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Andree Layton Roaf, Judge.
Kevin Meins appeals from udge. of his visitation with his two minor children, in which his daily weekday visitations were terminated and his visitation was reduced to alternate weekends. Kevin alleges that the trial court erred in allowing certain expert testimony under the medical-hearsay exception and alleges that the evidence does not support the modification of his visitation rights. We affirm.
Kevin Meins and Judy Meins were divorced in July 2003. Judy received full custody of the couple’s two children, Kaleb and Lindsey, while Kevin received certain visitation rights outlined in the decree. Kevin’s visitation included picking the children up from school each afternoon and taking them to his home, where Judy would pick them up after she left work at about 5:00 p.m.
The decree listed several requirements concerning visitation. The most pertinent provisions are as follows:
h.For all periods of visitation Defendant (Judy) will call Plaintiff (Kevin) prior to picking up the minor children. Plaintiff will have the minor children ready to leave and allow the minor children to go to Defendant’s vehicle. There shall not be any contact between the parties during the exchange of the children.
i.Neither party will make any disparaging remarks about the other in the presence of the minor children.
j.During all periods of visitation and in the presence of the minor children Plaintiff shall not consume any alcohol. . . .
m. Each party is enjoined and restrained from doing, attempting to do, or threatening to do any act injuring, mistreating, molesting or harassing the other party.
5. Plaintiff shall make an appointment with Dr. Harley J. Harber for treatment of anger management counseling, substance abuse counseling and assessment for medication as well as individual counseling. . . .
Subsequent to the divorce, the after-school visitation arrangement ran smoothly for a while. Judy, however, began to believe that Kevin had not followed some of the terms of the divorce decree and that Kevin had personal issues constituting a material change in circumstances that warranted an amendment of the visitation terms. Judy filed a motion for contempt, in which she accused Kevin of violating the terms of the decree and of making disparaging remarks about her and her new husband in front of the children. At the hearing, the trial court allowed, over Kevin’s hearsay objections, certain expert testimony of social worker, Lisa Doan, under the medical exception to hearsay. Ms. Doan had provided therapy to Lindsey, who suffered from self-esteem issues, and Kaleb, who has Tourette’s Syndrome, anxiety issues, and ADHD.
Ms. Doan testified that the children exhibited anxiety and confusion over the current relationship of their parents. She testified that the children told her that Kevin had made certain disparaging remarks, including saying that their stepfather, Glen Shooks, had slept with their mother before marriage and that he had a “black” heart and should not be allowed around them. Ms. Doan also testified that, in addition to defying the divorce decree by walking the children to Judy’s car, Kevin would confuse the children when he would include Judy in his goodbye “I love yous.” Ms. Doan said that the children then had difficulty understanding the divorce and why their mother could not love their father.
Additionally, Ms. Doan testified that, on one occasion, she had spoken with Kevin over the telephone, and he was slurring his words and being argumentative. She stated that Kevin’s drinking scared Kaleb, who had related to her a story about a time when his father almost had a car accident after he had been drinking. Lindsey told Ms. Doan that her father “acted weird” when he drank. Ms. Doan expressed her concern over the conflict that the children were experiencing and suggested that it needed to stop. She recommended that Kevin seek counseling and assistance so that he could get his life together and also suggested a neutral setting for transferring the children.
Judy testified that Kevin intimidated her when he would bring the children out to the car. Although the divorce decree required Kevin to have no contact with Judy, he would walk the children to the car, carry their backpacks, and strap them into their
seatbelts. He would then tell the children that he loved them and would sometimes tell Judy that he loved her too.
In 2004, Kevin was convicted twice for DWI. After the second conviction, he received a sentence of seven days of community service and his license was suspended until February 28, 2006. Kevin failed to complete his community service requirement and was jailed for ten days. Despite having a suspended license, Kevin still picked up the children after school. Judy testified that she had personally seen Kevin driving the children around after his license was suspended.
Judy also indicated that she had spoken to Kevin on several occasions when he was intoxicated and that he had spoken to and interacted with his children while he was intoxicated. She testified that on the day of her wedding to Glen Shook, Kevin left a message on the family answering machine calling Glen “white trash” and a “m.***** ”
Judy also testified that Kevin had called her vulgar names in front of the children, had called her a liar, and had told the children that she did not love them and only did things to make herself happy, causing the children to become extremely nervous and anxious. Judy’s sister also testified that Kevin had made disparaging remarks about Judy in front of the children. Additionally, Judy suggested that Kevin failed to give Kaleb his medication during weekend visitations.
Kevin testified that, after his license was suspended, his mother drove him to pick up the children after school. Kevin admitted that he did walk the children to Judy’s car and stated that he told Judy “I love you” in order to demonstrate that people could still care about each other even though everything had “gone to hell.” Kevin accused Judy of having an affair with her current husband while both were still married and said that they lived in the same house with the children for about six months before they actually got married. Kevin said that he nevertheless did not then contest the custody arrangement because of his DWI conviction.
Kevin admitted to leaving a derogatory message on Judy’s answering machine on the day of Judy’s wedding, but he claimed that Glen was a bad person who ran a porn site and who was on his fifth wife and had mistreated all his wives and children. Kevin also admitted that he had driven the children with no license, on those occasions when his parents were out of town. He denied that he failed to give his son his medication. Kevin asserted that he had been receiving treatment for anger, depression, alcoholism, and ADD, but did not see the doctor specified in the divorce decree because he felt more comfortable going to his own doctors. Kevin also testified that he only had a problem with alcohol on occasion and that he was “working on fixing” that problem. Kevin also claimed that he had only walked the children to the car on two occasions to communicate with her about the children after Judy asked him to stop.
Kevin’s mother testified on his behalf and claimed that Judy’s bringing escort cars to pick up the children had negatively affected the children. She said that she had had confrontations with these people and had made police reports each time she noticed a car waiting outside her house. Kevin’s mother admitted that Kevin walked the children to the car, carried their backpacks, and buckled them into their safety belts. She also admitted that Kevin had a difficult time adjusting to Judy’s new marriage and had resorted to using alcohol, but stated that he did not currently have an alcohol problem and that he had his anger under control. In addition, she testified that Kaleb did not get his medication during the weekends because she and Kevin felt he did not need it on the weekends.
The trial judge found Kevin in contempt for violating the court order by walking the children to Judy’s car and continuing to have contact with her. The trial court further concluded that the on-going problems between the parties warranted modification of visitation, especially in light of Kevin’s continued use of disparaging remarks. The trial court eliminated Kevin’s weekday visitations and allowed him only alternate weekends. The court ordered Kevin to provide proof of the installation of an interlock ignition device on his car before he could personally drive the children; until then, someone else had to pick them up. The trial court also ordered Kevin to give Kaleb all of his medication and gave Kevin thirty days to go to the court-specified doctor for counseling. Kevin now appeals.
Kevin first argues that the trial court erred when it considered expert testimony about statements the children made to the social worker under the medical-hearsay exception. The trial court has broad discretion when it comes to the admissibility of evidence. Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997). The appellate court will not reverse the lower court’s ruling on either the admissibility of expert testimony or on a hearsay question unless the appellant can show that the court abused its discretion. Id. In order to show abuse of discretion, the appellant must demonstrate that the trial court acted improvidently, thoughtlessly, or without due consideration. Carew v. Wright, 356 Ark. 208, 148 S.W.3d 237 (2004). Additionally, the appellate court will not reverse an evidentiary ruling absent a showing of prejudice. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
Hearsay is defined 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.” Ark. R. Evid. 801(c) (2005) (emphasis added). In this case, Ms. Doan’s expert testimony included testimony about statements the children had made to her. Over Meins’s objection, the trial court stated that it would allow Ms. Doan to testify about what the children told her regarding their father’s disparaging remarks under the medical diagnosis or treatment exception. The court further stated that this portion of her testimony would go towards “the weight of the evidence, not necessarily the truth.”
In this instance, the trial judge allowed Ms. Doan’s testimony under the medical diagnosis or treatment exception. Rule 803(4) of the Arkansas Rules of Evidence specifically excludes from the hearsay rule those statements given by a declarant “for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” The basis for this exception is the patient’s strong motivation to be truthful in giving statements for diagnosis and treatment. Carton v. Mo. Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). We do not agree that Ms. Doan qualified as a medical expert or that the testimony at issue was admissible pursuant to the medical exception or possessed the same degree of reliability.
However, the testimony was generally admissible under Rule 703; we will affirm a.trial court when it has reached the right result although it announces the wrong reason. See Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997); Almobarak v. McCoy, 84 Ark. App. 152, 137 S.W.3d 440 (2003). According to Rule 703 of the Arkansas Rules of Evidence, 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. It is well settled that Rule 703 allows an expert witness to form an opinion based on facts learned from others despite its being hearsay. Carter v. St. Vincent Infirmary, 15 Ark. App. 169, 690 S.W.2d 741 (1985); Ark. State Highway Comm’n v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985). In addition, although this rule is not intended to give an expert witness license to merely repeat hearsay for the sake of putting such information before the trial court, “an expert must be allowed to disclose to the trier of fact the basis of facts for his opinion, as otherwise the opinion is left unsupported in midair with little if any means for evaluating its correctness.” Lawhon v. Ayres Corp., 67 Ark. App. 66, 992 S.W.2d 162 (1999); Schell, supra. In this case, both sides stipulated that Ms. Doan was an expert witness. The children’s statements to Ms. Doan about the remarks their father made about their mother and stepfather helped form the basis of her opinion that the animosity between Kevin and Judy caused the children to be stressed and that visitation exchanges should occur on neutral territory.
Moreover, we note that Judy and her sister both testified, without objection, to disparaging remarks they heard Kevin make in front of the children, and Kevin himself admitted to making certain disparaging remarks. Even when hearsay is erroneously admitted, the appellate court will not reverse if the hearsay evidence is cumulative of other evidence admitted without objection. See Madden v. Aldrich, 346 Ark. 405, 585 S.W.3d 342 (2001); Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). In this case the evidence was also cumulative of the testimony of other witnesses.
Kevin also argues that the trial court erred when it modified his visitation by eliminating his weekday visits. In this regard, the trial court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or of facts not known to it at the time of the initial order. Stellpflug v. Stellpflug, 70 Ark. App 88, 14 S.W. 3d 536 (2000). Visitation is always modifiable; however, courts require more rigid standards for modification than for initial determinations in order to promote stability and continuity for the children and in order to discourage repeated litigation of the same issues. Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). The party seeking a change in the visitation schedule has the burden to demonstrate a material change in circumstances that warrants a change in visitation, Id. The best interests of the children are the main considerations. Id. There are several factors to take into consideration when determining reasonable visitation, including (1) the wishes of the children; (2) the capacity of the party desiring visitation to supervise and care for the child; (3) problems of transportation and prior conduct in abusing visitation; (4) the work schedule or stability of the parties; and (5) the relationship with siblings or other relatives. Id.
In the present case, however, there was ample evidence presented to suggest that a change in circumstances warranted modification of visitation. Ms. Doan and Judy testified that the animosity between Kevin and Judy caused Lindsey and Kaleb a great deal of stress; and Ms. Doan suggested that some type of modification would be in the best interest of the children and that it was necessary to keep the parties on neutral territory during pick up and drop off. In addition, Kevin accumulated two DWI convictions after the divorce and had his drivers’ license suspended. Other testimony also established that Kevin had issues with alcohol and that he frightened the children when he was under the influence. The evidence also reflected that Kevin had failed to seek help for his anger and alcohol issues from the court-ordered physician. Kevin also admitted to making disparaging remarks and disobeying the decree by repeatedly walking the children to Judy’s car. Based on the evidence, we cannot say that the trial court erred in finding that there had been a change in circumstances and that it would be in the children’s best interests to modify Kevin’s visitation rights eliminating the daily visits so as to lessen the need for contact between the parties.
Affirmed.
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Olly Neal, Judge.
Appellant, Jerry Wayne Williams, appeals the Garland County Circuit Court’s dismissal of his appeal for failure to appear at a readiness hearing. On appeal, he asserts that the circuit court erred in dismissing his appeal. We agree; therefore, we reverse and remand.
Appellant was convicted in the Hot Springs Municipal Court of driving while intoxicated and refusing a chemical test. Appellant filed an appeal in the Garland County Circuit Court and was subsequently arraigned there. A jury trial was set for August 27, 2001. A readiness hearing was later scheduled for August 14, 2001, and written notice was sent. Appellant failed to appear at the hearing; however, his attorney did appear. The circuit court entered an order dismissing the appeal due to appellant’s absence from the hearing.
Appellant filed a motion to set aside the dismissal of his appeal, and a hearing on the motion was held on September 18, 2001. At the hearing, appellant testified that he had moved and that he had provided his new address to the circuit clerk. Appellant asserted that he did not willfully fail to appear and that he was prepared to go to trial. He testified that he did not learn of the readiness hearing until the afternoon of August 14, 2001, when the United States Postal Service delivered the written notice to his home. The court denied appellant’s motion to set aside the order 'of dismissal.
Arkansas Code Annotated section 16-96-508 (1987) provides:
If the appellant shall fail to appear in the circuit court when the case is set for trial, or if, in the event that the justice or other magistrate who tried the case shall fail to file the transcript and papers as provided in this subchapter, and the appellant shall fail to appear and move the court for an order to compel the justice or magistrate to so file within the first three (3) days of the first term of the circuit court beginning more than ten (10) days after the appeal was prayed, then the circuit court may, unless good cause is shown to the contrary, affirm the judgment of the justice, police, or city court and enter judgment against the appellant for the same fine or penalty that was imposed in the inferior court, with costs. This judgment shall have the same force and effect as other judgments of the circuit court in cases of convictions or indictments for misdemeanors.
(Emphasis added.) When a municipal court appeal is dismissed, the judgment of the municipal court remains valid and enforceable. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). Furthermore, when a misdemeanor charge is involved, counsel may appear on behalf of his client. See Prine v. State, 267 Ark. 304, 590 S.W.2d 25 (1979).
Section 16-96-508 authorizes dismissal if the appellant fads to appear for trial. The August 14 hearing was a readiness hearing and not appellant’s trial; therefore, section 16-96-508 did not apply. We hold that the dismissal of appellant’s appeal was not authorized by the statute; therefore, we reverse and remand.
Reversed and remanded.
Bird and Baker, JJ., agree. | [
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Sam Bird, Judge.
Appellant, Southern Farm Bureau (SFB), appeals a summary judgment entered by the White County Circuit Court in favor of appellees, Gary and Veronica Craven. The trial judge ruled that Colorado law rather than Arkansas law governed SFB’s obligation to provide no-fault insurance coverage to appellees. We reverse and remand with instructions to enter summary judgment in favor of appellant.
Veronica Craven, an Arkansas resident, was injured in an automobile accident in Colorado on June 2, 2001, while riding in a minivan owned by her and Gary Craven, her husband. The van was registered and principally garaged in Arkansas, and it was insured by SFB under a policy issued in Arkansas. The policy provided $5000 in personal injury protection (no-fault) medical coverage, the minimum required by Arkansas law. See Ark. Code Ann. § 23-89-202(1) (Repl. 1999).
Following the accident, SFB paid Mrs. Craven the $5000 limits of her policy’s no-fault medical and hospital benefits protection. Thereafter, SFB received a letter from Mrs. Craven’s Colorado attorney seeking coverage for additional no-fault benefits claimed to be available to Mrs. Craven under Colorado law. Colorado’s no-fault law differs markedly from Arkansas’s in that Colorado law requires minimum no-fault medical expense benefits of $50,000 per person per accident. See Colo. Rev. Stat. Ann. § 10-4-706(b) (West 2001).
Upon receiving Mrs. Craven’s request for additional no-fault benefits, SFB filed a petition in White County Circuit Court seeking a declaration that Arkansas law would apply to determine the amount of coverage it owed to the Cravens. The Cravens answered and denied that Arkansas law applied. Thereafter, SFB filed a motion for summary judgment that included the affidavit of district claims manager Don Alpe. In his affidavit, Alpe stated that SFB was a Mississippi company authorized to do business in Arkansas but not in Colorado; that the Cravens’ policy was written in Arkansas by an Arkansas agent covering vehicles that were registered and principally garaged in Arkansas; and that SFB had paid $5000 in no-fault medical benefits to satisfy Mrs. Craven’s medical bills, of which only $738.38 was paid to Colorado providers. Also attached to SFB’s motion was a certified copy of the Cravens’ policy. The policy provided that, as to no-fault medical benefits, SFB’s liability would not exceed $5000 for each covered person.
The Cravens responded to SFB’s motion with their own motion for summary judgment and argued that (1) all motor vehicles operating in the state of Colorado were required to comply with Colorado’s compulsory insurance coverage laws, (2) choice of law considerations dictated that Colorado law should apply to determine the amount of no-fault coverage owed by SFB, and (3) SFB’s policy contained a provision that would require it to comply with Colorado’s no-fault laws. The trial judge granted the Cravens’ motion, and this appeal followed.
Normally, in an appeal from a summary judgment, the evidence is viewed most favorably to the party resisting the motion, and any doubts and inferences are resolved against the moving party. But when the parties agree on the facts, we need only determine whether the appellee was entitled to judgment as a matter of law. See Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). In a case such as this one, where both sides moved for summary judgment and thus, in essence, agreed that there were no material facts remaining, summary judgment was an entirely appropriate means for resolution of the case. See McCutchen v. Patton, 340 Ark. 371, 10 S.W.3d 439 (2000).
Issues regarding conflict of laws in auto insurance cases are especially challenging due to the fact that although the insurance contract may be issued in one state, events triggering coverage may happen in another state. In Bohannan v. Allstate Ins. Co., 820 P.2d 787 (Okla. 1991), the Oklahoma Supreme Court recognized that:
[o]ur mobilized society and the divergent directions and purposes of the statutory and judicial developments in motor vehicle insurance law of the various states breed multistate conflict of laws issues in motor vehicle insurance or accident litigation.
Id. at 790.
Choice-of-law questions regarding insurance coverage have traditionally been resolved by applying the law of the state where the insurance contract was made (the lex loci contractus rule). See Robert A. Leflar, Luther McDougal, & Robert Felix, American Conflicts Law § 153 (4th ed. 1986); Restatement (Second) Conflict of Laws § 193 (1971). See generally John Hancock Mut. Life Ins. Co. v. Ramey, 200 Ark. 635, 140 S.W.2d 701 (1940) (holding that the rights and liabilities of the parties to an insurance contract should be determined with regard to the law of the state where the contract was made). The lex loci contractus rule generally comports with the reasonable expectations of the parties concerning the principal situs of the insured risk, and it furnishes needed certainty and consistency in the selection of applicable law. See State Farm Mut. Auto. Ins. Co. v. Simmons, 84 N.J. 28, 417 A.2d 488 (1980).
Despite the easy applicability of the lex loci contractus rule, courts sometimes consider, in addition to the place where the contract was made, which state has the most “significant contacts” with the issue at hand. See id. The contacts to be taken into account include (1) the place of contracting; (2) the place of negotiation of the contract; (3) the place of performance; (4) the location of the subject matter of the contract; and (5) the domicile, residence, nationality, place of incorporation and place of business of the parties. See Restatement (Second) Conflict of Laws § 188 (1971). Arkansas courts have not applied the significant contacts analysis in a case involving an insurance contract, but it has been applied in the case of ordinary contracts. See Ducharme v. Ducharme, 316 Ark. 482, 872 S.W.2d 392 (1994); Standard Leasing Corp. v. Schmidt Aviation, Inc., 264 Ark. 851, 576 S.W.2d 181 (1979).
We believe that, whether the lex loci contractus rule or the significant contacts analysis is applied, the insurance contract in the present case is governed by Arkansas law. It is undisputed that the insurance contract was made in Arkansas. Further, virtually all significant contacts are with the state of Arkansas. The insureds are Arkansas residents, the insurance contract was written through an Arkansas agent, the insured vehicles are registered and principally located in Arkansas, and the policy complies with Arkansas law regarding minimum coverages. The only contact with the state of Colorado is that it was the situs of the accident. Where the only connection with a state is that it was the site of the accident, the state’s contact is not significant enough to merit application of its law. See, e.g., State Farm. Mut. Auto. Ins. Co. v. Simmons, supra; Fortune Ins. Co. v. Owens, 132 N.C. App. 489, 512 N.E.2d 487 (1999); Nelson v. Allstate Indem. Co., 202 W.Va. 289, 503 S.E.2d 857 (1998).
The Cravens contend that we should apply choice-of-law rules applicable to tort actions rather than contract actions. They refer in particular to the traditional rule that, in tort cases, the law of the state where the accident occurred is controlling (the lex loci delicti rule). We disagree that the lex loci delicti rule should apply here because this is a contract case. The issues revolve around an insured’s attempt to recover benefits directly from her own insurance company. An insurance policy is a contract between the insurer and the insured. See Lumbermen’s Mut. Cas. Co. v. Moses, 224 Ark. 67, 271 S.W.2d 780 (1954). Additionally, our supreme court has recognized that the lex loci delicti rule need not be mechanically applied, and has considered, in addition to that rule, five choice-influencing considerations established by Professor Leflar to determine which state’s law should govern: (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interests; and (5) application of the better rule of law. See Wallis v. Mrs. Simpson’s Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977). The application of the five considerations here, particularly regarding the predictability of results and simplification of the judicial task, favors Arkansas law. While an insurer and an insured may not be able to predict where an automobile accident may occur, they will always know the state where the contract was entered into, where the insured resides, and where the insured automobiles are registered.
The Cravens express concern that, if we apply Arkansas law in this case, Mrs. Craven may be precluded from recovering the full amount of her medical expenses. They refer to the fact that under Colorado law, a victim is prohibited from recovering damages from a tortfeasor that are recoverable as no-fault benefits from her insurer. See Colo. Rev. Stat. Ann. § 10-4-713(1) (West 2001); Hickenbottom v. Schmidt, 626 P.2d 726 (Colo. Ct. App. 1981). A victim must, therefore, seek compensation for her first $50,000 in medical expenses from her own insurer, through no-fault coverage. The Cravens claim that if Mrs. Craven’s no-fault recovery is limited to $5000 under Arkansas law, she will be left without recourse for the next $45,000 in medical expenses. We disagree that this prediction will come to pass. The Colorado statutes prohibit “any person eligible for direct benefits described in section 10-4-706(1)(b)” from recovering those benefits from the tortfeasor. See Colo. Rev. Stat. Ann. § 10-4-713(1) (West 2001). Because we hold that Mrs. Craven’s no-fault claim is subject to Arkansas law, it follows that she is not “eligible” for Colorado no-fault benefits and thus is not affected by the concomitant Colorado law restricting recovery against the tortfeasor. In fact, having recovered no-fault benefits under Arkansas law, she may proceed in tort as allowed by Arkansas law to recover from the tortfeasor. See Ark. Code Ann. § 23-89-206 (Repl. 1999) (retaining tort liability arising from the ownership, maintenance, or use of a motor vehicle). This would not do violence to the Colorado laws because its drivers are required to carry liability insurance. See Colo. Rev. Stat. Ann. § 10-4-706(l)(a) (West 2001).
We are aware that our decision, by applying Arkansas’s no-fault law, is contrary to Colorado statutes and court decisions. Colorado law requires every owner of a motor vehicle who operates the vehicle on the state’s public highways to have in full force and effect a “complying policy.” Colo. Rev. Stat. Ann. § 10-4-705(1) (West 2001). See also Ranger v. Fortune Ins. Co., 881 P.2d 394 (Colo. Ct. App. 1994). However, we are not bound to follow Colorado’s law in determining the rights of an Arkansas resident under a policy of insurance issued in this state. In Orintas v. Meadows, 17 Ark. App. 214, 706 S.W.2d 199 (1986), the Meadowses, who were residents of Ohio, were injured in a car accident in Arkansas. As a result, they received workers’ compensation benefits from their employer, an Indiana corporation. They also hired an Arkansas attorney, Orintas, to pursue a claim against the estate of the other driver, who was an Arkansas resident. Orintas procured a $50,000 settlement. A dispute then arose as to the amount of Orintas’s fee, which would have been greater under Indiana law than Arkansas law. Orintas argued that an Indiana statute required that Indiana law should be followed when one of its workers was injured in another state. We said:
We do not agree that we are bound by Indiana law. Carroll v. Lanza, 349 U.S. 408, 412 (1955), stated that “the Full Faith and Credit Clause does not require a State to substitute for its own statute, applicable to persons or events within it, the statute of another State reflecting a conflicting and opposed policy.”
Id. at 217, 706 S.W.2d at 201. We hold that this reasoning also applies to the circumstances of our present case, in that Colorado law will not be substituted for our own.
Finally, we address the argument that SFB’s policy, by its own language, requires the application of Colorado’s no-fault law. The policy includes the following provision:
Compulsory Auto Insurance Law or Financial Responsibility Law
If an auto accident to which this policy applies occurs in any state or province other than Arkansas, we will interpret your policy for that accident as follows:
1. If the state or province has:
a. A financial responsibility or similar law specifying limits of liability for bodily injury or property damage higher than the limit shown in the Declarations, your policy will provide the higher specified limit.
b. A compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage.
SFB argues that this provision applies only to liability coverage because it is contained in the policy’s liability- section. Other courts that have considered this question agree that similar conformity-of-coverage provisions, because of their location in the liability section, apply only to liability coverage. See Frost v. Liberty Mut. Ins. Co., 828 S.W.2d 915 (Mo. Ct. App. 1992); Jarrett v. Pennsylvania Nat’l Mut. Ins. Co., 400 Pa. Super. 565, 584 A.2d 327 (1990); State Farm Mut. Auto. Ins. Co. v. Tennessee Farmers Mut. Ins. Co., 645 N.W.2d 169 (Minn. Ct. App. 2002).
In determining the meaning of a clause in an insurance policy, the whole policy is considered. See Continental Cas. Co. v. Didier, 301 Ark. 159, 783 S.W.2d 29 (1990). The SFB policy is clearly divided into sections that are applicable to particular types of coverage. The above-mentioned provision is contained only in the liability coverage section of the policy. Therefore, we agree with SFB that the provision applies only to SFB’s responsibility to provide liability coverage that conforms to the minimum financial responsibility laws of other states, not to first-party, no-fault coverage.
For the reasons stated, we reverse the trial court’s grant of summary judgment in favor of the Cravens and remand the case with directions to enter summary judgment in favor of SFB. Our holding makes it unnecessary for us to address SFB’s argument that the application of Colorado law in this case would be unconstitutional.
Reversed and remanded.
Jennings and Crabtree, JJ., agree.
We also note that, even though Orintas applied Arkansas law in a case involving non-residents who were injured in a car accident here, we were not primarily concerned with the rights of those residents but with the rights of an Arkansas citizen, the attorney Orintas, regarding the amount of his fee. | [
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John B. Robbins, Judge.
In this case, appellants Jane Stanley udge. filed suit seeking to set aside certain deeds executed by their stepfather Damon Utley in favor of appellees Scottie Burchett and her husband, Dick Burchett. Scottie is one of Utley’s daughters. At the close ofjane and Rose Mary’s proof, the trial court granted Scottie’s motion for a directed verdict on the basis that they had not shown that Udey lacked capacity to execute the deeds. Jane and Rose Mary now appeal, arguing that, because Scottie procured the deeds, the trial court should have shifted the burden of proof to her to prove that Utley had the capacity to execute the deeds. On cross-appeal, Scottie argues that the trial court erred in fading to award her attorney’s fees under Ark. Code Ann. § 16-22-309 (Repl. 1999), asserting that there was a complete absence of a justiciable issue of either law or fact raised by Jane and Rose Mary. W e affirm on both direct appeal and on cross-appeal.
In November 2000, Utley executed a will devising, inter alia, a mobile-home park to Rose Mary, Jane, and Scottie in equal shares. In January 2003, Utley executed a second will devising the mobile-home park and another lot solely to Scottie. In the second will, Utley left only his “love and affection” to Jane and Rose Mary and to his other daughter, Brenda Faye Eden. On February 4, 2003, Utley executed the deeds at issue, conveying certain property to himself, Scottie, and Dick as joint tenants with right of survivorship. Utley died on February 14, 2003, survived by his wife, Carolyn Utley, and his daughters, Scottie and Brenda Faye Eden.
In their complaint, Jane and Rose Mary alleged that, under the November 2000 will, they had an interest in the property, that the deeds were testamentary in nature, and that Utley lacked the requisite capacity to execute the deeds. The complaint also alleged that Scottie procured the deeds and exercised undue influence over her father because of their confidential relationship. Scottie answered, denying the material allegations of the complaint and asserting that the January 2003 will superseded the November 2000 will, thereby depriving Jane and Rose Mary of any claimed interest in the property. Scottie also sought attorney’s fees under Ark. Code Ann. § 16-22-309 (Repl. 1999), asserting that the suit was void of any justiciable issue of law or fact and that Jane, Rose Mary, and their attorney knew or should have known that the action was without a reasonable basis in law or equity.
Much of the proof at trial was directed to the execution of the 2003 will and not the deeds at issue. Carolyn Utley testified that she married Damon Utley in 1995 and that the two of them executed wills in November 2000. She stated that Utley executed another will in January 2003, after learning on December 30, 2002, that his cancer was terminal. She said that Utley’s 2003 will differed considerably from the November 2000 will. Carolyn testified that Scottie met her and Utley at the doctor’s office shortly after learning of the diagnosis and that she heard Scottie ask Utley where his will was located and tell Utley that he should change the executor because the person nominated in the 2000 will, Rose Mary’s husband Sam, was an alcoholic who had started drinking again. She said that Scottie suggested attorney Raymon Harvey to prepare the will and was in charge of communicating Utley’s changes in the will to Harvey. She explained that the 2003 will was prepared in case the deeds were not executed at the time of Utley’s death. Carolyn admitted that Harvey went over the will with Utley “word for word” at her request. She admitted that Utley knew the nature and extent of his personal property and that he had started to dispose of it prior to his final illness.
Carolyn also testified that, although she had discussed the matter with Utley, Scottie had the deeds prepared because Utley did not want the property to pass through probate. She stated that Utley knew how the deeds were drawn up but opined that Utley did not know what he was signing when he executed the deeds because they represented a different disposition of his property than what she had been led to expect. She said that one reason she believed that the will was not as Utley intended was because it did not treat Scottie, Jane, and Rose Mary the same and because Scottie had assured her father that she would take care of her sisters. She also admitted that the disposition of Utley’s property by the deeds was the same as the disposition in the 2003 will. She admitted that Utley executed nine deeds on February 4, including five from Utley to himself and her as tenants by the entirety. She stated that Scottie served as courier between Utley and Stewart Title, that Scottie discussed the deeds with Utley, and that Scottie communicated any changes to Stewart Title.
Scottie Burchett testified that she met Utley and Carolyn at the doctor’s office after Utley received his diagnosis. She stated that Utley told her that she was going to have to operate the mobile-home park. She testified that her father obtained the contents of his lockbox and that she did not know the contents of the 2000 will until she took it to attorney Raymon Harvey. She stated that she recommended Harvey to her father after he specifically told her that he did not want to use his previous attorney to prepare the will. She stated that Utley suggested some changes to Harvey’s first draft of the will and that she communicated these changes to Harvey. She stated that, during the drafting of the will, Utley and Harvey had at least one telephone conversation about it. She denied keeping copies of the drafts.
Scottie admitted that she took the deeds to Stewart Title to be prepared. She stated that she and Carolyn went over the deeds. She said that the disposition of Utley’s real property was the same under the 2003 will.
Rose Mary Lattin testified that Utley showed no previous favoritism among the three girls. She denied having a “falling out” with Utley between the execution of the first will in November 2000 and the execution of the second will in January 2003. She also stated that, prior to this dispute, she and Scottie shared a close relationship. She said that she offered to help or visit Utley but that Scottie told her such help was not necessary. Rose Mary admitted that nothing led her to believe that Utley lacked capacity to execute the deeds or that Scottie and Dick used their relationship to overpower Utley’s freedom to make his own decisions. She also admitted that she did not research Utley’s medical records to determine his condition when he executed the deeds.
Jane Stanley testified that she did not have a “falling out” with Utley between the execution of the first will in November 2000 and the execution of the second will in January 2003. She stated that she did not know of anything to make her believe that Utley lacked capacity to execute the deeds and that she did not inquire into Utley’s mental condition at the time the deeds were executed.
At the close of Jane and Rose Mary’s proof, Scottie moved for a directed verdict, arguing that there was no proof that Utley lacked capacity to execute the deeds at issue. Jane and Rose Mary argued that the burden shifted to Scottie because she procured the execution of the deeds. The trial court granted the motion. Judgment was entered dismissing the petition. Scottie moved for an award of attorney’s fees pursuant to Ark. Code Ann. § 16-22-309 (Repl.1999), arguing that there was a complete absence of a justiciable issue. The trial court denied the motion without explanation. This appeal and cross-appeal followed.
As their sole point on appeal, Jane and Rose Mary argue that the trial court erred in not shifting the burden to Scottie to produce evidence of Utley’s competence to execute the deeds. They do not make any argument concerning the validity of the January 2003 will.
The supreme court has said that a trial court’s duty is to review a motion for directed verdict or dismissal at the conclusion of a plaintiff s case by deciding whether, if it were a jury trial, the evidence would be sufficient to present to the jury. Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001). In making that determination, the trial court does not exercise fact-finding powers that involve determining questions of credibility. Id.
Jane and Rose Mary, citing Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981), argue that, because Scottie procured the deeds, she bore the burden of proving that Utley had the required mental capacity and freedom of will to execute them. In Estate of McKasson v. Hamric, 70 Ark. App. 507, 20 S.W.3d 446 (2000), we discussed Neal v. Jackson and explained that, in an ordinary deed transaction, a grantee who procures a deed does not bear the burden of proving the grantor’s mental capacity and freedom from undue influence:
Appellant relies on Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981), and Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997), for the proposition that one who procures a deed has the burden of proving mental capacity and a lack of undue influence. The language in Neal, upon which appellant relies, was dicta. No-land involved an inter vivos trust with title to the real property to pass at the time of the settlor’s death. It simply cannot be the law that in an ordinary deed transaction the grantee bears the burden of proving the grantor’s mental capacity and his freedom from undue influence merely because the grantee has caused the deed to be prepared.
Hamric, 70 Ark. App. at 511, 20 S.W.3d at 449.
Here, we cannot view the deeds in isolation. This scenario is similar in that respect to the facts in Noland v. Noland, supra. These deeds were part and parcel of Utley’s testamentary plan, which included the January 2003 will. There was testimony that Utley wanted the deeds prepared in order to avoid the time and expense of probate. Moreover, the disposition of Utley’s real property under the 2003 will was the same as that accomplished by the deeds he executed on February 4, 2003. Consequently, if Scottie procured the deeds, the presumption would arise and the burden of proof would shift.
“Procurement” originally meant that the beneficiary himself wrote the will. McDaniel v. Crosby, 19 Ark. 533 (1858); see also Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Estate of McKasson v. Hamric, supra. It has been extended to situations in which the beneficiary caused the will to be prepared and participated in its execution. See, e.g., Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980). Procurement was also found where the beneficiary held the decedent’s power of attorney and directed the will to be written. Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955); In re Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003). There was no proof that Scottie did anything more than serve as a courier or messenger between her father and Stewart Title, where the deeds were prepared. This is not enough to prove procurement. We cannot say that the trial court’s decision finding no evidence of procurement was clearly erroneous.
On cross-appeal, Scottie argues that the trial court erred in not awarding her attorney’s fees under Ark. Code Ann. § 16-22-309 (Repl. 1999), asserting that there was a complete absence of a justiciable issue of either law or fact raised by Jane and Rose Mary. If the case lacks a justiciable issue, an award of fees is mandatory. Ark. Code Ann. § 16-22-309(a)(1) (Repl. 1999). On appeal, the question as to whether there was a complete absence of a justi-ciable issue shall be determined de novo on the record of the trial court alone. Ark. Code Ann. § 16-22-309(d) (Repl. 1999); Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). We do not reverse the trial court’s finding, however, unless it is clearly erroneous. Cureton v. Frierson, 41 Ark. App. 196, 850 S.W.2d 38 (1993).
We cannot say that the trial court clearly erred in denying Scottie’s motion for attorney’s fees pursuant to Ark. Code Ann. § 16-22-309. Subsection (a)(1) provides for an award of fees in “any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact[.] ” Subsection (b) provides in pertinent part that in order to find a lack of justiciable issue, “the court must find that the action, claim, setoff, counterclaim, or defense was commenced, used, or continued in bad faith solely for purposes of harassing or maliciously injuring another or delaying adjudication without just cause[.]” Scottie contends that, because Jane and Rose Mary admitted that they did not have any evidence that Utley lacked capacity to execute the deeds, they were acting in bad faith by continuing with this suit.
The trial court expressly declined to find a complete absence of a justiciable issue. Under the plain language of section 16-22-309, such a finding is a prerequisite to an award of attorney’s fees. City of Forth Smith v. Didicom Towers, Inc., 362 Ark. 469, 209 S.W.3d 344 (June 2, 2005); Chlanda v. Killebrew, 329 Ark. 39, 945 S.W.2d 940 (1997). In any event, we cannot say that the record before us demonstrates a complete lack ofjusticiable issue such that Jane and Rose Mary acted in bad faith by continuing with their suit. Jane and Rose Mary were unsuccessful in their attempt to demonstrate that Scottie procured the deeds. However, there was nothing to indicate that this suit was filed in bad faith or that it was brought solely for the purpose of harassing or of maliciously injuring Scottie. We thus affirm on cross-appeal.
Affirmed on direct appeal; affirmed on cross-appeal.
Gladwin and Baicer, JJ., agree.
We refer only to Scottie Burchett unless the context otherwise requires.
Scottie,Jane, and Rose Mary are half-sisters, having the same mother.
Jane and Rose Mary appear to lack standing to challenge the validity of the deeds. The issue was raised in the trial court, but no ruling was ever rendered on the issue. It is not argued on appeal. | [
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Terry Crabtree, Judge.
Appellant Kroger Company appeals djudgment ge. of appellee Sharon Smith in the amount of $58,828.53. Smith had filed a complaint against Kroger in negligence after Smith injured her knee when her shopping cart tilted over while she was taking groceries to her car. Smith predicated her claim of negligence on the dual contentions that Kroger had a duty to assist her to her car and that it had a duty to warn her of the danger associated with a person of her size pushing a fully-loaded shopping cart. Kroger appeals the denial of its motion for a directed verdict in which it argued that it had no duty to assist or warn. Kroger’s arguments have merit, and we reverse on both issues.
On July 22, 1997, Smith, then age twenty-three and a woman of small stature, went to the Kroger grocery store in Helena with her young daughter and cousin. Smith purchased a month’s worth of groceries that the courtesy clerk sacked and placed into a shopping cart, or what the parties refer to as a “bascart.” According to Smith, the cart was filled with twenty-five to thirty bags of groceries with two cases of soft drinks underneath. The courtesy clerk pushed appellee’s cart aside and spoke with the cashier a moment before moving to another lane to sack groceries for Smith’s cousin. Smith testified that she waited a moment, while the cashier and clerk were speaking, and then proclaimed, “I guess I’ll have to take my own groceries out.” Smith was not sure whether the courtesy clerk heard her comment. Smith then exited the store pushing the cart with her daughter in it. She proceeded down a ramp to the parking lot, but the cart tilted over when she was half-way down the ramp. Smith unsuccessfully attempted to aright the cart, and it landed on her knee.
Smith did not recall stepping on anything slippery or observe that there was anything wrong with the cart or the ramp. She stated that she did not request assistance with her bags and said that she had no reason to believe that she would encounter any difficulties in taking her groceries to the car. She believed that the cart fell over because it was overloaded and top heavy.
In support o’f her claim that appellant owed a duty to assist her in taking her groceries to the car, Smith introduced into evidence a written job description for courtesy clerks, which provided in part:
Customer Service — Courtesy Clerks greet customers and respond to their questions and requests in a courteous and helpful way. Moving bags to the customer’s car — Courtesy Clerks must avoid getting in the way of cars in the parking lot. They must also help the customer avoid approaching cars.
Kenneth Mister testified on behalf of Kroger. He had worked for Kroger for thirty years and was the store manager in Helena at the time of Smith’s accident. He testified that the duties of a courtesy clerk included sacking, cleaning floors and restrooms, assisting customers as needed, and cleaning the parking lot. He said that taking customers’ bags to their vehicles was not an absolute duty and that eighty percent of their customers carried their own bags to their cars. If assistance was requested, he said “we would try to assist with this request.” Mister further testified that the store attempts to maintain enough clerks to sack, keep the lot clean, and to take out groceries when requested, but that there were not enough clerks to take every customer’s bags to their car. He was not aware of any similar accidents happening over the course of his employment.
Appellant’s arguments on appeal stem from the denial of its motions for a directed verdict. Appellant argues that the evidence fails to establish that it had a duty to assist appellee to her car or to warn her of any dangerous condition.
In addressing the issue of whether a directed verdict should have been granted, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Martin v. Hearn Spurlock, Inc., 73 Ark. App. 276, 43 S.W.3d 166 (2001). If there is any substantial evidence to support the verdict, we must affirm the trial court. Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993).
To establish a prima facie case of negligence, the plaintiff must show that she sustained damages, that the defendant was negligent, and that such negligence was the proximate cause of the damages. Id. We have defined negligence as the failure to do something which a reasonably careful person would do. Martin v. Hearn Spurlock, Inc., supra. The mere fact that a person slips and falls does not give rise to an inference of negligence. Arkansas Kraft v. Cottrell, supra. 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. Costner v. Adams, 82 Ark. App. 148, 121 S.W.3d 164 (2003).
The law is quite settled that a property owner has a general duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). The question of whether a specific duty is owed is always a question of law and never one of fact for the jury. See VanDeVeer v. RTJ, Inc., 81 Ark. App. 379, 101 S.W.3d 881 (2003). The owner is not an insurer of the safety of invitees on his premises, but his liability to an invitee must be based upon negligence. Ollar v. George’s Place, 269 Ark. 488, 601 S.W.2d 868 (1980).
In Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992), there was testimony that it was the duty ofWal-Mart employees to assist its customers. Ms. Lytle asked for but did not receive assistance from an employee to retrieve a folder on a top shelf. So, Ms. Lytle climbed onto a lower shelf to reach the item. She lost her balance and fell, fracturing her ankle. The court rejected the argument that the store’s policy of assisting customers gave rise to a duty of care. The court said that, although the employee may have been remiss in the duty to render courteous service, discourtesy does not translate into a legal liability.
In Crenshaw v. Doubletree Corp., 81 Ark. App. 157, 98 S.W.3d 836 (2003), Mr. Crenshaw was a guest at the Doubletree Hotel' who was taken by the hotel’s van to a restaurant. He fell when he stepped out of the van onto the street. Although the driver of the van had assisted Crenshaw and his wife in getting out of the van the night before, the court found no duty on the part of the hotel to provide such assistance. Also in Ark. La. Gas Co. v. Stracener, 239 Ark. 1001, 395 S.W.2d 745 (1965), the court held that the gas company’s practice of locking and tagging meters did not give rise to a legal duty to do so.
The most analagous case we have found is the decision of the Illinois Supreme Court in Mick v. The Kroger Co., 224 N.E.2d 859 (Ill. 1967). There, the grocery store had a routine policy of maintaining a carry-out service for its customers. On the day in question, Ms. Mick was told that there was no one to assist her, and she carried out a thirty-pound bag of groceries herself. She fell and was injured. The issue before the court was “whether a merchant can be said to have a duty to assist customers in carrying large packages of groceries by virtue of the fact that it customarily did so.” The court answered the question in the negative, holding that the store’s policy did not create a legal obligation. The court said:
Apart from the deviation from custom, the only evidence it [lower appellate court] discussed are the facts that the bag of groceries involved in this suit was both large and heavy and that plaintiff told defendant’s checkout boy that the bag was too heavy for her. This proof is, however, insufficient to create a duty upon defendant to carry her bag. When told that no assistance was available, plaintiff did not have to attempt to carry out the bag. She could have waited for her husband to return and carry out the groceries for her as she said he occasionally had done. She could have also placed the groceries in a cart which clearly was available for use. Plaintiff voluntarily purchased the groceries and chose to carry out a bag which she says she felt was too heavy for her, even though alternative courses of action were available.
Id. At 152-53.
In light of the case law in Arkansas that policy does not translate into a legal duty, and persuaded by the decision of the Illinois Supreme Court in Mick, we cannot conclude that Kroger had a duty to assist Smith to her car. In our estimation, Smith chose to take the heavily-laden cart out herself when she could have waited and asked for assistance. We hold that, as a matter of law, the trial court erred in denying Kroger’s motion for a directed verdict.
We also hold that Kroger had no duty to warn Smith of any danger associated with handling a fully-loaded cart. The duty to warn an invitee of a dangerous condition applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls and the like, in that they are known to the invitor but not known to the invitee and would not be observed by the latter in the exercise of ordinary care. Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001); Jenkins v. Hestand’s Grocery, 320 Ark. 485, 898 S.W.2d 30 (1995). There is no duty to warn where the dangerous condition is known or obvious to the invitee. Van DeVeer v. RTJ, Inc., supra. In this instance, Smith herself purchased the large quantity of groceries that were loaded into the shopping cart. If there were any danger, it was an obvious one, such that there was no duty to warn. See, e.g., Ethyl Corp. v. Johnson, supra (no duty to warn of potential danger of moving a large trash receptacle).
Reversed.
Baker and Roaf, JJ., agree. | [
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David M. Glover, Judge.
Jack Parker, the testator, left a udge. died. Appellant, Susan Cleaves, lived with the testator at the time of his death and was named as a beneficiary in the will. Appellees James Parker and John Parker were the testator’s brothers. James was named as executor of the will, and John was a beneficiary under the will. The only portion of the will at issue in this appeal is the final devise. The trial court found that Mr. Parker’s chosen language was ambiguous, and after hearing testimony about surrounding circumstances, found that the final provision was a specific, rather than a residuary, devise. The effect of this finding resulted in a pro rata sharing of expenses among the beneficiaries, rather than paying the expenses out of what appellant contends was a residuary devise to appellee John Parker. We reverse and remand.
Standard of Review
Probate cases are reviewed de novo on the record. Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999). However, an order of the probate court will not be reversed unless clearly erroneous. Id. Clearly erroneous means that, although there is evidence to support the court’s findings, the appellate court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
The holographic will
Mr. Parker’s two-page holographic will is reproduced in full as follows:
As earlier stated, the devise that is at issue in this case appears at the very end of the will, just above Mr. Parker’s name and the date. The devise provides: “All the remaining monetary assets go to my Brother John to do with as he sees fit.” Appellant contends that the trial court erred in holding that this devise was specific rather than residuary. We agree.
In the interpretation of wills, the paramount principle is that the intent of the testator governs. Metzgar v. Rodgers, 83 Ark. App. 354, 128 S.W.3d 5 (2003). The testator’s intent is to be gathered from the four corners of the instrument itself. Id. However, extrinsic evidence may be received on the issue of the testator’s intent if the terms of the will are ambiguous. Id. An ambiguity has been defined as an indistinctness or uncertainty of meaning of an expression in a written instrument. Id. The apparent meaning ofparticular words, phrases, or provisions in a will should be harmonized, if possible, to such scheme, plan, or dominant purpose that appears to have been the intention of the testator. Id. When the words of one part of a will are capable of a two-fold construction, the construction that is most consistent with the intention of the testator, as ascertained from other portions of the will, should be adopted. Id.
In Harrison v. Harrison, 82 Ark. App. 521, 526, 120 S.W.3d 144, 147 (2003), we explained the court’s role:
The function of a court in dealing with a will is purely judicial; and its sole duty and its only power in the premises is to construe and enforce the will, not to make for the testator another will which might appear to the court more equitable or more in accordance with what the court might believe to have been the testator’s unexpressed intentions. “The appellants are correct in the statement that the purpose of construction is to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed by the language of the will.” Jackson v. Robinson, 195 Ark. 431, 112 S.W.2d 417, 418.
Examining the four corners of Mr. Parker’s holographic will, we find no ambiguity in the devise in question, and we hold that it is residuary in nature. Black’s Law Dictionary defines “residuary devise” as a “devise of the remainder of the testator’s property left after other specific devises are taken.” Id., page 484 (8th ed. 2004). “The ‘residue’ of an estate is that which remains after the payment of all costs, debts, and particular legacies.” Goforth v. Goforth, 202 Ark. 1017, 1023, 154 S.W.2d 819, 822 (1941). On the other hand, a specific legacy or devise is a gift by will of a specific article or part of the testator’s estate, which is identified and distinguished from all other parts of the same kind, and which may be satisfied only by delivery of the particular thing. Goforth, supra.
“The mere enumeration of property in a residuary clause of a will in general terms does not constitute the legacy or devise a specific one. There must be something in connection with the enumeration of property to show that the testator’s intention was to make the devise or legacy a specific one before the courts will so declare it. ” ... ‘The general rule is that an enumeration of specific articles in a residuary clause will not make the bequest specific as to such articles unless they are designated in such a way as to differentiate them from the residue. A bequest of all of a man’s property is residuary and not a specific legacy, since its import is the same as expressed by the words, ‘rest and residue.’ ”
202 Ark. at 1022, 154 S.W.2d at 822. The Goforth court affirmed the trial court’s finding that the following devise was general, or residuary, rather than specific in nature: “I bequeath to my beloved son, Walter Goforth, all of my personal property of whatsoever kind and wheresoever situated left by me at my death.”
Here, appellant contends that the devise should be construed to give effect to each of the three essential words. That is, that Mr. Parker intended to devise his remaining assets, which just happened to be “monetary” in nature. We agree. In addition, in the context of Mr. Parker’s will, the phrase “remaining monetary assets” does not contain the necessary language of specificity for it to be a specific devise. The devise is immediately preceded by a devise of $20,000 in life insurance proceeds, which, although ineffective, nevertheless tends to explain Mr. Parker’s use of the word “monetary” in the devise in question. Further, the devise is placed at the end of the will where residuary clauses are normally placed. Mr. Parker’s use of the word “remaining” is certainly residuary in nature. Also, with respect to the other devises in the two-page holographic instrument, all of which were specific, Mr. Parker repeatedly used the word “my,” yet did not use that possessory word in the devise in question.
In light of our interpretation of Mr. Parker’s holographic will, we also hold that the trial court erred in concluding that the estate’s expenses should be shared on a pro rata basis by all of the beneficiaries. See Ark. Code Ann. § 28-53-107 (Repl. 2004) (abatement statute).
For her second point of appeal, appellant challenges the trial court’s award of fees to the executor. However, this point was presented as an alternative point of appeal, to be addressed only if the trial court’s interpretation of the will were affirmed. Because we are reversing the trial court on the first point of appeal, it is not necessary for us to address appellant’s second point of appeal.
We reverse and remand this case to the trial court to enter an order consistent with this opinion.
Reversed and remanded.
Robbins, Bird, Griffen, and Baker, JJ., agree.
Pittman, C.J., Gladwin, Crabtree, and Roaf, JJ., dissent. | [
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Larry D. Vaught, Judge.
Helena Chemical Company appeals udge. grant of summary judgment to appel-lee Jerry Caery, Sr., concerning a guaranty agreement he made involving purchases from Helena made by his son, appellee Jerry Caery, Jr. Helena argues two points for reversal: that the trial court erred as a matter of law in voiding the guaranty for lack of mutuality and that the trial court erred as a matter of law when it refused to enforce the guaranty upon Caery Jr.’s default. We need not address Helena’s first point because the second point is dispositive of this appeal, and we affirm.
On April 8, 1988, Helena entered into a credit sales agreement with Caery Jr. to allow him to purchase supplies on credit. The credit application signed by Caery Jr. indicated that he planned to conduct his farming operation as a sole proprietorship. That same day, Helena also entered into an agreement with Caery Sr. for him to unconditionally guarantee payment for goods delivered to Caery Jr. The guaranty agreement provided that it would cover the present balance, together with any and all future indebtedness. The guaranty agreement also provided that it was a continuing guaranty that would remain in effect until Caery Sr. gave written notice to Helena not to make any further advances under the agreement. Finally, the guaranty agreement provided that Caery Sr. waived notice that Caery Jr. was in default prior to Helena’s being allowed to proceed against Caery Sr. under the guaranty agreement.
In 1995, Caery Jr. defaulted on his obligations, and Helena refused to extend credit to him for the years 1996 and 1997. Caery Jr.’s 1995 debt was paid off in either 1996 or 1997. In December 1996, Caery Jr. formed a partnership known as JLC Farms. Helena extended credit to JLC Farms in 1998 under its original individual credit application with Caery Jr.
Helena originally filed suit against both Caerys in 1999, seeking payment of the outstanding balance of $308,000 owed on credit extended to JLC Farms. Helena and Caery Jr. entered into a “Standstill Agreement,” whereby Caery Jr. would pay $120,000 upon execution of that agreement, another $50,000 by December 31, 1999, and the remaining balance in annual installments beginning December 2000. Caery Jr. failed to make the December 1999 payment. In July 2000, Helena and Caery Jr. negotiated an addendum to the Standstill Agreement, and Caery Jr. paid an additional $30,000 but failed to make other payments under the Standstill Agreement or its addendum. That suit was dismissed without prejudice in January 2000.
Helena filed the present suit on February 21, 2002, seeking payment of the outstanding balance of $167,000. The complaint alleged that the defendants were jointly and severally liable for the debt. The complaint also sought prejudgment interest and attorney’s fees. The defendants answered, denying that Caery Sr. was liable for repayment of the sums owed by Caery Jr.
Caery Sr. obtained separate counsel and filed a separate amended answer, admitting that he signed the guaranty agreement but otherwise denying the allegations of the complaint. He also asserted that the goods were delivered to JLC Farms and thereby were not covered under the guaranty agreement and that this change constituted a material alteration of his obligation under the guaranty agreement. Caery Sr. later amended his answer to assert as additional affirmative defenses lack of mutuality, failure of consideration, and fraud.
Helena moved for summary judgment as to both defendants. Caery Sr. filed a cross-motion for summary judgment, asserting that he was entitled to judgment as a matter of law because he did not guarantee the account sued upon and that the terms and conditions of the guaranty agreement had been materially altered, thus discharging him from his obligation under that agreement. Attached to Caery Sr.’s motion for summary judgment was Helena’s answer to an interrogatory stating that Caery Jr. had paid off the debt that existed at the time of his default in 1997. In his affidavit, Caery Sr. stated that he did not agree to guarantee credit to JLC Farms. In response to Caery Sr.’s motion, Helena argued that Caery Sr. remained liable because Caery Jr., as a partner ofJLC Farms, was still personally liable for the partnership’s debts. Helena stated, both in its response to the motion and at the hearing, that it was seeking to hold Caery Sr. liable for purchases made by JLC Farms.
In its letter opinion, the trial court ruled that the guaranty agreement lacked mutuality, reasoning that, because Helena could revoke Caery Jr.’s credit sales at any time, it was entirely optional with Helena as to whether it would perform its obligation to Caery Jr. The court concluded that the guaranty agreement was not binding on Caery Sr. The court further found that Caery Sr. only guaranteed the debts of Caery Jr. and not those of JLC Farms. Summary judgment was granted in favor of Helena against Caery Jr. for the outstanding balance of $167,000. This appeal followed.
The parties filed opposing motions for summary judgment and thus, in essence, agreed that there are no material facts remaining. Summary judgment, therefore, was an entirely appropriate means for resolution of this case. As often stated, summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. McCutchen v. Patton, 340 Ark. 371, 10 S.W.3d 439 (2000); Mashburn v. Meeker Sharkey Fin. Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999).
Helena argues that the trial court erred in not enforcing the guaranty agreement against Caery Sr. For his part, Caery Sr. argues that the trial court correctly refused to enforce the agreement because his obligation had been materially altered when Helena extended credit to JLC Farms without seeking a new guaranty from Caery Sr. We agree with Caery Sr.
In Morrilton Security Bank v. Kelemen, 70 Ark. App. 246, 16 S.W.3d 567 (2000), we discussed the obligation of a guarantor:
A guarantor, like a surety, is a favorite of the law, and her liability is not to be extended by impbcation beyond the expressed terms of the agreement or its plain intent. National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963); Moore v. First National Bank of Hot Springs, 3 Ark. App. 146, 623 S.W.2d 530 (1981). A guarantor is entitled to have her undertaking strictly construed and she cannot be held liable beyond the strict terms of her contract. Inter-Sport, Inc. v. Wilson, 281 Ark. 56, 661 S.W.2d 367 (1983); Lee v. Vaughn, 259 Ark. 424, 534 S.W.2d 221 (1976). Any material alteration of the obligation assumed, made without the consent of the guarantor, discharges her. Wynne, Love & Co. v. Bunch, 157 Ark. 395, [248 S.W. 286] (1923); Continental Ozark, Inc. v. Lair, 29 Ark. App. 25, 779 S.W.2d 187 (1989).
Id. at 247-48, 16 S.W.3d at 568. Further, alteration of a guaranty agreement is not material unless the guarantor is placed in the position of being required to do more than his original undertaking. Vogel v. Simmons First Nat’l Bank, 15 Ark. App. 69, 689 S.W.2d 576 (1985).
It has long been held that a guarantor is discharged when the principal debtor changes the form of his business from a sole proprietorship to a partnership and credit is extended to that partnership without the knowledge or consent of the guarantor. Conn. Mut. Life Ins. Co. v. Scott, 81 Ky. 540 (1884); Zeo v. Loomis, 141 N.E. 115 (Mass. 1923); Parham Sewing Mach. Co. v. Brock, 113 Mass. 194 (1873); White Sewing Mach. Co. v. Hines, 28 N.W. 157 (Mich. 1886); Spokane Union Stockyards v. Maryland Cas. Co., 178 P. 3 (Wash. 1919). As the Massachusetts court in Parham explained:
This was a material change in the ... liability of the sureties. A new person was introduced, having equal powers with [the principal] to purchase machines and manage the business. While they might be willing to be sureties for [the principal], and may have been influenced to do so from personal or family considerations, or from confidence in his integrity and business capacity, it does not follow that they can be bound, or have consented to be bound, for the acts of any one whom [the principal] may have taken into partnership. They had made no contract to that effect, there is no evidence of their consent to the change, and they are exonerated from liability for the purchases of the plaintiffs agent after the change.
113 Mass. at 197. Helena argues that the fact that Caery Jr. created a partnership with himself as a member is immaterial because, under principles of partnership law, the debt of JLC Farms is a debt of Caery Jr. However, the Michigan court in White Sewing Machine, supra, rejected such an argument on the same basis as Parham.
Another factor supporting our conclusion that there was a material alteration resulting in a discharge of Caery Sr.’s liability is the substantially increased risk provided by the 1998 contract. See Restatement (Third) of Suretyship & Guaranty § 41 (b) (i) (1996). The credit extended by Helena to Caery Jr. increased over time from $5000 in 1988, to $7500 in 1991, to $30,000 in 1993, and finally to $40,000 in 1995. Caery Jr. paid off the debt each year, with the exception of the 1995 debt noted above. The original credit application approved a credit limit of $5000. The line of credit extended to JLC Farms in 1998 was $250,000.
The final basis for affirming the trial court is that the payment of the principal debt extinguished the obligation of the guarantor. Nat’l Bank of E. Ark. v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963). Here, proof was submitted in the form of Caery Jr.’s affidavit that he paid his individual 1995 debt. Helena agreed, in an answer to an interrogatory, that the pre-JLC Farms debt had been paid. There was no further debt owed to Helena until 1998, when Helena extended credit to JLC Farms. It was this new debt that the present suit was filed to collect.
Affirmed.
Glover and Neal, JJ., agree.
The record is unclear on whether the debt was paid in 1996 or 1997. Nonetheless, it is clear that the debt was paid prior to further credit being extended to Caery Jr. in 1998. | [
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Wendell L. Griffen, Judge.
Linda Boss Foster appeals udge. compensation benefits. She argues that the Workers’ Compensation Commission erred in finding that she was not performing employment services when she was injured. Because Foster was injured in an area in which employment services were expected of her and was furthering her employer’s interests when she was injured, we reverse and remand for further proceedings.
Foster was employed by appellee Express Personnel Services and was assigned to work as a temporary employee in accounts receivable for McClarty Auto Mall. Her job required her daily to process, among other things, credit-card slips and e-checks retrieved from Shirley Munden, a McClarty employee who worked at the cashier’s desk. Foster was also required at times to pick up warranty slips from the warranty clerk and to confer with the service manager. While Foster typically reported to work at 8:00 a.m., when she reported earlier, she so indicated on her time slip and was compensated for that time.
Foster’s office was on the second floor of McClarty’s used-car building. The service manager’s office and warranty clerk’s office are located in the service building. Between the used-car building and the service building is the service-bay area, into which customers bring their vehicles to be serviced. Foster and other employees parked in the employee parking lot, which was behind the service building, and entered the building through the service bay. Foster’s normal routine was to go past the time clock in the service-bay area (she was not required to clock in), turn left into the used-car building, bypass the stairs that lead to the second floor, and go directly to the cashier’s desk on the first floor to pick up credit-card receipts before going to her own desk. However, there were times when other McClarty employees questioned Foster in the service-bay area before she reached the cashier’s desk.
The Administrative Law Judge (ALJ) found that Foster’s injury occurred as follows:
On June 6, 2003, the weather was stormy and [it was] raining hard when the claimant arrived at work. In accord with her normal routine, she entered the facility in the service bay area. At some point after she entered the service bay area and was [en] route to the cashier’s desk to pick up her credit cards and e-checks, she slipped and fell backwards. Her hips hit the concrete floor and her head hit one of the parked cars.
The ALJ further found that Foster was on McClarty’s premises when she was injured. He noted that Foster’s job was principally performed at her desk, but noted that she was also required to perform some job duties away from her desk, including picking up documents from the cashier’s desk each morning and picking up warranty slips from the warranty clerk. The ALJ further noted Foster’s testimony that she was subject to be called upon to perform employment duties at any time she was on McClarty’s premises.
Nonetheless, he concluded that Foster was not performing employment services at the time of her injury because she was not in the area where she was required to perform her employment duties in that: 1) she was in the service-bay area and there was no evidence that her employer required her to be in that area as part of her employment duties; 2) she was “not yet engaged in any activity required by McClarty or the respondent employer when she fell.” The ALJ noted that Foster reported that the injury occurred at 7:50 a.m., ten minutes before she was required to report to work, and that there was no evidence that anyone had questioned her while she was in the service-bay area on the day she was injured. Accordingly, the ALJ denied benefits. The Commission affirmed and adopted the ALJ’s findings in full, and this appeal followed.
Foster argues that because obtaining credit-card slips from the cashier’s desk was part of her job and because she was on her way to pick up the credit-card slips when she was injured, she was performing employment services at the time she was injured. For support, she relies primarily on Caffey v. Sanyo Mfg. Corp., 85 Ark. App. 342, 154 S.W.3d 274 (2004), and Shults v. Pulaski County Special Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998).
The employer asserts that Foster claims her injury is com-pensable merely because she was “walking in the general direction of her office.” It counters that the “coming-and-going” rule precludes a finding that Foster’s injury was compensable because she was merely on her way to her job and had not yet arrived at her work station. Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000); Srebaul v. Rose Care, 69 Ark. App. 142, 10 S.W.3d 112 (2000); Hightower v. Newark Public Sch. System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). It further asserts that taking the steps necessary to arrive at work and begin the work day does not constitute employment services. Thus, according to the employer, Foster’s work day did not begin until she “picked up the papers from Shirley Munden and began working.”
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.
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 com-pensable 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.
We reverse the Commission’s decision and remand for further proceedings because, regardless of the fact that Foster had not reached her desk or the cashier’s desk or was outside of the building in which her office was located, she was unquestionably injured in an area in which employment services were expected of her. In short, workers’ compensation law does not require the infinitesimal scrutiny of a claimant’s conduct posited by the employer in this case. The real issue is not whether Foster was “on the clock” when she was injured or whether she was on her way to the cashier’s desk or her own desk. Rather, the issue is whether the injury occurred within the time and space boundaries of the employment when Foster was carrying out the employer’s purpose or advancing its interests directly or indirectly. Collins, supra. As Foster argues, the facts of this case are analogous to the facts in Caffey, supra, and Shults, supra, in which we found that both claimants were performing employment services when injured.
In Caffey, the claimant was required to clock in at 7:30 a.m., requiring her to arrive at work in time to exhibit her identification badge to two security guards before clocking in. The Caffey claimant complied with these procedures on the day she was injured, but before clocking in, she slipped and fell within 200 feet of her workstation. In Shults, the building custodian’s first duty was to enter the building and check the alarm system. When he opened the door, he thought that the alarm had been triggered; he fell and injured his leg when he ran to check the alarm.
In the instant case in adopting the ALF’s findings, the Commission specifically recognized that Foster’s duties sometimes took her away from her desk. Furthermore, the Commission specifically recognized that her duties required her to confer with the warranty clerk. In addition, both Foster and Munden testified that' Foster’s job required her to confer periodically with the warranty clerk and the service manager, both of whom worked in the service area. Foster testified that she was subject to perform her duties at any time she was on McClarty’s premises and that, at times, the warranty clerk or customer-service manager would question her about work-related matters when she arrived at work. Munden also testified that Foster would have been “on the job” for Express as soon as she walked through the bay doors if the service manager needed her for something, because as soon as Foster walked through the doors “they are going to stop her right there. They are not going to wait until she goes to her desk.” Janet Landon, co-owner of Express, testified that she had no reason to disagree with the testimony that Foster was required to communicate with employees in the service area.
In fact, according to Foster, the only time that she did not proceed directly to Munden’s desk was when she was stopped in the service area. Thus, not only was Foster expected to render employment services in the area in which she was injured before she ever reached her desk or the cashier’s desk, she was also required to visit that area as needed at other times during the work day. Accordingly, the Commission’s finding that Foster was never required to be in the service-bay area as part of her employment duties is factually contrary to the record.
Express would have us hold that no act of Foster was compensable until she reached the cashier’s desk, even if she was furthering its interests at the time. Flowever, Caffey clearly demonstrates that an employee may be compensated for an injury that occurs even before she reaches her work station or before she is “on the clock,” if she is performing a service that is required by her employer and is directly or indirectly advancing her employer’s interests.
Moreover, the facts here are even more compelling to support a finding that Foster was performing employment services than the facts in Caffey, because there was no testimony that the Caffey claimant would have been required to perform her specific job duties while en route to her designated job site. By contrast, it is clear that here, like the Shults claimant’s, Foster’s job duties began once inside the employer’s building when she crossed the threshold of service bay area.
That Foster was not actually questioned by the service manager or warranty clerk on the day she was injured is not dispositive. In Arkansas Methodist Hospital v. Hampton, 90 Ark. App. 288, 205 S.W.3d. 848 (2005), we found that an injury was compensable where an intensive-care nurse was injured getting breakfast for her fellow nurses even though there was no evidence that she had been asked to assist any other patron while en route to get breakfast. Like the Hampton claimant, Foster was expected to advance her employer’s interests away from her desk, and was specifically, expected to advance her employer’s interests in the area where she was injured.
Finally, the “coming-and-going rule” has no application to this case whatsoever. Foster was not driving to work; nor was she injured in McClarty’s parking lot while walking to her job. Express cites no cases in which we have used the coming-and-going rule to affirm a finding of noncompensability on facts similar to the instant case.
We hold that fair-minded people could not have reached the Commission’s conclusion that Foster was not performing employment services at the time she was injured, and reverse and remand for further proceedings consistent with our opinion.
Reversed and remanded.
Robbins and Bird, JJ., agree.
The ALJ based this finding on the time of injury stated on Foster’s medical records. Foster testified that she submitted no time sheet for the day she was injured because she went to the emergency room. | [
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Sam Bird, Judge.
Appellant Traci Mitchell, administratrix dge. husband’s estate, brought this medical malpractice case against appellee Dr. Lance Lincoln for the wrongful death of her husband. The trial court granted appellee’s motion for summary judgment on October 6, 2003, and it denied appellant’s motion for reconsideration on November 3, 2003. Appellant contends on appeal that the trial court erred in granting summary judgment and in denying her motion for reconsideration; the issue before us is whether she was required to present expert testimony in order to establish the cause of action. We reverse the order of summary judgment and remand for trial.
The circumstances surrounding Guy Mitchell’s death are these. In 1994 Mr. Mitchell was diagnosed with myelogenous leukemia. He underwent a bone-marrow transplant at M.D. Anderson Cancer Center in Houston, Texas, where one of his doctors was Dr. James L. Gajewski. In a letter to appellee dated January 6, 1995, Dr. Gajewski recommended the blood cells and platelet products to be used if Mr. Mitchell should need a blood transfusion. On eleven occasions between January 18 and March 22, 1995, Mr. Mitchell was transfused with blood products at Baxter County Regional Hospital under the direction of appellee, an internist practicing in Mountain Home, Arkansas; however, the blood products that were used included a type different from the type that Dr. Gajewski had recommended to appellee. On March 24, 1995, Mr. Mitchell was re-admitted to M.D. Anderson. In June and into July of 1995, after being discharged from M.D. Anderson, Mr. Mitchell was hospitalized at the University of Arkansas Medical Center. Mr. Mitchell died at home in Flippin, Arkansas, on July 23, 1995.
Appellee moved for summary judgment in August 1999 on the basis that appellant had not named an expert witness who would testify that appellee was “guilty of medical negligence” and that such negligence proximately caused Mr. Mitchell’s death. Appellant took a voluntary non-suit on her cause of action, and the court entered an order of non-suit on August 20, 1999. Appellant re-filed her cause of action on August 17, 2000, again alleging that appellant was “guilty of medical negligence” and that such negligence was a proximate cause of the death of Mr. Mitchell.
Appellee filed his second motion for summary judgment on February 21, 2002, on the basis that appellant had not named an expert witness who would testify that appellee was guilty of medical negligence, that such negligence proximately caused the death of Mr. Mitchell, that appellee was negligent by deviating from the applicable standard of care, and that such negligence was the proximate cause of death. Appellee alleged that cases like the present one, involving complex medical issues such as treatment of leukemia, post bone-marrow transplant blood transfusions, and the appropriateness of blood and blood products that were transfused, require expert testimony because they involve medical issues not within the common knowledge of a lay juror.
Attached to appellee’s motion for summary judgment was an affidavit of Dr. Gary Markland, a pathologist practicing in Little Rock, Arkansas. His affidavit included the following statements:
(1) I am a physician who is licensed by the State of Arkansas and I am a pathologist familiar with leukemia and transfusions of blood and blood products following leukemia and bone marrow transplants.
(2) I am familiar with the standard of care in Arkansas as it relates to the transfusion of blood and blood products to patients suffering with chronic myelogenous leukemia, which was the form of cancer that the decedent, Guy Mitchell, had and which ultimately caused his death on or about July 23, 1995.
(3) I have reviewed available medical records in this case, including records from the University of Arkansas for Medical Sciences, Baxter County Regional Hospital, the office of Dr. Lance Lincoln, and limited records from the M.D. Anderson Hospital in Houston, Texas. Based upon my review of those records, I have a good understanding of Mr. Mitchell’s medical condition and treatment which he received, including a previous bone marrow transplant, and frequent transfusions including receiving irradiated red blood cells and platelets, following his transplant.
The affidavit included Dr. Markland’s opinion, stated within a reasonable degree of medical certainty, that “the use of the blood and blood products as ordered by Dr. Lincoln and transfused by the staff of Baxter County Regional Hospital, was within the standard of care and did not in any way cause or contribute to Mr. Mitchell’s death.” Dr. Markland further opined that Mr. Mitchell’s death occurred “as a result of his underlying chronic myelog-enous leukemia, unrelated to the transfusion of blood or blood products by Dr. Lincoln or the staff of Baxter County Regional Hospital.” Mr. Mitchell’s death certificate, also attached to appel-lee’s motion, listed chronic myelogenous leukemia as the cause of death.
Appellant filed her response to the motion for summary judgment, contending that genuine issues of material fact existed. Attached to her response was the January 6, 1995, letter from Dr. Gajewski, an assistant professor at M.D. Anderson Cancer Center who practiced in the section of bone marrow transplantation and department of hematology. The letter stated in part:
Dear Doctor Lincoln:
Thank you once again for assuming care of [Guy Mitchell], my patient with chronic myelogenous leukemia in second chronic phase who underwent a one-antigen HLA-mismatched transplant from his half-brother. For his post-transplant care, he will need to have twice-weekly electrolytes, BUN, creatinine, magnesium, calcium, and phosphate checks as well as a CBC, differential, and platelets.
All blood transfusions need to be irradiated. His original blood type was A positive, his donor type is O positive. I would recommend, if he needs a blood transfusion, to transfuse him with O positive red cells. If he requires platelet products, at this point in time he should be transfused with B-positive platelets.
Dr. Gajewski included in the text of the letter his telephone and pager numbers for emergency contact, and he again thanked Dr. Lincoln “for helping with the care of this patient.”
Appellant subsequently filed a first supplement to her response. She attached to it a clinic note by Dr. Gajewski dated March 27, 1995, wherein he stated that Mitchell “has received what we think is 6 units of Group A red cells inappropriately in Arkansas . . ., and we have previously recommended that he receive Group O RBCs.” In a second supplement to her response, appellant attached an affidavit of Dr. Barry L. Singer, a hematologist-oncologist practicing in Pennsylvania. Dr. Singer’s affidavit includes the following:
Guy Mitchell had a bone marrow transplant at M.D. Anderson Cancer Center in Houston,Texas, in September 1994. At that time, M.D. Anderson was one of the leading cancer treatment centers in the United States.
When Mr. Mitchell returned to Arkansas to be followed by Dr. Lance Lincoln as his primary care physician, Dr. James L. Gajewski sent a letter to Dr. Lincoln dated January 6,1995. A copy of the letter is attached hereto as Exhibit “B” and made a part hereof as if set out herein word for word.
I have reviewed the medical records of Guy Mitchell concerning his chronic myelogenous leukemia. The standard of care would require a primary care physician, such as Dr. Lincoln, to follow the recommendations of a specialist, such as Dr. Gajewski. Transfusing Mr. Mitchell with A positive red cells, as was done in this case, was a violation of the standard of care. In my opinion, within a reasonable degree of medical certainty, the failure to transfuse Mr. Mitchell with O positive red cells and B positive platelets was a significant contributing factor in the recrudescence of his disease and ultimate demise.
The trial court heard appellee’s motion for summary judgment on July 8, 2003, and entered its order granting the motion on October 6, 2003. The order noted that appellee’s response to appellant’s first set of requests for admissions included the following admissions: that the January 6, 1995, letter was written to appellee; that Dr. Gajewski recommended that Mr. Mitchell be transfused with B positive platelets; and that appellee did not require that Mitchell be transfused in accordance with Dr. Gajew-ski’s recommendation at least on some occasions. The court also noted appellee’s denial that the failure to act in accordance with this recommendation was a violation of the standard of care. The order included the court’s observations about Dr. Gajewski’s letter of January 6, 1995:
The letter only addresses itself to what the physician who wrote it said should be done on January 6, 1995 before the action complained of was taken. It does not demonstrate that the writer of the letter knew what the standard of care in Baxter County or in Arkansas was nor does, or could, it address . . . the circumstances which were to come about after the letter was written as the case progressed, or what was in fact done or whether what was done was a breach of the applicable standard of care or a cause of harm to the patient.
The trial court observed that the March 27,1995, clinic note from Dr. Gajewski was not in the form of a document to be used to rebut an affidavit; it also noted appellee’s argument that the substance of the note and Dr. Gajewski’s letter was not of such a nature as to rebut the assertions of Dr. Markland. Regarding Dr. Singer’s affidavit, the court agreed with appellee’s argument that Singer’s failure to state a familiarity with the standard of care in Arkansas was fatal to the competency of his affidavit to rebut the affidavit of Dr. Markland. In granting appellee’s motion for summary judgment, the court concluded:
Based on the standard of care in Arkansas, the affidavit supplied by defendants provides proof from a medical expert, to a reasonable degree of medical certainty, that there was no negligence which was the proximate cause of the injury complained of. Once that is placed in the record, the Plaintiff has the burden of meeting proof with proof. There is nothing in this record from the Plaintiff of an evidentiary nature which shows what the applicable standard is or that Dr. Lincoln’s failure to follow the advice of Dr. Gajewski was a violation of the applicable standard of care, or a cause of harm to the patient.
On October 15, 2003, appellant filed a motion for reconsideration, to which she attached an amended affidavit from Dr. Barry Singer. Appellee responded to the motion for reconsideration and moved to strike the supplemental affidavit. On November 17, 2003, the trial court entered an order denying the motion for reconsideration and granting the motion to strike the supplemental affidavit on the basis that it was not timely filed. Noting Dr. Markland’s opinion that Mr. Mitchell’s death resulted from his underlying chronic myelogenous leukemia rather than from the transfusion of blood or blood products, the court concluded:
[T]he affidavit of. . . Dr. Markland gives proof that to a reasonable degree of medical certainty, the conduct complained of was within the standard of care and that what was done did not in any way cause or contribute to Mr. Mitchell’s death. ... In order to avoid summary judgment Plaintiff must meet that proof with proof. Because the matters herein complained of are not within the common knowledge of a jury[,\ that proof must come from a medical professional who demonstrates the applicable standard, that he knows what that standard is, that the conduct complained about fell short of the standard and that it was the proximate cause of the Plaintiff’s harm.
(Emphasis ours.) The trial court amended its previous order granting summary judgment to include the findings made in its order of November 17, 2003.
Appellant contends on appeal that the trial court erred in granting appellee’s motion for summary judgment. The well-settled standard of review for cases in which summary judgment has been granted was recently reiterated by our supreme court:
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable persons might reach different conclusions from those undisputed facts.
Rice v. Tanner, 363 Ark. 79, 82, 210 S.W.3d 860, 863 (2005) (citations omitted).
Burden of Proof
Arkansas Code Annotated section 16-114-206(a) (1987) specifies that the plaintiff shall have the burden of proving the following in actions for medical injury:
(1) 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) That the medical care provider failed to act in accordance with that standard; and
(3) That as the proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
Although expert testimony may be required to prove these three propositions, it is not needed perse in every malpractice case. See Dodd v. Sparks Reg’l Med. Ctr., 90 Ark. App. 191, 204 S.W.3d 579 (2005). It is well-settled that the plaintiff must present expert testimony only when the asserted negligence does not He within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of neghgence. Id. (citing Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996)).
Appellant asserts that the issue in this case, whether an internist was negligent in not following the recommendations of a specialist, is within the understanding of a layperson and therefore requires no expert testimony. She asserts that Dr. Singer’s affidavit meets the locality rule and establishes an issue of material fact on proximate cause. She also asserts that the trial court incorrectly interpreted Dr. Gajewski’s January 6, 1995, letter to mean that the course of treatment he recommended applied only to the course of treatment to be administered on the date of the letter. We agree.
Again, expert testimony from third-party medical witnesses is not essential or even necessary in every medical malpractice case. Pry v. Jones, 253 Ark. 534, 487 S.W.2d 606 (1972). Expert testimony is not required in medical malpractice cases when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from an incision before closing it. Eady v. Lunsford, 351 Ark. 249, 92 S.W.3d 57 (2002).
In Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944), a patient developed a severe infection in his left eye and then lost vision in it following minor eye surgery; the supreme court concluded that the jury was authorized to find that the infection was proximately caused by the doctor’s negligence in failing to sterilize his instruments and wash his hands before performing the surgery. The Lanier court wrote:
Jurors of ordinary intelligence, sense, and judgment, although not skilled in medical science, are capable of reaching a conclusion without the aid of expert testimony as to whether it is good surgery to permit a wound to heal superficially with nearly half a yard of gauze deeply imbedded in the flesh, and likewise are capable of determining whether or not injurious consequences of some character would probably result. The exact nature and extent of the evil consequences, resulting therefrom, of course, laymen would not be competent to determine without the aid of medical science. Walker Hospital v. Pulley, 74 Ind. App. 659, 664, 127 N.E. 559, 128 N.E. 933.
207 Ark. at 380, 180 S.W.2d at 822. In Pry, supra, where the patient’s left ureter was severed during surgery to remove her left ovary, the supreme court rejected an argument that evidence lacking expert medical testimony was insufficient to permit a jury inference that the alleged acts or omissions were a proximate cause of the alleged damages.
We agree with appellant’s argument that it is not beyond the common knowledge of a layperson to know if a non-specialist should follow the instructions of a specialist as to the blood products to be used in the transfusion of a leukemia patient who has undergone a bone-marrow transplant; it is no more complicated than a physician’s leaving gauze in a surgical site or severing a ureter during removal of an ovary. Thus, no expert opinion was required regarding the standard of care on this issue, that a non-specialist doctor who assumes the care of a patient with complex medical issues should follow the recommendations of a specialist who has been directly involved in the patient’s care. Because it was not necessary for appellant to present expert testimony that the local standard of care required appellee to follow Dr. Gajewski’s recommendation of the blood products to be used in Mr. Mitchell’s transfusions, we hold that the trial court erred as a matter of law in requiring appellant to produce such evidence.
We also hold that the trial court erred in finding that Dr. Gajewski’s letter addressed only what he said should be done on January 6, 1995, the date of the letter. Resolving all doubts and inferences against the moving party, although the letter is dated January 6, 1995, Dr. Gajewski’s recommendation could be interpreted to apply prospectively to the blood types to be used “if’ the patient requires a blood transfusion or “if’ the patient requires platelet products. Viewing the evidence in the light most favorable to appellant, against whom the motion for summary judgment was filed, we agree with her that the letter could be interpreted as a recommendation for Mr. Mitchell’s treatment following January 6, 1995, and encompassing the times that the allegedly faulty blood transfusions were performed under the direction of appellee.
Appellee argues that, even assuming that appellant created a question of fact on the issue of negligence, her claims would still fail in the absence of expert testimony on the issue of proximate causation. We agree with appellant’s response that the affidavit of Dr. Singer is evidence of an issue of fact on proximate cause. Dr. Singer stated his opinion, within a reasonable degree of medical certainty, that “the failure to transfuse Mr. Mitchell with O positive red cells and B positive platelets was a significant contributing factor in the recrudescence of his disease and ultimate demise.” This was in contrast to the affidavit of Dr. Gary Mark-land, presented on behalf of appellee, that Mr. Mitchell’s death “occurred as a result of his underlying chronic myelogenous leukemia, unrelated to the transfusion of blood or blood products by Dr. Lincoln.”
In summary, we hold that, because the asserted acts of negligence by appellee are within a lay jury’s comprehension as a matter of common knowledge, appellant is relieved of the obligation to produce expert evidence of the standard of care in the locality. Further, although appellant must produce evidence in the form of expert testimony at trial that the asserted negligence was the proximate cause of Mr. Mitchell’s death, see Lanier, supra, we hold that Dr. Singer’s affidavit stating that the alleged faulty blood transfusions were “a significant contributing factor in the recrudescence of [Mitchell’s] disease and ultimate demise,” when contrasted with the affidavit of Dr. Markland that the transfusions were unrelated to Mr. Mitchell’s death, creates a genuine issue of material fact as to the proximate cause of Mr. Mitchell’s death. Therefore, we reverse the granting of the motion for summary judgment, and we remand for trial.
Reversed and remanded.
Griffen, J., agrees.
Robbins and Baker, JJ., concur.
Crabtree and Roaf, JJ., dissent.
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Andree Layton Roaf, Judge.
Appellant Gina Deluca appeals from the trial court’s denial of her petition to modify custody by allowing her to relocate with her minor children to California. The trial court also denied the petition of her ex-husband, appellee Bobby Stapleton, for change of custody. On appeal, Deluca argues that the trial court failed to properly evaluate the factors to be considered in parental-relocation cases as set forth in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 17 (1994), and that the decision is clearly erroneous. We disagree and affirm.
Deluca and Stapleton were married in 1991 and divorced in 1993. Deluca was awarded custody of the parties’ two minor children. At the time of the divorce both parties lived in Calico Rock. Deluca later moved to Jonesboro and attended Arkansas State University where she received a bachelor’s degree in radiography in 2000. Deluca was employed part-time as a radiology technician at a Jonesboro hospital at the time of the hearing on her petition to relocate. Stapleton worked at Boeing Aircraft, also had a part-time photography business, and lived with his wife Linda in a mobile home next door to his mother outside Calico Rock.
Deluca filed her petition to relocate in October 2000, four months after the trial court had entered an order finding her in willful contempt for violation of prior orders regarding Stapleton’s visitation. In her petition to relocate, Deluca asserted that she had finished her college courses in X-ray technology and had the opportunity to earn substantially more at a job she had been offered in her home state of California. The petition was not heard until nearly a year later, on August 9, 2001. The trial judge issued a detailed letter opinion on August 16, 2001, setting out the reasons why he was denying Deluca’s petition to relocate. The order was entered four months later, and Deluca timely appealed.
Deluca argues on appeal that the trial court failed to follow the factors set out in Staab v. Hurst, supra, that she presented overwhelming evidence on the threshold issue of whether the move would result in a real advantage to the family unit as a whole, and that the evidence weighed in her favor on all of the additional factors to be considered after she had met this threshold burden of proof.
In cases involving child custody and related matters we review the case de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence. Wagner v. Wagner, 74 Ark. App. 135, 45 S.W.3d 852 (2001); Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). 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 conviction that a mistake was committed. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). In child-custody cases we give special deference to the trial court’s position to evaluate what is in the best interests of the child. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). The best interest of the child remains the ultimate objective in resolving child custody and related matters. Staab v. Hurst, supra.
In Staab, this court set forth five factors that should be considered in determining whether to allow a custodial parent to move from the state of the noncustodial parent. These factors are:
(1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.
Id., 44 Ark. App. at 134. Before a circuit judge is to consider the Staab factors, the custodial parent bears the threshold burden to prove some real advantage to the children and himself or herself in the move. Wilson v. Wilson, 67 Ark. App. 48, 991 S.W.2d 48 (1999).
In addition to her own testimony, Deluca presented the testimony of Professor Ray Winters, Chairman of the Radiology Services Department at Arkansas State University (ASU), Mary Deluca-Elder, her sister, and the parties’ children, Mandy and Travis Stapleton, ages eleven and nine. Dr. Winters testified that he was Deluca’s advisor at ASU. He stated that Deluca was licensed as a radiographer in Arkansas, that she was working toward registration in mammography radiography, and that job turnover in mammography is low and opportunities for employment not readily available in central Arkansas. He further testified that demand for mammographers is higher on the east and west coasts, and that they are paid $2.50 to $3.50 more per hour than in the Arkansas region. Dr. Winters further testified that jobs were readily available in Arkansas in radiology and that Deluca could get one paying $13.00 to $15.00 per hour “anywhere in Arkansas at this time.” He stated that Deluca would earn, at the outside, a dollar to two dollars more an hour if she were to be employed in mammography.
Deluca testified that she was taking additional training to qualify in the specialized area of mammography and that she was presently working part-time doing mammograms at a Jonesboro hospital. She further testified that her hours there had been “cut back” to eight per week, that she was living on unemployment, and that she also had to go on welfare and receive subsidized housing. She testified that she was unwilling to work as a general X-ray technician because it would be a “step backward” and would require her to be on call and work nights, weekends, and holidays as a new employee, and she would not have anyone to take care of her children. She stated that she wanted to move to Sacramento, California, where her sister lived, and that she had a job awaiting her in a breast imaging center working a day shift, with benefits and a $4,000 signing bonus. She further testified that her sister and her sister’s husband planned to buy a house for her and the children to live in rent-free and would also help her with babysitting. She stated that she was willing to allow Stapleton to make up for the loss of weekend visitation by increasing his summer, Christmas, and spring break visitation. Deluca admitted that she and Stapleton cannot get along, do not talk to each other, and claimed that she had not “intentionally done anything wrong” in regard to the parties’ past visitation disputes.
Mary Deluca-Elder testified by deposition that she was employed with the same radiology group where Deluca would be working and was aware of an opening there for a mammographer with a salary range of $15.57 to $21.80 per hour; that she and her husband would buy a house as an investment and allow Deluca to live there rent-free, and that she would not charge her for babysitting. Mandy Stapleton testified that “I pretty much think I would like it,” if she went to live in California, and Travis Stapleton testified that he wanted to spend as much time as he could with both parents, had more fun with his dad, missed him, and wished he could be with his dad all the time. After the hearing Deluca also presented a faxed letter dated August 15, 2001, from her prospective employer confirming that she had been offered a full-time position as a radiology technologist in September 2000 in a “float pool” providing coverage for absent employees, and that there are always open positions in this pool.
Bobby Stapleton testified in opposition to Deluca’s petition. He stated that he and Deluca had been in court nearly every year since 1995, including a Department of Human Services (DHS) hearing. He stated that before the March 2000 contempt hearing, he was able to see the children only sporadically at best, but since then he has been able to see them every other weekend. He testified that Deluca was responsible for allegations of abuse made against him to DHS, and that if Deluca was allowed to move to California, he would not even get summer visitation without a court fight. Stapleton testified that his parents, siblings and other family members lived in and near Calico Rock, that it was a two- and-a-half hour drive one way from there to Jonesboro, and that he had not attended many of the children’s extracurricular activities, in part because he feared a confrontation with Deluca.
In his letter opinion, the trial court made the following conclusions of law and findings:
Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994) and its progeny have laid down the guidelines to be followed in this situation. Children, after the divorce of their mother and father, form a new family unit with the custodial parent. If the custodial parent seeks to move with the children to another state, the best interest of the children cannot be considered in a vacuum, but must be considered in the context of the family unit. An important inquiry is whether the proposed move is in the best interest of the custodial parent.
It may be (I am unable to say) that the proposed move of the mother to California would help her. If so, and the inquiry ended there, the decision would necessarily be in the mother’s favor. But it does not (and should not) end there. A determination must be made whether removal of the children to the State of California is inspired primarily by a desire by the mother to frustrate the father’s visitation. Based on my experience with this case stretching back over several years, and my past knowledge that the mother has repeatedly frustrated the father’s visitation, resulting in two separate contempt ridings by me against her because of such conduct, and after observing her at this most recent hearing, I am compelled to find that her motive is in large part frustration of his visitation. And even if this is not presently her motive, there is no doubt in my mind that if she were ever permitted to move to California, there is no way after that move she would comply with any substitute visitation order, no matter the wording of such order. Obviously, continuous and continuing litigation between the mother and father can only be harmful to the children. I believe I have the mother’s attention while she is in Arkansas as far as obeying visitation orders, but in my opinion litigation would commence anew shortly after the move. And in view of the testimony of the children, I find it is not in their best interest to go to California. The oldest child, for instance cannot say whether she wants to go, although it might be “fun.” The youngest child wants to live with his father. In my opinion, it is much better for these children to stay in Arkansas, see their father frequently, and visit their paternal grandmother and other family members.
On appeal, Deluca contends that the trial court clearly erred by stating that he was “unable to say” whether the proposed move would benefit the family unit as a whole, and this ruling must therefore be reversed. She further asserts that the evidence on each of the remaining factors to be considered weighs heavily in her favor.
We do not agree that the trial court’s findings regarding whether Deluca met her threshold burden or her motives are clearly erroneous under the circumstances of this case. While Deluca presented evidence that she had a job offer in California, allegedly in her desired area of radiography, and that she had family there willing to subsidize her living expenses at least for a time, there was also extensive testimony, both in her case and by Staple-ton, that she could easily obtain full-time employment in Arkansas at close to, if not the same pay as, that in California.
Secondly, the trial court clearly found Deluca to be not credible. In an exchange abstracted in Stapleton’s brief, the court questioned Deluca about the delay in entering the order resulting from the March 2000 contempt hearing, which was signed only by Stapleton and his counsel. Deluca first denied that her prior attorney had sent her the order, but admitted that she had received it when shown a letter she signed acknowledging receipt of the order, and further stated that she had refused to sign the order because she did not agree with its contents. This order provided in pertinent part that Deluca was in willful contempt for violation of prior orders of the court; listed five separate provisions she had violated; awarded Stapleton extended summer visitation plus additional makeup visitation; withheld sentencing of incarceration conditioned upon Deluca’s compliance with future orders; prohibited Deluca from enrolling the children in school under any name other than Stapleton, or allowing them to use any other name; and provided that there would be no denial of visitation on account of illness of the children unless documented by a medical report or based on any allegation of abuse against Stapleton unless he has been convicted in a court of law of the abuse. Deluca’s petition for relocation followed closely on the heels of this con tempt order, and the trial court specifically found that “her (Deluca’s) motive is in large part frustration of [Stapleton’s] visitation.”
Finally, we note that the trial court in essence stated that, regardless of whether Deluca had met her threshold burden of proving the move would result in a real advantage, his inquiry did not end there, and he went on to assess the remaining Staab factors as if the burden had been met. Thus, the trial court did not end his inquiry by finding that Deluca had failed at proving a real advantage, but gave her credit for having met the burden.
Deluca next argues that the evidence weighs in her favor on the remaining factors to be considered. She contends that the trial court, in assessing the likelihood of her compliance with future visitation orders, erroneously concluded that Arkansas would lose jurisdiction of the case to California if he allowed her to move. Although the trial court made remarks to this effect at the hearing, in his letter opinion, the trial court stated that if Deluca were permitted to move “there is no way that she would comply with any substituted visitation order,” and “in my opinion litigation would commence anew after the move.” The trial court’s opinion was based on his “experience with this case stretching back over several years,” and “after observing [Deluca] at this most recent hearing.” The letter opinion does not address the conflict over jurisdiction raised during the hearing, or predict the outcome if such a conflict should (UCCJEA)] ensue.
Deluca also argues that Stapleton’s motives for resisting the move lack integrity, and were born of spite. In sup port of this argument, she asserts that he does not attend the children’s extracurricular activities or transport them to these events during his visitation, has not reimbursed her for their medical or dental bills not covered by insurance, does not regularly attend church, and lists various other alleged lapses on the part of Staple-ton, which, if nothing else, reflect on the degree of acrimony between the parties. However, the testimony by Stapleton and the children presented a father and children who love each other and want to spend time with each other, and demonstrated that Sta-pleton has attempted to maintain a close relationship by pursuing enforcement of his regular weekend and summer visitation.
As to the final factor, Deluca contends that Stapleton could easily afford the children’s travel expenses to and from California, and that she would be willing to allow him the bulk of the summer weeks plus other extra time to make up for the lost weekends. She contends that her opportunity for career advancement and a better and more comfortable lifestyle for herself and her children should not be sacrificed to maintain Stapleton’s pattern of weekly visitation. The trial court did not discuss this factor in his letter opinion. However, some alternative to weekly visitation will be available in almost every case, unless the incomes of the parties are insufficient to bear this additional expense. The trial court fully set out the Staab factors in his letter opinion, and we cannot say that he failed to consider this final factor in reaching his decision. We further cannot say that this factor alone would outweigh the trial court’s findings with respect to Deluca’s motives and the likelihood of her compliance with further visitation orders.
Finally, we distinguish the cases cited by Deluca for the proposition that this court has placed great emphasis on a custodial parent’s desire to relocate for career advancement. In Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000), we affirmed a chancellor’s decision to allow a relocation to Texas where the custodial parent obtained a much higher-paying job with less travel. In Wagner v. Wagner, 74 Ark. App. 135, 45 S.W.3d 852 (2001), we affirmed a chancellor’s decison to allow relocation to Florida where the custodial parent had a job opportunity and would be near her mother. In Hass v. Hass, 74 Ark. App. 49, 44 S.W.3d 773 (2001), we reversed the chancellor’s decision prohibiting the custodial parent from moving to El Dorado from Fayetteville. There the parent wanted to move in order to take advantage of an offer of a federal judicial clerkship. Finally, in Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001), this court reversed the trial court’s denial of relocation from Jonesboro to Little Rock where the appellant had a job offer and planned to pursue an advanced degree, and where the family had lived until 1996, noting the short distance between Jonesboro and Little Rock.
Both Wagner and Friedrich involved parties with past visitation disputes. In affirming the trial courts’ decisions to allow relocation, we stated that while past problems with visitation were not alone dispositive of the question of the integrity of the custodial parent’s motives for seeking to move, we would defer to the trial court to evaluate the witnesses and their testimony in this regard. Both of the cases in which this court reversed the denial of relocation involved relatively short intrastate moves, while the case before us involves a move to California. In this case, the evidence supports the findings made by the trial court regarding Deluca’s motive and likelihood of compliance with future visitation orders, and, as we did in Wagner and Friedrich, we defer to the trial court in the evaluation of the witnesses and their testimony on these crucial issues.
Affirmed.
Pittman, J., agrees.
Griffen, J., concurs.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which both Arkansas and California have adopted, is the exclusive method for determining the proper forum in custody disputes involving other jurisdictions. In re C.T. v. Rodney T. et al., 100 Cal. App. 4th 101, 121 Cal. Rptr.2d 897 (2002). See Ark. Code Ann. §§ 9-19-101 to 9-19-401 (Repl. 2002); Cal. Fam. Code §§ 3400 to 3462. (West 2000). Under the UCCJEA, the Arkansas trial court would retain jurisdiction over any future custody disputes between the parties even if Deluca were permitted to relocate to California. The only exception to the trial court’s continuing jurisdiction is in the event that an emergency exists, in which case California would take emergency jurisdiction to protect the child horn actual or threatened mistreatment or abuse. In re C. T., supra. See Cal. Fam. Code § 3424. | [
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Karen R. Baker, Judge.
The appellant, Poulan Weed Eater, appeals from a decision by the Arkansas Workers’ Compensation Commission awarding appellee, Loretta Marshall, temporary total disability benefits and additional medical treatment after an admittedly compensable injury. Appellant contends that the Commission’s finding in support of its decision that additional medical treatment is reasonable and necessary and related to appellee’s compensable injury was not supported by substantial evidence. It also claims that the Commission’s decision that appellee is entitled to temporary total disability benefits from July 28, 2000, and continuing through a date yet to be determined is not supported by substantial evidence. We hold that substantial evidence supports the Commission’s findings and affirm.
Appellee, Ms. Marshall, worked for appellant for over twelve years. During the last six to eight months of her employment, she began experiencing pain in both hands. She testified that on May 16, 2000, she developed additional symptoms in her left arm of tingling, limpness and a heavy feeling when she reached behind her with her left arm and picked up a tray of pistons. Ms. Marshall also testified that she reported these pains to her supervisor, Randy Welch, who then took her to the nurse’s station. After she explained her symptoms to him and the nurse, they both went to inspect Ms. Marshall’s job duties. Upon their return, the nurse advised Ms. Marshall that her job could not have caused her symptoms and instructed Ms. Marshall to see her family physician. Ms. Marshall then left work even though she had only been at work a few hours.
Mr. Welch testified that he had no independent recollection of Ms. Marshall’s reporting of her hand and arm pains, but that he would routinely send a person to the nurse who reported such pains. The nurse testified that she had seen Ms. Marshall on that date, but that Ms. Marshall only had her blood pressure checked. The nurse had no recollection of seeing Ms. Marshall for hand and arm pain, nor did she recall going to evaluate Ms. Marshall’s job duties.
Appellant’s workers’ compensation manager confirmed that Ms. Marshall only worked for an hour to an hour-and-a-half before clocking out on May 16, 2000. This witness also confirmed that Ms. Marshall was not provided with a form N. In addition, medical records reflected that Ms. Marshall reported to the emergency room of the local hospital at 1:08 p.m. on May 16, 2000, with complaints of left arm pain and numbness that had started that day.
Ms. Marshall received several certificates for return to work dated as early as May 17, 2000. She was being treated throughout this time period. The last certificate was dated July 25, 2000, and released her back to work on July 26, 2000. The certificate indicated that Ms. Marshall had been under the care of the treating physician from July 25 to an unspecified date in the future. On July 28, 2000, appellant terminated Ms. Marshall’s employment citing the reason as absenteeism and tardiness. Medical evidence was in conflict and included statements that if Ms. Marshall went back to the same line of work, it might make symptoms worse and recommended additional testing and consultation. In addition, her family physician stated that it was reasonable and necessary for Ms. Marshall to remain off work subsequent to July 28 until she could obtain appropriate medical care. The Commission found that Ms. Marshall had not returned to work.
Appellant stipulated that Ms. Marshall sustained a compensa-ble injury; consequently, the majority of the testimony centered around the type of work that Ms. Marshall performed and whether she had reported an injury. The administrative law judge’s opinion, adopted by the Commission, addressed the discrepancies in the testimony observing that the nurse did not testify from an independent memory, but from an incomplete nurse’s log. The log did not reflect a reason for Ms. Marshall’s visit, and the opinion noted that the nurse merely assumed that Ms. Marshall came in for a blood-pressure check. Specifically, the opinion stated that Ms. Marshall was credible and that her account was more accurate than that of Mr. Welch and the nurse.
This court reviews decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). In determining the sufficiency of the evi dence to support the findings of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The determination of the credibility and weight to be given a witness’s testimony is within the sole province of 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. Farmers Coop. v. Biles, 77 Ark. App. 1, 4-5, 69 S.W.3d 899, 902 (2002). Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Mgmt, 343 Ark. 276, 33 S.W.3d 167 (2000).
Here, in reaching its decision, the Commission specifically noted discrepancy in testimony of witnesses for appellant and appellee and found that appellee was credible and that her account of what transpired was more accurate than appellant’s witnesses. Furthermore, medical records corroborated the account. The decision noted that medical diagnoses on the claim were in conflict, but that appellant had accepted the injury and that the claim was compensable. The decision also noted that while one doctor conducted tests which he interpreted as normal, another doctor indicated that going back to the same line of work might make appellee’s symptoms worse. Still another had recommended additional testing. Ms. Marshall’s treating physician’s opinion was that it was reasonable for her to remain off work until proper testing and treatment had been done. From our review of the evidence, we conclude that substantial evidence supports the Commission’s decision that additional medical treatment is necessary and related to Ms. Marshall’s compensable injury.
We also hold that substantial evidence supports the Commission’s finding that Ms. Marshall is entitled to temporary total disability benefits from July 28, 2000, and continuing to a date yet to be determined. Appellant argues that appellee’s healing period had ended because she had received a certificate to return to work, that she returned to work on July 26, and then was fired on July 28 for absenteeism and tardiness unrelated to her claim.
Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages; the healing period is that period for healing of an accidental injury that continues until the employee is as far restored as the permanent character of his injury will permit, and that ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Id. These are matters of weight and credibility, and thus he within the exclusive province of the Commission. Farmers Coop. v. Biles, supra.
In this case, the determination of whether the healing period has ended included the factual determination as to whether Ms. Marshall had returned to work. Arkansas Code Annotated § 11-9-521(a) (Repl.1996), provides that employees who sustain scheduled injuries shall receive temporary disability benefits “during the healing period or until the employee returns to work, whichever occurs first.” Appellant argues that, because Ms. Marshall was released to return to work after her injury and did so for two days, that she is barred from receiving temporary total disability benefits for the period following her termination by appellant. We do not agree.
The argument is analagous to that made in Farmers Coop. v. Biles, supra, where the employer argued that the employee’s attempts to continue working constituted a return to work. We find the reasoning in Biles to be applicable in this case as well:
[C] onstruction of the Workers’ Compensation Act must be done in light of the express purpose of that legislation, which is “to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force.” Ark.Code Ann. § 11 — 9— 101(b) (Repl. 1996). In light of the legislative purpose, it would be ludicrous to assume that the legislature sought to penalize workers who sustain scheduled injuries, or to deter such workers from making a good-faith effort to return to the work force following such an injury. Section 11-9-521 (a)’s brief reference to temporary disability benefits merely establishes the right of a worker who has sustained a scheduled injury to such benefits, and was clearly not intended to bar additional temporary total disability benefits following an unsuccessful attempt to return to the workforce. See Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997).
“Return to work” is not defined by the Act, and we think it would be a gross perversion of the purpose of the Workers’ Compensation Act to hold that appellee “returned to work” pursuant to § 11-9-521 (a) by continuing to report to work following his injury. In our view, appellee never left work. Appellee could not leave work — without being terminated for absenteeism — until he had been evaluated by a physician and given an off-work slip. Appellee requested medical care and evaluation, but appellant refused to provide it. No reasonable construction of the term “return to work” would permit an employer to coerce an injured worker to abandon his claim to temporary disability benefits by denying him reasonable and necessary medical treatment for an admittedly compensable injury.
Id. at 6-7, 69 S.W. 3d at 903.
In this case, Ms. Marshall repeatedly attempted to work, and repeatedly required additional care and treatment. Specific medical evidence indicated that her continued treatment for the compensable injury was required past the date of her termination by appellant. Substantial evidence supports the Commission’s finding that Ms. Marshall had not returned to work and accordingly, we affirm on that point as well.
Affirmed.
Stroud, C.J., Bird, and Vaught, JJ., agree.
Pittman, J., concurs.
Hart, Robbins, Crabtree and Roaf, JJ., dissent.
The dissent footnotes that testimony indicated that Ms. Marshall returned to work at an earlier date; however, appellant does not argue that any previous attempt to return to work was successful. | [
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John B. Robbins, Judge.
Appellant John E. Atkins, d/b/a Atkins Real Estate, entered into a written contract to sell real estate owned by appellee L.L. Cole & Son, Inc. The contract provides that the listing period “begins July 15, 1995, and expires 365 days later unless renewed in writing.” On November 8, 1995, L.L. Cole sold the real estate to Bobby and Carmen Robinson for $875,000.00, but failed to pay Atkins any commission.
On November 14, 1997, Atkins filed a complaint against L.L. Cole for breach of contract. Attached to appellant’s complaint was a copy of the listing contract, which provides in pertinent part:
1. RIGHT TO SELL: In consideration of the services of Atkins Real Estate, hereinafter called “Agent” in selling or exchanging the property described herein, L. L. COLE & SON, INC., Mrs. Vaughn Mathis, Secretary and Manager being the sole owners of the property, hereinafter called “Owners” agrees that the Agent shall have the exclusive right to sell said property.
3. SALES PRICE: The gross sale price shall be $1,250,00.00 or such lesser price or terms as owner may accept.
7. AGENT’S PEE: If the property be sold or otherwise disposed of by agent or any other person, including Owners, during the listing period, Owners agree to pay Agent a professional fee of 10% of the gross amount of the sale or value of the property exchanged, for professional services. If price is reduced, [commission] will be reduced or renegotiated but not below 6%.
In its complaint, Atkins prayed for $61,250.00 in damages, which is the equivalent of a seven-percent commission on the sale price. Atkins further requested prejudgment interest, costs, and attorney’s fees.
In an amended answer to the complaint, L.L. Cole asserted that, because Secretary Vaughn Mathis acted outside the scope of her employment when signing the contract, the contract does not bind the corporation. L.L. Cole further defended on the ground that Atkins did nothing to procure the sale, citing Farm Credit Bank of St. Louis v. Miller, 316 Ark. 388, 872 S.W.2d 376 (1994). Finally, L.L. Cole asserted that Bobby Robinson was to be excluded from the contract such that a sale of the property to him would result in no commission, but that the omission of this exclusion from the written contract was the result of mutual mistake or fraud on the part of Atkins.
Both parties moved for summary judgment, and after a hearing on the motions the trial court entered summary judgment in favor of L.L. Cole. In its order, the trial court ruled that because it was undisputed that Atkins did not procure the purchaser of the property, Atkins is precluded by the “procuring cause doctrine” from claiming any commission from L.L. Cole. Atkins now appeals, arguing that the trial court erred in entering summary judgment because the “procuring cause doctrine” does not apply to this case.
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Bond v. Lavaca Sch. Dist., 347 Ark. 300, 64 S.W.3d 249 (2001). We hold that L.L. Cole was not entitled to judgment as a matter of law, even though it is not disputed that Atkins failed to procure the buyer of the real estate, because of the provisions of the contract. Therefore, we reverse the trial court’s order granting summary judgment.
In Farm Credit Bank of St. Louis v. Miller, supra, cited by both parties in their briefs, our supreme court held that the “procuring cause doctrine” can be used affirmatively to infer a contract between the broker and the principal by allowing the broker to show that his part of the contract was performed and the principal reaped a benefit, or defensively to prevent broker fraud. However, while the doctrine was applied in that case to determine that the real estate broker procured the cause of the sale and was entitled to a commission, the contract in that case was a nonexclusive contract, under which the broker was to receive a commission only if the property was sold to a prospect the broker procured.
As Atkins asserts in his argument, the contract at issue in this case is unlike that in Farm Credit Bank of St. Louis v. Miller, supra, because it is an exclusive right-to-sell contract. The contract specifically provides that if the property is sold by any person, including the owners, during the listing period, the owners agree to pay a commission. Because the owner, L.L. Cole, sold the property, Atkins was entitled to a commission by the specific terms of the parties’ agreement.
The rule regarding exclusive real estate contracts was announced in Halbert v. Block-Meeks Realty Co., 227 Ark. 246, 297 S.W.2d 924 (1957), where the supreme court held that during the period of an exclusive-sale contract, the principal can sell the property to no one without becoming liable to the real estate broker for the commission specified. In that case, the owners sold the property to a third party and denied owing any commission, despite language in the contract providing that they agreed to pay five percent should the property be sold during the listing period “no matter by whom or in what manner.” In affirming the trial court’s verdict awarding the five-percent commission, the supreme court stated:
Under this contract we hold that appellee had an exclusive listing of the Myrtle Lane property, and when it was shown that the sale of this property was made by the Halberts to the Bossons within the listing time, it made no difference to whom or in what manner the Halberts sold to the Bossons, they could not defeat appel- lee’s commission, even though the Halberts sold to a stranger to appellee. It was not necessary under the plain wording of the contract for appellee to show that the sale was made on information given or received or obtained through appellee’s efforts, or that appellee had found a buyer, ready, willing and able to buy, for the contract contained no such provisions. In other words, during the listing period, appellants could not sell their property to anyone, without becoming liable to appellee for the commission specified in the contract.
Halbert v. Blocks-Meeks Realty Co., 227 Ark. at 248-49, 297 S.W.2d at 925-26 (emphasis in original).
In the instant case the contract between the parties is an exclusive-sale contract, and under such circumstances L.L. Cole could not sell its property without being liable to Atkins. See Halbert v. Blocks-Meeks Realty Co., supra. See also Hardwick v. Marsh, 96 Ark. 23, 130 S.W. 524 (1910); Blumenthal v. Bridges, 91 Ark. 212, 120 S.W. 974 (1909). Therefore, we hold that the trial court erred in entering summary judgment for L.L. Cole on the ground that Atkins failed to procure the purchaser.
Reversed and remanded for further proceedings.
Stroud, C.J., and Hart, J., agree.
We recognize that there may be circumstances where an owner reserves a right to sell property under an exclusive-listing agreement, as opposed to an exclusive-sale contract. See Porter v. Deeter, 255 Ark. 1057, 505 S.W.2d 18 (1964). However, the contract in this case was an exclusive-sale contract and explicitly provided otherwise. | [
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JOHN E. JENNINGS, Judge.
Larry Stivers was found guilty of possession of marijuana, possession of methamphetamine, and the simultaneous possession of drugs and firearms, and was sentenced to ten years' imprisonment. He argues on appeal that the evidence was insufficient to convict him on the charge of simultaneous possession and that the trial court erred in denying his motion to suppress evidence. We reverse on appellant's second point because we hold that the affidavit for the search warrant was insufficient to justif~r a nighttime search.
In the summer of 1999, police officers obtained a search warrant to search Stivers's home in Carlisle, Arkansas. The warrant was served at 1:18 a.m., and the officers found methamphetamine, marijuana, a .22 caliber rifle, and a 12-gauge shotgun.
Appellant's first argument, that the evidence was insufficient to support his conviction on the charge of simultaneous possession of drugs and firearms, can be easily disposed of. Stivers concedes that he did not move for a directed verdict on this count. He may not now raise an argument he did not make to the trial court. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996).
Stivers's second point on appeal is that the trial court erred in concluding that the affidavit for search warrant was sufficient to authorize a nighttime search. We agree.
The warrant, issued by the Carlisle Municipal Court judge, stated that "because the items to be seized are in imminent danger of destruction or removal, a nighttime search is authorized."
The affidavit of Carlisle Police Officer Eric Franks recited that: (1) a part-time patrolman told him that his wife had become ill due to a strong chemical odor coming from their neighbor’s house; (2) Franks went to the patrolman’s house and also smelled the chemical odor coming from appellant’s house; and another officer confirmed that he also smelled a chemical odor; (3) Franks was told that a reliable informant, whose information had resulted in convictions for narcotics violations on four separate occasions, told police that appellant was “cooking” methamphetamine; and (4) an officer told Franks that appellant had been present at a residence where police had seized a clandestine methamphetamine lab.
The last paragraph of the affidavit states:
WHEREFORE, Affiant requests that a search and seizure warrant be issued, allowing a nighttime search, because there is an open drape on the front window of the residence allowing an unobstructed view of N. Williams Ave. The affiant believes that Stivers is aware of the increased law enforcement presence and interest in the area of his residence, and fears that Stivers will respond by attempting to remove or destroy any evidence of illegal activity.
Clearly the affidavit established an adequate basis for the issuance of a warrant. The question is whether it established a sufficient basis for a nighttime search.
Rule 13.2(c) of the Arkansas Rules of Criminal Procedure provides:
Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing 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.
A factual basis for a nighttime search is required. Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). The affiant’s statement that he “believes that Stivers is aware of the increased law enforcement presence” is conclusory. So is the affiant’s statement that he “fears Stivers will respond by attempting to remove or destroy any evidence of illegal activity.” Conclusory statements in the affidavit are not adequate to support a nighttime search warrant. Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991).
In Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999), the officer’s affidavit stated:
It has been my experience and I know that the process of manufacturing methamphetamine takes approximately four hours and that the chemicals used to manufacture methamphetamine are volatile and subject to explode or at the least cause a fire and can be a danger to surrounding houses in a residential setting such as this. There is also an imminent danger that the items and hardware used to manufacture methamphetamine may be moved or destroyed and the methamphetamine produced may be transported and/or sold.
The supreme court held that these words were conclusory. The court also said:
Nor can we agree with the trial court that a strong odor of ether detected at the Fouse residence at 9:00 p.m. on December 22, 1997, was a reasonable basis for concluding that methamphetamine was to be removed or sold or both within the next four hours and that a nighttime search was justified.
The affidavit in the case at bar also recited that the Stivers home had an “open drape.” While this is a statement of fact and not a conclusion, this fact alone is not enough to support the magistrate’s determination that the evidence to be seized was in danger of imminent destruction or removal.
Reversed and remanded.
Crabtree and Baker, JJ., agree.
Although the State argues that the trial court did not reach the merits of appellant's argument, we conclude that it clearly did. | [
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Karen R. Baker, Judge.
This appeal arises from a grant of summary judgment deciding a contract dispute between an insured and his insurer. Appellant Eddie Buie filed suit against his insurer, appellees, for breach of contract based on its failure to pay on a fire-loss claim. The circuit court granted summary judgment in favor of appellees finding that appellant had made material misrepresentations in applying for the policy issued by appellees, in continuing the policy, and in making a claim under the policy. The court further found that appellees had properly rescinded the insurance policy. On appeal, appellant argues that the trial court erred in finding as a matter of law that appellant’s insurance policy with appellees was properly rescinded such that there was no coverage for appellant’s fire loss. We hold that summary judgment in this case is not appropriate, and accordingly, we reverse and remand.
It is difficult to set forth a concise statement of facts in this case because of numerous factual disputes. However, the appellant, Eddie Buie, owned a convenience store, University One Stop. On December 3, 1997, the business was damaged by fire. Appellant reported the loss, but was subsequently informed that the insurance policy had been rescinded based on a provision in the policy which provided that the policy was void if the insured concealed or misrepresented a material fact. Appellees alleged, as the basis for invoking this provision, that appellant had failed to disclose a prior fire loss.
Appellant filed a complaint against appellees for damages he incurred in the fire. In response, appellees filed an answer and counterclaim. After discovery, appellees filed a motion for summary judgment arguing that the policy was rescinded and void due to a material misrepresentation. Appellant denied the allegations in the motion for summary judgment. The trial court granted the motion for summary judgment, and appellant then filed a motion to reconsider emphasizing that there was a material dispute as to several facts in the case. Appellees filed a motion to strike the motion to reconsider. The trial court never ruled on the motion to reconsider; thus, it was deemed denied. This appeal from the trial court’s granting of appellees’ motion for summary judgment followed.
As noted above, this case contains many disputed factual issues. A motion for summary judgment cannot be used to submit a disputed question of fact to a trial judge. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981) (citing Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W.2d 492 (1966)). Appellees submitted a motion for summary judgment to the trial court. This motion included a section entitled “Undisputed Facts.” Paragraph 5 asserts the following as an undisputed fact: “Plaintiff did not disclose the prior loss to Dale Dixon, the agent from whom Plaintiff purchased the insurance.” Appellees cites the court to Exhibit B, which is a copy of the insurance application that had the box “no” checked in response to two questions regarding prior fire loss. Appellees also cites the court to Exhibit A, which is an excerpt from Dale Dixon’s deposition, and the cited lines contain Mr. Dixon’s representation that he was the person who checked “no” to the questions on the application regarding prior loss. He claimed that he checked the boxes based upon Mr. Buie’s answers over the phone to his questions on the application.
This same motion also contained an excerpt from Eddie Buie’s deposition. Mr. Buie stated that he had no knowledge concerning an application. Specifically, he said, “[I]t never dawned on me that I had to fill out an application.” Furthermore, in response to the question, “Well, you knew Dale Dixon was coming to the store with an application, didn’t you?”, Mr. Buie replied, “No. He said, ‘I’ll come out there and take care of you.’”
We agree from the motion as presented that it is undisputed that Mr. Buie did not disclose the prior fire loss. However, the two factual circumstances presented in the supporting exhibits regarding the nondisclosure are irreconcilable. Mr. Dixon claims that Mr. Buie lied in response to specific questions on the insurance application. Mr. Buie claims a conversation concerning the application never happened.
In granting appellees’ motion for summary judgment, the court found that appellant had “falsely answered no to both questions in the insurance application.” In the portion of Mr. Dixon’s deposition that was attached to the summary-judgment motion, he stated that he was the one who actually filled out the application. Not only did Mr. Buie not fill out the application, he did not sign the application, and he denies that he was aware that an application existed. The application, which was included in appellee’s own exhibits, was signed by Mildred Brown. Mr. Buie was in Chicago when Ms. Brown signed the application. Thus, it is clear from appellees’ own exhibits that a material question of fact existed as to agency, which is fatal to the summary-judgment motion. In MDH Builders v. Nabholz Const. Corp., 70 Ark. App. 284, 17 S.W.3d 97 (2000) (citing Hot Stuff, Inc. v. Kinko’s Graphic Corp., 50 Ark. App. 56, 901 S.W.2d 854 (1995)), we held that whether an agent is acting within the scope of his apparent or actual authority is a question of fact.
Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981) (citing Hendricks v. Burton, 1 Ark. App. 159, 613 S.W.2d 609 (1981); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979); Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978)). The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever the motion should be denied. Id. (citing Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979); Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969)). The trial court concluded that Mr. Buie falsely answered no to the questions on the application regarding prior fire loss. The trial court’s finding is consistent with Mr. Dixon’s deposition testimony. However, the trial court’s finding directly contradicts Mr. Buie’s deposition testimony, also attached to the summary-judgment motion.
In considering Mr. Buie’s testimony, a finding that he answered falsely would be impossible because his testimony is that he not only never answered any questions regarding a fire loss, but that he was completely unaware of an application containing the questions at issue. The trial court’s finding required a credibility determination, and that is inappropriate for a summary judgment.
Our supreme court has stated that we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (emphasis added). Neither Arkansas Rule of Civil Procedure 12 nor Rule 56 authorizes the trial court to summarily dismiss a complaint where there are matters before the court that show there is an issue of fact to be decided. Maas v. Merrell Assoc., Inc., 13 Ark. App. 240, 682 S.W.2d 769 (1985).
In summary-judgment cases, we need only decide if the grant of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. National Union Fire Ins. Co. v. Fitzhugh, 76 Ark. App. 313, 59 S.W.3d 432 (2002) (citing Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000)). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. 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. National Union Fire Ins. Co., supra. We hold that there were material questions of fact left unanswered in this case.
Appellees also argue that appellant failed to rebut the evidence of the oral misrepresentation; thus, the granting of the motion for summary judgment was proper. However, in this case, the trial court’s order granting appellees’ motion for summary judgment does not mention an oral misrepresentation. Instead, the order was based on the finding that two questions on the insurance application were answered falsely.
Arkansas Rule of Civil Procedure 56(e) states that, ” When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allega tions or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Appellee also argues that appellant failed to meet proof with proof and demonstrate the existence of a genuine issue of material fact. However, Rule 56(e) further states, “If he does not so respond, summary judgment, if appropriate, shall be entered against him.” (emphasis added).
Resolving all doubts against the moving party, we find that questions of material of fact were left unanswered. Summary judgment inappropriate in this case, and the trial court erred in granting appellees’ motion for summary judgment.
Reversed and remanded.
Hart, Robbins, and Crabtree, JJ., agree.
Pittman and Vaught, JJ., dissent.
The dissent asserts that we rely on facts outside appellees’ motion for summary judgment, brief, attached exhibits, and reply. Perhaps, since Mr. Buie’s motion to reconsider contained the additional pages of his deposition where he specifically denied there was any discussion regarding fire or fire loss, this erroneous assertion is understandable. However, it is unnecessary to rely on facts outside the motion for summary judgment and attachments when it is clear from those pleadings alone that there is a disputed question of fact as to whether a conversation concerning the insurance application or any prior fire loss ever took place.
The true issue in controversy is whether appellant was ever asked about a prior fire loss. It is evident from the appellees’ own motion for summary judgment, brief, attached exhibits, and reply that this issue is disputed. That it was inappropriate for appellees’ attorney to present nondisclosure of the prior fire loss as an undisputed fact, would be even more obvious were we to look to the pages of Mr. Buie’s deposition, excluded from appellees’ motion for summary judgment and its attachments, wherein Mr. Buie specifically stated, “We never talked about fire or fire loss. We only talked about the lien.” | [
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Josephine Linker Hart, Judge.
Hazel Davis has appealed from three aspects of a divorce decree that ended her forty-nine-year marriage. She contends that the trial judge should have awarded her a one-half interest in a farm to which appellee William Davis acquired title before the parties were married and that the judge awarded an insufficient amount of alimony. She also argues that the judge should have awarded an increased amount of child support for the parties’ disabled adult daughter, for whom appellant provides full-time care. We affirm the child-support award and reverse and remand as to alimony and the division of the farm.
The parties married in 1952, when appellant was fifteen years old. Throughout the marriage, appellant did not work away from the home. The parties had four children during the marriage; one child died in infancy and another, Vicki, was born in 1956 with a serious mental handicap. Vicki mentally performs at the level of a seven-year-old and requires full-time care; there is no dispute that her needs prevent appellant from working outside the home.
In 1951, about six months before the marriage, appellee purchased a 211-acre farm in Arkansas County for $21,500, and borrowed the entire purchase price. The first payment on this debt was made after the parties married. The debt was satisfied by income that appellee generated from farming. Both parties later signed applications for loans that were used to improve the farm. On the loan applications, the farm was listed as belonging to both of them. At the time of trial, their son farmed this property and paid rent to appellee. The parties’ son-in-law, George Juhl, testified that the farm now has a value of between $1,500 and $2,000 per acre. Appellee’s brother, Johnny Davis, testified that its value was between $1,800 and $2,000 an acre.
In addition to the 211-acre farm, the parties acquired a significant amount of other property, both real and personal, during the marriage. One item of personal property that was not litigated was appellee’s acquisition of stock in a family farm corporation, Davis Farms, Inc. According to the parties’ daughter, Cynthia Juhl, appellee inherited some of this stock and purchased the rest. Appellant presented evidence, and appellee admitted, that he had taken steps to transfer marital property, including his stock in Davis Farms, to their son before the divorce. Although appellee explained that he did so to enable his son to use the stock as collateral for a loan, he denied having any further interest in this stock. Cynthia stated that appellee had told her that he had loaned the stock, and had not given it, to her brother. Additionally, Johnny Davis testified that appellee had stated on more than one occasion before the divorce that he was “getting everything fixed” to protect his assets from appellant and Vicki.
On his affidavit of financial means, appellee fisted his total monthly expenses as $1,370. Appellant listed her and Vicki’s monthly expenses as $2,526.50. Appellant and Vicki each draw $441 in social security benefits, and Vicki receives $90 in Supplemental Security Income (SSI) benefits. Appellee receives social security benefits of approximately $930 per month. In addition to his social security income, his affidavit reflected an annual income of $18,500 from the rental of the farm and $10,000 from machinery rental.
In the decree, the trial judge found that Vicki is in need of support and set appellee’s child-support obligation at $180 per month, noting that this amount is in addition to the social security benefits that she receives. The judge awarded appellant alimony in the amount of $300 per month. The judge found that the farm is nonmarital property. However, he awarded appellant the right to occupy the house on this property because she is Vicki’s primary caregiver. He ordered appellant to pay for the utilities and normal maintenance on the house, and made appellee responsible for major maintenance and repairs, taxes, and insurance on it.
The judge ordered the parties’ marital property, both real and personal, to be divided equally. This property included two parcels of real estate in Jefferson County, life insurance policies, an IRA, stock certificates, several bank accounts, a 1994 Lincoln Town Car, farm equipment, a GMC truck, and four guns. The judge ordered the real property in Jefferson County to be sold and the proceeds divided equally.
Arguments
Appellant makes the following arguments on appeal: (1) the judge erred in failing to award her a one-half interest in the farm; (2) the judge set her alimony too low; (3) the judge set child support too low.
The Property Division
Appellee asserts that appellant cannot argue on appeal that she was entitled to an interest in the farm because she failed to make this argument at trial. We disagree. Appellant presented extensive testimony about the parties’ residence on the farm throughout their long marriage and introduced as exhibits copies of the loan applications upon which she and appellee had listed the farm as a joint asset. Our review of the record reveals that, at trial, it was clear that appellant was asserting an interest in the property. Appellant adequately preserved this issue for purposes of appeal.
The burden was on appellee to establish that the farm was his separate nonmarital property. Aldridge v. Aldridge, 28 Ark. App. 175, 773 S.W.2d 103 (1989). The trial judge’s findings as to the circumstances warranting a property division will not be reversed unless they are clearly erroneous. Dennis v. Dennis, 70 Ark. App. 13, 13 S.W.3d 909 (2000). 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 was committed. Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001). We are left with such a conviction in this case.
We believe that the trial judge clearly erred in finding that the farm is appellee’s nonmarital property. It is true that Ark. Code Ann. §§ 9-12-315(b)(1), (5), and (7) (Repl. 2002) provide that all property acquired prior to the marriage, its increase in value, and its income are not marital property. See Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999). However, a spouse’s earnings acquired subsequent to marriage are classified as marital property. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). Appellee’s earnings from farming were, therefore, undis-putably marital property. When dividing the parties’ marital and nonmarital property, the trial court should consider that marital property was used to pay a debt that one spouse incurred prior to the marriage. Id.; Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984); see also Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). In this case, all of the debt was paid from income that appellee produced while farming. In Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), the supreme court held that marital property does not include passive appreciation of nonmarital property but that active appreciation of such property as a result of a spouse’s contribution of substantial time, effort, or skill over an extended period of time should be classified as marital property.
Layman clearly applies here. When the parties married, appellee owned nothing more than bare legal title to the farm; all of the equity was accumulated during the marriage. For over forty years, appellee devoted virtually all of his work efforts toward producing income from the farm, and through his labors, appellee satisfied the debt on the farm and increased its value. Additionally, appellant provided decades of services to the family in running the household and rearing the children. Until the mid-1970’s, appellee had serious health problems that required appellant’s care and attention. Appellant frequently had to take appellee to the doctor at night. Without a doubt, her efforts also contributed to the farm’s appreciation in value. The court is required to consider the services of a homemaker in dividing the marital property. See Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001); see also Ark. Code Ann. § 9-12-315(1)(A)(viii) (Repl. 2002).
The trial court’s award of the farm to appellee must, therefore, be reversed and remanded. Although the burden was on appellee to establish the value of the farm prior to the parties’ marriage, Aldridge v. Aldridge, supra, he failed to present any such evidence. Accordingly, the farm should be treated as marital property in the entirety and divided equally between the parties.
Alimony
Appellant argues that the total award of alimony and child support is insufficient to meet her and Vicki’s monthly expenses of $2,526.50. These awards, however, should be considered separately.
Alimony and property divisions are complementary devices that a chancellor employs to make the dissolution of a marriage as equitable as possible. See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). A trial judge’s decision whether to award alimony is a matter that lies within his sound discretion and will not be reversed on appeal absent an abuse of that discretion. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001); Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998); Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Anderson v. Anderson, supra. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id. The trial court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; and (4) the earning ability and capacity of both parties. Id. In Mitchell v. Mitchell, supra, this court explained that the amount of alimony should not be reduced to a mathematical formula and that the need for flexibility outweighs the need for relative certainty. However, the court should consider the total income, from whatever source, including social security payments, of both parties in making the determination. See Cochran v. Cochran, 7 Ark. App. 146, 644 S.W.2d 635 (1983).
Our decision that appellant should receive a one-half interest in the farm substantially reduces appellee’s assets; therefore, we find that the amount of alimony awarded should be reconsidered by the trial judge on remand.
Child Support
The general rule is that, once a child reaches majority, the legal duty of the parents to support that child ceases. Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994). An exception to this rule, however, exists when a child is mentally or physically disabled in any way at majority. Id. Arkansas Code Annotated § 9-12-312(a)(5)(B) (Repl. 2002) provides that the “court may also provide for the continuation of support for an individual with a disability which affects the ability of the individ ual to live independently from the custodial parent.” The determination of whether continued support for an adult child is proper has to be made on the basis of the facts of each particular case. Kimbrell v. Kimbrell, supra. Under these circumstances, the amount of child support a trial court awards lies within the court’s sound discretion, and this court will not disturb the court’s award absent an abuse of discretion. Id.
Appellee receives social security and rental income. As a result of our opinion, his farm rental income will be reduced by one-half. Arkansas Code Annotated § 9-14-201 (4) (A) (Supp. 2001) defines “income” as “any periodic form of payment due to an individual, regardless of the source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest.” The Arkansas Supreme Court expanded this definition in In re: Administrative Order No. 10: Arkansas Child Support Guidelines § II, 331 Ark. 581, 582 (1998) as follows: “Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest . . . .” In section IIIc., the guidelines state: “For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient’s spouse and/or children on account of the payor’s disability.”
Appellee has not appealed from the award of child support and does not dispute that his social security benefits should be considered as income for the purpose of computing his obligation. See Davie v. Office of Child Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002); Davis v. Office of Child Support Enforcement, 341 Ark., 349, 20 S.W.3d 273 (2000). Even if appel-lee’s social security benefits are included in his take-home pay for the purposes of calculating his child-support obligation, the amount awarded need not be increased. In Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), the supreme court stated that a parent should be credited with the full amount of social security payments made to the child. See also Cantrell v. Cantrell, 10 Ark. App. 357, 664 S.W.2d 493 (1984). Vicki receives $441 in monthly social security benefits, which is more than the amount of child support required by the chart. Therefore, we cannot say that the judge abused his discretion in setting monthly child support at $180.
Affirmed in part; reversed and remanded in part.
Stroud, C.J., and Robbins, J., agree.
We note, however, that the farm’s income was marital property until the General Assembly amended Ark. Code Ann. § 9-12-315 in 1989. See Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987).
The Guidelines were amended on January 31, 2002, effective February 11, 2002, and now state in section IIIc.: “For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient’s spouse and children on account of the payor’s disability. SSI benefits shall not be considered as income.” In re: Administrative Order Number 10- Child Support Guidelines, 347 Ark. 1064 (2002). | [
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Josephine LINKER Hart, Judge.
Jim Apel appeals the denial of his petition to adopt the twin children of his wife and appellee, Ronald Cummings. He argues that the probate court erred by finding the adoption was not in the best interest of the children. We agree and reverse.
On April 1, 1998, Sarah Apel, mother of the children and wife of appellant, divorced Ronald Cummings, appellee, and obtained custody of their two-year-old twins, Matalynn and Joshua. On May 1, 1998, Sarah married appellant and moved with the children to appellant’s home in Jefferson County. On June 22, 1999, appellant filed a petition for adoption of the twins along with a consent to adoption that failed to conform to the requirements of Ark. Code Ann. § 9-9-209(b)(2) (Repl. 1998) . Appellant attempted to correct the error by mailing to appellee a second consent that fully complied with the statutory requirements. After receiving the second consent for adoption, appellee filed an objection to the adoption and withdrew his former consent on December 20, 1999. The probate court determined that appellee’s consent to the adoption was not required but denied the adoption, finding that the adoption was not in the best interest of the children. From that order comes this appeal.
Although probate proceedings are reviewed de novo, we will not reverse a probate court’s decision regarding the best interest of a child unless it is clearly against the preponderance of the evidence or clearly erroneous. See Ark. Code Ann. § 9-9-209(b)(2) (Repl. 1998); Ark. R. Civ. P. 52; Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997); Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); Jones v. Ellison, 70 Ark. App. 162, 15 S.W.3d 710 (2000). When minor children are involved, a heavier burden is placed on the court to exercise all its powers of perception in viewing the witnesses and their testimony when determining the best interest of the children. In the Matter of the Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990). Furthermore, adoption statutes are strictly construed. Adoption of Lybrand, supra.
Appellee does not appeal the probate court’s finding that appellee’s consent was not required under Ark. Code Ann. § 9-9-207(a) (2) (Repl. 1998). Thus, we do not address the issue of appellee’s consent. However, it is not mandatory for a court to grant an adoption merely because an individual has forfeited his right to require his consent as a condition precedent to the adoption. Before granting an adoption, the probate court must find that the adoption is in the best interest of the child by clear and convincing evidence. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988).
Appellant’s sole contention for reversal is that the probate court should have granted the adoption, and the court’s failure to do so was not in the best interest of the children. In support of this contention, appellant directs the court’s attention to the testimony of Kathy Nauman, L.C.S.W., and the Adoptive Home Study report prepared by her. Nauman’s testimony and report recommended, without reservation, that appellant adopt the twins because appellant “is really the only ‘father’ they have known and they readily accept him in that role.”
