancellor did not have the benefit of the Lofton precedent, but we find it to be controlling in the case at bar.
In Lofton, funds inherited by the husband were placed into certificates of deposit in the joint names of the parties. There, we held that once property is placed in the names of persons who are husband and wife without specifying the manner in which they take, there is a strong presumption that the property is owned by the parties as tenants by the entirety. Id. at 209-10, 745 S.W.2d at 639. We stated that the presumption may be overcome only by clear and convincing evidence that the spouse did not intend to make a gift of one-half interest to the other spouse. Id.
Clear and convincing evidence has been defined as evidence so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitance, of the matter asserted. Id. See also Glasgow v. Greenfield, 9 Ark. App. 224, 657 S.W.2d 578 (1983). Because we review chancery cases de novo and reverse the chancellor’s findings only if they are clearly erroneous or clearly against the preponderance of the evidence, Cuzick v. Lesly, 16 Ark. App. 237, 700 S.W.2d 63 (198 5), the issue before us is whether the chancellor’s finding that appellee overcame the presumption that the account was held by the entirety by clear and convincing evidence, is against a preponderance of the evidence.
Upon our careful review of the record, the only evidence presented by appellee to rebut the presumption that she intended to make a gift was that appellant had never used any of the funds and that he was “not allowed” to do so. This evidence falls far short of the quantum of proof required to rebut the existing presumption, especially in light of appellant’s testimony that he had not used the funds because they had been set aside for major purchases, none of which were made during the life of the account. Therefore, we hold that the chancellor’s finding that the balance of the joint money market account was appellee’s sole property, is clearly against the preponderance of the evidence. We remand for the chancellor to modify his judgment to reflect that said account was owned by the parties as tenants by the entireties prior to divorce and to divide the account pursuant to Ark. Stat. Ann. § 34-1215 (Supp. 1985).
Finally, we review the division of the account which appellee opened in her separate name just prior to the filing of this action. The record reflects that the account consisted of the following:
$ 1,155.07 Appellee’s salary check
100.00 Appellee’s stipend
3,372.56 Proceeds inherited by appellee under contract for sale of real property
7,496.27 Funds withdrawn from jointly held savings account
9,420.86 Funds withdrawn from the joint money market account discussed above
503.95 Interest, Dividends, etc.
$22,048.71. Total account value
Because the funds used to establish the separate account came from several sources, individual consideration of each item is required.
First, appellee’s salary check and stipend, earned subsequent to the marriage, are clearly marital property, see Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), and should have been divided pursuant to Arkansas Statutes Annotated § 34-1214 (Supp. 1985). His findings that the amounts were the sole property of appellee are clearly against a preponderance of the evidence. On remand, the amounts should be divided pursuant to Ark. Stat. Ann. § 34-1214 as the chancellor believes the equities require.
The proceeds inherited under contracts for the sale of real properties are not marital property as defined in Ark. Stat. Ann. § 34-1214. Nor are they held as tenants by the entirety since appellee did not deposit them into an account so held. We therefore affirm the chancellor’s decision that this amount is the sole and separate property of appellee.
Funds were also deposited from a savings account which was held by the parties jointly. The evidence reveals that this account was used primarily for convenience in conjunction with the jointly held money market account described above to hold the monthly proceeds under contracts of sale prior to depositing them in the money market account. The presumption that the savings account was held by the entirety arises here also. The only evidence presented by appellee to rebut the presumption was that she was the only one who used the account and that appellant had nothing to do with depositing or withdrawing from the account. Again, this evidence fails to reach the quantum of proof required to overcome the presumption and the account is deemed to have been held by the entirety. Therefore, the funds withdrawn from the savings account held as tenancy by the entirety in contemplation of divorce should have been divided pursuant to Ark. Stat. Ann. § 34-1215. See, Lofton at 207, 745 S.W.2d at 638-39. Likewise, the funds withdrawn from the money market account held as tenants by the entirety and deposited into appellee’s separate account should have been divided under the same statute. Id.
II.
Finally, treatment of a portion of the interest and dividends earned on appellee’s separate account is governed by the supreme court’s recent decision of Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987). Although our above disposition necessarily means that some of the interest was earned on non-marital property, some on marital property and some on tenancy by the entirety property, Wagoner holds that interest earned on non-marital property is marital property and is divided pursuant to Ark. Stat. Ann. § 34-1214. Therefore, on remand, the chancellor is to determine the interest and dividends earned on: (1) non-marital property (proceeds from the real estate contract never deposited into a joint account) and divide them pursuant to Wagoner under § 34-1214; (2) marital property (salary and stipend) and divide them as marital property pursuant to § 34-1214; and (3) tenancy by the entirety property (funds from joint savings and joint money market accounts) and divide them as tenancy by the entirety property pursuant to § 34-1215. If the interest from the funds cannot be characterized, the chancellor should divide all interest and dividends pursuant to § 34-1214, since all were earned subsequent to marriage.
Affirmed in part, reversed in part, and remanded.
Cracraft and Mayfield, JJ., concur as to part II.
Cooper, J., dissents as to part II.
Jennings, J., dissents as to part I.
Apparently, prior to his death, appellee’s father executed contracts for the sale of several tracts of real property under which he received periodic payments until his death. The right to receive a percentage of these proceeds was inherited by appellee. | [
-80,
104,
-43,
108,
-118,
96,
42,
-104,
82,
-55,
-91,
83,
125,
-38,
16,
105,
-30,
-55,
101,
104,
-43,
-73,
23,
96,
90,
-77,
-71,
-43,
-80,
79,
-92,
-42,
76,
40,
-62,
-43,
70,
-118,
-25,
28,
46,
-64,
11,
108,
89,
-57,
52,
-81,
90,
9,
113,
-121,
-78,
45,
61,
74,
108,
44,
89,
-68,
-48,
-72,
-117,
69,
111,
7,
-79,
-108,
-64,
100,
88,
14,
-112,
56,
0,
-23,
50,
38,
-106,
116,
110,
-103,
9,
98,
114,
3,
37,
-9,
-76,
-120,
-122,
127,
-99,
-121,
-110,
89,
9,
2,
-66,
-100,
111,
80,
10,
-4,
-20,
-99,
124,
108,
2,
-50,
-42,
-77,
13,
121,
-104,
27,
-17,
-29,
48,
113,
-54,
-94,
93,
87,
62,
-37,
-122,
-3
] |
George K. Cracraft, Judge.
Joseph Handy appeals from his conviction of the crimes of kidnapping and rape for which he received consecutive ten-year sentences. He contends that the trial court erred in permitting him to be convicted and sentenced for both offenses. We disagree and affirm.
When viewed most favorably to the State, the evidence discloses that the victim, a seventeen-year-old girl, and two of her friends went swimming in a bauxite pit near Little Rock. There they encountered the appellant, who was known to them. As the victim and her friends started to leave in their automobile, appellant stepped out in front of the vehicle, stopped them, and came up to the window and asked for a cigarette. One of the girls gave him a cigarette, and he inquired about the speakers of the automobile’s stereo system. He then opened the door and jumped in the car. According to the victim, appellant stated his intention to have sexual intercourse with one or more of the girls in rather graphic terms. When they hysterically refused, he drove the car down a dirt road and stated that if any one of them tried to escape he would kill the others. While he was driving, one of the girls kept trying to open the door and push the victim out so that she might escape. She stated that appellant kept screaming “If you jump out I’m going to kill the other ones.” After driving for about a mile, appellant stopped the car, pulled the victim down onto the ground, beat her about the head with a wine bottle, removed her swimsuit, and then raped her. While he was raping the victim, the other two girls escaped. When appellant realized they were gone, he took everything from their purses and some jewelry from inside the vehicle, and left the scene.
The appellant contends that he could not be convicted and sentenced for both rape and kidnapping because of the following provisions of Ark. Code Ann. § 5-1-110 (1987) (formerly Ark. Stat. Ann. § 41-105 (Repl. 1977)):
(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) one offense is included in the other, as defined in subsection (b) of this section;
* * *
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) it is established by proof of the same or less than all of the elements required to establish the commission of the offense charged ....
The purpose of this statute is to allow a conviction of a lesser included offense when the accused is not convicted of the greater offense and to prohibit an accused from being convicted of more than one offense when the proof required to establish the offense necessarily includes proof of every element of another. We conclude that neither provision is applicable here.
Arkansas Code Annotated § 5-14-103 (1987) (formerly Ark. Stat. Ann. § 41-1803 (Repl. 1977)) provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Unquestionably, when the evidence is viewed most favorably to the State, it establishes that a rape occurred. Arkansas Code Annotated § 5-11-102 (1987) (formerly Ark. Stat. Ann. § 41-1702 (Repl. 1977)), in pertinent part, provides that a person commits kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of committing rape or facilitating the commission of any other felony. The jury could easily conclude that the appellant did interfere with the victim’s liberty for the purpose of facilitating the commission of rape. Neither rape nor kidnapping is a lesser included offense of the other, as each involves separate elements and it is not necessary to prove one offense in order to prove the other. Although appellant’s purpose to commit rape was an element of both the rape and kidnapping in light of the manner in which he was charged in this case, it was not necessary that the rape have been consummated or that all of its elements be proven in order to prove the kidnapping. Further, our supreme court has held on several occasions that a person may be convicted of both kidnapping and rape. See e.g., Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).
Nor do we conclude that the acts of the appellant constituted one continuous offense. Rape and kidnapping are separate offenses. While it is true that an offense such as rape necessarily contemplates restrictions on the victim’s liberty while the crime is being committed, it is clear that a rapist who employs more than the minimum restraint which necessarily or normally accompanies the crime of rape may also be convicted of kidnapping. Beed v. State, supra; Hickey v. State, 14 Ark. App. 50, 684 S.W.2d 830 (1985). See also Commentary to Ark. Code Ann. § 5-11-102 (1987) (formerly Ark. Stat. Ann. § 41-1702 (Repl. 1977)). In Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984), the court recognized that it is the quality and nature of the restraint, rather than the duration, that determines whether a kidnapping charge can be sustained, and that, where the restraint is substantial, no minimum length of restraint is required to effect a conviction of the charge. Where the action of the kidnapper substantially confines his victim in such a way that escape is made difficult or impossible, the fact that the restraint is of relatively brief duration does not necessarily remove it from the scope of our statute.
Here, there was evidence that the appellant got into the car, stated his felonious purpose, and threatened the girls on more than one occasion with death or serious physical injury if anyone attempted to escape before he had accomplished this purpose. There was evidence that he drove the vehicle down a secluded road for at least one mile before accomplishing the act for which the restraint had been imposed. As in Cook, the victim was forced to remain in the car by threats and was removed to an area where escape or detection was made more difficult. She was struck several times by the appellant with a wine bottle before she was raped. We cannot conclude that the nature or duration of the restraint imposed was not in excess of that normally incidental to the crime of rape.
We find no error and affirm.
Cooper and Jennings, JJ., agree. | [
112,
-22,
-23,
-68,
25,
65,
26,
56,
83,
-69,
-12,
-45,
-81,
-57,
5,
123,
-61,
-1,
117,
113,
-107,
-73,
7,
97,
-70,
-5,
57,
-59,
-78,
75,
-20,
-12,
8,
112,
-50,
81,
102,
74,
71,
-36,
-114,
1,
-104,
97,
80,
14,
100,
119,
64,
11,
33,
-114,
-61,
43,
24,
-53,
-55,
108,
75,
-67,
-24,
19,
-38,
-105,
77,
20,
-93,
36,
27,
33,
124,
52,
-100,
25,
0,
-8,
115,
-90,
-126,
116,
77,
-117,
-91,
96,
98,
32,
41,
-57,
-84,
-119,
63,
-66,
-115,
-89,
88,
97,
67,
13,
-66,
-43,
122,
20,
13,
-2,
-13,
-114,
113,
100,
-89,
-113,
-80,
-95,
-115,
109,
82,
-71,
-29,
39,
32,
117,
-51,
-30,
84,
85,
88,
-45,
-114,
-41
] |
Karen R. Baker, Judge.
Appellant, Raymond Baxley, appeals from a decree of divorce entered by the Garland County Circuit Court. Appellant has three arguments on appeal. First, he argues that the trial court’s determination that certain investment accounts were nonmarital was clearly erroneous. Second, he argues that the trial court’s determination that the investment accounts were subject to “vesting” was clearly erroneous. Third, appellant argues that the trial court’s decision to award appellee, Susan B. Baxley, the entire amount of the investment accounts controverts the factors set forth in Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 2002) and was clearly erroneous. We reverse and remand.
The parties were married on July 11, 1990. During their marriage, the parties lived in the home in which Ms. Baxley lived prior to the marriage. Ms. Baxley had worked as a registered nurse for twenty-six years and at the time of the marriage was employed full time at the local hospital. Prior to the marriage, Mr. Baxley worked for Antimite, a pest control company, and part time as a fishing guide. However, he was injured in an automobile accident in 1989 and did not work during the marriage. He was awarded social security disability in 1991. Prior to the marriage, Ms. Baxley had a 401 (k) Retirement Savings Plan, which contained $22,257.65. The plan was funded by her earnings and by matching funds from the hospital where she worked. The plan continued to be funded until Ms. Baxley suffered a stroke in October 2001. She was terminated by the hospital after her sick and leave time and her vacation time expired. Once she was terminated, her original account and an account containing $9,000, which was separated because it had already been taxed, was rolled over into an account at Edward Jones. At the time of the hearing, the accounts were valued at $231,437.48 and $9,275.07.
At the time of the divorce, the only issue in dispute was the division of the financial accounts. At the time of the divorce, Mr. Baxley was sixty-six, and Ms. Baxley was sixty. Ms. Baxley received social security and an additional disability check, which was scheduled to terminate after eighteen months. At the hearing, Ms. Baxley expressed her fear that her financial plan was going to be insufficient in the future. She testified that Mr. Baxley spent quite a bit of money during their marriage; thus, she feared that because she had suffered a stroke and could not work, the money that she accumulated in her retirement up to that point would not be sufficient to support her. Ms. Baxley testified that she could not withdraw from the investment account for two more years without incurring a penalty.
At the conclusion of the hearing, the trial court awarded both investment accounts to Ms. Baxley as her sole and separate property. From that decision, comes this appeal.
Although appellant argues that the trial judge referred to the investment accounts as nonmarital property in her oral ruling, the judge did not repeat that error in the written order. Pursuant to Administrative Order 2(b)(2) (2003), an oral order announced from the bench does not become effective until reduced to writing and filed. Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003). This rule eliminates or reduces disputes between litigants over what a trial court’s oral decision in open court entailed. Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000). Furthermore, the court’s enumeration of factors listed in Ark Code Ann. § 9-12-315(a)(l)(A)(i)-(ix) required for consideration before awarding an unequal distribution of marital property indicates that despite any misstatements from the bench, the court was treating the investment accounts as marital property. Similarly, the trial judge’s misstatement that the accounts would not vest for two years, although erroneous, see Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984) (holding that husband’s interest in retirement plan was “vested” because it could not be unilaterally terminated by the employer without also terminating the employment relationship), is not repeated in the written order. It appears from the context of the remark that the trial judge intended only to recognize that funds could not be withdrawn without penalty for two years.
Appellant’s third argument on appeal is that the trial court’s decision to award Ms. Baxley the entire amount of the investment accounts controverts the factors set forth in Ark. Code Ann. § 9-12 — 315(a)(1) (A) and was clearly erroneous. 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 (1/2) 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.
A trial judge has broad powers to distribute property in order to achieve an equitable distribution. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). The overriding purpose of the property-division statute is to enable the court to make a division of property that is fair and equitable under the circumstances. Id. With respect to the division of property in a divorce case, we review the trial judge’s findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999). A trial court’s finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Dial v. Dial, 74 Ark. App. 30, 44 S.W.3d 768 (2001). In reviewing a trial court’s findings, we defer to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Keathley, supra. We note that the statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. See Keathley, supra.
While some evidence may have supported an unequal division of marital property in this case, the trial judge failed to state reasons in the written order supporting the unequal division. The written order listed the factors to be considered such as length of marriage, the age and health of the parties, the amount and sources of income of the parties, the employability of the parties, the needs of each party, and the contribution of each party in the acquisition of the marital property; and concluded that “all of these factors weigh in favor of the Plaintiff.” However, the order failed to include findings explaining why the factors supported an unequal division of marital property. Ark. Code Ann. § 9-12-315(a)(1)(B); Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986) (holding that when a trial court makes an unequal division of marital property, it must state its reasons for doing so).
We note that the trial judge stated in her oral ruling that she was going to allow Ms. Baxley to keep the investment accounts as her sole and separate property because “they’re from her sole earnings.” Appellee argues that it is clear from this ruling that the most important factor was the contribution of each party in acquisition, preservation, or appreciation of the marital property and cites this court’s holding in Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982), for the proposition that only one factor need be given to support an unequal distribution.
While we agree that no specific number of factors need be given, we disagree that simply reciting the source of the funds equates to a proper consideration of the contribution of each party in the acquisition, preservation, or appreciation of marital property. Although Ms. Baxley’s earnings were the source of the funds in the investment account, the trial court’s order makes no findings as to the contribution of each party as contemplated by Ark. Code Ann. § 9-12-315(l)(A)(vii). (Emphasis added.) In fact, the order makes no finding at all concerning Mr. Baxley’s contribution, or lack thereof, and, consequently, there is no explanation as to why an equal division of the marital property was inequitable. In the absence of such an explanation, and in light of the presumption that marital property will be divided equally, we must reverse and remand for entry of an order that demonstrates proper consideration of the statutory factors. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988) (holding that the failure of the trial judge to explain why marital property was divided unequally between the parties required reversal and remand of award).
Hart and Vaught, JJ., agree.
These contributions may be non-monetary. See Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002) (one spouse’s contribution to the marital property through providing household services, rearing children, and attending to other spouse’s health needs was of equal value to the other spouse’s producing income through farm labor and contributed to the farm’s appreciation in value); cf. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001) (finding that there was no contribution to the martial property by the spouse in cleaning up after himself and taking care of the finances where his handling of the finances enabled him to defraud the other spouse by incurring debt in her name without her knowledge). | [
112,
108,
-108,
126,
26,
-32,
26,
14,
82,
-114,
35,
-45,
-21,
-22,
80,
107,
112,
11,
97,
96,
-41,
-77,
23,
32,
98,
-5,
-7,
-35,
-79,
77,
-28,
-42,
76,
40,
-54,
-43,
102,
-120,
69,
28,
-50,
-122,
-86,
108,
89,
-62,
52,
103,
0,
13,
49,
-98,
-15,
45,
53,
107,
76,
14,
91,
-71,
80,
-6,
-118,
5,
79,
5,
49,
36,
-104,
101,
88,
42,
-100,
57,
0,
-23,
58,
-90,
-106,
116,
111,
-69,
4,
96,
98,
-127,
33,
-49,
-112,
-120,
7,
-34,
-99,
-121,
-110,
89,
9,
75,
-66,
-68,
126,
92,
14,
-4,
110,
-44,
123,
108,
3,
-34,
-42,
-79,
-115,
84,
-100,
11,
-29,
-57,
18,
113,
-50,
-94,
92,
7,
123,
-69,
-9,
-74
] |
John B. Robbins, Judge.
Appellant Arkansas Oklahoma Gas Corporation (AOG) appeals the judgment of the Scott County Circuit Court awarding appellees Glenn and Ina Boggs $13,735 plus interest for their land in a condemnation case tried to a jury. AOG argues that the trial judge abused his discretion by refusing to strike the testimony of two witnesses on behalf of appellees regarding the value of the land. The two witnesses were Mr. Boggs and their expert, Mr. Powell. We find no abuse of discretion in allowing their testimony, and therefore, we affirm.
To explain more fully, Mr. and Mrs. Boggs own approximately 200 acres of land just north of Waldron, Arkansas, adjacent to and east of Highway 71. AOG sought to condemn a thirty-foot-wide permanent easement on the property for a gas pipeline and also a fifty-foot by fifty-foot easement for the purpose of erecting a metering substation. The total acreage to be taken totaled 1.33 acres, and it was located nearest the highway. AOG filed a complaint for this condemnation on July 7, 2000. Mr. and Mrs. Boggs answered the complaint and asked for a jury trial to establish their just compensation for the taking. All parties agreed that the approximately 180 acres farthest away from the highway were not materially affected by the taking. The litigation focused upon the just compensation for the 1.33 acres being taken, and severance damages to the remainder of appellees’ property.
Mr. Boggs testified that the highest and best use of his land prior to the taking was for development. Mr. Boggs said he purchased this particular 200-acre tract in 1989 for $100,000. Mr. Boggs said that he cleaned up the property, fertilized the land, and grew good grass. He said that there were three creeks on the property and that there were no drainage or flooding problems. The land was currently used to keep and graze cattle; there was a barn on it. Mr. Boggs believed that he could have sold his land to a developer, who could use the land close to the highway for residences or mini-farms. Mr. Boggs thought that the entire 200 acres was worth $200,000 without AOG on the land. Mr. Boggs stated that he had actually received calls from interested buyers pertaining to the land close to the highway. Mr. Boggs valued his acreage nearest the highway at $4000 per acre prior to the taking, such that just compensation for the 1.33 acres taken was $5320.
Mr. Boggs further stated that the 4.54 acres immediately outside the taking were decreased in value due to their proximity to the substation, which was marked with “no smoking” and “danger/warning” signs. Given the change on his land, Mr. Boggs believed that the land along the highway was now only useful as pasture, with a commensurate value of about $1000 per acre. This, according to Mr. Boggs, caused him to lose $13,620 of value with regard to that 4.54 acres. Therefore, Mr. Boggs believed that the total loss to his 200-acre parcel due to AOG’s taking was $18,940. Upon cross-examination by appellant’s counsel, Mr. Boggs declined to guess into how many small parcels the front land could be divided. Instead, Mr. Boggs answered that he would “sell the whole thing to a developer.” Mr. Boggs agreed with appellant’s counsel that each of the 200 acres was not worth $4000, but he maintained that the land close to the highway was more valuable for selling. Mr. Boggs then explained again that he would sell the whole 200 acres, and that the whole 200 acres was harmed to the extent of $18,940, which was about $5000 more than his expert believed the damage to be.
AOG’s counsel then moved to strike Mr. Boggs’ testimony on value because he was conjuring up a “mythical subdivision” for purposes of valuation instead of considering the whole tract of land. Appellees’ counsel responded that Mr. Boggs only talked in terms of dividing and plotting the front land in response to AOG’s counsel asking such questions. The judge took the motion under advisement, pending the expert testimony.
Appellees called Mr. Kenneth “Pete” Powell as an expert with twenty-seven years of experience selling real estate in Scott County. Powell worked as an appraiser, received a broker’s license in 1984, and had been involved in 700 to 800 real estate transactions since 1984. Powell opined that the Boggs’ land, like any land along Highway 71, was the most valuable land in the county. Powell said that the Boggs’ land was particularly valuable because it was north of Waldron, nearer to Fort Smith and Greenwood. Powell explained that this land was more valuable because a developer would not have to build his own roads and because advertising from the property would be visible on the well-traveled road. Powell had experience with persons interested in developing such land for residential and commercial use, and Powell himself had developed some property. Powell said he had received calls from persons in Fort Smith who were interested in residential land in that area, and Powell was aware that commercial use was existent just north of the Boggs’ land.
Powell opined that prior to the taking, the majority of the land to the “back” was worth around $600-$900 per acre, and the “front” 21.3 acres was worth $5000 per acre. Powell gave the entire 200 acres an approximate value of $200,000 before AOG entered onto the land. Powell stated that he reached these figures by comparing the only recent local sales he could find along Highway 71 of two smaller tracts: one eight-acre parcel closer to town and used for commercial purposes sold for $8000 per acre, and one twenty-acre parcel farther from town with open field and scrub timber sold for $2500 per acre. After the taking, Powell opined that the Boggs’ twenty acres surrounding the taken land was harmed about seven percent, or $350 per acre. Powell justified this reduction in value because he noted that a lot of residential buyers are fearful of gas lines, particularly where warning signs are erected that say “no smoking” or “danger.” Adding these figures, plus an $85 rental fee for temporary occupation by AOG, Powell assessed the just compensation for the taking at a total of $13,735.
AOG’s counsel moved to strike Powell’s testimony regarding the small eight-acre commercial tract because it was not a comparable property, and he moved to strike Powell’s testimony regarding actual taking and severance damages because Powell’s opinion was “based upon chopping it up and mythical subdivision.”
Out of the presence of the jury, the judge took up the motions to strike that had been held in abeyance. AOG cited to Arkansas Louisiana Gas Co. v. Cates, 10 Ark. App. 426, 664 S.W.2d 897 (1984), in support of its position that both witnesses had improperly used an imaginary subdivision to increase the money to justly compensate Mr. and Mrs. Boggs. The judge agreed with AOG that it was improper for a landowner to speculate what a subdivision might bring and that the law required contemplation of the whole property for valuation purposes. However, the judge found that the testimony of both Mr. Boggs and Mr. Powell considered the total value, before and after the taking, both opining that the 200 acres were worth $200,000 before but presently at or around $180,000. The judge found that there was no “after development testimony” in this case that would justify striking either opinion. The judge specifically found that this scenario did not come within the parameters of the Cates decision.
The judge also denied AOG’s motion to strike the testimony of Mr. Powell regarding the eight-acre commercial property used as a comparable sale. The judge found that this particular sale was recognized as a commercial sale, that Powell explained that such uses bring a higher price per acre, and that there was testimony to support that the Boggs’ property had some commercial value. For these reasons, he declined to remove this evidence from the jury’s consideration.
