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(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) "Aggravated circumstances" means:
(i) .. [A] determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification.
In the termination order, the trial court stated that Anita had partially complied but had relapsed and had not shown an ability to maintain stability. The trial court found that Anita habitually relapsed into drug use during the case, admitting she had used drugs in August, October, and December 2017, and in January 2018. The trial court noted that while Anita was not presently incarcerated, she remained on a suspended sentence that potentially exposed her to a lengthy prison sentence. The trial court found that despite this fact, Anita continued to commit the criminal act of using drugs, which could cause her suspended sentence to be revoked and her sent to the Arkansas Department of Correction.
Anita testified on her own behalf at the termination hearing. She stated that, as a result of her drug convictions, she remained incarcerated from the time her children were removed in March 2016 until April 2017. Anita testified that when she was released from prison she entered an outpatient drug-treatment program, which she completed in December 2017. Anita stated that she has a recovery coach, Karen Wilson, who has helped her ever since her release from prison.
Anita testified that despite undergoing drug treatment, she relapsed into drug use in August 2017. Anita stated that when she relapsed she did not tell DHS or her recovery coach. Anita's relapse consisted of using methamphetamine, alcohol, and marijuana. Anita had trial custody of her children for several weeks between late October and December 2017. She maintained, however, that she did not use methamphetamine when her children were at home. After Anita tested positive for methamphetamine on a hair-follicle test on December 5, 2017, Anita's relapse was discovered and the trial placement was discontinued. Anita also tested positive for methamphetamine on a hair-follicle test on April 12, 2018, which was just eleven days before the termination hearing. Anita admitted using methamphetamine in August and early October 2017, and in December 2017 after the children were removed from her custody. However, Anita maintained that she had not used drugs since January 2018 and that she had not used methamphetamine for 102 days. She suggested that the positive hair-follicle test in April 2018 was detecting her drug use from a few months prior.
Anita testified that she entered a residential drug-treatment program in January 2018. She stated that she completed the residential part of the program and was presently in a transitional-living facility. Anita did not have her own housing but stated that she is allowed to have HUD housing and that her counselor could help her find a place to live. Anita stated that she has had four different jobs over the past year and presently works at a grocery store. Anita does not have a driver's license or her own transportation. Anita admitted that she began using drugs thirteen years ago, and she stated that she did not feel like anyone with the disease of addiction is ever completely rehabilitated. She also acknowledged that the terms of her suspended sentence prohibited illegal drug use, and that an infraction could result in her going back to prison. However, she felt like she had the tools she needed to go forward and do well. Anita asked the trial court to not take her children away from her and to give her more time to get back on her feet.
Christine Clark, a mental-health counselor, is M.H.'s therapist. Ms. Clark testified that M.H. has been diagnosed with PTSD and adjustment disorder. Ms. Clark indicated that after the trial placement with her mother, M.H. began having problems that she was not having before the placement, including failing grades and disruptive behavior. Ms. Clark testified that M.H. is adoptable and that it would probably be best to terminate Anita's parental rights.
Kathy Patton, also a mental-health counselor, is B.M.'s and F.M.'s therapist. Ms. Patton testified that both B.M. and F.M. have adjustment disorder and behavioral problems. According to Ms. Patton, B.M. told her that during the trial placement with his mother, Anita did not do much with them, and they spent a lot of time taking care of themselves. B.M. told Ms. Patton that his mother stayed on her phone a lot and looked kind of "zoned out." Ms. Patton indicated that the children need a stable, consistent home. She stated that both B.M. and F.M. are adoptable and that if it was her decision she would terminate parental rights.
Shannon Kelleher is a CASA worker assigned to the case. Ms. Kelleher stated that she made home visits at Anita's apartment during Anita's trial custody of the children, and that during these visits she saw some things that caused her concern. On one occasion, she saw a beer bottle in the kitchen. Ms. Kelleher further testified that she saw a Facebook video narrated by Anita showing Anita drinking wine at a party with her children there with her. In the video, Anita commented that she did not have any Sunday beer because she had drunk it Saturday night. Ms. Kelleher stated that around that time, Anita stopped letting her in her home. Ms. Kelleher stated that the case had gone on for more than two years and that the children need permanency, and she recommended termination of Anita's parental rights.
Karen McLaughlin is the foster-care supervisor assigned to the case, and she testified that DHS was also recommending termination of Anita's parental rights. Ms. McLaughlin testified that DHS had provided extensive services to Anita and that Anita has had a lot of support in this case. Ms. McLaughlin stated that Anita had never had her own transportation throughout the case and presently has no home where the children could live. Although Anita completed parenting classes, Ms. McLaughlin stated that she did not demonstrate the skills she was taught during her visits with the children. Nor had Anita maintained sobriety as ordered by the trial court. Ms. McLaughlin believed that the children would be at risk of both psychological and physical harm if returned to their mother. She based this opinion on Anita's drug relapse, dishonesty, lack of stability, and lack of ability to provide a home for the children. Ms. McLaughlin believed the juveniles are adoptable but stated that even if they were not adoptable, the risk of harm in returning them to Anita would be so great as to outweigh the issue of adoptability.
Anita called two witnesses on her behalf. The first was Karen Wilson, who works within the Restore Hope drug-rehabilitation program and is Anita's recovery coach. Ms. Wilson assists Anita with anything that needs to be done, including treatment, housing, employment, and transportation. Ms. Wilson stated that she did not know about Anita's drug relapse until Anita tested positive in December 2017 and that she had not seen Anita in the two months before that. After the positive test result, Anita called Ms. Wilson and was devastated, stating that she felt like a complete failure. According to Ms. Wilson, Anita's attitude was that she could not get to rehab fast enough, and she reentered rehab without an assessment or a referral. Ms. Wilson stated that she will continue to work with Anita as long as is necessary and that, other than the relapse period, Anita has always been responsive and followed her advice and suggestions.
Kaela Bowles is Anita's counselor at the treatment facility. Ms. Bowles testified that Anita had completed her inpatient drug rehabilitation and was in a transitional facility, but that she could leave at any time and find her own housing. Ms. Bowles stated that Anita was fully compliant with all of her requirements and that, although she did not know for sure, she believed Anita could maintain sobriety when she leaves the facility.
On appeal from the termination of her parental rights, Anita does not challenge the statutory grounds supporting termination. Instead, her only argument is that there was insufficient evidence that termination was in the children's best interest. Specifically, Anita claims that there was a complete lack of evidence to support the trial court's finding that the children would be subjected to potential harm if returned to her custody.
Anita acknowledges her relapse into methamphetamine use during the case. However, she maintains that she relapsed during the three months leading up to the trial placement, that she did not use methamphetamine during the trial placement, and that she used methamphetamine again only after the children were removed from her custody in December 2017. Anita asserts that, aside from these relapses, she was complying with the case plan and making marked progress in the case. Anita further asserts that after her most recent relapse in December 2017, she completed an inpatient drug program. She testified that the last time she had used methamphetamine was 102 days before the termination hearing. Anita also relies on the testimony of her counselor who believed that Anita could maintain sobriety and be successful if she moved into her own housing. Anita asserts that she has taken control of her life and has demonstrated that she can parent her children without a risk of harm. Anita maintains that, at the very least, the trial court erred in not giving her additional time to show she is capable of maintaining sobriety and raising her children. For these reasons, she argues that the termination of her parental rights should be reversed.
We hold that the trial court's potential-harm finding was not error; nor did the trial court clearly err finding that termination was in the children's best interest. In considering potential harm caused by returning a child to the parent, the trial court is not required to find that actual harm would result. Furnish v. Ark. Dep't of Human Servs. , 2017 Ark. App. 511, 529 S.W.3d 684. Potential harm must be viewed in broad terms, including the harm the child suffers from the lack of stability in a permanent home. Id. We have held that continued drug use demonstrates potential harm sufficient to support a best-interest finding in a termination-of-parental-rights case. Tillman v. Ark. Dep't of Human Servs. , 2015 Ark. App. 119, 2015 WL 831629. Moreover, a court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Furnish, supra.
The children were initially removed from Anita's custody when she was arrested and incarcerated for drug offenses, including possession of methamphetamine with intent to deliver. Upon Anita's release from prison, she was equipped with an excellent support system and completed a drug-rehabilitation program. However, during the period of this rehabilitation program, Anita relapsed into using methamphetamine. After this relapse was detected by a hair-follicle test and the children were removed from Anita's custody, she responded to the removal of her children by using methamphetamine, alcohol, and marijuana. Although Anita subsequently entered another drug-rehabilitation program and claimed at the termination hearing to have been sober for 102 days, the case had been open for more than two years, and the trial court properly considered Anita's admitted instances of illegal drug use during the case.
The purpose of the termination-of-parental-rights statute 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. Ark. Code Ann. § 9-27-341(a)(3). 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. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, 489 S.W.3d 182.
There was testimony that the children involved in this case are adoptable and in need of permanency. At the time of the termination hearing, which was more than two years after the children's removal, Anita lacked a stable home and had a long history of drug use. During the case Anita was given the opportunity to remedy her drug issues but instead relapsed into continued drug use. The record supports the trial court's finding that the children would be subjected to potential harm if returned to Anita's custody, and we conclude that the termination of her parental rights was not clearly erroneous.
Affirmed.
Gruber, C.J., and Brown, J., agree.
In addition to Anita's testimony that she did not use drugs during this trial-placement period, Anita notes that her drug screens during this time frame were negative. Although Anita tested positive for methamphetamine on a hair-follicle test on December 5, 2017, when the children were in her trial custody, she claims that this test detected pre-placement drug use. | [
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Brown, J., agrees.
Murphy, J., concurs. | [
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JOHN DAN KEMP, Chief Justice
Koppers, Inc., appeals the Pulaski County Circuit Court's order certifying a class action lawsuit filed by Koppers employees Kelvin Trotter, Nathane Davis, Lonzo Allen, and Ken Piggee, individually and on behalf of all others similarly situated (collectively referred to as employees). Koppers contends that the circuit court failed to provide any reasoning supporting class certification, precluding meaningful review and requiring reversal. Alternatively, Koppers contends that employees did not meet their burden of proving the requirements for class certification. We remand the case with instructions to enter an order that complies with Arkansas Rule of Civil Procedure 23 (2018).
I. Facts
Koppers operates a crosstie-treatment plant in North Little Rock, Arkansas. While working at the plant, employees must wear protective clothing and equipment provided by Koppers. Employees start each workday by clocking in at one of two bathhouses, taking off their street clothes, putting on ("donning") specified uniforms and personal protective equipment, and walking to their workstations. At the end of the shift, employees walk back to the bathhouses, remove ("doff") their uniforms and protective equipment, change back into their street clothes, and clock out.
Employees filed suit against Koppers pursuant to the Arkansas Minimum Wage Act (AMWA), Ark. Code Ann. §§ 11-4-201 et seq. for unpaid overtime. They claimed that Koppers violated the AMWA by failing to compensate them for time spent donning and doffing their uniforms and protective equipment and walking to and from their workstations. After filing their complaint, employees moved to certify a class of
[a]ll individuals who were, are, or will be employed by Defendant as hourly paid employees at the Koppers plant in North Little Rock, Arkansas, at any time within the three years prior to the filing of this Complaint through the date of the final disposition of this action, and who were, are, or will be required to perform donning and doffing activities.
Koppers removed the case to federal court based on diversity jurisdiction. After the case was removed, employees amended their complaint to add the current manager and a former manager of the North Little Rock plant as defendants. The addition of these defendants destroyed diversity, and the case was remanded to the circuit court.
After remand, Koppers answered and denied that employees were entitled to compensation for unpaid overtime. Koppers asserted that for each shift they worked, employees were paid for five minutes of time for putting on their uniforms and personal protective equipment, five minutes of time for walking to their workstations, and ten minutes of time for walking from their workstations to the bathhouses and changing out of their uniforms and personal protective equipment. Koppers also asserted that employees could not meet the requirements for class certification.
After discovery and briefing, the circuit court held a hearing on the motion for class certification. The circuit court took the motion under advisement and made no rulings from the bench. Subsequently, the circuit court notified the parties that it had decided to grant the motion. Employees submitted a proposed order, and Koppers objected to the form of the proposed order on several grounds, including that it contained "factual statements, legal reasoning, and legal conclusions [that] were never announced by the court." Koppers stated that the court had "not relayed any findings of fact or conclusions of law to the parties, other than its indication that it would certify a class." Koppers submitted its own proposed order that it contended "reflects the decision to grant class certification."