Appellee testified that from the time he and Sarah Apel were separated in August 1997 until the final divorce in April of 1998, he did not see the twins. In fact, he admitted that his last visitation was half of a day on April 1, 1998, the date the final divorce was granted to Sarah. He did not see the children again until the day of the adoption hearing, some two years and five months later. Also, appellee admitted his failure to make any arrangements to see the children from the date of the divorce until June of 1999. He does, however, assert that he did send the twins birthday cards and a photograph of himself exhibiting a deer that he had killed. Likewise, appellee testified that he called the children about once per month but was not always able to talk to the children or their mother.
Appellee acknowledged his failure to pay his share of the court-ordered health insurance premiums and medical bills for the children after the bills were presented to him by the children’s mother. Instead, he asserts that he paid some money for doctors’ bills and insurance premiums before he signed the consent to adoption but did not pay for either thereafter. He admits that his main concern, when he signed the consent, was that he would no longer be financially obligated to support the children and he was “more than happy” for appellant to take over the financial responsibility of his two children. He confirmed that he stopped paying child support after signing the first consent to adoption and stated that he had, in his opinion, given up his rights to the children and was no longer their father.
In December 1999, when appellee received the second consent explaining that an inadvertent error required execution of a second consent, he withdrew his first consent and objected to the adoption. He acknowledged that had there not been an error in the first consent form, he would not have made an effort to withdraw his consent.
Testimony of Sarah Apel, the mother of the children, regarding appellee’s contact with the children mirrored that given by appellee. She stated that appellee had not visited the children from the time they were separated until the day the divorce was granted. She further testified that since the time she and appellant married, the twins have lived with her and appellant in their home and that he has provided the “main financial” support and the stability of a home for them. She stated that appellee had been given her phone number and addresses; however, when appellee would call, he would rarely ask to speak to the children. Sarah Apel maintained that appellee never asked the children to come and visit him in Indiana where he lived and that he had not visited the children in Arkansas even though she told him that he would be welcome in her home anytime he wished to visit the children. She specified that appellee had made only one attempt to see his children since December of 1999, the date he filed his contest to the adoption. However, he never showed up for the weekend visit he planned in January 2000.
Sarah Apel confirmed that although appellee had fallen behind on his child support payments at times, he would sometimes send double payments to get caught up with the amount past due. She testified that she did not offer to financially assist appellee with visitation because she felt no obligation to do so.
Appellant testified that from the time he and Sarah Apel were married, the twins lived with them. He noted that he and Sarah have a son together and stated that the twins are like his “own children” and they call him “Daddy.” Further, appellant asserted that he understood and accepted the legal responsibilities involved in adopting the twins.
The law will favor a natural parent over all others if all things are equal. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988). Further, this court has recognized that “temporal and material betterments are not conclusive” to determine the best interest of the child and “consideration must also be given to the fostering of moral, cultural, and spiritual values as well as family. relationships.” Id. at 98. “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.” Id. (citing Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984)). As Manuel notes, however, this rule is premised on the presumption that the natural parent is providing care and support for the children to the best of his abilities, regardless of how meager those abilities may be.
Parental rights are not proprietary ones and are subject to the performance of duties and obligations of a parent to care for and support a child, and the law only protects the rights of parents so long as the parent discharges these duties. Manuel, 24 Ark. App. at 98-99. The preference for natural parents should not be continued beyond the point where these duties and obligations have been ignored or shifted to others. Id. at 99 (citing Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980)). See also Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).
It has been stated that this preference for the 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.
Manuel, 24 Ark. App. at 99, 749 S.W.2d at 343 (citing Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983).
As father of these two children, now five years old, appellee has done little more than reluctantly send court-ordered child-support payments and insurance premiums since the time of his divorce from their mother. Although the testimony reflects that he has phoned the mother since the time of the divorce, the evidence indisputably shows that from April 1, 1998, until September 14, 2000, appellee had not seen his children and had made little or no effort to do so. Other than reluctantly paying the court-ordered child support, appellee has ignored his parental duties and has shifted the duties of being a parent onto appellant. It has been appellant who has fulfilled the role of father to the twins by providing them not only financial support but also a family life and a home.
Appellee essentially abandoned the children for more than three years, content to have appellant assume his parental duties. Therefore, we cannot say that it was in the best interest of the twins for the adoption to be denied. Thus, we reverse.
Reversed and remanded for entry of an order granting the adoption.
Vaught and Baker, JJ., agree.
Arkansas Code Annotated section 9-9-209(b)(2) provides, in pertinent part, that “the consent shall state that the person has the right of withdrawal of consent. ...”
Arkansas Code Annotated section 9-9-214(c) provides:
If at the conclusion of the hearing the court determines that the required consents have been obtained or excused and the required period for the withdrawal of consent and withdrawal of relinquishment have passed and that the adoption is in the best interest of the individual to be adopted, it may (1) issue a final decree of adoption. . . .
The language of section 9-9-207(a)(2) which the probate judge relied on, provides: (a) Consent to adoption is not required of:
(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree. | [
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Andree Layton Roaf, Judge.
Pedro Barriga and his wife, Elena Barriga, appeal from the trial court’s granting of summary judgment in favor of the appellee, the Arkansas and Missouri Railroad Company (the “Railroad”). Appellants argue that the trial court erred in granting summary judgment because a question of material fact existed as to whether the Railroad’s violation of an internal regulation was the proximate cause of his injury. We affirm.
On November 30, 2000, Pedro Barriga approached a railroad crossing while he was traveling eastbound on Highway 12 in Rogers, Arkansas. The railroad crossing consisted of one main track running north and south and two inferior tracks, one on each side of and parallel to the main track. The crossing was marked by cross bucks and flashing signals with bells that faced both east and westbound traffic. The tracks are owned by the Railroad.
As Barriga approached the crossing, several boxcars owned by the Railroad were parked approximately sixty to seventy-five feet north of the intersection on the side track nearest Barriga, and the warning signals were flashing and the bells were ringing. Barriga continued through the crossing and was struck by a train moving south down the center track. Barriga sustained injuries as a result of the incident.
Barriga filed suit against the Railroad for negligence; the suit included a claim filed by his wife for loss of consortium. Barriga’s complaint made several allegations of negligence, including 1) failure to provide a watchman or guard at the crossing, 2) failure to timely and properly sound the train horn or signal, 3) failure to keep a proper lookout, 4) violation of the Railroad’s internal rules regulating the parking of boxcars near crossings, and 5) excessive speed under the conditions. The Railroad answered by denying the material allegations of the complaint. It also filed a motion for summary judgment pursuant to Ark. R. Civ. P. 56 and a brief in support of the motion, alleging that there were no genuine issues of material fact to be tried. After conducting a hearing, the trial court granted the Railroad’s motion for summary judgment and dismissed the complaint with prejudice; Barriga and his wife appeal from the dismissal.
Barriga argues that the trial court erred in granting summary judgment in favor of the Railroad because a genuine issue of material fact remained as to whether the Railroad’s violation of its internal regulation was a proximate cause of his injuries.
On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Pollard v. Union Pacific R. Co., 75 Ark. App. 75, 54 S.W.3d 559 (2001). This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to a judgment as a matter of law. Id. To establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant breached a standard of care, that damages were sustained, and that the defendant’s actions were a proximate cause of those damages. Id. “Proximate cause” is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Id. Proximate causation is usually an issue for the jury to decide in a negligence action, and when there is evidence to establish a causal connection between negligence of the defendant and damage to the plaintiff, it is proper for the case to go to the jury; in other words, proximate causation becomes a question of law only if reasonable minds could not differ. Id.
Barriga contends that the boxcars on the adjacent track were parked in violation of the Railroad’s internal regulation 6.32.4, which provides:
Leave cars, engines, or equipment clear of road crossings and crossing signal circuits.
If possible, avoid leaving cars, engines, or equipment standing closer than 250 feet from the road crossing when there is an adjacent track.
Barriga asserts that a question of fact exists as to whether the violation of this regulation was a proximate cause of his injuries. He contends that if the Railroad had not parked its cars close to the intersection, he could have seen the train approaching the intersection and would not have been led to believe that the parked boxcars were setting off the flashing lights.
In support of its motion for summary judgment, the Railroad established the following facts by affidavit and the deposition testimony of its agents and Barriga. The train involved in the collision had parked seven cars on the side track, or “switch back,” and was backing south toward the crossing. The train was equipped with an “event recorder,” which established that the train was traveling at twenty-three miles per hour, its lights and bells were on, and the horn was being sounded for approximately thirty-five seconds before the accident. The flashing signals at the crossing were also operating.
In his deposition, Barriga testified that he noticed the parked boxcars blocking the view before he approached the crossing. He further stated that he did not stop when he came to the crossing, that as he got closer to the crossing he looked only south, and that he did not look to the north (where the boxcars were and where the train was coming from) until after he was on the track. Bar-riga further stated that he did not see the flashing lights and, although the window of his vehicle was down, did not hear the bells or the warning horn of the train.
The Railroad argued in its summary-judgment motion that it was not negligent in this instance, that the presence of the boxcars on the side track was not the proximate cause of the collision, and that Barriga had the duty, when warned by the flashing signal lights at a crossing, to stop within fifty feet but not less than fifteen feet from the track and to not proceed until he could do so safely. Ark. Code Ann. § 27-51-707(a) (Repl. 1994).
We agree that the trial court’s grant of summary judgment was proper under the facts of this case given, in particular, the statements of Barriga. He did not contend in his deposition that he was misled by the parked boxcars to ignore the flashing signal, but instead he stated that he did not see the signal and did not hear the bells or the train’s horn, both of which were sounding. Although he did say that he observed the parked boxcars blocking the view to the north before he approached the crossing, he stated that as he approached, he did not stop or attempt to look north until he was on the tracks. Under these circumstances, we cannot say that reasonable minds could differ that the proximate cause of this collision was Barriga’s failure to stop despite all of the warning signals and despite having a statutory duty to do so.
Affirmed.
Stroud, C.J., and Pittman, Hart, and Robbins, JJ., agree.
Griffen, J., dissents. | [
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Larry D. Vaught, Judge.
This appeal involves competing security interests in the proceeds of a bankrupt farmer’s 1998 crop. Appellant, Hans Nef, originally filed this action in Drew County Chancery Court against Lynn Kinder d/b/a Kinder Farm Partnership, Ag Services of America, Inc., and Ag Acceptance Corporation (Ag Services). On the motion of Ag Services, the Drew County Chancery Court dismissed the case against Kinder because of the automatic stay of the bankruptcy court and transferred the case against Ag Services to the Pulaski County Chancery Court, now Circuit Court. In a judgment entered September 18, 2001, the Pulaski County court granted a net award of $17,495 to Ag Services. From that judgment, comes this appeal.
Lynn Kinder, d/b/a Kinder Farm Partnership, rented farm land in Drew County from appellant, Hans Nef, for several years. The lease covering 1998 required Kinder to pay rent in the amount of $15,335 on February 1 and October 1 and $15,330 on December 31. Kinder gave Nef a security interest in his United States agricultural program payments. Ag Services provided crop input financing to Kinder for several years prior to and including 1998. On November 5, 1997, Kinder gave Ag Services a promissory note and an agricultural security agreement. This security agreement gave Ag Services a security interest in “all of Debtor’s farm products, accounts, goods, inventory, chattel paper, general intangibles, documents and instruments, including, but not limited to: all annual and perennial crops of whatever kind, whether heretofore grown, now growing or hereafter grown . . . and all entidements and payments . . . arising under governmental agricultural subsidy. ...” This security interest was not limited to one particular crop year. Ag Services filed financing statements according to the requirements of the Arkansas Uniform Commercial Code, the most recent of which was filed on November 24, 1997. Kinder also executed a U.S.D.A. CCC-36 assignment of payment form in favor of Ag Services on November 13, .1997. Ag Services filed this form with the appropriate county Farm Services. Administration office on June 1, 1998.
On January 14, 1998, Nef filed a financing statement for Kinder’s 1998 crop that covered:
All crops of rice, wheat, soybeans & milo grown on Secured Party’s lands in Drew County, AR, . . . during the 1998 crop year, together with all products & proceeds thereof; accounts, general intangibles arising from or relating to the sale of farm products, farm products thereof; all crop insurance thereon and proceeds thereof; all Federal Agricultural Program payments ther[e]fore, in cash or in kind.
On March 6, 1998, Kinder also executed a CCC-36 form in favor of Nef, which was filed with the Farm Services Administration office on March 17, 1998.
On August 31, 1998, Nef received an assignment from Kinder of a U.S.D.A. production flexibility contract (PFC) pay ment of $32,830. He applied it to Kinder’s 1997 rent and to an earlier debt of Kinder. Kinder did not pay the rent due in October and December 1998. At the time of trial, Kinder owed Nef $36,381.
In January 1999, Riceland Foods gave Kinder a $26,401 check dated December 29, 1998, for the purchase of certain products of the 1998 crop. This check was payable to Kinder, Nef, and Ag Services. Kinder promptly endorsed this check and gave it to Ag Services. Nef refused to endorse it. On February 23, 1999, Nef filed a complaint against Kinder and Ag Services similar to the one filed in this action. He did not, however, complete service of process on the defendants. Kinder filed a petition in bankruptcy on March 17, 1999.
Nef filed this action against Kinder and Ag Services on June 28, 1999, asserting a paramount interest in the proceeds of the Riceland Foods check by virtue of his statutory landlord’s lien and promissory note. In response, Ag Services asserted the statute of limitations and filed a counterclaim, contending that it had a prior security interest in the proceeds of Kinder’s 1998 crop and that Nef had wrongfully received the August 1998 PFC payment of $32,830. On July 13, 1999, the bankruptcy court granted relief from the bankruptcy stay as to the funds in dispute in this action. In August 2000, Ag Services filed a motion for .summary judgment, arguing that, as a matter of law, Nef had converted the $32,830 PFC payment. The judge denied this motion.
At trial, the relevant facts were not in dispute. The judge awarded Nef $15,335 for the rent due on December 31, 1998. After consideration of that award, he concluded that Ag Services was entitled to the proceeds of the Riceland Foods check and to the August 1998 PFC payment “because both of those items would have been available to apply to Ag Services’ debt ($30,801.94 as of June 19, 2001) and a reasonable attorney’s fee ($13,100) incurred in collecting the debt.” The judge found that Nef had no interest in the Riceland Foods check and awarded Ag Services judgment for $32,830 “because Hans Nef converted that Government Payment, as to which Ag Services had a prior security interest.” The judge offset the $15,335 award in favor of Nef against the $32,830 award to Ag Services, and gave a judgment to Ag Services for $17,495.
Arguments on Appeal
Nef makes the following arguments on appeal: (1) the trial judge erred in awarding attorney’s fees to Ag Services; (2) the trial judge erred in failing to award Nef the amount of rent due on October 1, 1998; (3) the trial judge erred in applying Article 9 of Arkansas’s Uniform Commercial Code to the parties’ interests in the August 1998 PFC check; (4) the trial judge erred in giving priority to Ag Services’s security interest in the PFC check because Ag Services did not act in good faith. We reduce the award of attorney’s fees and affirm the trial judge’s decision in all other respects.
Attorney’s Fees
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 (Repl. 1999) provides for a reasonable attorney’s fee in certain civil actions, including actions to recover on promissory notes and 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).
“Where the plaintiff has a security interest in the converted property to secure not only the principal debt, but also attorney fees incurred in collecting the debt, attorney fees are recoverable.” 90 C.J.S. Trover and Conversion § 134 (2002). Accord 18 AM. JUR.2d Conversion § 120 (1985). In McQuillan v. Merce des-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998), the Arkansas Supreme Court drew a distinction between legal fees incurred in attempting to recover collateral 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 collateral itself.
In this case, the trial judge agreed with Ag Services that its security interest in the Riceland Foods check ($26,401) was superior to Nefs interest. It was, therefore, permissible to award attorney’s fees to Ag Services under section 16-22-308 for that award. Also, Kinder’s November 5, 1997, promissory note gave Ag Services the right to collect a reasonable attorney’s fee in connection with the enforcement of the note. This agreement was enforceable according to its terms and was independent of section 16-22-308. See Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001); Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994). However, the trial judge also awarded Ag Services $32,830 for Nefs conversion of the PFC payment. Based on the supreme court’s decision in McQuillan, the trial judge erred in awarding attorney’s fees in regard to the conversion claim. Accordingly, we reduce appellees’ attorney’s fee award from $13,100 to $8,000.
Statute of Limitations
In awarding Nef $15,335 for the December 31, 1998, rent, the trial judge apparently applied the six-month limitations period imposed on a landlord’s agricultural lien set forth in Ark. Code Ann. § 18-41-101 (1987). That statute provides: “Every landlord shall have a lien upon the crop grown upon the demised premises in any year for rent that shall accrue for the year. The lien shall continue for six (6) months after the rent shall become due and payable, and no longer.” Appellant argues that, because the trial judge should have held that the limitations period was tolled between the time Kinder filed his bankruptcy petition and thirty days after the bankruptcy court granted relief from the stay, his claim for the October 1998 rent was filed within the limitations period. Appellees respond that, because the statute does not pro vide for any exceptions, this court should apply the general rule that lien statutes must be construed strictly. See Herringer v. Mercantile Bank of Jonesboro, 315 Ark. 218, 866 S.W.2d 390 (1993).
The chronology of events is as follows:
October 1, 1998 — rent was due;
December 31, 1998 — additional rent was due;
February 23, 1999 — appellant filed a complaint that was not served on the defendants;
March 17, 1999 — Kinder filed the petition in bankruptcy;
June 28, 1999 — this action was filed;
July 13, 1999 — relief from the bankruptcy stay was entered.
Under Ark. R. Civ. P. 4(i), appellant had 120 days within which to complete service of the February 1999 summons and complaint, or suffer a dismissal without prejudice. See Bakker v. Ralston, 326 Ark. 575, 932 S.W.2d 325 (1996). According to appellant, the filing of Bander’s bankruptcy petition tolled the running of the 120 days. He asserts that his claim for the October 1998 rent was viable when he filed the February 23, 1999, action and that he did not have to serve the summons and complaint until thirty days after the stay was lifted. The filing of a bankruptcy petition operates as a stay, applicable to all entities, of any act to obtain possession of, or to enforce a lien against, property of the estate. See 11 U.S.C. § 362(a)(4) (2002). This automatic stay remains in effect until the property is no longer included within the estate. See 11 U.S.C. § 362(c)(1) (2002); see also Stogsdill v. Stogsdill, 76 Ark. App. 474, 68 S.W.3d 324 (2002). When a creditor is stayed from commencing or continuing an action against a debtor in bankruptcy, 11 U.S.C. § 108(c) (2002) gives the creditor an additional thirty days to enforce its claim once it receives notice of the termination of the stay. Therefore, appellant argues, the statute of limitations did not run on his claim for the October 1998 rent.
Although the filing of a voluntary petition in bankruptcy effects an automatic stay as to the commencement or con tinuance of any claim against the debtor or his estate, the stay is not for the benefit of other parties. See Aluminum Co. of Am. v. Higgins, 5 Ark. App. 296, 635 S.W.2d 290 (1982); Van Balen v. Peoples Bank & Trust Co., 3 Ark. App. 243, 626 S.W.2d 205 (1982). Therefore, unless the Riceland Foods check was part of the estate in bankruptcy, this action was not affected by the stay. Appellant’s argument is premised upon the assumption that the Riceland Foods check, upon which he sought to impose his landlord’s Hen, was a part of the bankruptcy estate. However, he has cited no legal authority to support his claim that it was part of the bankruptcy estate. 11 U.S.C. § 541(a)(1) (2002) provides that the bankruptcy estate consists of all legal or equitable interests of the debtor in property at the time that the debtor initiated the bankruptcy action. Here, that date was March 17, 1999. Kinder endorsed the Riceland Foods check and delivered it to Ag Services in January 1999; it is, therefore, not apparent that it was part of the bankruptcy estate. Although the trustee could have attempted to bring it back into the estate as a preferential transfer under 11 U.S.C. § 547 (2002), there is nothing in the record to suggest that this was done. Therefore, appellant has not demonstrated that the bankruptcy stay tolled the running of the statute of limitations for the landlord’s crop lien.
Additionally, Nef argues in his reply brief that the trial judge’s ruling on this issue ignores the intent of Ark. Code Ann. § 16-56-126 (1987), which provides that, if any action is commenced within the time prescribed by a statute and the plaintiff suffers a nonsuit, he may commence a new action within one year. That saving statute, however, does not apply if the plaintiff failed to complete timely service on the defendant. See Wright v. Sharma, 330 Ark 704, 956 S.W.2d 191 (1997); Thomson v. Zufari, 325 Ark. 208, 924 S.W.2d 796 (1996); Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994); Forrest City Machine Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). Because Nef did not complete service on Ag Services in the February 1999 action, that statute does not apply here. We reject Nefs second point on appeal.
The Application of the Un form Commercial Code
Nef argues in his third point that the trial judge erred in applying the provisions of Article 9 of the UCC to the PFC payment of $32,830 because federal law governs the assignment and taking of security interests in such payments. Nef asserts that Ark. Code Ann. § 4-9-104(a) (Supp. 1999) supports his position that the UCC does not govern the priority of security interests in the PFC payments. That statute provides: “This chapter does not apply: (a) To a security interest subject to any statute of the United States to the extent that such statute governs the rights of parties to and third parties affected by transactions in particular types of property. . . .” Also, Ark. Code Ann. § 4-9~302(3)(a) (Supp. 1999) provides:
The filing of a financing statement otherwise required by this chapter is not necessary or effective to perfect a security interest in property subject to ... a statute or treaty of the United States which provides for a national or international registration or a national or international certificate of title which specifies a place of filing different from that specified in this chapter for filing of the security interest ....
The doctrine of federal preemption is based upon the United States Constitution’s supremacy clause. State laws that interfere with, or are contrary to, the laws of Congress are invalid. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). Congressional intent to supplant state authority in a particular field may be express or implied. Id. Here, there is no express preemption of state law. Implied preemption can occur in the following circumstances: (1) when the scope of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the state to act; (2) when the state and federal law actually conflict; (3) when compliance with state and federal law is physically impossible; (4) when the state law stands as an obstacle to the accomplishment of the full objectives of Congress. Id. The historic police powers of the states are not to be superseded by a federal act unless that is the clear and manifest purpose of Congress. Id. The burden is on the moving party to prove that Congress intended to preempt state law. Id.
Appellant points out that the assignment of PFC payments is controlled by 16 U.S.C. § 590h(g) (2002). That statute states:
A payment that may be made to a producer under this section may be assigned only in accordance with regulations issued by the Secretary. This subsection shall not authorize any suit against or impose any liability on the Secretary, any disbursing agent, or any agency of the United States if payment is made to the producer without regard to the existence of any such assignment.
The Department of Agriculture’s regulations dealing with the assignments of cash payments by the Agricultural Stabilization and Conservation Service and the Commodity Credit Corporation are set forth at 7 C.F.R. § 1404.1 through 1404.9 (2002). Flowever, these regulations narrowly address the manner in which such assignments may be made; they do not address the priority of competing security interests in the payments. Except for the federal tax lien statutes, nearly all of the statutes enacted by the United States Congress “are skeletal in nature, and typically leave open such matters as requirements for creation of the interest, priorities, and default rights.” James J. White & Robert S. Summers, Uniform Commercial Code § 30-12, at 77 (4th ed. 1995). The authors of that treatise write that most courts choose to “flesh out a federal statutory skeleton with Article 9 law ... on the theory that Congress had no power to or did not intend to pre-empt the entire field.” Id. at 77-78.
Nef has cited no case holding that Congress intended to implicitly preempt Article 9 of the UCC in enacting this legislation. We believe that In re Endicott, 239 B.R. 529 (Bankr. E.D. Ark. 1999), supports the trial judge’s application of Arkansas’s Uniform Commercial Code to the filing and perfection of the security interests involved in this case. See also In re Propst, 81 B.R. 406 (Bankr. W.D. Va. 1988). In Endicott, the bankruptcy court held that the federal regulation permitting a farmer to execute an assignment of his interest in the proceeds of the Depart ment of Agriculture’s Crop Loss Disaster Assistance Program, and purporting to limit the federal government’s liability if such payments were improperly made, did not preempt Arkansas’s version of Article 9. The court recognized that the regulation was to protect the government from liability if such payments were made to an unauthorized person and not to create an alternate federal filing scheme for security interests in such payments. Accordingly, we also reject this argument on appeal.
In his fourth point on appeal, Nef argues that, because Ag Services did not act in good faith, its security interest in the PFC payment should not receive priority. Nef contends that, because Ag Services had notice of Nefs lease with Kinder, wherein Kinder agreed not to assign or pledge his PFC payments without Nefs consent, and because Ag Services knew that Kinder had given a security interest in those payments to Nef, Ag Services acted in bad faith.
Nefs argument is unpersuasive. Without a doubt, Ark. Code Ann. § 4-9-312(5) is a “pure race” statute:
That is, the one who wins the “race” to the court house to file is superior without regard to the state of his knowledge. The section nowhere requires that the victor be without knowledge of its competitor’s claim. Example 3 in Comment 5 to 9-312 illustrates the irrelevance of knowledge under the subsection. One justification for that rule is the certainty it affords. Under 9-312(5) no disappointed secured creditor can trump up facts from which a compassionate court might find knowledge on the part of the competitor. If the competitor filed first or perfected first, as the case may be, that’s the end of it; this party wins even if it knew of the other party’s prior but unperfected claim.
There might be circumstances in which the first party to file should be subordinated because of bad faith. For example, the second might be in bad faith because of a fiduciary relation with the first and thus a duty to inform the first. We believe the courts should be slow to recognize such exceptions.
James J. White & Robert S. Summers, Uniform Commercial Code § 33-4, at 317-18 (4th ed. 1995).
The courts of Arkansas have not adopted Nefs argument. For example, in Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 870 S.W.2d 729 (1994), the supreme court held that the buyer of a crop had no statutory duty to preserve a creditor’s security interest because it had not been properly perfected, even though the buyer had actual knowledge that the creditor was claiming a security interest.
Arkansas Code Annotated section 4-9-401(2) (Repl. 1991) provides:
A filing which is made in good faith in an improper place or not in all of the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this chapter and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement.
However, that statute affords no relief to Nef. In Affiliated Food Stores, Inc. v. Farmers & Merchants Bank of Des Arc, 300 Ark. 450, 780 S.W.2d 20 (1989), the supreme court made it clear that, in this context, “knowledge of the contents” means actual knowledge rather than constructive knowledge. Although Ag Services received a copy of Nefs and Kinder’s lease, Nef did not prove that Ag Services had actual knowledge of the contents of Nef s financing statement. Therefore, we also affirm on this point.
Affirmed as modified.
Jennings and Crabtree, JJ., agree.
We note that these separate figures, when considered together, do not precisely correspond to the net amount of the award to Ag Services. Because the parties have not questioned the accuracy of the judge’s calculations, we need not address the matter.
The Arkansas General Assembly significantly amended Arkansas’s version of the UCC in 2001. Because those amendments are not relevant to this case, we have cited the code sections as they appeared before they were amended. | [
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James R. Cooper, Judge.
The appellant, William Caldwell, was a non-probationary teacher employed by the appellee school district. In April 1986, the appellant was notified that the superintendent was recommending that his contract not be renewed. The appellant requested a hearing before the school board which was held on May 26, 1986. At the close of the hearing, the board voted to uphold the superintendent’s recommendation of non-renewal. The appellant appealed the decision to the circuit court. The circuit court found that the appellee had complied with the Teacher Fair Dismissal Act and afforded the appellant full due process, and that the board did not act arbitrarily, capriciously or discriminatorily. The circuit court dismissed the appeal. The appellant now argues four points before this court: that the school board’s decision violated his first amendment right to freedom of speech; that the school board’s decision was arbitrary and capricious; that the school board violated section 80-1266.6 of the Arkansas Teacher Fair Dismissal Act; and that the school board erred in failing to make particularized findings on the evidence presented against him. We affirm.
The record reveals that on December 10, 1985, the principal of West Jr. High School, Idell Jenkins, presented a new grading policy to the teachers at a faculty meeting. The appellant objected to this policy, and began discussing it with Mr. Jenkins. Mr. Jenkins characterized the appellant’s attitude as “belligerent.” The assistant principal, Paul Stubblefield, and another teacher, Zeak Lacy, also testified that the appellant was belligerent and quite upset. At one point the appellant stood up and pointed his finger at the principal. When the principal attempted to move on to other matters, the appellant attempted to return the discussion to the grading policy. The appellant admitted that he had objected loudly to the new policy.
The next day, Mr. Jenkins left a memo in the appellant’s box that indicated he did not approve of the appellant’s conduct in the faculty meeting. The appellant then requested a conference with Mr. Jenkins and the assistant superintendent for instruction, D.B. Meador. At that conference the appellant again became upset and accused Meador and Jenkins of conspiring to have him fired and he called Jenkins a liar four times. On December 17, 1985, Dr. Frank Ladd, the superintendent, wrote a letter to the appellant reprimanding him for his behavior in both the conference and the faculty meeting and warned the appellant that any further such conduct would result in the appellant’s suspension and dismissal. Dr. Ladd also warned the appellant that his conduct would be considered when the decision was made whether to recommend renewal or non-renewal of his contract.
On February 28, 1986, Jenkins attempted to hold a conference with the appellant concerning some complaints he said he received about the appellant’s using class time to discuss the lack of black cheerleaders at the school. According to Jenkins, the appellant was not responsive; he asked several times if Jenkins was through yet and eventually walked out of the conference. On April 18, 1986, Ladd sent a certified letter to the appellant informing him that he was recommending to the board that the appellant’s contract not be renewed. The letter listed the four following reasons for non-renewal:
1. Your conduct at the faculty meeting of December 10, 1985, where the teachers of your school were instructed relative to grading practices, and at which meeting you became disrespectful of your principal over the instructions that were being given.
2. The conference of December 11, 1985, between yourself and your principal wherein you became belligerent with the principal, raised your voice and called him a liar on more than one occasion.
3. The conference of February 28, 1986, between yourself and your principal regarding complaints from your students relative to your comments made during classroom hours. At this conference, again you became belligerent and accused your principal of attempting to have you fired.
4. The continuing problem with your principal and attitude toward him for the past several years as reflected by report of such conferences, copies of which have been furnished to you.
As noted earlier, a hearing was held before the board, which voted not to renew the appellant’s contract, adopting the superintendent’s reasons as the basis for its action. On appeal to the circuit court, no additional evidence was taken, but the case was submitted on the written record of the hearing before the board, a copy of the Teacher Fair Dismissal Act together with the minutes of the school board meeting whereby the Act was adopted as the policy of the board, and the appellant’s answers to interrogatories.
The appellant first argues that the board violated his right to freedom of speech. It is the appellant’s contention that the statements he made at the December faculty meeting and the comments he made in class concerning the lack of black cheerleaders was constitutionally protected and the board’s action in dismissing him for making the statements violated his right to make the statements. However, this issue was not presented to either the board or the circuit court. We cannot find any mention of this argument in either the record or the abstract. We have consistently held that we will not consider issues raised for the first time on appeal and that this rule applies equally to constitutional issues which are not raised in the court below. Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983). Therefore, we do not reach the merits of the appellant’s first point.
The appellant next argues that the board’s decision was arbitrary and capricious. We disagree. Any certified teacher who has been employed continuously by a school district for three years or more may be terminated or the board may refuse to renew the contract of such teacher for any cause which is not arbitrary, capricious, or discriminatory, or for violating the reasonable rules and regulations promulgated by the school board. Ark. Stat. Ann. § 80-1266.9(b) (Supp. 1985). The determination not to renew a teacher’s contract is a matter within the discretion of the school board, and the reviewing court cannot substitute its opinion for that of the board in the absence of an abuse of that discretion. Leola School District v. McMahan, 289 Ark. 496, 712 S.W.2d 903 (1986). In our judicial review of the trial court’s decision, we affirm unless the court’s findings were clearly erroneous. Moffit v. Batesville School District, 278 Ark. 77, 643 S.W.2d 557 (1982). It is not our function to substitute our judgment for the circuit court’s or the school board’s. Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985).
The question before the trial court was whether the school board refused to renew the appellant’s contract for reasons permitted by the Teacher Fair Dismissal Act. Leola, supra. A school board’s action in this regard is arbitrary and capricious only if the board’s decision is not supportable on any rational basis. Leola, supra; Lee v. Big Flat Public Schools, 280 Ark. 377, 658 S.W.2d 389 (1983).
Jenkins and Meador both testified that they felt the conduct exhibited by the appellant was disrespectful and insubordinate. Although they agreed that the appellant eventually complied with directives, they also indicated that every conference they had with him ended up in a verbal fight. Ladd testified that the decision not to renew was a culmination of several years of this type of conduct. The appellant testified that he had a personality conflict with Jenkins; that Jenkins was jealous of him; that Stubblefield was jealous of him because he was popular with the students; that Meador was insecure; and that Ladd was confused. In King v. Elkins, 22 Ark. App. 52, 733 S.W.2d 417 (1987), we refused to adopt a definition of insubordination that required a showing of willful disobedience. In the case at bar, the appellant eventually did comply with the directives of his supervisors, but only after verbal outbursts. It is not irrational for a principal to expect his teachers to not only comply with his directives, but to also act in a respectful, courteous and professional manner. This is not to say that a teacher may not disagree with school policy; however, a teacher should not expect to be able to shout at his supervisors, call them liars, accuse them of conspiring against him, and walk out on conferences without action being justified by the board.
The appellant next argues that the board dismissed him in violation of Ark. Stat. Ann. § 80-1266.6. That statute provides:
Whenever a superintendent or other school administrator charged with the supervision of a teacher believes or has reason to believe that a teacher is having difficulties or problems meeting the expectations of the district or its administration and the administrator believes or has reason to believe the problems could lead to termination or nonrenewal of contract, the administrator shall bring the problems and difficulties to the attention of the teacher involved in writing and shall document the efforts which have been undertaken to assist the teacher to correct whatever appears to be the cause for potential termination or nonrenewal.
It is appellant’s contention that the district failed to give him notice of his problems and that he was dismissed before he had an opportunity to remedy them. We disagree.
The statute relied upon by the appellant is part of the Teacher Fair Dismissal Act. It is sufficient if the board has acted in substantial compliance with the Act. Lee, supra. Superintendent Ladd addressed a letter to the appellant on December 17, 1985, which specifically stated that the appellant’s behavior was unprofessional and insubordinate and that such behavior would not be tolerated. The appellant was warned that any further such behavior would result in his immediate termination and suspension. In his brief the appellant alleges that this letter was not mailed to him, but placed in his personnel file and he did not see it until April. However, the record reveals that the appellant was testifying about four written documents at the time, and he alleged that he did not see two of them. It is impossible to tell from the record to which documents he is referring. Furthermore, the appellant did receive a copy of a memo from his principal the day after the faculty meeting which stated that the appellant’s conduct was “asinine and unprofessional” and that he would no longer “get into a running dialogue with any teacher in a faculty meeting concerning any issue while the rest of the faculty sit there and suffer.” Lastly, the appellant admitted that, beginning in 1980, he had received letters which resulted from conferences on his failure to follow directions. These actions prior to 1985 will not be considered as evidence of the appellant’s conduct because the letters were not made part of the record and there is no evidence that they were in compliance with § 80-1266.6. However, the appellant’s admissions are clearly persuasive of whether or not he had notice of his difficulties. We find that while it is unclear in the record as to whether the board strictly complied with § 80-1266.6, it is clear that there was substantial compliance and that the appellant had written notice of his objectionable conduct which occurred in the 1985-86 school year. Murray v. Altheimer-Sherrill Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988).
The appellant’s last argument also concerns the Teacher Fair Dismissal Act. At the close of the school board meeting, and after the board had voted not to renew the appellant’s contract, there was discussion about the fact that the statute requires a finding by the board as to correctness or incorrectness of the reasons for nonrenewal. The board then decided to vote on the issues right away. Using the four reasons Ladd had written in his letter to the appellant, the board voted that each of the four reasons was true. The Act requires that subsequent to any hearing granted a teacher the school board shall, by majority vote, make specific written conclusions with regard to the truth of each reason given the teacher in support of the recommended termination or nonrenewal. Ark. Stat. Ann. § 80-1266.9(c) (Supp. 1985). It is the appellant’s argument that the board’s adoption of the superintendent’s reasons for dismissal falls short of the statutory requirements. The appellant then cites cases which were decided under the Administrative Procedure Act and points out that this Court has not hesitated to reverse an agency decision when it is not explicitly backed by specific findings of fact.
The Teacher Fair Dismissal Act does not require that the board make specific findings of fact, only that it make specific written conclusions with regard to the truthfulness of the reasons for dismissal. As stated above, this Court will not reverse if the board has substantially complied with the Act. Lee, supra. The conclusions set out by Ladd were clear, specifically identified objectionable conduct exhibited by the appellant, and specifically pointed out the occasions when the conduct occurred. The board heard extensive testimony about the appellant’s conduct and about the occasions when it occurred. We cannot say that it was error for the board to vote to adopt the reasons given by the superintendent and to vote on whether or not they found them to be true.
Because the board substantially complied with the Teacher Fair Dismissal Act and because the board’s actions were not arbitrary, capricious, or discriminatory, we cannot say that the trial court’s dismissal was clearly erroneous, and we affirm.
Affirmed.
Corbin, C.J., and Jennings, J., agree.
Supplemental Opinion on Denial of Rehearing March 23, 1988
James R. Cooper, Judge.
The appellant has filed a petition for rehearing requesting that we consider the appellant’s argument that the school board’s decision not to renew the appellant’s teaching contract violated his first amendment right to free speech. We have agreed to consider the appellant’s argument.
A court deciding a claim by a public employee that his or her first amendment rights have been violated must engage in a three-step analysis. Bowman v. Pulaski County Special School District, 723 F.2d 640 (8th Cir. 1983). The court must determine (1) whether the employee has carried the burden of demonstrating that he engaged in protected activity, Pickering v. Board of Education, 391 U.S. 563 (1968); (2) whether the protected activity was a substantial or motivating factor in the actions taken against the employee, Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 287 (1977); and (3) whether the employer has defeated the employee’s claim by demonstrating that the same action would have been taken in the absence of the protected activity, Givhan v. Western Lines Consolidated School District, 439 U.S. 410 (1979).
In this case the appellant argues that his discussion with his class concerning the number of black cheerleaders was protected speech. Even if we were to agree with the appellant that this was constitutionally protected speech, the appellant has not demonstrated that he was dismissed because of the speech. Thus the appellant has not met the second requirement of the test stated in Bowman. The district made it clear that the appellant’s contract was not being renewed because of his insubordination and not because of his speaking to his class about the cheerleader situation or because he disagreed with a new grading policy. These facts have been adequately discussed in our previous opinion and need not be restated here. Because the appellant has not demonstrated that the claimed protected activity was the motivating factor behind the board’s actions, we deny the petition for rehearing. | [
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John E. Jennings, Judge.
In 1965, the City of Springdale entered into a lease agreement with Airways Flying Service, Inc., in which the city agreed to lease to Airways an airplane hangar area of the city airport. The hangars were already built and Airways agreed to keep them in good repair during the term of the lease. The lease was for a one year period but gave Airways an option to renew “for successive terms of one year.” In 1970, Airways assigned its interest under the lease to George Pults, the appellant.
In the early 1980’s, the city began planning for the expansion of the airport. Part of the plan was to use the portion of the property leased to Pults as a parking lot. In 1984, the city notified Pults that his lease would not be renewed, and Pults sued the city for breach of contract. The circuit court granted the city’s motion for summary judgment, ruling that the lease violated the rule against perpetuities, or, in the alternative, the lease should be construed to provide for only a single renewal.
Although the lease does not violate the rule against perpetu-ities, the trial court correctly construed the lease contract to provide for only a single renewal, and we therefore affirm.
It was proper for the circuit judge to decide this case by summary judgment because no material facts were in genuine dispute. A.R.C.P. Rule 56. Childs v. Berry, 268 Ark. 970, 597 S.W.2d 134 (Ark. App. 1980). The construction and legal effect of a written contract are to be determined by the court as a question of law, except where the meaning of the language depends on disputed extrinsic evidence. Arkansas Rock & Gravel Co. v. Chris-T-Emulsion Co., Inc., 259 Ark. 807, 536 S.W.2d 724 (1976).
The lease agreement between the original parties provided:
[T]he following described tract of land lying adjacent. . . to the Springdale Municipal Airport has been set aside for the erection of hangars for the housing and storage of planes by private individuals: [Legal description omitted.]
For and in consideration of the sum of $16.00 and other good and valuable considerations, the receipt of which is hereby acknowledged, the Lessor agrees to lease and deliver possession to the Lessee, and the Lessee agrees to accept a row of hangars on the South side of the above described lands consisting of eight (8) spaces and office space.
Easements are established and reserved as follows: In favor of the hangars erected on the above described tract, and common to each of said hangars for the purpose of the mutual, reciprocal and interdependent use of the same by the owners of said hangars for any part of the projected area for the purpose of entrance and exit taxi ways over and across the said area and to and from the said Municipal Airport.
The Lessee hereby agrees that he will not construct any new hangar in the space herein let, without the written consent of the Lessor.
Lessee further agrees that the hangars now erected on the space hereinabove referred to shall never be used for any purpose other than the storage of aircraft.
Lessee further agrees to keep the space hereinabove referred to and the hangars erected thereon in good repair and in neat and orderly appearance.
That Lessee hereby agrees that no change or alteration will be made to the hangars erected on the space hereinabove let without the consent of the Lessor, and that possession of said tract will be returned to the Lessor upon the termination of this lease unless sublet by the Lessee herein by the consent of the Lessor.
Both parties agree that his lease shall be effective from the 1st day of June, 1965 for a one year period ending on the 31st day of May, 1966, and should Lessee well and faithfully perform the covenants and conditions contained herein, said Lessee is hereby given an option to renew this lease for successive terms of one year each, commencing immediately upon the termination of the preceding period and upon the same terms and conditions as are herein contained by giving written notice to Lessor of his intent to exercise said option or options in writing by certified mail, addressed to Lessor. Notice of intent to exercise the option for the first successive year may be given any time during the primary term of this lease, and notice to exercise option for the second and successive year or years may be given any time during the extended term thereof.
It is further agreed by and between the parties hereto, that should the Federal Aviation Agency at some future date during the term of this Lease Agreement or any extension thereof, require the removal of said hangars from their present location, that the Lessee herein agrees to removal of said hangars at his sole cost and expense.
Witness our hands this the 1st day of June, 1965, binding ourselves, our heirs, successors and assigns.
The right to perpetual renewal of a lease is not forbidden by law, either upon the ground that it creates a perpetuity or a restraint on alienation, or upon any other ground, and such provisions, when properly entered into, will be enforced. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 357 A.2d 910 (1975), citing Nakdimen v. Atkinson Improvement Co., 149 Ark. 448, 233 S.W. 694 (1921); see also 61 Am. Jur. 2d Perpetuities and Restraints on Alienation § 52 (1981); Rutland Amusement Company, Inc. v. Seward, 127 Vt. 324, 248 A.2d 731 (1968). However, agreements for perpetual renewal of leasehold interests are not favored in the law. See Nakdimen, Lonergan, and Rutland Amusement Company, McLean v. United States, 316 F. Supp. 827 (E.D. Va. 1970). A provision in a lease will not be construed as conferring a right to a perpetual renewal unless the language is so plain as to admit of no doubt of the purpose to provide for perpetual renewal. Lonergan; McLean; see also 50 Am. Jur. 2d Landlord and Tenant § 1171 (1970). A perpetuity will not be regarded as created from an ordinary covenant to renew. McLean. There must be some peculiar and plain language before it will be assumed that the parties intended to create it. Winslow v. B & O R. Co., 188 U.S. 646 (1903).
The general rule is that where the lease provides in general terms for a renewal, the lessee is only entitled to a single renewal. Nakdimen, cited above. Leases which may have been intended to be renewable in perpetuity will nevertheless be construed as importing but one renewal if there is any uncertainty in that regard. McLean, supra, citing 50 Am. Jur. 2d Landlord and Tenant § 1171, at 56.
In construing any contract the court seeks to ascertain the intent of the parties. See Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968). In determining whether or not the parties intended to create a perpetual lease, courts have considered, among other factors, whether the lease contains:
1. words customarily used to create a perpetual lease, such as “forever,” “for all time,” or “in perpetuity.” Lonergan; McLean; Kilbourne v. Forester, 464 S.W.2d 770 (Mo. App. 1971).
2. an “escalation clause,” i.e., a clause providing for increased rentals through the years. Lonergan; Vokins v. McGaughey, 206 Ky. 42, 266 S.W. 907 (1924); Tipton v. North, 185 Okl. 365, 92 P.2d 364 (1939).
3. restrictions on use and subletting. McLean; Rutland Amusement Company, supra.
The lease in question provided for rental at a nominal sum and there was no provision for the possibility of increased rent in the future. There is no peculiar language indicating that a perpetual lease was intended. There are significant restrictions on use. The lease also contemplates that the Federal Aviation Agency (FAA) might require removal of the hangars. These factors indicate that the parties did not intend to create a perpetual lease. The specific language of the renewal clause in this lease does not require the opposite conclusion.
The employment in leases of such terms as “successively,” “every succeeding term,” or other language of similar import, does not necessarily imply a covenant for perpetual renewals, especially when such terms, when considered with the context of the lease and the acts of, and circumstances surrounding, the parties, indicate a contrary intention.
50 Am. Jur. 2d § 1171, at 57.
In Lonergan, the lease provided that it “shall automatically be extended for a period of one year and thence from year to year.” In McLean, the lease provided that it might, “at the option of the lessee, be renewed from year to year.” In Geyer v. Lietzan, 230 Ind. 404, 103 N.E.2d 199 (1952), the lease was for a two year period but gave the lessee the option “of renewing this lease with and under all the terms and conditions thereof, successively” upon giving written notice 30 days “before the expiration of any two year period of this lease.” In each case the court construed the lease to give the lessee the right to renew only once.
We conclude that the trial court’s interpretation of the lease agreement was correct.
Affirmed.
Cooper and Coulson, JJ., agree. | [
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John E. Jennings, Judge.
After a jury trial, James Sitz was convicted of driving while intoxicated. The State’s only witness was James Walker, the Tyronza Chief of Police.
On cross-examination, appellant’s counsel sought to ask Walker about the circumstances surrounding his leaving his position as the Chief of Police for the City of Harrisburg. The trial court sustained the State’s objection to the question, and defense counsel sought to make his record. The trial court ruled that the record could be made at the first recess. Apparently the case was submitted to the jury before the court went into recess. At that time defense counsel made his record, explaining that he was seeking to show that Walker had embezzled funds from the City of Harrisburg. The trial court declined to change his mind.
Rule 608(b) of the Arkansas Rules of Evidence provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness. . . .
Appellant first argues that the court, in effect, denied him the opportunity to make a proffer. We do not agree. We recently held that it is generally error for the trial court to refuse counsel the opportunity to proffer evidence which has been excluded by a ruling of the court. Jones v. Jones, 22 Ark. App. 267, 739 S.W.2d 171 (1987). The primary reason that a proffer is required is so that the appellate court will have a record upon which to determine the admissibility of the evidence. But while the trial court has very limited discretion to refuse to permit counsel to proffer evidence, it has great discretion in controlling the form of the proffer and the time at which it is to be made. Rule 103 (b) of the Arkansas Rules of Evidence provides that the court may direct that an offer of proof be made in question and answer form. Rule 103(c) generally requires that proffers be made outside the hearing of the jury. We find no abuse of discretion in the procedure followed by the trial judge.
Appellant’s second argument is that the evidence he sought to elicit was relevant and it was error to exclude it. In Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), the supreme court held that theft was probative of untruthfulness and therefore could be inquired about on cross under Rule 608(b). Gustafson was overruled in Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), in which the court held that, although theft is probative of dishonesty, it is not probative of untruthfulness and therefore cannot be inquired about on cross under Rule 608(b). Although Gustafson involved theft by receiving and Rhodes involved shoplifting, we do not believe that either decision turned on the particular type of theft offense involved. Appellant relies primarily on the dissenting opinion in Rhodes. While we might agree with appellant that the dissent is well reasoned we are not at liberty to follow it.
Embezzlement was not an offense at common law. It has been defined as common-law larceny extended by statute to cover cases where the stolen property comes originally into the possession of the defendant without a trespass. Moody v. People, 65 Colo. 339, 176 P. 476 (1918). It was made a separate offense by statute in this state until the adoption of the Arkansas Criminal Code in 1975, at which time it was consolidated with other theft offenses. Arkansas Statutes Annotated § 41-2202 (Repl. 1977). There is dicta in at least two federal cases stating that inquiry into specific acts which would have constituted embezzlement is permissible under Rule 608(b) of the Federal Rules of Evidence. United States v. Amahia, 825 F.2d 177 (8th Cir. 1987); United States v. Leake, 642 F.2d 715 (4th Cir. 1981). These statements appear to be derived from an article by Dean Ladd, Credibility Tests-Current Trends, 89 U. Pa. L. Rev. 166, 180 (1940). But Dean Ladd also argued that robbery, larceny, and burglary might be probative of untruthfulness.
Our conclusion is that this case is controlled by the supreme court’s holding in Rhodes. We do not think a meaningful distinction can be drawn, for purposes of Rule 608(b), between embezzlement and other forms of theft.
We hold that the trial court did not err in excluding this evidence.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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George K. Cracraft, Judge.
Marshall Trucking Company appeals from its conviction of operating an overweight vehicle on the highways of this state in violation of Ark. Stat. Ann. § 75-817 (Supp. 1985). We find no error and affirm.
Officer Harold Spraggins of the Arkansas State Highway Police testified that he stopped appellant’s truck on June 13, 1985, because it appeared to be overweight. The officer testified that in weighing the truck he followed the method prescribed by the state police in weighing each axle separately and adding them together to arrive at total weight. He found that the truck weighed 80,700 pounds, which was in excess of the maximum allowed for a vehicle of that type and load, and issued a citation for violation of the statute. He stated that there was no indication that his scales were not working properly or that his addition was faulty. On cross-examination, he testified that it was customary to have the scales tested every six months at the Arkansas Highway Department facility in Little Rock but that his scales had not been tested within six months prior to the issuance of the citation. He did state, however, that his scales were tested one month after writing this citation and that that testing showed his scales to have a maximum variance of one hundred pounds.
The appellant first argues that Officer Spraggins’ computation of the maximum permissible weight of the truck was in error and not as prescribed in the statute. Arkansas Statutes Annotated § 75-817 prescribes those maximum gross weights which will be permitted for various types of vehicles and the method for calculating those maximum weights, and provides for variations and tolerances for some types of loads. The statute is clear, however, that in no event shall the gross allowable weight for any vehicle, including all allowable tolerances or variances, exceed 80,000 pounds.
Appellant argues that the only proper means of determining the weight of its truck was through employment of the mathematical formula found in Ark. Stat. Ann. § 75-817 (e), and that it was therefore error to have arrived at that determination by utilizing the method employed by Officer Spraggins. It argues that, had this formula been used, it would have proven that the true weight of the truck was not in excess of that allowed. We can only conclude that appellant has misinterpreted the purpose of this formula, for it is clear that it is merely a method by which to determine the maximum weight a given truck can carry legally and not a method by which to determine how much a given truck is carrying at. a particular time.
The appellant next argues that the officer’s scales were not properly certified, that they therefore could not form the basis for reliable evidence as to the actual weight of the appellant’s vehicle at the time the citation was issued and the trial court should not have considered that evidence. Appellant cites us no statutory provision which would require that the scales be tested at any particular interval or that, as a consequence of a failure to do so, the evidence obtained from their use be excluded. In the absence of such a statutory declaration or prohibition, the fact that a scale has not been tested within six months prior to the arrest would merely go to the weight to be afforded the evidence rather than its admissibility.
On appellate review of criminal cases, we view the evidence in the light most favorable to the trial court’s findings and will affirm those findings if supported by substantial evidence. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). The officer testified that he conducted the test in the manner usually employed by his department, that he detected nothing wrong with his scales at the time they were employed, and that his calculations as to the weight carried by the truck at the time were correct. The credibility of the officer and the weight to be given his testimony are matters for the trial court to determine. From our review of the record, we conclude that the trial court’s finding that appellant’s truck was operated on the highway in violation of Ark. Stat. Ann. § 75-817 is supported by substantial evidence.
Chester Marshall, president of the appellant firm, testified that his company operated a number of trucks hauling wood chips and timber products. He testified that each truck is weighed upon arrival at the Georgia Pacific mill and again after being emptied. The driver is then furnished duplicate copies of the weight ticket. One copy of the ticket is sent to the mill the following Monday for payment and the duplicate retained in the company file. He then offered into evidence a copy of a ticket from his file said to have been furnished his driver on the date the citation was issued and which showed the gross weight of the truck upon its arrival to be 80,060 pounds. In response to the State’s objection, appellant’s counsel stated that the exhibit was intended to prove the true weight of the vehicle, that the police officer’s scales were inaccurate, and that the truck was not as overweight as the officer testified.
Appellant contends that the trial court erred in not admitting the ticket as an exception to the hearsay rule under A.R.E. Rule 803(6), which provides that records made in the regular course of business pursuant to a regular practice to make such entries, as shown by a custodian of the records or other competent witness, may be admitted as business records, unless the source of information, or method or circumstances of preparation indicate a lack of trustworthiness. In Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (Ark. App. 1979), the court listed seven factors which must be present before a document may qualify as a business record. In Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark. App. 169, 705 S.W.2d 897 (1986), the court held that only those documents meeting those criteria and which are also found to be trustworthy are admissible under the rule, and that the trial court has wide discretion in making that initial determination of fact.
Although the proffered document was found in appellant’s company files and did meet some of the criteria set out in Cates, our problem arises because here appellant is attempting to qualify a memorandum made and furnished by Georgia Pacific. Although there is no prohibition against one company integrating records made by another into its own business records, the party offering the record must still establish by a competent witness that its content is worthy of belief. The mere fact that the memorandum is retained in appellant’s files does not supply the required foundation for admission. United States v. Davis, 571 F.2d 1354 (5th Cir. 1978).
In denying admission of the record, the trial court noted that no one had testified as to the accuracy of Georgia Pacific’s scales, the qualifications of the operator to weigh the truck and make the record entry, or any of the other circumstances under which the record was made. Without discussing all of the circumstances bearing on the trustworthiness of the record, we conclude that the trial court did not abuse its discretion in holding that the record was not competent to prove the truth of the matters asserted in it, was not worthy of belief, and should be excluded.
Affirmed.
Mayfield and Coulson, JJ., agree. | [
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George K. Cracraft, Judge.
Joe Guinn was charged in separate criminal informations with the crimes of conspiring with others to possess controlled substances with the intent to deliver and conspiring with others to commit arson. As it was shown that the agreement to commit both offenses grew out of the same agreement and continuous conspiratorial relationship, the court ordered the case tried as one conspiracy to commit multiple criminal acts as provided in Ark. Stat. Ann. § 41-709 (Repl. 1977). The appellant was found guilty of having conspired to commit both crimes and brings this appeal. We find sufficient merit in one point advanced for reversal to warrant a new trial.
Appellant contends that the trial court erred in not directing a verdict in his favor because there was no substantial evidence on which a verdict of guilty of conspiring to commit either offense could be based. Where the sufficiency of the evidence is challenged on a criminal appeal, we review that issue first before considering elements of trial error because of the constitutional prohibition against a second trial when a conviction is reversed for a lack of evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). We conclude that there was substantial evidence of a conspiracy to commit both offenses.
One commits criminal conspiracy if he agrees with one or more other persons that one of them will aid or engage in conduct constituting a criminal offense and one of the conspirators thereafter does an overt act in furtherance of that agreement. Under this section, it is required that the State prove not only that there was an agreement to commit the crime or crimes but also that one of the conspirators did at least a minimal act in furtherance of the agreement.
At common law, the gist of a conspiracy was the unlawful combination or agreement, such that one might be convicted of the crime by simply showing that such a confederation existed. Powell v. State, 133 Ark. 477, 203 S.W. 25 (1918). Our statutes now require the doing of an overt act as an element of all criminal conspiracies. Here, there was evidence that appellant offered to burn Doyle Hall’s residence to enable him to collect fire insurance proceeds. After Hall informed police officers of the offer, Officer Ron Lewis was introduced to the appellant as Hall’s son and thereafter participated in the negotiations with appellant. There was substantial evidence that an agreement was entered into under which the appellant would cause Hall’s residence to be destroyed by fire. Appellant, in a subsequent meeting, admitted in the presence of the officers that he had obtained “help” to assist in the arson and that he had talked with an attorney to obtain the necessary advice and protection for Hall in the prosecution of his insurance claim and in the event of police investigation. We conclude that appellant’s statements regarding his efforts to obtain persons to aid in the arson and to establish counsel in prosecuting the claim for insurance were at least substantial evidence of overt acts in furtherance of the conspiracy to commit arson.
During the course of the conversations, there was also an agreement that the appellant would purchase ten pounds of marijuana from Officer Lewis and another officer for the purpose of resale by him at other locations. There was evidence that pursuant to that agreement the appellant paid the police officers the sum of $2500.00 in order to obtain the marijuana. There was, therefore, substantial evidence of an overt act on the part of the appellant to set in motion the conspiracy to possess controlled substances.
The appellant further contends that there was no substantial evidence to support the conspiracy because there were no co-conspirators. He argues that, as the police and their agents could not be co-conspirators, and that as one cannot conspire with himself, there was no criminal conspiracy. Arkansas Statutes Annotated § 41-713(2)(b) (Repl. 1977) provides that it is not a defense to prosecution for conspiracy that the person with whom the defendant conspires is immune to prosecution or has feigned agreement. The commentary to that section points out that it is designed to bar a defense based on the fact that other conspirators are not liable for their participation, such as where one of the conspirators is actually working for the police and only pretends to agree to an illegal course of conduct. We find no error.
Although we find no merit in appellant’s challenge to the sufficiency of the evidence, we do find a trial error for which the case must be reversed and remanded for a new trial.
The appellant contends that the court erred in ordering the case to trial on an information which did not aver any specific overt acts done in pursuance of the conspiracy. The informations merely averred that “he did thereafter do overt acts in pursuance of said conspiracy.” Arkansas Statutes Annotated § 43-2013 (Repl. 1977) provides as follows:
In trials of indictments for conspiracy, in cases where an overt act is required by law to consummate the offense, no conviction shall be had, unless one or more overt acts be expressly alleged in the indictment, and proved on the trial; but overt acts, other than those alleged in the indictment, may be given in evidence on the part of the prosecution.
(Emphasis added).
At the time that section was originally enacted there were conspiracies which did not require proof of overt acts. See Powell v. State, supra. It therefore applied only to those statutory enactments in which overt acts were required in order to consummate the offense. Arkansas Statutes Annotated § 41-707 (Repl. 1977) now requires proof of an overt act as an element of every criminal conspiracy, and therefore § 43-2013 applies to all cases involving allegations of criminal conspiracy. Under these two sections, it is required that the State both allege and prove a specific overt act evidencing that the conspiracy has been put in motion, and, provided the issue is properly raised, the failure to both allege and prove such an act is fatal to a conviction. Here, although appellant did not specifically move to quash the information, he did, both before and during trial, seek an order requiring the State to amend its information so as to allege specific overt acts done in furtherance of the conspiracy. The court overruled both motions and appellant was forced to go to trial without that knowledge.
The State argues that the appellant knew well in advance of trial the overt acts upon which the State would rely. Appellee argues that any statement made or action taken by any of the conspirators was to be considered an overt act and that the prosecutor had followed his “open file” policy by permitting the appellant to examine everything in it. We cannot conclude that this would meet the requirements of § 43-2013. We conclude that this failure on the part of the State warrants the ordering of a new trial at which the State has in advance specifically alleged overt acts done in furtherance of the conspiracy.
Appellant next argues that State Exhibit No. 1, purportedly the marijuana he attempted to purchase in this case, should not have been admitted into evidence because it was not properly authenticated. He argues that the evidence should have been excluded absent expert testimony that the substance was indeed marijuana. Although we have already found error requiring a new trial, we address this argument because of the likelihood that it will again be made an issue on retrial.
To prove the existence of a conspiracy the State was required to show that appellant agreed with another to commit the crime and that one of them performed an overt act in furtherance of that agreement. We have concluded that there was substantial evidence of an agreement and that appellant paid the officers $2500.00 in order to obtain what he thought was marijuana. It was unnecessary for the State to have to prove that the substance was in fact marijuana, as proof of the elements of the offense that is the object of the conspiracy is not required in order to prove the conspiracy. See Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).
The appellant also argues that other procedural errors were committed during the trial. As he has failed to abstract for us the evidence on which these arguments are based and has failed to abstract for us both the instructions and the court’s rulings on those instructions he contends were erroneously rejected, we do not address them.
Reversed and remanded.
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George K. Cracraft, Judge.
Edward Leon Teas appeals from his conviction of the crime of sexual abuse in the first degree for which he was sentenced to a term of eight years in the Arkansas Department of Correction. He contends that the evidence was insufficient as a matter of law to support the conviction, and that the trial court erred in refusing to permit evidence for the purposes of impeachment of hearsay statements and in denying the appellant the opportunity to establish bias on the part of a witness. We find no error and affirm.
As required by Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), this court will review a challenge to the sufficiency of the evidence prior to considering any other alleged trial errors. In deciding that issue, we review the evidence presented at trial in the light most favorable to the State and will reverse only if the verdict is not supported by substantial evidence.
Arkansas Statutes Annotated § 41-1808 (Repl. 1977) defines sexual abuse in pertinent part as a person being eighteen years or older engaging in sexual contact with a person not his spouse who is less than fourteen years of age. Sexual contact is defined as any act of sexual gratification involving the touching, directly or through the clothing, of the sex organs, buttocks, anus of a person, or the breast of a female. Ark. Stat. Ann. § 41-1801(8) (Supp. 1985).
The evidence viewed in the light most favorable to the State would establish that the victim was an eleven-year-old female and the appellant was a forty-one-year-old male. The victim testified that the appellant was her mother’s boyfriend and from time to time lived in the same dwelling with them. The minor was alone with him many times when her mother was at work. She stated that he had on a number of occasions taken off her clothes and tried to insert his penis into her vagina. She denied that he had ever penetrated her but stated that on many occasions he had gotten on top of her when neither had on any clothes and pushed on her vagina with his penis. She stated that he had also touched and squeezed her breasts. We conclude that this is substantial evidence to support a finding that for the purpose of sexual gratification appellant had touched this victim’s sexual organs and breasts as prohibited by § 41-1808.
The victim testified that the acts of sexual abuse occurred on those occasions when appellant was babysitting her while her mother was at work. On cross-examination, she was asked if the appellant ever brought other women to the apartment when her mother was away and forced the victim to watch him engage in sexual acts with them. She denied that he did or that she had ever stated to anyone that he did so. Without objection, the appellant called the victim’s mother and elicited from her that the child had made such a statement to her on a previous occasion. The social worker was also called to testify that the the victim’s mother had stated to her that the child had made such a statement. For the purpose of eliciting testimony that the events mentioned in the child’s prior statement had never occurred, the appellant then attempted to call to the stand the woman alleged to have been mentioned and identified in the prior statement as the person observed in the apartment. The appellant contends the trial court erred in excluding that testimony as further impeachment of the victim’s credibility. We do not agree.
Our rules of evidence provide the methods by which the credibility of a witness may be impeached. Rule 608 provides that one may be impeached by opinion or reputation evidence as to character for truthfulness or cross-examined about specific instances of conduct which bear on that issue. Rule 609 permits impeachment by evidence of prior convictions of a felony or other crimes involving dishonesty. Rule 613 provides the conditions under which extrinsic evidence of prior inconsistent statements of a witness may be introduced for purposes of impeachment. Rule 806 governs impeachment of the credibility of the declarant of an out-of-court statement which is admitted through another witness as an exception to the hearsay rule.
None of these rules, however, permit impeachment by extrinsic evidence on a collateral matter. It is well settled that, when a witness is cross-examined on a matter collateral to the issue being tried, his answer cannot be contradicted by the party putting the question. This rule applies only to questions put on cross-examination and does not apply to answers to questions asked on direct examination. The test in determining whether the issue is a collateral one is whether the cross-examining party is entitled to prove the issue as part of his case. Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987); James v. State, 11 Ark. App. 1, 665 S.W.2d 883 (1984); Vanderpool v. State, 4 Ark. App. 93, 628 S.W.2d 576 (1982). The issue here was whether the appellant had sexually abused the victim by sexual contact as defined in our statutes. Whether he forced this child to watch him participate in other illicit acts is entirely collateral to the issues of this case.
Appellant presents the novel argument that, since he elicited the testimony of the victim’s mother concerning the victim’s prior inconsistent statement on direct examination, the rule cited in Garst has no application. He contends that he should have been allowed under Rule 806 to prove that the victim’s prior statement was false. Rule 806 provides as follows:
Attacking and supporting credibility of declarant. — If a hearsay statement, or a statement defined in Rule 801(2) (iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination. [Emphasis added.]
While we do not agree that this rule has any application to this case for several reasons, we think it sufficient to say that the rule provides for attacking the credibility of a declarant only where hearsay statements are admitted under exceptions to the hearsay rule. “Hearsay” is defined as a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Ark. R. Evid. 801(c). The question put to the victim’s mother was not intended to prove the truth of the child’s prior assertion but only that the prior statement had in fact been made. It was not a hearsay statement and Rule 806 could have no application.
During the direct examination of a defense witness, counsel asked the witness if he had ever seen the victim’s mother angry at the appellant. The witness answered that he had. He was then asked, “What was she wanting to do to Leon?” The court excluded the testimony on the State’s hearsay objection. The appellant argues that the trial court erred because he was not offering the statement to prove the truth of the matter asserted but to prove bias on the part of the victim’s mother.
Our courts have stressed the importance of allowing wide latitude with respect to the admission of evidence relevant to the bias of the witness. See Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). Here, however, the appellant stated only that he was offering the evidence to prove bias and made no proffer of any evidence or other statement to indicate what he expected the witness to state. Where an appealing party asserts as error the refusal of the court to hear testimony of a witness, the record must disclose the substance of the offered testimony so the court may determine whether or not its rejection was prejudicial. The failure to proffer evidence so that the appellate court can make that determination precludes review of the issue on appeal. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985); Willett v. State, 18 Ark. App. 125, 712 S.W.2d 925 (1986); Ark. R.Evid. 103(a)(2).
Affirmed.
Corbin and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from an order of the Workers’ Compensation Commission. At a hearing on a joint petition settlement, the administrative law judge suggested that $2,000 to $2,500, in addition to the $5,000 offered, should be paid. Appellant’s counsel obtained an additional $2,500 and the law judge approved the joint petition without another hearing. However, the claimant then employed counsel and a motion was filed with the law judge asking that the order approving the joint petition be set aside. The law judge denied the motion and, on appeal to the full Commission, the law judge’s order was vacated and the matter remanded with directions to schedule a hearing on the final settlement petition.
The employer has appealed and contends no additional hearing is necessary and that appellee’s acceptance of the $7,500 without tendering any portion of it back has estopped appellee from challenging the settlement. We conclude that the order of the Commission is not a final order and, therefore, is not appealable. Even though the issue of appealability was not argued in the briefs, it is a jurisdictional question which the appellate court has the right and duty to raise in order to avoid piecemeal litigation. Morgan v. Morgan, 8 Ark. App. 346, 652 S.W.2d 57 (1983).
For an order to be appealable it must be a final order. Ark. R. App. P. 2. To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. Epperson v. Biggs, 17 Ark. App. 212, 705 S.W.2d 901 (1986). This rule applies to appeals from the Workers’ Compensation Commission. See H.E. McConnell & Son v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970), and Cooper Industrial Products v. Meadows, 269 Ark. 966, 601 S.W.2d 275 (Ark. App. 1980).
It is the general rule that orders of remand are not final, appealable orders. Lloyd v. Potlatch Corp., 19 Ark. App. 335, 721 S.W.2d 670 (1986). In 3 Larson, Workmen’s Compensation Law § 80.11 (1983), the rule is stated as follows:
There is in compensation procedure, just as in any other judicial procedure, such a thing as a completely unreview able matter, as in the case of interlocutory decisions that are unreviewable for lack of finality, or incidental decisions that involve details committed to the absolute discretion of the lower tribunal. Ordinarily an order is reviewable only at the point where it awards or denies compensation. Accordingly, review has been denied of an order allowing claimant to amend his claim, denying a motion to receive further evidence, remanding the case for further evidence or findings, directing the claimant to be medically examined, continuing the trial of a claim while a tort action was pending, and granting claimant’s petition for interrogatories on the facts surrounding her husband’s death. (Footnotes omitted.)
The Commission’s remand in the instant case is not a final determination of any issue but merely remands the case for an additional hearing; therefore, it falls within the general rule as set out above and is not a final, appealable order.
Dismissed.
Cracraft and Cooper, JJ., agree. | [
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Beth Gladden Coulson, Judge.
The appellant was found guilty of sexual abuse and was sentenced to three years imprisonment with two and one-half years suspended. It is argued on appeal that the trial court erred in: (1) allowing the names of potential jurors to be drawn by the bailiff as opposed to the clerk; (2) admitting certain hearsay testimony; (3) not permitting appellant to inform the jury that its recommendation of a suspended sentence was not binding on the court; and (4) not following the jury’s recommendation of a suspended sentence. We find appellant’s arguments to be without merit and affirm.
Ark. Stat. Ann. § 43-1903 (Repl. 1977) clearly provides that in felony prosecutions, “the clerk. . . shall draw from the jury box the names of the jurors . . . .” While the selection process at issue did not comply with the statute, appellant has failed to demonstrate how he was prejudiced. No longer is it presumed that simply because error is committed it is prejudicial. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985); Donoho v. Donoho, 22 Ark. App. 150, 737 S.W.2d 170 (1987). To reverse, prejudice must be shown. Berna, supra.
Although appellant alludes to the bailiff’s role as deputy sheriff, there is no showing that the jurors were unable to fulfill their duties fairly and impartially. Jurors are presumed unbiased and the burden of proving otherwise is upon the complaining party. Bovee v. State, 19 Ark. App. 268, 720 S.W.2d 322 (1986). We do not approve the procedure used, but in the absence of demonstrated prejudicial error find no grounds for reversal on this point.
At trial, the victim described the circumstances surrounding the alleged sexual abuse. It was established on cross-examination that the victim had originally given a slightly different account of the incident. Appellant’s counsel then sought to show that before trial the victim had frequently conferred with her parents and the prosecuting attorney on the details of the victim’s story. This was an attempt to impeach the victim’s credibility by casting doubt on the trial version of the incident. Appellant’s clear intent was to convince the jury that the trial testimony was a fabrication.
In order to rebut the charge of recent fabrication, the State sought to introduce testimony by the victim’s mother of a prior consistent statement by the victim made when she returned home after the alleged abuse. The trial court allowed introduction of the mother’s testimony despite appellant’s objections on the grounds of hearsay.
Statements by sex offense victims made to third parties shortly after the offense are admissible under any one of three theories. Urquhart v. State, 273 Ark. 486, 488, 621 S.W.2d 218, 219-20 (1981); 4 J. Wigmore, Evidence in Trials at Common Law, §§ 1134-1138 (rev. 1972). First, third parties may testify.as to the victim’s “complaint of rape” which proves that the victim did not remain silent (details of the offense are not admissible). Gabbard v. State, 225 Ark. 775, 285 S.W.2d 515 (1956); Lindsey v. State, 213 Ark. 136, 285 S.W.2d 462 (1948). Next, testimony by third parties may involve an “excited utterance” by the victim. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986);Bryan v. State, 288 Ark. 125, 702 S.W.2d 785 (1986); Weaver v. State, 271 Ark. 853, 612 S.W.2d 324 (Ark. App.), cert. denied, 452 U.S. 963 (1981). Finally, third parties may testify as to a “prior consistent statement” made by the victim so long as the victim is present at trial and subject to cross-examination, the victim’s credibility has been impeached, and introduction of the testimony otherwise complies with the applicable rules of evidence. Urquhart, supra; Pleasant v. State, 15 Ark. 624, 649 (1855). (Rule 803(25)(A) of the Arkansas Rules of Evidence presents a fourth theory.)
As early as the decision in Pleasant, supra, which involved a charge of rape, it was recognized under the first and third theories that:
It was competent for [the third party] to state, on his examination in chief, the appearance of [the victim], when she came to the mill, and that she complained that an assault had been made upon her; but the court erred in permitting his (sic) then to state the particular facts which she related to him. But the particulars of her statement might have been brought out, by way of confirming her testimony, after the attempt made by the prisoner to impeach her credit. [Emphasis ours.]
Rule 801(d)(1) of the Arkansas Rules of Evidence provides that such testimony “is not hearsay if. . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with [the declarant’s] testimony and is offered to rebut an express or implied charge against [the declarant] of recent fabrication or improper influence or motive . . . .”
The situation before us is exactly that contemplated by Rule 801. The victim’s credibility was impeached by cross-examination designed to show that the trial testimony was a fabrication which resulted from pre-trial meetings between the victim, the prosecuting attorney, and the victim’s parents. The fabrication was further supported by cross-examination on the victim’s earlier inconsistent statement. It was then permissible for the State to introduce testimony concerning the victim’s statement made to the mother after the alleged incident (but prior to the meetings with the prosecutor) which was consistent with the victim’s trial testimony. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). We find no error on this point.
The appellant contends that the trial court abused its discretion when it permitted appellant to inform the jury that it could recommend a suspended sentence but did not permit appellant to inform the jury that its recommendation was not binding on the court. Appellant points out that the jury assessed punishment at three years imprisonment but recommended that the sentence be suspended. It is suggested that had the jury known its recommendation of a suspended sentence was not binding, it might have sentenced the appellant to a fine only. The argument is without merit for several reasons.
The court’s instructions, clearly apprised the jury of its option to assess punishment by way of a fine. As such, it is difficult to see how appellant was prejudiced. Additionally, appellant has not shown that an instruction was proffered on the suspension of sentence. See Rood v. State, 4 Ark. App. 289, 630 S.W.2d 543 (1982). The matter of suspension of sentence is to be determined by the trial court and lies within its discretion. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979). We cannot conclude that the trial court abused its discretion.
The appellant’s final argument is that the court abused its discretion by not following the jury’s recommendation of a suspended sentence. We note at the outset that the trial court suspended two and one-half years of the appellant’s three year sentence. A criminal defendant has no right to a suspended sentence. The determination is one which is entrusted to the sound discretion of the trial court. Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982). Wefind nothing which would indicate an abuse of that discretion.
Affirmed.
Cracraft, J., and Cooper, J., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with possession of a controlled substance with intent to deliver, a violation of Ark. Stat. Ann. § 82-2617 (Supp. 1985) [Ark. Code Ann. § 5-64-401 (1987)]. After a jury trial, he was convicted of that charge and sentenced as an habitual offender to twenty-one years in the Arkansas Department of Correction. From that conviction, comes this appeal.
For reversal, the appellant argues that the quantity of the controlled substance he possessed was insufficient to sustain the verdict, and that the trial court thus erred in denying his motion for a directed verdict. We affirm.
The record shows that Officers Hensley and Whitehead of the Little Rock Police Department were assigned to undercover work in the street crimes unit in August 1985. On the night in question, the appellant approached the undercover officers and offered to sell them marijuana or cocaine. The appellant suggested that the officers pay him for the drugs “up front.” The officers refused to pay him before seeing the drugs, however, and the appellant got in the officers’ van, directing them to several different locations before telling them to stop at a house on Wolfe Street. The appellant told the officers that he was going to buy cocaine, and entered the house. He returned shortly thereafter with a packet containing white powder. The appellant told the officers that the packet contained “D’s,” a street term for Dilaudid, and that the price was $25.00. Hensley then identified himself as a police officer. As the appellant was being placed under arrest, he dropped four packets, which Officer Whitehead retrieved. An analysis performed by the Arkansas State Crime Laboratory showed that the packets contained .095 grams of a substance made up of both cocaine and Carisoprodal, the latter being a non-controlled muscle relaxant. No evidence was presented at trial to show the proportionate amounts of cocaine and Carisoprodal present in the powder.
The appellant asserts that, because he presented the substance for sale as Dilaudid, he did not knowingly deliver cocaine to the officers. The issue raised bears on the appellant’s intent, a state of mind which necessarily must be inferred, Walker v. State, 10 Ark. App. 189, 662 S.W.2d 196 (1983), and the real question is whether the State produced sufficient evidence to present a fact question to the jury. Id. There was evidence that the appellant initially asked the officers if they wanted to buy marijuana or cocaine, that the officers answered affirmatively, that the purpose of directing the officers on a journey ending at the house on Wolfe Street was to purchase cocaine, and that the appellant stated upon arriving at the house that he was going inside to get cocaine. We hold that there was sufficient evidence of the appellant’s intent to submit the issue to the jury, and that the conflicts in the evidence were for the jury to resolve. See Walker v. State, supra.
Next, the appellant contends that the amount of cocaine present in the substance was insufficient to be applied to the use commonly made of cocaine, and that possession of the substance with intent to deliver therefore did not constitute an offense. We do no agree. The Arkansas Supreme Court dealt with the question of possession of small quantities of controlled substance in Berry v. State, 263 Ark. 446, 565 S.W.2d 418 (1978), where it was held that a conviction for possession of heroin with intent to deliver could not be sustained when the only heroin in the appellant’s possession consisted of trace amounts found in a bottle cap. The Berry Court noted that the State must show that the accused possessed a specified quantity of a particular drug with the intent to deliver that drug, and reasoned that proof of intent to deliver was lacking in that case because it could not be argued that the appellant therein intended to recover and sell the minute amount of heroin in the bottle cap. Berry, 263 Ark. at 449-50. Id. at 450. We think that the facts of Berry are distinguishable from those presented in the case at bar because here there was evidence that the appellant had procured the substance with the intent of selling it to the undercover officers, and had in fact already stated the price at the time he was arrested. Under these circumstances, we think that the quantity of cocaine possessed by the appellant was sufficient to support his conviction for possession of cocaine with intent to deliver, and we affirm.
Affirmed.
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Melvin Mayfield, Judge.
Claimant, James F. Loosey, appeals a decision of the Workers’ Compensation Commission dismissing his claim with prejudice for failure to answer interrogatories.
The record discloses that on February 13, 1986, after the claimant had propounded interrogatories to his employer, the employer and its insurance carrier propounded interrogatories to the employee. Then, on April 1, 1986, the administrative law judge issued an order setting the matter for hearing on June 24, 1986. The order also stated:
All discovery shall be completed and any motions filed by May 15th, 1986. Failure to do so shall subject the oifend-ing party to sanctions.
On May 15,1986, when the February 13 interrogatories had not been answered by the claimant, the employer’s counsel wrote a letter to the administrative law judge calling attention to the fact that the deadline set for completing discovery had passed and requesting that sanctions be imposed.
On May 30, 1986, the administrative law judge dismissed appellant’s claim with prejudice. However, on appeal to the full Commission, the order was vacated and the matter was remanded to the law judge for a ruling on a petition for recusal filed by claimant. This petition was filed by letter dated May 22, 1986, but had not been ruled on when the May 30 order of dismissal was issued. After remand, the claimant’s petition for recusal was denied, and on July 9, 1986, the law judge again dismissed the claim with prejudice, although claimant had filed the answers to the interrogatories on June 13, 1986. On appeal from the law judge’s order of dismissal, the full Commission affirmed, relying on Commission Rule 16 and ARCP Rule 37(d).
On appeal to this court, the appellant first contends the Commission did not have the authority to dismiss the claim with prejudice. He cites Ark. Stat. Ann. § 81-1331 (Repl. 1976), which requires, in order to punish for contempt committed before the Commission, that the Commission must certify the facts to circuit court and the circuit court shall assess punishment to the extent it would have if the contempt had been committed before the court. We do not, however, agree that the dismissal of appellant’s claim is the same as holding him, or his attorney, in contempt.
The Commission has the authority, under Ark. Stat. Ann. § 81-1342(f) (Repl. 1976), to make such rules and regulations as may be found necessary to administer the provisions of the Workers’ Compensation Law. Under this authority, the Commission has promulgated its Rule 16, which provides:
Depositions may be taken and discovery had by any party after the claim has been controverted in accordance with the statutory provisions and rule of civil procedure relating to civil actions in the Chancery and Circuit Courts of this State, unless the parties agree otherwise.
Prior to the time a case has been controverted, for good cause and upon application of either party, the Commission may order the depositions of any party or witness to be taken and any other discovery procedure.
The Commission may, at any time after a case has been heard by an Administrative Law Judge or the Commission, order the taking of evidence by deposition or otherwise, especially when this procedure will expedite the submission of the case for decision by the Commission. (Effective March 1, 1982).
Rule 37(d) of the Arkansas Rules of Civil Procedure provides that, when a party fails to answer interrogatories, the court may, among other things, take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of Rule 37. These actions include an order deeming matters admitted, prohibiting the introduction of evidence, striking out pleadings, dismissing the claim of the offending party or rendering judgment by default against the disobedient party. Appellant argues, however, that the Commission had no power to exercise these sanctions in this case. He cites Commission Rule 16 and says the order issued by the law judge extending the time for completion of discovery from the 30 days allowed by ARCP Rule 33 to 45 days after the issuance of the order, was not requested by either party and the Commission could not issue the order on its own volition.
It is true that Commission Rule 16 provides depositions may be taken and discovery had by any party, after the claim has been controverted, in accordance with the statutory provisions and rules of civil procedure relating to civil matters in the Chancery and Circuit Courts of the State but, prior to the time a matter has been controverted, the Commission must order the deposition or discovery for good cause upon application of a party. This matter was thoroughly discussed at oral argument and we are convinced that the record shows that the claimant’s claim was controverted before the law judge issued his order setting this matter for a hearing and directing that all discovery be completed by a certain date.
Therefore, since the claim was controverted, the discovery started by the parties before the claim was set for hearing was authorized by the Commission’s Rule 16 and this authorized the law judge to make proper orders pertaining to that discovery. ARCP Rule 37(b) provides that sanctions may be imposed against a party who is disobedient to those orders, and dismissal of an action is one of the sanctions authorized. The Commission must, of course, administer its rules subject to basic rules of fair play, Brewer v. Tyson Foods, Inc., 10 Ark. App. 88, 661 S.W.2d 423 (1983), and the appellant argues that his failure to answer the interrogatories within the time ordered by the law judge was not willful and did not justify the harsh sanction of dismissal of his claim. The full Commission recognized this point but found that the sanction imposed by the law judge was supported by the record. We must affirm the Commission’s factual determinations if supported by substantial evidence, Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979), and great weight must be accorded the Commission’s findings with reference to compliance with its rules and regulations. Mohawk Rubber Company v. Buford, 259 Ark. 614, 535 S.W.2d 819 (1976). Under ARCP Rule 33(a), the appellant was required to answer the interrogatories propounded to him on February 13, 1986, within 30 days of that date. However, the effect of the law judge’s order of April 1, 1986, extended the time to answer until May 15, 1986. When the appellant had not answered by May 30, 1986, the law judge dismissed the appellant’s claim. That action was subsequently affirmed by the Commission, and we cannot say the Commission’s order is not supported by the record.
Finally, appellant argues that the dismissal without a hearing was an unconstitutional deprivation of his right to due process of law. However, when counsel for appellant was served with interrogatories on February 13, 1986, he was aware, or should have been aware, that ARCP Rule 33, as applied to Workers’ Compensation cases through Commission Rule 16, gave the appellant 30 days in which to either answer the interrogatories or file objections to them. The administrative law judge’s order of April 1 specifically warned the parties that failure to complete discovery by May 15 would “subject the offending party to sanctions.” In Mann v. Ray Lee Supply, 259 Ark. 565, 535 S.W.2d 65 (1976), the Arkansas Supreme Court considered the propriety of a default judgment entered against appellant for failure to answer interrogatories. The court said:
A party who has been warned of the consequences of default is not entitled to a second notice that would add nothing to the first, else the progression of notices would never end. For instance, when a defendant is served with a summons warning him to answer within a specified time, under the penalty of the complaint’s being taken as confessed, his failure to answer entitles the plaintiff to judgment. [Citations omitted.]
We do not find that the appellant in the present case was deprived of due process of law in the dismissal of his claim under the facts of this case.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with first-degree murder, second-degree battery, and aggravated assault. After a jury trial, he was convicted of first-degree murder and sentenced to twenty-seven years in the Arkansas Department of Correction. He was also convicted of third-degree battery which, as a misdemeanor, was merged with the murder conviction, and the trial judge set aside the aggravated assault conviction on double jeopardy grounds. From those convictions, comes this appeal.
For reversal, the appellant contends that the trial court erred in refusing to suppress evidence obtained as a result of the execution of an illegal arrest warrant, and that the court erred in refusing to reduce the murder charge from first to second degree. We find the appellant’s first point to be meritorious, and we reverse.
The evidence shows that a number of shots were fired into a residence at 4300 West 24th Street in Little Rock on March 17, 1986, and that one person was killed and another wounded. Officer Michael Strack of the Little Rock Police Department obtained information that suspects in the shooting were driving a red and white older model vehicle. Officer Strack stopped a vehicle meeting this description and ordered the driver and passenger to get out and place their hands on the roof of the car. They did so momentarily, and then broke and ran. Officer Strack, after an unsuccessful pursuit, returned to their car and found a shotgun on the back seat.
Through a photo lineup conducted several hours later, Officer Strack identified the appellant as the passenger of the vehicle. The vehicle, which belonged to the appellant, was impounded. On the strength of this evidence, detectives of the Little Rock Police Department obtained a warrant for the appellant’s arrest from Susan Skipper, Deputy Clerk of the Little Rock Municipal Court. At an omnibus hearing held on November 17, 1986, Ms. Skipper stated that she issued the warrant herself, without communicating with Municipal Judge Allan Dishongh, and without any indication from the officers or the documents that the judge had any knowledge of the facts alleged. She further stated that she did not read the factual allegations of the affidavit before signing the warrant; that she only checked for the prosecutor’s signature, the charge, and the statute number; and that she issues warrants under these circumstances routinely, as a matter of policy.
The warrant issued by Ms. Skipper was executed the same day at the appellant’s residence by Detective Keathley and Officer Smith. Officer Smith testified that Detective Keathley’s knock on the appellant’s door was answered by Brenda Riddle. Asked if the appellant was in, Ms. Riddle said that he was, and she called him to the door. When the appellant appeared, the police officers identified themselves, stated that they had a warrant for the appellant’s arrest, and advised him of his rights. The policemen then stepped into the residence, and allowed the appellant to go to his bedroom to dress. While Detective Keathley and the appellant were in the bedroom, Officer Smith noticed a .357 revolver and ammunition on the living room floor. Officer Smith stated that he was standing in the bedroom door to ensure Keathley’s safety when he discovered the weapon and bullets. These items were introduced into evidence at trial, as were ballistic tests identifying the revolver as the murder weapon. The appellant’s motion to suppress this evidence was denied.
The appellant argues that the trial court erred in refusing to suppress evidence stemming from the appellant’s arrest, contending that the arrest was invalid under A.R.Cr.P. Rule 7.1(c), and that the discovery of the revolver and ammunition in the appellant’s residence thus did not constitute a search incident to a valid arrest. We agree. Arkansas Rules of Criminal Procedure 7.1(c) provides that the clerk of a court or his deputy may, when so authorized by the judge of that court, issue an arrest warrant upon the filing of an information or upon an affidavit approved by the prosecuting attorney. However, the authority vested in court clerks under this rule does not dispense with the requirement that warrants must be issued by a detached, neutral magistrate who makes an independent determination of probable cause. Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). Here, the warrant was issued without either the approval of a judicial officer or an independent determination of probable cause, and we hold that the warrant requirements were not met.
Moreover, the introduction of the disputed evidence cannot be justified on the ground that it was seized incident to a valid warrantless arrest. Even where probable cause is present, a warrantless entry of a residence is unreasonable in the absence of exigent circumstances. Payton v. New York, 445 U.S. 573 (1980). We have held that this rule is applicable where the arrest is accomplished without an entry by police officers who knock on a person’s door and ask him to step outside, Schrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984), and we hold that it is likewise applicable under the circumstances presented in the case at bar. Any evidence seized pursuant to the appellant’s arrest is thus subject to exclusion unless the warrantless entry was justified by exigent circumstances. See id. “Exigent circumstances” permitting warrantless entry of a dwelling are circumstances requiring immediate aid or action, including the risk of removal or destruction of evidence, danger to the lives of police officers or others, and hot pursuit of a suspect. Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). That such exigent circumstances were lacking in the case at bar is demonstrated by the fact that the police officers actually had sufficient time to procure a warrant for the appellant’s arrest: all that was lacking was communication with the municipal judge in order for the probable cause determination to be made and the requisite approval given. Finally, the Arkansas Supreme Court has held that the good-faith exception to the exclusionary rule does not apply where the police officers executing the warrant knew that no reasonable cause determination had been made by a judicial officer. Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986). The record shows that the warrant was obtained from Ms. Skipper, at her home after midnight, by Detective Keathley. In light of Ms. Skipper’s testimony that she issued the warrant in the presence of Detective Keathley, and that she made no attempt to communicate with Judge Dishongh, we hold that the good-faith exception is inapplicable. In the absence of a valid warrant or a warrantless entry supported by exigent circumstances, and where the good-faith exception to the exclusionary rule is inapplicable, we hold that the trial court erred in denying the appellant’s motion to suppress the evidence obtained by virtue of the illegal arrest, and we therefore reverse and remand.
We address the appellant’s second point for reversal because the issue might arise in a new trial. The appellant contends that his first-degree murder conviction under the felony murder formulation found in Ark. Stat. Ann. §41-1502(a) (Repl. 1977) constituted double jeopardy because the underlying felony upon which that conviction was based, aggravated assault, was not merely an element of the greater offense, but rather was an “inchoate version” of the first-degree murder charge because the essential element of both offenses involved the same conduct: shooting a firearm at the time and place in question. The appellant cites no authority to support his argument that the charge should have been reduced to second-degree murder on double jeopardy grounds, and we find it to be unconvincing. Although Ark. Stat. Ann. § 41-105 (Repl. 1977) prohibits the entry of judgments of conviction on both felony murder and the underlying specified felony, see Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981), the trial court in the case at bar did not enter judgments of conviction on the felony murder count and the aggravated assault charge, but instead set aside the aggravated assault conviction. Under these circumstances, we hold that the trial court did not err in refusing to reduce the charge to second-degree murder on double jeopardy grounds.
Reversed and remanded.
Corbin, C.J., and Jennings, J., agree. | [
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JOHN B. Robbins, Judge.
Appellant Callis L. Childs appeals from a decision of the chancery court which held that he did not effect an attorney’s lien against funds paid by appellee Mid-Century Insurance Company. For reversal, Mr. Childs argues that the chancellor erred in failing to recognize an attorney’s lien, as against the appellee, in connection with his representation of James Trezvant, Jr. In addition, Mr. Childs contends that the chancellor erred in ruling that he did not represent Mr. Trezvant in the claim at issue. We find no error and affirm.
The relevant undisputed facts of this case are as follows. On May 24, 1993, Mr. Trezvant was injured in an automobile accident. Thereafter, he sought compensation from Mid-Century Insurance, as insurer of the party allegedly responsible for the accident. On June 1, 1993, Mr. Trezvant signed a retainer agreement with Mr. Childs which provided that Mr. Childs would represent him with regard to the accident. The agreement provided for Mr. Childs to receive 40% of any recovery by settlement or suit. In addition, Mr. Trezvant signed an authorization for release of information, which allowed Mr. Childs to obtain various medical records. On the same day, Mr. Trezvant and Mr. Childs went to the location of Mr. Trezvant’s wrecked automobile and took several pictures of the damage.
On June 2, 1993, Karla Henderson, claims adjuster for the ap-pellee, received a call from Mr. Childs. During this conversation, Mr. Childs related that he represented Mr.Trezvant, and Ms. Henderson told him that he needed to send a letter confirming such representation. Mr. Childs sent a letter to this effect on June 2 and it was received by Ms. Henderson on June 7. However, on June 3 Mr. Trezvant called Ms. Henderson and informed her that he had fired Mr. Childs, and offered to setde the case for $25,000.00. Ms. Henderson responded by offering $2500.00 and requesting a letter from Mr. Trezvant indicating that he was no longer represented by Mr. Childs. Such a letter was eventually received on August 13, in which Mr. Trezvant stated that, while he initially retained Mr. Childs as counsel for a potential products-liability case against General Motors, Mr. Childs was never retained to represent him in his claim against appellee’s insured.
Between June 2 and Ms. Henderson’s receipt of Mr. Trezvant’s letter on August 13, Mr. Childs contacted Ms. Henderson by telephone and asked her to make sure that any settlement check contained his name. During this time period, Ms. Henderson informed Mr. Childs that Mr. Trezvant wished to settle the case without an attorney. On August 20, Mr. Childs sent Mr. Trezvant a letter advising him that he was asserting a 40% lien against any settlement recovery. On August 24, Mr. Trezvant and Mid-Century Insurance did, in fact, settle the claim and Mr. Trezvant received a check for $7500.00.
On September 8, Mr. Childs sent a letter to Ms. Henderson advising her that he was asserting an attorney’s lien. On September 17, he sent another letter to Ms. Henderson enclosing, for the first time, a copy of the authorization of release of information signed by Mr. Trezvant. Ms. Henderson refused to honor any lien, however, because she had already settled the claim directly with Mr. Trezvant and because “we were not provided with a court approved lien” prior to August 24, 1993.
At the trial, there was some dispute as to the extent of Mr. Childs’s representation of Mr. Trezvant. Mr. Childs asserted that the parties’ June 1, 1993, agreement was for the representation of Mr. Trezvant in his claim against Mid-State Insurance. Mr. Trezvant denied this assertion, stating that he only retained Mr. Childs to represent him in a possible claim against General Motors for a defective air bag.
After the trial, the chancery court ruled that Mr. Childs did not substantially comply with the relevant attorney’s lien statute and was entided to no relief. Mr. Childs now argues that this ruling was erroneous, and asserts entitlement to a judgment in an amount equal to 40% of the $7500.00 settlement. Mr. Childs also contends that the chancellor erred in finding that he did not represent Mr. Trezvant in his claim against Mid-Century Insurance.
The statute under which Mr. Childs requests relief is Ark. Code Ann. § 16-22-304(a)(l) (Repl. 1994), which provides:
16-22-304. Lien of attorney created.
(a)(1) From and after service upon the adverse party of a written notice signed by the client and by the attorney at law, solicitor, or counselor representing the client, which notice is to be served by certified mail, a return receipt being required to establish actual delivery of the notice, the attorney at law, solicitor, or counselor serving the notice upon the adversary party shall have a lien upon his client’s cause of action, claim, or counterclaim, which attaches to any settlement, verdict, report, decision, judgment, or final order in his client’s favor, and the proceeds thereof in whosoever’s hands they may come.
Mr. Childs acknowledges that, prior to the settlement, he never provided the appellee with a written notice of his representation signed by Mr. Trezvant as prescribed by the statute. However, he argues that his lien was nonetheless enforceable because he substantially complied with the statute by giving Mid-Century Insurance reasonable notice that he represented Mr. Trezvant in this matter.
A resolution of the issue before this court requires us to review two pertinent opinions that were cited by the parties and considered by the chancellor prior to rendering his decision. The first is Metropolitan Life Ins. Col v. Paul K. Roberts, 214 Ark. 994, 411 S.W.2d 299 (1967), a case in which the supreme court found substantial compliance with the attorney’s lien statute. The second is Gary Eubanks and Associates v. Black and White Cab, 34 Ark. App. 235, 808 S.W.2d 796 (1991), a case in which we found that an attorney’s lien was not effected because the attorney failed to substantially comply with the same statute.
In Metropolitan Life Ins. Co. v. Paul K. Roberts, supra, the attorney represented his client in an attempt to recover under the provisions of a life-insurance policy. The attorney notified the insurance company in writing that he was representing the policy holder, but the policyholder client failed to sign the letter. Almost a year later, the attorney notified the insurance company in writing that he had “expended a great amount of labor and time in prosecution” of his client’s claim, and asserted an attorney’s lien. Shordy thereafter, the insurance company setded around the attorney, and the attorney sued the insurance company for his fee. The trial court found that a valid attorney’s lien existed and the supreme court affirmed. In doing so, the supreme court indicated that, although the client’s signature was not present on the notice of representation sent by the attorney, the attorney had substantially complied with the statute because he made the insurance company aware of the representation and asserted a lien in writing prior to the settlement.
Gary Eubanks and Associates v. Black and White Cab Co., supra, on the other hand, involved a case in which the attorney failed to establish substantial compliance with the attorney’s lien statute. In that case, the attorney sent a letter to the appellee stating that he represented the claimant. However, this letter contained neither the attorney’s signature nor that of his client. Furthermore, the letter was not sent by certified mail and did not notify the appellee of an intention to assert an attorney’s lien. Relying on these facts, we held that the appellee was not given sufficient notice of the attorney’s lien and suggested that, if the appellant wished to pursue a fee, it would have to look to its client rather than the appellee.
Based on prior precedent and the particular facts of the case now before us, we find no error in the chancery court’s ruling that Mr. Childs failed to substantially comply with the attorney’s lien statute. It is undisputed that the June 2, 1993, letter on which Mr. Childs relies did not contain the signature of Mr. Trezvant. Moreover, the letter did not make Mid-Century Insurance aware of any attorney’s lien. Also of importance is the fact that, on the day after Mr. Childs sent the letter which asserted representation of Mr. Trezvant, Mr. Trezvant orally notified Ms. Henderson that Mr. Childs did not represent him in this case. From that point forward, Mr. Trezvant continued to deny that Mr. Childs was his attorney and eventually sent Ms. Henderson a letter to this effect. Under these circumstances, the chancellor correctly determined that substantial compliance had not been established.
Mr. Childs’s remaining argument is that the chancery court erred in ruling that he did not represent Mr. Trezvant in this matter. We need not address this argument because the chancery court never made such a determination. Rather, it concluded that even if an attorney-client relationship existed, Mid-Century Insurance is not liable because Mr. Childs failed to substantially comply with the provisions of Ark. Code Ann. § 16-22-304(a)(l) (Repl. 1994).
It has long been established that the appellate court will only reverse the decision of a chancery court if its findings are clearly erroneous. Lotz v. Cromer, 317 Ark. 250, 878 S.W.2d 367 (1994). In the instant case, we find that the chancery court’s findings were not clearly erroneous and affirm.
We acknowledge Mr. Childs’ contention in his reply brief that the appellee’s brief should be stricken for noncompliance with Rule 4-2(a)(4) of the Arkansas Rules of the Supreme Court. We note that the appellee followed the sequence of the points raised in Mr. Childs’s appeal, with the exception of raising a different point on its own which essentially addressed equitable and public-policy considerations regarding our disposition of this appeal. We find that this constituted substantial compliance with Rule 4-2(a)(4). Conse-quendy, we considered all arguments prior to issuing this opinion, including those raised by the appellee.
Affirmed.
Pittman and Griffen, JJ., agree. | [
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MARGARET Meads, Judge.
This case involves an appeal and a cross-appeal from a decision in which the Workers’ Compensation Commission held that the preponderance of the evidence shows that appellant is not permanently and totally disabled and that Second Injury Fund (SIF) has no liability. We reverse and remand on direct appeal and affirm on cross-appeal.
At the hearing on appellant’s claim, it was stipulated that appellant, Annalee Patterson, sustained a compensable injury on December 19, 1991, and that appellees, Arkansas Department of Health (ADH) and the Arkansas Insurance Department, Public Employee Claims Division, have accepted and are paying benefits consistent with a twenty-five percent anatomical impairment. Appellant contended that she is permanently and totally disabled as a result of her compensable injury. ADH contended that appellant’s disability did not exceed her anatomical impairment and, alternatively, that any wage-loss suffered by appellant is SIF’s responsibility. SIF contended that it has no liability; that appellant’s disability was solely the result of her job-related injury; and that she is not entitled to benefits for disability exceeding her anatomical impairment because ADH had made a bona fide offer of employment at wages equal to or greater than appellant’s average weekly wage at the time of the “re-injury.”
Appellant, who was forty-seven years old on the date of the hearing, is a registered nurse who was employed in an administrative position by ADH on December 19, 1991, when she sustained a back injury after reaching across her desk to plug in a surge protec tor. She felt an immediate, sharp pain in her lower back. She was initially treated by Dr. John Wilson, who referred her to Dr. Jim Moore, a neurologist, who eventually performed five spinal surgeries on appellant as a result of her injury. Subsequent to surgery in 1994, appellant developed arachnoiditis in the lower thecal sac, for which there is no specific treatment other than pain management. After surgery performed on July 11, 1995, appellant developed a cerebrospinal fluid leak (CSF), which is not a normal result of that surgery. Appellant also suffers from migraine headaches and Sjo-gren’s syndrome and has been diagnosed with depression, failed spinal surgery syndrome, and cauda equina syndrome. Appellant is currently taking a narcotic synthetic codeine three times a day for pain, anti-inflammatories for Sjogren’s syndrome, and blood pressure medication.
At the hearing on her claim, appellant testified that as a result of her injury and surgeries she spends most of the day in bed due to pain. She generally spends the morning sitting in a recliner or wheelchair. By noon her legs swell to the knees. She has developed foot drop in both feet as a result of the surgeries and drags her toes; because she does not have a steady leg to stand on, she cannot use crutches. She is unable to walk any distance. Appellant suffered from migraine headaches prior to her first surgery, but they are now more frequent. Prior to her last surgery, appellant was able to work as a part-time consultant because she was still mentally alert. After the last surgery, appellant developed cognitive problems and has experienced a change in her ability to think, to remember, and to perform mental tasks; Dr. Moore told her she is incapable of working. Since 1986, appellant has been afflicted with Sjogren’s syndrome, a condition involving the inability of a gland to secrete; however, she never missed any work due to this condition, and she was able to do her job.
Appellant testified that she would prefer to go back to work, but since her 1991 injury ADH has not offered her job back at full pay, and after she used all her “comp” time, vacation time, and sick leave, ADH asked her to resign. She does not believe that she can withstand an eight-hour job or sit behind a desk forty hours per week. If she stays up more than three or four hours a day, the next day she hurts so badly that she cannot move. Appellant is never free of pain. Her husband helps her bathe and dress, then takes her to the sun porch where she sits in a wheelchair or reclinen She normally sleeps between 9 a.m. and noon, then watches television until 2 or 3 p.m. She lies down until her husband gets home and cooks supper. She now rarely cooks. The activity of having to lift pots and pans and having to concentrate is difficult, and she burns things “all the time.” She retires about 8 p.m., but cannot sleep all night because of leg cramps. Appellant has no sensation in the lower part of her legs.
Once a month, appellant takes calls for ADH as part of a back-up service for home health nurses. This involves consulting a list of nurses and notifying them that they have a call, for which appellant is paid $25 per day. Appellant has also answered questions over the telephone about ADH supplies.
The medical evidence reveals that appellant suffered a series of back problems which have not resolved despite several surgeries. After her last back surgery, appellant suffered several falls. Her vehicle was equipped with hand controls, but she had difficulty learning to use them. She continues to have intense pain. After appellant developed the CSF leak, she experienced severe low-back pain radiating into the right lower extremity and severe spasms, which interfere with her daily living and ambulation. A Baptist Rehabilitation Institute (BRI) report dated August 14, 1995, states that since the CSF leak, appellant has an increased risk of falls, and declines in activities of daily living, self care, and mobility. In September 1995, it was noted that appellant required a ramp built for entry into her house. In December 1995, Dr. Thomas Shinder diagnosed appellant with arachnoiditis and significant behavioral overlay enhancing non-physiological neurological examination. He was of “somewhat” firm conviction that appellant has primary psychological overlay causing the majority of her symptoms. On April 2, 1996, Dr. Shinder wrote that he expected appellant to be at full improvement and ready to return to work within the next two months. However, in a Physicians Statement of Medical Necessity dated April 18, 1996, Dr. Shinder prescribed a TENS unit with a diagnosis of “failed back syndrome” and a prognosis of “fair,” and on May 17, 1996, Dr. Shinder admitted appellant to the hospital. Dr. William Ackerman, who examined appellant at Dr. Shinder’s request, noted on May 22, 1996, that appellant’s pain .was severe and that she was in a wheelchair.
Dr. Reginald Rutherford, who initially saw appellant in Dr. Shinder’s absence, noted on August 30, 1996, that appellant’s complaints are referable to her documented arachnoiditis for which there is no specific treatment other than pain management, and that she has been treated with anti-convalescents and anti-depressants without benefit. Dr. Shinder arranged for physical therapy, the goal being to increase appellant’s level of functioning so that she may get out of the wheelchair. However, on October 1, 1996, Dr. Rutherford noted that physical therapy proved without benefit, and there was no rational basis for further physical therapy. Dr. Rutherford considered appellant capable of working in a sedentary capacity, dependent upon her motivation and whether or not she would be accommodated by her employer. On October 1, 1996, Dr. Rutherford noted appellant had undergone five lumbar spinal surgeries complicated by arachnoiditis, which yields a DRE category 5 impairment for lumbosacral disorders, and he assigned appellant a twenty-five percent impairment to the person as a whole.
Dr. Moore did not agree with Dr. Rutherford’s assessment. On October 3, 1996, Dr. Moore noted that appellant has continued and ongoing pain problems. She is on pain medication, which is ineffective in giving her long-term relief. She obtained rehabilitative treatment at BRI where a number of exercises in “relative futility” were carried out. Her leg braces have been removed, which tends to relegate her even more to her wheelchair because she has no functional capacity in dorsiflexion, eversion, or inversion in the ankles. She remains neurologically compromised and is relegated to her wheelchair. She is compromised as far as peroneal sensation (relating to the lateral side of the leg or to the muscles there present), which goes along with the cauda equina syndrome and arachnoiditis which have been established in her ongoing evaluation. Dr. Moore believed appellant’s residuals would be significant and assessed them at sixty percent to the body as a whole. On November 4, 1996, Dr. Moore wrote that appellant’s neurological residuals remain significant; she is essentially relegated to a wheelchair; and she has sensory deprivation. He did not believe appellant capable of returning to working activities unless possibly in sedentary activities, but “certainly medication will be required and this would only be on a trial basis.” He felt that considering her various neurologic residuals with the foot drop and sensory alterations, an off-work status was appropriate.
In a consultation report dated November 11, 1996, Dr. Acker-man noted that he had nothing further to offer with respect to pain management. He felt that appellant might benefit from an aquatic therapy program with the institution of progression-resistive exercises to attempt to get her out of a wheelchair to a walker with the ultimate goal of increasing her daily activities. Dr. Ackerman felt that appellant may ultimately be a candidate for a subarachnoid morphine drug delivery system.
The administrative law judge (ALJ) found that the preponderance of the evidence shows that appellant has not been rendered permanently and totally disabled, but sustained permanent disability in an amount equal to eighty percent to the body as a whole, including anatomical impairment of twenty-five percent and wage-loss disability of fifty-five percent. He further found that the preponderance of the evidence fails to show that there has been a combination of the effects of a prior disability or impairment with the effects of appellant’s compensable injury to produce permanent disability or impairment greater than that resulting from the com-pensable injury alone, and fails to show that appellant received a bona fide offer of employment at wages equal to or greater than her average weekly wage at the time of her injury. The full Commission affirmed and adopted the ALJ’s findings.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). The Commission’s decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Johnson v. Democrat Printing and Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997). Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999). These rules insulate the Commission from judicial review and properly so, as it is a specialist in this area; however, a total insulation would render the appellate court’s function in reviewing these cases meaningless. Id.
Appellant argues that the Commission erred in finding that she had not been rendered permanently and totally disabled, because the “odd-lot” doctrine is applicable to her 1991 injury. We first note that Act 796 of 1993 abolished the odd-lot doctrine for permanent disability claims on injuries that occurred after July 1, 1993. However, because appellant’s injury was sustained in 1991, the odd-lot doctrine is applicable to her case.
The odd-lot doctrine refers to employees who are able to work only a small amount; the fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. M.M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979). An employee who is injured to the extent that she can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant’s mental capacity, education, training, or age, places appellant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of work is regularly and continuously available to the appellant. M.M. Cohn, supra. Because of appellant’s total and permanent disability claim, appellee was on notice that the odd-lot doctrine was at issue. Walker Logging v. Paschal, 36 Ark. App. 247, 821 S.W.2d 786 (1992).
In the opinion that was affirmed and adopted by the full Commission, the law judge wrote:
Her testimony and the medical record shows that she did fairly well until after the last surgery, which resulted in a cerebros-pinal fluid leak. In spite of extensive follow up care, which included a clot patch for the CSP leak, additional diagnostic stud ies, medication, adhesiolysis, and physical therapy, the claimant experienced little relief from her difficult symptoms.
At the time of the hearing she testified that she spent most of the day in bed due to pain, by noon her legs were swollen to the knees. She further stated that she is up only about four hours a day, spends about three and a half hours in a wheel chair, and has very limited ability to walk, even with crutches. She further testified that she has foot drop in both legs and now has very intense headaches which interfere with her ability to sleep and her activities of daily living. She also described a decline in her mental acuity, which included difficulty with her memory and cognitive functions. She stated that since the last surgery she has not had an offer of employment at equivalent pay, but was instead asked to resign after she had used up her sick leave and compensatory time. She also doubted that she could handle a full time job because she could not stay up more than three or four hours without experiencing an increase in pain which makes it difficult for her to move. However, from time to time, about once a month, she takes calls for the Health Department on the weekends, assisting in locating nurses in the county from which the call originated. She is also able to do a limited amount of other telephone work and some paperwork. However, this limited employment is not equivalent to her usual employment which had paid more than $30,000.00 per year.
On October 1, 1996, Dr. Reginald J. Rutherford wrote that he considered the claimant capable of working in a sedentary capacity, depending on her motivation and whether the employer is accommodating, and then assessed her anatomical impairment at 25% to the body as a whole, which was accepted by respondents 1. On October 3, 1996, Dr. Moore wrote that the claimant’s residuals were going to be significant, noting that she had cauda equina syndrome and arachnoiditis, and he rated her impairment at 60% to the body as a whole. He also remarked that the claimant would require ongoing medication that is generally best provided by a pain clinic surrounding. On November 4, 1996, he wrote that he did not believe that the claimant was “capable of returning to working activities, possibly sedentary, but certainly medication will be required....” He noted that the claimant had ongoing cauda equina syndrome which is not thought likely to improve.
When the entire record is reviewed, in light of the claimant’s age, education, work experience, level of motivation, physical condition, and other matters reasonably expected to affect her future earning capacity, the preponderance of the evidence shows that she has sustained substantial permanent disability but has not been rendered permanently and totally disabled. Even though she had sustained a significant low back injury and undergone four surgeries, the claimant continued to return to the work place, until the consequences of the last surgery, which were more substantial. Even though she is severely limited by her physical condition and the effects of the medication related to her compensable injury, she has been able to undertake limited employment by being on call, being available to give advice over the telephone, and by doing paperwork, employment which is not constant in its demands on the claimant’s time, but which is not full tíme and are [sic]not widely available with other employers. (Emphasis ours.)
We think from a reading of the ALJ’s opinion, which was adopted by the Commission, that fair-minded persons with the same facts before them could not have reached the same conclusions. Indeed, there is no suggestion that appellant’s testimony is not credible, and the opinion outlines appellant’s severe and ongoing medical problems. Further, Dr. Moore, appellant’s treating physician, did not believe appellant capable of returning to work, unless possibly in sedentary activities, but “certainly medication will be required” and only on a trial basis. Moreover, the evidence is that appellant needs continuing pain medication, which is ineffective in giving her long-term relief and which impairs her ability to think. We are not unmindful of Dr. Rutherford’s opinion that appellant is able to return to work and that conflicts in the medical evidence are a question of fact for the Commission. When the Commission chooses to accept the testimony of one physician over another in such cases, we are powerless to reverse the decision. Henson v. Club Prods., 22 Ark. App. 136, 736 S.W.2d 290 (1987). However, we note that the ALJ’s opinion is silent in regard to any findings of credibility and fails to state that it accepts Dr. Rutherford’s opinion over that of Dr. Moore. Finally, we think it significant that the ALJ’s opinion states that appellant has performed some employment which is not constant in its demands on the claimant’s time, but ivhich is not full-time and is not widely available with other employers. This language substantially tracks the language required for a finding of total disability under the odd-lot doctrine.
Considering appellant’s obvious physical impairment, work experience, and medical evidence, we hold that appellant made a prima facie case that she was totally and permanently disabled as a result of her five surgeries necessitated by her compensable injury, and the burden shifted to appellee to show that work is readily and consistently available within appellant’s capabilities. Appellee did not meet this burden, and indeed the law judge recognized that any work appellant performed was not full-time and not readily available with other employers. The Commission should have awarded appellant permanent and total disability benefits; therefore, we reverse and remand for an award of benefits.
On cross-appeal, ADH and the Public Employee Claims Division argue that the Commission erred: (1) in finding that appellant was entitled to an additional fifty-five percent wage-loss disability; (2) in finding that appellant did not receive a bona fide offer of employment from ADH; and (3) in finding that SIF had no liability. Because of the view we take of this case, we do not address cross-appellants’ first argument.
In regard to cross-appellants’ argument that the Commission erred in finding that appellant did not receive a bona fi.de offer of employment from ADH, we simply note that the Commission found that the preponderance of the evidence fails to show that appellant received a bona fide offer of employment at wages equal to or greater than her average weekly wage at the time of the injury. Appellant testified that she currently works for the health department part-time and earns about $100.00 per month. She also testified that no one with the health department has offered her a job back at full pay since the injury in 1991, and after she used up all her “comp” time, vacation time, and sick leave, she was asked to resign. ADH offered no testimony to the contrary, and under the circumstances we cannot say there is no substantial evidence to support the Commission’s finding on this matter.
Cross-appellants also argue that the Commission erred in finding that SIF had no liability in this case. The test that is used to determine whether SIF has liability for compensating an injured worker was set out in Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 5, 746 S.W.2d 539, 541 (1988), as follows:
First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status. [Emphasis in original.]
Appellant was diagnosed in 1986 with Sjogren’s syndrome, which usually affects her eyes and salivary glands, and has been taking medication for this condition since that time. Prior to the 1991 accident, appellant never missed a day’s work due to this condition. Appellant testified that she was not limited in any way from her Sjogren’s disease before her 1991 injury, and that it only caused her jaw to swell, and her salivary glands and tear ducts to dry out.
On April 29, 1997, Dr. Robert Cheek wrote that he did not believe appellant’s Sjogren’s syndrome is either a cause or contributing factor to her present physical disability which has been present since her initial back injury. Dr. Eleanor Lipsmeyer, a rheumatologist who treated appellant’s Sjogren’s syndrome, testified by deposition on September 24, 1997, that Sjogren’s does not interfere with one’s ability to work, and she does not think that it interfered with appellant’s functioning in any way. She agreed with Dr. Cheek’s assessment that appellant’s Sjogren’s syndrome is neither a cause nor a contributing factor to appellant’s present disability. While she agreed with Dr. Cheek’s assessment that five percent of appellant’s current disability is due to Sjogren’s disease, she said that refers only to the swollen glands, dry eyes and mouth, and pain in her hands. Dr. Lipsmeyer testified further that there is no evidence that Sjo-gren’s has affected appellant’s central nervous system.
The ALJ found that the record failed to show that there was a combination of the effects of appellant’s compensable injury with any prior disability or impairment to yield disability greater than that arising from the compensable injury alone. This finding is supported by substantial evidence, and the Commission did not err when it found SIF has no liability in this case.
Reversed and remanded on direct appeal.
Robbins, C.J., Bird, Neal, and Stroud, JJ., agree..
Hays, S.J., Jennings, Pittman, and Roaf, JJ., dissent.
Affirmed on cross-appeal.
Robbins, C.J., Hays, S.J., Bird, Neal, Stroud, Jennings, Pittman, and Roaf, JJ., agree.
Thickening and adhesions of the leptomeninges in the brain or spinal cord resulting from previous meningitis, other disease processes, or trauma. Sloan-Dorland Annotated Medical-Legal Dictionary 48 (1987).
The bundle of spinal nerve roots arising from the lumbrosacral enlargement and medullary cone and running through the lumbar cistern within the vertebral canal below the first lumbar vertebra; it comprises the roots of all the spinal nerves below the first lumbar. PDR Medical Dictionary (1st ed. 1995). | [
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Donald L. Corbin, Judge.
Appellant David A. Weavers was denied benefits under Section 5 (b) (1) of the Employment Security Act, Ark. Stat. Ann. § 81-1106 (b) (1) (1976). Until December 9, 1979, Mr. Weavers was employed as a maintenance worker by Hilton Inn in Little Rock, Arkansas. Mr. Weavers had a history of alcoholism, a condition known to his employer at the time he was hired.
On the morning of December 9, 1979, the appellant telephoned his employer to report that he was ill and would not be at work that day. That evening, well after working hours, he was arrested near his home, charged with public intoxication, and being unable to make bail, was jailed. Consequently, he failed to report to work the next morning, December 10th, but was permitted to call his employer at approximately 2:00 that afternoon at which time he was dismissed.
Appellant raises, three issues on appeal. Mr. Weavers alleges that since he was unable to obtain his release from jail because of his indigency, he should not be denied unemployment benefits. Appellant cites Tate v. Short, 401 U.S. 395 (1971) and Kaylor v. Department of Human Resources, 32 Cal. App. 3d 732, 108 Cal. Rptr. 267 (1973) as authority for the proposition that a denial of unemployment benefits to an individual unable to report to work because of his inability to pay a bail bond constitutes a denial of equal protection. While appellant’s argument is novel, it has no application here. In the case at bar, the issue is one of misconduct, or more specifically recurring absences, after warnings and without advance notice, and intoxication which rendered the claimant incapable of performing his job. Additionally, the record does not show that the appellant’s inability to post bond was due to indigency.
As his second argument, appellant alleged that an employee unable to report to work because he was incarcerated for an offense unrelated to his employment cannot be disqualified from receiving unemployment benefits.
The Board of Review affirmed the decision of the Appeals Tribunal which held that:
[T]he claimant was discharged from his last employment for misconduct in connection therewith. He was absent from work under circumstances which strongly suggest that he was intoxicated. This was not a situation that was beyond his reasonable control and it must be held that his absences were conduct against the best interest and welfare of the employer.
Mr. Weavers’ actions caused him to be absent from work when he was needed and expected by the employer. His recurring, unexcused absences without advance notice hampered the operation of the employer’s business. “[A]n employer generally has neither an affirmative duty ... nor is required to tolerate a mode of conduct which has the effect of reducing the efficiency of the employer’s operation .... ” Coker v. Daniels, 267 Ark. 1000, 593 S.W. 2d 59 (Ark. App. 1980). The employer had a right to expect the employee to report to work on time on his scheduled work days. His repeated disregard for the employer’s interests justified his discharge.
Finally, appellant alleges that there is no substantial evidence to support the referee’s findings of intoxication and of prior warnings.
In Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978), the court stated:
In appellate review under Ark. Stat. Ann. § 81-1107 (d) (7), making findings of the Board of Review, as to the facts, conclusive, if supported by evidence and in the absence of fraud, and confining judicial review to questions of law, we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party, if there is any rational basis for the board’s findings based on substantial evidence.
In the case at bar, the Board of Review found that claimant was discharged from his employment for misconduct. His supervisor testified that his absences hampered the operations of the maintenance department. Appellant admitted that he had previously been warned about his conduct.
We find there is substantial evidence to support the decision of the Board of Review.
Affirmed.
Glaze, J., not participating. | [
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Robert J. Gladwin, Judge.
Appellant Edward Williams appeals the June 21,2006 decision of the Arkansas Workers’ Compensation Commission (Commission) finding that he is estopped under the election-of-remedies doctrine from pursuing a claim under Arkansas workers’ compensation law against appellees Johnson Custom Homes and Virginia Surety Company, and further, that the constitutional issues raised by him are without merit. Appellant argues on appeal that the Commission has jurisdiction over this claim and that his voluntary acceptance of benefits under the laws of Ohio does not constitute an election of remedies or prevent him from pursuing a claim under Arkansas workers’ compensation law. Further, appellant claims that appellees attempted to improperly and in bad faith avoid liability under Arkansas law by coercing him into signing an agreement to select the state of Ohio as the state of exclusive remedy. Finally, appellant argues that the evidence he submitted establishes that the Executive Branch of the State of Arkansas and private interests have exerted pressure on workers’ compensation administrative law judges (ALJs) and Commissioners, which has infringed upon their decisional independence and resulted in actual bias and the appearance of bias in the decisions of the ALJs and Commissioners. We affirm the decision of the Commission.
Appellant worked as a builder and was hired by Steve Johnson of Johnson Custom Homes in January 2002. Appellant believed he was employed by Steve Johnson. However, appellant admits to signing a W-4 tax-withholding form in early 2004 and other forms relating to his employment showing that Paysource was his employer. The forms specified that any work-related injury would be brought under the exclusive jurisdiction of the Ohio Bureau of Workers’ Compensation. Appellant signed and returned these documents after being given time to review them. Appellant’s paychecks came from Paysource.
On April 14, 2004, appellant fell from scaffolding while on the job. He injured his wrist and ankle, and he was placed in a leg cast after he sought emergency treatment. Appellant claims that his employer told him that his medical bills would be paid and treatment would be provided. He began receiving workers’ compensation benefits from Ohio, but only after he made several telephone calls and provided forms to the Ohio Bureau by facsimile. He testified that he always talked to a certain woman in Ohio, Kristin, whenever he had a question regarding his coverage. When his doctor encouraged him to add his back and left knee to his workers’ compensation claim, the employer denied coverage, and after a hearing in which appellant did not participate, the Ohio Bureau denied coverage. Appellant did not appeal that decision. He claims he did not know that he was required to travel to Ohio for hearings. He admits to having an attorney ready to represent him in Ohio.
On August 24, 2004, four months after appellant’s injury, a Cease and Desist Order was filed by Mike Pickens, the former Insurance Commissioner for the State of Arkansas, wherein he found that Paysource had engaged in “illegal activities.” Pickens found that Paysource was not licensed as a professional employer organization in violation of Arkansas Code Annotated section 23-92-315(20) (repealed July 16, 2003) and Arkansas Code Annotated section 23-92-404(a) (effective July 16, 2003); that Pay-source was in arrears in payment of unemployment taxes; and that for at least one of its Arkansas clients, Paysource had not obtained workers’ compensation coverage from an insurance carrier licensed in Arkansas. Paysource was ordered to desist the writing of new employee leasing activities in this state, and to cease and desist all marketing activities in the State of Arkansas.
Appellant filed a claim with the Arkansas Commission asserting his entitlement to benefits as a result of the on-the-job injury. The parties stipulated that appellant’s injuries would be compensable under Arkansas workers’ compensation law. The ALJ determined that appellant was not estopped under the election-of-remedies doctrine from pursuing a claim under Arkansas workers’ compensation law. Because appellant received what he was seeking from the ALJ, the ALJ did not address appellant’s constitutional-law arguments.
On appeal, the Commission reversed the ALJ’s decision, finding that appellant made an election of remedies by knowingly receiving benefits pursuant to the workers’ compensation laws of the State of Ohio. Further, the Commission determined that all of appellant’s constitutional arguments raised by appellant’s attorney had been addressed in Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 250 S.W.3d 263 (2007), Plummer v. Wal-Mart Stores, Inc., Workers’ Compensation Commission F209057 (Oct. 10, 2005), Edwards v. Galloway Sand & Gravel, Workers’ Compensation Commission F109737 (Oct. 11, 2005), and Bland v. Baxter Regional Medical Center, Workers’ Compensation Commission F204378 (Aug. 16, 2005). The Commission found that the constitutional arguments were without merit and dismissed them. This appeal follows.
In appeals involving claims for workers’ compensation, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. See Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id. 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. Dorris v. Townsends of Ark., Inc., 93 Ark. App. 208, 218 S.W.3d 351 (2005).
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Patterson v. Ark. Dep’t of Health, 343 Ark. 255, 33 S.W.3d 151 (2000). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. 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 that it deems worthy of belief. Id. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005). As our law currently stands, the Commission hears workers’ compensation claims de novo on the basis of the record before the ALJ pursuant to Ark. Code Ann. § ll-9-704(c)(2) (Repl. 2002), and this court has stated that we defer to the Commission’s authority to disregard the testimony of any witness, even a claimant, as not credible. See Bray v. Int'l Wire Group, 95 Ark. App. 206, 235 S.W.3d 548 (2006).
A state’s legitimate interest
All states having a legitimate interest in an injury have the right to apply their own law, either separately, simultaneously, or successively, to the same injury. Missouri City Stone, Inc. v. Peters, 257 Ark. 917, 521 S.W.2d 58 (1975); Robinson v. Ed Williams Constr. Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992). The voluntary payment of compensation under the laws of one state, which is accepted by the appellant, does not affect the appellant’s statutory right to an award of compensation in another state unless the laws of that state prohibit such a claim. Missouri City Stone, supra. This is true, although there can be no double recovery; only the difference by which the second award is greater than the first may be recovered. Id.
Appellant contends that Arkansas is the only state with a legitimate interest in the injury he sustained. Appellant claims that Ohio’s only connection is the sham employment relationship that appellees contend exists between appellant and Paysource. Appellant argues that he has no relationship with Paysource whatsoever. He argues that Steve Johnson and Paysource entered into a contractual relationship that does not involve appellant, and that they did this without his knowledge and with the intent of avoiding the laws of this state.
Appellant argues that even though he accepted benefits from Ohio, he is not prevented from pursuing a claim here. He cites Missouri City Stone, supra, stating that payment of benefits from one state does not bar him from asserting a subsequent claim under Arkansas workers’ compensation law. In Missouri City Stone, the claimant was working in Oklahoma where he sustained injuries that included a crushed face and severed spine. He received some benefits from Oklahoma, but later filed a claim in Arkansas because the benefits were higher under Arkansas workers’ compensation. Appellant argues that, like the instant case, this state in Missouri City Stone had a legitimate interest in the welfare of its citizens and found that the claimant was entitled to pursue benefits under Arkansas workers’ compensation law. However, in the case at hand, appellant signed an agreement entitled “Agreement to Select the State of Ohio as the State of Exclusive Remedy,” wherein it states that his rights under the laws of the State of Ohio shall be the exclusive remedy against the employer on account of injury. Missouri City Stone does not address a contractual agreement regarding exclusive remedies, and therefore, we hold that it can be distinguished from the instant case.
Election of remedies
Appellant admits that jurisdiction is properly denied when an appellant makes a previous election of remedies by actively initiating proceedings or knowingly receiving benefits pursuant to the laws of another state. Biddle v. Smith & Campbell, Inc., 28 Ark. App. 46, 773 S.W.2d 840 (1989); see also, Houston Contracting Co. v. Young, 267 Ark. 322, 590 S.W.2d 653 (1979). In Biddle, this court held that the claimant therein had elected her remedy by knowingly receiving benefits pursuant to Louisiana workers’ compensation law based upon evidence that appellant received her benefit checks from Louisiana in the mail; the employer’s office manager testified that she telephoned the claimant after the injury to get information to file the report in Louisiana, and that she told the claimant she was doing so; and a rehabilitation worker from Louisiana had visited the claimant in her home on more than one occasion.
Appellant contends that this court has also found that no election of remedies should be found to bar a claim if the employer or insurance carrier improperly or in bad faith channeled the claim into the other state. Biddle, supra. Appellant herein tries to distin guish his case from the facts in Biddle by arguing that his claim was submitted to Ohio without his knowledge or any action on his part. He claims that he was later advised that his benefits were being paid under Ohio law, but not until benefits had been initiated. Further, he contends that after he learned that his benefits were paid from Ohio, he immediately took action to pursue his claim in the proper forum in Arkansas. He makes this same argument to distinguish Elliot v. Maverick Transportation, 87 Ark. App. 118, 189 S.W.3d 62 (2004), where this court held that the claimant was precluded from seeking benefits in Arkansas where he actively initiated and participated in proceedings in Illinois by signing papers sent to him by his Illinois counsel and agreeing to file his claim in Illinois, and he knowingly received benefits pursuant to the laws of Illinois.
Under Arkansas case law, the election-of-remedies doctrine is a clean, two-part test: (1) whether the appellant actively initiated a claim for benefits in the state; or (2) whether the appellant knowingly received benefits pursuant to that state’s law. Biddle, supra. Appellee Paysource argues that it was only after disagreeing with the decision of the Ohio Bureau that appellant tried to seek another bite at the apple to gain benefits from the State of Arkansas.
Paysource states that under International Paper Company v. Tidwell, 250 Ark. 623, 466 S.W.2d 488 (1971), the factors in determining jurisdiction include considering the place whose statute the parties expressly adopt by contract. Paysource claims it is undisputed that three other factors that are considered favor Arkansas as having jurisdiction: Appellant resides in Arkansas; appellant was injured in Arkansas; and appellant contracted to work in Arkansas. However, appellant also signed an agreement adopting the law and procedures of the State of Ohio respecting worker’s compensation injuries. He received documentation that Paysource was his employer, out of Ohio, and his paychecks came from Paysource’s Ohio account. He did not object to submitting claims for benefits under Ohio law or receiving those benefits. Under Elliot, supra, when two or more states have sufficient contacts for both to have jurisdiction, a dispositive factor is whether the appellant has elected his remedy in one of the states.
The substantial weight of the evidence supports the Commission’s finding that appellant elected his remedy in Ohio because he actively initiated a claim for benefits and then knowingly received benefits through Ohio. This court has stated, “A claimant should be held to his affirmative acts and the resulting consequences of making an election of remedies.” Biddle, 28 Ark. App. at 48, 773 S.W.2d at 841.
The instant case can be distinguished from Towery v. High Speed Electrical Company, 75 Ark. App. 167, 56 S.W.3d 391 (2001), where this court held that jurisdiction in Tennessee was not proper because the claimant had not actively initiated proceedings there, nor had he knowingly received any benefits under Tennessee law. In the instant case, appellant filed paperwork in Ohio and received benefits from Ohio. Appellant initiated conversations regarding coverage with “Kristin” in Ohio, and applied to have further injuries covered by the Ohio Bureau.
Finally, we hold that Elliot, supra, is controlling. In Elliot, the claimant was an Oklahoma resident employed with an Arkansas company, but was injured in Illinois. His employer filed a claim in Arkansas and paid benefits under Arkansas law. He later filed a claim in Oklahoma and received benefits there before his case was dismissed by the Oklahoma Commission for lack of jurisdiction. The claimant filed a claim in Illinois and subsequently received benefits under Illinois law. This court held that the claimant had elected his remedy in Illinois because he actively initiated proceedings in Illinois and knowingly received benefits under Oklahoma and Illinois law. Because he elected his remedy in Illinois, this court held that Arkansas did not have jurisdiction.
Likewise, the appellant herein actively pursued his claim in Ohio. He communicated with the owner and secretary at his employment about submitting documentation to the Ohio Bureau, using the fax machine at work to do so. He admitted to contacting a representative of Paysource and the Ohio Bureau about the status of his claim there. He contacted his claims representative in Ohio and figuratively “lit a fire” to get his benefits caught up and regular payments commenced. We hold that these actions are tantamount to initiating a claim for benefits in Ohio, and pursuant to Biddle, Tidwell, and Elliot, appellant made an election of his remedies in the state of Ohio.
Coercion and bad faith
Appellant argues that the document he was allegedly coerced into signing was nothing but an effort by appellees to avoid Arkansas workers’ compensation law. He claims that under Ark. Code Ann. § ll-9-108(a) (Repl. 2002), no agreement by an employee to waive his right to compensation shall be valid. Here, appellant argues that appellees tried to contractually relieve themselves of liability under Arkansas law by coercing him into signing the agreement to select Ohio as the state of exclusive remedy. He argues that by coercing him into signing the agreement, appellees in bad faith channeled the claim through the laws of Ohio instead of through Arkansas, which is the only state with a legitimate interest in this claim. He argues that he only received benefits from Ohio because appellees, in trying to avoid liability under Arkansas workers’ compensation law, illegally channeled the claim through the Ohio Bureau.
Paysource argues that it did not improperly channel claims through the State of Ohio. Appellant signed and dated the agreement wherein he adopted the law and procedures of the State of Ohio respecting the pursuit of compensation for work injuries. Paysource contends that appellant is presumed to have knowingly and purposefully entered into the employment contract and to have bound himself by the choice-of-forum and choice-of-law" provisions. Paysource argues that it is the court’s duty to construe the contract in accordance with the plain meaning of the language used. Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). Further, Paysource points out that the Arkansas Supreme Court has consistently held that choice-of-forum and choice-of-law clauses in contracts are binding. Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005).
Parties are presumed to have read and understood their contract. See McCaleb v. Nat’l Bank of Commerce, 25 Ark. App. 53, 752 S.W.2d 54 (1988). In Arkansas, the general rule is that if a person signs a document, he is bound under the law to know the contents of the document. Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (2002). One who signs a contract, after an opportunity to examine it, cannot be heard to say that he did not know what it contained. Dodson v. Abercrombie, 212 Ark. 918, 208 S.W.2d 433 (1948).
Appellant is literate, educated, and worked in management. He admitted that he held the agreement for several days before signing it and returning it to the secretary. He had plenty of time to ask questions before signing. We hold that even had appellant failed to read the document, he made an election of remedies in Ohio by taking affirmative steps to pursue benefits from the Ohio Bureau. Further, the question of bad faith is ultimately a fact question to be determined by the Commission. We hold that the Commission’s decision is supported by substantial evidence. In considering all the facts, including the Cease and Desist Order filed against Paysource, we are convinced that fair-minded persons with the same facts before them could have reached the conclusions arrived at by the Commission.
Constitutional-law arguments
Finally, appellant makes a number of constitutional arguments. Specifically, he alleges that the executive branch and private interests have exerted pressure on the Commission and the ALJs to the point where the pressure has infringed on the independence of the Commission and resulted in biased decisions. Appellant contends that such procedures violate the separation-of-powers doctrine established by the Constitution of the State of Arkansas and the due-process rights of the parties appearing before the Commission. However, we rejected these same arguments in Long v. Wal-Mart Stores, Inc., supra. There is no reason to review these arguments again.
Accordingly, we affirm the Commission’s decision, holding that appellant elected his remedy from the State of Ohio and that he was not coerced into doing so. We do not address the constitutional-law arguments made by appellant, as those arguments have been addressed by this court in recent prior opinions.
Affirmed.
Marshall, Vaught, and Heffley, JJ., agree.