AOG presented the testimony of Don Burris, a certified general appraiser with Burris Appraisal Company, who stated that the highest and best use of the Boggs’ land was pasture. Burris described the land as vacant pasture land, unzoned and outside the city limits, near or intersected by Packsaddle Creek. Burris opined that though there were a variety of uses possible for this large parcel, both residential and commercial, the most logical was pasture or farming. Burris believed that a three-mile radius demonstrated no intensive commercial or residential development, and none was anticipated, based upon observation. Therefore, Burris declined to assess a severance damage at all. However, for the actual 1.33 acres taken, Burris opined that the land was valued at $1663. Burris stated the overall value of the 200 acres at $190,000.
Burris explained that he took ten sales in the area over the past four or five years and averaged the price per acre. The prices per acre in his sample ranged from $475 - $1073, averaging out to be $805 per acre. Burris made adjustments to these averages based upon the general principle that prices per acre go down with bulk purchase, and Burris made adjustments based upon time of purchase and location of property. These adjustments increased the average per-acre price to $933 per acre. Burris noted that none of the comparable sales he used had similar highway frontage. Therefore, Burris gave a final appraised value of the whole parcel at $950 per acre based upon the entire 200 acres. However, given that only the “frontage” was being taken, and given that such frontage should command a higher price, he gave a subjective estimate that the front acres were valued at $1250 per acre as pasture land, for a total just compensation of $1663 plus a $52 rental value for work space. Mr. Burris testified that he considered the whole tract when coming to his figures, but he explained that:
There is technique and I understand case law that says the location of the easement within the whole tract matters. ... It happens to be on the frontage so obviously that’s — that requires some adjustment for its location within the tract. There’s no empirical data, by that I mean there’s no hard and fast data that I can analyze]]] ... The frontage is worth this more, the middle is worth about the average, and the rear is worth less. So you’re just going to have to rely on some logic and some common sense. ... I adjusted upward a 1/3, a little more than a 1/3 to $1250 an acre for that property near the front.
AOG renewed its motion to strike the testimony of both valuation witnesses on behalf of appellees, asserting this as a basis for a directed verdict on AOG’s behalf. The motion was denied. The jury deliberated upon the evidence, returning a verdict assessing the Boggs’ damages at $13,735. The judge entered an order reflecting that amount and granting pre-judgment interest at six-percent on that amount. This appeal followed. The issue in this case is whether the trial judge abused his discretion in permitting the testimony.
We begin with the established law in Arkansas on this topic. One approach to determination of just compensation is a formula consisting basically of two elements: (1) value of the lands taken, and (2) damage resulting to the remainder of the tract, usually referred to as severance damages. See Ozark Gas Transmission Sys. v. McCormick, 10 Ark. App. 210, 662 S.W.2d 210 (1984). The testimony should be first .directed to the value of the lands taken and then to the damage resulting to the remainder of the tract. See id; see also Ark. State Hwy. Comm’n v. McAlister, 247 Ark. 757, 447 S.W.2d 649 (1969). We do not require testimony to be given in exact mechanical fashion. See Ark. State Hwy. Comm’n v. Lee Wilson and Co., Inc., 43 Ark. App. 22, 858 S.W.2d 137 (1993).
A landowner is generally held to be qualified to express his opinion about the value of his property. Ark. State Hwy. Comm’n v. Metz, 252 Ark. 1195, 482 S.W.2d 802 (1972). A landowner is entitled to show every advantage that his property possesses, present and prospective, to have his witnesses state any and every fact concerning the property that he would naturally adduce in order to place it in an advantageous light if he were selling to a private individual, and to show the availability of this property for any and all purposes for which it is plainly adopted or for which it is likely to have value and induce purchases. Ark. State Hwy. Comm’n v. First Pyramid Life Ins. Co. of Am., 269 Ark. 278, 602 S.W.2d 609 (1980); see also Ark. State Hwy. Comm’n v. Julian Martin, Inc., 16 Ark. App. 288, 701 S.W.2d 389 (1985). The latitude allowed the parties in bringing out collateral and cumulative facts to support value estimates made by witnesses is left largely to the discretion of the trial judge. Garner v. Ark. State Hwy. Comm’n, 5 Ark. App. 134, 633 S.W.2d 710 (1982).
While it is proper for a landowner to show that his property is suitable for division into lots and that it is valuable for that purpose, it is not proper to show the number and value of such lots. Ark. La. Gas Co. v. Cates, supra. The measure of compensation is the market value of the land as a whole, taking into consideration its value for building purposes if that is its most available use. See also Ark. State Hwy. Comm’n v. Allen, 253 Ark. 46, 484 S.W.2d 331 (1972); Ark. State Hwy. Comm’n v. Schmoll, 248 Ark. 52, 449 S.W.2d 938 (1970). In other words, it is permissible for the landowner to testify what the highest and best use of the property is, but it is not proper for the landowner to show the number and value of such lots when such a sale or subdivision was not in progress at the time of the taking of the property. See Ark. La. Gas Co. v. Cates, supra. It is well settled that a motion to strike the entire testimony of a witness is properly denied where any part of that testimony is admissible. Ark. La. Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985).
As to Mr. Boggs’ opinion of what his land was worth, we see no abuse of discretion in permitting his testimony. Isolated or “loaded questions” about what land is personally worth to a landowner, in an attempt to demonstrate that a landowner is speculating value, will not render the testimony inadmissible. See Ark. State Hwy. Comm’n v. Bowman, 253 Ark. 890, 490 S.W.2d 112 (1973). Particularly instructive is the case of Ark. State Hwy. Comm’n v. Steen, 253 Ark. 908, 914-15, 489 S.W.2d 781, 784-85 (1973), where the late Justice Fogleman wrote for the supreme court:
Considerable latitude of discretion has been allowed in admitting a landowner’s opinion of the value of his property when he possesses a high degree of familiarity with the property. When the landowner has sufficient knowledge and familiarity his opinion is to be stricken when it is unrelated to any fact in the record and is apparently plucked from the air and without any fair and reasonable basis. Where, however, the landowner is intimately acquainted with the land and conditions pertaining thereto and its highest and best use, his testimony is not to be stricken simply because it is not based upon comparable sales, or solely because of the owner’s lack of knowledge of property values. (Citations omitted.)
In that case, our supreme court affirmed the trial court’s refusal to strike the testimony of one of the landowners, Mrs. Steen, regarding the condemned land’s value. Though there were no comparable real estate sales in the area upon which to opine a more exact value, Mrs. Steen was very familiar with the land and countryside, she was born and raised in that county, she had owned the land at issue for more than twenty years, she had knowledge of other land sales while traveling, and she had operated a restaurant in the area and had many inquiries about her property. Similarly, Mr. Boggs was well-familiar with his land, he had owned this piece of land for many years, he had knowledge of other land sales in the area, he had inquiries regarding this land, and he explained that he considered the entirety of the tract in coming to his final valuation of the taking. We cannot say that the trial court abused its considerable discretion regarding Mr. Boggs’ opinion of the overall reduction in value of his parcel or of the value of the 1.33 acres taken from him.
As to Mr. Powell’s testimony, we likewise affirm the trial court. Though there was extensive questioning of this witness regarding the decrease in value of the land along the highway where the substation and lines were installed, the final figures were explained to be in terms of a whole-parcel valuation. Appellees correctly state that AOG’s counsel brought more attention to the idea of subdivision, and the trial court was correct to deny striking testimony largely brought out in cross-examination.
More importantly, as we review the testimony, the real dispute centered on what the highest and best use was; not the method of appraisal. AOG’s expert witness, Mr. Burris, increased the per-acre valuation of the property where it was situated nearer the highway. AOG points this out in its brief where it says, “Mr. Burris appraised the whole 200-acre tract. He found that the taking was the more desirable part of the tract and he assigned more than average value to it.” All parties thus proceeded on the same theory. The per-acre differential resulted from Mr. Burris’ belief that the land was solely useful as pasture land. Mr. Boggs and his expert believed that the highest and best use was a mix of residential and/or commercial use. All parties agreed that the most remote areas were best suited to pasture. The testimony offered by both parties is within permissible limits of Arkansas law and is similar to the set of facts we affirmed in Ark. State Hwy. Comm’n v. Lee Wilson and Co., Inc., supra.
AOG also contests the trial judge’s ruling regarding Mr. Powell on the basis that Powell relied on sales that were not comparable. We disagree. There can be no fixed definition of similarity or comparability. Ark. State Hwy. Comm’n v. Witkowski, 236 Ark. 66, 364 S.W.2d 309 (1963). Similarity does not mean identical, however it does require some reasonable resemblance. Seeid. (citing the treatise Nichols, Eminent Domain, Vol. 5, § 21.31, p. 439). There are certain criteria of similarity that can be utilized to establish a reasonable resemblance. Important factors of similarity to be considered are location, size and sale price; conditions surrounding the sale of the property, such as the date and character of the sale; business and residential advantages or disadvantages; unimproved, improved or developed land. See id. No general rule can be laid down regarding the degree of similarity that must exist to make such evidence admissible. Ark. State Hwy. Comm’n v. Oakdale Dev. Corp., 1 Ark. App. 286, 614 S.W.2d 693 (1981). It must necessarily vary with the circumstances of each particular case. Id. Whether the properties are sufficiently similar to have some bearing on the value under consideration, and to be of any aid to the jury, must necessarily rest largely in the sound discretion of the trial court which will not be interfered with unless abused. Ark. State Hwy. Comm’n v. N.W.A. Realty Corp., 262 Ark. 440, 557 S.W.2d 620 (1977); Baker v. City of Little Rock, 247 Ark. 518, 446 S.W.2d 253 (1969).
In this case, specifically with regard to the eight-acre commercial sale, the trial judge exercised his considerable discretion in deciding that there was some proof upon which to find that the Boggs property held some commercial value, Mr. Powell explained that commercial land as well as smaller parcels brought a higher price per acre, and Mr. Powell felt compelled to use the only contemporary sales in the area that existed along Highway 71. Mr. Powell used another contemporary sale in the vicinity of the highway that was not improved to the status of the Boggs property with scrub trees. Mr. Powell made adjustments for the size and the character of the property in arriving at a fair market value, somewhere slightly more than mid-way between fair market value of these sales. Mr. Powell was unaware of any sale of land at or near 200 acres in the area at that time. The factors bearing on similarity were their proximity to the desirable location along the highway and the time of sale.
Just because an expert witness uses a smaller tract in conjunction with an appraisal of a larger tract, that does not, as a matter of law, show that the witness had no reasonable basis for his opinion as to the fair or market value of the property condemned. See Ark. State Hwy. Comm’n v. Ward, 265 Ark. 578, 579 S.W.2d 603 (1979); Ark. State Hwy. Comm’n v. Basin Dev. Corp., 264 Ark. 253, 571 S.W.2d 578 (1978); Ark. State Hwy. Comm’n v. Roetzel, 271 Ark. 278, 608 S.W.2d 38 (Ark. App. 1980). When opinion testimony as to real estate values is based only on comparable sales, it should be stricken for want of a reasonable basis when it is shown that no sale considered by the witness was of land comparable to that involved in the trial. Ark. State Hwy. Comm’n v. First Pyramid Life Ins. Co., 269 Ark. 278, 602 S.W.2d 609 (1980); Ark. State Hwy. Comm’n v. Roberts, 246 Ark. 1216, 441 S.W.2d 808 (1969). Although the two comparable sales relied on by Mr. Powell involved significantly smaller tracts than appellees’ 200 acres, their selling prices were used by Mr. Powell solely in adjusting the value of the 20 acres that bordered the highway. All of the witnesses opined that the frontage property had a greater value than the property more remote from the highway. On these particular facts, we cannot say that the trial court abused its discretion in refusing to strike Powell’s testimony.
Affirmed.
Neal and Crabtree, JJ., agree. | [
113,
106,
-15,
-4,
-88,
-32,
56,
-104,
87,
-93,
-11,
83,
-83,
-37,
20,
123,
-29,
25,
-27,
104,
87,
-77,
37,
99,
86,
-13,
59,
-59,
112,
79,
-12,
-41,
76,
0,
-54,
85,
-58,
-62,
-27,
-40,
-50,
6,
-117,
120,
-55,
64,
48,
43,
20,
15,
53,
-83,
-13,
45,
49,
107,
109,
44,
91,
45,
65,
122,
-72,
5,
79,
1,
17,
38,
-102,
1,
-54,
106,
-112,
49,
-120,
-8,
115,
34,
22,
117,
9,
-101,
44,
60,
102,
1,
61,
-17,
-32,
-56,
15,
-66,
-115,
-89,
-64,
24,
75,
11,
-106,
-108,
88,
18,
70,
-2,
-18,
4,
94,
104,
5,
-50,
-108,
-31,
-121,
-52,
-112,
19,
-21,
-89,
48,
69,
-51,
-30,
93,
-49,
114,
-97,
14,
-79
] |
John B. Robbins, Judge.
Appellant Marvin Jefferson appeals his convictions for attempted second-degree murder and aggravated robbery after a jury trial in Monroe County Circuit Court. Appellant was initially charged with attempted capital murder and aggravated robbery, as were co-defendants Ronald Foster and Tyrell Starr. Appellant argues that the trial court erred (1) in denying his motions for directed verdict, and (2) by admitting into evidence the statement of co-defendant Starr in violation of his Sixth Amendment right to confront witnesses against him. While we hold that the trial court did not err in denying the motions for directed verdict, we hold that error occurred in the admission of the co-defendant’s statement. We reverse and remand for a new trial.
The events leading to charges came about on the afternoon of March 20, 2002, in Holly Grove, Arkansas. A bank’s mail carrier, Mr. Rawls, was driving the bank van on a highway behind a Cadillac that bore no license plate. Mr. Rawls explained that the car’s left turn signal was engaged, the car slowed to a stop, and that he stopped the van behind it in order not to hit the car. The Cadillac carried three persons. The front seat passenger in the Cadillac, wearing a ski mask, exited the car and shot at the van windshield four times. The shooter approached the passenger side of the van and demanded Rawls to “[g]ive me your money,” threatening to kill Rawls. The shooter took a bank bag, threw it to the ground, and ordered the Cadillac’s back seat passenger to retrieve it. The driver never exited the car. The two passengers re-entered the Cadillac and drove away. Rawls said neither the shooter nor the other passenger was wearing orange. Rawls was unable to see the driver except from his shoulders up, viewing the driver sitting in the driver’s seat.
A man living near the location of the robbery, Marvin Ensley, said that he went to the area right after the incident because he heard it on the police scanner and said that he saw a black man wearing orange overalls walking along side the woods. Another man, Hal Bones, reported that he also discovered such a man walking, and said that he gave the man a ride. Bones reported that the man said he had been hunting but had lost his gun in the water. After Bones asked if he wanted to look for the gun, the man said he did not. A ski mask was located by police about a half mile from the crime scene. DNA testing of the saliva in the mask confirmed that it was worn by Foster.
Appellant was ultimately brought in for an interview with the police. In his statement that he gave the police, he said he was in the car but did not know that either of the other two in the car had a gun or intended to rob anyone. Appellant claimed to be wearing bright orange at the time. Appellant denied driving the car and said that the shooting and robbery took place without any forewarning to him. Appellant said that, after the crimes, Foster went through the bank bag and began to discard items from the car. Appellant said that he exited the car and left them when they stopped the car. Appellant said he was just in the wrong place at the wrong time.
Both Foster and Starr gave handwritten statements to police. Starr implicated both appellant and Foster by name. Starr said that he allowed appellant to drive his car that day and that appellant stopped the Cadillac in the roadway. Starr reported that Foster was in the front passenger seat, put on the ski mask, and shot at the van. Starr claimed that appellant assisted Foster. Starr said that after the crime, he moved to the driver’s seat to drive away, that appellant and Foster “jumped in” the car, and that Foster disposed of the bank bag and pieces of the gun.
Starr and appellant were tried together. Foster entered a guilty plea. Appellant moved in limine to prevent the use of Starr’s statement, citing to Bruton v. United States, 391 U.S. 123 (1968), and Gray v. Maryland, 523 U.S. 185 (1998), and arguing that his Confrontation Rights would be violated by use of Starr’s statement without the benefit of his testifying. The State retyped Starr’s handwritten statement, changing both Foster’s and appellant’s names to “he,” “they,” or “some other guy,” attempting to comply with the dictates of Bruton, supra, and Gray, supra. Appellant’s counsel argued that even with the changes to pronouns, the inference was prejudicial by indirectly referring to appellant. The State offered to put Foster’s name back into the statement where Foster was incriminated to avoid any confusion between Foster and appellant; the defense accepted that offer. However, defense counsel asserted that the statement was still violative of his rights of confrontation. The trial judge allowed the State to use Starr’s modified statement, finding that the State’s corrections complied with the Bruton and Gray cases.
At trial, Mr. Rawls testified as outlined above, and a State Police Investigator recounted his investigation of the crimes and read into evidence appellant’s statement and the modified version of co-defendant Starr’s statement. At the close of the State’s presentation, defense counsel moved for directed verdict, admitting that appellant was present, though not necessarily the driver, but arguing that the State failed to prove that he had the premeditation or deliberation necessary for attempted capital murder or knowledge that any such offense was about to take place. As to aggravated robbery, appellant argued that it was clear that Foster was the ski-masked shooter, appellant did not do the crime, and there was no proof that he had knowledge that a robbery was about to take place. The motions were denied.
The jury deliberated, finding appellant guilty of attempted second-degree murder and aggravated robbery. This appeal resulted. We now take up the issues presented for reversal.
First, as to his argument that his motion for directed verdict should have been granted, we do not address the attempted second-degree murder conviction. Appellant moved the trial court to direct a verdict solely on the greater offense of attempted capital murder. A defendant, in making his motions for directed verdict, must anticipate an instruction on lesser-included offenses and specifically address the elements of that lesser-included offense on which he wishes to challenge the State’s proof in his motion. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003); Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001) (concluding that a challenge to the sufficiency of the evidence to support a first-degree murder conviction was prócedurally barred; Haynes was charged with capital murder and failed to move specifically for directed verdict on the lesser-included offense of first-degree murder); Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).
Second, we consider his challenge to the sufficiency of the evidence to support his aggravated robbery conviction. Appellant argued that there was no proof of his actual participation and further that there was no proof that he had any knowledge of the plan to commit this crime such that accomplice liability should not attach. We disagree. Appellant admitted his presence when the crimes occurred. Other witnesses confirmed the presence of a man matching appellant’s description in the area shortly after the approximate time of the crimes. The question revolves around the sufficiency of the State’s proof of his knowledge and intent.
Arkansas Code Annotated section 5-2-403(a) (Repl. 1993) provides that a person is an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in the commission of the offense. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Under the accomplice liability statute, a defendant may properly be found guilty not only for his own conduct, but also for the conduct of his accomplice. Id. In a case based upon circumstantial evidence, relevant circumstances include the presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation, and possession of instruments used in the commission of the offense. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
Given the statement of Starr implicating appellant as an active participant in the crimes, the jury was the proper body to determine what the circumstances revealed. In a sufficiency-of-the-evidence query, we examine all of the evidence including evidence allegedly admitted erroneously, and review the evidence in the light most favorable to the State. See Cook v. State, 77 Ark. App. 20, 73 S.W.3d 1 (2002); Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998). Moreover, appellant’s admitted presence and flight from the scene was for the jury to consider, even though he denied any criminal knowledge or intent. Intent can rarely be proved by direct evidence, but may be inferred from the circumstances of the crime, and jurors may draw upon common knowledge and experience to infer intent. See Smith v. State, 65 Ark. App. 216, 986 S.W.2d 137 (1999). The trial court did not err in denying the motion for directed verdict on aggravated robbery; it was a fact question properly left to the jury to resolve.
Appellant’s second point on appeal concerns the trial court’s admission of co-defendant Starr’s statement to police, because of which appellant claims constitutional error. The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” This guarantee, extended against the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400 (1965).
In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that a defendant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment is denied by the admission of incriminating statements made by a nontestifying co-defendant. See also Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001). This concept is reflected in Rule 22.3 of the Arkansas Rules of Criminal Procedure, where it provides that in the context of a request for severance of trials due to a co-defendant’s statement, the trial court shall require the prosecuting attorney to elect one of the following courses: (i) a joint trial at which the statement is not admitted into evidence; (ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or (iii) severance of the moving defendant.
In Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court held that admission of a nontestifying co-defendant’s confession does not violate the defendant’s rights under the Confrontation Clause if the trial court instructs the jury not to use the confession in any way against the complaining defendant, and the confession is redacted to eliminate not only the defendant’s name but also any reference to the defendant’s existence. This idea was further explained in Gray v. Maryland, 523 U.S. 185 (1998), where the Supreme Court held that, where a written confession was redacted by replacing specific references to the other defendant by means of a blank space or the word “deleted” or “deletion,” the statement continued to refer to someone and, in that case, obviously the other defendant.
However, in United States v. Edwards, 159 F.3d 1117 (8th Cir. 1998), our federal circuit court held that, unlike the deletions or blank spaces noted in Gray, it was permissible to use pronouns such as “we,” “they,” or indefinite words like “someone” because these words do not draw attention to the redaction, and in most situations will not be incriminating unless linked to a co-defendant by other trial evidence. The Edwards court explained that this method of redaction was proper in that case because the evidence referred to a large number of people from the neighborhood who were relevant to the case, and the redactions also referred to nondefendants, sufficiently weakening the information to be gleaned from the redacted statement. See id. at 1126. Because the administration of justice is often served well by joint trials, the Edwards decision noted that it is important to adopt workable redaction standards. See Richardson, supra; Edwards, supra.
To examine the merits of this argument, the contents of the statements must be more throughly reviewed. Starr’s statement, as edited, revealed that Ronald Foster came to his house asking for a ride, that they encountered another male, that this other guy drove and Starr got in the back seat, and that the guy driving stopped the car in the highway blocking the van. Starr then said that both Foster and the other guy got out of the car, that shooting started, that Starr quickly got into the driver’s seat and took off, that they came back and jumped on the car and he stopped to let them in. Starr said he hurriedly drove the car away with Foster and the other guy, that Foster discarded items out of the window including a bank bag and pieces of the gun, that they became stuck in the mud, that Foster and the other guy wanted to burn up Starr’s car, but then the other guy left them by walking back to town.
Appellant’s statement was presented to the jury, and in it, appellant said that a male (called “he” and placed there to protect co-defendant Starr) and Foster approached appellant, that they were all in the car, that “they” stopped the car and committed the crimes, that the other guy was driving, and that appellant jumped out of the car as soon as he could and headed for town. Appellant said he wore bright orange that day. Appellant denied any involvement.
Appellant’s contention on appeal is that even changing his name to a pronoun does not accomplish the directives of the United States Supreme Court. He argues that it was obvious that these references were indirect or veiled references to appellant and substantiated his existence and identity in the highly incriminating statement of Starr. We agree.
The State argues that if it was error to admit Starr’s statement, then any error was rendered harmless because appellant admitted to being present in the car that day and that all the occupants actively participated in the crimes. We cannot accept the State’s argument. Appellant admitted to being there and wearing orange, and the victim’s testimony indicated that neither the shooter (Foster) nor the other person taking the money bag wore orange. His mere presence does not prove his knowledge or intent. The mere presence of a person at the scene of a crime is not proof of his guilt. Green v. State, 265 Ark. 179, 577 S.W.2d 586 (1979). The only evidence directly linking appellant to being the gunman’s aide was that found in Starr’s statement, in which he referred to the other guy getting out and assisting in the robbery after shots were fired. To conclude that a constitutional error is harmless and does not mandate reversal, this court must conclude beyond a reasonable doubt that the error did not contribute to the verdict. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995); Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992); Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992); see also Chapman v. California, 386 U.S. 18 (1967). We cannot come to such a conclusion.
Reversed and remanded.
Stroud, C.J., and Gladwin, J., agree. | [
112,
-20,
-31,
30,
58,
-64,
50,
26,
84,
-94,
100,
-109,
-85,
-49,
69,
57,
109,
91,
117,
113,
-67,
-73,
103,
97,
-13,
51,
91,
-57,
-78,
-53,
-20,
-3,
28,
112,
-54,
-47,
102,
74,
-27,
92,
-50,
-125,
-71,
114,
-109,
66,
32,
42,
76,
7,
97,
-100,
-29,
42,
26,
-54,
73,
44,
91,
-67,
-46,
57,
-38,
13,
-49,
37,
-93,
34,
-101,
35,
90,
24,
-100,
49,
0,
-8,
114,
-90,
-128,
84,
109,
-117,
44,
98,
98,
0,
25,
-52,
-67,
-119,
39,
-2,
-97,
-121,
24,
33,
65,
36,
23,
-97,
122,
53,
14,
124,
124,
92,
89,
108,
7,
-34,
-76,
-111,
-19,
56,
22,
-6,
-5,
-27,
48,
116,
-50,
-62,
85,
69,
83,
-37,
-102,
-107
] |
John F. Stroud ,Jr., Chief Judge.
Appellant, Kirby Arbaugh, sustained a compensable injury on June 2,2000, when he was shocked with 440 volts of electricity. This injury occurred when one of Arbaugh’s co-workers, John Hicks, was instructed to repair an electrical cord on a feed-bag line although he told his supervisor that he did not know how to do it. Hicks was told to repair the plug on the cord anyway until he got it right. As a result of the improper wiring by Hicks, Arbaugh was shocked when he attempted to turn on the electrical switch to the feed-bag line.