On November 21, 2017, the circuit court entered an order granting employees' motion for class certification:
Having considered the submissions of the parties and the arguments of counsel, the court finds that the requirements of Arkansas Rule of Civil Procedure 23 are satisfied and therefore GRANTS the motion for class certification. The court certifies the following class:
All individuals who were, are, or will be employed by Defendant as hourly paid employees at the Koppers plant in North Little Rock, Arkansas, at any time between June 3, 2013, through the date of the final disposition of this action, and who were, are, or will be required to perform donning and doffing activities.
Koppers brings this interlocutory appeal of the circuit court's order granting the motion to certify this case as a class action. See Ark. R. App. P.-Civ. 2(a)(9) (2018). We review a certification order for abuse of discretion. E.g. , ChartOne, Inc. v. Raglon , 373 Ark. 275, 283 S.W.3d 576 (2008).
II. Law and Analysis
Rule 23 of the Arkansas Rules of Civil Procedure governs class actions. A circuit court may certify a class-action complaint if
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, (4) the representative parties and their counsel will fairly and adequately protect the interests of the class, (5) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and (6) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Ark. R. Civ. P. 23(a)-(b). In shorthand terms, the requirements for class actions under Rule 23 are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Advance Am. Servicing of Ark., Inc. v. McGinnis , 2009 Ark. 151, 300 S.W.3d 487.
A certification order must do more than merely mention the six factors in Rule 23 or provide bare conclusions that all six factors have been satisfied. Lenders Title Co. v. Chandler , 353 Ark. 339, 349, 107 S.W.3d 157, 162 (2003) ; see Baptist Hosp. v. Haynes , 367 Ark. 382, 385, 240 S.W.3d 576, 579 (2006) (noting that this court reviews the circuit court's analysis of the factors for class certification). The circuit court must conduct an analysis to determine whether the Rule 23 requirements have been met, and that analysis must be reflected in the circuit court's order. Chandler , 353 Ark. at 349, 107 S.W.3d at 162 (stating that although a rigorous analysis is not required, the circuit court must undertake enough of an analysis to enable us to conduct a meaningful review of the certification issue on appeal). Moreover, a certification order must define the class and the class claims, issues, or defenses. See Ark. R. Civ. P. 23(b). The circuit court may not simply rubber-stamp the complaint and certify a class under Rule 23. Chandler , 353 Ark. at 349, 107 S.W.3d at 162.
Relying on this court's decision in Industrial Welding Supplies of Hattiesburg, LLC v. Pinson , 2017 Ark. 315, 530 S.W.3d 854, Koppers contends that the class-certification order is deficient because (1) it fails to define the class claims, issues, or defenses, and (2) it fails to provide any analysis of the six Rule 23 factors. The employees in Pinson filed a class action against their employer, alleging breach of contract and unjust enrichment because of the employer's failure to compensate them for earned but unused vacation time. The circuit court granted the employees' motion for class certification. The certification order defined the class and stated, "Plaintiffs have satisfied all elements of Rule 23 of the Arkansas Rules of Civil Procedure and class certification is appropriate in this case." Id. at 7, 530 S.W.3d at 859. On appeal, we explained that the circuit court's failure to define the class claims, issues, or defenses and failure to provide any analysis of the six Rule 23 factors prevented a meaningful review. Id. at 7-11, 530 S.W.3d at 859-61 ; see id. at 10-11, 530 S.W.3d at 861 (stating that the circuit court's "bare conclusions" were "clearly insufficient"). We therefore remanded the case with instructions to enter an order that complied with Rule 23. Id. at 11, 530 S.W.3d at 861.
The order in the present case is akin to the order in Pinson . Here, the order stated in relevant part, "[T]he court finds that the requirements of Arkansas Rule of Civil Procedure 23 are satisfied and therefore GRANTS the motion for class certification." Like the order in Pinson , the order in the case at bar defined the class, but it failed to define the class claims, issues, or defenses. Further, the order in this case, like the order in Pinson , failed to provide any analysis of the six Rule 23 factors. Therefore, in conformity with Pinson , we remand the case with instructions to enter an order that complies with Rule 23. The circuit court must conduct an analysis to determine whether the Rule 23 requirements have been met, and that analysis must be reflected in the circuit court's order. See Chandler , 353 Ark. at 349, 107 S.W.3d at 162. Further, the order must define the class and class claims, issues, or defenses. Pinson , 2017 Ark. 315, 530 S.W.3d 854 ; Ark. R. Civ. P. 23(b).
Remanded with instructions.
Special Justice John R. Scott joins in this opinion.
Wood and Womack, JJ., concur in part and dissent in part.
Goodson, J., not participating.
Employees must wear street clothes onto the premises, and they are not permitted to wear Koppers-supplied uniforms and equipment outside the plant.
The parties do not explain how they were notified, and no written notification appears in the record.
The proposed order is not in the record.
We note employees' argument that Koppers invited error in this case because it objected to a detailed order and proposed its own "generic order." In any event, the order contains no analysis of the Rule 23 factors, and it does not define the class claims, issues, or defenses. The lack of compliance with Rule 23 prevents this court from conducting a meaningful review of the certification order. See Pinson , 2017 Ark. 315, 530 S.W.3d 854. Therefore, we must remand the case to the circuit court. | [
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IT IS SO ORDERED.
Shreck filed a timely notice of appeal on April 17, 2018.
II. Standard of Review
We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. King v. State , 2018 Ark. App. 605, at 3, --- S.W.3d ----, ----. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id.
III. Discussion
Shreck first asserts to this court that this entire case should be reversed and remanded because the court below erroneously failed or refused to render findings of fact and conclusions of law in compliance with Ark. R. Crim. P. 37.3 in its order denying relief. Rule 37.3(a) provides: "If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the circuit court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." Rule 37.3(c) also provides in relevant part that "[w]hen a petition is filed in the circuit court and the court does not dispose of the petition under subsection (a) hereof, ... [t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto."
Here, without holding an evidentiary hearing, the circuit court entered a one-page order denying relief that is not in compliance with Rule 37.3 or the supreme court's precedent interpreting that rule. The Arkansas Supreme Court has held that the provisions of Rule 37.3 requiring written findings are mandatory. See Collins v. State , 2018 Ark. 115, 542 S.W.3d 864 ;
Douglas v. State , 2018 Ark. 89, 540 S.W.3d 685 ; Turner v. State , 2016 Ark. 96, 486 S.W.3d 757. When a circuit court concludes, without a hearing, that a petitioner is not entitled to postconviction relief from a criminal conviction, Rule 37.3(a) requires the circuit court to make written findings, specifying the parts of the record that form the basis of the circuit court's decision, and if the circuit court fails to make such findings, it is reversible error. Sanders v. State , 352 Ark. 16, 98 S.W.3d 35 (2003). The only exception is if the record on appeal conclusively shows that the petition is without merit. Id. In Wooten v. State , 338 Ark. 691, 1 S.W.3d 8 (1999), our supreme court held:
Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court's decision. If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. In short, while this court has affirmed the denial of Rule 37 petitions notwithstanding the trial court's failure to make written findings as required by Rule 37.3(a), we have done so only where it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted.
Id. at 694-95, 1 S.W.3d at 10 (citations omitted).
We hold that the circuit court committed reversible error because the record does not "conclusively show" that Shreck is not entitled to any relief from his convictions. Shreck raised four primary claims of ineffective assistance of counsel in his Rule 37 petition: (A) a claim that counsel unreasonably failed to object to certain prejudicial evidence that had been stipulated, prior to trial, to be inadmissible; (B) a claim that counsel was ineffective for failing to object to inadmissible testimony and evidence regarding "bondage" sex that Shreck supposedly engaged in with other women; (C) a claim that counsel unreasonably failed to investigate and present a complete defense (specifically, by failing to present proof that Shreck's intent was to meet with "Brooke Stumbaugh" without the children being present; by failing to investigate and present specific testimony to show the jury that Shreck had no intent to engage in any sexual acts with an eight-year-old girl or a ten-year-old boy; and by failing to present proof that Shreck knew that "Brooke Stumbaugh" did not have two children and that he believed he was "chatting" with a woman who had only one boy who was sixteen years old); and (D) a claim that counsel unreasonably failed to investigate and subpoena former officer Jassen Travis to demonstrate that both he and Shannon Cook had been untruthful.
For the circuit court to summarily say that all four of these claims for relief are "conclusory" is wrong as a matter of law and fact. Our review leaves this court with a "definite and firm conviction" that a mistake was committed by the circuit court. In its order, the circuit court offered no opinion or finding regarding whether it is "clear on the face of the circuit court record" that Shreck is entitled to no relief on any of his claims. In Ross v. State , 2017 Ark. App. 234, at 4, 518 S.W.3d 758, 763, we stated:
Rule 37.3(c) provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. See Wooten [supra ]. The circuit court, in its discretion, can deny postconviction relief without a hearing if it concludes that the petitioner is entitled to no relief. Mancia v. State , 2015 Ark. 115, 459 S.W.3d 259. Rule 37.3(a) states that
[i]f the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the circuit court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings.
Without the specific findings, there can be no meaningful review in this court, because this court determines whether the findings are supported by a preponderance of the evidence. Rackley v. State , 2010 Ark. 469, 2010 WL 4922390 (per curiam). We are not required to scour the record in a Rule 37.1 appeal to determine if the petition is wholly without merit when there are no written findings. Id. When a hearing is not held, it is the function of the circuit court to make written findings. Id.
Further, on the merits of Shreck's claims for relief, he argues that this court should also find that the circuit court clearly erred in denying his Rule 37 petition in the absence of an evidentiary hearing. Because we are reversing and remanding, we decline to address Shreck's argument at this time. That said, unless the circuit court is able to issue sufficient written findings to support its denial of relief, it should consider holding an evidentiary hearing before issuing its order.
Reversed and remanded.
Glover and Vaught, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
Appellant Jermaine Bailey pled guilty to one count of second-degree murder and to one count of possession with intent to deliver. He appeals the Jefferson County Circuit Court's allocation of jail-time credit between his second-degree-murder conviction and his conviction for possession of a controlled substance with intent to deliver, claiming that the circuit court improperly applied the credit to his possession conviction instead of his murder conviction. We affirm.
Bailey was arrested on a first-degree-murder charge on July 29, 2015. He was held continuously on this charge from the date of his arrest until December 1, 2015, when he was released on a $ 250,000 bond.
On March 29, 2016, Bailey was arrested on new charges of possession of crack with purpose to deliver and simultaneous possession of drugs and firearms. Two days later, on March 31, the circuit court revoked Bailey's bond on the murder charge.
On April 5, 2018, Bailey entered plea agreements in both cases. In exchange for pleading guilty to second-degree murder and possession with intent to deliver, the State dropped the simultaneous-possession-of-drugs-and-firearms charge, and Bailey received a sentencing recommendation of twelve years on the murder charge and a sentencing recommendation of ten years on the possession charge. Bailey and the State did not enter into any agreement concerning an award of jail-time credit. They both agreed that Bailey was entitled to jail-time credit from July 29 through December 1, 2015, against his 12-year sentence on his murder conviction. They also both agreed that Bailey was entitled to jail-time credit from March 29, 2016, through April 5, 2018. They disagreed, however, as to which sentence of incarceration that portion of jail-time credit should apply.
The State took the position that, with respect to his sentence on the murder conviction, Bailey was entitled to credit for only the 123 days he served in pretrial detention before he was released on bond. He was not entitled to credit for the 736 days he spent in detention after his bond was revoked. The State posited that because Bailey's bond was revoked as a result of his arrest on unrelated charges, that time period should be credited to his subsequent possession conviction, not his murder conviction.
Bailey disagreed. He contended that he was entitled to have not only the 123 days of jail-time credit for detention prior to being released on bond applied to his murder conviction but also the 736 days of jail-time credit for time served after his bond was revoked.
The trial court agreed with the State and entered an order granting Bailey only 123 days of jail-time credit against his twelve-year sentence on his murder conviction and denying Bailey's motion for an additional 736 days of jail-time credit against that conviction. Bailey appeals.
On appeal, Bailey argues that the trial court misapplied Arkansas Code Annotated section 5-4-404 (Repl. 2013). This statute entitled "Credit for time spent in custody" reads as follows:
If a defendant is held in custody for conduct that results in a sentence to imprisonment or confinement as a condition of suspension or probation, the court , the Department of Correction, or the Department of Community Correction shall credit the time spent in custody against the sentence , including time spent in a local jail facility awaiting transfer to the Department of Correction or the Department of Community Correction.
Id. (emphasis added). The statute itself provides only that the defendant is entitled to credit; it does not provide any guidance as to how the jail-time credit should be allocated when it is attributable to multiple convictions. Here, Bailey pled guilty to multiple convictions.