Bird and Griffen, JJ., dissent. | [
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SAM Bird, Judge.
The issue in this divorce case is whether Diane Raymond effectively entered her appearance by signing a “Conditional Reconciliation Agreement.” We hold that the chancellor’s decision was not clearly erroneous, and we affirm.
The Raymonds were married in 1988. During the course of the marriage, Diane became an alcoholic and drug abuser. On December 30, 1996, Daniel Raymond filed for divorce. A decree of divorce was entered on May 12, 1997. No appeal was taken. On March 5, 1999, Diane filed a petition to set aside the divorce decree on the grounds that she was not served with process within 120 days as required by Ark. R. Civ. P. 4(i).
On March 11, 1999, Daniel filed a response to Diane’s petition, and on April 28, 1999, he filed a motion for summary judgment, contending that Diane had entered her appearance in the divorce action when she signed the conditional-reconciliation agreement. Summary judgment was granted to Daniel on July 7, 1999.
The record contains copies of a “Conditional Reconciliation Agreement on Abstinence from Alcoholic Beverages and Illegal Drugs,” filed on April 2, 1997; a “Property Settlement Agreement,” filed on May 12, 1997; and a “Waiver and Entry of Appearance,” filed May 12, 1997.
The conditional-reconciliation agreement is in the form of a legal pleading, styled, “In the Chancery Court of Washington County, Arkansas,” bearing the names of Daniel and Diane, identified as “Plaintiff’ and “Defendant,” respectively, and a docket number. It was signed and dated by Diane on March 6, 1997. Significant portions of the reconciliation agreement state:
C. As a result of disputes and unhappy differences between the parties, they separated on or about October 11, 1996, and had agreed to an immediate separation.
D. In order to insure the full information and advice of both husband and wife, each has had the opportunity to be represented by independent legal counsel in connection with the negotiations for and drafting of this agreement in consideration of the respective rights, duties and obligations of the parties.
E. This Post-Nuptial Agreement will shortly be filed by Daniel A. Raymond in the Chancery Court of Washington County, Arkansas, as an attachment to the Complaint for Divorce.
[T]he parties agree as follows:
2. Should the wife fail in her program of abstinence and use alcohol during the six month trial reconciliation then she agrees to accept a divorce and leave the house with her car, her personal belongings, and $20,000, and will not make claims to any and all real and personal properties, whether marital or nonmarital.
3. Further, the wife ratifies the previous deeds and transfer of all her right, title and interest, including but not limited to the right of dower and curtesy, if any, in and to certain real and personal property identified as Exhibits B, C, D, and E, and incorporated by reference herein.
Wife agrees to execute any and all documents necessary for transfer of property rights called for should the period of abstinence be breached during the time periods set forth in this agreement, and that this is a ratification of the agreement dated October 24, 1996, marked as Exhibit A, and incorporated by^ reference herein.
(Emphasis added.)
The “Property Settlement Agreement,” is styled as a legal pleading in the same manner as the conditional-reconciliation agreement, bears the notarized signatures of both Daniel and Diane Raymond, and is dated May 8, 1997. It divided the parties’ possessions, including the real property, automobiles, personal effects, bank accounts and investment plans, and debts, and it provided for the execution of documents. It contained the following paragraphs of significance:
(L) VOLUNTARY AGREEMENT: This agreement is made and entered into freely and voluntarily by both parties, each having had counsel and advice of his or her own attorney, or having had the opportunity to obtain such advice, and being free from any duress or influence on the part of the other and having full disclosure of the assets and income of the other.
(M) BINDING EFFECT: This agreement shall be binding upon the parties and their respective heirs, executors, administrators, and assigns.
WHEREAS, this is the entire and complete agreement that settles any and all matters of real and personal property between the parties.
The “Waiver and Entry of Appearance,” also styled as a legal pleading, was signed by Diane and filed May 12, 1997. It provides, "The undersigned hereby acknowledges receipt of a copy of the property Settlement and Decree of Divorce on May 7, 1997, and. hereby waive [sic] my right to appear and consents that the same may be heard and decided without further notice to said undersigned. ” (Emphasis added.)
The chancellor granted Daniel’s motion for summary judgment and denied Diane’s motion to set aside the divorce decree. His order stated:
This Court specifically finds that Paragraph E of this [Conditional Reconciliation] Agreement stated that, “this post-nuptial agreement will shortly be filed by Daniel A. Raymond in Chancery Court in Washington County, Arkansas as an attachment to the Complaint For Divorce.” The Agreement further provided in Paragraph 1 on Page 3 that, “should the program of alcohol rehabilitation be successful and the wife abstains from the use of alcohol for the six month period then the husband agrees to dismiss the pending Divorce Complaint in Washington County Chancery Court.” This Court specifically finds that the Defendant’s signature on said Agreement constituted an entry of appearance in this cause and that by signing it the Defendant submitted herself to the jurisdiction of this Court. (Emphasis added.)
The chancellor’s order also stated that Diane’s entry of appearance was timely filed within the 120 days specified by Rule 4(i) of the Arkansas Rules of Civil Procedure.
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Ark. R. Civ. P. 52(a); Blocker v. Blocker, 57 Ark. App. 218, 944 S.W.2d 551 (1997); Roberts v. Feltman, 55 Ark. App. 142, 932 S.W.2d 781 (1996); Elerson v. Elerson, 6 Ark. App. 255, 640 S.W.2d 460 (1982). We cannot say that the chancellor’s-finding is clearly against a preponderance of the evidence.
On appeal, Diane argues that because she was not formally served with summons within 120 days of the filing of the complaint for divorce, the divorce decree entered was void. She contends that the chancellor erred in finding that her signature on the reconciliation agreement constituted an entry of appearance.
Any action of a defendant that amounts to an intention to enter his appearance in court is a voluntary appearance, which may be by formal writing or informal parol action but, in either case, if it is manifestly the intention by the formal writing to enter his appearance, he will be held bound by his act. Kirk v. Bonner, 186 Ark. 1063, 57 S.W.2d 802 (1933). In Robinson v. Bossinger, 195 Ark. 445, 112 S.W.2d 637 (1938), the court referred to Spratley v. Louisiana & Arkansas Ry. Co., 77 Ark. 412, 95 S.W. 776 (1906), and specifically stated that it was not overruling the following statement:
There is no doubt but that where a party, who has not been served with summons, answers, consents to a continuance, goes to trial, takes an appeal, or does any other substantial act in a cause, such party by such act will be deemed to have entered his appearance. But this rule of practice does not apply in cases where the party on the threshold objects to the jurisdiction of his person, and maintains his objection in every pleading he may thereafter file in the case. Where he thus preserves his protest, he cannot be said to have waived his objection to the jurisdiction of his person.
Robinson v. Bossinger, 195 Ark. at 451, 112 S.W.2d at 640. Although these cases were decided long before the Arkansas Rules of Civil Procedure were adopted, the rules do not conflict with this longstanding case law.
We are not unmindful of Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), in which our supreme court held that Farm Bureau had not waived its rights and entered its appearance because it had filed an answer. Farm Bureau had filed an answer in the case, but had specifically reserved the objection to the jurisdiction of the person and insufficiency of service of process in its original responsive pleading, its answer. In the case at bar, at no time during the pendency of the divorce action did Diane object to the jurisdiction of the person or court because of insufficiency of service of process, notwithstanding that she knew of its pendency and signed several documents obviously intended as pleadings in the case.
We agree with appellee that it is the law of Arkansas that one’s mere knowledge of the pendency of a lawsuit does not validate defective service of process. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). However, we do not find Tucker to be applicable to the case at bar. In Tucker the defendant had been served with process by the use of a summons form that was defective. Thereafter, the defendant took no action in the suit, and a default judgment was entered against him. The supreme court set aside the default judgment based on the defective form of the summons.
The dissenting opinion cites Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996), for the proposition that “a summons is necessary to satisfy due process requirements.” This statement is, no doubt, an accurate statement of the law, but its applicability must be considered within the context of the Thompson case. In that case, Thompson’s attorney undertook to institute an action against Potlatch in chancery court by merely filing a complaint that contained a certificate of service signed by Thompson’s attorney stating that he had hand-delivered a copy of the complaint to Potlatch’s attorney. Twenty eight days later, Potlatch filed a motion to dismiss Thompson’s complaint for failure to state facts upon which relief could be granted, and Thompson responded with a motion for default judgment, claiming that Potlatch had missed the twenty-day deadline for filing a responsive pleading. The chancellor denied Thompson’s motion for default judgment on grounds that no complaint and summons were served on Podatch or any person authorized to accept service for it.
In affirming the chancellor, the supreme court held that a default judgment can not be entered upon defective service of process, stating that “since the appellants failed to issue an appropriate summons, the chancellor was correct in denying their motion to strike and motion for a default judgment.” Thompson, 326 Ark. at 249, 930 S.W.2d at 358.
Obviously the issue in Thompson bears no similarity to the issue in the case at bar. The issue before us is whether the Washington County Chancery Court acquired jurisdiction over the person of Diane Raymond by her voluntary execution of the reconciliation agreement in the divorce case. In Thompson, Potlatch did not contend that it had not entered its appearance by filing a motion to dismiss. To the contrary, Potlatch obviously entered its appearance for the purpose of challenging the sufficiency of Thompson’s complaint, and it did not question that the court acquired jurisdiction over it. The court obviously deemed itself to have jurisdiction over both Thompson and Potlatch when it heard their motions and entered its order denying Thompson’s motion for default judgment. If anything, the Thompson case supports the principle that jurisdiction is acquired over a party who voluntarily enters his appearance in an action, even in the absence of service of process.
In the case at bar, Diane took a substantial step in the divorce suit against her by signing the reconciliation agreement, thereby delaying any further proceedings in the divorce action pending the attempted reconciliation. Unlike the defendant in Farm Bureau Mutual Mut. Ins. Co. v. Campbell, supra, Diane made no attempt to reserve an objection to the court’s jurisdiction over her. Having knowingly entered her appearance without reserving her objection to the court’s jurisdiction over her, she submitted herself to the jurisdiction of the court. The language in the reconciliation agreement is unequivocal; it was an agreement to delay the pending divorce case while the parties attempted a reconciliation. Unfortunately, the attempt failed, but that fact does not alter the effect of Diane’s signature on the document.
Additionally, Diane signed a Waiver and Entry of Appearance, dated May 7, 1997, and it was filed of record on May 12, 1997. This is additional evidence that she was fully cognizant of the divorce action and that it was nearing a judgment. The execution of the Waiver and Entry of Appearance belies any argument on her part that she had not understood or known the purpose of the reconciliation agreement or that it was related to a pending divorce action against her. The documents in the record bearing the signature of Diane clearly establish that she had full knowledge of the pending divorce action, and her argument that she signed those documents without knowing a divorce had been filed is disingenuous.
For the reasons stated, we find the chancellor’s action in refusing to set aside the divorce decree entered more than two years earlier was not clearly against the preponderance of the evidence.
Affirmed.
Robbins, C.J., Stroud, and Neal, JJ., agree.
KOONCE and Griffen, JJ., dissent.
The chancellor also held that the twenty-day deadline for filing responsive pleadings did not apply to foreign corporations doing business in Arkansas, but our supreme court found it unnecessary to consider that issue because of the lack of effective service of process. | [
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JOSEPHINE Linker Hart, Judge.
Appellant, Mashombe Shawn Brock, appeals from the circuit court’s revocation of his suspended sentences and its imposition of four years’ imprisonment based on the State’s allegation that, in violation of the conditions of his suspended sentences, he committed the crimes of possession of methamphetamine with the intent to deliver and second-degree battery. Citing Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (1989)(relying on federal constitutional principles), and Ark. Code Ann. § 5-4-310(c)(l) (Repl. 1997)(according to Goforth, the codification of those principles), he argues on appeal that his right to confront witnesses against him was violated when a witness for the State was permitted to testify that he had received information from a confidential informant that appellant was selling methamphetamine. Because the testimony was not admitted to prove the truth of the matter asserted, we conclude there was no violation of his right to confront witnesses and affirm.
At the revocation hearing, Corporal Shannon Binyon, a narcotics detective with the Fort Smith Police Department, testified that he contacted appellant after he was told by a reliable confidential informant that appellant was selling methamphetamine “at the Total Store at 19th and Grand” and was in possession of “a green organizer” containing “several quarter papers of methamphetamine.” Appellant objected to this testimony as hearsay and argued that its introduction denied him the right to confront witnesses. The trial court overruled the objection. Binyon further testified that he and other officers contacted appellant at the store and found him in possession of a green organizer containing methamphetamine. The methamphetamine was packaged in seven individually sealed plastic bags. Binyon testified that the methamphetamine was packaged for resale as “quarter papers to sell for $25.00 each.”
In addressing appellant’s claim that he was denied his right to confront witnesses when Binyon testified regarding what he was told by the confidential informant, we note that the United States Supreme Court has held that “admission of non-hearsay ‘raises no Confrontation Clause concerns.’ ” United States v. Inadi, 475 U.S. 387, 398 n.11 (1986)(citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). “Cross-examination regarding such statements would contribute nothing to Confrontation Clause interests.” Id. Given that the Confrontation Clause is not violated by the introduction of non-hearsay testimony, we must determine whether the challenged testimony was hearsay.
“ ‘Hearsay’ is 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.” Ark. R. Evid. 801(c) (1999). An out-of-court statement is not hearsay if it is offered, not for the truth of the matter asserted, but to show the basis for the witness’s action. See, e.g., Sanford v. State, 331 Ark. 334, 349-50, 962 S.W.2d 335, 343 (1998). Here, the challenged testimony was not introduced for the truth of the matter asserted, that is, that appellant was selling methamphetamine at that particular location, but instead to show why Binyon contacted appellant. We note that rather than alleging appellant was delivering methamphetamine, the State alleged in its petition to revoke that appellant was in possession of methamphetamine with the intent to deliver. The challenged testimony, we conclude, was not hearsay.
Because the challenged testimony was not hearsay, cross-examination of the confidential informant would have contributed little to appellant’s interest in confronting witnesses against him. Thus, we conclude that appellant’s right, based either on state or federal grounds, to confront witnesses against him, was not violated by the introduction of non-hearsay testimony at the revocation hearing. Given this, the court did not commit error by allowing introduction of the challenged testimony.
Furthermore, denial of an accused’s right to confront witnesses may be harmless error. See Caswell v. State, 63 Ark. App. 59, 64-65, 973 S.W.2d 832, 835 (1998). Because the State had to prove only one violation to establish that appellant violated his suspended sentence, see Ramsey v. State, 60 Ark. App. 206, 209, 959 S.W.2d 765, 767 (1998), and because appellant did not challenge the sufficiency of the evidence to support the State’s separate allegation that appellant committed the crime of second-degree battery — a violation unrelated to the information garnered from the confidential informant — we could also affirm the revocation of his suspended sentence on the basis that any error committed was harmless.
Affirmed.
Jennings and Roaf, JJ., agree. | [
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Lawson Cloninger, Judge.
Appellant, B. F. Bowman, brings this appeal from a jury verdict for appellees, Tommy C. McFarlin and Peggy J. McFarlin, in the amount of $10,000 as damages for breach of contract. Appellant constructed a house for appellees on a lot owned by appellees, and in their complaint appellees alleged damages as a result of defects in construction, unauthorized changes in the agreement, and items not properly installed.
For reversal appellant urges that the trial court committed error by (1) permitting appellee Tommy C. McFarlin to testify as to the value of his services in correcting the alleged defects, (2) by permitting the testimony of expert witness Ellis Wade Ashe because the witness did not examine the property and his testimony was not in the hypothetical, and (3) by permitting expert witness James A. Bennett to testify when the witness had no reasonable and fair basis for making valuation.
We find that the trial court was correct in its rulings, and we affirm.
Appellees alleged in their complaint that appellant had breached their written contract in the following ways-.
(1) The contract provided for the construction of a freestanding garage in the back of the house connected by a breezeway, but the defendant constructed a carport alongside the house with ño breezeway.
(2) The contract provided for the construction of three rows of piers underneath the house for support, but the defendant constructed two rows.
(3) The contract provided for the installation of dual heating and air conditioning units but defendant only installed one unit.
(4) The contract provided for a front porch to be ten feet deep, but the defendant constructed the porch six feet deep.
(5) The contract provided for no landscaping, but the defendant pushed down forty trees that were supposed to have been left standing and removed the topsoil on the front of the lot.
(6) The contract provided for a construction cost of @33,000 but the plaintiffs have paid $2,141.40 in addition to the contract price for items that should have been covered by the contract price.
(7) The contract provided for many other items that were not installed or were installed improperly.
Appellee Tommy McFarlin has been an exchange repair technician for a telephone company for twenty-one years, has been an owner of several houses, and had one of his previous houses built. He was permitted to testify that he logged daily the time he and his son worked on the property to correct defects that he alleged were caused by appellant’s breach; that he worked a total of 174.5 hours, which he felt was worth $7.50 per hour, and his son worked 39-5 hours, which he felt was worth $3.00 per hour, for a total of $1,427.25. He testified in detail that he and his son cleared debris, tried to level floors, installed insulation, installed drains, and placed temporary supports under the house. Appellant on this appeal objects to Mr. McFarlin’s testimony on the grounds that he was not qualified as an expert in the areas in which he was working and that he had no knowledge as to the value of the fees customarily charged. In the trial court, however, appellant objected only to the introduction of a sheet listing the work Mr. McFarlin and his son performed, showing the number of hours worked, and the wage alleged as fair, on the basis that it was of no value to the jury and irrelevant. The trial court properly placed the responsibility on the appellees for establishing to the jury’s satisfaction that the work done by the McFarlins was chargeable to the appellant.
We cannot say that there was error in the admission of the testimony of Mr. McFarlin. He was a homeowner, and as the Arkansas Supreme Court said in the case of Farmers Equipment Company v. Miller, 252 Ark. 1092, 482 S.W. 2d 805 (1972), we are unable to say that the trial court abused its discretion in admitting this testimony. The determination of whether a nonexpert witness has sufficient knowledge of the matter in question or has sufficient opportunity for observation to be qualified to state an opinion lies largely within the sound judicial discretion of the trial judge, and is not reviewable on appeal unless so clearly erroneous as to manifest abuse of discretion. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977). We find no manifest abuse of discretion.
Witness Ashe is in the landscaping and tree business, and he was permitted, as an expert, to give his opinion as to the replacement cost of the trees allegedly destroyed by appellant. He did not examine the site and his values were determined on the basis of Mr. McFarlin’s testimony in the case and upon information given him by Mr. McFarlin prior to this court appearance. Mr. Ashe was told by Mr. McFarlin that forty oak, pine and dogwood trees were destroyed, and that the oaks and pines measured between four inches and twelve inches in diameter. Mr. Ashe set his values on the basis of replacement trees four inches or less in diameter. Appellant urges that the proper measure of damages is the difference in the value of the land with and without the trees and in support of his view he cites a number of Arkansas cases. Kyle v. Zellner, 215 Ark. 349, 220 S.W. 2d 806 (1949); St. Louis I.M.&S. Railway Company v. Ayers, 67 Ark. 371, 55 S.W. 159 (1900); Causey v. Wolfe, 135 Ark. 9, 204 S.W. 977 (1918). The cases cited by appellant all deal with growing timber, and we are aware of no Arkansas case dealing with the proper measure of the damages for destruction of trees valued for their beauty and use as shade trees.
When a building contractor breaches his contract, two measures of damages are commonly used. The first measure, the “cost” rule, is the cost of repairing it where the work is defective. The second measure, the “value” rule, is the difference between the value as it is and the value promised. The choice between the two measures will depend on circumstances. The “cost” rule is generally preferred, if it is economically feasible in the circumstances, because it gives the landowner a money equivalent of what he bargained for by giving him the cost of getting the work properly done. Dobbs, Law of Remedies (1973), p. 897. The underlying purpose in awarding damages for breach of contract is to place the injured party in as good position as he would have been had the contract been performed. Rebsamen Companies, Inc. v. Arkansas State Hospital Employees Federal Credit Union, 258 Ark. 160, 522 S.W. 2d 845 (1975). In Carter v. Quick, 263 Ark. 202, 563 S.W. 2d 461 (1978), the Arkansas Supreme Court noted with approval the doctrine set out in 5 Corbin on Contracts (1964), § 1089, that the cost of curing defects should be the measure whether the breach of the contract is large or small and that it should be applied in every case, except where the actual curing of the defects would cause unreasonable economic waste. The Court further noted that this view is consistent with the result in the case of J. E. Hollingsworth and Company v. Leachville Special School District, 157 Ark. 430, 249 S.W. 24 (1923).
We hold in the instant case that the cost or replacement rule was properly applied by the trial court, for the reason that the appellees cannot place a sale value on their trees and that they are entitled to replacement. They testified that they bought the. specific lot upon which the house was built because they wanted a wooded setting, and they can be made whole only by replacement of the trees.
The trial court properly allowed witness Ashe to give his opinion on. the basis of information he obtained before the trial and information he gained from the testimony of other Witnesses during the trial. Questions calling for the opinion 6f an expert witness are not necessarily subject to objection because they are not in the hypothetical. Rule 703, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides that the facts or data in the particular case upon which an expert bases his opinion or inference, may be those percéived by or made known to him at or before the hearing. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979);
Witness James A..Bennett was qualified as an expert in appraising and inspecting residential houses. He was also the owner of, a construction company which had been inactive for two years, and appellees had requested that he make a bid on a portion of the repair work involving the landscaping and construction of a third pier to support the house. .He was permitted to testify as to his appraisal of expenses of repairs, and his estimate of the cost of repairs totaled 819,330. Mr. Bennett was not an engineer, and the trial court sustained objections to questions which called for expertise in the engineering field.
, We, find that there was a reasonable basis for the testimony of Mr. Bennett. He had inspected the property on three occasions, and although he relied on the appellees’ version of the contract provisions, the jury was given the ultimate responsibility of deciding the issue of damages. As an expert witness he based his opinion as to damages on the plans and special conditions submitted to him on defects and variances, which he observed on three separate inspections. Rule 703, Uniform Rules of Evidence, supra.
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BRANDON J. HARRISON, Judge
Jordan Shaw appeals the decision of the Arkansas Department of Human Services (DHS) to place his name on the Child Maltreatment Central Registry (the Registry). He argues that the agency's decision is not supported by substantial evidence and is arbitrary and capricious. We disagree and affirm.
On 3 March 2016, the child-abuse hotline received a report of suspected child maltreatment. The alleged victim was thirteen-year-old D.D., and the alleged offender was Shaw. Investigator Pamela Meeks with the Arkansas State Police Crimes Against Children Division (CACD) investigated the allegation, and based on her investigation, Meeks made a true finding of maltreatment, specifically sexual abuse. Shaw appealed to the Office of Appeals and Hearings (OAH) and requested an administrative hearing to determine whether a preponderance of the evidence existed to support the CACD's findings.
The administrative law judge (ALJ) conducted a hearing on 15 August 2016. D.D. testified that she was now fourteen years old and that she met Shaw through a friend in December 2015. She said that they first met "through the phone" and then met in person for the first time at her house. At that time, she was thirteen years old, and he was seventeen. D.D. testified that they "did sexual things" and later clarified that they had vaginal and oral sex. After Shaw turned eighteen, they had sex two more times; one encounter occurred on March 1. On that date, he sent her a text and asked if she wanted to skip school, and she agreed. Shaw picked her up from middle school, and they had sex in his car. D.D. then received a phone call from her mother, and Shaw dropped D.D. off at a gas station, where her stepfather picked her up. After returning to school, D.D. admitted that she had been with Shaw but did not admit to having sex with him. She later told her mother about having sex with Shaw, including the time that she and Shaw had sex at her house.
C.O., D.D.'s eleven-year-old younger brother, testified that he saw Shaw in his sister's room during Christmas break. C.O. said that it was around 11:00 a.m. and that his parents were at work. He said that his grandma had called to see if he and D.D. wanted something to eat, and when he went into D.D.'s room, he saw her and Shaw in bed without any clothes on. He said Shaw got out of bed, put his clothes on, and left. But when asked if the man seated at the defense table was the same person he had seen in his sister's room, C.O. responded, "No." He later added, "Well I didn't really see his face."
Mandy Owen, D.D.'s mother, testified that she dropped D.D. off at school on 1 March 2016, but a short time later received a phone call from the school telling her that D.D. was not there. Owen immediately called D.D.'s cell phone, but she did not answer. Owen said that D.D. finally answered a call from Owen's husband, who picked D.D. up at a gas station. D.D. was very defensive and initially would not tell Owen what was going on, but D.D. finally told her that Shaw had been picking her up from school and taking her to track practice. D.D. also told her mother that Shaw had picked her up that morning and that they had sex. Owen said she "had no idea any of it was going on until that day." She also described D.D. as "sneaky" and said that she was "very good at figuring out the WIFI password and getting on social media when she's not supposed to."
Mark Jelks, the White Hall High School principal, testified that Shaw was a senior in March 2016. Jelks said that he did not know if Shaw was at school on March 1 but that he was not marked absent. Jelks also said that Shaw presented a note from his grandmother on March 1 that read: "To Whom It May Concern, please excuse Jordan Shaw from being late from school due to inclimate [sic] weather." But on that same date Jelks talked to Shaw, who told him that "he had come to school late and was tired and stopped and took a nap or something." On cross-examination, Jelks said that Shaw was not absent on March 1 but that he was late getting to school. Jelks thought that Shaw had arrived "a little bit after nine." On redirect, however, Jelks identified the attendance record for March 1, which showed that Shaw was excused from first, second, and third periods, or until approximately 11:10 a.m. Upon questioning by the ALJ, Jelks clarified that based on the attendance record, Shaw "was probably not at school until sometime during third period."
Carla Thomas, a sexual-assault nurse examiner with the Pine Bluff Children's Advocacy Center, testified that she completed a sexual-assault examination on D.D. on 3 March 2016 and that the results were indicative of sexual assault. D.D. also told Thomas that she had sex with Shaw. On cross-examination, Thomas said that she completed a sexual-assault kit, including a combing of the vaginal area and a DNA swab, and that the kit had been picked up by the police.
In addition to this testimony, the ALJ received documentary evidence including summaries of interviews conducted by the police and the CACD investigator. One summary noted that Shaw was read his Miranda rights but refused to be interviewed by police on 3 March 2016. A summary of Meeks's interview with Officer Brian Todd stated:
On 4/11/16 at 3:47 p.m. Inv. Pamela Meeks spoke to Officer Brian Todd with White Hall PD. Off Todd stated that Jordan Shaw did speak with Officer Monk on 3/1/16. He states that they did not interview Jordan regarding the alleged incident with DD because it did not happen in their jurisdiction and he had not been Mirandized. Off Todd stated that Off Monk did advise Jordan that DD wanted her ID and keys back. He states that Jordan denied that he had been with DD and stated he did not know the girl and did not know what they were talking about. Off Todd stated that Jordan said he overslept and his grandma wrote him a note. Note: This is different from what Jordan told the principal (that he took a nap on the side of the road that morning and this was why he was late).
In a September 2016 order, the ALJ found that it was undisputed that on 1 March 2016, Shaw was eighteen years old, and D.D. was thirteen years old. The ALJ also found that D.D.'s testimony was corroborated by the medical findings consistent with sexual assault, that Shaw's absence from school for a portion of the day strengthened the plausibility of D.D.'s statement, and that "the investigative record lacks evidence that Shaw has ever denied that he had sex with D.D." Consequently, the ALJ found sufficient evidence "that Petitioner engaged in sexual conduct and sexual intercourse with D.D. when he was eighteen (18) years old and when she was thirteen (13) years old, and therefore was sexual abuse." So the ALJ ordered that Shaw's name be listed on the Registry. Shaw appealed this decision to the Jefferson County Circuit Court, which affirmed the agency's decision in May 2017. An appeal to this court followed.
DHS is an "agency" as defined by the Administrative Procedure Act. See Ark. Code Ann. § 25-15-202(2)(A) (Supp. 2017). Review of administrative agency decisions by both the circuit court and appellate court is limited in scope. Ark. Dep't of Human Servs. v. Bixler , 364 Ark. 292, 219 S.W.3d 125 (2005). The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency's findings. Id. This court reviews the administrative agency decision, not the circuit court's ruling. Id. The circuit court or appellate court may reverse the agency decision if it concludes
(h) [t]he substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency's statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h) (Repl. 2014).
Substantial evidence is valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support the agency decision. Ark. Prof'l Bail Bondsman v. Oudin , 348 Ark. 48, 69 S.W.3d 855 (2002). The challenging party must prove an absence of substantial evidence and must demonstrate that the proof before the administrative agency was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The question is not whether the evidence would have supported a contrary finding, but whether it supports the finding that was made. Id. This court may not simply substitute its judgment and discretion for that of the administrative agency. Bixler, supra. It is also the prerogative of the agency to believe or disbelieve the testimony of any witness and to decide what weight to give the evidence. Ark. State Police Comm'n v. Smith , 338 Ark. 354, 994 S.W.2d 456 (1999).
Shaw first argues that substantial evidence does not support the finding that he was the individual with whom D.D. had sex on 1 March 2016. He asserts: "C.O.'s testimony that Appellant was not the individual he saw in bed with D.D. eviscerates D.D.'s claim that Appellant was her sexual partner for the Christmas-break tryst and, by extension, eviscerates her claim that Appellant was her sexual partner on March 1, 2016." He also identifies other evidence that was not used to link him to D.D., such as phone records, social-media records, a description of his car by D.D., and the sexual-assault kit. And he cites discrepancies in what time he arrived at school and what time D.D. was picked up at the gas station as further proof that he was not with D.D. that morning. Shaw contends that fair-minded persons could not conclude that he was D.D.'s sexual partner on March 1.
Shaw also claims the ALJ's decision was arbitrary and capricious for two reasons. First, as part of his reasoning, the ALJ stated that "the investigative record lacks evidence that Shaw has ever denied that he had sex with D.D." Shaw contends this is incorrect and cites the statement given by Officer Brian Todd, which stated, "Jordan denied that he had been with DD and stated he did not know the girl and did not know what they were talking about." Second, the ALJ's decision made no mention of C.O.'s failure to identify Shaw as the man he saw in bed with D.D., "despite the fact that it completely discredited D.D.'s identification."
We hold that substantial evidence supports the agency's decision and that the decision is not arbitrary and capricious. Shaw has failed to prove the absence of substantial evidence or to demonstrate that the proof before the agency was so nearly undisputed that fair-minded persons could not reach its conclusion. Shaw is essentially asking us to reweigh the evidence and to give C.O.'s testimony more weight and credibility; but it is the prerogative of the agency to believe or disbelieve the testimony of any witness and to decide what weight to give the evidence. We therefore affirm the agency's decision to place Shaw on the Registry.
Affirmed.
Gruber, C.J., and Brown, J., agree. | [
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N. MARK KLAPPENBACH, Judge
This case is before us for a second time after we initially ordered rebriefing. Williams v. State , 2017 Ark. App. 663, 2017 WL 6046939. Jordan Williams was convicted by a jury in the Hempstead County Circuit Court of two counts of aggravated robbery, one count of aggravated residential burglary, one count of first-degree battery, two counts of second-degree battery, one count of interference with emergency communication, and one count of theft of property. He received an aggregate sentence of fifty years' imprisonment. On appeal, Williams argues that the circuit court erred in denying his motion for directed verdict, denying his motion to suppress, and denying his Batson challenge. We affirm.
Prior to trial, Williams filed a motion to suppress his confession made during a custodial interview. Detective Andrew Watson of the Hope Police Department testified at the suppression hearing that he informed Williams of his Miranda rights prior to the interview, and Williams initialed and signed the form indicating his understanding. The interview began around 10:50 a.m. Watson said that Williams was concerned about missing his college welding courses, and Williams initially said that he had no involvement in the incident and did not know the victims, Mary Stuckey and her adult son Jordan Stuckey. Watson asked Williams if he would participate in a voice-stress analysis to determine whether he was telling the truth and to clear his name, and Williams agreed to do it.
Detective Todd Lauterbach testified that he administered a computerized voice-stress-analysis examination, which he described as computer software that reads a person's voice for truth verification. Prior to administering the exam, Lauterbach again informed Williams of his Miranda rights, and Williams signed a waiver and agreement to submit to the voice-stress-analysis exam. Lauterbach testified that Williams gave deceptive answers to the questions "were you at Mary and Jordan Stuckey's house the night of the robbery?" and "did you rob Mary and Jordan Stuckey?"
After the exam, Lauterbach left the room for a few minutes and conferred with Watson before they both returned to question Williams. Williams ultimately told the detectives that he was contacted by a "homeboy" who told him that the victims were supposed to have around $6000 in cash and some marijuana. Williams said that his accomplice kicked in the door. He told the detectives that his job during the robbery was to take Mrs. Stuckey's phone and keep her from calling the police while his accomplice robbed Mrs. Stuckey's son. When Williams returned to the front of the house, his accomplice had the money and was trying to get drugs, and two or three shots were fired. Williams claimed that he had not known his accomplice had a gun. They then ran out of the house to a side street where a third accomplice was waiting in a black Nissan. A video recording of the interview was played for the court.
Williams argued that the fact that he was enrolled in a trade course indicated relative intellectual weakness. He claimed that the detectives improperly induced his confession by stating that he could go free after taking the voice-stress-analysis exam and by telling him it would be bad if the detective had to testify. He also argued that he should have been advised of his Miranda rights before being questioned after the voice-stress-analysis exam. The circuit court denied the motion to suppress upon finding that Williams waived his Miranda rights and confessed voluntarily.
At the jury trial, Mary Stuckey testified that she woke up on the night of September 3, 2015, to find a man standing over her. She said that he hit her on the head and face and grabbed her phone from the foot of the bed. Mary hit the intruder with a stick and ran out of her room. She was shot in the lower back as she ran out the front door. She then saw two men running away from her home. Jordan Stuckey testified that when he woke up that night he saw both intruders in the house, and one continued toward his mother's room. The other intruder demanded money from Jordan and pointed a gun at his head. Jordan said that he gave the intruder $900 and was then shot twice. He saw both intruders run away and get into a dark colored Maxima.
Sergeant Daniel Oller testified that he responded to the Stuckeys' home at approximately 2:50 a.m. He was told that the intruders had left in a dark colored Nissan Maxima, and he determined that the intruders entered the home by kicking in the locked door. Detective Watson testified about his interview with Williams in which he initially denied involvement but later admitted it. Watson testified that Williams provided specific facts of the crimes that were consistent with the facts provided by the victims, including each intruder's actions, the fact that the door had been kicked in, when the shots were fired, and the type of vehicle they fled in. The video of Williams's police interview, excluding the voice-stress analysis, was played for the jury.
Whitney Hall testified on Williams's behalf that on the night of the incident she got off work around 2:15 a.m. and spoke on the phone with Williams during her drive home. She said that Williams was at her home when she arrived around 3:10 a.m. Williams testified that he gave a false confession because he felt like the detective was belittling him and he thought the detective would help get him into drug rehabilitation. He said that the details he provided the detectives were things that he had heard from "the streets" and from a friend who had spoken to Jordan Stuckey's brother.
We first address Williams's challenge to the sufficiency of the evidence to support his convictions. In considering a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Gipson v. State , 2010 Ark. App. 820, 2010 WL 4982941. We affirm if the verdict is supported by substantial evidence. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Williams first argues that the evidence was insufficient because his confession should have been suppressed, and without his confession, there was no evidence identifying him or placing him at the home at the time of the robbery. However, when reviewing the sufficiency of the evidence supporting a conviction, this court considers all of the evidence introduced at trial, whether correctly or erroneously admitted, and disregards any alleged trial errors. Tennant v. State , 2015 Ark. App. 81, 2015 WL 585358. Thus, this argument is without merit.
Williams also claims that the evidence was insufficient because the State failed to corroborate his confession. A confession of a defendant, unless made in open court, does not warrant a conviction unless accompanied with other proof that the offense was committed. Ark. Code Ann. § 16-89-111(d)(1) (Supp. 2017). This requirement for other proof, sometimes referred to as the corpus delicti rule, mandates proof only that the offense occurred and nothing more. Molpus v. State , 2015 Ark. App. 452, 469 S.W.3d 374. Under the corpus delicti rule, the State must prove (1) the existence of an injury or harm constituting a crime and (2) that the injury or harm was caused by someone's criminal activity. Id. It is not necessary to establish any further connection between the crime and the particular defendant. Id. Here, it is clear that the requirement for other proof was met by the evidence offered by the State, including evidence that the Stuckeys' door was kicked in, they were robbed, and they were shot. This evidence established that the offenses occurred, and combined with Williams's confession, constitutes substantial evidence to support his convictions.
Williams next argues that the circuit court erred in denying his motion to suppress because several factors rendered his confession involuntary: improper inducements by the detectives, his relative intellectual weakness, and the failure to advise him of his Miranda rights a third time. Williams claims that the detectives induced his confession by promising him a phone call if he talked, promising to help him if he was honest, and telling him he could be released if he passed the voice-stress-analysis exam. He also claims that his confession was induced when the detectives badgered him about lying and told him bad things would happen if he did not tell the truth. We disagree and affirm the circuit court's decision.
After Williams was read his rights and agreed to talk to Detective Watson, Watson said in part that
I met you, before. I guess, a few months ago, if you remember that, or about a year ago. It may've even been longer than that. Uh, like I said, you were honest with me all during all that that went on. You know I was honest with you. Alright, you know how I work. I'll do anything I can to help you if I can and you're honest with me. Lie to me, I don't care what happens to you. Okay? You got a question, all you gotta do to ask me, and if I can help you, I'm gonna tell you I can, and if I can't I'm gonna be straight up with you....
Williams then said that he wanted to make a phone call, and Detective Watson said that "like I told you just a minute ago, when we get done talking, I'll make sure you get a phone call." Watson told Williams that he knew he was at the victims' home but was not the shooter. Williams denied any involvement, and Watson asked him if he would be willing to take a voice-stress test to clear his name. Watson told him that if he passed it, he would not hear from him anymore on this case. After the exam, the detectives told Williams that they knew he was lying, they had proof he was there, and he did not want the detectives to go to court to tell what happened.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Boyd v. State , 2016 Ark. App. 407, 500 S.W.3d 772. In cases involving a ruling on the voluntariness of a confession, this court makes an independent determination based upon the totality of the circumstances. Id. Any conflict in the testimony of different witnesses is for the circuit court to resolve. Brown v. State , 354 Ark. 30, 117 S.W.3d 598 (2003). In reviewing the circuit court's ruling, we will reverse only if it is clearly against the preponderance of the evidence. Id.
If a police officer makes a false promise that misleads the person in custody, and the person in custody gives a confession because of that false promise, then the confession has not been voluntarily, knowingly, and intelligently made. Boyd , supra. In determining whether there has been a misleading promise of reward, we look at the totality of the circumstances and examine, first, the officer's statement and, second, the vulnerability of the defendant. Id. If the officer's statement is an unambiguous false promise of leniency, there is no need to proceed to the second step because the defendant's statement is clearly involuntary. Id. If, however, the officer's statement is ambiguous, making it difficult for us to determine if it was truly a false promise of leniency, we must proceed to the second step of examining the vulnerability of the defendant. Id. Factors to be considered in determining vulnerability include (1) the age, education, and intelligence of the accused; (2) how long it took to obtain the statement; (3) the defendant's experience, if any, with the criminal justice system; and (4) the delay between the Miranda warnings and the confession. Id.
Our review of the interview does not reveal any unambiguous false promise of leniency that would render the confession clearly involuntary. Williams has made no showing that the detective made false promises when he said that Williams could make a phone call when they were done and that passing the voice-stress-analysis exam would clear his name. The offer of help is a closer issue. In Roberts v. State , 352 Ark. 489, 102 S.W.3d 482 (2003), the supreme court held that the officer's statement to "get it off your chest, we'll help" was ambiguous and not specific enough to be viewed as a false promise to get the defendant a reduced charge or a lesser sentence if he confessed. Likewise in Brown , supra , the supreme court held that an officer's statement to the defendant that "this was his chance to help himself" was, at best, an ambiguous promise. Similarly here, the detectives made vague references to help and the need for him to be honest. Therefore, we proceed to the second step and examine Williams's vulnerability.
Williams claims that his intellectual weakness was shown by the fact that he was enrolled in a trade course and had trouble understanding the directions for the voice-stress-analysis exam. Williams initially said that he could not purposely lie when instructed to by Detective Lauterbach for control questions during the voice-stress-analysis exam. As the State notes, Williams was twenty-six years old at the time of the interview. It is apparent that he had some experience with the criminal justice system as Watson stated in the interview that he had dealt with Williams before, Williams referenced that he had been arrested on warrants, and he had a prior conviction for breaking or entering.
Regarding the timing of his Miranda warnings and confession, Williams was initially advised of his Miranda rights at 10:50 a.m. before being questioned by Detective Watson. He signed the waiver and stated, "I'll cooperate with you if you cooperate with me." Detective Lauterbach informed Williams of his Miranda rights again before administering the voice-stress-analysis examination, although Williams tried to tell him that he did not have to. Williams signed a form waiving his rights and agreeing to submit to the exam at 11:26 a.m. The exam ended at 12:00 and both detectives returned to question Williams a few minutes later. The results of the exam were explained to Williams, and he confessed shortly thereafter. Thus, Williams began his confession less than one and a half hours after first being advised of his Miranda rights and less than one hour after being advised for the second time. Williams argues that the hour and a half delay rendered his confession involuntary and that he should have been advised of his rights a third time. The only case Williams cites, however, Summerville v. State , 253 Ark. 16, 484 S.W.2d 85 (1972), held that a three-hour delay did not render the confession involuntary. In Roberts , supra , the defendant was informed of his Miranda rights at 3:16 in the afternoon before taking a polygraph test. He was informed of the results of the polygraph around 5:00, and the officer began writing down his confession at 5:30. The supreme court held that this was not a lengthy delay.
Based on our review of the totality of the circumstances, we hold that Williams was not so vulnerable that the detectives' statements rendered the confession involuntary. Thus, the circuit court's denial of the motion to suppress is not clearly against the preponderance of the evidence.
Lastly, Williams argues that the circuit court erred by allowing the State to exclude two potential black male jurors because of their race. He contends that he made a prima facie case of discrimination as required by Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), based on the State's discriminatory questioning and striking of these two jurors, and the circuit court should have required the State to provide an explanation for the strikes. After the State struck a potential juror during voir dire, the following colloquy occurred:
DEFENSE : Judge, may I point out something?
THE COURT : Are you making a motion?
DEFENSE : Yes, Judge. The State has struck, now, two black people that we've brought up. So, that would be in violation of Batson.
THE COURT : Two of three, the Court notes.
STATE : Okay, and there is a black person that is seated on the jury.
The court then called the next potential juror to be questioned. As the State notes, Williams did not request that the court rule on whether a prima facie case of discrimination had been shown or do anything to further pursue the Batson challenge. Although Williams contends that the burden shifted to the State to produce a racially neutral explanation, the record reflects that the analysis did not move past the first step, which requires the opponent of the peremptory strike to present facts that show a prima facie case of purposeful discrimination. Stokes v. State , 359 Ark. 94, 194 S.W.3d 762 (2004). The supreme court has made it clear that it is up to an appellant to obtain a clear ruling on an issue in order to preserve that point for appeal. Rutledge v. State , 345 Ark. 243, 45 S.W.3d 825 (2001). Williams has failed to preserve a Batson challenge for appeal.
Affirmed.
Virden and Harrison, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
A Crawford County jury convicted appellant, Richard Louis Bertrand, of raping his then seven-year-old step-granddaughter, and he was sentenced to 25 years in the Arkansas Department of Correction. On appeal, Bertrand asserts that his Sixth Amendment right to confront his accuser was violated when the trial court erected a screen and that the trial court abused its discretion by admitting the victim's bloodstained underwear into evidence. For the following reasons, we affirm.
At the trial, the court allowed the then eight-year-old victim to testify behind a screen. The screen was placed in front of Bertrand and prevented the victim from being able to see him while she testified but allowed him to see an outline of her form while sitting in the witness chair. Bertrand argues that his Sixth Amendment right to confront the witnesses against him was violated when the trial court, without making the findings required by Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), allowed the testimony to occur. In Craig , the Supreme Court of the United States held that the right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where the trial court makes a case-specific finding that the denial of such confrontation is necessary to further an important public policy, such as protecting a child witness from trauma, and only where the reliability of the testimony is otherwise assured. Id.
The two-part test established in Craig applies only when a criminal defendant has been deprived of the constitutional right to a face-to-face confrontation with the witnesses against him or her. Id. Bertrand argues that he has been deprived of his constitutional right to a face-to-face confrontation with his accuser. The record shows that considerable discussion occurred between counsel and the trial court regarding the screen at issue. The screen was described as one that would be placed in front of the defendant, on the desktop of counsel table. It was three feet tall and four feet wide. It was a translucent screen through which shadows could be seen, but a direct view between the victim and the defendant was prohibited. The form of the individual sitting in the witness chair could be seen, but details or a clear line of sight were obstructed.
The circuit court made no finding that the denial of the right of confrontation was necessary to further an important public policy. The court simply stated that there was a "young victim here that is seven or eight years of age. I think it's probably appropriate under those circumstances." There was no finding that the child witness needed to be protected from a trauma or findings of other public-policy protections. While we agree with Bertrand that this was error, we hold under the facts of this case that the error was harmless and therefore affirm.
Confrontation Clause errors are subject to harmless-error analysis, and the analysis of whether a limitation on face-to-face confrontation is harmless must "be determined on the basis of the remaining evidence[ ]" in the case. Coy v. Iowa , 487 U.S. 1012, 1022, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). In the instant case, the evidence overwhelmingly established Bertrand's guilt, and thus, any error was harmless.
Bertrand's wife, who is the victim's grandmother, testified that on the night of December 26, 2015, the victim and her younger sister were spending the night with Bertrand and her. Late in the evening, as the victim was sitting in Bertrand's lap on the couch watching a movie, the grandmother heard from another room the victim "scream" in pain. The next day, when the victim was riding home with her mother, she told her mother that she had something "disgusting" in her "panties[,]" which she had worn the entire time she stayed with Bertrand and her grandmother. When they arrived home, her mother discovered blood in the victim's underwear, prompting her to contact law enforcement.
As a result of that contact, the victim's mother took her to Hamilton House Child and Family Safety Center on December 27, 2015. A sexual-assault nurse examiner, Malea McCormick, conducted a physical examination of the victim. In her report, she noted that the victim had informed her mother that "A.O. touched her girl parts." In the report, Bertrand was identified as the "A.O.," or the "Alleged Offender." McCormick testified that the victim had a recent bruise of her hymen from the 8 to the 10 o'clock position caused by a penetrating trauma. McCormick specifically stated that the penetration was beyond the labia majora and labia minora and that touching the hymen of prepubertal girls is "pretty painful" and could cause them to scream out in pain.
As part of her examination, McCormick collected the victim's underwear and took swabs from her labia majora. The Chief Forensic DNA Analyst from the Arkansas State Crime Laboratory explained that standard DNA testing, which can link a sample to a specific individual, revealed only female DNA from the swabs and tape lifts from the underwear. This result can happen, she noted, because the female DNA in samples from female genital areas and female underwear tends to mask male DNA. In such circumstances, Y STR testing can be done, which ignores the female DNA, but can help potentially identify any foreign male DNA. The only limitation in Y STR testing is that it can only go to a paternal line (i.e., fathers and sons; grandfathers, fathers, and sons all have the potential of having the same Y STR profile).
Here, Y STR testing revealed a match between Bertrand's DNA and the male DNA found in the victim's swabs and tape lifts from her underwear, meaning that neither Bertrand nor any of his paternal male relatives could be excluded as the source of the DNA in the swabs and the tape lifts. Evidence adduced at trial indicated that none of Bertrand's male relatives were present in the house either the day of the incident or the next day.
While at Hamilton House, the victim also was interviewed by Marilyn Sanders, a forensic interviewer. Among other things, the victim told Sanders that, while Bertrand put his hands in her underwear and outside of her "girl parts," he did not put the skin of his hand on them or his fingers inside of them. The victim also told Sanders that, when she got off the couch, she saw Bertrand's "boy parts" and that he was naked. She said that he told her not to tell anyone and that she was scared that she would be in trouble if she did. According to Sanders, the victim was very nervous during the interview and was trying hard not to cry. When questioned by police, Bertrand neither admitted nor denied raping the victim.
Absent the testimony of the victim, then, the evidence at trial established that the victim reported to her mother that Bertrand had touched her "girl parts." Additional evidence established that the victim cried out in pain while alone with Bertrand, she had penetrating trauma to her hymen and what appeared to be bloodstains in her underwear shortly thereafter, and there was DNA on her labia majora and her underwear consistent with Bertrand's paternal lineage. Because any error in allowing the victim to testify through a screen was harmless, we reject Bertrand's claim of a reversible Confrontation Clause violation.
Bertrand's second argument on appeal is that the trial court committed reversible error when it admitted the victim's bloodstained underwear into evidence over his objection pursuant to Rule 403 of the Arkansas Rules of Evidence. He claims that the underwear was not relevant to any issue in the case because the blood in it was not proved to be the victim's and because the prosecution was able to otherwise admit evidence of the testing of the underwear without having to admit the underwear itself, which only served to inflame the jury.
Rule 403 of the Arkansas Rules of Evidence provides, in part, that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" (Emphasis added.) The balancing mandated by the Rule is left to the sound discretion of the trial court, and its determination under the Rule will not be reversed absent a showing of manifest abuse. E.g. , Lard v. State , 2014 Ark. 1, at 7, 431 S.W.3d 249, 258, cert. denied , --- U.S. ----, 135 S.Ct. 76, 190 L.Ed.2d 67 (2014).
Abuse of discretion is a "high threshold" that does not simply require a showing of error, but, rather, a showing that the trial court's decision was "arbitrary and groundless." Bell v. State , 2010 Ark. App. 813, at 5, 379 S.W.3d 748, 750. Our supreme court has "long held that the introduction of bloodstained clothing and similar items worn by a victim is permissible[.]" White v. State , 290 Ark. 130, 144, 717 S.W.2d 784, 791 (1986). Such is the case here. The stained underwear was collected for testing, and tape lifts from it were subsequently tested for DNA, resulting in a match to Bertrand's paternal DNA. As such, the underwear itself then corroborated the testimony of the witnesses who said that the victim reported something disgusting in her underwear, that they saw it, and that it prompted action on their part, including testing it.
Given the purpose for its admission, we cannot say the circuit court abused its discretion by concluding that the underwear's probative value was not substantially outweighed by the danger of unfair prejudice under Rule 403. We therefore affirm the circuit court's decision to admit the underwear into evidence. Bertrand's conviction is affirmed.
Affirmed.
Gruber, C.J., and Gladwin, J., agree. | [
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WAYMOND M. BROWN, Judge
Appellant Machun Clinkscale appeals from the order of the Pulaski County Circuit Court denying his motion to transfer his case to the juvenile division of circuit court. He argues on appeal that the trial court's denial of his motion to transfer was clearly erroneous. We affirm.
The Little Rock Police Department (LRPD) was dispatched to Sky Road Gas Station on January 1, 2017, around 2:00 p.m. concerning a shooting that had just occurred. Detective Roy Williams assisted in the investigation of the shooting in which Edmond Daniels was the victim. When he arrived, Daniels was in the back of the MEMS truck. Detective Williams was able to see that Daniels suffered gunshot wounds to the right side of his face and to his abdomen area. Anthony Williams, a witness, was placed in the back of a police car so that he could be interviewed. Anthony indicated that he was in the parking lot with Daniels at the time of the shooting. He stated that a burgundy Impala slowly came through the parking lot of the gas station and the passenger put a gun out of the window and fired several shots, hitting Daniels at least twice. Anthony identified "Moody" as the shooter. Detective Williams learned that Daniels's mother, Marsha Daniels, was also present at the gas station at the time of the shooting. He made contact with Marsha and her son, Edward. Marsha showed Detective Williams a photo of the person she saw inside the vehicle when it passed her vehicle in the gas station's parking lot. Edward was shown the picture and indicated that he knew who the person was. Edward contacted Anthony and they subsequently determined that the shooter was appellant, who went by the name "Moody." Daniels had to undergo surgery for his injuries. Detective Williams contacted Daniels after he was released from the hospital and Daniels stated that appellant was the one who shot him. Daniels also identified appellant's picture in a photo spread as the shooter.
On February 22, 2017, appellant was charged as an adult in the Pulaski County Circuit Court with unlawful discharge of a firearm from a vehicle and first-degree battery. Appellant filed a motion to transfer to juvenile court on March 7, 2017. The court held a transfer hearing on July 24, 2017.
Detective Williams testified that he works Violent Crimes for LRPD, and that he was working in that capacity on January 1, 2017. He stated that when he arrived on the scene, Daniels was already in the back of the MEMS vehicle. He said that he made contact with Anthony, who told him that "Moody" was the shooter. He testified that the gas station had video surveillance, and that he was able to obtain footage of the shooting. Detective Williams stated that the video showed Anthony and Daniels together in the parking lot by the pumps. He said that a burgundy Impala could be seen slowly rolling through the parking lot and, at that time, Daniels was walking towards a white Camry. By the time Daniels made it close to the Camry, an arm came out of the passenger side window of the Impala and fired several shots. Daniels was struck and fell to the ground; however, he got back up and walked around before falling to the ground again. Anthony ran off, but he came back to try to help Daniels to the vehicle. Daniels collapsed and remained there until officers arrived. The Camry, driven by Marsha, left the gas station. Appellant was developed as a suspect after Anthony and Daniels identified him as the shooter. Detective Williams testified that he was not familiar with appellant before this shooting. However, he stated that during his investigation, he learned appellant had gang affiliations with the West Side Bloods-John Barrow. Several photos were introduced during Detective Williams's testimony that showed appellant throwing up gang signs and at least one photo showed a gun in appellant's right pocket. Detective Williams stated that one photo showed appellant with Adrian Clinkscale while Adrian was holding a gun. He testified that appellant was suspected to be involved in some other criminal activity with Adrian, specifically, committing terroristic acts, but no one could point appellant out in the photo spread.
On cross-examination, Detective Williams acknowledged that appellant had never been charged with committing a terroristic act. He stated that Marsha was able to see who was in the Impala although she was facing the opposite direction at the time of the shooting because the Impala passed her going the opposite way. He said that Marsha left quickly after the shooting. Detective Williams admitted that he did not look to see whether Daniels or Anthony had criminal records. He stated that a criminal-background check on appellant came up negative for prior arrests.
Dorothy Stevens, appellant's grandmother, testified that she was unaware of appellant's current address because his mother had just moved. She stated that appellant had lived with his mother his entire life. She said that appellant's mother "worked with pharmaceutical with the hospitals." She stated that appellant lived with his mother and two of his brothers. She testified that appellant's oldest brother lived with her. Stevens testified that she believed appellant's father was incarcerated. She described appellant as a respectful, obedient child who could cook and clean. She stated that this was appellant's first time being arrested and being away from his mother for an extended period. She opined that appellant is a person receptive to programs that would help him change. She stated that she had watched him participate in programs over the years and "do different things that would show that he could be rehabilitated if he were part of a program." She testified that she had never known appellant to have or carry a weapon. She stated that she worked as a mental-health paraprofessional and had come across people resistant to programs, treatment, and rehabilitation. She said that she had not seen that type of resistance in appellant. She continued,
If this case were transferred to the extended juvenile jurisdiction of the juvenile courts, and he were ordered to be a part of a treatment program, assessment, counseling, anger management, all those sorts of things, I believe that he would benefit from those. I believe he would actively participate in those.
With respect to education, I believe if he was placed in a position where he could get his education or at least finish his education, that he would do that. One of his motives for getting out is he wants to get back in school this fall.
Stevens denied having any knowledge of appellant's gang affiliations. She stated that appellant wore a variety of colors, not just red.
On cross-examination, Stevens stated that she was aware that appellant had gotten suspended from school, but she did not know the reason. She identified appellant in the photos introduced during Detective Williams's testimony. She stated that Adrian is appellant's half-brother. She said that she was unaware if appellant was with Adrian when Adrian committed the terroristic act.
Wendy Ward, the librarian at Dunbar Magnet Middle School, testified that she had known appellant's family for fifteen years. She stated that she had taught appellant third and fifth grade at Wakefield Elementary, where she worked eleven years before going to Dunbar. She said that she maintained contact with appellant after he left Wakefield. She testified in pertinent part:
Based upon my contact with him, as far as his home environment, he always has lived with his mother. He is living as a juvenile. Based upon what I've seen, I have never seen anything to indicate that he has expressed a desire or even shown anything that he would want to be treated as an adult.
I absolutely believe that he would be receptive to programs, treatments, the sorts of services that may be available in juvenile court that might help to change, rehabilitate or help him in growing[.]
She stated that she was very close to appellant's family and that appellant was one of her best students. She said that he was never argumentative and that he did not talk back. She testified that she requested to have appellant in her third-grade class and that she asked to move to fifth grade so that she could teach appellant again. She said that appellant was placed in the gifted-and-talented program in third grade. She described appellant as a very smart and receptive person from a great Christian family. When presented with appellant's disciplinary record, Ward stated that her opinion of appellant was the same. She stated that she believed appellant could be changed if sent to juvenile court.
On cross-examination, Ward stated that she was unaware of appellant's "claimed gang affiliations," his disciplinary record, or that Daniels had identified appellant as his shooter. However, she said that this information did not change her opinion that appellant is a respectful and loving person.
The parties stipulated that if called, Scott Tanner would testify about services available in the juvenile division of circuit court. In lieu of calling him as a witness, the defense introduced prior testimony of Tanner as exhibit 1.
The court entered an order on August 1, 2017, denying appellant's motion. Appellant filed a timely notice of appeal on August 9, 2017.
Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile sixteen years of age or older in the criminal division of circuit court if the juvenile has engaged in conduct that, if committed by an adult, would be a felony. On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction.
The moving party bears the burden of proving that the case should be transferred to the juvenile division of circuit court. The trial court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. We will not reverse a trial court's determination of whether to transfer a case unless the decision is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed.
At a juvenile-transfer hearing, the trial court is required to consider all of the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
The trial court is required to make written findings on all of the above factors.
Appellant argues that the trial court's denial of his motion to transfer was clearly erroneous. More specifically, he contends (1) the trial court failed to make written findings required by Ark. Code Ann. § 9-27-318(h)(1) in that it failed to make written findings regarding factor six, (2) the court's finding regarding factor one is clearly erroneous, (3) the court's finding regarding factor seven is clearly erroneous, and (4) the court's finding regarding factor ten is clearly erroneous.
As his first argument, appellant contends that the trial court failed to make the necessary findings for factor six as required by the statute. In its order denying appellant's motion, the court found that "[t]he Defendant has a poor home environment. His mother works, but his father is in prison. The unrebutted testimony was that Defendant is a member of the Westside Bloods, a street gang." Appellant argues that since the court failed to make a finding regarding his sophistication or maturity, we should reverse the trial court. However, appellant failed to raise this issue to the trial court, and this court has declined to address the technical, statutory noncompliance of a court's order where the appellant failed to make a timely request or objection that would have enabled the court to correct the alleged deficiency. There is no indication that appellant apprised the trial court of the alleged deficiency; therefore, the issue is not preserved for appeal.
Next, appellant contends that the court's finding regarding factor one is clearly erroneous. He argues that the protection of society does not require that he be prosecuted in the adult division of court. Appellant was charged with unlawful discharge of a firearm from a vehicle and first-degree battery, both violent crimes. He shot the victim on the side of the face and in the abdomen area from the passenger-side window. Under these circumstances, we are not left with a firm conviction that the court made a mistake in finding that the protection of society required prosecution in the criminal division of circuit court.
Third, appellant contends that the court's finding regarding factor seven is clearly erroneous. The court found that appellant could not be rehabilitated before his twenty-first birthday. Appellant points to testimony from his grandmother and his former teacher as proof that he can be rehabilitated. He also relies on the stipulated testimony of Tanner concerning available services. However, the court heard this testimony, weighed it, and ultimately found that appellant could not be rehabilitated before turning twenty-one. The court did not err in this determination.
Finally, appellant contends that the court's finding regarding factor ten is clearly erroneous. Appellant takes issue with the court's finding that "[o]n the same date as this hearing, the Court held a transfer hearing on the Defendant's half-brother, who is charged with similar activity." However, factor ten allows the judge to make written findings on anything else deemed relevant by the judge. Here, there was testimony that appellant was thought to be present when his half-brother committed terroristic acts, and there was at least one photo introduced that showed the brother holding a gun while appellant threw up gang signs with a gun in his front pocket. This factor gives a judge great discretion, and we cannot say that the court erred by including this in the written findings. Appellant is essentially asking this court to reweigh the factors. Appellate courts will not reweigh the evidence presented to the circuit court. Accordingly, we affirm.
Affirmed.
Glover and Vaught, JJ., agree.
Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2015).
Ark. Code Ann. § 9-27-318(e).
Austin v. State , 2017 Ark. App. 114, 515 S.W.3d 633 ; Z.T. v. State , 2015 Ark. App. 282.
Ark. Code Ann. § 9-27-318(h)(2).
Z.T., supra.
Id.
Id.
Ark. Code Ann. § 9-27-318(g).
Ark. Code Ann. § 9-27-318(h)(1).
J.A.C. v. State , 2013 Ark. App. 513 ; Williams v. State , 96 Ark. App. 160, 239 S.W.3d 44 (2006).
As a subpoint he argues that the court failed to make the necessary statutory findings because the court used the word "favor" instead of "requires" when addressing factor one. As with his first point, appellant failed to raise this issue below so it is not preserved. Even if we were to reach this subpoint, we would hold that the court met the written requirements for factor one. We do not require that an order contain "magic words" but instead determine if the court fulfilled its statutory duty to consider and render findings on all ten statutory factors. Randolph v. State , 2017 Ark. App. 694, 537 S.W.3d 294.
Hubbard v. State , 2017 Ark. App. 636, 535 S.W.3d 669. | [
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DAVID M. GLOVER, Judge
On December 12, 2015, appellant Kent McCoy filed a medical-malpractice action against appellee doctors Ronald Robertson, Mario Rueda, Christopher Fowler, and Mary Katherine Kimbrough (collectively "the doctors"), nurses Courtney Owen and Kristin Papan ("the nurses"), John Does 1-3, and Jane Does 1-3, asserting that on April 20, 2014, while under their care, he sustained injuries due to an undiagnosed epidural hematoma, resulting in paralysis. Pursuant to the doctors' motion, the Pulaski County Circuit Court granted dismissal of the action in an order filed April 21, 2017, due to McCoy's failure to properly serve the doctors with a copy of the complaint and summons within 120 days; the dismissal was with prejudice because the two-year statute of limitations applicable to medical-malpractice actions had expired. The issues on appeal are whether McCoy properly effected service and whether he is entitled to the benefit of the savings statute. We hold McCoy did not properly effect service and is not entitled to the benefit of the savings statute; therefore, we affirm the circuit court's dismissal of McCoy's complaint with prejudice.
I. Proceedings in Circuit Court
After McCoy's complaint was filed, the nurses, through Sherri Robinson, associate general counsel for the University of Arkansas for Medical Sciences (UAMS), filed a motion on January 6, 2016, to dismiss McCoy's complaint as to them, alleging they were immune from suit pursuant to article 5, section 20 of the Arkansas Constitution and Arkansas Code Annotated section 19-10-305 (Repl. 2016). McCoy filed an amended complaint dismissing the nurses without prejudice; the circuit court entered an order dismissing the nurses from the lawsuit without prejudice; and an order amending the case caption to remove the nurses as defendants.
On January 7, 2016, Drs. Robertson, Fowler, and Kimbrough filed an answer to McCoy's complaint. In the answer, each of the doctors, in addition to other defenses, affirmatively raised the issues of insufficiency of process and service of process and alleged McCoy's complaint should be dismissed with prejudice. On January 12, 2016, Dr. Rueda filed a separate answer, also affirmatively raising the issues of insufficiency of process and service of process and alleging the complaint must be dismissed with prejudice. The doctors also filed an amended answer in response to the amended complaint, again raising insufficiency of process and service of process.
McCoy sent requests for admissions to each doctor. The last request stated, "Admit that you have been properly served with a Notice, Summons, and Complaint in this case." All the doctors denied this request for admission in their separate responses.
On January 11, 2017, McCoy filed a motion to strike the doctors' defenses of lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, and failure to state facts upon which relief can be granted. The doctors filed a joint response, arguing no valid service had been effected on any of them; they learned of the lawsuit informally and filed answers pleading such defenses; and the defenses were all valid. On January 19, 2017, the doctors filed a motion to dismiss McCoy's complaint, alleging that because they had not been properly served within 120 days as required by the Arkansas Rules of Civil Procedure, McCoy's complaint must be dismissed, and because service was never commenced within two years of the alleged wrongful act, the dismissal must be with prejudice.
In response to the doctors' motion to dismiss, McCoy asserted that should the motion to dismiss be granted, the savings statute should be applicable and dismissal should be without prejudice because he had attempted to complete service in a timely manner. In his brief in support of his response, McCoy stated he mailed copies of the original complaint and summons via certified mail with restricted delivery, return receipt requested, to all the doctors, the nurses, and the John and Jane Does to UAMS at 4301 W. Markham Street, Suite 520, Little Rock, Arkansas 72205, on December 8, 2015. On December 11, 2015, the last status update listed by the postal service, tracking indicated all packets except Dr. Rueda's were "In Transit to Destination." On December 28, 2015, Dr. Rueda's packet was returned to McCoy's counsel, marked as undeliverable because he was no longer at UAMS. On December 29, 2015, McCoy mailed copies of the original complaint and summons to Dr. Rueda via certified mail, restricted delivery, return receipt requested, to Johns Hopkins Hospital, 600 N. Wolfe Street, Administration 400, Baltimore, Maryland 21287. Postal-service tracking showed the packet was delivered on January 5, 2016. McCoy further claimed he spoke with UAMS associate general counsel Robinson, counsel for the nurses, on January 19, 2016, who confirmed she had received the service packets for all the defendants, including the doctors. McCoy also asserted he served the doctors' counsel with a copy of the amended complaint.
A. April 20, 2017 Hearing and April 21, 2017 Order
A hearing on the doctors' motion to dismiss was held on April 20, 2017. Special Judge Kathleen Bell presided. The doctors' counsel argued the motion to dismiss was based on the expiration of the statute of limitations prior to the doctors being served with a summons and complaint; the two-year medical-malpractice statute of limitations ran on April 20, 2016; the complaint was filed on December 2, 2015, prior to the expiration of the statute of limitations; and McCoy had 120 days to properly serve the summons and complaint, which would give him to April 1, 2016. Counsel further contended that because the complaint was never served in accordance with Rule 4 of the Arkansas Rules of Civil Procedure, the action was not commenced within the statute of limitations, and the complaint must be dismissed with prejudice. The doctors' counsel pointed out that personal service was never attempted on any of the doctors; McCoy elected service by mail; and McCoy did not mail the summons and complaint to the doctors' home addresses; rather, he mailed them to a general address at UAMS; tracking information indicated the packets were mailed, but there was no proof the documents were ever delivered or received; and there were no green cards or any proof that an agent of the doctors accepted service in accordance with postal regulations. With respect to Dr. Rueda, while a green card was produced, a person other than Dr. Rueda-a "T. Thompson"-had signed for the packet, and there was no proof who that person was or if he or she was an agent for Dr. Rueda. The doctors' counsel argued there were no documents to indicate any of the doctors had refused service; all of the doctors had raised lack of service as a defense in their answers; unless McCoy made a prima facie showing of service, the burden did not shift to the doctors to prove they had not been properly served; simply because UAMS associate general counsel Robinson knew of the lawsuit did not translate into the doctors having knowledge; and actual knowledge of a case did not overcome the requirement of effective service.
McCoy's attorney argued the original complaint was filed on December 2, 2015; copies of the original complaint and summons were mailed to the doctors on December 8; and postal-service tracking indicated the packets were in transition to their destinations on December 11. McCoy's counsel admitted no green cards had been returned from the postal service. However, it was contended that Dr. Rueda's packet was delivered on December 5, 2016. McCoy's counsel claimed he spoke with Ms. Robinson, who confirmed she had received the service packets for all defendants. Counsel argued the reason McCoy had not filed any return-receipt cards was because the packets were still in transit, and they could not file something they did not have in order to prove service; he agreed no information was available. When questioned as to why McCoy believed he had obtained good service on Dr. Rueda, his counsel replied he was instructed by the Johns Hopkins legal staff to send the information to the address provided and "someone" would sign for it. As to the other three doctors, counsel argued he was instructed to send the information to a general delivery post office box at UAMS, which he had done in previous cases, and he had never had an issue with service of process until this case. He argued the doctors obtained knowledge of the lawsuit in some way, which he believed was by virtue of having received the certified mail.
Following arguments of counsel, the special judge granted the doctors' motion to dismiss with prejudice, finding service was not completed, and therefore the savings statute was not applicable. An order to this effect was filed on April 21, 2017.
B. June 7, 2017 Order
On May 3, 2017, McCoy filed a motion to alter or amend and vacate the April 21 order dismissing his complaint with prejudice. McCoy asserted the dismissal should be without prejudice, as copies of the complaint and summons had been placed in the mail, which he claimed effectuated service; there had been no showing that the defendants had failed to be served; and even if the service was inadequate, he was still entitled to a dismissal without prejudice, which would allow him to avail himself of the savings statute and refile his complaint within one year of dismissal. The doctors responded on May 9, 2017, asking the circuit court to deny the motion and contending the complaint was properly dismissed with prejudice.
McCoy filed his notice of appeal on May 19, 2017, appealing the April 21 order of dismissal with prejudice. On May 23, 2017, he filed a reply to the doctors' response to his motion to alter or amend and vacate.
On June 7, 2017, the circuit court entered an order denying McCoy's motion to alter or amend and vacate. McCoy then filed an amended notice of appeal on June 16, 2017, to include the circuit court's June 7 order denying his motion.
C. August 16, 2017 Filing of Record and Entry of Order
On July 26, 2017, McCoy filed a motion to vacate the order of dismissal with prejudice and the denial of his motion to alter or amend and vacate based upon newly discovered evidence. McCoy asserted a postal-service investigation discovered the summonses and complaints had been delivered, although a green card was not returned; such information could not be discovered in time for a motion for new trial under Rule 59(b); but this information was sufficient under Rule 60(c)(1) to grant relief based upon newly discovered evidence. McCoy attached affidavits of postal employees and his counsel. The postal employees asserted the certified-mail packets were delivered to UAMS in a direct first-class mail container and were not identifiable as certified mail. McCoy's counsel averred he had no control over the post office's delivery of certified mail.
The doctors asserted McCoy's motion to vacate should be denied because the evidence, though newly discovered, was not new; while the doctors had never disputed the summonses and complaints were mailed to the hospital, none of the defendants were properly served; even if the defendants found out about the lawsuit, being aware of a lawsuit did not cure a service defect; UAMS was not a defendant in the lawsuit; service could not be presumed; and McCoy's motion had no bearing on Dr. Rueda, since his service packet was sent to Johns Hopkins rather than UAMS.
The record in this case was filed on August 16, 2017; at that time, McCoy's motion to vacate the order of dismissal with prejudice and the denial of the motion to alter or amend based on newly discovered evidence was pending. However, an order granting that motion was filed mere hours after the record had been filed.
II. Proceedings in Court of Appeals
After the record and the order vacating the order of dismissal were filed on August 16, 2017, McCoy filed a motion with our court to remand the case to the circuit court and to stay appellate proceedings. Our court denied that motion on September 6, 2017.
On September 19, 2017, McCoy filed a petition for reconsideration, arguing Rule 60 of the Arkansas Rules of Civil Procedure permits the circuit court to vacate its earlier order because it was within 90 days of the entry of the order, but because the record had been lodged, it may have lacked jurisdiction to do so. McCoy again requested that our court remand the case to the circuit court, giving the circuit court jurisdiction to enter an order identical to the one that was entered after the record had been lodged. On the same day, McCoy also filed a petition for certiorari with our court to complete the record by including the circuit court's order granting his motion to vacate that was filed after the record was lodged with our court.
In response to the petition for reconsideration, the doctors argued the circuit court lacked jurisdiction because the record on appeal was already lodged when the circuit court issued the order to vacate the dismissal order. Furthermore, the doctors asserted the circuit court was also without jurisdiction under Rule 60 because more than 90 days had elapsed between the entry of the order of dismissal and the order attempting to vacate it. In response to McCoy's petition for certiorari, the doctors asserted the circuit court had already lost jurisdiction when it issued the order because McCoy had already lodged the record; the circuit court had lost jurisdiction to vacate the order of dismissal because more than 90 days had elapsed between the order of dismissal and the order attempting to vacate it; and including the order to vacate in the record was futile because McCoy could not raise any issues involving the motion to alter or amend because he failed to appeal the proper order disposing of that motion, and those issues are not preserved for appeal. Our court denied both the motion for reconsideration and the petition for certiorari in an order filed on October 4, 2017.
III. Points on Appeal
McCoy's first point on appeal is a third attempt to have the case remanded "so that the trial court may exercise its authority under Ark. R. Civ. P. 60(c) to vacate the order appealed from, as it attempted to do on the day the record was lodged." None of the facts have changed since our court's denial of McCoy's previous two requests, as detailed above. We have denied this request on two prior occasions, and we are unpersuaded to entertain this request a third time.
In his second point on appeal, McCoy argues our court should reverse the order dismissing the complaint with prejudice and remand to the circuit court. He argues it was undisputed that he complied or attempted to comply with Rule 4(d)(8)(A) of the Arkansas Rules of Civil Procedure, so any dismissal must be without prejudice, and he should be allowed to take advantage of the savings statute. We disagree.
When issues turn on court rules and precedents about commencement of service, which are issues of law, our review is de novo. Clouse v. Ngau Van Tu , 101 Ark. App. 260, 274 S.W.3d 344 (2008). Service of valid process is necessary to give a court jurisdiction over a defendant. City of Tontitown v. First Sec. Bank , 2017 Ark. App. 326, 525 S.W.3d 18. Statutory service requirements, being in derogation of common-law rights, must be strictly construed, and compliance with them must be exact. Se.Foods v. Keener , 335 Ark. 209, 979 S.W.2d 885 (1998). Court rules are construed in the same manner. Rettig v. Ballard , 2009 Ark. 629, 362 S.W.3d 260. Our service rules place "an extremely heavy burden on the plaintiff to demonstrate that compliance with those rules has been had." Williams v. Stant USA Corp. , 2015 Ark. App. 180, at 3, 458 S.W.3d 755, 758 (citing Brown v. Ark. Dep't of Human Servs. , 2013 Ark. App. 201, at 4, 2013 WL 1228032 (emphasis in original) ).
Rule 4(i)(1) of the Arkansas Rules of Civil Procedure provides:
If service of the summons and a copy of the complaint is not made upon a defendant within 120 days after the filing of the complaint or within the time period established by an extension granted pursuant to paragraph (2), the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative. If service is by mail or by commercial delivery company pursuant to subdivision (d)(8)(A) & (C) of this rule, service shall be deemed to have been made for purposes of this subdivision (i) on the date that the process was accepted or denied.
In the present case, no motion for extension was filed. Pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure, if service is not made within 120 days and no timely motion to extend is made, dismissal of the action is mandatory. City of Tontitown , supra. However, Rule 4(i) must be read in conjunction with other procedural rules, such as the statute of limitations, and the dismissal without prejudice language in Rule 4(i) does not apply if the plaintiff's actions are otherwise barred by the running of the statute of limitations. McCoy v. Montgomery , 370 Ark. 333, 259 S.W.3d 430 (2007).
In the present case, McCoy elected to serve the doctors by mail. Rule 4(8)(A)(i) of the Arkansas Rules of Civil Procedure provides that mail is proper service "by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee." Here, the certified-mail receipts for Drs. Robertson, Fowler, and Kimbrough do not indicate the fees for return receipt requested or restricted delivery were paid. Furthermore, there is no evidence that these packets were ever delivered to the doctors. Although Dr. Rueda's packet did have those services paid for, the packet was delivered to "T. Thompson," not Dr. Rueda, and there was no evidence T. Thompson was Dr. Rueda's agent.
McCoy argues the circuit court heard factual assertions from his attorney that the summonses and complaints were mailed but the green cards had not been received and were noted by the postal service to be in transit to destination. This is of no moment. Arguments and statements by attorneys are not evidence. Ross v. Moore , 30 Ark. App. 207, 785 S.W.2d 243 (1990). Counsel's statements and assertions cannot substitute for evidence of proof of service.
There was simply no proof of timely service presented to support McCoy's claim that the doctors had been served. The return of service is prima facie evidence that service was made as stated; the burden then shifts to the party claiming service was not valid to overcome the prima facie case created by proof of service. Valley v. Helena Nat'l. Bank , 99 Ark. App. 270, 259 S.W.3d 461 (2007). Here, there was never a prima facie case made as to proof of service. No green cards were ever returned for Drs. Robertson, Fowler, or Kimbrough. And even though a green card was returned for Dr. Rueda, the signature was not Dr. Rueda's, and there was no proof "T. Thompson" was Dr. Rueda's agent; the burden remained on McCoy to prove Dr. Rueda was properly served with a summons and complaint, and McCoy failed to meet this burden. See Valley , supra (no proof of service when green card showed packet delivered to L. Danley, even though Valley signed green card over Danley's signature two days later). McCoy was aware he had not received proof of service in the form of green cards from the doctors, yet he elected not to serve the doctors in any other fashion permitted by law or to request an extension of time to effect service. McCoy presented no proof the doctors received their service packets; therefore, dismissal was proper because service was not obtained within 120 days.
McCoy asserts that even if dismissal is required, it should be without prejudice because he attempted to complete service and should be entitled to invoke the protection of the savings statute. The savings statute, found at Arkansas Code Annotated section 16-56-126, provides in pertinent part that if any action is timely commenced within the statute of limitations, and the plaintiff suffers a nonsuit, the plaintiff may commence a new action within one year after the nonsuit. For purposes of the savings statute, a dismissal is the same as a nonsuit. Carton v. Mo. Pac. R.R. Co. , 295 Ark. 126, 747 S.W.2d 93 (1988). "The savings statute extends the time for a plaintiff to correct a dismissal without prejudice when the statute of limitations would otherwise bar the suit." Oxford v. Perry , 340 Ark. 577, 582, 13 S.W.3d 567, 570 (2000). For purposes of the savings statute, a suit is commenced when the complaint is timely filed and service of the complaint and summons (effective or defective) is completed within the 120-day period required by Rule 4(i). Rettig , supra. "It has never been held that any attempt at service, whether completed or not, commences a case." Clouse , 101 Ark. App. at 265, 274 S.W.3d at 347 (2008).
McCoy contends that his attempt at service is sufficient to allow him the benefit of the savings statute. In support of his argument, he cites four cases: Jones v. Douglas , 2016 Ark. 166, 489 S.W.3d 648 ; Rettig , supra ; McCoy v. Bodiford , 2010 Ark. App. 152, 2010 WL 546706 ; and Barner v. Thompson/Center Arms Co., Inc. , 796 F.3d 897 (8th Cir. 2015). All of these cases are distinguishable from the present case.
In Jones , even though the summonses were defective because they stated the incorrect response time to answer the complaint, the savings statute applied because service was deemed to be a completed attempt under Arkansas Code Annotated section 16-58-132 when the return receipts were marked refused. Here, there are no return receipts, and there was no indication the packets were refused. McCoy had no reason to believe that service was complete.
In Rettig , service of process was not challenged, but the response time on the summons was incorrect. Service was timely completed in that case, although defective; therefore, the plaintiff was entitled to avail himself of the savings statute. However, in the present case, no service was effected; therefore, the case was not commenced.
In Bodiford , although service was completed by first-class mail only, there was no dispute that the plaintiff actually served the special administrator. Here, McCoy provided no proof to indicate the service packets were actually delivered to the doctors.
In Barner , a federal case cited by McCoy, a return receipt was presented that showed the plaintiff had completed service, although there was a mix-up with registered agents. Here, no such proof was presented to indicate that the doctors had been properly served. Although Dr. Rueda's packet was signed for by someone, there was no indication the person even knew Dr. Rueda or that the packet was delivered to Dr. Rueda.
In the present case, because service was never completed, not even defective service, the lawsuit was never commenced, and the statute of limitations has now run. Therefore, the circuit court properly dismissed McCoy's suit with prejudice.
McCoy's last point of appeal is two-fold: the doctors are estopped from demanding strict compliance, and they waived entitlement to demand strict compliance because McCoy was entitled to rely on representations by hospital attorneys for purposes of service on the doctors. We decline to address McCoy's estoppel and waiver arguments because they were never raised to the circuit court and are being made for the first time on appeal. It is well settled the appellate courts will not consider arguments made for the first time on appeal; an appellant is limited by the scope and nature of the objections and arguments presented at trial. Cox v. Miller , 363 Ark. 54, 210 S.W.3d 842 (2005). See also Lucas v. Jones , 2012 Ark. 365, 423 S.W.3d 580 (estoppel); G.A.C. Trans-World Acceptance Corp. v. Jaynes Enters., Inc. , 255 Ark. 752, 502 S.W.2d 651 (1973) (waiver).
The circuit court's dismissal of McCoy's action with prejudice is affirmed.
Affirmed.
Vaught and Brown, JJ., agree.
The nurses were later dismissed from the lawsuit, and pursuant to Rule 54(b)(5) of the Arkansas Rules of Civil Procedure, "any claim against a named but unserved defendant, including a 'John Doe' defendant, is dismissed by the circuit court's final judgment or decree." Therefore, the order appealed from is final.
Article 5, section 20 of the Arkansas Constitution provides, "The State of Arkansas shall never be made a defendant in any of her courts." Arkansas Code Annotated section 19-10-305(a) provides, "Officers and employees of the State of Arkansas are immune from liability and from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment."
Arkansas Code Annotated section 16-114-203(a) (Repl. 2016) provides the statute of limitations for medical injury is two years after the cause of action accrues. "The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time." Ark. Code Ann. § 16-114-203(b). The date of accrual of McCoy's injury was no later than April 20, 2014.
Exhibit A to McCoy's response, the certified-mail receipts for the packets mailed to the doctors, shows that only Dr. Rueda's packet was marked as having paid the certified fee, the return-receipt fee, and the restricted-delivery fee. The certified-mail receipts for the other three doctors did not indicate the additional fees were paid for those services.
This order was signed by the presiding Pulaski County circuit judge, not the special judge who granted the motion to dismiss.
McCoy's May 3, 2017 motion to alter or amend and vacate was "deemed denied" on June 2, 2017.
The order of dismissal was entered on April 21, and the order attempting to vacate that order was entered on August 16, 117 days later.
Specifically, the doctors argued the order to vacate attempted to vacate the order of dismissal and the previous denial of McCoy's motion to alter or amend. They asserted, citing Bayer CropScience LP v. Schafer , 2011 Ark. 518, 385 S.W.3d 822, that the failure to list a deemed-denied order precludes appellate review of the motion deemed denied. The doctors argued the order of dismissal with prejudice was entered on April 21; McCoy filed a motion to alter or amend the order of dismissal with prejudice on May 3; the May 19 notice of appeal appealed only the April 21 order of dismissal; McCoy's motion to alter or amend was deemed denied on June 2; the circuit court entered an order on June 7 attempting to deny the motion to alter or amend, but it had already been deemed denied on June 2; McCoy filed a first amended notice of appeal on June 16, appealing the order denying his motion to alter or amend and vacate the order entered on June 7 with no mention of the June 2 deemed denial; while McCoy filed a motion on July 26 to vacate the April 21 order of dismissal with prejudice and to vacate the order denying the motion to alter or amend entered June 7, it did not ask to vacate the June 2 deemed-denied order; and on August 16, the circuit court entered an order (after the record was lodged, and when the circuit court no longer had jurisdiction) to vacate its order of dismissal and the order denying the motion to alter or amend, but the August 16 order did not mention the June 2 deemed-denied order. | [
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DAVID M. GLOVER, Judge
Kevin Perry appeals from the August 25, 2017 sentencing order revoking his probation and sentencing him to thirty-six months in the Arkansas Department of Correction, with twenty-four months' suspended imposition of sentence (SIS). He contends the trial court erred in revoking his probation because he had good cause for violating the terms and conditions of his probation. We affirm.
On December 18, 2013, Kevin Perry pleaded guilty to the offense of second-degree forgery, and he was sentenced to sixty months' probation. Perry received an additional twenty-four months' probation by order entered on May 2, 2016, because of a probation violation; and he was required to serve a designated amount of time in a detention center. On October 25, 2016, the State filed a petition to revoke Perry's probation, alleging he had violated the terms and conditions by evading supervision, failing to report his residence and/or travel, and failing to pay probation-supervision fees.
At the revocation hearing on August 25, 2017, Preston Jones, Perry's probation supervisor, testified for the State, and Perry testified in his own defense. Jones testified that he supervises offenders who have been released from prison on parole or sentenced to probation; he supervised Kevin Perry. Jones stated that Perry stopped showing up and then failed to report after being contacted and scheduled for an office visit. Jones explained that after Perry had failed to report on August 10, 2016, a letter was sent to him, directing him to report on August 15, 2016, but he did not do so. Attempts were made to contact him by telephone, but the numbers had been disconnected. A home visit was requested, but when two officers went to Perry's residence on August 17, 2016, they were told he did not live there. Jones testified that he was not sure when Perry last contacted the probation office and that he had not heard from Perry at all since August 2016.
Jones recommended that Perry be sent to the Arkansas Department of Correction because his probation had previously been revoked and because of the amount of time he had failed to report. The State rested.
Kevin Perry testified in his own defense. He stated that the last time he checked in with the probation office was August 9, 2016, and that he had checked in with Officer Murray "when she was going back and forth from West Memphis and here from Pine Bluff with the women's prison." According to Perry, that was the day before he moved his grandmother to Addison, Texas. He testified that Mr. Preston Jones did his drug screen one day when Officer Murray was not there; he (Perry) contacted Murray, but she did not get back with him; and he let Murray know he was not staying at his previous address off Pike Avenue. He said his sister and brother were staying at the residence off Pike Avenue and that he told Murray they were drinking there and he could not be around it. He said his family is in Dallas, Texas; his kids and their mother live in Dallas; and Dallas is where he has been.
Perry testified he had been incarcerated in Texas since March 28, 2017, "waiting on Arkansas to come get him." He stated he was thirty years old; had a job in Texas; and did not "pick up any new charges" while in Texas. He said the reason he was incarcerated was the "probation hold violation, second revocation." He testified he was served the warrant when he stepped foot in Faulkner County on August 11; that he was held in continuous custody in Dallas County from March 28 to August 11. The defense rested.
In ruling from the bench, the trial court explained that this was a situation in which there was an order of the court for Perry to report or stay in touch with the probation officer, regardless of what circumstances unfolded; it was his obligation; and he failed to comply. The court found a willful violation of the terms and conditions of probation; directed Perry be sentenced to the Arkansas Department of Correction for thirty-six months, with an additional twenty-four months' SIS because it was a second revocation; ordered all fines, fees, and costs associated with the original conviction due and payable upon his release; and found he was to get credit for the time he spent in jail in Texas: March 28 to the date of the hearing-August 25, 2017 (150 days).
In this appeal, Perry contends he proved he had reasonable justification for failing to comply with the terms and conditions of his probation; therefore, the trial court erred in revoking it. He offers two justifications: 1) he moved to Texas so he could maintain a residence that would comply with the terms of his probation, i.e., the place he was living in Arkansas was not suitable because alcohol was consumed there and he was supposed to avoid such environments; and 2) he moved to Texas to have a job that would provide support for himself and his family. Perry argues that work, a place to live, and family were not present in Arkansas, and he could not meet family needs and comply with the terms of his probation if he stayed here. He further argues that his probation officer's (Jones's) reason for the revocation and sentence included the length of his violation, but that such a basis was not reasonable; the justification for his extended violation of not reporting or paying was that he was jailed in Texas from March 2017 until August 2017, and he could not possibly comply with his probation conditions. He summarizes his argument as follows:
The combination of trying to meet the needs of his family, securing work, and needing a compliant residence ought to excuse Mr. Perry's non-compliance. And justifying his sentence on the length of a violation when the length was caused by his being jailed in another state for the violation is incorrect. At minimum, a 36-month sentence followed by 24 months suspended is too severe and should be reduced significantly.
To revoke probation or an SIS, the burden is on the State to prove the violation of a condition of the probation or an SIS by a preponderance of the evidence. London v. State , 2017 Ark. App. 585, 534 S.W.3d 758. A trial court may revoke probation or an SIS if it finds by a preponderance of the evidence that the defendant inexcusably failed to comply with a single condition of his or her suspension. Id. ; Ark. Code Ann. § 16-93-308(d) (Supp. 2017). On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. London , supra. Because the burdens of proof are different, evidence that is not sufficient to support a criminal conviction may be sufficient to support revocation of probation or an SIS. Id. Therefore, the burden on the State is not as great in a revocation hearing. Id. In addition, because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given to the testimony, we defer to the trial court's superior position. Id. We have noted that the trial court is not required to believe the testimony of the defendant because he or she is the person most interested in the outcome of the hearing. Id.
Here, the terms of Perry's probation included the condition he "shall remain within the State of Arkansas unless granted permission in writing to leave by the Probation Officer." It is undisputed that Perry moved to Texas without alerting his probation officer, much less receiving written permission to do so. He explained that his motivations for doing so were, generally, to escape his Arkansas surroundings where alcohol was being used, to be with his family, and to have a job. Perry cites Cogburn v. State , 264 Ark. 173, 569 S.W.2d 658 (1978), and Baldridge v. State , 31 Ark. App. 114, 789 S.W.2d 735 (1990), as support for his position that he "offered reasonable justifications for his failure to comply strictly with the terms and conditions of his probation...." It is unnecessary to discuss these cases at length other than to say that the facts and circumstances of Cogburn and Baldridge demonstrated those probationers made good-faith efforts to comply with the terms of their probation; this distinguishes those cases from the facts presented here. As noted by the State, even if Perry's motivations for moving to Texas were good, the conditions of his probation did not allow him to unilaterally relocate to Texas. Even though Perry offered his reasons for moving, he offered no reasonable justification for failing to get written permission to do so from his probation officer.
As discussed previously, the violation of one condition is sufficient to support the revocation of probation, and we find no clear error in the trial court's finding that Perry inexcusably violated the condition that he not leave Arkansas without the written permission of his probation officer. It is, therefore, unnecessary to discuss the other violations.
Finally, to the extent Perry raises as an additional point that his resulting sentence and SIS were too severe and should be reduced, he is making the argument for the first time on appeal, and we do not address it.
Affirmed.
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BART F. VIRDEN, Judge
Appellants, William Ray McJunkins ("Ray"), Angie McJunkins, Paula Knight, and Garland F. "Kip" McJunkins, Jr., deceased, appeal from the Grant County Circuit Court's orders denying their claims of boundary by acquiescence and adverse possession with respect to two disputed areas of land, to which appellees Phillip and Virginia McJunkins ("Phillip") hold legal title. The trial court also ordered Ray to pay Phillip $1,072.78 for survey indicators that he had removed from Phillip's land. Appellants argue that the trial court clearly erred in its decision. We affirm in part and reverse and remand in part.
I. Background and Procedural History
J.D. McJunkins had five sons. Shortly before he died, J.D. had his property surveyed by William Fred Spears, Jr., on March 3, 1986. He then brought all his sons together and gave each son a deed to an approximate 18.18-acre tract of land from the family farm. The deeds were dated March 26, 1986, and referred to the Spears survey. J.D. died in April 1986.
The five sons are Ford McJunkins, Sr., who died in 2003 and left Tract 5 to his son, Ford McJunkins, Jr.; Donald McJunkins, deceased, who left Tract 1 to his son, Mike McJunkins; Garland McJunkins, Sr., who died in 2012 and left Tract 4 to his three children (appellants Ray, Paula, and Kip); Houston McJunkins, deceased, who sold Tract 3 to his brother, appellee Phillip, in 1987; and Phillip McJunkins, the youngest and only surviving son, who inherited Tract 2. Near the family farm is what is known as the Reeves tract, consisting of eight acres. Clyde Reeves first owned the tract, and he left it to his son Travis Reeves. Travis sold it to Ford McJunkins, Jr., and his wife in 1992, and they sold it to appellants Ray, Angie (Ray's wife), and Kip in 2015.
This family dispute involves Tract 3, which is a backwards L-shaped piece of land belonging to Phillip; Tract 4, belonging to appellants Ray, Paula, and Kip, which is a rectangular piece of land located adjacent to the north and northwest sides of Tract 3; and the Reeves tract, which is a square piece of land located south of the western portion of Tract 4 and west of the southern portion of Tract 3 and is now owned by appellants Ray, Angie, and Kip. A county road bisects the family farm and runs north and south through Tracts 3 and 4. The pieces of land claimed by appellants are located on Phillip's Tract 3. One area consists of approximately half an acre lying south and east of Tract 4. It includes a small pond in the southeast corner and is enclosed by a hog-wire fence. The other area claimed by appellants is a long, narrow strip of land running north and south and consisting of approximately six-tenths of an acre. It lies adjacent to the east side of the Reeves tract and west of the county road.
In March 2016, Phillip's lawyer sent a letter to Ray stating that, although Ray and his father had permission since 1986 to use part of Phillip's land without paying rent, Ray no longer had permission to use the land enclosed by the hog-wire fence. On May 10, 2016, appellants filed a complaint against Phillip alleging that they had acquired the two disputed areas set forth above through boundary by acquiescence, or alternatively, adverse possession. According to appellants, neither they nor their predecessor had sought or were granted permission by Phillip to use the land. Appellants also asserted a claim for trespass. Phillip answered the complaint, generally denying the allegations, and stated affirmatively that Garland had permission to use the land enclosed by the hog-wire fence. Phillip also asserted a counterclaim for unlawful detainer, quiet title, and trespass. He requested damages for trespass including, among other things, Ray's removal of survey stakes and posts. A hearing was held on October 17, 2016.
II. Trial Testimony
A. Area Enclosed by the Hog-Wire Fence
Ray testified that there was an old meandering barbed-wire fence surrounding an area they called the hog pen. He said that he remembered walking over it as a kid and said that it "wasn't really usable" any longer. Ray said that he thought the old barbed-wire fence, which had been stretched along a tree line, was on the property line separating Tract 3 and Tract 4. Ray stated that in September or October 1986, he and his father Garland, along with a friend named Jeff McDermott, built the hog-wire fence just inside the old barbed-wire fence. Ray said that he was fourteen years old at the time and that he "really didn't know about the [Spears] survey." He stated that he and his father built the hog-wire fence because they wanted to raise and butcher hogs but that they had later used it for goats and cattle. Ray said that his Uncle Houston still owned Tract 3 when the hog-wire fence was built and that Houston did not complain about its location. He said that after Phillip bought Houston's land, Phillip did not complain until recently.
Ray testified that Garland and Phillip owned cattle, which they ran together, and that occasionally one of the sick cows-his or Phillip's-would be put inside the hog-wire fence. He said that a corral had been built on Phillip's land in 2007 and that they had all used the corral in their cattle operation. He stated that Garland and Phillip stopped running cattle together around 2010. Ray testified that Garland lived in the farmhouse near the hog-wire fence until he died in 2012. Ray said that he currently has one cow that he is tending and two donkeys inside the hog-wire fence.
According to Ray, he has kept the land on his side of the hog-wire fence clean, and he has treated it like his own. Ray said that he and Phillip have mowed up to each side of the fence and that he alone has maintained the fence. Ray testified that he thought his and Phillip's conduct showed that they had both acquiesced that the hog-wire fence is the actual line between their properties.
Ray stated that he had seen white flags tied on his hog-wire fence and some plastic PVC poles nearby. He said that he removed these markers but that they later reappeared. He stated that he saw his cousin Mike on the property cutting bushes off the fence. He said that, when Mike had told him that a fence was going to be built on the property line, he told Mike that he was not moving the hog-wire fence. Ray said that he then received a letter from Phillip's attorney and heard from Phillip himself that he was going to build a fence on the property line. Ray said that he told Phillip that he could put up a fence as long as he did not touch the hog-wire fence.
Amy Marie McJunkins was married to Kip for twenty-seven years until he died in April 2016. She said that she had spent "quite a bit of time" at the farm, that the hog-wire fence had "always been there," and that she had not heard anyone complain about the location of the hog-wire fence.
Ford McJunkins, Jr., testified that he thought Ray and Phillip used the old meandering fence as the dividing line between their properties and that the hog-wire fence encompassed less land than that. He stated that Ray and Garland raised hogs and goats in the old hog pen and brush hogged it in the spring. He said that after the hog-wire fence was built, Ray put cattle in the enclosure because it was easier to get them on the trailer to be taken to the sale barn. He said that he had seen Mike brush hogging on Phillip's side of the hog-wire fence. Ford, Jr., said that when Ford, Sr., Phillip, and Garland had cattle, those cattle were mixed together and that the whole family farm, from Tract 1 to Tract 5, was used in the cattle operation. He said that Phillip sold his cattle around 2010.
Jeff McDermott recalled building the hog-wire fence with Ray and Garland around 1987. He said that Garland had maintained the land inside the fence and raised hogs. McDermott testified that both Garland and Ray had brush hogged within the hog-wire enclosure and had stocked the pond with catfish. He said that he was familiar with "where the pond and stuff was" and that "that" was always the property line. McDermott said that he had not seen Phillip around the farm.
Jeff McJunkins, Houston's son, testified that he had always thought of the land inside the hog-wire fence as Garland's and that he thought the old meandering fence in the tree line was on the property line. He said that Ray had pigs and occasionally a cow inside the hog-wire fence and that Ray and Garland had maintained the fence. He said that he had never heard Phillip say that the hog-wire fence was in the wrong place or that it ought to be moved. He remembered that Phillip and Garland owned cattle that ran together, that the area inside the hog-wire fence was used like a feed lot, and that they would put cattle in the enclosure.
Gary Launius, Ray's coworker, said that he had been going to the farm since 2007 and that the hog-wire fence had been there since that time, that Ray kept cows and donkeys in the enclosure, and that Ray took care of the land inside the fence.
Steve Hankins, a land surveyor for thirty-two years, testified that he had been hired by Ray to do a retracement survey of his entire holdings, including the disputed areas. He said that he knew about the 1986 Spears survey and that the survey he retraced was "spot on" with the earlier survey. He said that he found the original markers from the Spears survey, except one near the southeast corner of the pond, which had been replaced by a marker from B & F Engineering. Hankins also said that he saw PVC pipes driven into the ground on the east side of the old meandering fence but that they were not actual survey markers and were "just out there in space" because the points did not line up with the record-title line.
Hankins further testified that the area inside the hog-wire fence had been cared for differently than the area outside the fence. He said that the area east of the hog-wire fence was overgrown until it reached the old meandering fence in the tree line and that the area beyond the tree line was clear. He further testified that there was a gate along the northeast corner of the hog-wire fence that he assumed could have allowed cattle to go back and forth between the tracts of land.
Phillip testified that he was living in Texas in 1986. He stated that J.D. had wanted him to have the farmhouse because he was the youngest but that he had encouraged his father to give it to Garland because Phillip did not live in Arkansas. He said that he also recommended to his father that Garland be given more land than what had been originally surveyed. Phillip said that no conversation had ever taken place between J.D. and the sons about where the real property lines were and that "we just looked at the survey." He also said, "We all knew the fence lines were meandering."
Phillip testified that what was known as "the hog pen" was initially put up while he was in the service, which he joined in 1961. He stated that the fence currently sits twenty to thirty feet closer to the lot line, which he explained meant the property line found in the Spears survey. He stated that when he left home, J.D. had fifteen to twenty cows and that Ford, Sr., bought cattle that he put in with J.D.'s cattle. Phillip testified that Ford, Sr., had taken care of "dad's whole entire place" and "the fence" for thirty years. Phillip stated that he came back to the farm once every year or two before moving back to Arkansas in 2001. He said that Ford, Sr., ran his cattle on his (Phillip's) and Garland's property until 2002 or 2003. Phillip said that he bought some cows in April 2004 and that both he and Garland started buying cows in 2005. He said that he and Garland used the property inside the hog-wire fence; for example, they would put a cow about to have a calf in the pen because "the old farm house" was nearby. He did not recall how many times he had put a cow in the enclosure. He said that he and Garland shared a cattle feeder and that Garland sometimes placed the cattle feeder in the hog pen. Phillip said that he did not go into the enclosure to brush hog it but that he did feed cows in there "once in a while." Phillip said that he sold his cows in 2010 and asked Garland to move his cattle off his land so he could turn it into pasture for a hay field. He said that he never told Garland to move the hog-wire fence.
Phillip said that he had conversations with Garland about three survey stakes that had disappeared from the 1986 survey and his plans to have the land resurveyed. He stated that, when the stakes began disappearing, he did not have it resurveyed right away because it was "not something that ha[d] been urgent that I needed to do for any particular reason." Two receipts from B & F Engineering, Inc., were admitted into evidence showing that Phillip had paid for professional services, including verifying and setting property corners: one receipt reflected payment of $455.28 in August 2006, and the other receipt showed a payment of $617.50 in March 2015. Phillip said that Garland had followed his surveyors around, pointing them to areas where the lot lines "really were" because he had been present in 1986 when J.D. had the property surveyed.
Mike McJunkins testified that he lives about one-half mile from the family farm and that he helped Phillip maintain his property. He said that in early 2016 he was helping Phillip clear a sight line when Ray threatened to shoot him if he touched the hog-wire fence. When Mike explained that he was cutting brush so that Phillip could see from one corner to another, he said that Ray told him, "Well, them lines don't mean nothing anyway and you can go tell Phillip I said it." Mike said that before he fenced off Tract 1 in 2007, "my family ran cattle kind of all over my grandfather's farm." He said that he had not heard either Phillip or Garland say that the hog-wire fence represented the boundary line between their properties.
B. Area Adjacent to the Reeves Tract
Ray testified that Clyde Reeves owned the Reeves tract originally and that Travis owned it after Clyde died. He said that when the county road was built, Clyde refused to give up any of his land, so J.D. gave up some of Tract 3, which left a narrow strip of Tract 3 on the west side of the county road. He did not think J.D. did anything with that strip of land and that Clyde always "had stuff out there" so he assumed it was Clyde's land. Ray said that he currently has approximately twenty-one head of cattle on the Reeves tract. Ray said that he saw Mike brush hogging Phillip's side of the county road the previous week but that he had not touched Ray's side of the county road. Ray said that the fence along the Reeves tract, including the contested strip, had been there "for a long, long time."
Hankins, the land surveyor, said that a continuous barbed-wire fence ran along each side of the county road. He stated that the Reeves tract was improved pasture, including the strip, and that he saw cattle there. He said that the first time he had gone to the family farm, he saw no marked difference between the land on each side of the county road but that, when he recently visited the family farm, he saw that the east side of the county road had been brush hogged. Hankins said that the east side of the county road was more of an improved hay pasture, whereas the west side was pastureland for livestock.
Ford, Jr., testified that he bought the Reeves tract from Travis in 1992. He said that the fence along the county road was up when he bought the tract. Ford, Jr., said that he did not have a survey done when he bought the land and that he assumed he owned the land to the west of the county road because of the location of the fence. He stated that Phillip had never told him the fence was on his Tract 3. Ford, Jr., said that Ford, Sr., ran cattle on the eight acres and that he sold the tract to Ray in 2015.
Jeff McJunkins testified that he remembered when his cousin Ford, Jr., purchased the Reeves tract in the 1990s and that Ford, Sr., had rebuilt the fence that ran along the county road. He stated that he is forty-six years old and that a fence had been up "longer than I can remember." He did not know whether Phillip had given Ford, Sr., permission to build the fence. Jeff said that he had not heard Phillip say that he agreed the fence was the boundary line but that he did not recall Phillip ever objecting to the fence.
Phillip testified that Clyde and Travis Reeves had done nothing with the Reeves tract and that he was not sure whether they had ever brush hogged it. He said that he did not live in Arkansas during that time and never had a discussion with them about the fence. He said that he had not learned until recently that Ford, Jr., bought the Reeves tract and that he had not spoken with either Ford, Jr., or Ray about the fence line. Phillip further testified that he had placed a game camera near the Reeves tract, and still photographs were admitted into evidence depicting Ray removing a stake with a white flag on the end in April 2016.
Mike testified that he brush hogged Phillip's land east of the county road two or three weeks before trial. He said that he had also brush hogged west of the county road two or three years before trial and explained that there was a deep ditch on that side of the road.
III. Orders on Appeal and Standard of Review
In November 2016, the trial court entered two separate orders denying appellants'
claims. The trial court found that there was no mutual recognition of the hog-wire fence as a boundary line and no silent acquiescence in the fence as a boundary. The trial court also found that appellants' use of Phillip's land was permissive and noted that the family had run the farm together. The trial court further found that appellants' use of the land enclosed by the hog-wire fence was not so notorious, hostile, or exclusive as to put Phillip on notice of any adverse use. The trial court therefore denied appellants' claims for boundary by acquiescence and adverse possession and quieted title to the land in Phillip.
The trial court entered a second order, which incorporated the findings and conclusions in the first order. In the second order, the trial court referred to both disputed areas-the area enclosed by the hog-wire fence and the area adjacent to the Reeves tract. The trial court found that there was no mutual recognition, silent or express, of the fences as a boundary. The trial court also found that, although appellants had color of title to land adjacent to the disputed areas and had paid taxes on the adjacent lands, appellants had failed to prove that they excluded all other persons from the disputed areas. The trial court noted that appellants' possession of the disputed areas was with permission, given testimony that the family had run the farm together until 2010. The trial court ordered appellants to remove their fences so that Phillip could fence his land without obstruction and ordered Ray to pay $1,072.78 for survey markers that he admittedly removed.
Equity cases are reviewed de novo on the record, and the appellate courts do not reverse the trial court's findings of fact unless they are clearly erroneous. Foster v. Wasson , 2016 Ark. App. 104, 483 S.W.3d 301. A finding 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 was made. Id. In reviewing a trial court's findings of fact, the appellate courts give due deference to the trial court's superior position to determine witness credibility and the weight to be accorded their testimony. Id.
IV. Applicable Law
A. Boundary by Acquiescence
A fence, by acquiescence, may become the accepted boundary even though it is contrary to the survey line. Barnett v. Gomance , 2010 Ark. App. 109, 377 S.W.3d 317. When adjoining landowners occupy their respective premises up to a line, which they mutually recognize and acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. Id. 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. It is the agreement and acquiescence, not the fence itself, that controls. Id. The intention of the parties and the significance they attach to the fence, rather than its location or condition, is what is to be considered. Robertson v. Lees , 87 Ark. App. 172, 189 S.W.3d 463 (2004). Neither a prior dispute about the boundary line, nor adverse usage up to a fence, is required to establish a boundary by acquiescence. Barnett, supra. Whether a boundary line exists is to be determined based on the evidence in each individual case. Hedger Bros. Cement & Materials, Inc. v. Stump , 69 Ark. App. 219, 10 S.W.3d 926 (2000). The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties.
Webb v. Curtis , 235 Ark. 599, 361 S.W.2d 87 (1962).
B. Adverse Possession
Adverse possession is governed by both common and statutory law. Horton v. Taylor , 2012 Ark. App. 469, 422 S.W.3d 202. To prove the common-law elements of adverse possession, a claimant must show that he or she has been in possession of the property continuously for more than seven years and that the claimant's possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Id. It is ordinarily sufficient proof of adverse possession that the claimant's acts of ownership are of such a nature as one would exercise over his or her own property and would not exercise over the land of another. Id. Whether possession is adverse to the true owner is a question of fact. Id. In 1995, the General Assembly added, as a requirement for proof of adverse possession, that the claimant prove color of title and payment of taxes on the subject property or contiguous property for seven years. Ark. Code Ann. § 18-11-106(Repl. 2015). If, however, the claimant's right to the disputed property vested before 1995, he or she need not comply with the 1995 statutory change. Sutton v. Gardner , 2011 Ark. App. 737, 387 S.W.3d 185.
When possession, in its incipiency, is shown to be permissive, there is a presumption of law that the subsequent possession of the same property is also permissive. Dial v. Armstrong , 195 Ark. 621, 113 S.W.2d 503 (1938). The rule is that, where the entry is permissive, the statute will not begin to run against the legal owner until an adverse holding is declared, and notice of such change is brought to the knowledge of the owner. Id. When adverse possession is asserted by one member of a family against another, stronger evidence is required to support the claim than in cases where the family relationship does not exist. Williams v. Killins , 256 Ark. 491, 508 S.W.2d 753 (1974).
V. Discussion
A. Area Enclosed by the Hog-Wire Fence
Appellants argue that they acquired the land enclosed by the hog-wire fence through boundary by acquiescence. They argue that Phillip did not object to the location of the hog-wire fence for thirty years. Appellants state that Ray and Garland openly built the fence in 1986 to raise hogs and goats, they brush hogged inside the fence, and they alone maintained the fence. They contend that Phillip remained silent and did nothing. In support of their position, appellants rely on Boyette v. Vogelpohl , 92 Ark. App. 436, 214 S.W.3d 874 (2005), and Summers v. Dietsch , 41 Ark. App. 52, 849 S.W.2d 3 (1993).
In Boyette , a fence had been constructed at a time when both tracts of land in dispute were owned by the Boyette family. In 1994, the Boyettes acquired their deed to the eastern tract, and the Vogelpohls acquired their deed to the western tract from F.C. Grass Farms Partnership. A barbed-wire fence ran north and south between their tracts. In 2000, the land was surveyed, and the survey showed that the true boundary line sat east of the barbed-wire fence. In 2002, the Vogelpohls began construction of a new fence on the true boundary line. The Boyettes filed suit alleging that the old fence represented a boundary by acquiescence, or alternatively, the disputed land had been acquired by adverse possession. The trial court quieted title to the land in the Vogelpohls. This court reversed that decision and held that the Boyettes had acquired the disputed land by both boundary by acquiescence and adverse possession.
This court noted that the fence had been in place for more than forty years. Both parties had used their property up to the fence. The trial court noted that the Vogelpohls had repaired the fence and painted it, but this court held that the Vogelpohls' conduct showed that they had acquiesced to the fence as a boundary in mowing and caring for the land up to the fence. This court also held that the Boyettes had acquired the land through adverse possession because they had openly and continuously used and occupied the east side of the fence since the 1960s.
In Summers , Roy Summers, appellant Summers's father, bought a forty-acre tract of land in 1943. In 1954, he deeded thirty acres to his father/appellant's grandfather, J.R. Summers. In 1970, Roy deeded the remaining ten acres to appellant Summers, and J.R. sold the thirty-acre tract to Dale Kesner, who then sold fifteen acres to the Dietsches in 1980. A fence running north and south divided the Dietsches' property from Summers's ten-acre tract. In 1991, the Dietsches had the land surveyed and discovered that the fence encroached on both parties' land. The Dietsches filed suit, and Summers responded, stating that the old fence represented a boundary by acquiescence or, alternatively, that the land had been acquired through adverse possession. The trial court quieted title in the Dietsches.
This court reversed and held that Summers had acquired the land through boundary by acquiescence. During the twenty-one years that Summers owned his land, neither the Dietsches nor their predecessors ever objected to the location of the fence, and both parties had used their land up to the fence and maintained the fence. The Dietsches stated that they thought the fence was on their property but admitted that they had done nothing about it until filing the lawsuit. This court did not address the adverse-possession claim.
The tracts at issue here were once part of a large family farm. Unlike Boyette and Summers , the present case involves family members on each side of the fence. The testimony showed that Garland built the hog-wire fence shortly after the brothers had been given their deeds with reference to the Spears survey and that Houston and Phillip were aware that the hog-wire fence was being built. There was testimony that the original hog pen was surrounded by an old fence, which was in disrepair, and that the new hog-wire fence was built to replace it so Garland could raise hogs and keep them separated from the cattle on the farm. The trial court concluded that the fence had not been built for the purpose of designating the property line between the brothers' tracts of land. The trial court found that there was no mutual recognition of, or acquiescence in, the hog-wire fence as the boundary line. We cannot say that the trial court clearly erred in finding that appellants failed to prove that they acquired the disputed land through boundary by acquiescence.
Appellants alternatively argue that Garland began adversely possessing the enclosed area in 1986 or 1987 when he and Ray built the hog-wire fence. Appellants state that the fence was built openly and that Phillip knew about the fence. They argue that, even if they had not adversely possessed it by 1994, they have since then because they and their predecessor have paid taxes on adjacent land and continued to use it as their own ever since.
The trial court found that appellants and their predecessor had used the disputed area with Phillip's permission. There is a presumption that their continued use of his land was with permission until notice of an adverse use was brought to Phillip's attention. Dial, supra. Phillip testified that he did not return to live in Arkansas until 2001. We cannot say that the trial court clearly erred in concluding that appellants' use of the area enclosed by the hog-wire fence was permissive. Moreover, although appellants may have satisfied the 1995 statutory requirements regarding taxes, we agree with the trial court's finding that appellants' possession of the land was neither hostile nor exclusive. It could be inferred from the testimony that Garland and Phillip had an amicable relationship given that Phillip intervened with J.D. to secure more land and the farmhouse for Garland. Also, after Phillip returned to Arkansas, he and Garland ran a joint cattle operation until 2010. Between 2005 and 2010, they both used the area enclosed by the hog-wire fence. Garland passed away in 2012, and appellants Ray, Paula, and Kip inherited the land. They filed their lawsuit in 2016, which is less than seven years of possible adverse possession. We cannot say that the trial court clearly erred in finding that appellants failed to prove that they acquired the area enclosed by the hog-wire fence through adverse possession, especially considering that stronger evidence is required when family members are involved.
B. Area Adjacent to the Reeves Tract
Appellants again rely on Boyette and Summers for their claim to the strip of land west of the county road and assert that the facts here are stronger. They argue that Phillip did not object to the fence for almost thirty years; Phillip did not run livestock on the land; Phillip never maintained the fence; and Phillip did not brush hog the narrow strip of land. According to appellants, the land was fenced and indistinguishable from the rest of the Reeves tract.
We agree with appellants that the trial court clearly erred in finding that the narrow strip adjacent to the Reeves tract was not acquired through boundary by acquiescence. Unlike the area enclosed by the hog-wire fence, there was no testimony that the Reeves tract, including the narrow strip of land, was used in Phillip and Garland's joint cattle operation. Indeed, it was not part of the family farm. The testimony showed that the strip of land had been separated from the rest of Tract 3 by a county road since Clyde owned it and had been enclosed by a fence for many years. Testimony showed that, when Ford, Jr., bought the Reeves tract in 1992 from Travis, a fence was already there and that Ford, Jr., assumed that the fence along the county road represented the property line. The fence was repaired or rebuilt by Ford, Sr., and Ford, Jr., permitted his father to run cattle on the land, including the narrow strip, but there was no testimony that he allowed other family members to do so. The testimony showed that Phillip asked Mike to brush hog Tract 3 but did not instruct him to brush hog the strip of land under fence on the west side of the county road. Hankins said that the Reeves tract, along with the disputed strip of land, was improved pasture with cows on it. The strip of land was indistinguishable from the rest of the eight acres, except for some trees to the north. Because we hold that appellants acquired this land through boundary by acquiescence, we need not address their adverse-possession claim.
C. Payment of Survey Costs
Appellants argue that Ray should not have been ordered to pay the survey costs because appellants owned the disputed areas in question. They contend that, alternatively, the trial court was confused because Ray did not remove "survey markers," but rather removed little plastic stakes that Phillip had placed on the property. Because we hold that appellants acquired the strip of land adjacent to the Reeves tract through boundary by acquiescence, we remand for the trial court to determine how much, if any, of the survey costs Ray should be ordered to pay.
Affirmed in part; reversed and remanded in part.
Abramson and Whiteaker, JJ., agree.
Although he was listed as a party below and is listed as an appellant in this appeal, the record shows that Kip died in April 2016 before trial.
We take this opportunity to remind litigants and their lawyers that we, as an appellate court, have only the record before us to review. Not having been present at the trial below to follow along with witnesses who were obviously pointing at exhibits, this court cannot know what the witnesses were referring to when using words such as "here," "there," "this," and "that." We also point out that when, as here, there was such a large family that a "McJunkins family tree" was introduced as an exhibit, some further specificity in the testimony would have been helpful, instead of saying "we" and "they."
Phillip said that this occurred in 1986, but it appears that he meant 2006.
Tax receipts were introduced into evidence showing that either Ray or Garland paid taxes on Tract 4 from 2006 through 2014 and that Phillip paid taxes on two eighteen-acre tracts of land from 2008 through 2015. Ray testified that he had paid taxes on the Reeves tract after purchasing it from Ford, Jr., in 2015 and asserted that his predecessors in title had paid taxes on it; however, no tax records on the Reeves tract were introduced into evidence. The trial court later asked, "Did everybody pay their taxes on the property as the tax records show?" Counsel for both parties answered affirmatively. | [
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WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's August 25, 2017 order. On appeal, appellant argues that (1) appellees were not entitled to recover attorney's fees and costs under Arkansas Code Annotated section 16-22-308 because (a) appellees were not sued for and did not counterclaim for a breach of contract and (b) appellees were not the prevailing parties to this action; and (2) Rule 11 sanctions were not appropriate in the matter because (a) the procedure to issue Rule 11 sanctions was not followed and (b) sanctions under Rule 11 were not justified based on the evidence provided in appellant's foreclosure action. We dismiss for lack of a final order.
Ronald T. Greenwood received title to 5212 Greenwood Road, Bauxite, AR 72011 ("subject property"), by warranty deed recorded July 12, 2002. He had previously married Linda Greenwood, but he was named as the sole grantee. Ronald died on November 30, 2005. Linda executed a separate mortgage on the subject property with appellant on July 23, 2007.
Appellant filed a complaint for foreclosure against appellees on September 26, 2016, seeking to foreclose the mortgage to the subject property. The complaint stated that Linda Greenwood had filed for protection from creditors pursuant to Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Arkansas, and that court had declared that the subject property was no longer a part of the bankruptcy estate and granted appellant relief to pursue its remedies in circuit court. Appellant sought only an in rem judgment against the subject property for $17,343.44 in addition to interest, other costs, fees, and expenses.
Jock Adam Greenwood was dismissed from the matter in the circuit court's consent decree entered on November 8, 2016, in which Jock Adam disclaimed any claim, right, title, or interest in the subject property. Joseph N. Carter filed a pro se answer in opposition to the complaint on November 21, 2016, requesting protection of his claim, right, title, or interest in the subject property. No other defendant answered the complaint.
Rodney Greenwood and Jock Adam (the Greenwoods) filed an answer and motion to dismiss on January 4, 2017, in which they asserted that they were the only children and heirs at law of Ronald T. Greenwood, deceased; and therefore, they were the sole owners of the subject property. The Greenwoods asserted that appellant's complaint was "a slander of title of the Greenwood heirs, and clouds or adversely affects their title pursuant to Arkansas Code Annotation § 5-37-226." They also stated that Linda no longer lived at the residence located on the subject property, and so they argued that she had abandoned and waived her statutory rights pursuant to Arkansas law, including allowances and any rights of dower and homestead. Accordingly, the Greenwoods argued that since appellant had acquired no interest in the subject property from either of the Greenwoods-"the true owners"-appellant's complaint should be dismissed and the mortgage declared a nullity.
Also on January 4, 2017, the Greenwoods filed a cross-claim against Linda as well as a counterclaim against appellant for slander of title, seeking damages in each. Appellant responded on January 23, 2017, denying every material factual allegation of the Greenwoods' motion for dismissal. Furthermore, appellant stated that the Greenwoods failed to comply with the requirements of Rule 12 and failed to state facts upon which relief could be granted.
On February 23, 2017, appellant filed responses to requests for admissions from the Greenwoods and admitted therein that neither of the Greenwoods had ever mortgaged or encumbered their interest in the subject property. Appellant filed a motion for voluntary nonsuit on May 22, 2017. In supplemental responses filed on May 23, 2017, appellant admitted that the subject property was currently abandoned and that Linda Greenwood "appear[ed] to have no current interest of record, and that she had made no claim to have any interest in this case."
The Greenwoods filed a motion for attorney's fees and costs on June 12, 2017, asserting that after "substantial discovery"-including filings and motions to compel against appellant-and less than five days before the trial scheduled for June 5, 2017, appellant "moved to dismiss its breach of contract/foreclosure Complaint against all [appellees], apparently finally realizing that it holds an invalid mortgage." Claiming to be the prevailing party, the Greenwoods sought $5,765 in attorney's fees and costs. The Greenwoods' counsel also filed a one-sentence brief in support of their motion for attorney's fees and cost on the same date, stating "Arkansas law provides that attorney's fees shall be awarded in cases involving breach of contract." Appellant responded on June 19, 2017, denying that the Greenwoods were entitled to attorney's fees pursuant to Arkansas Code Annotated section 16-22-308 or any other theory. It specifically argued that the Greenwoods were not parties to the contract-which they "did not even know about"-and only parties to the contract can prevail in receiving attorney's fees based on a breach-of-contract cause of action.
Following a short hearing on August 25, 2017, the circuit court entered an order dismissing appellant's foreclosure complaint with prejudice, dismissing the Greenwoods' slander-of-title counterclaim without prejudice, and awarding the Greenwoods $5,940 in attorney's fees in addition to $125 in costs, pursuant to Arkansas Code Annotated section 16-22-308 and Rule 11 of the Arkansas Rules of Professional Conduct "due to the attorney's signings of pleadings which had no evidentiary basis."
On September 5, 2017, appellant moved to set the judgment aside pursuant to Rule 50 and moved that the judgment be modified or vacated pursuant to Rule 60 of the Arkansas Rules of Civil Procedure. It first noted that the August 25, 2017 order purported to provide relief to Jock Adam whose rights had been disclaimed and who had been dismissed as a party in the November 8, 2016 consent decree. It asserted that (1) the circuit court could not dismiss its complaint with prejudice because it had nonsuited its complaint on May 22, 2017, before the case was submitted, according to its absolute right to do so; and (2) the Greenwoods' counterclaim should have been dismissed with prejudice because the Greenwoods made no motion to dismiss the counterclaim before the case was submitted and no evidence was presented on the counterclaim. Finally, it argued that there was "absolutely no basis for imposing Rule 11 sanctions" because the Greenwoods never sought sanctions and no one challenged the validity of the loan to Linda, only whether that loan created a valid security interest in the property. The Greenwoods responded on September 12, 2017, denying all material allegations in appellant's motion. The circuit court did not address the motion, and so it was deemed denied on October 5, 2017. Appellant filed this timely appeal of the August 25, 2017 order.
Although neither party raises the issue of finality, the court must necessarily address it because it affects our jurisdiction over the appeal. A compulsory counterclaim is "any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction." An action for slander of title is "based on malicious publication of a false matter that disparages the title to property." The slander-of-title claim arises out of the same transaction or occurrence as appellant's original lawsuit; thus, it is a compulsory counterclaim. Because the dismissal of this compulsory counterclaim was without prejudice, the order appealed from is not final. Accordingly, this court is without jurisdiction to address the merits of this appeal.
We note that the circuit court failed to dispose of the Greenwoods' cross-claim against Linda. The presence of an unresolved cross-claim deprives the appellate court of jurisdiction to hear the appeal, even when the cross-claim appears to have been implicitly resolved by the outcome of the trial.
Finally, we note that neither the unknown heirs of Ronald T. Greenwood; Linda Greenwood; Joseph N. Carter; nor the tenants of 5212 Greenwood Road, Bauxite, Arkansas (If Any), were dismissed as parties. We note specifically that Carter sought protection of his interest in the subject property in his pro se response to the complaint. An appeal may be taken from a "final judgment or decree entered by the circuit court." A final order is one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy. Absent a certificate from the circuit court directing that the judgment is final, "any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties." Accordingly, the order appealed from is also not final because it does not address appellant's claims against the above-referenced parties nor dismiss them, and it does not address Carter's claimed interest in the property.
Dismissed.
Glover and Vaught, JJ., agree.
(Repl. 1999).
This court notes that the initial filings of the parties, as well as the warranty deed and mortgage, show the subject property's correct address as 5212 Greenwood Road, Bauxite, AR 72011. However, by the end of the case, the case caption erroneously refers to the address of the subject property as "512 Greenwood Road."
Though one "Rodney Clark" is named as a defendant below and therefore also is an appellee before this court, the Greenwoods' answer and motion to dismiss states that Rodney Greenwood is "apparently referred to as Rodney Clark in [appellant's] complaint." No other explanation or further discussion of "Rodney Clark" appears in the record.
Neither the motion nor the brief referenced any legal authority for their claim of entitlement to attorney's fees and costs.
The notice of appeal does not include the deemed denial of appellant's motion to set the judgment aside and its motion to have the judgment modified or vacated.
Belk v. Belk , 2015 Ark. App. 682, at 3, 476 S.W.3d 861, 863 (citing Crockett v. C.A.G. Investments, Inc. , 2010 Ark. 90, 361 S.W.3d 262 ).
Id. , 2015 Ark. App. 682, at 3-4, 476 S.W.3d at 863 (citing Ark. R. Civ. P. 13(a) ).
Id. , 2015 Ark. App. 682, at 4, 476 S.W.3d at 863 (citing Fleming v. Cox Law Firm , 363 Ark. 17, 210 S.W.3d 866 (2005) ).
Id. (citing Crockett, supra ).
SEECO, Inc. v. Holden , 2014 Ark. App. 227, at 3, 2014 WL 1396673 (citing Bulsara v. Watkins , 2010 Ark. 453, 2010 WL 4680270 ; Ellis v. Agriliance, LLC , 2012 Ark. App. 549, 2012 WL 4668317 ; Lamco Ltd. P'ship II v. Pasta Concepts, Inc. , 2012 Ark. App. 145, 2012 WL 474762 ).
Roberts v. Riege , 2017 Ark. App. 408, at 1-2, 526 S.W.3d 60, 61 (citing Ark. R. App. P.-Civ. 2(a)(1), (2) ).
Johnson v. Windstream Commc'ns, Inc. , 2016 Ark. App. 419, at 2, 2016 WL 5122562 (citing Rigsby v. Rigsby , 340 Ark. 544, 546, 11 S.W.3d 551, 552 (2000) ).
Bevans v. Deutsche Bank Nat'l. Tr. Co. , 373 Ark. 105, 106, 281 S.W.3d 740, 741 (2008) (citing Ark. R. Civ. P. 54(b)(2) (2007) ). | [
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RITA W. GRUBER, Judge
Terence Powell appeals from the Sebastian County Circuit Court's revocation of his suspended imposition of sentence. The circuit court found that Smith had violated the conditions of his suspension by committing a felony-specifically, domestic battery-and revoked his suspended sentence. The court sentenced him to three years' imprisonment plus three years' suspended imposition of sentence on the underlying count of aggravated assault on a family or household member. His sole point on appeal is that the circuit court erred by allowing evidence of a 911 call that violated his Sixth Amendment right to confront and cross-examine the witnesses against him. We hold that the circuit court did not violate his rights under the Confrontation Clause and affirm his conviction.
The victim of appellant's battery in the revocation was a woman named Chantelle Norwood. Chantelle did not attend the hearing. Chantelle had called 911 on the night of the incident, and the 911 call was answered by Shanghaleza Benton, who did attend the hearing. She was the State's first witness. Before Ms. Benton testified, appellant's counsel moved to exclude audio of the 911 call, and any testimony regarding what Chantelle said, under the Confrontation Clause because Chantelle was not present at the hearing for appellant to cross-examine. The court took the motion under advisement and allowed Ms. Benton to testify.
Ms. Benton testified that she worked in dispatch for the Fort Smith Police Department taking 911 emergency and nonemergency calls. She admitted that she had taken such a call from Chantelle on March 9, 2015, whereupon the CD of the call was admitted into evidence and played for the court. In the call, Chantelle stated that she had just been severely beaten by her ex-boyfriend. Ms. Benton asked for her address, which Chantelle provided. Chantelle then said that the perpetrator was "walking and hiding in the alley right now" and asked Ms. Benton to "[p]lease send officers." In response to Ms. Benton's questions, Chantelle gave Ms. Benton her name and the name of her ex-boyfriend, appellant. When Ms. Benton asked Chantelle how long before the call had appellant beaten her, she said, "Like 10 minutes ago." The State also put on the testimony of two detectives from the Fort Smith Police Department to describe Chantelle's injuries.
At the conclusion of the State's case, the circuit judge found that the 911 call was not testimonial and thus that the Confrontation Clause did not apply. His impression was that it was an "ongoing, potentially emergent event" given that appellant was still hiding in the back alley at the time of the 911 call and that Chantelle had asked Ms. Benton to "please send officers."
On appeal, appellant argues that the circuit court violated his constitutional right to confront the witnesses against him under the Confrontation Clause. Although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront witnesses is applicable. Howard v. State, 2016 Ark. App. 69, 482 S.W.3d 741. Because this appeal raises a question of constitutional interpretation, it is subject to this court's de novo standard of review. Vankirk v. State, 2011 Ark. 428, at 4, 385 S.W.3d 144, 147.
The Confrontation Clause applies only to testimonial statements, not to nontestimonial statements. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ; see also Vankirk, 2011 Ark. 428, 385 S.W.3d 144. In Davis, the Supreme Court held that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis, 547 U.S. at 822, 126 S.Ct. 2266. Similarly, in Seely v. State, 373 Ark. 141, 152, 282 S.W.3d 778, 787 (2008), our supreme court held that the test for determining whether the introduction of a statement violates the Confrontation Clause should remain focused on the circumstances surrounding the statement and whether those circumstances objectively indicate that the primary purpose of the statement is to prove events relevant to criminal prosecution, and "[w]here a statement is made to a government official, it is presumptively testimonial, but the statement can be shown to be nontestimonial where the primary purpose of the statement is to obtain assistance in an emergency." Id.
In this case, the purpose of Chantelle's statement to the 911 operator was to obtain assistance in an emergency. She called 911 because appellant had beaten her and was hiding in the alley outside of her house; she needed police assistance. The 911 operator obtained information from Chantelle that was necessary to help the dispatched officers determine for whom they were searching and what they could expect to find at the scene. The events were unfolding at the time the call was made, and the information was provided to assist the police in resolving the situation. Accordingly, we hold that Chantelle's statements to Ms. Benton were nontestimonial and, thus, the circuit court did not err in allowing the recording of the 911 call to come into evidence over appellant's Confrontation Clause objection.
Affirmed.
Gladwin, C.J., and Virden, J., agree.
The petition to revoke alleged two violations of appellant's suspended sentence. The circuit court failed to make findings regarding the alleged nonpayment of the court-ordered fines, costs, and fees despite the introduction of the fine ledger in this case. | [
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BRANDON J. HARRISON, Judge
This appeal involves multiple circuit court cases that were consolidated. Simply summarized, the cases below involved a property dispute and administration of a trust. The appellants want this court to reverse the circuit court's decision to allow an outrage claim to go to a jury. We must dismiss the appeal without prejudice because no final order has been entered. Because this case is not one in which the finality issues can be simply stated, a robust explanation of the parties' dizzying legal moves in the circuit court is required.
I. Background
Mary Petty, known as Cathy, and B.J. Petty, who is now deceased, raised three children on some land in Hot Spring County, Arkansas. David Petty and Deandra Petty Louton are Cathy's biological children, and Mark Petty is her stepson. Regarding the property-dispute angle, the tract at issue is approximately nineteen acres that Cathy and B.J. owned. All three adult children and their families have lived in separate homes on the property.
Case number 30CV-15-194 was filed in August 2015. In that case Deandra and Mark filed a complaint against Mary C. Petty Family Trust, David Petty as Trustee, and Mary C. (Cathy) Petty Individually and as Trustee for "parol gift of land," breach of contract, "constructive trust," "common law action to set aside deed for lack of capacity and/or undue influence," promissory estoppel, unjust enrichment, "laches," and a request for a temporary injunction. In October 2015, the Mary C. Petty Family Trust, David, and Cathy filed counterclaims against Deandra and Mark for quiet title, ejectment, unlawful detainer, and boundary by acquiescence (as alternative relief).
In December 2015, David Petty-individually and as trustee of the Mary C. Petty Family Trust-sued Robert Louton, who is Deandra's husband. That complaint generated case number 30CV-15-308, in which David asked for injunctive relief and a restraining order because Robert had allegedly engaged in vandalism, harassment, trespassing, and "general maliciousness." David also asked the court to award "property damage/money damages" and arguably makes trespass and trespass-to-chattel claims. Robert counterclaimed against David, filing the intentional torts of outrage and abuse of process.
In January 2016, Deandra and Mark amended their complaint in case number 30CV-15-194 to add claims for "specific performance and estoppel," quantum meruit, and restitution.
The circuit court entered a nonsuit order in April 2016 and dismissed Deandra and Mark's claims for breach of contract, specific performance, and quantum meruit as a result. The order expressly dismissed the claims without prejudice.
In July 2016, the circuit court ordered that the parties have no contact with one another except through counsel until a "final determination can be made on the issues." Also around that time, Deandra, who is a beneficiary of the Mary C. Petty Family Trust, filed a "motion to disqualify trustee; to set aside trustee's deed and the contract for the sale of real property; and for an accounting" in case number 30CV-15-194. Deandra asked the circuit court to remove David as trustee of the trust and to order an accounting of trust income, and she alleged "a serious breach of trust." It is unclear whether the "serious breach of trust" is a tort claim for breach of fiduciary duty, or merely a statutory ground for removing David as trustee, or both. Ark. Code Ann. § 28-73-706(b)(1) (Repl. 2012). Whatever it is, Deandra alleged in the motion that David acted wrongly when he conveyed the disputed property from the Petty Trust to himself individually.
In August 2016, Deandra and Mark amended their complaint again and asked for the following relief:
(a) Specific performance in the form of an Order directing the Defendants, Mary C. (Cathy) Petty and/or David Petty and/or the trustee of the Mary C. Petty Family Trust to convey that portion of the subject property and access to the subject property to the Plaintiffs, Deandra Louton and Mark O. Petty.
(b) Attorney's fees for relief.
(c) Damages for alternative relief.
(d) The Court enter a temporary order enjoining the Defendants from removing, locking, blocking or otherwise prohibiting Plaintiffs from occupying the property pending a final hearing in this matter.