Appellant contended at the hearing held before the ALJ that as a result of the electrical shock, he suffered both a psychological injury and an organic-brain injury. Appellees, AG Processing, Inc., and Specialty Risk Services, claimed that appellant’s problems were psychological and that they preexisted the injury. The ALJ found that appellant failed to prove by a preponderance of the evidence that his cognitive dysfunction and psychological problems were causally related to the June 2, 2000 incident; that he failed to prove that his cognitive dysfunction and psychological problems arose out of and in the course of his employment; that he failed to establish by a preponderance of the evidence the elements necessary to prove a compensable organic-brain injury; and that he failed to establish by a preponderance of the evidence the elements necessary to prove a compensable psychological injury. The Commission affirmed and adopted the ALJ’s opinion. Appellant now appeals to this court, arguing that there is no substantial evidence that his mental condition was not a result of the admitted 440-volt electrical shock. We affirm the denial of benefits.
Our standard of review in workers’ compensation cases is well-settled. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). 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. Geo Specialty, supra. It is the Commission’s function to determine the credibility of witnesses and the weight to be accorded to each witness’s testimony. Watson v. Tayco, Inc., 79 Ark. App. 250, 86 S.W.3d 18 (2002).
At the hearing before the ALJ, John Hicks testified that after Arbaugh received the electrical shock he fell “on his can” in front of the line, and he thought Arbaugh was having a heart attack. He said that Arbaugh was so dazed that no one could communicate with him until they got him outside. Hicks described Arbaugh’s condition as “his lights were on but he wasn’t home,” and said that when Arbaugh came back to work after the accident, he was just not himself.
John Wilson, another of Arbaugh’s co-workers, testified that when Arbaugh pressed the button to reset the electrical switch, he saw a “big blue light” and then Arbaugh quickly fell back about five yards. He said that Arbaugh was not coherent for several minutes after the accident, and that there was a “definite difference” in Arbaugh after the accident, such as his motor skills were not the same, and that he walked, talked, and carried things more slowly.
Karen Arbaugh, appellant’s mother, testified that before the accident, Arbaugh was “jolly” and was able to carry on a conversation without losing his train of thought. She acknowledged that prior to the accident, Arbaugh was using methamphetamines and was on the drug Paxil for depression, and that there were documented reports of alcohol abuse and his use of crank and marijuana; however, she said that he had been to rehabilitation for treatment and was, to her knowledge, no longer taking illegal drugs. She said that Arbaugh told her in the mid 1990s that he had been suicidal over the years, and she knew that he had attempted suicide in the past. She also knew that he had been battling depression since he was twelve or thirteen, when his grandfather passed away. She was aware that her son had behavioral problems in school and had not done well in his classes, but she denied knowing of any short-term or long-term memory problems, panic attacks, or hallucinations prior to the accident.
Ms. Arbaugh said that after her son was shocked, he would lose his train of thought and just sit there with a blank look. She worried because he was not getting any care from the company doctor for what she classified as seizures, where his eyes rolled back and most of his body was jerking. She said that after the accident, Arbaugh had a mark on one side of his face that looked like a burn and other marks on his arms that looked like bruises, but she did not know if those marks were caused by the electrical shock or by his subsequent fall. In his opinion, the ALJ held that, due to her awareness of Arbaugh’s prior history of serious psychological and substance-abuse problems, the weight to be given his mother’s testimony was severely diminished when considering her testimony regarding the difference in Arbaugh’s behavior after the work-related incident.
Arbaugh’s wife, Alona, testified that he had used drugs prior to the accident, but that he had undergone rehabilitation and was doing well. She said that when she arrived at the doctor’s office after the incident, her husband was whiter than she had ever seen him, he was shaking, and it took him a long time to answer her questions. She said that the company doctor, Dr. Leslie, told her that everything looked all right, that “electricity would either kill you or you would be okay.” He told Alona that Arbaugh could return to work on Monday, which was only three days later.
Alona said that before the accident, Arbaugh was just “normal,” but that he changed after the accident. She said that he could not stand for their two children to be in the room with him because their voices would make him “hit the floor.” When he told her that he felt like his Paxil had stopped working, Alona took him to their family doctor, who increased his dosage of Paxil. She said that they had heen to other doctors and that Arbaugh had done everything that he could to improve, but she did not know if there was much else that could be done. She said that one doctor told them that the recovery period was twelve to eighteen months, and that most of the brain recovery that could occur would happen within that time frame. Alona said that things had “leveled out,” but that it had been a “roller coaster,” with Arbaugh improving and then backsliding.
Alona described Arbaugh’s seizures as “bad.” She said that he had the first seizure about one month after the shock, and that the left side of his face went numb, his eyes rolled back in his head, and he started shaking and twitching. She said that the seizures would render him unconscious, and that when he would regain consciousness, he could not move for a long time. She said that the seizures are now “pretty well controlled” with Dilantin, but that he had never had seizures prior to the electrical shock. She also stated that Dr. John Towbin concluded that something was present on an EEG and that he had wanted to do further testing, but that Arbaugh “couldn’t stand” to stay in the hospital, so no further testing was performed.
Arbuagh testified that on the day of the accident, he reached to turn on the line, felt a pull, saw a “blue light run up [his] arm,” and then he fell to the floor. He attempted to return to work after the accident for about one week, but he could tell that something was not right. He felt like his Paxil had quit working, he was angry, and he did not feel right. He was placed on Ativan, and he then checked into Charter Hospital.
Arbaugh said that he received a lot of therapy after the accident. He also said that he had seizures after the accident, but that he had not had any for a while. However, he claimed that he still had symptoms from the electrical shock, including anxiety, depression, and slower thinking. He said that he had seen Dr. Vann Smith, Dr. Betty Back, and Dr. Morse, and he tried to do what they told him to get better. He said that he has taken Clonovin, Vistaril, Ambien, Paxil, Neurontin, and Dilantin, but that he was currently only taking Effexor for depression.
Arbaugh acknowledged that he had previously been treated at Charter Hospital in 1997, at which time he realized that he had been depressed since his grandfather’s death. He said that he had been on Prozac, but that the doctors at Charter placed him on Paxil instead. In 1996 and 1997, he had “serious problems” with methamphetamines, which led to suicide attempts. He also recounted two closed-head injuries he had sustained in the past, one at sixteen and another at twenty-one. He stated during the hearing that he had memory problems prior to the accident, although during his deposition he had denied any previous memory problems, and he acknowledged anxiety and panic attacks over the years. During the hearing, Arbaugh said that he had bruises on his back from when he fell after the accident and red lines on the back of his hand, but he had denied during his deposition that he had any bruises or scratches after the accident.
All of the medical testimony was by deposition. Dr. John Towbin, a seizure-disorder specialist, said that Arbaugh was referred to him because he was having “seizure-like events.” Ar-baugh described the seizures to Towbin as beginning with a sudden feeling of fatigue, followed by numbness in the left side of his face, particularly in his forehead. From there, a “pins and needles” feeling would spread across his face and eventually down his entire left side. Towbin opined that most of Arbaugh’s symptoms were relatively unlikely as a manifestation of a seizure, as fatigue would be common after a seizure, not at the beginning, and because seizures do not cause negative symptoms, such as loss of some function; rather they usually cause positive symptoms, mak ing something move rather than stop moving. Towbin also said that most seizures are abrupt in their onset and offset and usually only last seconds or minutes.
Towbin said that he could not disprove someone having an electrical shock from a physical exam; however, he noted that on October 16, 2000, an EEG indicated that Arbaugh had a mild amount of slowing throughout all of the electrodes in the areas represented over the surface of the brain. Towbin said that Arbaugh had an event while he was recording the baseline EEG, and that throughout the episode, the EEG remained essentially unchanged; he interpreted this to mean that the electrical data was not consistent with an epileptic or seizure etiology. He said that after a seizure, there is typically a marked slowing of the brainwaves, and this slowing was not present after Arbaugh’s event. For this reason, Towbin concluded that the spells Arbaugh was suffering from were non-epileptic and were a non-physiologic event.
Instead, Towbin opined that Arbaugh was having psychiatric events, stating that it was not uncommon for patients to have a precipitating event that might be a “hallmark” around which symptoms either develop or worsen; however, he stated that not being a psychiatrist, he did not know how to interpret the onset of the symptoms or whether to ascribe them to traumatic factors or to other life experiences. He disagreed with the company doctor’s statement to Arbaugh that “electricity either kills you or you are going to be okay.” Towbin did say that while it was possible to have a seizure disorder as a result of electrical injury, he thought that it would be hard to have such an injury that was substantial enough to result in cortical injury that caused seizures without that electrical injury doing other physical damage, such as burns in the skin, spinal cord sequelae, cardiac sequelae, or other brain-related phenomena. However, Towbin did not believe that an EEG was a particularly sensitive way to assess neuropsychological issues.
In his deposition, Dr. Gary Souheaver, a clinical neuropsy-chologist, stated that he had reviewed Arbaugh’s records from 1997 forward. He opined that it was readily apparent from this review that Arbaugh had major psychiatric disorders, including suicide attempts, diagnosis of bipolar disorder, and major depression disorder recurrent. He also acknowledged Arbaugh’s two previous closed-head injuries, stating that such injuries produced symptoms of personality disorganization, memory complaints, concentration difficulties, ease of fatigue, balance issues, and sometimes ringing in the ears. His major diagnosis was a difieren- tial between a bipolar disorder or a major depressive disorder recurrent; he saw no reason to resort to using an organic-brain disorder diagnosis because the symptoms could not be attributed to an underlying brain disorder. Souheaver stated that the test Dr. Towbin read suggested that whatever symptoms Arbaugh had could not reasonably be attributed to brain dysfunction.
Souheaver stated that he had read Dr. Vann Smith’s reports, which inferred that because there was not cognitive dysfunction prior to the June 2, 2000 injury but that there were cognitive dysfunctions now, there was a brain injury; however, he disagreed with that conclusion. He said that Arbaugh clearly had cognitive complaints and symptoms with cognitive residuals related to a psychiatric disorder prior to the accident, and that cognitive dysfunction could occur for a number of reasons.
Souheaver also reviewed Dr. Betty Back’s records, stating that he believed she relied on history and what Arbaugh told her rather than objective data. He diagnosed Arbaugh as having major depression and bipolar disorder, although he did not know the cause of the depression. However, he did not believe that the recurrent major depression, the bipolar disorder, and the mild cognitive disorder were totally unrelated to the electrical injury; he said that he was not saying that the electrical shock did or did not cause the injuries or whether the depression was worsened by the electrical shock.
Souheaver acknowledged that both Dr. Smith and Dr. Back had seen Arbaugh and diagnosed him with these problems as a result of the electrical shock. However, he opined that Arbaugh suffered from these problems prior to June 2000. He pointed out that Arbaugh was treated in 1998 at Charter Hospital for depression, and he opined that Arbaugh had been susceptible to depression since he was an adolescent, although he stated that the electrical shock could easily trigger depression. He agreed with Dr. Reginald Rutherford’s IME except for the fact that Rutherford believed that Arbaugh was a malingerer, while he did not. He also noted that a person can have a cognitive disorder without a brain injury.
Dr. Vann Smith, a neuropsychologist, was also deposed. He said that neuropsychologists could better identify traumatic-brain injury, stating that such injuries were easily missed with a standard MRI and that CT scans missed ninety percent of those injuries. Smith also said that seventy percent of people with seizures appear normal in an EEG. Smith referred to neuropsychological evaluations as the “gold standard” of measuring injury to the brain.
Smith said that he saw Arbaugh one time and then referred him to Dr. Michael Morse, who ordered an MRI and an EEG, both of which came back normal. Dr. Morse referred Arbaugh to his wife, Dr. Betty Back, a neuropsychologist, so that Smith’s results could be compared to her results. Smith reported that from the Armstrong Smith Neurocognitive Status examination, he concluded that Arbaugh suffered moderate to severe impairment and that he had a traumatic-brain injury (TBI) from the electrical injury. Smith did not know if Arbaugh was moderately or severely impaired prior to the injury, but he opined that if he had those problems since 1997, it would have been much more obvious on the tests. Smith said that he believed that Arbaugh’s problems with memory, attention, concentration, and executive function were causally related to his electrical injury. He opined that it would be impossible for Arbaugh to fake any of the problems that were indicated when he underwent Smith’s testing, and he stated that Arbaugh was unemployable as a result of his injury due to a lack of concentration.
Dr. Betty Back-Morse, another neuropsychologist, diagnosed Arbaugh with TBI, noting slowed mental processing, memory problems, and sensory motor defects, although she did not know the source of the motor defects. She also believed that Arbaugh had a seizure disorder, with depression as a result of the disorder. However, she stated that a CT scan and an MRI were performed on Arbaugh, and both were normal. She also noted that an EEG performed by Dr. Towbin did not show change from the baseline activity and that there was no evidence of sharp activity. However, she stated that there was evidence of a brain injury by the cognitive impairment shown on the neuropsychological tests, and although the diagnostic testing did not clearly show the abnormalities, Arbaugh’s history did not indicate the presence of neurocognitive or memory/attention/concentration problems prior to the electrical injury; therefore, she opined that his seizures and his problems were attributable to the accident because they did not exist prior to his injury. She stated that Arbaugh’s healing period would end and his neurocognitive functioning would stabilize between twelve to eighteen months. She again reiterated that CAT scans, MRIs, and EEGs were not sophisticated enough to detect a brain injury, and that neuropsychologists could determine such brain injuries more accurately and consistently than diagnostic testing.
Dr. Michael Morse, a neurologist, stated that he was treating Arbaugh for seizures and neuropathy in both arms. Morse opined that one of Arbaugh’s EEGs was minimally abnormal due to diffuse slowing, which indicated cerebral dysfunction. He opined that all of the diagnostic testing could be misleading in Arbaugh’s case because the diagnostic tests did not detect the changes in his body and therefore missed his problems. He also diagnosed Arbaugh with carpal-tunnel syndrome, which he said could have been caused by several factors, including electrical injuries, and he noted that Arbaugh had no complaint of carpal-tunnel when treatment began. However, he could not state within a reasonable degree of medical certainty that the carpal-tunnel was caused by the electrical injury. Nevertheless, he opined that, within a reasonable degree of medical certainty, Arbaugh’s “spells” were related to his electrical injury.
The ALJ found, and the Commission affirmed and adopted, that appellant had failed to prove that his cognitive dysfunction and psychological problems were causally related to the June 2, 2000 incident or that they arose out of and in the course of his employment. He further found that appellant failed to establish that he had sustained a compensable organic-brain injury or a compensable psychological injury. Arbaugh now brings this appeal.
We first note that although Arbaugh contended at the hearing before the ALJ that he suffered both a psychological injury and an organic-brain injury as a result of the electrical shock, he appears to have abandoned the psychological-injury argument on appeal. However, he does argue on appeal that the Commission erred in finding that his organic-brain problems were not a result of his work-related accident. Because the June 2, 2000 injury was stipulated by the parties to be a compensable incident, the sole issue in this case is whether or not there is a causal connection between Arbaugh’s brain dysfunction and the electrical shock he received at work on June 2, 2000.
In this case, as set forth in detail above, there were conflicting opinions between the numerous physicians Arbaugh saw as to whether or not his problems were related to his on-the-job injury. Furthermore, the ALJ found that appellant had similar long-standing problems prior to his accident. The abstract is replete with indications of appellant’s psychological and cognitive dysfunction problems prior to the June 2000 incident, including memory and concentration problems. It is the Commission’s function to determine witness credibility and the weight to be afforded to any testimony; the Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). The Commission’s resolution of the medical evidence has the force and effect of a jury verdict. Jim Walters Homes v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003). Given this standard, we hold that there is substantial evidence to support the Commission’s finding that appellant’s problems were not causally related to the June 2000 incident.
We also note that, in their brief, appellees argue that the Commission had a substantial basis for finding that Arbaugh failed to prove a compensable carpal-tunnel injury. However, there was no finding made in the ALJ’s opinion, which was adopted by the Commission, with regard to the carpal-tunnel syndrome diagnosis made by Dr. Morse. For this reason, we decline to address that issue.
Affirmed.
Pittman, Gladwin, Robbins, Bird, and Roaf, JJ., agree.
Griffen, Neal, and Crabtree, JJ., dissent. | [
112,
106,
-39,
-114,
8,
98,
26,
-102,
117,
-90,
-11,
83,
-25,
-14,
-115,
103,
115,
119,
116,
59,
85,
-77,
83,
-53,
-110,
-33,
57,
-57,
-79,
106,
-32,
-44,
77,
48,
-62,
85,
-30,
64,
-51,
84,
-114,
20,
-69,
-24,
57,
-128,
52,
126,
-44,
31,
17,
-106,
-21,
46,
29,
-49,
109,
38,
75,
44,
-47,
-23,
-54,
5,
73,
16,
-78,
68,
-98,
103,
-2,
63,
-104,
-71,
1,
-20,
49,
-90,
-126,
-12,
73,
-87,
4,
97,
34,
44,
28,
-31,
108,
-8,
23,
-122,
31,
-92,
-70,
104,
83,
7,
-98,
-75,
120,
52,
44,
124,
113,
77,
86,
108,
-126,
-122,
-76,
-79,
77,
100,
-36,
-111,
-21,
-81,
52,
101,
-49,
-94,
88,
7,
83,
31,
-50,
-70
] |
Andree Layton Roaf, Judge.
Wilma Machost appeals from the denial of her motion for new trial after a jury returned a verdict in her favor for $2,000 in her negligence action against appellee Gerald M. Simkins. Simkins’s liability was not in dispute. Machost had incurred $10,000 in medical expenses resulting from the accident, and Simkins conceded to the jury that Machost’s medical bills were both reasonable and necessary. On appeal, Machost argues that the trial court erred in denying the motion because (1) the jury failed to consider all issues relating to her claim for damages, and (2) the jury’s verdict was clearly against the preponderance of the evidence. We agree that the trial court erred with respect to Machost’s second point on appeal, and reverse and remand for a new trial.
At the March 2003 trial, the following facts were established. Machost and Simkins were involved in a car accident. Simkins’s vehicle struck a vehicle in which Machost was a passenger. Simkins admitted liability and the case was tried to a jury on the issue of damages. In opening statements, Machost’s attorney set out the facts of the case and requested a verdict for Machost’s medical expenses and pain and suffering. She explained that her medical bills amounted to about $10,000, including approximately $3,000 from the emergency room, and approximately $5,000 for physical therapy. At the end of her statement, she requested an award for medical expenses and for pain and suffering.
The investigating police officer testified concerning the details of the April 2000 accident, stating that the total damage to Machost’s car was approximately $3,000. Machost testified that when she was struck, she thought her head had been “blown off.” She was taken to the emergency room where she was treated for headache, chest pain, and a neck injury. She was prescribed pain medication, which she admitted she did not take regularly, opting instead to take Advil. She completed six months of physical therapy, but testified that it did not completely alleviate her pain. Machost testified that her injuries made her home life difficult and that she could not move her neck without pain. She stated that her condition did not begin to improve until one year after the accident. Machost admitted that she had not returned to her doctor after completing physical therapy and had not seen a doctor about her condition since July 2000.
Dr. George Guntharp, Machost’s family practitioner, first treated her one week after the accident for chest pain. After reviewing the emergency-room file, he discovered that Machost complained of a head injury and pain under her right breast. She was diagnosed with a closed-head injury with contusion and loss of consciousness. Guntharp testified that Machost’s complaints of headaches were consistent with a closed-head injury, which is essentially a concussion. Guntharp continued treating Machost, noting her headaches, severe neck pain, and limited range of motion. He ordered a CT scan, and prescribed an anti-inflammatory medication and a regimen of physical therapy. Guntharp stated that Machost’s treatment was part of overseeing the normal healing process. He said that it was unusual that Machost would have symptoms for over two years and opined that her injury should have resolved by then. Guntharp concluded by stating that he had not seen Machost in over two years and that he would expect her to return for treatment if she was in fact still having trouble.
During the trial, Simkins’s counsel made the following opening statements to the jury:
We don’t dispute, [Simkins] does not dispute that he should be, even though it’s a shame physical therapy is so expensive but they provide a valuable service and we don’t dispute that we’re responsible for, for her medical bills. What we are arguing about here really is the degree of pain and suffering that Mrs. Machost claims to have. (Emphasis added.)
* * *
[O]ne of the things that you’ll have to answer as the jury in determining the money, the compensation that she gets for her pain and suffering is why she hasn’t complained of any headaches or neck pain in almost two and a half years even though she’s been to physicians since that time. (Emphasis added.) .
During closing argument, Machost’s counsel stated that her medical expenses were reasonable and that “counsel [for Simkins] even conceded in opening that there was not any dispute about the medical expenses so I think those are real clear.” She asked the jury to award Machost $10,000 for her medical expenses, and $12,000 for pain and suffering, for a total of $22,000.
For his part, Simkins’s counsel stated the following during closing argument:
You know it’s a shame that we have the costs of medical care now in our society but she’s gotten very good medical care. You didn’t hear her dispute any of that really.
* * *
Now, it’s a shame that medical costs are so expensive nowadays but it’s a reality that we have to live with in our society. The expense of the CAT scan, which was negative, and the medical bills which this lady incurred, you know, Hoss Simkins unfortunately acknowledges that he’s responsible for that.
The issue as I said in opening statement is what we should pay, what you should awardfor pain and suffering It’s the same type of thing to a different part of your body, and so the medical bills that this lady incurred, the $6,000 in, in the physical therapy which she received, you know, we’re responsiblefor that, we’re not contesting that and that was a reasonable treatment although it was exorbitant, you know, but she needed that to fulfill the healing process that the body took.
* * *
Don’t think for a minute that this doesn’t affect each and every one of you. I think to award her more than $1500 for pain and suffering in addition to the medical bills would be an injustice. (Emphasis added.)
The jury was instructed that Simkins had admitted liability for any compensatory damages sustained by Machost and that they should fix the amount that would reasonably and fairly compensate her for the following elements of damages proximately caused by Simkins’s negligence:
(A) The nature, extent and duration of any injury.
(B) The reasonable expense of any necessary medical care and treatment and services received, including transportation.
(c) Any pain and suffering and mental anguish experienced in the past.
The jury was also instructed:
Whether any of these elements of damage has been proved by the evidence is for you to determine.
The jury returned a general verdict for Machost in the amount of $2,000, for which the trial court entered judgment. Machost filed a motion for new trial the next day, to which she appended an affidavit of juror Russell Lee Miller, who asserted that, based on the statements ofboth counsel, the jury assumed that the $10,000 in medical bills had been resolved and would be paid automatically, and that the $2,000 awarded by the jury was only for her pain and suffering. Miller further attested that the jury had “made a mistake” and that had they realized they were to also decide on the medical bills, an award of $12,000 would have been given. In her motion, Machost contended that, pursuant to Rule Civ. P. 59(a)(6), she was entitled to a new trial based on the verdict being clearly against the preponderance of the evidence. In response to the motion, Simkins asserted that (1) Rule 606(b) of the Arkansas Rules of Evidence bars impeachment of a verdict by evidence of the mental processes of the jury, (2) the jury had the power to reject even stipulated medical bills, and (3) that the reasonableness and necessity of medical expenses are always questions of fact to be decided by the jury. The trial court denied the motion for new trial, and Machost now appeals.
Machost first argues that the jury failed to consider all issues relating to her claim for damages. In support of her motion for new trial and for this argument, Machost relies on the affidavit from juror Russell Lee Miller asserting that the jury made a mistake.
Arkansas Rule of Evidence 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberation or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning the matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear on any juror. (Emphasis added.)
In Watkins v. Taylor Seed Farm, 295 Ark. 291, 748 S.W.2d 143 (1988), the appellant moved for a new trial based on allegations that certain jurors made disparaging remarks about the appellant’s attorney. The appellant submitted affidavits in support of their motion, which set out the disparaging remarks. On appeal, the appellant argued that the trial court erred in failing to consider the affidavits. The supreme court stated that Rule 606 prohibits inquiries into the jury’s deliberation. The purpose of this rule “is to attempt to balance the freedom of the secrecy of jury deliberation on the one hand with the ability to correct any irregularity in those deliberations on the other.” Id. at 293, 748 S.W.2d at 144. Rule 606(b) requires that jury deliberations remain secret, unless it is clear that the jury’s verdict was tainted by some outside influence, for example a news broadcast or an unauthorized visit to the crime scene. Id.
In Garner v. Finch, 272 Ark. 151, 612 S.W.2d 304 (1981), the appellant appealed from the trial court’s grant of a motion for new trial based on the jury being confused about the verdict forms and an improper damages award. The motion was accompanied by an affidavit of six jurors containing statements about-jury deliberations. The trial court refused to consider the affidavits, deciding that Rule 606(b) precluded his consideration of the affidavit, and the supreme court agreed.
We agree that Rule 606(b) and our case law prohibited the trial court from considering Juror Miller’s affidavit with the motion for a new trial. Likewise, those rules and precedent prohibit this court from considering Juror Miller’s affidavit. Because Machost has not alleged that some outside influence affected the jury’s deliberations, this court cannot consider the affidavit or its allegations that the jury was confused when it awarded Machost only $2,000.