While the statute does not address how jail-time credit should be allocated or attributed between multiple convictions, our supreme court has provided some guidance. It has held that "credit for jail time is appropriate when the pretrial incarceration is due to inability to make bail, but ... not appropriate when the incarceration is due wholly to unrelated charges that are based on conduct other than that for which the defendant is sentenced." Humphrey v. State , 300 Ark. 383, 384, 779 S.W.2d 530, 531 (1989).
On appeal, both parties agree that Bailey is entitled to jail-time credit against his murder sentence for the 123 days from the date of his arrest on this charge to the date he was released on bond. They disagree, however, as to whether Bailey is entitled to credit for the 736 days he spent in detention after his bond was revoked.
Bailey admits that he was arrested and held on unrelated charges beginning March 29, 2016. However, he claims that when his bond was revoked on the murder charge on March 31, he was no longer being held solely on the unrelated charges. Instead, he was being detained on both the murder charge and the new unrelated charges. He contends that as a result, his incarceration was not "due wholly to the unrelated charges." Thus, he is entitled to an additional 736 days of credit against his murder sentence because of his bond revocation.
The State disagrees and argues that the period of incarceration at issue in this appeal began with Bailey's arrest on subsequent unrelated criminal charges; therefore, his period of incarceration should be applied to the subsequent charges.
Interestingly, both parties cite Jones v. State , 301 Ark. 510, 785 S.W.2d 217 (1990), as support for their position. Bailey argues that Jones stands for the proposition that jail-time credit should be applied to the initial charges in multiple-charge convictions-almost a first-in-time, first-in-line argument. We disagree. In Jones , the defendant was continuously in custody on the initial charges except for a brief period of time when the defendant had escaped from custody. The supreme court held that in those circumstances, the jail-time credit should be applied only to the initial charges. Here, however, Bailey had been released on bond on the initial charges and then was rearrested on unrelated charges. Thus, his reincarceration was due, at least initially, to those unrelated charges; therefore, Jones does not particularly support Bailey's argument.
Likewise, the State contends that Jones supports its position, citing it for the proposition that the jail-time credit should be applied to the charges on which the period of continuous custody begins-in this case, the arrest on the unrelated charges leading to the possession conviction. Essentially, the State argues a "but for" analysis: but for Bailey's arrest on the unrelated possession charge, his bond would not have been revoked on the murder charge. While this is a logical argument, it is not exactly what the Jones case holds. Jones simply holds that jail-time credit is attributable to the initial charges when the defendant is continuously in custody and is later charged with unrelated criminal conduct. We do not find Jones supportive of either position for which it was cited.
Here, Bailey brought this appeal arguing that the trial court misapplied Arkansas Code Annotated section 5-4-404. We disagree. This statute does not address how jail-time credit should be allocated or attributed between multiple convictions. Clearly, he was sentenced on multiple convictions. On appeal, he has not offered persuasive authority that the trial court erred in denying his claim for additional jail-time credit of 736 days against his murder conviction. Therefore, we affirm.
Affirmed.
Virden, J., agrees.
Klappenbach, J., concurs.
This charge was formally filed in the Jefferson County Circuit Court under case number 35CR-15-491.
Those charges were filed in the Jefferson County Circuit Court under case number 35CR-16-221.
This 123-day period is from July 29 through December 1, 2015, his pretrial detention prior to being released on bond.
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LARRY D. VAUGHT, Judge
Appellant Larry Buckley appeals the Clark County Circuit Court's order denying his motion for a new trial after the jury awarded appellee Kasey Summerville $36,000 in her personal-injury lawsuit stemming from a car accident involving both parties. We affirm.
On November 2, 2011, at approximately 11:12 a.m., Summerville was driving eastbound on West Pine Street in Arkadelphia, and Buckley, while traveling northbound on a cross street, failed to yield at the stop sign and collided with the passenger side of Summerville's vehicle. The impact of the collision caused Summerville's vehicle to be pushed across the lane of oncoming traffic and off the road. Summerville suffered injuries to her neck, back, shoulder, and hip.
Summerville's primary physician, Dr. Hagood, testified that he treated Summerville for her injuries from the wreck, including neck and low-back pain, and that he prescribed prednisone and pain medication. Specifically, Dr. Hagood treated Summerville for wreck-related symptoms on November 8, 2011, November 22, 2011, and January 20, 2012, but his subsequent records did not indicate whether later treatments were related to the accident. Dr. Hagood testified that he was not qualified to give an opinion as to her condition, permanent impairment, or disability because he had not treated her for over a year before trial. Dr. Hagood stated that while he had not been aware that Summerville was seeing a chiropractor, Dr. Bomar, he respected Dr. Bomar and would have no reason to disagree with Dr. Bomar's opinion. Dr. Hagood testified that Summerville had not sustained a permanent injury as a result of the car accident.
Dr. Bomar testified that in his initial examination of Summerville, he noticed how much pain she had been living with. He diagnosed her with chronic sciatic neuritis. He testified about the mechanics of how the side impact of her severe car crash caused her injuries, and the biomechanics of her physical impairment that had not been previously treated, causing a cycle of pain.
Dr. Bomar displayed x-rays he had taken of Summerville during treatment and explained how they showed a tearing and shearing of the ligaments in Summerville's neck that had led to abnormal slippage of the bones. The x-rays further showed that Summerville's neck was abnormally straight where it should be curved, which is indicative of past trauma. Dr. Bomar testified that the severe side impact Summerville suffered caused the shearing of the ligament due to the inertia of the hit. Dr. Bomar described to the jurors how pain such as Summerville's can come and go. He stated that based on his medical opinion it was more probable than not that Summerville's medical conditions and symptoms were caused by the collision in November 2011. He testified that, in addition to taking x-rays, he had completed orthopedic and neurological tests, palpations, and a motion test on her pelvis and cervical spine. He treated her with cold and hot management, various forms of physical therapy, and spinal manipulation to set the bones. He demonstrated and explained to the jurors that her injury was permanent and would affect how her spinal discs functioned in the future, causing her to lose the cushion and bearing in her discs over time leading to chronic inflammation and chronic-pain syndrome. He said that, due to her injuries, Summerville will have an advanced rate of aged degeneration in the spinal segments in her neck, low back, and pelvis. Dr. Bomar testified that Summerville will also require future medical treatments due to the injuries suffered in the accident.
Summerville testified that before the wreck, she would have the normal aches and pains related to strenuous activity but nothing out of the ordinary. She testified that before the wreck, she did not have pain in her neck or take pain medication consistently. She described how the side impact of the wreck was severe enough to cause her vehicle to be pushed across a lane of traffic and into a vacant lot. She testified that, after the wreck, she had started taking over-the-counter pain medication and prescription pain medication at least a couple of times a week to help with her consistent pain. After experiencing little improvement from the treatment prescribed by Dr. Hagood, Summerville began seeing Dr. Bomar. She testified that she still takes pain medications and can no longer stand for periods longer than thirty minutes, walk for more than a mile, wear high-heeled shoes, sit for long periods of time, participate in group-exercise classes, or drive long distances without having to stop often.
Summerville's husband of thirty years testified that before the accident she had been in good health but that after the accident she started having problems traveling, quit walking with him, quit exercising, and stopped being able to pick up children.
Summerville's counsel requested that the court take judicial notice of a statutorily created mortality table so that he could use it in his closing statement. Defense counsel objected and was overruled by the circuit court, which took judicial notice of the table. Summerville's counsel closed his case-in-chief without introducing the mortality table, based on the mistaken belief that it had been introduced into evidence when the court took judicial notice of it. The court asked the attorneys to approach the bench and questioned Summerville's counsel as to when he expected to enter the mortality table as previously discussed. The court recognized that there had been a misunderstanding and stated that the table had not been entered into evidence. Summerville's counsel then requested that he be allowed to reopen his case-in-chief in order to enter the mortality table. The court allowed the introduction of the mortality table, and the trial proceeded. Summerville then rested, and Buckley moved for directed verdict, which was denied. The defense did not present any additional testimony or evidence. The court then held a second jury-instruction conference, at which the defense renewed a previous objection to the giving of AMI Civil 2219 regarding the mortality table. The court overruled the objection.
In his closing argument, Summerville's counsel argued that, based on the mortality table, Summerville could expect to live another thirty-two years. He then argued that Summerville should be awarded $4,000 per year from the date of the accident until the trial (for a total of $20,000) and $1,000 per year for the remaining thirty-two years of her life, for a total award of $52,000. The jury found in favor of Summerville and awarded her $36,000. Buckley moved for a new trial, arguing that the court's sua sponte decision to reopen Summerville's case and allow her to introduce the mortality table was an irregularity in the proceedings and an error of law that prevented him from receiving a fair trial and that the jury award was excessive. The court denied the motion for new trial, and this appeal follows.
A motion for new trial is addressed to the sound discretion of the trial court, and the trial court's refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. Sharp Co. v. Ne. Ark. Planning & Consulting Co. , 269 Ark. 336, 602 S.W.2d 627 (1980). An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Ford Motor Co. v. Nuckolls , 320 Ark. 15, 894 S.W.2d 897 (1995) ; Nazarenko v. CTI Trucking Co. , 313 Ark. 570, 856 S.W.2d 869 (1993). When a motion for a new trial is made on the ground that the verdict is clearly contrary to the preponderance of the evidence, we will likewise affirm the denial of the motion if the jury's verdict is supported by substantial evidence. Barringer v. Hall , 89 Ark. App. 293, 300, 202 S.W.3d 568, 573 (2005).
When an award of damages is alleged to be excessive, we review the proof and all reasonable inferences therefrom in the light most favorable to the appellee and determine whether the verdict is so great as to shock the conscience of the court or demonstrates passion or prejudice on the part of the jury. Vaccaro Lumber v. Fesperman , 100 Ark. App. 267, 269, 267 S.W.3d 619, 621 (2007). Remittitur is appropriate when the compensatory damages awarded are excessive and cannot be sustained by the evidence. Id. at 269, 267 S.W.3d at 621. The standard of review in such a case is whether there is substantial evidence to support the verdict. Id. , 267 S.W.3d at 621. We will review a trial court's denial of a motion for new trial or order of remittitur based on excessive damages for abuse of discretion. Id. , 267 S.W.3d at 621.
Buckley's first point on appeal alleges that the court created an irregularity in the proceedings that prevented him from having a fair trial when it sua sponte convened a bench conference to alert Summerville's counsel to the fact that the mortality table had not been entered into evidence and then allowed Summerville to reopen her case and introduce the mortality table. While the procedure was unusual, we disagree that it created reversible error. We have previously held that "[a] court should not reopen a case except for good reason and on proper showing." Gilbow v. Crawford , 2015 Ark. App. 194, at 6, 458 S.W.3d 750, 754. We have also explained that the decision whether to reopen the record lies within the trial court's discretion and that the court should reopen evidence when it would serve the interests of justice and cause no undue disruption of the proceedings or unfairness to the party not seeking to have it reopened. Sugarloaf Dev. Co., Inc. v. Heber Springs Sewer Improvement Dist. , 34 Ark. App. 28, 805 S.W.2d 88 (1991). Generally, we will not reverse the trial court's decision to admit or refuse evidence in the absence of an abuse of that discretion and a showing of prejudice. Mason v. Mason , 319 Ark. 722, 895 S.W.2d 513 (1995) ; Acker Constr., LLC v. Tran , 2012 Ark. App. 214, 396 S.W.3d 279 ; Simpson v. Braden , 2011 Ark. App. 250, 2011 WL 1166848.
Here, counsel had already requested and been granted judicial notice of the mortality table for the express purpose of using it in his closing argument. The court's act of clarifying (outside the hearing of the jury) that the table had not yet been introduced into evidence and then allowing counsel to reopen his case in order to do so did not have any practical effect on how it was ultimately used. Summerville's counsel was initially mistaken as to the meaning and effect of having the court take judicial notice of the table, and the sua sponte bench conference simply corrected that misunderstanding and allowed the trial to proceed as originally intended.
Buckley also argues that the court's actions prejudiced him by influencing the jury through the appearance of partiality toward Summerville's case. We disagree. It seems highly unlikely that any juror who simply saw Summerville rest and then, following a bench conference, reopen its case and introduce the mortality table, would have the impression that the court had intentionally favored or advantaged Summerville.