The record shows that Deandra and Mark asked for a bench trial in October 2016. They also filed a paper addressing issues related to amendment 80 to the Arkansas Constitution and concluded that all claims should be tried to the court. A 2 November 2016 order set the case for a bench trial. The court consolidated cases 308 and 194 in late November 2016. The surviving case number was 194. The consolidation orders stated that "[c]ase number 30CV-2015-194-1 is currently set for trial on for December 1st and 2nd as a bench trial. The consolidated cases will be tried at that time." Although not in the addendum, the record shows that David and Cathy filed a "renewed demand for jury trial" on December 2 and asked that a jury hear Robert's outrage and abuse-of-process claims. On 6 December 2016, Robert moved to deconsolidate the case so that the outrage and abuse-of-process claims could be tried separately. The court denied the motion, stating that the "motion to remove the trustee, David Petty, is abated until after the trial," and the "motion for contempt will be heard later after the trial."
A pretrial conference was held in late December, during which the circuit court stated:
I'm going to have to deal with a substantial amount of issues involving the Court and dealing with these equitable issues that are out here and how to tie those into a legal premise for whether the jury should be submitted that part of the case. It may be, as we go through this trial, when we do the directed verdicts that I may make a finding that those equitable issues are going to be heard by the Court and not by the jury if I deem it that they do not fall within the common law exception that they could be used or may be used. And I know y'all need to be prepped to make your argument on that issue. That they may not be, they may be equitable in nature only and that they can't be wrapped up, even though Amendment 80 is out there, because the Ludwig case pretty well has set us a four-prong test for us to follow to determine whether or not we truly believe that that case should be submitted to the jury. And we have to make that finding. And so some of these issues that we have out here may not in any way be submitted.
Trying to solve the Rubik's Cube that was the parties' pleadings, the court told the parties that "you've got lots of problems, both sides" and "it's a mess." To their credit, the parties tried to simplify the case by orally nonsuiting various claims. The court also stated that the "only way I can submit this case with the equitable issues along with the legal issues that are before the Court is that I do it on interrogatories." Given the record before us, it seems that the parties offered no instructions or interrogatories on any claims but Robert's outrage and abuse-of-process claims.
The case was tried, and the jury returned a verdict for Robert on his abuse-of-process claim and awarded $0 in compensatory damages. The jury also found that the tort of outrage had been committed and awarded $5,000 in compensatory damages and $20,000 in punitive damages. A "judgment" was entered "against David Petty, Individually and as Trustee of the Mary C. Petty Family Trust and the Mary C. Petty Family Trust in the amount of $25,000" on 18 January 2017. The next day, January 19, the "Mary C. Petty Family Trust, David Petty, Trustee, and Mary C. Petty, individually and as trustee" filed a notice of appeal "from the Court's ruling of record on January 18, 2017" and designated the entire record on appeal; but the appellants did not abandon any pending but unresolved claims. See Ark. R. App. P.-Civ. 3(e)(vi) (2017).
A few weeks later, on 8 February 2017, the court entered an "Order After Hearing." The February 8 order, which is not in either party's addendum, reflects that David's directed-verdict motion on both the abuse-of-process and outrage claims were denied. The jury ultimately rendered a verdict on those claims. The order also states, in pertinent part:
IV.
The Defendants' directed verdict motion on the issue of parol gift is granted. The Court has reviewed the cases submitted by the Parties and it would be reversible error for me to allow this equitable issue concerning land to go to the Jury. The Plaintiffs have failed to prove by clear and convincing evidence that there was a conveyance of land, and that valuable improvements were made on the property as a result of the conveyance. Without that proof a conveyance of land as is in this case is still controlled by the Statute of Frauds. As to the valuable improvements; the proof before the Court is, that what was done in the way of improvements was no more than what is normally done when setting up a mobile home on property, and were necessary before the parties could live there, such as the septic system and electricity. Moreover, there is no proof that the Parties received any specific portion of land, and despite claiming that a gift of five (5) acres was made to each child approximately thirty (30) years ago, Mr. Petty died in 2008. At that time the land was held as tenants by the entirety and by operation of law all the property went to Mrs. Petty. There was more than ample time to have made a specific conveyance of that land and it did not happen before Mr. Petty's death and it has not happened since his death, and Mrs. Petty owns the land and I cannot force her to give it to you.
V.
Title in the subject property is quieted and vested in Mary C. Petty and or the Mary C. Petty Trust. There are other sub-issues related to that Trust but those are not before the Court today and therefore not an issue for me.
VI.
The Plaintiffs, Deandra Louton Petty and Mark Petty, will have until May 31st 2017 to remove all personal property including mobile homes and any other item belonging to them. Anything remaining on the property after May 31st 2017 shall be deemed abandoned, and the property of Mrs. Petty.
No amended notices of appeal were filed. No cross-appeal was filed.
II. Discussion
This court must have jurisdiction over an appeal before it can decide the merits. Whether an order is final and appealable is jurisdictional, meaning we will raise the issue on our own initiative. Splawn v. Wade , 2013 Ark. App. 187, 427 S.W.3d 89. Absent a Rule 54(b) certificate, when a case contains more than one claim for relief, a judgment that adjudicates fewer than all the claims is neither final nor appealable. Ark. R. Civ. P. 54(b)(2).
Pursuant to Rule 41(a)(1) of the Arkansas Rules of Civil Procedure, a plaintiff may dismiss a claim without prejudice before the case is submitted to the jury; but "it is effective only upon entry of a court order dismissing the action." Ark. R. Civ. P. 41(a)(1). Rule 41 also applies to counterclaims, cross-claims, and third-party claims. Ark. R. Civ. P. 41(c) (2017). In some circumstances, even a written order reflecting a nonsuit of the plaintiffs' claims may not create finality. Pockrus v. Morris , 2017 Ark. App. 293, at 2 (plaintiff's nonsuited complaint did not create finality because it could be refiled). The case law is admittedly not clear on when a final order exists in cases that have been consolidated under Rule 42. See Barnhart v. City of Fayetteville , 316 Ark. 742, 744, 875 S.W.2d 79, 80 (1994) ( Rule 54(b) certificate deficient). But cf. Hall v. Hall , --- U.S. ----, 138 S.Ct. 1118, 1121, 200 L.Ed.2d 399 (2018) (constituent cases retain their separate identities at least to the extent that a final decision in one is immediately appealable by the losing party under federal law).
There is no Rule 54(b) certificate in this case, nor is the January 18 order the appellants appealed a final order. One reason for the lack of finality is that an oral nonsuit of a claim is ineffective unless the court enters a written order. Ark. R. Civ. P. 41(a)(1). Here, the parties' oral attempt to nonsuit various claims before the trial started was ineffective because no written court order was subsequently entered on those claims.
The oral nonsuit of some claims is not the only finality issue in the case. Robert's outrage and abuse-of-process claims were cross-claims that were filed in case number 308. In that case David Petty-individually and as trustee of the Mary C. Petty Family Trust-filed a complaint against Robert that raised several tort claims. Another final-order problem is that no order has decided David's claims-the ones linked to Robert's counterclaims.
The finality deficiencies noted in this opinion should not be taken as a complete list. If another appeal is pursued, more care must be taken to ensure that the appeal is from a final, appealable order and that the briefs and addendum materials sufficiently establish appellate jurisdiction. We have engaged in this historical review as an aid to the parties and the circuit court, but it remains an appellant's responsibility to ensure that finality exists.
III. Appellee's Motion for Attorney's Fees & Costs
Robert has moved this court to award him attorney's fees and costs for having to prepare a supplemental abstract and addendum. The supplemental material was not needed to determine whether we have jurisdiction, so the motion is denied without prejudice.
IV. Conclusion
This appeal is dismissed without prejudice for want of a final, appealable order, and the motion for fees and costs is denied without prejudice.
Appeal dismissed without prejudice; appellee's motion for attorney's fees and costs for supplemental abstract and addendum denied without prejudice.
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ROBERT J. GLADWIN, Judge
The Madison County Circuit Court terminated Fred Northcross's parental rights by order filed November 21, 2017. Northcross appeals, arguing that the statutory grounds relied on by the circuit court are not legally applicable to him; thus, he claims that the termination-of-parental-rights (TPR) order must fail. We agree with Northcross's argument and reverse and remand to the circuit court.
I. Facts and Procedural History
Appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect (DN) on June 6, 2017, alleging in the attached affidavit that Northcross had been arrested for possession of methamphetamine and child endangerment on June 1, 2017. Northcross was identified in the petition as the putative father of two children, C.G., born February 28, 2014, and K.G., born May 11, 2016. The children were with Northcross at the time of his arrest, but he denied knowing them. Their mother, Tracy George, tested positive for methamphetamine and amphetamines when she arrived to retrieve them. She later admitted to daily methamphetamine use. DHS took a 72-hour hold on the children, and the circuit court filed an ex parte order for emergency custody reflecting that DHS had been involved with the family since 2009 and that the family had been provided with counseling, drug screens, and drug rehabilitation in the past. However, these services did not prevent removal, as both parents continued to be involved with drugs as described.
The probable-cause order states that Northcross is the putative father and that probable cause existed for the children to remain in DHS custody. George and Northcross were ordered to comply with all requirements contained in the order. Northcross was also ordered to resolve all criminal charges.
In the adjudication-and-disposition order, Northcross was again listed as the putative father. The circuit court found by a preponderance of the evidence that the children were DN due to neglect and parental unfitness, noting the use and dealing of illegal drugs by the parents and Northcross's denial that he knew the children when he was arrested. The circuit court found that the children had been subjected to aggravated circumstances and that there was little likelihood that services to the family would result in successful reunification. The circuit court noted that the parents had their rights previously terminated on another child due to the same issues present in this case.
DHS filed a TPR petition on July 31, 2017, alleging that Northcross is the putative father and that paternity had not been established. DHS listed the statutory grounds of aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) (Supp. 2017), and prior involuntary termination of parental rights to a sibling of the child, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) . DHS alleged that the children would be subjected to potential harm if returned to the custody of George and Northcross.
A no-reunification-services and permanency-planning order reiterated that the children had been removed from the home and placed in DHS custody because their parents were using and selling illegal drugs. Further, Northcross was listed as the putative father. The circuit court changed the goal of the case to adoption and found that the parents were not complying with the case plan. Specifically, the circuit court found that Northcross, the putative father, had not complied with any of the court orders or the case plan. The circuit court found that he had made minimal progress toward alleviating the cause of the children's removal from the home and completing the court orders and requirements.
Northcross was notified of his right to have an attorney represent him at the termination hearing, and he was allowed visitation once a week for one hour. He was also ordered to have a drug-and-alcohol assessment, follow the recommendation, and attend "Celebrate Recovery at the skating rink." Northcross was ordered to submit to DNA testing and resolve the issue of paternity. Northcross was given two weeks to complete the DNA testing and sign a release of information if he were to be accepted into drug court. If accepted into drug court, Northcross was to successfully complete it and follow the rules.
The circuit court specifically found that DHS proved by clear and convincing evidence that the "mother and father" had subjected the children to aggravated circumstances. Those circumstances were that there was little likelihood that services to the family would result in successful reunification because "the parents" had previously received services for the same issues in a prior case that resulted in the placement of two siblings with relatives.
DHS filed an amended TPR petition listing Northcross as the putative father and alleging that at the time of removal of the children, he had physical care and control of them. DHS asserted that DNA testing revealed that Northcross is the biological father of both children. DHS alleged that the circuit court had appointed counsel to Northcross at the permanency-planning hearing, that Northcross had sufficient contacts with the children for parental rights to attach, and that the court should terminate those rights. DHS asked for a specific finding that parental rights had attached or that they had not. If they had not, DHS asked that the circuit court dismiss Northcross because it is reversible error to terminate rights when those rights do not exist. If rights had attached, DHS asked that the circuit court terminate Northcross's parental rights because there were grounds to do so and it was in the children's best interest. DHS alleged the grounds of "other factors" or issues that arose subsequent to the filing of the original petition, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) , and "aggravated circumstances," Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) .
After a hearing on October 27, 2017, the circuit court ordered that Northcross's parental rights should be terminated based on the statutory grounds listed in DHS's petition. However, the order contains no finding that Northcross is the parent. Northcross is listed in the style of the order as "putative father" but is included in the order's opening paragraph listing those present as "Father, Fred Northcross." In paragraph 2 of the termination order, the circuit court found that "[t]he father was served pursuant to Rule 4, specifically the father was served through substitute service while incarcerated[.]" The circuit court noted in the same paragraph that "both parents have received proper notice of this proceeding." Northcross is referred to as "father" in the circuit court's findings regarding both statutory grounds, save for one reference to him as the "putative father," and both parties are referred to collectively as "parents."
The circuit court found that it was in the children's best interest that parental rights be terminated and specifically considered the likelihood that they would be adopted. The circuit court also found that it had considered the potential harm to the children if placed back in their parents' custody.
II. Standard of Review and Applicable Law
Northcross filed a timely notice of appeal. On appeal, he challenges the legality of the circuit court's order because Northcross was listed as the "putative" father and the grounds for termination pertain to the "parent." Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents.
Earls v. Ark. Dep't of Human Servs. , 2017 Ark. 171, 518 S.W.3d 81. We review termination-of-parental-rights cases de novo. Harjo v. Ark. Dep't of Human Servs. , 2018 Ark. App. 268, 548 S.W.3d 865. At least one statutory ground must exist, in addition to a finding that it is in the children's best interest to terminate parental rights. Ark. Code Ann. § 9-27-341 ; Kohlman v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164, 544 S.W.3d 595. We will not reverse the circuit court's ruling unless its findings are clearly erroneous. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.
[W]e review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Baker Refrigeration Sys., Inc. v. Weiss , 360 Ark. 388, 201 S.W.3d 900 (2005) ; Monday v. Canal Ins. Co. , 348 Ark. 435, 73 S.W.3d 594 (2002). Thus, although we are not bound by the trial court's interpretation, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.
The basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss , 361 Ark. 153, 205 S.W.3d 767 (2005) ; Arkansas Tobacco Control Bd. v. Santa Fe Natural Tobacco Co., Inc. , 360 Ark. 32, 199 S.W.3d 656 (2004). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id.
Dep't of Human Servs. v. Howard , 367 Ark. 55, 61-62, 238 S.W.3d 1, 5-6 (2006). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Ark. Sch. for the Blind , 341 Ark. 939, 20 S.W.3d 397 (2000) ; Burcham v. City of Van Buren , 330 Ark. 451, 954 S.W.2d 266 (1997).
In Earls , supra , the circuit court held that two grounds had been met when it terminated Mr. Earls's parental rights, Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) (child out of home of noncustodial parent for twelve months and conditions causing removal not remedied) and § 9-27-341(b)(3)(B)(ii)(a) (child out of home of parent for twelve months and parent failed to provide significant material support). Earls , 2017 Ark. 171, at 8-9, 518 S.W.3d at 86. Mr. Earls argued that the circuit court erred in both findings because the statute requires that the child must have lived out of the custody of the "parent" or noncustodial "parent" for twelve months. Id. at 9, 518 S.W.3d at 87. Mr. Earls claimed that at the time of the termination hearing, he had not been found to be the "parent." Id.
The record demonstrated that although it was determined through a paternity test that Mr. Earls is the father, and the test results were admitted into evidence at the permanency-planning hearing, the circuit court did not recognize Mr. Earls as the biological father and continued to treat him as a putative father. Id. In the circuit court's permanency-planning order, the circuit court referred to Mr. Earls as the putative father. Id. at 9-10, 518 S.W.3d at 87. In its petition for TPR, DHS listed Mr. Earls as putative father. Id. at 10, 518 S.W.3d at 87. At the termination hearing, the circuit court recognized that Mr. Earls's legal status needed to be addressed, and a colloquy of the circuit court's comments to that effect was reproduced in the Arkansas Supreme Court's opinion. Id. The supreme court also noted that the record did not contain an order establishing Mr. Earls's legal status and that the termination order listed him as the putative father. Id.
Applying the rules of statutory construction, our supreme court held that the record failed to demonstrate that Mr. Earls's legal status as a either putative parent or a biological parent had been established. Id. at 11, 518 S.W.3d at 88. The court recognized that Mr. Earls had been appointed counsel for the termination hearing and was "afforded rights as a parent." Id. However, the court held that the record did not demonstrate that his legal status as the biological parent had been established to apply the twelve-month time period described in the statute. Id. In a footnote, the court stated,
Even assuming that the dissent is correct that the circuit court's vague statement in the March 30, 2016 termination hearing, "I have ... DNA test results with Mr. Earls at a 99.9 percent probability that he's the father of the twins," established that Earls was the legal father, the 12-month statutory requirement has not been met. See Ark. Code Ann. § 9-27-341. Further, at the termination hearing, the circuit court explained it had continued the hearing because the circuit court had not entered findings regarding Earls's "legal standing." Immediately after stating that the DNA results demonstrated Earls was the father, the circuit court recognized that it "should have had Mr. Earls before the court attempting to meet his burden to determine where he falls. I guess he falls legally since we've got that, doesn't he?" The circuit court ended the colloquy regarding Earls's legal status with a question, not a finding.
Id. at 11 n.2, 518 S.W.3d at 88 n.2. The supreme court reversed, concluding that "Earls's rights had not attached to then be terminated" and noted that its interpretation supported the goal of our juvenile system provided in Ark. Code Ann. § 9-27-302 to assure that juveniles who are brought to the courts' attention receive the guidance, care, and control, preferably in each juvenile's own home, and to provide a means for a fair hearing and enforcement of the parties' constitutional and other legal rights. Id. at 11-12, 518 S.W.3d at 88.
III. "Putative Parent" vs. "Parent"
Northcross argues that just as in Earls , the circuit court erred in terminating his parental rights when it employed two grounds against him that pertain only to a "parent," because he was treated at all times as a "putative parent," including in the termination order. He claims that because the grounds cited by the circuit court are not legally applicable to him, the termination order must fail.
Northcross contends that despite DHS's submission of his DNA test result that reflected a 99.99 percent probability of paternity on both children and its admission into evidence, the circuit court never entered an order finding him to be the legal father. He further claims that DHS did not correct the oversight when it drafted the termination order and "listed" him as the "putative father." Northcross also points to the circuit court's statement at the close of the termination hearing that "I find that Mr. Northcross had not established paternity by filing a petition."
The circuit court relied on two grounds to terminate Northcross's parental rights: (1) other factors or issues that arose subsequent to the filing of the original petition, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) ; and (2) aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) . Northcross contends that neither ground is supported by sufficient evidence because both pertain only to a parent, and at the time of the termination hearing, and even in the resulting termination order, Northcross had not been found to be the "parent." Northcross claims that his case is squarely addressed by Earls , supra , and his positive DNA test did not elevate his "putative father" status to that of a "parent." We hold that in all respects, this case aligns with Earls .
"Putative father" means any man not deemed or adjudicated under the laws of the jurisdiction of the United States to be the biological father of a juvenile who claims to be or is alleged to be the biological father of the juvenile. Ark. Code Ann. § 9-27-303(47). "Parent" is defined as a man "who has been found by a court ... to be the biological father of the juvenile." Ark. Code Ann. § 9-27-303(40). DHS contends that "parent" as defined in the statute encompasses a circuit's court "deeming" a man to be the biological parent, even without a specific written finding, citing Earls , 2017 Ark. 171, at 13, 518 S.W.3d at 89 (Wood, J., dissenting). Further, DHS argues that it makes sense to allow a circuit court to deem a man the biological father in DN proceedings because neither DHS nor the juveniles can petition for paternity establishment. See Ark. Code Ann. § 9-10-104 (Repl. 2015).
DHS argues that Earls, supra , does not establish a bright-line rule for determining when a man may be treated as a "parent" but instead demonstrates that absent an explicitly written finding, the reviewing court must engage in a fact-specific inquiry to determine whether a man's status is that of "parent." DHS points to the distinguishing factor that the appellant in Earls had not established a relationship with the juveniles and had not participated meaningfully in the case. See id.
DHS cites Brown v. Arkansas Department of Human Services , 2018 Ark. App. 104, 542 S.W.3d 899, wherein this court found that Brown consented to the circuit court's oral adjudication that he was the legal father when he failed to object to that finding at trial. DHS also cites Johnson v. Arkansas Department of Human Services , 2018 Ark. App. 221, 547 S.W.3d 489, wherein this court held that DHS proved and the circuit court found that Johnson was a "parent," even though no order expressly determined that Johnson was a "parent." The case turned on facts that distinguished Earls , including the circuit court's statement that "[Johnson] was [the] putative father of the child at the time the child was taken into care.... [H]e completed a referred DNA test that showed him to be the biological father of the child." Johnson, 2018 Ark. App. 221, at 13, 547 S.W.3d at 498.
DHS argues that the circuit court deemed Northcross to be the "parent" and that substantial evidence supports that conclusion. DHS emphasizes that the children had been removed from Northcross's physical custody; the DNA results established a 99.99 percent probability of paternity, and Northcross did not object when those results were admitted into evidence; the circuit court afforded Northcross visitation with the children; and the circuit court made Northcross a party to the case and afforded him an attorney. Further, DHS contends that at the trial Northcross did not directly dispute that he is the biological father, and he does not dispute it on appeal.
DHS claims that the circuit court's oral ruling-that Northcross had not established paternity by filing a petition-can be interpreted as a finding that Northcross had not formally established paternity by filing a petition, not as a finding that he is not a "parent." Finally, DHS argues that the termination order refers to Northcross as "father" and "parent" throughout, except for in the style of the case.
The attorney ad litem argues that the evidence of the minors' parentage was fully developed because the DNA test results showing that Northcross is their father was admitted into evidence without objection from Northcross. The ad litem urges this court to affirm with the modification that Northcross is the minors' parent.
The ad litem contends that in this equity matter, this court is not required to reverse when the circuit court does not "dot every 'i' and cross every 't.' " See Ferguson v. Green , 266 Ark. 556, 587 S.W.2d 18 (1979) (a specific-performance case wherein the Arkansas Supreme Court stated that its invariable practice is not to remand a case for further proceedings and proof when it can plainly see what the equities of the parties are, but rather to render such decree as should have been rendered below). The ad litem argues that this case should be affirmed with the modification that Northcross is the biological father.
Despite the arguments to affirm the circuit court's order, we are compelled to follow Earls, supra. There, a positive DNA test was admitted into evidence, but the circuit court never elevated the appellant's status to that of "parent" by making a "finding" that he was the biological father. Earls , 2017 Ark. 171, at 9, 518 S.W.3d at 87. Without a finding, the entry of the DNA test was legally insufficient to make Mr. Earls a "parent." Id. Here, the exact scenario exists. Plus, as a distinction from Brown , supra , and Johnson, supra , DHS specifically requested in its amended TPR petition that the circuit court make a finding regarding paternity or whether Northcross had contacts with the children sufficient for parental rights to attach. The circuit court made no such finding, but the circuit court specifically reopened the record at the close of the hearing to state that Northcross had not petitioned to establish paternity. This court cannot make a finding regarding paternity when the circuit court deliberately did not do so. Relying on Earls , we reverse and remand.
Reversed and remanded.
Glover and Whiteaker, JJ., agree.
Tracy George had her parental rights terminated in the same order as Northcross, but she did not appeal and is not a subject of the case on review.
The circuit court corrected this finding in its no-reunification-services order by stating that the prior DHS involvement and services to the family had resulted in placement of two of the parties' children, who are not subjects of the current case, with relatives. | [
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RITA W. GRUBER, Chief Judge
April Major appeals from an order of the Faulkner County Circuit Court granting Michael Penney's motion for change of custody. April contends that the circuit court erred in finding that there was a material change in circumstances sufficient to warrant a change in custody and that a change in custody was in the best interest of the children. We disagree and affirm.
April and Michael were married on March 22, 2007. The parties have two children, T.P., born November 1, 2006, and P.P., born July 9, 2008. The parties were divorced by an order of the Faulkner County Circuit Court on March 19, 2010. The order incorporated a written custody, support, and property-settlement agreement, which contained the following:
10. The parties shall have joint custody with Wife retaining primary custody of the parties' minor children, subject to Husband's visitation privileges. Both parties are in the military and will be deployed in 2010 and/or 2011. When the residential parent is away for extended time, the other parent will be the primary caregiver. If for some reason the other parent cannot provide the childcare, then care shall be the responsibility of Barbara Penney, paternal grandmother or Lori Scroggins, maternal grandmother.
The agreement further provided that Michael's visitation would be determined according to whether the parties resided in the same county or different counties. If the parties resided in the same county, Michael would have the children every other week. Otherwise, Michael's visitation would be every other weekend with an extended period in the summer and specified holiday visitation. The order provided that child support would be based on whether custody was alternated weekly, and it stated that the "parties agree to enter an Order setting child support when it becomes due."
On January 13, 2015, Michael filed a motion for change of custody and for contempt. He alleged that there had been a material change of circumstances since the divorce decree was entered, specifically stating that April failed to provide physical, emotional, and financial care for the children; to provide a stable and wholesome environment for the children; and to set a proper moral example for the children. Michael also alleged that April violated the terms of the divorce decree by exposing the children to overnight stays with persons with whom she is romantically involved and by failing to inform him of her current place of residence, employment, and phone number. A hearing took place on March 21, 2017.
April testified that at the time of the hearing she had been in the Arkansas Army National Guard for almost 19 years and had been deployed overseas three times, including once to Iraq from 2010 to 2011. She explained that after the parties divorced in 2010, she lived in Fordyce from May 2010 to May 2015, when she had to move from her home due to bankruptcy. From 2012 to 2014, April was in nursing school. In January 2014 when the children were in kindergarten and first grade at Bearden Elementary School, April signed a temporary guardianship of her children to Michael's mother, Barbara Penney, in order for April to finish her final semester of nursing school. The children were familiar with Barbara as she had kept them when the parties were deployed. April did not finish the program because of the strict attendance policy. She got the children back in June 2014 and then began working at Camp Robinson doing AFTPs (Additional Flight Training Periods). April testified that from May 2015 until September 2015, she lived with Laurie and Ricky Scroggins, her mother and stepfather, in Cleveland, Arkansas.
April testified about an incident on July 25, 2015, when she had been to a bar with a friend. She called a friend, Christopher Morrow, to pick her up because she was "too drunk to drive." Morrow took her to a Camp Robinson billeting room where he was staying with his son. April stated that Morrow made sexual advances, she told him to stop, and she slapped him. April and Morrow argued outside, and April called Eric Brown, who was also staying in a billeting room, and slept in his room.
The children started school in Nemo Vista on August 25, 2015, where they attended for one month until April had an altercation with her mother and stepfather. April explained that on the day of the altercation in September 2015, she had been cleaning out a trailer on her mother's property to live in. That evening, April, her boyfriend Eric Brown, her mother, and her stepfather were drinking on the back porch of her mother's home. P.P. was at the home during this time, but T.P. was with a friend. April testified she drank three "whiskey and cokes." After her mom went inside, April asked her stepfather a question that made him mad. April testified that as she started to go inside, her stepfather came from behind and grabbed her, and a physical altercation ensued. April recalled that her stepfather threw her into a glass coffee table, which cut her back. April also testified that her stepfather hit her in the head with a shotgun, and he was on top of her punching her in the head. April stated that police came after a call to 911 and pulled her stepfather off her. April and her children never spent another night in the home.
After the altercation, April moved to North Little Rock to live with Sharon Haley, a friend from her National Guard unit. She lived there from September 2015 to February 2016, and the children attended school in North Little Rock during this time. While she lived with Haley, April had Eric Brown meet the children when they got off the school bus because she did not trust Haley. April testified that although she had been in a dating relationship with Eric, they were not dating when she lived with Haley, and he helped her with the children. April explained that she had to move out of Haley's home because Eric called her after school one day to inform her that it smelled like marijuana.
On January 30, 2016, April signed a temporary guardianship giving Pam and Danny Brown authority over the children's educational and medical decisions. Pam Brown lived in Bearden and was a former babysitter of the children. At that time, April worked at Green Bay Packaging near Morrilton and lived in Conway with a roommate. She explained that her hours fluctuated and that she often worked more than 40 hours a week. She stated that she sent the children to live with Ms. Brown so they would not have to "keep changing schools" and that Barbara Penney, with whom she left the children previously, did not have suitable living arrangements at the time. While living with Ms. Brown, the children attended school in Bearden and had improved attendance. The children lived with Ms. Brown until April completed her two-week National Guard training in June 2016. April testified that she saw the children as often as she could when they lived with Ms. Brown, but she could not recall how many times. She also testified that she had communicated daily with them through FaceTime or text on their iPads. April explained that she did not take the decision to leave the children with Ms. Brown lightly, but she felt she did not have a choice because she had a job in Conway with fluctuating hours and did not have child care. In addition, she explained that she "had to walk away from her family" after the altercation with her mother and her stepfather. April testified that she informed Michael that the children were living with Ms. Brown and discussed it with him "after the fact."
From June to August 2016, April moved to North Little Rock, where she and the children lived with her friend Wayne Cates, whom she had known for 17 years from the National Guard. April testified that in August 2016 she entered into a lease-to-own agreement on a house in Cabot purchased by Cates. The agreement provided that if April did not make the payments for a certain period of time, the house would return to Cates and she would be required to move out. She was unable to obtain a traditional mortgage due to her bankruptcy. She explained that Cates was not her boyfriend but lived in the home with her and that the children loved Cates. April testified that her best friend, whom she knows from the military, lived across the street with her husband and three sons. From 2016 to the time of the hearing, the children attended Cabot schools. She explained that the children were doing well in school. April testified that while the past two years had been hard on her, she was the "consistent, stable one" who has been there for the children the entire time. She stated that Michael had once refused summer visitation because he could not afford it and that Michael could not provide stability.
Becky Newton, the secretary for Bearden Elementary School, testified that P.P. and T.P. had a total of thirty-six tardies during the 2014-15 school year, when they were in the first and second grades. She stated that they had more tardies than any other students she had known. She also stated that the children had been absent 7.5 days during the school year.
Pam Brown, who lived in Bearden, testified that she first met T.P. and P.P. when she babysat them in 2014. She stated that she had physical custody of the children on two occasions. When Ms. Brown had custody of the children the first time, she recalled April had reached out to her because she was in "in a hard place" and "did not have finances to take care of them." Ms. Brown testified that April lived in Fordyce and had a job at Home Depot in El Dorado and told Ms. Brown her hours were "messed up." At this time, April lived fourteen miles away in Fordyce and visited the children only "a couple of times." Ms. Brown testified that April paid her $300 and bought food once using her food-stamp card. The second time she had custody was from February to June 2016. Ms. Brown testified that April paid Ms. Brown $800 a month and that April took the children to eat one time and went to two of T.P.'s ballgames.
Ms. Brown explained that she did not have good communication with April when the children resided with her, explaining that it might take April "five or six days" to answer a text. Ms. Brown recalled specific instances, including an opportunity T.P. had to play all-star baseball but missed out because April did not respond to her text and Ms. Brown's inability to get dental care for T.P. due to April's failure to sign papers at the dentist's office. In addition, Ms. Brown testified that Michael Penney, who was deployed, texted her almost every other day when she kept the children. She was unaware of how he found out she was keeping the children. She stated that Michael would call and text to see if she needed anything and offered to send money. Ms. Brown testified that Michael was "the more involved parent" when the children were in her care.
Laurie Scroggins, April's mother, testified about two altercations with April, including the one in September 2015. She stated that they were out on the porch drinking. She recalled that April had been drinking whiskey, which "makes her mean." Laurie testified that April drank a fifth of whiskey that night while P.P. was in her care. When asked whether there were regular occasions that April would drink alcohol in excess in the presence of the children, Laurie stated that April "likes her whiskey" and that it had occurred "numerous" times.
Kim Smith, Ms. Brown's daughter-in-law, testified that around 2015 when Ms. Brown was babysitting the children, she helped clean April's home in Fordyce in preparation for a DHS inspection. She stated that, in her opinion, the home was not livable, testifying that there was "[f]ilth and dog feces on, both the furniture in the living room and in the bedroom. Trash. Dirty clothes." Ms. Smith said that the walls looked like they could have been "molded." When she cleaned the home, Ms. Smith thought the children were still living in the home and Ms. Brown was only babysitting the children.
Michael Penney testified that in 2010 he was employed by a contractor at Red River Army Depot in New Boston, Texas, which is 18 miles from Texarkana, Arkansas. While he was employed by this contractor, he was deployed to Kosovo. Upon his return, he no longer had that job due to a reduction in force. He then began working for New Millennium Building Systems in Hope. He was later terminated around 2014 and returned to work at Red River Army Depot, where he was employed at the time of the hearing. Michael worked ATFPs at Camp Robinson during times when he was laid off or fired from his job and not deployed.
Michael testified that while he was deployed in Kuwait he learned from a Facebook message that the children were living with Ms. Brown. From that point on, he communicated with Ms. Brown every other day. Michael expressed his concern for stability in the children's lives, specifically in regard to their home, school, and education. He was also concerned about the number of their tardies and absences.
In October 2016, Michael purchased a home in Ashdown with a traditional mortgage cosigned by his father. Michael testified that he has financial stability and earns enough income to provide a home for his children. He explained that he has a family-support system in Ashdown as his father, mother, and sister live nearby and can help on his drill weekends. Michael testified that his girlfriend, Leslie Johnson, spends the night at his home but that she had not stayed overnight in the presence of the children.
With regard to his living arrangements after his divorce from April, he testified that he lived in North Little Rock after the divorce until he was deployed to Kosovo from 2010 to 2011. Upon returning in 2011, he lived with his father until he remarried in 2012. He left again for Kosovo shortly after his marriage. He lived in Hope with his wife after returning from Kosovo. Michael later divorced in March 2014 and rented a home in Hope. After his stepmother died in 2014, Michael's dad asked him to move into his home in Ashdown. After Michael filed for change of custody, he was deployed in the fall of 2015.
Wayne Cates testified that he and April became friends in 2000 when he was her supervisor; he is nearly twice her age. They had been deployed together in 2004 and bonded after some close friends were killed. They saw each other at Camp Robinson until Cates retired in 2011. They reconnected in January 2016 at which point he offered to help April. Cates testified that April and the children moved in with him at his home in North Little Rock while they were "house closing." Cates purchased a home in Cabot, and April entered into a lease-to-own agreement to purchase the home from Cates.
Cates testified that he was never in a romantic relationship with April. He explained that he stayed in the Cabot home with April after she moved in and helped her with the children before and after school. Cates explained that when he spends the night, April and her daughter sleep in one room and he sleeps in T.P.'s room on the bottom bunk. Cates testified that he takes the kids fishing and to extracurricular activities and that he has bonded with T.P. Cates testified that the children are happy and well adjusted.
Eric Brown, a former boyfriend of April's, testified that April has a good relationship with her children. He was present when April had the altercation with her mother and her stepfather in September 2015, and testified that they had both been drinking that evening. Eric stated that on one occasion during their one-year relationship he stayed overnight on a couch at April's mom's house in the presence of the children. In addition, Eric explained that he stayed overnight at Haley's for one month when April and the children lived there, but they had stopped dating by that time. He testified that he slept downstairs and April and the children slept upstairs.
At the conclusion of the hearing, the circuit court made a detailed oral ruling, ultimately finding that there was a material change of circumstances to warrant a change of custody to Michael and that the change of custody was in the best interest of the children. The circuit court entered a written order on May 1, 2017, and April now appeals those findings.
A judicial award of custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification of the decree will be in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to, or not known by, the circuit court when the original custody order was entered. Grindstaff v. Strickland , 2017 Ark. App. 634, at 3, 535 S.W.3d 661, 663-64. Generally, to promote stability and continuity in the life of the child and to discourage repeated litigation of issues that have already been decided, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. The party seeking modification has the burden of showing a material change in circumstances. Id.
This court performs a de novo review of child-custody matters, but we will not reverse a circuit court's findings unless they are clearly erroneous. Taylor v. Taylor , 353 Ark. 69, 110 S.W.3d 731 (2003). A finding 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 made. Montez v. Montez , 2017 Ark. App. 220, at 8, 518 S.W.3d 751, 756. Because the question whether the circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest.
Neumann v. Smith , 2016 Ark. App. 14, at 12, 480 S.W.3d 197, 204. There are no cases in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as those involving minor children. Id.
April first argues that the circuit court erred by finding that a material change of circumstances sufficient to warrant a change in custody had occurred. At the conclusion of the hearing, the circuit court stated from the bench, "There is no doubt that there is a material change of circumstance." The circuit court carefully reviewed the testimony at length in support of its decision. First, the circuit court found Becky Newton's testimony about the children's numerous tardies and absences to be both credible and significant, stating that there was an "inordinate" amount that could result in a FINS case had it been brought to the attention of the court by the school district. Second, the circuit court found Pam Brown's testimony to also be credible. The court was troubled by the "inordinate" amount of time it took for April to respond to Ms. Brown's communication and lack of "good, consistent communication, especially about the major things in these children's lives." Third, the court was "greatly" concerned that while Michael was deployed, he found out through Facebook that the children were living with Ms. Brown. The court indicated this was a failure in coparenting and a "big failure" on April's part that should not have happened. Fourth, the court found April's use of alcohol to be a problem. While the court did not generally find Laurie Scroggins's testimony credible, it did with respect to April's use of alcohol, specifically stating, "Ms. Scroggins, generally, wasn't creditable, but I think given all the other testimony I do think that, Ms. Major, there is just a little too much alcohol going on in your life. And it seems like bad things happen when you get to drinking." Fifth, the court found Kim Smith's testimony about cleaning April's home to be "somewhat credible." Sixth, the court considered the testimony of Wayne Cates and the relationship between him and April. The court was unable to determine whether there was a romantic relationship but stated it was a "unique relationship" to have a grown man living in the home and to be so involved in the children's lives when they are not his children or grandchildren. The court stated that while Cates provided stability as far as being there when the children got home from school, it was not sure what Cates's involvement would be in Ashdown if Michael had custody. Seventh, the court discussed Eric Brown's testimony, also noting he had a "unique relationship" with April. The court did not fully believe Eric's testimony that he was only a "house mate and not a romantic partner" of April's at the time they lived together. The court recognized that during "crisis moments" in April's life, "these men seem to show up and help her. But she never has a romantic relationship with any of these men." The court also referred to the incident at the Camp Robinson billeting room where alcohol was again involved.
Finally, the court addressed the parties. The court found that the divorce decree was imperfect because it intended to establish child support at a later date. While the court recognized April's argument that there were similarities between the parties because they both had new living arrangements beginning in 2016, it found a distinction. The difference was that Michael had a traditional mortgage cosigned by his father and April had a lease-to-own agreement with Cates, and the court was unable to determine if Cates and April had a romantic relationship and whether it would remain stable after the proceeding. While April argued she had immediate stability beginning in August 2016, the court examined her past practice, which established that "these children were left with someone who was not their blood relatives on two different occasions" and that Michael found out about one of these times through Facebook. The court also found "a lack of sobriety" on April's part and did not believe her testimony that all the men she testified about have been just "friends." The court found that the educational stability for the children was lacking because they have been moved around. While the court had knowledge that some of the schools were good, it explained that "what makes them great is consistent attendance." After carefully considering all the evidence, the circuit court found there was a material change of circumstances to warrant a change of custody and that the change was in the best interest of the children.
On appeal, April contends that there had been no material change of circumstances since the divorce, arguing that since the divorce both parties had been deployed; had been in relationships; had changes in employment; and had lived in multiple residences. She cites caselaw holding that circumstances that existed at the time of the divorce cannot be considered material changes and argues that the circuit court failed to consider the circumstances at the time of the parties' divorce. We disagree.
The custody agreement incorporated into the divorce decree specifically lists persons who are able to keep the children when the parties are unable to do so. When April had difficulty caring for the children due to her circumstances, she twice left them for extended periods in the care of Ms. Brown, a person who was not contemplated as a caregiver at the time of the decree. Moreover, on one occasion, Michael learned of this through Facebook while he was deployed. Ms. Brown's testimony, which the court found credible, showed that she had difficulty communicating with April during the times she had possession of the children, including on matters that were significant in the children's lives. Ms. Brown testified that April visited the children only a couple of times during each of these periods, including the period when April lived only 14 miles away in Fordyce.
At the time of the divorce decree, the children were not yet in school. There was much testimony about April's numerous moves, which resulted in the children changing schools five times in two years. While April points out the evidence of Michael's moves, he was not the primary custodian, and it did not affect the children's educational stability. Ms. Newton from Bearden Elementary testified that, together, the children had 36 tardies and 7.5 absences in one school year. In her 20 years with the Bearden School District, this was the most tardies she had ever known.
The circuit court also found April's use of alcohol to be significant, and it believed her mother's testimony as to the alcohol use. Scroggins testified that on the night of the 2015 confrontation, April was drunk. P.P. was at the home during this confrontation, and the divorce decree prohibited "the excessive use of alcohol while the child is in their custody." In addition, the court found that April had "unique" relationships with both Cates and Eric Brown. The court did not fully believe that Eric was not in a romantic relationship with April when he lived with her and the children. Likewise, the court was unable to determine whether Cates was in a romantic relationship with April.
Based on our de novo review, we conclude that there was sufficient evidence from which the circuit court could have found a material change of circumstances existed to support a change in custody. Accordingly, we cannot say that the circuit court's decision on this issue is clearly erroneous.
Finally, we hold that the circuit court's finding that it was in the children's best interest to change custody to Michael was not clearly against the preponderance of the evidence. The circuit court, in its oral ruling, found Michael to be the parent who is responsible and stable. It did not agree with April's argument that the children were unharmed by the numerous moves, stating, "It was just too much. It is against their best interest." The court stated that Michael had relatives around him in Ashdown who could help him care for the children, including his sister, his father, and his mother. With respect to April, the court was concerned that all of her friends were military friends, and "because of the nature of military work, sometimes they are more transient, because they have to be, because we rely on them. That is not necessarily what brings stability into a child's life."
While both parties had established their current homes in late 2016, the court found it significant that Michael financed his through a traditional mortgage, cosigned by his father, whereas April was in "a lease-to-own arrangement with the person that the court is unable to determine if there is a romantic relationship going on or whether or not that is going to remain stable after the proceeding is terminated." While April argued that she had stability beginning in August 2016, the court considered past practice, which included twice leaving her children with a person who was not a blood relative and failing to inform Michael on at least one of these occasions.
Based on the foregoing, we hold that the circuit court's decision to change custody to Michael was not clearly erroneous, and we affirm its decision.
Affirmed.
Abramson and Gladwin, JJ., agree.
Danny had previously been married to April's mother.
With regard to Kim Smith cleaning her house, April explained that at that time the children had often been staying with Pam when she was working in North Little Rock at Camp Robinson. April explained the house was messy because her dog had been left at the home, and she only had someone going by there to feed it and let it out. April said that there had been "several anonymous calls" leading to DHS investigations, but DHS had never made a "finding against me." | [
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RITA W. GRUBER, Chief Judge
Sierra Hegi appeals from the Faulkner County Circuit Court's order terminating her parental rights to her son, KD, born January 5, 2017. On appeal, she challenges both the circuit court's findings of statutory grounds and its best-interest determination. We affirm.
This case began on January 7, 2017, when the Arkansas Department of Human Services (DHS) took an emergency hold on two-day-old KD due to abuse, neglect, and parental unfitness. Specifically, the affidavit attached to the petition for emergency custody described environmental issues and concerns that Hegi did not "have the cognitive ability to care for the infant and meet the infant's needs." On February 21, 2017, the court adjudicated KD dependent-neglected, specifically finding the following:
The home showed no signs of being prepared for a newborn baby to reside there; did not have working utilities other than water in one bathroom; was in a state of environmental neglect including dog feces covering the floor in the home. Additionally, the mother appeared to lack the mental capacity to properly feed for and care for a newborn child. Additionally, the mother was observed by DHS at supervised visitation after the juvenile was taken into care and the mother could not demonstrate the ability to properly care for the juvenile without DHS providing guidance.
The court set the goal as reunification with a concurrent goal of relative placement. The court ordered Hegi to submit to a psychological exam and follow the recommendations; participate in counseling; complete parenting classes and demonstrate improved, appropriate parenting skills after completion; obtain and maintain stable and appropriate housing and employment; maintain a clean, safe home; demonstrate the ability to protect the child and keep him safe; and attend all medical appointments set up for the child when notified by DHS.
Hegi received a psychological evaluation on March 14, 2017, which showed that she was in the mid-intellectual-deficit range. In her interview, Hegi told the evaluator that her son was removed from her custody for neglect because he was not eating. She said that he would not eat "fast enough ... [and] acted like he wasn't hungry." She also said that he had gained weight since being in DHS custody and she was unaware how they got him to eat. Hegi reported to the evaluator that she occasionally heard voices in her head. Hegi's mother, with whom Hegi lived when KD was taken, said that Hegi was slow and had anxiety but that she "desire[d] to be right." She said that Hegi did not drive but that she helped around the house by washing dishes and sorting whites and colors for the laundry. The evaluation stated that Hegi would have "moderate difficulty" with independent parenting, would need "a good deal of support and assistance" in any parenting, and "did not present with the capability to effectively parent." Specifically, the evaluation cited her lowered capability to manage stress, the potential for decompensation when under stress, and her lowered intellectual development.
Shortly after the adjudication hearing, KD was hospitalized for RSV and pneumonia and remained there for a month. Doctors discovered that KD suffered from a condition that made swallowing difficult, and he was fitted with a "G-tube" port that allowed him to receive nutrition directly from a tube into his stomach. Hegi was given training through Arkansas Children's Hospital on how to operate the G-tube as well as hands-on participation with KD's foster parents while feeding KD.
The case proceeded and Hegi complied with the case plan by completing parenting classes, completing medical training, attending visitations, attending counseling, and remedying the environmental issues by finding new and appropriate housing. The court did note in the review order on August 22, 2017, that there had been issues with KD's feeding tube after unsupervised visitation. The court held a permanency-planning hearing on December 19, 2017, and found that DHS had made reasonable efforts to provide services towards the permanency plan of reunification and that Hegi had complied with the case plan and made "much" progress toward alleviating the causes of removal. The court continued the goal of reunification but found KD could not be returned to Hegi's custody because she continued to be unable to properly feed him.
On April 13, 2018, DHS filed a petition to terminate Hegi's parental rights. DHS pleaded the failure-to-remedy ground, alleging that KD had been removed from Hegi's custody for environmental issues and because Hegi lacked the cognitive ability to provide for KD's basic needs. DHS contended that one of the primary issues during the pendency of the case was whether Hegi would be cognitively capable of using KD's G-tube and ensuring that his basic health and nutritional needs would be met. DHS stated that in spite of numerous services, classes, encouragement, support, and training having been offered to Hegi, she had not progressed to a point where KD could safely be placed in her custody. DHS alleged that using the feeding tube required an ability to constantly reassess the situation, adapt quickly to any changes, and recall and process information in order to address those changes. It alleged that although Hegi had put forth a good effort, the same concerns that existed at the time KD came into DHS custody-regarding Hegi's cognitive ability to meet KD's need-still existed; Hegi's level of functioning was not likely to change; and none of the services had adequately remedied the cause of removal.
The court held a termination hearing on May 29, 2018. Cheryl Taylor, Hegi's DHS caseworker, testified that KD had been placed in foster care in part because Hegi was not able to feed him correctly with a bottle. She testified that Hegi had been compliant but that despite the services and training, she could not "accomplish" and "master" KD's feeding tube. She also testified that KD had numerous regular medical appointments including occupational and physical therapy, speech therapy, and a nutritionist. She testified that Hegi had lacked the mental capacity to properly feed her newborn, which brought him into DHS custody, and that she continued to lack the ability to properly care for him without guidance. She testified that she did not know of any other services DHS could provide to help Ms. Hegi with cognitive skills and that she asked Hegi if she wanted to go back to Arkansas Children's Hospital for additional training and she replied that she had "had enough" and did not need more training.
Dr. George DeRoeck, the psychologist who performed Hegi's psychological evaluation, testified that there were two significant issues with respect to Hegi's ability to parent KD: (1) her lower intellectual development along with adaptive behavioral deficits and (2) the tendency to decompensate under stress. He added that her anxiety would further interfere with her ability to independently parent an infant. He opined that Hegi would not be able to deal with a medically fragile or medically complicated child. He testified further that it was not a simple issue of Hegi having difficulty caring for a medically fragile child but said that she would "have difficulty if the child had no particular infirmity."
At the conclusion of Dr. DeRoeck's testimony, the following colloquy occurred.
THE COURT : All right. Dr. DeRoeck, before you get down let me just make sure I understand what you're saying.
All right. So, as it relates to her capacity, if the child was-and I don't want to use the word "normal," but for lack of a better word was a normal, healthy child, she might need some help but she could take care of the child, she could learn to do those things?
DR. DEROECK : I felt that at this age that she would not be able to care for the child independently.
One of KD's foster parents, Shawn Pratt, testified that he and his wife had been caring for KD since he had come into DHS custody. He explained how the feeding machine works and that he feeds KD seven times each day, which requires seven inputs and seven measurements. He said that the rate, or speed, at which KD takes the formula changes regularly and that the proper amounts and rates are provided by the nutritionist. He said that he had tried to help Hegi with the machine numerous times but that she did not seem to understand what was going on with the machine when he explained it to her. He said that KD was "a full-time job" and was "on the road" four days each week attending appointments with speech, occupational, and physical therapists; a gastrointestinal doctor; a nutritionist; an ear, nose, and throat doctor; and his pediatrician. He also testified that, in the event Hegi's parental rights were terminated, he and his wife would like to adopt KD.
Hegi testified that she wanted her son returned to her. She said that she did know how to operate the feeding machine, but she did not remember how to measure the formula. She said that she was trying to be a good mother.
The court entered an order terminating Hegi's parental rights on June 12, 2018. It found DHS had proved the failure-to-remedy ground by clear and convincing evidence-that is, that KD had been adjudicated dependent-neglected, had continued to be out of Hegi's custody for twelve months, and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied by the parent. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017). Specifically, the court noted that KD was placed in DHS custody for allegations of environmental neglect and that Hegi "lacked the cognitive ability to provide" for KD's basic needs. The court had adjudicated KD dependent-neglected for these reasons and due to Hegi's "failure to demonstrate the ability to provide for the juvenile's basic needs without hands-on assistance." The court found that Hegi had been provided parenting classes, classes at Arkansas Children's Hospital to learn how to use KD's G-tube, nutrition classes, counseling, supervised visitation, and help from KD's foster parents with using the feeding machine, but that she remained unable to operate the feeding tube properly and that this had a direct and immediate impact on KD, who depends on the feeding tube as his sole source of nutrition. The court recognized that Hegi had made progress in the case but found that she had not progressed to a point where KD could safely be placed in her custody. The court specifically cited Dr. DeRoeck's testimony and concerns that Hegi did not present with the capability to effectively parent, and the court expressed particular concern with Dr. DeRoeck's testimony that Hegi had difficulty with adaptive functioning given that a primary component of the feeding machine includes the ability to adjust the setting to ensure that KD is receiving the proper amount of calories at the correct flow. It was a complicated task that required the ability to constantly reassess the situation, adapt quickly to changes, and recall and process information. The court found that Hegi's level of functioning is not likely to change and that none of the services provided had been able to adequately remedy the cause of removal. For the same reasons, the court found by clear and convincing evidence that it was in KD's best interest to terminate, specifically considering the likelihood that KD would be adopted if the termination petition was granted and the risk of potential harm to KD if returned to Hegi.
Hegi filed this appeal from the court's order, arguing that there was insufficient evidence to support the failure-to-remedy ground and insufficient evidence that it was in KD's best interest to terminate Hegi's parental rights.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 213, 40 S.W.3d 286, 292 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2017). The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Shawkey v. Ark. Dep't of Human Servs. , 2017 Ark. App. 2, at 5, 510 S.W.3d 803, 806. Credibility determinations are left to the fact-finder. Id. Finally, the intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3).
We turn first to Hegi's argument that there is insufficient evidence to support the circuit court's finding on grounds. Hegi does not dispute that KD was adjudicated dependent-neglected and was out of the home for twelve months. She contends, however, that she did not "fail to remedy" the cause of KD's removal. She argues that the issue at termination was whether Hegi was cognitively capable of using KD's feeding tube, which KD did not have when he was removed from her custody. Thus, she contends, her failure to be able to properly use the G-tube was not the "condition that caused removal" and thus cannot be relied on to support the failure-to-remedy ground. We disagree that either the statute or the circuit court's decision was quite so narrow. The failure-to-remedy ground is demonstrated "if 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." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) . One of the conditions that caused removal in this case was that Hegi lacked the mental capacity to properly feed and care for KD. Despite numerous services throughout the case, this remained true. The removal was based on Hegi's inability to meet KD's nutritional needs but also on the underlying condition arising from Hegi's mental deficiency. This was one of the "conditions" that caused removal, and the court found that it had not been remedied. The court found that KD could not safely be returned to her care.
Hegi also argues that the court's best-interest finding is not supported by sufficient evidence. She argues that there was no testimony regarding how long KD would have to rely on the G-tube. While there was no specific time frame given, KD's foster father testified that KD was being seen by numerous specialists, and there was no indication that these visits would cease any time soon. KD's special needs included more than the G-tube. Moreover, Dr. DeRoeck testified that it was not a simple issue of Hegi having difficulty caring for a medically fragile child but said that she would "have difficulty if the child had no particular infirmity." The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). Finally, credibility determinations are left to the fact-finder. Shawkey , 2017 Ark. App. 2, at 5, 510 S.W.3d at 806.
Hegi also argues that the court's best-interest finding is undermined by the concurrent goal of relative placement. Hegi contends that DHS did not comply with the court's order early in the case to conduct a home study on her cousin. She argues that without a conclusive decision on the relative placement, the court could not conduct a thorough best-interest analysis.
This argument was not raised below and thus may not be addressed on appeal. Dade v. Ark. Dep't of Human Servs. & Minor Child , 2016 Ark. App. 443, at 6, 503 S.W.3d 96, 99 (holding that the general rule is that an issue must be raised and ruled on below in order to be preserved for appeal).
Affirmed.
Hixson and Brown, JJ., agree.
DHS also petitioned to terminate the parental rights of KD's father, Justin Stricklin. He executed a consent to termination and is not a party to this appeal. | [
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DAVID M. GLOVER, Judge
Leo Anderson appeals from the May 29, 2018 order terminating his parental rights to his daughter, BA (d.o.b. 3/22/2017). His counsel has filed a motion to withdraw and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6-9(i) of the Rules of the Arkansas Supreme Court and Court of Appeals, contending there is no meritorious basis for the appeal. The clerk of our court sent copies of the brief and the motion to withdraw to Anderson's last-known address, informing him of his right to file pro se points for reversal pursuant to Rule 6-9(i)(3) ; however, he has filed no points. We affirm the termination of his parental rights and grant counsel's motion to withdraw.
A trial court's order terminating parental rights must be based on findings proved by clear and convincing evidence. Wagner v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 554, 566 S.W.3d 478. Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Id. On appeal, we review termination cases de novo. Id. We will not reverse the trial court's ruling unless its findings is clearly erroneous. Id. A finding in clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we give due deference to the trial court's opportunity to judge the credibility of witnesses. Id.
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the children. Bailey v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 553, 566 S.W.3d 472. The first step requires proof of one or more statutory grounds for termination; the second step requires that termination be in the children's best interest. Id.
Counsel informs us in her brief that the only ruling adverse to Anderson was the termination itself and that there was sufficient evidence to support the termination. We agree.
BA tested positive at birth for amphetamines and was taken into DHS custody on March 27, 2017. Her mother, Patricia Funderburg, also tested positive for amphetamines. Her parental rights have been terminated, but she is not part of this appeal.
Anderson, a putative father at that point, was tested for paternity. On May 25, 2017, the trial court adjudicated BA dependent-neglected, finding she was at substantial risk of serious harm because she tested positive for illegal substances when she was born. The goal was established as reunification with a fit parent; Anderson was found to be the legal father; and counsel was appointed to represent him.
At the August 24, 2017 permanency-planning hearing, the trial court found that neither of the parents had complied with the case plan or the court's orders. The court further noted there were safety concerns that prevented trial placement of BA with Anderson; for example, his mental capacity and inability to parent. The trial court changed the goal of the case from reunification to adoption, setting a date for a termination of parental rights (TPR) hearing in November.
On October 5, 2017, DHS filed a petition to terminate. Following the termination hearing, the trial court denied the petition and gave Anderson extra time to try to reunify with BA. A second petition was filed on April 4, 2018. The termination hearing was held on May 23, 2018. Anderson notified his counsel that he was close to the place of the hearing, traveling by bicycle, but he never appeared. Counsel informed the court she had told Anderson he had outstanding arrest warrants and it was possible that was why he did not appear for the hearing.
The trial court proceeded with the hearing without Anderson's presence. A forensic psychological examiner testified about two psychological evaluations performed on Anderson, one in 2014 regarding another child and one in 2018, during the instant case. The examiner expressed significant concerns about Anderson being able to independently parent a small child because of a 2007 head injury ; explained that both evaluations revealed full-scale intelligent quotients of 66, demonstrating difficulty in comprehending and reasoning, and stated he believed Anderson's cognitive processing had deteriorated in the four years since the initial evaluation in 2014; and stated he did not believe the issue would improve. The family-service worker supervisor testified there had not been any trial home placements because of the ongoing safety concerns with Anderson; that Anderson had not demonstrated appropriate parenting skills during supervised visits or overall wise decision-making; that he had been involved with at least one woman who had a prior parental-rights termination; that he had not followed court orders; and that DHS had identified safety concerns in the home. While Anderson had completed some of the offered services, the family-service worker stated her belief that he had not made substantial and measurable progress because there had been no significant change in his situation since the case began. The program assistant for DHS described Anderson's visits with BA and expressed her opinion that he could not independently parent BA because she observed a lack of parenting skills. She recognized some of his favorable actions toward BA but did not believe there was appreciable bonding between them, she was concerned about his truthfulness and instability, and he had missed some of the visits. The DHS adoption specialist testified BA was highly adoptable and noted the foster parents' desire to be considered for permanent placement. On May 29, 2018, the trial court entered its order terminating Anderson's parental rights to BA, finding it was in BA's best interest to terminate Anderson's parental rights and also finding DHS had proved three statutory grounds supporting termination. This appeal followed.
Only one ground is required for termination. One of the statutory grounds found by the trial court was "[t]hat a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home of the noncustodial parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that prevented the child from safely being placed in the parent's home, the conditions have not been remedied by the parent." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) (Supp. 2017). We are not left with a definite and firm conviction that the trial court made a mistake with this finding. BA was clearly out of the noncustodial home for at least twelve months, and the same safety concerns that prevented BA's placement with her father continued throughout the case, despite the extension of time to try to accomplish reunification.
With respect to the trial court's best-interest finding, the adoptability factor was satisfied by the adoption specialist's testimony that BA was highly adoptable. In addition, the potential-harm factor was satisfied because the testimony supporting the statutory ground also supports the finding of potential harm.
Based on our review of the record and the brief presented to us, we conclude counsel has complied with the requirements set by the Arkansas Supreme Court for no-merit petitions in termination cases, and we hold the appeal is wholly without merit. We therefore affirm the order terminating Anderson's parental rights to BA and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Abramson and Brown, JJ., agree. | [
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KAREN R. BAKER, Associate Justice
Appellant Terrick Nooner appeals pro se from an order entered by the Lincoln County Circuit Court dismissing without prejudice his pro se civil rights complaint for failure to provide proof of service in compliance with Rule 4(i)(1) (2018) of the Arkansas Rules of Civil Procedure.
This court will not reach the merits of an appeal if the order appealed from is not final. Beverly Enters.-Ark., Inc. v. Hillier , 341 Ark. 1, 14 S.W.3d 487 (2000). The question of whether an order is final and subject to appeal is a jurisdictional question which this court will raise sua sponte. Id.
The law provides that service of valid process is necessary to give a court jurisdiction over a defendant. Raymond v. Raymond , 343 Ark. 480, 484, 36 S.W.3d 733, 735 (2001). It is also mandatory under Arkansas law that service of process be made within 120 days after the filing of the complaint unless there is a motion to extend, and if service is not obtained within the 120-day period and no such motion is made, dismissal is required upon motion or upon the court's own initiative. Id. (citing Lyons v. Forrest City Machine Works, Inc. , 301 Ark. 559, 785 S.W.2d 220 (1990) ).
Because a plaintiff who has his case dismissed without prejudice under Rule 4(i) may refile those claims, his position after the dismissal is no different than that of a plaintiff who voluntarily nonsuits his claims. McCullough v. Kelley , 2018 Ark. 78, 2018 WL 1193374. A party may refile his nonsuited claims, and, consequently, the order granting a motion to nonsuit is not a final, appealable order. Id. (citing Beverly Enters.-Ark., Inc. , 341 Ark. 1, 14 S.W.3d 487 ). However, under Rule 41(b) (2018) of the Arkansas Rules of Civil Procedure, a second dismissal based on failure to serve valid process shall be made with prejudice where the plaintiff's complaint has been previously dismissed either voluntarily or involuntarily. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co. , 353 Ark. 701, 120 S.W.3d 525 (2003).
Here, as discussed above, this is a first dismissal of Nooner's underlying complaint, and his complaint therefore may be refiled under the provisions of Rule 41. In his first appeal in this case, Nooner appealed the circuit court's order dismissing multiple motions filed in connection with his civil-rights complaint. Nooner v. Kelley , 2017 Ark. 310, 2017 WL 5184472. The appeal was dismissed because the order was not a final, appealable order. Id. Following the dismissal of the first appeal, the circuit court entered an order that dismissed, without prejudice, the civil-rights complaint itself because Nooner had failed to provide proof of service on the named defendants within the 120-day time limit mandated by Rule 4(i)(1). Accordingly, without a final order on the merits, this court does not have appellate jurisdiction. Moses v. Hanna's Candle Co. , 353 Ark. 101, 110 S.W.3d 725 (2003).
Accordingly, because the order appealed from is not final, we do not have appellate jurisdiction. Therefore, the appeal is dismissed.
Appeal dismissed.
Special Justice Daniel L. Herrington joins in this opinion.
Wynne, J., not participating. | [
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JOHN DAN KEMP, Chief Justice
Appellant Ryan Gore appeals the denial of his motion to dismiss and the grant of a default judgment in favor of appellee Arkansas Teachers Federal Credit Union (ATFCU). Gore contends that the circuit court lacked personal jurisdiction over him because he was not timely served with a complaint and summons. Accordingly, he contends that the default judgment against him is void and must be set aside as a matter of law. ATFCU declined to file a brief in response. We hold that the circuit court did not err in granting default judgment.
I. Facts
The timeline of the relevant facts is as follows.
March 14, 2016 ATFCU filed a complaint in replevin against Gore. The 120-day period for service would expire on July 12, 2016. May 31, 2016 ATFCU filed a motion for extension of time to serve Gore, stating that it had been unable to locate Gore for proper service and requesting additional time to perfect service. June 8, 2016 The circuit court entered an order granting the motion and extending the time to serve by "an additional 120 days." October 3, 2016 ATFCU filed a second motion for extension of time, stating that it had been unable to locate Gore for proper service. The circuit court entered an order granting the motion and extending the time to serve by "an additional 120 days." March 1, 2017 ATFCU filed a third motion for extension of time, stating that it had been unable to locate Gore for proper service. The circuit court entered an order with the handwritten notation "Denied. More than 120 days from second extension signed on 10.3.16." March 3, 2017 ATFCU filed an amended and substituted complaint in replevin. April 6, 2017 Gore filed a motion to dismiss for failure to obtain service. He contended that ATFCU did not complete service by the original deadline or any extended deadline. April 7, 2017 ATFCU responded to the motion to dismiss and asserted that it had "obtained service on the Defendant of the Amended and Substituted Complaint in Replevin via Warning Order" on March 8, 2017. ATFCU also asserted that the time for service expired on March 9, 2017. April 25, 2017 ATFCU filed an amended proof of service, which stated that Gore was served "the Summons, Complaint, Request for Admissions and Warning Order ... with notice of this action on 03/08/2017 as required by Arkansas law." The attached exhibit was a statement of legal advertising from the Arkansas Democrat-Gazette, dated March 15, 2017, which stated that a warning order had been published therein on March 8 and March 15, 2017.
On June 30, 2017, the circuit court held a hearing to determine whether Gore was timely served. ATFCU argued that it had perfected service, stating,
COUNSEL FOR ATFCU: This original complaint in replevin was filed on or about [March 14, 2016]. Of course, pursuant to Arkansas Rules of Civil Procedure, we were given 120 days in which to perfect service upon the Defendant.
On May the 30th of 2016, we did indeed file the first motion for extension of time ... [T]he order ... coming from that motion stated that the Plaintiff would be given an additional 120 days in which to perfect service.
The original service would have expired in July, July 12th of 2016. Adding 120 days to that, Your Honor, the expiration would have been November the 9th of 2016.
....
On October the 3rd of 2016, Plaintiff filed a second motion for extension of time because of the Defendant's continued evasion attempts ... and being unable to perfect service.... That second motion for extension of time and the subsequent order granted the Plaintiff an additional 120 [days], not from the date of the order, but from the date of the 120 plus 120. Therefore, it would've gone from November the 9th of 2016 to March the 9th of 2017.
It is accurate that we did file a third motion for extension of time. Quite frankly, I'm going to kind of ignore it because we really don't need it. And if you do wish me to address it, that'll be fine, but it's sort of a moot issue.
THE COURT : Based on the fact that you had until March the 9th?
COUNSEL FOR ATFCU: Yes, Your Honor.
THE COURT : Okay.
COUNSEL FOR ATFCU: That is correct. Now, during that short interval that we filed the motion for extension of the third -- it was denied -- we did locate the Defendant. We had, or at least we thought we had. We got process servers, private investigators, a whole slew of entities together to try and get the Defendant served. When we received the order denying the third motion for extension, we thought it best -- in the best interest of my client, to apply for a warning order based off of our previous attempts, unsuccessful attempts, to get the Defendant served.
We applied for a warning order pursuant to Rule 4. The warning order was granted, and the first publication of that warning order was made in the Arkansas Democrat-Gazette in their legal advertising department on 3/8 of [2017]. Again, one day before expiration. According to the Arkansas Rules of Civil Procedure, you calculate the time of service with a warning order from the date of first publication, not last.
....
We had also sent a restricted delivery mail to ... the new address where we thought that the Defendant was located, and in fact the Defendant at that time did sign the green card for acceptance of that service. It is marked by the post office as March 10th. That would seemingly be one day after the service, but the service had previously been perfected two days prior to that by the first publication of the warning order.
In response, Gore, acting pro se, argued that the circuit court should grant his motion to dismiss because ATFCU did not complete service within the initial 120-day period or any period of extension. The following colloquy took place between the circuit court and Gore:
THE COURT : So [counsel for ATFCU has] given me the dates, and I've gone back and calculated the dates, and they did have until March 9th to do everything even with -- even though I was incorrect in denying the [third motion] for extension. I was. But I did deny it, but they did do everything in the -- by March the 9th from what I can see. Now if you have something to tell me different, please do so.
GORE : Well, as the Defendant, would it be -- and I mean this with all due respect, would it be my fault if the Court made a mistake on the time?
THE COURT : No, it's not. What I'm -- what I'm saying is, they're saying even though the Court made the mistake in time, it wasn't necessary for them -- for them to have that extra 120 days extension because they -- they did perfect service before the 120 days, before March the 9th.
GORE : Well, I mean, I don't understand how we come into court and now she's changing the dates when the initial complaint was filed on or about -- she said initially filed -- the first motion was filed May the 30th, but the Plaintiff's complaint was filed on March 14th.
THE COURT : It was filed on March the 14th.
GORE : And did not obtain service.
....
THE COURT : Let me go over the dates with you. It was filed on March the 14th. She had until July 12th to serve you.... They came in and they asked for a motion before that time was up. So then they had until November the 9th to serve you. They came back and asked for a motion on October the 3rd. I granted it. So then they had until March the 9th to serve you, and they did so. That's where all the 120 days -- and you really have to sit down with a calendar and figure all this up. I had to do that Wednesday to make sure that [the denial of the third motion for extension] was right or incorrect. It was incorrect, but at the same time they got you served within the amount of time.
GORE : They did not get me served.
THE COURT : They did by warning order.
GORE : On March 1st, 2017, they filed a motion requesting a third extension, but the Court denied that motion by order entered March 1st, okay, noting that is more than 120 days. So the 120 days had passed and just irregardless of her saying it's a moot point --
....
THE COURT : No. The 120 days hadn't passed. The 120 days, if you take it from the very beginning of the complaint -- and this is going to be the order of the court on this service -- and you can appeal me. You can do whatever you want to. But they filed on March 14th of 2016. They got two extensions after the first 120 days was up, so they had until March the 9th to serve you. They served you by warning order prior to March the 9th, therefore service was perfected.
After the hearing, the circuit court entered an order denying Gore's motion to dismiss. On August 2, 2017, ATFCU filed a motion for default judgment. Gore did not respond, and the circuit court granted the motion for default judgment on August 31, 2017.
II. Law & Analysis
Gore contends that the default judgment entered against him is void because he was not timely served. Rule 55(a) of the Arkansas Rules of Civil Procedure provides for entry of a default judgment when a party fails to plead or otherwise defend. But a default judgment rendered without valid service is void. See Se. Foods, Inc. v. Keener , 335 Ark. 209, 979 S.W.2d 885 (1998) ; Lawson v. Edmondson , 302 Ark. 46, 50, 786 S.W.2d 823, 825 (1990) ("[J]udgments by default rendered without valid service are judgments rendered without jurisdiction and are therefore void.").
Rule 4(i) of the Arkansas Rules of Civil Procedure governs the time limit for service. That rule states in relevant part,
(1) If service of the summons and a copy of the complaint is not made upon a defendant within 120 days after the filing of the complaint or within the time period established by an extension granted pursuant to paragraph (2), the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative.
....
(2) The court, upon written motion and a showing of good cause, may extend the time for service if the motion is made within 120 days of the filing of the suit or within the time period established by a previous extension. To be effective, an order granting an extension must be entered within 30 days after the motion to extend is filed, by the end of the 120-day period, or by the end of the period established by the previous extension, whichever date is later.
Ark. R. Civ. P. 4(i). This court has consistently held that service requirements under this rule must be strictly construed, and compliance with them must be exact. E.g. , Kangas v. Neely , 346 Ark. 334, 57 S.W.3d 694 (2001). Thus, a plaintiff must complete service within 120 days from the date of the filing of the complaint unless the time for service has been extended. See Edwards v. Szabo Food Serv., Inc. , 317 Ark. 369, 877 S.W.2d 932 (1994). If service is not obtained within that time and no motion to extend is made, dismissal of the action is mandatory. Keener , 335 Ark. 209, 979 S.W.2d 885.
Gore maintains that the circuit court's orders granting "an additional 120 days" for service extended the period 120 days from the date of the entry of the order granting the motion. By Gore's calculation, (1) the first extension began to run on June 8, 2016--the date of the entry of the first order extending time--and ended 120 days later; and (2) the second extension began to run on October 3, 2016--the date of the entry of the second order granting an extension of time--and ended 120 days later on January 31, 2017. Gore contends that the complaint should have been dismissed because ATFCU failed to perfect service before the expiration of the second extension.
Generally, we construe an order just like any other instrument; the determinative factor is the intention of the court, as gathered from the order itself and the record. See Magness v. McEntire , 305 Ark. 503, 808 S.W.2d 783 (1991). We first turn to the language in the orders. In this case, the circuit court's orders of extension granted ATFCU "an additional 120 days in which to serve" Gore with the summons and complaint. The use of the words "additional 120 days" suggests that ATFCU was given 120 days in addition to the 120 days already allowed by Rule 4. Neither order stated that the 120 days began to run from the date of the entry of the order. Moreover, at the June 30 hearing, the circuit court agreed with ATFCU's contentions that the first extension began to run upon expiration of the initial 120-day period, that the second extension began to run upon expiration of the first extension, and that ATFCU had until March 9, 2017, to perfect service.
A better practice would be for the order of extension to state the day the extension begins and the day it ends. However, having reviewed the orders and the record, we conclude that the circuit court's use of "additional 120 days" in the first extension order means that the order extended the time 120 days from the expiration of the initial 120-day period permitted under Rule 4(i). Thus, the first order extended the time until November 9, 2016. We further conclude that the circuit court's use of the words "additional 120 days" in the second extension order means that the order extended the time 120 days from the expiration of the time permitted by the first extension order. Therefore, the second order extended the time until March 9, 2017. Gore was served by warning order on March 8, 2017, one day before the time for service expired. Accordingly, we hold that the circuit court properly denied the motion to dismiss. and we affirm the circuit court's order granting default judgment in favor of ATFCU.
Affirmed.
This court accepted certification of this case from the court of appeals pursuant to Arkansas Supreme Court Rule 1-2(d) (2018).
"If an extension is granted for a period of time, this presupposes the existence of specified time; otherwise it would not be an extension of time, but would be a new and independent period of time specified. If there was not a time already specified, there would be no time to extend." Thomas v. Westheimer v.Daube , 87 Okla. 130, 209 P. 327, 329 (Okla. 1922). | [
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ROBIN F. WYNNE, Associate Justice
Michael James Friday appeals from his convictions for two counts of rape for which he was sentenced to life plus forty years' imprisonment in the Arkansas Department of Correction. Appellant raises the following points on appeal: (1) the evidence was insufficient to support either conviction; (2) the trial court abused its discretion in denying his motion in limine seeking to preclude reference to the prosecuting witnesses as "victims"; (3) the trial court erroneously closed the courtroom during voir dire in violation of his fundamental right to a public trial; and (4) the trial court abused its discretion in restricting his cross-examination of witness David Hall about the circumstances of his departure from a previous law-enforcement job. Because appellant received a sentence of life imprisonment, this court's jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2017). We affirm.
The allegations arose in July 2016 while the victims, A.H. and A.T., were attending a church camp. An investigation ensued, and A.H. and A.T. were interviewed by the Crimes Against Children Division of the Arkansas State Police. The State charged appellant by felony information with two counts of rape under Arkansas Code Annotated section 5-14-103(a)(3)(A), engaging in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age, which were alleged to have occurred on or about July 15, 2016, and one count of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, first offense, under Arkansas Code Annotated section 5-27-602, which was alleged to have occurred on or about July 21, 2016.
Appellant's jury trial was held on June 26 and 27, 2017. A.H., who was thirteen years old at the time of trial, testified that appellant, her stepfather, began sexually abusing her when she was five. The first time, he digitally penetrated her. He continued and also "put his mouth on [her] girl part"; she could not recall exactly how many times appellant had touched her but stated that it was "a lot." It usually occurred in her bedroom or in her mom and appellant's bedroom, typically at night when everyone else in the house was asleep. When A.H. was eleven, appellant began penetrating her vagina and anus with his penis and also making her "stick [her] mouth on his boy part." A.H. also testified regarding text messages appellant sent her and a video of her, made at appellant's direction, walking across the hall wearing only a shirt. A.H. further testified that appellant told her that if she ever told anyone about what was going on, he would tell everybody that it was her fault.
A.H.'s mother, Glenda Friday, testified that A.H. was four years old when she and appellant met, and she testified to the family's living arrangements and the couple's work schedules. Glenda worked as a nurse and appellant did shift work of varying schedules fifteen days out of the month. The house that they lived in had the children's bedrooms on one side and her and appellant's bedroom on the other. She testified that when she told appellant there were allegations that someone had molested A.H. and suggested that it was him, he threatened to kill himself. Glenda further testified that their sex life had gradually deteriorated and that they had never had sex on the sheets that were collected from A.H.'s room. She also stated that about six months before the allegations came to light, she woke up at 5:00 a.m. and could not find appellant, although his truck was there. After she looked for him and then went to the bathroom, he appeared in the living room and told her that he had fallen asleep in his truck.
A.T., who was fifteen at the time of trial, testified that A.H. is her second cousin. She stated that when she was nine years old and in the fourth grade, she attended school in Ashdown. She testified that she spent the time between the end of school and her parents' getting off work at Glenda and appellant's house. While Glenda was at work and appellant was the adult in charge of A.T., A.H., and A.H.'s older sister, the girls usually ate something and then would "all lay in his bed and play on [their] phones." Appellant would "finger" her under the covers and place her hand on his penis. On one occasion, he put his mouth on her vagina and put his tongue inside her vagina.
The evidence presented at trial also included testimony that bed sheets recovered from A.H.'s bedroom contained sperm cells that within all scientific certainty came from appellant. A search of appellant's and A.H.'s cell phones revealed a video on appellant's phone that appeared to show A.H. walking across the hallway wearing only a shirt. Deleted messages from appellant's phone to A.H.'s phone included statements such as "I want to kiss your tits and a BJ." In addition, a sexual-assault nurse examiner testified that she had performed an exam on A.H. on July 19, 2016. The nurse's findings were consistent with the history that A.H. had given.
As noted above, the jury found appellant guilty of both counts of rape, and he was sentenced to life plus forty years' imprisonment in the Arkansas Department of Correction. This appeal followed.
I. Sufficiency of the Evidence
For his first point on appeal, appellant argues that "[t]here was not substantial evidence that either of the alleged victims was under 14 years of age at the time of the alleged offenses." He takes issue with the fact that there was no evidence at trial regarding the date of birth of either victim and also argues that A.T., who was fifteen at the time of trial, was fourteen on the date of the alleged offense as charged in the information, which was less than a year before trial.
This court reviews a motion for a directed verdict as a challenge to the sufficiency of the evidence, and we will affirm the circuit court's denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury's verdict. Williamson v. State , 2009 Ark. 568, at 3, 350 S.W.3d 787, 789. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, without weighing it against conflicting evidence that may be favorable to the appellant and affirm the verdict if it is supported by substantial evidence. Id. In order to preserve a sufficiency-of-the-evidence challenge on appeal, a timely, clear, and specific motion for directed verdict must be made to the trial court pursuant to Ark. R. Crim. P. 33.1(c). Here, appellant argued in relevant part as follows:
The defendant would move for a directed verdict on each count of rape. The state has failed to meet their burden. Specifically, they have failed to establish that the defendant, Michael Friday, engaged in sexual intercourse or deviate sexual activity with a person under the 14 - under 14 years of age. There was inadequate testimony as to the age of the victims and the age of the victims at the time of the alleged sexual intercourse or deviate sexual activity.
....
Your Honor, it's the defendant's position there was never established dates of birth. They --. And defendant believes that's necessary to convict a person of rape under the age of 14.
The circuit court denied the motion, and the defense rested without presenting any evidence.
It is well established that the uncorroborated testimony of a rape victim alone is sufficient to sustain a conviction. See, e.g. , Ward v. State , 370 Ark. 398, 400, 260 S.W.3d 292, 294-95 (2007). Here, A.H. testified that she was five years old when appellant began raping her, and A.T. testified that appellant raped her when she was nine years old. There is no requirement under the statute, and appellant cites no authority for the proposition, that the birthdates of the victims must be established at trial. As for his argument that A.T. was fourteen on the date contained in the felony information, that argument was not made below and is therefore not preserved for appellate review. Ark. R. Crim. P. 33.1 (2017); Cockrell v. State , 2010 Ark. 258, at 9, 370 S.W.3d 197, 202 ("[A] party cannot change the grounds for an objection on appeal but is bound by the scope and nature of the arguments presented at trial."). We affirm on this point.
II. References to "Victims"
Next, appellant argues that the trial court abused its discretion in denying his motion in limine seeking to preclude reference to the prosecuting witnesses as "victims." Prior to trial, appellant filed a motion to preclude the State or its witnesses from referring to A.H. and A.T. as "victims." At a pretrial hearing, the trial court denied the motion and ruled as follows:
THE COURT : Are any of your cases newer than 2008?
[ DEFENSE COUNSEL ]: I do not believe they are, Your Honor.
THE COURT : Because I remember when I was the prosecutor this issue came up numerous times. And the case law that I remember seemed to indicate that it'd be preferable not to, but it's not reversible error and the Supreme Court did not direct the Court or the prosecutor to refer to the individuals or alleged victims as victims. So I'm going to deny your motion at this time.
Appellant argues on appeal that this ruling constituted an abuse of discretion and alleges that "the trial court and the State repeatedly referred to the alleged victims as 'victims' during voir dire." Appellant also states that the "State's witnesses also referred to both alleged victims as 'victims' several times during the State's case-in-chief." He argues that the use of that term eroded his fundamental right to be presumed innocent and improperly shifted the State's burden of proof to him, requiring him to prove that a crime had not been committed.
The cases cited by appellant for his argument on this point are distinguishable. In Sharp v. State , 51 Ark. 147, 10 S.W. 228 (1889), the appellant was granted a new trial based on statements by the trial judge that could have intimated an opinion in the case and improperly influenced the jury. Similarly, in Bateman v. State , 2 Ark. App. 339, 621 S.W.2d 232 (1981), the court of appeals addressed the trial judge's use of the word "victim" during voir dire. The court affirmed the denial of Bateman's motion for mistrial:
In this case, the trial court should not have referred to the prosecuting witness as the "victim", but from a review of the record it is clear that the court was simply attempting to identify her for purposes of questioning the jury panel as to whether or not they were acquainted with her. Certainly, the court could have referred to her as the alleged victim and that would not have been error. Under all the circumstances, we do not view that comment by the trial court as prejudicial even though the term should not have been used.
2 Ark. App. at 340, 621 S.W.2d at 233-34. Here, the only instance in which appellant identifies the trial court's use of the term "victim" was during a bench conference with a single potential juror who was ultimately released. Therefore, the trial court did not improperly influence the jury by using the term "victim" to refer to the complaining witnesses, and the only authority appellant cites is distinguishable. Regarding appellant's objection to the use of the word "victim" by the prosecution and law-enforcement witnesses, it was readily apparent to the jury that in the prosecution's theory of the case, A.T. and A.H. were, in fact, victims. And the law-enforcement officers' references to A.T. and A.H. as "victims" were in the officers' testimony recounting their role in the investigation. There is no prejudicial error under these circumstances, and we affirm on this point.
III. Public Trial
For his third point on appeal, appellant argues that the trial court erroneously closed the courtroom during voir dire in violation of his fundamental right to a public trial. He cites to the portion of the record in which, during voir dire, the "[v]ictim's father attempts to exit the courtroom," referring to A.T.'s father, and the circuit court then stated, "The courtroom's locked. Hold on, hold on, hold on. I thought the courtroom was locked." During a subsequent bench conference, the State noted, "That's [A.T.'s] dad and he ain't doing very well. He needs to get out of here." The trial court responded, "Go ahead," and the record then reflects that the "[v]ictim's father exits courtroom." On appeal, appellant contends that his convictions must be reversed because his fundamental right to a public trial was violated.
In Schnarr v. State , 2017 Ark. 10, 2017 WL 374727, this court addressed the constitutional right to a public trial guaranteed by the Sixth Amendment to the United States Constitution and article 2, section 10 of the Arkansas Constitution. In Schnarr , this court held that the issue was preserved for appeal because, while the issue was not known to defense counsel when Schnarr's family members were excluded from the courtroom during voir dire, defense counsel raised the denial of Schnarr's right to a public trial at the first opportunity after making the discovery. Schnarr moved to quash the jury and to declare a mistrial; the trial court denied his motion, and he later renewed his motion and proffered the testimony of the excluded family members, which the court denied. Here, in contrast, no objection to the courtroom's alleged closure was ever raised by the defense to the trial court. Under these circumstances, we adhere to the well-established precedent that requires a contemporaneous objection to preserve an issue for appeal, even a constitutional issue. E.g. , Anderson v. State , 353 Ark. 384, 395, 108 S.W.3d 592, 599 (2003). Because appellant failed to object below, we affirm on this point without addressing appellant's argument.
IV. Cross-Examination of David Hall
Finally, appellant argues that the trial court abused its discretion in restricting his cross-examination of the lead investigator David Hall about the circumstances of his departure from a previous law-enforcement job. During cross-examination, defense counsel started to ask Hall why he had left a job at the Arkansas Game and Fish Commission. The prosecution objected, and a bench conference ensued:
[ DEFENSE COUNSEL ]: Judge, the anticipated testimony is that he was - that he lied on a document that he signed regarding a vehicle incident. And it goes to his credibility as a witness and his ability to tell the truth.
THE COURT : Do you have a good faith basis for asking that?
[DEFENSE COUNSEL ]: Yes, I mean, --
[ PROSECUTION ]: I'd like to see it, because I've looked at the same documents and I don't see it. I'd like to see what his good faith, you know --. I'd like the court to take a look at it outside the presence of the jury. Sorry.
THE COURT : Do you have a good faith --? Just tell me. Do you have a good faith basis -
[ DEFENSE COUNSEL ]: Your Honor, I've got the document that he signed. And I think it is the same document that you probably --. That what we're talking about.
[ PROSECUTION ]: It's an accident report that said, I hit a tree.
THE COURT : Well, just ask him then, but you're stuck with his answer.
[ DEFENSE COUNSEL ]: Okay.
THE COURT : Go ahead.
Hall then testified that he left the commission because he had a disagreement with a supervisor; he resigned his position and left in good standing. When defense counsel attempted to inquire further into the circumstances surrounding the disagreement, the prosecution objected:
[ PROSECUTION ]: This is not relevant and it violates 404, 403, 401, and 103.
THE COURT : I gave --. I made a ruling and gave you direction. You're kind of veering off from what I allowed you to do.
[ DEFENSE COUNSEL ]: Yes, Your Honor. I'll move on.
There was no further objection from the defense, and there was no proffer of testimony or of the document that allegedly provided the basis for the untruthful statement.
On appeal, appellant argues that he was entitled to have the jury consider the circumstances of key State witness David Hall's departure from the Arkansas Game and Fish Commission in determining his credibility under Arkansas Rule of Evidence 608(b). As this court recently stated, a proffer "permit[s] the trial judge to make an informed evidentiary ruling" and "create[s] a clear record that an appellate court can review to determine whether there was reversible error in excluding the [evidence]." Sharp v. State , 2018 Ark. 274, at 5, 555 S.W.3d 878, 881 (quoting Perkins v. Silver Mountain Sports Club & Spa, LLC , 557 F.3d 1141, 1147 (10th Cir. 2009) ). Generally, a party must make a proffer to preserve for appellate review an issue concerning the erroneous exclusion of evidence at trial. Id. A proffer is unnecessary, however, when the substance of the evidence is apparent from the context within which it was offered. Id.
Here, appellant attempts to overcome the lack of a proffer by arguing that "the substance of Hall's specific instance of misconduct is apparent from the context." We disagree. The record contains only defense counsel's assertion that Hall lied in a document he signed about a vehicle accident, and the prosecution disputed that the document provided a good faith-basis for asking Hall if he had been untruthful in the report. Because appellant failed to proffer either the excluded testimony or the document upon which defense counsel relied, and because the substance of that testimony is not clearly apparent from the record on appeal, his Rule 608(b) argument is unpreserved. Therefore, we affirm on this point.
V. Conclusion
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been examined for all objections, motions, and requests decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
HART, J., dissents.
Make no mistake, child rape is a heinous crime that cannot be tolerated. Moreover, there was compelling evidence that Friday repeatedly engaged in this despicable conduct for nearly a decade. However, that does not justify convicting Friday of a crime for which he was not charged and eviscerating the cornerstone of our criminal law-the presumption of innocence.
I cannot ignore that Friday was tried on two counts of rape, i.e., engaging in sexual intercourse or deviate sexual activity with another person who was less than fourteen years of age, "on or about July 15, 2016. " (Emphasis added.) July 15, 2016 was not the date or, more accurately, one of the many dates on which Friday engaged in sexual activity with children, but merely the date that A.T. and A.H. reported it to police. If anything, that date was the one time that we could be certain Friday did not have sexual contact with either A.T. or A.H.
I am mindful that Arkansas law tolerates minor deviations in the indictment with regard to the time of the offense. The standard is whether the time specified is "material to the offense." Wilson v. State , 320 Ark. 707, 898 S.W.2d 469 (1995). With regard to A.H., I concede that it was not material to this case. As noted previously, Friday was charged with engaging in sexual intercourse or deviate sexual activity with A.H. when she was under the age of fourteen, and her testimony established that she was under the age of fourteen even though the trail was nearly a year after Friday last had engaged in sexual conduct with her. Moreover, Friday's sexual conduct with A.H. was established to have taken place shortly before the date alleged in the information. The case involving A.T., however, is different.
A.T. testified that she was fifteen at the time of trial, which was held on June 26, 2017. Logically, she could not have been under the age of fourteen "on or about July 15, 2016. This fact is material to the case because the age of the alleged victim-"under the age of fourteen"-is an element of the charged offense of rape. Further, all of A.T.'s testimony concerned sexual contact that she had with Friday when she was nine or ten years old. Again, this conduct was not "on or about July 15, 2016." Reprehensible, yes, but the remoteness in time of the acts she complained of relative to the time specified in the information means that Friday was convicted of an uncharged crime. This material variance between the information and what the jury was instructed on amounted to a violation of Friday's right to due process. See Cokeley v. Lockhart 951 F.2d 916 (1991). Accordingly, the conviction for rape of A.T. should be reversed and dismissed.
In denying Friday's motion in limine to exclude the State's witnesses from referring to A.H. and A.T. as "victims," the circuit court denied Friday his right to the presumption of innocence. Friday's reliance on Sharp v. State , 51 Ark. 147, 10 S.W. 228 (1889), is well placed. In reversing a murder conviction, the Sharp court stated that the "word victim in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing.... And it was nearly equivalent, in effect, to an expression characterizing the defendant as a criminal." 51 Ark. at 156-157, 10 S.W. at 232. Although the case before us involves rape and not murder, that is a difference without a distinction. Allowing the State's witnesses were allowed to refer to A.T. and A.H. as "victims," prejudiced the jury to conclude that they had been sexually assaulted. This lightened the State's burden immeasurably.
Friday's citation of Bateman v. State , 2 Ark. App. 339, 340, 621 S.W.2d 232, 233-34 (1981), is also instructive. Our court of appeals, albeit in dicta, stated that "the trial court should not have referred to the prosecuting witness as the 'victim' " during voir dire, and that "alleged victim" would have been the appropriate term." The Bateman court only affirmed the case only because the circuit court was not given an opportunity to rule on this issue until after trial was already underway and the statement at issue had already been made to the jury. 2 Ark. App. at 340, 621 S.W.2d at 234. While not binding authority, Bateman nonetheless provides a clear statement of the law. Importantly, both Sharp and Bateman were cited to the circuit court.
As with any evidentiary ruling, reversal required an abuse of the circuit court's discretion, which requires that the circuit court "act improvidently, thoughtlessly, or without due consideration." Fletcher v. State , 2018 Ark. 261, at 5, 555 S.W.3d 858, 863. In my view, the circuit court's ruling satisfies this very high standard. After a hearing, the trial court denied Friday's motion, noting:
Because I remember when I was the prosecutor this issue came up numerous times. And the case law that I remember seemed to indicate that it'd be preferable not to, but it's not reversible error and the Supreme Court did not direct the Court or the prosecutor to refer to the individuals or alleged victims as victims. So I'm going to deny your motion at this time.
The circuit court's "due consideration" consisted of nothing more than a cynical assessment of whether it would be reversed-not a single thought went to the effect on Friday's constitutional right to a fair trial. It is difficult to say whether the circuit court's calculations or the majority's decision is worse, but suffice it to say that it was not the Arkansas judiciary's finest hour.
I respectfully dissent.
The third count was dismissed.
Rule 608(b) provides the following:
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. | [
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N. MARK KLAPPENBACH, Judge
Appellant Gregory Alan Rongey was convicted by a jury in Logan County Circuit Court of first-degree battery against a law enforcement officer and possession of a defaced firearm. The battery charge carried an enhanced penalty due to use of a firearm in the commission of the battery. Rongey does not dispute that Booneville police chief Albert Brown was shot in the thigh with Rongey's firearm, but he contends that it was an accident. Rongey argues on appeal that the State failed to present sufficient evidence of his criminal intent to commit the battery. We affirm.
In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence. Howard v. State , 2016 Ark. 434, 506 S.W.3d 843. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. In reviewing a sufficiency challenge, we view the evidence in the light most favorable to the State, considering only evidence that supports the verdict. Id.
One's intent or purpose, being a state of mind, can seldom be positively known to others. Cole v. State , 33 Ark. App. 98, 802 S.W.2d 472 (1991). Since intent ordinarily cannot be proved by direct evidence, jurors are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Martinez v. State , 2018 Ark. App. 187, 545 S.W.3d 264 ;
Green v. State , 2018 Ark. App. 145, 544 S.W.3d 574. Because of the difficulty in ascertaining a person's intent, a presumption exists that a person intends the natural and probable consequences of his or her acts. Lee v. State , 2017 Ark. 337, 532 S.W.3d 43.
As to first-degree battery, the circuit court instructed the jury to determine whether the State had proved that Rongey (1) purposely caused serious physical injury to Brown; (2) purposely caused physical injury to Brown using a firearm; or (3) caused serious physical injury to Brown under circumstances manifesting extreme indifference to the value of human life. See Ark. Code Ann. § 5-13-201(a) (Repl. 2013). A person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. See Ark. Code Ann. § 5-2-202 (Repl. 2013). The phrase "circumstances manifesting extreme indifference to the value of human life" indicates that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused. McCoy v. State , 347 Ark. 913, 69 S.W.3d 430 (2002). Extreme indifference is thus in the nature of a culpable mental state and therefore is akin to intent. Id. Offenses requiring extreme indifference involve actions that evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. Price v. State , 373 Ark. 435, 284 S.W.3d 462 (2008) ; Hoyle v. State , 371 Ark. 495, 503, 268 S.W.3d 313, 318 (2007).
The evidence, viewed in the light most favorable to the State, revealed the following. At around midnight on April 26, 2017, Rongey called 911 and made contact with the Logan County Sheriff's Office. Rongey would later admit that he had consumed a bottle of Amaretto (a liqueur) and a couple beers. Rongey told the dispatcher that he wanted to die and wanted a law enforcement officer to come shoot him. Rongey told the dispatcher that he had a rifle and a pistol, one of which was on his lap, and he would have the firearms in his hands so the officers would shoot him. The dispatcher offered to send help to Rongey and told him that no one was going to shoot him. Rongey responded, "When I fire at one [of] them, though, they will." One officer remembered speaking to Rongey, testifying that Rongey wanted someone to "just come over and knock on the door, and he was going to start shooting so we would have to shoot him." Brown testified that he spoke with Rongey on the phone, and Rongey told him that he wanted "to go out in a battle" and that "if he needed to come find us, he would."
Law enforcement officers went to Rongey's apartment. Rongey came out of his apartment and fired a shot. Brown tackled Rongey from behind, and Brown was struck in the upper thigh with a bullet from one of Rongey's firearms. The bullet went through Brown's thigh, causing substantial blood loss, and Brown was taken to the emergency room for treatment. Rongey gave a statement to law enforcement insisting that he never intended to shoot officers but that he just wanted to die himself. He stated that he fired the first shot in the air and that the firearm accidentally went off the second time when he was tackled.
Rongey's attorney moved for directed verdict, arguing that there was insufficient evidence that Rongey acted purposely to hurt Brown or that he acted under circumstances manifesting extreme indifference to the value of human life. The trial court denied the motion and denied the renewal of that motion. The jury found Rongey guilty of first-degree battery, and this appeal followed.
Circumstantial evidence may constitute substantial evidence to support a conviction. Price, supra. To be substantial, the circumstantial evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id. We must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Extreme indifference requires actions that evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. Id. The mere act of pointing a loaded gun at another person can be sufficient to establish a manifestation of extreme indifference to the value of human life, regardless of whether there was an actual intent to shoot. See Isbell v. State , 326 Ark. 17, 931 S.W.2d 74 (1996).
Applying the foregoing principles to the evidence in this case, we hold that the trial court did not err in denying Rongey's motion for directed verdict. Rongey, who had consumed a considerable amount of alcohol, told law enforcement that he was armed with two firearms, that he wanted to "go out in a battle," and that he would come to law enforcement if law enforcement did not come to his apartment. Rongey intentionally fired a round as he came out of his apartment to encounter law enforcement personnel, and Brown was subsequently struck with a bullet from one of Rongey's two firearms. This is sufficient evidence to support the jury's finding that Rongey caused serious physical injury to Brown under circumstances manifesting extreme indifference to the value of human life.
Affirmed.
Harrison and Glover, JJ., agree. | [
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BRANDON J. HARRISON, Judge
Stephanie McHenry appeals the Union County Circuit Court's termination of her parental rights to C.H.1, C.H.2, C.H.3, and C.M. We affirm.
I. Background
This case started when the Arkansas Department of Human Services (DHS) received a child-maltreatment report after the meconium of Stephanie McHenry's fourth child tested positive for marijuana in February 2016. Services were started for the family, and a Union County social worker checked regularly on the children. There were concerns that Stephanie's eldest son, C.M., age 15, was babysitting the children-including C.H.3, an infant who had just been released from Arkansas Children's Hospital after a lengthy stay following his premature birth. More childcare and other services were provided, but on 3 August 2016, Stephanie had a positive drug test with "faint lines" for amphetamines, and she admitted that she had used methamphetamine.
The children were adjudicated dependent-neglected on 9 January 2017 based primarily on Stephanie's positive drug test and a lice infestation. The court ordered Stephanie to submit to random drug screens, successfully complete parenting classes and psychotherapy counseling, successfully attend NA/AA meetings, maintain housing, allow the DHS access to the home, obtain employment, and maintain regular contact with the juveniles. In March 2017, the court ordered Stephanie to follow "Loren Beck's plan for substance abuse treatment" and not to use or possess alcohol.
On 6 April 2017, the court ordered alternating weekend visitation between the children and Stephanie-ordering Stephanie not to smoke or "have the odor of smoke on her during the weekend visits." On 1 May 2017, the court entered an agreed order of a 60-day trial visit between Stephanie and C.H.1.
On 6 July 2017 DHS filed a motion for ex parte emergency custody, alleging "circumstances have changed since the entry of the most recent temporary custody order concerning [C.M.] and [C.H.1]." DHS alleged that Stephanie had been drinking on July 4 in violation of the court's order, and was involved in a "domestic dispute with Jonathan Keanobody, someone she said she was not in a relationship with and had taken off in the middle of the night walking with her three (3) youngest children in the woods." An attached affidavit by a DHS caseworker detailed the events of the night. The court entered an order of emergency change of custody on July 11.
A review order was entered on 12 July 2017. It reflected that C.H.1 started a trial visit on May 15 and C.M. started a trial visit on May 22, before the emergency order changing custody back to DHS was entered on July 11. The court entered a permanency-planning order on 6 October 2017, which changed the case goal to adoption. DHS filed a petition for termination of parental rights on 12 September 2017, alleging two statutory grounds-the 12-month ground and the aggravated-circumstances ground. Ark. Code Ann. §§ 9-27-341(b)(3)(B)(i)(a) and (b)(3)(B)(ix)(a) (Supp. 2017).
II. Termination Hearing
The circuit court convened a hearing on DHS's termination petition on 16 October 2017. We have reviewed the record and all the testimony but have included only the most critical parts.
Stephanie's alcohol-and-drug counselor, Loren Beck, testified that he recommended intensive outpatient therapy for Stephanie after an initial assessment spun by the 2016 child-maltreatment report. Stephanie completed treatment but there were problems along the way. For example, in December 2016 Stephanie admitted drinking around the holidays. Drinking was not allowed under Beck's treatment plan. Beck restarted his plan with Stephanie in February 2017, and again in mid-April. Beck discharged Stephanie from treatment after she completed "a very client-specific plan" in May 2017. After the July 4 incident, Stephanie completed eight-week interim services and remained active in the aftercare program, according to Beck. Beck's prognosis for Stephanie's sobriety was "guarded" because Stephanie "doesn't believe that she has a problem with alcohol or drugs."
On cross-examination, Beck stated that the court adopted his February 2017 recommendations that Stephanie abstain from alcohol, that he found out about Stephanie's boyfriend from the staffing, and that in mid-April 2017 Stephanie started to be open and honest about her life and treatment. Beck said that after the July 4 incident, Stephanie started going to lots of extra treatment, group meetings, and twelve-step meetings.
Molly Taylor, the foster mom to C.H.2 and C.H.3, testified that the children "went for a trial visit" around 19 June 2017 and returned to her home on July 4 or 5. Taylor reported that when C.H.2 and C.H.3 returned, they were dirty, covered in bug bites, and had lice and a few fleas on them. C.H.2 regressed in her toilet training and played with her urine. C.H.3 was a happy baby before the trial visit but after the visit had "a lot of anger" and "angry screams."
According to Taylor, the children came home with gifts; C.H.2 started having nightmares; and C.H.3 started having night terrors after an August visit at the DHS office. Taylor called DHS because she wasn't sure if something had triggered these behaviors, and she was told that Jonathan Hadlock had called during the visit. C.H.2 told Taylor that she had received a baby doll from "John John." Taylor assumed the nightmares and the doll were related so she did not allow C.H.2 to sleep with the doll and "eventually with time it got better." After returning from a parent visit in Monticello where C.M. lived, C.H.2 threw a tantrum and ripped the toenail off her big toe. Taylor reported that she was concerned with the tantrums and behaviors occurring after the visits with Stephanie and that the bags with snacks and diapers she packed for the children would come back unused. C.H.2 would tell her that she did not want to see John John.
On cross-examination, Taylor said that she believed John John is Jonathan Napp. She also said that before the July 4-5 event, C.H.2 was always happy to see Stephanie and would cry when the weekend visits would end; but after July 5, C.H.2 would be eager for Taylor to pick her up from the visits and called Taylor "mommy." Taylor also said that C.H.3 had been diagnosed with asthma and shows signs of cerebral palsy. At the time of the termination hearing, he was twenty months old, not yet walking, and had some developmental delays. Taylor said that she had to replace C.H.3's air chamber because it was "full of cigarette smoke" after the July event.
Caseworker Lacie Waller testified that after the children's removal from the home on 3 August 2016, Stephanie agreed to a case plan that included a drug assessment and that she would "follow all recommendations." Waller said that she agreed with Beck's recollection of the staffing on 13 January 2017. Waller said that during the staffing, Stephanie admitted that she drank three times and said that she didn't know she was not allowed to drink. Waller also said that during a visit in February 2017, Jonathan Napp told her that he had not done a background check and that "he wasn't gonna do it because [he] was gonna let [Stephanie] get her life together and he wasn't gonna be around the kids so she could eventually get them back."
Waller testified that she went to the trailer park where Stephanie lived and that she had no concerns with the children's health or safety based on the home's conditions. Waller reported that Stephanie had missed six of her drug-treatment classes in mid-March but that at the next staffing on April 4, Beck reported that Stephanie was "still in IOP classes but that she had completed them but he still wanted her to go twice a week." She said that the court ordered Stephanie not to smoke because C.H.3 has asthma. C.H.2 and C.H.3 were placed on a trial visit with Stephanie on June 19, which DHS terminated after Waller received a text from Jonathan Napp, who said that Stephanie "was belligerent and drunk and she had taken the kids into the woods" and that Waller needed to come. Waller described Stephanie's home as "in disarray" and there were liquor bottles in the house.
When Waller arrived at the house that night, Stephanie and the children were not there. About five minutes later, Stephanie and the children arrived in a car driven by Stephanie's mother. Waller questioned Stephanie about her drinking, and Stephanie said she drank three and a half beers. It appears that all the children were placed with Stephanie at that time, although the orders in the record do not reflect this. Waller testified that after this incident, C.H.2 and C.H.3 were put back into foster care and C.M. and C.H.1 were put back in a 72-hour hold.
Waller testified that a September staffing was convened during which Stephanie reported that she had missed her counseling appointment because Jonathan Hadlock had stolen her car, that she was no longer working, that Jonathan Napp and her mother helped with the bills, that they had no money in their account, but Jonathan was being paid the next day. Waller also said that there had been issues during the last three to four visits between Stephanie and her children. She said that one of the issues was with Stephanie not properly feeding C.H.3 but that Loretta Harrell supervised those visits. She also described some conflicts with C.M.'s phone. A foster parent had taken his cell phone away as punishment, and Waller returned the phone to Stephanie on August 22. Stephanie gave it back to C.M. by putting it in the foster parent's mailbox. She concluded it was in the children's best interest to terminate Stephanie's parental rights.
On cross-examination by Stephanie's counsel, Waller agreed that she did not have proof that Stephanie had been using alcohol since July 4. On cross-examination by the attorney ad litem, Waller stated that Stephanie had lied about her relationship with Jonathan Napp and pretended she was not in a relationship with him. Waller said that custody of C.M. was returned to Stephanie on June 19. According to Waller, Stephanie let C.M. stay "at Ms. Bohannon's house" a week or two after his return (which might explain why he wasn't with her during the July 4 incident). Stephanie also let C.H.2 and C.H.3 stay with Jonathan Hadlock. She never gave DHS his phone number or asked if it was ok for Hadlock to take the children. Waller also explained that the foster parent called after the Monticello visits because there were problems when Stephanie had ridden to Monticello with C.H.2 and C.H.3. The Monticello visitations were stopped and moved to the DHS office in Union County instead.
DHS supervisor Mydeana Bridges testified that between March and August 2016, DHS provided drug-screening services, drug assessments, transportation, a gas card, and homemaker services. She explained that C.H.3 had missed critical appointments at Arkansas Children's Hospital in Little Rock and that Stephanie would go to work and leave C.M. in charge of all three children. She said that Jonathan Napp never provided the background checks and forms that he was asked and ordered to provide. Loretta Harrell, a DHS program assistant, testified that there were issues with Stephanie's visitation with the children. DHS presented a piece of hard candy as evidence. Harrell also said that Stephanie did not give C.H.3 "the thickening and the milk" that was in the backpack during the visits.
Crystal Williams, a Union County adoption specialist, testified that the children have "medical things but that would not hinder finding homes." She said that she ran matching information on the children and came up with 35 possible families, and to her knowledge, there was not anyone known to DHS who might want to adopt the children.
Stephanie denied not properly feeding C.H.3 or the other children and explained that she did not use the food provided because she brought peanut butter and jelly sandwiches or chips and apple juice for C.H.3. She disagreed that C.H.2 called Jonathan Napp "John John," as he had been around the children only a few times. According to Stephanie, C.H.2 called him "Jonathan the trucker guy." In Stephanie's opinion, her children's problematic behavior was not because of Jonathan but because "[her] kids are going back and forth to [her] and [she was] only seeing them once a week for an hour."
Stephanie thought the kids got lice from Jonathan Hadlock and that it was her mistake. She also explained that her kids being dirty and having bites was from being outside playing and shooting fireworks. She said she lied "a lot" at the beginning of the case because she feared DHS and losing her kids. She testified that she was "very ashamed and embarrassed" and that she did not want to tell Jonathan about "all this" as she "knew that DHS would drag him into it." She said that she was blaming everyone but herself but "became honest." Stephanie testified that Jonathan was helping her get her GED and that she was to start a job at Foster Farms the next day.
She denied having a drinking problem. According to Stephanie, she only drinks at holidays and special occasions, and the Fourth of July was a "huge mistake." She testified,
It's not so much of me having the drinking problem not to where I need a drink every day or once or week, it's just when I do drink on a holiday then it's too much .... [T]hat's why I'm continuing to do AA and listen to everybody else's story .... I can be in a really bad mood and upset and then when I go to AA it clears my mind[.]
On cross-examination, Stephanie said, among other things, that she was on step four of the twelve steps. She started attending meetings in August 2017, a few months before the October termination hearing.
III. The Circuit Court's Ruling
The circuit court terminated Stephanie's parental rights in December 2017. It found that DHS had proved by clear and convincing evidence the statutory ground of aggravated circumstances, and there was little likelihood that further services would result in successful reunification. It wrote,
[DHS] showed that Stephanie McHenry began to comply late in the game and the Court cannot gauge how long it will take for her to get to the point of the children being able to return home. Prior to the children being returned home, custody and/or trial visit, Stephanie McHenry testified that she did not have a relationship with Jonathan Knapp, which was not true. On July 4, 2017 the children were brought back into foster care because Stephanie McHenry and Mr. Knapp were drinking, left with the kids and only showed up later after the police and DHS had left and came back. Stephanie McHenry continues to have a substance abuse issue.
Stephanie McHenry did not start going to NA/AA meetings until August 28, 2017. There is a strong record that Stephanie McHenry has not completed any services offered after the children were removed in July. The Court cannot hold up the lives of the children to see how long it will take her. The Court finds Stephanie McHenry has been untruthful during the case. The Court finds her stated reasons for this untruthfulness reasonable, but problematic in this case.
The condition of the children after being removed from her home in July were totally unexplained by Stephanie McHenry. Before the return to Stephanie McHenry's home, [C.H.2] was happy to visit and after the placement she reacted differently. Stephanie McHenry should be in a position to explain what happened during the trial placement but did not. The Court finds that whatever happened was detrimental to [C.H.2].
....
The Court finds that the unknown nature about what occurred while the children were home until July 4, that it was detrimental to them and Stephanie McHenry's inability to explain the situation demonstrate how [C.H.1, C.H.2, C.H.3, and C.M.] would be at risk of potential harm if returned to Stephanie McHenry.
IV. Arguments on Appeal
Stephanie first argues that the circuit court lacked "subject matter jurisdiction" to entertain DHS's termination petition because the court lacked jurisdiction to enter an order adjudicating the children dependent-neglected. She asks us to reconsider our holding in Turner v. Arkansas Department of Human Services , 2018 Ark. App. 52, 539 S.W.3d 635 for three primary reasons: (1) Ark. Code Ann. § 9-27-327(f) states that the circuit court "shall" enter a written adjudication order within thirty days of the hearing or prior to the next hearing, whichever is sooner; (2) "encouragement"
by the appellate courts for the circuit courts to follow the statute does not adequately address the growing problem of delayed orders; and (3) Turner 's statement that "[t]o reverse ... would be contrary to the [child's] best interest" ignores the statute's mandatory directives and negatively impacts the rights of parents to seek appellate review.
We decline to overrule Turner . In this case, the children were removed from Stephanie's home on 3 August 2016 and remained in DHS custody, but the circuit court did not adjudicate them dependent-neglected until 9 January 2017. The January 9 adjudication order was not appealed. Turner holds that a parent must appeal an untimely adjudication order to argue about its untimeliness. Turner , 2018 Ark. App. 52, at 4, 539 S.W.3d at 637. In dicta we also said that a parent must at least raise the timeliness issue at the termination hearing. Id. Neither our supreme court nor the General Assembly has fashioned a remedy for untimely orders; and it is not our place to do so in this case. We therefore affirm on this point.
Stephanie's second point is that there is insufficient evidence to support the aggravated-circumstances termination ground. "Aggravated circumstances" means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) (Supp. 2017). Our task is to ask whether the circuit court's finding of aggravated circumstances was clearly erroneous. Abdi v. Ark. Dep't of Human Servs. , 2018 Ark. App. 173, at 8, 544 S.W.3d 603, 607 (standard of review).
Here, the circuit court found that there was little likelihood that services would result in successful reunification between Stephanie and her children. Stephanie argues this finding is clearly wrong because she took advantage of the services DHS offered and that she responded to those services throughout the case, not just after the July 4 incident, which was an isolated event.
When deciding whether to terminate parental rights, the circuit court must look at the case as a whole and how the parent has discharged his or her parental duties, the substantial risk of serious harm the parent imposes, and whether the parent is unfit. Bean v. Ark. Dep't of Human Servs. , 2017 Ark. App. 77, at 28, 513 S.W.3d 859, 876. See also Ark. Code Ann. § 9-27-341(a)(4)(B). Time is viewed from the children's perspective; and the best interests of the children take precedence at every stage of the proceedings. Burkett v. Ark. Dep't of Human Servs. , 2016 Ark. App. 570, at 5, 507 S.W.3d 530, 534.
DHS had been providing services for twenty months at the time of the termination hearing. Stephanie completed several courses of substance-abuse treatment but still had an event where she drank alcohol in violation of a court order, left suddenly into the woods with three children, and therefore undermined the progress she had made. At that time, the family was already a year into the case, and there was not much time left to recoup her progress after such a failure. During the termination hearing, Stephanie equivocated on whether she had a problem with substance misuse, and her therapist, Loren Beck, said that his prognosis for sobriety was guarded because Stephanie had little insight into her problem. The court was faced with a difficult call of whether it thought Stephanie was going to "get there" and how long it would take her to "get there." A parent must conquer his or her issues in a manner timely enough to prevent termination under the child-centered juvenile code. Given the whole of the testimony and the long history leading up to the termination, the circuit court's decision was not clearly wrong.
Stephanie takes issue with some of the court's written findings in its termination order. For example, she says that the court's language that "whatever happened was detrimental to [C.H.2]" was an unfair blaming of her for her child's behavior. She states,
The court also blamed Stephanie for being unable to explain why [C.H.2] acted adversely after being removed from Stephanie's custody after the July 4 incident, finding that "whatever happened" was detrimental. However, Stephanie did attempt to explain, as best she could, why her daughter, who was only three years old, might be acting adversely. How was she to explain the root cause of [C.H.2]'s change in behavior when there was no definitive evidence that something other than being placed back in foster care caused her to have behavioral issues? Clearly, the court cannot blame Stephanie for a three-year old's tantrums-and then terminate-based on circumstances that even the court isn't certain of. "Whatever happened" cannot support termination.
The court's finding is not unmoored from the record. It had before it testimony from C.H. 2's and C.H.3's foster mom about concerning behaviors that arose after they had contact with Stephanie-like a three-year-old ripping off her toenail or a previously happy baby having "angry screams." During the time Stephanie had custody or visitation from June 19 to July 5, she left the younger children with Jonathan Hadlock. C.H.2 reportedly told her foster mother that did not want to see "John John." Two of the men Stephanie was in contact with were named Jonathan. While she admitted lying about her relationship with Jonathan Napp, she married him and DHS had not received any of the background-check forms it had requested. Jonathan Hadlock had reportedly stolen Stephanie's car and had not been screened as an appropriate caregiver for the children.
We further acknowledge that the court's statement in the termination order that "[t]here is a strong record that Stephanie McHenry has not completed any services offered after the children were removed in July" is not completely accurate. Loren Beck testified that Stephanie had completed eight-week "interim services" and has remained active in the aftercare program after the July 4 incident. There was also no evidence of any alcohol or substance abuse after the July 4 incident and the children's emergency removal. In fact, Stephanie had no positive drug test since August 2016, when the children were first removed. We also note that while the circuit court wrote that the "condition of the children after being removed from her home in July [was] totally unexplained by Stephanie McHenry," Stephanie did provide explanations about her children's condition and their behavior following the visits. Whether those explanations were convincing was a credibility issue for the circuit court to decide.
The circuit court's decision to terminate Stephanie's rights was not clearly erroneous given this case's facts.
Affirmed.
Gruber, C.J., and Brown, J., agree.
This appears to be a typographical error. Jonathan's last name is Napp. Different spellings of this last name appear throughout the record. A former boyfriend of Stephanie appears in the record at times, and his name is Jonathan Hadlock.
There is no circuit-court order reflecting a change of custody. | [
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N. MARK KLAPPENBACH, Judge
This is an appeal from the order entered on June 26, 2017, by the Sebastian County Circuit Court terminating the parental rights of appellant Tara Lazaravage to her daughter GL, born in January 2016. Tara presents two points on appeal, asserting that the trial court committed reversible error (1) by not requiring compliance with the notice provisions of the Indian Child Welfare Act (ICWA) and (2) by clearly erring in finding that the Department of Human Services (DHS) proved any of the three alleged statutory grounds to support terminating her parental rights. We affirm.
The termination of parental rights involves a two-step process in which the trial court must find that the parent is unfit and that termination is in the child's best interest. Brabon v. Ark. Dep't of Human Servs. , 2012 Ark. App. 2, 388 S.W.3d 69. An order terminating parental rights must be based on clear and convincing evidence, i.e., proof that will produce in the fact-finder a firm conviction as to the verity of the allegation sought to be established. Hamman v. Ark. Dep't of Human Servs. , 2014 Ark. App. 295, 435 S.W.3d 495. On appeal, the issue before us is whether the trial court's finding that the fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when the appellate court is, on the entire evidence, left with a definite and firm conviction that a mistake has been made. Id. In deciding whether a trial court's finding is clearly erroneous, we give great deference to its superior opportunity to observe the parties and to judge the credibility of witnesses. Id.
DHS alleged three statutory grounds against Tara to support terminating her parental rights: (1) the "failure to remedy" ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a ) (Supp. 2017); (2) the "aggravated circumstances" ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a )(3 ) ; and (3) the "subsequent other factors or issues" ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a ). Tara challenges the trial court's finding that clear and convincing evidence supported any of these three grounds, although only one ground is necessary to sustain an order terminating parental rights. Vail v. Ark. Dep't of Human Servs. , 2016 Ark. App. 150, 486 S.W.3d 229.
In determining the best interest of the juvenile, a trial court must take into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Myers v. Ark. Dep'tof Human Servs. , 2011 Ark. 182, 380 S.W.3d 906. Tara does not contest the trial court's "best interest" finding.
With these legal principles in mind, we examine the evidence presented in this case. GL was brought into emergency DHS custody shortly after her birth in January 2016, based on allegations that Tara was acting erratically, exhibiting dramatic mood swings, and making statements about hurting GL. Tara had tested positive for amphetamines, and hospital staff thought she was in psychosis. GL tested positive for methamphetamine at birth. Tara admitted that she was essentially homeless, having lived in a tent city and various people's homes prior to giving birth to GL. She identified two men as possibly being GL's father, one of whom she accused of domestic violence.
A probable-cause order was entered in January 2016. DHS was ordered to provide Tara with twice-weekly supervised visitation with GL and also to develop an appropriate case plan. The probable-cause order recited that Tara indicated that it was "possible" that she or GL might be of Indian heritage. The probable-cause order then provided as follows:
[Tara] is to provide [DHS] with complete names, maiden names and dates of relatives/ancestors who are members of or eligible for membership in an Indian Tribe. [DHS] has provided the mother with a "family tree" form in open court. She may use this form or otherwise convey the requested information to [DHS], but she is to do so forthwith.
Upon receipt of information that allows it to give meaningful notice, [DHS] is to give notice in compliance with ICWA.
An adjudication order was entered in March 2016 finding that GL was a dependent- neglected child. The trial court found Tara to be an unfit parent due to her mental-health issues that threatened both Tara's and GL's safety and due to her drug use during pregnancy. A case plan was developed to assist Tara in rehabilitating the situation so that she could properly parent GL in a safe, stable environment.
The matter was reviewed in July 2016. At that time, the trial court found that DHS had made reasonable efforts to assist Tara in her quest to have GL returned to her custody. Tara, however, was deemed noncompliant. She failed to obtain housing or employment. She did not complete parenting classes, nor did she submit to a psychological or drug-and-alcohol assessment. She tested positive for drugs, and she had been arrested more than once during this review period. Neither of the putative fathers had submitted to DNA testing, and both had been incarcerated during this review period. The case plan was continued with reiteration of the services to be provided and the requirements on Tara.
The matter was reviewed again in November 2016. At that time, Tara was deemed partially compliant with the case plan, having recently obtained housing, completed some parenting classes, attended some counseling, completed community service, and attended a psychological and drug-and-alcohol assessment. She had failed, however, to obtain employment or transportation, to attend drug-and-alcohol treatment, or to pass random drug screens. The two men who Tara named as possible fathers for GL were excluded by DNA testing. The case plan and services were reiterated, specifying what Tara was expected to accomplish.
DHS filed a motion to terminate Tara's parental rights in February 2017, alleging the three aforementioned statutory grounds. In short, GL had been out of her mother's custody for over a year, and Tara had not remedied the causes for removal, there was little likelihood that further services would result in successful reunification, and Tara had manifested the incapacity or indifference to remedying the situation that prevented GL's return to her custody.
The termination hearing was conducted in April 2017. Tara recounted the ways in which she had complied with the case plan. She had acquired a job as a housekeeper at the local hospital, working mostly full time. She said that she had passed drug screens since June 2016, had attended counseling, had obtained a leased home with her boyfriend and lived there since October 2016, had taken parenting classes, and had attended twelve Alcoholics Anonymous meetings. Tara stated that she had her last drink of alcohol in January 2016. Tara had applied for Social Security benefits, and she had gone to the local adult education center on her own. Tara complained that DHS had failed to make a referral for her to get parenting-without-violence classes, failed to come to her home more than once for a home visit, and failed to promptly respond to her messages. Tara said that she was upset with DHS not informing her that her mother's home study in Pennsylvania had been approved, but it expired in November 2016.
On cross-examination, Tara could not explain why she had missed four consecutive months of visits with GL in 2016, although she guessed it was probably because of her homelessness. Tara admitted that the gas had been disconnected for a few weeks in early 2017 due to failure to pay the full bill. Tara said that she was ready to have one-year-old GL in her custody and that she had a car seat (but no vehicle or driver's license), clothing, and a toddler bed.
Frank Gallant testified that he was Tara's live-in boyfriend. Frank admitted that he had just pleaded guilty to possession of drug paraphernalia, for which he was on three years of probation. Frank said that his driver's license was currently suspended for failure to pay traffic tickets. He testified that he, too, worked in housekeeping for the local hospital. Frank said that DHS had not given him or Tara any help with smoking cessation, although he would have no problem smoking outside for GL's benefit. He testified that he and Tara had applied for and received some local assistance with their rent and utilities, but they were fully responsible for their bills beginning in April 2017. He and Tara had six dogs, two living inside and four outside.
The DHS caseworker, Robbie McKay, testified that although Tara had somewhat complied with the case plan, it was not sufficient to demonstrate that she could safely parent GL. Robbie recommended termination of parental rights. Robbie recounted the problems that brought GL into care and said that it took a long time for Tara to be willing to go to a homeless shelter, preferring to live in a tent. Robbie referred Tara for housing assistance, leading to the apartment in which Tara lived. Robbie visited the home in March 2017, and Tara told her that she had just started her hospital job, so she currently had about one and a half months of employment. Tara had missed all five weeks of visitation with GL since the last hearing. In sum, Robbie did not believe that Tara had meaningfully complied with the case plan and services offered to her. She believed that Tara exhibited poor judgment, a lack of stability, and poor choices in men, all of whom she met in homeless camps and all of whom had criminal histories.
Robbie explained that although Tara had completed some classes and therapies, she did not exhibit an understanding of child development, getting frustrated with GL during visits, getting "mouthy," and refusing to take any direction. She said that Tara's house was "messy and cluttered" with some safety issues for GL, and she was concerned about Tara having six dogs. Tara got angry and stomped off when Robbie was telling her what needed to be fixed in the home. Robbie stated that Tara was very hostile and paranoid in their interactions; she was worried about Tara's temper and unstable moods and about Tara leaving GL with her boyfriend while she worked at the hospital. In Robbie's opinion, Tara had not worked the case plan until "the case was halfway over."
Robbie testified that GL had been in the same foster placement the whole time and that GL was adoptable, being that she was so young and had no mental or physical impediments to adoption. The current foster placement expressed interest in adopting GL.
At the end of DHS's presentation of evidence, Tara's attorney asked that a "no reasonable efforts" finding be made against DHS and asked that the termination petition be denied. Tara's attorney contended that DHS wrongfully failed to work toward placement with family and failed to give Tara the services needed to address DHS's concerns. Those motions were denied.
Tara called her therapist, Joanie Henry, to the stand, who stated that Tara had completed twelve weeks of therapy and elected to stay in individual therapy, although she had missed her appointment in March. Her recommendation was for Tara to continue individual therapy.
Next, Patti Riley, who is a manager for the county's emergency solutions grant program, testified about helping Tara and Frank get into housing and out of their homeless situation. The program paid deposits for rent and utilities for their rental house, and then the program paid a percentage of those bills until they became able to take full responsibility for those costs. Patti said that as of April, Tara and Frank began paying rent on their own.
Cheryl Matlock testified that she helped Tara obtain her birth certificate and acquire identification, although it took about nine months to get it done. Cheryl explained that getting identification was crucial in Tara obtaining housing, Social Security, and the like.
The CASA volunteer, Michelle Wewers, testified that she went to Tara's house and took pictures, and she briefly observed Tara during visitations. Michelle recommended that GL stay in her current placement. Michelle was present when Robbie tried to explain what needed to be fixed with the rental house, and she said that Tara became agitated, frustrated, and defensive, raising her voice and yelling at Robbie and then leaving the room. Michelle thought that the house was not appropriate for GL at that time and that it smelled like smoke.
At the conclusion of all the evidence, DHS's attorney and the child's attorney ad litem argued in favor of terminating Tara's parental rights. The ad litem suggested that, although GL should stay at the placement where she had been her whole life, the grandmother's home could be reevaluated after termination. Tara's attorney argued against termination, referring back to the grandmother's favorable home study that was allowed to expire and DHS's failure to provide certain classes to Tara.
The trial court ruled from the bench that it was in GL's best interest to terminate parental rights and that grounds had been proved. The trial court found that GL was adoptable and that she would be subject to physical and psychological harm if returned to Tara. The trial court remarked that Tara's demeanor in court was inappropriate, defensive, and paranoid, which the trial court "could see with my own eyes." The trial court's order recited that, although Tara had completed some services "in the eleventh hour," she continued to exhibit mental-health issues with questionable decision-making and inappropriate behavior, in and out of court. The trial court also found that Tara had lacked stability for years, and her recent compliance did not show that she was now the stable and safe parent that GL needed. The order reflected the trial court's finding that DHS had proved by clear and convincing evidence the three statutory grounds: (1) the "failure to remedy" ground, (2) the "aggravated circumstances" ground, and (3) the "subsequent other factors or issues" ground. This appeal followed.
Tara first argues on appeal that the trial court committed reversible error by failing to require that DHS notify the Indian tribe as required by federal law. Tara acknowledges, however, that she raises this issue for the first time on appeal. Tara recognizes that we have previously held that a party's failure to raise this issue and obtain a ruling from the trial court precludes us from considering this issue on appeal. See Adams v. Ark. Dep't of Human Servs. , 2016 Ark. App. 131, 485 S.W.3d 275 ; Hall v. Ark. Dep't of Human Servs. , 2012 Ark. App. 245, 413 S.W.3d 542 ; Lauman v. Ark. Dep't of Human Servs. , 2010 Ark. App. 564, 2010 WL 3422459. Even so, Tara asks that we revisit this issue in light of other jurisdictions that do not require the issue to be raised in the trial court proceedings and instead allow it to be raised for the first time on appeal. We decline that invitation.
Moreover, the trial court did not err in not requiring notice to be given to the Indian tribe because the trial court had no reason to know that GL was an Indian child. Tara never provided any information whatsoever about GL's potential Indian heritage. Absent Tara providing that information to DHS, there was no basis on which to order DHS to provide notification of the proceedings and no reason for the trial court to believe that a relationship to any Indian tribe actually existed. This point on appeal holds no merit.
Tara's second point on appeal attacks the trial court's finding that the statutory grounds were proved by clear and convincing evidence. Tara focuses on the improvements she made in the five-month period between November 2016 (the permanency-planning hearing) and April 2017 (the termination hearing). Tara points out that she "may have been slow to comply" but completed many required assessments, attended therapy, acquired a job, established a rental home, stayed off drugs, and got her mental-health issues under control. DHS and the child's attorney ad litem counter that Tara's efforts were too little, too late, and furthermore, she was simply not able to safely parent GL. We are not left with a distinct and firm impression that the trial court made a mistake in terminating Tara's parental rights.
Although recent progress and efforts to comply in the months and weeks leading up to a termination hearing may and should be taken into consideration, it is not a bar to termination of parental rights. See Jessup v. Ark. Dep't of Human Servs. , 2011 Ark. App. 463, 385 S.W.3d 304. Our termination-of-parental-rights statute bears this out in Arkansas Code Annotated section 9-27-341(a)(4)(A) :
A parent's resumption of contact or overtures toward participating in the case plan or following the orders of the court following the permanency planning hearing and preceding the termination of parental rights hearing is an insufficient reason to not terminate parental rights.
See also Moore v. Ark. Dep't of Human Servs. , 2015 Ark. App. 87, 2015 WL 585519 ; Gutierrez v. Ark. Dep't of Human Servs. , 2012 Ark. App. 575, 424 S.W.3d 329. The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). This need for permanency overrides a parent's request for additional time to improve circumstances, and courts will not enforce parental rights to the detriment of the well-being of the child. See Hollinger v. Ark. Dep't of Human Servs. , 2017 Ark. App. 458, 529 S.W.3d 242 ; Villaros v. Ark. Dep't of Human Servs. , 2016 Ark. App. 399, 500 S.W.3d 763 ; McElwee v. Ark. Dep't of Human Servs. , 2016 Ark. App. 214, 489 S.W.3d 704. A parent's past behavior is often a good indicator of future behavior. Villaros, supra. Also, this court is not to act as a "super factfinder," substituting its own judgment or second-guessing the credibility determinations of the court; we reverse only in those cases in which a definite mistake has occurred. Harris v. Ark. Dep't of Human Servs. , 2015 Ark. App. 508, 470 S.W.3d 316.
This DHS case had been open since shortly after GL's birth-almost a year and a half. We must give great deference to the trial court in evaluating the evidence and the witnesses in cases involving children. Here, the trial court determined that Tara continued to exhibit mental-health concerns and that she had failed to demonstrate the ability to safely parent her child. After our de novo review, we hold that the trial court did not clearly err in terminating Tara's parental rights. We therefore affirm.
Affirmed.
Virden and Murphy, JJ., agree.
No information about potential Indian Tribe relatives was ever provided by Tara to DHS. Tara never raised the ICWA matter again to the trial court in these proceedings.
The psychological evaluation conducted in August 2016 indicated that Tara met the criteria for mixed personality disorder. The examiner noted that she was anxious, was disorganized, lacked appreciation of what she needed to do to regain custody, was stubborn, made poor choices, had an unstable mood, was inclined to blame others for her difficulties, lacked ability to set appropriate boundaries, and lacked empathy, sensitivity, and trust.
Tara tested positive in May 2016 for amphetamine, methamphetamine, MDMA, benzodiazepines, and THC. In June 2016, Tara tested positive for methamphetamine and THC.
Comments on the record indicate that a hearing was conducted in March 2017 to address Tara's motion to find that DHS had not provided reasonable efforts in her case, specifically attacking DHS's failure to advise any party of the favorable home study on her mother's home in Pennsylvania, valid from May to November 2016. The grandmother expressed interest in helping to care for GL, but financial issues and lack of proper child care were barriers to the grandmother being a placement for GL. The caseworker stated that the home was not a placement option at that time. The caseworker denied that she actively tried to hide the report from anyone. Tara's motion seeking a new home study was denied.
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KAREN R. BAKER, Associate Justice
Appellants/cross-appellees Multi-Craft Contractors, Inc., and Gallagher Bassett Services (collectively "Multi-Craft") appeal the decision of the Arkansas Workers' Compensation Commission ("Commission") awarding benefits to employee appellee/cross-appellant, Rick Yousey. As pertinent to this appeal, the Commission found that Yousey was entitled to a permanent anatomical-impairment rating of 29 percent for his brain injury and 24 percent for his left-eye injury, both to the body as a whole. The Commission further found that Yousey was not entitled to benefits based on a permanent anatomical-impairment rating based on pain. These injuries arose out of and in the course and scope of Yousey's employment with Multi-Craft. On appeal, Multi-Craft argues that the Commission's findings of permanent impairment ratings for Yousey's brain and left-eye injuries are not supported by substantial evidence and are in error as a matter of law. On cross-appeal, Yousey argues that the Commission's decision denying 100 percent total loss of use of his left eye is not supported by substantial evidence, and the Commission's decision denying 24 percent whole-body impairment rating for cranial nerve V and trigeminal nerve damage is not supported by substantial evidence. We affirm in part and affirm as modified in part on direct appeal and affirm in part and affirm as modified in part on cross-appeal.
On February 24, 2012, Yousey was severely injured during the course and scope of his employment with Multi-Craft. At the time of his injury, Yousey held his commercial driving license and was a tractor-trailer driver for Multi-Craft. On the day of Yousey's accident, Yousey was working with division manager Kevin McDonald. While Yousey was unloading equipment for Multi-Craft, he was seriously injured. Yousey suffered "innumerable facial fractures bilaterally," including his cheekbones, the maxillary and frontal sinus bones, bilateral fractures of the orbital walls, bilateral medial and lateral pterygoid plates, the nasal bone, and the mandible. Yousey also suffered a broken foot, a broken hand, and a torn rotator cuff. Despite surgical repair, Yousey was left with a misalignment of his eyes due to his left-eye being sunken in and downwardly displaced. As a result of his left-eye injury, Yousey now suffers from double vision and is unable to pass the requisite physical, which prevents him from holding his commercial driving license. Yousey also takes daily prescription medication for his headaches. However, when Yousey's headaches become too painful, he gets injections in the back of his head. Yousey also has problems with his short-term memory, numbness in his left cheek, and a cold sensation that runs up his face when he consumes cold food or beverages. Further, Yousey has lost most of his sense of taste and smell and now speaks slower than he did before the accident. Finally, after the accident, Yousey "cried all the time afterwards" and now must take an antidepressant.
On April 20, 2015, a hearing was conducted before the administrative law judge ("ALJ"). On July 13, 2015, the ALJ issued its opinion finding that Yousey was not entitled to a 29 percent impairment rating to the body as a whole for his brain injury ; Yousey was not entitled to an assessment of 100 percent impairment to his vision system; Yousey was awarded $3,500 for his facial disfigurement pursuant to Arkansas Code Annotated section 11-9-524 (Repl. 2012) and an additional 15 percent impairment rating for his facial disfigurement; and awarded a 20 percent impairment rating for uncontrolled facial neuralgia pain.
On August 12, 2015, Multi-Craft filed its notice of appeal. As grounds for its appeal, Multi-Craft argued that the ALJ's award of a 15 percent impairment rating for facial disfigurement and an award of a 20 percent impairment rating for uncontrolled facial neuralgia pain are contrary to the facts and law.
On August 13, 2015, Yousey filed his notice of cross-appeal. As grounds for his cross-appeal, Yousey argued that the ALJ erred as a matter of fact and law in concluding that he failed to prove that he was entitled to a 29 percent whole-body impairment rating resulting from his brain injury and a 100 percent rating for the loss of vision in his left eye. Further, Yousey argued that the ALJ erred as a matter of fact and law in concluding that he attempted to prove that he sustained 100 percent impairment to his visual system. To the contrary, Yousey asked for an impairment rating for only his left eye, not his entire visual system.