Machost also argues that the jury’s verdict was clearly against the preponderance of the evidence, pointing out that (1) she proved her medical expenses; (2) Simkins’s counsel conceded to the jury that he owed them; and (3) the jury failed to award them. Generally, statements made by counsel in closing and opening arguments are not considered evidence. In Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003), the supreme court declined to accept statements the appellee had made during closing arguments in appellant’s earlier case as proof of the value of appellant’s claim. Barnes had alleged that Everett, her attorney, committed malpractice by advising her to settle a claim. To prove damages, Barnes attempted to use Everett’s closing argument during the original trial as evidence of what her claim was worth. Barnes characterized these statements as admissions and argued that Everett’s statements were substantive evidence of the value of her claim. The supreme court held that the statements were not admissions, stating, “We agree with the trial court that such statements made on behalf of a client and under the duty to zealously represent the client may not be characterized as personal admission on the attorney’s part. Indeed, statements made by attorneys during opening statement and closing argument are not even considered as evidence at all.” Id. at 490, 95 S.W.3d at 479. (Emphasis added.)
On the other hand, in Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986), the supreme court commented that the appellant’s lawyer had conceded liability in his closing argument. The case involved a motor-vehicle accident in which appellant’s truck ran the appellee’s vehicle off the road. In his closing argument, the appellant’s attorney stated, “We will concede the accident was our fault.” Evidence of the appellee’s damages was introduced, but the jury returned a verdict in favor of the appellant. The appellee moved for a new trial, and it was granted. The supreme court affirmed the grant of a new trial, holding that the trial court did not abuse its discretion. Similarly, in Dovers v. Stephenson Oil Co., Inc., 354 Ark. 695, 128 S.W.3d 805 (2003), when discussing sufficiency of evidence supporting the appellant’s claim for bodily injury, the supreme court mentioned “admissions” made during the appellee’s opening and closing arguments that the appellant was seriously injured, and that a jury award of $125,000 would be appropriate. The court stated, “The appellees did not seriously contest the fact that Ms. Dovers was injured in this accident and no reasonable juror could have concluded that she suffered no damages.” (Emphasis added.) However, the court affirmed the trial court’s denial of the appellant’s motion for new trial following a jury verdict for the appellee, noting that there was a dispute as to the appellee’s negligence and a reasonable juror could have concluded that the appellee was not at fault in the accident.
Although the appellee’s counsel’s opening and closing statements are not evidence, based on Roberts, supra, and Dovers, supra, we are not convinced that the trial court was prohibited from considering counsel’s concessions. Arkansas Rule of Civil Procedure 59 sets out eight grounds for a motion for new trial, including a verdict that is clearly contrary to the preponderance of the evidence, Ark. R. Civ. P. 59(a)(6) (2003), the provision that Machost relies upon. When a motion for new trial is made on the ground that the verdict was clearly against the preponderance of the evidence, then the standard of review is whether substantial evidence supports the verdict. Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or another, beyond mere speculation or conjecture. Id. The verdict is given “the benefit of all reasonable inferences permissible in accordance with the proof.” Id. at 736, 957 S.W.2d at 178.
In Depew, supra, the appellant moved for a new trial pursuant to Rule 59(a)(6), arguing that the verdict was clearly against the preponderance of the evidence. The appellant, Depew, was struck from behind by the appellee, Jackson, who admitted liability. The case was submitted to the jury on the issue of damages only, and Depew presented evidence of medical and surgical bills totaling over $15,000. The jury returned a $1,600 verdict, and Depew moved for a new trial. The supreme court affirmed the trial court’s denial of the motion pursuant to Ark. R. Civ. P. 59(a)(6). It held that substantial evidence supported the jury’s verdict because there was evidence that the surgery and treatment of the appellant’s condition was not proximately caused by the appellee’s negligence, but was instead due to a preexisting condition. Given this evidence, the court stated that even though there was evidence of over $15,000 in medical bills, the jury could have found that the expenses were attributable to Depew’s preexisting condition; therefore, the award of only $2,000 was not clearly against the preponderance of the evidence.
Accordingly, in considering whether the trial court erred in denying Machost’s motion for new trial, we determined whether substantial evidence supports the jury’s verdict. At trial, the evidence showed that Machost was treated for head and neck injuries as a result of the accident. She incurred $3,000 in medical bills for her treatment at the emergency room, including the cost for CT scans and other treatment. One week following the accident, Machost began treatment by Dr. Guntharp and he performed a CT scan. Guntharp also prescribed physical therapy. Machost incurred a $6,000 medical bill for the physical therapy.
Despite this evidence, the jury returned a $2,000 verdict. This case is unlike Depew, supra, where the jury reasonably excluded medical expenses because there was evidence that they were not causally related to injuries sustained in the car accident. In this case, Dr. Guntharp testified that all of Machost’s treatment was a part of the normal healing process. While he questioned the length of Machost’s healing period, he stated that Machost’s complaints of headaches were consistent with her closed-head injury, and her neck pain was consistent with her vehicle being hit from behind. From the trial testimony and the concessions of Simkins’s counsel during opening and closing argument, even giving the verdict the benefit of all reasonable inference, we find that substantial evidence does not support the verdict. The cost of medical expenses could not be excluded as being unreasonable or attributable to some other circumstance. As in Dovers, supra, we conclude that no reasonable juror could have determined that Machost suffered only $2,000 in damages where Simkins conceded the amount of medical bills and their necessity. Thus, the trial court erred in denying the motion for new trial.
Simkins argues that the jury must have found that Machost was not credible and that she overstated her injuries. He points out that Dr. Guntharp’s testimony indicated that Machost’s injury could have been caused by something other than the accident. On review, this court gives the judgment the highest probative value, taking into consideration all reasonable inferences deducible from it. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). However, the inferences that Simkins suggests are not reasonable given all of the evidence in this case. While Guntharp conceded that headaches could be caused by some other trauma, he did not testify or infer that he believed Machost’s injury derived from some other cause, but stated that he knew of no other injuries to her. Further, all of Simkins’s arguments at trial challenging Machost’s credibility related solely to the amount of pain and suffering she was entitled to and not the reasonableness of her medical bills.
Simkins also contends that because the verdict in this case was a general verdict, the appellate court cannot question or theorize about the jury’s findings. When a jury returns a general verdict form and special interrogatories were not requested, the appellate court is left in the position of not knowing the basis for the jury’s verdict, and it will not speculate nor theorize about the jury’s findings. Esry, supra. In Esry, the appellant challenged the sufficiency of the evidence supporting the jury’s damages award. The supreme court refused to question the jury’s general verdict, but noted that substantial evidence supported the jury’s decision to not award the appellant damages. The court noted that the appellant initially refused medical treatment; that although her X-rays were normal, she scheduled an appointment with a specialist for an MRI; that her physician testified that her injury was “minimal”; that he only assumed that her injuries were attributable to the wreck because he knew of no other injuries; and that the appellee challenged the amount of damages. The court concluded that the jury could have determined, without resorting to speculation, that although the appellee was at fault, the appellant’s damages were not caused by his negligence.
However, this court need not theorize or speculate about the jury’s basis for its findings to determine whether substantial evidence supports the general verdict. As discussed above, substantial evidence does not support an award of $2,000 for medical expenses of $10,000 where there was testimony that all the expenses were related to Machost’s normal healing process; where the treating physician testified that Machost’s injuries were consistent with the diagnosis and the nature of the accident; where there was no evidence that the expenses were attributable to some other injury or circumstance; and where Simkins explicitly and repeatedly conceded to the jury both the reasonableness and necessity of the medical expenses, and in fact advised the jury that Machost’s medical bills were not in dispute.
We conclude that substantial evidence does not support the jury’s verdict. Accordingly, we reverse and remand for new trial.
Reversed and remanded.
Hart and Crabtree, JJ., agree.
In Depew, supra, the appellant also moved for a new trial pursuant to Ark. R. Civ. P. 59(1)(5), asserting that the jury’s verdict was inadequate. We note that on review of a denial of a motion for new trial pursuant to subsection (a)(5) the standard of review is abuse of discretion, and the trial court must determine whether a fairminded juror could have reasonably fixed the award at the challenged amount. Although Machost challenges the amount of the verdict, she does not rely on subsection (a)(5). | [
-48,
-23,
97,
-83,
8,
32,
35,
28,
0,
-125,
36,
87,
-17,
89,
29,
107,
-93,
61,
65,
99,
-5,
35,
7,
42,
-78,
-77,
35,
-57,
-7,
78,
-12,
-11,
77,
112,
-118,
-107,
-26,
-46,
-35,
80,
-114,
-123,
-55,
-27,
73,
-109,
112,
59,
68,
7,
49,
30,
-45,
43,
61,
98,
108,
42,
123,
-67,
-63,
116,
-126,
13,
-33,
16,
-128,
20,
-98,
-25,
88,
56,
-104,
17,
32,
-52,
50,
-74,
-126,
84,
64,
-103,
12,
34,
98,
33,
29,
-19,
-7,
-72,
38,
58,
-81,
-92,
-118,
0,
81,
104,
-74,
-75,
116,
76,
13,
120,
124,
85,
125,
108,
-114,
-49,
-106,
-79,
-113,
36,
76,
-126,
-17,
-121,
54,
113,
-52,
-14,
92,
-57,
59,
-101,
-22,
-106
] |
Robert J. Gladwin, Judge.
Appellants Craig Campbell, udge. & Eoff Properties were held liable by the trial court, sitting as the finder of fact, for unreasonably interfering with an easement owned by appellees James and Jerre Carter and The Village, Inc. The court awarded appellees a total of $19,722.02, and appellants appealed. We find no error and affirm.
Appellees acquired lots in the Village Estates subdivision in Washington County in the late 1980s and early 1990s. Although it was originally contemplated that the lots would be served by a sewage-disposal plant, the plant was never approved. As a result, the lots were served by septic systems. Appellees’ deeds conveyed a septic-system easement over another lot in the subdivision, Lot 45, which was located north across Broadview Drive. The deed of appellees James and Jerre Carter states that they were granted
an easement for the purpose of operating and maintaining an existing septic tank and sewage and disposal system over and across Lot 45, Block 7, Village Estates Subdivision, Washington County, Arkansas. Said easement shall terminate at such time as a sewage disposal plant for Village Estates Subdivision becomes operational and is approved by the applicable regulatory and licensing agencies.
The deed of The Village contains similar language.
At a certain point, the lots in the subdivision were re-platted, and Lot 45 became Lot 32. There is no dispute that the septic-system easement survived the re-platting, and we will hereafter refer to the servient lot as Lot 32.
Lot 32 remained vacant during the time of appellees’ ownership until the summer of 2003, when it was purchased by appellants. In August 2003, appellants began constructing a house and driveway on Lot 32. At one point, appellant Eoff was using a bulldozer to scrape the lot when he was confronted by Mr. Carter, bearing his deed. Mr. Carter explained to Eoff that he had a septic-system easement over the lot, although he could not identify the exact location of the system. According to Eoff, he ceased work immediately and conferred with his business partner, Campbell, about the situation. A week or two later, at Campbell’s direction, Eoff dug some trenches in the lot at a depth of twenty-four inches to see if he could discover a septic system. When no system was located, appellants proceeded with the construction of the house.
Eoff said that Mr. Carter contacted him next when the house was about fifty-percent complete. Carter apparently mentioned getting an injunction to enjoin appellants’ construction but never did so. Eoff said that, at that time, Carter still could not identify the location of the septic system. Appellant Campbell also said that he met with Carter at some point when construction was fairly far along. Campbell told Mr. Carter that he did not believe that a septic system existed on the lot but, if it did and appellants damaged it, they would “correct the situation.” During this period, construction on Lot 32 did not abate.
Mr. Carter’s version of events is somewhat different. He said that, after first confronting Eoff in August 2003, he saw workers back out on the lot a week later. He went over to the lot and learned that appellants had not found a septic system and were going to proceed with laying the foundation of the house. He also said that he saw Eoff later in August and that Eoff told him that they had “looked and couldn’t find anything.”
In November 2003, after unsuccessfully trying to persuade Campbell and Eoff to cease construction, Carter decided to try and pinpoint the exact location of his septic system. He called Roto-Rooter, who tracked the system from his house northward across Broadview Drive and into a six-inch sewer line that ran adjacent to Broadview. It was discovered that, if the water in the Carters’ house was turned on, within a few minutes, water could be seen flowing underneath a manhole cover (above the six-inch line) located in the corner of Lot 32. Carter further learned that the same thing occurred when water was turned on at the house owned by appellee, The Village. However, he could not determine at that time where the water went from the manhole area.
Carter reported his findings to Eoff, but it was Eoff s opinion that the Carters’ sewage was flowing along the six-inch line adjacent to Broadview; thus, appellants continued constructing the house. In January 2004, Carter and The Village filed suit against appellants for interfering with their easement. Their complaint sought damages, along with an order requiring appellants to cease construction and remove any existing structures. At that time, the house was seventy to eighty percent complete, but the driveway was not yet poured; appellants continued construction after the suit was filed.
In February 2004, the parties met and decided to dig up parts of Lot 32 for the purpose of trying to locate the septic system. Appellants hired Bud Moore, and he located a “T” coming off of the six-inch line that ran alongside Broadview. The “T” led onto Lot 32 through a four-inch pipe and then into a septic tank, located in what is now the front yard of appellants’ home. Despite this discovery, appellants continued to build. Later, a forty-three-foot lateral line was discovered connected to the septic tank. The line apparently ran out of the tank and underneath the area where appellants planned to construct a driveway. According to Mr. Carter, the next day after the septic system was discovered, appellants started pouring concrete for the driveway. It is undisputed that the driveway now covers part of that lateral line (although the septic tank is not covered).
The case went to trial in October 2004, and the following additional evidence was adduced. David Jorgenson, appellants’ predecessor in title on Lot 32, said that, at the time he acquired the lot in the early or mid-1990s, he knew of no easement on it. However, at some point during his ownership, he was informed by the Carters that they had a sewage easement across the lot. Jorgenson went to the Health Department to see if he could find evidence of a septic system on the lot but found nothing. He also dug several test holes on the lot but found no evidence of a septic system. Nevertheless, according to him, when he sold Lot 32 to appellants in the summer of 2003, he informed them of the possibility that a septic system existed on the lot.
Linda Apple was the former owner of the Carters’ home. Her deed contained the same grant of an easement over Lot 32. She recalled that, on one occasion in 1986, she had a problem with her septic system, and it “made everything back up.” The repairman told her that the problem was with her septic tank, which he determined was on Lot 32. Apple testified that the repairman worked on the tank “deep in the lot,” where the back part of appellants’ newly constructed house now stands. Her testimony thus indicated that there was a second septic tank on Lot 32 other than the one near appellants’ driveway.
Testimony was also given by Rick Johnson of the Arkansas Department of Health. Johnson said that Lot 32 was not big enough to support systems for three houses. He stated that, had the Department been aware of the existing septic system on Lot 32 at the time appellants applied for their own septic system, which was now installed on Lot 32, appellants’ application would not have been approved. Johnson also noted that appellees’ system was in a state of disrepair. Although he observed that the system was currently flowing and that sewage had been pumped out of the 1000-to-1200-gallon septic tank, he anticipated that upgrading and repairs would be needed. He also said that the existing system did not meet Health Department requirements, although it was not malfunctioning to the point that a citation had been issued. Johnson further testified that the lateral line leading away from the septic tank near the driveway was crushed “about halfway through it” and was dry as though no liquid had entered it in a long time. However, despite the need for repairs, Johnson expressed reservations that repairs could be accomplished under the existing circumstances. When asked if, given that appellants’ house, driveway, and septic tanks were all on the lot, appellees’ tank could be “revitalized or repaired,” he said that they could not. Johnson also expressed skepticism that a second tank was located on the lot, although he admitted that one could have been added when another house was added to the system. Finally, he stated that, while he could not say with certainty where appellees’ sewage was going, it was possible that “the sewage is either going to another connection off the [six-inch] collector line to another tank, another system, or it’s using the collector line as the disposal and going toward Beaver Lake.”
Bud Moore, who did the digging on the lot in 2004, explained that he had discovered the “T” where a four-inch pipe on Lot 32 tapped into the six-inch line along Broadview. He testified that, despite the existence of the four-inch pipe leading to the septic tank on Lot 32, he believed that appellees’ sewage had been running in the six-inch line and had simply backed up into the septic tank. He further offered his opinion that appellees’ system was a “failed” system because the four-inch pipe leading off of the six-inch line was actually intended to flow away from Lot 32, not toward it.
Appellee James Carter testified to his belief that the sewage was going back to another tank, as testified to by Linda Apple. He further said that, if he were to try and repair his system, he “couldn’t go anywhere” because appellants’ house and driveway were in the way. Finally, he testified regarding damages. He said that, before the current problems, his house was worth $185,000 but now was worth nothing. He also said that it would cost about $9000 to put a septic system on his own lot. Finally, he offered an exhibit showing that he had paid Roto-Rooter and AAA Septic Tank Service $4062.02 as “expenses incurred re: septic tank dispute,” of which The Village reimbursed him for $1650, leaving his net expenses as $2412.02. Likewise, Amy Fugman, Executive Director of The Village, testified that, in addition to the $1650 paid to Mr. Carter, the Village had paid Roto-Rooter $1160. Fugman also said that it would cost The Village $5000 to $6000 to install a new septic system on a different lot.
After the bench trial, the judge determined that appellants’ construction unreasonably interfered with appellees’ easement and, although he did not order the removal of any structures, he awarded $11,412.02 in damages to the Carters and $8310 to The Village. Appellants now appeal from that order.
Cases involving easements are traditionally equity cases, and such cases are reviewed de novo on appeal. See Wilson v. Johnston, 66 Ark. App. 193, 990 S.W.2d 554 (1999). However, we will not reverse unless we determine that the trial court’s findings of fact were clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left with the firm conviction that a mistake has been committed. White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001).
Appellants argue first that the trial court erred in finding that they unreasonably interfered with appellees’ easement. The owner of an easement may recover damages resulting from interference by the servient owner. See 28A C.J.S. Easements § 209 (1996); 25 Am. Jur. 2d Easements and Licenses § 129 (2d ed. 1996). While the owner of a servient tenement may make any use thereof that is consistent with, or not calculated to interfere with, the exercise of the easement granted, see Howard v. Cramlet, 56 Ark. App. 171, 939 S.W.2d 858 (1997), he can do nothing tending to diminish the easement’s use or make it more inconvenient or create hazardous conditions. See Hatfield v. Ark. W. Gas Co., 5 Ark. App. 26, 632 S.W.2d 238 (1982). The question of the right of a servient owner to obstruct an easement is one of fact to be determined from consideration of the terms of the grant, the parties’ intentions as reflected by the circumstances, the nature and situation of the property, the manner in which it has been used and occupied before and after the grant, and the location of the obstruction. See Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972).
It is undisputed in this case that appellants constructed a house and driveway that cover at least a portion of appellees’ septic system. Moreover, there is testimony by Rick Johnson and James Carter to the effect that appellants’ presence on the lot will inhibit appellees’ ability to repair and maintain the system. In Hatfield, supra, our court addressed a situation in which a building was constructed over a gas-pipeline easement. We noted that, in the case of underground pipelines, “it would appear that one of the primary incidents of the easement is that the line be accessible for maintenance and repair” and that “without such rights the easement could become useless.” Hatfield, 5 Ark. App. at 30, 632 S.W.2d at 241; see also Craft v. Ark. La. Gas Co., 8 Ark. App. 169, 649 S.W.2d 409 (1983) (holding that construction of a building over a gas line interfered with the use of an easement). The evidence in this case shows that appellants have built over appellees’ easement and interfered with appellees’ ability to repair and maintain their septic system. Further, appellants did so knowingly, having been warned in advance of their construction that the septic-system easement existed. We therefore agree with the trial court that appellants unreasonably interfered with appellees’ easement.
Appellants argue, however, that their interference was inconsequential because 1) the lateral line located under the driveway is near a gas line and does not meet with Health Department regulations; 2) the line has been dry and crushed for many years; 3) the system would require a large expansion to meet the needs of the two houses it purportedly serves; 4) the system is currently usable. The gist of appellants’ contention seems to be that appellees have not been damaged because their system is functioning and, in any event, should appellees try and make repairs, those repairs would be impossible through no fault of appellants. However, while Rick Johnson testified that the system is currently functioning, he also said that the need for repairs is anticipated and in fact imminent. Further, although Johnson stated that the system did not currently meet Health Department regulations and that there might be some difficulties in making repairs, such as the location of the gas line, he also stated that appellees’ system could not be repaired or revitalized at least in part because of the location of appellants’ house, driveway, and septic system. James Carter also testified in this regard. Additionally, appellants’ arguments discount the possibility that another septic tank exists on the lot and that the tank is currently located underneath the house itself, as testified to by Linda Apple. In light of these considerations, along with appellants’ undisputed prior knowledge that the easement existed, we cannot say that the trial judge erred in ruling as he did.
Appellants argue next that the trial judge erred in awarding appellees temporary damages. Where harm is done to real property, damages may be either permanent or temporary. If damages are permanent or incapable of repair, the proper measure is the difference in market value before and after the injury. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002). On the other hand, temporary or repairable damages are measured by the reasonable expense of necessary repairs to the property. Id.; see also Fox v. Nally, 34 Ark. App. 94, 805 S.W.2d 661 (1991) (holding that, for temporary injury to real property, the measure of damages is the cost of restoring the property to the same condition that it was in prior to the injury). The easement owner is also entitled to compensation for loss of use of the property. Howard Brill, Law of Damages § 30:1 at 529 (5th ed. 2002); see generally Arkansas Model Jury Instructions-Civil 2224 (2005). The specific losses are determined on a case-by-case basis. Howard Brill, Law of Damages, supra.
In the case at bar, there is evidence that appellees will be unable to repair or upgrade their system and that the existence of their system is incompatible with appellants’ system. Under these circumstances, we believe that the trial judge devised an equitable solution by compensating appellees for moving their system elsewhere plus awarding them the expenses they incurred as the result of appellants’ placing a house on Lot 32. Further, the damages of $11,412.02 and $8310 awarded by the judge correspond with the evidence. Carter testified that it would cost him approximately $9000 to put a new system on his own lot and that he had incurred $2412.02 in expenses, for a total of $11,412.02. Amy Fugman testified that a new system would cost $5000 to $6000 and that The Village had incurred expenses of $2801 ($5500 plus $2810 equals $8310). We therefore find no error in these awards.
Finally, appellants argue that appellees’ claim should be barred by laches. The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. Self v. Self, 319 Ark. 632, 893 S.W.2d 775 (1995). It is based on the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert them, that by reason of his delay some adverse party has good reason to believe those rights are worthless or have been abandoned, and that, because of a change of conditions during this delay, it would be unjust to the latter to permit him to assert them. Id. Whether a claim is barred by laches depends on the particular circumstances of each case. See id. The issue is one of fact, and we will not reverse the trial court’s decision on a question of fact unless it is clearly erroneous. Id.
Appellants claim that appellees should have told them the location of the septic system sooner, before the house construction was so far along. This argument is without merit, given that Mr. Carter told appellants of the existence of the easement before any construction had been done on the lot and continued to object to the construction. Appellants took the risk that they were building over a septic system, and, despite clear evidence that an easement existed, they refused to believe that a septic system was present. When they were proven wrong, it was not the fault of appellees but of themselves.
Affirmed.
Pittman, C.J., and Hart, J., agree.
During this same time period, appellants sold the house to Roger and Patricia Penny. The Pennys were informed about the lawsuit, about the sewage easement on the lot, and about the possibility that another resident’s septic system could exist on the property. However, appellants agreed to indemnify the Pennys from litigation expenses and any adverse judgment. On June 4,2004, appellees added the Pennys as defendants in the lawsuit. However, because the Pennys are not participating directly in this appeal, we will, for the sake of simplicity, refer to Lot 32 and the home thereon as belonging to appellants. | [
-12,
124,
-108,
-20,
-104,
-31,
56,
-120,
106,
-65,
-25,
91,
39,
-62,
25,
41,
-29,
125,
101,
121,
-57,
-78,
35,
98,
-41,
-5,
-77,
84,
-8,
77,
-12,
-58,
76,
33,
-58,
-107,
-58,
-128,
-19,
80,
-58,
7,
-117,
109,
-39,
66,
48,
-85,
-44,
79,
53,
-114,
-78,
44,
61,
67,
44,
44,
121,
45,
65,
-5,
58,
-124,
27,
23,
32,
-122,
-119,
-61,
-22,
74,
-112,
49,
-104,
-24,
-9,
54,
-106,
116,
71,
-101,
40,
96,
67,
3,
65,
-9,
-24,
25,
15,
-34,
-117,
-92,
-103,
121,
91,
-126,
-98,
-107,
92,
18,
68,
126,
-25,
-124,
95,
108,
-125,
-114,
-42,
-79,
7,
-120,
-108,
2,
-25,
3,
48,
37,
-49,
-30,
86,
79,
114,
95,
-98,
-43
] |
Josephine Linker Hart, Judge.
A jury found appellant, udge. crime of rape for engaging in sexual intercourse or deviate sexual activity with a person who was less than fourteen years old, and he was sentenced to fifteen years’ imprisonment. On appeal, he argues that (1) the evidence was insufficient to support his conviction; (2) the circuit court erred in allowing a witness for the State, Carmen Neighbors, to testify that the victim was telling the truth during an interview with Neighbors; (3) the circuit court erred in excusing Neighbors after she testified for the State. While we conclude that the evidence was sufficient to support his conviction, we reverse and remand for new trial, because we also hold that the court erred in allowing Neighbors to testify regarding the victim’s credibility.