Buckley next argues that there was insufficient evidence of permanent injury to (1) support introduction of the mortality table and corresponding jury instruction and (2) support the jury's verdict. Both arguments hinge on whether Summerville provided sufficient evidence of a permanent injury. Our supreme court has previously held that, in order to admit a mortality table, there must be sufficient evidence of either future medical treatment or permanent injury. Holland v. Ratliff , 238 Ark. 819, 822, 384 S.W.2d 950, 952 (1964). Here, Summerville did not seek compensation for past or future medical expenses, but she did present evidence that she suffered a permanent injury. Buckley's challenge is to the sufficiency of that evidence. Dr. Bomar testified at length about the nature, extent, and symptoms of Summerville's injuries. He specifically testified that, based on his medical opinion, it was more probable than not that Summerville's injuries had been caused by the collision. Most importantly, he testified that her injury was permanent and would affect how her spinal discs functioned in the future, would cause her an advanced rate of age-related degeneration, would continue to cause her pain, and would require future medical treatment. Summerville and her husband testified about the extent to which the injury has interfered with her life. This case is similar to Holland , 238 Ark. at 822, 384 S.W.2d at 952, in which the Arkansas Supreme Court found a doctor's testimony was sufficient to support a finding of permanent injury. We affirm as to the sufficiency of the evidence supporting Summerville's claim of permanent injury.
Buckley's final point on appeal is a challenge to the amount of the jury's verdict. Buckley argues that the $36,000 verdict was excessive. Where an award of damages is alleged to be excessive, we review the proof and all reasonable inferences most favorably to the appellee and determine whether the verdict is so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the trier of fact. See Houston v. Knoedl , 329 Ark. 91, 947 S.W.2d 745 (1997). "In determining whether the amount was so great as to shock the conscience, we consider such elements of damage as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish." Bill Davis Trucking, Inc. v. Prysock , 301 Ark. 387, 391, 784 S.W.2d 755, 757 (1990). Buckley argues that these factors weigh in favor of remittitur because (1) Summerville did not introduce any evidence of past and future medical expenses and (2) there was insufficient evidence of permanent injury. However, Buckley provides no citation or legal authority for his contention that all factors must be met, and as discussed above, we hold that there was sufficient evidence of permanent injury. Summerville also provided testimony about her pain and suffering, which was corroborated by Dr. Bomar and Summerville's husband. Juries have wide discretion in awarding damages in personal injury cases. Morrison v. Lowe , 274 Ark. 358, 625 S.W.2d 452 (1981). The jury's award does not shock the conscience of the court, and we affirm.
Affirmed.
Abramson and Hixson, JJ., agree. | [
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DAVID M. GLOVER, Judge
The Pope County Circuit Court granted summary judgment to appellee MS Wholesale Plumbing, Inc., on behalf of itself and persons similarly situated (MS Wholesale) against appellants Gen-Kal Pipe & Steel Corporation (Gen-Kal) and Eugene Kalsky (Kalsky), jointly and severally, for $ 12,500,000. On appeal, Gen-Kal and Kalsky argue the summary judgment must be reversed as to both of them. Gen-Kal argues (1) Gen-Kal's answer was a nullity, and the circuit court lacked jurisdiction to enter summary judgment against it; (2) as a defaulting defendant, Gen-Kal was not a "party" for requests for admissions; (3) without requests for admissions, there was no evidence in the record to support the $ 12,500,000 in damages; and (4) the circuit court abused its discretion by considering the motion to set aside the judgment under the wrong standard. Kalsky argues (1) his correspondence was not an answer; therefore, he was not subject to summary judgment; (2) his only liability was derivative of Gen-Kal, and if the judgment against it is reversed, then judgment against him must also be reversed; (3) there is no finding to support piercing the corporate veil; and (4) the circuit court abused its discretion by considering the motion to set aside the judgment under the wrong standard. We affirm the circuit court's decision in all respects.
In October 2015, MS Wholesale filed a class-action complaint against Gen-Kal and Kalsky alleging both had violated the Telephone Consumer Protection Act (TCPA) of 1991, 47 U.S.C.A.§ 227 (West 2018), by sending a wholly unsolicited facsimile offering steel pipe for sale without the required "Opt-Out Notice" (language stating that the sender's failure to comply within thirty days to a request to stop sending such faxes is unlawful, in violation of 47 U.S.C. § 227 and 47 C.F.R. § 64.1200 ). MS Wholesale prayed that the circuit court enter an order certifying the class-action claims and for judgment in favor of MS Wholesale and the proposed class in the amount of $ 500 for each fax transmission in violation of the TCPA; it requested treble damages for each fax transmission on a finding Gen-Kal and Kalsky had willfully and knowingly violated the TCPA; it sought a jury trial; and it asked for such other relief as was just and equitable under the circumstances. A copy of the fax-transmission document at issue was attached to the complaint.
Timely service of the summons and complaint was obtained on both Gen-Kal and Kalsky. On December 31, 2015, Kalsky sent the following correspondence, on Gen-Kal's letterhead, to both MS Wholesale's counsel and the deputy circuit clerk of Pope County:
Case NO. 58CV-2015-440 MS Wholesale Plumbing vs. Gen-Kal Pipe & Steel Corporation
In response:
1. We take the fax laws seriously in my office.
2. Please see the attached fax consent form. It was faxed to MS Wholesale Plumbing in June 2005. As usual, a lot of companies do not respond to the initial fax. We then follow up with a phone call. That follow up phone call was done 6/28/2005 at which time Bill Srygley gave his verbal permission for us to send the faxes. Please note that the date at the top of the page is printed by the fax machine.
3. If the faxes were so bothersome, why didn't they simply place a phone call to us (toll free number is in the header line of our faxes) and ask to be removed? We also provide a disclaimer at the bottom which gives them the opportunity to opt out.
4. What we are faxing are not junk faxes. We do, in fact, sell a product that plumbing supply companies do use. I would go further on to say that this is why we were given the ok to fax. It sure makes sense.
5. I would like to bill MS Wholesale Plumbing the amount of $ 1000.00 for the time expended on this attempt to extort money from me. This complaint is ridiculous.
6. I respectfully request that this claim against me be dismissed.
Thank you, sincerely,
Eugene Kalsky
In March 2016, MS Wholesale filed a memorandum of law in support of its motion for class certification; an order was entered setting a hearing on that motion.
No response was filed by Gen-Kal or Kalsky, and the circuit court entered an order granting the motion for class certification pursuant to Rule 23 of the Arkansas Rules of Civil Procedure and appointing MS Wholesale as the class representative. A motion to approve the class notice was then filed. Again, no response was filed, and in September 2016 the circuit court entered an order approving the notice. A motion to approve an amended class notice was filed, and the circuit court entered an order granting that request; the notice was published in the December 2016 edition of Supply House Times.
On November 14, 2016, MS Wholesale filed its first set of requests for admission on Gen-Kal and on Kalsky. The requests for admission for both Gen-Kal and Kalsky were identical, posing three requests for admission:
1. Please admit that you sent the fax attached as Exhibit "A" to the Complaint in this matter.
2. Please admit that the fax attached as Exhibit "A" to the Complaint in this matter does not contain the TCPA opt-out disclosures required by law and identified in the Complaint.
3. Please admit that you sent a minimum of 25,000 faxes since October 15, 2011, which do not contain the required TCPA opt-out disclosures required by law and identified in the Complaint.
On February 3, 2017, MS Wholesale filed a motion for summary judgment against Gen-Kal and Kalsky, contending the requests for admission had been deemed admitted pursuant to Arkansas Rule of Civil Procedure 36(a) and had not been disputed in Kalsky's December 31, 2015 letter. MS Wholesale alleged the class was entitled to judgment against both Gen-Kal and Kalsky in the amount of $ 12,500,000, as it was undisputed there were a minimum of 25,000 faxes sent by Gen-Kal and Kalsky in direct violation of the TCPA requirements, and the minimum statutory penalty for every noncompliant fax is $ 500. No response was filed by Gen-Kal or Kalsky to the motion for summary judgment, and neither appeared. On March 17, 2017, an order granting summary judgment was entered, in which the circuit court found:
1. Plaintiffs' Motion for Summary Judgment is hereby granted as the uncontested allegations in the Complaint, as well as the admissions of record filed with the Court, satisfy the elements of Plaintiffs' claims of liability as a matter of law under the TCPA. The Court similarly finds that there is no disputed issue of material fact as to the amount of the statutory penalties called for by the TCPA. Accordingly, summary judgment is entered against the Defendants in this matter Gen-Kal Pipe & Steel Corp. and Eugene Kalsky, jointly and severally in the amount of $ 12,500,000. Further, the Court finds that should any or all of this judgment be collected by the Class Representative and Class Counsel, Class Counsel shall forthwith file a proposal distribution plan for such funds to be distributed to the Class. In the event of such recovery, Plaintiffs' counsel are also directed to file an application for attorney's fees and costs to be deducted from the recovery pursuant to the common benefit fund doctrine. A corresponding Final Judgment will issue.
On the same day, March 17, 2017, a final judgment was entered granting summary judgment and judgment against Gen-Kal and Kalsky jointly and severally for $ 12,500,000, with postjudgment interest to accrue at the rate of ten percent per annum.
In July 2017, Gen-Kal and Kalsky filed a motion to set aside the summary judgment and final judgment. They argued the grant of summary judgment and the $ 12,500,000 judgment constituted a severe miscarriage of justice that should be set aside pursuant to Rules 55 and 60 of the Arkansas Rules of Civil Procedure. Gen-Kal and Kalsky contended that because an answer was never filed, default judgment should have been entered, which should now be set aside pursuant to Rule 55(c) of the Arkansas Rules of Civil Procedure due to procedural and evidentiary reasons. Both of them further argued that even if they had answered the complaint and summary judgment was procedurally appropriate, MS Wholesale had failed to establish a factual basis for judgment because the requests for admission were deficient and failed to establish the necessary elements of a claim under the TCPA. They also alleged the judgment should be set aside pursuant to Rule 60 of the Arkansas Rules of Civil Procedure because they did not discover the judgment against them until more than ninety days after it had been entered and were therefore unable to assert their numerous valid defenses. Kalsky filed a supporting affidavit stating that he is the president of Gen-Kal, a New Jersey corporation; that he wrote the December 31, 2015 letter after receiving a copy of the class-action complaint; that he did not intend for his letter to serve as an answer to the complaint for either himself or Gen-Kal but rather to provide evidence that the fax at issue was sent with MS Wholesale's permission, which permission from June 2005 has not been withdrawn; that he did not send, direct the sending of, or create the fax at issue in the case; and that he did not discover the judgment entered jointly against him and Gen-Kal until more than ninety days after it was entered.
MS Wholesale responded to Gen-Kal and Kalsky's motion to set aside the judgment, arguing the motion was procedurally barred by Rule 60(c)(1) of the Arkansas Rules of Civil Procedure, as the final order of summary judgment was entered on March 17, 2017, was not appealed, and there were no grounds to set it aside after ninety days. MS Wholesale contended that not only did Gen-Kal and Kalsky have actual notice of the case, there was a specific finding in the order granting summary judgment that they were given actual notice of the hearing and declined to appear. In support, MS Wholesale provided the certified mail receipt that indicated Gen-Kal and Kalsky had received the final judgment on June 12, 2017, eighty-seven days after entry of the judgment. MS Wholesale finally argued that because the case was resolved on summary judgment, Rule 55 of the Arkansas Rules of Civil Procedure was inapplicable.
On September 22, 2017, a hearing was held on the motion to set aside judgment. Gen-Kal and Kalsky appeared by counsel and argued the judgment should be set aside pursuant to Rule 60. They contended summary judgment was inappropriate based on the pleadings before the court, and Kalsky's letter should not have been deemed to be an answer. Regarding the requests for admission, they argued they were not specific enough to grant summary judgment for $ 12,500,000, namely, because it was not established whether the faxes were unsolicited, a requirement to prove a violation of the TCPA. As to Gen-Kal, they argued Kalsky's letter could not be considered an answer as a matter of law because Gen-Kal is a corporation and cannot be represented by a nonlawyer, and there must be an answer to proceed to summary judgment. Addressing the class, they argued the class was not objectively ascertainable. They also asserted they had a meritorious defense.
In response, MS Wholesale pointed out that when the motion to set aside the judgment was originally filed, Kalsky's argument was that he did not learn about the judgment until more than ninety days after it was entered, but that argument was untrue and had to be abandoned. MS Wholesale argued that Gen-Kal and Kalsky asserted fraud had been perpetrated on the court; however, Gen-Kal was, in actuality, making a sufficiency argument, which had not been raised in a timely appeal from the grant of summary judgment. Regarding the issue of whether Kalsky's letter was an answer, MS Wholesale argued they "missed the big picture" because they had never argued the corporation was not properly served; that once a party is properly served, discovery can be served regardless of whether an answer or other pleading is filed; that requests for admission can be utilized even if a party does not file an answer; and that the requests for admission will still be deemed admitted if they are unanswered, specifically here, regardless of whether Gen-Kal filed an answer. MS Wholesale also pointed out that the issue of class certification was immediately appealable but that the order had not been appealed. Finally, it asserted Gen-Kal and Kalsky did not have a meritorious defense.