On March 21, 2016, the Commission issued its opinion, affirming in part and reversing in part the ALJ's decision. The Commission found that Yousey was entitled to a permanent anatomical-impairment rating of 29 percent for his brain injury and 24 percent for his left-eye injury, both to the body as a whole. The Commission further found that Yousey was entitled to benefits of $3,500 for facial disfigurement pursuant to Arkansas Code Annotated 11-9-524 but that Yousey was not entitled to benefits based on a permanent anatomical-impairment rating for facial disfigurement in excess of the cap imposed by the statute. The Commission also found that Yousey was not entitled to benefits based on a permanent anatomical-impairment rating based on pain.
On April 21, 2016, Multi-Craft filed its notice of appeal. As grounds for its appeal, Multi-Craft argued (1) that the Commission's determination that Yousey was entitled to a 29 percent permanent anatomical-impairment rating to the body as a whole for a brain injury is not supported by substantial evidence and is in error as a matter of law; and (2) that the Commission's determination that Yousey was entitled to a 24 percent permanent anatomical-impairment rating to the body as a whole for loss of vision of the left eye is not supported by substantial evidence and is in error as a matter of law.
On April 27, 2016, Yousey filed his notice of cross-appeal. As grounds for his cross-appeal, Yousey argued (1) that the Commission's determination that he was not entitled to a 24 percent permanent-anatomical impairment rating to the body as a whole for permanent damage to the cranial and trigeminal nerves that resulted in uncontrolled facial neuralgia pain is not supported by substantial evidence and is in error as a matter of law; and (2) that the Commission's determination that he was not entitled to a 15 percent permanent anatomical-impairment rating to the body as a whole for disorder of the structural integrity of the face is not supported by substantial evidence and is in error as a matter of law.
On March 8, 2017, in a decision that was initially unanimous, the court of appeals reversed in part and affirmed as modified in part the Commission's decision awarding Yousey benefits for brain and left-eye impairments. Multi-Craft Contractors, Inc. v. Yousey , 2017 Ark. App. 143. The court of appeals also affirmed in part and affirmed as modified in part Yousey's cross-appeal from the Commission's findings regarding his left-eye and facial-nerve injuries.
On March 27, 2017, Yousey filed a petition for rehearing in the court of appeals and a petition for review with this court, arguing that the court of appeals decision conflicts with the precedent of that court. On May 24, 2017, the court of appeals issued a substituted opinion denying the petition for rehearing. On June 1, 2017, we dismissed Yousey's petition for review as moot. On June 15, 2017, Yousey filed a renewed petition for review from the May 24, 2017 substituted opinion. On August 3, 2017, we granted Yousey's renewed petition for review and recalled the mandate from the court of appeals case. Accordingly, we consider the case as though it had been originally filed in this court. Curtis v. Lemna , 2014 Ark. 377, 2014 WL 4656613 (citing Fowler v. State , 339 Ark. 207, 5 S.W.3d 10 (1999) ).
It is well settled that the ALJ's findings are irrelevant for purposes of appeal, as this court is required by precedent to review only the findings of the Commission and ignore those of the ALJ. Johnson v. Bonds Fertilizer, Inc. , 375 Ark. 224, 289 S.W.3d 431 (2008) (citing Freeman v. Con-Agra Frozen Foods , 344 Ark. 296, 40 S.W.3d 760 (2001) ). In reviewing workers'-compensation claims, we view the evidence in the light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence. Crudup v. Regal Ware, Inc. , 341 Ark. 804, 20 S.W.3d 900 (2000). "Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts." Id. at 809, 20 S.W.3d at 903. The issue is not whether the appellate court might have reached a different result from the Commission, but rather whether reasonable minds could reach the result found by the Commission. Wallace v. W. Fraser South, Inc. , 365 Ark. 68, 225 S.W.3d 361 (2006). If so, the appellate court must affirm the Commission's decision. Id. Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Cedar Chem. Co. v. Knight , 372 Ark. 233, 273 S.W.3d 473 (2008) (citing Patterson v. Ark. Dep't of Health , 343 Ark. 255, 33 S.W.3d 151 (2000) ). Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony. Id. (citing Arbaugh v. AG Processing, Inc. , 360 Ark. 491, 202 S.W.3d 519 (2005) ).
A compensable injury, found in Arkansas Code Annotated section 11-9-102(4)(A)(i), is defined as "[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is 'accidental' only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]" Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16)(B). As the claimant, Yousey bears the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i).
Brain Injury
For its first point on appeal, Multi-Craft argues that the Commission erred in awarding benefits for Yousey's brain injury. Specifically, Multi-Craft argues that the Commission's decision finding that Yousey was entitled to a 29 percent impairment rating for his brain injury is not supported by substantial evidence. In response, Yousey argues that the Commission's decision regarding his brain injury is supported by substantial evidence and urges this court to affirm.
As stated above, the Commission found that Yousey met his burden of proving that he was entitled to a 29 percent permanent impairment rating to the body as a whole for his brain injury. The Commission found that the 29 percent rating was supported by objective evidence through the extreme force applied to Yousey's head and therefore his brain; the presence of pneumocephalus ; and the presence of the evidence of shearing on the MRI. The Commission also noted the subjective evidence found in Yousey's complaints, the neuropsychological testing, and the testimony and examinations of Dr. Back and Dr. Morse that establish symptoms consistent with a brain injury.
The medical evidence supporting the Commission's findings regarding Yousey's compensable brain injury is summarized as follows. Dr. Richard Back, a clinical psychologist who has examined and treated Yousey, testified that he performed neuropsychological testing on Yousey. Dr. Back testified that Yousey had significantly impaired, or markedly impaired, memory function, and that his left hand was notably slow in both terms of fine- and gross-motor tasks. Dr. Back gave Yousey a diagnosis of dementia. Dr. Back explained that dementia means "a brain dysfunction from whatever source ... the source is the head injury." Dr. Back evaluated Yousey two years after his injury to assess Yousey's permanent mental condition. Pursuant to Dr. Back's October 2, 2014 disability-rating evaluation, Dr. Back assessed Yousey's mental-status impairment at 14 percent and Yousey's emotional and behavioral impairments at 18 percent. After combining these two ratings, Dr. Back found that Yousey was entitled to a total 29 percent impairment rating for his brain injury.
Dr. Back testified that the MRI report states that there "is an old lacunar infarct versus shear injury in the left internal capsule, so ... that's really not normal." Dr. Back explained that "the reference of shear is more what relates to a[n] acceleration-deceleration injury which would ... describe the type of injury he experienced." As to a shear injury, Dr. Back testified that
[s]hearing is what happens when you get any rotation in your head. When you're hit from behind ... shearing is your head jerks and then the whole brain ... even if it's just a fourth of an inch, twists quickly and then stops quickly, and so it disrupts-you can get minute shearing and spine separation in the neurons, in the cells. Even if you don't get enough separation for it to show up, it disrupts the chemical and electrical circuits.
In Dr. Back's opinion, the shearing that showed up on the MRI is an objective finding beyond Mr. Yousey's control. As to the February 24, 2012 CT scan report, it showed innumerable bones fractured in Yousey's head and face. Dr. Back testified that these are objective findings beyond Yousey's control and opined that the shear and force that it takes to break all the bones that were broken in his face, nose, and eye areas is the type of force that could also cause a brain injury. Further, Dr. Back testified that this is consistent with the type of force that would cause a brain injury. In Dr. Back's opinion, Yousey's brain injury resulted from the force of this accident. In response to questions regarding his impairment ratings and whether the ratings were supported by objective evidence, like the CT scan and the shearing found on the MRI, Dr. Back testified, "Well, it's a logical flow. You've got evidence, physical evidence for the force-force of the blow ... that's what is required or the basis of enough force to cause shearing spreading out through the whole brain ... the evidence from all the fractures shows the power of the force that struck him and that's the power that is consistent with the type of cognitive injuries he shows on the testing." Dr. Back testified that the assigned impairment ratings were based on the objective findings from the CT scan, the MRI, and his clinical examinations of Yousey. Finally, Dr. Back testified that Yousey mentioned he was having problems with his speech, his memory, and the headaches behind his left ear and left eye and that those complaints fit "with the x-rays and the MRI in terms of the injuries and the fractures and the force that it took to fracture those bones which sends force-it doesn't stop at the bone. It goes all the way through the brain into the back of the head. " (Emphasis added.)
Dr. Morse, a board-certified neurologist who has examined and treated Yousey, testified that, as result of the accident, Yousey lost his sense of smell and taste, had ringing in his ears, was emotionally labile, had uncontrollable crying spells, had mild cognitive issues, was forgetful, and had slower speech than normal. Dr. Morse testified that these symptoms are consistent with a frontal-lobe brain injury. As to inferior-frontal lobe injuries, Dr. Morse testified that "[t]he base of your skull, the bottom of your skull right above your eyes is real rough, so when you have a head injury, your brain swirls around and is rubbed up against those rough surfaces and you can have some bruising at the very bottom of your brain there, and the classic symptoms of that are loss of smell and taste because those fibers go through the cribriform plate, which is a very thin plate at the base of the skull that's often fractured in head injuries. You can get personality changes from that. [Yousey] had a period of amnesia which indicated that his head injury was significant. It wasn't just his face. His brain was injured. " (Emphasis added.) Dr. Morse testified that he ordered an MRI and that it was normal. Dr. Morse also testified that while the MRI showed no evidence of hemorrhage, there is a very sensitive test that can detect brain damage from bleeding, but this specific test was not performed. Yousey's left eye was pushed back into his face compared to his right eye. Further, Dr. Morse testified that "[Yousey] had something in his left internal capsule. The internal capsule is where all the motor fibers come to one side of your body, so the left internal capsule would control the right side of the body, and he had a spot there and I couldn't tell if it was a cyst that he was born with, a shear injury due to a head injury, shearing where the fibers are separated and leaves a space or whether it was an old small infarct." Dr. Morse testified that an infarct occurs when there is "not enough blood to the area, a stroke." Thus, as to the left internal-capsule finding, Dr. Morse testified that it could be one of three possibilities: a cyst, a shear injury, or an infarct. As to the CT scan, Dr. Morse testified that the radiology report also noted a lacunar infarct in the left internal capsule. The report also noted pneumocephalus in the anterior cranial fossa. Dr. Morse testified that due to the "skull fracture, air was able to go from outside to inside his skull surrounding the brain, so that goes along with a skull fracture . That can happen. There's just about no other way that can happen, which is not unexpected in this case." With regard to air getting to the brain, Dr. Morse testified that this "means his skull fracture was pretty bad is all that means. Anytime you have a skull fracture and air getting in, bacteria could get in, dirt could get in, foreign bodies could get in. You could develop problems later on, seizures, meningitis, encephalitis, but I don't believe he had any of those." Finally, Dr. Morse testified that "[h]e just didn't hit his head. I mean, he had a severe skull fracture. This is the worst thing I've ever seen. I've never seen a fracture like this since 1981, when I started-well, really '77, when I started doing it. He's lucky to be alive. " (Emphasis added.)
Based on this evidence, Multi-Craft admits that Yousey's accident was very serious and that there is no dispute that the medical testimony of both Dr. Morse and Dr. Back was subjective evidence of a brain injury. However, Multi-Craft contends that the issue, as required by Arkansas Code Annotated section 11-9-704(c)(1)(B), is whether there were "objective findings" to support the brain injury. Multi-Craft contends that there were no such objective findings. We disagree.
We recognize that our court of appeals has held that neuropsychological testing, without more, is not adequate to establish an organic brain injury by "objective findings" within the meaning of Arkansas Code Annotated section 11-9-102. Parson v. Arkansas Methodist Hosp. , 103 Ark. App. 178, 182, 287 S.W.3d 645, 648 (2008) (citing Rippe v. Delbert Hooten Logging , 100 Ark. App. 227, 266 S.W.3d 217 (2007) ). See Watson v. Tayco, Inc. , 79 Ark. App. 250, 86 S.W.3d 18 (2002) (holding that the results of neuropsychological testing, standing alone, is not enough to establish a compensable injury). Here, however, Yousey's injuries and the extensive medical support for his injuries are distinguishable from these cases. The injuries suffered by the claimants in Parson and Rippe pale in comparison to the severe, life-altering brain damage that now affects every facet of Yousey's life. In Parson , while working as a nurse, Parson fell and hit her head on a desk. Parson's fall resulted in bruising and black eyes. On appeal, Parson argued that the Commission erred in finding that she failed to establish a compensable brain injury. Contrary to the Commission's findings, Parson argued that there were objective findings to support her claim: a soft-tissue injury to her head and knees, resulting in a hematoma to her left forehead and facial contusions and that she suffered a concussion. However, the court of appeals disagreed and held that Parson's injuries were undisputedly objective findings, but these findings supported the injury only to Parson's head and were not sufficient to support a compensable injury to her brain. Likewise, in Rippe , Rippe was injured when a tree fell from a logging truck and struck him, knocking him to the ground. As a result, Rippe suffered a scalp laceration and an elbow injury. Rippe also claimed that after his injury, he had trouble with his memory and his ability to communicate. Despite his neuropsychologist's diagnoses of a concussion and organic brain dysfunction, the Commission affirmed the ALJ's finding that Rippe failed to establish his alleged organic brain injury by medical evidence supported by objective findings. On appeal, Rippe argued that the Commission's finding that he failed to establish by a preponderance of the evidence the elements of a compensable organic brain injury was not supported by the evidence. Again, the court of appeals disagreed and held that Rippe relied solely on his own testimony and neuropsychological testing to support his alleged brain injury, which were not sufficient to support a compensable injury to his brain.
We agree that neuropsychological testing, without more, is not adequate to establish an organic brain injury by "objective findings" within the meaning of Arkansas Code Annotated section 11-9-102. Here, however, Yousey has presented neurological testing and additional medical evidence of his brain injury. Contrary to Parson and Rippe , Yousey did not suffer a mere concussion or scalp laceration. Instead, Yousey's skull was so severely fractured that, according to Dr. Morse, his CT scan revealed pneumocephalus in the anterior cranial fossa. This means that Yousey's skull fractures were so severe that "air was able to go from outside to inside his skull surrounding the brain." Dr. Morse testified that "[Yousey's] brain was injured." Similarly, Dr. Back testified that Yousey's problems with his speech, memory, and headaches comport with "the x-rays and the MRIs in terms of the injuries and the fractures and the force that it took to fracture those bones which sends force-it doesn't stop at the bone. It goes all the way through the brain into the back of the head." Thus, this is clearly not a case in which the Commission relied solely on neuropsychological testing. The severity of Yousey's skull fractures and the presence of pneumocephalus on his CT scan, coupled with Dr. Back's and Dr. Morse's testimony that Yousey suffered a brain injury, clearly establish that Yousey did, in fact, suffer a compensable injury to his brain. Based on the record before us and the testimony detailed above, Yousey presented substantial evidence of his brain injury.
Accordingly, based on our standard of review, the Commission's decision that Yousey was entitled to a 29 percent permanent impairment rating to the body as a whole for his brain injury is supported by substantial evidence.
Left-Eye Injury
For its second argument on appeal, Multi-Craft argues that the Commission's finding that Yousey was entitled to a 24 percent impairment rating for his left-eye injury is not supported by substantial evidence because Yousey's visual acuity and peripheral vision were not affected by his injury, and he can still see out of his left eye. On cross-appeal, Yousey argues that the Commission's award of 24 percent whole-body impairment was presumably based on Dr. Lawton's converting the 100 percent total loss of the left eye to a 25 percent loss of the "visual system," which Dr. Lawton further converted to a 24 percent whole-body impairment rating. Thus, Yousey argues that the Commission's decision is not supported by substantial evidence and must be reversed in favor of an award for 100 percent total loss of his left eye. The parties agree that this is a scheduled injury.
Dr. Andrew Lawton, an ophthalmologist with a subspecialty in neuroophthalmology, testified that while Yousey had reparative surgery, he continues to have movement problems of the left eye. Dr. Lawton testified that Yousey's eyes are misaligned because his left eye is sunken in and downwardly displaced. Further, while Yousey has 20/20 vision in both of his eyes, his eyes do not work together as a unit. Dr. Lawton prescribed Yousey a temporary prism in an attempt to get his eyes to work together. The temporary prism would have been placed on a pair [of] eyeglasses, and it "bends light a little bit so that it tries to realign the images. That didn't work." Finally, Dr. Lawton suggested Yousey cover his left eye while driving his personal vehicle "so that he wouldn't have that confusion when driving and see two separate images and being in the risk of an accident." The American Medical Association's Guides to the Evaluation of Permanent Impairment interpret double vision as a loss of vision in that eye because a person would have to cover one eye in order to function. Thus, Dr. Lawton testified that pursuant to the AMA, Yousey was entitled to a rating for total loss of vision in his left eye, which is a 25 percent impairment to the entire visual system and translates to a 24 percent impairment to the body as a whole. The Commission adopted Dr. Lawton's recommendation.
We agree with the parties and hold that Yousey's left-eye injury is a scheduled injury. Our court of appeals has explained that the test of whether an injury falls within the scheduled-injury category is primarily a question of law. Fed. Compress & Warehouse Co. v. Risper , 55 Ark. App. 300, 935 S.W.2d 279 (1996). The court further explained that partial permanent impairments to the eyes come within the scheduled-injury category as set forth in Arkansas Code Annotated section 11-9-521 and that claimants are limited to the scheduled benefits. Id. A claimant who sustains a scheduled injury is limited to the applicable allowances set forth in section 11-9-521. Id.
The applicable statute, Arkansas Code Annotated section 11-9-521(a)(14), states that an enucleated eye, in which there was useful vision, is a scheduled injury for which an employee shall receive weekly benefits in the amount of the permanent partial-disability rate attributable to the injury for 105 weeks. Compensation for the permanent loss of 80 percent or more of the vision of an eye shall be the same as for the loss of an eye. Ark. Code Ann. § 11-9-521(c)(1). Based on Dr. Lawton's testimony, there is substantial evidence to support the Commission's finding that Yousey was entitled to a 100 percent loss of vision to his left eye. However, we hold that the Commission erred in converting Yousey's impairment to the body as a whole. As stated above, because Yousey's impairment to his left eye comes within the scheduled-injury category, he is limited to the scheduled benefits. We affirm the Commission's finding of 100 percent impairment to Yousey's left eye but modify the award to reflect that it is a scheduled injury.
Trigeminal Nerve Injury
On cross-appeal, Yousey argues that the Commission's decision to deny 24 percent whole-body impairment for cranial nerve V and trigeminal nerve damage was not supported by substantial evidence. We disagree. "When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers' Compensation Commission, nor the courts may consider complaints of pain." Ark. Code Ann. § 11-9-102(16)(A)(ii)(a) . Accordingly, the Commission properly found that Yousey was not entitled to an impairment rating for his nerve injuries because the rating established by Dr. Morse was based solely on Yousey's level of pain. Thus, we affirm the Commission's denial of permanent impairment benefits for Yousey's nerve-injury claims.
Affirmed in part and affirmed as modified in part on direct appeal; affirmed in part and affirmed as modified in part on cross-appeal; court of appeals opinion vacated.
Goodson, Hart, and Wynne, JJ., concur in part and dissent in part.
Wood and Womack, JJ., dissent.
I concur with the majority in many respects; however, I cannot join in its decision to reinstate the Arkansas Workers' Compensation Commission's (Commission's) award of benefits for appellee/cross-appellant Rick Yousey's brain injury. While there is no doubt that the accident and the resulting head injuries suffered by Yousey were horrific, I disagree that he presented objective findings to establish a brain injury.
The claimant has the burden of proving the compensability of his or her claim by a preponderance of the evidence. Pearson v. Worksource , 2012 Ark. 406, 424 S.W.3d 311 ; Ark. Code Ann. § 11-9-102(4)(E) (Repl. 2012). Pursuant to Arkansas Code Annotated section 11-9-704(c)(1)(B), any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. "Objective findings" are defined as those that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). In addition, any medical opinions addressing compensability or permanent impairment must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16)(B). There is no requirement that medical testimony be based solely or expressly on objective findings; medical evidence of the injury and the impairment must, however, be supported by objective findings. Wayne Smith Trucking, Inc. v. McWilliams , 2011 Ark. App. 414, 384 S.W.3d 561.
None of the evidence cited by the Commission in support of its decision to award benefits for Yousey's brain injury satisfies the statutory requirement of objective findings. First, the Commission cited to the severity of the damage to Yousey's head, indicating that this was objective evidence of the extreme force applied to his head and therefore to his brain. While there was certainly objective medical evidence to establish the numerous skull and facial fractures and other injuries suffered by Yousey, appellants paid for medical treatment for these injuries. It is Yousey's claim of a brain injury and any resulting impairment therefrom that is at issue, and even Yousey's neurologist, Dr. Michael Morse, testified that he could not point to objective evidence of a brain injury. While Dr. Morse and Dr. Richard Back, the psychologist who examined Yousey, both indicated that the severity of the injuries suffered by Yousey "could" cause a brain injury or could be consistent with such an injury, these are not objective and measurable findings as required under Arkansas Code Annotated section 11-9-704(c)(1)(B).
Second, the Commission pointed to the presence of pneumocephalus, or an air cavity in Yousey's skull. The Commission stated that this finding, which was revealed on Yousey's CT scan, was objective evidence of a skull fracture, and "a skull fracture must involve trauma to the brain." As appellants contend, this conclusion was based on conjecture by the Commission. Dr. Morse testified that the pneumocephalus was an indication of a "pretty bad" skull fracture, but he did not state that this was also objective evidence of an injury to Yousey's brain. To the contrary, as noted above, Dr. Morse expressly stated that there were no objective findings of an injury to Yousey's brain.
Finally, the Commission relied on evidence of a shear injury on Yousey's MRI. However, there was no testimony by Dr. Morse that the spot on Yousey's left internal capsule was in fact a shear injury. Dr. Morse indicated that he could not determine whether the spot was a preexisting cyst, a shear injury due to the head trauma, or an old infarct (stroke ). The Commission noted that 100 percent certainty was not required for causation and found that "there is more than 50% likelihood that the CT and MRI showed evidence of a shear injury and not an old stroke." Again, this statement is based on conjecture and is not supported by the evidence in the record. In fact, Dr. Morse specifically testified that he could not say that it was more likely than not that the spot was a new injury caused by shearing. Further, the Commission's discussion ignores completely Dr. Morse's testimony that the spot may have been from a cyst that was present in Yousey's brain since birth.
In sum, none of the "objective findings" listed by the Commission to support its decision to award Yousey a 29 percent permanent-impairment rating for his brain injury meet the statutory requirement that the existence and extent of physical impairment be supported by objective and measurable physical or mental findings. Substantial evidence exists to support the Commission's findings only if reasonable minds could have reached the same conclusion without resorting to speculation or conjecture. Serrano v. Westrim, Inc. , 2011 Ark. App. 771, 387 S.W.3d 292. Conjecture and speculation, even if plausible, cannot take the place of proof. Id.
Furthermore, our court of appeals has held that neuropsychological testing, standing alone, is not objective medical evidence to establish a brain injury. See, e.g. , Parson v. Ark. Methodist Hosp. , 103 Ark. App. 178, 287 S.W.3d 645 (2008) ; Rippe v. Delbert Hooten Logging , 100 Ark. App. 227, 266 S.W.3d 217 (2007). In Parson , the court of appeals held that while the claimant's facial hematoma and contusions were objective evidence of a head injury, there was no objective medical evidence of a brain injury. Id. The court noted that the claimant's concussion diagnosis, which was itself based on subjective criteria, was not an objective finding supporting a compensable brain injury and that medical opinions stated within a reasonable degree of medical certainty do not constitute objective findings. Id. Also, in Rippe , the court of appeals held that the claimant failed to prove a compensable brain injury because the only evidence to support that injury was found in the results of the neuropsychological testing and the claimant's own testimony regarding his symptoms. Id.
Here, as in both Parson and Rippe , the only evidence presented to support the existence and extent of Yousey's brain injury and resulting impairment were his subjective complaints, the results of his neuropsychological testing, and the opinions of his treating physicians. While I recognize that Yousey's injuries were significant, I cannot ignore the statutory requirements set forth by our legislature. Because there were no objective findings of the brain injury, the Commission's award of a 29 percent permanent-impairment rating for this injury was not supported by substantial evidence. Accordingly, I must dissent from the majority's decision to reinstate this award.
Wynne, J ., joins.
I agree with the majority's disposition of the Commission's award for Mr. Yousey's brain injury and Mr. Yousey's cross-appeal with regard to the Commission's decision to deny him benefits for cranial and trigeminal nerve damage. However, I disagree with the majority's decision to modify the award for Mr. Yousey's eye injury. In my view, there is no substantial evidence to support the majority's conclusion that it was a scheduled injury, and I believe the majority's analysis is incorrect as a matter of law. The Commission should be affirmed on all points.
Under Arkansas Code Annotated section 11-9-521, a claimant may receive scheduled-injury compensation for an eye injury only if it meets very definite criteria:
(a) An employee who sustains a permanent compensable injury scheduled in this section shall receive, in addition to compensation for temporary total and temporary partial benefits during the healing period or until the employee returns to work, whichever occurs first, weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period of time set out in the following schedule:
....
(14) Eye enucleated, in which there was useful vision, one hundred five (105) weeks;
....
(c)(1) Compensation for the permanent loss of eighty percent (80%) or more of the vision of an eye shall be the same as for the loss of an eye.
....
(2) In all cases of permanent loss of vision, the use of corrective lenses may be taken into consideration in evaluating the extent of loss of vision.
In the case before us, Mr. Yousey's left eye was neither enucleated nor so degraded that he lost 80 percent of the vision in that eye. Accordingly, it cannot be a scheduled injury.
That is not to say that Mr. Yousey's injury to his vision should go uncompensated. In my view, the Commission made a very sound award that comports with the law and the facts in this case. I would therefore affirm the Commission's decision in its entirety.
I concur in part and dissent in part.
This case is before us because our court granted a "Renewed Petition for Review." As this renewed petition was untimely filed, and there were no grounds for us to recall the mandate, this case should be dismissed. Therefore, I must dissent.
The procedural history of this case matters. Yousey filed a simultaneous petition for review in this court and a petition for rehearing in the court of appeals on March 27, 2017. Once the court of appeals issued a substituted opinion denying the petition for rehearing, this court dismissed the petition for review as moot because the original opinion on which Yousey sought review no longer stood. After we dismissed the petition, the court of appeals issued the mandate. Yousey filed a motion to recall the mandate in the court of appeals and a renewed petition for review in this court on June 15, 2017. Multi-Craft argued in response to both that the renewed petition was untimely; therefore, the mandate should not be recalled and this court should not grant the petition. The court of appeals denied the motion to recall the mandate. This court granted the renewed petition for review and recalled the mandate. I believe this was done in error.
First, Multi-Craft was correct; the renewed petition for review was filed outside the time frame allowed for filing petitions for review under our rules. Arkansas Supreme Court Rule 2-4 (2017) states that a petition for review must be filed within 18 calendar days of the decision. The substituted opinion was issued on May 24, which required the petition to be filed by June 12, 2017. The renewed petition was not filed until June 15, 2017.
Second, the court of appeals issued the mandate on June 1, 2017. The court of appeals was aware the renewed petition for review was pending and the arguments concerning its timeliness. It denied the motion. The motion to recall the mandate was not before our court. Our court recalled the mandate without a motion. Additionally, there were no grounds for us to recall the mandate. We have repeatedly said that this court will recall a mandate and reopen a case only in extraordinary circumstances. Wertz v. State , 2016 Ark. 249, 493 S.W.3d 772. "To establish the extraordinary circumstances that would warrant the recall of a mandate or the reopening of a case, we have enumerated certain factors to be considered, namely (1) the presence of a defect in the appellate process, (2) a dismissal of proceedings in federal court because of unexhausted state-court claims, and (3) the appeal is a death case that required heightened scrutiny." Ward v. State , 2015 Ark. 62, at 2, 455 S.W.3d 830, 832.
Here, the factors are not present, and Yousey did not allege any of these factors in his motion before the court of appeals. In his motion to recall the mandate, the single stated reason for his request is "so the Supreme Court can obtain jurisdiction to consider the renewed petition for review." This does not constitute an extraordinary circumstance.
As the renewed petition was untimely, there was no motion to recall the mandate before us, and there was no extraordinary reason to recall the mandate, it was an error to grant the petition for review and this matter should be dismissed.
Womack, J., joins.
Two of the dissenting justices take the position that this court erred in granting Yousey's renewed petition for review and would dismiss the appeal. Therefore, we reinstate the Commission's decision on this point. See Harley v. Dempster , 2018 Ark. 43, 2018 WL 1007849. | [
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DAVID M. GLOVER, Judge
Kenneth Vann sustained a compensable injury on November 30, 2015, while employed by FedEx Freight, Inc. (FedEx). He had been employed by FedEx since 1997 and was approximately fifty-seven years old when the injury occurred. The administrative law judge (ALJ) found: Vann proved he had sustained a permanent physical impairment in the amount of 20 percent to his body as a whole; and Vann did not sustain his burden of proving permanent total disability (PTD), but did prove he was entitled to 70 percent wage-loss disability in addition to his anatomical loss. The ALJ also awarded Vann's counsel maximum attorney fees pursuant to Arkansas Code Annotated section 11-9-715 (Repl. 2012). FedEx appealed the decision to the full Workers' Compensation Commission.
The Commission affirmed the ALJ's finding that Vann failed to prove PTD; reduced Vann's permanent physical-impairment rating from 20 percent to 5 percent; and reduced Vann's wage-loss award from 70 percent to 20 percent. The Commission's opinion said nothing about attorney fees. This appeal followed. Vann contends: 1) the Commission's decisions that his impairment rating is only 5 percent and his wage loss only 20 percent are not supported by substantial evidence and must be reversed, and 2) the Commission's failure to award him attorney fees is error. FedEx did not cross-appeal. We affirm the Commission's permanent physical-impairment and wage-loss ratings, and we remand to the Commission for a determination of attorney fees.
In reviewing workers'-compensation decisions, 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. Kroger Ltd. P'ship I v. Fee , 2014 Ark. App. 577, 446 S.W.3d 628. Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. 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 made by the Commission. Id. It is within the Commission's sole province to determine credibility and the weight to be given a witness's testimony. Id. The Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. The Commission has the duty of weighing medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Id. The issue is not whether we might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission, in which case we must affirm. Cooper v. University of Ark. for Med. Scis. , 2017 Ark. App. 58, 510 S.W.3d 304.
At the hearing before the ALJ, Vann testified he was born in 1958, graduated from high school, obtained a two-year degree in nuclear engineering with Isomedix through Mississippi State, and worked for Isomedix for fourteen years. Before starting his job at FedEx, Vann owned a liquor store and a fence company. He began working at FedEx on January 9, 1997, as an over-the-road truck driver. On November 30, 2015, Vann slipped when he got to the driver's side of his truck at the start of a shift and was unconscious for 40 to 45 minutes. It is this fall that serves as the basis for his workers'-compensation claims.
Vann testified he was fine before the accident but is afraid to try to drive now because he cannot feel his feet; he can walk about 200 feet with a walker or cane before he wears out; and his lower back really bothers him and is numb from midway down to his tailbone. He explained he had just passed his Department of Transportation physical exam four months before the accident, and two weeks before to the accident he had seen his personal doctor for a physical exam.
Vann described his symptoms following the accident to include numbness in his arms and hands, lower back, and lower extremities; incontinence; and headaches. He testified he had driven for FedEx for nineteen years and had none of those symptoms before the accident. Vann acknowledged a motorcycle accident twenty-three years ago that fractured his skull. He also testified he had gained about thirty pounds since the accident and was again required to take Metformin, a diabetes medication that he had been able to discontinue earlier because he had lost a significant amount of weight. On cross-examination, Vann explained that he had also hurt his neck and his tailbone as a result of the FedEx fall. He also stated that, despite Dr. Parsioon's report of not being able to objectively find anything to explain Vann's complaints regarding his brain and cervical spine, Dr. Parsioon had told him his neck was twisted in a way that pushed against his spinal cord. When asked about reports that linked the numbness in his extremities to carpal-tunnel syndrome and "some other neuropathy," he stated he found it strange he was walking fine before the accident and "could feel everything."
Vann testified he could not stand or sit for long periods of time, and he could maybe answer a phone but would have trouble writing notes because of the numbness in his hands. He described his condition as depressing.
Alice Vann testified she and Kenneth had been married twenty-six years, and she had known him for fifteen years prior to their marriage. She said his health condition was perfectly fine before the fall in November 2015. Alice said at first they thought it was just a "neck thing" and a concussion that might take a few weeks to recover, but as time went on, he was not recovering. She stated he has not been able to walk without a cane since the day of the fall; he was very shaky and had a lot of lower-back and leg pain; he could not sleep at night; and he had a lot of numbness from his elbows down and his knees down. She testified his muscles began to atrophy to the point he had trouble pulling up on his walker, but that physical and occupational therapy had helped him. Alice said nerve blocks had helped his lower-back and tailbone pain, but workers' compensation had stopped paying for it and other medical services, and without the nerve blocks, he was in constant pain. She indicated he takes Advil for his headaches and muscle relaxers at night for his leg pain so he can sleep.
Alice testified she thought he could do phone work if he could stand up and sit down; he could not write because he cannot feel his fingers most of the time, and he cannot drive.
Medical records from the doctors who treated Vann following the accident were submitted as exhibits. Those doctors included Dr. Alan Nadel, a neurologist; Dr. Alan Alabaster, a urologist; Dr. Fereidoon Parsioon, a neurosurgeon; Dr. Robert Jones, an orthopedic surgeon; and Dr. Alan Kraus, a pain-management doctor. For purposes of this appeal, the medical records can be briefly summarized. Dr. Nadel determined Vann reached maximum medical improvement by November 7, 2016, and Dr. Nadel was the only physician who thought Vann suffered a traumatic cervical-cord injury that was interconnected with his other ailments. The MRIs and other doctors' opinions indicated only degenerative cervical conditions, with no evidence of acute injury.
The Commission's opinion provided in part:
Upon review of the claimant's medical records, to include the results of objective diagnostic studies and the opinions of several physicians, and considering the claimant's persisting back symptoms for which he continues in pain management, we find that the claimant has sustained some degree of permanent physical impairment as a result of his November 2015 lumbar injury. Rather than the twenty percent (20%) permanent physical impairment rating assessed by the Administrative Law Judge, however, by utilizing Table 75 (II)(B) on page 3/113 of the 4th Edition of the Guides, the Full Commission finds that the claimant has sustained five percent (5%) permanent physical impairment as a result of his compensable injury.
(Emphasis added.)
As his major point of appeal, Vann contends the Commission's decisions that his impairment rating is only 5 percent and his permanent partial-disability wage-loss rating is only 20 percent are not supported by substantial evidence and must be reversed. The gist of Vann's argument under the impairment-rating portion of this point is that the Commission's analysis of Vann's condition was one involving the cervical and thoracic spine, not the lumbar spine; yet the Commission "applied a portion of Table 75 which addresses only a lumbar issue, not cervical or thoracic." He further contends "[i]f this Court accepts the Full Commission's suggestion that the Claimant suffers from a cervicothoracic spine impairment, as it so found , then Table 73 is the table which would apply" (emphasis added), and it would require a finding of 25 percent impairment rating to the body as a whole. We disagree.
The major problem with Vann's argument is that the Commission did not find he suffers from a cervicothoracic-spine impairment. In fact, the Commission was careful to reject Dr. Nadel's findings in that regard. Instead, the Commission concluded Vann suffered a lumbar injury that caused his permanent physical impairment: "[W]e find that the claimant has sustained some degree of permanent physical impairment as a result of his November 2015 lumbar injury. "
As mentioned previously, the Commission has the duty of weighing medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Kroger, supra. Here, the Commission did not accept Dr. Nadel's opinion. The gist of the medical evidence demonstrated that Dr. Nadel was the only physician who persisted in thinking Vann suffered a traumatic cervical-cord injury, which was interconnected with the other ailments. The MRIs and other doctors' opinions indicated only degenerative cervical conditions, with no evidence of acute injury. Fair-minded persons with the same facts before them could have reached the conclusions made by the Commission. Consequently, the Commission's use of the portion of Table 75 that addresses lumbar issues, rather than the table that addresses cervical issues, was appropriate. Vann has established no basis for reversal of the Commission's determination that he suffered a 5-percent physical impairment as a result of his compensable injury.
With respect to the Commission's reduction of Vann's wage-loss rating from 70 percent to 20 percent, we conclude substantial evidence supports that decision as well. When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based on wage-loss factors. Cooper , 2017 Ark. App. 58, 510 S.W.3d 304. The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Id. The Commission is charged with the duty of determining disability based on a consideration of medical evidence and other factors affecting wage loss, such as the claimant's age, education, and work experience. Id. Motivation, postinjury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss disability benefits in excess of permanent-physical impairment. Id.
In reaching its 20 percent wage-loss decision based on the compensable lumbar injury, the Commission considered the same factors it used to assess whether he was left permanently and totally disabled as a result of his injury, including Vann's work and educational history. With respect to that referenced determination, the Commission explained:
Although the claimant's treating neurologist, Dr. Nadel, opined that he is unable to return to his former duties as a truck driver, both the claimant and his wife testified that there are some jobs to which he could return. Finally, the claimant currently receives social security benefits, and he has failed to even attempt to return to work due, in part, to other, unrelated physical conditions such as carpal tunnel syndrome.
Based on the above and foregoing, the claimant has failed to prove by a preponderance of the evidence that his November 20, 2015, compensable injury rendered him unable to earn any meaningful wages in the same or another profession. Rather, the weight of the evidence in this claim demonstrates that the claimant currently lacks the willingness to return to work, partly because of other disabling conditions from which he also suffers. Therefore, we find that the claimant has failed to prove that he is entitled to permanent and total disability benefits as a result of his compensable injury.
As mentioned previously, it is within the Commission's sole province to determine credibility and the weight to be given a witness's testimony, and the Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Kroger, supra. The Commission concluded Vann lacked the willingness, or motivation, to return to work, and he failed to prove his compensable lumbar injury rendered him unable to earn any meaningful wages in the same or another profession. Fair-minded persons with the same facts before them could reach the Commission's conclusions.
For his final point of appeal, Vann contends the Commission erred in failing to award attorney fees because even though the ALJ's award in his favor was modified, it was still affirmed, entitling his counsel to an award of attorney fees. We remand this issue to the Commission.
The ALJ awarded Vann's attorney the maximum attorney fee pursuant to Arkansas Code Annotated section 11-9-715 (Repl. 2012) on the controverted indemnity benefits awarded by the ALJ. The Commission's decision did not mention the attorney-fee award. We therefore remand this issue to the Commission for a determination.
Affirmed in part; remanded in part.
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WAYMOND M. BROWN, Judge
Jordan Simon appeals the Sebastian County Circuit Court's termination of his parental rights to his children S.S. and L.S. He argues on appeal that (1) the evidence was insufficient for the court to change the case goal to termination of his parental rights where the children were placed in the permanent custody of their mother, Madison Hagene; and (2) the trial court erred by finding that termination of his parental rights was in the children's best interest where no evidence was offered to support the court's adoptability finding and there was a lesser-restrictive option for the children. We reverse and remand.
The Arkansas Department of Human Services (DHS) took a seventy-two-hour hold on the children on June 30, 2016, after learning that appellant had threatened to "shoot the whole place up" while under the influence of drugs and, at one point, pointed a gun at S.S. Although the incident began as a domestic situation between Madison and appellant, Madison did not want a protection order. Therefore, the children were removed due to abuse, neglect, and parental unfitness. An arrest warrant was subsequently issued for appellant for aggravated assault on a family or household member and terroristic threatening. DHS filed a petition for emergency custody and dependency-neglect on July 5, 2016. An ex parte order for emergency custody was filed the same day.
The children were adjudicated dependent-neglected in an order filed on October 18, 2016, due to them being at substantial risk of serious harm when appellant threatened to shoot up the place and pointed a gun at S.S. and based on appellant's methamphetamine use. The court found that Madison "did not fail to protect the [children] and that the [children] are not dependent-neglected due to any act or omission on [her] part." Reunification was set as the case goal. Appellant was ordered to obtain and maintain stable and appropriate housing, income, and transportation; submit to a drug-and-alcohol assessment and complete any recommended treatment; submit to random drug screens and hair-follicle testing at the request of DHS; achieve and maintain total sobriety; submit to a psychological evaluation and comply with the recommendations; complete appropriate domestic-violence classes; and resolve his pending criminal charges and comply with the terms and conditions of any criminal sentences.
The court returned custody of the children to Madison in October 2016. An order reflecting the return was filed on November 1, 2016. In that order, the court found that the case goal was for the children to remain in the custody of Madison, who had complied with the case plan and orders of the court. The court noted that Madison's divorce hearing was scheduled for October 18, 2016, and that a final order of protection was entered in Division II prohibiting contact between Madison and the children with appellant and which remained in effect. The court also found that appellant had "not complied with the case plan or orders of this Court. His whereabouts are unknown at this time.... He did test positive for amphetamines/methamphetamine, THC, hydrocodone, and hydromorphone on July 28, 2016."
DHS filed a petition for the termination of appellant's parental rights on June 28, 2017, alleging several grounds for termination. A permanency-planning order was filed on July 5, 2017. In that order, the court determined that the goal of the case was for the children to remain in Madison's custody, but to terminate appellant's parental rights. The order stated in pertinent part:
8. The Court finds that the father has not complied with the case plan and the orders of this Court. The father was transported for today's hearing from the Sebastian County Jail where he has been incarcerated since January 26, 2017. Prior to his incarceration, he did not maintain stable or appropriate housing and did not have employment or any source of income. The father was scheduled to complete his psychological evaluation on March 28, 2017 but he did not do so. He has not completed a drug and alcohol assessment or domestic violence classes. He did not submit to a hair follicle test and has not been available for random drug screens. The father reports that he last used drugs in January 2017 when he went to jail. He has acquired additional criminal charges during the pendency of this case. The father has not resolved his legal issues and charges of aggravated assault, terroristic threatening, and possession of drug paraphernalia are currently pending. He hopes to participate in Veterans Court but if he is unable to do so, he is facing two years in prison. The father reports that he has been participating in AA/NA meetings and anger management. The father has had indirect contact with the juveniles through his mother in violation of the conditions of his bond and the order of protection.
The court noted that the no-contact order in appellant's criminal case remained in effect.
The termination hearing took place on September 25, 2017. The court filed an order terminating appellant's parental rights on November 6, 2017. The court found that the termination of appellant's parental rights was in the children's best interest. It specifically found that the children were adoptable and that they would be subjected to potential harm if returned to appellant's custody. Appellant filed a timely notice of appeal on November 27, 2017, appealing the termination order as well as the permanency-planning order.
An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the children's best interest and a statutory ground for termination exists. Best interest includes consideration of the likelihood that the children will be adopted and the potential harm caused by returning custody of the children to the parent. We review cases involving the termination of parental rights de novo. We will not reverse an order terminating parental rights unless the court's findings are clearly erroneous.
We first address the sufficiency of the termination order, even though it is listed as appellant's second point on appeal. Appellant contends that the trial court erred by finding that termination of his parental rights was in the children's best interest where no evidence was offered to support the court's adoptability finding and there was a lesser-restrictive option for the children. At the conclusion of the termination hearing, DHS asked the trial court to make a finding that the issue of adoptability was "legally insignificant in this case." However, the court instead found that the children were adoptable and that Madison could do a single-parent adoption. In support of his argument that this error warrants reversal, appellant cites Lively v. Arkansas Department of Human Services . In Lively , our court reversed and remanded the termination of Lively's parental rights to his children because the trial court erroneously found that the children were adoptable although there was no evidence of adoptability and there was no evidence that the children would ever be put up for adoption since they were in the permanent custody of their mother. The trial court is required to demonstrate that it considered the evidence presented regarding the children's adoptability, or the court must make a finding that the children's adoptability makes no legal difference. In situations such as this one, the court could have found that adoptability made no legal difference and analyzed the children's best interest based upon other factors. Thus, it was error for the court to find that the children were adoptable because there was no evidence of adoptability in the record, and there was no finding that this absence of evidence of adoptability made "no legal difference" to the ultimate decision of what was in the children's best interest. The trial court's finding on adoptability was clearly erroneous as was its reliance on that finding in concluding that termination was in the children's best interest. Therefore, we reverse and remand for consideration of the appropriate evidence.
Reversed and remanded.
Gruber, C.J., and Harrison, J., agree.
(1) Failure to remedy, (2) subsequent factors, (3) sentenced in a criminal proceeding for a period of time which would constitute a substantial period of the children's lives, and (4) aggravated circumstances.
The grounds relied on by the court to support termination were (1) failure to remedy, (2) failure to provide material support or to maintain meaningful contact with the children, and (3) aggravated circumstances. There is no evidence that DHS pled the second ground relied on by the court to terminate appellant's parental rights; however, appellant does not challenge the grounds for termination.
Ark. Code Ann. § 9-27-341(b)(3)(A) and (B) (Supp. 2017).
Donley v. Ark. Dep't of Human Servs. , 2014 Ark. App. 335, 2014 WL 2443031.
Griffin v. Ark. Dep't of Health & Human Servs. , 95 Ark. App. 322, 236 S.W.3d 570 (2006).
Hayes v. Ark. Dep't of Human Servs. , 2011 Ark. App. 21, 2011 WL 135198.
2015 Ark. App. 131, 456 S.W.3d 383.
Brown v. Ark. Dep't of Human Servs. , 2015 Ark. App. 725, 478 S.W.3d 272.
See Lively , supra .
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PHILLIP T. WHITEAKER, Judge
Charles Nelson, Jr., appeals a Clark County Circuit Court order revoking his probation and sentencing him to five years in the Arkansas Department of Correction. Nelson asserts that the trial court committed reversible error by admitting testimony into evidence in violation of the confrontation clause. We agree that the confrontation clause was violated but affirm because the error was harmless.
In August 2016, Nelson pled guilty to one count of second-degree battery, and the court sentenced him to 72 months' supervised probation. In May 2017, the State filed its first petition to revoke Nelson's probation. Nelson admitted having violated the terms and conditions of his probation, and as a consequence of his violation, the trial court ordered Nelson to enter and complete an inpatient substance-abuse treatment program. The State filed a second petition to revoke Nelson's probation in August 2017 alleging that Nelson had failed to complete his inpatient treatment as previously ordered by the court. The court determined that Nelson had violated the terms and conditions of his probation by failing to complete the treatment program and sentenced him to five years' imprisonment in the Arkansas Department of Correction.
For his sole argument on appeal, Nelson argues that he has a statutory and constitutional right to confront the witnesses against him in a probation-revocation proceeding and that the circuit court violated these rights. At the revocation hearing, probation officer Chrissy Hunt testified that Nelson had been ordered by the court to enter and complete an inpatient substance-abuse treatment program. She stated that Nelson had entered the court-ordered inpatient substance-abuse treatment program on July 25, 2017, but that he was discharged from the program approximately two and a half weeks later. She testified that she was notified of his discharge on August 11, 2017, during a telephone call from one of the directors of the treatment program. When the State asked the reason for his discharge from the program, counsel for Nelson objected on hearsay and confrontation-clause grounds. The court overruled the objection, concluding that Rule 1101 of the Arkansas Rules of Evidence governed its admissibility.
Officer Hunt then testified that Nelson had been discharged for threatening other clients at the recovery center and that the other clients were in fear for their lives. Defense counsel again objected, claiming Nelson's right to confront and cross-examine the person making those allegations had been violated. The court indicated that it understood the objection and agreed but overruled the objection, stating it would give it as much weight as it was due.
Nelson testified on his own behalf. He acknowledged that he was required to enter inpatient treatment as a condition of probation and testified that he had done so. He explained that he had been discharged from the program in retaliation for blowing the whistle on the improper actions of his supervisors. He denied threatening them in any way. He maintained that he was cooperating with his probation officer by remaining in daily contact and searching for another treatment program.
Officer Hunt then offered testimony in rebuttal. She again testified that she had learned of his discharge when she received a call from one of the directors of the facility who informed her that Nelson was going to be discharged based on his threatening behavior while he was in the program. This prompted defense counsel to renew his confrontation-clause objection, which was again overruled.
Nelson argues that the court erred by allowing Hunt to testify, using hearsay evidence, about the reason he had been discharged from the treatment program. He claims that the identity of his accuser was never disclosed nor was there any evidence presented from which to determine the accuser's knowledge or reliability. He asserts that the court allowed the evidence under Rule 110, but made no finding, either specifically or generally, that good cause existed for not allowing the confrontation as required by Arkansas Code Annotated section 16-93-307(c)(1) (Supp. 2015).
We agree. Generally, a defendant in a revocation hearing is not entitled to the full panoply of rights that attend a criminal prosecution, but he or she is entitled to due process. Goforth v. State , 27 Ark. App. 150, 767 S.W.2d 537 (1989). As we recognized in Goforth , the United States Supreme Court has held that a defendant is entitled to the right to confront and cross-examine adverse witnesses unless good cause is shown for not allowing confrontation. Id. at 152, 767 S.W.2d at 538 (citing Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ). This holding is codified at Arkansas Code Annotated section 16-93-307(c)(1), which states that "[t]he defendant has the right to counsel and to confront and cross-examine an adverse witness unless the court specifically finds good cause for not allowing confrontation[.]"
Clearly, Nelson had a right to confront and cross-examine his adverse witnesses unless good cause existed for not allowing confrontation. In making that determination, the trial court must balance the defendant's right to confront witnesses against the grounds asserted by the State for not requiring confrontation. Goforth , supra (citing United States v. Bell , 785 F.2d 640 (8th Cir. 1986) ). In balancing these interests, the trial court should assess the explanation the State offers for why confrontation is undesirable or impractical. Id. Then, the trial court should consider the reliability of the evidence that the government offers in place of live testimony. Id.
Nelson asserts that the State offered no explanation for why the director of the facility was not available to be confronted, and the court did not make a good-cause finding for not allowing confrontation; rather, it simply overruled Nelson's confrontation-clause objections without explanation. He is correct, and we conclude that the confrontation clause was violated.
However, trial error involving the Sixth Amendment right to confront adverse witnesses is subject to a harmless-error analysis. Green v. State , 2015 Ark. App. 291, 461 S.W.3d 731. We conduct this analysis utilizing a variety of factors identified by our supreme court. These factors include the importance of the witness's testimony in the State's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the State's case. Id. at 5, 461 S.W.3d at 734 (citing Delaware v. Van Arsdall , 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ; Andrews v. State , 344 Ark. 606, 42 S.W.3d 484 (2001) ).
We begin our analysis with consideration of the court's comments prior to rendering its decision. At the close of the hearing, the court explained:
I think what everybody agrees on here is that Mr. Nelson didn't finish the program.... What we didn't hear from is-is from anybody from [the treatment facility] as to tell us why he left. Mr. Nelson took the stand to say that he was asked to leave. Well, I can only take that to mean asked to leave for some reason-good, bad, or indifferent. He was still asked to leave. I'd love an explanation as to-as to why Mr. Nelson was asked to leave from somebody at [the treatment facility], but since nobody from [the treatment facility] testified, I-all I can do is say you failed to-you failed to complete the program.... I didn't hear anything except you didn't finish the program.... I found it hard to believe in your testimony that you were at [the treatment facility] for 17 days and-and to hear you-your testimony, you were effectively running the place and having to tell on other staff. I just-I find your testimony just extraordinary, and not in a good way, Mr. Nelson. I-it really kind of boggled the mind.
It is unclear from its oral ruling whether the court actually gave any consideration to the challenged evidence. What is clear, however, is that the court found Nelson and his explanation concerning his discharge to be not credible. This court defers to the trial court's determinations regarding the credibility of witnesses and the weight to be given to their testimony. Ware v. State , 2016 Ark. App. 284, 494 S.W.3d 438.
Next, we must consider whether there was sufficient evidence to support revocation even without the improperly admitted evidence. In Green , our court affirmed the trial court's revocation decision despite its error in permitting an out-of-court statement in violation of the defendant's right to confront witnesses. We held that the error was harmless because there was other evidence that supported the revocation, rendering the out-of-court statement unnecessary. Green , 2015 Ark. App. 291, at 5, 461 S.W.3d at 734 ; see also Roston v. State , 362 Ark. 408, 208 S.W.3d 759 (2005) (holding that the trial court's violation of the confrontation clause was harmless error because other evidence supported the trial court's revocation decision). Thus, our analysis turns to whether the trial court could have revoked Nelson's probation on the facts of this case if the hearsay evidence from the treatment center regarding the reasons for Nelson's discharge is completely ignored.
In the present case, the State properly introduced evidence that Nelson had violated the terms of his probation by failing to complete the treatment program. Nelson admitted that he had been discharged from the program in violation of the terms and conditions of his probation but testified that his discharge was in retaliation for exposing problems at the treatment facility and was thus excusable. The court found Nelson's excuse for his violation was not credible. Therefore, the trial court's error in admitting hearsay evidence regarding Nelson's discharge from the treatment facility through the testimony of the probation officer, though in violation of the confrontation clause, was harmless error. Therefore, we affirm.
Affirmed.
Gladwin and Glover, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
This appeal involves a family dispute over the administration of the William E. Smith, Jr., Trust. Donna Reed, the appellant, filed suit against her siblings-William E. Smith III and Diana Sharp-and her mother, Jacquelin Smith, alleging that they violated the terms set forth in her father's trust agreement and misappropriated the assets of the Trust. Donna requested relief in the form of a declaratory judgment, as well as compensatory and punitive damages for their alleged actions. The Garland County Circuit Court subsequently dismissed her amended complaint with prejudice under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure for failing to state facts upon which relief could be granted and denied her motion to reopen the record. The court also ordered her to pay attorney's fees. We affirm the trial court's dismissal as modified and affirm the award of attorney's fees.
The following background information is provided to understand the issues on appeal. William Jr. was married to Jacquelin. They are the parents of Donna, William III, and Diana. In September 1996, William Jr. and Jacquelin executed separate and complementary trust documents that established the William E. Smith, Jr., and Jacquelin R. Smith Trusts. They funded the trusts with a home located in Hot Springs, Arkansas, with each trust obtaining an undivided one-half interest in the property.
William Jr. died on March 10, 2008. On December 5, 2016, Donna filed the lawsuit at issue here. She alleged that William III, Diana, and Jacquelin fraudulently entered into a real estate contract to sell the Trust's one-half interest in the home located in Hot Springs. Donna claimed that upon William Jr.'s death, she and William III became successor trustees and that Jacquelin had no authority to enter into a contract for the sale of the real estate. She further alleged that William III and Diana had falsely signed the contract as trustees of a nonexistent "Smith Family Trust" in an attempt to gain control over the property and that Jacquelin, William III, and Diana were acting in concert to use funds from a promissory note due to the Trust for their personal benefit. Donna attached a copy of the Trust as a document to her original complaint. The appellees moved to dismiss the complaint under Arkansas Rule of Civil Procedure 12(b)(6), alleging that Donna's complaint stated only conclusions and had failed to state facts upon which relief could be granted.
On January 30, 2017, Donna filed an amended complaint and request for declaratory judgment, making essentially the same allegations as before. Her amended complaint did not incorporate by reference the original complaint. She attached a copy of the Trust as an exhibit to her amended complaint as well. The appellees again moved to dismiss under Rule 12(b)(6), arguing that Donna had once again failed to allege facts sufficient to support her claims for relief. After reviewing the pleadings and hearing the arguments of counsel, the trial court dismissed Donna's amended complaint with prejudice under Rule 12(b)(6) for failing to state facts upon which relief could be granted. The court also granted the appellees' request for attorney's fees under Arkansas Code Annotated section 16-22-308 (Repl. 1999).
Donna first argues that the trial court erred in dismissing her complaint under Rule 12(b)(6). Before addressing her arguments, we note that the parties argue this appeal under both a Rule 12(b)(6) and a Rule 56(c) analysis because extraneous documents, including an affidavit and negotiated checks, were attached to the amended complaint and the motions to dismiss. We are unable to ascertain to what extent, if any, the court considered the affidavit and negotiated checks in reaching its decision to dismiss the complaint under Rule 12(b)(6). We also note that at the hearing on the motion to dismiss, the appellees abandoned their request for the court to consider anything beyond the complaint in making its determination. For these reasons, we will conduct our analysis under Rule 12(b)(6) and consider only the amended complaint and those documents required under Rule 10(d), such as the Trust, that are properly attached thereto. See O'Dell v. Peck , 2017 Ark. App. 532, 2017 WL 4663919.
In reviewing a trial court's order of dismissal, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Smith v. May , 2013 Ark. 248, 2013 WL 2460187. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id. Rule 8(a)(1) of the Arkansas Rules of Civil Procedure requires fact pleading, not mere conclusions, in order to entitle the pleader to relief. Id. Only facts alleged in the complaint are treated as true, not the plaintiff's theories, speculation, or statutory interpretation. Id. When reviewing a dismissal for failure to state a claim under Rule 12(b)(6), our standard of review is whether the trial court abused its discretion in dismissing the complaint. Id. To have abused its discretion, the trial court must have not only made an error in its decision, but also must have acted improvidently, thoughtlessly, or without due consideration. Scott v. Scott , 2016 Ark. App. 390, 499 S.W.3d 653.
The amended complaint in this case properly attached the Trust as a document as required under Rule 10(d) of the Arkansas Rules of Civil Procedure. From the contents of the Trust, we accept the following factual allegations as true:
The trust agreement designated William Jr. and Jacquelin as cotrustees of the Trust with Jacquelin becoming sole trustee in the event of William Jr.'s death, resignation, or incompetency. William III and Donna were designated only as alternate successor trustees.
Upon the death of William Jr., the Trust would become irrevocable and the principal would be divided into two separate trusts, identified as the Smith Family "A" Trust and the Smith Family "B" Trust.
The "A" Trust would be funded first and was designed to take full advantage of marital deductions allowable under the estate tax provisions of the Internal Revenue Code. Jacquelin was the sole beneficiary of the "A" Trust with the right to dispose of its assets in her lifetime or by will.
The remaining assets of the original trust after the funding of the "A" Trust, if any, would pass into the "B" Trust. The "B" Trust included a section providing the income of the trust to Jacquelin for her life and, upon her death, the assets would be distributed in accordance with the Trust, including a portion being transferred to the Donna Martha Reed Trust, of which Donna was the designated beneficiary. The provisions of the "B" Trust limited Jacquelin's ability as trustee to make principal distributions under that trust; those rights vested instead in the successor trustees-William III and Donna. The intent and role of the successor trustees is to protect the principal assets in the "B" Trust from misuse and to protect the assets for the children.
The amended complaint in this case also made the following factual allegations that we accept as true:
Donna spoke to her father, William Jr., before he set up the Trust. He informed her that he was setting up two trusts-one in his name and one in her mother's name-in case her mother remarried or something happened to her money or assets. He indicated to her that half their home and assets would be protected in his Trust, and her mother would have a place to live for the rest of her life. He also intended to leave some of his wealth equally to his children. It was her father's wish that the Trust would become irrevocable on his death.
The principal asset of the Trust was the home located in Hot Springs, Arkansas. William III, Diana, and Jacquelin sold the home and placed the funds in Jacquelin's personal checking account, to which William III and Diana also had access. William III and Diana signed the real estate contract as trustees of the "Smith Family" Trust. Jacquelin signed the real estate contract, claiming to have the authority to sell the property on behalf of the Trust.
The William E. Smith, Jr., and Jacquelin R. Smith Trusts were the payees of a $587,105.88 promissory note. Jacquelin failed to place the monthly payments on the note in the Trust and, instead, placed the payments in her personal checking account for her own use.
These facts as alleged in the amended complaint do not state facts upon which relief can be granted. All of Donna's causes of action arise out of the administration of the "B" Trust and presuppose that the "B" Trust was funded or should have been funded upon William Jr.'s death. Her amended complaint, however, fails to present any facts to support such a conclusion. As stated above, the original trust specified that the "A" Trust would be funded first and was designed to take advantage of marital deductions allowable under the estate tax provisions of the Internal Revenue Code. The "B" Trust was to be funded if, and only if, there were assets remaining after the funding of the "A" Trust. Donna's amended complaint does not address the value of the Trust on the date of William Jr.'s death, nor does it provide the applicable estate tax exemption available at that time. As such, the amended complaint did not sufficiently allege whether there was, or would have been, any residual value remaining after the funding of the "A" Trust with which to fund the "B" Trust. In short, the amended complaint does not provide sufficient facts upon which to ascertain the existence of the "B" Trust on which her underlying causes of action rely.
Because her amended complaint failed to state facts upon which relief could be granted, we affirm the trial court's dismissal of her amended complaint. However, the trial court erred in dismissing the amended complaint with prejudice. It is established law that when a complaint is dismissed under Rule 12(b)(6) for failure to state facts upon which relief can be granted, the dismissal should be without prejudice. Ballard Group, Inc. v. BP Lubricants USA, Inc. , 2014 Ark. 276, 436 S.W.3d 445 ; Ark. Dep't of Envtl. Quality v. Brighton Corp. , 352 Ark. 396, 102 S.W.3d 458 (2003). Accordingly, we modify the dismissal to be without prejudice.
The trial court in this case awarded attorney's fees to the appellees pursuant to Arkansas Code Annotated section 16-22-308, which allows the award of fees to a prevailing party in a civil action to recover on a breach of contract. Donna argues this was error. We affirm for a different reason than that stated by the trial court. The Arkansas Trust Code provides that "[in] a judicial proceeding involving the administration of a trust, a court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy." Ark. Code Ann. § 28-73-1004 (Repl. 2012).The case at bar was a judicial proceeding that involved the administration of a trust. Therefore, the Arkansas Trust Code supports the award of attorney's fees to appellees. See Calvert v. Estate of Calvert , 99 Ark. App. 286, 290, 259 S.W.3d 456, 459-60 (2007).
Therefore, we affirm the decision of the trial court as modified.
Affirmed as modified.
Hixson and Murphy, JJ., agree.
The trust will be referred to as either the William E. Smith, Jr., Trust or the Trust in this opinion.
To avoid confusion, the father will be identified as "William Jr." and the son will be identified as "William III" throughout.
Donna brought suit in several capacities-Personally; as Successor Trustee of the William E. Smith, Jr., Trust; and as Beneficiary of the William E. Smith Jr. and the Jacquelin R. Smith Trusts. Her suit was likewise against the Appellees in several capacities. She sued Jacquelin both personally and as Trustee of the William E. Smith, Jr., and Jacquelin R. Smith Trusts. She sued William III personally and as Successor Trustee and Beneficiary of the William E. Smith, Jr., and Jacquelin R. Smith Trusts. She sued Diana personally, as Beneficiary of the William E. Smith, Jr., Trust, and as Successor Trustee and Beneficiary of the Jacquelin R. Smith Trust.
Because Donna's amended complaint did not adopt or incorporate the original complaint, the amended complaint supersedes the original complaint. Peck v. Peck , 2016 Ark. App. 423, 502 S.W.3d 553.
Because we consider this appeal under the Rule 12(b)(6), rather than Rule 56(c), and base our decision on the pleadings alone, we need not reach Donna's argument regarding whether she should have been allowed the opportunity to reopen the record prior to dismissal.
In the event that Jacquelin predeceased William Jr., all the assets of the original trust were to be distributed to the "B" Trust. | [
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PHILLIP T. WHITEAKER, Judge
Kenisha Williform appeals the order of the Craighead County Circuit Court that affirmed the decision of an administrative law judge (ALJ) finding that Williform, a certified nursing assistant (CNA), perpetrated an act of abuse on a resident of a long-term-care facility. On appeal, she raises two arguments, contending that (1) the Arkansas Department of Human Services (DHS) violated statutory provisions requiring it to conduct an investigation into the allegations of abuse, and (2) there was insufficient evidence to support the finding that she committed an act of abuse. We find merit in her first argument, and we reverse.
I. Procedural Background
Williform was employed as a CNA by Lexington Place Healthcare and Rehabilitation in Jonesboro. In June 2015, two coworkers accused her of throwing a catheter bag onto a resident's lap. The incident was reported to the facility administrator, David Brazile, who filled out a Form DMS-762. Brazile forwarded the form to the Office of Long Term Care (OLTC), the division of DHS charged with the responsibility for investigating allegations of suspected maltreatment of long-term-care-facility residents. Brazile also terminated Williform's employment as a result of the incident.
In July, OLTC advised Williform that it had reviewed the allegations and was issuing a "Founded Report" against her. The OLTC notification also informed Williform that the report would be entered on the Registry of Certified Nursing Assistants and the Adult Maltreatment Central Registry if she did not appeal the ruling. Williform timely filed a notice of appeal and requested an administrative hearing.
At the administrative hearing, the ALJ heard testimony from Brazile as well as Kristy Shaw and Paula Ward, the coworkers who had reported the allegation of abuse. Shaw and Ward testified that they observed Williform throw a catheter bag onto the lap of a wheelchair-bound quadriplegic patient. Williform also testified and denied the allegations. At the end of the hearing, Williform argued both that the evidence did not support a finding of abuse and that DHS had not conducted a thorough investigation of the case, as set forth in Arkansas Code Annotated section 12-12-1711 (Repl. 2016). The ALJ subsequently issued an order finding that Williform had abused the resident and that DHS "did due diligence in investigating this matter by producing a hearing packet containing written witness statements, subpoenaing witnesses, and providing reportable documentation to support their 'Findings' in this matter."
Williform filed a timely request for reconsideration of the ALJ's decision, challenging the ALJ's finding of abuse and the conclusion that DHS had conducted a proper investigation. She further asserted that DHS's failure to investigate amounted to a denial of due process. The ALJ issued an amended and substituted order that again found that DHS had conducted a sufficient investigation pursuant to OLTC's rules and regulations.
Williform then filed a petition for review of the ALJ's decision in the Craighead County Circuit Court, asserting that her substantial rights had been prejudiced in three ways: (1) the ALJ's decision was not supported by substantial evidence, (2) DHS violated statutory provisions and engaged in unlawful procedure by failing to conduct an investigation of the abuse allegations as mandated by Arkansas Code Annotated sections 12-12-1710 and 12-12-1711, and (3) DHS violated her due-process rights by failing to conduct an adequate investigation.
The circuit court conducted a hearing on the matter and accepted briefs from the parties. It thereafter issued an order upholding the agency decision, finding that it was supported by substantial evidence of record, was not in violation of any statutory provisions, and did not engage in unlawful conduct. Williform filed a timely notice of appeal.
II. Standard of Review
Our standard of review in this appeal is multitiered. First, because this is an appeal taken pursuant to the Arkansas Administrative Procedure Act, Arkansas Code Annotated sections 25-15-201 to -219 (Repl. 2014), our review is directed not toward the circuit court but toward the decision of the administrative agency. Capstone Oilfield Disposal of Ark., Inc. v. Pope Cty. , 2012 Ark. App. 231, at 4, 408 S.W.3d 65, 67 ; Walls v. Ark. Oil & Gas Comm'n , 2012 Ark. App. 110, 390 S.W.3d 88. We take a limited review of an administrative agency's decision because the agency is better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze the legal issues affecting it. Capstone Oilfield Disposal, supra.
The Administrative Procedure Act provides that a court may reverse or modify an agency's order when the agency's findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by an abuse of discretion. Ark. Code Ann. § 25-15-212(h). In this appeal, Williform argues that the agency's order should be reversed because it was in violation of statutory provisions, was made upon unlawful procedure, and was not supported by substantial evidence of record.
In this opinion, we first consider Williform's argument that the agency's order should be reversed because it was in violation of statutory provisions and was made upon unlawful procedure. Specifically, she argues that DHS failed to follow the statutory requirements set forth in the Adult and Long-Term Care Facility Resident Maltreatment Act ("the Act"), Arkansas Code Annotated sections 12-12-1701 to -1723 (Repl. 2016 & Supp. 2017). To determine whether DHS's actions were in contravention of the statute, we must consider what the statute means. Thus, the second tier of our standard of review involves our rules regarding statutory construction.
We review issues of statutory interpretation de novo.
City of Ft. Smith v. Carter , 372 Ark. 93, 270 S.W.3d 822 (2008). Our supreme court has directed that the basic rule of statutory construction is to give effect to the intent of the General Assembly. Ryan & Co. AR, Inc. v. Weiss , 371 Ark. 43, 263 S.W.3d 489 (2007). In determining the meaning of a statute, our first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id. Although an agency's interpretation of a statute is highly persuasive, if the statute is not ambiguous, we will not interpret it to mean anything other than what it says. Ark. Dep't of Human Servs. v. Pope , 2013 Ark. App. 429, at 9, 429 S.W.3d 281, 286 (citing Ark. Dep't of Human Servs. v. Parker , 88 Ark. App. 222, 197 S.W.3d 33 (2004) ).
III. Discussion
In her first argument on appeal, Williform contends that DHS failed to investigate the allegations of abuse as required by the Act. Accordingly, we begin by looking at the plain language of the Act and applying our rules of statutory construction to determine the scope of DHS's responsibilities.
In setting forth the investigative powers of DHS, the Act vests jurisdiction in DHS to "investigate all cases of suspected maltreatment of an endangered person or an impaired person." Ark. Code Ann. § 12-12-1710(a). It further provides that OLTC, as a unit of DHS, "shall investigate all cases of suspected maltreatment of a long-term care facility resident." Ark. Code Ann. § 12-12-1710(b)(2). The Act expressly declares that "[t]he Department of Human Services shall conduct a thorough investigation of all suspected adult maltreatment or long-term care facility resident maltreatment in accordance with this subchapter." Ark. Code Ann. § 12-12-1711(a) (emphasis added).
The Act places the duty on DHS, in conducting its investigation, to:
• Complete its investigation within sixty days, Ark. Code Ann. § 12-12-1711(b)(1) ; and
• Make and issue an investigative report that includes, among other things, the "nature, extent and cause of the maltreatment" and "[t]he identity of the person responsible." Ark. Code Ann. § 12-12-1711(b)(2)(A)-(B).
The Act further grants DHS, in conducting its investigation, authority to:
• Enlist the assistance of law enforcement to accompany "the department's investigator if the department has a reasonable belief that the investigator's safety could be compromised," Ark. Code Ann. § 12-12-1711(B)(3) (emphasis added);
• Seek judicial intervention in the following forms:
• An ex parte petition in circuit court requesting an order of investigation, Ark. Code Ann. § 12-12-1714(d)(2)(A)(i) ;
• A court order directing a person in charge of a nursing home "to allow entrance for an examination and investigation," Ark. Code Ann. § 12-12-1714(a) ;
• A court order directing law enforcement "to assist the Department of Human Services to obtain entrance to the home for the required investi gation " of a person's home, Ark. Code Ann. § 12-12-1714(b) (emphasis added); or
• A request that medical, mental health, or financial records-including protected health information-regarding the maltreated person "shall be made available to the department for the purpose of conducting an investigation under this subchapter." Ark. Code Ann. § 12-12-1714(c)(1)-(3) (emphasis added).
Williform contends that these clear and unambiguous statutory provisions place the responsibility for conducting an investigation into allegations of abuse squarely on DHS or, as here, OLTC. She further argues that the record supports a conclusion that DHS did not conduct an investigation in compliance with its statutory responsibility. We agree with both contentions. The plain language of the Act places the responsibility for the investigation squarely on DHS.
DHS tacitly admits its responsibility to investigate under the statute when it states that OLTC "is tasked with investigating all cases of suspected maltreatment of a long-term-care-facility resident." It nonetheless takes the position that it fulfilled its statutory responsibility by implementing rules. DHS argues that Arkansas Code Annotated section 12-12-1723 permits "[t]he Director of the Department of Human Services [to] adopt rules to implement this subchapter." It contends that OLTC, as a unit within DHS, promulgated such rules and regulations for the administration of nursing homes. See Rules and Regulations for Nursing Homes, Ark. Admin. Code 016.06.15-300 (WL, current with amends. 41 Ark. Reg. 9). These rules, in turn, contain provisions instructing nursing homes and long-term-care facilities on how to investigate and report suspected abuse and neglect. We now turn our attention to whether the implementation of these rules fulfills DHS's statutory duty to investigate.
OLTC Regulations § 306 states that a long-term care facility must, pursuant to 42 C.F.R. 483.13 and Arkansas Code Annotated sections 5-28-101 et seq. and 12-12-501 et seq., "develop and implement written policies and procedures to ensure incidents, including ... alleged or suspected abuse or neglect of residents ... are prohibited, reported, investigated and documented as required by these regulations." Section 306.5 details how an abuse-investigation report must be handled, providing as follows:
The facility must ensure that all alleged or suspected incidents involving resident abuse, exploitation, neglect or misappropriations of resident property are thoroughly investigated. The facility's investigation must be in conformance with the process and documentation requirements specified on the form designated by the Office of Long Term Care, Form DMS-762, and must prevent further potential incidents while the investigation is in progress.
The results of all investigations must be reported to the facility's administrator, or designated representative, and to other officials in accordance with state law, including the Office of Long Term Care. Reports to the Office of Long Term Care shall be made via facsimile transmission by 11:00 a.m. the next business day following discovery by the facility, on form DMS-7734. The follow-up investigation report, made on form DMS-762, shall be submitted to the Office of Long Term Care within 5 working days of the date of the submission of the DMS-7734 to the Office of Long Term Care. If the alleged violation is verified, appropriate corrective action must be taken.
OLTC Regulations § 306.5.
DHS takes the position that OLTC promulgated Form DMS-762 for the reporting of suspected abuse, in accordance with this regulation. Here, the administrator of Lexington Place Healthcare filled out a Form DMS-762 and submitted it to OLTC. Upon receipt of the form, OLTC reviewed it and entered it into the administrative record. Thus, DHS asserts that it complied with the statutory mandate to "conduct a thorough investigation" set forth in section 12-12-1711.
We disagree. Admittedly, section 306.5 of OLTC's regulations plainly allows the nursing-home facility to conduct investigations into allegations of abuse and then report its findings to OLTC. We find it clear, however, from the unambiguous language of the Act that the General Assembly intended the Department of Human Services , not the nursing home or long-term-care facility, to conduct the investigation and that DHS has been given wide-reaching powers in order to effectuate that purpose. We perceive nothing in any of the above-cited statutes authorizing DHS to delegate, via its rule-making authority, the responsibility for conducting its investigation to the nursing home in which the abuse is alleged to have taken place. See Ark.Dep't of Human Servs. v. Howard , 367 Ark. 55, 62, 238 S.W.3d 1, 6 (2006) (noting that it is well settled that an agency has no right to promulgate a rule or regulation contrary to a statute) (citing McLane Co., Inc. v. Davis , 353 Ark. 539, 110 S.W.3d 251 (2003) ; McLane Co., Inc. v. Weiss , 332 Ark. 284, 965 S.W.2d 109 (1998) ; Pledger v. C.B. Form Co. , 316 Ark. 22, 871 S.W.2d 333 (1994) ). The plain language of the statute repeatedly vests that authority, and grants concomitant specific investigative powers, solely in DHS.
We further conclude that the evidence is clear and undisputed that neither DHS nor OLTC conducted an investigation of this case, much less the "thorough investigation" contemplated by the statute. Before the hearing, Williform asked DHS in three separate emails to identify the DHS employees who conducted the investigation and made the investigative determination that the allegation of abuse was founded. DHS never responded to the request. DHS did not respond because DHS did not investigate.
Instead, David Brazile, the facility administrator, conducted the investigation. He took statements from CNA Kristy Shaw, treatment nurse Paula Ward, Williform, and the resident. At the hearing before the ALJ, each witness testified that no one from DHS contacted him or her. DHS did not send anyone to the facility and did not conduct any interviews. Although DHS asserts that it conducted its "investigation" by reviewing the report filled out and submitted by Brazile, as set forth above, the completion of that form by Brazile did not satisfy the requirements of the statute.
Accordingly, the agency's decision was in violation of statutory provisions and was made upon unlawful procedure, and it must be reversed. See Ark. Code Ann. § 25-15-212(h)(1) & (3). Because we reverse for this reason, it is unnecessary to consider Williform's second argument, wherein she asserts that the agency decision was not supported by substantial evidence. See Ark. Dep't of Human Servs. v. Koprovic , 2012 Ark. App. 645, at 5, 2012 WL 5438952 (stating that when an agency's decision is reversed based on one subsection of § 25-15-212, there is no need to discuss the other possible basis for reversing its decision under the statute).
Reversed.
Gladwin and Glover, JJ., agree.
The full name of the form is the "Facility Investigation Report for Resident Abuse, Neglect, Misappropriation of Property, And Exploitation of Residents in Long-Term Care Facilities."
When the suspected abuse occurs in a person's home, the Act provides that DHS's investigation shall include a visit to the maltreated adult's home and an interview with the maltreated adult, and "[a ]n investigator shall interview the maltreated person alone and out of the hearing of any next of kin or other person responsible for the maltreated person's care." Ark. Code Ann. § 12-12-1711(b)(2)(F)(i)-(ii) (emphasis added). While this provision does not apply in the instant case because the alleged abuse did not occur in an individual's home, it is cited herein to demonstrate that the statute clearly contemplates the existence of "an investigator" who shall conduct the "thorough investigation" that the statute requires of DHS.
Arkansas Code Annotated sections 5-28-101 to -110 (Repl. 2013) are criminal code provisions pertaining to the abuse of adults.
Arkansas Code Annotated sections 12-12-501 to -519 were, prior to their repeal by Act 749 of 2009, provisions pertaining to child-abuse reporting.
As mentioned above, section 12-12-1710(b)(2) states that OLTC shall investigate all cases of suspected maltreatment that occur in long-term-care facilities. This is not a delegation of authority to an entity outside of DHS; it is simply to make clear that OLTC, a division within DHS, investigates nursing-home cases, while the Adult Protective Services Unit, another unit of DHS, investigates cases that arise outside of long-term-care facilities. See Ark. Code Ann. § 12-12-1710(b)(1). The ultimate responsibility for the investigation remains with DHS.
The ALJ heard testimony from Brazile, Shaw, Ward, and Williform. DHS did not present any witness from its agency. | [
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MIKE MURPHY, Judge
Appellant Alisha Rice appeals from the Garland County Circuit Court's termination of her parental rights to her two children, T.L. (DOB: 12/09/2010) and A.B. (DOB: 11/12/2015). Rice argues that there was insufficient evidence to support the termination. We affirm.
The Arkansas Department of Human Services ("the Department") exercised emergency custody of T.L. and A.B. on April 7, 2017, due to environmental neglect, educational neglect, and Rice's being under the influence of illegal drugs while in the presence of the juveniles. In an affidavit attached to the Department's petition for emergency custody, a family-service worker averred that the family had been the subject of a family-in-need-of-services case since February 27, 2017. A decision was made to remove the children from the custody of Rice on April 7 based on allegations that Rice was not meeting the children's needs, refused to allow the Department to have access to the children, and tested positive for several illegal substances. On April 10, the circuit court entered an ex parte order for emergency custody of T.L. and A.B.
On April 13, the circuit court held a probable-cause hearing and found that probable cause existed for T.L. and A.B. to remain in the Department's custody. Rice, who was not present, was ordered among other things, to cooperate with the Department, submit to random drug screens, complete parenting classes, submit to counseling and a psychological evaluation, and submit to a drug-and-alcohol assessment.
On May 17, the circuit court held an adjudication-and-disposition hearing. There, it found that T.L. and A.B. were dependent-neglected based on neglect and parental unfitness due to environmental neglect and Rice's testing positive for multiple illegal substances while T.L. and A.B. were in her care, custody, and control. The circuit court also ordered that the goal in this case be reunification with a concurrent goal of permanent relative guardianship/custody and reiterated its orders from the probable-cause hearing to Rice.
The circuit court held two review hearings and at one, it found partial compliance by Rice and continued the goal of reunification.
On April 4, 2018, the circuit court held a permanency-planning hearing. It changed the goal to adoption and authorized the Department to file a petition to terminate Rice's parental rights. In support of this order, the circuit court found that Rice continued to have issues with her physical living conditions, that she continued to abuse illegal substances, and that she continued to demonstrate an inability to properly supervise the juveniles. The circuit court also found that Rice had not shown a genuine and sustainable effort toward complying with the case plan's requirements and found that the Department had made reasonable efforts. On May 4, the Department filed a petition to terminate Rice's parental rights based on the grounds of failure to remedy and aggravated circumstances.
A termination hearing was held on August 1, 2018. Travis Bratton, the Department's family-service worker assigned to Rice's case, testified first. Bratton testified to Rice's noncompliance with the case plan and explained that the children had remained out of the custody of the mother for fifteen months. He explained that she had been in the same one-bedroom, one-bathroom trailer since this case began and that she had not fully corrected the environmental-neglect issues that partly caused the children's removal. He further testified that Rice had not remained clean and sober during the pendency of the case and that she had tested positive within the two months leading up to the termination hearing. In fact, he administered a drug screen the day before the termination hearing and it came back abnormal; Bratton explained that Rice had likely supplied a "fake urine" sample. He testified that she did not submit to a drug-and-alcohol assessment, complete a course in parenting instruction, or view the video "The Clock is Ticking" until the children had been out of her care for twelve months. Bratton said that Rice did not maintain consistent and regular contact with the children; she missed twelve of the thirty scheduled visits during the pendency of the case.
Next, Sandra Brubaker, a court-appointed special advocate, testified that she agreed with the Department that it would be in the children's best interest to terminate parental rights because the children are excelling in the structured environment they are in now. She explained they are going to school, getting medical care, learning manners, learning how to interact with other people, and are nutritionally better off.
Lastly, Shirley Watkins, an adoption specialist, testified that in her opinion the children were adoptable and that it was the Department's intent that the children be adopted as a sibling group.
At the conclusion of the hearing, the circuit court granted the petition to terminate parental rights finding that termination was in the children's best interest and that the Department had proved both statutory grounds alleged. Rice filed a timely notice of appeal.
We review termination-of-parental-rights cases de novo. Strickland v. Ark. Dep't of Human Servs. , 2018 Ark. App. 608, 567 S.W.3d 870, 875-76. An order forever terminating parental rights must be based on a finding by clear and convincing evidence that termination is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). The circuit court must consider the likelihood that the child will be adopted if the parent's rights are terminated and the potential harm that could be caused if the child is returned to the parent. Id. The circuit court must also find by clear and convincing evidence one or more grounds for termination. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the circuit court's finding is clearly erroneous. McGaugh v. Ark. Dep't of Human Servs. , 2016 Ark. App. 485, 505 S.W.3d 227. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly-erroneous question, we defer to the circuit court because of its superior opportunity to observe the parties and judge the credibility of witnesses.
The purpose of the termination-of-parental-rights statute, Ark. Code Ann. § 9-27-341(a)(3), is to provide permanency in a juvenile's life in all instances in which the 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 a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Blasingame v. Ark. Dep't of Human Servs. , 2018 Ark. App. 71, 542 S.W.3d 873. A parent's past behavior is often a good indicator of future behavior. Bridges v. Ark. Dep't of Human Servs. , 2019 Ark. App. 50, 571 S.W.3d 506.
Rice challenges both grounds found by the circuit court supporting the termination of her parental rights. First, as to the failure-to-remedy ground, Rice contends that while her compliance with the case plan and the court orders was admittedly "somewhat slow," the evidence presented by the Department proved that its own caseworker, Bratton, was biased against Rice and thus the Department did not meet its burden to engage in meaningful efforts to provide appropriate services. She alleges that although the Department did offer certain services to the family, some services that were "critical to the goal of reunification" were never offered and that it was a direct result of Bratton's decision to not follow protocol and get approval from the circuit court or the Department excusing Rice from the service. Rice is referring to Bratton's decision to not provide Rice with the service of hands-on parenting.
The failure-to-remedy ground is demonstrated if "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." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) . One of the conditions that caused removal in this case was that Rice was under the influence of illegal drugs while in the presence of the juveniles. Despite numerous services throughout the case, this remained true. It is apparent the circuit court did not err in terminating Rice's parental rights based solely on the argument that Bratton did not set her up with hands-on parenting. In its termination order, the circuit court found:
[Rice] has not remained clean and sober; she failed to cooperate regarding a drug/alcohol assessment and treatment services by Quapaw House; she did not complete a course in parenting instruction or watch "The Clock is Ticking" video until after the permanency planning hearing; she insufficiently participated in counseling; did not follow the recommendations of her psychological evaluation; and only eighteen of thirty visits were completed.
On these facts, we do not think the circuit court erred in finding that the Department made meaningful efforts to correct the conditions that caused removal. Because we can affirm on this ground, we need not address Rice's argument that the Department did not provide sufficient evidence that Rice subjected her children to aggravated circumstances.
Next, Rice argues that the circuit court erred in its best-interest analysis. A parent's rights may be terminated if a circuit court finds by clear and convincing evidence that termination is in the best interest of the juvenile. Ark. Code Ann. § 9-27-341(b)(3)(A). The court must consider the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm caused by returning the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)-(ii). In the present case, the circuit court determined that there was a clear likelihood that the children would be adopted and that there was a risk of potential harm if returned to Rice.
Rather than challenge the adoptability and potential-harm finding, Rice challenges the circuit court's best-interest finding based on the circuit court's failure to address the issue of T.L.'s and A.B.'s relationship with their sibling, C.D., who was not in the Department's custody. In support of her argument, she cites Caldwell v. Arkansas Department of Human Services , 2010 Ark. App. 102, 2010 WL 374432, and Clark v. Arkansas Department of Human Services , 2016 Ark. App. 286, 493 S.W.3d 782. However, these cases are distinguishable from Rice's case. First, we reversed the termination in Caldwell because we held that terminating the parental rights of only the father would not serve to achieve permanency and that the termination of the father's rights endangered the child's relationship with her paternal grandmother, which the circuit court found to be the most stable influence on the child. Next, Rice relies on Clark for the proposition that "one factor the court must consider in determining the best interest of the child is whether the child will be separated from his or her siblings." Clark , 2016 Ark. App. 286, at 10, 493 S.W.3d at 789. However, Clark concerned an appeal of a custody award between two parents-not a termination of parental rights-and we held that sibling separation is only one factor that the circuit court may consider with a best-interest finding.
Here, the circuit court considered the two best-interest factors required under the termination statute based on the evidence presented. Its failure to make a finding regarding the effect of termination on the familial relationship with C.D., when there was never any court order in place allowing T.L. or A.B. to visit with C.D., was not reversible error. Accordingly, under these circumstances, we cannot say that the circuit court clearly erred in its determination that it was in the children's best interest to terminate Rice's parental rights.
Affirmed.
Gladwin and Brown, JJ., agree.
The circuit court also terminated the parental rights of the fathers to the children, but neither is a party to this appeal.
The petition for emergency custody noted that the children have a sibling, C.D., who resides with her father in Malvern.
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) .
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A)-(B)(i) .
Rice was not present for the hearing despite telling her attorney the night before that she would be there.
At the time of the termination hearing, the children were in a provisional placement with their aunt and uncle. The record revealed that the aunt and uncle hoped to adopt the children. | [
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JOSEPHINE LINKER HART, Associate Justice
Monsanto Company ("Monsanto") appeals the decision of the Pulaski County Circuit Court. The circuit court dismissed Monsanto's amended complaint against the Arkansas State Plant Board and its members (together, the "Plant Board") on the basis of sovereign immunity. We find portions of this matter to be moot, and as to the remainder, we reverse and remand for further proceedings consistent with this opinion.
I. Background
Monsanto develops and sells products containing dicamba, a chemical compound effective against Palmer amaranth (pigweed), which is a pest weed common in Arkansas and other states. In 2016, Monsanto obtained federal and state regulatory approval for the in-crop use of a low-volatility dicamba herbicide, XtendiMax with VaporGrip Technology ("XtendiMax"), in Arkansas. Shortly thereafter, at a special meeting on November 21, 2016, the Plant Board passed a new regulation that reclassified XtendiMax from a Class A Pesticide to a Class H Pesticide and added date restrictions prohibiting the use of XtendiMax between April 15 and September 15 (the "2016 Promulgation"). Monsanto asserts that this rule effectively prohibited any in-crop use of XtendiMax for the 2017 growing season. Then, on November 9, 2017, the Plant Board promulgated a rule that would prohibit any in-crop use of dicamba herbicides in Arkansas between April 16 through October 31 of the 2018 growing season (the "2017 Promulgation"). The Plant Board asserts that the basis for these decisions was to prevent the devastation of the crops, foliage, honey production, and ornamental landscaping caused by dicamba-containing herbicides.
After the 2017 Promulgation, Monsanto filed a complaint in the Pulaski County Circuit Court against the Plant Board and its members on October 20, 2017, and then amended its complaint on November 17, 2017. The amended complaint set forth seven alleged claims against the Plant Board: (1) violations of the Arkansas Pesticide Use and Application Act and the Arkansas Pesticide Control Act; (2) violations of the Arkansas Administrative Procedure Act; (3) a declaratory judgment that the Plant Board's November 9, 2017 promulgation was ultra vires and invalid; (4) a federal due-process violation for Plant Board member Terry Fuller's role in the promulgation process, which Monsanto alleged was illegally tainted by bias; (5) a separate federal due-process violation for infringement upon Monsanto's vested property interest in its state and federal registrations and classifications for its products; (6) a Commerce Clause violation for the Plant Board's unwritten requirement that pesticide registrants engage researchers from the University of Arkansas to complete two years of product testing before they can obtain regulatory approval for use of their products within the state; and (7) state and federal constitutional violations for the statutory process by which the Plant Board is comprised, which allows various "private interest groups" to each appoint a member to the Plant Board.
Importantly, each of Monsanto's claims sought injunctive or declaratory relief for alleged illegal or unconstitutional activity by the Plant Board and its members. Monsanto's amended complaint did not seek an award of monetary damages in any respect. Additionally, while each of the claims in Monsanto's sixty-two-page amended complaint is distinct, there is overlap between the asserted legal authority for those claims and the corresponding requests for relief. Generally speaking, Monsanto's amended complaint asked the circuit court to do four things: (1) to declare the Plant Board's 2016 Rule Promulgation illegal and enjoin its enforcement, (2) to declare the Plant Board's 2017 Rule Promulgation illegal and enjoin its enforcement, (3) to prevent the Plant Board from requiring pesticide registrants to submit research conducted by researchers at the University of Arkansas in order to gain approval for use of the products within the State of Arkansas, and (4) to hold the composition of the Plant Board's members and the current statutory process therefore unconstitutional.
On December 20, 2017, the Plant Board filed a motion to dismiss, arguing that Monsanto's complaint should be dismissed as a matter of law based upon the State's sovereign immunity. At the time, there were three acknowledged exceptions to the sovereign immunity-doctrine: (1) when the State is the moving party seeking specific relief, (2) when a plaintiff seeks to enjoin a state official from acting unlawfully, and (3) when an act of the legislature has created a waiver of immunity. See , e.g. , Mitchem v. Hobbs , 2014 Ark. 233, 3-4, 2014 WL 2019278 ; Ark. Dep't of Cmty. Corr. v. City of Pine Bluff , 2013 Ark. 36, at 4, 425 S.W.3d 731, 734 ; Bd. of Trs. of Univ. of Ark. v. Burcham , 2014 Ark. 61, at 3-4, 2014 WL 585981. In its motion to dismiss, the Plant Board argued that, contrary to the decisions reached in the aforementioned cases, the language contained in art. 5, § 20 of the Arkansas Constitution, "[t]he State of Arkansas shall never be made defendant in any of her courts," leaves no room for any exception to the State's sovereign immunity. Therefore, the Plant Board argued, allowing Monsanto's complaint to proceed in state court would violate art. 5, § 20 of the Arkansas Constitution.
Then, on January 18, 2018, this court issued its decision in a separate case, Board of Trustees of University of Arkansas v. Andrews. 2018 Ark. 12, 535 S.W.3d 616. In Andrews , the majority held that the third of the three aforementioned sovereign immunity exceptions (legislative waiver) violated art. 5 § 20 of the Arkansas Constitution. The majority held:
[W]e conclude that the legislative waiver of sovereign immunity ... is repugnant to article 5, section 20 of the Arkansas Constitution. In reaching this conclusion, we interpret the constitutional provision, "The State of Arkansas shall never be made a defendant in any of her courts," precisely as it reads.
Andrews , 2018 Ark. 12, at 10, 535 S.W.3d at 622.
Back to the case now at hand, on January 22, 2018, Monsanto filed its response to the Plant Board's motion to dismiss. In its response, Monsanto argued that the claims set forth in its amended complaint alleged ultra vires conduct on the part of the Plant Board, and that Andrews had left the ultra vires exception to sovereign immunity intact. On February 9, 2018, the Plant Board filed its reply. The Plant Board's reply acknowledged that sovereign immunity should not bar actions to enjoin ultra vires government conduct, even after Andrews , but argued instead that Monsanto's amended complaint failed to allege any such claim of ultra vires government conduct, and that Monsanto's claims should therefore still be dismissed on the basis of sovereign immunity.
On February 16, 2018, the circuit court held a hearing on the Plant Board's motion to dismiss, and on March 29, 2018, the circuit court issued an order granting said motion. The circuit court specifically found that Monsanto's amended complaint alleged that the Plant Board "violated several Arkansas statutory and federal constitutional provisions and exceeded their delegated authority," which would otherwise fit within the ultra vires exception to sovereign immunity, but nonetheless dismissed Monsanto's amended complaint on the basis of sovereign immunity. The "problem," the circuit court reasoned, was that "with Andrews , we have cut that procedure short, and it doesn't give the litigants an avenue to go up" from the agency level to state court. Pursuant to this rationale, the fact that Monsanto's amended complaint alleged ultra vires conduct on the part of the Plant Board was immaterial because allowing the action to go forward would nonetheless make a state entity a defendant in state court in violation of art. 5, § 20 of the Arkansas Constitution. In granting the Plant Board's motion to dismiss, the circuit court specifically declined to consider any of the arguments at issue other than sovereign immunity.
Monsanto then appealed to this court.
II. Mootness
Since the parties submitted their briefs in this matter, the Plant Board has promulgated an entire new set of regulations on pesticide use in Arkansas (the "2019 Promulgation"). See Ark. Code R. 209.02.4-XIII (B)(1)-(2). This court has historically and consistently taken judicial notice of rules and regulations promulgated by administrative agencies. Warren Wholesale Co. v. McLane Co. , 374 Ark. 171, 173, 286 S.W.3d 709, 710 (2008) (citing Ark. Alcoholic Beverage Control Bd. v. Muncrief , 308 Ark. 373, 825 S.W.2d 816 (1992) ; Webb v. Bishop , 242 Ark. 320, 413 S.W.2d 862 (1967) ; State v. Martin , 134 Ark. 420, 204 S.W. 622 (1918) ). "The principles of mootness ... are likewise applicable to an agency regulation that is repealed while the appeal challenging the regulation is pending." Warren , 374 Ark. at 174, 286 S.W.3d at 710.
On March 9, 2019, the 2019 Promulgation became effective. A significant difference between the 2019 Promulgation and the 2016 and 2017 Promulgations is the applicable date restrictions on in-crop use of dicamba-containing pesticides, including XtendiMax. Now, farmers can use dicamba-containing pesticides until May 25 each year, and even after May 25 in certain parts of the state under certain conditions, whereas before farmers could only use dicamba-containing pesticides until April 15.
Pursuant to Warren , the 2019 Promulgation moots the portions of Monsanto's amended complaint that relate exclusively to the 2016 and 2017 Promulgations. There are two long-standing discretionary exceptions to the mootness doctrine, applicable when an issue is capable of repetition yet evades review, and when substantial public interest warrants this court's review. See Warren , supra. Indeed, a State administrative agency could deliberately keep one in litigation limbo forever if it could moot the pursuit of his or her claim simply by changing a detail of the rule in question every once in a while and thereby forcing another restart of the litigation process. However, there is no indication that the Plant Board is engaged in such tactics here. Without undertaking any advisory review of the 2019 Promulgation, it is fair to say that the new rule appears to reflect an effort at a more "tailored" system that would allow the interested parties to do more of what they want, more safely, during specific pre-designated periods of time. Monsanto, groups of farmers on both sides of this issue, and many other interested individuals and entities doubtlessly exercised their rights to participate in the process of the new rule's promulgation. Here, the public interest does not weigh in favor of this court issuing an advisory opinion on these issues at this time. Accordingly, the portions of Monsanto's amended complaint that relate exclusively to the 2016 and 2017 Promulgations are now moot.
However, the portions of Monsanto's amended complaint relating to the requirement that pesticide registrants submit research conducted by researchers at the University of Arkansas in order to gain approval for use of the products, and to the constitutionality of the Plant Board's composition and the current statutory process therefore, still reflect a ripe and justiciable case or controversy. We address those issues in the following sections of this opinion.
III. Legal Authority
In reviewing a circuit court's decision on a motion to dismiss, this court "treat[s] the facts alleged in the complaint as true and view[s] them in the light most favorable to the plaintiff." McGhee v. Ark. State Bd. of Collection Agencies , 360 Ark. 363, 368, 201 S.W.3d 375, 377-78 (2005). This court "look[s] only to the allegations in the complaint and not to matters outside the complaint." Id. "In testing the sufficiency of a 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." Fulton v. Beacon Nat'l Ins. Co. , 2012 Ark. App. 320, at 8, 416 S.W.3d 759, 764.
Since Andrews , this court issued its opinion in Martin v. Haas , 2018 Ark. 283, 556 S.W.3d 509, which makes our decision in this case a simple one. In Haas , a voter brought a declaratory-judgment action against the Arkansas Secretary of State and others, seeking to declare a legislative act regarding voter identification unconstitutional and to enjoin its enforcement. Id. The Arkansas Secretary of State responded by arguing that sovereign immunity barred the voter's suit. Id. at 7-8, 556 S.W.3d at 514-15. We disagreed, reiterating that the sovereign immunity defense is not available against claims of ultra vires conduct that only seek declaratory or injunctive relief. Id. This court held,
Here, appellee challenged the constitutionality of Act 633. "We view our [sovereign immunity] cases as allowing actions that are illegal, are unconstitutional or are ultra vires to be enjoined." Cammack v. Chalmers , 284 Ark. 161, 163, 680 S.W.2d 689, 689 (1984) ; see also Bd. of Trustees of Univ. of Ark. v. Burcham , 2014 Ark. 61, at 4, 2014 WL 585981 ("[T]he scope of the exception to sovereign immunity for unconstitutional acts or for acts that are ultra vires, arbitrary, capricious or in bad faith, extends only to injunctive relief.").
Because appellee has asserted that Act 633 violates qualified voters' constitutional right to vote and seeks declaratory and injunctive relief, not money damages, this action is not subject to the asserted sovereign-immunity defense.
Id.
IV. Analysis
In short, the ultra vires exception is alive and well, and it applies in this case. Neither Andrews nor any subsequent opinion of this court eliminated the ultra vires exception to the sovereign immunity doctrine. Where a claim is based on alleged ultra vires conduct on the part of the State, and the claimant seeks only declaratory and injunctive relief, sovereign immunity is inapplicable. Here, each of the remaining claims in Monsanto's amended complaint is based on allegations of ultra vires conduct on the part of the Plant Board. Moreover, Monsanto's amended complaint seeks only declaratory and injunctive relief, and does not seek monetary damages. Monsanto's claims are sufficiently developed, detailed, and specific as to properly allege ultra vires conduct, and under these circumstances, the Plant Board must address the merits of Monsanto's claims.
Accordingly, the circuit court's decision to dismiss Monsanto's amended complaint on the basis of sovereign immunity is reversed. We remand this matter to the circuit court for further proceedings consistent with this opinion.
Moot in part; reversed and remanded in part.
Special Justice Karen McKinney joins this opinion.
Baker, J., concurs in part and dissents in part.
Goodson, J., not participating. | [
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WAYMOND M. BROWN, Judge
Appellant Tabitha Loving appeals from an order entered by the Baxter County Circuit Court, denying her motion to relocate. We dismiss the appeal without prejudice for lack of a final order.
The parties were married on April 27, 2002, and two children were born of the marriage, L.L.1, born 12-09-02 and L.L.2, born 02-13-07. The parties were divorced by decree on November 8, 2012, and a property-settlement agreement (PSA) entered into on October 16, 2012, was incorporated into the divorce decree. According to the PSA, the parties were to share joint-legal custody of the two minor children. The parties entered into an agreed final order on August 5, 2014, in which appellant was given full legal and physical custody of the children and appellee was granted visitation. Appellee agreed to pay child support in the amount of $750/month.
Appellant filed a motion for modification of visitation on April 10, 2017, in anticipation of relocating with the children to Florida. Appellee filed a response objecting to the proposed relocation. He filed a counterclaim on April 25, 2017, seeking a reduction in child support, a change in custody, and a contempt finding against appellant for violating the agreed order of 2014. Appellant responded on May 9, 2017, asking the court to deny appellee's counterclaim.
A hearing took place on August 22, 2017. The court entered a letter opinion on September 15, 2017. An order was entered on November 17, 2017, denying appellant's motion to relocate. The court denied appellee's petition to reduce his child-support obligation. The court also found that appellant was in contempt of the agreed order but assessed no punishment. Appellant filed a notice of appeal on December 13, 2017. This appeal followed.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken from a final judgment or decree entered by the circuit court. When the order appealed from is not final, this court will not decide the merits of the appeal. Whether a final judgment, decree, or order exists is a jurisdictional issue that this court has a duty to raise, even if the parties do not, in order to avoid piecemeal litigation. For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. When the order appealed from reflects that further proceedings are pending, which do not involve merely collateral matters, the order is not final. Even though an issue on which a court renders a decision might be an important one, an appeal will be premature if the decision does not, from a practical standpoint, conclude the merits of the case.
While all final orders awarding custody are final, appealable orders, the order appellant appeals from fails to address or resolve the custody matter raised in appellee's counterclaim. In denying appellant's petition to relocate, the court stated in pertinent part that "[appellant] may relocate, but if she does, it is in the best interest of the children that custody of the minor children transfer to [appellee], in that event, the Court will set visitation and child support." Therefore, appellant has not appealed from a final, appealable order. Accordingly, we must dismiss this appeal, without prejudice, for lack of jurisdiction.
Dismissed without prejudice.
Gruber, C.J., and Hixson, J., agree.
Paragraph 7 stated in pertinent part, "That while the children are in his or her care and custody, neither party shall have overnight guests or guests past 9:00 p.m. who are of the opposite sex and to whom they are unrelated without approval from both parties[.]"
Ark. R. App. P.-Civ. 2(a)(1) (2018); Fell v. Fell , 2014 Ark. App. 627, 2014 WL 5758467.
Fell, supra.
Id.
Id.
Id.
Id.
Ark. R. App. P.-Civ. 2(d) (2018).
Kines v. McBride , 2017 Ark. App. 40, 511 S.W.3d 352. | [
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Arkansas Code Annotated section 9-27-318(g) provides:
(g) In the transfer hearing, the court shall consider all of the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
The circuit court shall make written findings on all the factors set forth in subsection (g) of this section. Ark. Code Ann. § 9-27-318(h)(1). However, the State is not required to introduce proof of each factor, and the circuit court does not have to give equal weight to each factor. Flowers v. State , 2017 Ark. App. 468, 528 S.W.3d 851. The movant bears the burden of proving the necessity of transfer from the criminal division to the juvenile division of circuit court. Id. On appeal, we will not reverse a circuit court's decision denying a motion to transfer unless it is clearly erroneous; a finding is clearly erroneous when, after reviewing the evidence, the appellate court is left with a firm and definite conviction that a mistake was made. Id. The appellate courts will not reweigh the evidence presented to the circuit court. Id.
The order denying McClendon's motion to transfer was prepared by defendant's counsel and stated in its entirety:
Upon motion of the Defendant to transfer this case to the Juvenile Division of Circuit Court, the Court has considered all the factors listed in Ark. Code Ann. § 9-27-318 and § 9-27-503 and makes the following findings:
1. The underlying offense, Battery in the First Degree, is a serious offense.
2. The alleged offense was committed in an aggressive manner.
3. The alleged offense was committed against a person, specifically a minor.
4. That there are facilities or programs available, but the Court is not sure they are likely to rehabilitate.
After consideration of these factors, the Court denies the Defendant's Motion to Transfer to the Juvenile Division of Circuit Court.
The circuit court made written findings regarding only four of the factors listed in section 9-27-318(g). On appeal, McClendon argues the circuit court's failure to make written findings on all ten factors requires the case to be remanded to the circuit court. We agree.
Prior to 2003, Arkansas Code Annotated section 9-27-318(g) provided, "In making the decision to retain jurisdiction or to transfer the case, the court shall make written findings and consider all of the following factors...." In Beulah v. State , 344 Ark. 528, 42 S.W.3d 461 (2001), the appellant argued the circuit court erred in not making written findings on all the enumerated statutory factors. In concluding there was no error, our supreme court held the plain language of the statute only required the circuit court to consider all the factors and make written findings, not make written findings of all the factors, as the extent of the written findings was not specified.
In 2003, arguably in direct response to the supreme court's holding in Beulah , the legislature added subsection (h)(1) to Arkansas Code Annotated section 9-27-318, making it mandatory for the circuit court to make written findings on all the factors set forth in subsection (g).
Citing B.D. v. State , 2015 Ark. App. 160, 457 S.W.3d 294, the State argues McClendon has waived his argument because it was not raised to the circuit court. However, the case relied on in B.D. - Box v. State , 71 Ark. App. 403, 30 S.W.3d 754 (2000) -is a pre-2003 case, when the statute did not mandate the circuit court to make written findings on all ten factors.
Our court has recently, on its own accord, raised the issue of whether the circuit court made written findings on all ten factors required to be considered in a juvenile-transfer hearing, even if the issue was not raised to the circuit court. In Gilliam v. State , 2016 Ark. App. 297, 2016 WL 3209167, our court remanded for the circuit court to make written findings instead of simply check-marking boxes on a form. In Brown v. State , 2015 Ark. App. 570, 2015 WL 6378733, our court remanded the denial of a juvenile-transfer motion due to the failure to make any written findings, holding that check marks on a form did not constitute written findings.
In Harris v. State , 2015 Ark. App. 565, 2015 WL 5853621, our court remanded for a lack of findings, as the circuit court only check-marked boxes instead of making findings on each factor. In that case, our court, citing Beulah, supra , stated that the circuit court was not required to make written findings with regard to all the factors. However, when the case returned to our court in Harris v. State , 2016 Ark. App. 293, 493 S.W.3d 808, in which the denial of appellant's motion to transfer was affirmed, we noted in a footnote that it was mistakenly asserted in our first opinion, citing Beulah , supra , that the circuit court was not required to make written findings on all the statutory factors; however, the current statute now required written findings on all factors.
The State further argues this is a case of invited error, as other factors were discussed at the transfer hearing that were not included in the order, and McClendon cannot now benefit from his counsel's failure to prepare a proper order. We disagree. The statute requires written findings to be made in decisions regarding juvenile-transfer hearings, and in order to perform a proper review, our court needs these statutorily mandated findings to aid in our understanding of the information considered by the circuit court at the transfer hearing. See, e.g. , Schwartz v. Lobbs , 2016 Ark. App. 242, 491 S.W.3d 161 ; Wadley v. Wadley , 2012 Ark. App. 208, 395 S.W.3d 411. The statute requires the circuit court to make written findings of fact on all ten factors, and it is the responsibility of the circuit court to ensure written findings on all ten factors are made. We therefore remand this case with instructions for the circuit court to make written findings on all ten factors enumerated in the juvenile-transfer statute.
Remanded with instructions.
Harrison and Klappenbach, JJ., agree. | [
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KAREN R. BAKER, Associate Justice
On April 27, 2018, petitioner, Ricky Lee Scott, filed his fifth pro se petition requesting permission to proceed with a petition for writ of error coram nobis in the trial court; he also filed a motion for appointment of counsel. On May 7, the State responded to Scott's petition. On May 29, Scott (1) filed a motion for leave to file a reply to the State's response; (2) tendered his reply; and (3) filed a second amended reply to the State's response. On August 30, Scott filed a third amended reply to the State's response, and on October 12, he filed a fourth amended reply to the State's response.
I. Nature of the Writ
The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State , 2009 Ark. 539, 354 S.W.3d 61. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, 502 S.W.3d 524 ; Westerman v. State , 2015 Ark. 69, 456 S.W.3d 374 ; Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman , 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts , 2013 Ark. 56, 425 S.W.3d 771. It is the petitioner's burden to show that a writ of error coram nobis is warranted. This burden is a heavy one because a writ of error coram nobis is an extraordinarily rare remedy. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242.
II. Grounds for the Writ
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. This court will grant permission to proceed with a petition for the writ only when it appears that, looking to the reasonableness of the allegations of the proposed petition and the existence of the probability of the truth of those allegations, the proposed attack on the judgment is meritorious. Isom v. State , 2015 Ark. 225, 462 S.W.3d 662. Additionally, reassertion of the same claims without sufficient facts to distinguish the claims from those raised in a previous coram nobis petition is an abuse of the writ and subjects the petition to dismissal. Jackson , 2017 Ark. 195, 520 S.W.3d 242 ; see also United States v. Camacho-Bordes , 94 F.3d 1168 (8th Cir. 1996) (holding that res judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata). Due process does not require this court to entertain an unlimited number of petitions to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in a particular case. This court has the discretion to determine whether the renewal of a petitioner's application for the writ will be permitted to go forward even if there are additional facts in support of repetitive grounds. Chatmon v. State , 2017 Ark. 229.
Further, Scott invokes Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as a ground for the writ and claims that government action violated his due process rights. The mere fact that a petitioner alleges a Brady violation is not sufficient to provide a basis for the writ. Wallace v. State , 2018 Ark. 164, 545 S.W.3d 767 ; see also Penn v. State , 282 Ark. 571, 670 S.W.2d 426 (1984) (a mere naked allegation that a constitutional right has been invaded will not suffice to warrant coram nobis relief). To establish a Brady violation, the petitioner must satisfy three elements: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Howard , 2012 Ark. 177, 403 S.W.3d 38.
III. Background
In 1998, the Cross County Circuit Court convicted Scott of first-degree murder and sentenced him to a term of life imprisonment, which we affirmed in Scott v. State , 337 Ark. 320, 322, 989 S.W.2d 891, 892 (1999). On direct appeal, we summarized the facts as follows: Scott was arrested on March 5, 1996, for the murder of fifteen-year-old Robert Smith, which had occurred the previous day at the home of Smith's aunt. The evidence showed that Smith and four other persons were in the driveway changing a tire on his aunt's car when Scott went around to the side of the house and began firing a gun. Several eyewitnesses identified Scott as the person who shot Smith. Scott was tried and convicted on March 11, 1998, more than two years after his arrest. Before the court in this case is Scott's fifth petition seeking permission to reinvest jurisdiction in the trial court to pursue his claim of writ of error coram nobis alleging prosecutorial misconduct.
IV. Current Petition and Factual Allegations
In his petition, Scott requests permission to reinvest jurisdiction in the circuit court to file a petition for writ of error coram nobis alleging that there was prosecutorial misconduct committed by Deputy Prosecuting Attorney Joseph Boeckmann. Scott asserts that he was prosecuted because he refused Boeckmann's sexual advances. Scott further contends that he was victimized by Boeckmann and suffered the burden of undue criminal charges and punishments.
Scott first makes claims regarding an alleged rape charge and contends that on October 24, 1995, he was "being held on a rape charge." Scott alleges that he interacted with Boeckmann, who released Scott and stated, "that a warrant had not been issued for this person." Additionally, Scott contends that on October 27, 1995, he went to the Municipal Court Building to talk to Boeckmann about "what had occurred a few days earlier." At this point, Scott contends that Boeckmann "propositioned me indicating that I owed him for doing me a favor. He wanted me to submit to a sexual act, but I flatly refused and left. It was at this point that a number of unexplained extraordinary events began." Scott contends that on March 25, 1996, he was arraigned on murder charges, and Boeckmann stated that Scott had a rape charge pending in the same court. The circuit court ruled that it did not have a rape-case file and that it had been lost or misplaced. Scott contends that this notice of the rape charge was an "utter surprise," and although he subsequently obtained the documents supporting the rape charge, the documents were unsigned and a "fabrication" of events.
In addition, Scott asserts that in his murder investigation, Boeckmann knowingly suppressed evidence in violation of his due-process rights-Scott's Lakers jersey and his hiking boots-that were relevant to the shooter's identification at trial. Scott also contends that in late March 1997, Boeckmann knowingly provided Scott with eyewitness statements by a law enforcement officer. In sum, Scott alleges witness tampering, Brady violations, tampering and fabrication of evidence. Scott contends that this new evidence regarding Boeckmann "adversely affect[ed] my case, violating due process, and sheds light onto how he did so.... Boeckmann's attempts to manipulate and even threaten witnesses against him makes me believe he did the same as a deputy prosecuting attorney.... I was very much disturbed to discover, after reading about another victim in the 1980s facing criminal charges, that Boeckmann had done to him exactly what he did to me after rebuffing his sexual advances: manipulate the legal system to exact a harsh punishment. Unfortunately, Boeckmann's actions were known to be mirrored by Officer Spears, wherein he too used his police office and powers to manipulate [people] to perform sexual favors under the guise of clearing fees."
The crux of Scott's ground for the writ in all of his petitions-including the one now under consideration-allege prosecutorial misconduct concerning witness statements and prosecutorial misconduct. See Scott v. State , 2010 Ark. 363, 3-5, 2010 WL 3796227. Scott relies on Strawhacker v. State , 2016 Ark. 348, 500 S.W.3d 716, for the proposition that where the record shows the government itself has conceded the potential for reliance on tainted evidence at trial, coram nobis is an appropriate remedy in assessing whether the repudiated evidence warrants relief from the conviction. In Strawhacker , the Department of Justice informed the prosecuting attorney that FBI witness Michael Malone's "testimony regarding microscopic hair comparison analysis contain[ed] erroneous statements." The Department further stated that Malone had "overstated the conclusions that may appropriately be drawn from a positive association." Strawhacker , 2016 Ark. 348, at 3, 500 S.W.3d 716, 718 (alteration in original). The FBI then informed Strawhacker that "the prosecutor in your case(s) has advised the Department of Justice that Michael Malone's work was material to your conviction." We granted the petition to reinvest jurisdiction and explained:
We acknowledge that Strawhacker's claim may not neatly fall within one of the four established categories. But these categories are not set in stone. We have expanded the coram-nobis remedy in the past. See Penn v. State , 282 Ark. 571, 670 S.W.2d 426 (1984). We emphasized that expanding the grounds for the writ was necessary to ensure due process and to provide a state remedy where none exists:
The growth of the writ is attributable, certainly, to a variety of causes. A great force in its development has been that growing concept, due process of law. The federal courts now show little hesitation in overturning state convictions if a state has no remedy or refuses to exercise it where a defendant has been denied due process of law. And where the federal decisions reflect a procedural gap in a state whereby a defendant denied due process of law is remediless without recourse to the federal courts, the courts of that state may utilize coram nobis to fill the void.
Id. at 575, 670 S.W.2d at 429 (citing John H. Haley, Comment, Coram Nobis and the Convicted Innocent , 9 Ark. L. Rev. 118 (1955)). These concerns are present here.
Id. at 6, 500 S.W.3d at 719.
Scott asserts that the record of the proceedings with the Arkansas Judicial Discipline and Disability Commission and the United States District Court would provide conclusive support for Scott's argument that Boeckmann engaged in misconduct and criminality during the course of his employment with the State and satisfies the Strawhacker holding that the government has conceded wrongdoing based on Boeckmann's actions. Scott urges this court to grant permission to reinvest jurisdiction, which will permit Scott to investigate and develop his claims. Additionally, he requests that the court extend its holding in Strawhacker to include an allegation that Scott's refusal of sexual advances satisfies the prosecutorial-misconduct claim.
We do not find merit in Scott's arguments. First, Scott does not satisfy any ground for granting the writ because he does not allege that there was any evidence extrinsic to the record that was hidden from the defense or that was unknown at the time of trial. Larimore v. State , 327 Ark. 271, 938 S.W.2d 818 (1997). Second, Scott fails to offer facts sufficient to warrant granting leave to proceed in the trial court for the writ. See Jackson , 2017 Ark. 195, at 7, 520 S.W.3d at 247. The application for coram nobis relief must make full disclosure of specific facts relied on as the basis for the writ. Martinez-Marmol v. State , 2018 Ark. 145, 544 S.W.3d 49. Here, Scott makes allegations but does not offer factual support for his claims.
Additionally, Scott has failed to demonstrate prejudice. Despite Scott's allegations of egregious conduct on Boeckmann's part, Scott has not demonstrated prejudice because Scott has failed to demonstrate Boeckmann's involvement in witness statements in this case. Further, Scott has failed to identify evidence that contradicts the initial eyewitness statements that identified Scott as the shooter. The record also demonstrates that eyewitnesses testified at trial and identified Scott as the shooter. In other words, despite Boeckmann's alleged conduct, Scott has not demonstrated that the witnesses who initially identified him had been influenced before making those statements or that the result at trial would have been different. Finally, Scott offers no proof that the State suppressed any specific evidence pertaining to Deputy Prosecuting Attorney Boeckmann. Mosley v. State , 2018 Ark. 152, 544 S.W.3d 55 (holding that a Brady violation occurs if the defense was prejudiced because the State wrongfully withheld evidence from the defense prior to trial). Davis v. State , 2019 Ark. 20, at 6-7, 566 S.W.3d 111, 115-16.
Petition denied; motion to file reply granted; motion to appoint counsel moot.
The clerk is directed to file the petitioner's four tendered replies to the State's response as of this date. | [
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BART F. VIRDEN, Judge
Irasema Arazola appeals the Craighead County Circuit Court order awarding permanent-relative custody of two of her minor children to their grandparents, Gabriel and Emma Garfias. We affirm.
I. Relevant Facts
On June 25, 2017, the Arkansas Department of Human Services ("Department") exercised an emergency hold on Arazola's three children, AF (11/18/02), AA (9/20/10), and CA (3/27/09). In the emergency petition, the Department asserted that it had received a phone call from the Jonesboro Police Department in regard to an allegation of sexual abuse of CA by Arazola's boyfriend, Francisco Cordova. The children's maternal aunt made the allegation, and all three children confirmed the aunt's claim that Cordova had touched CA's genitals. Investigator Leann Vannan and family service worker Tina Green went to the home to conduct a safety assessment. When questioned, Arazola denied that Cordova had sexually abused CA; however, she reluctantly agreed to a protection plan. Arazola submitted to drug testing, which she passed, though she admitted using marijuana. Guns were found in the home, and Arazola claimed that they belonged to her and not Cordova. The serial numbers on the guns matched those that had been reported stolen, and both Arazola and Cordova were arrested. An emergency hold was placed on the children for suspected sexual abuse and for failure to adequately supervise. On June 29, 2017, the circuit court entered an ex parte order for emergency custody based on the allegations in the affidavit.
On July 14, 2017, the circuit court entered a probable-cause order in which it found that the removal of the juveniles from Arazola's custody was necessary to protect their safety and that it was in the best interest of the children to remain in the custody of the Department. Specifically, the circuit court found that the alleged sexual abuse, Arazola's denial of the abuse, and her love for Cordova were concerning. Although Cordova was incarcerated at that time, the circuit court found that it would be harmful to the children if they were returned to Arazola because the lease to the family home was in Cordova's name and he would return there on his release.
On October 2, 2017, the circuit court entered an adjudication order stating the goal as reunification with Arazola with a concurrent goal of permanent-relative custody. The circuit court found by a preponderance of the evidence that the juveniles were dependent-neglected based on Arazola's failure to take reasonable action to protect CA from sexual abuse perpetrated by Cordova. The court's determination was also based on Arazola's admission of drug use.
On November 21, 2017, the circuit court entered a review order allowing Arazola to have visitation supervised by the Garfiases and finding that Arazola had complied with the case plan and the orders of the court. The circuit court ordered that trial home placement with AA and CA could begin, and it found that if things continued to go well in therapy, AF, who had been living with her maternal aunt, Gabriela Wager, could also begin trial home placement.
On February 22, 2018, the circuit court entered a review order in which it found that trial home placement had begun about two weeks earlier and that AA and CA could continue in trial placement. A permanency-planning hearing was set for April, but it was continued until May 31, 2018.
On May 31, 2018, the circuit court held the permanency-planning hearing. At the hearing, caseworker Felicia Kirksey explained that an emergency staffing was held on April 3 due to a report from the prosecutor's office that Arazola had requested that the no-contact order be lifted so that she could marry Cordova. At the time, Cordova was incarcerated for possession of firearms by certain persons, theft of property, criminal use of a prohibited weapon, and possession of drug paraphernalia. The charges of second-degree sexual assault and third-degree domestic battery had been nolle prossed. The Department submitted a court report stating it had received information that Arazola had allowed AA and CA to talk to Cordova on the phone in violation of the no-contact order. Kirskey explained that initially Arazola denied that any phone calls had taken place between her and the children and Cordova, and she denied that she had plans to marry Cordova. Eventually, Arazola admitted that she had spoken to Cordova on the phone between twelve and sixteen times and that the children were involved in some of the phone calls. A transcript of one phone call was submitted to the court, and though it was not dated, Kirksey stated that she believed that the call took place after the emergency staffing because Cordova and Arazola discussed the matters discussed at the staffing. Kirksey testified that Arazola encouraged Cordova to continue to write letters to her and the children under a false name but that she instructed him not to call until after her court date.
Kirskey testified that at the emergency staffing, Arazola agreed to change her phone number, to cease phone contact with Cordova, and to deliver Cordova's property to his attorney. Arazola did change her number, and Kirksey testified that Cordova's property had not been delivered to his attorney but that Arazola told her the property had been delivered to his family. Arazola told Kirksey she had changed the lease, which was now in her name, but Arazola had not provided proof of the change. Kirksey also testified that Arazola had put $ 800 into Cordova's commissary account, although she claimed the money had been from Cordova's tax refund.
Kirskey testified that after the staffing, CA had begun acting out and had been aggressive toward other children at school and that she believed the change in his behavior was due to his contact with Cordova. A home study showing that the Garfiases' home was appropriate for AA and CA was also submitted to the court, and Kirksey also testified that she believed that the Garfiases were an appropriate placement for the children. She recommended supervised visitation with Arazola.
The Department also presented a CASA report filed on May 23, 2018, regarding AA and CA and their potential placement with the Garfiases. The CASA report stated that CA's "demeanor changes when we talk about being at home. He was uncomfortable when he was asked [about] his mother letting/asking him to talk to Frank." The report also provided that AA told the CASA volunteer that she does not feel safe at home. CASA volunteer Felicia Patterson testified that about a week before the emergency staffing, she spoke to AF, who mentioned that her mother planned to marry Cordova and have children with him. Patterson explained that when she tried to talk to CA about Cordova, he became quiet and reserved and that CA "just stopped talking." Patterson stated that since the April 3 staffing, CA's behavior at school and his grades had deteriorated. Patterson explained that CA had not recanted his statement to her that Cordova had sexually abused him and that she believed the children were being pressured by their mother "to say certain things" and that "they look for her approval before they do anything." Patterson stated that Arazola blamed her parents, her sister, and AF for her current situation.
Arazola testified at the hearing that she initially had denied having violated the no-contact order but that she later admitted the phone calls with Cordova had occurred and that the children had been on speaker phone during the conversations. Arazola stated that she was aware that CA had stated that Cordova sexually abused him but that she did not believe Cordova was a dangerous person for her children to be around and that she had not gotten "the full evidence" regarding the allegations of sexual abuse. Arazola testified that she had ceased all contact with Cordova, that she had returned his belongings to his family, and that she had changed her phone number. Arazola denied telling Cordova to write her letters using a false name. Arazola explained that though Cordova considered her his fiancée, she did not feel the same way. During Arazola's testimony the following colloquy occurred:
ATTORNEY AD LITEM : I've listened to, oh gosh, probably four hours' worth of conversations, at least, between you and Frank. In every conversation, you guys talk about getting married, starting your family. He's going to buy you a washer and dryer when he gets out. So, you're denying all that?
ARAZOLA : That's all-like I said, it's true what he said, but it doesn't mean that was going to happen.
Arazola also testified that she did not support the Department's recommendation to change to goal of the case from reunification to permanent-relative custody with the Garfiases because her stepfather, Gabriel Garfias, had sexually abused her, and her mother had not done anything about it.
Arazola's oldest child, AF, testified that she had never considered Cordova a father figure and that she had been uncomfortable around him when she and her siblings had lived with him because he had brought men into the home and because he drank alcohol. AF told the court that she believed her grandparents could provide a safe, stable home and a healthy environment and that she did not worry that her grandparents could protect CA. AF described the Garfiases as "really good" and opined that "they'll do anything for those kids to stay together." AF stated that she did worry about her grandparents' safety because "my mom, she can lose her temper fast." AF recounted that she had told the CASA worker that AA had informed her that she and her brother were talking to Cordova and that things with Arazola were "not good."
Based on the parties' stipulation, the court ordered that AF remain in the permanent custody of her aunt. As to AA and CA, the circuit court changed the goal to permanent-relative custody with their grandparents, and Arazola was allowed supervised visitation. The circuit court based its decision on Arazola's intent to reunite with Cordova on his release from prison. The circuit court found that Arazola posed the potential for harm to the juveniles because she had violated the no-contact order by allowing the children to have contact with Cordova.
On July 9, 2018, the circuit court entered a case-closure order. The court stated that it had considered all the evidence and testimony and the best interest of the children, and it found that the juveniles did not require further Department services, that the Department had made reasonable efforts to provide family services, and that the case was closed. Arazola filed a timely notice of appeal.
II. Issues on Appeal
A. Permanent-Relative Custody
On appeal, Arazola argues that the evidence does not support the circuit court's decision to abandon the goal of reunification and award permanent custody to the Garfiases because the Department did not prove by a preponderance of the evidence that Arazola posed a danger to the juveniles' safety. We disagree and affirm.
The burden of proof in dependency-neglect proceedings, including permanency-planning hearings, is by a preponderance of the evidence. Anderson v. Ark. Dep't of Human Servs. , 2011 Ark. App. 522, 385 S.W.3d 367 (citing Ark. Code Ann. § 9-27-325(h)(2)(B) (Supp. 2017) ). The standard of review is de novo, but we, giving due deference to the circuit court's superior position to observe the parties and judge the credibility of the witnesses, will not reverse the circuit court's ruling in a dependency-neglect case unless the ruling was clearly erroneous or clearly against the preponderance of the evidence. Churchill v. Ark. Dep't of Human Servs. , 2012 Ark. App. 530, 423 S.W.3d 637. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. Deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to use to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Ashcroft v. Ark. Dep't of Human Servs. , 2010 Ark. App. 244, 374 S.W.3d 743.
Arkansas Code Annotated section 9-27-338 lists the permanency goals that a circuit court can consider at the permanency-planning stage of dependency-neglect cases. The goals are listed "in order of preference," and the court must select a goal based on the best interest, health, and safety of the juvenile. Ark. Code Ann. § 9-27-338(c).
The first goal is placement of the juvenile with a fit parent. Ark. Code Ann. § 9-27-338(c)(1). The second goal is to return the juvenile to the guardian or custodian from whom the juvenile was initially removed. Ark. Code Ann. § 9-27-338(c)(2). The third goal allows the court to authorize a plan to place custody of the child with a parent if (1) the parent is complying with the case plan and making measurable progress; (2) the parent is making significant progress toward remedying the conditions that caused removal or that prohibited the placement of the juvenile in the home; and (3) the return of the juvenile will occur within three months. Ark. Code Ann. § 9-27-338(c)(3)(A)-(B) ; Lansdell v. Ark. Dep't of Human Servs. , 2016 Ark. App. 433, at 8, 502 S.W.3d 579, 583. For the third goal, the burden is "on the parent to demonstrate a genuine, sustainable investment in completing the requirements of the case plan and following the orders of the court in order to authorize a plan to return or be placed in the home as the permanency goal." Ark. Code Ann. § 9-27-338(c)(3)(iii). The fourth goal authorizes the Department to file a termination petition in the case, and the fifth goal authorizes a plan for a permanent guardian. The sixth goal is permanent custodial placement with a "fit and willing relative." Ark. Code Ann. § 9-27-338(c)(6). A circuit court may bypass the first three goals and move to the sixth goal if there is evidence that placement with a parent poses a danger to the juvenile's safety. Lansdell, supra. The burden of proof in a permanency-planning hearing is preponderance of the evidence. Ark. Code Ann. § 9-27-325(h).
Arazola's argument that the circuit court erred in its potential-harm finding is twofold. First, she contends that the Department did not prove that she had a continued relationship with Cordova after the April 3 emergency staffing. Second, she argues that the Department's assertion that she posed a danger to AA's and CA's safety is undermined by the fact that it did not see fit to remove the children from her custody after it was discovered that she had violated the no-contact order. Neither argument has merit.
Arazola asserts that the Department's contention that the phone call occurred after the court's instruction to cease contact with Cordova is speculative and amounts to argument of counsel. Arazola explains that without a date stamp on the transcript of the phone call, the Department cannot prove that the phone call took place after the April 3 emergency staffing; thus, there is insufficient evidence to support the court's determination that she continued to have a relationship with Cordova after she had been told to end it.
Whether the transcript of the phone call bears the date of the phone call is irrelevant to our review and amounts to a request for the appellate court to determine the credibility of the witnesses, which we do not do. See Churchill, supra. We hold that the evidence and testimony supporting the circuit court's potential-harm finding is sufficient. At the permanency-planning hearing, the circuit court heard testimony that on March 28, 2018, Arazola went to the prosecutor's office to have the no-contact order lifted so that she could marry Cordova. The transcript of the phone conversation shows that Arazola recounted to Cordova that she had gone to the prosecutor's office to have the no-contact order lifted. It appeared that the prosecutor's office must have called the Department because the Department then went to AA and AC's school to investigate whether there had been a violation of the order. During the phone call, Arazola explained that she was in danger of having the children taken away from her because of her violation of the order. She instructed Cordova that he should "[o]nly write to us" and to use his aunt's name when he wrote the letters. She also told Cordova, "[D]on't call us until after my court" and that "when this is finished in court, I'll tell you more." Arazola and Cordova discussed the difficulties of getting married under the circumstances, and at one point, Arazola questions Cordova, "So then you don't want to be with me anymore or what?" Cordova assures Arazola, "I didn't say that." Other evidence also supports the court's finding that Arazola continued to have a relationship with Cordova. AF testified that her mother planned to marry Cordova as soon as he was released from prison. Felicia Kirksey testified that Arazola had put money into Cordova's commissary account and that Cordova's name was still on the lease on the house in which Arazola lived-where Cordova was to live upon his release from prison. At the permanency-planning hearing, Arazola testified that she did not intend to marry Cordova; however, she insisted that he was not a dangerous person for her children to be around and that she never "got the full evidence" regarding Cordova's sexual abuse of CA.
The crux of Arazola's sufficiency argument is that there was no proof that she continued to have a relationship with Cordova after the emergency staffing; however, both the transcript of the phone call and the testimony of the witnesses offered contradictory evidence. It is well settled that we will not reweigh the evidence on appeal, and credibility determinations are left to the circuit court. Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, 489 S.W.3d 186. In light of the evidence and testimony presented at the hearing, the circuit court's determinations that Arazola had not abandoned the relationship with Cordova and that that relationship posed a potential for harm to AA and CA are not clearly erroneous.
Arazola also asserts that the Department left the children in her care for two months after it was clear that she had violated the no-contact order and that the Department's inaction was proof that "at no time prior to the permanency-planning hearing did the Department feel that [she] was incapable of safely parenting her children, such that the children needed to be removed from the home." Again, she asks the appellate court to give greater weight to the evidence of the Department's decision to allow the children to remain in her custody until the conclusion of the permanency-planning hearing. We cannot say that the circuit court clearly erred in its determination that Arazola posed a potential for harm to the children if returned to her custody, and we affirm its decision to bypass the first five goals set forth in Ark. Code Ann. § 9-27-338(c) and grant permanent-relative custody.
B. Best-Interest Determination
Arazola also contends that there is insufficient proof to support the circuit court's finding that it was in AA and CA's best interest to award permanent custody to the Garfiases.
Specifically, she asserts that because the Garfiases were never called as witnesses or made parties to the case, the circuit court "had no opportunity to evaluate the couple before placing two young children in their home." Arazola cites no authority for her contention that custody can only be awarded to parties within the case and that the potential custodians must testify at the hearing to obtain custody. When a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. McKinney v. Ark. Dep't of Human Servs. , 2017 Ark. App. 475, at 17, 527 S.W.3d 778, 789.
Moreover, Arazola's best-interest argument is a request for this court to reweigh the evidence. Arazola contends that Gabriel Garfias's clear background and maltreatment-registry check, the approved home study, the family service worker's testimony that the Garfiases could provide an appropriate home, the favorable CASA report, the court's finding that the grandparents and the children have a close relationship, and AF's testimony that she believed her siblings were safe in their grandparents' home constitute scant evidence of the Garfiases' fitness and ability to care for the children. As we stated above, we will not reweigh the evidence on appeal, and credibility determinations are left to the circuit court. Newman, supra.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
Christy Wilson of the Craighead County Deputy Prosecuting Attorney's Office testified at the hearing that on March 28, 2018, Arazola came to the prosecutor's office requesting that the no-contact order be lifted so that she and Cordova could get married. Wilson testified that it was explained to Arazola that the judge who issued the order was the appropriate person to lift the order.
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PHILLIP T. WHITEAKER, Judge
Steven Burns appeals a Faulkner County Circuit Court order terminating his parental rights to his twin children, EB and LB, arguing there was insufficient evidence to support the circuit court's statutory-grounds findings. Because there was sufficient evidence on which the circuit court could find that Burns abandoned his children, we affirm.
I. Factual and Procedural History
Steven Burns and his ex-wife, Rachel Hendricks, are the parents of EB and LB. Burns and Hendricks have a history of dysfunctionality within their home, which has resulted in their recurring involvement with the Arkansas Department of Human Services ("the Department"). Even before the commencement of this case, they had their parental rights terminated to another child in a separate proceeding in another county, wherein Burns voluntarily relinquished his parental rights to that child.
In May 2017, the Department received a failure-to-protect referral, which alleged that Hendricks and Burns were selling drugs while their children, EB and LB, were present. At the time of this referral, the Department already had an open protective-services case involving EB and LB. The Department made contact with Hendricks. She denied selling or using drugs but tested positive for methamphetamine despite her denial. Hendricks also advised the Department that she and Burns were divorced, that he no longer lived in the home, that she had no idea of his current whereabouts, and that he rarely exercised his visitation although he stayed with them when he did.