Before addressing appellant’s arguments asserting trial errors, we must first address his challenge to the sufficiency of the evidence. See, e.g., Maples v. State, 16 Ark. App. 175, 698 S.W.2d 807 (1985). A person commits the crime of rape if he “engages in sexual intercourse or deviate sexual activity with another person . . . [w]ho is less that fourteen (14) years of age.” Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Supp. 2005). “Deviate sexual activity” is defined in pertinent part as “any act of sexual gratification involving” either the “penetration, however slight, of the anus or mouth of one person by the penis of another person” or the “penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person.” Ark. Code Ann. § 5-14-101(1) (Supp. 2005). In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State, considering only that evidence that supports the verdict, and we determine whether the verdict is supported by substantial evidence, which is evidence of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995).
At trial, the nine-year-old victim testified that her step-father, appellant, touched her “in a bad way” on ten occasions beginning when she was six. She stated that on four occasions he made her touch his “weeny” and “[g]o up and down on it.” She further testified that appellant made her “[l]ick his private,” and that this happened “a bunch,” which was more than twice. Also, she stated that appellant made her “suck his weeny, and lick his weeny.” According to her, when he made her put her mouth on his “private,” it would “[t]aste salty.”
As he did in his motions for a directed verdict, appellant argues that, because the victim’s testimony was inconsistent in certain respects, the evidence was insufficient to support his conviction for rape. We note, however, that the uncorroborated testimony of a rape victim is sufficient to support the verdict, and matters of the credibility of witnesses and conflicts in testimony are issues for the trier of fact to decide. Id. We conclude that there was substantial evidence that appellant committed the crime of rape, as the victim’s testimony established that appellant engaged in deviate sexual activity with her and that she was less than fourteen years old.
Appellant next argues that the circuit court erred in allowing a witness for the State, Carmen Neighbors, to testify that the victim was telling the truth during an interview with Neighbors. In response, the State argues that the circuit court, in its discretion, properly admitted Neighbors’s testimony because it was about the interview and Neighbors’s role in the investigation, and the jury was still required to make its own determination regarding the victim’s credibility. Further, the State argues that admission of Neighbors’s testimony was permissible because appellant attacked the credibility of the victim in his opening statement. We, however, conclude that the court erred when it allowed Neighbors to testify that the victim’s statement to Neighbors was credible. Accordingly, we reverse and remand for a new trial.
Neighbors, the Director of the Mercy Child Advocacy Center at St. Joseph Hospital in Hot Springs, testified for the State regarding the interview she conducted with the victim. She stated that she frequently gave expert consultation on child-abuse assessments and was a licensed social worker and a certified forensic interviewer. At the request of the State, the court qualified Neighbors as a certified forensic examiner. The State asked Neighbors if, “[bjased on your interviews in the past and your interviews in this particular case, do you have an opinion as to whether this child is telling the truth?” Appellant objected, stating that “there’s no way she can know about speculating whether this child is lying or not. He’s trying to bolster her testimony.... He’s also giving character evidence. . . .” The court overruled appellant’s objections. Neighbors testified that she always gives a summary and recommendation in her report and speaks about the credibility of the child. She stated, “I believe the interview tape that the jury has seen to be highly credible.” She believed that it was credible because of the victim’s inappropriate sexual knowledge, of which she then gave examples. She also noted the victim’s body language, which showed that the victim was scared, anxious, nervous, embarrassed, and ashamed. Neighbors concluded, “I believe her to be credible, as credible as any child I’ve believed to be credible.” Later, she testified, “I don’t have a single doubt about her credibility. ...”
Our supreme court has specifically stated that “it is error for the court to permit an expert, in effect, to testify that the victim of a crime is telling the truth.” Hill v. State, 337 Ark. 219, 224, 988 S.W.2d 487, 490 (1999) (citing Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989); Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987); Russell v. State, 289 Ark. 533, 534, 712 S.W.2d 916 (1986)). Here, Neighbors testified repeatedly about the victim’s high credibility. We are compelled to conclude that the court committed error in allowing Neighbors to testify regarding the victim’s credibility.
In reaching our holding, we are mindful of the State’s alternative rationale for affirming on this point. Citing Rule 608(a) of the Arkansas Rules of Evidence, the State argues that admission of Neighbors’s testimony was permissible because appellant attacked the credibility of the victim in his opening statement. We observe, however, that Rule 608(a) allows the credibility of a witness to be “supported by evidence in the form of opinion or reputation,” but “the evidence may refer only to character for truthfulness or untruthfulness.” Here, Neighbors’s testimony did not fall within the strictures of Rule 608(a), as it was not limited to the victim’s “character for truthfulness.” See Collins v. State, 11 Ark. App. 282, 669 S.W.2d 505 (1984) (holding that the circuit court properly allowed the victim’s schoolteacher to testify as to the victim’s general reputation for truthfulness).
Finally, we cannot say that the evidence was so overwhelming and the error so slight so as to constitute harmless error as in Russell. The evidence supporting appellant’s conviction consisted only of the victim’s testimony at trial and her statements to third parties, and the outcome of the trial necessarily turned upon the victim’s credibility. Thus, we are compelled to reverse and remand for new trial.
Appellant also argues that the court erred in excusing Neighbors as a witness after she testified for the State, as he also subpoenaed Neighbors. He states that, while testifying about drawings she made during her interview with Neighbors, the victim identified certain marks on the drawings as bug bites, and he argues that, because the court erroneously excused Neighbors, he could not recall Neighbors to the stand to testify that the victim never said anything to Neighbors about bug bites. Because on retrial appellant will have the opportunity to examine Neighbors on this matter, we do not address his argument on appeal, as the asserted error is not likely to recur.
Reversed and remanded.
Pittman, C.J., and Gladwin, J., agree.
In Logan, our supreme court reversed where it concluded that answers to hypothetical questions resulted in the doctors informing the jury that in their opinion the victim was telling the truth. InJohnson, the court stated that a doctor improperly conveyed to the jury his opinion that the victim was telling truth when the doctor opined that an act had occurred that was detrimental to the victim and that opinion was based only on the victim’s statements to the doctor. And in Russell, the court held that a psychologist improperly testified that a victim’s statements were consistent with a child who had suffered sexual abuse.
We note that in Hill, a Department of Human Services caseworker testified regarding the criteria used by the Department in evaluating a child’s statement when sexual abuse had been alleged, and the court held that the testimony was “valid evidence of the Department’s procedures in general, and, in specific, constituted evidence of the procedures followed in this case by the Department in its investigation.” Hill, 337 Ark. at 224-25, 988 S.W.2d at 491. The court concluded that the caseworker “testified as a fact witness about the Department’s guidelines employed in this and similar cases to determine whether a child’s allegations warrant an investigation.” Hill, 337 Ark. at 225, 988 S.W.2d at 491. The court further noted that upon Hill’s objection, the circuit court responded that “the jury was entitled to understand the State’s interview and investigation techniques,” and that “the witness would have to stop short of bolstering the children’s testimony.” Id. The case at bar, however, is distinguishable from Hill. Here, rather than Neighbors only providing information regarding the guidelines employed to determine whether the victim’s allegations warranted an investigation, she instead provided bolstering testimony. | [
-16,
-18,
-19,
-66,
46,
96,
106,
44,
66,
-93,
55,
115,
-83,
-54,
20,
123,
-78,
-19,
85,
98,
-45,
-77,
7,
65,
-74,
-13,
122,
-43,
-75,
79,
-10,
84,
11,
112,
-54,
-43,
98,
-54,
-43,
88,
-122,
-98,
-118,
-20,
18,
-62,
36,
55,
96,
14,
113,
30,
-13,
42,
21,
-57,
107,
108,
75,
53,
90,
21,
-38,
21,
95,
52,
-77,
54,
-65,
8,
-8,
34,
-36,
-79,
0,
-8,
115,
-106,
-126,
-12,
111,
-117,
-116,
96,
98,
1,
13,
-57,
40,
-120,
54,
126,
29,
-89,
-104,
33,
73,
109,
-73,
-9,
116,
80,
46,
-22,
-13,
77,
123,
108,
-85,
-113,
-108,
-71,
-115,
96,
-110,
-79,
-13,
61,
17,
97,
-51,
-32,
84,
85,
26,
-37,
-114,
-73
] |
Karen R. Baker, Judge.
Appellant Richard Jackson owns udge. County with a southern boundary fine that adjoins the northern boundary fine of appellee Nora Pitts. The appellee filed a complaint against the appellant, claiming he, or persons acting on his behalf, bulldozed valuable trees on her land where it borders that of the appellant. Following a bench trial, the Johnson County Circuit Court found that the appellant and co-defendant John Moore trespassed on land belonging to the appellee and destroyed marketable timber. The circuit court entered judgment for damages against the appellant and his co-defendant, jointly and severally, and assessed the value of the destroyed timber at $1,157.20. Treble damages allowed under Ark. Code. Ann. § 18-60-102 (Repl. 2003) were awarded for a total judgment of $3,471.60. Appellant Jackson raises two points on appeal: 1) the evidence was not sufficient to support the judgment; 2) the court erred in crediting the testimony of Johnson County Extension Agent Blair Griffin. We disagree and affirm.
Arkansas Code Annotated section 18-60-102(a)(1) provides that a person committing trespass shall treble the value of trees damaged, broken,'destroyed, or carried away. The imposition of treble damages pursuant to Ark. Code Ann. § 18-60-102(a) requires a showing of intentional wrongdoing, though such intent may be inferred from the carelessness, recklessness, or negligence of the offending party. See, Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996); Auger Timber Co. v. Jiles, 75 Ark. App. 179, 56 S.W.3d 386 (2001). The trial judge in this case applied the fair market value of the timber as the measure of damages, not the difference in before-and-after value of the land, although the use of either method has been approved. Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979); Laser v. Jones, 116 Ark. 206, 172 S.W. 1024 (1915); Auger, supra. The evidence in each case determines what measure of damages is to be used. See; White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992); Linebarger v. Owenby, 79 Ark. App. 61, 83 S.W.3d 435 (2002). Timber is generally valued according to its “stumpage value,” which is the value of the timber standing in the tree. Burbridge v. Bradley Lumber Co., 218 Ark. 897, 239 S.W.2d 285 (1951).
The appellant’s first point on appeal maintains that there was insufficient evidence to support the judgment against him, arguing that there was no allegation in the complaint concerning an employment or agency relationship that would impute liability for the damaged timber. According to the appellant, it was never shown at trial that his employee and co-defendant John Moore was acting within the scope of his employment or acting as the appellant’s agent when the alleged trespass and destruction of timber occurred. We disagree.
In bench trials, the standard of review on appeal is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Found. Telecomms., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000); Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all of the evidence, is left with a definite and firm conviction that a mistake has been committed. Neal, supra. This court views the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Ark. Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000). Disputed facts and determinations of the credibility of witnesses are within the province of the fact finder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).
The appellee’s son, Lloyd Pitts, testified at trial that he witnessed John Moore operating a bulldozer in the area of the destroyed timber, which was located on Pitts’s property where the appellant’s property adjoins hers. Lloyd Pitts stated that he walked along his mother’s land shortly afterward and observed that there were holes where trees had been removed from the bulldozed ground. Gerald Johnson, the appellee’s son-in-law, also testified he witnessed the bulldozer activity on the appellee’s property and that the bulldozer operator told him that he had been directed by the appellant to perform the work.
John Moore testified that he was employed by the appellant and that he was directed by the appellant to perform bulldozing work in the area adjoining the appellee’s property. Moore further stated that, in the process of clearing land and erecting and relocating a fence for the appellant, he removed trees, brush, and vegetation in the easement area along the appellee’s land.
The appellant himself testified that he hired John Moore and his brother, Denver Moore, to perform work on his property-involving the use of a bulldozer and a trackhoe. The appellant stated that he instructed Mr. Moore and his brother to erect a fence on the appellee’s property in what he described as an effort to “induce” her to move a fence in another location that he believed was improperly placed. The appellant stated that he knew that the fence he instructed Mr. Moore and his brother to construct was not on his property. The appellant also testified that if any trees had been removed in the easement area located on the appellee’s property that it “would have been done by Mr. Moore and his brother who were working for me.”
The testimony of the parties in this case clearly shows a relationship between appellant Jackson and Moore sufficient to establish liability for trespass and destruction of timber by a preponderance of the evidence.
For his second point on appeal, the appellant- contends that the trial court abused its discretion in crediting the testimony of Blair Griffin — University of Arkansas Extension Agent for Johnson County. The appellant asserts that the circuit court erred in giving weight to Mr. Griffin’s expert opinion of the estimated number of trees destroyed by the appellant and their market value at the time because it was “based upon a hypothetical when the basis for the hypothetical was not in evidence.” We find no merit in this argument.
Arkansas Rule of Evidence 702 provides that if specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify to the matter in the form of an opinion or otherwise. See Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). Determination of the credibility of a witness is within the province of the factfinder. Neal, supra. Whether a witness may give expert testimony rests largely within the discretion of the trial judge. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). A trial judge’s decision regarding admissibility will not be reversed absent an abuse of discretion. Id. On appeal, the burdensome task of dem onstrating that the trial judge has abused his discretion is on the appellant. Id. Recognition must be given to the trial judge’s superior opportunity to determine the credibility of the witnesses and the weight to be given to their testimony. Gosnell v. Indep. Serv. Fin., Inc., 28 Ark. App. 334, 774 S.W.2d 430 (1989). A circuit court, however, is required to make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts in the case. Coca-Cola Bottling Co. of Memphis, Tenn. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003).
The appellant did not object to Mr. Griffin’s qualification as an expert. At trial, the appellant’s objection was initially based on an assertion that Mr. Griffin’s expert opinion relied, at least in part, on hearsay. According to Ark. R. Evid. 703, an expert may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field. Rule 703 allows an expert witness to form an opinion based on facts learned from others despite it being hearsay. Carter v. St. Vincent Infirmary, 15 Ark. App. 169, 690 S.W.2d 741 (1985); Ark. State Hwy. Comm’n v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985). The issue raised by the appellant at trial and in his brief concerning credibility and validity is therefore determined by examining Mr. Griffin’s testimony concerning the quantity and value of the trees the court determined were destroyed by the appellant.
Shannon Hignite, granddaughter of the appellee, contacted Mr. Griffin in his capacity as the county extension agent and requested information about finding an individual to assess the damage done to the trees. Mr. Griffin told Ms. Hignite that he could perform the service, and Ms. Hignite directed him to the site where the trees were allegedly bulldozed, and showed him the location of the property line and utility easement. Mr. Griffin followed testimony concerning his experience in valuing timber by describing the methodology he uses to compute timber value within a specified area. This methodology includes use of a measurement device called a Biltmore stick, diameter measurements of randomly-selected trees, and graph that provide an estimate of the timber volume. The estimated timber volume is then multipled by the density, or number of trees, within a specified area for the merchantable value of the trees. The esti mated market value is then determined through use of the Timber Market Report compiled by the University of Georgia.
Mr. Griffin further testified on direct examination and cross-examination that he personally walked the area where the appellee claimed the trees were destroyed to conduct his measurements, performing what is known as a “timber cruise.” Although Mr. Griffin initially stated that there are several ways to determine the density of a missing area of trees, and that he was not sure which method he used two years previously for his report, he subsequently testified he walked off the area that was bulldozed, and then went into the woods next to that area to measure a similar amount of land and counted the trees within it. This method was required because the stumps within the area cleared by the appellant had apparently been entirely removed. On cross-examination Mr. Griffin testified that he remembered that he was impressed by the uniform density of trees in the area while making his estimate.
Arkansas cases refer to the use of timber cruises to estimate timber value without offering detailed descriptions of the methodology employed. See, e.g., Ark. La. Gas Co. v. Bennett, 256 Ark. 663, 509 S.W.2d 811 (1974). While timber value was determined by what the court termed a “stump cruise” in Dillard v. Wade, 74 Ark. App. 38, 45 S.W.3d 848 (2001), in the present case the stumps were entirely removed by a bulldozer. In our judgment, the reasoning or methodology underlying Mr. Griffin’s expert testimony was valid and was properly applied to the facts in the case. Therefore, the circuit court did not err in admitting the expert opinion, nor in granting it weight in making a determination of the value of the appellee’s destroyed timber.
Affirmed.
Crabtree and Roaf, JJ., agree.
For a detailed discussion on the development of the application of stumpage values as a measurement of damages in Arkansas caselaw, see Burbridge, supra.
The appellant did not make a specific motion for a directed verdict at trial. However, the Arkansas Rules of Civil Procedure do not require such motions to challenge the sufficiency of the evidence when there has been a bench trial. See Ark. R. Civ. P. 50(e) (2005); Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993).
This area also includes a utility easement held by Arkansas Valley Electric Company covering the northernmost section of appellee Pitts’s property for its full length.
It is perhaps helpful to show the timber valuation process used here for the measurement of damages with an equation: Merchantable Value of Timber = Density (number of trees) x Volume. The merchantable value of the timber is then pegged to the fluctuating market value according to region, determined by such reports as the University of Georgia’s Timber Market Report. | [
-42,
-18,
-4,
-100,
9,
96,
26,
10,
83,
-127,
-74,
83,
-21,
-94,
8,
43,
-93,
93,
117,
104,
-59,
-73,
19,
103,
-126,
-77,
-7,
87,
56,
79,
-20,
-44,
72,
48,
-54,
-43,
66,
-24,
-19,
24,
70,
-118,
-87,
125,
-45,
66,
60,
43,
0,
75,
-12,
-81,
-6,
45,
21,
-61,
77,
44,
-53,
41,
80,
-7,
-72,
23,
123,
20,
-127,
38,
-104,
1,
74,
106,
-112,
61,
10,
-56,
119,
34,
-122,
116,
13,
-69,
13,
100,
102,
16,
28,
-57,
-84,
-120,
43,
-10,
29,
-89,
-48,
72,
67,
15,
-74,
-108,
126,
84,
12,
-4,
-13,
5,
29,
108,
-59,
-50,
-44,
-79,
-115,
40,
-108,
3,
-21,
-89,
50,
101,
-49,
-30,
92,
71,
50,
-101,
-49,
-11
] |
Wendell L. Griffen, Judge.
Glenda Brotherton appeals from the denial of workers’ compensation benefits, arguing that the Workers’ Compensation Commission erred in determining that she was not performing employment services for appellee White River Area Agency on Aging (“the agency”) when she was injured. Because we agree, we reverse and remand for an award of benefits.
Brotherton was employed by the agency and by Mary Jane Foster. Her duties for each involved serving as a personal-care aide for elderly or disabled individuals who lived with Foster. In total, five elderly or disabled women lived with Foster, who was paid by the women’s families to provide twenty-four-hour care to the women. Foster is also a personal-care aide employed by the agency; four of Foster’s five clients were agency clients, as well. The agency paid Brotherton to provide three hours of personal-care services per client to two of Foster’s clients, one of whom was Maxine Raines. The duties to be performed for each client were prescribed pursuant to an agency care plan, that included feeding, toileting, bathing, grooming, dressing, meal preparation, and housekeeping services. Raines, in particular, was bedfast, requiring Brotherton to bathe her in her bed and to frequently assist her in using the toilet.
Although the normal routine for an agency personal-care aide is to go to a client’s home, help that client for a specific number of hours, and then go to another home, the agency knew that was not the routine that Brotherton and Foster kept. As established by the testimony of Brotherton, Foster, and Leanne Kronnister, the agency’s human-resources director, the agency knew that Brotherton also worked for Foster. The agency also knew that instead of working two successive three-hour shifts in which care was devoted exclusively to a “scheduled” client during each three-hour period, Brotherton arrived at Foster’s home at 8:00 a.m. and worked for six hours. Brotherton was scheduled to work for Raines from 10:00 a.m. until 1:00 p.m. However, the agency knew that at any given time on her shift, Brotherton performed services for any of Foster’s clients who needed assistance, including Raines.
Brotherton and Foster normally bathed the clients between 8:00 a.m. and 10:00 a.m. It is undisputed that at approximately 9:00 a.m. on July 16, 2002, Brotherton and Foster were in the process of bathing clients when Brotherton assisted Raines in using the toilet. Raines began to slip as Brotherton moved her from her bed to a toilet at the end of the bed; as Brotherton lifted Raines onto the toilet, she experienced pain and a burning sensation in her neck. Brotherton experienced more severe pain when she again lifted Raines from the toilet and returned her to her bed. Broth-erton immediately reported her injury to Foster.
Brotherton reported the injury to the agency on July 29, 2002, indicating that the injury occurred at 9:00 a.m. when she was helping Raines to use the toilet. Brotherton subsequently had surgery on her back. The agency controverted the claim, asserting that Brotherton was working for Foster when the injury occurred.
After a hearing, an Administrative Law Judge (ALJ) concluded that Brotherton sustained a neck injury at approximately 9:00 a.m. on July 16. In addition, based on the abnormal MRI findings and the doctor’s records indicating that he removed disc fragments during surgery, the ALJ concluded that Brotherton established the existence of her injury by objective medical findings. The ALJ further found that the injury was causally related to the incident involving Raines.
Nonetheless, the ALJ concluded that the injury was not compensable because Brotherton was not performing employment services within the time and space boundaries of her employment with the agency because her injury did not occur within the time period that she was scheduled to work for Raines. Noting Kronnister’s testimony indicating the agency’s knowledge of the “unique” circumstances of Brotherton’s employment situation, and because the agency offered no evidence that it lacked knowledge of the precise nature and timing of the various tasks performed by Brotherton in Foster’s home, the ALJ concluded that the agency knew or should have known that Brotherton and Foster had a “set routine” by which they did not on July 16 follow the “precise schedule” supplied by the agency.
The ALJ also inexplicably stated that had Brotherton become injured while assisting Raines to the toilet between 10:00 a.m. and 1:00 p.m., her injury “would almost surely” have been compensable and that, had she been bathing Raines when she was injured, the injury might have been compensable, notwithstanding that she was scheduled to work from 10:00 a.m. to 1:00 p.m. Because he found that toileting occurred throughout the course of the day, the ALJ determined that it was a service that could be performed for either Foster or the agency. However, the ALJ concluded that Brotherton’s act of assisting Raines to the toilet at 9:00 a.m. was an employment service performed for Foster, not the agency. Accordingly, he denied benefits. The Commission affirmed and adopted the ALJ’s findings.
Brotherton now argues that the Commission erred in determining that her injury was not sustained in the course of her employment with the agency. In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Id. The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission may accept or reject medical opinions and determine their medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).
A claimant may simultaneously work for multiple employers. Cook v. Recovery Corp., 322 Ark. 707, 911 S.W.2d 581 (1995). If an employee is performing for and is under the control of two employers at the same time, then liability for workers’ compensation benefits is joint. Id. However, if the work is separable, then the employer for whom the employee was providing services at the time of the injury is liable. Id.
A compensable injury is an accidental injury causing internal or external harm that arises out of and in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(I) (Supp. 2005). A compensable injury does not include an “[i]njury which was inflicted upon the employee at a time when employment services were not being performed.” Ark. Code Ann. § 11-9-102(4) (B)(iii). An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Collins v. Excel Spec. Prods., 347 Ark. 811, 69 S.W.3d 14 (2002). The test for determining whether an employee was injured while performing employment services is the same as the test for determining whether an injury occurred out of and in the course of employment: whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. Id; White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). Thus, the critical issue is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Collins, supra.
Brotherton argues that because toileting is one of the services that she is required to perform for the agency and because it is undisputed that she was injured while performing toileting services on one of the agency’s clients, the only reasonable conclusion that can be reached is that she was performing services within the time and space boundaries of her employment when she was injured. The agency counters that accepting Brotherton’s argument would mean that she performed employment services anytime she was with a person who happened to be an agency client.
We do not agree that Brotherton’s argument goes that far. We reverse the Commission’s order because we believe that fair-minded persons could not find that Brotherton was not performing within the scope of her employment for the agency when she was injured. First, it is noteworthy that the agency does not dispute that the work is separable; in fact, it implicitly concedes that the work is separable because it maintains that Brotherton was performing work solely for Foster when she was injured. The agency is correct that the work was separable, but is incorrect in concluding that Brotherton was working for Foster at the time of her injury. In short, the services Brotherton performed for the agency were completed during her six-hour shift that began at 8:00 a.m., and therefore, were separable from the other work she performed for Foster before or after that time, even though the work involved the same tasks.
Moreover, Brotherton was performing within the time and space boundaries of her employment with the agency because her six-hour shift for the agency began at 8:00 a.m., and she was injured at 9:00 a.m. Thus, she was clearly “on the agency’s clock” when she was injured. The Commission’s decision ignores this fact and, instead, places undue emphasis on the fact that Brotherton was injured outside of the time period that she was scheduled to work specifically for Raines.
Even if it were true that Brotherton was injured during a time when the agency was not compensating her, that would not preclude a finding that her injury was compensable. Clearly, an injury that occurs during non-scheduled work time may be compensable if the claimant is furthering her employer’s interests at the time or if the employer requires the employee to provide assistance if needed during that non-scheduled work time. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002) (affirming a finding that a claimant was performing employment services when, pursuant to her employer’s rules, she returned to her locker to secure her personal items before returning to work after an unpaid break). Thus, despite the agency’s argument to the contrary, the fact that Brotherton was not injured during the three-hour period that she was “scheduled” to work for Raines does not preclude a finding that she was directly or indirectly furthering the interests of her employer.
In any event, it is clear that Brotherton was injured during agency-scheduled work hours. Furthermore, she was injured while performing an agency-contracted service (one of an especially sensitive nature) for her own agency client. On these facts, the agency’s argument is rather unpersuasive that in doing so, Brotherton performed work that the agency did not generally require of her or that she did not directly or indirectly advance the agency’s interests. In fact, Kronnister admitted that the agency benefited when an aide assisted another person in the residence who was creating a disturbance (which would be expected of a person who needs assistance to use the toilet when that assistance is not forthcoming).