After the hearing, the circuit court entered an order on the same day, September 22, 2017, taking the matter under advisement. This order allowed Gen-Kal and Kalsky to post a commercial bond of $ 250,000 should they wish to stay execution of the judgment. On October 19, 2017, the circuit court entered an order denying the motion to set aside the summary judgment, finding both parties filed an answer to the complaint on or about December 31, 2015, and both were therefore aware of the matter pending against them, the allegations being made, and the relief being requested. In its order, the circuit court set out the history of the case: Gen-Kal and Kalsky failed to respond to the motion for class certification; they did not respond to the motion for summary judgment or appear at the hearing on that motion; the summary-judgment motion was granted; they had knowledge of the summary judgment prior to ninety days after the filing of the judgment; their motion to set aside judgment was filed 119 days after summary judgment was filed; and they failed to show summary judgment was obtained by fraud or that any other ground for setting aside a nondefault judgment after ninety days under Rule 60 was present. On November 16, 2017, Gen-Kal and Kalsky filed a notice of appeal.
Is a Valid Answer Necessary to Vest Subject-Matter Jurisdiction to Enter Summary Judgment?
Gen-Kal and Kalsky contend Kalsky's letter could not serve as an answer for Gen-Kal because Kalsky is not an Arkansas attorney, making the answer a nullity as to Gen-Kal, thereby denying the circuit court jurisdiction over Gen-Kal sufficient to enter summary judgment against it. MS Wholesale insists this argument is legally incorrect, asserting that the filing of a valid answer has nothing to do with jurisdiction and that a valid answer is not necessary to vest subject-matter jurisdiction to enter summary judgment. MS Wholesale is correct.
A case is commenced by filing a valid complaint with the clerk of the court. Ark. R. Civ. P. 3(a). The commencement date is contingent on the timely service of the summons and complaint on the defendant. Forrest City Mach. Works, Inc. v. Lyons , 315 Ark. 173, 866 S.W.2d 372 (1993). Service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co. , 353 Ark. 701, 120 S.W.3d 525 (2003). First, neither Gen-Kal nor Kalsky argue they were not properly served. Likewise, they do not argue the issues set forth in the complaint were not within the circuit court's power to adjudicate. Importantly, "A party seeking to recover upon a claim ... may, after the expiration of 20 days from the commencement of the action ... move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof." Ark. R. Civ. P. 56(a). Rule 56 does not require that an answer be filed prior to summary judgment is sought. Additionally, subsection (c)(2) provides, "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion." The pleadings, orders, and requests for admission were all served on both defendants in compliance with Arkansas Rule of Civil Procedure 5(a).
Our court's decision in Phillips v. DeLage Landen Financial Services , 2019 Ark. App. 44, 571 S.W.3d 512, supports both MS Wholesale's position on this point and our decision. Phillips did not file a response to DeLage's complaint and did not respond to requests for admission. DeLage filed a motion for summary judgment; Phillips was served with that motion and did not respond; and summary judgment was granted. Phillips filed motions to set aside the judgment under Rule 55 and under Rule 60 ; the circuit court, specifying its order was for summary judgment, denied Phillips's motion to set aside the judgment, holding Phillips should have contested the claims against him by responding to the complaint, which he failed to do. In affirming the circuit court's decision, our court held that because Phillips failed to timely respond to the requests for admission, he admitted all the allegations, there was no material question of fact remaining, and summary judgment was proper as a matter of law.
Gen-Kal and Kalsky likewise failed to timely respond to MS Wholesale's requests for admission to each of them, thereby admitting the following: they sent the one fax at issue; the fax did not contain the TCPA opt-out disclosures required by law and identified in the complaint; and a minimum of 25,000 other noncompliant faxes had also been sent since October 15, 2011. The $ 12,500,000 judgment was, therefore, determined as follows: $ 500 (minimum fine for each fax transmission) multiplied by 25,000 (noncompliant faxes sent). Gen-Kal and Kalsky failed to meet proof with proof; accordingly, no material question of fact remained, summary judgment was proper, and the circuit court had subject-matter jurisdiction to enter the summary judgment. Due to our disposition on this issue, it is unnecessary to address whether Kalsky's letter was an answer or if MS Wholesale pierced the corporate veil, both of which were addressed in appellants' brief and at oral argument.
Rule 55 versus Rule 60
Gen-Kal and Kalsky argue on appeal the circuit court abused its discretion in considering the motion to set aside the judgment under the more stringent Rule 60 standard instead of the more liberal Rule 55(c) standard. At the hearing to set aside the summary judgment, Gen-Kal and Kalsky directed the circuit court to consider only Rule 60 and argued the judgment be set aside pursuant to that rule. They made no argument the judgment should be set aside under Rule 55(c). These facts were confirmed upon inquiry during oral argument before our court. Responsively, MS Wholesale, too, confirms the circuit court analyzed the motion to set aside the judgment under the very rule argued by Gen-Kal and Kalsky- Rule 60. Gen-Kal and Kalsky cannot now change their argument and contend the motion should have been set aside under Rule 55(c). Our appellate courts will not consider arguments made for the first time on appeal; parties are bound by the scope and nature of the arguments made to the circuit court. Brown v. Lee , 2012 Ark. 417, 424 S.W.3d 817.
Affirmed.
Gladwin and Vaught, JJ., agree.
MS Wholesale previously propounded interrogatories and requests for production of documents to Gen-Kal in March 2016, to no avail.
Gen-Kal filed a motion on November 15, 2017, stating it had filed for Chapter 11 bankruptcy on October 24, 2017, and arguing that pursuant to the automatic stay, no further action should be taken against it until further notice. An order dismissing the bankruptcy case was filed on January 2, 2018. | [
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BART F. VIRDEN, Judge
In this termination-of-parental-rights case, both parents, appellants Nathan Arnold and Jessica Davis, separately appeal the Crawford County Circuit Court's order terminating their parental rights to NA (04/10/09) and ZA (03/02/12). The parents challenge both the statutory grounds for termination and the circuit court's best-interest determination. We affirm.
I. Relevant Facts
On May 22, 2017, the Arkansas Department of Human Services (the "Department") filed a petition for emergency custody and dependency-neglect contending that the removal of ZA and NA from their parents' custody was necessary to protect their health, safety, and welfare. Nathan was named as the putative father. In the affidavit attached to the petition, the Department asserted that on May 12, a family-service worker went to Nathan and Jessica's home and found severe environmental neglect. The family-service worker saw wet and dry trash throughout the house, piles of clothes, standing water in the bathroom sink, pet feces and urine, old food in the refrigerator and on the countertops, cigarette butts and ashes, and the home smelled strongly of pet feces. Both parents were drug tested and were positive for THC, barbiturates, opioids, benzodiazepine, and Oxycontin, and they could not provide prescriptions for any drugs. On May 15, the Department returned to reassess the situation. There was little improvement, and the family-service worker helped the parents remove some of the clutter, including a mattress and a couch soaked in urine. On May 18, a family-service worker returned to the home and saw that the condition was unchanged. The parents tested positive for the same drugs as before. ZA and NA were removed from Nathan and Jessica's custody, and the Department placed a seventy-two-hour emergency hold on the children.
The circuit court entered an ex parte order for emergency custody on May 22, 2017. On May 30, the court entered a probable-cause and paternity order placing ZA and NA in the Department's custody. The circuit court found that emergency conditions necessitated the removal of the children from the parents' custody, and it was contrary to their welfare to be returned home. The court declared Nathan to be the legal father. An amended petition for emergency custody and dependency-neglect was entered on July 5 identifying Nathan as the biological father of the children.
On July 6, the circuit court entered an adjudication order in which it found that the allegations in the petition were true and that the parties had stipulated to dependency-neglect because of parental unfitness. The court found that Nathan, a noncustodial parent, contributed to the dependency-neglect of the children because he lived in the home and failed to address the environmental neglect. The parents were ordered to obey the orders of the court and comply with the case plan. Specifically, the circuit court ordered them to submit to drug-and-alcohol assessment and follow all recommendations, obtain appropriate housing, maintain contact with the Department and disclose all contact information, exercise visitation, and display proper parenting. The parents were ordered to pay child support.
On October 5, 2017, the circuit court entered a review order in which it found that safety concerns prevented both trial placement with the parents and return of the children to their custody. The circuit court found that Nathan and Jessica were unwilling or unable to meet the children's needs as evidenced by the continued environmental issues and drug use. The circuit court found the Department had made reasonable efforts to provide homemaking services, family-service-worker contact, transportation, assistance with Medicaid, psychological evaluations, counseling, parenting classes, and drug screening. The circuit court found that Jessica had minimally complied with the case plan. Jessica was unemployed, continued to use drugs, failed to complete either a drug assessment or a psychological evaluation, failed to attend counseling, intermittently visited with the children and displayed inappropriate parenting techniques during visits, and she had not maintained contact with the Department or cooperated with the Department until recently. Nathan, who at the time of the order was at an inpatient mental-health facility, was also found to have minimally complied with the case plan. The court found that Nathan was unemployed, continued to use drugs, failed to complete a drug assessment or a psychological evaluation, intermittently visited the children and displayed inappropriate parenting techniques, and had not maintained contact with the Department or cooperated with the Department; also, "due to an incident during transport to a visitation, the Department is no longer able to transport the father to visitation, but continues to offer transportation assistance in the form of gas cards." The court found that the home was still filthy and that the parents had not participated in services or made progress toward reunification. The court noted that both parents had scheduled drug-and-alcohol assessments and psychological evaluations. The court found that "the parents need all their financial resources to achieve or maintain reunification" and that the Department was permitted to petition the court to require payment for the parents' failure to keep scheduled appointments.
On January 18, 2017, the circuit court entered a review order in which it found that the parents were still abusing drugs, they had minimally complied with the case plan, and the condition of the home was unchanged. The court found that the Department had complied with the case plan and orders of the court by providing homemaking services, family-service-worker contact, transportation, counseling, parenting classes, and drug screening. The court noted that Nathan was receiving inpatient care at a mental-health facility. The parents were ordered to comply with the case plan.
On April 19, 2018, following a hearing, the circuit court entered a permanency-planning order changing the goal of the case to adoption. The court determined that Jessica had not obtained appropriate housing, was unemployed, had not completed a psychological evaluation, had not obtained photo identification, had not attended drug treatment and continued to use illegal drugs, and had not cooperated with the Department. The court noted that she had begun attending visitation more regularly. The court found that Nathan had also failed to obtain employment or housing, failed to complete his psychological evaluation, possessed illegal substances, and had not cooperated with the Department. The court noted that Nathan had been discharged from the mental-health facility for leaving without notification. Nathan had begun visiting the children more regularly.
The Department filed a petition to terminate Nathan and Jessica's parental rights on May 22, 2018. As to both parents, the petition alleged that termination was supported by the following grounds: (1) willful failure to support, Arkansas Code Annotated section 9-27-341(b)(3)(B)(ii)(a ) ; (2) other factors, section 9-27-341(b)(3)(B)(vii)(a) ; (3) aggravated circumstances, section 9-27-341(b)(3)(B)(ix)(a)(3)(A)(B)(i) ; and (4) abandonment, section 9-27-341(b)(3)(B)(iv). Against Nathan, the Department also alleged the noncustodial parent's failure-to-remedy ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(b) . Against Jessica, the Department alleged the failure-to-remedy-ground regarding custodial parents, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) . The Department further alleged that termination of Nathan and Jessica's parental rights was in NA and ZA's best interest.
At the termination hearing on September 6, 2018, family-service worker Greg Steinsiek testified that the children came into the Department's custody on May 22, 2017, due to severe environmental neglect and parental drug use. Steinsiek testified that Jessica currently lived at Gateway treatment facility and Nathan lived at Harbor House, and the children could not live with either parent at these places. Photographs of the home, taken a month and half before the hearing, showed human feces standing inches deep in the bathtub, soiled toilet paper in the bathroom sink, bags of trash piled up in the living room, and animal feces covering the floor. Steinsiek explained that the parents had cut a hole in the bathroom window screen, and they collected the feces from the bathtub into a bucket, then passed the bucket out of the window to the outdoors where they would later bury the feces. The parents did not have running water in the home, and the conditions had not been corrected when Jessica and Nathan entered the treatment facilities. Neither parent had been granted unsupervised visitation during the pendency of the case. He explained that although the parents had recently begun to consistently exercise visitation, there were periods where the parents did not visit the children regularly. The parents had not provided birthday or Christmas gifts for the children, and they had not provided any material support. Steinsiek testified that when he was assigned to the case in June, both parents were in inpatient treatment, and he had not made any referrals. He explained that before his assignment to their case, the parents had been offered the court-ordered Department services including counseling, parenting classes, haul-off services, drug screening, assistance getting into local shelters, and psychological evaluations. Steinsiek stated that Jessica entered inpatient treatment on May 30, and she completed a second round of treatment that had begun on July 19. Jessica entered transitional treatment on August 16. Jessica had completed parenting classes, she was in psychological counseling, she completed drug-and-alcohol assessment and was in treatment, and she had submitted to random drug screening. Steinsiek testified that his main concern for Jessica is that she had not had enough time to appropriately address the issues that had caused removal, and she did not have the ability to take care of the children "on a daily basis." He testified that visitations had gone well, but afterward the children were very emotional and stressed out, though this was getting better with time.