Based on the foregoing, the Department exercised a seventy-two-hour hold on the children citing a substantial risk of harm due to drug use and parental unfitness, and the court entered an ex parte order for emergency custody. In that order, the court outlined the parents' history with the Department, including their past drug usage and their previously documented unwillingness and inability to cooperate with the Department to correct the issues that caused removal. Because the same issues were at play here, the court found that removal was necessary for the health and safety of EB and LB. The court also appointed counsel for both Hendricks and Burns.
Subsequently, the court conducted a probable-cause hearing, the hearing on adjudication, and three review hearings. Burns did not participate in any of these proceedings, because his whereabouts were unknown. Burns made his first appearance at the permanency-planning hearing conducted on May 1, 2018. By that time, the children had been in the Department's custody for almost a year, and the circuit court had already entered orders noting that Burns had not had any meaningful contact with the Department and had made no progress toward alleviating or mitigating the causes of EB and LB's removal from the home. More importantly, Burns testified and admitted that (1) he was aware when his children had been taken into custody, (2) he had made no attempt to contact the Department by phone or in person until approximately two months before the hearing, and (3) he had not seen his children since they came into custody. The court entered a permanency-planning order finding that Burns had failed to comply with the case plan and court orders; had made no progress toward alleviating or mitigating the causes of EB and LB's removal from the home; had not had any meaningful contact with the Department; and had not visited with EB and LB at any time while the case was pending. The court changed the goal of the case to adoption.
Based on the change of goal to adoption, the Department filed a petition for termination of Burns's parental rights, citing the following statutory grounds for termination: (1) twelve months outside the home of a noncustodial parent ( Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) )(Supp. 2017); (2) abandonment ( Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) ); and (3) aggravated circumstances based on abandonment and little likelihood of successful reunification ( Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a) ).
After a hearing on the petition, the circuit court entered an order terminating Burns's parental rights based on two statutory grounds: twelve months outside the home of the noncustodial parent ( Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) ) and abandonment ( Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) ). Burns now appeals, challenging only the statutory grounds for termination.
II. Standard of Review
On appeal, we review termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Dade v. Ark. Dep't of Human Servs. , 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the trial court's personal observations. Jackson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 440, 503 S.W.3d 122.
Our case law recognizes that the termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, 448 S.W.3d 735. In termination-of-parental-rights matters, the circuit court is required to follow a two-step process by finding first that the parent is unfit and second that termination is in the best interest of the child.
T.J. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997) ; Smith v. Ark. Dep't of Human Servs. , 2013 Ark. App. 753, 431 S.W.3d 364. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). As a result, the Department bears a heavy burden in seeking to terminate the relationship of parent and child. Fox , supra.
III. Statutory Grounds
On appeal, Burns challenges the sufficiency of the evidence supporting the statutory grounds found to exist by the circuit court. As one of its statutory grounds, the circuit court found that Burns abandoned EB and LB. See Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) (Supp. 2017). Burns contends that there was no evidence that he intended to abandon the children; rather, he asserts that his failure to maintain contact with the children was based on his misguided belief that it would help Hendricks's case. He argues that because there was no evidence of his intent to abandon his children, the court clearly erred in finding abandonment. We disagree.
"Abandonment" is defined in Arkansas Code Annotated section 9-27-303(2)(A) as follows:
(i) The failure of the parent to provide reasonable support for a juvenile 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;
(ii) The failure of a parent to support or maintain regular contact with a child without just cause; or
(iii) An articulated intent to forego parental responsibility.
See also Norris v. Ark. Dep't of Human Servs. , 2018 Ark. App. 571, at 4-6, 567 S.W.3d 861, 864-65.
Burns's intent argument does not address every subdivision of the statutory abandonment definition. Arkansas Code Annotated section 9-27-303(2)(A) does require an element of intent in subdivisions (i) and (iii); however, subdivision (ii) only requires a failure to support or maintain contact "without just cause." We now consider whether the evidence presented in this case was sufficient to support a conclusion that Burns failed to support or maintain regular contact with his children without just cause. See Ark. Code Ann. § 9-27-303(2)(A)(ii). We conclude that it was.
By his own testimony, Burns admitted that he purposely avoided involvement in the case. He knew that the children were in the custody of the Department; he understood that legal proceedings were being pursued, and he chose not to participate. Granted, Burns offered a myriad of reasons why he made this choice: he mistakenly believed that his involvement would hinder Hendricks's attempts to regain custody of the children; he was afraid; and he did not like or trust the Department from previous experience. The circuit court had a duty to not only hear this explanation but also to weigh it and judge its credibility. The circuit court was not persuaded by these explanations. As for the abandonment ground, the court made the following factual findings:
Specifically, [EB and LB] spent over one year in foster care, and Steven Burns had zero contact or visitation with the juveniles during that year. [Burns] failed to appear at court hearings concerning his children and did not maintain contact with [the Department] to inquire about the welfare of his children. [Burns] testified that he knew that his children were in foster care the entire time, and that he chose not to visit them. [Burns] gave a number of reasons for not visiting his children, including that he was scared, he didn't want to mess up [Hendricks's] case, and he didn't like [the Department] because of his prior case in White County. The Court finds that [Burns] made a choice to bury his head in the sand and that he clearly abandoned his children. [Burns] did, through his actions, demonstrate an intent to forego [sic] his parental responsibilities toward [EB and LB].
Clearly, Burns's explanations for his absence were considered by the court and deemed unjustified. Given his demonstrated credibility issues, the court's findings in this regard were not clearly erroneous. The circuit court was correct; through his actions, Burns abandoned his parental responsibilities toward EB and LB without just cause. We find no error in this regard.
Burns further argues that the familial bond is extremely important and that his rights should not be terminated because he has been a less than model parent. He specifically notes that once he began participating, he complied with what was expected of him; he tested negative on urine samples and visited with his children. He, however, began to visit the children only after the permanency-planning hearing. Unfortunately for Burns, a parent's overtures toward participating in the case plan or following the orders of the court following the permanency-planning hearing and preceding the termination-of-parental-rights hearing is an insufficient reason to not terminate parental rights. Ark. Code Ann. § 9-27-341(a)(4)(A). Moreover, this court has repeatedly held that a child's need for permanency and stability will override a parent's eleventh-hour efforts. Gonzalez v. Ark. Dep't of Human Servs. , 2018 Ark. App. 425, 555 S.W.3d 915 ; Burleson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 616, 535 S.W.3d 655.
Burns further maintains that the Department owed some responsibility for failing to notify him of the case against him, the dates of staffings and hearings, and his right to visit his children. However, the evidence at the hearing revealed that Burns's whereabouts were unknown and that he failed to contact the Department despite his knowledge that his children had been removed from Hendricks's care. In fact, the court specifically found that the Department "stood ready and willing to provide Mr. Burns with the same services offered to Ms. Hendricks during this case, but unlike Ms. Hendricks, Mr. Burns chose not to avail himself of those services." We are not left with a definite and firm conviction that a mistake has been made in this finding.
Finally, Burns contends that if he had counsel before the termination hearing, counsel could have corrected his mistaken belief that it was better for him to absent himself from the proceedings. However, this argument does not change the facts that Burns was absent from the lives of his children for an entire year (one-third of the children's young lives), that the court had appointed him counsel very early in the process, and that his failure to participate contributed to his lack of legal advice. Moreover, the termination statute does not require that the abandonment last for any particular length of time. Norris , supra (three short sporadic visits in nine months before permanency planning); L.W. v. Ark. Dep't of Human Servs. , 2011 Ark. App. 44, 380 S.W.3d 489 (no contact for five or six months).
Burns also challenges the circuit court's finding regarding the other statutory ground for termination. However, our court has made clear that only one ground is necessary to terminate parental rights. Riggs v. Ark. Dep't of Human Servs. , 2019 Ark. App. 185, 579 S.W.3d 129. Thus, we need not address the other ground found by the circuit court.
Affirmed.
Virden and Gladwin, JJ., agree.
In addition to Burns and Hendricks's children, Hendricks has given birth to three other children. Her rights to one of those children has been terminated, and her other two children are in the sole custody of their father. Hendricks's parental rights to EB and LB were also terminated in this action; however, Hendricks is not a party to this appeal.
The Department removed the children on May 9, 2017.
The court directed the Department in every order to make diligent efforts to locate Burns.
The petition also alleged that termination of Burns's parental rights was in the best interest of the children.
Burns admitted providing false testimony to the circuit court concerning his employment, his relationship with Hendricks, and his living arrangements. He also denied drug use but tested positive for controlled substances on a hair-follicle test. | [
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BART F. VIRDEN, Judge
Phyllis Johnson appeals from the Garland County Circuit Court order denying her request for alimony. On appeal, Phyllis argues that the circuit court failed to consider testimony and evidence regarding her need for alimony and her ex-husband's ability to pay. We affirm.
On February 16, 2017, after fifty-eight years of marriage, Phyllis Johnson filed a complaint for divorce from bed and board against Walter Johnson. Later, after Walter counterclaimed for divorce, Phyllis amended her complaint to a claim for absolute divorce.
The parties negotiated a partial settlement agreement that was entered on September 19, 2017. Phyllis received a total value of assets of $869,715 that included a Merrill Lynch IRA, a Merrill Lynch Roth IRA, three Bank of America accounts, the cash value of an insurance policy, the debt-free marital home and contents, a subdivision lot, her car, a pontoon boat, one-half of a State Farm insurance policy, and one-half of the "Harris" bank account. Walter received $827,193 in assets that included two Merrill Lynch IRA accounts, three Merrill Lynch "kids" accounts, an Arvest account, the cash value of the "MTL" insurance policy, the cash value of the Northwestern Mutual Whole Life policy minus the costs of funding the State Life policy, a condominium in Chicago, two vehicles, one-half of the State Farm money-market account, one half of the Merrill Lynch CMAM account, and one-half of the "Harris" bank account. Phyllis received $7,000 of the cash value of the remaining Merrill Lynch IRA, and Walter received $110,000 of the cash value. Both parties retained any debt in their names. The parties reserved the issue of alimony for the court to decide.
The circuit court held a bench trial regarding the issue of alimony. At the trial, Phyllis testified that on October 31, 2015, Walter left her and began living with his girlfriend in her home where he does not pay rent or utilities. Phyllis testified that she had been a homemaker, a wife, and a mother from the time she and Walter married in 1957 until their separation. When the children left the home, Phyllis attended college part time and earned a bachelor's degree in accounting. Phyllis explained that she did not go to school with the intent of making a career out of her degree but simply to "have at least as much education as [her] children." In 1995, Phyllis obtained an associate degree in interior design and worked part time on her own and for an interior-design firm. Phyllis testified that for the four to five years that she worked, she earned $20 an hour and divided her income into thirds: one-third for grandchildren, one-third for taxes, and one-third for spending money. Later Phyllis obtained certification as a Feldenkrais instructor, but she had not been "very successful" in this endeavor and had lost money on it. Phyllis testified that she receives $725 per month in social security benefits, which was her only income, and Walter receives $2,049 per month in social security benefits. Phyllis stated that she understood that she was eligible for an increase in the amount of social security benefits she receives. Phyllis testified that during the marriage, she used her inheritance to purchase and remodel their marital home, which she would not have done if she had known that Walter was going to leave her.
Phyllis submitted an affidavit of financial means showing $4,950.23 in monthly expenses, and she requested $4,000 in alimony to maintain her lifestyle. Phyllis asserted that Walter received a far greater monthly income, averaging around $8,725 according to the income tax returns from 2012 to 2016. Phyllis also argued that Walter had fewer expenses than she did and that he owned a condo in Chicago.
Walter testified that he was still paying the $800-a-month mortgage (plus $400 monthly POA due) on the Chicago condo and still owed around $52,000 on it. He explained that he planned to sell the condo and live off the proceeds. Walter described Phyllis's assets as "basically ... non-taxable" and estimated that "the balance would be $100,000 maybe $150,000 in her favor considering the tax vulnerability on the property items that are on my list." Walter testified that while they were married, their monthly expenses were in excess of $5,000 and that Phyllis's estimation of monthly expenses was reasonable. Walter explained that he did not think he and his girlfriend were going to break up, but if they did, he would have nowhere to live and would have to pay rent or a mortgage and utilities and related expenses. Walter did not provide a monthly budget, but he had previously stated that his monthly household expenses were around $840. At the hearing, he described various monthly expenses totaling around $2,600 including the condominium-related payments. He asserted that if he were required to pay the alimony Phyllis requested, "it would be skimpy for me," and he would have nothing left to leave the grandchildren.
After the hearing, the circuit court entered an order in which it found that the parties were married in 1957, Phyllis was seventy-eight years old, Walter was eighty-five years old, and they were both in good health. The circuit court found that the parties entered into a partial settlement agreement that divided their marital assets worth $1,696,908 and that Phyllis received $42,522 more than Walter. The circuit court found that each party received social security benefits but that neither party received income from a retirement plan or pension. The circuit court denied Phyllis's request for alimony, finding that "Plaintiff does not have a financial need for alimony. She negotiated a settlement with the Defendant giving her a greater amount of assets than Defendant and taking assets she wanted albeit less income producing than his."
Phyllis filed a timely notice of appeal. On appeal, Phyllis argues that the circuit court abused its discretion by not considering certain relevant factors in its denial of alimony.
Divorce cases are reviewed de novo. Webb v. Webb , 2014 Ark. App. 697, 450 S.W.3d 265. An award of alimony is not mandatory but is solely within the circuit court's discretion.
Mitchell v. Mitchell , 61 Ark. App. 88, 964 S.W.2d 411 (1998) ; we will not reverse absent an abuse of that discretion. Cole v. Cole , 89 Ark. App. 134, 201 S.W.3d 21 (2005). An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Foster v. Foster , 2015 Ark. App. 530, 472 S.W.3d 151.
The division of marital property and an award of alimony are complementary devices that may be utilized by the circuit court to make the dissolution of a marriage financially equitable. Webb , supra. The purpose of alimony is to rectify the economic imbalances in earning power and standard of living in light of the particular facts of each case. Kuchmas v. Kuchmas , 368 Ark. 43, 243 S.W.3d 270 (2006). The primary factors that a court should consider in awarding alimony are the financial need of one spouse and the other spouse's ability to pay. Gilliam v. Gilliam , 2010 Ark. App. 137, 374 S.W.3d 108. The circuit court may also consider other factors, including the couple's past standard of living, the earning capacity of each spouse, the resources and assets of each party, and the duration of the marriage. Johnson v. Cotton-Johnson , 88 Ark. App. 67, 194 S.W.3d 806 (2004). We adhere to no mathematical formula or bright-line rule in awarding alimony. Valetutti v. Valetutti , 95 Ark. App. 83, 234 S.W.3d 338 (2006). In matters of alimony, the need for flexibility outweighs the corresponding need for relative certainty. Evtimov v. Milanova , 2009 Ark. App. 208, at 8-9, 300 S.W.3d 110, 116. Discretion and flexibility are critical to the circuit court's ability to make the dissolution of the marriage as equitable as possible. Id.
Phyllis cites Halk v. Halk , 2009 Ark. App. 803, in support of her argument that the circuit court did not consider her need for alimony and Walter's ability to pay. Similar to the instant case, Nelta and Jim Halk had been married for forty-five years, Nelta had been a homemaker, and the marital assets were divided roughly equally between the parties. Unlike the instant case, Nelta was chronically ill, had large medical expenses, did not have any monthly income, and could not pay for her expensive insurance. By contrast, Jim possessed a half-interest in three companies and was in good health. Our court reversed the circuit court's denial of alimony and held that
[a]ppellant's uncontradicted testimony was that for the duration of the marriage, she did not work at the insistence of appellee. Appellant indicated in her financial-means affidavit that she has no income. Furthermore, appellant has a medical condition that has resulted in substantial ongoing medical expenses. As noted above, the primary purpose of alimony is to rectify any imbalance in the parties' earning power and standard of living. Under the facts of this case, the denial of alimony to appellant was an abuse of discretion.
Id. at 4.
Here, the circuit court's assessment that Phyllis did not require alimony is supported by the evidence and testimony: Phyllis is in good health, does not have large medical expenses, receives social security benefits with the potential for an increased amount, and negotiated a settlement agreement for more than half of the marital assets.
Another important difference between Halk and the instant case is the circuit court's exercise of its discretion. In Halk , we found that "[i]n the decree, the circuit court simply denied appellant's request for alimony without any further explanation. Our review of the record indicates several factors that we are left to conclude were overlooked by the circuit court in deciding to deny appellant's request for alimony." Id. at 3-4. In the instant case, the circuit court clearly considered the length of the marriage, the parties' age and relative health, the division of the property and the assets' earning potential, each party's monthly income, and Phyllis's financial need. We recently held in Trucks v. Trucks , 2015 Ark. App. 189, at 5, 459 S.W.3d 312, 316,
Although the facts of this case would arguably support the denial of an award of alimony if that had occurred, it is not our duty under our standard of review to simply substitute our judgment for that of the circuit court, which was in a far better position to judge the credibility of the witnesses. It is instead our duty to determine if the circuit court abused its discretion in making its findings regarding the award of alimony.
We cannot say that the circuit court abused its discretion in finding that Phyllis had no financial need for alimony.
Phyllis also argues that the circuit court erroneously failed to consider Walter's ability to pay alimony, specifically, she argues that the circuit court failed to consider the fact that Walter's girlfriend paid the mortgage and the utilities for the house in which they lived. She argues that in Craig v. Craig , 2010 Ark. App. 718, 379 S.W.3d 590, this court found that it was proper to consider expenses paid by the ex-husband's live-in girlfriend in determining his ability to pay. Here, the circuit court did not specifically acknowledge the testimony that Walter's girlfriend paid the mortgage and utilities; however, it did consider the economic balance between the parties. The circuit court found that Phyllis had chosen her greater share of marital assets, that neither party received a pension, and that both parties received social security benefits. At the trial, there was testimony that neither party had a mortgage or paid rent for the home in which they lived, that both parties were likely to have to draw on the principal of their assets to maintain the same standard of living they had before the divorce, and that the tax liability associated with Walter's assets was much greater than Phyllis's. The focus of the circuit court's order is the economic balance between the parties and Phyllis's lack of financial need for alimony, and in light of the testimony and evidence presented to the court, we cannot say that the circuit court's denial of alimony was made thoughtlessly and without due consideration.
Though we might not have come to the same conclusion as the circuit court, under the specific facts of this case we find no error in the circuit court's determination that Phyllis does not have a financial need for alimony. An award of alimony, if one is awarded at all, is measured by the particular facts and circumstances of the parties before the circuit court. Whitworth v. Whitworth , 2009 Ark. App. 410, 319 S.W.3d 269. We are to determine only whether the alimony decision is reasonable under the circumstances. Id.
Affirmed.
Abramson and Hixson, JJ., agree.
During the marriage, the parties purchased a joint insurance policy intended to provide long-term care for both parties. The parties agreed that Walter would withdraw $185,000 from the Northwestern Mutual account and deposit the money into an interest-bearing account in both parties' names. The money would be used to pay the premiums on the long-term-care policy, and the parties would retain joint ownership of the policy.
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WAYMOND M. BROWN, Judge
Appellant Bradley Wiseman (Brad) appeals from an order of the Marion County Circuit Court declining to admit a June 3, 2015 will to probate. The court found that Brad failed to rebut the presumption that Patsy Malenke was under undue influence at the time she signed the will in question. Brad argues that the court erred by: (1) shifting the burden of proof and employing the wrong standard and (2) finding that he did not meet the burden. We affirm.
Patsy died on June 28, 2015, at the age of 75. At the time of her death, she was survived by three children (Michael Wiseman, Teresa Wiseman Keeter, and Brad Wiseman) and five stepchildren (Brian Malenke, Teri Gisi, Robin Hunsperger, Jacob Schmitt, and Joe Schmitt). Her real and personal property was valued at $152,000, according to the petition to probate Patsy's will filed by Brad on October 22, 2015. The will in question was dated June 3, 2015, and left most of Patsy's estate to Brad. The June 3, 2015 will revoked an earlier will dated July 27, 2010, which left fifty percent of Patsy's estate to be equally divided by her children and the remaining fifty percent to be equally divided by her stepchildren. On November 6, 2015, Patsy's remaining survivors filed a will contest. They alleged that the 2015 will was invalid because it was executed under undue influence or duress and because Patsy was incompetent at the time of the will's execution.
A hearing took place on November 16, 2016. Dr. Gary Linker, a psychiatrist, testified that Patsy was admitted into North Arkansas Medical Center on June 15, 2015, based on a referral from Dr. Richard Chitsey due to hallucination and paranoia. He stated that he met Patsy on June 16 and that although she knew her name, she was unable to provide other basic details regarding her life due to her dementia. According to him, Patsy was very confused, disorganized, and scared throughout her stay at the hospital. He testified that Patsy was administered the St. Louis University Memory Scoring test (SLUMS test), which only required basic information, and that she scored 1 out of 30, which indicated advanced dementia syndrome. He stated that there was also suspicion that Patsy had a stroke. He said that the family history he obtained showed that Patsy's dementia had been progressing over time, but had sped up rapidly. He testified that she was discharged on June 24, 2015, with a very poor prognosis. He opined that at the time of Patsy's discharge, her brain was in "failure mode." He further testified:
I cannot say whether or not she had the capacity to sign a will on June 3rd, as people can have lucid intervals and I had not treated her prior to June 16th. I can say on June 16th when I saw her first, she did not have the capacity to do anything complex. Based on her condition when I first saw her, that perhaps a fall or stroke could have caused her to deteriorate quickly enough to have been fine on June 3rd and then in the condition I saw her in on June 16th. It should be noted that she had an urinary tract infection upon being admitted on June 16th, and any sort of infection coupled with dementia can contribute to dementia and delirium. Also changes in environment can make you more susceptible to delirium. What made me think the signs of dementia were not based on the infection was the severity of the symptoms at the time I saw her.
I could say she was possibly impaired on June 3rd, but I could not say she was totally impaired. People with advance[d] dementia and severely advanced dementia do have the ability to make decisions. Dr. [Geoffrey] Dunaway's prior diagnosis of hallucinations and delusional thoughts would not change my opinion about her status on June 3rd. I worked with a judge who had a stroke and had very similar problems as [Patsy], but then he returned to the bench. Dementia and its symptoms can be very complex. The infection or a fall or something else could render her temporarily incapacitated and then she could be fine again. There is no way to say how she was on a day in which I did not see her, again when I saw her on the 24th, there was no way she could make a complex decision. Her SLUMS exam from February 24, 2014, would not change that opinion, because there are many factors that could have been in play that day. She could have times of being fine and periods of delirium and that is the bottom line. Even if she would have scored a 30 on the SLUMS exam, she could have still been incapable of complex decision close thereafter. In general, as the dementia disease progresses, dependency increases. Removal from familiar environments can cause dependence and confusion. Restriction from family and friends can cause increased dependency. The medications used to treat symptoms of dementia could diminish one[']s mental capacity. Her discharge summary referred to her dementia as chronic, which means had lasted longer than six months.
On cross-examination, Dr. Linker stated that he could not state whether or not Patsy was under undue influence at the time she executed the will in question. He stated that Dr. Chitsey's notes indicated that Patsy had been hallucinating and delusional and that was why she was referred to Dr. Linker's facility. He testified that he had never had a situation where Dr. Chitsey "would have seen a patient whom needed to be referred to [Dr. Linker], but he failed to do so, based on their mental impairment." He admitted that Dr. Chitsey's notes from June 3, 2015, indicated that Patsy was seen by him and was "having a good day." He testified that he learned on the day of the hearing that Dr. Dunaway had diagnosed Patsy with mild vascular dementia. He said that Patsy's condition did not improve while she was hospitalized. He opined that moving a patient in need of help could lead to failure due to the change. He stated that Patsy was given medication to sleep because her lack of sleep was an ongoing issue for her. He indicated that sleep was very important to someone with dementia. Dr. Linker stated that Patsy was in his facility for nine days, but he only spoke with Brad and Brad's wife, Kim, during that time.
On redirect, Dr. Linker stated that a period of hallucinations from February 2014 to May 2015 would be a potential symptom of dementia. However, he stated that cutting up clothing with scissors would be more of a disorganized behavior due to being overwhelmed and confused. He said that the disorganized behavior could wax and wane depending on how well the person slept. He also admitted that disorganized behavior could be a symptom of dementia. He testified that Dr. Chitsey's notes from June 13, 2015, indicated that Patsy's altered mental state had been going on for quite a while and that he took that to mean more than two weeks. He stated, "I have seen people who hallucinate robustly but they have an amazing ability to recall how much money they have and the names of their kids, etc."
On re-cross, Dr. Linker stated that even a lay person would have been able to recognize Patsy's poor mental condition on June 15, 2015.
Whitney Wiseman, Patsy's granddaughter, testified that she began living with Patsy in 2008 after Patsy's second husband passed away. She stated that Patsy lived in the home until May 2015, when she moved in with Brad. She testified that no one discussed Patsy's moving out with either her, her father, or her aunt. She said that Patsy had a mini stroke in February 2014 that changed her. She stated that after the stroke, it was decided that Patsy needed 24-hour care. Whitney said that she took care of Patsy at night and that Atlas, a home-health agency, took care of Patsy during the day. She stated that it was Brad's responsibility to take Patsy to her doctors' appointments but he did not care for Patsy after the stroke. She testified that as a result of the stroke, Patsy would hallucinate and see things, pretend she was sewing, get agitated, forget how to smoke her cigarettes, and get up at night. She also stated that Patsy thought she was still married to her first husband, whom she divorced in the 1990s. Whitney testified that most of Patsy's days were bad after the stroke and that Patsy sometimes did not remember her children's and grandchildren's names. She said Brad picked up Patsy's prescriptions, and she gave them to Patsy. She stated that she considered herself Patsy's primary caregiver during the time she lived with Patsy. She indicated that Patsy had fallen a couple of times, which led to her having to get a walker. She further stated that there "was a clear difference in [Patsy] mentally and emotionally after she had a stroke."
On cross-examination, Whitney stated that she lived in Patsy's house until after Patsy died. She said that she and Brad did not talk because they did not get along well. She admitted that she had no idea if Brad visited Patsy during the day because she worked, and would only know that information if Patsy told her. She said that she took care of Patsy's bills because Patsy could not "fill it out." She stated that her older sister would help Patsy with her bank statement so that she knew how much money she had. She said that Patsy informed her on May 25, 2015, that she was moving in with Brad; however, she stated that she believed that it was Brad's decision because Patsy indicated that she wanted to live in her house. She testified that Patsy did not sleep well and her days were bad after the stroke. Whitney stated that she never visited Patsy after Patsy moved in with Brad because she "never got a call or felt welcome." However, she acknowledged seeing Patsy once when Brad brought her back to get some of her things out of the house. She said that no one knew anything about Patsy's health until she went to the nursing home.
Teresa Keeter testified that she witnessed Patsy's behaviors as described by Dr. Linker and Whitney. She stated that she had regular contact with Patsy before Patsy moved in with Brad. She admitted that she did not have much contact with Patsy prior to the stroke in 2014. She said that after Patsy's stroke, she, Brad, and Michael put together a care plan to ensure that Patsy had someone with her 24 hours a day. She testified that Whitney and Lacey lived with Patsy so they could be with her at night. She indicated that she went to Patsy's on the weekends. She stated that Kim was supposed to be with Patsy during the day, but she only did so for about two weeks, and then hired Atlas to stay with Patsy during the day, which was paid for out of Patsy's account. She said that Brad did not participate in Patsy's daily caregiving but that he would visit Patsy and take her to the doctor. Teresa stated that Patsy stayed at her home one weekend and was delusional. She indicated that the delusional behavior was common. She testified that she and Michael were involved in Patsy's care from the time she came home after the stroke in February 2014 until she moved in with Brad. She said that Brad never informed her that he was moving Patsy in with him and that she had to hear it from Michael. She also stated that Brad did not tell her when Patsy was admitted to the hospital because Brad said that Patsy did not want anyone to know because they had not called or visited since she moved in with Brad. However, she stated that Brad came by her house and told her the plan the day before Patsy was moved to Creekside. She said that she saw Patsy at Creekside for a couple of days before she died, but that Patsy could not communicate. She testified that she did not call Patsy while she was at Brad's because she knew that she would not hear from Patsy. Teresa said that she would have visited Patsy in the hospital had she known Patsy was there. She stated that Brad informed her that he had power of attorney over Patsy right before Patsy died. She said that Brad had taken Patsy to make funeral arrangements in 2014.
On cross-examination, Teresa stated that the last time she took Patsy to the doctor was in January 2015 for a neck surgery. She said that she did not know where Brad lived, because
after mom and dad divorced, it split the family and Brad didn't have anything to do with us. My mom got mad at me for not disowning my dad after their divorce [so] she had nothing to do with me or my kids or any of the rest of the family until she married Papa Dale. She had called and invited me to the wedding sometime around 2000. I don't recall how long I went without talking to my mom, probably at least ten years. She was married to Papa Dale until he died maybe seven or eight years. I really can't say if she and Michael had the same falling out after the divorce, I think they had more contact than I did. Brad was her go-to guy. They never had a falling out.
She admitted that she borrowed $1,700 from Patsy that she did not repay it before Patsy died. She said that she had Brad's phone number, but that she never called after Patsy moved in with him, even though she had saw Patsy nearly every week.
On redirect, Teresa stated that Patsy lived about a month after she moved in with Brad. She said that she did not know why Brad changed Patsy's doctor. She stated that Patsy executed a will in 2010 after Papa Dale passed away. She said that Patsy had discussed the will with her and that it was Patsy's intention to divide everything in half and sell it. One-half would go to Papa Dale's children and half of it would go to Patsy's children. However, she testified that the new will left everything to Brad and everyone else was left out. She stated that she could not think of anything that would have made things bad again between her and Patsy.
On re-cross, she stated that although Papa Dale's kids did not help care for Patsy after he passed away, they would come to see Patsy. She said that Robin kept in touch with Patsy and that Brian came to see her some, too. She admitted that she and Patsy had an issue after the 2010 will because Patsy was mad at her and her daughter for talking about Brad and as a result, Patsy brought the divorce thing back up. She stated that they did not talk again until Patsy was hospitalized in 2014.
Robin Hunsperger testified that Patsy was her stepmother and that she loved Patsy. She stated that she lived about two hours away in Missouri, but she talked to Patsy about once a week. She said that Patsy used to live next door to her in Missouri and that she would see her daily. However, she said that they kept in contact with each other after Patsy moved back to Arkansas. She stated that she and Patsy would talk on the phone about the Bible. She testified that after Patsy's stroke in 2014, their conversations were still normal. She stated that it got to the point where Patsy would need help with her Bible verses and that she would have to finish Patsy's sentences. Robin testified that she observed Patsy's condition deteriorate after the stroke. She stated that she learned Patsy moved in with Brad after Patsy would not answer her phone. She said that Brad finally got in touch with her after they played "phone tag." She testified that she called Brad's house and spoke with Patsy, but the conversations were not good and Patsy was agitated and could not explain things. She said that about two weeks before Patsy died, it got to the point that she could no longer interpret Patsy's stories or make sense of them. She stated that during a conversation where Patsy was confused, Kim took the phone and said that she would give Robin her number. She said that she did not know "why they did that."
On cross-examination, Robin stated that she drove to see Patsy four or five times after Patsy needed 24-hour care. She stated that she visited with Patsy at Creekside and at Patsy's home before then. She said that she called Brad because she was unable to contact Patsy and she knew that Patsy did not like to call people. She stated that Patsy knew who she was when she called her.
Guila Cunningham testified that she had known Patsy for many years and that they were friends off and on throughout the years, but they became closer in 1994 when Patsy got divorced. She stated that they maintained that close relationship until Patsy died. She said that they became really close the last few years because they both were retired. Guila stated that she informed Patsy that she had her will drafted to leave everything to her middle son because he was the only one to do anything for her. She said that she and Patsy talked often and that Brad would bring Patsy to spend the night with her because her home was quieter. She testified that she knew Patsy had some problems, but she did not know what Patsy's diagnosis was. She stated that they talked a lot about their past, present, and future after Patsy's stroke. She said that the only problem she noticed with Patsy was that Patsy could not use her hand well and had trouble holding her cigarette. She stated that she sometimes had to light Patsy's cigarettes for her. She testified that Patsy was depressed because of the living situation at her home. Guila testified that she never saw Patsy in a condition in which Patsy did not know what she was doing. She stated that Patsy knew who her children were.
Kelly Maddox testified that she worked as a legal assistant for attorney Andrew Bailey. She stated that she had prepared and witnessed wills as part of her job. She identified her signature on Patsy's 2015 will. She said that she was familiar with the capacity a person must have to execute a will and that she would not have signed as a witness if Patsy was not orientated to time and space.
On cross-examination, Kelly stated that Mr. Bailey did not prepare Patsy's will. She stated that she witnessed Patsy's will signing as a professional courtesy to Jeremy Friend. She said that she was only testifying to the contents of the affidavit or proof of will because she did not speak to Patsy before she witnessed the will.
Jeremy Friend testified that he was a solo-practitioner attorney, and had been so for six years. He stated that Patsy was his client. He said that he remembered meeting with Patsy as a client on three occasions: March 2015, May 2015, and June 2015. He stated that Patsy came to him in March to have a power of attorney, living will, and a healthcare proxy created. He said that the power of attorney and healthcare proxy were granted to Brad. According to Jeremy, Patsy's overall health seemed to be fine. He stated that she remembered him and his secretary. He testified that Guila was his grandmother and that he may have met Patsy one time at Guila's house. He stated that Patsy mentioned changing her will when she came to see him in March 2015, and he told her to bring him a copy of her will and he would look at it and see what changes she wanted to make. He said that Brad drove Patsy to the appointments; however, he never participated in the discussions of Patsy's testamentary wishes. He testified that in mid-or late May 2015, Patsy came back with her old will and told him what she wanted to do. He stated that she understood that she owned her home, and she knew who her children were, because she specifically wanted them out of the will. He said that Patsy did not seem to be under duress and there were no signs of coercion. He testified that he would not have prepared the will if he had suspected anything of that nature. Jeremy stated that he never had direct discussions with Brad, who may have been sitting there, but that Patsy told him herself what she wanted. He said that when Patsy came back June 3, 2015, to execute the will, Brad and Kim were with her. However, he stated that Patsy reiterated her intentions at that time. He said that Patsy seemed to have the same condition as previous visits, except her right hand appeared to have a tremor in it. He testified that Patsy was lucid and knew what she was doing. He continued,
I do the same thing in all my will signing ceremonies. I sit them down and go over the will provisions and make sure they know what they are doing. I never discussed the contents of the will with Brad. He may have called to set the appointment up for his mom. I know the requirement of sound mind for the execution of a will, and [Patsy] wanted to cut her other kids out because they didn't do anything for her and took advantage of her. She showed no signs of hallucinating or being out of touch, she remembered me and my secretary. She knew what she was doing. She knew where she was and what day she was supposed to be here. I have no second doubts about her capacity that day.
On cross-examination, Jeremy stated that he was aware that Brad made the appointment and drove Patsy to it, but Brad did not sit in on the March meeting. He acknowledged that the power of attorney in March created a fiduciary relationship between Brad and Patsy. He stated that he did not remember directing anyone to go see Dr. Chitsey on the day the will was signed. He denied knowing Dr. Chitsey or why they would have gone to Dr. Chitsey in Harrison before coming to his office. He stated that there was no connection between that appointment and the appointment at his office.
Jeannie Booth testified that she worked at her son, Jeremy's, law office, typing wills and executing wills. She stated that she was familiar with Patsy, and that she was a witness on the day Patsy signed her will. She said that she and Patsy were joking and laughing and that Patsy was the same person she had known for years. She testified that Guila is her mother and that Guila and Patsy had been friends for years. She stated that there was no indication that Brad was influencing Patsy's decisions. She opined that Patsy knew what she was doing.
Brad testified that he lived in Peel, Arkansas, and had been there over twenty years. He stated that Patsy was his mother. He said that Patsy started talking about changing her will in 2013, but that he just put her off hoping that she would leave it alone. He stated that Patsy's desire to change her will got stronger after she got sick and went to see Jeremy in March. He said that he took her back so that she and Jeremy could talk about it. He stated that he did not want Patsy to change the will because he knew "this [was] where [they] would be." He testified that he told Patsy that a will change would cause a big fight, to which she replied it was her money to do with as she pleased. Brad testified in pertinent part:
When my mom and dad got divorced in the mid 90's, my mom and Teresa had a falling out because she turned her back on my mom and went with my dad who had had multiple affairs on her. Mom felt that was bad. Teresa and Mike had both sided with dad and I had sided with mom. Mom and Teresa had started to talk before mom's second marriage. They then had another falling out before mom went to the hospital for her stroke in February 2014. Mom's health did take a turn for the worse when she had her first stroke.
To hear the rest of them tell it, mom ... was so bad off she couldn't do anything for herself and that's not true. She would have hallucinations when she was not sleeping right. When they would give her medicine to help with the sleep, her hallucination would get better. We made the decision to keep mom at our house after we were keeping her for weekends in April and May of 2015. She started not wanting to go home and wanted to stay with us. She had wanted us to move to her house but I told her, no but she could stay with us. Whitney and her son were living in mom's house at that time. Whitney's boyfriend was living there too. They weren't paying any rent. They testified I didn't help at all and only for a couple weeks, but that was the plan when we left the hospital. My wife would take a couple weeks off work and look after mom until Atlas could get set up. Atlas is a home healthcare business. Atlas lasted for quite a while. They did the cleaning, fixed her meals and bathed her if needed. They came every day. Whitney did not do as much as she testified, because Atlas was already doing it ... There was never a conversation between me and my siblings about moving mom. Mom said she wanted to move and [I] told her she better tell them. She said she didn't have to tell anyone what she was doing. My life was not made easier by moving mom in with me. When we moved her in, we were entirely responsible for her care. I never hid mom from anyone. My phone number is in the phone book if anyone doesn't have it. Both my siblings both have my cell phone number. They never called asking about mom. Robin did call my mom. I'm not surprised that Teresa and Mike wouldn't try to check on mom if they had to talk to me. I knew they would be mad and mom said, "Son, they can't hate you more than they already do." We tried to avoid each other, because I knew how the[y] felt about me. I did go over there quite a bit, but the arrangement was that they would be there to help because Whitney lived there. I switched her from Dr. Dunaway, because she was taking so much medicine and things weren't improving, so she wanted to try a different doctor. We wanted a second opinion because she was still having trouble sleeping. Chitsey was my doctor and I like him so we tried him. We had an appointment to see Chitsey on the 13th of June and we had gotten mom ready and when we went to get her from the living room, she was just out of it. She looked like she had a stroke. We called an ambulance. They had to carry her out. [The] paramedics said she became conscious when they got to Harrison. Something happened to mom that morning. It was so bad we called the ambulance. When we got to Harrison, she could talk but it didn't make sense. Her face was droopy. After she was admitted in the hospital, she said not to call Teresa and Mike because they hadn't bothered to check on her in the last six weeks. Mom never got over them siding with dad in the divorce. She talked about it all the time.... I never asked my mom to change the will. In fact, I asked her not to. Mom was discharged from the hospital to Creekside nursing home. I told Mike and Teresa she was going there.
The deposition testimony of Dr. Dunaway was admitted into evidence. Dr. Dunaway testified that he had been in family practice for thirty-four years. He stated that Patsy was a patient of his for several years before she was admitted into the hospital on February 22, 2014. He said that upon her discharge, he diagnosed her with mild vascular dementia, which is caused by a stroke or other vascular change. He testified that vascular dementia could be static until something happened or it could move rapidly. He opined that Patsy's hallucinations could be from delirium from being in a strange setting and that she may have had sundowners, where the hallucinations were brought on at nighttime. He said that it was associated with dementia. Dr. Dunaway stated that Patsy took a SLUMS test on February 24, 2014, and scored an 8 out of 30, which showed mild cognitive impairment. He said that a CT scan performed on her revealed plaque buildup, but there was no acute finding of a stroke. However, he stated that she was experiencing blood shrinkage in the head and hardening of the arteries, which are consistent with the onset of dementia. He testified that his note from October 22, 2014, indicated that Patsy was having impaired mental status and that she was developing a urinary-tract infection, which would exacerbate a cognitive impairment. He testified that his notes from November 2, 2014, showed that Patsy had been falling, seeing things, and talking to people who were not there, which were signs of dementia. Dr. Dunaway stated that he ordered an MRI on December 22, 2014, based on his diagnosis of dementia and that the report revealed that everything was stable since the CT scan performed in February, which he stated showed atrophy of the brain. He said that his next visit with Patsy was on January 29, 2015, and at that time she was developing a stenosis in the neck which could affect dementia, as it affected blood flow to the brain. He testified that he referred her to a doctor in Fayetteville for treatment. According to Dr. Dunaway, he made a referral on April 3, 2015, for Patsy to go to occupational therapy (OT) to get some help with self-care. He stated that the last time he saw Patsy in his office was on April 9, 2015. He testified that he did not know why they changed physicians. He further testified that
[a] change in environment can affect behavior and level of function, not sure that it would affect the course of the disease. Dementia is a bundle of symptoms. It would be difficult to ascertain she could be competent in June of 2015. Perhaps if she was having a good day and it was the middle of the day. I would have concerns on her competence and her ability to recall her estate. Some days she may know, some days, she may not. Dementia can make you rely on your caregivers more. I am familiar with Reliant Behavioral Health unit. They are a geriatric psych unit. Based on her records from June 15th or 16th her condition had worsened significantly since I last saw her as a patient. It would be pretty shaky to see her being competent a couple weeks before that.
On cross-examination, Dr. Dunaway testified that he believed he saw Patsy as a patient for roughly three years. He opined that Patsy's aggressive cigarette smoking played a role in her dementia. He stated that Patsy's orientation decreased over time. He said that the referral for OT was at the request of Patsy's family to see if she could improve her daily activities. He testified that Patsy was not a danger to others, but her falling could be a problem. He stated that she was able to communicate with him as a patient, but they never got very deep and he had to pry things from her; however, he attributed that to her being very private. He agreed that a person with dementia could have good days and bad days. He stated that the MRI was done to detect a stroke, but he was not able to prove she had a stroke even though she acted like she could have had one. He denied ever seeing Patsy hallucinate in his office. Dr. Dunaway stated that Patsy's last neurological exam was performed on February 27, 2015, and she was neurologically the same following her neck surgery. He said that he performed a on biopsy on Patsy on March 20, 2015, and that he also changed her medication to Seroquel to stop hallucinations. He testified that Patsy's baseline was about the same throughout his treatment of her, but he said that he gave her medicine during this time to help her sleep. He admitted that there was no record of psychosis on June 3, 2015, from North Arkansas Regional Medical Center. He stated that he could not say whether Patsy was competent on June 3.
On redirect, Dr. Dunaway stated that based on the records from June 17, 2015, Patsy no longer had executive function. He opined that her executive function was impaired from the first diagnosis of vascular dementia, despite her having good and bad days. He testified that without seeing Patsy on June 3, he would not be able to say how she was.
The trial court entered an order on July 19, 2017, finding the 2015 will invalid and void. The order stated in pertinent part:
The contestants also allege that [Patsy] was under undue influence when she executed the June 3, 2015 will. In March of 2015, [Patsy] signed a power of attorney, that was still in effect on June 3, 2015, appointing Brad Wiseman as her agent and attorney in fact. The power of attorney created a confidential relationship between Brad Wiseman and [Patsy], and triggered a presumption of undue influence that shifted the burden of proof to Brad Wiseman to prove by a clear preponderance of evidence that there was no undue influence. Cf. Birch v. Coleman , 15 Ark. App. 215, 691 S.W.2d 875 (1985) (confidential or fiduciary relationship was a guardianship rather than an attorney in fact).
[Patsy's] estate presented testimony from the attorney who prepared the June 3, 2015 will and others present when the will was signed that they saw no undue influence. In addition, Brad Wiseman denied that he had exerted undue influence on this mother to get her to change her will. Against this, there was evidence that [Patsy] was susceptible to undue influence including, but not limited to: medical records and testimony showing that [Patsy] was in poor mental health; that she had required full time care for a time in excess of a year prior to the sign[ing] of the June 3, 2015 will; that the June 3, 2015 will excluded children and stepchildren (with some of whom she had a close relationship); that the person with whom she had a confidential relationship was made her primary beneficiary; and that she had recently moved from her home into the home of the primary beneficiary.
The "clear preponderance" standard of proof requires a greater degree of proof than a simple preponderance, but less than proof beyond a reasonable doubt. See 32A C.J.S. Evidence § 1628. The court has considered all the evidence of record, whether or not discussed herein. After doing so, the court finds that the proponent of the June 3, 2015 will has failed to present sufficient evidence to rebut the presumed fact that [Patsy] was under undue influence at the time she signed the will in question. Therefore, the petition contesting the June 3, 2015 will should be, and hereby is, granted and the will is declared invalid and void.
Brad filed a timely notice of appeal on August 18, 2017.
On appeal, Brad argues that the trial court erred by: (1) shifting the burden of proof and employing the wrong standard and (2) finding that he did not meet the burden. Since these arguments are related, we will address them together. We review probate cases de novo, but we will not reverse the decision of the trial court unless it is clearly erroneous. We give due deference to the superior position of the trial court to determine the credibility of witnesses and the weight to be accorded their testimony.
In a typical will contest, the burden of proving the invalidity of a will due to lack of testamentary capacity, undue influence, or fraud is on the contestant. If the proponent of a will, however, procures the making of the will, then a presumption of undue influence arises, and the burden of proof shifts to the proponent to prove beyond a reasonable doubt that the testator had testamentary capacity and was free from undue influence in executing the will. If there exists a confidential relationship between the testator and the primary beneficiary, then a rebuttable presumption of undue influence arises.
To the extent that Brad argues that the court was wrong in shifting the burden to him, he is incorrect. The evidence showed that Brad, as Patsy's power of attorney, was in a confidential relationship with Patsy. He was also the primary beneficiary. Therefore, the court was correct in requiring Brad to rebut the presumption that he exerted undue influence over Patsy. The trial court stated in the order that Brad was unable to meet his burden of proof, which the court incorrectly explained was "a clear preponderance." According to the court, this standard required a greater degree of proof than "a simple preponderance," but less proof than beyond a reasonable doubt. However, there is no Arkansas case law making such a distinction. Thus, we consider "a clear preponderance" to mean nothing more than a preponderance. With that said, we now turn to whether Brad was able to rebut the presumption of undue influence, even under the lesser preponderance standard. We hold that he did not.
Undue influence on a testator may be inferred from the facts and circumstances. Patsy was diagnosed with dementia in 2014 after she suffered what appeared to be a stroke. After that time, her mental health declined, and she would hallucinate, among other things. Due to the decline in her mental state, the family decided that she needed 24-hour care. The evidence showed that Patsy's dementia could lead to a greater reliance on her caregiver(s). In March 2015, Brad took Patsy to Jeremy so that she could give Brad power of attorney over her. In May, Brad set up an appointment and returned with Patsy to Jeremy's office so that she could dictate what changes she wanted made to her will. It is unclear if he moved her in with him before or after this May visit. However, around May 25, 2015, Brad moved Patsy in with him without consulting with his siblings or nieces before doing so. Family members did not speak to Patsy after she moved in with Brad, and he and his wife were responsible for her care. At some point, Brad changed Patsy from her regular physician, Dr. Dunaway, to his physician, Dr. Chitsey. On June 3, 2015, Brad took Patsy to see Dr. Chitsey, and to Jeremy's office to execute her new will leaving the bulk of her estate to Brad. Brad's wife, Kim, was also present on this date. Robin, Patsy's stepdaughter, was able to speak to Patsy in the weeks prior to her death. During one phone call, when she was unable to make sense of what Patsy was trying to tell her, Kim took the phone and stated that she would give Robin her number. On June 13, 2015, Patsy's condition worsened to the point that she had to be taken to the hospital by ambulance. Brad did not notify anyone that Patsy was hospitalized. It was only when Patsy was being moved to Creekside that he notified them and let them know what was going on with her. In arguing that he rebutted the presumption of undue influence, Brad relies on the fact that he and Patsy had a close relationship, none of the witnesses present testified that there was undue influence, and Patsy discussed changing her will with Jeremy in March, several months before she moved in with Brad. However, cases involving undue influence will frequently depend on the credibility of witnesses, and we give due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Here, the trial court was presented with competing evidence and had to decide which side was more credible. Based on the evidence and testimony presented at the hearing, which has been extensively discussed above, we cannot say that the trial court was clearly erroneous when it found that Brad failed to rebut the presumption of undue influence. Accordingly, we affirm.
Affirmed.
Glover and Vaught, JJ., agree.
We note that the statement of the case in Brad's brief is deficient; however, it is not so bad as to frustrate our efforts to examine the points on appeal and address the merits. Therefore, we are not ordering rebriefing, but we encourage counsel to refer to Arkansas Supreme Court Rule 4-2 to ensure that all our briefing rules are followed.
It is also spelled Bryon in places.
The real property was valued at $150,000 and the personal property was valued at $2,000. However, Brad filed a petition for authority to sell the real property for $140,000 on January 6, 2016. The court filed an order authorizing the sale the same day.
She was discharged to Creekside Nursing Home.
Medlock v. Mitchell , 95 Ark. App. 132, 234 S.W.3d 901 (2006).
Id.
Parker v. Parker , 237 Ark. 942, 377 S.W.2d 160 (1964) ; Sullivant v. Sullivant , 236 Ark. 95, 364 S.W.2d 665 (1963).
Hiler v. Cude , 248 Ark. 1065, 455 S.W.2d 891 (1970) ; In re Estate of Garrett , 81 Ark. App. 212, 100 S.W.3d 72 (2003).
Simpson v. Simpson , 2014 Ark. App. 80, 432 S.W.3d 66 ; Medlock , supra.
Medlock , supra.
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BART F. VIRDEN, Judge
Roger D. Pleasant appeals the decision of the Pulaski County Circuit Court denying his motion to dismiss and denying his request to submit non-AMI verdict forms to the jury. We affirm.
On June 23, 2014, the State filed a complaint against Roger D. Pleasant; Information and Discovery, Inc.; PSG and Investigation, LLC; Accident Claim Service, LLC; Physician 1st Marketing Group, LLC; Network Collision Group, LLC; Rogerick Pleasant; James Hinton; and Brian Hinton. In its complaint, the State alleged that the defendants violated the Arkansas Deceptive Trade Practices Act (ADTPA), specifically, Arkansas Code Annotated sections 4-88-107(a)(1) (knowingly making false representations), and 4-88-107(a)(10) (any other unconscionable, false or deceptive act), and 4-88-108(2) (concealment, suppression, or omission of any material fact). The State asserted that Pleasant and his associates used false identities and falsely claimed association with insurance companies to solicit auto-accident victims on behalf of chiropractors. The State alleged that the defendants assured consumers that they would help obtain settlements and benefits in exchange for a percentage of the claim paid to the chiropractor. The State explained that the defendants harassed and deceived auto-accident victims, and their actions sometimes led to unnecessary medical treatment that resulted in a medical lien. The defendants failed to inform consumers of important information, including that a medical lien would result from chiropractic treatment. According to the State, consumers were also wrongly steered toward a chiropractor rather than a medical doctor, which in some cases led to further injury. The State requested an injunction against the defendants, and it requested that the court impose civil penalties pursuant to the ADTPA.
Appellants filed an Arkansas Rule of Civil Procedure 12(b)(6) motion to dismiss in which they argued that the State failed to plead facts sufficient to support a claim of fraud because the complaint did not name the victims or the chiropractors, and it did not specify the date of appellants' deceptive conduct. In a second motion to dismiss, appellants claimed that the "safe harbor" provision of the ADTPA bars the State's claims and that the State failed to join indispensable parties, namely the chiropractors for whom they procured clients. Appellants also adopted the motion to dismiss separately filed by defendants James and Brian Hinton in which they argued that the State's ADTPA claim amounted to a fraud claim and that the State failed to state its claim with particularity as required by Arkansas Rule of Civil Procedure 9(b).
The circuit court denied the motions to dismiss. After a three-day trial, the jury was presented with eleven general-verdict forms. The forms directed the jury to determine whether that defendant violated the ADTPA, and if so, how many violations had occurred. The jury found that Roger Pleasant had violated the ADTPA eight times, that James Hinton had violated the ADTPA three times, and that Brian Hinton and Accident Claim Service, LLC, were each liable for one violation of the ADTPA. The jury found that, pursuant to Arkansas Code Annotated section 4-88-113(d)(1), Pleasant was vicariously liable for all thirteen violations because he directly or indirectly controlled the other defendants. The circuit court assessed civil penalties of $2000 per violation against Pleasant. Appellants filed a timely notice of appeal.
I. The Safe-Harbor Provision
On appeal, appellants raise several points that are based on their assertion that as of August 16, 2013, the Arkansas State Board of Chiropractic Examiners (the "Board") has regulated and overseen procurers who help obtain clients for chiropractic practitioners. Appellants contend that because their conduct as procurers is regulated by the Board, the safe-harbor provision of the ADTPA excludes them from liability under the statute. Appellants' premise that procurers are regulated by a state agency and that their deceptive conduct is authorized by the Board is incorrect; thus, none of the related points on appeal have merit.
It is helpful to begin our analysis by reviewing the safe-harbor provision of the ADTPA. The ADTPA prohibits a variety of listed practices, including "knowingly making false representations," and "any other unconscionable, false, or deceptive act or practice in business, commerce, or trade." Ark. Code Ann. § 4-88-107(a)(1) & (a)(10) (Repl. 2011). Arkansas Code Annotated section 4-88-108(2) also prohibits "concealment, suppression, or omission of any material fact"; however, an exception to the ADTPA is the "safe harbor" provision, which provides that the ADTPA does not apply to actions or transactions specifically permitted under laws administered by a regulatory body or officer acting under statutory authority. Ark. Code Ann. § 4-88-101(3). Appellants contend that pursuant to Arkansas Code Annotated section 17-81-107(a)(1)(A) (Suppl. 2017) (effective August 16, 2013), procurers are regulated by the Arkansas State Board of Chiropractic Examiners and their conduct is specifically permitted under the laws administered by the Board; thus, they are protected by the safe-harbor provision from the claims brought by the State.
Appellants misconstrue the plain language of Arkansas Code Annotated section 17-81-107(a)(1)(A), entitled "Use of a Procurer," which defines "procurer" as "a person or entity who for pecuniary benefit procures or attempts to procure a client, patient, or customer by directly contacting the client, patient, or customer in person, by telephone, or by electronic means at the direction of, request of, employment of, or in cooperation with a chiropractic physician." Appellants argue that this definition of procurer amounts to authorization of a procurer's actions, when in fact the statutory language authorizes chiropractic physicians to employ procurers. Stated another way, chiropractors, and not procurers, are the entities whose actions are regulated. Furthermore, the appellants' deceptive conduct set forth by the State in its complaint is not described by the definition of procurer, and that deceptive conduct is not authorized anywhere in the statute. The only conduct authorized here is the chiropractor's use of a procurer.
Appellants similarly misconstrue subsection (b) of the statute and argue that procurers are required by the Board to enter into a written contract with the chiropractor and to register with the Board. In fact, Arkansas Code Annotated section 17-81-107(b) charges the chiropractor, not the procurer, with certain duties:
A chiropractic physician who uses a procurer is required to:
(1) Have a written contract with the procurer or procurement company with whom the chiropractic physician engages; and
(2) Register the name of any procurer with whom the chiropractic physician contracts with the Arkansas State Board of Chiropractic Examiners.
It is clear that procurers are not regulated by the Board, and appellants have not demonstrated that their deceptive conduct is authorized by the Board. For that reason, the safe-harbor provision cannot exempt appellants from liability under the ADTPA; thus, we have no cause to address appellants' assertion that the "general-conduct" rule rather than the "specific-activity" rule regarding the application of the safe-harbor provision should be applied here. See Air Evac EMS, Inc. v. USAble Mut. Ins. Co. , 2017 Ark. 368, 533 S.W.3d 572 (The safe-harbor provision of the ADTPA should be applied according to specific-conduct rule, rather than general-activity rule.).
Appellants also argue that the circuit court abused its discretion by denying their request to provide the jury with non-model verdict forms. Appellants assert that because the Board began regulating chiropractic marketers on August 16, 2013, interrogatory-style verdict forms, and not general-verdict forms, were necessary for the jury to determine whether any of the thirteen violations found occurred after August 16, 2013, and were thus barred by the ADTPA's safe-harbor provision. For the reasons discussed above, this issue stemming from the appellants' safe-harbor claim is meritless, and we decline to review it.
II. Failure to State Claim with Particularity
Appellants argue that in essence, the State alleged that appellants engaged in fraud in order to solicit clients for chiropractic physicians; thus, the State must comply with Arkansas Rule of Civil Procedure 9(b) which requires heightened pleading for any averment of fraud. Specifically, appellants argue that the State must plead with particularity not only the circumstances of the fraud, but the time and place of appellants' fraudulent conduct as well. Appellants limit their argument regarding the adequacy of the pleadings to this issue.
An action under the ADTPA is not a "fraud" action. The elements of common-law fraud are (1) a false representation of a material fact, (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation, (3) the intent to induce action or inaction in the reliance upon the representation, (4) justifiable reliance on the representation, and (5) damage suffered as a result of that reliance. Victory v. Smith , 2012 Ark. App. 168, 392 S.W.3d 892. To establish a claim under the ADTPA, however, a plaintiff need only prove (1) a deceptive consumer-oriented act or practice which is misleading in a material respect, and (2) injury resulting from such act. See Ark. Code Ann. § 4-88-113(f).
Knowledge of the deceptive nature of one's actions, intent to induce action, reliance, and damages are conspicuously missing from the elements of the ADTPA. Simply put, a claim of common-law fraud and a claim under the statutory provisions of the ADTPA are distinctly different, as is peripherally acknowledged by Arkansas Code Annotated section 4-88-107(b), which clearly states that "the deceptive and unconscionable trade practices listed in this section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state." Appellants' assertion that Rule 9 of the Arkansas Rules of Civil Procedure is the proper pleading standard for this particular statutory claim is incorrect, and we affirm.
Affirmed.
Harrison and Klappenbach, JJ., agree.
James and Brian Hinton are not parties to this appeal. | [
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PHILLIP T. WHITEAKER, Judge.
A Howard County Circuit Court jury convicted Melchizedek Shabazz of possession of marijuana with intent to deliver, and he was sentenced to 30 years' imprisonment in the Arkansas Department of Correction. He appeals, claiming that he was denied his Sixth Amendment right to counsel at his suppression hearing. We agree.
I. Facts
On the morning of May 23, 2016, Howard County Deputy Sheriff Joey Davis stopped Shabazz's vehicle for speeding. Deputy Davis smelled the odor of "green" marijuana and saw several small pieces of a green, leafy substance - possibly marijuana - on the console. Shabazz admitted to Deputy Davis that he smoked marijuana earlier that morning and that there was some marijuana in the car. He then handed Deputy Davis a small container that contained a small amount of marijuana. Thereafter, Deputy Davis conducted a search of the vehicle, which revealed a brown paper sack containing 28 small white zipper-lock bags containing a substance believed to be marijuana. A search of the trunk revealed four white trash bags containing over 45 different containers and bags of suspected marijuana - many of which were labeled and appeared to have come from a marijuana dispensary. In total, the suspected marijuana weighed approximately eight pounds.
II. Procedural History
Shabazz was arrested and charged with possession of marijuana with intent to deliver. He was appointed counsel to represent him on the charges. On June 3, 2016, his counsel filed a motion to suppress, alleging that Shabazz's arrest was unlawful because the officer lacked probable cause or reasonable suspicion to stop, detain, or arrest him; that the stop, detention, and arrest of Shabazz was merely a pretext for an investigation; that the officer lacked consent to search the vehicle or a search warrant to do so; and that the search of the vehicle was therefore unlawful, unreasonable, and without probable cause. On June 7, 2016, Shabazz filed a pro se motion to suppress evidence and dismiss, alleging that the officer lacked consent to search the vehicle; that the officer lacked cause to search the vehicle under Rule 12.4 of the Arkansas Rules of Criminal Procedure; and that the initial stop was illegal.
On June 8, 2016, the court conducted a pretrial hearing. Shabazz was present at the hearing with his appointed counsel. The court questioned why Shabazz was filing pro se motions while being represented by appointed counsel. Shabazz responded that he believed that his counsel was ineffective, stated that counsel had not been in contact with him, and explained that he was unhappy with the standard motion to suppress filed by counsel. The following colloquy between the court and Shabazz occurred:
THE COURT: Let me ask you something real quick to cut to the point - cut to the chase. Do you wish to represent yourself?
THE DEFENDANT: No, sir.
The court then explained to Shabazz that he was represented by counsel, who had filed motions on his behalf, and the court would not permit pro se motions that competed against those of counsel. The court then informed Shabazz that he could file his own motions only if he represented himself. Shabazz responded with more protests about the effectiveness of his appointed counsel. The court responded that it would not "micromanage" the public defender but told Shabazz that he could represent himself if he did not like the representation afforded by appointed counsel. Shabazz asked the court to appoint him a different attorney. The court denied the request. When Shabazz continued to argue that his counsel was clearly ineffective, the court responded:
THE COURT: I'll say it one more time, and that's the last time I'm going to say it, I will let you represent yourself. You have that constitutional right. I am not going to micromanage the way attorneys represent their clients.
THE DEFENDANT: Well, yes, sir, I would like to represent myself.
At this point in the proceeding, Shabazz's appointed counsel handed to him the discovery received from the State and the motions that had been filed by counsel on his behalf. The following colloquy between the court and Shabazz occurred:
THE COURT: And I'm going to let you represent yourself, but I'm going to just give you one little spiel that I tell people that want to represent themselves. You know, you haven't been trained in the law. Do you have a college degree?
THE DEFENDANT: No, sir.
THE COURT: And you obviously haven't been to law school. I tell people all the time, I've tried 150 jury trials when I was prosecutor and I wouldn't represent myself. With that in mind, do you still wish to represent yourself?
(No response)
THE COURT: Mr. Shabazz?
THE DEFENDANT: Sir?
THE COURT: Do you still wish to represent yourself?
(No response)
THE COURT: I'll ask you one more time. Do you still wish to represent yourself?
THE DEFENDANT: Your Honor, at this - I would like to continue to proceed with [counsel] at this time -. And so I can read this thing that he has -.
Hearing that Shabazz desired to continue with appointed counsel, the court then began to reschedule the motions and jury-trial settings to a subsequent date during the month of August. When Shabazz learned that the hearing on his motions would not be heard until August, the following colloquy between the court and Shabazz occurred:
THE DEFENDANT: On August 10?
THE COURT: August 10.
THE DEFENDANT: Oh, no, sir. If -. I would proceed for myself today instead of sit in jail, Your Honor. I'd rather proceed myself today.
THE COURT: You'd like to go to trial next Tuesday?
(No response)
THE COURT: That's when your trial is set now.
THE DEFENDANT: And you said you're going to set if off to August the what?
THE COURT: Well, that's my next trial date here in this county.
THE DEFENDANT: August the what?
THE COURT: August 10, pretrial; August 23, trial. I'm in even months for my jury trials. Judge Yeargan is odd months.
THE DEFENDANT: If I represent myself, when can my hearings - when can my motions be ruled on?
THE COURT: Today.
THE DEFENDANT: You'll rule on my motion today?
THE COURT: I will.
THE DEFENDANT: Well, -. And there's no other way for my motion to be ruled unless I dismiss counsel?
THE COURT: Yeah. You can't - If you have an attorney, he files the pleadings for you. If you don't have an attorney, you file - you act as your own attorney and you file the pleadings. You see, because if you're filing them and your attorney's filing them, they could be inconsistent or conflicting.
THE DEFENDANT: And there's no way -.
THE COURT: So your choice is represent yourself, which I would not recommend under any circumstances, go to trial next Tuesday, motions today; or I'll continue your case, leave [counsel] on, and we'll have your pretrial August 10 and your trial August 23.
THE DEFENDANT: Well, Your Honor, I'd like to represent myself if you'll rule on my motions today.
THE COURT: Okay. You all ready?
After a recess, the court began the hearing on the motion to suppress with the following colloquy:
THE COURT: Are you ready to go forward on your motion to suppress?
THE DEFENDANT: Yes, sir.
THE COURT: I see that you filed a motion to suppress evidence and dismiss. Any other motions that you have today?
THE DEFENDANT: No, sir.
THE COURT: Let me look. Here's something else that you filed. Let me get to it. Oh, that's just -. That's the only motion. Are you ready to go forward? Do you have any witnesses?
. . .
THE COURT: Before we go forward, we had a long discussion earlier today, and I know I've seen a lot of people since then, and you made a decision -. After I questioned you, you made a decision that you think it's in your best interest to represent yourself. Is that correct?
THE DEFENDANT: Yes, sir.
[DEFENSE COUNSEL]: So -
THE COURT: Do you want [defense counsel] standing close in case you have questions? Do you want him to assist you?
THE DEFENDANT: If he would like -. If he wants to, I don't have any problem with it.
THE COURT: I'll ask him to stand close and be available if you would like?
THE DEFENDANT: It's okay with me.
THE COURT: Okay. [Defense counsel], just have a seat.
[DEFENSE COUNSEL]: Yes, sir.
The trial court then held the suppression hearing. Shabazz conducted the cross-examination of all the State's witnesses. Defense counsel was on hand during the questioning, but it does not appear that Shabazz requested his assistance. In fact, defense counsel left the courtroom to take a phone call during the questioning of one of the State's witnesses.
After the State rested its case, the court asked if Shabazz had any witnesses he wished to call. Shabazz indicated that there was additional information that he needed in order to go forward with his defense. The following colloquy took place:
[PROSECUTOR]: State rests.
THE COURT: Mr. Shabazz, call your first,
THE DEFENDANT: Oh.
THE COURT: Do you wish to testify?
THE DEFENDANT: No. You said the next witness.
THE COURT: Or you can make legal arguments.
THE DEFENDANT: Your Honor, is - could I see the law on -
[PROSECUTOR]: I just want to clarify, he's not going to call witnesses before we start going -
THE COURT: Are you going to call any witnesses?
THE DEFENDANT: I would like more physical evidence, the logs at the time -
THE COURT: Well, let me ask you -
THE DEFENDANT: At the time -
THE COURT: Stay focused on one question at a time. Do you wish to call any witnesses?
THE DEFENDANT: No more physical -
THE COURT: I'm sorry?
THE DEFENDANT: No more witnesses.
THE COURT: Okay. You have no witnesses.
THE DEFENDANT: No more witnesses, no, sir.
THE COURT: Do you wish to make a legal argument to me?
THE DEFENDANT: Your Honor, is there any way I could see the log on certification and radar guns?
THE COURT: You're representing yourself. You're going to have to find all that information.
THE DEFENDANT: So I would have to find that information on my own?
THE COURT: It would be incumbent on you and your burden to bring that forward if you feel it was necessary at this hearing or trial.
THE DEFENDANT: Is there any way we could set a continuance for a few days and - so I could get that evidence?
THE COURT: It was your choice to go forward on the suppression hearing today, Mr. Shabazz. Do you have any legal arguments you wish to make concerning the - your motion to suppress?
Shabazz, with the help of standby counsel, then attempted to articulate his legal basis for suppression. At the conclusion of the hearing, the trial court denied his motion. At that point, Shabazz informed the court he would need help at trial, and the trial court reappointed defense counsel to represent him at trial. Shabazz was found guilty at trial and sentenced to thirty years. In this appeal, Shabazz argues that the suppression hearing was a critical stage of the proceedings, that he did not knowingly and intelligently waive his right to counsel at that hearing, and that he should be granted a new trial.
III. Analysis
Our standard of review is whether the trial court's finding that the waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005).
A. Critical-Stage Analysis
The United States Supreme Court has provided the following case law concerning our critical-stage analysis: (1) A criminal defendant has a Sixth Amendment right to an attorney at every critical stage of the proceedings. Hammett v. Texas, 448 U.S. 725, 100 S.Ct. 2905, 65 L.Ed.2d 1086 (1980); (2) A stage is a critical stage in a criminal proceeding if the substantial rights of the criminal defendant may be affected. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); and (3) The complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable. Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Our supreme court has held that a critical stage is characterized by an opportunity for the exercise of judicial discretion or when certain legal rights may be lost if not exercised at that stage. Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006).
We hold that a suppression hearing is a critical stage of the proceeding because if the suppression court determines that evidence is admissible, that determination is final, conclusive, and binding at trial. In fact, the court's decision on a motion to suppress may often spell the difference between a conviction or an acquittal. Thus, we conclude that the Sixth Amendment right to counsel applies to suppression hearings. The issue then becomes whether Shabazz validly waived that right.
B. Waiver Analysis
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that before an accused manages his or her own defense, the accused must first "knowingly and intelligently" waive the right to counsel. Furthermore, the trial court maintains a weighty responsibility in determining whether an accused has "knowingly and intelligently" waived this right. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 S.Ct. 1461 (1938); Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1987). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).
The burden is on the State to show that an accused voluntarily and intelligently waived his or her fundamental right to the assistance of counsel. Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001). We determine whether an intelligent waiver of the right to counsel has been made in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). While a case-by-case approach is used to determine intelligent waiver of counsel, a specific warning of the dangers and disadvantages of self-representation - or a record showing that the defendant possessed such required knowledge from other sources - is required to establish the validity of a waiver. Id. Our supreme court has held that the "constitutional minimum" for determining whether a waiver was knowing and intelligent is that the accused be made sufficiently aware of his or her right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel. Id.
We hold under these particular facts and circumstances that Shabazz's waiver was not knowingly or intelligently made. The court was the first to suggest that Shabazz proceed pro se. Shabazz initially indicated that he did not want to proceed pro se; rather, he simply indicated his unhappiness with his current counsel and wanted other counsel appointed. Only when the court informed him that he could not have other appointed counsel and that his trial date would be postponed if he continued with current counsel did Shabazz seemingly agree to proceed pro se; but even then, his agreement was tenuous. We also note there was limited inquiry into his educational history or background with the criminal-justice system. In this regard, the court inquired only if Shabazz had a college degree, to which Shabazz answered no. The court never inquired into Shabazz's experience with the criminal-justice system. Moreover, while the trial court explained that even with his own experience in criminal matters he would not represent himself, we conclude that this was inadequate to explain the legal pitfalls of self-representation. The trial court did not adequately explain the risks or the consequences of proceeding without counsel; nor did the court inform Shabazz of the danger of proceeding so quickly with the suppression hearing without the benefit of counsel or the completion of discovery. In short, we conclude that there was simply an insufficient investigation into whether Shabazz's willingness to proceed was knowingly or intelligently asserted, and the trial court's questioning as to his wish to proceed pro se did not meet the constitutional minimum as set forth by our supreme court.
The State argues that, even if the trial court erred in allowing Shabazz to proceed pro se, the decision was harmless because Shabazz was provided the assistance of standby counsel. The State is correct that the assistance of standby counsel can rise to such a level that the defendant is deemed to have had counsel for his or her defense, thereby mooting any assertion of involuntary waiver. Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001). Whether such assistance rises to that level is a question that must be answered by looking at the totality of the circumstances. Id. Our cases on this issue demonstrate that the assistance must be substantial, such that counsel was effectively conducting a defense. Id. However, viewing the totality of the circumstances, we hold that the role of standby counsel in this case was not substantial. Counsel did not participate in the questioning of the witnesses and even left the courtroom at one point. While counsel did provide some limited assistance to Shabazz, such assistance was not so substantial as to render harmless the improper waiver of counsel.
Shabazz contends that the violation of his right to counsel should result in a new trial. The State, on the other hand, argues that Shabazz is entitled to only a new suppression hearing. An accused is entitled to relief from a conviction whenever the proceedings indicate the unfairness of trial without the help of a lawyer. Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). Therefore, we reverse Shabazz's conviction and remand for retrial.
Reversed and remanded.
Hixson and Murphy, JJ., agree.
The State in its brief refers this court to Shabazz's criminal history and his apparent self-representation in other previous criminal or postconviction matters; however, there is no evidence that the trial court was aware of this information at the time it decided to allow Shabazz to represent himself. | [
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DAVID M. GLOVER, Judge
Cakoshia Easter appeals from the termination of her parental rights to her four children-KC1, JC1, JC2, and KC2. She contends the trial court clearly erred in finding termination was in the children's best interest and that statutory grounds were proved to support the termination. We affirm.
DHS took emergency custody of Easter's four children on December 8, 2015, because there was suspected child abuse in connection with the broken leg of one of the children. The accompanying affidavit explained in part that the child stated his father hurt him, and that Easter corrected the child stating that the father had tried to help him. The children were subsequently adjudicated dependent-neglected. The trial court found the explanations concerning the child's broken leg were unsatisfactory. In addition, Easter tested positive for THC. The goal of the case was reunification, but after nineteen months, DHS filed its petition to terminate Easter's rights. Following a hearing, the trial court granted the petition, finding it was in the children's best interest and that DHS had proved three statutory grounds ("failure to remedy," "subsequent factors," and "aggravated circumstances"). The father's parental rights were also terminated, but he is not involved in this appeal.
At the termination hearing, Quiana McGhee, the family-service-worker supervisor, testified she had been working on this case since March 2016; the case was opened when the children were removed in December 2015; one of the children had an unexplained broken leg ; and there had been an earlier open protective-services case. She testified Easter tested positive for marijuana on January 25, 2017, after starting a trial placement with the children on January 6. She stated that earlier one of Easter's children had tested positive for illegal substances at birth on March 1, 2015, and that one of the children had four large scratches on his face on February 12, 2015. Easter's case plan included a psychological evaluation, counseling, a drug assessment, obtaining employment and suitable housing, and parenting classes. McGhee described Easter's performance under the case plan as "up and down"; initially, she had done everything she needed to do; but later she had used drugs, even though she denied doing so; she lost one job but got another; and lost her housing and was living with relatives. She explained Easter had not completed her treatment and had tested positive for drugs, i.e., methamphetamine, again in March; and she had continued to test positive for alcohol even though she had been told not to be around or to use drugs or alcohol.
McGhee stated Easter had attended inpatient treatment; Easter started after care but did not complete it; and she had not adhered to mental-health counseling. McGhee could think of no other services that could be offered to achieve reunification, and she could not say Easter had made significant measurable progress under the case plan or worked diligently toward reunification. She recommended termination.
Loren Beck, counselor for outpatient services with Southwest Arkansas Counseling Mental Health Center, testified as an expert in substance-abuse counseling and treatment. She stated she was familiar with Easter's chart and the clinical services provided to her but not with Easter. She explained that Easter's assessment found she was not capable of maintaining abstinence on her own; she would need further treatment after her inpatient stay; she did not complete treatment; abstinence was the focus; and alcohol was considered a drug. She testified it would be a concern to her in treating a patient if they stopped testing positive for street drugs but started testing positive for alcohol because it was a replacement, demonstrating poor coping mechanisms. She stated it was never acceptable to her agency for an addict to use any mind-altering substance, but acknowledged moderation-management-therapeutic techniques exist and none of those techniques were used on Easter.
Cakoshia Easter testified she was currently employed at Burger King and explained she had stopped working at Tyson in January because of a broken finger. She acknowledged testing positive for THC in January 2017, but denied smoking or ingesting it. She stated she was riding in a car with others, heading to Tyson for a meeting, and she got a second-hand high. She acknowledged telling the court that she was still employed at Tyson at that time, but that she was actually going back for a meeting to see if she could get her job back-she thought she was still employed. She denied using methamphetamine and testified someone might have slipped it into her drink when she had her first positive alcohol test. She still denied using it even though the lab confirmed methamphetamine. She remembered the court ordering her to refrain from using alcohol, but she acknowledged she continued to use it. She remembered the substance-abuse counselors telling her the importance of not using alcohol, but she still chose to do so.
Easter stated her belief that she had substantially completed the case plan but acknowledged she did not complete the outpatient treatment. She testified: she was living with her grandmother; she sometimes stays with her uncle; she anticipates getting her own home soon; she barely brings home $200, after child-support is taken out; she is on a waiting list for housing aid; she completed parenting classes and the 35-day inpatient treatment at River Ridge; and she visits her children every Monday.
In appeals involving the termination of parental rights, our standard of review is de novo. Johnson v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 221, 547 S.W.3d 489. DHS must prove allegations by clear and convincing evidence, or proof that will produce in the fact finder a firm conviction that the allegation has been established. Cotton v. Arkansas Dep't of Human Servs. , 2012 Ark. App. 455, 422 S.W.3d 130. The appellate inquiry is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Johnson, supra. We will not reverse unless the trial court's findings are clearly erroneous, giving due regard to the court's opportunity to judge the credibility of the witnesses. Cotton, supra. A finding is clearly erroneous when, although there is evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Id. The termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. Johnson, supra. Accordingly, the rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.
The termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Id. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Id. Only one statutory ground is necessary to terminate parental rights. Id.
The two prongs for making a best-interest determination are the likelihood of adoption and the potential for harm if the children are returned to the parent. Easter does not challenge the trial court's adoptability finding. In challenging the trial court's finding that there was the potential for harm to the children if returned to her, Easter argues that the trial court gave only passing comment to her housing and employment, focusing instead on her alcohol use-which she argues was not sufficiently demonstrated as a problem, i.e., DHS did not sufficiently demonstrate that Easter's alcohol use was a problem for her, her recovery, or her ability to parent.
The trial court found:
Specifically, the Court finds credible the testimony of Quiana McGhee, that, if returned to the parents, the juveniles would likely be subjected to further neglect or abuse. Specifically, Ms. McGhee testified that the father has effectively abandoned the juveniles, by not having had or seeking to have contact with them in nearly a year, and that the mother's actions throughout the case, but especially with the last nine (9) months, cause concern for her capacity to protect the juveniles' health and safety, as well as her capacity to provide for their needs, including material needs and supervision. The Court also notes that the evidence presented this date indicates that the mother tested positive for alcohol on May 22nd and 30th, July 3rd and 26th, and August 7th, 14th, 21st, and 28th. The Court further finds credible the expert testimony of Loren Beck to the claims that: the mother was repeatedly apprised of the importance of abstaining from all mind-altering substances, including alcohol, as part of her substance abuse recovery; that a common pitfall of those in drug treatment and recovery is to substitute one mind-altering substance for another; that use of a substitute mind-altering substance, such as alcohol, is a significant concern for a recovering drug or alcohol abuser; and that the mother's relapses on illegal drugs since completing rehab, and her continued use of alcohol, are indicative that substance abuse is a continuing concern for her. The Court notes that the mother was ordered to follow the recommendations of her aftercare plan, and that she was made well aware of the significant concern for her use of alcohol following her completion of rehab, especially in light of her having twice tested positive for illegal substances this year. The Court also notes that the mother continues to deny having used any illegal substances at all this year, e.g. cannabis and methamphetamines, and the Court does not find her testimony to be credible. The Court notes that the evidence presented this date also indicates that the mother does not have stable housing and only recently began working again. The Court, therefore, finds that the facts of the entire case, including the father's abandonment of the juveniles, and the mother's failure to resolve her substance abuse issues, demonstrate how the juveniles would be at substantial risk of potential harm if returned to the parents, and that continued services to the family are not likely to result in successful reunification.
We find no clear error in the trial court's potential-harm determination. Even though Easter completed an inpatient-drug-treatment program and obtained housing and employment, when she was allowed to have a trial placement of the children in her home, it had to be terminated because she tested positive for THC. In addition, after the trial placement was ended, she tested positive for other illegal drugs, including methamphetamine. Even though she was required to abstain from alcohol as part of her aftercare plan, she tested positive for alcohol. And finally, she ended up losing her job and her house. We are not left with a definite and firm conviction that the trial court made a mistake in finding there was potential for harm if the children were returned to Easter.
As mentioned previously, the trial court found three statutory grounds for termination. Proof of only one statutory ground is sufficient to support a termination. Allen v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 136, 540 S.W.3d 742. We find no clear error with the trial court's determination that DHS satisfactorily proved the existence of statutory grounds for termination.
One of the statutory grounds found by the trial court was "subsequent factors." Ark. Code Ann. § 9-27-341(b)(3)(B)(vii) (Supp. 2017). The "subsequent-factors" ground requires proof that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate placement of the juveniles in the parents' custody is contrary to the juveniles' health, safety, or welfare, and that despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy those subsequent issues or factors, or to rehabilitate the circumstances which prevent placement of the juveniles in the parent custody. Id. As noted in the responsive briefs, a parent's violation of the trial court's orders provides sufficient subsequent-factors to justify the termination of parental rights. See , e.g. , Jones v. Arkansas Department of Human Servs. , 361 Ark. 164, 205 S.W.3d 778 (2005) ; Cotton , 2012 Ark. App. 455, 422 S.W.3d 130.
Here, Easter was ordered not to consume alcohol and illegal drugs. She acknowledged she was aware of those prohibitions, yet she tested positive for both-even during a trial placement with her children. She denied using methamphetamine, explaining "someone might have slipped it into her drink." She acknowledged testing positive for THC, but denied smoking or ingesting it, explaining she rode in a car with others who were smoking it and got a second-hand high. She remembered the court ordering her to refrain from using alcohol and the substance-abuse counselors telling her the importance of not using alcohol, but acknowledged she still chose to do so. We are not left with a definite and firm conviction that the trial court made a mistake in finding that subsequent factors had been proved. Furthermore, Easter's argument that DHS failed to provide appropriate family services, particularly because she was not provided with services that would help her with moderate use of alcohol, was wholly unconvincing.
Although one statutory ground is sufficient, another statutory ground relied upon by the trial court was "aggravated circumstances," which requires proof that there is little likelihood services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) (Supp. 2017). Easter continued to use alcohol throughout the case, despite receiving inpatient and outpatient services to address those concerns, and she tested positive for THC while her children were with her in a trial home placement. The controlling issue is whether the parent has become a stable, safe parent who is able to care for his or her children. DHS had been involved with Easter for years, and yet she was still exhibiting behavior that showed she could not be a stable, safe parent. We are similarly not left with a definite and firm conviction that the trial court made a mistake in concluding there was no basis for believing additional services would result in a successful reunification.
In conclusion, our de novo review of the evidence in this case convinces us the trial court did not clearly err in finding DHS had proved termination was in the children's best interest and statutory grounds for termination existed.
Affirmed.
Vaught and Brown, JJ., agree. | [
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KENNETH S. HIXSON, Judge
Appellant Megan E. Jones, a former police officer for the Little Rock Police Department, appeals from the denial of her claim for duty-related disability retirement benefits. The Arkansas Local Police and Fire Retirement System (LOPFI) found that Ms. Jones was not entitled to duty-related disability retirement benefits because her disabling injuries occurred while she was an employee of Dillard's Department Store (Dillard's) and not the Little Rock Police Department. LOPFI instead awarded Ms. Jones nonduty-related disability retirement benefits. The LOPFI Board of Trustees (the Board) confirmed this decision. Ms. Jones appealed the Board's findings to the Pulaski County Circuit Court, which upheld the Board's findings as being supported by substantial evidence and not arbitrary and capricious.
In this appeal, Ms. Jones argues that the Board's decision was not supported by substantial evidence, and also that the Board violated the Freedom of Information Act (FOIA) during the proceedings. Because we agree that the Board's decision was not supported by substantial evidence, we reverse and remand for an award of duty-related disability retirement benefits.
Arkansas Code Annotated section 24-10-607(c)(1)(A) (Repl. 2014) provides the legal standard that Ms. Jones had to meet to receive duty-related disability retirement benefits:
Any active member who while an active member becomes totally and permanently physically or mentally incapacitated for any suitable duty as an employee as the result of a personal injury or disease that the board finds to have arisen out of and in the course of his or her actual performance of duty as an employee may be retired by the board upon proper application filed with the board by or on behalf of the member or former member.
(Emphasis added.) The Board found that Ms. Jones failed to establish that the cause of her disability was duty related as required by the statute.
This appeal is governed by the Administrative Procedure Act (APA). Our review of an appeal under the APA is directed, not toward the circuit court, but toward the decision of the agency. Sexton v. Local Police and Fire Ret. Sys. , 2016 Ark. App. 496, 506 S.W.3d 248. For purposes of our review of this case, the APA provides that the agency decision may be reversed or modified if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decision are not supported by substantial evidence or are arbitrary, capricious, or characterized by an abuse of discretion. Ark. Code Ann. § 25-15-212(h) (Repl. 2014). Our court reviews the entire record to determine whether any substantial evidence supports the agency decision. State Sex Offender Risk Assessment Comm. v. Wallace , 2013 Ark. App. 654, 2013 WL 5965187. In determining whether substantial evidence exists to support an agency decision, we ascertain whether there is relevant evidence that a reasonable mind might accept as adequate to support the agency's conclusion. Id. The issue is not whether we would have made a different decision but rather whether reasonable minds could conclude as the agency did. Id.
Ms. Jones became a police officer for the Little Rock Police Department (the Department) in 2006. Subsequently, with the Department's permission, Ms. Jones obtained part-time employment at Dillard's. While working at Dillard's, Ms. Jones wore her full police uniform, and her duties were to deter crime and prevent shoplifting.
Two separate incidents occurred that caused injuries to Ms. Jones while discharging her duties at Dillard's. The first occurred in 2008 when she was investigating a possible theft of store property. On that occasion, during the course of Ms. Jones's interaction with a suspect on the store parking lot, the suspect got into her SUV and struck Ms. Jones with the vehicle as the suspect fled the scene. The next incident at Dillard's occurred in 2012 when Ms. Jones was trying to apprehend three shoplifters; the shoplifters resisted, resulting in a physical altercation in which Ms. Jones was dragged to the floor. Ms. Jones sustained injuries to both knees and to her right ankle during these incidents. Despite these injuries, she was able to continue her employment as a police officer with the Department until July 2015, at which time her injuries had advanced to where she could no longer perform her duties.
Ms. Jones applied for duty-related disability retirement benefits in November 2015. In support of her claim, Ms. Jones submitted a letter from her physician stating that Ms. Jones was totally and permanently disabled from her job as a police officer as a result of her injuries. Ms. Jones also submitted copies of the felony information from the 2008 and 2012 incidents, which reflected that the perpetrators in each case had been charged with battery committed against Ms. Jones while she was acting as a police officer in the line of duty.
Ms. Jones testified at the hearing before the Board. Ms. Jones described the incidents that occurred at Dillard's in 2008 and 2012, and she stated that due to the injuries she received during those incidents, she could no longer safely discharge her duties as a police officer.
Ms. Jones described the scope of her part-time employment with Dillard's. She stated that she worked "off-duty" for Dillard's, during which time she was in uniform but was paid by Dillard's. Although her primary responsibilities were to deter crime and prevent shoplifting, Ms. Jones had the full authority, as a Little Rock police officer, to make arrests for any criminal acts she observed. Ms. Jones stated that, during the 2012 incident when she was injured, she was attempting to make an arrest. She further stated that she had gotten involved in other incidents while working at Dillard's that did not involve Dillard's. For example, on one occasion Ms. Jones took a report from a lady who had her purse stolen, and on another occasion she made contact with and assisted in arresting an intoxicated man who had passed out in his car with a child present. Ms. Jones indicated that Dillard's did not object to her participation in these other criminal episodes and that, had she not gotten involved, she would have been in trouble with the Department.
Ms. Jones testified that she had to obey the rules and regulations of the Department while working at Dillard's. If she did not obey Department regulations, she could be charged with dereliction of duty. Furthermore, per Department regulations, Ms. Jones was not allowed to enforce Dillard's personnel policies.
Ms. Jones acknowledged in her testimony that, after sustaining her injuries at Dillard's, she filed for workers' compensation with the Department and the Department denied the claims based on its belief that she was not on duty when she suffered the injuries. The Department turned the workers' compensation claims over to Dillard's, and Dillard's handled the claims and evidently paid workers' compensation benefits.
Officer Wayne Bewley, who is the assistant police chief for the Department, testified on Ms. Jones's behalf. Officer Bewley testified:
The Police Department has a General Order that covers off-duty employment and it is separated basically into two parts. Police related off-duty and then non-police related off-duty, such as your own private business. For the police related off-duty the officers that want to work off-duty are required to submit the time they would work quarterly for each individual off-duty job they may have, and they have to go through their chain of command to determine if the job is approved, prior to being allowed to work. The policy that the Police Department has is very clear in so much as it requires officers that are working to recognize that the Little Rock Police Department is their employer, their primary employer that's their primary duty. They cannot accept off-duty employment if they are asked to do anything that is related to the business itself regardless of what that is. Their job there is to enforce the laws and only related to their function as a Little Rock Police Officer. When a police officer is working off-duty to enforce the law, Little Rock Police Department considers it under their authority as the Little Rock Police Department. The police officers are there to keep the peace and serve in a role as a police officer.
Based on his experience and training, Officer Bewley gave the opinion that, during both incidents at Dillard's, Ms. Jones was acting in the line of duty under her authority as a Little Rock Police Officer. Officer Bewley stated that, had Ms. Jones failed to respond to these criminal incidents, the Department would have initiated an investigation.
The LOPFI disability procedures provide that a medical advisor shall state in writing his or her medical opinion that the member is totally and permanently disabled from the duties of a police officer, and if the disability was or was not the result of the member's duties. Dr. Larry Nguyen performed an independent medical evaluation and concluded that Ms. Jones is totally and permanently disabled from her duties as a Little Rock Police Department police officer, and he believed the disability arose from her off-duty employment injuries sustained in 2008 and 2012.
Although she lists it as her second point on appeal, Ms. Jones argues that the Board's decision to deny her claim for duty-related disability retirement benefits was not supported by substantial evidence. Ms. Jones's first point is that the Board violated the provisions of the FOIA, and in particular Ark. Code Ann. § 25-19-106(c)(4) (Repl. 2017), because it failed to publicly vote on her claim at the hearing. Because we agree with Ms. Jones's argument that the Board's decision was not supported by substantial evidence, we need not address the alleged FOIA violation.
Because there are a dearth of cases interpreting the provisions of the duty-related disability retirement statute, Ark. Code Ann. § 24-10-607(c)(1)(A), Ms. Jones cites workers' compensation cases in support of her argument that her injuries arose out of and in the course of her performance of duty as an employee of the Department. Although these cases are not dispositive, we agree that they offer guidance.
In City of El Dorado v. Sartor , 21 Ark. App. 143, 729 S.W.2d 430 (1987), the appellee police officer was off duty and out of uniform when he attempted to arrest a man causing a disturbance outside a night club and was injured. Notwithstanding that the officer was out of uniform and was not "on the clock," the Workers' Compensation Commission found that the injury arose out of and in the course of the appellee's employment as a police officer and awarded benefits. We affirmed the finding of compensability, stating that it is in the nature of police work that an officer might at any time be called into duty, and holding that the Commission could reasonably conclude that the appellee was motivated by the public interest and was acting in his official capacity as a police officer.
In an earlier case, City of Sherwood v. Lowe , 4 Ark. App. 161, 628 S.W.2d 610 (1982), we affirmed the Workers' Compensation Commission's award of compensation for the dependents of a police officer who was killed in an accident while in uniform riding his motorcycle to work. In that case, we again stated that a police officer is on duty twenty-four hours a day and may at any time be called into service, either by the officer's superiors or by what the officer observes. We further expounded:
Regardless of whether he is required to wear his uniform or permitted to do so, the employer derives a benefit. A police officer in uniform has the same significance to the public whether the officer is technically on or off duty. The benefit derived by the employer is that the officer deters crime by his uniformed presence, he acts as a haven for those in need of protection, and he symbolizes a safe community.
....
To all outward appearances, Officer Lowe was on duty. He was armed, in uniform, and was operating a vehicle equipped with police blue lights within his jurisdiction. The City of Sherwood derived a benefit from his presence on the city streets in uniform and operating the police equipped vehicle.
City of Sherwood , 4 Ark. App. at 164-68, 628 S.W.2d at 613-15.
On the record before this court, we conclude that there was no substantial evidence to support the Board's finding that Ms. Jones's injuries did not arise out of and in the course of her actual performance of duty as an employee of the Department. The testimony before the Board demonstrated that, during Ms. Jones's part-time employment with Dillard's, she wore her full police uniform and was acting under her authority as a police officer. Ms. Jones was required to get the Department's permission to work at Dillard's, with the stipulation that her job was to enforce the laws pursuant to Department policy, keep the peace, and serve in the role as a police officer under the sole authority of the Department. If, during her part-time employment, Ms. Jones had failed to respond to criminal activity, she would have been subject to disciplinary measures by the Department. The Department clearly received a benefit from Ms. Jones's police presence at Dillard's, and Ms. Jones was performing her duties as an officer of the Department when she sustained her injuries. Therefore, we hold that the Board's finding that she was entitled to only nonduty-related disability retirement benefits must be reversed.
For the foregoing reasons, the decision of the Board is reversed and remanded for an award of duty-related disability retirement benefits.
Reversed and remanded.
Whiteaker and Murphy, JJ., agree.
There is no dispute that Ms. Jones is totally and permanently disabled. The question is whether she is entitled to duty-related or nonduty-related benefits, which will affect the annuity payable to Ms. Jones.
The Board's 4-1 vote denying duty-related retirement benefits was conducted in an executive session, with the result of the vote subsequently being publicly announced by the chairman. | [
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RITA W. GRUBER, Chief Judge
Appellant Adrian Clinkscale appeals from the Pulaski County Circuit Court's August 1, 2017 order and August 23, 2017 amended order, which denied his motion to transfer to juvenile court. He argues that the circuit court's denials of his motion to transfer the case to juvenile court are clearly erroneous. We affirm.
On February 15, 2017, appellant was charged in the criminal division of the Pulaski County Circuit Court with nine counts of committing a terroristic act and one count of criminal mischief in the first degree. Because he was sixteen years old at the time of the alleged offenses and seventeen years old at the time of the hearing, appellant filed a motion to transfer to the juvenile division of the circuit court on June 19, 2017.
The investigating officer, Det. Roy Williams, testified that on January 7, 2017, he was contacted to investigate a shooting that occurred at 2705 Lewis Street. During the investigation, Detective Williams made contact with the resident of the home who had reported the shooting. The resident said that she "had not seen anything because she was inside during the shooting." Detective Williams stated that he met with two individuals who witnessed the shooting and that they had seen a red Dodge Avenger being driven down Lewis Street with a man known as "Adawg" hanging out of the passenger-side window firing at the residence with a semiautomatic handgun with an extended clip. One of the individuals told him that "Adawg" was a former friend named Adrian Clinkscale. Detective Williams testified that at the time of the shooting, several people had been inside the home and at least three individuals had been outside the home. He further testified that no one had been injured by appellant's bullets but that the residence and several nearby vehicles had been damaged.
When asked about his prior knowledge of appellant, Detective Williams testified that appellant had been known as both a victim and a suspect in previous cases. Detective Williams also testified that he was familiar with appellant's involvement with "the West Side Bloods of John Barrow," a street gang.
Frankie James, appellant's science instructor, testified on his behalf. She testified that appellant had been a very good student, had achieved As and Bs in her classes, and had attended her lunchtime-tutoring program. She testified that, although appellant is immature, she "never had any problems with him, he's salvageable, a very smart young man." However, James also testified that she was not acquainted with appellant's home life or gang activity.
Scott Tanner, coordinator of the Juvenile Ombudsman Division through the Public Defender Commission, testified on behalf of appellant and discussed generally the programs and facilities available in the juvenile court and in extended juvenile jurisdiction. He testified that he did not know appellant and had not previously evaluated him.
After the July 24, 2017 hearing on appellant's motion, the circuit court entered an order denying the transfer. On August 10, 2017, appellant filed a motion for reconsideration, noting objections to the language of the original order. Following a hearing on appellant's motion, the circuit court entered an amended order again denying the transfer. Appellant now timely appeals.
A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in either the juvenile or criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318 (Repl. 2015). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. Id. The court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Id. Clear and convincing evidence is proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. McClure v. State , 328 Ark. 35, 942 S.W.2d 243 (1997). On review, the circuit court's denial of a transfer is not reversed unless the decision is clearly erroneous. Beulah v. State , 344 Ark. 528, 42 S.W.3d 461 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Johnson v. State , 356 Ark. 534, 157 S.W.3d 151 (2004).
Pursuant to Arkansas Code Annotated section 9-27-318(g), the circuit court must consider the following factors at a transfer hearing:
(1) the seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) the culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) the previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) the sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday;
(8) whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and
(10) any other factors deemed relevant by the judge.
Ark. Code Ann. § 9-27-318(g). The circuit court is required to make written findings on all of the factors set forth above. Ark. Code Ann. § 9-27-318(h)(1). However, there is no requirement that proof be introduced against the juvenile on each factor, and the circuit court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. Kiser v. State , 2016 Ark. App. 198, 487 S.W.3d 374.
In this case, the circuit court made findings regarding each factor listed in section 9-27-318(g). The amended order denying the transfer provided as follows:
1. The Defendant is charged with nine counts terroristic act-occupiable structure and one count criminal mischief in the first degree. These are serious offenses, the nature of which and protection of society would favor prosecution in the criminal division of circuit court.
2. The offenses charged were committed in a violent, aggressive, and willful manner.
3. The offenses charged were committed against person and property.
4. The Defendant acted as part of a group, but appears to have been a major participant in that group.
5. The Defendant has one pending charge in the juvenile division of circuit court, which is a case that was recently transferred from the adult division.
6. The Defendant is immature. The unrebutted testimony was that the defendant is a member of the Westside Bloods, a street gang. Testimony was also presented that the Defendant has been the victim of several shootings and will not cooperate with law enforcement in the investigation of these incidents.
7. The Defendant's date of birth is March 22, 2000. He is seventeen years old, and he was sixteen years old at the time of the alleged offenses. The adult division of circuit court therefore has jurisdiction pursuant to Ark. Code Ann. § 9-27-318(c)(1). There are facilities and programs available to the judge of the Juvenile Division of Circuit Court, but the Court finds that these programs and facilities are not likely to rehabilitate the Defendant prior to his twenty-first birthday.
8. The Defendant acted with at least one other person in the commission of these offenses.
9. The Court has not been provided with written reports or other materials relating to Defendant's mental, physical, educational, and social history.
10. No family members testified on the Defendant's behalf. It was stipulated by the parties that the Defendant's mother could not be present because she was incarcerated. One of the Defendant's teachers did appear and testify that he was an "A/B" student in her class and was respectful and courteous. On the same date as this hearing, the Court held a transfer hearing on the Defendant's half brother, who is charged with similar activity.
THEREFORE, based on consideration of the foregoing, pursuant to Ark. Code Ann. Sec. 9-27-318, the Court finds by clear and convincing evidence that this case should remain in the criminal division of Circuit Court. The Defendant's Motion to Transfer should be, and is hereby, ordered denied.
On appeal, appellant argues that the circuit court erred in denying his motion to transfer to juvenile court. Specifically, he disputes the court's finding that he was not likely to be rehabilitated prior to his twenty-first birthday. He also argues that the circuit court erred in denying his motion for reconsideration because it did not remove from its August 23, 2017 order mention of his half brother's juvenile-transfer hearing. Appellant's arguments are without merit.
As the moving party, appellant had the burden of proving by clear and convincing evidence that the case should be transferred to the juvenile division of circuit court. Magana-Galdamez v. State , 104 Ark. App. 280, 291 S.W.3d 203 (2009). Here, the circuit court heard the evidence, weighed it, reached its decision, and enumerated its conclusions in a written order. The circuit court properly considered the evidence on all the factors, as required by the statute, and it was free to use its discretion in the weight afforded to each factor. Austin v. State , 2017 Ark. App. 114, at 4-5, 515 S.W.3d 633, 636. The circuit court is not required to give equal weight to each of the statutory factors; it can rely on any of the factors so long as it considered and made written findings with regard to all the factors. Id. The circuit court did not ignore the testimony of the witness who thought that appellant had the potential to be rehabilitated; it simply weighed the evidence differently than appellant desired. See Brown v. State , 2016 Ark. App. 254, 492 S.W.3d 126. In addition, our supreme court has held that a juvenile may be tried as an adult solely because of the serious and violent nature of the offense. C.B. v. State , 2012 Ark. 220, 406 S.W.3d 796. Here, appellant was charged with nine counts of committing a terroristic act and one count of criminal mischief in the first degree. Appellant's charges of committing a terroristic act are serious and violent offenses. See M.R.W. v. State , 2012 Ark. App. 591, 424 S.W.3d 355.
Appellant's second argument-that the circuit court erred in denying his motion for reconsideration because the court did not remove its statement regarding his half brother's juvenile-transfer hearing-is also without merit. Our supreme court has previously held that judicial notice may not be taken of the record in a separate case. Smith v. State , 307 Ark. 223, 228, 818 S.W.2d 945, 948 (1991). However, our court has recently held that the circuit court is presumed to know and follow the law. C.J.M. v. State , 2017 Ark. App. 477, at 6, 531 S.W.3d 412, 416. In addition, when a circuit court is acting as the finder of fact, it is presumed to have considered only competent evidence, and this presumption is overcome only when there is an indication that the court did give some consideration to the inadmissible evidence. Id.
The following colloquy ensued between appellant's counsel, Mr. Padilla, and the circuit court when Mr. Padilla asked the court to note his objection to the reference of appellant's half brother's case in the original order:
MR. PADILLA : I filed a motion for reconsideration in this particular case chiefly because I have to comply with the contemporaneous objection rule in order to perfect an appeal, and with respect to paragraph ten of the Court's order, it states that the Defendant's mother could not be present because of work. I believe both State and Defense stipulated that the mother couldn't be present because she was in jail facing charges as a co-defendant on a theft by receiving downstairs.
His father was in the penitentiary, and grannie was home sick.
So, I would object to that portion of the order as being incorrect, and also the last sentence of it the Court makes mention of the juvenile transfer hearing concerning the Defendant's half-brother and the fact that he was charged with similar activity. However, that's outside of the record on our particular case, and I could not have objected to its incorporation into the order.
This is the first opportunity I've had to object to it, and so if the Court would just note my objection-.
THE COURT : Well, with respect to the mother at work as opposed to being in jail, that was just an error on the Court's part. I will issue an amended order on that issue.
With respect to the fact that Mr. Clinkscale's half-brother also had a hearing the same day, that was an unusual circumstance. I noted it in the order but it's pure dicta. It did not weigh in my decision in denying his motion to transfer on any level. So-
MR. PADILLA : Thank you, Your Honor. I just wanted to-
THE COURT : -I'll have that order first of the week.
MR. PADILLA : Thank you for clarifying it. I just, like I said, I needed to comply with the contemporaneous objection rule.
THE COURT : No. You're fine. I understand. Thank you.
Here, there is no indication that the circuit court disregarded its own ruling and gave consideration to the fact that appellant's half brother had a hearing the same day as appellant. As such, we hold that appellant's second argument on appeal is without merit.
After reviewing the evidence, we are not left with a firm and definite conviction that the circuit court made a mistake in denying appellant's motion to transfer the case to juvenile court. Accordingly, we affirm.
Affirmed.
Abramson and Gladwin, JJ., agree.
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DAVID M. GLOVER, Judge
Eric Rounds appeals from the sentencing order entered by the Pulaski County Circuit Court after a conditional plea of guilty. He challenges the court's denial of his motion to suppress. We reverse and remand.
On November 26, 2016, Rounds was stopped by Little Rock police officer, Sergeant Jeffrey Plunkett, and a firearm was found in Rounds's possession. He had a prior felony conviction from 2014 and was charged with unlawful possession of a firearm. Rounds sought to suppress the firearm, taking the position the stop was not justified, and therefore the firearm Sergeant Plunkett discovered during the search stemming from the stop should have been suppressed as the fruit of an unconstitutional warrantless stop. Following a hearing, the trial court denied Rounds's motion to suppress. He then entered a conditional plea of guilty on May 22, 2017, and this appeal followed.
In reviewing the denial of a motion to suppress evidence, the appellate courts of our state conduct a de novo examination based on the totality of the circumstances. MacKintrush v. State , 2016 Ark. 14, 479 S.W.3d 14. We review findings of historical facts for clear error and determine whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Id. A finding is clearly erroneous, even if there is evidence to support it, when after review of the entire evidence, we are left with a definite and firm conviction that the circuit court made a mistake. Id. We defer to the superiority of the circuit court to evaluate the credibility of the witnesses who testify at the suppression hearing. Id.
It is without dispute that Sergeant Plunkett, who made the stop, did not stop Rounds based on any traffic violation. Rather, he stopped Rounds based on what Sergeant Plunkett was told by fellow Little Rock police officer Irving Jackman. Our review of the entire evidence convinces us the circuit court erred in concluding the stop of Rounds's vehicle was based on reasonable suspicion, and because the stop was not justified, the evidence obtained as a result of the stop should have been suppressed.
At the suppression hearing, Officers Plunkett and Jackson testified. Officer Jackman testified first. He stated he had responded to a call on November 24, 2016, two days before the incident leading to Rounds's arrest. According to Officer Jackman, he heard shots on November 24 and responded to the area, which was known for its criminal activity and violence. Officer Jackman explained that when he made contact with Rounds on the 24th, Rounds informed him he had just been robbed. Officer Jackman testified that Rounds's personal items were on the ground; Rounds "had frantic breathing, and you could tell he had been in a high-stress situation"; he encouraged Rounds to report the incident; Rounds "advised it was fine"; and Rounds "did not necessarily say he would take care of it, would handle it, but [Rounds] did not want to make a report." Officer Jackman further testified that while he was talking to Rounds, "someone outside said he may be 'hot.' " Officer Jackman took those words to mean Rounds had an outstanding warrant, but because he was "the victim of this incident, it was not necessary to run him, to find out if he had a warrant. We try not to arrest victims of crime."
Officer Jackman testified that two days later, on November 26, while still assigned to the Violent Crime Reduction Task Force, "[w]e were saturating the area for the influx of shootings happening in the city. ... We were saturating the area in reference to a shots-fired call I believe, and once we got to the area I [saw] a black sedan, two-door Challenger, leaving the area. I was able to identify the driver." He explained that the driver was Rounds, who had been the victim of the November 24 robbery, "[a]nd then two days later [November 26] we responded to that area again in reference to some incidents that had been occurring throughout the city, and when I made it to that location, I [saw] Mr. Rounds's vehicle leaving the area." Officer Jackman then testified he "notified the squad that I was working on at that time that I had just [taken] a report with [Rounds] a couple days prior, just take precaution in case it was retaliation of some shots surrounding-somebody start shooting at him again, letting them know that he had just been shot at a few days prior." He stated that once someone is shot at, "most of the time a retaliation shooting is possible," and he provided that information to Sergeant Plunkett (the officer who stopped Rounds).
On cross-examination, Officer Jackman clarified his earlier testimony, explaining, "I got a call about shots being fired two days prior to your client being arrested. We [were] saturating the areas in reference to the shots-fired calls. That happened on November 24, 2016." Officer Jackman explained that shots-fired calls happen on a regular basis and are not abnormal. He further clarified that someone had yelled out Rounds "was hot"; that the somebody was another individual on the street; that he did not pay that much attention to the other person because he (Jackman) was talking to Rounds; that he was not interested in the warrant then because he was more interested in finding the suspect who had done the shooting; and that Rounds did not want to be a victim in a report, so no further investigation was made of the November 24 incident.
Officer Jackman testified that when he passed Rounds in his vehicle on November 26, he remembered him from the November 24 incident, and he remembered an unidentified person had yelled Rounds was "hot." He explained that he informed the officers on the task-force-monitor channel that he (Jackman) was in the area; that he passed the vehicle of a person who had been robbed in that area two days earlier (Rounds); that he was going to continue to saturate the area; that someone had yelled the robbery victim (Rounds) was "hot," and he might therefore have an active warrant; and that he notified the officers to take precaution because Rounds was leaving the area where he had been robbed two days before. Officer Jackman stated that according to Sergeant Plunkett, the sergeant stopped Rounds to investigate a warrant based on Jackman's call. Officer Jackman explained he was telling the other officers to take precaution because they were in the area where Rounds had been robbed, and Rounds was leaving the area where he had been the victim two days earlier, and the police got calls about shots fired all the time. He thought it was unusual that Rounds had been a victim in that same area two days before and was leaving the same area two days later. Officer Jackman acknowledged he did not know if Rounds had family in the area. He said he advised the officers to take precaution, and Sergeant Plunkett decided to pull Rounds over based on the information he had given them, i.e., that Rounds was leaving the location, had been robbed two days earlier in the same location, and refused to make a report because someone advised that he was "hot." Officer Jackman stated that the only reason Sergeant Plunkett stopped Rounds was because he (Jackman) had reported Rounds might have a warrant. It is undisputed that Officer Jackman never determined whether Rounds actually had a warrant on November 24 or at any time before November 26.
Next, Sergeant Plunkett testified at the suppression hearing. He explained he was assigned to the Violent Criminal Apprehension Team on November 26, 2016; the team's duties included apprehending violent felons and responding to any violent-crime problems in the city; on the night in question they "were specifically assigned to target a few geographical areas based on the shots fired and the shootings that we had been having in the neighborhood"; there had been an increase in shootings in that area; and he was assigned to run a task force put together to suppress some of that violence.
Sergeant Plunkett, who actually conducted the stop of Rounds's vehicle, testified that on November 26, he received "information from Officer Jackman with regard to Eric Rounds [and] [b]ased on that information [he] conducted a traffic stop on the black Dodge Charger." He explained that he activated his blue lights; the Charger pulled to a stop; and he illuminated the vehicle with his spotlight. Sergeant Plunkett further testified that Rounds, in fact, did not have an active warrant but that he "was at the scene where he was robbed ... and that, to me, led me to believe that he was possibly in that area to conduct a retaliation shooting."
On cross-examination, Sergeant Plunkett stated Rounds was not violating any traffic laws; that he did not recall Officer Jackman's exact words but recalled "him advising that Rounds was a convicted felon, and he was a victim of a robbery at that location, and he was possibly in the area to conduct a retaliation." The sergeant explained that he did not make an assumption; that he "used reasonable deduction" as to why Rounds might be there. He also acknowledged he did not know anything about Rounds except what Officer Jackman had told him, i.e., his criminal history and the fact that the other officer believed he had a warrant-which was based on what someone yelled out to Officer Jackman two days earlier when Rounds had been the victim of a robbery. He did not recall if Officer Jackman mentioned shots fired on November 26, but he was very familiar with the area and "shots fired" happened almost every day. Sergeant Plunkett had no personal knowledge that Rounds was the robbery victim in the November 24 incident. He stated: "The area was known for shootings. I said that Officer Jackman advised me that he had an active warrant, and that is why I stopped him. It was not that I stopped him for no reason. I had a whole host of reasons." He testified he conducted the traffic stop in under two minutes from the time he was notified by Officer Jackman. He acknowledged Rounds was not speeding and was not cited for any traffic violations. He further acknowledged he could have gotten specific information about whether Rounds actually had an arrest warrant before stopping him but did not do so.
At the conclusion of the suppression hearing, the trial court denied Rounds's motion, explaining:
I think the salient issue is that you have got an area where there are gunshots, there is retaliation. Law enforcement has been directed to that area to try to contain that violence. And shots were fired at Mr. Rounds, and he was robbed, and does not file a report, does not want to pursue it. And two days later is in that area, driving a car, regardless of whether he has a warrant or he is hot, and the officer reasonably believes that there is some connection between retaliation and the shots that were fired, and he stops him, and then notices that he is reaching and placing something in his car. And for his own safety, given the circumstances and knowing that this fella is a convicted felon, he sees the weapon, standing outside the car, so I think that there was a reasonable belief that that person should have been stopped. And once you see that movement, and for the officer's safety, I think it was a good search. I am going to deny the motion.
Rule 3.1 of the Arkansas Rules of Criminal Procedure provides 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.
(Emphasis added.) As our supreme court explained in MacKintrush , supra , the rule precisely states that the reasonable suspicion must be tied to the commission of a felony or a misdemeanor involving forcible injury to persons or property. Rule 2.1 of the Arkansas Rules of Criminal Procedure 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.
In determining whether there is reasonable suspicion, we examine whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person may be involved in criminal activity. MacKintrush , supra. Arkansas Code Annotated section 16-81-203 (Repl. 2005) sets forth several factors to consider in determining whether a police officer has grounds to reasonably suspect someone. Those factors include, but are not limited to, the following:
(1) The demeanor of the suspect;
(2) The gait and manner of the suspect;
(3) Any knowledge the officer may have of the suspect's background or character;
(4) Whether the suspect is carrying anything, and what he or she is carrying;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;
(6) The time of the day or night the suspect is observed;
(7) Any overheard conversation of the suspect;
(8) The particular streets and areas involved;
(9) Any information received from third persons, whether they are known or unknown;
(10) Whether the suspect is consorting with others whose conduct is reasonably suspect;
(11) The suspect's proximity to known criminal conduct;
(12) The incidence of crime in the immediate neighborhood;
(13) The suspect's apparent effort to conceal an article; and
(14) The apparent effort of the suspect to avoid identification or confrontation by a law enforcement officer.
Here, the trial court disregarded any active-warrant basis for the stop and focused instead on the "salient issue" of whether Rounds was in the area to retaliate for being robbed two days earlier, concluding that such a suspicion was reasonable. Viewing the testimony presented at the suppression hearing in its totality, we cannot agree.
When Officer Jackman saw Rounds on November 26, the only information he possessed was that Rounds had been a victim of a robbery in that same neighborhood two days earlier; that Rounds refused to make a report; that an unidentified person in the crowd said Rounds might be "hot"; that the neighborhood was known for shootings; and that shootings had increased in the neighborhood. In addition, Sergeant Plunkett acknowledged he made the stop within two minutes of hearing from Officer Jackman; Rounds was not speeding or engaging in any other traffic violations; and Sergeant Plunkett did not verify that Rounds had an active warrant, even though he could have done so.
It is unclear if the circuit court found as fact that the officers were in the area on November 26 responding to a specific report of "shots fired." To the extent the circuit court did make such a finding, we are left with a definite and firm conviction that the court got that "historical fact" wrong. Our de novo review of the record in this case convinces us that on November 26, the officers were "saturating the area" because of a generalized increase in shootings in the area, not a specific "shots fired" report. Even if we had not found clear error with any finding of fact that the officers were responding to a specific "shots fired" report on November 26, we would still have trouble finding there was reasonable suspicion to believe that Rounds was in the area to retaliate. In the absence of such a particularized fact, it is impossible to arrive at this conclusion. There are as many unsuspicious reasons for Rounds refusing to make a report of the robbery on November 24 as there are suspicious reasons. Additionally, there are as many unsuspicious reasons as suspicious ones for Rounds to be driving in the same area two days after he had been robbed. We are further convinced by the totality of the circumstances that Sergeant Plunkett's actual reason for stopping Rounds was his reliance on Officer Jackman's report that Rounds might have an active warrant; however, under the circumstances presented here, that does not render the officer's suspicion reasonable. Basing a stop on the fact that Rounds was the victim of a robbery two days before, in a high-crime neighborhood, and an unidentified person had yelled that he might be "hot" (a claim never verified by the officers); that he had refused to make a report of that robbery; and that he had returned to the same neighborhood on November 26 does not satisfy the threshold for a reasonable suspicion that Rounds was going to retaliate for the earlier robbery.
The totality of these circumstances does not provide reasonable suspicion that Rounds was committing, had committed, or was about to commit a felony or a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property sufficient to justify a stop pursuant to Rule 3.1. In short, the evidence presented by the State did not demonstrate that the officers had specific, particularized, and articulable reasons to indicate Rounds was involved in criminal activity. Without reasonable suspicion that Rounds was involved in criminal activity, the stop made by Sergeant Plunkett was unconstitutional. Because we find that the stop was not justified, we hold that the trial court erred in denying Rounds's motion to suppress the firearm that was subsequently seized.
Reversed and remanded.
Vaught and Brown, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
Lynn Roberts and Vicki Steen appeal from the Stone County Circuit Court's final judgment entered after a jury found in favor of Rita Riege and the Rita May Riege Revocable Trust (the Trust). On appeal, Roberts argues that (1) the circuit court erred by entering a default judgment against him on Riege's counterclaims; (2) there was insufficient evidence to support the jury's damages award; and (3) there was insufficient evidence to support the Trust's adverse-possession and boundary-by-acquiescence claims. We affirm.
This case involves a property dispute between Roberts and Riege over a narrow strip of land in Stone County. Specifically, Roberts owns property adjacent to the Trust's property. Riege is the trustee and lives on the Trust's property. A private road, Raccoon Lane, runs on Roberts's property. The strip of land is located between Raccoon Lane and the Trust's property.
On November 5, 2014, Roberts filed a complaint against Riege alleging that he owns the strip of land along Raccoon Lane and that beginning in July 2006, Riege had repeatedly and unlawfully entered the land and used Raccoon Lane to access her home. He asserted a claim for the loss of the quiet enjoyment and exclusive use of his property. In the alternative, he asked the court to restrain Riege from trespassing on his property. On November 12, 2014, Roberts amended his complaint to assert claims for trespass and battery, as well as civil liability pursuant to Arkansas Code Annotated section 16-118-107 (Repl. 2016) for second-degree battery.
On December 4, 2014, Riege answered and asserted eight counterclaims against Roberts: two claims for civil liability pursuant to Arkansas Code Annotated section 16-118-107 for aggravated assault with a deadly weapon; civil liability under Arkansas Code Annotated section 16-118-107 for second-degree battery; two claims for civil assault; civil battery; intrusion on seclusion; and outrage.
Also on December 4, 2014, the Trust moved to intervene alleging that the Trust owned the strip of land bordering Raccoon Lane and that Roberts had trespassed on the Trust's property. In the alternative, the Trust filed a petition for quiet title of the strip of land based on adverse possession and boundary by acquiescence and a prescriptive easement to Raccoon Lane.
On January 22, 2015, Roberts replied to Riege's counterclaims. On February 2, 2015, Riege moved to strike Roberts's answer and for a default judgment on her counterclaims for failure to file a timely answer. On February 3, 2015, Roberts filed a motion for enlargement of time to respond to Riege's counterclaims. He conceded that he filed a belated reply to Riege's counterclaims but asserted that the belated reply was "attributable to the mistake, inadvertence, and excusable neglect" of his attorney. Specifically, he stated that his attorney had prepared a reply to Riege's counterclaims on or around December 14, 2014, but that the reply had not been filed with the circuit clerk. He further asserted that an enlargement of time would not prejudice Riege because the parties had not engaged in discovery, Riege's counterclaims were substantially similar to Roberts's claims, and she could not have been surprised by his reply.
On April 27, 2015, the circuit court entered an order granting Riege's motion to strike Roberts's answer and for a default judgment and denying Roberts's motion for enlargement of time. The court ordered that a jury shall determine Riege's damages. The court also granted the Trust's motion to intervene.
On September 22, 2016, the court held a jury trial on Roberts's claims, Riege's damages for her counterclaims, and the Trust's claims. The jury awarded Riege $2,000 for past and future mental anguish; $2,000 in punitive damages for her intrusion-on-seclusion claim; $5,000 for past and future mental anguish; and $10,000 in punitive damages for her outrage claim. The jury awarded the Trust $5,000 in actual damages and $10,000 in punitive damages for its trespass claim, and the jury also found in favor of the Trust on its adverse-possession and boundary-by-acquiescence claims. The jury found against Roberts on his trespass and battery claims. The circuit court entered a final order and judgment on October 25, 2016, and an amended final order and judgment on October 24, 2017. Roberts appealed the judgment to this court.
On appeal, Roberts first argues that the circuit court erred in granting Riege's motion for a default judgment because Riege's counterclaims failed to state sufficient facts upon which relief can be granted. However, Roberts did not make this argument to the circuit court in his motion for enlargement of time. Rather, he argued that the court should not enter a default judgment because his untimely answer was attributable to the mistake, inadvertence, and excusable neglect of his attorney and because Riege was not prejudiced. It is well settled that we will not consider an issue raised for the first time on appeal. Morgan v. Century 21 Perry Real Estate , 78 Ark. App. 180, 79 S.W.3d 878 (2002). In Morgan , this court held that appellant's claim of fraud in obtaining service of process could not be considered on appeal because he failed to allege the argument as a basis for his motion to set aside a default judgment. Id. Accordingly, in this case, because Roberts did not allege his failure-to-state-a-claim argument to the circuit court, it is not preserved for our review.
Roberts next argues that the jury's actual, mental-anguish, and punitive damages awards for Riege's intrusion-on-seclusion and outrage claims and for the Trust's trespass claim were not supported by the evidence. However, Roberts is procedurally barred from challenging the sufficiency of the evidence of both Riege's and the Trust's damages because he failed to move for a directed verdict at the jury trial. Arkansas Rule of Civil Procedure 50(e) requires that "in a jury trial, a party who does not have the burden of proof on a claim or defense must move for a directed verdict based on insufficient evidence at the conclusion of all the evidence to preserve a challenge to the sufficiency of the evidence for appellate review." This court has held that an appellant is procedurally barred from challenging the sufficiency of a punitive-damages award when it failed to move for a directed verdict and permitted the jury to be instructed on punitive damages without objection. Superior Fed. Bank v. Mackey , 84 Ark. App. 1, 129 S.W.3d 324 (2003) ; see also Bronakowski v. Lindhurst , 2009 Ark. App. 513, 324 S.W.3d 719 (holding that the appellant waived a sufficiency argument as to punitive damages when he failed to renew his directed-verdict motion at the close of evidence).
Here, Roberts did not move for a directed verdict at trial and did not object to the jury instructions, which instructed the jury that it could award Riege and the Trust those damages on their claims of intrusion on seclusion, outrage, and trespass. Accordingly, his failure to preserve the issue precludes us from considering his sufficiency argument on appeal.
Roberts lastly argues that there was insufficient evidence to support the Trust's adverse-possession and boundary-by-acquiescence claims. Again, Roberts did not move for a directed verdict on those claims and did not object to the jury instructions on those claims. Thus, he is precluded from challenging those claims on appeal. See Ark. R. Civ. P. 50(e).
Affirmed.
Gruber, C.J., and Gladwin, J., agree.
For clarity purposes, we will hereinafter refer to Roberts and Steen jointly as "Roberts." Vicki Steen was added as a party at trial by consent of the parties when it was determined that her name is on the deed of Roberts's property.
The jury did not award Riege damages on her remaining six claims.
The circuit court granted Riege's directed-verdict motion on Roberts's claim pursuant to Arkansas Code Annotated section 16-118-107 at trial. Further, at the conclusion of trial, the parties stipulated to Riege's prescriptive easement.
Roberts initially appealed the October 25, 2016 judgment to this court. On July 19, 2017, we dismissed the case without prejudice for lack of a final order on a motion to dismiss filed by Riege. See Roberts v. Riege , 2017 Ark. App. 408, 526 S.W.3d 60. Having considered the court's amended final order and judgment, we find that we now have jurisdiction over the appeal.
We reiterate that the circuit court entered a default judgment against Roberts on Riege's intrusion-on-seclusion and outrage claims. In Arkansas, a default judgment establishes liability but not the extent of damages. Volunteer Transp., Inc. v. House , 357 Ark. 95, 162 S.W.3d 456 (2004). A hearing is required to establish damages, and the plaintiff must introduce evidence to support damages. Entertainer, Inc. v. Duffy , 2012 Ark. 202, 407 S.W.3d 514. However, a defaulting party is precluded from defending on the issue of liability. Jones v. McGraw , 374 Ark. 483, 288 S.W.3d 623 (2008). | [
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BART F. VIRDEN, Judge
Heather Gann appeals the order of the Faulkner County Circuit Court terminating her parental rights to A.G. (born 5/2/04), Q.G. (born 9/12/07), and D.G. (born 8/29/15). We affirm.
On March 16, 2016, a 72-hour emergency hold was taken on Heather and Jacen Gann's three children, and the Arkansas Department of Human Services ("the Department") filed a petition for emergency custody and dependency-neglect. The attached affidavit of facts set forth that the Damascus Police Department received a call that Heather was walking with D.G. in and out of traffic on Highway 65. Chief of Police Rick Perry responded and reported that when he talked to Heather, she seemed "out of her mind" and that she told him that she needed help because a terrorist was "going to get her." Heather was arrested for endangering the welfare of a minor, and she refused a drug screen. Family service worker Cynthia Thompson met with Heather that day and noted that Heather appeared to be under the influence of drugs and that she was "antsy, anxious, and agitated." It was noted in the affidavit that Heather had a prior history with the Department: in November 2010 and in April 2015 the court had made true findings of inadequate supervision, and in August 2015 D.G. was found to have been born with drugs in his system. The circuit court entered an ex parte order for emergency custody. On March 24, 2016, the circuit court entered an order finding probable cause to remove the children from Heather's custody existed at the time of removal and continued to exist.
On May 12, 2016, the circuit court entered an adjudication order following a hearing. The circuit court based its decision in part on Heather's testimony that while she was walking along Highway 65, she had an anxiety attack and had given D.G. to a man named "Russell." D.G. was located at a veterinary clinic across the highway. Heather testified that she could not remember the last time she had taken drugs but that she had not wanted to take a test on the day of removal because she was afraid she had been given methamphetamine without her knowledge. The circuit court also heard the testimony of Chief Perry and family service worker Thompson that reflected their statements found in the affidavit of facts.
The circuit court entered an order finding by a preponderance of the evidence that Heather's children were dependent-neglected and were at substantial risk of harm as a result of neglect due to inadequate supervision and parental unfitness due to Jacen's drug use. The circuit court found that Heather had prior contact with the Department going back to 2010 for true findings of inadequate supervision and for D.G. having been born with drugs in his system and that she was currently incarcerated in the Faulkner County jail for endangering the welfare of a minor.
Heather was ordered to keep in contact with the Department and inform the Department of any changes in address or contact information, submit to psychological testing and drug-and-alcohol assessment and follow any resulting recommendations, maintain sobriety, submit to drug screens, complete parenting classes and demonstrate appropriate parenting skills after completing the classes, participate in individual counseling, maintain stable housing and employment, and demonstrate the ability to protect and keep juveniles safe. Heather was ordered to watch the video "The Clock is Ticking," and the court advised Heather that there was a limited amount of time to comply with the case plan and effect the return of the children. The circuit court informed Heather that a permanency-planning hearing would take place on March 16, 2017, and that failure to make appropriate progress during the statutory time frame and failure to correct the conditions could result in the termination of her parental rights. Heather was allowed to have two hours of supervised visitation per week. The circuit court ordered the Department to develop a case plan, offer services, set up hair-follicle testing, and provide a drug-assessment referral.
On July 12, 2016, after a review hearing, the circuit court entered an order finding that the children should remain in the Department's custody, that the concurrent goals were reunification and adoption, and that visitation between the parents and children was appropriate. The circuit court found that Heather had failed to comply with the case plan and orders, specifically, she had not maintained contact with the Department after she was released from the Faulkner County Detention Center. The circuit court found that the Department had complied with the case plan and court orders and had made reasonable efforts to provide family services toward reunification.
On October 25, 2016, the circuit court entered a review order pursuant to a hearing. Again, the circuit court found that Heather had not complied with the case plan, and it found that Heather had spent the majority of the case in jail, she had failed to attend NA/AA meetings, she had not been active in the ordered services, and she had made no progress toward alleviating the causes of removal. The circuit court found that the Department had complied with the case plan.
On January 24, 2017, the circuit court entered a review order in which it found that visitation between the parents and the children was appropriate, and it increased visitation to four hours of unsupervised visitation per week. The court found that Heather had partially complied with the case plan: she was employed part time, she was scheduled to have a psychological evaluation in March, she would complete parenting classes in one week, and she had been in her current address for two months; however, her hair-follicle test in October had been positive for methamphetamine, she had missed some visitation, she had been in police custody for several months after the removal, she had tested positive for THC two weeks before the hearing, and she had made minimal progress toward alleviating the conditions that caused removal. The Department was found to have complied with the case plan.
Heather's situation had improved by the next hearing on March 7, 2017. Pursuant to that hearing, the circuit court entered a permanency-planning order setting forth that reunification was still the goal and that visitation was expanded to allow visitation at the treatment facility. The circuit court found that Heather had complied with the court orders. Namely, she had completed parenting classes, and she had completed drug assessment and was ready to begin the thirty-day inpatient-treatment program. Heather had completed her psychological assessment and had begun counseling, and she had "made much progress toward alleviating or mitigating the causes of the juveniles' removal from the home."
On June 12, 2017, the Department filed a petition to terminate Heather's parental rights. The Department alleged three statutory grounds for termination. First, the Department alleged that the juveniles had been adjudicated by the court to be dependent-neglected and had continued out of the custody of the mother for twelve months, and despite a meaningful effort by the Department to rehabilitate Heather, she had failed to correct the conditions that caused removal. Specifically, the Department alleged that after the children had been removed on March 16, 2016, Heather had been absent for much of the case due to her incarceration, and she had been jailed again from September 10 to October 10. The Department stated that Heather had begun participating in services right before the permanency-planning hearing and that she entered drug treatment fourteen months after the case began. The Department asserted that though Heather had made efforts to comply with the case plan, she had begun at the eleventh hour, and she had not had time to demonstrate her sobriety or the ability to supervise the juveniles and to meet their needs.
Second, the Department alleged that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in Heather's custody was contrary to the juveniles' health, safety or welfare and that, despite the offer of appropriate family services, Heather had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent the placement of the juveniles in her custody. Specifically, the Department argued that Heather had not obtained stable employment or housing, had not exercised visitation until late in the case (after the first nine months), and had been arrested during the pendency of the case. The Department alleged that Heather lived a chaotic, unstable lifestyle that would be detrimental to the children's welfare if they were returned to her.
Last, the Department alleged the "aggravated circumstances" ground: that there is little likelihood that services to the family would result in successful reunification. Specifically, the Department asserted that Heather had been offered ample services, yet she had not demonstrated an ability to maintain sobriety. Heather's eleventh-hour participation meant that she could not reunify with the children in a time period that would be meaningful to the children as they had been in foster care for fifteen months.
The next day, the fifteen-month review hearing took place. In the following order, the court found that reunification was still not possible, and adoption became the primary goal. The court found that Heather had partially complied with the case plan, specifically, she was in inpatient drug treatment, and she had made minimal progress toward alleviating the conditions that caused removal; however, she had not attained stable housing or employment. The court found that the Department had complied with the case plan.
At the July 25, 2017 termination hearing, Heather testified that she had completed her thirty-day inpatient treatment, and she was now at the Decision Point aftercare facility where D.G. was allowed to stay with her. Heather testified that she had arranged for D.G. to live at the facility but that her caseworker had not made "any moves to place D.G. there[.]" Due to their age, Heather's older children could visit only on the weekend. Heather testified that the circuit court had expanded visitation to four hours of unsupervised visitation per week but that the Department had not provided transportation for the children on a weekly basis as ordered. Decision Point program assistant Lisa Dowdy testified that she had facilitated Heather's visitation with the kids; however, Dowdy did not recall that the caseworker ever stated that Heather was allowed weekly visitation. Dowdy explained that she sets up visitation according to what the caseworker says is ordered by the court.
Department caseworker Cheryl Taylor testified that she had not tried to have D.G. placed with Heather at Decision Point because the Department's policy is to keep siblings together, though she admitted that the children had not been kept together during this case. Taylor testified that Heather had gotten a late start in the case and that she was not in a position to take the kids home. Heather obtained employment at a horseback-riding facility only two days before the hearing, the potential home on the property where she worked was not ready, and she had not demonstrated the ability to safely parent her children. Taylor explained that she had not pursued visitation between Heather and the kids when Heather lived in White County because the kids had not been welcome where she was staying. Taylor admitted that Decision Point allowed visitation for the older kids every weekend and not every other weekend as she previously stated.
Heather testified that she had not consistently exercised visitation because she had been in jail for about four months of the case and that she spent her time out of jail trying to find housing and employment. Heather explained that she did not visit the children from October to January because she did not have family support or a regular place to stay and that she and the father were "trying to get our wits about us and get back into the case."
Heather stated that she had obtained employment at the Heels Down horseback-riding facility the Sunday before the hearing and that she had been offered a three-bedroom, two-bathroom home on the property where she works, which she could have set up within a week. Heather testified that she would earn $10 per hour and would work between thirteen and twenty hours per week, which would allow her to pay the $500-per-month rent that included utilities.
The court asked Heather if she could demonstrate that she could maintain her sobriety, employment, and housing if she had not done so in the past year. Heather admitted that she had delayed participation in the case and that she had not done her drug assessment until March 2017. Heather explained that after the assessment, she then had to wait for a bed at Wilbur Mills treatment facility. When she arrived on April 11, Heather was immediately removed from the facility because it was discovered that her sister was already there. After that setback, Heather received placement at a Bentonville facility on May 8. Heather testified that she is strong willed and that she had come to realize that her kids mean everything to her and deserve better.
Heather's two older children testified at the termination hearing. A.G., thirteen at the time of the hearing, stated that she had never seen her mother use drugs and that she did not feel afraid or unsafe when she was in her mother's care. A.G. testified that she wanted to live with her mother, but that foster care had been okay. Q.G., who was a month away from his tenth birthday, testified that he wanted to go live with his mother first, his grandparents second, and his father third. Q.G. stated that adoption would be okay if he could talk to his parents and meet up with them after work sometimes.
On August 14, 2017, the circuit court entered an order terminating Heather's parental rights and based its decision on the failure-to-remedy statutory ground and aggravated-circumstances ground. The circuit court found that due to Heather's incarceration, it had been impossible to perform drug testing for much of the case; however, she had tested positive for methamphetamine on October 25, 2016, positive for Oxycontin on January 27, 2017, and positive for THC on January 31, February 16, and February 23, 2017. The court found that when the children were placed in foster care both parents had been serious drug abusers. The court noted that though Heather last tested positive in February, she was still living in the rehab facility and could not take all the children into her custody. The court found that Heather had not taken steps to deal with her drug issue until after the permanency-planning hearing in March and that she had not "demonstrated an ability to maintain a clean and sober lifestyle and provide for the juveniles' needs." The circuit court acknowledged that Heather and her children loved each other but that it was not convinced that the kids could be safely returned to her custody.
The circuit court also found by clear and convincing evidence that it was in the children's best interest to terminate Heather's parental rights. It considered the adoption specialist's testimony that the children were adoptable and the potential harm to the children if returned to their mother. Specifically, the court considered Heather's inability to maintain a sober lifestyle and demonstrate an ability to safely parent the children. Heather filed a timely notice of appeal.