The fact that the agency received a benefit is further demonstrated by the fact that it would have been a detriment to the agency had Brotherton refused to assist Raines because she was not “scheduled” to help her. This was recognized by Kronnister who testified that as an employer, she “probably” would not abide an aide’s refusal to assist one client who needed assistance because the need arose during the time blocked off for another client. It is manifestly unjust to deny a claimant benefits where she was injured performing a service for which she could lose her job had she not performed these same services.
Finally, the Commission’s decision ignores the effect of the agency’s acquiescence to this unique employment situation. Arkansas Methodist Hosp. v. Hampton, 90 Ark. App. 288, 205 S.W.3d. 848 (2005) (holding that an intensive-care nurse who received no scheduled breaks was performing employment services where she was injured while going to the cafeteria to purchase breakfast for herself and her fellow nurses because the hospital acquiesced in the practice and expected her to advance the hospital’s interest no matter where she was in the hospital). Here, the agency knew that it employed Brotherton and Foster, knew that four of Foster’s five clients were also agency clients, knew that Brotherton also worked for Foster, and knew that these employees did not, and in fact, could not, strictly observe the agency’s service schedule. Specifically, the agency knew even though Brotherton was “scheduled” to work for Raines from 10:00 a.m. to 1:00 p.m., she in fact, assisted Raines at any time during the entire six-hour period for which the agency compensated her. Further, Kronnister’s testimony clearly establishes that, like the employer in Hampton, supra, the agency here expected Brotherton to advance the agency’s interests as long as she was “on the clock.”
This is not to say that any injury Brotherton received while working for one of the agency’s client’s in Foster’s home would have been compensable. Rather, the holding in this case is limited to the unique manner in which employment services were performed to which the employer clearly acquiesced. Here, the claimant’s injury was compensable considering the specific facts that, with the employer’s knowledge and implicit consent, she was clearly performing a service for her own agency client that she was specifically contracted to perform and did so during her agency-scheduled hours. On these facts, we believe that reasonable minds would not have reached the Commission’s conclusion. Whitlach, supra. Accordingly, we reverse the Commission’s order and remand for an award of benefits.
Reversed and remanded.
Bird, Crabtree, Baker, and Roaf, JJ., agree.
Robbins, J., dissents.
It appears that Brotherton had just finished bathing Raines when the injury occurred. In her deposition testimony, Foster stated that Brotherton went to Raines room to “bathe her and get her up.” Brotherton testified that she had just laid Raines’s back in her bed when she said she needed to use the toilet. | [
80,
-8,
-3,
-68,
8,
33,
48,
56,
67,
-102,
55,
81,
-85,
-52,
25,
111,
-21,
45,
21,
107,
-47,
51,
21,
35,
-22,
-45,
-15,
-51,
-95,
79,
-12,
-4,
73,
49,
10,
-44,
102,
-125,
-51,
80,
-128,
-123,
-38,
-17,
-39,
66,
48,
107,
-106,
91,
49,
-114,
-77,
40,
89,
74,
24,
102,
123,
53,
24,
-71,
-118,
-123,
127,
0,
-95,
4,
-102,
35,
-40,
30,
-112,
49,
-88,
-24,
82,
-74,
-125,
116,
99,
-72,
92,
98,
96,
32,
16,
-27,
-20,
96,
6,
-2,
-99,
37,
-101,
57,
75,
15,
-106,
-99,
88,
20,
79,
124,
-6,
-59,
95,
36,
-119,
-121,
-106,
-95,
-51,
-40,
-100,
-69,
-17,
5,
22,
113,
-50,
-94,
93,
69,
115,
95,
-114,
-102
] |
David M. Glover, Judge.
Randall and Nita Carpenter udge. April 2002. In the decree of divorce, Randall was ordered to pay Nita temporary alimony in the amount of $500 per week for a period of five years. Randall died on December 19, 2004. Nita filed an affidavit of claim against Randall’s estate, contending that Randall became delinquent in his payment of alimony as of October 23, 2003, and that his estate was Hable not only for the afimony arrearage but also for the afimony remaining to be paid for the five-year period for which the trial judge had awarded afimony. After a hearing on Nita’s claim, the trial judge found that her claim was valid, and he entered a judgment in her favor for $89,449.75 in afimony and $8,944.74 in attorney’s fees, for a total of $98,394.50, which was ordered to be paid from estate assets. The estate filed a timely notice of appeal from this judgment, and it now argues to this court that the trial court erred in granting this claim because alimony terminates by law upon the death of the obligor. We hold that the alimony obligation terminated upon Randall’s death, but that the estate is liable for the alimony arrearage that existed at the time of Randall’s death.
Probate cases are reviewed de novo, and the trial judge’s findings of fact will not be reversed unless they are clearly erroneous; however, the appellate court is free in a de novo review to reach a different result required by the law. Conner v. Donahoo, 85 Ark. App. 43, 145 S.W.3d 395 (2004). The appellate court reviews issues of statutory construction de novo, as it is for the appellate court to determine what a statute means. Id.
Arkansas Code Annotated section 9-12-312(b) (Repl. 2002) is the applicable statutory provision in this case. That statute provides:
In addition to any other remedies available, alimony may be awarded under proper circumstances to either party in fixed installments for a specified period of time subject to the contingencies of the-death of either party, the remarriage of the receiving party, or such other contingencies as are set forth in the award, so that the payments qualify as periodic payments within the meaning of the Internal Revenue Code.
We hold that the plain language of the statute resolves the issue in this case — alimony for a certain term is subject to the contingency of the death of either party. The statute specifically provides that the fixed installments of alimony are “subject to the contingencies of the death of either party, the remarriage of the receiving party, or such other contingencies as are set forth in the award.” The language clearly means that if either party dies or if the payee spouse remarries, the alimony ends. This is so regardless of whether these specified contingencies are included in the decree. The only contingencies that must be set forth in the decree are ones other than death or remarriage.
The judgment included a sum payable to Nita for the period of time that Randall failed to pay her alimony while he was alive. We hold that this portion of the judgment is a viable claim against the estate, as Randall remained under the court order at the time of his death to pay weekly alimony of $500 but had stopped paying it sometime in October 2003, according to Nita’s affidavit. We remand this issue to the trial judge for determination of the sum Nita is owed with regard to the alimony arrearage that had accrued prior to Randall’s death as well as the proper attorney’s fee due.
Reversed and remanded.
Neal and Vaught, JJ., agree. | [
-112,
108,
-99,
-36,
-56,
66,
26,
-104,
83,
-113,
97,
81,
-1,
-94,
20,
109,
114,
105,
101,
107,
-106,
-77,
22,
64,
-54,
-13,
-95,
-41,
-78,
-19,
-25,
-107,
68,
112,
34,
-107,
103,
-125,
-59,
88,
-114,
-58,
-117,
108,
-39,
70,
52,
-89,
-64,
31,
97,
-66,
-33,
-87,
53,
78,
108,
110,
93,
-81,
80,
-92,
-118,
7,
127,
23,
-79,
38,
-102,
10,
88,
14,
-108,
53,
0,
-24,
115,
-74,
-58,
116,
75,
-101,
1,
118,
99,
16,
-123,
-3,
-67,
-120,
7,
-10,
-97,
-73,
-37,
25,
123,
77,
-66,
28,
124,
84,
14,
-4,
118,
20,
-99,
98,
10,
-118,
-42,
-79,
-123,
120,
-100,
-118,
-21,
-25,
112,
117,
-51,
-30,
92,
-122,
121,
-101,
-121,
-110
] |
Karen R. Baker, Judge.
Appellant argues on appeal that the trial court erred in denying its request for the establishment of an easement by necessity in a particular roadway. We find no error and affirm.
Appellant owns farm land direcdy north of and adjacent to the appellees’ property. The appellees’ land is residential property, located in Sandraland Subdivision, and consists of two lots approximately 100 feet wide and 304 feet deep.
The parties have a common grantor. Prior to 1976, James H. Carter and Linda L. Carter owned the farmland now owned by the appellant and the subdivision land now owned by appellees. For many years, appellant rented the farm land from the Carters and used Connie Street and the roadway in question as ingress and egress to a 29.13 acre parcel which lies west of what is now Sandra-land Subdivision.
The appellant rented the farm land north of Sandraland Subdivision and had ingress and egress to that land by means of Marilyn Street, which lies on the east side of Sandraland Subdivision. A substantial ditch separates the appellant’s land north of Sandraland Subdivision from the 29.13 acre parcel west of the subdivision. To reach the 29.13 acre parcel, appellant travels south on Marilyn Street to Connie Street, goes west on Connie Street to the roadway in question, and then travels northwest on the roadway. There is no culvert between appellant’s north parcel and its west parcel and the ditch prevents appellant from moving farm equipment directly.
In 1976, the Carters developed Sandraland Subdivision and dedicated it as such on February 6, 1976. They conveyed lots 16 and 17 to appellees on June 2, 1995. On April 26, 1996, the Carters conveyed to appellant the north farmland and the 29.13 acre parcel by one legal description. The legal description did not mention the drainage ditch which physically separated the two farm parcels.
Subsequent to the Carters’ conveyance of the land to appellees, the appellees allowed the appellant to cross lot 16 in order for appellant to farm the 29.13 acre parcel. The dispute over this access arose after appellees heard that appellant intended to sell the 29.13 acre parcel to a sawmill company. Appellees then had a fence erected across the roadway to prohibit the appellant’s continued use of the roadway for access.
The trial court found that under the facts of this case, appellant’s use of the roadway would be only a convenience, not a necessity. We agree.
The person who asserts an easement has the burden of proving the existence of the easement. Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997) (citing Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987)). To establish an easement of necessity, appellant had the burden of proving unity of title in the sense that the same person or entity once held title to both tracts, that the unity of tide was severed by a conveyance of one of the tracts, and that the easement is necessary so that the owner of the dominant tenement may use his land, with the necessity existing both at the time of the severance of tide and at the time the easement is exercised. Powell v. Miller, 30 Ark. App. 157, 785 S.W.2d 37 (1990) (citing Burdess v. United States, 553 F.Supp. 646 (E.D.1982)). The degree of necessity must be more than mere convenience. Brandenburg v. Brooks, 264 Ark. 939, 576 S.W.2d 196 (1979).
Here, the trial court found that appellant has an adequate alternate method of ingress and egress to the property. The only natural obstacle is a drainage ditch that, although the ditch is deep and wide, is not so deep and wide that a road culvert could not be installed. Such a culvert was installed under the Marilyn Street property which currently allows access to the north farm land. The court found that a culvert could be placed in the ditch at a location that would connect the appellant’s north farmland with the other 29.13 acres. The court further found that the placement of a culvert was not a great burden on appellant, particularly when considering the detriment that appellees would suffer.
We hold that appellant failed to meet its burden that it was entitled to an easement by reasonable necessity. This is not a case where, as in Brandenburg v. Brooks, supra, the nature of the land’s terrain made it impossible for grantees to access the property except by tractor, and grantees were entitled to a way of reasonable necessity across property owned by grantors.
Here, the only natural obstacle is a ditch which can be traversed by the installation of a culvert, a means already employed to access appellant’s north farm land. Therefore, the chancellor did not err in finding that no reasonable necessity exists.
Accordingly, we affirm.
Hart and Vaught, JJ., agree. | [
-43,
110,
-36,
-84,
-54,
32,
26,
-104,
64,
-81,
103,
87,
-17,
-45,
-104,
37,
-89,
125,
65,
-21,
-41,
-78,
67,
-62,
-11,
-5,
-37,
-35,
-66,
77,
116,
87,
76,
32,
-54,
85,
70,
-128,
-83,
88,
78,
71,
-101,
124,
-39,
66,
52,
43,
22,
77,
53,
-116,
-13,
36,
53,
-57,
-120,
44,
75,
61,
-63,
-8,
62,
12,
91,
1,
-80,
100,
-8,
3,
-22,
74,
-112,
61,
-120,
-24,
54,
-90,
-106,
116,
11,
-101,
8,
2,
102,
3,
108,
-33,
-23,
-99,
14,
-34,
45,
-90,
-48,
24,
67,
32,
-65,
-97,
113,
64,
68,
126,
-20,
-51,
31,
104,
5,
-82,
-44,
-79,
-123,
-72,
-128,
65,
-17,
39,
48,
97,
-49,
-50,
95,
103,
20,
27,
-114,
-47
] |
Josephine Linker Hart, Judge.
Appellant, Michael Paine, appeals from the chancellor's decree settling the accounts of appellant and appellee Timothy Walker, after the parties dissolved their partnership, WP. Farms. Mr. Paine argues that the chancellor erred in determining that an intervenor to the lawsuit, appellee Rose Walker, held a life estate in certain property that she deeded to the partnership. Further, he argues that the chancellor erred in permitting Mr. Walker to introduce hearsay testimony regarding their respective cash capital contributions to the partnership. Finally, he generally argues that the chancellor failed to follow the dictates of the Uniform Partnership Act in winding up the partnership. We reverse on the first two issues and remand for a new trial without addressing Mr. Paine’s final point.
According to the chancellor’s order, in 1991 Mr. Paine and Mr. Walker entered into a partnership under the name of WP. Farms for the purpose of engaging in farming operations, with the parties agreeing to share profits and losses equally. In mid-September of 1998, the parties agreed to dissolve the partnership but failed to reach an enforceable agreement as to how the parties would settle their accounts. In settling the accounts, the chancellor made several dispositions regarding property in the partnership.
In particular, in December of 1994, the intervenor, appellee Rose Walker, deeded to the partnership approximately seventy acres, further providing as follows:
The right to live in the dwelling located on the NWfrl/4 pf (sic) tje (sic) NWfrll/4 Section 5, Township 19 North, Range 24 West is hereby reserved by Grantor, Rose Walker, for as long as she desires to live there.
In settling accounts, the chancellor concluded that Ms. Walker conveyed by general warranty deed a gift to the partnership. Further, the chancellor determined that she reserved a life estate in the 29.92 acres described above and the home located there.
On appeal, Mr. Paine argues that the chancellor erred in finding that Ms. Walker held a life estate in the entire 29.92 acres. We agree. The above-quoted language closely resembles that in Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001), where the deed provided that the grantor “reserves for herself the exclusive right to use and occupy the residence situated on said land for and during the remainder of her lifetime.” Middleton, 344 Ark. at 580, 43 S.W.3d at 119. The Arkansas Supreme Court concluded that such language reserved only a life estate in the residence, not in the land. Id. Because of the similarity of the language in the case at bar and Middleton, we conclude that the chancellor erred in finding that Ms. Walker held a life estate in the 29.92 acres, rather than just the dwelling.
In his order, the chancellor further concluded that Mr. Paine provided cash contributions of $46,628.42 and Mr. Walker provided cash contributions of $126,849.18, the same figures that Mr. Walker presented in his testimony. On direct examination, Mr. Walker testified that money was placed in various accounts for partnership business. Mr. Walker was asked whether “based on your looking at those accounts and adding up the figures,” how much both he and Mr. Paine had put into the partnership, and Mr. Walker provided the above-referenced figures without further elaboration.
On cross examination, however, Mr. Walker admitted that he did not have any records and that he relied on what he was told by the bank. Mr. Paine objected, arguing that the testimony was hearsay. In the decree, the chancellor noted that evidence of these totals came from Mr. Walker’s testimony that was admitted over Mr. Paine’s hearsay objection and that Mr. Walker testified that the totals were “compiled by the First National Bank of Berryville, Arkansas.” The chancellor found that Mr. Walker’s testimony was admissible under the business-records exception to the hearsay rule.
On appeal, Mr. Paine argues that the court’s ruling was error. We agree. As an exception to the hearsay rule, Rule 803(6) of the Arkansas Rules of Evidence permits the admission of business records. For a record to be admitted under this exception it must be: (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the act or event occurred, (4) by a person with knowledge, or from information transmitted by a person with knowledge, (5) kept in the course of regularly conducted business, (6) which has a regular practice of recording such information, (7) all as known by the testimony of the custodian or other qualified witness. Edwards v. Stills, 335 Ark. 470, 511, 984 S.W.2d 366, 388 (1998). One who offers evidence has the burden of showing its admissibility, and we will not reverse the court’s decision to permit introduction of the evidence absent an abuse of the court’s discretion. Id.
In the decree, the chancellor specifically noted that the cash-contribution figures were “derived from [Mr. Walker’s] testimony that these totals were compiled by the First National Bank of Berryville, Arkansas.” Thus, Mr. Walker presented only bald figures that were derived from bank records by someone at the bank. Even if we assume that Mr. Walker’s testimony was a “compilation,” he failed to present any evidence that his “compilation,” which was made by someone at the bank, was “made ... by, or from information transmitted by, a person with knowledge.” See Ark. R. Evid. 803(6). As we have previously noted, “the party offering the record must. . . establish by a competent witness that its content is worthy ofbelief.” Marshall Trucking Co. v. State, 23 Ark. App. 110, 114, 743 S.W.2d 16, 18 (1988) (holding that a company that integrated another company’s records into its own records failed to establish that the other company’s records were trustworthy). Moreover, there was no evidence that the “compilation” was “kept in the course of a regularly conducted business activity,” as opposed to some other special purpose, that is, for the purpose of litigation. See Ark. R. Evid. 803(6); Parker v. State, 270 Ark. 897, 606 S.W.2d 746 (1980) (holding that there was no foundation to prove that a list of checks prepared by a bank vice-president were kept in the regular course of business and instead the records were prepared for a specific purpose). Because Mr. Walker failed to establish that his “compilation” fit within the business-records exception to the hearsay rule, we must conclude that the chancellor abused his discretion in admitting the testimony under this exception. Compare Smith v. Citation Mfg. Co., 266 Ark. 591, 597-98, 587 S.W.2d 39, 42 (1979) (holding that the chancellor properly excluded an unaudited financial statement prepared by an accountant where the statement was not properly authenticated and no basis was laid for it being admitted as a business record) with Ward v. Gerald E. Prince Constr., Inc., 293 Ark. 59, 62-63, 732 S.W.2d 163, 165 (1987) (holding that witness’s testimony unquestionably identified a summary document she prepared as a business record).
Finally, Mr. Paine argues that the chancellor erred in not according him his rights under the Uniform Partnership Act. Specifically, he argues that the chancellor erred by failing to order an accounting and by failing to allow him to manage partnership assets. Mr. Paine, however, failed to show this court where he made related requests for relief that were adversely ruled upon by the chancellor. Nevertheless, we do not doubt that on retrial the chancellor will accord Mr. Paine whatever rights he may have under the Uniform Partnership Act. Mr. Paine further argues, as he stressed to the chancellor in his motion for a new trial, that his and Mr. Walker’s contributions to the partnership were not properly accounted for by the chancellor. On remand, Mr. Paine and Mr. Walker will undoubtedly readdress, with greater specificity, the issue of their respective contributions to the partnership. Because of the considerable likelihood that the evidence presented at the new trial will be substantially different than the evidence presented here, we do not address Mr. Paine’s argument at this time. Finally, on remand the chancellor should determine how much land is reasonably necessary to accompany the residence reserved by Ms. Walker and provide for legal access to a public road from the residential tract.
Reversed and remanded.
Stroud, C.J., and Jennings, Griffen and Crabtree, JJ., agree.
Bird, J., agrees in part and dissents in part.
The exclusion from the hearsay rule provided in Rule 803(6) is as follows:
(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses [sic], 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 activity 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. | [
-15,
-20,
-40,
76,
12,
32,
58,
-102,
67,
-54,
39,
83,
111,
-53,
17,
41,
-13,
57,
65,
122,
67,
-77,
103,
32,
118,
-13,
-37,
-35,
-79,
79,
-12,
-57,
76,
112,
-54,
-67,
-30,
-125,
-63,
92,
-122,
12,
-118,
-20,
-48,
-62,
52,
113,
80,
9,
117,
-114,
-69,
44,
53,
-57,
108,
44,
105,
33,
-110,
-7,
-82,
-115,
95,
23,
16,
38,
-112,
103,
74,
46,
-112,
57,
1,
-23,
115,
-90,
22,
116,
79,
-69,
41,
102,
98,
17,
1,
-1,
-104,
-104,
46,
106,
-99,
-89,
-112,
24,
115,
73,
-66,
-97,
124,
84,
-121,
-2,
-12,
13,
31,
104,
13,
-114,
-42,
-125,
-82,
80,
-108,
7,
-17,
37,
48,
81,
-52,
-22,
93,
101,
56,
-101,
-36,
-41
] |
OHN Mauzy PITTMAN, Judge.
The appellant in this criminal j case was charged with aggravated robbery, being a felon in possession of a firearm, and being a habitual offender. After a jury trial, he was convicted of those offenses and sentenced to imprisonment for twenty, ten, and ten years, respectively, to be served consecutively. From that decision, comes this appeal.
For reversal, appellant contends that the trial court erred in denying defense counsel’s motion to withdraw as attorney of record after defense counsel learned that appellant had sued him in federal court for one million dollars; in denying appellant’s motion to suppress his statement and a photo lineup; and in refusing to allow the defense to conduct a sequestered voir dire of the venire, and then refusing to grant a mistrial after one of the prospective jurors made an unsolicited reference to a rape charge that had been severed for trial at a later date. We find that appellant’s first contention has merit, and we reverse and remand on that basis.
With regard to appellant’s first argument, the record shows that appellant’s defense counsel learned, the evening before trial, that appellant had sued him for one million dollars in federal court, alleging that defense counsel had conspired with the Fayetteville Police Department to intentionally give appellant bad legal advice. On the morning of trial, defense counsel moved to be relieved as attorney of record on the grounds of irreconcilable differences, stating that he had not seen the lawsuit, but he had been reliably informed that such a lawsuit was filed. The trial judge questioned the appellant, who generally confirmed that such a lawsuit had indeed been filed. After a brief discussion, the trial judge denied the motion to be relieved as counsel, stating that:
I do not quite understand, still to this point, what you have filed in federal court. Obviously I do not have a copy of it, but I see no reason why we cannot proceed today with the trial.
The United States Supreme Court recognized in Holloway v. Arkansas, 435 U.S. 475 (1978), that defense counsel is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial. The Supreme Court also stated in Holloway that defense attorneys have the obligation to advise the court at once upon discovering a conflict of interest. See id.; see also Eveland v. State, 54 Ark. App. 393, 929 S.W.2d 165 (1996). Pursuant to Holloway, supra, the trial court has a duty, when an objection at trial brings a potential conflict of interests to light, to either appoint different counsel or to take adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant different counsel. We agree with appellant’s argument that the trial court failed to do so in the case at bar. Here, the record shows that the trial judge made only a cursory investigation of the circumstances of the asserted conflict, and summarily ruled on the motion to be relieved in the absence of any information concerning the lawsuit filed against defense counsel. Consequently, we reverse and remand on this point.
We address appellant’s argument that the trial court erred in denying his motion to suppress his statement and a photo lineup because it is likely to recur on retrial. The record shows that appellant was walking down a street when he was stopped and questioned during an investigation of motel robberies and rape because his appearance was a close match to a description of the perpetrator. The record also shows that, although appellant was questioned for approximately thirty minutes, much of this time was spent attempting to verify false identification given by appellant to the investigating officers.
It is true that Ark. R. Crim. P. 3.1 generally allows a police officer to detain a felony suspect for only fifteen minutes to verify his identity of the lawfulness of his conduct. However, the Rule expressly provides that this time period may be enlarged so that the investigation may extend “for such time as is reasonable under the circumstances.” Here, in light of the evidence that the investigation was lengthened as a result of the false identification given by appellant to the investigators, we cannot say that the additional fifteen minutes’ detention was not reasonable under the circumstances.
With regard to the custodial statement made by appellant after he was arrested for criminal impersonation, we review the trial judge’s ruling on the motion to suppress by making an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Id. Here, there was evidence that appellant was no stranger to the criminal justice system, as well as testimony that appellant understood his Miranda rights and indicated that he did so. Under these circumstances, we cannot say that the State failed to prove that his custodial statement was voluntary.
We need not address the issue concerning the unsolicited reference to the severed rape charge during voir dire because it is not likely to recur on retrial.
Reversed and remanded.
Jennings and Vaught, JJ., agree. | [
112,
-22,
-20,
108,
10,
-32,
56,
-68,
-47,
-125,
103,
83,
-81,
-50,
5,
127,
-11,
125,
85,
-23,
-50,
-73,
52,
64,
-30,
-14,
24,
85,
-15,
-51,
-10,
-1,
76,
112,
-54,
-43,
102,
2,
-89,
84,
-114,
1,
-70,
96,
-56,
-59,
32,
115,
68,
15,
49,
-44,
-29,
106,
18,
-54,
-56,
40,
-37,
-67,
80,
17,
-113,
-115,
-19,
20,
-79,
-74,
-97,
7,
-8,
44,
88,
57,
1,
-8,
114,
-74,
2,
116,
75,
-71,
44,
98,
98,
1,
97,
-22,
61,
-119,
38,
125,
-115,
-122,
-40,
33,
73,
9,
-98,
-41,
123,
21,
-121,
126,
-8,
29,
17,
-20,
3,
-114,
-108,
-79,
107,
48,
-100,
-5,
-21,
3,
20,
117,
-116,
-30,
92,
86,
121,
-5,
-81,
-108
] |
John E. Jennings, Judge.