Steinsiek stated that the children are adoptable. Steinsiek testified that the children were in second and fourth grade, had no major health issues, and are relatively young. He explained that because neither Nathan nor Jessica had demonstrated the ability to provide a safe environment and because of the drug-related issues that remained, there was risk of harm in returning NA and ZA to their parents. Steinsiek stated that he was concerned about "the overall fitness of each parent to maintain their relationship and meet the needs of the children."
Dario Mellado testified about the incident with Nathan during transportation from visitation in Little Rock back to Van Buren. During the ride home, Nathan became very emotional and made a statement about "hurting someone in the throat," which alarmed Mellado. That day, Nathan had been in a great deal of pain due to a physical ailment, and he was having bowel or bladder issues. Mellado testified that he pulled the car over to give Nathan a chance to cool off, and Jessica comforted him and provided good support. Mellado stated that until Nathan got some psychological counseling, he did not feel comfortable transporting him again. He stated that visits had gone well and that he had seen "a very positive relationship" between Nathan and the kids.
Jessica testified that she entered Gateway on May 30, 2018, and she would be there another two and a half months. She testified that she did not have housing or a job but that Gateway would help her find employment, and she had applied to several places online. Gateway offered a "phase three" housing arrangement where parents could have their children with them, and she was trying to phase into that. Jessica explained that the children were removed from her custody because of her drug use and because of the environmental conditions of the home. Jessica testified that the last time she used drugs was May 29 and that she had lived in the filthy home until inpatient treatment began. Jessica stated that she used bus passes and got rides from friends but that she was working on getting her license. Jessica explained that she had grown up with an abusive, alcoholic father and with her mother, who had been, and still was, a hoarder. Jessica stated that she began having back problems after a car accident when she was thirteen. Jessica testified that she had experienced a great deal of anxiety growing up, and she had been recently diagnosed with depression.
The circuit court entered the order terminating Nathan and Jessica's parental rights on October 19, 2018. The circuit court found by clear and convincing evidence that each statutory ground alleged by the Department supported termination, and it determined that it was in the children's best interest to terminate parental rights specifically considering the adoptability of the children and the potential harm in returning them to their parents' custody. Both parents timely filed notices of appeal.
II. Standard of Review
We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. 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 (Supp. 2017); Dunn v. Ark. Dep't of Human Servs. , 2016 Ark. App. 34, 480 S.W.3d 186. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Vail v. Ark. Dep't of Human Servs. , 2016 Ark. App. 150, at 10, 486 S.W.3d 229, 234. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006). Credibility determinations are left to the fact-finder, here the circuit court. Schaible v. Ark. Dep't of Human Servs. , 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371.
III. Discussion
A. Statutory Grounds Supporting Termination
Jessica contends that beginning May 30, 2018, she began to participate in services offered by the Department and that the circuit court erroneously ignored her efforts to comply with the case plan. Jessica argues that the instant case is similar to Prows v. Arkansas Department of Human Services , 102 Ark. App. 205, 283 S.W.3d 637 (2008), in which our court held that the circuit court erred as a matter of law by ruling that it was barred from considering Prows's recent mental stability and that section 9-27-341(b)(3)(B)(vii) "contains no such evidentiary bar." Id. In the instant case, the circuit court did not misinterpret the statute as the circuit court did in Prows , and Prows is inapplicable here.
Moreover, Arkansas Code Annotated section 9-27-341(a)(4)(A) expressly provides that a parent's overtures toward complying with the case plan and circuit court orders that occur only after the permanency-planning hearing are insufficient to defeat the termination of parental rights. In the present case, Jessica testified that she used drugs the day before she began treatment, weeks after the permanency-planning hearing. Jessica admitted that she had made little effort to comply with the case plan before the permanency-planning hearing. Although both parents made efforts to rehabilitate themselves after the permanency-planning hearing, their eleventh-hour improvements need not be credited by the circuit court and will not be held to outweigh evidence of prior noncompliance. See Henderson v. Ark. Dep't of Human Servs., 2010 Ark. App. 191, 377 S.W.3d 362 ; Krass v. Ark. Dep't of Human Servs. , 2009 Ark. App. 245, 306 S.W.3d 14.
The circuit court found that the statutory grounds supporting termination as to both Nathan and Jessica are supported by clear and convincing evidence. Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) sets forth the other-subsequent-factors ground for termination-that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the children in the custody of the parent is contrary to their health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the children in the custody of the parent. Failure to comply with court orders is a subsequent factor on which termination may be based. Rivera v. Ark. Dep't of Human Servs. , 2018 Ark. App. 405, at 15, 558 S.W.3d 876, 884. A lack of urgency supports a finding of failure to remedy subsequent factors despite appropriate family services being offered. Ewasiuk v. Ark. Dep't of Human Servs. , 2018 Ark. App. 59, at 18, 540 S.W.3d 318, 327.
Beginning May 22, 2017, the parents were ordered to accomplish certain goals to provide a suitable home for NA and ZA, and both parents failed to remedy the subsequent factors despite appropriate services having been offered. By the time Jessica and Nathan began any semblance of serious effort in this case, NA and ZA had been in custody for twelve months. During those months, neither parent had made significant efforts to comply with the case plan except to inconsistently exercise visitation and to attend staffings and hearings. Jessica contends that it was error for the circuit court to consider the filthy conditions of the home because neither she nor Nathan had lived there since they entered inpatient treatment facilities. We disagree. The court's consideration of the conditions of the home supports its determination that Jessica and Nathan never dealt with the environmental conditions despite a year of Department services. A parent's past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep't of Human Servs. , 2013 Ark. App. 249, at 8, 427 S.W.3d 160, 164.
Because only one statutory ground must be proved to support termination of parental rights, we do not address the other statutory grounds found by the circuit court. Ark. Code Ann. § 9-27-341(b)(3)(B).
B. Best-Interest Determination
In making a "best-interest" determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential harm to the child if custody is returned to a parent. Miller v. Ark. Dep't of Humans Servs. , 2016 Ark. App. 239, 492 S.W.3d 113. The potential-harm analysis is to be conducted in broad terms. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. Credibility determinations are for the circuit court to make, not this court. Bridges v. Ark. Dep't of Human Servs. , 2019 Ark. App. 50, at 8, 571 S.W.3d 506.
When making the decision whether to terminate parental rights, the circuit court has a duty to 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. Black v. Ark. Dep't of Human Servs. , 2018 Ark. App. 518, at 8, 565 S.W.3d 518, 523. Partial or even full completion of the case plan is not determinative of the outcome of the termination proceeding. Wright v. Ark. Dep't of Human Servs. , 83 Ark. App. 1, 115 S.W.3d 332 (2003). What matters is whether completion of the case plan achieved the intended result of making a parent capable of caring for the child; mere compliance with the orders of the court and the Department is not sufficient if the roots of the parent's deficiencies are not remedied. Lee v. Ark. Dep't of Human Servs. , 102 Ark. App. 337, 345-46, 285 S.W.3d 277, 282-83 (2008). 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) (Supp. 20137).
Jessica challenges the adoptability prong of the best-interest finding of the court. She contends that although family-service worker Steinsiek knew the grades NA and ZA were in, he did not know the exact age of the children, showing a lack of familiarity with the proceedings. Jessica also contends that there was no testimony from an adoption specialist that the children had been matched with any families and that the children had displayed troubling behavior at times. Jessica's argument regarding the court's determination that the children are adoptable is unpersuasive. There is no requirement that there must be testimony regarding potential matches for a sibling group. While the likelihood of adoption must be considered by the circuit court, that factor is not required to be established by clear and convincing evidence. Hamman v. Ark. Dep't of Human Servs. , 2014 Ark. App. 295, 435 S.W.3d 495. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Id.
Jessica's assertion that the children's "troubling" behavior is an indication that the court's adoptability determination was erroneous is a request for this court to reweigh the evidence, which we do not do. Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, 489 S.W.3d 186. Moreover, the circuit court's finding is supported by the caseworker's testimony. Steinsiek testified that although the children came into foster care with severe emotional issues, they had made great strides in therapeutic foster care. NA and ZA had not known how to clean themselves when they entered the Department's custody; however, since their removal they had learned how to take care of their personal hygiene. Steinsiek noted that they "blew" their first foster care placement but were doing much better in a therapeutic foster home and were placed together. NA had been aggressive and controlling toward ZA when they first entered the Department's custody, but by the time of the termination hearing, the sibling issues had been reduced to once or twice a week and were more easily resolved.
Both Nathan and Jessica assert that they and the children are bonded to each other and their familial bond requires reversal. In support of their argument, they cite to Strickland v. Arkansas Department of Human Services , 103 Ark. App. 193, 287 S.W.3d 633 (2008), in which this court held that when there are positive, nurturing relationships, the law favors preservation of familial bonds. Strickland is distinguishable from the instant case because unlike the parents here, Strickland maintained appropriate housing, and she had reliable transportation and income. Strickland had also been granted unsupervised visitation during the case. Here, neither parent had ever maintained a home where the children could live, and they had never demonstrated the ability to safely parent the children. Appellate review here is limited to whether the circuit court's best-interest finding was clearly erroneous. Vail v. Ark. Dep't of Human Servs. , 2016 Ark. App. 150, at 13, 486 S.W.3d 229, 236. Both Nathan's and Jessica's drug rehabilitation was still a work in progress at the time of the hearing, and the conditions of the home continued to remain an issue despite the Department's homemaker services.
The same facts that support the subsequent-factor ground support the potential-harm determination. Neither parent ever cleaned the home. Both Nathan and Jessica delayed participation in the case plan such that they were unable to demonstrate sobriety or parenting skills while living outside a treatment facility with two children in their care. Moreover, neither parent would complete the treatment programs in a time that was meaningful to the children. The circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm in determining whether termination of parental rights is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii).
Affirmed.
Murphy and Brown, JJ., agree.
Though Nathan contends that homemaker services were not offered after the removal of the children from the home, the circuit court made repeated findings that the Department had made reasonable efforts to provide family services to Nathan and Jessica. None of these findings were appealed, and Nathan is barred from challenging those prior findings. See Martin v. Ark. Dep't of Human Servs. , 2017 Ark. 115, 515 S.W.3d 599.
Nathan asserts for the first time that Jessica should maintain her parental rights because of her recent progress in complying with the case plan. Nathan does not have standing to present argument regarding Jessica's parental rights, and we do not address his assertion on appeal. See Cole v. Arkansas Dep't of Human Servs., 2018 Ark. App. 121, 543 S.W.3d 540 ; King v. Ark. Dep't of Human Servs. , 2018 Ark. App. 464, 562 S.W.3d 226 (Even in termination of parental rights cases, this court will not address arguments raised for the first time on appeal.) | [
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SHAWN A. WOMACK, Associate Justice
The Arkansas Department of Human Services (DHS) challenges the permanent injunction against its 2015 ARChoices Medicaid waiver rule. While this appeal was pending, the agency promulgated a new rule and the circuit court dissolved the injunction. We accordingly find that the instant case is moot and therefore dismiss the appeal.
I.
A recitation of the factual history underlying this appeal can be found in our first review of the case. See Ark. Dep't of Human Servs. v. Ledgerwood , 2017 Ark. 308, 530 S.W.3d 336 ( Ledgerwood I ). In Ledgerwood I , we upheld the circuit court's temporary restraining order enjoining the 2015 ARChoices Medicaid waiver rule as applied to the named Plaintiff-Appellees. On remand, the circuit court entered a permanent injunction against the program in its entirety. DHS was permanently enjoined from using the methodology embraced by that rule unless or until it was properly promulgated under the Administrative Procedure Act (APA). This appeal followed. But during the course of this appeal, DHS promulgated a new rule. The circuit court found DHS had properly promulgated the rule, which remains in effect today, and dissolved the permanent injunction at issue here.
II.