On appeal, Heather argues that the circuit court erred when it determined that the evidence was sufficient to prove the statutory grounds for termination and that there was sufficient evidence to prove that termination is in the best interest of the children. The crux of Heather's argument is that her slow compliance is not a basis for termination when weighed against the other evidence of her improvement and that the court did not consider all of the relevant factors in her favor. We disagree, and we affirm.
The standard of review in termination-of-parental-rights appeals is de novo, but we reverse a circuit court's decision to terminate parental rights only when it is clearly erroneous. Hernandez v. Ark. Dep't of Human Servs. , 2016 Ark. App. 250, 492 S.W.3d 119. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Id. Credibility determinations are left to the fact-finder, here, the circuit court. Schaible v. Ark. Dep't of Human Servs. , 2014 Ark. App. 541, 444 S.W.3d 366.
The right of a natural parent to the custody of his or her child is "one of the highest of natural rights." Mayberry v. Flowers , 347 Ark. 476, 484, 65 S.W.3d 418, 424 (2002). Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Helvey v. Ark. Dep't of Human Servs. , 2016 Ark. App. 418, 501 S.W.3d 398. A circuit court may order termination of parental rights if it finds there is an "appropriate permanency placement plan" for the child and further finds by clear and convincing evidence that termination is in the best interest of the child, taking into consideration the likelihood of adoption and the potential harm to the health and safety of the child that would be caused by returning him or her to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2017). Finally, there must be clear and convincing evidence to support one or more of the nine grounds for termination listed in Arkansas Code Annotated section 9-27-341(b)(3)(B).
The intent of our termination statute is to provide permanency in a minor child's life in circumstances where returning the child to the family home is contrary to the child's health, safety, or welfare, and where the evidence demonstrates that the return cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). The issue is whether the parent has become a stable, safe parent able to care for the child. Lee v. Ark. Dep't of Human Servs. , 102 Ark. App. 337, 285 S.W.3d 277 (2008).
As a preliminary issue, we address Heather's assertion that the circuit court erred because "slow compliance is not a basis for terminating a parent's parental rights." We disagree with her characterization of the circuit court's findings. The circuit court makes it clear that Heather's slow compliance with the case plan is not the basis for termination but that it is one of the reasons for Heather's inability to demonstrate sobriety and stability in a reasonable amount of time as viewed from the children's perspective. Heather likens the instant case to Prows v. Arkansas Department of Human Services , 102 Ark. App. 205, 283 S.W.3d 637 (2008), in which we reversed the circuit court's termination of parental rights based on its erroneous understanding of the termination statute. In Prows , the circuit court found that it was prohibited from considering the mother's recent improvement in her mental stability and that the termination statute dictated that if the child cannot be returned to the custody of the parent the day of the termination hearing, then the court is required to terminate parental rights. By contrast, in the instant case the circuit court did not base its decision on an erroneous understanding of the statutory grounds for termination, as is shown in the order:
Although Heather has made some overtures toward participating in services, she was absent from her children's lives for the majority of this case and did not avail herself to any services until the 11th hour. Even if Heather completes inpatient rehab, she has failed to demonstrate that she will be able to maintain her sobriety for any substantial period of time, and she has failed to demonstrate an improved ability to supervise the juveniles and meet their needs.
We now turn to Heather's argument that there is insufficient evidence that she failed to remedy the conditions that caused removal. Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) sets forth that termination is warranted when a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve 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. Heather challenges the circuit court's conclusion that she "did not remedy her drug issue." Heather cites several cases in support of her argument that reversal is warranted, including Kight v. Arkansas Department of Human Services , 87 Ark. App. 230, 189 S.W.3d 498 (2004). In Kight , we reversed the termination of Kight's parental rights where the mother had remained sober for six months prior to termination despite a few lapses in judgement such as fraternizing with drug-abusing/criminal father of children and relapse during the case while pregnant. Kight is distinguishable for several important reasons, the most relevant being that Kight had been given weekend passes for the six months she was in the treatment facility, and she had managed to maintain her sobriety despite being unsupervised on the weekends. This is demonstrable sobriety. Furthermore, the sole cause of removal in Kight was parental drug use. Inadequate supervision was not at issue, and Kight's caseworker testified that even though Kight had been using drugs, she had been working and had been a stable caregiver. Here, inadequate supervision was the specific cause of removal from Heather's custody, and she was never able to demonstrate that she could adequately supervise her children.
The circuit court found that though Heather had not tested positive since late February, she had not demonstrated that she could maintain a sober lifestyle and provide for the children's needs. At the termination hearing, Heather testified that she had delayed her participation in the case plan such that she tested positive for drugs eleven months after the children were removed, that she did not complete a drug-and-alcohol assessment until one year into the case, and that she did not begin drug treatment until May 2017. Heather asserts that forces beyond her control were the cause of delay; however, it was her drug use and wandering onto the highway with her child that caused her incarceration for 105 days for endangering the welfare of a minor. While Heather was out of jail from July to September, and from October to January, she did not avail herself to the services relating to her drug use or her parenting ability. Though the lack of availability at the treatment facility and the unforeseen circumstance of having to leave one facility because her sister was in treatment there also contributed a two-month loss of time, Heather was not just two months behind schedule.
The circuit court noted that Heather's progress was commendable, and it acknowledged that Heather had maintained sobriety and had achieved a total of five months without a positive drug screen; however, she had not begun taking steps to address her substance abuse until after the permanency-planning hearing, and at the time of the termination hearing, Heather still lived at the treatment facility and could not have all three children with her there. The weekend before the termination hearing Heather acquired a job, and she was offered a home at the ranch where she worked, but she had not begun work and the house was not ready for occupation. In essence, Heather's challenge to the sufficiency of the evidence seeks to have this court reweigh the evidence, which we cannot do. Credibility determinations are left to the circuit court. Greenhaw v. Ark. Dep't of Human Servs. , 2016 Ark. App. 294, 495 S.W.3d 109. Because the Department was required to prove only one statutory ground, we do not address the aggravated-circumstances ground. See Shawkey v. Ark. Dep't of Human Servs. , 2017 Ark. App. 2, 510 S.W.3d 803.
We also affirm the circuit court's finding that it is in the best interest of the children to terminate Heather's parental rights. Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A)(i)-(ii), in considering "best interest," the circuit court must consider two factors: (1) the likelihood of the children's adoption as a permanency plan and (2) potential harm caused by returning the children to the custody of the parent. In determining potential harm, which is forward-looking, the court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Dowdy v. Ark. Dep't of Human Servs. , 2009 Ark. App. 180, 314 S.W.3d 722. The court, however, does not have to determine that every factor considered be established by clear and convincing evidence. Instead, after considering all the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. Welch v. Ark. Dep't of Human Servs. , 2010 Ark. App. 798, at 9, 378 S.W.3d 290, 295.
Heather argues that the best-interest analysis is not limited to just adoptability and potential-harm factors and that the circuit court erred by failing "to consider the children and their desire to return to their mother or the marked progress [she] made during this case." Heather asserts that our court has considered several different factors when reviewing a circuit court's best-interest finding, including whether the parent inflicted actual harm on the child, and what effect termination would have on the family relationship. See Lively v. Ark. Dep't of Human Servs. , 2015 Ark. App. 131, 456 S.W.3d 383 ; Caldwell v. Ark. Dep't of Human Servs. , 2010 Ark. App. 102, 2010 WL 374432. In both Lively and Caldwell , our court reversed the circuit court's decision that it was in the best interest of the children to terminate parental rights in part because important family relationships would be affected by termination, and because termination was not necessary to achieve permanency, which is the goal of the statute. However, in both these cases, the children had a permanent, stable home with their biological mothers, and there was "no expectation that they would ever be put up for adoption"; thus, termination of these fathers' parental rights was not warranted. Lively , 2015 Ark. App. at 8, 456 S.W.3d at 388. Here, there was no testimony or evidence that the children have a permanent, stable home with their father or any family members, and the circuit court did not err in deciding that adoption was necessary to achieve permanency.
Furthermore, the circuit court made it clear that it considered the strides Heather had made in the last five months and the children's feelings toward their parents but that the children's safety was foremost in its decision. The circuit court held that
[w]hen the children came into foster care, both Heather and Jacen had serious substance abuse issues that interfered with their ability to safely parent their children. Although both parents have "checked the box" and completed inpatient drug rehabilitation, neither parent has demonstrated an ability to maintain a clean and sober lifestyle and provide for the juveniles' needs. Heather has not had a positive screen since February 23, 2017, but as of the date of the termination hearing, she was still residing at the inpatient rehabilitation facility and could not take all three juveniles into her care and custody. Jacen relapsed numerous times throughout this case, and Heather did not begin to take steps to address her substance abuse until after the permanency planning hearing. While it is apparent that the parents love their children and that their children love their parents, the Court is not convinced that the children can be safely returned to either parent.
Again, Heather asks this court to reweigh the evidence of her progress. The circuit court decided that because Heather had not demonstrated that she could remain sober and supervise her children adequately, it could not safely return the children to her care. Moreover, in light of the testimony that the Department had been involved with the family for Heather's drug issues and inability to properly supervise her children since 2010, we cannot find error in the circuit court's refusal to allow Heather more time. The children's need for permanency and stability may override a parent's request for more time to improve the parent's circumstances. Knuckles v. Ark. Dep't of Human Servs. , 2015 Ark. App. 463, 469 S.W.3d 377. In spite of her recent completion of drug rehabilitation, the primary issue-whether Heather had become a stable, safe parent with the ability to care for her children-remained unresolved.
Affirmed.
Gladwin and Vaught, JJ., agree.
Father Jacen Gann's parental rights were also terminated in the circuit court's order; however, Jacen is not a party to this appeal.
Heather was released from the Faulkner County jail in or around late June, and she was incarcerated again in the Cleburne County jail from September 10 to October 10.
Heather does not challenge the circuit court's finding of adoptability. | [
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DAVID M. GLOVER, Judge
Gary and Kristin Marks (jointly the "Markses") appeal from the trial court's discovery sanctions that struck their answer and granted default judgment in favor of Beckie Saville as guardian of the estate of Willa Dean Jackson. They raise three points of appeal: 1) this court should reverse and remand the judgment appealed from and allow a trial; 2) this court should reverse and remand the denial of the motion to alter or amend, or alternatively motion for new trial, or judgment notwithstanding the verdict, and remand for trial; and 3) the trial court should have reopened the record in light of the appellants' affidavits to allow testimony. We affirm.
Trial Court Proceedings
On April 16, 2016, Beckie Saville, as guardian of the estate of Willa Dean Jackson, filed a complaint seeking to set aside a warranty deed to Gary Alan Marks and also to recover $32,500 from him. The complaint alleged that Gary exerted threats, duress, and undue influence against Willa Dean's attorney-in-fact (her sister Bobbie Jackson McGoughan) to acquire the warranty deed and the money. Beckie filed an amended complaint on May 24, 2016, when she learned Gary had married Kristin, and added Kristin as a party. On June 1, 2016, Beckie propounded discovery requests to the Markses. By July 13, 2016, the Markses had failed to respond to the discovery requests, and Beckie's counsel sent a good-faith letter to the Markses' counsel, asking that the responses be provided within seven days. Partial responses were provided, but in an attempt to obtain more complete responses, Beckie's counsel filed a second good-faith letter to opposing counsel on July 22, 2016. The July 22 letter reported that the responses were deficient, explained why, asked for complete discovery responses within ten days, and asserted that a failure to do so would result in Beckie is filing a motion to compel and a request for attorney's fees, costs, and other sanctions.
On August 17, 2016, Beckie's counsel filed a motion to compel discovery. In it, he set forth the above timeline of events and further explained that Beckie had also agreed to an additional request for an extension of time to August 10, 2016, submitted by email on July 28, 2016, but that as of August 16, 2016, the Markses had still failed to fully respond to the discovery requests, resulting in the August 17, 2016 motion to compel. Beckie's counsel sought an order compelling discovery, Rule 37 sanctions, attorney's fees, and costs. The trial court granted the motion and entered an order compelling discovery on September 19, 2016. The Markses were ordered to provide full and complete responses to Beckie's discovery requests by 5:00 p.m. on September 30, 2016. Before the order was entered, the Markses had provided supplemental responses on September 14, 2016. On September 16, 2016, Beckie's counsel prepared yet another good-faith letter advising the Markses that their responses were still deficient and that Beckie would file a motion to strike the Markses' answers and request judgment if they did not comply with the order compelling discovery by 5:00 p.m. on September 30, 2016. The Markses did not comply, and on October 6, 2016, Beckie filed a motion for sanctions. In it, she sought to have the Markses' answers struck and default judgment entered pursuant to Rule 37(b)(2) of the Arkansas Rules of Civil Procedure, along with a request for attorney's fees and costs.
On November 10, 2016, a hearing on the sanctions motion was held. Counsel for both parties were present but not the Markses themselves. Beckie's counsel recounted his efforts to obtain the requested discovery from the Markses, the court's order to compel, and the continued failure to provide complete discovery, along with similar failures to respond to discovery requests in the companion probate case before the same judge. At the trial court's request, Beckie's counsel also reviewed the specific interrogatories and requests for production for which he had not received complete responses. Also at the trial court's request, he differentiated the discovery requests he felt the Markses were evading and those to which they were not fully responsive.
The trial court then turned to the Markses' counsel and asked if he was aware of any defenses that would counter or mitigate what "appeared to be an attempt to thwart the discovery process by the Markses." The Markses' counsel reported that he had spoken to them at length regarding the deficiencies in their discovery responses; that they had "flat out" refused to respond in any other way; that he had explained the consequences of their actions, "up to and including a default judgment"; and that they told him they did not care about the consequences because they did not intend to rehash their lives and did not feel the requests were relevant. Their counsel further stated he did not know of any defense for their actions, expressed his frustration that he had never had a client refuse to respond to even simple discovery requests, and stated that he could not make them budge. The trial court then questioned both counsel to satisfy itself that the discovery failures were caused by the Markses themselves and not their counsel. At the conclusion of the hearing, the trial court ruled from the bench that it was going to grant the requested relief.
On November 23, 2016, the Markses filed a verified motion for reconsideration, asserting that although their counsel had informed them "of the ramifications of not giving complete answers," they believed their responses were complete. They further stated that they "had not disclosed contact information for their witnesses for fear of retaliation to them"; they requested more time to get answers to Beckie "in a way that would ensure safety of the witnesses"; and asked the court to reinstate the pleadings and set aside the default judgment.
On November 29, 2016, the trial court entered an order granting the Markses' counsel's request to withdraw from representation of the Markses in this matter. The court also inserted a handwritten sentence in this order denying the Markses' motion for reconsideration. (On December 5, 2016, the trial court entered a separate order, explaining that the purpose of the order was "to note that as of November 29, 2016, Defendants' Motion for Reconsideration filed November 23, 2016 was denied.") On December 2, 2016, the trial court entered the written order and judgment that struck the answers, granted the default judgment, voided the warranty deed, directed the Markses to vacate the premises, and awarded $32,500 to the guardianship estate, as well as $3,266.57 in attorney's fees and costs.
On December 9, 2016, the Markses filed a notice of appeal from the December 2, 2016 order and judgment. Additional post-trial motions were filed on December 9, 2016, in the form of a motion to alter or amend, or alternatively for new trial or JNOV, and a motion to set aside default judgment. Also on December 9, 2016, a motion to stay was filed. On December 22, 2016, the Markses filed a motion to reopen the record. On January 18, 2017, the trial court entered an order specifically denying the motions filed on December 9 (at least one of which was deemed denied as of January 9, 2016), and also denying the December 22 motion. The first amended notice of appeal was filed on January 13, 2017, and the second amended notice of appeal was filed on January 25, 2017.
Finality
We begin our discussion by clarifying that this appeal is from a final judgment.
It is not an interlocutory appeal as categorized by the Markses. While our rules of appellate procedure allow for interlocutory appeals from orders that strike an answer or any part of an answer, Ark. R. App. P.-Civil 2(a)(4), that is not the situation presented here. In this case, the trial court struck the Markses' answers but also entered a default judgment that addressed all matters raised in the complaint, including the award of $32,500 in damages, without first holding a hearing to address the damages issue. The Markses do not challenge the fact that the trial court included damages in the default judgment without first conducting a hearing. The default judgment is therefore a final and appealable judgment, and this is not an interlocutory appeal.
Discussion
The Markses' three points of appeal are all interrelated, but we will address them separately as presented in the briefs. When the issues involve the trial court's imposition of discovery sanctions, we review them under an abuse-of-discretion standard because the imposition of discovery sanctions lies within the trial court's discretion. Ross Sys., Inc. v. Advanced Envtl. Recycling Tech., Inc. , 2011 Ark. 473, 2011 WL 5437571. Where the Markses argue errors of law, we review the issues de novo, recognizing that an error of law in and of itself can also constitute an abuse of discretion. O'Dell v. Peck , 2017 Ark. App. 532, 2017 WL 4663919. A trial court commits an abuse of discretion when it improvidently exercises its discretion, as when it is exercised thoughtlessly and without due consideration. Ross Sys., Inc. , supra. If a party fails to obey an order to provide or permit discovery, under Ark. R. Civ. P. 37(b)(2) the trial court "may make such orders in regard to the failure as are just," including an order "rendering a judgment by default against the disobedient party." Our appellate courts have repeatedly upheld the trial court's exercise of discretion in fashioning severe sanctions for flagrant discovery violations, including dismissal. Ross Sys., Inc. , supra (citing Calandro v. Parkerson , 333 Ark. 603, 970 S.W.2d 796 (1998) ); National Front Page, LLC v. State , 350 Ark. 286, 86 S.W.3d 848 (2002). There is no requirement under Rule 37, or any of our rules of civil procedure, that the trial court make a finding of willful or deliberate disregard before sanctions may be imposed for the failure to comply with the discovery requirements, and incomplete responses are treated as a failure to respond. Ross Sys., Inc. , supra ; see also Ark. R. Civ. P. 37(a)(3). Moreover, a trial court is not required to hold a hearing before imposing sanctions, Burton v. Sparler , 272 Ark. 254, 613 S.W.2d 394 (1981). The finality or severity of the sanctions imposed by the trial court is of no consequence because Rule 37 specifically provides for dismissal of the action in the case of a flagrant failure to comply with discovery. National Front Page, LLC, supra. Rule 37(d) of the Arkansas Rules of Civil Procedure authorizes a trial court to impose sanctions, including default judgment, for noncompliance with the rules of discovery without first issuing an order compelling discovery. Id. ; see also Lake Village Healthcare Ctr., LLC v. Hatchett , 2012 Ark. 223, 407 S.W.3d 521.
I. Sanctions
For their first point of appeal, the Markses acknowledge that Rule 37 allows a trial court to employ a variety of sanctions when discovery violations have been committed, including striking pleadings and rendering default judgments. They specifically contend, however, that in exercising the discretion to utilize such sanctions a trial court should ask whether the party had actual knowledge of the order;
should consider the range of sanctions and carefully analyze them, reopening the record and considering conflicting testimony when applicable; and should consider other, less drastic, avenues. They argue that their affidavits demonstrate they were not disobedient regarding discovery and that the judgment should therefore be reversed and remanded for an evidentiary hearing where they can testify and present evidence about the discovery issue before sanctions are determined. We find no abuse of discretion.
Here, the trial court was confronted with a series of efforts by Beckie's counsel to obtain discovery pursuant to our rules of civil procedure, including discovery requests, good-faith letters, extensions of time to respond, and the court's own entry of an order compelling discovery-none of which had been successful in obtaining complete discovery responses. During the course of the hearing, the trial court questioned Beckie's counsel extensively about the specific discovery requests, asking which ones he considered to be incomplete and which ones he considered to be evasive. The court reviewed the discovery history in the present case and in the companion probate case. In considering appropriate sanctions, the trial court conveyed its awareness of the seriousness of striking an answer and granting a default judgment. The court then asked counsel for the Markses if he was aware of any defense for the Markses' failure to comply with appropriate discovery, and counsel candidly reported that he did not. Counsel also expressed his own frustration with the situation and reported that the Markses "flat out" refused to provide any more responses to the discovery requests. We conclude that the trial court did not act improvidently or without thoughtful consideration, and although the sanctions were harsh, we find no abuse of discretion in the trial court's decision to impose them.
All of the Markses' points of appeal focus to some degree on affidavits they submitted with a post-hearing motion following entry of the default judgment. Accordingly, we address the affidavits within this first point of appeal. The Markses submitted the affidavits in an effort to counter their attorney's statements at the sanctions hearing. They acknowledge it is problematic to submit affidavits after the trial court had ruled on their discovery violations. We agree. The Markses have not convinced us that it would be appropriate for us to consider the affidavits under the circumstances presented here, and the cases they rely upon do not help their cause. See , e.g. , Young v. Barbera , 366 Ark. 120, 233 S.W.3d 651 (2006) (not allowing chiropractor's affidavit to challenge damage award); Shropshire v. State , 86 Ark. 481, 111 S.W. 470 (1908) (allowing affidavit that qualified as important evidence discovered by defendant after verdict); Dolan v. State , 40 Ark. 454, 1883 WL 1170 (1883) (allowing affidavits asserting jurors were drinking during trial). In Young , the affidavits were not allowed, and even though the affidavits were allowed in Dolan and Shropshire , the circumstances are not comparable. Moreover, even though the Markses were not present at the sanctions hearing, their counsel was present, and the trial court was justified in presuming that counsel was authorized to act for them. See Riley v. Vest , 235 Ark. 192, 357 S.W.2d 497 (1962). An attorney's acts of omission and commission are regarded as the acts of the client. White v. White , 50 Ark. App. 240, 905 S.W.2d 485 (1995). Moreover, the Markses' subsequent November 23, 2016 motion for reconsideration was verified and stated in part that their former counsel had advised them of the ramifications of not giving complete answers.
II. Multi-Faceted Motion
For their second point of appeal, the Markses contend we should reverse and remand the denial of their "motion to alter or amend, or alternatively motion for new trial, or judgment notwithstanding the verdict," and remand for trial. The motion and accompanying brief were not models of clarity, but generally they 1) claimed a lack of notice regarding the November 10 sanctions hearing; 2) contended their affidavits countered their attorney's report of events; 3) generally alleged mistake, inadvertence, surprise, and excusable neglect; 4) claimed no willful violation of discovery rules; and 5) asserted irregularity in the proceedings because they were not physically present. We find no error in the denial of this multi-faceted motion.
The Markses acknowledge at the outset of this argument that their post-hearing motion was based on specific procedural rules, and they particularly reference Rules 50(b), 59, and 55(c) of the Arkansas Rules of Civil Procedure. They then attempt to recharacterize the motion as one that, in substance, was based on Ark. R. Civ. P. 60(a)"to prevent the miscarriage of justice." Rather than specifically addressing Rules 50(b), 59, and 55(c) and explaining how the trial court erred, they return to a discussion of their affidavits, quoting them at length and designating them as proffered evidence to support their motion for new trial and to reopen the record. They also rely upon what they "anticipate" will be demonstrated upon remand and a hearing, i.e., that their "initial thoughts to discovery were never intended to be 'cut and pasted' into a responsive pleading" and that their notary signatures "were not contemporaneous with these pleadings."
We have previously explained why we will not consider the Markses' affidavits in this appeal, and their "anticipated" evidence upon remand and a hearing fails to demonstrate how the trial court erred in denying their motion under Rules 50(b), 59, and 55(c). For the reasons previously discussed, the Markses' absence from the November 10 hearing was not such an irregularity in the proceedings as to prevent to support them from having a fair "trial." They were represented by counsel, and he was present at the hearing even though they were not. His acts may be regarded as the acts of his clients. White , 50 Ark. App. 240, 905 S.W.2d 485.
We note that the Markses quote Rule 52(b) as part of their second point of appeal, but their argument in reliance upon it is unclear. In addition, to the extent they now attempt to recast their post-hearing motion as one made pursuant to Ark. R. Civ. P. 60(a), we are not convinced. As they acknowledge in their brief, the motion they filed with the trial court specifically enumerated and relied upon Rules 50(b), 59, and 55(c). They urge, however, that the substance of their post-hearing motion demonstrates it was, in effect, based on Rule 60(a) in an effort to "prevent the miscarriage of justice." We disagree, but even if we did not, for all of the reasons previously discussed, the Markses have not demonstrated an abuse of discretion by the trial court in imposing the sanctions it did, and neither have they demonstrated error in the trial court's denial of their post-hearing "motion to alter or amend, or alternatively motion for new trial, or judgment notwithstanding the verdict."
III. Reopening the Record
For their final point of appeal, the Markses contend that the trial court should have reopened the record in light of their affidavits to allow testimony. We disagree.
The default judgment in this case was entered on December 2, 2016. The Markses filed their motion to reopen the record on December 22, 2016, relying again upon the affidavits they filed with their post-hearing motion previously discussed under Point II. We have already discussed why we are not persuaded to consider the affidavits. Moreover, the motion to reopen merely stated that it was pursued under the Arkansas Rules of Civil Procedure and the inherent authority of the court. No specific procedural rule was referenced in either the motion or the accompanying brief. In addition, the cases relied upon by the Markses in their brief to our court involve situations, generally, in which the parties sought to reopen the record after one or both parties had rested but before judgment had been entered or verdicts returned. See , e.g. , Lagios v. Goldman , 2016 Ark. 59, 483 S.W.3d 810 ; Sanders v. State , 310 Ark. 510, 838 S.W.2d 359 (1992) ; H&M Realty Co. v. Union Mechling Corp. , 268 Ark. 592, 595 S.W.2d 232 (1980) ; Midwest Lime Co. v. Independence Cty. Chancery Court , 261 Ark. 695, 551 S.W.2d 537 (1977) ; Pulaski Cty. v. Horton , 224 Ark. 864, 276 S.W.2d 706 (1955). These cases cited by the Markses are distinguishable from the situation presented here because the motion to reopen in the instant case was filed after the trial court had entered the default judgment. Even if they could not be distinguished, however, these same cases make clear that a decision to reopen the record and take additional evidence lies in the trial court's considerable discretion. Still further, and as mentioned previously, the Markses cited no particular procedural rule in asking the trial court to reopen the record, and we can think of no procedural rule that allows for the reopening of the record that does not also rely upon the trial court's exercise of discretion. See , e.g. , Ark. R. Civ. P. 59(a) ("On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment." (Emphasis added.)). We find no abuse of discretion in the trial court's denial of the motion to reopen the record in this case.
Affirmed.
Harrison and Vaught, JJ., agree. | [
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LARRY D. VAUGHT, Judge
This appeal arises from Sarah Howard Jenkins's petition for guardianship over the person and estate of her mother, Vivian Howard. Vivian appeals the Jefferson County Circuit Court's order requiring Sarah and her sister Risie Howard to work together to immediately obtain a professional evaluation of Vivian's medical condition. We affirm the circuit court's order.
Vivian is ninety-two years old. She is deaf and partially blind, uses a wheelchair, and has been cared for in her home by her daughter Risie since 2012. In July 2017, Vivian's daughter Sarah filed a petition for guardianship of the person and estate of Vivian, citing Vivian's declining health and inability to manage her finances and care. Sarah alleged that, while her sister Risie had been living with their mother, Risie had transferred a significant amount of Vivian's money to Risie's personal checking account, directed that numerous payments be made from Vivian's accounts for Risie's expenses, and failed to properly care for Vivian. Vivian filed a motion to dismiss on which the court never ruled.
The original guardianship hearing was set for September 12, 2017, but was continued on a motion filed by Vivian. At the subsequent hearing, held on February 7, 2018, Vivian argued that the petition should be denied because the statutorily required medical evaluation had not been performed. The court stated that the argument was premature. Dr. Robin Perry testified that she has been treating Vivian for approximately two years. Vivian's attorney objected that Dr. Perry's testimony should be excluded pursuant to the doctor-patient privilege, which Vivian had not waived. The court took the argument under advisement. Dr. Perry testified to examining Vivian on March 21, 2017, and testified to Vivian's medical conditions, including moderate-to-severe age-related dementia. Dr. Perry's professional evaluation was entered into evidence as petitioner's exhibit 1.
Sarah testified about the events giving rise to her guardianship petition. During Sarah's testimony, the court noted the time of day and stated that it was clear that the hearing could not be completed in the time remaining and that it would need to be continued. The court ordered that Vivian remain in Risie's care until the next hearing but said that the rest of the family should have access to Vivian. The court then noted that both the court and the bailiff had concerns about Vivian's current medical condition and stated,
The court security officer is concerned about her. I am concerned about her. I want her taken and evaluated and I want a report back on whether she needs to remain where she is at on Second Street in her home or does she need to be placed in an assisted living facility or a medical wing of a hospital. Based on what I've heard so far, what I see and the court's bailiff's concerns observing her, I'm concerned about her and I want this done. So I want Ms. Jenkins and Ms. Risie Howard, I am appointing both of you to see that your mother gets to a doctor. And if you want to use Dr. Perry, let's just use Dr. Perry.
The court continued the hearing and issued a written order requiring the sisters to obtain a professional medical evaluation on Vivian the following day, February 8. The court's order required that the evaluation address Vivian's medical condition(s) and provide recommendations as to her future care, including but not limited to continued care at home, full-time nursing-home care, or assisted-living care. Vivian filed a notice of appeal stating that she was immediately appealing this order pursuant to Rule 2(a)(12) of the Arkansas Rules of Appellate Procedure-Civil.
We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Donley v. Donley , 2016 Ark. 243, at 6, 493 S.W.3d 762, 766 (citing Graham v. Matheny , 2009 Ark. 481, 346 S.W.3d 273 ). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. at 6, 493 S.W.3d at 766. When reviewing the proceedings, we give due regard to the opportunity and superior position of the circuit court to determine the credibility of the witnesses. Id. , 493 S.W.3d at 766. However, we give no deference to the circuit court on matters of law. Freeman v. Rushton , 360 Ark. 445, 202 S.W.3d 485 (2005).
Although Vivian has appealed only the order requiring her to undergo a professional medical evaluation, her first point on appeal attacks the court's subject-matter jurisdiction over the entire case and seeks dismissal of Sarah's guardianship petition. Vivian claims that, because a professional evaluation was not attached to the petition for guardianship, the court had no power to hear the matter or issue the order from which she appeals. She presents the issue as one of subject-matter jurisdiction. We disagree.
Whether Sarah has fully complied with the statutory requirements for obtaining a guardianship is not a jurisdictional issue, and this challenge is not properly before us for appellate review. Vivian relies heavily on Keenan v. Peevy , 267 Ark. 218, 235-36, 590 S.W.2d 259, 269 (1979), in which the Arkansas Supreme Court held that a probate court lacked subject-matter jurisdiction to grant a petition for guardianship that failed to allege that the person over whom the guardianship was sought suffered from any form of mental incapacity. Vivian did not raise lack of subject-matter jurisdiction below, and she never obtained a ruling from the circuit court on the issue. While jurisdictional issues can be raised for the first time on appeal, the Arkansas Supreme Court has also explained that "it is only when the lower court lacks jurisdiction in any and all circumstances that the challenging party will be excused from objecting to the jurisdiction in the trial court." Parker v. Sebourn , 351 Ark. 453, 456, 95 S.W.3d 762, 763 (2003). This distinction can be instructive in understanding the holding in Keenan , which was one of the rare cases in which the lower court lacked jurisdiction in any and all circumstances (i.e., there was no circumstance in which the circuit court would have had authority under the statute to enter a guardianship over a person who had only a physical incapacity and no alleged mental incapacity). The same cannot be said about the case at bar. Vivian's argument is not that Sarah failed to allege facts under which the guardianship statute would have conferred jurisdiction, it is essentially a challenge to the sufficiency of the proof Sarah has presented as to Vivian's alleged incapacity.
In a recent guardianship case, we addressed a similar issue and explained,
At oral argument, [appellant's] counsel made clear that this was an argument about the circuit court's jurisdiction to issue the original guardianship order, asserting that the petition's deficiencies meant that the court lacked jurisdiction to issue the order. We disagree. The law has long recognized a difference between a lack of jurisdiction and the erroneous exercise of jurisdiction. See, e.g. , Cato v. Craighead Cty. Circuit Court , 2009 Ark. 334, at 5, 322 S.W.3d 484, 488 (citing Erin, Inc. v. White Cty. Circuit Court , 369 Ark. 265, 268, 253 S.W.3d 444, 446 (2007) ). Moreover, in other cases in which we have found that the statutory requirements for obtaining a guardianship were not met, we have reversed rather than dismissed for lack of jurisdiction, indicating that a deficiency in the evidence presented to obtain the guardianship order does not strip the court of jurisdiction. See Autry v. Beckham , 2014 Ark. App. 692, at 7, 450 S.W.3d 247, 251.
Baptist Health Med. Ctr. v. First Cmty. Bank of Batesville , 2017 Ark. App. 671, at 4-5, 537 S.W.3d 760, 763. Therefore, because the arguments Vivian presents on appeal regarding Sarah's alleged failure to meet the statutory requirements to obtain a guardianship are not jurisdictional in nature, and because she failed to raise the issue or obtain a ruling, we will not address them.
Vivian also specifically challenges the court's authority to issue the professional-evaluation order from which she appeals. Arkansas Code Annotated section 28-65-212, which requires that a professional evaluation be performed within six months of the hearing, specifically states that "[i]f no professional evaluations performed within the last six (6) months are available, the court will order an independent evaluation." Ark. Code Ann. § 28-65-212(c)(1). Vivian's objections to the timeliness of Dr. Perry's evaluation make subsection (c)(1) all the more applicable. The court had statutory authority to order an independent medical evaluation for Vivian.
All of Vivian's remaining arguments relate to the sufficiency or admissibility of the evidence supporting Sarah's guardianship petition. As the court has not yet ruled on the merits of her petition, and since additional evidence is expected when the hearing resumes, these challenges are not yet ripe for our review. Ripeness is a jurisdictional requirement, and we lack jurisdiction to consider issues that are not ripe for appellate review. Hardin v. Bishop , 2013 Ark. 395, at 10, 430 S.W.3d 49, 55 ; Turner v. Brandt , 100 Ark. App. 350, 268 S.W.3d 924 (2007) (holding that the circuit court's threat to hold a litigant in contempt was not ripe for appellate review because a contempt order had not yet been issued by the court). While Rule 2(a)(12) of the Arkansas Rules of Appellate Procedure-Civil and Arkansas Code Annotated section 28-1-116 allow for an immediate appeal from all orders in probate cases, the rule does not create appellate jurisdiction over issues that are not yet ripe for appeal.
Affirmed.
Gruber, C.J., and Klappenbach, J., agree.
Portions of our record also refer to the appellee as Sarah Howard Jenkins Hobbs. For clarity, we have used the name by which she refers to herself in the appellee's brief.
On appeal, Sarah argues that Risie, not Vivian, is the true appellant. While we note that Risie's various roles in the case have caused some procedural confusion (she has, at various times, appeared as counsel of record for her mother and is also a fact witness in the case), Risie is not a party and has not claimed to bring an appeal on her own behalf. Vivian, a named party in the case, has appealed, and we recognize her as the appellant.
Arkansas Code Annotated section 28-65-212(a)(1) (Repl. 2012) requires that a professional evaluation be performed prior to the court hearing on any petition for guardianship (with a few exceptions that do not apply here). The statute later provides additional guidance as to what the evaluation must entail. It must have been completed within six months of the hearing. Ark. Code Ann. § 28-65-212(c)(1). Here, Vivian challenges (1) the fact that the evaluation was not attached to the petition and (2) the timeliness of Dr. Perry's evaluation.
Moreover, Vivian has waived this argument by voluntarily complying with the court's professional-evaluation order. A person who voluntarily complies with an order may not appeal the order. See, e.g. , Hall v. Hall , 2012 Ark. 429, at 2, 2012 WL 5583645. Our record contains Risie's response to a contempt petition filed by Sarah; Risie stated that she "believed that [they] had complied," because her mother was examined by an emergency-room doctor on February 8 and those records were faxed to the court the same day.
Vivian argues that Dr. Perry's testimony should have been excluded pursuant to doctor-patient privilege and HIPPA, that Dr. Perry's testimony and evaluation form are insufficient to support the petition, and that the guardianship petition was contrary to Vivian's wishes as expressed in a succession of healthcare directives and durable powers of attorney.
The statute does not allow for an immediate appeal from an order removing a fiduciary for failure to give a new bond or render an accounting required by the court or an order appointing a special administrator. Ark. Code Ann. § 28-1-116. | [
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KENNETH S. HIXSON, Judge
Appellant Meranda Martin, Successor Special Administratrix of the Estate of Virgil Brown, Jr., Deceased, appeals after the Pulaski County Circuit Court granted summary judgment in favor of appellee, Dr. Leslie Smith, based on the application of quasi-judicial immunity. Martin's sole point on appeal is that the circuit court erred in granting summary judgment and dismissing her complaint against Dr. Smith. We affirm.
The record reflects that in January 2004, Kenneth McFadden was acquitted of third-degree battery, second offense, against his then girlfriend by reason of mental disease or defect. He was admitted to the Arkansas State Hospital but was released on March 31, 2004, pursuant to a conditional-release order (CRO), pursuant to Act 911 of 1989, codified at Arkansas Code Annotated sections 5-2-310 and 5-2-313 to -315 (Repl. 2013 & Supp. 2017). One of the requirements for a conditional release is that the circuit court order a person to be in charge to, inter alia , monitor the person acquitted and keep the circuit court apprised of that person's compliance with the conditions of his release including, but not limited to, the person's compliance with the court-ordered prescribed regimen of medical, psychiatric, or psychological care or treatment. Ark. Code Ann. § 5-2-315(e). The reason for the monitoring and reporting requirement is that the circuit court has continuing jurisdiction over the acquitted person. Ark. Code Ann. § 5-2-315(e)(3)(C). A circuit court retains the authority to determine whether the person acquitted should be remanded to an appropriate facility on the ground that, in light of his or her failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his or her continued release would create a substantial risk of bodily injury to another person or serious damage to property of another person. Ark. Code Ann. § 5-2-315(e)(3)(C)(ii).
McFadden's initial conditional release was revoked in October 2006 because of his noncompliance with the terms of the CRO. McFadden was again released pursuant to a CRO entered in September 2007 to live in a residence in Corning, Arkansas, with Mid-South Health Systems as the court-appointed responsible agency. In October 2009, the CRO was modified by agreement, and McFadden was placed in a residence in North Little Rock, Arkansas, with his mother. The Craighead County Circuit Court appointed Gain, Inc. (Gain), as the responsible agency and transferred its continuing jurisdiction to the Pulaski County Circuit Court. Gain's medical director and treating psychiatrist was Dr. Leslie Smith. In July 2010, the circuit court granted Gain's motion to allow McFadden to move from his mother's residence to an apartment in North Little Rock. Then, in March 2011, Gain filed another motion to allow McFadden to move to an apartment in Little Rock, Arkansas, which was granted. McFadden shared this apartment with Virgil Brown and a third roommate. McFadden, Brown, and the third roommate were all patients of Dr. Smith, although McFadden was the only Act 911-CRO participant.
Dr. Smith evaluated and treated McFadden from 2009 through November 2011. Dr. Smith and other Gain personnel regularly kept the circuit court apprised of McFadden's condition and compliance with the treatment regimen. On November 30, 2011, while under the evaluation and treatment of Dr. Smith, McFadden brutally murdered his roommate, Virgil Brown. Appellant Martin, the authorized representative of Brown's estate, filed a lawsuit against Dr. Smith and others alleging, in relevant part, that Dr. Smith was negligent in his diagnosis, evaluation, and treatment of McFadden, which resulted in Brown's death. Dr. Smith subsequently filed a motion for summary judgment alleging he was entitled to quasi-judicial immunity because he was acting within the scope of his charge by the circuit court. The circuit court granted summary judgment in favor of Dr. Smith, explaining that
Dr. Smith is entitled to quasi-judicial immunity and is immune from suit because his treatment and medical care of Mr. McFadden arose solely from the conditional release order and his treatment and medical care was within the scope of that order. See Chambers v. Stern , 338 Ark. 332 [994 S.W.2d 463]. Considering the facts in this case, I find Fleming v. Vest , 2015 Ark. App. 636 [475 S.W.3d 576], to be inapplicable.
I have considered the response of plaintiff and find that plaintiff has not met proof with proof. Plaintiff's arguments do not refute the argument of Dr. Smith that quasi-judicial immunity applies in this case. Dr. Smith is entitled to summary judgment as a matter of law. The complaint against Dr. Smith is hereby dismissed with prejudice.
The order contained a proper certificate pursuant to Arkansas Rule of Civil Procedure 54(b), explaining the necessity of an immediate appeal, and this interlocutory appeal followed.
A circuit court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Blevins v. Hudson , 2016 Ark. 150, 489 S.W.3d 165. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. The burden is not on the moving party to demonstrate that every fact is undisputed, but to show that reasonable minds could not differ as to the conclusion to be drawn from them. Id. Summary judgment is also appropriate when the circuit court finds that the allegations, taken as true, fail to state a cause of action. Id. The issue of whether a party is immune from suit in a summary-judgment procedure is purely a question of law, and this court reviews that issue on appeal de novo. Early v. Crockett , 2014 Ark. 278, 436 S.W.3d 141.
Martin argues that the circuit court erred in granting summary judgment to Dr. Smith based on quasi-judicial immunity because the commitment process for McFadden had long been completed, and Dr. Smith was not an integral part of the judicial process. Martin devotes a portion of her brief to a discussion of the merits of her underlying action. However, that is not before us. Martin further discusses several cases from other jurisdictions in which quasi-judicial immunity has not been granted under similar circumstances. Martin additionally argues that public-policy considerations do not weigh in favor of granting a psychiatrist quasi-judicial immunity under these circumstances. However, Martin's reliance on jurisprudence from other jurisdictions and her argument regarding public-policy considerations is unpersuasive when our supreme court has already addressed these issues, and we are bound by our supreme court precedent and lack the authority to reach a contrary result. See Ferguson v. Ferguson , 2009 Ark. App. 549, at 9, 334 S.W.3d 425, 430.
The seminal case in Arkansas regarding the granting of quasi-judicial immunity to a psychiatrist is Chambers v. Stern , 338 Ark. 332, 994 S.W.2d 463 (1999) ( Chambers I ). Chambers I was a divorce and child-custody case. The circuit court ordered Dr. Stern to evaluate and treat the parties and their children. Id. Four years later, Dr. Stern was still treating the family members. Id. The father filed a lawsuit against Dr. Stern for alleged malpractice that was committed "during the therapy or 'treatment' phase with the family members." Id. at 334, 994 S.W.2d at 464. Dr. Stern sought a dismissal, which the circuit court granted, on the basis that he was entitled to quasi-judicial immunity because he was acting within the scope of the circuit court's order. Id. The case was appealed to our supreme court. The Chambers I court held that "a court-appointed physician is entitled to judicial immunity so long as he was serving an integral part of the judicial process by carrying out and acting within the scope of a court's order. "
Chambers I , 338 Ark. at 338, 994 S.W.2d at 466 (emphasis added). Our supreme court noted that public-policy considerations compelled it "to extend judicial immunity to court-appointed therapists. Psychologists and other experts would be reluctant to accept appointments if they were subject to personal liability for actions taken in their official capacities." Id. at 338, 994 S.W.2d at 466.
Therefore, the issue before us is whether Dr. Smith, at the time of any alleged negligence or malpractice herein, was serving an integral part of the judicial process by carrying out and acting within the scope of a court's order. If the answer is "yes," then Dr. Smith is entitled to quasi-judicial immunity. An Act 911 conditional release cannot be ordered without a person being appointed "to be in charge" to monitor the person acquitted as set forth in the statutory scheme discussed above. Ark. Code Ann. § 5-2-315. The appointment of the person in charge is clearly an integral part of the CRO-release process. Here, it is clear that Dr. Smith was serving an integral part of the judicial process by carrying out and acting within the scope of a court's order. Gain was appointed by the circuit court as the responsible agency for the acquitted person, Kenneth McFadden, pursuant to Arkansas Code Annotated section 5-2-315(e). Dr. Smith was the medical director and treating psychiatrist for Gain. The records indicate that Dr. Smith had been treating and monitoring McFadden pursuant to the CRO from 2009 up to, and including, the date of Virgil Brown's murder. Further, Gain and Dr. Smith were keeping the circuit court apprised of McFadden's condition and compliance. Thus, under Chambers I , Dr. Smith was serving an integral part of the judicial process by carrying out and acting within the scope of a court's order and is entitled to quasi-judicial immunity.
Martin also argues that Dr. Smith is not entitled to quasi-judicial immunity because Dr. Smith was not specifically named in the CRO-only Gain was specifically named. She therefore argues that the facts of this case are identical to those in Fleming v. Vest , 2015 Ark. App. 636, 475 S.W.3d 576. We, however, find the facts of Vest to be distinguishable.
Vest, interestingly enough, is an Act 911 conditional-release case. In Vest , a CRO was filed by the circuit court, and the person acquitted, as in our case, subsequently murdered a victim. Id. The deceased's estate filed a lawsuit against Dr. Vest. Id. Dr. Vest moved to dismiss the complaint, alleging that he was entitled to quasi-judicial immunity as set forth in Chambers I . Id. The circuit court agreed and dismissed Dr. Vest. Id. On appeal to our court, we reversed the granting of quasi-judicial immunity, holding that "[t]he court [conditional-release] orders never identify [the treating psychiatrist], and he confirmed in his deposition that he never communicated with the circuit court." Vest , 2015 Ark. App. 636, at 9, 475 S.W.3d at 582. Of particular import, however, is that our Vest court did not hold that quasi-judicial immunity did not apply to Act 911 CROs; rather, our court held that there was no evidence that Dr. Vest was identified as the treating psychiatrist. Id.
Apparently in Vest , the psychiatrist did not communicate at all with the court as contemplated by the conditional-release statutory scheme. In contrast here, although "Gain, Inc.," was identified as the "responsible agency" in the CRO, it is uncontradicted that Dr. Smith was the medical director of Gain and was also McFadden's treating psychiatrist. Further, and perhaps more importantly, Dr. Smith clearly communicated with the court directly in two letters concerning McFadden's mental and medical condition and his compliance with the court-ordered regimen; Dr. Smith was copied on five other letters to the court, which indicated that Dr. Smith was the treating "GAIN Psychiatrist." One of the letters written by Dr. Smith to the circuit court explained that McFadden had become more psychiatrically unstable and that his schedule had been modified to five days a week. The other letter described McFadden's ostensible violent actions of kicking in his roommate's door. The two letters written by Dr. Smith and the five letters written to the circuit court on which Dr. Smith was copied show that, unlike the psychiatrist in Vest , Dr. Smith was not a stranger to the court, that the circuit court was aware that Dr. Smith was the treating psychiatrist, and that Dr. Smith had been communicating with the court pursuant to the circuit court's CRO. As such, Vest is distinguishable, and appellant's reliance thereon is misplaced. Thus, the summary-judgment order granting quasi-judicial immunity to Dr. Smith is hereby affirmed.
Affirmed.
Gladwin, Klappenbach, Murphy, and Brown, JJ., agree.
Harrison, J., dissents.
Dr. Smith should not be receiving judicial immunity in this case. Therefore, I respectfully dissent. The majority and I agree that whether he met the applicable professional standards of care or any other duty owed is not now at issue.
Regarding the question that is before us, the lone case on which the majority relies cannot adequately support the decision to immunize mental-health practitioners who treat the conditional-release population. To put the majority position into perspective, my research has not revealed one case in this country where a court has clothed a psychiatrist, on similar facts, with the type of immunity Dr. Smith received today.
Arkansas stands as a minority of one. Time will tell whether its privileged position will be short or long lived.
About the case on which the majority hangs all, I disagree that Chambers v. Stern controls as a matter of stare decisis , which is shorthand for the maxim "to stand by things decided and not disturb settled points." Bryan Garner, et al., THE LAW OF JUDICIAL PRECEDENTS 5 (Thomson Reuters 2016). Just what did the supreme court "settle" in Chambers ? It could not have settled the question of constitutional importance this case presents, because Chambers involved a materially different fact pattern and legal context. The majority may well be correct, but I lack its confidence that our supreme court would cite Chambers , extend its reach into this new realm, and end the case. Whatever importance one attaches to Chambers , at least the psychiatrist who received judicial immunity there was individually named in the court order, and the court had expressly delegated a classical judicial function (determining divorcing parents' visitation rights with children) to the psychiatrist.
The opposite happened here. Dr. Smith was not personally appointed in a judicial order. He was not expressly delegated a traditional judicial function. Yet performing a traditional judicial function is the polestar in determining whether someone qualifies for judicial immunity. E.g. , Cleavinger v. Saxner , 474 U.S. 193, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (applying a "functional" analysis).
Numerous court decisions across this country have protected mental-health professionals when they make mental-competency recommendations to courts, who must in turn decide whether a defendant may proceed under the "normal" course of the criminal laws. E.g. , Seibel v. Kemble , 63 Haw. 516, 631 P.2d 173 (1981). Some decisions involve courts relying on mental-health professionals to give opinions in the child-custody or visitation realm, as our supreme court did in Chambers . It is a mistake, however, to hold that a psychiatrist performs a judicial function when his or her primary role is to treat a patient according to professional standards of care in the field of psychiatry, for example-an endeavor that is not integral to how the judiciary functions. If the Arkansas General Assembly chooses to evaluate the issue and expressly immunizes health-care personnel who treat Act 911 participants like Kenneth McFadden, then we have a different case. If the Arkansas Supreme Court evaluates the issue in a case on point and expressly confers immunity, then we have a different case. But this court should not award judicial immunity to Dr. Smith, not today.
Arkansas's Medical Malpractice Act does not give tort immunity to any type of health-care provider, in any field of practice. The majority also overlooks that the General Assembly has arguably taken a policy position opposite its stance. In 2013, our legislature enacted Ark. Code Ann. § 20-45-202 (Repl. 2014), which addresses the psychiatrist/patient/third-party-harm intersection. The statute presumably balanced relevant and competing societal interests, and the General Assembly's final calculation-a difficult one to make and best left to it-was not to immunize any provider unless the required statutory steps had been taken. The statute did not give absolute immunity to any mental-health provider based solely on an affiliation with a certain program or patient population.
Still, Dr. Smith and similarly situated professionals retain substantial protection from at least some adverse consequences that may flow from treating the (sometimes) unstable and (sometimes) dangerous patients they encounter. Section 20-45-202 cuts a path to total immunity from "liability" or "suit" if certain steps are taken. Please take a moment to digest the statute.
(a) A mental health services provider, hospital, facility, community mental health center, or clinic is not subject to liability, suit, or a claim under § 19-10-204 on grounds that a mental health services provider did not prevent harm to an individual or to property caused by a patient if:
(1) The patient communicates to the mental health services provider an explicit and imminent threat to kill or seriously injure a clearly or reasonably identifiable potential victim or to commit a specific violent act or to destroy property under circumstances that could easily lead to serious personal injury or death and the patient has an apparent intent and ability to carry out the threat; and
(2) The mental health services provider takes the precautions specified in subsection (b) of this section in an attempt to prevent the threatened harm.
(b) A duty owed by a mental health services provider to take reasonable precautions to prevent harm threatened by a patient is discharged, as a matter of law, if the mental health services provider in a timely manner:
(1) Notifies:
(A) A law enforcement agency in the county in which the potential victim resides;
(B) A law enforcement agency in the county in which the patient resides; or
(C) The Department of Arkansas State Police; or
(2) Arranges for the patient's immediate voluntary or involuntary hospitalization.
(c)(1) If a patient who is under eighteen (18) years of age threatens to commit suicide or serious or life-threatening bodily harm upon himself or herself, the mental health services provider shall make a reasonable effort to communicate the threat to the patient's custodial parent.
(2) If the mental health services provider is unable to contact the patient's custodial parent within a reasonable time, the mental health services provider shall make a reasonable effort to communicate the threat to the patient's noncustodial parent or legal guardian.
(d) A mental health services provider, hospital, facility, community mental health center, or clinic is not subject to liability, suit, or claim under § 19-10-204 for disclosing a confidential communication made by or relating to a patient if the patient has explicitly threatened to cause serious harm to an individual or to property under circumstances that could easily lead to serious personal injury or death or if the provider has a reasonable belief that the patient poses a credible threat of serious harm to an individual or to property.
(e)(1) If a patient in the custody of a hospital, community mental health center, or other facility threatens to harm an individual or property, the mental health services provider and the staff of the hospital, community mental health center, or other facility shall consider and evaluate the threat before discharging the patient.
(2) Under subdivision (e)(1) of this section, the mental health services provider may inform an appropriate law enforcement agency and the victim of the threat.
(f) Subsections (a) and (c) of this section apply to a hospital or facility that has custody of a patient who has made or makes a threat to harm an individual or property.
The circuit court did not address this statute. The majority has also remained mum. I grant the statute cannot decide this appeal with the certainty of 1 + 1 = 2; but it strongly suggests that the question of whether a psychiatrist may claim absolute immunity, out of the box, in a third-party-harm case (like this one), has been considered and rejected. At least regarding the Act 911 population, practitioners like Dr. Smith knowingly and consistently treat patients who have already shown a propensity to be dangerous to other people or property. Section 20-45-202(b) states that mental-health providers owe a "duty" "to take reasonable precautions to prevent harm threatened by a patient[.]" The General Assembly did not except from this duty providers who treat Act 911 participants. The statute did, however, strike what appears to be an express trade-off-practitioners who adequately attend to, and warn of, a "credible threat" to people or property receive, essentially, immunity. The statute therefore seems a relatively tight fit to this case, meaning it should be considered in this court's analysis when discussing Chambers 's precedential strength.
This brings us to a point that the circuit court and the majority found highly important, if not critical, which is the policy statement in Chambers and the assumption underlying it. During the summary-judgment hearing, the circuit court essentially stated that if people like Dr. Smith are not given absolute immunity then they will not treat the Act 911 population. The circuit court's statement is well-intentioned, no doubt; and it likely sought to echo the reasoning in Chambers . The court may be right. Or wrong. No one knows. And that is a main concern here-rooting an absolute-immunity doctrine in a factually unsubstantiated statement about what could happen but has not yet happened and might never happen. We have no statement from psychiatrists (or a representative organization) advising that they begin and end their workdays concerned about, or plan career paths based on, Arkansas's judicial-immunity doctrine. While the majority has assumed a lot about mental-health professionals' motivations, I prefer not to guess given the tabula rasa before us.
Better that judges stick to the known. We know that no party gave the circuit court or this court any social-science data, testimony, or statement hinting that a provider-availability concern might suddenly ensue if judicial immunity is restrictively applied. We know not even Dr. Smith himself said that he will stop treating conditional-release patients unless he receives immunity. Given the facts, I am not persuaded that the policy statement can fuel an absolute-immunity doctrine. See Naidu v. Laird , 539 A.2d 1064 (Del. 1988) (affirming jury verdict against a state-hospital psychiatrist who was grossly negligent in releasing mental patient who subsequently killed another person in an automobile accident; rejecting for want of factual proof the policy argument from amici that a provider exodus would ensue absent immunity).
Whatever pressure the Chambers policy statement may exert, the premier policymaking body is the General Assembly. "[I]t must be remembered that courts do not make the state's public policy. It is their function to declare what it is, while the power inheres in the General Assembly of the state to declare what shall be the public policy of this state." Ross v. Rich , 210 Ark. 74, 78, 194 S.W.2d 297, 298 (1946). In my view, section 20-45-202 embodies a policy in tension with how the majority has applied Chambers .
Next observation. Neither the circuit court nor this court has deeply explained how Dr. Smith functioned like a judge under the conditional-release program.
McFadden was committed to the custody of the Arkansas Department of Human Services by statute. Ark. Code Ann. § 5-2-315(d) (Repl. 2013). An employee of DHS's Division of Behavioral Health Services was identified as the conditional-release monitor in all the written correspondence to the circuit court. Ark. Code Ann. § 5-2-315(e). Gain, Inc.'s role, by court order, was as "the responsible agency for monitoring [McFadden's] compliance to his prescribed medication and treatment regime." But the order says nothing about Dr. Smith, which is unlike Chambers . Nor was Dr. Smith himself ever legally empowered to revoke McFadden's conditional release. Only the circuit court could do so. Ark. Code Ann. § 5-2-315(e)(3)(C)(ii) ("After a hearing, the circuit court shall determine whether the person acquitted should be remanded to an appropriate facility[.]").
Another legal point that pushes me away from the majority position is that, under conditional-release law, a treating psychiatrist has limited professional power over his patients. This is so because, by statute, the circuit court retains all power to modify or eliminate a care or treatment plan. Ark. Code Ann. § 5-2-315(e)(3)(D) ("At any time after a hearing ... the circuit court may modify or eliminate the prescribed regimen of medical, psychiatric, or psychological care or treatment.") In other words: the circuit court reigns supreme in all material aspects of the conditional-release program, including retaining the power to modify or eliminate a physician's care or treatment plan. Given this revelation, can there be a meaningful delegation of a core judicial function to health-care practitioners under Act 911?
I do not see it.
The statutes under which Gain, Inc. received McFadden, and Dr. Smith treated him, declare that Dr. Smith has no judge-like authority. How did the doctor himself perceive his role within the system? He told us during a deposition
I did not notify the Court [that McFadden had kicked in Brown's bedroom door] it would have already happened related to the program, GAIN. I evaluate the psychiatric status. It is GAIN's responsibility to notify the 911 monitor of this incident. I assess whether someone is psychiatrically responding to something, and should there be a change in medication.
I hear Dr. Smith saying that he sees himself for what he is: A treating physician, not a judicial actor.
The majority mentions that some compliance reports flowed from the DHS monitor (who is neither Dr. Smith nor Gain, Inc.) to the circuit court. Okay. And Dr. Smith jointly signed two letters that went to the circuit court from Gain, Inc. Okay. The burning question, however, is whether the doctor functioned as a judge.
Again, I do not see it.
A final task remains: We must consider the Constitution of the State of Arkansas. Article 2, section 13 provides, "Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character[.]" Ark. Const. art. 2, § 13 (1874). This is a first principle. The judicial-immunity doctrine, however, totally prevents Virgil Brown's family from at least seeking redress in a court of law for his violent death at McFadden's hands. Consequently, it must be applied with care and restraint.
* * *
Dr. Leslie Smith's service to Act 911 participants is commendable. But the legal decision to grant him judicial immunity on this record should be reversed. One distinguishable case and a handful of letters do not override this court's constitutional mandate to guard all citizens' ability to pursue a remedy for an alleged harm. Moreover, in my view, the Arkansas General Assembly has spoken since Chambers v. Stern was first issued, and the statute it enacted provides the superior guide on when immunity should be conferred in this case's context.
Gain, Inc., is an acronym for Greater Assistance to those In Need, Inc.
There are remaining codefendants in this litigation; therefore, the Rule 54(b) certificate was properly filed to permit this interlocutory appeal.
The question concerning whether Dr. Smith is entitled to quasi-judicial immunity must be resolved before considering the merits of any negligence claim. Chambers v. Stern , 338 Ark. 332, 994 S.W.2d 463 (1999). This is true because quasi-judicial immunity provides absolute immunity from suit and would extend to any actions that were within the scope of his authority. See generally Blevins , supra.
Our supreme court remanded the case for further findings because the circuit court's order granting the dismissal failed to make specific written findings regarding whether Dr. Stern's actions were within the scope of his court-appointed capacity. Id. On remand, the circuit court concluded that Dr. Stern was acting within the scope of the divorce court's order and was therefore entitled to immunity. Our supreme court affirmed that decision in a subsequent appeal. Chambers v. Stern , 347 Ark. 395, 64 S.W.3d 737 (2002) (Chambers II ).
For a comprehensive and nuanced article on mental-health-provider liability issues, see J. Thomas Sullivan, Arkansas, Meet Tarasoff: The Question of Expanded Liability to Third Persons for Mental Health Professionals , 69 Ark. L. Rev. 987 (2017).
The enabling act was titled: "AN ACT TO REQUIRE A MENTAL HEALTH SERVICES PROVIDER TO WARN A LAW ENFORCEMENT AGENCY OF A CREDIBLE THREAT BY A PATIENT; AND FOR OTHER PURPOSES." Its subtitle was: "TO REQUIRE A MENTAL HEALTH SERVICES PROVIDER TO WARN A LAW ENFORCEMENT AGENCY OF A CREDIBLE THREAT BY A PATIENT." H.B. 1746, 89th General Assem., Reg. Sess. (Ark. 2013).
Whether Dr. Smith or anyone else met Ark. Code Ann. § 20-45-202's requirements is not before this court in this appeal. | [
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SHAWN A. WOMACK, Associate Justice
Appellant Kenneth Ray Osburn appeals the denial and dismissal of his petition for writ of error coram nobis. Because the trial court did not abuse its discretion in denying relief, we affirm.
Osburn was initially convicted in the Ashley County Circuit Court of capital murder and kidnapping for the disappearance and death of a seventeen-year-old girl, but on appeal, this court reversed and remanded for a new trial because of evidentiary errors. Osburn v. State , 2009 Ark. 390, 326 S.W.3d 771. We held that custodial statements Osburn made should not have been admitted, but the trial court had not erred in admitting the testimony of Connie Sparks, who testified about a similar incident that occurred twenty-seven years earlier. Id.
Following the remand, Osburn entered a negotiated guilty plea to kidnapping and second-degree murder for an aggregate sentence of 480 months' imprisonment. Osburn sought postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2017) challenging the judgment on the plea, and the Arkansas Court of Appeals affirmed the denial of his petition. Osburn v. State , 2018 Ark. App. 97, 538 S.W.3d 258. Osburn then filed in the trial court the petition seeking the writ of error coram nobis that is the subject of this appeal.
The standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Griffin v. State , 2018 Ark. 10, 535 S.W.3d 261. An abuse of discretion occurs when the trial court acts arbitrarily or groundlessly. Id. The trial court's findings of fact on which it bases its decision to grant or deny the petition for writ of error coram nobis will not be reversed on appeal unless those findings are clearly erroneous or clearly against the preponderance of the evidence. Ramirez v. State , 2018 Ark. 32, 536 S.W.3d 614. There is no abuse of discretion in the denial of coram nobis relief when the claims in the petition were groundless. Griffin , 2018 Ark. 10, 535 S.W.3d 261.
A writ of error coram nobis is an extraordinarily rare remedy, and proceedings for the writ are attended by a strong presumption that the judgment of conviction is valid. Jackson v. State , 2018 Ark. 227, 549 S.W.3d 356. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id.
The writ is allowed under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Rayford v. State , 2018 Ark. 183, 546 S.W.3d 475. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id.
On appeal, Osburn raises two points for reversal. In the first, he alleges error in the trial court's failure to issue the writ because he asserted that a violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), resulted from the prosecutor's withholding the case file for case No. 21CR-82-27, a criminal proceeding against Osburn in Desha County he alleged arose from the previous incident with Sparks. Osburn contends that the proceedings were dismissed for a speedy-trial violation and that the case file containing that information could have been used to challenge Sparks's testimony. Osburn additionally raises some issues in this point alleging that the testimony in his first trial included perjury, and his argument about suppressed evidence is intertwined with allegations that his trial counsel was ineffective. In his second point, Osburn alleges error because the trial court found that ineffective assistance was not within the purview of coram nobis proceedings.
Suppression of material exculpatory evidence by a prosecutor falls within one of the four previously recognized categories of coram nobis relief. Thacker v. State , 2016 Ark. 350, 500 S.W.3d 736. The mere fact that a petitioner alleges a Brady violation, however, is not sufficient to provide a basis for error coram nobis relief. Wallace v. State , 2018 Ark. 164, 545 S.W.3d 767. To establish a Brady violation, three elements are required: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Id. To warrant coram nobis relief, the petitioner has the burden of demonstrating a fundamental error extrinsic to the record that would have prevented rendition of the judgment had it been known and, through no fault of his own, was not brought forward before rendition of judgment. Id. This means that the petitioner alleging a Brady violation must demonstrate that the evidence that was allegedly suppressed was sufficient to alter the outcome of the trial. Id.
To the extent that Osburn contests testimony that was given at his first trial, the State correctly asserts that those issues were made moot by this court's reversal on direct appeal invalidating the first judgment. See Green v. State , 2012 Ark. 347, 423 S.W.3d 62 (holding that, because the parties were returned to the same situation as before the trial, no theory of the State's case existed after the judgment was reversed). There was no witness testimony to contest at the trial that is at issue here, because the trial was Osburn's entry of a plea. Collier v. Kelley , 2018 Ark. 170.
To the extent that Osburn alleged that suppression by the prosecution of the "case file" in case No. 21CR-82-27 had caused him to enter an involuntary plea at his second trial, his argument also fails. The information that Osburn contends was suppressed was public information that was readily available. The dismissal of case No. 21CR-82-27 would be shown on the court's docket as a public record. Because the information was public, it was not subject to being withheld or suppressed. Wallace , 2018 Ark. 164, 545 S.W.3d 767. In addition, the outcome of case No. 21CR-82-27 was information that Osburn should have been aware of when he entered his guilty plea because he had been the defendant in the matter.
In Osburn's second and last point on appeal, he asserts error in the trial court's conclusion that his allegations of ineffective assistance were not cognizable. Osburn asserts that he was entitled to effective assistance in the plea proceedings that were his trial. Regardless of Osburn's entitlement to counsel, ineffective-assistance-of-counsel claims are not cognizable in error coram nobis proceedings. Gray v. State , 2018 Ark. 79, 540 S.W.3d 658. Under our state law, coram nobis proceedings are not to be used as a substitute for raising claims of ineffective assistance of counsel under Rule 37.1 and are not interchangeable with proceedings under the Rule, which is the remedy for asserting allegations of ineffective assistance of counsel. Id. The writ is not available when a mistake or error of law is made by counsel.
Id. Osburn has not demonstrated that the trial court abused its discretion.
Affirmed.
Hart, J., concurs.
I concur with the disposition reached by the majority, but I take issue with its handling of Osburn's Brady claim, the substance of which is that the State failed to produce a case file concerning a previous prosecution against Osburn.
The majority suggests that any Brady claim related to the case file is now moot because after this court's remand (regardless of whether the case file should have been turned over before Osburn's "first" trial), Osburn entered a negotiated guilty plea of guilty, and accordingly there is no trial record that would allow this court to assess whether the case file's alleged concealment would have prejudiced Osburn. The logical extension of the majority's rationale is that one cannot establish prejudice for purposes of a Brady violation unless there has been a full trial on the merits in the same criminal proceeding. This would be incorrect, and I fear that the majority opinion thus improperly limits the writ of error coram nobis. If the evidence was in fact exculpatory or impeaching, the evidence was in fact concealed before Osburn's trial, that concealment did in fact continue through the trial, on appeal, and into the remand process, and the evidence's disclosure would in fact have created a reasonable probability of a different outcome (i.e., that Osburn would not have pled to or been convicted of the charges to which he pled), then I would see no reason why the writ of error coram nobis should not lie here.
Even so, Osburn's Brady claim is properly denied because the allegations contained in Osburn's petition would not establish that the case file was concealed from Osburn by the State. Instead, it appears that Osburn was well aware of the case file's existence long before his first trial. He alleges that his own counsel, mistakenly believing that the case file had no relation to charges at hand, failed to utilize it. This is not an allegation of concealment by the State, but of ineffective assistance by his own counsel, which is not a cognizable claim in error coram nobis proceedings. If Osburn intends to suggest that this failure by his trial counsel is somehow attributable to deception or misconduct by the prosecution, it is his burden to set out facts that would support that assertion.
I concur.
Osburn brought an interlocutory appeal of the denial of his motion to prohibit the State from seeking the death penalty on retrial, which this court affirmed. Osburn v. State , 2011 Ark. 406, reh'g denied , 2011 Ark. 514, 2011 WL 6003568.
When the judgment or conviction was entered on a plea of guilty or nolo contendere, the petition for writ of error coram nobis is filed directly in the trial court. Noble v. State , 2015 Ark. 141, 460 S.W.3d 774. | [
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BRANDON J. HARRISON, Judge
William Schreckhise appeals the Washington County Circuit Court order giving his ex-wife, Janine Parry, primary custody of the parties' two children. He argues that the circuit court erred in finding (1) that there was a material change of circumstances and (2) that it was in the children's best interest to be placed with Parry. We affirm.
The parties were divorced in October 2013, and the court awarded them joint custody of their two minor children. The divorce decree provided:
a. Each party will have the children in his/her care and custody two days of the Monday through Thursday time period. The parties will alternate the Friday through Sunday time periods with the exact hours to be agreed upon by the parties. ...
b. The parties agree to divide equally all holiday and special visitation; however, in the event they are unable to agree, the parties shall follow the holiday and special visitation schedule set forth in the Court's Standard Visitation Schedule[.]
In March 2017, Parry petitioned to modify custody, asserting that there had been a material change of circumstances and that the children should be placed in her primary custody. Parry alleged that Schreckhise and his new wife had created an "adversarial environment that is not in the best interest of the children" and that Schreckhise had refused to provide her with certain information, like the children's medical-care providers and the names of overnight childcare providers. Parry also expressed concern with "a dangerous situation with Defendant's 22-year-old stepson, who is dealing with serious mental and emotional problems that have put the parties' minor children in immediate danger for their health, safety, and welfare." Schreckhise answered and generally denied Parry's claims; he also counterclaimed and argued that if the court does find a material change of circumstances, it would be in the children's best interest to placed in his primary custody.
After a day-long hearing on the matter, the circuit court found that a material change in circumstances had occurred and that it was in the children's best interest that sole custody be awarded to Parry. The court's written order contained these findings:
2. After the divorce, the parties interacted seamlessly and frequently regarding the children and the children's needs.
3. Dr. Schreckhise married in July of 2014. In August of 2014, Dr. Schreckhise began implementing a series of rules about how the parties would communicate, including limited communications in person and preferably only when spouses were available; requiring communication by email unless it was an emergency or time-sensitive, with spouses copied on the communication; and limiting interaction at the children's events to a "hi" or a nod.
4. In the summer of 2015, Dr. Schreckhise expanded the rules to add that Dr. Parry was not to talk to him at work,[ ] was not to come to his house, was not to walk on the street in front of his house on North Willow Avenue or his wife's house on Washington Street,[ ] and that they were to have separate parent-teacher conferences for each child.
5. Dr. Schreckhise testified that on the advice of his marriage counselor, he requested Dr. Parry not be present for the children's medical appointments if they fell during his visitation.
6. Dr. Schreckhise refused to inform Dr. Parry about the minor children's overnight childcare providers when requested by Dr. Parry.
7. In July of 2016, Dr. Schreckhise and his wife, Suzannah Schreckhise, became concerned about Dr. Schreckhise's twenty-three-year-old step-son, David Garrison.
Mrs. Schreckhise filed an emergency petition for appointment of temporary and permanent guardianship of the person and estate of David. P. Garrison. The affidavit of David Garrison's father, included with Ms. Schreckhise's Petition, noted that David Garrison "since turning 18, has had multiple offenses evidencing a violent tendency including: destruction of property, violence toward family members, and violence toward past girlfriends.... [David has] engaged in reckless and dangerous activities."
8. Dr. Schreckhise allowed David Garrison to baby-sit his then ten-year-old children overnight in a hotel room in the spring of 2015.
9. Dr. Schreckhise did not communicate to Dr. Parry that his wife was seeking guardianship of David Garrison, though David Garrison was going to be in and out of Dr. Schreckhise's home with the parties' minor children present.
10. From September 2016 through December 2016, incidents with David Garrison occurred that resulted in Dr. Schreckhise seeking an order of protection and hiring off-duty police officers to provide security outside his house for a few days.
11. Dr. Schreckhise did not communicate to Dr. Parry about the need for the off-duty police officers or these incidents with David Garrison, except for one incident that occurred on December 25, 2016.[ ]
12. Other than the Christmas day episode, Dr. Schreckhise's testimony was, "I didn't think I needed to tell [Dr. Parry] about David ... I was handling it."
13. Parents in a joint custodial arrangement have the obligation to communicate with each other about everything that affects the children. The parents' ability to cooperate in making shared decisions affecting the children is crucial and failure to cooperate in doing so constitutes a material change in circumstances.
14. August of 2014 clearly marked a significant shift in the way the parties communicated with each other.
15. This significant shift in the way the parties communicate, based on Dr. Schreckhise's rules, is clearly a material change in circumstances in the joint custodial arrangement, as the parties now are unable to effectively communicate about their children.
16. The joint custody arrangement is no longer in the minor children's best interest.
17. Dr. Schreckhise in an effort to assert his and his wife's autonomy has put up barriers for communication between Dr. Parry and himself. Dr. Schreckhise has followed the advice of his marital counselor to the detriment of his children by putting his new wife and their marriage ahead of the needs of the children. The rules set in place by Dr. Schreckhise are manipulative, controlling, and wholly inappropriate and are not in the minor children's best interest.
18. Dr. Parry has consistently advocated for a shared burden and blessing of taking care of the children and kept a free flow of information between herself and Dr. Schreckhise about the children. Dr. Parry encourages and fosters an open relationship between the children and Dr. Schreckhise and shares all information with him. Dr. Parry's efforts and communication with Dr. Schreckhise have been child focused.
19. Therefore, it is in the best interest of the children that sole custody be awarded to Dr. Parry, subject to visitation in Dr. Schreckhise.
20. Visitation shall continue under the schedule established in the original decree: Monday and Tuesdays with Dr. Parry, Wednesday and Thursday with Dr. Schreckhise, and alternating weekends. With regard to holidays, in the absence of any agreement otherwise, the parties shall follow the Washington County Suggested Visitation Schedule[.]
Schreckhise has appealed the circuit court's order.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Anderson v. Thomas , 2013 Ark. App. 653, 2013 WL 5964473. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. The reason for requiring more stringent standards for modifications than for initial custody determinations is to promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. Id.
The party seeking modification of the custody order has the burden of showing a material change in circumstances. Anderson , supra. To change custody, the circuit court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the children. Id. In reviewing child-custody cases, we consider the evidence de novo, but will not reverse a circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Preston v. Preston , 2014 Ark. App. 58, 2014 WL 245783. Because the question of whether the circuit court's findings are clearly erroneous turns largely on the credibility of witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. Ford v. Ford , 347 Ark. 485, 65 S.W.3d 432 (2002). There are no cases in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as those involving minor children. See Vo v. Vo , 78 Ark. App. 134, 79 S.W.3d 388 (2002).
For his first point on appeal, Schreckhise argues that the circuit court erred in finding a material change in circumstances. Our case law holds that the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of joint custody. Doss v. Miller , 2010 Ark. App. 95, 377 S.W.3d 348. When the parties have fallen into such discord that they are unable to cooperate in reaching shared decisions in matters affecting their children, then a material change in circumstances affecting the children's best interest has occurred. See id. This court does not examine each finding cited by a circuit court in isolation; certain factors, when examined in the aggregate, may support a finding that a change in custody is justifiable, although each factor, if examined in isolation, would not. See Vo , supra.
Schreckhise denies that there were communication issues sufficient to constitute a material change in circumstances and recounts why he felt certain "boundaries" were necessary, including what he characterized as excessive communication from Parry. He contends that there was no evidence that the parties could not cooperate in reaching shared decisions or that the parents had fallen into such discord that a change in circumstances had occurred. He also disagrees with the circuit court's findings that he failed to keep Parry informed regarding childcare providers, medical appointments, and the ongoing situation involving David Garrison.
In support, Schreckhise cites Geren Williams v. Geren , 2015 Ark. App. 197, at 13, 458 S.W.3d 759, 767, for the principles that "petty complaints and parental gamemanship may not rise to the level of a material change in circumstances" and "a custodial parent's change in attitude is not necessarily sufficient to constitute a material change." He also argues that limiting excessive communication is not a material change in circumstances, citing Anderson v. Thomas , 2013 Ark. App. 653, 2013 WL 5964473, in which this court reversed a finding of material change in circumstances after concluding that "the record did not demonstrate a complete inability of the parties to communicate; it rather showed that Brandy was unhappy with not being able to repeatedly contact Gregg and get immediate responses." Id. at 6.
This case, from a legal perspective, presents a textbook judgment call by the circuit court. In its order, the court found, and the parties do not dispute, that they "interacted seamlessly and frequently regarding the children and the children's needs" after their divorce in October 2013. The court also found that after Schreckhise's remarriage in July 2014, a "significant shift" in the parties' communication and ability to cooperate began to emerge. The court found that the changes in communication and interaction requested by Schreckhise were to the detriment of the children and constituted a material change of circumstances. As we recited earlier, there are no cases in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as those involving minor children, and in this case, the circuit court emphasized that its decision was based "in large part on its personal observation in the courtroom, hearing the witnesses' tone of voice, witnessing their body language, seeing their reactions to the questions, seeing how they reacted to the testimony of other witnesses."
Change-of-custody decisions must be based on the particular facts and circumstances of each case in relation to the standard of the best interest of the child. Hudgens v. Martin , 2009 Ark. App. 462, 2009 WL 1553631. In addition, credibility determinations are left to the circuit court, and we will not reweigh the evidence. Glisson v. Glisson , 2018 Ark. App. 21, 538 S.W.3d 864. Given these standards, we must affirm the circuit court's finding that a material change in circumstances occurred.
For his second point, Schreckhise argues that if a material change in circumstances did occur, it was not in the children's best interest to place primary custody with Parry. Schreckhise acknowledges that although the court awarded custody to Parry, the joint-custody schedule between the parties remained the same. Nevertheless, he argues that it was not in the children's best interest to change custody and that Parry obtained custody to facilitate her relocation to the Pacific Northwest.
In its order, the circuit court found that Parry had consistently advocated for a free flow of information between her and Schreckhise, had fostered an open relationship between the children and Schreckhise, and had kept her communication with Schreckhise focused on the children. In contrast, the circuit court found that Schreckhise had put his new wife and their marriage ahead of the needs of the children and had not acted in the children's best interest. Based on these findings and that the court made no actual change in the amount of time that each parent spends with the children, we affirm. That Parry may (or may not) seek to relocate at some point is legally not germane at this point because the issue was not addressed and decided by the circuit court. Consequently, we need not address it either.
Affirmed.
Abramson and Murphy, JJ., agree.
The parties are both professors in the same department at the University of Arkansas, and their offices are next to each other.
The parties live approximately two blocks apart, in part because they initially agreed that it would be good for the children.
On that day, while the minor children were present, Garrison banged his fist on the table and threw a Christmas "popper" on the floor. After Schreckhise asked Garrison to leave, he grabbed two pies, threw them on the floor, broke an urn, then left the house.
Parry originally cross-appealed the circuit court's order, but her motion to dismiss her cross-appeal was granted by this court on 5 October 2018. | [
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RAYMOND R. ABRAMSON, Judge
Stanley Nelson appeals the Pulaski County Circuit Court order denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5 (2017). We affirm the circuit court's decision denying postconviction relief.
On October 7, 2013, the State charged Nelson with first-degree murder of Latravis Morant and first-degree battery of Sedrick Green, along with a firearm enhancement and an in-the-presence-of-children enhancement. The court held a jury trial from October 21 through 24, 2014.
The testimony at trial showed that on August 14, 2013, Nelson, Green, and Morant were drinking alcohol and playing a dice game with Nelson's cousin, Courtney Marshall, when a physical altercation developed between Green and Marshall. Nelson grabbed a gun from Marshall's waistband and began shooting. Morant was shot in the abdomen while trying to interfere with the fight. He later died at the hospital. Green was shot in the arm and thigh while he was on the ground fighting Marshall. He survived his injuries. At trial, the jury was instructed on the justification defense as to both the murder and the battery charges. The jury convicted Nelson of second-degree murder and first-degree battery. He was sentenced to thirty-five years' imprisonment for second-degree murder and eleven years' imprisonment for first-degree battery.
On November 11, 2014, Nelson filed a motion for a new trial and asserted a claim of ineffective assistance of counsel. Specifically, he asserted that his counsel was ineffective for submitting a flawed jury instruction on the justification defense for the battery charge. The court denied Nelson's motion.
On appeal, this court affirmed Nelson's convictions. See Nelson v. State , 2015 Ark. App. 697, 477 S.W.3d 569. The mandate was issued on January 29, 2016.
On April 21, 2017, Nelson filed a third amended Rule 37 petition. In the petition, he alleged that his trial counsel was ineffective for (1) submitting a flawed jury instruction on his justification defense to the battery charge; (2) advising him not to testify; (3) not introducing medical evidence of Marshall's injuries; (4) failing to elicit testimony about Green's prior acts of domestic violence; (5) failing to call witnesses for sentencing; and (6) failing to request a nonmodel jury instruction on imperfect self-defense.
The circuit court held an evidentiary hearing on September 28 and October 5, 2017. On the first day of the hearing, the court found that it was precluded from considering Nelson's claim concerning the flawed jury instruction because this court had rejected the argument on direct appeal.
On October 3, 2017, Nelson filed a motion to amend his Rule 37 petition, requesting leave to modify his argument concerning the flawed jury instruction. Specifically, he sought to claim that his counsel was ineffective in asserting his original ineffective-assistance-of-counsel claim for failing to argue that he had suffered prejudice due to the flawed jury instruction. On the second day of the hearing, the court orally granted Nelson's motion to amend.
On November 9, 2017, the circuit court entered a written order denying Nelson's Rule 37 petition. In the order, the court denied Nelson's claims alleged in his April 21, 2017 petition. The court did not consider Nelson's amended claim concerning counsel's failure to allege prejudice as a result of the flawed jury instruction. Therefore, on November 13, Nelson filed a motion to reconsider the denial of his Rule 37 petition. In the motion, he requested the court to rule on his amended claim. The court never issued an order on the motion.
On December 6, Nelson timely appealed the court's November 9 order to this court, and on December 14, Nelson filed a second notice of appeal to include the court's "deemed-denial" of his motion for reconsideration.
This court does not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. Reed v. State , 2011 Ark. 115 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
The benchmark question to be resolved in judging a claim of ineffective assistance of counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Norris v. State , 2013 Ark. 205, 427 S.W.3d 626 (per curiam). We assess the effectiveness of counsel under a two-prong standard as set forth by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Lowe v. State , 2012 Ark. 185, 423 S.W.3d 6 (per curiam). Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy both prongs of the test, and it is unnecessary to examine both components of the inquiry if the petitioner fails to satisfy either requirement. See Pennington v. State , 2013 Ark. 39, 2013 WL 485660 (per curiam).
A petitioner claiming ineffective assistance must first show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the petitioner by the Sixth Amendment to the United States Constitution. Walton v. State , 2013 Ark. 254, 2013 WL 2460191 (per curiam). There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel that, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id.
In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Delamar v. State , 2011 Ark. 87, 2011 WL 693579 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
On appeal, Nelson first argues that the circuit court erred in finding that his trial counsel was not ineffective in asserting his ineffective-assistance-of-counsel claim in his motion for a new trial. Specifically, he asserts that his counsel was ineffective for failing to allege he was prejudiced by the flawed instruction. The State argues that Nelson's argument is not preserved for our review because he failed to obtain a ruling on the issue.
We agree with the State that the argument is not preserved for our review. When the circuit court provides written findings on at least one, but less than all, of the petitioner's claims, our supreme court has held that an appellant has an obligation to obtain a ruling on any omitted issues if they are to be considered on appeal. Cowan v. State , 2011 Ark. 537, 2011 WL 6275694 (per curiam). When a petitioner requests the circuit court to provide a ruling on an omitted issue and the circuit court fails to do so, the petitioner must file for a writ of mandamus in our supreme court, asking the court to direct the circuit court to act on the motion to provide the requested rulings. Barber v. State , 2016 Ark. 54, 482 S.W.3d 314 (citing Strain v. State , 2012 Ark. 184, 423 S.W.3d 1 ). Because a motion to address an omitted issue in a Rule 37 petition is ministerial and is not discretionary, a writ of mandamus is the only remedy available to a postconviction petitioner. Id. ; see Carter v. Chandler , 2012 Ark. 252, 2012 WL 1950250 (per curiam) (holding that the "deemed denied" provision of Ark. R. App. P.-Civ. 4(b) does not apply to Rule 37 appeals and a petitioner's recourse is through a writ of mandamus). Because Nelson failed to file for a writ of mandamus asking the supreme court to direct the circuit court to act on the motion to provide the requested ruling, the issue is not preserved for our review. Accordingly, we must affirm on this point.
Nelson next argues that the circuit court erred in finding that his trial counsel was not ineffective for preventing him from testifying in his own defense. He recognizes that he has a prior conviction for unlawful discharge of a firearm and that his testimony would have opened the door for discussion of that conviction; however, he asserts that he was unaware that he had a choice whether to testify and that counsel should have prepared and advised him to testify when his justification defense was not established by other witnesses.
The Supreme Court of the United States has held that a criminal defendant has a right to testify on his own behalf if he chooses to do so. Rock v. Arkansas , 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Counsel may only advise the accused in making the decision. Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694 ; Chenowith v. State , 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). This court has consistently held, however, that the mere fact that a defendant did not testify is not, in and of itself, a basis for postconviction relief. See, e.g. , Dansby v. State , 347 Ark. 674, 66 S.W.3d 585 (2002). Ordinarily, counsel's advice to the defendant not to testify is simply a matter of trial strategy. Williams v. State , 2011 Ark. 489, 385 S.W.3d 228 ; Chenowith , 341 Ark. 722, 19 S.W.3d 612. The lack of success with trial tactics in obtaining an acquittal does not equate with ineffective assistance of counsel. O'Rourke v. State , 298 Ark. 144, 765 S.W.2d 916 (1989) ; see also Fink v. State , 280 Ark. 281, 658 S.W.2d 359 (1983). It is axiomatic that credibility determinations are within the province of the circuit court. Chenowith , 341 Ark. at 734, 19 S.W.3d at 618. Moreover, it is clear that an attorney's advice to a defendant on whether to testify and the defendant's decision to take or not take the stand are not grounds for postconviction relief predicated on ineffective assistance of counsel. Williams v. State , 2011 Ark. 489, 385 S.W.3d 228.
In this case, we hold that the circuit court did not err in finding that Nelson's counsel was not ineffective for advising Nelson not to testify. At the evidentiary hearing, counsel testified that he had advised Nelson throughout the proceedings not to testify due to the nature of his previous conviction but that Nelson made the final decision not to testify. Counsel explained that Nelson's prior conviction involved Nelson's firing a gun in front of a nightclub, hitting a woman in the arm and seriously injuring her. He noted that the woman was present at trial and prepared to testify about the incident. Counsel believed that he could not "lessen the sting" of the prior conviction to the jury; thus, he consistently advised Nelson not to take the stand. Even though Nelson maintains on appeal that he did not know he had the ultimate decision not to testify, the circuit court specifically found him not credible. Furthermore, even without Nelson's testimony, there was evidence presented that Green and Morant, the victims, had been in a physical altercation with Nelson's cousin, Marshall, at the time of the incident. Accordingly, we hold that Nelson has failed to establish that counsel was deficient as to this claim.
Nelson next argues that the circuit court erred in finding that counsel was not ineffective for failing to introduce medical evidence concerning Marshall's injuries. At the evidentiary hearing, Dr. Robert Schroeder, an ophthalmologist, testified that Marshall sustained a blowout fracture to his left eye and that such injury could result in serious and permanent eye damage. Nelson asserts that if such medical evidence had been presented at trial concerning Marshall's injuries, there was a reasonable probability that the jury would have accepted Nelson's justification defense and convicted him of a lesser charge.
We disagree. The decision whether to call particular witnesses is a matter of professional judgment, and even if another attorney would have chosen a different course, it is not grounds for postconviction relief on the basis of ineffective assistance of counsel. Williams v. State , 2016 Ark. 459, 504 S.W.3d 603. Counsel is allowed great leeway in making strategic and tactical decisions, particularly when deciding not to call a witness. Noel v. State , 342 Ark. 35, 26 S.W.3d 123 (2000).
In this case, at the evidentiary hearing, counsel testified that he had obtained Marshall's medical records before trial, but he believed the records "downplayed" Marshall's injuries. Instead, he offered evidence of Marshall's injuries through a responding officer's testimony that she was concerned about Marshall's condition and that she called emergency medical services. He also introduced photos of the injuries. Given this testimony, we cannot say that counsel's approach was objectively unreasonable. Accordingly, we find no merit to this claim.
Nelson next argues that the circuit court erred in finding that counsel was not ineffective for failing to elicit evidence of Green's prior acts of domestic violence against Quante Blakely. Green was the battery victim, and Blakely had informed Nelson that Green had committed acts of domestic violence against her. Nelson asserts that his knowledge of Green's prior acts was relevant to his justification defense.
Our review of the record shows that counsel tried to elicit testimony concerning Green's prior acts of domestic violence against Blakely. Specifically, during Blakely's testimony at trial, counsel questioned her about what she had told Nelson about Green. The State objected to the testimony concerning the domestic violence, and the court sustained the objection. Accordingly, counsel sought to introduce the domestic-violence evidence; thus, Nelson cannot establish a deficiency.
Nelson argues that the circuit court erred in finding that counsel was not ineffective for failing to call additional witnesses during sentencing. He points out that counsel received several reference letters from coworkers and friends for his parole-revocation hearing but that counsel failed to approach those individuals to testify at sentencing. He claims that if the jury had heard testimony from those individuals, he would have received a lesser sentence.
As we have stated herein, the decision whether to call particular witnesses is a matter of professional judgment. Williams , 2016 Ark. 459, 504 S.W.3d 603. When assessing counsel's decision not to call a particular witness, we must take into account that the decision is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Anthony v. State , 2014 Ark. 195, 2014 WL 1716538. Trial counsel must use his best judgment to determine which witnesses will be beneficial to the client. Id.
In this case, counsel testified that he called Nelson's mother and his fiancée to testify because they were the "most poignant" and that he did not call additional witnesses because he believed their testimony would have been "cumulative." Given this testimony, we hold that counsel's decision not to call the additional witnesses was a matter of professional judgment.
Nelson lastly argues that the circuit court erred in finding that counsel was not ineffective for failing to request a nonmodel jury instruction on imperfect self-defense in accordance with Arkansas Code Annotated section 5-2-614 (Repl. 2013). In making his argument, he relies on Harshaw v. State , 344 Ark. 129, 39 S.W.3d 753 (2001). He asserts that Harshaw holds that a defendant is entitled to a nonmodel jury instruction on imperfect self-defense pursuant to section 5-2-614 when there is evidence that the defendant recklessly or negligently formed the belief that force was necessary.
We disagree with Nelson and hold that the circuit court did not err in finding that counsel was not ineffective for failing to request a nonmodel jury instruction pursuant to section 5-2-614. Arkansas Code Annotated section 5-2-614 states as follows:
(a) When a person believes that the use of physical force is necessary for any purpose justifying that use of physical force under this subchapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state.
(b) When a person is justified under this subchapter in using physical force but he or she recklessly or negligently injures or creates a substantial risk of injury to a third party, the justification afforded by this subchapter is unavailable in a prosecution for the recklessness or negligence toward the third party.
In Harshaw , our supreme court held that it is reversible error to refuse to instruct on the lesser-included offense of manslaughter when there is the slightest evidence to support the instruction. Id. ; see Norris v. State , 2010 Ark. 174, 368 S.W.3d 52. It does not hold that a defendant is entitled to a nonmodel jury instruction concerning section 5-2-614. See Harshaw , 344 Ark. 129, 39 S.W.2d 753. Thus, we cannot say that Nelson has established that counsel's failure to request a nonmodel jury instruction was objectively unreasonable. Accordingly, we hold that the circuit court did not err in finding that Nelson's claim had no merit.
Affirmed.
Virden and Hixson, JJ., agree.
Nelson filed his original petition on March 23, 2016. He subsequently filed amended petitions on September 21, 2016, and February 17, 2017. | [
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RITA W. GRUBER, Chief Judge
Appellant Adam Shaffer appeals from an order of the Sebastian County Circuit Court revoking his suspended imposition of sentence (SIS) in three separate cases and sentencing him to a total of thirty years' imprisonment. On appeal, appellant contends that the circuit court was without jurisdiction to revoke his suspended sentences. We affirm in part and reverse and remand in part.
On June 16, 2005, appellant was charged in case No. CR2005-82 with residential burglary, class B felony, pursuant to Ark. Code Ann. § 5-39-201 (Repl. 2013). On the same day, appellant was charged in case No. CR2005-83 with two counts of breaking and entering in violation of Ark. Code Ann. § 5-39-202, class D felonies, and theft of property in violation of Ark. Code Ann. § 5-36-103, a class C felony. Appellant entered a guilty plea to all charges and was sentenced to twenty-four months' imprisonment in each of the cases to run concurrently, with sixty months' SIS for residential burglary, forty-eight months' SIS for breaking or entering, and sixty months' SIS for theft of property. The judgment and commitment order was entered May 8, 2006. A "Prosecutor's Report/Penitentiary Synopsis" signed by the deputy prosecuting attorney was filed on June 12, 2006, as well as an amended judgment and commitment order, reflecting that the departure report had not been attached to the judgment.
On April 8, 2007, appellant was charged in case No. CR2007-447 with possession of drug paraphernalia in violation of Ark. Code Ann. § 5-64-403, a class C felony. The State then filed a petition to revoke in CR2005-82 and CR2005-83 on April 10, 2007, alleging that appellant was in violation of the terms and conditions of his suspended sentence based on the new charge in CR2007-447.
On April 16, 2007, Judge Steven Tabor filed an order to recuse in CR2005-1233, CR2005-82, and CR2005-83, indicating that the causes were pending before the circuit court on the State's petition to revoke. The recusal order provided that Judge Tabor had "previously served as Prosecuting Attorney at the time the Defendant was prosecuted and received the sentence which the State now wishes to revoke." The order directed the circuit clerk to reassign this case. An affidavit of Nancy Brewer, Sebastian County circuit clerk, also filed April 16, 2007, indicates that the case was reassigned to Judge James O. Cox.
On September 7, 2007, appellant pleaded guilty to the charge of possession of drug paraphernalia in CR-2007-447 and entered the Sebastian County Drug Court Program. Judge Tabor sentenced appellant to a two-year SIS, conditioned upon compliance in the drug court. On the same day, the State filed a motion to withdraw the petition to revoke based on the transfer to drug court.
The State filed another petition to revoke on September 8, 2009, in cases CR2005-82, CR2005-83, and CR2007-447, on the grounds that appellant had violated the terms and conditions of his suspended sentences. Specifically, the State alleged appellant failed several drug tests, failed to appear, and fled from the Regional Correctional Facility. On January 13, 2010, appellant entered a no-contest plea to the State's petition to revoke and was sentenced to twenty-four months' imprisonment for each case to be served concurrently, and ninety-six months' SIS for the residential-burglary conviction in CR2005-82, forty-eight months' SIS the breaking-or-entering conviction in CR2005-83, ninety-six months' SIS for the theft-of-property conviction in CR2005-83, and ninety-six months' SIS for the possession-of-drug-paraphernalia conviction in CR2007-447.
On February 7, 2018, the State filed a petition to revoke in CR2005-82, CR2005-83, and CR2007-447, alleging that appellant was released from the Arkansas Department of Correction on November 26, 2010, and thereafter committed the offense of battery in the second degree on January 24, 2018, in violation of the terms and conditions of his suspended sentences. A hearing on the petition to revoke took place on March 8, 2018. Judge Tabor found that appellant had committed the offense of second-degree battery and was in violation of the terms of his suspended sentences. Appellant's suspended sentences were revoked, and appellant was sentenced to 192 months' imprisonment for the residential-burglary charge in CR2005-82, seventy-two months' imprisonment for the theft-of-property charge in CR2005-83, and ninety-six months' imprisonment for possession-of-drug-paraphernalia charge in CR2007-447, with the sentences to run consecutively. The judgment and commitment order was entered March 14, 2018, and appellant filed a timely notice of appeal.
For his sole point on appeal, appellant argues that the circuit court was without jurisdiction or authority to revoke his suspended sentences in all three cases.
The Arkansas Constitution, article 7, § 20, as well as the Arkansas Code of Judicial Conduct, provides that judges must refrain from presiding over cases in which they might be interested and must avoid all appearances of bias. Irvin v. State , 345 Ark. 541, 549, 49 S.W.3d 635, 640 (2001). The decision to recuse is within the circuit court's discretion, and it will not be reversed absent abuse. Id. The case before us does not deal with the issue of whether the circuit judge should have recused. Rather, the issue presented is whether Judge Tabor, having recused by his own order in 2007, thereafter had jurisdiction or authority to hear appellant's revocation cases in 2018.
Appellant contends that Judge Tabor, "by voluntarily recusing himself from Appellant's cases, lost jurisdiction and was without authority to act further in any judicial capacity rendering every judicial act since the recusal null and void." He cites Bolden v. State , 262 Ark. 718, 561 S.W.2d 281 (1978), in support of his argument.
In Bolden , appellants' counsel orally moved for Judge O.H. Hargraves's recusal during a pretrial conference. Judge Hargraves recused, but he proceeded with pretrial tasks, including jury selection and a hearing on appellants' motion to suppress, which he denied. Judge John L. Anderson presided over the trial which was held several days after the pretrial conference, where appellants were convicted by a jury. On appeal, appellants argued in part that it was prejudicial error for Judge Hargraves to exercise discretionary powers after he had recused himself from their case. The supreme court agreed, holding that after his disqualification was announced from the bench, Judge Hargraves "lost jurisdiction of the case and was without authority to act further in any judicial capacity, except to make the proper transfer of the case or take the appropriate steps for the selection of another judge."
Bolden , 262 Ark. at 721-22, 561 S.W.2d at 283.
In the later case of Kelly v. Mississippi County Circuit Court , 374 Ark. 396, 398, 288 S.W.3d 243, 244 (2008) (per curiam), the appellant petitioned the supreme court in part to stay proceedings in the Mississippi County Circuit Court and to issue a writ of certiorari quashing the recusal orders of three judges, to issue writs of mandamus directing two judges to reconsider their recusals, and to issue a writ of certiorari. The supreme court held that under Bolden , neither judge could reconsider because a recusal ended their jurisdiction.
Appellant contends that based on Bolden , Judge Tabor was without authority to act in appellant's cases after the recusal order of April 16, 2007. He further argues that even assuming Judge Tabor had jurisdiction to enter the orders prior to the 2018 revocation hearing, Judge Tabor was "certainly disqualified" from hearing appellant's revocation hearing, which would require that appellant's revocation be "reversed and remanded for a new revocation hearing."
The State responds that Judge Tabor did not lack subject matter jurisdiction to revoke. The State explains that subject matter jurisdiction is granted to a particular court, and not the person who fills it. See Simpson v. State , 310 Ark. 493, 499, 837 S.W.2d 475, 478 (1992). Subject matter jurisdiction may be raised for the first time on appeal, and the appellate court may raise it on its own. Id. Subject matter jurisdiction, however, is determined from the pleadings, and once a proper charge is filed in circuit court, that court may exercise jurisdiction over that subject matter. Id.
While recognizing that recusal limits the judge's authority to act further in connection with a pending cause under Bolden , the State argues that "logic dictates that a recusal in one 'cause' does not extend to another separate and distinct 'cause,' such as a subsequent revocation proceeding." The State contends that each revocation proceeding is a distinct and separate cause that the defendant has committed new conduct in violation of the terms and conditions of a suspended sentence. However, the State has not cited any law for this assertion. The State's argument is that Judge Tabor's 2007 recusal in appellant's 2007 revocation proceeding, which was ultimately withdrawn, could not divest Judge Tabor of authority to preside in subsequent revocation cases. The State further argues that even assuming the 2007 recusal limited Judge Tabor's authority to act in subsequent revocations, this would in no way affect appellant's suspension with CR2007-447 because Judge Tabor never recused in that case; additionally, Judge Tabor had already been elected circuit judge when that prosecution was initiated.
The State acknowledges Green v. State , 21 Ark. App. 80, 84, 729 S.W.2d 17, 20 (1987), in which this court held that recusal was required when the judge who presided over Green's revocation proceeding had been the prosecutor who represented the State when Green's original suspended sentence was entered. In reversing and remanding the revocation, we explained:
Canon 3 C(b) of the Code of Judicial Conduct provides that a judge should disqualify in a proceeding "in which his impartiality might reasonably be questioned, including but not limited to instances where he served as a lawyer in the matter in controversy...." Clearly the revocation hearing falls within this provision. In Adams v. State , 269 Ark. 548, 601 S.W.2d 881 (1980), the Supreme Court of Arkansas said of the provision pertaining to a judge's relationship to a lawyer in the case being tried:
We hold that Canon 3C is applicable in criminal cases as well as civil cases, that it is applicable at the arraignment stage of a criminal proceeding, that it applies even though the prosecuting attorney and circuit judge each is a duly elected public official, that no request to disqualify and no objection for failure to disqualify is necessary to be made either by a trial attorney or by a party representing himself, that the trial judge must take the initiative to disqualify or, in the alternative, to comply with the procedure set out in Canon 3D, that this Court can, on its own initiative, examine the record to notice compliance or noncompliance, and that failure to comply is reversible error.
Green , 21 Ark. App. at 84-85, 729 S.W.2d at 20. We held that the underlying criminal action and the subsequent revocation proceeding were the same "matter in controversy" for purposes of Canon 3C(1)(b). Further, no contemporaneous objection was required under Adams v. State , 269 Ark. 548, 601 S.W.2d 881 (1980).
Based on the holdings in Bolden and Green , we hold that Judge Tabor was without authority to hear the revocations in the 2005 cases after his recusal. Because Judge Tabor did not recuse from CR2007-447 and there was no indication he was the prosecutor when that case originated, he had authority to hear the revocation. Accordingly, we affirm the revocation in CR2007-447 and reverse and remand the revocations in CR2005-82 and CR2005-83, for further proceedings consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Gladwin and Brown, JJ., agree.
At this time, Judge Stephen Tabor was the elected prosecuting attorney; however, both criminal informations were signed by a deputy prosecuting attorney. The document entitled "Prosecutor's Report/Penitentiary Synopsis" entered May 8, 2006, appears to have been signed by Stephen Tabor as prosecuting attorney.
The judgment and commitment order also included disposition in case CR2005-1233, which is not at issue in this appeal.
The State also sought to revoke in CR2005-1233.
The motion references only CR2005-82 and CR2005-1233 in the caption, not CR2005-83.
Former Canon 3 ("A Judge should diligently perform the duties of his office impartially and diligently.") is now Canon 2 ("Judge shall perform the duties of judicial office impartially, competently, and diligently."). Former Canon 3C provided the rules for disqualification, which is now found in Rule 2.11 of the Arkansas Code of Judicial Conduct.
The current rule on disqualification is found at Rule 2.11(A)(6)(a) & (b) of the Arkansas Code of Judicial Conduct. | [
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LARRY D. VAUGHT, Judge
This is an interlocutory appeal of the Washington County Circuit Court's order denying the joint motion to compel arbitration filed by appellants Jorja Trading, Inc.; Automatic Auto Finance, Inc.; Cashfish Motor Pawn, Inc.; Virginia Rivers; and Monte Johnston. We affirm the circuit court's order.
Appellees Leah Willis and Adrian Bartholomew purchased a 2002 Suzuki XL7 vehicle from Automatic Auto Finance (AAF) on October 27, 2015. AAF then assigned the sales contract to Jorja Trading. Appellees defaulted on their payment obligations under the sales contract. Jorja Trading filed a complaint against Willis and Bartholomew in the small claims division of the Washington County District Court (Springdale Division) on May 13, 2016. Both parties were properly served. Bartholomew filed an answer on June 29, 2016. Willis did not file an answer. After a hearing on September 21, 2016, the court entered judgment against the appellees, who then appealed the judgment to the circuit court. Appellees filed an answer and a counterclaim, which asserted fourteen causes of action stemming from alleged usury and UCC violations. On December 13, 2016, Jorja Trading filed a motion to dismiss counterclaim and alternative motion to dismiss and compel arbitration. The other appellants subsequently also filed motions to dismiss and compel arbitration. After appellees filed an amended answer and counterclaim, the court ruled that the pending motions to dismiss and compel arbitration were moot. Appellants then filed a new joint motion to dismiss and compel arbitration of the amended counterclaims and third-party claims. The circuit court held a hearing on December 20, 2017, after which it denied the appellants' joint motion to compel arbitration based on its finding that the arbitration agreement lacked mutuality of obligation and had been waived. This timely appeal follows.
We review a circuit court's order denying a motion to compel arbitration de novo on the record. Hickory Heights Health & Rehab, LLC v. Cook , 2018 Ark. App. 409, 557 S.W.3d 286, (citing Courtyard Gardens Health & Rehab., LLC v. Quarles , 2013 Ark. 228, 428 S.W.3d 437 ). Arbitration is simply a matter of contract between parties. Id. Whether a dispute should be submitted to arbitration is a matter of contract construction, and we look to the language of the contract that contains the agreement to arbitrate and apply state-law principles. Id. The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally; thus, we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. Id. Finally, the construction and legal effect of an agreement to arbitrate are to be determined by this court as a matter of law. Id.
In deciding whether to grant a motion to compel arbitration, two threshold questions must be answered. First, is there a valid agreement to arbitrate between the parties? Second, if such an agreement exists, does the dispute fall within its scope? GGNSC Holdings, LLC v. Lamb , 2016 Ark. 101, 487 S.W.3d 348. In answering these questions, doubts about arbitrability must be resolved in favor of arbitration. Id. We are also guided by the legal principle that contractual agreements are construed against the drafter. Carter v. Four Seasons Funding Corp. , 351 Ark. 637, 97 S.W.3d 387 (2003). "We are not bound by the circuit court's decision, but in the absence of a showing that the circuit court erred in its interpretation of the law, we will accept its decision as correct on appeal." Erwin-Keith, Inc. v. Stewart , 2018 Ark. App. 147, at 9, 546 S.W.3d 508, 512 (citing Madison Cos., LLC v. Williams , 2016 Ark. App. 610, 508 S.W.3d 901 ).
First, appellants argue that the circuit court erred in determining that the arbitration agreement was not valid because it lacked mutuality of obligation. One of the necessary elements for a valid and enforceable contract under Arkansas law is that the parties must both be bound by mutual obligations. Hot Spring Cty. Med. Ctr. v. Ark. Radiology Affiliates, P.A. , 103 Ark. App. 252, 255, 288 S.W.3d 676, 679. While Arkansas law does not require that the mutual obligations be a mirror image of each other, "an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is neither party is bound unless both are bound." Hamilton v. Ford Motor Credit Co. , 99 Ark. App. 124, 128, 257 S.W.3d 566, 570 (2007).
Here, the circuit court found that the arbitration agreement lacked mutual obligations because, while it appears to allow both parties to employ self-help remedies and prohibits both parties from filing a class-action lawsuit, both of those provisions work to the exclusive benefit of the appellants; the appellants are not actually obligated to do or forgo anything meaningful. The arbitration agreement states that both parties "retain the right to self-help remedies, such as repossession." Appellants argue that if the vehicle had been improperly repossessed or was being held by the appellants for some other unlawful reason, the appellees would also have the option of self-help pursuant to the arbitration agreement. We disagree.
The term "self help" is a legal term of art which, according to Black's Law Dictionary, means to protect one's own property or person and not resort to legal action to do so. Under Arkansas law, repossession is exclusively authorized for parties with a secured interest in the property. Ark. Code Ann. § 4-9-609 (Repl. 2001). In Gorman v. Ratliff , 289 Ark. 332, 337, 712 S.W.2d 888, 890 (1986), the Arkansas Supreme Court invalidated a self-help provision in a lease contract because "no entry by a landlord onto property occupied by another is given by Act 615, except by first resorting to legal process. Accordingly, self-help action is prohibited [under Arkansas law]." The Arkansas Supreme Court went on to hold that, "[f]or these reasons those provisions of the lease authorizing the landlord's self-help remedy are invalid." Gorman , 289 Ark. at 338, 712 S.W.2d at 891. In Durbin v. City of W. Memphis, Ark. , No. 3:14-CV-00052-KGB, 2015 WL 1470141 (E.D. Ark. Mar. 31, 2015), the United States District Court for the Eastern District of Arkansas reviewed the current status of self-help law in Arkansas and explained:
The Arkansas Supreme Court subsequently has interpreted Gorman broadly, stating that Gorman "outlawed the use of self-help measures to regain property." Duhon v. State , 299 Ark. 503, 774 S.W.2d 830, 835 (1989). Further, considering Gorman and Duhon , the Attorney General of Arkansas has opined that installing a device that would enable a landlord to cut off utility service to tenants in the event of nonpayment of rent would run afoul of Gorman's prohibition of self-help eviction. See Ark. Op. Att'y Gen. No. 2006-223, 2007 WL 201187 (Jan. 23, 2007).
Durbin , 2015 WL 1470141, at *6.
In the present case, while the arbitration agreement purports to give both parties the right to employ self-help remedies, "such as repossession," Arkansas Code Annotated section 4-9-609 authorizes a repossession only by a "secured party," which section 4-9-102 defines as
(A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding;
(B) a person that holds an agricultural lien;
(C) a consignor;
(D) a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold;
(E) a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest or agricultural lien is created or provided for; or
(F) a person that holds a security interest arising under § 4-2-401, § 4-2-505, § 4-2-711(3), § 4-2A-508(5), § 4-4-210, or § 4-5-118.
Ark. Code Ann. § 4-9-102(a)(74) (Supp. 2017). Appellants do not argue that the appellees are "secured parties," which means that they would not be entitled to use the self-help remedy of repossession pursuant to Arkansas law. Considering the reasoning in Gorman , we conclude that the self-help provision of the arbitration agreement is one-sided in that it would allow only the appellants, as "secured parties," to exercise self help.
Appellants' second argument is that the arbitration agreement contains a class-action waiver that provides mutually binding obligations sufficient to render the contract valid and enforceable. The appellees argue that the class-action waiver has the practical effect of limiting the appellees' rights while protecting the appellants. First, we note that the language of the arbitration agreement bars either party from arbitrating a class-action claim: "[a]ny claim or dispute is to be arbitrated on an individual basis, and not as a class action; and, you expressly waive any right you may have to arbitrate a class action."
The relevant inquiry, then, is not about the availability of class-action litigation, but class-action arbitration.
The Revised Uniform Arbitration Act, Arkansas Code Annotated section 16-108-210 (Repl. 2016) specifically allows for the consolidated arbitration of multiple claims and states that "[a]n agreement that prohibits the consolidation of arbitration claims or proceedings or denies arbitration for a class of persons involving substantially similar issues shall be closely scrutinized and shall not be enforced if found unconscionable." Ark. Code Ann. § 16-108-210(d)(1). While the circuit court's lack-of-mutuality finding was not based on the unconscionability provision of section 16-108-210, the statute's skepticism regarding prohibitions on consolidated arbitration such as the one before us further illustrates why the circuit court was correct to interpret the provision as effectively one-sided.
Also persuasive is the fact that in one of the most cited Arkansas cases regarding mutuality of obligation, Alltel Corporation v. Rosenow , 2014 Ark. 375, 2014 WL 4656609, the Arkansas Supreme Court affirmed a circuit court's lack-of-mutuality finding as to an arbitration agreement with almost identical language prohibiting consolidated arbitration proceedings. The supreme court never directly discussed the agreement's class-action waiver in Rosenow , focusing instead on a separate provision of the arbitration agreement that was found to be significantly one-sided. However, in light of the appellants' current argument that the class-action waiver provides the necessary mutuality of obligation to render the arbitration agreement valid and enforceable, the Rosenow court's silence on that issue when affirming a lack-of-mutuality finding as to an arbitration agreement that contained almost identical language is telling.
We also reject the appellants' argument that the arbitration agreement's class-action-waiver provision creates mutuality of obligation because Rule 23"expressly contemplates the possibility of a defendant class because it provides that 'one or more members of a class may sue or be sued as representative parties on behalf of all' in certain situations." (emphasis added by appellants). As discussed above, the class-action waiver found in the arbitration agreement prevents consolidated arbitration of multiple claims; it does not directly address class-action litigation under Rule 23, so the appellants' focus on the language of the rule is misplaced. We also note that appellants have neither cited any cases in which class certification was granted to the defendants nor provided any persuasive argument that waiving their right to be sued as part of a class action constitutes a meaningful obligation on their part.
We therefore find no error in the circuit court's ruling that the arbitration agreement lacks mutuality of obligation because both the self-help and class-action-waiver provisions are significantly one-sided in favor of appellants. While mutuality of obligation does not require each party to be equally burdened, the appellants have not demonstrated that they are subject to any meaningful obligations under the arbitration agreement. Accordingly, we must affirm the circuit court's denial of appellants' motion to dismiss and compel arbitration.
Affirmed.
Virden and Gladwin, JJ., agree.
The arbitration agreement also says that "[i]f a court limits or voids the Class Action Waiver, then this entire Arbitration Clause (except for this sentence) shall be null and void. If any part of this Arbitration Clause other than the Class Action Waiver shall be deemed or found unenforceable for any reason, the remainder of the Arbitration Clause shall remain enforceable."
The agreement effectively bars either party from participating in a class-action lawsuit because other provisions of the agreement limit the parties to litigation that falls within the jurisdiction of small claims court. However, the specific "class-action waiver" language at issue in this appeal deals with whether the parties can engage in consolidated arbitration of multiple claims, not whether they can participate in class-action litigation.
An agreement may be found unconscionable if (1) it is unreasonable, one-sided, or contains language that is difficult to notice or understand; (2) a meaningful choice of whether or not to agree to the arbitration provisions of the agreement is not provided; or (3) the agreement is not balanced or fair under reasonable standards of fair dealing. Ark. Code Ann. § 16-108-210(d)(2)(A)-(C). The comments to this section of the Revised Uniform Arbitration Act state that (1) the act is intended to effectuate the intent of the contracting parties, even if that intent is to disallow consolidated arbitration of multiple claims; and (2) that there are conflicting precedents as to whether prohibitions on consolidated arbitration automatically render an arbitration agreement unconscionable. Rev. Unif. Arbitration Act § 10 cmt.
In the context of a vehicle-sales contract, the purchasers would be much more likely to desire consolidated arbitration of a class-action-type claim. While not directly controlling, the class-certification standards are helpful in understanding the issue. Class certification is governed by Rule 23 of the Arkansas Rules of Civil Procedure. The proposed class must be susceptible to precise definition, and before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. See Van Buren Sch. Dist. v. Jones , 365 Ark. 610, 232 S.W.3d 444 (2006) ; Ark. Blue Cross & Blue Shield v. Hicks , 349 Ark. 269, 78 S.W.3d 58 (2002). The six requirements for class-action certification as stated in Rule 23 of the Arkansas Rules of Civil Procedure are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Diamante, LLC v. Dye , 2013 Ark. 501, at 2, 430 S.W.3d 710, 714. From these factors, it is more likely that a group of purchasers would be able to satisfy these requirements in a common suit against the seller/financer than it is that a seller/financer would join with other creditors to prosecute a class action against an individual buyer/debtor.
To the extent that the circuit court also found that appellants had the unilateral option of avoiding arbitration by refusing to consent to the appellees' selection of arbitrator, we agree that the court erred in its interpretation of the contract. The arbitration agreement states that the purchaser may select the arbitrator "with [the seller's] consent" but goes on to specify that if the parties could not agree on an arbitrator, one would be appointed by a court. While this provision places the initial burden on the appellees to select an arbitrator, it does not allow the appellants to avoid arbitration simply by refusing to consent. While we acknowledge that the circuit court's finding on this provision of the agreement was erroneous, the error was harmless because, as discussed above, other provisions of the arbitration agreement lacked mutuality.
Because we are affirming the circuit court's denial of the appellants' motion to dismiss and compel arbitration based on lack of mutuality of obligation, we need not address the circuit court's alternative basis for its ruling, the finding that appellants had waived their right to enforce arbitration by seeking a monetary judgment in district court. See, e.g. , McNeill v. Robbins , 2014 Ark. App. 222, at 7, 2014 WL 1396655. | [
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WAYMOND M. BROWN, Judge
Appellants filed separate briefs appealing from the circuit court's order terminating their parental rights to W.W., born 10/11/2008; J.L., born 07/25/2013; and A.L., born 01/20/2017. On appeal, Christopher argues that the circuit court erred in (1) failing to timely appoint counsel to represent him and (2) finding that the grounds pleaded in support of termination were sufficiently proved. Laura argues on appeal that the circuit court erred in terminating her rights to the children based on the (1) twelve-months-out-of-the-home-without-remedy ground and the (2) other-subsequent-factors ground. We affirm.
Appellee Arkansas Department of Human Services (DHS) initiated contact with appellants on December 3, 2015, after receiving a hotline report of environmental neglect, drug use, domestic violence, the children being "filthy[,]" and lack of food. Family services worker (FSW) Katie Wells made contact on the same date; she found adequate food and observed no health or safety concerns. Appellants denied drug use, domestic violence, and a lack of food. Unsuccessful attempts to visit appellants were made on January 4 and 6, 2016, but a successful attempt was made on January 11, 2016. Again, there was adequate food and no health or safety concerns were found; however, appellants both refused drug screens. Because the hotline report could not be substantiated, the case was closed on January 13, 2016.
A second hotline report was accepted on February 9, 2016, as "Differential Response with the allegations of environmental neglect and inadequate food." The report specifically stated that "there was no heat in the home and it had been snowing in Corning for the past two days and the wind chill was 18 ... [and W.W.] was filthy and dirty and had a body odor." When Wells made contact with appellants on February 10, 2016, she observed that the gas line had been cut-the landlord was supposed to be fixing it-so space heaters were being used and the bathroom was "very dirty." Laura refused cleaning supplies offered by Wells and said she understood that W.W. had to be bathed nightly.
Wells returned on February 17, 2016, to a "neat and clean" home with "[n]o health or safety concerns observed"; Laura affirmed that W.W. was taking baths nightly. Despite a hiccup on February 19, 2016, that was virtually duplicative of Wells's February 10 visit but which was corrected when Wells visited a second time on the same date-the differential-response case was closed on February 19, 2016.
DHS received a third hotline report on April 6, 2016. After receiving a call from a "concerned citizen" about the family, Corporal Smith went out to the home for a probation search. Upon Corporal Smith's arrival, Christopher fled and Corporal Smith found Laura in the home "severely under the influence of methamphetamine[,]" so much so that he had to change J.L.'s diaper-which was "soiled and swinging between his legs"-after Laura "fidgeted" in her attempt to change him but was ultimately "unable to complete the task." Corporal Smith stated that "the home was not appropriate for the children due to the home being cluttered with trash and furniture and there was a roach infestation. He stated there was not food in the home and that [W.W.'s] clothing was filthy."
When Wells met Laura and the children at the police station, Laura was "swaying her head from side to side, gagging, and fidgeting" and was "unable to carry on a conversation ... due to being under the influence." Wells went to the home and essentially confirmed what Corporal Smith had reported, among other things such as a kitchen sink "overflowing with dirty dishes" and various types of debris obscuring the floor from view. A seventy-two-hour hold was taken on April 6, 2016. DHS filed a petition for emergency custody and dependency-neglect of W.W. and J.L. on April 8, 2016. The circuit court entered an ex parte order for emergency custody on the same date finding:
[DHS] has been involved with the family since 12/3/15, and that the following services, as outlined in the affidavit, were provided to the family: home visits, drug screens, offer of cleaning supplies, differential response case which was closed 12/19/1[5]. These services did not prevent removal because on 4/6/16, the mother was severely under the influence of methamphetamine and was arrested during a probation check at the home, and there was no caregiver for the children.
The circuit court entered a probable-cause order on April 12, 2016, following a hearing on the same date for which neither Christopher nor Laura was present. Finding that probable cause existed and continued for the children's removal, the goal of the case was reunification. Both parents were awarded supervised visitation.
The circuit court entered an adjudication order on June 10, 2016. Again, neither parent was present. The children were adjudicated dependent-neglected due to environmental neglect and parental unfitness. The goal of the case was reunification with a concurrent plan of adoption.
The circuit court entered a review order on September 21, 2016. Christopher appeared in court for the first time at the review hearing. The order noted that the circuit court accepted and approved the stipulation of the parties and made the findings and orders contained therein based on said stipulations. Regarding the parties' compliance, the circuit court made the following findings:
The mother has partially completed parenting classes. The mother has completed 3 sessions of parenting classes, but has cancelled multiple sessions. The mother did not attend her psychological evaluation. The mother stated to the worker that she did not go to her psychological appointment due to feeling funny and that she just could not go. Due to her missing the appointment the mother's psychological evaluation is scheduled for December 2016. The mother missed several visits with her children. In addition, the mother tested positive for illegal substances. The parents' home continues to be cluttered and dirty.
....
The father has completed one parenting class. The father has cancelled multiple parenting sessions. The father did submit to a drug and alcohol assessment. However, the father has failed to follow the recommendation of inpatient substance abuse treatment. In addition, the father continues to test positive for illegal substances. The father has missed several visits with the children. The father states he
is too tired from
working to attend the visitation sessions. The parents continue to have a cluttered and dirt [sic] home.
Accordingly, both parents were found to be in partial compliance with the case plan.
DHS filed a petition for emergency custody and dependency-neglect of A.L. on January 25, 2017, following her January 20, 2017 birth. A hotline report had been made stating that Laura had given birth to A.L. at home and that Laura was lying in her bed while A.L. was on the floor when the ambulance staff arrived. The affidavit in support stated:
FSWS Howard confirmed that Laura's older children, [W.W. and J.L.] are in foster care, and the permanency planning hearing is scheduled for March of this year. FSWS Howard reported that Laura has severe schizophrenia and will not consistently take medication. FSWS Howard reported that very little progress has been made throughout the foster care case currently opened on Laura's children; and [DHS] had planned to remove [A.L.] when born.
FSW [Allison] Swann contacted [Arkansas Methodist Medical Center] and spoke with RN Jennifer Melvoy. RN Melvoy told FSW Swann that Laura had contacted the ambulance upon giving birth to [A.L.] but when medical staff arrived, Laura could not figure out why she was bleeding.... RN Melvoy stated that Laura was also hospitalized for monitoring and it took her several hours of being in the hospital to understand that she had a baby and for a significant period of time, did not understand why she was bleeding. RN Melvoy explained that due to [A.L.] being born at home, she will be monitored for several days in the hospital[.]
The affidavit further noted DHS's involvement with Laura. A seventy-two-hour hold was taken on A.L. on January 20, 2017, though she remained in the hospital receiving antibiotics through January 24, 2017. An ex parte order for emergency custody was entered on January 25, 2017.
The circuit court entered a stipulated probable-cause order as to A.L. on January 26, 2017. Neither parent was present for the hearing, which was held on the same date. In its February 8, 2017 adjudication order, the circuit court adjudicated A.L. dependent-neglected due to "Parental Unfitness and inadequate supervision as well as prior adjudication of siblings for the same grounds." Both parents were present at the adjudication hearing. The goal of the case, as to A.L., was reunification with a concurrent plan of "relative placement, permanency and adoption."
Though the order-regarding W.W. and J.L. only-was not entered until September 20, 2017, the circuit court held a permanency-planning hearing on May 11, 2017. Both parents appeared, albeit Christopher appeared again by phone. The circuit court changed the goal of the case to adoption and authorized DHS to file a petition for termination of parental rights (TPR). Noting that Christopher had not yet been appointed counsel and was requesting such an appointment at that time, it found Christopher to be indigent and appointed him counsel. The circuit court specifically found that the appellants had not complied with the case plan, stating:
i. Christopher Lancaster, has been incarcerated and has not completed any case plan services. Specifically, Mr. Lancaster has not completed parenting, refused to attend inpatient drug treatment which was recommended at his drug and alcohol assessment, has not maintained meaningful contact with the children, and was sent back to prison due to methamphetamine residue been [sic] found in the home.
ii. Laura Wright [Lancaster], currently resides in an apartment in Corning, AR, however, the home is cluttered. In addition, [Laura] is struggling financially due to her fixed income from Social Security. [Laura] has also failed to maintain meaningful contact with the children. In this matter, the children came into care April 6, 2016 due to the mother having erratic behavior and was arrested during a probation check at the home, despite [DHS] offering the [sic] [Laura] services[.] [Laura] on March 22, 2017, tested positive for fentanyl. No proof of prescription provided to [DHS]. In addition, during this case, the mother gave birth to [A.L.], and [DHS] placed a 72-hour hold on the child, due to [Laura] giving birth at home without proper care of the infant, in that the infant was discovered lying on the floor by EMT's while [Laura] was in the bed and unaware she had given birth.
On May 31, 2017, DHS filed a petition to terminate the appellants' parental rights to all three children. With regard to W.W. and J.L., DHS asserted the twelve-months-out-of-custody-without-remedy ground and the twelve-months-out-of-parents-custody-with-willful-failure-to-support ground. It also asserted the other-subsequent-factors ground against both appellants with regard to all three children and the criminal-sentence-constituting-substantial-period ground against Christopher.
Following a TPR hearing on September 20, 2017, the circuit court entered an order terminating the appellants' parental rights to all three minor children on November 20, 2017. The circuit court found that DHS had proven the twelve-months-out-of-custody-without-remedy ground as to W.W. and J.L. only, stating that:
[J.L.] and [W.W.] were adjudicated dependent-neglected on June 20, 2016 due to environmental neglect and parental unfitness. Mrs. Howard today has testified that the house remained a significant issue up through the birth of [A.L.], who was born in the home. While the condition of the home has progressed, the progression has been recent. However, the Court notes it's [sic] overwhelming concern that [the] issue of parental unfitness continue [sic] to be an issue. Despite [DHS] offering services, the parents' unfitness is still an issue today.
The circuit court found that DHS also proved the other-subsequent-factors ground as to all three children, stating:
Subsequent to this case beginning: The mother has demonstrated an incapacity to be a parent to the children and despite services the mother has not remedied her incapacity; the mother has had failed drug screens, and has had pill counts that are inconsistent with the prescibied [sic] usage; the mother gave birth to [A.L.] in the home, and based on credible testimony, after the birth the mother was confused. The father became incarcerated and prior to his incarceration he had refused treatment.
This timely appeal followed.
Termination-of-parental-rights cases are reviewed de novo on appeal. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. DHS must prove by clear and convincing evidence that it is in the juvenile's best interest to terminate parental rights, as well as the existence of at least one statutory ground for termination. Clear and convincing evidence is that degree of proof that will produce a firm conviction in the finder of fact regarding the allegation sought to be established; the question that must be answered on appeal, when the burden of proving a disputed fact in equity is by clear and convincing evidence, is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. However, a high degree of deference is given to the trial court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses.
The goal of Arkansas Code Annotated section 9-27-341 is to provide permanency in a minor child's life in circumstances in which returning the child to the family home is contrary to the minor's health, safety, or welfare, and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the minor child's perspective. Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the children. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juveniles will be adopted and of the potential harm caused by returning custody of the children to the parent. Each of these requires proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established.
I. Christopher Lancaster
Christopher's first argument on appeal is that the circuit court erred in failing to timely appoint counsel to represent him. Christopher failed to raise this due-process-violation argument to the circuit court. Accordingly, because no specific due-process argument was made below, this point is not preserved for our review. This court notes, however, that while Christopher points this court to references to himself below as "legal father" in the caption of documents as well as in the findings in the circuit court's orders, it is not clear to this court whether appellants were ever married, though it appears that they were not. Despite Laura's references to Christopher as her "husband" during her testimony and some references to Laura as "Mrs. Lancaster" during other witness testimony at the termination hearing, the circuit court alternates between applying a Wright and Lancaster surname to Laura throughout the case, and Christopher identified himself as single on his dependency-neglect affidavit of indigency at the time of the filing of the notice of appeal. Furthermore, Laura is not referred to with the Lancaster surname until the January 25, 2017 petition for emergency custody of A.L. If the appellants were not in fact married, having taken no action to establish paternity, there can be no assertion that appellant was the legal father of W.W. and J.L., and therefore there can be no assertion of his right to counsel prior to the TPR hearing. If they were in fact married at the time of A.L.'s birth, then appellant's argument would have merit-as to A.L. only-if he had preserved it below, but this court finds that he failed to do so.
Christopher's second argument on appeal is that the grounds pled in support of termination were not sufficiently proved. He specifically argues that DHS failed to "prove that it offered appropriate family services, let alone engaged in meaningful efforts, in an attempt to strengthen the familial bond before it sought to terminate Christopher's rights." The circuit court found that DHS made reasonable efforts to prevent the children's removal in its June 20, 2016, and February 8, 2017 adjudication orders as well as in its January 26, 2017 stipulated probable cause order. It also found that DHS had made reasonable efforts to provide family services and to finalize permanent placement of the children with either appellant, but to no avail. These findings were in the circuit court's September 21, 2016 review order, its September 20, 2017 permanency-planning order, and its November 20, 2017 TPR order. A failure to challenge the court's prior "meaningful-efforts" findings precludes this court from now reviewing any adverse rulings resulting from those orders not appealed from.
Christopher cites Sutton v. Arkansas Department of Human Services for the assertion that his challenge to the lack of proof that DHS provided meaningful efforts or appropriate family services is properly before this court; however, Sutton is distinguishable. In Sutton , after quoting the directed-verdict motion of Sutton's counsel, this court declined to find that the issue had been waived by holding that Sutton's counsel appeared to be "arguing exactly what Sutton [was] arguing here-that the services provided were not meaningful." It was for that reason-that the argument was raised below, or at least began before the circuit court interrupted Sutton's counsel-that this court addressed the merits of Sutton's meaningful-services argument. Christopher's argument below, in total, was as follows:
I join with Ms. Jones. However, to my client, there was testimony that my client, the caseworker has not had any contact with my client in over a year, or roughly a year, since he's been incarcerated. He's had approximately, from the time the kids were removed to the adjudication-more specifically, from the adjudication to him being incarcerated in September, roughly three months to comply with the case plan.
He was making, I think, as the case worker said, a partial skin of his teeth perhaps compliance with the case plan. Expected to be released next month. So I also join in Ms. Jones' feeling that [DHS] that [DHS] has not met their burden by clear and convincing evidence that my client has not complied, Your Honor. So we join in the motion to-for directed verdict.
Christopher simply did not make the specific meaningful-services argument below that he now makes before this court.
Even if he had made the specific argument he now makes-and we find that he did not-the record is clear that in the five months he was free, appellant did very little to work his case plan, which included a drug-and-alcohol assessment and whatever services would be recommended by the assessment. In his testimony, Christopher "agreed that [he] completed very little of the [circuit court's] orders" during the time between the children coming into care in April 2016 and his becoming incarcerated in September 2016. Christopher's own counsel agreed that his actions were "partial [and by] the skin of his teeth." Christopher testified that "the day [he] went [to the assessment he] was offered services that very day to treat his drug addiction. [He] was not able to take advantage of that offer" because he "didn't have the money to take with him" to buy "clothes, have cigarettes, you know, [he] had to buy things to take with [him], you know." Accordingly, services were offered to treat his problem-a drug addiction which he struggled with given his positive drug screen during the pendency of the case before he was reincarcerated as well as his reincarceration itself for a drug-related offense-but he chose not to take advantage of the offer; Howard's testimony confirms this.
Christopher had been on parole for attempting to manufacture methamphetamines and-according to his own testimony-was again incarcerated at the time of the hearing due to parole violations of failing to report and having methamphetamines in his home. He admitted to having relapsed at the time the drugs were found in his home in September 2016, despite having done a "six-month treatment" while incarcerated in 2012. While a drug-and-alcohol assessment and treatment were not the only services offered to Christopher, they attempted to help him remedy his drug addiction-a major issue on his part and an impediment to custody of the children being returned to him. We hold that we cannot find that the circuit court erred in finding that the above-referenced grounds were proved as to Christopher. Accordingly, we affirm the circuit court on both of Christopher's points.
II. Laura Lancaster
Laura argues that there was not sufficient evidence to support the circuit court's finding that the twelve-months-out-of-the-home-without-remedy and other-subsequent-factors grounds were proven. Regarding the twelve-months-out-of-the-home-without-remedy ground, Laura essentially argues that she could not prove that she could care for her kids because the caseworker would not let her: it was the caseworker's fault. She specifically argues:
[Laura] was not at liberty to have her children in the home and have expanded visits due to the fact that the caseworker had not allowed this to happen. [Laura] testified that she had requested to have more visits, but they had continued to be supervised. She testified further that she had requested another caseworker as she had a problem with the caseworker and by inference could not receive more visits based on her problem with the caseworker.
....
[Laura] argues that this ground cannot be used against her because she did not cause her children's removal for a greater time of twelve months, that she disagreed that the children could not be placed with her on a trial placement or an expansion of visitation.... The fact that the caseworker chose not to place the children back with her was due to the caseworker's own opinion, as the services had been completed, the caseworker should have started a longer extension of visitation and placement in the home.
With this and the remainder of this argument, Laura asks this court to make a credibility determination that it will not make. The circuit court's orders authorized visitation to Laura "at the discretion" of DHS and permitted approval of modification of visitation, to include unsupervised and overnight visitation, also at the discretion DHS, with approval from the attorney ad litem. Howard, as the caseworker, was DHS's representation in this case; her opinion was a determining factor. By finding and ruling as it did, the circuit court necessarily found Howard's testimony credible over that of Laura. Accordingly, we hold that the circuit court did not err in finding that DHS proved the twelve-months-out-of-the-home-without-remedy ground. Only one ground is necessary to terminate parental rights, therefore we do not address appellant's argument regarding the second ground.
Affirmed.
Abramson and Harrison, JJ., agree.
Laura is referred to both as Laura Wright and as Laura Lancaster throughout the case. It is not clear whether the parties are or were married.
The affidavit appears to have a scrivener's error where it states that the differential-response case was closed on "12/19/2016" a date which had not yet occurred.
Christopher was on parole.
Being a date yet to have occurred, we treat this as a scrivener's error.
It is not clear whether Laura appeared as the order fails to notate her absence or presence.
The exact nature of the stipulations was not detailed in the order.
Edit in original.
Christopher was present by phone.
Ark. Code. Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017).
Ark. Code. Ann. § 9-27-341(b)(3)(B)(ii)(a) .
Ark. Code. Ann. § 9-27-341(b)(3)(B)(vii)(a) .
Ark. Code. Ann. § 9-27-341(b)(3)(B)(viii)(a) .
Since the children had come into care, Christopher had become incarcerated for drug-related offenses.