Steven Sanders was found guilty by a Newton County jury of possession of drug paraphernalia, simultaneous possession of drugs and firearms, possession of methamphetamine, and possession of marijuana. He was sentenced to terms of three years in prison for possession of drug paraphernalia and possession of methamphetamine to be served concurrently with a ten-year sentence for simultaneous possession of drugs and firearms. He was fined $500 for possession of marijuana. On appeal, he contends that there is insufficient evidence to support his conviction for possession of drug paraphernalia and that the trial court erred in denying his motion to suppress evidence seized in searches of his vehicle and apartment. We find no reversible error and affirm.
On August 31, 1999, officers working under the Fourteenth Judicial District Drug Task Force were executing a search warrant at the residence of Sam Freeman in Newton County. The Freeman property was located northeast of Jasper off a county road. The residence and a shop were in a wooded area and sat at the end of a two-hundred-yard driveway.
At noon, Investigator Greg Harris was searching in the woods about half-way up the driveway when he heard a vehicle coming onto the property. The search was at an advanced stage at that point, and numerous illegal items had been found, including a methamphetamine lab and a stolen vehicle. By the sound of the approaching vehicle, Officer Harris did not believe it to be a police car, and he thought perhaps that personnel from the crime lab had arrived. He dismissed that notion when he heard the vehicle drive up to the residence, stop, and then head back out of the driveway to leave. Officer Harris walked toward the driveway and saw a pickup truck that was being driven by appellant. Harris said that the window was down and that he yelled to appellant to stop. Harris identified himself and asked appellant who he was and why he was there. Appellant told him that he was looking to find a transfer case for his truck. Harris asked appellant why he thought he could find a truck part there, and appellant said that someone had told him that he could. Appellant could not remember who had told him that, however. Harris then asked appellant if he knew who lived there. Appellant replied that he did not know who lived there and that he had not been there before. Harris then asked him how he had found the place, and appellant said that he had been told that the place to find truck parts was in Jasper.
Officer Harris testified that, under the circumstances, appellant’s account did not ring true. He considered that the property was not in Jasper but in an out-of-the-way location where there were no signs for guidance and that this was the scene of a methamphetamine lab. Harris said that he asked appellant if there were any drugs or weapons in the truck. Appellant said that there were none. Harris testified that he asked appellant if he had a problem with him checking and that appellant gave him permission to search the truck.
Investigator David Small testified that he overheard appellant consent to a search of the truck. In the search, he found a gray box under the driver’s seat that contained a handgun. A cigar case was found on the front seat under either a towel or a piece of clothing. The cigar case contained an eighth of one ounce of marijuana and four grams of methamphetamine. Appellant was then placed under arrest.
Paul Woodruff, an officer with the Harrison Police Department, applied for and obtained a search warrant for appellant’s apartment in Harrison. In the course of that search, officers found on the kitchen counter a receipt from Wal-Mart that listed the purchase of a cigar case.
Appellant testified at the suppression hearing that he had been having trouble with the transfer case on the front differential of his truck and that he had gone to the Freeman property to find the part he needed. He said that he did not know Mr. Freeman, but that he knew Freeman had a salvage yard and that he did mechanic work. Appellant testified that he drove to the shop where he met Officer Gary Jenkins, and he said that he asked Jenkins if this was the Freeman place since he had not been there before. Appellant said that Jenkins told him that it was Freeman’s property but that Freeman was in jail. Appellant said Jenkins let him go but that he was stopped by Officer Darin Spears as he was backing out to leave. Appellant said that Spears also let him go after confirming with Officer Jenkins that Jenkins had already spoken to him. Appellant testified that Officer Harris then stopped him on the driveway and said, “Did you think that you’d leave without being searched when there’s been two meth labs discovered?” Appellant said that Harris immediately ordered him out of the truck and told him that a warrant was not needed for him to search the truck. Appellant stated that Harris asked him if he was going to give them a hard time about the search. Appellant testified that he did not consent to a search of his truck, but that he only agreed that he would not give them a hard time.
Officer Harris testified in rebuttal that he did not tell appellant that he was going to search the truck or that a warrant was not necessary for him to do so.
Appellant’s drug-paraphernalia conviction was based on his possession of the cigar case that contained marijuana and methamphetamine. Appellant argues that there is insufficient evidence to support this conviction because it is unreasonable to interpret the statute so broadly as to criminalize his possession of that object. We disagree.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Evidence is substantial if it is of sufficient force that it would compel a conclusion one way or the other without recourse to speculation and conjecture. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the State. Hale v. State, 34 Ark. 62, 31 S.W.3d 850 (2000).
Arkansas Code Annotated section 5-64-403(c)(1) (Supp. 1999) provides in pertinent part that it is unlawful for any person to use drug paraphernalia to store, contain, or conceal a controlled substance. The term “drug paraphernalia” includes all equipment, products and materials of any kind which are used to store, contain, or conceal controlled substances. Ark. Code Ann. § 5-64-101 (v) (Repl. 1997). Specifically included within the definition of drug paraphernalia are containers and other objects that are used in storing or concealing controlled substances. Ark. Code Ann. § 5-64-101 (v)(10) (Repl. 1997). Relevant factors in determining whether an object is drug paraphernalia include the proximity of the object to controlled substances, and the existence and scope of legitimate uses for the object in the community. Ark. Code Ann. § 5-64-101 (v) (Repl. 1997).
The supreme court has held that the term “drug paraphernalia” is not unconstitutionally vague. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988); see also Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992). The court has also ruled that there was sufficient evidence to support a conviction for this offense where the appellant was in possession of a vial that contained cocaine residue. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). See also, e.g., Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993).
Here, the appellant was in possession of a cigar case in which methamphetamine and marijuana were hidden. The jury could conclude that the case was used as a container to conceal controlled substances. Such an object fits squarely within the statutory definition of drug paraphernalia. We cannot say there is no substantial evidence to support the guilty verdict.
Appellant next argues that the trial court erred by not suppressing the evidence found in his vehicle. He contends that the stop of his vehicle was not justified under either Rule 3.1 or 2.2 of the Rules of Criminal Procedure. We hold that the encounter was authorized under Rule 2.2.
Rule 2.2(a) provides:
A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
The supreme court has interpreted Rule 2.2 to provide that an officer may approach a citizen in much the same way a citizen may approach another citizen and request aid or information. State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). However, the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982). To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. Id. The court has clarified that an encounter under this rule is permissible only if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime. Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998).
For example, in Baxter v. State, supra, an officer stopped the appellant’s vehicle in a park that was near a jewelry store that had just been robbed to ask if anyone had been seen in the park. As it turned out, the vehicle was occupied by the robbers. The supreme court held that the encounter was permissible under Rule 2.2 because the officer was seeking assistance in the investigation of a particular crime. See also, Blevins v. State, 310 Ark. 538, 837 S.W.2d 879 (1992). In Bernal v. State, 48 Ark. App. 175, 892 S.W.2d 537 (1995), a narcotics dog indicated that two suitcases on a bus contained drugs. The officer approached the appellant after he had exited the bus and asked appellant for identification. We held that Rule 2.2 authorized the officer to approach the appellant in the course of investigating the drug-related crime. By contrast, in Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980), officers approached the appellant at an airport because he and a companion were looking back and had quickened their pace as they were followed by the officers in the terminal. The court held that the encounter was not justified under Rule 2.2 because the officers were not investigating any particular crime.
In the case at bar, the officers were executing a search warrant and had found evidence of illegal activity when appellant came onto the property. It was the scene of a clandestine methamphetamine lab located in a remote area. Under the investigatory authority of Rule 2.2, it was permissible for the officers to approach the appellant to ask for identification and to inquire about the purpose of his visit.
Appellant further argues that the trial court erred in finding that he consented to the search of his truck. The testimony on this subject was conflicting, as the officers testified that appellant gave his consent while appellant testified that he did not. Conflicts in testimony are for the trial judge to resolve, and the judge was not required to believe any witness’s testimony, especially that of the accused, since he is the person most interested in the outcome of the proceedings. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998).
In reviewing a trial court’s denial of a motion to suppress, the appellate court makes an independent examination based on the totality of the circumstances and will reverse only if the ruling was clearly against the preponderance of the evidence. Hadl v. State, 74 Ark. App. 113, 47 S.W.3d 897 (2001). We cannot say that the trial court’s decision pertaining to the search of appellant’s truck is clearly against the preponderance of the evidence.
Appellant’s third argument is that there was no probable cause for the issuance of a warrant to search his apartment. The warrant was obtained based on the affidavit of Officer Woodruff and was predicated on the discovery of the weapon and drugs found in appellant’s truck.
Rifle 13.1 of the Rules of Criminal Procedure sets out the requirements for the issuance of a search warrant. The rule requires the affidavit to recite facts and circumstances tending to show that such persons or things are in the places to be searched. The task of the magistrate who issues the warrant is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213 (1983). We apply the totality-of-the-circumstances test in determining whether the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. Stephenson v. State, 71 Ark. App. 254, 29 S.W.3d 744 (2000).
In Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001), the appellant and a man named Lee Cloud were seen tending marijuana plants in a wooded area six miles from Cloud’s residence. After watering the plants, the men drove to Cloud’s house. Search warrants for both men’s homes were issued based on these observed events. The appellant argued on appeal that those facts did not establish probable cause for the search of his home. The supreme court held that, for a search warrant to issue, either direct or circumstantial evidence must be provided to show that contraband or evidence of a crime is likely to be found in the place to be searched and that there must be a factual nexus between the evidence sought and the place to be searched. The court ruled that probable cause was lacking because there was no evidence to suggest that the homes were in any way associated with criminal activity.
The court’s holding in Yancey applies here. The search of appellant’s apartment was authorized solely on the evidence found in appellant’s vehicle. There was no evidence in the affidavit linking appellant’s apartment with his distant possession of contraband. Therefore, we must conclude that the warrant was invalid.
Nevertheless, we affirm the trial court’s denial of the motion to suppress. The court in Yancey concluded that suppression was not warranted based on the good-faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court held that an officer’s objective, good-faith rebanee on a facially vabd warrant will avoid the appHcation of the exclusionary rule in the event that the magistrate’s assessment of probable cause is found to be in error. This is because the exclusionary rule is designed to deter pobce misconduct rather than to punish errors of judges and magistrates. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985). In applying the exception, the Yancey court noted that courts in other jurisdictions were divided over the issue of probable cause under similar facts and that the officers were acting in good faith on the determination of probable cause made by the magistrate. We reach the same conclusion here and hold that the trial court did not err in denying the motion to suppress.
Appellant further contends that the warrant was defective because it authorized the officers to search for “stolen property,” the “fruits of any crime,” and numerous items that he contends are unconnected to a search for controlled substances. Appellant concedes that courts have generally held that the inclusion of such broad language does not invalidate a warrant, but he argues that this language renders the search unreasonable from its inception. Appellant has cited no authority to support this proposition nor does he provide a convincing argument. For this reason, we need consider the issue no further. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).
Affirmed.
BIRD, J., agrees.
ROAF, J., concurs. | [
-80,
-18,
-23,
28,
59,
97,
42,
24,
82,
-73,
-26,
91,
-83,
-42,
5,
113,
-87,
-65,
117,
105,
-33,
-89,
99,
-31,
-62,
-77,
-24,
-57,
-73,
75,
124,
-44,
12,
116,
-126,
-11,
38,
8,
-89,
88,
-50,
5,
-88,
115,
82,
18,
44,
42,
20,
15,
113,
30,
-108,
14,
17,
-49,
45,
40,
-53,
-67,
72,
-103,
-103,
13,
-87,
38,
-79,
100,
-107,
5,
-8,
44,
-108,
49,
0,
104,
123,
-74,
-128,
-12,
109,
-103,
12,
32,
98,
3,
61,
-116,
-83,
-120,
14,
62,
31,
-89,
-36,
105,
105,
1,
-65,
-67,
102,
16,
46,
-6,
-6,
117,
29,
124,
39,
-50,
-112,
-127,
13,
48,
-122,
-15,
-5,
37,
48,
97,
-49,
-78,
88,
117,
120,
91,
-55,
-106
] |
Karen R. Baker, Judge.
A Garland County jury con-ge. appellant Elery Dendy of nine counts of forgery in the second degree, and he was sentenced to the Arkansas Department of Correction for ninety years. The appellant argues on appeal that the trial court erred in denying his motions to suppress evidence and a statement, as well as his motion for a directed verdict. We agree that the trial court erred in denying the appellant’s motions to suppress and reverse and remand.
On January 14, 2004, officers of the Hot Springs Police Department were in the area of the home of appellant Elery Dendy for the purpose of locating a stolen car and a suspect in the theft. The appellant was not a suspect. While the police officers were questioning an individual who was standing in the appellant’s yard concerning the theft of the car, the appellant came outside his home and stood on his front porch. Detective Chapmond testified that he observed that the appellant had paper in his hand when he stepped outside his door — paper that Chapmond identified as blank stock often used for the printing of checks. When questioned as to the purpose of the check stock, the appellant told Chapmond that he was printing gift certificates for a local company and provided the phone number of the company for verification. Another Hot Springs police officer testified that this information was indeed verified in a phone call to the company. The appellant then additionally offered to show the detectives his “artwork” and went inside his home. Chapmond followed the appellant inside the home, testifying variously that he “interpreted,” “assumed,” or deduced by implication that the appellant invited him into the home. The appellant denies that he invited the detective inside his home, pointing to the fact that as a four-time convicted felon he was not in the habit of inviting police officers into his home. He instead asserted at trial that his intent was simply to retrieve a printed gift certificate to additionally convince the detectives of his legitimate use of the check stock.
Chapmond testified that after he entered the home he observed a check partially inside an envelope and several crumpled checks in a trash can. He then obtained written consent from the appellant to search the home. Further search revealed what Chap-mond testified appeared to be fake identification cards, which he said may have included those in the name of Bill Clinton, James Dean, Marilyn Monroe, Eddie Murphy, Elvis Presley, and perhaps Richard Nixon.
The appellant’s motion to suppress evidence seized pursuant to the warrantless entry was denied by the trial judge after a hearing, and the appellant was convicted in a jury trial of nine counts of forgery in the second degree. The jury was presented with evidence of the appellant’s prior convictions and sentenced him as a habitual criminal to a term of thirty years and a one thousand dollar fine for each of the nine counts. The trial judge ran three of these counts consecutively and the remaining six counts concurrently with the first three — for a total period of incarceration of ninety years. Appellant presents three arguments on appeal: 1) that the trial court erred when it denied the appellant’s motion to suppress items seized during a search of his home; 2) that the trial court erred in allowing into evidence a statement taken from the appellant at the Hot Springs Police Department; 3) that the trial court erred in denying the appellant’s motion for a directed verdict. We agree that the trial court erred when it denied the appellant’s motion to suppress the evidence and statement and therefore reverse and remand.
Although the appellant’s last point on appeal concerns the trial court’s denial of his motion for a directed verdict, we address this point first due to double jeopardy considerations it is a “general rule that, when an appellant challenges the sufficiency of the evidence, we address that issue prior to all others.” Misskelley v. State, 323 Ark. 449, 458, 915 S.W.2d 702, 707 (1996) (citing Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984)). When a defendant makes a challenge to sufficiency of evidence of the evidence on appeal, we view the evidence in the light most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture; only evidence supporting the verdict will be considered. Id. When a challenge to sufficiency of the evidence is reviewed, the conviction will be affirmed if there is substantial evidence to support it. Id.
The appellant specifically argues that the State failed to prove that he possessed forged checks with the intent to defraud, and that without the establishment of this essential element there was not sufficient evidence to sustain his conviction. The appellant points to fact that some of the checks were found in a wastebasket and that “one does not discard checks if he intends to use them to defraud others.” We find this argument unconvincing. In this case appellant made a statement to the police admitting that he had been engaged in a forgery scheme and that his price for forged checks varied according to the amount of the check. A person forges a written instrument if he “with purpose to defraud he draws, makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act.” Ark. Code Ann. § 5-37-201 (a) (Repl. 1997). We find that there was substantial evidence to sustain the appellant’s conviction based on his confession to police, combined with the forged checks found in his home.
We now turn to appellant’s remaining points on appeal concerning the denial of his motions to suppress the evidence seized in the search of his home and his subsequent statement. In reviewing the trial court’s denial of a suppression motion by the trial court, we make a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicions or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
A warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment and Article 2, § 15 of the Arkansas Constitution. Welsh v. Wisconsin, 466 U.S. 740 (1984); Katz v. United States, 389 U.S. 347 (1967); Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002); Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). This presumption of unreasonableness may be overcome if the law enforcement officer obtained the consent of the homeowner to conduct a warrantless search. See Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002) (citing Ark. R. Crim. P. 11.1; Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995)). The Arkansas Supreme Court, however, has established that the State has a heavy burden to prove by clear and positive testimony that consent to search was freely and voluntarily given. Holmes, supra; Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999); Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). Any consent given must be unequivocal and may not usually be implied. Holmes, supra; Norris, supra (citing U.S. v. Gonzalez, 71 F.3d 819 (11th Cir. 1996)); Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Further, the State must prove by clear and positive testimony that the consent to enter and search was unequivocal and specific. See id.; State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).
The Arkansas Supreme Court’s decision in Holmes addressed the issue of a warrantless entry into a home and whether consent was given based on implied or inferred consent. The court in Holmes examined the testimony of a law enforcement officer who admitted that he did not receive a verbal invitation, but instead that an individual “opened the door and stepped back; she may have nodded.” Holmes, 347 Ark. at 540, 65 S.W.3d at 865—66. The court held that this testimony was not clear and positive, and therefore it was insufficient to prove that consent was given; the trial court erred in denying a motion to suppress evidence. Id. The State argues in its brief that the holding of Holmes is that the burden of showing consent to enter a residence by clear and positive testimony requires “some verbal communication of permission” and that this burden is met here by the testimony of Detective Chapmond. The State is wrong on both counts. First, this is not an accurate statement concerning the holding of Holmes on consent to enter a residence. The court in Holmes did not explicitly require verbal communication of permission. The court stated that there was “uncertainty and lack of clarity” intended by non-verbal actions in that case, and without clear and positive testimony that provided clarity beyond inference, the trial court erred in not granting a motion to suppress. Id. Second, Detective Chapman’s testimony did not demonstrate verbal communication of permission to enter in the present case.
It is the State’s burden to prove by clear and positive testimony that consent to enter the appellant’s home was unequivocal and specific. Yet, the consent asserted by the State here is, like Holmes, based solely on inference.
Detective Chapmond’s testimony at both the suppression hearing and at trial is far from unequivocal. When Chapmond testified at the suppression hearing he stated that the appellant offered to show him the “artwork” on the gift certificates — which Chapmond said that he assumed to mean that the appellant was “proud of his work and wanted to show it off’ — and when the appellant turned around and entered the house, Chapmond believed he was, in effect, invited in. In subsequent examination at the suppression hearing, Chapmond also testified that when the appellant offered to show him the artwork he “interpreted it” as artwork on a computer, and that based on this interpretation he followed the appellant inside the house without an actual invitation. Chapmond stated that could not remember the appellant’s exact words or even whether “he invited me inside his house, but I took it as an invitation.”
The motion to suppress was denied, and at trial Chapmond continued to describe the warrantless entry with testimony that can in no way be reasonably characterized as unequivocal and specific consent. Chapmond variously stated that he “took it as an invitation to come inside;” that he “construed [the appellant] saying, ‘I’ll show you the artwork,’ as an invitation to come into his house and look at his computer;” and he “took it as an invitation to enter the home.” The appellant testified at trial that after detectives called the local company and verified he was making gift certificates that “I told [Champond] to wait and I’d show him. I turned and walked back into my house and to my desk. When I turned around, there were three officers standing in my house.” The appellant then noted that as a previously convicted felon he was not predisposed to invite police officers into his home. He further testified that Chapmond executed a search warrant on the appellant’s home several months previously, and thereafter Chapmond had returned to the home approximately five times and on none of these occasions did he invite Chapmond inside.
The State attempts to give weight to Chapmond’s characterization of the warrantless entry by attempting to show that the only reasonable interpretation of the appellant’s offer to show the detectives his gift certificate artwork was that is was an invitation to enter the house. The only alternative interpretation, the State argues, would be would the ridiculous explanation that the appellant intended for Chapmond to remain on the porch while the appellant disassembled and unplugged his computer, carried it outside on the porch, and then reassembled it to show Chapmond an example of the gift-certificate artwork. The State, however, ignores a more reasonable interpretation that the appellant intended to go inside his home and retrieve printed copies of his artwork — previously printed gift certificates. This is what the appellant not only contends he intended, but also what he testified that he actually stated to the detectives prior to their entry.
The issue of the credibility of the testimony is not for this court to decide however, because we will not second-guess credibility determinations made by the factfinder. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). Instead, the relevant issue is whether the testimony and evidence of consent to a warrantless entry was sufficiently established. This requirement has not been met. Chapmond’s testimony — consisting entirely of interpretations and assumptions — does not rise to the standard required of providing clear and positive testimony that the appellant unequivocally and specifically consented to the detectives’ entry into the home. See Holmes, supra; Norris, supra; Brown, supra; Stone, supra. Detective Chapmond’s warrantless entry into the appellant’s home was illegal based on the totality of the circumstances.
The State argues that even if the warrantless entry was illegal, this defect was cured by the appellant’s signature of a consent-to-search form, and therefore all evidence seized following that consent, as well as a statement made shortly thereafter at the police station, should not be suppressed. Again, we disagree.
The Arkansas Supreme Court cited directly from Wong Sun v. United States, 371 U.S. 471 (1963), in its holding in Keenom v. State, 349 Ark. 381, 390-91, 80 S.W.3d 743, 748-49 (2002), stating that:
We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Thus, we must determine whether the evidence seized after the appellant’s written consent and statement was obtained by exploitation of the illegal warrantless entry into the appellant’s home, or whether there was some intervening or attenuating event “sufficiently distinguishable to be purged of the primary taint.” See Wong Sun, supra.; United States v. Ramos, 42 F.3d 1160 (8th Cir. 1994); Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002); Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981). Additionally, any intervening event or attenuation must be weighed against the seriousness of the police misconduct. Brown v. Illinois, 422 U.S. 590 (1975). Illegal entry by law enforcement officers into the homes of citizens is the “chief evil” the Fourth Amendment is intended to protect against and therefore is of the highest degree of seriousness. Payton v. New York, 445 U.S. 573 (1980); see Holmes, 347 Ark. at 537-38, 65 S.W.3d at 864; See also Brown, 356 Ark. at 468—69, 156 S.W.3d 722 at 728 (noting Arkansas constitutional provisions and caselaw emphasizing dangers to liberty posed by illegal warrantless entries and searches).
Here, there was no break in time or other intervening event between the illegal warrantless entry into the appellant’s home, his written consent to search the home, and his written statement. Therefore, the primary taint of the unlawful warrantless entry into the appellant’s home had not been sufficiently attenuated or purged. Under these circumstances, the fruits' of the consensual search and written statement were poisoned by the officers’ unlawful warrantless entry. Accordingly, we conclude the trial court erred in failing to suppress both the evidence seized in the search of appellant’s home and his statement at the police station.
Reversed and remanded.
Griffen, Vaught, and Roaf, JJ., agree.
Bird and Crabtree, JJ., dissent. | [
112,
-20,
-32,
63,
11,
-32,
58,
-88,
82,
-121,
127,
123,
97,
64,
4,
105,
-32,
-17,
116,
-31,
-35,
-78,
101,
123,
-30,
-13,
-7,
-44,
-1,
73,
-92,
-35,
79,
112,
-54,
93,
102,
8,
-121,
88,
-50,
1,
-128,
114,
80,
-46,
48,
35,
4,
11,
97,
-113,
-14,
43,
19,
75,
-51,
44,
91,
-67,
-48,
-7,
-70,
5,
-19,
20,
-93,
38,
-103,
3,
-8,
14,
-100,
57,
2,
-24,
-78,
-106,
-126,
116,
79,
27,
0,
98,
98,
0,
5,
-91,
-84,
-116,
63,
127,
-115,
-89,
-110,
105,
75,
109,
-106,
-107,
114,
92,
14,
-12,
119,
-123,
121,
108,
11,
-50,
-42,
-109,
12,
49,
-100,
123,
-17,
53,
20,
113,
-49,
-14,
84,
71,
113,
-101,
-50,
-13
] |
Terry Crabtree, Judge.
This appeal concerns appellant udge. Remanufacturing, Inc.’s liability to provide healthcare insurance to its founder and former majority shareholder and his wife, appellees Patrick Booth (Pat) and Patsy Booth (Patsy), under a consulting agreement that was part of a transaction whereby Booth sold the business to his son Tom. The dispute arose after Pat and Patsy were dropped from Riverside’s group plan and were placed on a policy that provided coverage that they considered inferior to the group policy. The trial court construed the agreement as requiring Riverside to provide benefits at the same level or higher as the group plan in effect at the time of the agreement and awarded the Booths damages of $6,042.39 for their out-of-pocket expenses, together with attorney’s fees of $49,558.75. Riverside appeals, raising four assignments of error: (1) the trial court erred in not recusing; (2) the trial court erred in concluding that the consulting agreement was ambiguous; (3) in the alternative, the trial court erred in not giving effect to a merger clause and in finding that Pdverside agreed to provide a certain level of benefits; (4) the trial court erred in reforming the consulting agreement. We reverse and remand on the first point, thereby pretermitting discussion of the remaining points.