Before we reach the merits, we must first assess whether the instant appeal is moot given that the permanent injunction has been dissolved. As a general rule, this court will not review issues that are moot. See Terry v. White , 374 Ark. 387, 391, 288 S.W.3d 199, 202 (2008). To do so would be to render advisory opinions, which this court will not do. Id. A case is moot when any judgment rendered would not have any practical legal effect upon a then existing legal controversy. Id. In other words, a moot case presents no justiciable issue for determination by the court. Id.
The permanent injunction at the center of this appeal no longer stands. DHS promulgated a new final rule that has been in effect since October 1, 2018. The circuit court determined that new rule was properly promulgated under the APA and subsequently dissolved the permanent injunction. This occurred during the briefing of this appeal. There is accordingly no live controversy for this court to resolve and the case is undoubtedly moot. But mootness alone does not foreclose our consideration of issues on appeal. We have recognized two exceptions to the mootness doctrine: matters capable of repetition yet evading review and matters of substantial public interest that are likely to be litigated in the future. See Protect Fayetteville v. City of Fayetteville , 2019 Ark. 28, at 3, 566 S.W.3d 105, 108. An issue capable of repetition yet evading review arises when the justiciable controversy will necessarily expire or terminate prior to adjudication. See Wright v. Keffer , 319 Ark. 201, 203, 890 S.W.2d 271, 272 (1995). The other exception applies where considerations of substantial public interest or the prevention of future litigation are present. See Duhon v. Gravett , 302 Ark. 358, 360, 790 S.W.2d 155, 156 (1990). That said, "the choice remains ours as to whether we may elect to settle an issue" that is moot. Id. And we do not improvidently utilize either exception. See Protect Fayetteville , 2019 Ark. 28, at 3, 566 S.W.3d at 108 (collecting cases).
DHS urges that this case falls within both exceptions. It argues that the circuit court's interpretation of "substantial compliance" under the APA presents an issue capable of repetition yet evading review and an issue of substantial public interest. It likewise claims the circuit court's decision that DHS's promulgation of the 2015 rule was an ultra vires act falls under the former exception. We disagree.
At this juncture, we see no reason to determine what threshold is contemplated by "substantial" compliance and whether failure to meet that threshold is an ultra vires act. DHS will only be in this position again if they fail to substantially comply with the APA. Moreover, this case was rendered moot after DHS substantially complied with those requirements during the promulgation of the current rule. It is not impossible for the challenged interpretation of "substantial compliance" and "ultra vires" to reach our court as a live controversy. That it did not do so here is no reason to apply an exception to mootness. And because the determination of "substantial compliance" may turn on facts specific to each case, we do not believe our exercise of the public interest exception to mootness would be prudent based on the circumstances presented here.
Dismissed. | [
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KAREN R. BAKER, Associate Justice
Appellant, Debbie Worsham, returns to this court for a second time, challenging the Franklin County Circuit Court's denial of her motion for attorney's fees and costs. This case has an extensive procedural history. Litigation began in 2012 when Worsham filed suit against the appellees, Roy and Teresa Day, alleging breach of contract related to the sale of a liquor store. In 2015, a jury awarded Worsham damages, and the circuit court granted the Days' motion for new trial. Worsham appealed to the court of appeals, which remanded the matter to the circuit court to settle and supplement the record. Worsham v. Day , 2016 Ark. App. 262, 2016 WL 2858469 (" Worsham I "). In 2017, the appeal returned to the court of appeals and we certified the case to this court. We dismissed Worsham's appeal for lack of appellate jurisdiction and the jury's verdict remained intact. Worsham v. Day , 2017 Ark. 192, 519 S.W.3d 699 ("
Worsham II "). In Worsham II , we recounted the procedural history of this case as follows:
On July 25, 2012, Worsham filed a complaint for breach of contract against the Days.
....
The jury trial was held on March 10 and 11, 2015, and the jury found for Worsham on her claim for breach of contract, awarding her $ 115,000 in damages.
....
On March 23, 2015, the Days filed a motion for JNOV or for a new trial.
....
The circuit court held a hearing on the motion for JNOV or for a new trial on July 14, 2015. The court then entered an order granting the motion on July 21, 2015, finding that the jury verdicts were improper and inconsistent and that they should be set aside in favor of granting a new trial. On August 3, 2015, Worsham filed a motion to reconsider the circuit court's order, which was denied. Worsham then filed a timely notice of appeal and amended notice of appeal from the circuit court's orders granting a new trial and denying her motion to reconsider.
On appeal, the court of appeals remanded this case to settle and supplement the record because there was no written judgment in the record or addendum from the circuit court reflecting the jury's verdicts. Worsham [I ]. Following the court of appeals' opinion, Worsham filed a motion to enter judgment on May 19, 2016. On May 25, 2016, the circuit court entered a "Judgment Upon Jury Verdict," which was consistent with the jury's verdicts. Worsham then filed a supplemental record with the court of appeals containing this judgment, and we accepted certification of this appeal on March 17, 2017.
Upon review, we ultimately dismissed the appeal for lack of appellate jurisdiction and explained:
While the jury-verdict forms were filed, there was no judgment on the jury's verdict entered until May 25, 2016. Arkansas Rule of Civil Procedure 58 (2016) provides that every judgment or decree shall be set forth on a separate document and that a judgment is effective only when entered in accordance with Administrative Order Number 2. Administrative Order Number 2 states that the clerk shall denote the date and time that a judgment is filed by stamping or otherwise marking it with the date and time and the word "filed" and that a judgment is entered when so stamped or marked by the clerk. Ark. Sup. Ct. Admin. Order No. 2 (2016).
Pursuant to Arkansas Rules of Civil Procedure 50(b)(2) and 59(b), the Days' March 23, 2015 motion for JNOV or for a new trial was treated as filed on May 26, 2016, the day after the circuit court entered the judgment. However, there was no order by the circuit court granting this posttrial motion subsequent to the entry of the judgment on May 25, 2016. A circuit court's order granting a new trial is a nullity where a valid judgment has not yet been entered. See , e.g. , State v. Richardson , 2009 Ark. 206, 306 S.W.3d 11 (holding that a motion for new trial was ineffective in the absence of a valid judgment and commitment order, thus depriving the circuit court of any basis in law for granting the motion and rendering its order granting a new trial a nullity). Under Arkansas Rule of Appellate Procedure-Civil 4(b)(1), the Days' posttrial motion was deemed denied thirty days after its May 26, 2016 filing date. Neither party filed a notice of appeal or amended notice of appeal after the judgment was entered, and, accordingly, we have no timely and effective notice of appeal from the disposition of the posttrial motion. Therefore, we must dismiss this appeal, and the jury's verdict stands.
Worsham II , 2017 Ark. 192, at 1-6, 519 S.W.3d at 700-02.
Subsequent to our opinion, we issued the mandate on June 13, 2017. On June 12, 2017, Worsham filed a motion for attorney's fees in the Franklin County Circuit Court. On October 17, 2017, the circuit court conducted a hearing on the attorney's-fees motion and accepted supplemental pleadings from both parties. On October 30, the circuit court denied Worsham's motion for attorney's fees and costs, and on November 20, it denied Worsham's motion for reconsideration.
Worsham has filed a timely notice of appeal and presents two points: (1) the circuit court erred in denying Worsham's motion for attorney's fees and her motion for reconsideration because Worsham is entitled to attorney's fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1999) and (2) the circuit court erred in denying Worsham's motion for attorney's fees because Worsham's motion was timely under Rule 54(e) of the Arkansas Rules of Civil Procedure. We affirm.
We first address Worsham's argument that the circuit court erred in denying her motion for attorney's fees because her motion was timely under Rule 54(e) of the Arkansas Rules of Civil Procedure.
On review, "[o]ur general rule relating to attorney's fees is well established and is that attorney's fees are not allowed except when expressly provided for by statute. Chrisco v. Sun Indus., Inc. , 304 Ark. 227, 800 S.W.2d 717 (1990). An award of attorney's fees will not be set aside absent an abuse of discretion. See Harris v. City of Fort Smith , 366 Ark. 277, 234 S.W.3d 875 (2006)." Hanners v. Giant Oil Co. of Ark. , 373 Ark. 418, 425, 284 S.W.3d 468, 474 (2008). Thus, although we are not bound by the circuit court's interpretation, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id.
Further, with regard to awarding attorney's fees, Rule 54(e) of the Arkansas Rules of Civil Procedure provides in pertinent part:
(e) Attorneys' Fees.
(1) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made.
For purposes of Rule 54(e), we have explained that "[a] final judgment under Ark. R. Civ. P. 54(a) is 'one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy.' Looney v. Looney , 336 Ark. 542, 547-48, 986 S.W.2d 858, 861 (1999) (quoting McGann v. Pine Bluff Police Dep't , 334 Ark. 352, 355, 974 S.W.2d 462, 463 (1998) ); see also Petrus v. Nature Conservancy , 330 Ark. 722, 957 S.W.2d 688 (1997). This court has consistently interpreted Ark. R. Civ. P. 54(e) to be applicable only upon an entry of judgment that finally concludes the controversy for which attorney's fees are sought. See, e.g. , Crawford County v. Jones , 365 Ark. 585, 232 S.W.3d 433 (2006) ; State Auto Prop. & Cas. Ins. Co. v. Swaim , 338 Ark. 49, 991 S.W.2d 555 (1999)" Jones v. Flowers , 373 Ark. 213, 217, 283 S.W.3d 551, 554-55 (2008).
Finally, "we have consistently held that the award of attorney's fees is a collateral matter. Nettleton Sch. Dist. v. Owens , 329 Ark. 367, 948 S.W.2d 94 (1997) ; Marsh & McLennan of Ark. v. Herget , 321 Ark. 180, 900 S.W.2d 195 (1995) ; Pledger v. Bosnick , 306 Ark. 45, 811 S.W.2d 286 (1991)." Harold Ives Trucking Co. v. Pro Transp., Inc. , 341 Ark. 735, 737, 19 S.W.3d 600, 602 (2000) (per curiam). "Matters that are collateral or supplemental to the trial court's judgment are left within the trial court's jurisdiction even though an appeal has been docketed. Alexander v. First Nat'l Bank of Fort Smith , 278 Ark. 406, 646 S.W.2d 684 (1983)." Id. Where an order granting or denying attorney's fees is entered after entry of the judgment, the issue of attorney's fees is a collateral matter. Craig v. Carrigo , 353 Ark. 761, 121 S.W.3d 154 (2003).
With these standards in mind, we turn to the case before us. The crux of the issue before us is the judgment and the date that triggered the fourteen-day period for the motion for attorney's fees to be filed pursuant to Rule 54(e). At issue is the circuit court's October 30, 2017 order denying Worsham's motion for attorney's fees and other relief, which stated in pertinent part:
[Worsham's] motion for attorney's fees is denied.
The court finds that the legal arguments advanced by [the Days] on this issue are well taken and that [Worsham's] request for attorney's fees and other relief is untimely because it did not comply with 54(e) of the Arkansas Rules of Civil Procedure and the May 25, 2016 Judgment of this court was not appealed.
Worsham contends that the circuit court erred because the conclusion of the controversy in this case -which triggered the attorney's fees-did not occur until this court dismissed Worsham's appeal of the new-trial order. Stated differently, "the mandate [entered on June 13, 2017] was the final resolution of the parties' rights that triggered Rule 54(e) and started the clock running on the filing of the fees motion."
Relying on Norman v. Norman , 347 Ark. 682, 66 S.W.3d 635 (2002), Worsham asserts that the mandate that declared the new-trial order a nullity and that the jury verdict in favor of Worsham remained in effect_concluded he r rights to the subject matter in controversy. Therefore, she argues that her_motion for attorney's fees was timely.
We issued three opinions in the Norman series of cases regarding the parties' divorce. First, in Norman v. Norman , 333 Ark. 644, 651-52, 970 S.W.2d 270, 273 (1998) (" Norman I "), overruled on other grounds by Park Apartments at Fayetteville, LP v. Plants , 2018 Ark. 172, 545 S.W.3d 755, we addressed an appeal regarding disqualification of an attorney representing the ex-wife alleging that there was a conflict of interest. We reversed and remanded the matter for a new trial, holding that the attorney was disqualified. Second, in Norman v. Norman , 342 Ark. 493, 494, 30 S.W.3d 83, 84 (2000) (" Norman II "), after disqualification of his ex-wife's attorney, the husband sought recovery of fees and expenses incurred in opposing the attorney's representation of his ex-wife. We explained that "upon this court's remand for a new trial, [the husband] filed a 'motion for judgment for incurred expenses.'