Woodward v. Ark. Dep't of Human Servs. , 2017 Ark. App. 91, at 3, 513 S.W.3d 284, 287 (citing Spangler v. Ark. Dep't of Human Servs. , 2012 Ark. App. 404, 2012 WL 2407145 ).
Id. (citing Watson v. Ark. Dep't of Human Servs. , 2014 Ark. App. 28, 2014 WL 171817 ).
Id. (citing Everett v. Ark. Dep't of Human Servs. , 2016 Ark. App. 541, 506 S.W.3d 287 ).
Id. , at 3-4, 513 S.W.3d 284, 287.
Id. (citing Watson , supra ).
Id. (citing Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001) ).
Sutton v. Ark. Dep't of Human Servs. , 2016 Ark. App. 459, at 5, 503 S.W.3d 842, 845-46 (citing Dinkins , 344 Ark. 207, 40 S.W.3d 286 ; Ark. Code Ann. § 9-27-341(a)(3) (Repl. 2015) ).
Watson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 484, at 7, 529 S.W.3d 259, 263 (citing Norton v. Ark. Dep't of Human Servs. , 2017 Ark. App. 285, 2017 WL 1948236 ).
Id.
Id.
Christopher does not contest the circuit court's best-interest finding; the issue is therefore waived. See Del Grosso v. Ark. Dep't of Human Servs. , 2017 Ark. App. 305, at 5, 521 S.W.3d 519, 522.
Lawrence v. Ark. Dep't of Human Servs. , 2018 Ark. App. 223, at 11, 548 S.W.3d 192, 198 (citing Kohlman v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164, 544 S.W.3d 595 ).
DHS's brief unequivocally states that the appellants were not married.
See Hicks v. Cook , 103 Ark. App. 207, 209-10, 288 S.W.3d 244, 246 (2008) ("Arkansas Code Annotated section 9-10-113(a) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Section 9-10-113(b) provides that a biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. Custody may be awarded to a biological father upon a showing that (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father.") (internal citation omitted).
Contreras v. Ark. Dep't of Human Servs. , 2015 Ark. App. 604, at 8, 474 S.W.3d 510, 515 (citing Jones-Lee v. Ark. Dep't of Human Servs. , 2009 Ark. App. 160, 316 S.W.3d 261 ); Stockstill v. Ark. Dep't of Human Servs. , 2014 Ark. App. 427, 439 S.W.3d 95 ; see also Anderson v. Ark. Dep't of Human Servs. , 2011 Ark. App. 526, at 9, 385 S.W.3d 373, 380 (citing Sparkman v. Ark. Dep't of Human Servs. , 96 Ark. App. 363, 242 S.W.3d 282 (2006) ("We will not address an argument that DHS failed to make meaningful efforts to reunify the family where the appellant did not appeal from an earlier permanency-planning order finding reasonable efforts.") ).
2016 Ark. App. 459, 503 S.W.3d 842.
Christopher's second incarceration began in September 2016, in Missouri, and he was still incarcerated at the time of the TPR hearing.
Laura does not contest the circuit court's best-interest findings; the issue is therefore waived. See Del Grosso v. Ark. Dep't of Human Servs. , supra.
Knight v. Ark. Dep't of Human Servs. , 2017 Ark. App. 602, at 6, 533 S.W.3d 592, 596 (citing Hambrick v. Ark. Dep't of Human Servs. , 2016 Ark. App. 458, at 12, 503 S.W.3d 134, 140 ; Bowie v. Ark. Dep't of Human Servs. , 2013 Ark. App. 279, 427 S.W.3d 728 ) ("This court will not substitute its own judgment or second-guess the credibility determinations made by the circuit court.").
Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, at 9, 538 S.W.3d 842, 848 (citing Wafford v. Ark. Dep't of Human Servs. , 2016 Ark. App. 299, 495 S.W.3d 96 ). | [
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MIKE MURPHY, Judge
On August 9, 2017, a Pulaski County jury convicted appellant Steven Miller of simultaneous possession of drugs and a firearm, possession of methamphetamine with intent to deliver, possession of drug paraphernalia, theft by receiving, and possession of firearm by certain persons. He was sentenced to 30 years in the Arkansas Department of Correction. On appeal, he argues that there was insufficient evidence to prove the theft-by-receiving charge. We affirm but remand to correct an error in the sentencing order.
Facts relevant to the appeal follow. On August 15, 2016, Miller was pulled over in his pickup truck for a traffic stop. Miller's wife was also in the vehicle. While searching Miller, his wife, and the cab of the pickup truck, police found drugs, drug paraphernalia, and over $2400 in cash. Upon being placed in the patrol car, Miller told officers that everything in the truck was his, and he had just ingested two grams of methamphetamine. In the bed of the truck was a third-row cloth seat belonging to another vehicle. During the search of that seat, a deputy noticed a tear in the middle-section armrest. When he looked in the torn part, he saw a black Kel-Tac .380 caliber handgun with six rounds in the magazine. Miller's wife testified that she had seen Miller place the gun there a few days before they were stopped.
Joshua Ferguson testified that the handgun belonged to him in May 2016, and that it was stolen from his secretary's car. Before the gun was stolen, Ferguson had spray painted it to cover some rust, but the paint had been sanded off since he had last seen it. Although the paint had been sanded off, the handgun's serial number remained visible. Ferguson did not know Miller and did not give him permission to have his handgun.
At trial, in a motion for directed verdict, Miller argued that there was no evidence that he knew or had good reason to know that the handgun was stolen. For his sole point on appeal, Miller argues that the trial court erred in denying this motion.
On appeal, this court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Velasco v. State , 2016 Ark. App. 454, 504 S.W.3d 650. Evidence is sufficient to support a conviction when it is substantial. Russell v. State , 2017 Ark. App. 667, 537 S.W.3d 279. Evidence is substantial when it is of sufficient force and character to compel reasonable minds to reach a conclusion beyond suspicion and conjecture. Id. Intent rarely can be proved by direct evidence and thus must usually be inferred from the circumstances. White v. State , 98 Ark. App. 366, 255 S.W.3d 881 (2007). Circumstantial evidence can be substantial if it excludes every other reasonable hypothesis consistent with innocence. Russell , 2017 Ark. App. 667, at 3, 537 S.W.3d at 281. Whether the evidence excludes every other reasonable hypothesis consistent with innocence is a determination to be made by the trier of fact. Id. Weighing of the evidence and credibility determinations likewise are made by the trier of fact. Id. On appeal, the evidence is viewed in the light most favorable to the verdict, with only that evidence supporting the verdict considered. Id.
A person commits theft by receiving when he receives, retains, or disposes of stolen property of another person, knowing it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 2013). Pursuant to Arkansas Code Annotated section 5-36-106(c), the unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that the person knows or believes that the property was stolen. The presumption is not necessarily overcome even if a defendant provides a plausible explanation for possession of the recently stolen property; rather, whether the explanation is to be believed is a determination made by the trier of fact. Benton v. State , 2012 Ark. App. 71, 388 S.W.3d 488.
The Arkansas Criminal Code does not define the term "recently stolen," leaving its explication to the facts and circumstances of each case. Thomas v. State , 2011 Ark. App. 637, at 7-8, 386 S.W.3d 536, 541. In Thomas , we held that a little more than seven or eight months is too long, without more, to raise the statutory presumption applicable to recently stolen property. Id . In Williams v. State , however, we held that evidence was sufficient to allow the jury to find-without resorting to speculation or conjecture-that Williams knew or had reason to believe that the gun was stolen because he was in unexplained possession of a gun that had been discovered missing four months earlier. 93 Ark. App. 353, 356, 219 S.W.3d 676, 679 (2005).
Here, we have testimony that Miller was found with a gun that had been stolen three months before his arrest. Miller argues that Williams is distinguishable because, in Williams , the appellant was attempting to conceal the gun without explanation, and here, the concealment can be explained by Miller's being a felon and wanting to hide his possession of a firearm. He also attempts to explain away the filing off the gun's spray paint to someone just not liking the paint job. He asserts that Williams does not establish a bright-line rule about what is or is not "recent."
We disagree and hold that the presumption of section 5-36-106(c)(1) applies and that evidence in the case before us is more than sufficient to establish his guilt of theft by receiving of the handgun. The evidence demonstrated that Miller possessed the handgun within two to three months of being stolen, he concealed it in an armrest in the back of the pickup truck, and attempts had been made to alter the handgun's appearance. The jury, as the trier of fact, was not required to believe Miller's alternate explanations.
Affirmed; remanded to correct error in sentencing order.
Abramson and Gladwin, JJ., agree.
We note that the portion of the amended sentencing order entered July 19, 2018, regarding the theft-by-receiving charge does not have any indication that Miller was found guilty at a jury trial and sentenced by a jury, despite having a verdict form and a record reflecting the same. Clearly, in a form full of boxes to check, one box was missed. On remand, we direct the trial court to correct this scrivener's error. | [
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....
17. The parties each hereby acknowledge that they have been represented by counsel in this matter and that they have each been advised that this agreement, upon approval by the court, will constitute a final agreement of the parties which cannot be reviewed, amended or changed by either party. This result is intended by both parties, so that this matter cannot be subsequently changed by the other. The parties further acknowledge that they are aware of, and have been advised of the Arkansas law with respect to division of property, spousal support (alimony) and other issues related to the property of the parties. The parties each acknowledge that in the event this matter were decided by this court, they may receive more, or less than what is provided under this agreement. The parties notwithstanding accept the terms of this agreement and voluntarily waive their right to have these matters decided by this court.
....
21. The parties have read and understand the terms and conditions of this Agreement, having consulted with Counsel, and they have executed same as their free and voluntary act.
Both parties and each of their attorneys signed the agreement.
In anticipation of his retirement in April 2014, Allen presented Lynn a "Military Retirement Pay Division Order" (MRPDO) in December 2013. Lynn advised Allen in March 2014 that she would not sign the proposed order because it did not provide her a full 50% of his anticipated monthly retirement benefit. When Allen began to draw his retirement pay, he commenced paying Lynn her half, valued as of the date of the divorce and not including the additional portion earned in the five years after the divorce.
In October 2014, Allen filed a Motion to Enforce Property Settlement Agreement, asserting that he was paying Lynn her half of his retirement in accordance with their property settlement agreement but that Lynn would not sign the order effecting the division. His motion asked that the trial court approve and enter his proposed MRPDO and that he be awarded his attorney fees and costs for having to file this motion. Lynn filed a response in October 2014 generally denying Allen's allegations but asking for the entry of an order that granted her the benefits to which she was entitled.
In August 2015, Lynn filed an Amended Counter Motion in which she reiterated her desire for a "military qualifying court order." Lynn also requested that she be reimbursed by Allen for her payment of $7,476 in health-insurance premiums she incurred between May 2009 and May 2012, as provided in paragraph 14 of their settlement agreement. Allen responded to Lynn's filing by reiterating his request for approval of the MRPDO and stating that Lynn had never notified him that she was paying any health insurance premiums, that she had never made a demand for those premium reimbursements until now, and that she had not provided any documentation to support that claim.
A hearing was conducted in November 2016. Allen's position was that their property settlement was clear and unambiguous and entitled Lynn to half of his military retirement account, "as of the date of the divorce." Allen contended that this meant Lynn was to receive her half of that amount that accrued during the marriage and not what had accrued after the divorce was final. Lynn contended that the provision was ambiguous and that she thought it meant that she was entitled to half of the entirety of Allen's military retirement, whenever he began to draw it.
Allen testified that he became a member of the Arkansas Army National Guard early in their marriage and that he served five additional years after their divorce was final. Allen also testified that he had a thrift savings plan through the military. Allen testified that this savings plan was not part of his retirement but was a savings account. Allen hired Mark Sullivan, an expert in military-retirement benefits and a lawyer, to calculate what Lynn was entitled to, and Allen remitted that amount to her on a monthly basis.
Mark Sullivan, the aforementioned expert, testified that he is an attorney licensed in Ohio and North Carolina since the 1970s, a retired Army Reserve JAG Colonel, and a board-certified family lawyer since 1989. Mr. Sullivan is the author of a book on military divorce covering military retirement and pensions. Mr. Sullivan calculated what Lynn's 50% share was, considering that they agreed her half was to be determined "as of the date of the divorce." He testified that "it's clear that what we're doing is talking about the monthly paycheck an individual receives[.]" Mr. Sullivan stated that if Lynn was to receive half of the entirety of Allen's military retirement, then the settlement provision would not have included the qualifying words "as of the date of the divorce." He testified, "If you add the modifier, as of the date of the divorce, those words have to have meaning and that means with the snapshot on the date of the divorce." He explained his method of calculation, including cost-of-living increases since 2009, to be fair to Lynn and ensuring that she would receive those increases in the future. Mr. Sullivan stated that a thrift savings plan was an optional savings account akin to a 401(k) that was funded solely by the military person's contributions.
Lynn did not take issue with Mr. Sullivan's method of calculation but instead believed that the settlement agreement meant that no calculations were required-she was simply entitled to half of whatever Allen would draw on a monthly basis. Lynn said that this was what she understood that they agreed to, although she admitted that she had been represented by counsel and that she had consulted with him when she entered the settlement agreement. Lynn testified that she did not have counsel's advice on what all this meant "because I don't feel like I was completely informed of that or I wouldn't be sitting here today." When asked why the phrase "as of the date of divorce" was used, she replied, "I can't answer why it reads like that." Lynn admitted that she had not read this settlement agreement word for word but instead had asked her attorney if she got what she asked for, and he had said yes.
During the hearing, Lynn's attorney submitted Defense Exhibit No. 1 without objection, substantiating the health-insurance premiums paid in the three years following the parties' divorce for which she was seeking reimbursement.
The trial court took the matter under advisement. On December 2, 2016, the trial court issued a letter opinion and found that
1. The parties' settlement agreement paragraph 10, concerning division of Allen's military retirement, was not ambiguous.
2. Mr. Sullivan's calculations were correct.
3. Lynn provided proof to substantiate her COBRA payments in the amount of $5,210.55.
4. Allen was "entitled to his fees and costs for the filing and prosecution of this motion."
Lynn's attorney sent letters objecting to the proposed precedent sent by Allen's attorney, asserting for the first time that Lynn was entitled to half of Allen's thrift savings plan. The trial court did not respond to those letters. The trial court entered an order on February 23, 2017, reflecting the findings made in its December 2016 letter opinion. Lynn filed a timely notice of appeal.
Lynn first argues on appeal that paragraph 10 of their property-settlement agreement regarding the division of Allen's military retirement is ambiguous and that the trial court erred in finding the provision unambiguous. We disagree with Lynn on this point.
The provision at issue states:
10. The Wife shall receive 50% of Husband's military retirement account, as of the date of the divorce. Husband's attorney shall prepare a Qualified Domestic Relations Order to divide said retirement account. Further, Husband shall sign any documents necessary to effect the division of the account specified herein.
Lynn's half of Allen's military retirement was to be determined "as of the date of the divorce." In other words, Lynn's interest would be half that portion accrued up to the date that their divorce was final, not in any portion accrued thereafter. We must give effect to the plain language used, and there is no other reasonable interpretation. To interpret this provision as Lynn asserts would negate any meaning to the qualifying words "as of the date of the divorce."
Military pensions are generally divided proportionately to the number of years of marriage coinciding with the pensioner's military service. See , e.g. , Barnes v. Barnes , 2010 Ark. App. 821, 378 S.W.3d 766 ; Thomas v. Thomas , 68 Ark. App. 196, 4 S.W.3d 517 (1999) ; Cherry v. Cherry , 55 Ark. App. 178, 934 S.W.2d 936 (1996). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court's duty to construe the writing in accordance with the plain meaning of the language employed. Artman v. Hoy , 370 Ark. 131, 257 S.W.3d 864 (2007) ; Oliver v. Oliver , 70 Ark. App. 403, 19 S.W.3d 630, 633 (2000). The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. Buckingham v. Gochnauer , 2017 Ark. App. 660, 536 S.W.3d 155. Lynn was represented by counsel, admittedly did not read the settlement agreement word for word, and acknowledged that this agreement was final and binding. "The parties here were represented by able counsel and entered into the contract voluntarily, so it must be enforced." Moody v. Moody , 2017 Ark. App. 582, at 9, 533 S.W.3d 152, 159.
The trial court conducted a hearing on the parties' motions before making its decision, but ambiguity does not exist as a matter of law because one party says it does. See , e.g. , Oliver, supra . We cannot say that the trial court erred in finding that this provision was unambiguous in setting the value of Lynn's 50% "as of the date of the divorce," which was in 2009 and not in 2014. See Collins v. Collins , 2015 Ark. App. 525, 471 S.W.3d 665.
Lynn adds an argument in this point on appeal that she was entitled to half of Allen's thrift savings plan because it was equivalent to a 401(k) and part of the "military retirement account" specified in paragraph 10. We disagree. The parties framed this litigation as relating solely to the correct percentage of Allen's monthly military retirement paycheck that should be entered in the MRPDO. Although there was testimony elicited about the thrift savings plan, there was no request made during the hearing for half of this individual financial account. Moreover, on de novo review, it is clear that the thrift savings plan was an "individual financial account" that would remain Allen's sole property pursuant to paragraph 9 of the property-settlement agreement. See Franks v. Franks , 2018 Ark. App. 266, 548 S.W.3d 871.
Lynn's second point on appeal asserts that the trial court abused its discretion in finding that Allen was entitled to attorney fees and costs for his pursuit of his motion to enforce the property-settlement agreement. Lynn contends primarily that she should have prevailed on her construction of paragraph 10 and that, therefore, the trial court erred in its determination of the results of this litigation in deciding that Allen was entitled to attorney fees. We need not address this issue.
First, we are upholding the trial court's decision with regard to Lynn's first point on appeal. Second, Lynn has filed a separate appeal relating solely to the trial court's subsequent order awarding attorney fees. Any arguments related thereto will be resolved in Lynn's separate appeal.
Affirmed.
Virden, J., agrees.
Harrison, J., concurs.
This case is about paragraph 10 in the divorced couple's eight-years-old property-settlement agreement. The paragraph sought to resolve rights to Col. Hargis's military-retirement benefits. Here is the disputed paragraph:
The wife shall receive 50% of husband's military retirement account as of the date of divorce. Husband's attorney shall prepare a Qualified Domestic Relations Order to divide said retirement account. Further, husband shall sign any documents necessary to effect the division of account specified herein.
The parties focused on the first sentence. In that sentence the phrase "as of the date of the divorce" is unambiguous. So we all agree that the contract is clear enough as to when Ms. Hargis's percentage of Col. Hargis's military-retirement money had to be valued-"the date of divorce," 28 May 2009.
But the term (or phrase) "50% of husband's military retirement account" in paragraph 10 is ambiguous because there was no single retirement "account" when the parties divorced years ago. The case's course persuades me that the parties held competing interpretations of what a material term in their agreement meant when it came time to put it to work. Therefore, I respectfully disagree with the circuit court's and my colleagues' conclusion that the term "50% of husband's military retirement account" is unambiguous. This difference of opinion does not ultimately matter, however, because I agree that the circuit court did not make a reversible error by ruling that Lynn Hargis should receive 37.5 percent of Colonel Hargis's "military retired pay."
The Testimony (Summarized) and the Court's Decision
There was no single "military retirement account" when the parties divorced. Col.
Hargis's expert witness, Mark Sullivan, a colonel, Judge Advocate General's Corps, U.S. Army Reserve (Retired), testified about the colonel's "military pension" and "retired payment" and "military retired pay"-not an "account." And when cross-examined by Ms. Hargis's counsel, Col. Sullivan agreed that "military retired pay is not an account." The circuit court later noted that the parties' dispute was "artfully described as a federal government military entitlement." This case did not high center on a savings or checking account, a 401(k) account, or a CD. The tussle concerned pension and annuity benefits derived from Col. Hargis's military service, benefits that accrued during the marriage. In context, paragraph 10's reference to an "account" is inaccurate; and the inaccuracy mattered.
Back to Col. Hargis's expert, who said this about the entitlement calculation:
Defined benefit plan, Your Honor, which is Title X, or the qualified plan submitted to the IRS, which is a private employer, or the State of Arkansas, for that matter, sets out what the formula is that is used to determine the retire pay of an individual. Typically it is an amount of money times a percentage equals the monthly retired pay.
Sullivan further agreed that Col. Hargis's 403(b) contributions, which was also called a thrift savings plan, "is a defined contribution plan somewhat akin to a 401k plan in the private sector[.]" The thrift plan's value vests "when it is placed in there," and death terminates monthly military-retirement payments unless a retiree chooses a survivor-benefit annuity for a former spouse.
On redirect examination, Sullivan said it was unusual to have a thrift savings plan because a soldier must voluntarily choose to contribute a portion of his or her salary to the plan. He agreed that those "who are uninformed" may call a retirement entitlement "an account." The colonel also explained that "retire pay" is different than a "survivor benefit plan"-the latter is an annuity that one must "elect to pay for in order to get it[.]" According to his expert witness, Col. Hargis chose a survivor-benefit plan for Ms. Hargis while they were married. In the expert's view, because the divorce decree and property-settlement agreement did not state that Col. Hargis "shall immediately elect former spouse coverage for the survivor benefit plan," Ms. Hargis's interest in the survivor-benefit plan had terminated. Col. Hargis's current wife therefore became the sole beneficiary of the survivor-benefit plan. "General recognition of retirement benefits [in a property-settlement agreement] won't effectuate the Survivor Benefit Plan. It has to be a specific reference to the SBP," said Sullivan. This opinion on military-retirement law further shows how the scope of the term "50% of husband's military retirement account" in paragraph 10 is open to different meanings.
Regarding the thrift savings plan, which was not specifically identified in the settlement agreement, Col. Hargis explained that he did have a 403(b) thrift savings plan, which was "for all government employees." He said the military did not match his voluntary contributions, and the thrift savings plan was "just like" the APERS [Arkansas Public Employees Retirement System] plan that Ms. Hargis had. Col. Hargis said that he did not consider his thrift plan to be "military retirement." Ms. Hargis, however, argued that the 403(b) contributions was an available source of money to be aggregated and divided under paragraph 10. In a letter filed after the hearing, Ms. Hargis's counsel argued for part of Col. Hargis's 403(b) thrift savings contributions:
Mr. Hargis admitted on cross-examination that he, in fact, had a Thrift Savings Plan throughout the term of his military service and that he has paid Mrs. Hargis nothing from that account. Although we don't know how much was in that plan as of the date of the divorce, the Property Settlement Agreement clearly awards Ms. Hargis half of whatever the military says it is.
For his part, Col. Hargis responded by letter that "the testimony at trial was that the Thrift Savings Account was not part of military retirement but rather a self-funded financial investment account." The same letter then referenced the contract and argued that paragraph 9, not paragraph 10, captured the thrift savings plan. The letters show the (reasonable) differences of opinion that each party held about paragraph 10.
As the majority notes, Ms. Hargis said that in all negotiations leading up to the divorce and property-settlement agreement, Col. Hargis had acknowledged her support and sacrifices, stating that she was "the perfect military wife" and that she would receive "half of his retirement" with no qualifiers. There was testimony that Ms. Hargis received prestigious awards during her husband's deployments related to the support she provided military personnel. Patricia McClellan, the wife of General Roger McClellan, said she had known the couple for about 37 years and that Col. Hargis "made comments" "when the divorce started" that "Lynn would get half of his military pay and that she deserved it because she had supported him through his military career."
Sullivan calculated Col. Hargis's "retired pay base"-as of the date of the divorce-as approximately $8,000. Sullivan also calculated a "retired pay multiplier" based on Col. Hargis's rank, and years of service at the time of divorce. Sullivan then multiplied these numbers and calculated the hypothetical "retired pay" that Ms. Hargis would have received had Col. Hargis retired the day they were divorced. Ms. Hargis did not put on any evidence of what Col. Hargis's military retired pay would have been on the "date of divorce." Col. Sullivan's final opinion was that Ms. Hargis should receive "a check for 37.5% of [Col. Hargis's] retired pay."
The parties rested their cases after a one-day hearing. In time, and after having received significant argument in letter form from both parties after the hearing, the circuit court issued an order and ruled for Col. Hargis. Ms. Hargis appealed.
The Circuit Court's Conclusion Was Not Clearly Erroneous
To decide this case, we should be asking whether the circuit court's decision that Ms. Hargis be paid 37.5 percent of Col. Hargis's retired pay was clearly erroneous. The course in circuit court was much more bench trial than summary judgment. (The difference has important broader implications, but there is no need to develop the point more today.) Compare Prochazka v. Bee-Three Dev., LLC , 2015 Ark. App. 384, at 4, 466 S.W.3d 448, 452 (whether contract was ambiguous was decided by summary judgment based on the contract's four corners). Because the phrase "50% of husband's military retirement account" was reasonably open to competing interpretations, a contractual ambiguity arose. See, e.g. , Restatement (Second) of Contracts § 212 cmts. d, e (Am. Law Inst. 1981). Consequently, the court received evidence outside the contract itself to help it decide how to resolve the meaning and scope of the disputed material term. See, e.g. , John Wesley Hall, 3 TRIAL HANDBOOK FOR ARKANSAS LAWYERS § 57:15 (Thomson Reuters 2017-18 ed.); see also Rainey v. Travis , 312 Ark. 460, 463, 850 S.W.2d 839, 840 (1993)
(noting the general rule that "it is only when an ambiguity exists in a contract that parol evidence is admissible") (internal citation omitted). The court did what it needed to do: act as trier-of-fact and decide the case.
No one has argued that the circuit court erred by convening the hearing and receiving evidence outside the four corners of the property-settlement agreement. No one has complained that the parties' dispute should have been decided "as a matter of law" by the court rather than as the fact-finder.
Having applied the standard of review we typically do when a circuit court decides a case while applying the facts to the law, I do not have a firm and definite belief that the court made a mistake when it decided the dispute the way that it did. There is support for Ms. Hargis's side, but the circuit court had to make credibility determinations, weigh the evidence, make inferences from the proof (some of which was murky), apply all it had learned to the contract, and decide the case. On this record, the court did not err by awarding Ms. Hargis 37.5 percent of Col. Hargis's military pension. I therefore join the majority's decision to affirm the circuit court's decision on what Ms. Hargis is owed under paragraph 10 of the property-settlement agreement.
On the attorney-fee issue that the majority mentions, I agree that the fee dispute will be fully addressed by a separate opinion.
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KAREN R. BAKER, Associate Justice
In 2014, appellant, Christopher Aaron Schnarr, was tried for first-degree murder in the death of Arista Aldridge. The jury was unable to reach a verdict, and the circuit court granted a mistrial. Schnarr was tried for a second time in 2015, and the jury convicted him of manslaughter and sentenced him to ten years' imprisonment. Schnarr appealed. We recount the facts from our opinion in that appeal, Schnarr v. State , 2017 Ark. 10, 2017 WL 374727 ( Schnarr I ) as follows:
The record reflects that on Saturday, May 11, 2013, Schnarr was driving from North Little Rock when he exited Interstate 30 at Sixth Street and almost collided with a tan SUV that did not yield the right of way. The victim, Arista Aldridge, was the driver of the tan SUV, which was also occupied by Aldridge's girlfriend, Alice Bryant, and their son. As the vehicles drove parallel to one another down the street, Schnarr and Aldridge exchanged profanities and hand gestures through their opened windows. Schnarr turned right onto Sixth Street and into the outside lane. The tan SUV followed in the inside lane of Sixth Street and then pulled in front of Schnarr's vehicle and abruptly stopped. Aldridge, who was not armed, emerged from the SUV and approached Schnarr's vehicle. According to Schnarr, Aldridge was yelling and waving his arms around, and Aldridge also poked Schnarr in the face with his finger. Witnesses to the altercation testified that Aldridge backed away from Schnarr's vehicle. In his testimony, Schnarr stated that Aldridge started to move back toward Schnarr's vehicle and that he pointed his handgun at Aldridge and told Aldridge to leave. Schnarr testified that, when Aldridge did not stop, he fired two shots at Aldridge, who was approximately six feet away from him. He said that Aldridge staggered but regained his balance and advanced toward him again, at which point Schnarr shot at Aldridge a third time. Aldridge fell to the ground and later died. Schnarr had shot Aldridge once in the abdomen and again on the side of Aldridge's right arm. The wound to the abdomen proved to be fatal.
In his testimony, Schnarr, who possessed a concealed-carry permit, also explained that he has a condition called Total Situs Inversus and that he suffers from a faulty heart valve that has required surgical repair. He testified that his heart condition restricted his activities and prohibited him from playing contact sports. Schnarr stated that he did not see Aldridge with a weapon.
Schnarr I , 2017 Ark. 10, at 1-3.
We reversed for a new trial, holding that Schnarr had been deprived of his constitutional right to a public trial. Upon remand, on November 29-30, 2017, Schnarr was tried for a third time. At that trial, Schnarr was charged with manslaughter pursuant to Arkansas Code Annotated § 5-10-104 (Repl. 2013). That section provides that a person commits manslaughter if he "recklessly causes the death of another person[.]" Schnarr was convicted and sentenced to three years' imprisonment. Schnarr has again appealed and presents three issues on appeal: (1) that he should have been permitted to argue that he believed he was acting in self-defense and to have a jury instruction on that point; (2) that he should have been permitted to adduce testimony about the deceased's character for acts of violence; and (3) that the court should also reverse its previous finding that Schnarr was not entitled to a negligent-homicide instruction.
I. Justification Instruction
For his first point on appeal, Schnarr contends that the circuit court should have given his proffered jury instruction: "Justification - Use of Deadly Physical Force in Defense of A Person." Schnarr sought to present a justification defense based on Ark. Code Ann. §§ 5-2-601 et seq., which the circuit court denied. Additionally, Schnarr filed a written motion, the circuit court denied the motion, and Schnarr proffered the requested instruction, which the circuit court denied. The circuit court found that our opinions interpreting Arkansas Code Annotated § 5-2-614 precluded the use of a justification defense when the offense charged required only a reckless mental state.
With regard to our standard of review, we have stated that a party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Vidos v. State , 367 Ark. 296, 300, 239 S.W.3d 467, 476 (2006). We will not reverse a circuit court's decision to give or reject an instruction unless the court abused its discretion. Clark v. State , 374 Ark. 292, 305, 287 S.W.3d 567, 576 (2008).
Further, we are tasked with interpreting Arkansas Code Annotated section 5-2-614 (Repl. 2013). "We review issues of statutory interpretation de novo because it is for this court to decide what a statute means. While we are not bound by the circuit court's ruling, we will accept that court's interpretation of a statute unless it is shown that the court erred." Ortho-McNeil-Janssen Pharms., Inc. v. State , 2014 Ark. 124, at 10, 432 S.W.3d 563, 571 (internal citations omitted). "We construe criminal statutes strictly, resolving any doubts in favor of the defendant. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language." Hinton v. State , 2015 Ark. 479, at 7-8, 477 S.W.3d 517, 521 (internal citations omitted). Further, we construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Brown v. Kelton , 2011 Ark. 93, at 3, 380 S.W.3d 361, 364 (internal citations omitted). Finally, "it is a fundamental canon of construction that when interpreting or construing a statute the court may consider the text as a whole to derive its meaning or purpose. Dolan v. U.S. Postal Serv. , 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) ; Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012)." Wilson v. Walther , 2017 Ark. 270, at 16, 527 S.W.3d 709, 718.
With these standards in mind, we turn to Schnarr's first point on appeal. Schnarr contends that the circuit court erred when it did not allow him to argue that he believed he was acting in self-defense and did not instruct the jury on justification. Schnarr urges us to revisit our interpretation of section 5-2-614. The State responds that the law-of-the-case doctrine bars review of this claim. The State further responds that "a plain language reading of this statute, as a whole, states that when a defendant is charged with manslaughter, an offense involving a reckless mens rea, he is precluded from arguing the defense of justification."
The law-of-the-case doctrine "prohibits a court from reconsidering issues of law or fact that have already been decided on appeal. The doctrine provides that a decision of an appellate court establishes the law of the case for trial upon remand and for the appellate court itself upon subsequent review. The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and to avoid reconsideration of matters once decided during the course of a single, continuing lawsuit." United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc. , 2016 Ark. 397, 504 S.W.3d 573.
In Schnarr I , Schnarr was charged with first-degree murder. The jury was instructed on lesser-included offenses of second-degree murder and manslaughter, as well as on justification. Schnarr also argued that he was entitled to an instruction on "imperfect self-defense," based on Arkansas Code Annotated § 5-2-614. We held that such an instruction was not appropriate under the facts of the case. Therefore, we never determined that a justification defense could never be given when a defendant is charged with manslaughter.
The State contends that, even if Schnarr's justification claim is not barred, a justification defense is unavailable for a manslaughter charge based on Arkansas Code Annotated § 5-2-614, which provides:
(a) When a person believes that the use of physical force is necessary for any purpose justifying that use of physical force under this subchapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state.
(b) When a person is justified under this subchapter in using physical force but he or she recklessly or negligently injures or creates a substantial risk of injury to a third party, the justification afforded by this subchapter is unavailable in a prosecution for the recklessness or negligence toward the third party.
Applying our rules of statutory construction, we must first review the plain language of the statute at issue. We note that section 5-2-614 was originally codified at Arkansas Statutes Annotated section 41-514 (Repl. 1977), and the language is identical to that in section 5-2-614. The commentary to Ark. Stats. Ann. § 41-514 provides that the justification defense is based on Model Penal Code section 3.09(2) and explains the justification defense:
Section 41-514 applies to situations in which the force is recklessly or negligently employed. Under such circumstances the defense of justification cannot be successfully interposed in a prosecution for an offense established by proof of reckless or negligent conduct.
In so providing the Code is aligned with the stance of the Model Penal Code Reporter "[W]e do not believe a person ought to be convicted for a crime of intention where he has labored under a mistake such that, had the facts been as he supposed, he would have been free from guilt. The unreasonableness of an alleged belief may be evidenced [sic] that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to be judged on the assumption that his belief was true. To convict for a belief arrived at on unreasonable grounds is, as we have urged, to convict for negligence. Where the crime otherwise requires greater culpability for a conviction, it is neither fair nor logical to convict when there is only negligence as to the circumstances that would establish a justification." M.P.C. § 3.09, Comment at 78 (Tent. Draft No. 8, 1958).
Further, we review the explanatory note to section 3.09(2) from which section 5-2-614 was modeled:
EXPLANATORY NOTE
Subsection (2) provides that where the applicability of the justifications under Sections 3.04 to 3.08 turns on the actor's belief, liability for offenses of recklessness or negligence is not barred where the belief is held recklessly or negligently.
Id. § 3.09.
Having reviewed the statute and its history, we turn to this court's interpretation of section § 5-2-614. Both parties, in their briefs and at oral argument, refer to Cobb v. State , 340 Ark. 240, 245-46, 12 S.W.3d 195, 198 (2000), and Harshaw v. State , 344 Ark. 129, 130-36, 39 S.W.3d 753, 754-58 (2001). However, those cases are not on point.
First, in Cobb , Cobb was charged with capital murder and asserted that the circuit court erred when it denied Cobb's request for a manslaughter instruction. We affirmed and explained that where Cobb "admitted to shooting the unarmed victim once in the back causing paralysis and shooting the victim a second time while he was incapable of moving or causing harm to appellant, it is clear that a justification defense is inconsistent with the 'recklessly causing' element found in the offense of manslaughter. Thus, there was no rational basis for giving the manslaughter instruction and the trial court did not err." Cobb , 340 Ark. at 245-46, 12 S.W.3d at 198. In that case, Cobb raised justification as a defense. In Cobb , the facts relied upon for the justification defense were inconsistent with his request for a manslaughter instruction and Cobb is limited to the facts in that case.
Second, a year later, in Harshaw , we held that the circuit court erred in not instructing the jury with Harshaw's requested manslaughter instruction. Harshaw was charged and convicted of second-degree murder; he had requested the lesser-included manslaughter instruction, which was denied. We reversed and remanded the matter:
The State directs us to our prior holding in Cobb ... in support of its proposition that a manslaughter instruction is never warranted where a justification defense has been asserted because, as part of that defense, the defendant admits to at least knowingly shooting the victim. The State reads our decision too broadly. Our holding in Cobb turned upon the specific facts of that case, which are distinguishable from the facts presently before us:
In this case, where appellant admitted to shooting the unarmed victim once in the back causing paralysis and shooting the victim a second time while he was incapable of moving or causing harm to appellant, it is clear that a justification defense is inconsistent with the "recklessly causing" element found in the offense of manslaughter. Thus, there was no rational basis for giving the manslaughter instruction and the trial court did not err.
Cobb v. State , 340 Ark. at 246, 12 S.W.3d at 198. In Cobb , there was no evidence that the victim posed either a real or imagined threat. Thus, there was no reasonable basis in the evidence for a jury to conclude that the defendant in Cobb could have formed a belief, recklessly or otherwise, that his life was in danger. In contrast, there was some evidence in this case suggesting that the victim posed a real or deadly threat to Mr. Harshaw. Witnesses testified Mr. Cunningham made threatening remarks and reached for something in his [sic] car immediately prior to the homicide. Under these circumstances, the jury could have believed that Mr. Harshaw acted recklessly-too hastily and without due care-in concluding that deadly force was necessary to protect himself, and thus it could have found Mr. Harshaw guilty of manslaughter rather than murder in the second degree.
Harshaw , 344 Ark. at 135, 39 S.W.3d at 757.
In both Cobb and Harshaw , we addressed whether the defendants, based on the specific facts of each case, were entitled to a manslaughter instruction. We did not address the issue presented here: whether a justification instruction may be afforded when the charge was manslaughter.
With this history in mind, we turn to our interpretation of the statute at issue. Here, section 5-2-614(a) addresses whether justification as a defense is applicable in specific situations. The plain language provides that when a defendant believes that the use of physical force is necessary for any purpose justifying that use of physical force under subchapter six, first, it must be determined whether the defendant was reckless or negligent either in forming the belief that physical force was necessary or reckless or negligent in employing an excessive degree of physical force. Stated differently, if Schnarr was reckless or negligent in forming the belief that force was necessary, then, and only then, is the defense unavailable. If, however, Schnarr was not reckless or negligent in forming his belief, the defense is available. This is a decision for the jury. See Ark. Code Ann. §§ 5-1-102 and 5-1-111 ; Mo. R.R. Co. , 250 Ark. 1094, 469 S.W.2d 72 ( ("We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others." (quoting Jones , 128 U.S. 443, 9 S.Ct. 118 ) ) ).
The State urges this court to read the following clause of section 5-2-614(a) in isolation: "the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state." However, to read the clause alone renders subsection (b) superfluous because subsection (a) would have precluded a justification defense for all crimes that require a reckless or negligent mental state, including third parties listed in subsection (b).
Further, the State takes the position that "no justification is required because if a defendant was acting reasonably, he would not be reckless." (Emphasis supplied.) This position is mistaken. The State ignores the word "if" in its argument. "If" requires the jury to make a finding. In other words, the denial of the justification is not triggered until the "if"-here, the culpability-is determined. Thus, the flaw in the State's position is in the timing-the State's position that a reckless charging prohibits a justification instruction is mistaken because such prohibition is premature. Simply put, it is for the jury to determine culpability, not the prosecutor. Finally, we look at the entire Act, which supports our interpretation that the plain language of section § 5-2-614 provides that once the jury determines whether a defendant has been reckless or negligent in forming the belief that force is necessary, then the applicability of the justification defense is determined.
Our holding is also supported by our precedent. Justification is not an affirmative defense that must be pleaded but becomes a defense when any evidence tending to support its existence is offered to support it. Peals v. State , 266 Ark. 410, 584 S.W.2d 1 (1979). By statute, a justification, such as self-defense, is considered an element of the offense, and once raised, it must be disproved by the prosecution beyond a reasonable doubt. Ark. Code Ann. § 5-1-102(5)(C) (Repl. 2013); Anderson v. State , 353 Ark. 384, 403-04, 108 S.W.3d 592, 604-05 (2003).
Because we reverse and remand for a new trial, we do not reach Schnarr's remaining points.
Reversed and remanded.
Kemp, C.J., and Wood and Wynne, JJ., dissent.
After determining that Arkansas Code Annotated section 5-2-614(a) (Repl. 2013) provides for a jury instruction on justification if the evidence supports it, the majority holds that the facts entitle Schnarr to the instruction. I dissent because the facts have not changed since Schnarr v. State , 2017 Ark. 10, 2017 WL 374727 ( Schnarr I ), and the evidence still does not support the justification instruction. I would affirm.
I. No Evidentiary Support
At the close of evidence, the court's ruling after counsel proffered the jury instructions was simply, "Okay." Ultimately, the proffered instructions were not given. Whether this was based on statutory interpretation or failed evidentiary support, the result was correct.
Although I agree that a defendant can receive a justification jury instruction, the facts here do not support it. Our court has faithfully maintained that "[t]he existence of a defense does not need to be submitted to the jury unless evidence is admitted supporting the defense." Ark. Code Ann. § 5-1-111(c)(1) ; see, e.g. , Humphrey v. State , 332 Ark. 398, 409-10, 966 S.W.2d 213, 219 (1998). Arkansas Code Annotated section 5-2-607(a)(2) states that a person is justified in using deadly physical force if the person reasonably believes that the other person is using or about to use unlawful deadly physical force. A reasonable belief is the belief that an ordinary and prudent person would form under the circumstances. Ark. Code Ann. § 5-1-102. Thus, Schnarr is not entitled to a deadly-force justification instruction unless the evidence establishes that a reasonable person would have believed that the victim was about to use unlawful deadly force.
What is apparent from the record is that the evidence did not materially change from Schnarr I . Although counsel argues otherwise, Schnarr was able to present his evidence of self-defense. Schnarr's brief failed to identify any excluded evidence that was relevant to this defense. At oral argument, his counsel could not identify any evidence that was excluded relating to the defense other than that he could not use the specific phrase "self-defense." Schnarr was able to explain his medical condition, that he was afraid, and that the situation prompted his decision to use deadly force. Schnarr presented his full defense on justification. But the facts simply did not support it.
In Schnarr I , this court considered whether there was a rational basis for affording Schnarr an imperfect self-defense instruction. Schnarr I , 2017 Ark. 10, at 18-19. In concluding that there was no rational basis for the instruction, we reasoned that there was "no evidence that Aldridge appeared to be armed or that he had made any threats to indicate that he was armed. Moreover, Schnarr denied that Aldridge had threatened him with bodily harm." Id. These facts have not changed. Here, Schnarr presented the exact same uncompelling facts as he did in Schnarr I , yet he demands an even greater level of justification. Consistent with our reasoning in Schnarr I , I find that Schnarr failed to present any evidence suggesting Mr. Aldridge was about to employ deadly force against him.
Therefore, regardless of the circuit court's reason for denying the instruction, I would affirm for the same reasons expressed in Schnarr I -that the evidence does not support the jury instruction. The majority takes the exact same facts and holds that Schnarr is entitled to receive a higher level of justification instruction than it held he was not entitled to in Schnarr I . I find this inexplicable.
II. Statutory Interpretation
Had the facts and evidence supported it, the majority would be correct that a defendant is generally entitled to assert justification as a defense and receive an instruction. But I would reach my conclusion differently than the majority.
Generally, "in a prosecution for an offense, justification ... is a defense." Ark. Code Ann. § 5-2-602. As a limit on this general proposition, Arkansas Code Annotated section 5-2-614 provides that
[w]hen a person believes that the use of physical force is necessary for any purpose justifying that use of physical force under this subchapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state.
Ark. Code Ann. § 5-2-614(a).
The argument before the court hinges on the relationship between the two clauses of section 5-2-614(a), both of which must be given meaning. The plain language of the antecedent clause requires finding that "the person is reckless or negligent" before the second clause can take effect. Id. (emphasis added). To interpret it any other way would require a finding that the defendant acted recklessly or negligently before that issue was submitted to the jury. Thus, a defendant is entitled to argue justification until the jury finds him reckless or negligent. Only then is the defendant barred from using justification for acquittal. Under this reading of the statute, the prosecution retains the burden of proof, the defendant retains the presumption of innocence, and the words of the statute are given their plain meaning and full effect.
For these reasons, I dissent.
Kemp, C.J., joins in this dissent.
I disagree with the majority's decision to reverse and remand for a new trial based on the circuit court's denial of Schnarr's request to argue that he acted in self-defense (justification) and instruct the jury on justification. Therefore, I respectfully dissent.
First, the circuit court followed precedent in ruling under Ark. Code Ann. § 5-2-614(a) that a justification defense was unavailable in this prosecution for reckless manslaughter. In Harshaw v. State , 344 Ark. 129, 39 S.W.3d 753 (2001), this court held that the trial court committed reversible error when it refused to give the jury a manslaughter instruction despite evidence from which "the jury could have believed that Mr. Harshaw acted recklessly-too hastily and without due care-in concluding that deadly force was necessary to protect himself." Id. at 135, 39 S.W.3d at 758. In its analysis, this court quoted section 5-2-614(a), and then wrote
[i]n other words, if a person is reckless in forming the belief that the use of force is necessary, he may still be subject to prosecution for an offense that requires a mens rea of recklessness.1
1 The Arkansas Criminal Code is one of only a few modern codes that follow section 3.09(2) of the Model Penal Code in this respect and treat homicide in imperfect self-defense as a problem of "reckless manslaughter, or of negligent homicide, depending upon whether the defendant's belief as to the necessity of the homicide was reckless or negligent." Wayne R. LaFave et al., Substantive Criminal Law § 7.11, at 272 n. 6 (1986) (emphasis added). See also the Original Commentary to Ark. Code Ann. § 5-2-614, formerly Ark. Stat. Ann. § 41-514 (Repl. 1977), which states:
Section 41-514 applies to situations in which force is recklessly or negligently employed. Under such circumstances the defense of justification cannot be successfully interposed in a prosecution for an offense established by proof of reckless or negligent conduct.
In so providing the Code is aligned with the stance of the Model Penal Code Reporter "[W]e do not believe a person ought to be convicted for a crime of intention where he has labored under a mistake such that, had the facts been as he supposed, he would have been free from guilt. The unreasonableness of an alleged belief may be evidenced [sic] that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to be judged on the assumption that his belief was true. To convict for a belief arrived at on unreasonable grounds is, as we have urged, to convict for negligence. Where the crime otherwise requires greater culpability for a conviction, it is neither fair nor logical to convict when there is only negligence as to the circumstances that would establish a justification." M.P.C. § 3.09, Comment at 78 (Tent. Draft No. 8, 1958).
For example, assume a conductor recklessly misconstrues conduct by a passenger on a carrier as a breach of the peace, applies physical force, and injures the passenger. Section 41-514(1) would protect the conductor by permitting him to interpose a defense based on § 41-505(3) to a prosecution for purposeful conduct under § 41-1602 (Battery in the second degree). However, because the conductor acted recklessly in assessing the need to use force, § 41-514(1) withdraws justification as a defense to a prosecution under § 41-1603(b) (Battery in the third degree), since proof of recklessness suffices for conviction of the latter offense.
Id. at 134 n. 1, 39 S.W.3d at 756 n. 1. Thus, this court strongly suggested that section 5-2-614 withdraws justification as a defense to a prosecution for an offense for which the culpable mental state is recklessness or negligence. Furthermore, the court of appeals has specifically stated that section 5-2-614"provides that justification is not available as a defense to an offense for which recklessness suffices to establish culpability." Merritt v. State , 82 Ark. App. 351, 354-55, 107 S.W.3d 894, 897 (2003) (holding that the appellant was not entitled to justification instructions with regard to first- and second-degree assault, which are committed if the accused acts recklessly, and the trial court did not err in refusing an instruction that would have made justification a defense to those offenses); see also Albretsen v. State , 2015 Ark. App. 33, at 5, 454 S.W.3d 232, 236 (" Arkansas Code Annotated section 5-2-614(a) (Repl. 2013) provides that justification is not available as a defense to an offense for which recklessness or negligence suffices to establish culpability."). "The General Assembly is presumed to be familiar with the appellate courts' interpretation of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Without such amendments, however, the appellate courts' interpretations of the statutes remain the law." Miller v. Enders , 2013 Ark. 23, at 12-13, 425 S.W.3d 723, 730 (citing McCutchen v. City of Fort Smith , 2012 Ark. 452, at 19, 425 S.W.3d 671, 683 ). Today, the majority has changed the law in Arkansas.
Next, I must point out that the majority's interpretation of section 5-2-614 is untenable. Under the majority's reading of the statute, the jury must determine whether appellant was reckless or negligent in forming the belief that deadly force was necessary, and if it determines that he was, the defense of justification is then unavailable. However, this interpretation renders the statute meaningless because the justification and reckless-manslaughter definitions already so provide. Under Ark. Code Ann. § 5-2-607(a), titled "Use of deadly physical force in defense of a person," as relevant in this case, "[a] person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is (1) [c]ommitting or about to commit a felony involving force or violence [or] (2) [u]sing or about to use unlawful deadly physical force." (Emphasis added.) The reckless formulation of manslaughter requires the State to prove that the defendant recklessly caused the death of another person. See Ark. Code Ann. § 5-10-104(a)(3). The Arkansas Criminal Code defines "recklessly" as follows:
A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation[.]
Ark. Code Ann. § 5-2-202(3). Thus, the only purpose of section 5-2-614 is to provide that justification is not available when the culpable mental state is reckless or negligent.
Here, appellant testified that he was scared and felt that what he did was reasonable under the circumstances. The jury determined that appellant's actions were reckless, which is incompatible with reasonableness. There was no error in the circuit court following precedent and denying appellant's proffered instructions based on section 5-2-614, and I would affirm on this point.
Kemp, C.J., joins.
We note that in relying on our footnote in Harshaw , 344 Ark. at 134, n.1, 39 S.W.3d at 757 n.1, the State contends that "the appellate courts of Arkansas have held that the defense of justification cannot be successfully interposed in a prosecution for an offense established by proof of reckless or negligent conduct." However, the State misinterprets this language because it omits an integral portion of the statute: "established by proof." The jury must first review the evidence and make a determination. Mo. R.R. Co. v. Ballard , 250 Ark. 1094, 1118, 469 S.W.2d 72, 82-83 (1971) ("We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others.") (quoting Jones v. East Tennessee, V. & G.R. Co. , 128 U.S. 443, 9 S.Ct. 118, 32 L.Ed. 478 [1888] ). | [
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ROBERT J. GLADWIN, Judge
The Lafayette County Circuit Court granted the directed-verdict motion made by appellees Steve and Stacy Rowe, husband and wife, and found they had a prescriptive easement for sewer field lines located on land owned by appellant Peregrine Trading, LLC, which is solely owned by Eric Fletcher. Appellant argues on appeal that the circuit court erred by (1) considering the credibility of the evidence in ruling on the Rowes' directed-verdict motion related to appellant's claims for trespass, negligence, and private nuisance and (2) finding that the Rowes had a prescriptive easement. We affirm.
I. Standard of Review
In civil bench trials, the standard of review on appeal is whether the circuit court's findings were clearly erroneous or clearly against a preponderance of the evidence. Schroeder v. Towmate, LLC , 2017 Ark. App. 516, at 3, 530 S.W.3d 380, 382. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. Id.
II. Facts
Appellant filed a complaint against the Rowes alleging that it owned approximately 100 acres of property adjacent to them on Lake Erling in Lewisville, Arkansas. While maintaining the property, Fletcher noticed an area that had become wet and had a foul smell. He dug a trench and exposed a sewage field line originating on the Rowes' property. Appellant claimed that the Rowes' sewage field line was wrongfully and intentionally placed on its property without authority, deed, easement, or permission. Appellant also alleged that the line was not compliant with state law and regulations and did not meet standards for approval by the state or county. Appellant sought damages caused by the Rowes' (1) intentional trespass; (2) negligent installation of a sewage field line on appellant's property; (3) sewage field line, which caused damage to the property by contamination, seepage, and noxious odors; and (4) creation of a private nuisance.
The Rowes responded with an answer, counterclaim, and third-party complaint against Fletcher. The Rowes alleged that appellant filed its lawsuit after AGRED Foundation, which owned land around the lake and had two members, one of whom is Fletcher, began assessing annual fees for easement rights and docks on the lake, and the Rowes began questioning the validity of the foundation. The Rowes alleged that in retaliation for Stacy Rowe's questioning, appellant filed suit against them. The Rowes alleged that the septic field line was part of a system that had been in existence in that location since 1993. They argued that they had a prescriptive easement on appellant's property because (1) they bought their property in 2004; (2) the system, including field lines, had been there since before 1993; (3) they added a leg onto the field line in 2005; and (4) use of appellant's property had been under a claim of right for more than seven years. The Rowes also alleged that appellant had committed abuse of process against them by filing its complaint; had intentionally interfered with their lawful possession of their field line, committing trespass to chattel; and had committed conversion of their property by digging up the field line, damaging and destroying it. The third-party complaint against Fletcher was based on the facts as alleged in the Rowes' answer and counterclaim and sought damages for abuse of process, trespass to chattel, and conversion.
The Rowes filed a motion for summary judgment, and the circuit court denied it on August 15, 2016, finding that the motion sought the court's decision on the issue of prescriptive easement as uncontroverted and that the court was "unwilling at this stage to make that leap based on the pleadings[.]" The circuit court's order states:
Since the other parts of [appellant's] complaint for trespass, negligent installation, damages of such installation, and private nuisance are directly related to the claim of prescriptive easement, the Court must hear the facts of such easement to necessarily get to the other claims.
At trial, Fletcher testified that he is the sole member of appellant Peregrine Trading, LLC, and that the company owns the land at issue. Appellant bought the land from International Paper Company (IP) in 2012; the Rowes' property is on the eastern border of appellant's property; and Cook Road serves as the dividing line between the properties. He said that he had been walking the property in January 2015 when he discovered a smell and found a small puddle with grey water. He said that he had been on the property six months before to lay a water line, which was about twenty-five feet away from the puddle.
Fletcher said that after he discovered the puddle, he rented a backhoe and asked Billy Maus, an experienced heavy-equipment operator, to help him dig. Fletcher instructed Maus where to dig, and Maus found the sewer line with the backhoe. Fletcher denied moving, breaking, or damaging the line that was found. Fletcher concluded that the pipe was coming from the Rowes' house. Pictures of the uncovered pipe were admitted in evidence. Fletcher said that he had left the pipe uncovered.
Fletcher said that he had not known the sewer line was there before and that he had not seen anything to lead him to believe that there was a sewer pipe running from the Rowes' house onto appellant's property. He said that there were no visual indicators of septic lines running onto appellant's property when the property was purchased. He never gave the Rowes permission to put or maintain a sewer line on the property, and IP never put him on notice. Fletcher asked that the Rowes remove the lines and restore the surface of the property. He also asked that the Rowes remove the leg that was added on the line, which he had learned about during Steve Rowe's deposition.
Fletcher said that the use of the land had not been affected, but the potential for development was affected by the sewer lines. He said that if they were not removed, the acre to half acre of land was "probably not developable and marketable." He said that the only inconvenience or disruption of use of the property would be in the future if the lines were not removed. He said that the land had a value of $35,000 per half acre up to $65,000 for an acre if there were no sewage lines and if it were developed. He said that with the lines remaining, the value would be affected.
On cross-examination, Fletcher said that his office manager put a trailer on the property and described it as a temporary camp. He said it was a trailer with a septic system and field lines, and he did not know where the field lines ran. He said that he had donated the land to her and that "we were in the process of subdividing it and that was a token of my appreciation for the work she had done for me. She has not purchased it yet. I have not donated it yet. I don't charge her anything at this point." He said that since 2012, he had never noticed anything except the wet spot the one time about which he had testified.
Billy Maus testified that he had done Fletcher a favor by digging up the field line with an excavator. He said that he had not damaged the line and that they had left the pipe exposed. He said that he had begun working for Fletcher three years ago and that he currently worked for one of Fletcher's companies. He said that he had been there at Fletcher's direction that day and that the wet spot had been about the size of a car hood.
Stacy Rowe testified that she and her husband own the property adjacent to appellant's property, and they had bought their land in 2004. She said that the previous owner had installed a septic tank between the house and Cook Road, and she had never asked where the field lines ran. She said that when they bought the property, they had kept the end of the septic line cleaned out; they had stayed off of it; and they had cut trees off of it. She said that it had slowly been covered with leaves and dirt because they had not been maintaining it. She said that she had been able to see the field line discharging at the surface at one time. She said this had happened while IP owned the land and continued until appellant bought it. She said that they had not maintained the end of the line after appellant bought the property. She said that she had testified in her deposition that there had never been a visual indicator that there was a septic line running across the road from her house onto appellant's property.
Stacy Rowe said that the original septic line had been there when they bought the property, that she understood the line to have been there since 1993, and that the 1993 line replaced the line originally built in the 1960s. In 2005, she and her husband added a leg to the existing field line to help with slow draining. Her husband had used a plumbing snake from the end of the original pipe back into the system. The end of the pipe is on appellant's land, and it was exposed when he used the plumbing snake. They did not get permission from IP when they added the leg to the field line. She said they were not hiding, they had no written easement, and it was her understanding that there was an agreement to put field lines on the property. She said that they did not talk to IP first because they thought they had permission, it was not hurting anything, and "everything is there as with all the neighbors." She said that the mounds where her neighbors' septic lines come out on the same property are visible and that the area is grassier where the line ends. She said that there are visual indicators of her neighbors' septic lines going onto appellant's property. Since Fletcher dug up their sewer field line, the Rowes had not used their septic tank. She said that part of the pipe had been broken or cut and removed from the exposed field line, and they have not been able to use their house. She said that there had never been a problem with the field lines until she began asking questions about AGRED. She said that her husband had maintained the area around the field line from 2004 until 2012. She said that when they cleaned the field line, they could see the pipe coming out of the ground on appellant's property.
Steve Rowe said that the only way for IP to have known that their septic lines were on IP's property was that "anyone who had any common sense coming down the road knew it shouldn't be going into the lake. It had to cross the road if you were doing it legally." He said that green grass did indicate the location in the summertime. He did not know at what angle the septic line traveled from his house to the road and across. He said that the uncovered line depicted in the picture admitted in evidence was not the end of the original septic line. He knew this because he had put the plumbing snake in the end of the line. He said that he could locate the neighbors' septic lines that traveled onto appellant's property but admitted that he had stated in his deposition that he could not locate the neighbors' lines. He said that he had bush hogged the property to the lake to keep it clean before appellant bought the land. He also said that he had added a leg to the septic line in 2005 and had not sought a permit or permission from IP.
Steve Rowe said that he had assumed there had been an agreement regarding the septic lines when the house was built. He said that he could not use and enjoy the property because the septic system had been disconnected, and they could not sell it. He said that the field line had been cut and that he saw that the pipe had been cut with a hacksaw or handsaw. He said that the field line extended farther than depicted in the pictures, and he said there had always been a ditch at the end of the field line that he kept clean. The location where he cleaned out the field line with the plumbing snake is farther toward the lake than where the line had been dug up and cut. He had never received any notice from IP between 2004 and 2011, and he had maintained the property during that time. He said that the end of the field line had been visible for longer than seven years when he had maintained it. He said that it was impossible to use his property without the field line.
When appellant rested its case, the Rowes moved for a directed verdict on negligence, private nuisance, and trespass. The circuit court granted the motion for directed verdict and reasoned as follows:
All the issues really run together, because the, uh, issue really is going to be whether or not there is prescriptive easement or not. The other issues that would exist if there is a prescriptive easement will be taken care of once that's decided. That's by far the harder issue to decide.
Unfortunately for Mr. Fletcher and his company, um, when he bought the property, all this stuff really already existed, and I don't know what he could have done at that point in time until he saw what he saw to protect himself against that, because when you receive property from another, you're bound by what they should have known before they sold it to you. And, uh, in this particular case, um, your attorney probably had no choice, but anytime you have to call the other side as witnesses,
you're kind of stuck with some of the stuff they testified about. And, uh, the Court, of course, has to decide all the credibility.
In this particular case ... these field lines have been there for many, many, years, and, uh, even under the test that the Court has, these particular owners, the Rowes had it the prescribed time that they would have been able to tack on who they bought it from and what they knew about the property. And clearly these field lines have been there for quite some time and certainly over the statutory period of time. Was that period of time open and notorious to the, uh, plaintiff in this particular case, or its predecessors in title. And Mr. Rowe testified and his wife, um, to some extent how they got the property and, uh, cleaned out where they said the terminus of the field line ended, and, of course, that's a different version than what the plaintiff's version is when they dug it up, because the pictures they've got, they say that's the end of it, but, of course, the testimony from the other side is it didn't, and he even testified that he used that end to clean it up, and that even made him decide to add on a leg, which he drew on the exhibit. And there really wasn't much contra-version about that he, when he drew on Plaintiff's Exhibit Number 2, that he extended that line much further on his drawing on the initial deposition than where the plaintiff says it ended. And the Court believes that the field line would have went further than ten or twenty feet from the road. It would have been constructed in a manner consistent with field lines, it's more reasonable for that. And even the drawing on the new leg shows it extends for a distance further than it would have been from the road, which gives further credence that at some point in time the field line was much longer than where the dig occurred after Mr. Fletcher owned the property, his company owned the property. And, uh, I think it's been established by the evidence that, uh, over that period of time that IP had it, that, uh, the Rowes owned the property, that not only did he store stuff on their property, he kept it mowed, bush hogged and he kept that field line where it was more clearly established. Now, what happened afterwards and he removed his stuff, I don't know how quickly it would have took leaves to cover it up, obviously it looks like it's a wooded area, but anyway, at that point in time he quit maintaining the full length of the field line into the permanence where he said it was ended.
Uh, why when it was dug up by the plaintiff at the point that nobody seems controvert right next to the road, of course, you can see the photograph aims, as everybody said, the angle you take photographs at can distort distance, but it's close to the road at any rate. That's where I have no doubt with the testimony there was some wet spot at that point-in-time for whatever reason. It was not really explained, but certainly it wasn't enough to constitute what would be considered a private nuisance, but that's when Mr. Fletcher discovered the sewer line, and that's what brought this lawsuit. And, of course, they had a proper right to bring this lawsuit
and make the other side prove their prescriptive easement, but the Court is convinced that there is a prescriptive easement for the field line[.] ... But that's the Court's ruling; that for seven years, over seven years, in fact, many more than seven years that has occurred that give rise to this prescriptive easement of the sewer line.
With the Court finding that there is a prescriptive easement, then obviously there is no negligent installation. I know you said they violated statute when they added the leg, but that was already done, and long since probably whatever statute you could prosecute that under, and that's just some evidence of negligence when you don't get a license and it's negligently installed. And the direct testimony was that it never really failed except for this one instance, which Mr. Fletcher testified about. And if that was the end of it, then that would explain why there was, uh, you would expect water at some time to be at the end of the system at some point if there was a lot of water or whatever going through the system. Even ground water can get into those type systems. And as to nuisance, a failure one time does not make a private nuisance, so I'll grant the directed verdict as to all of that also.
Following this ruling, there was a discussion about how to proceed using a special master to determine a legal description of the prescriptive easement. The Rowes' attorney stated that his clients did not have anything new to offer in regard to their claims in their case-in-chief and suggested that the Rowes would be happy to rest and submit a brief on their remaining claims. The Rowes' attorney then rested on the counts and made arguments regarding piercing the corporate veil and punitive damages. The Rowes nonsuited their claim for abuse of process.
Appellant moved for a directed verdict on the counterclaims and third-party complaint against Fletcher. The circuit court denied the trespass-to-chattel and conversion claims, dismissed the abuse-of-process claim, and found no piercing of the corporate veil.
An interim posttrial order was filed November 4, 2016, setting forth the circuit court's oral ruling (1) granting the Rowes' motion for directed verdict; (2) awarding a prescriptive easement to the Rowes; (3) denying appellant's claims for trespass, negligence, and private nuisance; and (4) denying the Rowes' claims against appellant and Fletcher for trespass against chattel and conversion. The circuit court gave the parties until November 8, 2016, to provide the name of an agreed-on third party to provide a description of the easement. A special master was appointed by order filed December 6, 2016. A final order was filed May 30, 2017, containing a legal description of the prescriptive easement, which was granted in perpetuity to run with the land. A timely notice of appeal was filed on June 22, 2017.
III. Applicable Law
The Arkansas Supreme Court has stated the following:
A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. See Paul Jones Jr., Arkansas Titles to Real Property §§ 714, 1499, at 443, 906-09 (1935 & Supp. 1959); Neyland v. Hunter , 282 Ark. 323, 668 S.W.2d 530 (1984) ("Prescription is the acquisition of title to a property right which is neither tangible nor visible (incorporeal hereditament) by an adverse user as distinguished from the acquisition of title to the land itself (corporeal hereditament) by adverse possession."). Like adverse possession, "prescriptive easements ... are not favored in the law, since they necessarily work corresponding losses or forfeitures in the rights of other persons." 25 Am. Jur. 2d Easements and Licenses § 45 (1996) ; Potts v. Burnette , 301 N.C. 663, 273 S.E.2d 285 (1981). In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one's use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remanufacturing, Inc. v. Vocque , 307 Ark. 271, 819 S.W.2d 275 (1991) ; Neyland v. Hunter , supra ;
Teague v. Raines , 270 Ark. 412, 605 S.W.2d 485 (1980). This court has said that the statutory period of seven years for adverse possession applies to prescriptive easements. Neyland v. Hunter , supra ; Duty v. Vinson , 228 Ark. 617, 309 S.W.2d 318 (1958) ; Brundidge v. O'Neal , 213 Ark. 213, 210 S.W.2d 305 (1948). That statutory period for adverse possession is set out in Ark. Code Ann. § 18-61-101 (1987). See also Ark. Code Ann. § 18-11-106 (Supp. 1999) (enacted as Act 776 of 1995).
Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Stone v. Halliburton , 244 Ark. 392, 425 S.W.2d 325 (1968). Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Manitowoc Remanufacturing, Inc. v. Vocque , supra ; Fullenwider v. Kitchens , 223 Ark. 442, 266 S.W.2d 281 (1954). Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Craig v. O'Bryan , 227 Ark. 681, 301 S.W.2d 18 (1957). The determination of whether a use is adverse or permissive is a fact question, and former decisions are rarely controlling on this factual issue. Duty v. Vinson , supra ; St. Louis Southwestern Ry. Co. v. Wallace , 217 Ark. 278, 229 S.W.2d 659 (1950) ; Brundidge v. O'Neal, supra. The plaintiff bears the burden of showing by a preponderance of the evidence that there has been adverse, not permissive, use of the land in question. Duty v. Vinson , supra ; Brundidge v. O'Neal , supra ; Stone v. Halliburton, supra.
Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs. , 346 Ark. 354, 363-64, 57 S.W.3d 187, 193-94 (2001). The supreme court further held:
This court has held that when ordinary inspection of the premises by a purchaser, followed by reasonable inquiry, would reveal the existence of a servitude, then that purchaser is charged with notice. Armstrong v. McCrary , 249 Ark. 816, 462 S.W.2d 445 (1971) (citing Hannah v. Daniel , 221 Ark. 105, 252 S.W.2d 548 (1952) ). When a person has knowledge sufficient to lead him or her to a fact, that person will be deemed to know it. Hannah v. Daniel , supra ; Waller v. Dansby , 145 Ark. 306, 224 S.W. 615 (1920). Whether or not an easement is apparent is a question of fact. Diener v. Ratterree , 57 Ark. App. 314, 945 S.W.2d 406 (1997).
Id. at 368-69, 57 S.W.3d at 197.
In an earlier case, this court addressed prescriptive easements as follows:
A purchaser of real estate is charged with notice of an unrecorded easement when the existence of the servitude is apparent upon an ordinary inspection of the premises. Hannah , [supra ]. In Hannah , the court found that at the time Hannah purchased his property there was no physical improvement located on that property which would reasonably make it apparent that a servitude existed. The court stated:
We announced the rule in this language in Waller , [supra ] : 'The general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it.'
In French v. Richardson , 246 Ark. 497, 438 S.W.2d 714 (1969), the rule laid down in Hannah was approved, but the court found that the existence of a tower and transmission lines was sufficient to put French on notice of the existence of a servitude. The court then ruled:
Had he exercised his duty to make inquiry he would have easily discovered the existence and conditions of the lease easement. He is therefore charged, under our settled law, with notice of the easement.
This rule has been applied to prescriptive easements. Armstrong , [supra ]. Childress v. Richardson , 12 Ark. App. 62, 64-65, 670 S.W.2d 475, 476 (1984).
IV. Prescriptive Easement
Appellant argues that the circuit court erred in finding that the Rowes had a prescriptive easement when it was uncontroverted that there was no visible indication of those lines on an ordinary inspection of the property. Appellant relies on Childress , supra , where the prior owner may have been aware of the gas line and acquiesced in its use for eleven years prior to the purchase of the property by the owner who discovered the line and brought suit to quiet tile. Id. Appellant emphasizes that this court recognized that a "purchaser of real estate is charged with notice of an unrecorded easement when the existence of the servitude is apparent upon an ordinary inspection of the premises." Id. at 64, 670 S.W.2d at 476.
Appellant argues that Fletcher testified that he was not aware of the location of the septic line until it was unearthed by Maus, and both the Rowes acknowledged that there was nothing to put appellant on notice that their septic field lines were on its property. Maus observed no evidence of the septic pipe before the excavation. Appellant contends that the Rowes' testimony demonstrates that there was no or very little evidence of the claimed easement such as would put it on notice of such a claim. Both the Rowes said that the field lines were buried and not apparent to someone observing the surface, with the possible exception of the end of a pipe or patches of greener grass. This was a question of fact, and appellant contends that the circuit court erred in making its ruling.
However, we hold that the circuit court committed no error in finding that appellant was put on notice of the prescriptive easement. The record reflects that the Rowes openly and adversely possessed the easement for the septic line for the statutory period. The lines were not placed with permission from the property's owner. The system had been there since before 1993, including the field line at issue. The Rowes purchased their property in 2004. In 2005, the Rowes added a leg onto the field line without permission. The Rowes also kept the field lines cleaned out. The field line was visible from at least 2005 as the terminus is above ground and ends in what is essentially a gravel pit to catch any excess condensation. The exposed parts can be seen by a reasonable inspection of the property. Thus, the court properly found that the Rowes established a prescriptive easement under Childress, supra.
V. Motion for Directed Verdict
Appellant argues that the circuit court erred in granting the Rowes' motion for directed verdict on all counts of appellant's complaint and that the circuit court erred in considering the credibility of the evidence of the Rowes' claim of prescriptive easement under the guise of ruling on the directed-verdict motion. In reviewing this issue, we keep the following principles in mind:
In ruling on a motion for directed verdict or a motion for dismissal, the standard is the same: the circuit court must decide "whether, if it were a jury trial, the evidence would be sufficient to present to the jury." Woodall v. Chuck Dory Auto Sales, Inc. , 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). If the nonmoving party has made a prima facie case on its claim or counterclaim, then the issue must be resolved by the finder of fact. See Swink v. Giffin , 333 Ark. 400, 402, 970 S.W.2d 207, 208 (1998). In evaluating whether the evidence is substantial enough to make a question for the fact-finder, however, the circuit court may not assess the witnesses' credibility. First United Bank v. Phase II , 347 Ark. 879, 902, 69 S.W.3d 33, 49 (2002) ; Swink , 333 Ark. at 403, 970 S.W.2d at 209.
Rutland v. McWhorter , 2016 Ark. App. 163, at 3-4, 485 S.W.3d 722, 724.
Appellant recites the circuit court's reasoning, as set forth above, emphasizing that the circuit court stated that it had reviewed the law, notes, and testimony; that all the issues ran together, and the issue was whether there was a prescriptive easement; that the circuit court did not know what Fletcher could have done until he saw "what he saw" to protect himself because "when you receive property from another, you're bound by what they should have known before they sold it to you"; that the circuit court stated, "And, uh, the Court, of course, has to decide all the credibility ..."; that the field lines had been there for years; that the statutory time had run and that the lines were open and notorious to appellant or its predecessors in title; and that Steve Rowe testified that he cleaned out at the terminus of the field line. Based on finding a prescriptive easement, the circuit court found no trespass and no negligent installation.
Appellant argues that the circuit court improperly jumped from determining whether appellant had presented a prima facie case to ruling on the prescription claim advanced by the Rowes as a defense. Thus, appellant argues that the circuit court erred in granting the motion as to all three counts because appellant had presented a prima facie case on each.
The Rowes contend that the circuit court correctly granted their motion for directed verdict, properly referred to in this non-jury trial as a motion to dismiss. Baxter v. Peters , 2009 Ark. App. 807, 373 S.W.3d 340. We agree. We acknowledge that the procedure at the conclusion of the evidence lacked clarity. We note that all the evidence was before the circuit court when it ruled, and appellant failed to either object or demand an opportunity to put on additional evidence. Appellant must demonstrate prejudice as a result of the circuit court's error. Advanced Envt'l Recycling Techs., Inc. v. Advanced Control Sols., Inc. , 372 Ark. 286, 275 S.W.3d 162 (2008). Thus, when the error was harmless, the circuit court's decision will not be reversed. Hibbs v. City of Jacksonville , 24 Ark. App. 111, 749 S.W.2d 350 (1988).
Any error here was harmless because the circuit court's ruling was based on appropriate legal standards with all the evidence before it. Appellant had rested its case-in-chief. The circuit court had heard all the Rowes' evidence during appellant's case, and the Rowes' rested after dismissing their malicious-prosecution claim. Thus, to the extent the circuit court made credibility judgments, it did so in its role as fact-finder in determining whether the Rowes had proved their prescriptive-easement claim. No additional evidence was presented, and appellant never asserted that it should be.
A. Trespass
Appellant argues that Arkansas's law of trespass requires a physical invasion of a plaintiff's real property that is caused by a defendant and results in damages.
Cross v. W. Waste Indus., 2015 Ark. App. 476, 469 S.W.3d 820. However, because we have affirmed that the Rowes had a prescriptive easement in the property at issue, the elements of trespass necessarily were not met. Thus, we affirm the circuit court's dismissal of appellant's claim for trespass.
B. Negligence
The essential elements of a negligence claim are (1) the existence of a duty on the part of the defendant to conform to a specific standard of conduct to protect the plaintiff; (2) breach of that duty by the defendant; (3) injury to the plaintiff actually and proximately caused by the defendant's breach; and (4) resulting damages to the plaintiff or his property. Cross, supra. Appellant argues that the violation of a government regulation is evidence of negligence, Bishop v. Tariq, Inc. , 2011 Ark. App. 445, 384 S.W.3d 659, as is a violation of a statute. See, e.g. , Berkeley Pump Co. v. Reed-Joseph Land Co. , 279 Ark. 384, 653 S.W.2d 128 (1983).
Appellant contends that it does not matter that the Rowes did not install the field line because they operated, maintained, repaired, and extended it. Appellant claims that the Rowes had a duty to do these things in accordance with Arkansas statutes and regulations governing them. Appellant claims that the Rowes admitted that they breached this duty and admitted that their field lines crossed onto its property. Fletcher discovered gray, foul-smelling water and the field line. Maus observed the water and the field line. Appellant argues that a reasonable jury could conclude that the Rowes' breach of their duty to operate, maintain, repair, and extend their septic system only in accordance with Arkansas law was the actual and proximate cause of the intrusion of the field line and the deposit of wastewater onto appellant's property. Appellant contends that the question of its damages based on the Rowes' negligence should go to the jury. Cozart v. Logue , 2014 Ark. App. 626, 447 S.W.3d 133.
We agree with the Rowes' assertion that the negligence claim was properly dismissed because appellant did not prove that the Rowes owed a duty, that such duty was breached, or that the breach caused damages. Appellant relies on the Rowes' violation of a state statute or regulation to prove negligence, but appellant fails to identify the law on which it relies in its argument before this court. In light of appellant's failure to establish any violation on the Rowes' part or any link between the violation and the alleged injury, we cannot say the circuit court erred in finding that appellant failed to make its prima facie case.
C. Nuisance
This court stated that nuisance is defined as
conduct by one landowner that unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Goforth v. Smith , 338 Ark. 65, 991 S.W.2d 579 (1999). The concept of nuisance encompasses a number of harms, including odors, noise, dangerous activity, and contamination of surface water and groundwater, as well as other pollution and contamination. Southeast Arkansas Landfill, Inc. v. State , 313 Ark. 669, 858 S.W.2d 665 (1993). The general rule is that, in order to constitute a nuisance, there must be an intrusion that results in physical harm, as distinguished from unfounded fear of harm, which must be proven to be certain, substantial, and beyond speculation and conjecture. Goforth, supra.
Cross , 2015 Ark. App. 476, at 4, 469 S.W.3d at 823 ; Ozark Poultry Prods., Inc. v. Garman , 251 Ark. 389, 472 S.W.2d 714 (1971)
(a private nuisance may consist of an ill-drained privy or garbage pile emitting offensive odors).
Appellant argues that Arkansas Code Annotated section 14-236-112(a) (Repl. 1998) requires a permit to extend sewage field lines. Appellant claims that the Rowes' system was installed in violation of this law. Appellant contends that the Rowes' operation, maintenance, and extension of their unapproved, noncompliant septic system interferes with its use and enjoyment of its property.
The Rowes contend that the circuit court properly held that a small puddle of water in one corner of a large and unfrequented acreage was not enough to constitute a private nuisance under Cross, supra. We agree. Further, appellant failed to link the Rowes' failure to obtain a permit with interference with appellant's use and enjoyment of its property. The circuit court concluded that the one-time event of gray, puddled water did not constitute a prima facie case for a consistent, recurring, or permanent nuisance, and we affirm.
Affirmed.
Virden and Vaught, JJ., agree. | [
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SHAWN A. WOMACK, Associate Justice
The appellant, Arkansas Community Correction ("ACC"), filed an interlocutory appeal under Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure-Civil from an order of the Pulaski County Circuit Court denying its motion for judgment on the pleadings. The appellant asserts that Annette Barnes's complaint is barred by the doctrine of sovereign immunity. We reverse and dismiss.
Barnes alleged in her complaint that she was terminated from her position with the ACC for protesting discriminatory actions on behalf of her employer and participating in an investigation designed to discover further discrimination. She alleged that her termination was a violation of the Arkansas Whistle-Blower Act ("AWBA") and asked for damages, reinstatement, attorneys' fees, costs, and all other relief available under the Act and the law. ACC filed its answer and affirmatively pled that her claim was barred by sovereign immunity. Thereafter, ACC filed a motion for judgment on the pleadings pursuant to Ark. R. Civ. P. 12(c) arguing that it is an agency of the State and the General Assembly could not validly waive the state's sovereign immunity under the AWBA. Ark. Code Ann. §§ 21-1-601 et seq. (Repl. 2016). The circuit court denied the motion and ACC appealed.
I. Standard of Review
Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure-Civil permits an appeal from an interlocutory "order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official." Bd. of Trs. v. Andrews , 2018 Ark. 12, at 4, 535 S.W.3d 616, 618. The issue of whether a party is immune from suit is purely a question of law and is reviewed de novo. Id.
II. Sovereign Immunity
Article 5 of the Arkansas Constitution is the Legislative Article, which, among other things, outlines the powers, duties, responsibilities, and limitations of the General Assembly. Article 5 section 20 provides that "[t]he State of Arkansas shall never be made defendant in any of her courts." In Andrews , the Board of Trustees of the University of Arkansas argued that it was immune from suit for claims under the Arkansas Minimum Wage Act based on sovereign immunity. Andrews , 2018 Ark. 12, at 2-3, 535 S.W.3d at 618. This court concluded that "the General Assembly cannot waive the State's immunity," and therefore, the statute that provided for the State to be made a defendant in the Act was beyond the scope of legislative powers as defined by the Arkansas Constitution. Id. at 10-12, 535 S.W.3d at 622-23. In reaching that conclusion, we interpreted the constitution "precisely as it reads" and determined that "[t]he drafters of our current constitution removed language from the 1868 constitution that provided the General Assembly with statutory authority to waive sovereign immunity and instead used the word 'never.' " Id. at 10-11, 535 S.W.3d at 622. Regarding our previous decisions, this court specifically stated, "To the extent that other cases conflict with this holding, we overrule those opinions." Id. at 11, 535 S.W.3d at 623.
As in the Minimum Wage Act, under the AWBA if there is unlawful adverse action on behalf of a public employer then the employee may claim injunctive relief, reinstatement, compensation, and attorneys' fees. Ark. Code Ann. § 21-1-605 (Repl. 2016). The General Assembly clearly intended to subject the State to liability under the AWBA. Ark. Code Ann. § 21-1-602(5) (Repl. 2016); Smith v. Daniel , 2014 Ark. 519, at 6, 452 S.W.3d 575, 578-79 (when the General Assembly authorized a suit against a "public employer" it expressly waived sovereign immunity). Per our holding in Andrews , to the extent the legislature subjected the State to liability in the AWBA, it is prohibited by article 5, section 20 of the Arkansas Constitution.
ACC was entitled to judgment as a matter of law, and the circuit court erred when it denied ACC's motion for judgment on the pleadings based on sovereign immunity. We emphasize here, as in Andrews , that the only issue before this court is whether the General Assembly's choice to abrogate sovereign immunity in the AWBA is prohibited by the constitution. We hold that it is. We therefore reverse and dismiss the case
Reversed and dismissed.
Wynne, J., concurs.
Baker and Hart, JJ., dissent. | [
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RITA W. GRUBER, Chief Judge
Appellants National Park Community College (NPCC) and the Public Employee Claims Division appeal the decision of the Arkansas Workers' Compensation Commission (the Commission) affirming and adopting the decision of the administrative law judge (ALJ) awarding appellee Melinda Castaneda benefits under Arkansas Code Annotated section 11-9-505(a) (Repl. 2012). We affirm.
Castaneda, an employee of NPCC, sustained a compensable right-shoulder injury on June 5, 2015, during a team-building exercise. In March 2017, the ALJ held a hearing to determine (1) additional temporary total-disability benefits or, in the alternative, permanent partial-disability benefits for her shoulder injury; (2) wage loss and benefits under Ark. Code Ann. § 11-9-505(a) ; (3) vocational rehabilitation; and (4) attorney's fees.
At the hearing before the ALJ, Castaneda testified that she began working full time at NPCC in 2009 or 2010. Her employment was pursuant to a yearly contract, which she signed in April or May for the following school year. She was paid throughout the entire year but worked only during the school year. Castaneda explained that she was an assistant to three instructors. Her job duties included taking attendance, grading papers, and substitute teaching. Castaneda explained that when she met with her supervisor, Jason Hudnell, in April or May 2015 to renew her contract for the 2015-2016 school year, he informed her that her job would be discontinued after the 2015-2016 school year due to finances.
Castaneda injured her shoulder on June 5, 2015, and was off the following two months for the summer break. She started back to work in August or September 2015 and worked until September 28, 2015, when Dr. Rudder performed surgery to repair her torn rotator cuff. Castaneda continued to see Dr. Rudder and had physical therapy for eight months until he released her in May 2016; she contacted Wanda Holden in human resources after each visit to Dr. Rudder to apprise NPCC of her situation. Castaneda testified that she was no longer employed by NPCC by the time she was released to work. She explained that she received an email on a Thursday stating that if she did not return to work by 8:00 a.m. the next morning, she would not have a job. Castaneda called Holden on Monday morning to inform Holden that Dr. Rudder had not released her to work. Castaneda testified that when she called Holden, Holden told her that her FMLA leave had run out and that she should have reported to her job in a timely manner. Castaneda also received a termination letter in the mail dated March 29, 2016, stating she would be terminated as of April 1, 2016. The termination letter also requested her to repay insurance premiums paid on her behalf while she was on leave.
Two emails sent to Castaneda by Janet Brewer, associate vice-president of human resources for NPCC, were introduced into evidence. The first, sent March 17, 2016, provided in part:
Your doctor released you to come back to work on March 15 as stated below. You have been under the Family Medical Leave during this time. You are entitled to 12 weeks in a calendar year. You have used approximately 10 weeks of that time. If you wish to remain under FMLA for the remaining two weeks, then you must provide an updated certificate.
The second email, sent March 29, 2016, provided in part:
You have used your 12 weeks of FMLA for the calendar year 2016. After visiting with Jason [Hudnell], it is necessary that this position be covered for the remainder of the year and the need has become critical. Since you are unable to return to work, we will need to replace your position. Your employment will be terminated effective Friday, April 1, 2016.
Castaneda received workers'-compensation benefits after she was terminated until she was released by Dr. Rudder on May 18, 2016. Castaneda testified that when she was released to work, NPCC had employment available within her restrictions but she was not offered employment. She testified that she did not contact NPCC about returning to work when she was released or apply for other jobs at NPCC. She stated that her job was not phased out and that someone was still doing the job that she had performed. Castaneda testified that she wanted to return to work.
Janet Brewer testified about the two emails she sent Castaneda. Brewer acknowledged that they did not offer Castaneda any work following her release in May 2016, explaining that she was no longer employed with NPCC and that they do not typically call people to return to work who have already been terminated. Brewer indicated that Castaneda was aware when she signed her contract in April or May 2015 that it would be her last year of employment in that position. She stated that positions occasionally come open during the school year that require various qualifications, and Castaneda was told she could apply for additional positions with NPCC during that year.
In regard to whether Castaneda's former position still existed, Brewer testified that there was not a full-time teacher's-aide position but that there was an hourly extra-help person in the department in which Castaneda had worked. The extra-help position is limited to 29 hours a week. Brewer stated that Castaneda was not offered this position or any position after her release. Brewer was not certain what jobs had been available within Castaneda's restrictions when she was released to work, nor was Brewer aware of her release at that time. Brewer stated that she did not call Castaneda about open positions, and Castaneda did not call her.
Brewer testified that she had documentation that Castaneda was released to work on March 15, 2016, but she did not have that documentation at the hearing. She explained that she and Hudnell both expected Castaneda to return to work on March 15. Brewer sent her an email to that effect and followed up with an email when Castaneda did not return to work. Brewer stated that Castaneda told her that she was not supposed to be back at work and had a doctor's appointment the following week. Brewer then contacted Rhonda Murphy with "workers' comp" who confirmed that Castaneda had a follow-up appointment the next week. It was at this point that Brewer learned Castaneda had not yet been released.
Brewer testified that Castaneda's FMLA leave was exhausted or about to be exhausted when she spoke with Hudnell about needing someone in place for the remainder of the year. She explained that there is a time during the year when they go out and do clinicals, so it takes several people to work in that area during such time. Brewer indicated that it was critical that they use the funds they were spending on Castaneda's benefits to have someone in her position. Brewer testified that they had to recruit someone for the position, but she was not aware if that person was still in the position. With regard to Castaneda's termination, Brewer testified that the termination was based on the expiration of Castaneda's FMLA leave and the "critical" need for someone in that position. Brewer explained that when they do a reorganization, they try to place an employee in another position. She expressed that Castaneda was a good employee and one for whom they would have tried to find another position.
Jason Hudnell testified that when Castaneda was employed, he was the director of the NPCC technology center, a high school career center, and was Castaneda's supervisor. With regard to the elimination of Castaneda's position, Hudnell expressed that with high enrollment, it became necessary to hire an additional full-time instructor instead of having a teacher's aide. Hudnell informed Castaneda in April or May 2015 that her position would be eliminated at the end of the following school year; he expressed to Castaneda that he would release her while she was under contract if she found an opportunity that was better for her. Hudnell testified that he never told her he would make sure she had a job at NPCC.
Hudnell was not aware that Castaneda was injured until they returned to school in August or September. He stated that he spoke with Castaneda a few times while she was off work and that she was apologetic. He stated that her absence became a strain on the instructors, and there was a critical need to have someone in that position during April and May because those months are busy due to the students shadowing. Hudnell testified that he spoke with Brewer to let her know they needed someone in that position. He indicated that an hourly extra-help person was hired to start from early April through the end of the school year. He was not aware if NPCC offered Castaneda any employment when she was released. Hudnell never heard from Castaneda after she was released on May 18, 2016; he stated that school is technically over by that date.
In a May 2017 opinion, the ALJ found (1) that Castaneda had failed to establish that her healing period extended beyond May 18, 2016; (2) that Castaneda had no impairment as a result of her compensable right-shoulder injury; (3) that because Castaneda had no compensable impairment, her claim for permanent disability in excess of anatomical impairment was denied; (4) that because Castaneda had no compensable permanent disability, her claim for vocational rehabilitation was denied; (5) that Castaneda established by a preponderance of the evidence that she was entitled to benefits under Ark. Code Ann. § 11-9-505(a) beginning May 19, 2016, and continuing for one year; and (6) that since Ark. Code Ann. § 11-9-506 makes no reference to benefits owed pursuant to Ark. Code Ann. § 11-9-505(a), NPCC and its insurance carrier are not entitled to reduce Castaneda's benefits under Ark. Code Ann. § 11-9-505(a) by any amount of money that she has previously received for the same period as unemployment-insurance benefits.
NPCC appealed to the full Commission, and in October 2017, the Commission affirmed and adopted the ALJ's opinion as its own. One commissioner dissented on the award of benefits under § 11-9-505(a), opining that Castaneda failed to prove entitlement to those benefits. On appeal, NPCC argues that Castaneda did not meet her burden of proving that she is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505.
On appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the Commission's decision and affirms that decision when it is supported by substantial evidence. Best W. Inn & Union Ins. of Providence v. Paul , 2014 Ark. App. 520, at 3-4, 443 S.W.3d 551, 553-54. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. 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. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Id.
Arkansas Code Annotated section 11-9-505(a)(1) provides:
Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee's physical and mental limitations, upon order of the Workers' Compensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of the refusal, for a period not exceeding one (1) year.
In order for Ark. Code Ann. § 11-9-505(a)(1) to apply, the employee must prove by a preponderance of the evidence that (1) the employee sustained a compensable injury; (2) suitable employment which is within the employee's physical and mental limitations is available with the employer; (3) the employer has refused to return the employee to work; and (4) the employer's refusal to return the employee to work is without reasonable cause. Torrey v. City of Fort Smith , 55 Ark. App. 226, 934 S.W.2d 237 (1996).
The parties stipulated that Castaneda sustained a compensable injury. NPCC argues that the evidence does not support the Commission's findings that NPCC had suitable employment within her qualifications and restrictions and that NPCC refused to return her to work.
NPCC first argues that the evidence fails to demonstrate that there were suitable employment positions available within Castaneda's physical and mental limitations. Here, appellee was terminated on April 1, 2016. NPCC immediately replaced appellee with an hourly employee to fill the position for the remainder of the school year. At the time appellee was released to her normal work duties on May 18, 2016, her normal workload at NPCC still existed and at that time her employment contract for the 2015-2016 school year had not yet expired. Therefore, the Commission's finding that suitable employment existed through the 2015-2016 school year is supported by substantial evidence.
Next, NPCC argues that the Commission's finding that it refused to return Castaneda to work is not supported by the evidence. Specifically, NPCC contends that it did not refuse to return her to work but rather that Castaneda chose not to return by failing to reapply for employment following her termination. NPCC further argues that Castaneda's termination cannot be viewed as a refusal to return her to work because she had been notified the previous year at contract renewal that her position would be eliminated at the end of the 2015-2016 school year. The Commission found significant that Castaneda was terminated on April 1, 2016, at which time she was unable to return to work and that Castaneda's contract was terminated before she had an opportunity to request additional employment. Before her termination, Castaneda expressed to her supervisor, Jason Hudnell, that she wanted to return to work and apologized that she had not received a return date. The Commission placed great weight on Brewer's testimony. When Brewer was asked whether Castaneda was offered to return when she was released May 18, 2016, Brewer responded, "She was no longer employed with the college at that time." The Commission found that this statement supported only one reasonable conclusion-NPCC refused to return Castaneda to work within the meaning of Ark. Code Ann. § 11-9-505(a). The Commission is the ultimate arbiter of weight and credibility. Towler v. Tyson Poultry, Inc. , 2012 Ark. App. 546, at 2, 423 S.W.3d 664, 666.
NPCC cites Lepel v. St. Vincent Health Services, 96 Ark. App. 330, 241 S.W.3d 784 (2006) and Burke v. Arkansas Department of Correction , 2018 Ark. App. 231, 547 S.W.3d 745, in support of its argument. Both cases are distinguishable. In Lepel , the employee was offered, but failed to take advantage of, the opportunity to apply for other positions. This court affirmed the Commission's denial of benefits because the employer did not refuse to return Lepel to work.
In Burke , the employee was terminated because she had exhausted her FMLA leave. She sought benefits under Ark. Code Ann. § 11-9-505(a) on the basis that her employer refused to return her to work, but her claim was denied. The Commission did not find Burke to be credible. The documentary evidence established that the termination letter sent to Burke read, "Upon recovery and being able to perform all the essential job functions of your present position (correctional Officer) or any position that you apply for and have no other disqualifying factors, you will be considered for rehire." Although Burke acknowledged receiving the termination letter, she never reapplied because she thought her employer was obligated to reach out to her. This court affirmed the denial of benefits because the Commission found that without any attempt to return to work, it could not be said that the employer refused to return her to work.
The present case is distinguishable. Castaneda was never informed that she was still eligible for rehire after her termination, and Brewer specifically testified that NPCC does not typically call employees to return to work who have been terminated. In addition, NPCC terminated her while she was within her employment contract. The Commission's finding that NPCC refused to return Castaneda to work is supported by substantial evidence.
Affirmed.
Whiteaker and Brown, JJ., agree.
Under Arkansas law, the Commission is allowed to adopt the ALJ's opinion. SSI, Inc. v. Cates , 2009 Ark. App. 763, 350 S.W.3d 421. In doing so the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ's opinion and the Commission's majority opinion. Id.
In its brief, NPCC lists a second point on appeal-whether the Commission erred in its application of Ark. Code Ann. § 11-9-505(a) when it upheld the ALJ's finding that Castaneda's termination was without reasonable cause. Because NPCC does not address this point in the argument section of its brief, we will not address it on appeal. See Riddick v. Harris , 2016 Ark. App. 426, at 15, 501 S.W.3d 859, 870 (stating that if argument heading raises an issue but the body of the argument does not address the issue, we will not reach it on appeal).
Other than conclusory statements that it was Castaneda's choice not to pursue further employment with NPCC rather than an unreasonable refusal on the part of NPCC to return her to work, appellant makes no argument regarding the fourth Torrey factor-the employer's refusal to return the employee to work is without reasonable cause. Where an appellant fails to make a convincing argument or to cite convincing authority in support of it, we will not address the argument on appeal. Stutzman v. Baxter Healthcare Corp. , 99 Ark. App. 19, 24, 256 S.W.3d 524, 527 (2007). | [
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DAVID M. GLOVER, Judge
In January 2016, appellant Dionte Parks was charged in the Sebastian County Circuit Court with one count of murder in the first degree, two counts of aggravated robbery, and one count of kidnapping, all Class Y felonies. In March 2016, Parks filed a motion to transfer his case to the juvenile division. After a hearing on the motion, the circuit court denied the request to transfer. Parks appeals this denial, arguing it was clearly erroneous. We affirm.
The following extensive evidence was adduced at the hearing. On January 23, 2016, two masked men entered Kaleb Watson's home while Watson and Bailey Smith were inside. The men bound Watson with a shoestring and began to gather items, including Watson's cell phone and wallet. Watson escaped his bindings and attacked one of the men, who shot him several times. The two men then fled the scene. Watson died as a result of his injuries.
On January 24, the Fort Smith Police Department received an anonymous tip that someone wanted to come forward with possible information on the case. Parks and his mother, LaRhonda Marable, came to the police station later that afternoon. During an interview, Parks told Detective Anthony Parkinson that brothers Shakur and James Sharp stopped by his house on January 23, showed him a gun they had stolen earlier that day, and told him they wanted to "hit a lick." Parks said the Sharps asked for a bag, which Parks provided to them, and some rope or string. Parks gave them a shoelace from one of his shoes. Parks later saw the Sharps outside and went to talk to them; they told him they were going to rob Kaleb Watson, and they wanted him to knock on the front door, run off, and then go in the back door with them. Parks said he did not want to do it, but Shakur pulled out the gun; although Shakur never threatened Parks, Parks decided to go along with the plan. However, after knocking on the front door, instead of going to Watson's back door, Parks ran home. Parks stated he heard about eight gunshots and then saw both Sharp brothers running from Watson's house. Parks also stated that prior to entering Watson's house, James had taken a compound bow out of Watson's truck and had given it to Parks, who took it to his house and hid it in a closet. Pursuant to a warrant, Detective Parkinson recovered the stolen bow and the pair of running shoes from which Parks had removed the shoelace he had given to the Sharp brothers.
Detective Parkinson also obtained a statement from Shakur Sharp during transport back to Fort Smith from Little Rock (where he had fled after Watson was shot). Shakur confessed he had gone into Watson's home; he said Parks was supposed to knock on the front door and then come to the back door and go inside, but Parks did not do that, so James went inside with him; and James tied Watson up with the shoelace provided by Parks. According to Shakur, Watson removed his restraint and rushed Shakur; Shakur stated the gun went off and kept going off. Shakur said James ran out the back door and he followed him; the only items he took were Watson's wallet and cell phone. Shakur asserted it was Parks who told him there were guns, money, and maybe marijuana in Watson's house, and it would be a "good place to hit a lick."
After arriving in Fort Smith, Shakur gave a second statement. He stated Parks was the one who told them about Watson's house-that there were thousands of dollars, guns, some weed, and a .380 handgun in the house-and it had been Parks who took the bow out of Watson's truck and took it back to his house and hid it. Shakur then provided the details of the robbery and shooting for a second time.
Detective Parkinson and Detective Williams picked Parks up from school on January 28, 2016, on a probation violation and a theft-of-property warrant. Parks agreed to speak with Detective Parkinson again about the Watson case. Parks stated that on January 23, Darrion Carter told him he wanted to "hit a lick," and Parks told Carter about Watson's home. The Sharp brothers then came to his house wanting to "hit a lick" and asking what was inside Watson's house; Parks told them about a PlayStation 3, guns, money, and bows and arrows. After the interview, Detective Parkinson arrested Parks on first-degree murder, kidnapping, aggravated robbery, and his outstanding warrants. Detective Parkinson acknowledged that Parks came in and gave statements that provided him with some leads in the investigation.
Detective Troy Williams testified he obtained a statement from James Sharp while transporting him from Little Rock back to Fort Smith. James told him he had stolen a gun from a car earlier in the day on January 23. He claimed Parks messaged Darrion about hitting a lick; Darrion declined, but the Sharp brothers went to Parks's house to discuss it. James reiterated that Parks had taken the bow out of Watson's truck and had taken it to his house. The remainder of his statement matched Shakur's statement about what happened inside Watson's house.
Scott Tanner, the Juvenile Ombudsman, testified there were several lock-down facilities available for juveniles, but the rooms were not locked at night, although the capacity existed if necessary. Tanner explained there was no guarantee Parks would be placed in a particular facility; the Department of Youth Services (DYS) would determine where to place him. Tanner admitted there were five or six escapes each year, but the juveniles were usually caught within hours; in his opinion, DYS was the most serious delinquency disposition a juvenile court could order, although none of the programs were wholly successful. Factors Tanner believed were necessary for rehabilitation to be successful included inmate intelligence and the capacity to understand and respond to cognitive behavior therapy ; family and community support; and the ability to acknowledge wrongdoing.
Kevin Moore, Parks's probation officer, testified Parks was receptive to issues on which he advised him, although Parks would stand up for himself when he felt he needed to do so. He believed Parks's father, although a convicted felon, was a good example for Parks and wanted to teach Parks to be a good man.
Several people testified about Parks's educational struggles, his need for mental-health services due to unresolved behavioral and emotional problems, and his medication. While Parks had difficulty in school, there was testimony he was receptive to help and was a good-natured student. However, Parks had several behavioral issues at school. Parks was moved from school to school, depending on where the special-education classes were located.
Dr. Curtis Grundy, a licensed psychologist, performed a psychological evaluation on Parks and conducted an intellectual assessment. Parks's scores were in the lowest parts of the scale. It was Dr. Grundy's opinion that despite his learning deficiencies, Parks was capable of turning his life around, and he concluded Parks was amenable to intervention. Dr. Grundy stated Parks had intellectual limitations, as well as limited academic and educational functioning; he had negative structure in his life; he was in a single-parent home where his mother worked long hours, allowing for decreased supervision; and he had delved into more delinquent behaviors as he had aged. However, Dr. Grundy believed Parks could benefit from DYS resources, as he needed a structured environment to manage his needs and to provide him treatment services. While he believed Parks would need extended juvenile jurisdiction, Dr. Grundy believed successful treatment could occur before Parks's twenty-first birthday, although he admitted he could not guarantee that result.
LaRhonda Marable, Parks's mother, testified that when she learned Parks was involved in Watson's death, she took him to the police station because Watson was someone's child, and she would want someone to come forward if that had been one of her children. Marable said Parks loves horses, is a good rider, and trains horses, but he is a follower and had been bullied at school. She was aware Parks had been to Watson's house on several occasions and played video games, and Watson had given them a puppy. She stated Watson and Parks had smoked weed together, but Watson had apologized for that when she confronted him.
Arkansas Code Annotated section 9-27-318(g) (Repl. 2015) provides the factors to be considered in a motion to transfer a case from the criminal division to the juvenile division of circuit court. The circuit court shall make written findings on all the factors set forth in subsection (g) of this section. Ark. Code Ann. § 9-27-318(h)(1). However, the State is not required to introduce proof of each factor, and the circuit court does not have to give equal weight to each factor. Flowers v. State , 2017 Ark. App. 468, 528 S.W.3d 851. The movant bears the burden of proving the necessity of transfer from the criminal division to the juvenile division of circuit court. Id. On appeal, the appellate court will not reverse a circuit court's decision denying a motion to transfer unless it is clearly erroneous; a finding is clearly erroneous when, after reviewing the evidence, the appellate court is left with a firm and definite conviction that a mistake was made. Id. The appellate courts will not reweigh the evidence presented to the circuit court. Id.
In the present case, the circuit court made findings regarding each factor listed in section 9-27-318(g). The factors, and the circuit court's findings on each factor, are as follows:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court. The circuit court noted Parks was charged with four Class Y felonies, the most serious classification of offenses other than capital murder. The circuit court specifically found the offenses "could hardly be more serious" and "[d]ue to the seriousness of the offenses and this defendant's level of participation in them, the Court is of the opinion the issue of societal protection weighs in favor of the State."
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner. The circuit court found the offenses were committed in an aggressive, premeditated, and willful manner.
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted. The circuit court found the offenses were committed against not one, but two people, and resulted in the death of Kaleb Watson.
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense. The circuit court was of the opinion Parks had "significant" culpability in the commission of the offenses, specifically noting Parks not only was present at the planning of the robbery and kidnapping, which ultimately resulted in a homicide, but "it is fair to say the homicide would not have occurred but for his involvement." The circuit court found Parks "provided the target and the motivation for the robbery by advising the other defendants of valuables within the victim's residence"; provided a bag to be used in the robbery and the shoelace used to restrain Watson; and actively participated in the plan he helped concoct by creating a diversion at Watson's front door to allow the Sharps to enter the residence through the back door.
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence. The circuit court noted Parks had been adjudicated a juvenile offender on five occasions, although none were offenses against persons or felonies. Nevertheless, evidence of antisocial and violent behavior at school was presented, including shoving other students, fighting, and making threats against his peers at school.
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult. The circuit court found Parks was neither sophisticated nor mature, and he suffered from low intellectual functioning.
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday. While there were facilities and programs available, the circuit court found there was insufficient evidence from which it could determine the likelihood of rehabilitation. Concerns set forth by the circuit court were the lack of reliable statistics regarding recidivism, the uncertainty of housing options, recurring escapes from the facilities, and the fact that Parks's prior involvement with other juvenile resources, although not the same facilities or programs, had failed to rehabilitate him in the past. The circuit court was concerned Parks's limited intelligence would be a hindrance to successful rehabilitation in a juvenile facility.
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense. It was undisputed Parks and the Sharp brothers acted as a group during the commission of the offenses.
(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history. The circuit court noted Parks had "significant challenges" in his educational history; however, the records did not indicate those challenges impaired his ability to comport himself according to law.
(10) Any other factors deemed relevant by the judge. The circuit court noted Parks's age at the time of the offenses; he was three days away from turning sixteen. It also considered that Parks's early cooperation with the police played a "vital role" in solving the crimes. However, in contrast, the circuit court found it was noteworthy Parks betrayed Watson, who had befriended and welcomed Parks into his home, and Parks repaid such overtures of friendship with actions that, at the very least, Parks knew would lead to terror and loss of property.
Parks addresses each factor separately, but his arguments can be grouped together. As for factors one, two, three, and four, while conceding the offenses are serious felonies, Parks argues he was the least culpable of the three defendants because he was not the person who employed violence against Watson, he did not want to commit the crime, and he ran back to his house after knocking on Watson's front door. This argument is not persuasive. A juvenile may be tried as an adult solely because of the serious and violent nature of the offense. C.B. v. State , 2012 Ark. 220, 406 S.W.3d 796. Furthermore, it is of no moment Parks did not personally employ the gun used during the crimes; his association with the use of weapons in the course of the crimes satisfies the fact the crimes were committed in a violent manner. Neal v. State , 2010 Ark. App. 744, 379 S.W.3d 634.
As for factors five and six, Parks argues he has not shown a propensity for serious physical violence, testimony indicated he functioned at a low intellectual level and was in special-education classes, his mother worked long hours and he was left by himself for extended periods of time, and he was described as a follower. The circuit court noted that while Parks had been previously adjudicated a juvenile offender, had been placed on probation, and had violated his probation, he had not committed any felonies or crimes against persons. However, the circuit court noted there had been several incidents at school involving antisocial behavior, violence, and threats to other students.
With regard to factor seven, Parks contends there are several juvenile lock-down facilities and programs available, and Dr. Curtis Grundy had testified he could benefit from such resources. However, Dr. Grundy admitted successful treatment was difficult to predict. While the circuit court noted facilities and programs were available in which Parks could be placed, it was concerned about the likelihood of rehabilitation for Parks; factoring into this determination were the lack of reliable statistics regarding recidivism, the uncertainty of housing options, recurring escapes from the facilities, and the fact that Parks's prior involvement with other juvenile resources had failed to rehabilitate him in the past. The circuit court was further concerned that Parks's limited intelligence would be a hindrance to successful rehabilitation in a juvenile facility, given Scott Tanner's testimony that inmate intelligence and the capacity to understand and respond to cognitive behavior therapy were significant factors in successful juvenile rehabilitation.
Although the offenses were committed by a group, which is the eighth factor, Parks points to the testimony he was more a follower than a leader and contends his low intellectual functioning made it difficult for him to understand the implications of his involvement. As for the ninth factor, written reports and other materials relating to Parks's mental, physical, educational, and social history, Parks points to Dr. Grundy's psychological evaluation, as well as his school records, juvenile-court records, and psychological-testing results. While the circuit court was cognizant of Parks's "significant challenges" in his educational history, it found the records did not indicate such challenges impaired his ability to comport himself according to law.
As for the tenth factor, the circuit court noted Parks's early cooperation with law enforcement in helping to solve the crime; however, it was bothered by the fact that while
Watson had shown Parks kindness, those acts of kindness had been repaid by Parks with actions that ultimately caused Watson's death.
We cannot hold that the circuit court's decision to deny Parks's motion to transfer his case to juvenile court was clearly erroneous. A juvenile may be tried as an adult solely because of the serious and violent nature of the offense. C.B. , supra. Parks is charged with four Class Y felonies. The circuit court found that Parks played an integral and active role in the planning and commission of the offenses, that he had provided items to be used in the home invasion, and that the homicide would not have occurred but for his involvement in naming Watson as a potential robbery target. The circuit court was particularly bothered by Parks's betrayal of Watson's kindness toward him by setting Watson up to be a robbery target and, ultimately, a murder victim. While some factors weighed in favor of Parks's motion to transfer to juvenile court, the circuit court is not required to give equal weight to each factor. As required, the circuit court considered each factor and made findings on each factor, and its decision to deny Parks's motion to transfer is not clearly erroneous.
Affirmed.
Gruber, C.J., and Harrison, J., agree. | [
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Dana was charged with committing aggravated assault on a family or household member as defined in Ark. Code Ann. § 5-26-306 (Repl. 2013), which states in pertinent part:
(a) A person commits aggravated assault on a family or household member if, under circumstances manifesting extreme indifference to the value of human life, the person purposely:
(1) Engages in conduct that creates a substantial danger of death or serious physical injury to a family or household member[.]
The alleged victim in this case was Dana's ex-husband Troy Daniels, and the incident occurred on the night of July 18, 2013. Dana and Troy divorced in 2005, but they continued to live in the same house, and Dana worked as an employee of Troy's tire business. Troy eventually fired Dana, which led to Dana having a confrontation with Troy at their home that night.
Troy testified that when Dana got home, she began to scream and yell at him about firing her and hiring a replacement. At some point, Troy went to bed, but about an hour later, he was awakened by getting "clobbered." He said that Dana busted his cheek with some object, but he did not know what the object was. Troy got out of bed and left the house, going toward a car in the yard. Troy described Dana as "crazy that night," yelling that he was "not going nowhere." Troy was trying to unlock the car door when he heard a gunshot that sounded like it was right by his ear. Troy ran down the road and heard a second shot fired. Two sheriff's deputies responded to a 911 call, and they found Troy about a half mile away from the house. Troy told them that he and Dana had been in an argument and that Dana had shot at him.
The deputies went back to the house where they saw broken glass and shell casings around the car. The deputies summoned Dana to come out of the house to talk, and Dana told them that it was Troy who had fired the gun at her.
There was another person staying at the house that night, Dana's friend Vickie Patterson. Vickie testified that Dana came into the bedroom where she was sleeping, took a gun out, and told Vickie that she was "getting the gun" and "gonna kill him." Vickie got up and followed Dana out of the bedroom. Vickie saw Troy going outside and Dana running after him. She yelled at Dana, telling her not to shoot the gun, but Dana fired a round; a shell casing dropped inside the house. Vickie ran back to the bedroom and heard another shot fired. Vickie said that when Dana came back in the house, Dana asked her to tell the police that Troy had a gun on her (Dana). Vickie told Dana that she would not lie for her.
The deputies observed that a gunshot had shattered the car window and found a loaded nine-millimeter pistol behind the front door. The deputies also located multiple shell casings on the property, one of which was found on the house's tile floor within three feet of the pistol. Another witness, Lisa Downs, testified that Dana later admitted to her that she had to leave town because she had shot at Troy.
Dana's attorney made the following motion for directed verdict at the close of the State's evidence:
Your Honor, on behalf of the Defendant, we ask for a directed verdict on the basis of the state has failed to meet their evidential burden on this matter and has failed to establish sufficient evidence that this act occurred, or that my client, Ms. Daniels committed this act. Based on that fact, we're asking the court to enter a directed verdict in this matter.
The trial court denied the motion.
The defense put on witnesses to support the theory that Troy had a motive for getting Dana in trouble, which was that he wanted Dana to give him back substantial property she had obtained in their divorce. Other defense witnesses testified to the volatile relationship between Troy and Dana and his propensity to drink and be physically abusive. Dana did not testify. After the defense rested, at the close of all the evidence, defense counsel stated to the trial court:
I would reassert my motion for directed verdict. I think we have established that there is motive for the alleged victim in this case to fabricate these stories, and I think that his credibility has been totally impeached in this matter, and I would ask, again state that the state has failed to meet their burden of establishing sufficient facts for probable cause for this case to proceed to the jury.
The trial court denied the renewed directed-verdict motion.
The jury was subsequently instructed that the State was required to prove that Dana committed aggravated assault on a family or household member. The jury was informed that this crime occurs when a person purposely, under circumstances manifesting extreme indifference to the value of human life, engages in conduct that creates a substantial danger of death or serious physical injury to a family or household member. Following her conviction, Dana argues on appeal that the State failed to prove that she was the one who fired the gun that night and that Troy and Vickie were not credible witnesses. We cannot reach these arguments.
In order to preserve a challenge to the sufficiency of the evidence in a jury trial, a criminal defendant must make a motion for directed verdict at the close of the evidence offered by the prosecution and at the close of all the evidence. Ark. R. Crim. P. 33.1(a) (2016). A motion for directed verdict shall state the specific grounds therefor. Maxwell v. State , 373 Ark. 553, 559, 285 S.W.3d 195, 200 (2008).
Without a circuit court ruling on a specific motion, there is nothing for this court to review. Id. Failure to abide by these procedural rules renders any question of the sufficiency of the evidence waived on appeal. Ark. R. Crim. P. 33.1(c) ; Bradley v. State , 2013 Ark. 58, 426 S.W.3d 363. An appellant must make a specific motion for a directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove. Conley v. State , 2011 Ark. App. 597, 385 S.W.3d 875. Rule 33.1 is strictly construed. Pratt v. State , 359 Ark. 16, 194 S.W.3d 183 (2004).
A party cannot enlarge or change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Kinsey, supra. A general motion does not satisfy the requirements of specificity mandated in Rule 33.1. Our appellate courts have been steadfast in our holdings that we will not address the merits of an appellant's insufficiency argument when the directed-verdict motion is not specific. Reynolds v. State , 2018 Ark. App. 8, 538 S.W.3d 223. Here, Dana's motion for directed verdict asserted only that the State failed to prove that "this act occurred" or that Dana "committed this act." This is too general to preserve the sufficiency-of-the-evidence issue for appellate review.
Even if the initial motion for directed verdict had been specific, Dana's renewed motion for directed verdict added a challenge to Troy's credibility, which was too late because it was required to be raised in the initial motion for directed verdict. The supreme court has held that a failure to make a motion for directed verdict with specificity regarding the sufficiency issue on appeal equates to the motion never having been made, further holding that this is so even in situations where the motion is specific at the close of all the evidence but not at the close of the State's case. Williamson v. State , 2009 Ark. 568, 350 S.W.3d 787. Dana's challenge on appeal to Vickie's credibility was never raised in either the initial motion or in the renewed motion for directed verdict. Dana's arguments on appeal about the witnesses' credibility are therefore not preserved for appellate review. See Radford v. State , 2018 Ark. App. 89, 538 S.W.3d 894.
Regardless of these procedural flaws, determinations as to the credibility of the witnesses and resolutions of any inconsistent evidence are left to be made by the jury. Starling v. State , 2016 Ark. 20, 480 S.W.3d 158. The jury is free to believe all or part of any witness's testimony. Marshall v. State , 2017 Ark. 347, 532 S.W.3d 563. Therefore, even if the sufficiency-of-the-evidence issues had been preserved, the trial court would not have erred in denying the motion for directed verdict.
Affirmed.
Vaught and Murphy, JJ., agree. | [
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ROBERT J. GLADWIN, Judge
On February 7, 2018, Adam Patton was convicted in the Desha County Circuit Court of rape and incest. On appeal, he argues that the circuit court violated his Sixth Amendment right to assistance of counsel. We affirm.
I. Procedural History
Appellant was charged by information filed on August 19, 2016, with the rape of his son, JP. The information was amended on May 16, 2017, to include three counts of rape and two counts of incest involving the same victim.
At the pretrial hearing on September 18, 2017, the circuit court granted defense counsel's motion to withdraw, which was based on appellant's failure to contact him. Appellant alleged that he had tried to contact his lawyer but agreed that they had not spoken prior to the pretrial hearing. When the circuit court told appellant that it was inclined to grant counsel's motion to withdraw, appellant asked the court to give him time to find another lawyer. The circuit court granted the motion to withdraw and continued appellant's case until January 22, 2018, which was the pretrial date. The circuit court told appellant that he needed a lawyer on his case within the next month to two months. The trial date was reset to February 6-9, 2018.
At the pretrial hearing on January 22, appellant told the court he had not hired another attorney because he could not find anyone he "could come to an agreement on, moneywise, financially." The following colloquy occurred:
THE COURT : Mr. Patton is here for pretrial. The State has charged him with the offenses of rape, which allegedly occurred between 2012 and 2016. He was formerly represented by Mr. Robinson, his firm, which filed a motion to withdraw which I granted in September. He was to hire another lawyer. [Appellant], have you done that?
APPELLANT : No, sir, Your Honor. I haven't, I guess, found somebody that we could come to an agreement on, moneywise, financially. I was here today to ask you for, if maybe the courts would appoint me one, to say the evidence and all that the courts have against me, I guess I'm unprepared You know, I have spoke to a few different lawyers. We just can't come to an agreement, Your Honor, so I'm kind of at your mercy.
THE COURT : What is your income?
APPELLANT : Right now, Your Honor, not a lot. You know, I ran across a little stroke of luck a little while back with the lottery, and all that I've been living off of, me and my family. As far as income weekly, there isn't any.
THE COURT : How much money do you have left from your winnings?
....
APPELLANT : Well, there was remodeling of my mother's home, vehicles for my wife and my oldest son, one for me, one for my mother. So
....
THE COURT : You're not indigent. I'm not going to appoint you a lawyer. It's clear to me that you are trying to take advantage of the system. Now, you're going to trial in two weeks with or without a lawyer. I don't care.
....
THE COURT : Well, I'm not going to appoint him counsel. He is not indigent. And that's what I, the Constitution requires is me to appoint indigent counsel. Now, if he wants to go to trial without a lawyer, he's made that choice as far as I'm concerned. Just his statements regarding his disposition of his lottery winnings is clear to me that he had not taken care of his personal business and he's putting himself in this position. I so find. So, we'll just go from there. You're ordered back to court for jury trial February 6th-we're going to set that date right now-at 8:30 a.m. You can be dismissed until then.
Prior to the commencement of the trial on February 6, the State requested as follows:
PROSECUTOR : Judge, the only other issue-and the court may have done this on the pretrial date that we had, you know, a little over two weeks ago and I may have missed it. But-So if the court has done this, I'll withdraw the request.
With the situation we're in with [appellant] being deemed not to be indigent, I didn't know if there was a record made as the fact that he did win the lottery, he acknowledged that, the amount that he won and when that was. I think-I don't think the record reflects that. And I would ask that, the court would inquire as to that so that the record would reflect that, that winnings and earnings.
APPELLANT : I believe it was around the first of March or so, Your Honor. It was a little over six hundred and eighty thousand ($ 680,000) is what I left there with.
THE COURT : Okay. So around March 1st of 2017?
APPELLANT : Yes, sir.
THE COURT : You received how much?
APPELLANT : Six hundred and eighty thousand dollars ($ 680,000) is what I deposited into an account.
THE COURT : From the Arkansas Lottery? That was after taxes?
APPELLANT : Yes, sir.
THE COURT : Okay.
PROSECUTOR : And that was while this case was pending?
THE COURT : Yes.
APPELLANT : While I was out on bond.
THE COURT : Of course, you've had a lawyer in this case before.
APPELLANT : Yes, sir. And, Your Honor, I did search for counsel, you know. And, like I say, everybody has heard about the lottery and since they know, you know, the number they threw out there is just astronomical and I couldn't you know, I couldn't justify paying somebody those five digits , you know, numbers to talk about something they had no idea. I mean, I understand they are more knowledgeable about, your, the way things go in here. But as far as what me and my son went through ... (emphasis added).
THE COURT : Well, you've got some serious charges, [appellant].
APPELLANT : Yes, sir.
THE COURT : I tried to talk to you about this and I've tried to encourage you to get your own lawyer. I realize that the fact of your lottery winnings may be knowledge, public knowledge, so that, you know, maybe people try to gouge you or whatever. I don't know. But it would seem to me that if you look long and hard enough, you could find somebody to represent you for a reasonable sum of money. Because of the serious nature of the charges ...
APPELLANT : Yes, sir.
THE COURT : ... you might be getting quoted some high fees. I don't know. I don't know all that's involved in it. But you certainly have resources to hire counsel and that's the reason I ruled the way I did.
The State presented four witnesses-appellant's wife, two police officers, and the victim, JP. Appellant and his mother testified for the defense. At the conclusion of evidence, the State dismissed one count of rape. The jury convicted appellant of two counts of rape and two counts of incest, and he was sentenced to a total term of 312 months' imprisonment. Appellant filed a timely notice of appeal.
II. Applicable Law and Standard of Review
The Sixth Amendment to the United States Constitution, made obligatory on the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Gideon v. Wainwright , 372 U.S. 335, 342-44, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Article 2, section 10 of the Arkansas Constitution provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. A criminal defendant has a right to represent himself at trial when his waiver of the right to counsel is knowingly and intelligently made. Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Arkansas Rule of Criminal Procedure 8.2(a) (2017) provides that a judicial officer shall determine whether the defendant is indigent and, if so, appoint counsel to represent him or her at the first appearance, unless the defendant knowingly and intelligently waives the appointment of counsel. In the instant case, the circuit court found that appellant was not indigent.
On appeal, the standard of review is whether the trial court abused its discretion in finding that petitioner was not indigent. Burmingham v. State , 342 Ark. 95, 27 S.W.3d 351 (2000). The criteria to be used in determining the indigency of a defendant are set out in Burmingham . Indigency is considered on a case-by-case basis, and the burden of establishing his status as a pauper is on the defendant claiming indigent status. Id. Although there is no set test for indigency, which is a mixed question of fact and law, some of the factors to be considered are (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support. Id. The ability of bystanders such as friends and family members to assist with expenses is not a factor in determining a petitioner's indigency, although an exception may be made if the petitioner has control or complete discretionary use of funds raised by others. Id.
Berger v. Kelley , 2018 Ark. 381, at 3, 563 S.W.3d 557.
III. Argument
Appellant argues that the circuit court violated his Sixth Amendment right to assistance of counsel. He argues that the court erred by granting defense counsel's motion to withdraw before assuring that new counsel had been retained, indigent counsel had been appointed, or the accused voluntarily and intelligently waived the assistance of counsel. Tollett v. U.S. , 444 F.2d 622 (8th Cir. 1971). He argues that the law in Arkansas is that an accused cannot be tried without the assistance of an attorney unless such right is voluntarily and intelligently waived. Murdock v. State , 291 Ark. 8, 9, 722 S.W.2d 268, 269 (1987). Appellant argues that new counsel was not retained, counsel was not appointed, and the record does not indicate that he made a voluntary and intelligent waiver of counsel.
Appellant contends that the circuit court twice made a finding that he was not indigent and declined to appoint counsel. He contends that he desired counsel and did not waive his right. He claims that he was never given the opportunity to execute an affidavit of indigency for the court's review, and he argues that the lottery winnings that were referenced had been spent and he did not have any current income.
Appellant claims that, even assuming a developed factual basis for declining to find him indigent, the circuit court deprived him of his right to counsel because a voluntary and intelligent waiver was not established on the record. He cites Scott v. State , 298 Ark. 214, 766 S.W.2d 428 (1989), for the proposition that the record must show that an accused intelligently and understandably rejected counsel. In Scott , the Arkansas Supreme Court reversed and remanded the defendant's DWI conviction because there was no record on the defendant's waiver of counsel. Appellant contends that the record here establishes that he desired the assistance of counsel. Further, he claims that his trial performance exhibited a lack of rational understanding of the rules of evidence or the natural stages of a trial.
The State contends that the circuit court did not abuse its discretion because appellant had abundant means and time to hire counsel but decided not to. The State contends that this is not a waiver case but a forfeiture case. We agree that while there is not a voluntary and intelligent waiver on the record, appellant forfeited his right to counsel. In Robinson v. State , 2017 Ark. App. 377, 526 S.W.3d 20, this court held:
We note that, even in the absence of a voluntary and intelligent waiver of the right to counsel, the right to counsel may be forfeited by a defendant who engages in conduct that prevents a fair and orderly exposition of the issues. The right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Once competent counsel is obtained, the request for a change in counsel must be considered in the context of the public's interest in the prompt dispensation of justice. The constitutional right to counsel is a shield, not a sword, and a defendant may not manipulate this right for the purpose of delaying trial or playing "cat-and-mouse" with the court. Appellant had access to competent counsel, and he was obviously attempting to prevent the scheduled trial and thwart the court system.
Id. at 20, 526 S.W.3d at 33-34 (citations omitted).
The State claims that appellant's refusal to hire counsel despite abundant means and opportunity to do so frustrated the orderly administration of justice. See, e.g. , Philyaw v. State , 288 Ark. 237, 704 S.W.2d 608 (1986) (noting that Philyaw was only allowed to use the telephone at night and could not reach an attorney during the week he was given to secure counsel), overruled on other grounds by Oliver v. State , 323 Ark. 743, 918 S.W.2d 690 (1996). Appellant was free on bond during the relevant time period. Further, appellant had won the lottery, taking home $ 680,000 during the pendency of the case. He established on the record that he did not want to hire a lawyer because he could not justify spending the money. Thus, the circuit court did not abuse its discretion in determining that appellant preferred not to hire a lawyer. Accordingly, the circuit court's ruling that appellant forfeited his right to counsel by refusing to hire counsel for his defense was not an abuse of discretion.
Affirmed.
Vaught, J., agrees.
Glover, J., concurs.
The original sentencing order was filed on February 7, 2018, and the amended sentencing order was filed on February 16, 2018. | [
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RAYMOND R. ABRAMSON, Judge
Appellant Jaylon Holmes (DOB: 03-12-02) appeals from the order of the Pulaski County Circuit Court denying his motion to transfer his case to the juvenile division of the circuit court. He argues that the circuit court's denial of his motion to transfer was clearly erroneous or, in the alternative, that the court should have transferred the case and designated it as extended juvenile jurisdiction ("EJJ"). We affirm.
Holmes was charged as an adult in the Pulaski County Circuit Court with two counts of aggravated robbery. His charges arose out of two separate aggravated robberies--one that occurred on October 15, 2017, and the other on October 18, 2017; Holmes was fifteen years old at the time. Holmes filed a motion to transfer this case to the juvenile division of the circuit court on January 17, 2018. The circuit court conducted a hearing on Holmes's motion on February 15, 2018.
Testimony at the hearing indicated that on October 15, 2017, two of Holmes's codefendants entered a Jimmy John's restaurant just before it closed and committed robbery. Both men had their faces covered, and one of them had a firearm. Surveillance video showed an older model Pontiac Sunfire leaving the scene. Holmes admitted to police that he and another codefendant waited inside the vehicle during the robbery.
On October 18, 2017, Holmes admitted to police that he and a codefendant had robbed a Metro PCS store at gunpoint and had stolen money and cellphones from the business. Holmes identified himself to police as the person depicted in the surveillance-video photographs wearing the Spider-Man mask pointing the gun at the employees. The Metro PCS employees saw the men leaving in a vehicle that matched the description of the one used to flee from the Jimmy John's restaurant on October 15. Within an hour of the Metro PCS robbery, police officers located and arrested Holmes and three codefendants at one of the codefendant's home. Inside the home, officers found two firearms matching those shown in the Metro PCS surveillance video, a Spider-Man mask, and new Metro PCS cellular phones.
Holmes's probation officer, Jennie Promack, testified that Holmes had been involved in the juvenile-justice system since 2014. While he had "passed on" to ninth grade in the fall of 2017, his record in eighth grade was terrible--including routine tardiness, unexcused absences, constant suspensions, and very poor grades. Promack testified that her records indicated that Holmes had thirteen school disciplinary sanctions and numerous suspensions. He was arrested for possessing a handgun on school property in early 2017, and the juvenile court ordered him to wear an ankle monitor. Holmes cut off the ankle monitor on May 19, 2017, and was arrested four days later on charges of theft by receiving and felony fleeing. The juvenile court also ordered Holmes to attend anger-management classes, but after he missed three classes, the referral was closed for noncompliance.
Promack testified that she referred Holmes for a drug-and-alcohol assessment, a psycho-social assessment, and entry into the Civilian Student Training Educational Program ("C-Step") as ordered by the juvenile court; however, Holmes was arrested on the charges in this case so he never received any of those services. Promack also testified that based on the individuals with whom Holmes associated and posts made on Facebook, she believed that Holmes was a member of a gang.
Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile aged fourteen or fifteen years old when he or she engages in conduct that, if committed by an adult, would be aggravated robbery. See Ark. Code Ann. § 9-27-318(c)(2)(D) (Repl. 2015). On motion of the court or any party, the court in which the charges have been filed shall conduct a transfer hearing to determine whether to transfer the case to another division of the circuit court. Ark. Code Ann. § 9-27-318(e).
The moving party bears the burden of proving that the case should be transferred. Z.T. v. State , 2015 Ark. App. 282, 2015 WL 1952969. The court shall order the case transferred to another division of the circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2). Clear and convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. R.W.G. v. State , 2014 Ark. App. 545, 444 S.W.3d 376. We will not reverse a circuit court's determination whether to transfer a case unless that decision is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.
Arkansas Code Annotated section 9-27-318(g) sets forth all the factors the court shall consider in a transfer hearing:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark. Code Ann. § 9-27-318(g).
The circuit court is required to make written findings on all the above factors. Ark. Code Ann. § 9-27-318(h)(1). However, there is no requirement that proof be introduced against the juvenile on each factor, and the circuit court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. Neal v. State , 2010 Ark. App. 744, 379 S.W.3d 634.
Holmes argues that the circuit court erred by finding that (1) his culpability was great, (2) the resources available under the juvenile-justice system were unlikely to rehabilitate him, and (3) his level of intellectual development and maturity did not warrant transfer to the juvenile-justice system. However, based on the record before us, the circuit court's findings were not clearly erroneous.
Because of the serious nature of the charges alone-two counts of aggravated robbery-there is clear and convincing evidence to support the circuit court's denial of appellant's motion to transfer. See, e.g. , Lofton v. State , 2009 Ark. 341, at 6, 321 S.W.3d 255, 259 ("a juvenile may be tried as an adult solely because of the serious and violent nature of the offense."). Holmes was an accomplice to the aggravated robbery of the Jimmy John's restaurant in which the employees were held at gunpoint. Two days later, it was Holmes himself who held up the employees of Metro PCS at gunpoint and stole phones and money from that business. Based on the evidence introduced at the hearing to substantiate the serious and violent nature of the charged offenses alone, the circuit court's decision to deny Holmes's motion to transfer was not clearly erroneous.
Holmes attempts to minimize his culpability based on the fact that he was fifteen years old and his codefendants were nineteen years old at the time of the crimes, but his age does not minimize his culpability in his role as an accomplice in the seriously violent and premeditated aggravated robbery of a Jimmy John's restaurant. "An accomplice, even of minor age, is responsible for the activities of his cohort." Bell v. State , 317 Ark. 289, 292, 877 S.W.2d 579, 581 (1994). Further, as the circuit court found, in the aggravated robbery of a Metro PCS, Holmes "chose to go in and hold a gun to a woman's head[,] ... an innocent woman who was standing there doing her job[.]" Holmes had also twice been adjudicated delinquent on very serious charges and was no stranger to the criminal-justice system. Given his aggressive and violent participation and previous involvement in the juvenile-justice system, the circuit court did not clearly err, as the age difference did not make him less culpable. See Nichols v. State , 2015 Ark. App. 397, at 6, 466 S.W.3d 431, 434 (rejecting argument based on age of codefendants given appellant's violent acts in the commission of the aggravated robbery and prior juvenile-delinquency adjudications).
Specifically, regarding factor seven and whether facilities or programs would be available to rehabilitate Holmes, the circuit court did not err by finding it was unlikely programs available in the juvenile-justice system would be effective to rehabilitate him. Holmes's antisocial behavior continued at school despite numerous interventions and sanctions. While on probation for the delinquency adjudication for possession of a handgun on school property, Holmes violated the juvenile court's orders by cutting off the ankle monitor; and four days later, he committed theft by receiving of a vehicle and felony fleeing. Holmes did not attend the anger-management classes as ordered by the juvenile court, and he did not receive the juvenile-justice-system services for which he was referred because he was arrested for the crimes charged in this case. Instead of emulating his older brother, he chose to model himself after what the evidence showed to be older gang members. The record reflects that Holmes was unlikely to be rehabilitated following his juvenile delinquency adjudications. Based on Holmes's pattern of behavior, the circuit court's decision is not clearly erroneous. See, e.g. , Box v. State , 71 Ark. App. 403, 406, 30 S.W.3d 754, 755-56 (2000) (affirming circuit court decision as "charges were part of a repetitive pattern of offenses, that past efforts at rehabilitation had proved unsuccessful, and that the pattern of offenses had become increasingly more serious"). As such, the circuit court did not clearly err by finding that it was unlikely he could be rehabilitated following the commission of the violent felonies charged in this case.
Finally, the circuit court did not clearly err by not giving greater weight to the evidence that Holmes came from an impoverished background and that disruptions in his educational history affected his intellectual development and maturity. The circuit court considered Holmes's family's economic disadvantages and concluded that "even though he may [have been] raised in poverty, it still does not give him license to go somewhere and hold a gun to an innocent person's head and demand their money or property." Accordingly, the circuit court did not clearly err by not giving the evidence and its effects on his maturity and intellectual development greater weight. See, e.g. , Nichols , 2015 Ark. App. 397, at 6, 466 S.W.3d at 434 (rejecting an argument based on appellant's low IQ).
Here, it is evident that the circuit court heard the evidence, weighed it, reached its decision, and enumerated its conclusions in an order. The circuit court considered all the evidence on all the factors as required by the statute, and it was free to use its discretion in the weight afforded to each factor. D.A.S. v. State , 2010 Ark. App. 144, at 6, 2010 WL 502977. "That the court did not weigh one factor the way [the appellant] wanted it weighed does not make the court's decision clearly erroneous, nor does it necessitate reversal." Lindsey v. State , 2016 Ark. App. 355, at 9, 498 S.W.3d 336, 342. Therefore, we hold that the circuit court properly considered all the factors in Arkansas Code Annotated section 9-27-318(g) and did not clearly err in denying the motion to transfer.
We find Holmes's alternative argument that the circuit court erred in not transferring the case and designating it as EJJ to be without merit. To challenge an EJJ designation, an appellant's case must have first been transferred to the juvenile division. Although a party may request an EJJ designation and the EJJ designation hearing and transfer hearing may be conducted at the same time, there can be no EJJ designation unless the case is either already in the juvenile division of the circuit court or is transferred to the juvenile division. See Ark. Code Ann. § 9-27-318(e), (i), and (m) ; Ark. Code Ann. § 9-27-503(e) ; see also J.S. v. State , 2009 Ark. App. 710, 372 S.W.3d 370. Here, the circuit court found that Holmes's case should not be transferred to the juvenile division. Therefore, EJJ is not applicable in this situation.
The circuit court's decision to deny Holmes's motion to transfer the case to the juvenile division of the circuit court is not clearly erroneous; accordingly, we affirm.
Affirmed.
Harrison and Murphy, JJ., agree. | [
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