Pat founded Riverside in the 1970s and was its majority shareholder. Tom was the only other shareholder. In August 2001, Pat entered into a stock purchase agreement with Riverside and Tom whereby he would sell 169 shares to Tom. Riverside would redeem another 120 shares. Also as part of the sale, Pat and Riverside entered into a consulting agreement which provided, inter alia, that Pat would receive “[c]ompany paid health insurance for he and his wife and such health insurance shall continue for the life of [Pat] and the life of [Pat’s] wife, Patsy Booth.” The consulting agreement further provided that it would expire upon Pat’s death, provided that Riverside would continue health insurance coverage for Patsy until her death. The consulting agreement was specifically mentioned in the stock purchase agreement and incorporated by reference therein.
In July 2002, Riverside’s insurance agent, with Tom’s approval, wrote a letter to Pat, stating that, because Pat was not a full-time Riverside employee, it was illegal under federal law to carry him on Riverside’s group policy. The letter also suggested alternative coverages. On February 20, 2003, Tom notified Riverside’s insurance carrier that, effective March 1, 2003, Pat and Patsy were to be dropped from the group policy. Pat and Patsy obtained other coverage, for which Riverside has continued to pay.
Pat and Patsy filed suit against Riverside in August 2003, alleging that Riverside had breached the consulting agreement by providing less favorable benefits. The complaint sought damages for their additional out-of-pocket expenses, together with specific performance of the consulting agreement. In the alternative, they sought reformation of the consulting agreement. Riverside answered, denying that it had breached the consulting agreement and stating that the agreement required only that it provide health coverage, not group coverage.
Prior to trial, Riverside filed a motion in limine seeking to prevent Pat and Patsy from introducing parol evidence to vary the terms of the consulting agreement. According to Riverside, the hearing on its motion was not transcribed, and during that hearing, the trial judge denied the motion and indicated that Riverside was going to lose the case.
At the end of the first day of the bench trial and before Pat and Patsy had rested their case, Riverside’s attorney asked the trial judge about a ruling on the record on its motion in limine, and the judge indicated that the motion was denied. The trial judge then stated that “unless something happens, [Riverside is] going to have to pay. Ifyou-all want to settle this beforehand, now is the time.” The judge then stated that he was giving his thoughts on the matter in case the parties did not want to proceed and acknowledged that Riverside had not put on its defense. The next morning, Riverside moved for a mistrial and requested the trial judge’s recusal because of his comments. The trial judge denied the motions.
The trial court ruled from the bench that the term “company paid health insurance” was ambiguous because it was susceptible to more than one equally reasonable construction. The court also ruled that the insurance plan should be comparable to the plan in effect at the time of the agreements, July 18, 2001, and that the net out-of-pocket healthcare costs for Pat and Patsy should be no more than they had paid at that time. The trial court, upon Riverside’s request, entered more detailed written findings of fact. The written findings also included, as an alternative basis, that the trial court was reforming the consulting agreement to specify that the insurance coverage would be at the same level as of the time of the agreement. Judgment was entered in accordance with the trial court’s written findings and awarded Pat and Patsy damages of $6,042.39 and $49,558.75 for their attorney’s fees. An amended judgment was entered to award Pat and Patsy an additional $3,092.28 for their costs. This appeal timely followed.
For its first point, Riverside argues that the trial court erred in not recusing after the trial judge had made statements that Riverside asserts amounted to prejudgment of the case. This court’s general standard of review for cases involving recusal is well settled. The decision to recuse is within the trial court’s discretion, and it will not be reversed absent abuse. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court, and the burden is on the party seeking to disqualify. Id. To decide whether there has been an abuse of discretion, we review the record to determine if prejudice or bias was exhibited. Id. Absent some objective demonstration by the appellant of the trial judge’s prejudice, it is the communication of bias by the trial judge that will cause us to reverse his or her refusal to recuse. Id.
The comments complained of occurred while Pat and Patsy were still presenting their case but after Tom and Riverside’s insurance agent, Greg Hatcher, had testified. In making those comments, the trial judge, although recognizing that Riverside had yet to present its case, gave the appearance of having a mindset that could not be reconciled with the proposition that he was committed to hear all relevant, credible evidence, weighing it and arriving at a judicious result. See Ross v. State, 267 Ark. 1027, 593 S.W.2d 475 (Ark. App. 1980). In Ross, this court reversed the trial court’s revocation of a suspended sentence. At the beginning of the hearing on a petition to revoke a suspended sentence based upon allegations of use of alcohol, the judge asked the defendant if he understood that the terms of his suspended sentence required him to refrain from using alcohol. Upon the defendant’s admitting that he understood the suspended sentence was based upon this condition, the judge told the defendant’s attorney: “[Y]ou can call what witnesses you want, but I cannot sanction this type of conduct. . . .” This court reversed, stating that the trial judge’s comments showed “a [mindset] which cannot be reconciled with the proposition that the trial court is committed to hear all relevant, credible evidence weighing it and arriving at a judicious result.” 267 Ark. at 1032-33, 593 S.W.2d at 478.
Where the trial judge sits as a finder of fact, the appearance of fairness in trial proceedings becomes even more important. Burrows v. Forrest City, 260 Ark. 712, 543 S.W.2d 488 (1976); Ross, supra. The proper administration of the law requires not only that judges refrain from actual bias but also that they avoid all appearances of unfairness. Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). In Farley v. Jester, 257 Ark. 686, 520 S.W.2d 200 (1975), our supreme court stated:
[C]ourt proceedings must not only be fair and impartial — they must appear to be fair and impartial. This factor is mentioned in a Comment found in 71 Michigan Law Review 538, entided, “Disqualification of Interest of Lower Federal Court Judges: 28 U.S.C. § 455,” as follows:
Another factor to be considered in a judge’s decision to disqualify is the contention that the appearance of impartiality is as important, if not more so, than actual impartiality. In 1952, Justice Frankfurter explained his disqualification in a case by stating that “justice should reasonably appear to be disinterested as well as be so in fact.” The Supreme Court gave support to this view in the due process context when in Murchison Justice Black wrote for the Court:
“(T)o perform its high function in the best way ‘justice must satisfy the appearance of justice’.”
More recendy the Court set aside an arbitration award and stated that “(a)ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.”
257 Ark. at 692, 520 S.W.2d at 203-04. The supreme court stated in Patterson v. R.T., 301 Ark. 400, 784 S.W.2d 111 (1990):
Of course, a judge trying a case without a jury may develop “bias” as the trial progresses, and that “bias” ultimately may result in the court’s judgment. It is, however, the communication of that bias at inappropriate times and in inappropriate ways that will cause us to reverse. That is what has happened in this case. While we suggest no knowing violation or intentional misconduct on the part of the chancellor, we reverse this decision because it was so tainted by the appearance of prejudgment.
301 Ark. at 407, 784 S.W.2d at 781.
Here, the trial judge’s comments gave the appearance that Riverside’s liability had been predetermined. Moreover, the appearance of fairness in the case at bar was even more important because the trial judge was sitting as a finder of fact. See Ross, supra. To “satisfy the appearance of justice,” the trial judge should have resolved the issue in favor of the appearance of fairness and disqualified himself.
There is another reason why this case should be reversed on this issue: the trial court’s failure to make a record of the hearing on Riverside’s motion in limine during which one of the statements at issue was supposedly made. Administrative Order No. 4 provides that, “[u]nless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.” (emphasis added). See also Ark. Code Ann. § 16-13-510 (Repl. 1999). The supreme court has said that it strictly construes and applies Administrative Order No. 4. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003); see also Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003) (emphasizing that a verbatim record of the proceedings is a requirement). At oral argument, the parties agreed that there was no verbatim record made of the hearing on the motion in limine. They could not explain this failure. Both the supreme court and this court have held that a party’s silence on this issue at trial will not be construed as an implied waiver of the verbatim record requirement. Robinson, supra; Mattocks v. Mattocks, 66 Ark. App. 77, 986 S.W.2d 890 (1999).
Reversed and remanded with directions to transfer this case to another judge.
Hart and Glover, JJ., agree. | [
80,
126,
-4,
-116,
0,
35,
50,
19,
94,
37,
39,
115,
-1,
-21,
5,
47,
-25,
125,
-32,
58,
-76,
-77,
39,
34,
-41,
-101,
-79,
-43,
-79,
-49,
-27,
95,
-51,
44,
74,
21,
-30,
82,
-35,
80,
-30,
2,
-118,
-20,
-72,
70,
48,
123,
84,
75,
97,
-120,
-13,
44,
31,
-49,
41,
42,
121,
57,
80,
-7,
-84,
13,
111,
5,
33,
37,
-70,
119,
-40,
14,
-104,
-79,
8,
-24,
82,
-74,
6,
68,
99,
-103,
1,
98,
103,
0,
1,
39,
-56,
-104,
62,
-118,
31,
-123,
-109,
56,
65,
9,
-75,
-98,
54,
30,
-126,
-4,
-2,
28,
31,
109,
1,
-122,
-105,
-77,
-1,
98,
-36,
-125,
-1,
-77,
48,
100,
-49,
-88,
93,
69,
115,
19,
95,
-126
] |
Terry Crabtree, Judge.
A Pulaski County jury found appellant, Stephen Withers, guilty of two counts of theft by receiving, one a class B felony and the other a class C felony. As a result, he was sentenced as an habitual offender to respective terms of twenty-eight and twenty years in prison, to be served consecutively. The sole issue raised on appeal is whether there is sufficient evidence to support the class C felony conviction. Specifically, appellant argues that the evidence is not sufficient to support a finding that the card found in his possession was a “credit card.” We affirm as modified.
On May 6, 2002, Sam McFaddin discovered that his recently-purchased 2002 GMC Z-71 Extended Cab pickup truck was missing from his garage. Early on the morning ofMay 8, 2002, the home of Jack Lankford was burglarized. Mr. Lankford’s wallet was among several items that were stolen.
On May 8, 2002, officers with the Little Rock Police Department observed Mr. McFaddin’s truck, which had been reported as stolen, in the area of 26th and Rock Streets. They initiated a stop of the vehicle, but the vehicle continued onward for several blocks. Eventually, an individual jumped out of the truck, while it was still moving, and ran a short distance before being apprehended and arrested by the police. Appellant was identified as the individual who had been driving and had alighted from the truck. At booking, appellant’s wallet was found to contain a bank card issued to Mr. Lankford. By felony information, appellant was charged with theft by receiving of Mr. McFaddin’s truck, a class B felony, and theft by receiving of Mr. Lankford’s bank card, as a class C felony.
At trial, Mr. Lankford referred to the card as a “bank card” and identified the State’s exhibit as his “One Bank check card bearing my name and account number.” The exhibit, a photograph of the front side of the card, reveals that it is a check card issued by One Bank, which bears a VISA imprint. Before Mr. Lankford could cancel the card, it was used to make a fifty-dollar purchase at a Texaco station.
Appellant moved for a directed verdict on the ground that the evidence would not support a conviction of theft by receiving as a class C felony because it was not proven that the card was a “credit card.” The trial court denied the motion, and the jury found appellant guilty as charged. Appellant contends on appeal that the trial court erred in denying his motion for a directed verdict.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). We affirm a conviction if substantial evidence exists to support it. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, supra.
At the time the offense was committed in this case, Arkansas Code Annotated section 5-36-106(a) (Repl. 1997) provided that a person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen. Subsection (e)(2)(B) of the statute provided that the offense was a class C felony if the stolen property was a “credit card.”
Appellant’s contention is that the card in question was a “debit” card, not a “credit” card, and thus the conviction is not supported by substantial evidence because the version of § 5-36-106 in effect at the time of the offense made theft by receiving a class C felony only if the card was a credit card. Before considering whether there is substantial evidence to support the conviction as a class C felony, we must first decide if appellant’s proposed interpretation of the statute is correct.
The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). Penal statutes are strictly construed and all doubts are resolved in favor of the accused. Benson v. State, 86 Ark. App. 154, 164 S.W.3d 495 (2004). We also observe that sentencing is controlled by statute and that sentencing is in accordance with the statute in effect at the time of the commission of the offense. Cody v. State, 326 Ark. 85, 929 S.W.2d 159 (1996).
As previously noted, § 5-36-106(e)(2)(B) (Repl. 1997), in effect at the time of the offense, provided that theft by receiving of a “credit card” was a class C felony. We observe that in 2001, the legislature amended Ark. Code Ann. § 5-37-207, titled “Fraudulent use of a credit card,” to also criminalize the fraudulent use of a debit card. Likewise, in 2003, after the date of the offense in this case, the legislature amended the theft of property statute, Ark. Code Ann. § 5-36-103, and the theft by receiving statute, Ark. Code Ann. § 5-36-103, to include theft of a debit card, and theft by receiving of a debit card, as class C offenses. The 2003 act also amended Ark. Code Ann. § 5-36-105 to make the theft of property lost, mislaid, or delivered by mistake a class B misdemeanor if the property was a debit card. Thus, it is clear that the legislature recognizes that there is a distinction between credit cards and debit cards and that they are not one and the same thing. Strictly construing the statute, as we must, we conclude that, at the time the offense was committed in this case, theft by receiving of a credit card was designated as a class C felony, but that theft by receiving of a debit card was not.
We next decide whether there is substantial evidence to support a finding that Mr. Lankford’s card was a credit card. In his testimony, Mr. Lankford referred to the card as a “bank card.” Although the card bears a VISA imprint, on its face it also shows that it is a check card. It was the State’s burden to prove that the card was a credit card. See Hughes v. State, 3 Ark. App. 275, 625 S.W.2d 547 (1981). On this record, we are left to speculate whether the card was in fact a credit card. Therefore, we cannot say that there is substantial evidence to support appellant’s conviction for theft by receiving as a class C felony. As per appellant’s request, we reduce the conviction to a misdemeanor in accordance with Ark. Code Ann. § 5-36-106(e)(3). See Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979); Hughes v. State, supra.
Affirmed as modified.
Baker and Roaf, JJ., agree.
This case originated as a no-merit appeal pursuant to Rule 4-3 (h) of the Rules of Appellate Procedure - Criminal and has twice been before us. In an unpublished opinion dated January 12,2005, we remanded for the record to be supplemented. In an unpublished opinion handed down on April 27,2005, we ordered rebriefing in adversary form on the issue that is the subject of this appeal.
The State maintains that appellant’s argument is not preserved for appeal because the error complained of is a sentencing error to which appellant raised no objection at sentencing. We disagree with the State’s position that appellant’s argument involves an error in sentencing. Appellant’s argument is that the evidence is not sufficient to support his conviction of theft by receiving as a class C felony because there is no substantial evidence that the card in question was a credit card, an element that the State was required to prove to sustain the conviction as a class C felony under Ark. Code Ann. § 5-36-106(e)(2)(B) (Repl. 1997). Appellant moved for a directed verdict on this basis, and we consider this the appropriate means to challenge the sufficiency of the evidence.
Act 1142 of 2001, § 1, now codified at Ark. Code Ann. § 5-37-207(a) (Supp. 2005).
Act 838 of 2003, §§ 1 and 3, now codified, respectively, as Ark. Code Ann. § 5-36-103(b) (2) (D) (ii) (Supp. 2005) and Ark. Code Ann. § 5-36-106(e) (2) (B) (ii) (Supp. 2005).
Act 838 of 2003, § 2, now codified as Ark. Code Ann. 5-36-105(b)(2)(B)(ii) (Supp. 2005). | [
112,
-24,
-24,
-100,
26,
96,
42,
40,
-109,
-121,
96,
-110,
39,
64,
5,
97,
-25,
-1,
117,
113,
-12,
-73,
109,
-29,
-14,
-77,
-71,
71,
-80,
75,
-91,
-107,
29,
112,
-22,
93,
38,
72,
-25,
88,
-114,
-128,
59,
67,
-8,
73,
36,
-85,
6,
15,
-15,
31,
-9,
47,
30,
78,
45,
44,
75,
61,
-48,
-13,
-6,
5,
95,
20,
-111,
36,
-103,
5,
-8,
40,
-104,
113,
0,
73,
-14,
-106,
-126,
116,
73,
-117,
-115,
96,
98,
1,
20,
-113,
-28,
-119,
-82,
-2,
-97,
-90,
-102,
104,
65,
39,
-105,
-97,
118,
2,
14,
-6,
-25,
69,
25,
108,
7,
-50,
-108,
-111,
45,
48,
94,
122,
-1,
35,
18,
113,
-52,
-30,
92,
70,
121,
-101,
-114,
-73
] |
Wendell L. Griffen, Judge.
Randy Carver appeals from udge. divorce decree to equally divide his retirement benefits between him and appellee Pam Carver, his former wife. He argues that pursuant to Arkansas Rule of Civil Procedure 60, the trial court had no jurisdiction to modify the divorce decree. We disagree and affirm the trial court’s order.
Appellee filed for divorce in late 2003. It appears that no testimony was taken because there were no custody issues and because the parties agreed on the division of property. This agreement was set out in a letter prepared by appellant, which was forwarded by his attorney to appellee’s attorney in a letter dated March 5, 2004. It is undisputed that the parties agreed that appellee would waive her claim for spousal support in exchange for receiving one-half of appellant’s 401 (k) retirement account with Fidelity IPM Group, Inc., valued at approximately $198,000.
The original divorce decree in this case was entered on April 26, 2004, and specified the manner in which certain property would be divided pursuant to the parties’ agreement, and further specified that appellee relinquished her request for spousal support in exchange for the terms of the property agreement. The decree stated that “[t]he plaintiff and defendant have entered into an Agreement that settles the respective rights and claims of each party to property and support among other matters.” The decree also stated that the court retained jurisdiction “for such other orders and actions as may be necessary and proper.” However, the decree did not include a provision dividing appellant’s retirement account. Despite that omission, both parties signed the order, which was entered without objection.
On June 10, 2004, appellee’s attorney realized that the divorce decree did not provide for the equal division of appellant’s retirement account when she drafted the Qualified Domestic Relations Order to effectuate the division. On that same day, she sent appellant’s attorney a letter requesting agreement to an amended decree to correct the mistake. Appellant’s attorney failed to respond, so on June 16, 2004, appellee filed a motion to modify or set aside the divorce decree; she subsequently filed a supplemental motion and brief-in-support thereof, asserting that the retirement provision had been “inadvertently omitted” from the divorce decree. In response, appellant did not deny the retirement provision had been inadvertently omitted. Instead, he asserted that appellee’s motion to modify should be denied because omission of a provision dividing a retirement plan is not a clerical error under Arkansas law that may be corrected after ninety days after entry of the order, that the divorce decree was unambiguous and did not need to be amended, and that the court could only correct the record to confirm the action actually taken at the time the decree was entered.
Pursuant to Rule 60, the ninety-day deadline for amending the divorce decree expired on July 26, 2004. Due to its docket, the trial court was unable to schedule a hearing on the matter within this ninety-day period. Therefore, at appellee’s request, on July 19, 2004, well-within the relevant ninety-day period, the trial court entered an order specifically retaining jurisdiction over the issue of the division of appellant’s retirement account. Appellant subsequently filed a motion to dismiss.
The hearing was held on August 23, 2004, and consisted of counsel reiterating the arguments that they raised in their motions. During the hearing, appellant’s counsel conceded that the parties intended for the retirement provision to be included as part of the property settlement that was incorporated into the original divorce. The trial court thereafter entered an order amending the divorce decree to reflect that each party would receive one-half of the value of appellant’s retirement account. The issue appealed to us is whether the trial court had jurisdiction under Rule 60(a) to modify the divorce decree. We hold that it did and affirm the court’s order modifying the decree.
Rule 60(a) provides that a trial court may modify or vacate an order within ninety days of its entry to correct errors or mistakes. After ninety days, the trial court may modify or vacate orders under Rule 60(b) for clerical errors or for reasons stated in Rule 60(c) (which are not applicable here). This means that a trial court loses jurisdiction to set aside or modify an order pursuant to Rule 60 after ninety days, unless it has reserved jurisdiction over an issue, unless the error is a clerical error under Rule 60(b), or unless one of the reasons stated in Rule 60(c) are present. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988); Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171 (1986). Moreover, although Rule 60(a) permits trial courts to correct their judgments, this power is confined to correction of the record to make it conform to the action that was actually taken at the time, and does not permit a decree or order to be modified to provide for action that the court, in retrospect, should have taken, but which, in fact, did not take. Jones, supra.
Appellant’s argument is that because the omission of a retirement provision in a divorce decree is not a clerical error that can be corrected after ninety days, Tyer v. Tyer, 56 Ark. App. 1, 937 S.W.2d 667 (1997), the trial court lacked jurisdiction to amend the divorce decree more than ninety days after the date of its entry. While we agree that the omission of a retirement provision is not a clerical error, we disagree that the trial court here lacked jurisdiction to amend the divorce decree.
Generally, the parties to a divorce action may enter into an independent agreement to settle property rights which, if approved by the court and incorporated into the decree, may not be subsequently modified. Jones, supra. Nonetheless, a general reservation of jurisdiction will permit modification of a decree after ninety days with respect to issues that were before the trial court in the original action. Jones, supra; Cox, supra. The terms of the agreement and the intention of the parties determine whether a property settlement covers all property owned by the parties. Jones, supra.
The parties here undeniably intended for a provision equally dividing the retirement account to be part of the property settlement. Because the parties intended the property agreement to settle their rights, and because appellant’s retirement account was not included in the property settlement, it was proper for the trial court to determine whether the parties intended for the retirement account to be included in the property settlement. Jones, supra. Further, because the issue of the property settlement was clearly before the trial court, its general reservation of jurisdiction was sufficient to allow it to retain jurisdiction over the matters related to the property settlement, even though the specific issue of the retirement account was not mentioned in the decree. Cox, supra (affirming the modification of a divorce decree after ninety days and finding that the general reservation clause was sufficient to reserve the specific issue of tax liability even though the divorce decree did not include a finding of tax liability). Further, within the ninety-day period, the trial court entered an order specifically reserving the issue of the retirement account, thus retaining jurisdiction over that issue beyond the ninety-day limitations period. See contra Jones, supra (reversing modification of a divorce decree where the issues upon which the court amended the decree were not presented to the trial court until after the ninety-day period had expired).
Appellant relies heavily upon Tyer, supra, but that case is inapplicable for several reasons. Most importantly, unlike the parties in the instant case, the parties in Tyer never reached a property settlement agreement that was incorporated into the divorce decree and thus did not agree how the retirement account should be divided. Further, the Tyer spouse did not move for division of the retirement account within the requisite period under Rule 60, but waited until thirteen months after the divorce decree to raise the issue to the trial court.
Additionally in Tyer, we relied on the fact that the record did not contain sufficient information concerning the nature of the benefits to determine how the wife’s share should be apportioned; therefore, we concluded that there was no record made that would justify amending the decree to include a provision dividing the retirement plan on the strength of a general reservation of jurisdiction. The same cannot be said of the instant case because here, within the ninety-day period, the trial court was made aware of the undisputed fact that the parties agreed as to the value of the retirement account and that it should be equally divided. Therefore, unlike the trial court in Tyer, it cannot be said that the trial court here did not have sufficient information to determine how appellee’s share of the retirement account should be apportioned.
Additionally, the trial court’s amendment here did not improperly modify the decree to take an action that it should have taken in the original order but did not take. Jones, supra. In Jones, we reversed the trial court’s modification of a divorce decree after ninety days because the trial court erroneously amended the decree to include certain provisions that the parties did not intend to be included in the property settlement. That clearly is not the case here. Rather, this case is more akin to Cox, supra. In that case, despite the omission of a finding of tax liability in the divorce decree and in light of the ex-wife’s expressed willingness at trial to sign a joint return, we affirmed the trial court’s modification of a divorce decree after ninety days that required her to either sign a joint federal tax return or to pay one-half of the increased tax liability caused by her refusal to sign. Like the amendment in Cox, the modification here does not change the effect of the original decree but merely requires the parties to do what they were willing to do at the time the original decree was entered.
Finally, none of the remaining cases cited by appellant warrant reversal. In short, the instant case is distinguishable from those cases because those cases required a showing of fraud or because the trial court in those cases did not reserve jurisdiction over the contested issues or had no basis for exercising continued jurisdiction.
Affirmed.
Vaught and Roaf, JJ., agree.
He also argues that Arkansas Rule of Civil Procedure 6, which specifies the circumstances in which the time for taking an action may be enlarged, prohibits the enlargement of the time frame under Rule 60(a). However, appellant did not raise this argument below. Further, he cites to no convincing authority, and it is not apparent without further research that his argument is well-taken. Accordingly, we do not consider this argument. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002); Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998). | [
17,
125,
-43,
92,
-119,
32,
58,
-72,
82,
-113,
7,
83,
111,
-18,
80,
59,
114,
123,
80,
104,
-43,
-77,
118,
64,
90,
-77,
-39,
-44,
-76,
79,
-20,
-105,
92,
32,
-62,
-41,
70,
-78,
-121,
20,
110,
4,
-117,
109,
-39,
70,
48,
103,
64,
13,
33,
-49,
-15,
13,
57,
-53,
108,
108,
93,
52,
-48,
-72,
-113,
-115,
127,
7,
-79,
36,
-40,
46,
88,
10,
4,
57,
0,
-23,
51,
-74,
34,
116,
91,
26,
9,
98,
114,
-111,
37,
-1,
-108,
-120,
6,
-67,
-99,
-90,
-45,
25,
104,
0,
-74,
-68,
116,
92,
6,
-10,
102,
12,
62,
100,
-118,
-50,
-58,
-79,
-116,
112,
-100,
-125,
-21,
-63,
16,
112,
-54,
-30,
93,
71,
123,
-101,
-57,
-96
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.