" Id. at 495, 30 S.W.3d at 85. The chancery court denied the motion for costs and fees and the husband appealed. We did not address the merits of the appeal but dismissed the case, holding that the order appealed was not final because the circuit court had not yet acted upon the ex-wife's motion for voluntary dismissal after remand in Norman I . Finally, in Norman III , we affirmed the circuit court's denial of a motion for attorney's fees as untimely under Rule 54(e) because the motion was filed forty-six days after the court's mandate in Norman I , which remanded the matter for a new trial.
Also relative to our discussion is Jones , supra , in which we distinguished Norman I and Norman III and held that pursuant to Rule 54(e), Jones timely sought attorney's fees:
While the mandate in Norman I was a final resolution of the matter that was the subject of the appeal, here, by contrast, the court's mandate issued on September 25, 2006, simply remanded the case for further "proceedings on relief" consistent with the Supreme Court's decision [ Jones v. Flowers , 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) ]. A final judgment triggering Rule 54(e) did not occur until the circuit court issued its order on December 21, 2006, that denied the Commissioner's request to reopen the question of liability, ordered that Jones be given his house back, denied Jones his requested attorney's fees, and ordered the clerk to close the case. Only upon this final resolution of the respective parties' rights was a motion for attorney's fees appropriate.
Jones , 373 Ark. at 218, 283 S.W.3d at 555.
Although Worsham relies on our holding in Norman III because we indicated that it was our prior mandate in that case that had triggered the fourteen-day time period in Rule 54(e), the situation in the present case is different. In Worsham II , we did not reverse the circuit court's judgment and remand for a new trial. Rather, we dismissed the appeal and held that the jury's verdict in favor of Worsham remained in place. Therefore, there was no reversal on appeal with regard to which party prevailed below, as in Norman . Further, our decision in Jones does not support Worsham's argument. In Jones , we remanded the case to the circuit court for further proceedings consistent with the United States Supreme Court's decision, and we held that a final judgment triggering Rule 54(e) did not occur until the circuit court had entered its subsequent order on remand. Id. Here, there was no such order of remand for further proceedings at the circuit court level, and the final judgment for purposes of Rule 54(e) was the May 2016 judgment.
According to the standards discussed above and pursuant to Rule 54(e), Worsham's motion had to be filed and served no later than fourteen days after entry of judgment. On May 25, 2016, the circuit court entered the judgment in this matter. Because neither party appealed the judgment entered on May 25, the May 25 order concluded the rights of the parties to the subject matter at issue. Accordingly, the final judgment that triggered the Rule 54(e) fourteen-day period was entered on May 25, 2016. The record demonstrates that Worsham's motion for attorney's fees was not filed until June 12, 2017, well past the fourteen-day deadline. Based on our discussion above, we agree with the circuit court's determination that the attorney's-fees motion was untimely.
As an alternative argument, Worsham contends that she was not required to file a written motion for attorney's fees because she was entitled to such fees in her breach-of-contract action under Ark. Code Ann. § 16-22-308. She cites State Auto Property & Cas. Ins. Co. v. Swaim , 338 Ark. 49, 991 S.W.2d 555 (1999), in support of this contention. In Swaim , the jury awarded a verdict in favor of the insureds in their breach-of-contract action. Id. The insureds orally requested $ 10,000 in attorney's fees after the verdict, and the circuit court granted their request, including the fee award and the statutory basis for that award in the judgment. Id. On appeal, State Farm argued that the insureds' failure to file a written motion for fees was fatal to their request. Id. We disagreed, noting that Rule 54(e)(2) states that "[u]nless otherwise provided by statute or order of the court ," a motion for attorney's fees must be filed within fourteen days. Id. (emphasis added). Our holding in Swaim did not address the timeliness of attorney's fees under Rule 54(e). Rather, we concluded that an oral motion may be sufficient under the Rule. Here, however, Worsham failed to either orally or in writing request attorney's fees within the necessary time period. Therefore, we do not find merit in Worsham's argument, and we affirm the circuit court's denial of her motion for attorney's fees and costs.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
Justice should always be the polestar for this court's decisions. That is not to say that we should shy away from making the difficult calls when the law and the facts lead inexorably to a particular outcome. However, when two outcomes are well supported by precedent, justice should illuminate the path we choose. In my view, that was not the result in today's majority opinion.
Seven years ago, on May 9, 2012, Ms. Worsham agreed to sell her store to Roy and Teresa Day for $ 225,000. After Ms. Worsham received $ 10,000 in earnest money, Ms. Worsham allowed the Days to take possession of the store on May 31, 2012. The Days changed the name of the business, formed a new corporation to operate it, and applied to transfer the liquor license, which required Ms. Worsham to surrender her license. The Days established new accounts with wholesalers, negotiated a new lease for the building, and obtained a new sales tax permit from the Arkansas Department of Finance and Administration. The Days changed the security codes to the building, which excluded Ms. Worsham. They obtained a new tobacco-sales permit, which required Ms. Worsham to relinquish hers. The Days hired a new employee. Ms. Worsham's final act was to help complete a full inventory, which totaled $ 98,649.27.
However, the Days simply decided to walk away from the deal. In July 2012, the Days told Ms. Worsham that they would not be paying the balance due of $ 215,000. According to Roy Day, he and his wife operated the store for a week and determined that it was not making money. So, they simply shut off the electricity and walked away. Ms. Worsham attempted to negotiate, but to no avail. Even though Ms. Worsham had completely fulfilled all the conditions of the contract, the Days simply left her with her business gone and a store full of spoiled merchandise. Ms. Worsham estimated that she lost $ 36,000 to $ 37,000 in spoiled beer and wine alone. Ms. Worsham did what she had to do--she retained counsel and filed suit on July 25, 2012.
Ms. Worsham did what she had to do to mitigate her damages. She sold the depleted business to a new buyer for $ 100,000. On October 31, 2013, Ms. Worsham amended her complaint to add a count for promissory estoppel. Eventually, Ms. Worsham was forced to take the case to trial. After two days of testimony on March 10 and 11, 2015, a jury found that the Days had breached the contract with Ms. Worsham and awarded her $ 115,000 in damages. The jury also returned a verdict of $ 0 on the alternative theory of promissory estoppel.
The jury expressed confusion over having been instructed on both promissory estoppel and contract. When they sent a question to the judge, Ms. Worsham's trial counsel asked the circuit judge to tell the jury to "pick one or the other." The Days' counsel objected. However, the jury returned a verdict before the question could be answered. The jury found Ms. Worsham's damages to be $ 115,000 on her contract claim and $ 0 on promissory estoppel. Ms. Worsham's trial counsel submitted a proposed judgment, but the circuit court refused to enter it.
After the jury had been discharged, the Days moved for a mistrial due to inconsistency in the verdicts. They subsequently filed a motion on March 23, 2015, seeking, in the alternative, JNOV. The Days based their motion on the theory that the breach-of-contract verdict for $ 115,000 and the promissory-estoppel verdict for $ 0 were "inconsistent verdicts." In opposing the motion, Ms. Worsham argued that there is settled law that a motion seeking a new trial based on inconsistency in the verdicts is untimely if it is raised after the jury is discharged. She cited two cases, LaFont v. Mixon , 2010 Ark. 450, 374 S.W.3d 668, and Advocat Inc. v. Sauer , 353 Ark. 29, 111 S.W.3d 346 (2003), which were directly on point. Nonetheless, the circuit court granted the Days a new trial. Ms. Worsham attempted to appeal.
Despite the requirement in Arkansas Rule of Civil Procedure 58 that "[a] judgment or order is effective only when so set forth and entered as provided in Administrative Order No. 2," the circuit court did not enter the proposed judgment that Ms. Worsham had tendered and asked the court to enter. Instead, the circuit court filed the jury-verdict forms. The circuit court's failure to follow the Arkansas Rules of Civil Procedure caused the court of appeals to remand the case to settle and supplement the record with a proper judgment. Worsham I , 2016 Ark. App. 262.
Acting in accordance with the court of appeals mandate, the circuit court entered a proper judgment on May 25, 2016. The circuit court assumed that the filing would allow the court of appeals to take up Ms. Worsham's appeal. When Ms. Worsham filed the supplemented record, the court of appeals was not sure what the belated filing of the judgment meant with regard to the Days' posttrial motions. Even though the court of appeals is composed of twelve experienced appellate judges, including two that had served on the Arkansas Supreme Court Civil Practice Committee, it found it necessary to certify the case to the supreme court to determine the status of Ms. Worsham's appeal. The court of appeals correctly determined that there was no case law to guide its decision.
Of course, this court came up with an answer, but by no means was it obvious. The plain language of Rule 59(b) of the Arkansas Rules of Civil Procedure suggests that the Days' posttrial motion was timely filed. Rule 59(b) states:
Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
(Emphasis added.) Recall that the circuit court had already granted the Days' new-trial motion. I am mindful that the circuit court repeatedly showed an inability to understand and apply our rules of civil procedure and the cases interpreting them. However, circuit court error, no matter how gross, is not subject to correction by a litigant. In fact, decisions by a circuit court are presumed to be correct. White v. Smith , 63 Ark. 513, 39 S.W. 555 (1897). It was not until this court handed down Worsham v. Day , 2017 Ark. 192, 519 S.W.3d 699 ( Worsham II ), that the case was put on proper procedural footing. In my view, the fact that an appellate court decision was required to put a case on the correct procedural footing draws it within the ambit of this court's decision in Jones v. Flowers , 373 Ark. 213, 283 S.W.3d 551 (2008) ( Flowers III ).
The Flowers case is illustrative. In Jones v. Flowers , 359 Ark. 443, 198 S.W.3d 520 (2004) ( Flowers I ), the Arkansas Supreme Court held that the State's failure to take steps to give proper notice of a tax sale did not violate a property owner's due-process rights under the fourteenth amendment. The Supreme Court of the United States reversed. Jones v. Flowers , 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) ( Flowers II ). Upon remand, appellant Gary K. Jones sought attorney's fees pursuant to 42 U.S.C. § 1988(b) (2000), even though he had never even mentioned section 1983 until after the Supreme Court handed down its decision. In the case before us, Ms. Worsham, as she argued to the circuit court, was not sure of her entitlement to attorney's fees until this court untangled the procedural mess created by the circuit court.
In the case before us, we had the choice of two dispositions. One allows Ms. Worsham to pursue attorney's fees pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999). The other disposition does not. The issue ultimately rested on this court's interpretation of Flowers III and the so-called "Norman cases," The majority's tortured efforts to distinguish the Norman cases relies on willful blindness to the broad holding that when a decision of an appellate court is required to establish the entitlement to attorney's fees, the time for filing a fee petition begins to run only upon entry of the appellate court mandate. Accordingly, Ms. Worsham's fee petition was timely because it occurred one day prior to the filing of the mandate in Worsham II .
That is the disposition that is indicated by justice. The decision in Worsham II was not a simple one. As noted previously, the complexity of the issue perplexed the circuit court and induced our court of appeals to certify the case to the supreme court. Accordingly, the majority's conclusion that Ms. Worsham's attorney should have known when to renew her request for attorney's fees seems disingenuous. If twelve experienced appellate judges on our court of appeals opine that they are ill-equipped to decide the issue, is it fair-and just-to throw a lawyer out of court for not being able to come to the conclusion that this court ultimately rendered?
Likewise, the majority's assertion that the award of attorney's fees is a "collateral matter" is simply a red herring. To be entitled to attorney's fees pursuant to Arkansas Code Annotated section 16-22-308, a litigant must first be the "prevailing party." When the judgment was finally entered in this case, there was also in the record an order from the circuit court granting the Days a new trial. Indeed, the circuit court expressed belief that the appeal was still necessary. Given the virtually unfettered control over the proceedings in circuit courts that this court gives to circuit judges, the fact that the circuit judge thought his new-trial order was still valid cannot be ignored. Until this court's decision in Worsham II , whether Ms. Worsham had actually prevailed was an open question.
The General Assembly has determined that to make whole the prevailing party in a suit on a contract, that party should be allowed to collect his or her attorney's fees. Ark. Code Ann. § 16-22-308. To give her the benefit of her bargain in selling her store, Ms. Worsham was required to expend more than $ 43,000. In my view, it is unjust to relieve the Days of their obligation to pay Ms. Worsham's attorney's fees despite their wrongful conduct in repudiating their contract obligations.
I therefore respectfully dissent. | [
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ROBERT J. GLADWIN, Judge
Appellant Duan Jamal Harris appeals his convictions of attempted rape and second-degree battery, for which he received consecutive sentences totaling 744 months in the Arkansas Department of Correction (ADC). He argues that evidence of swabs contained in a sexual-assault kit were admitted improperly at trial both (1) in violation of the Confrontation Clause and (2) without a proper chain of custody. We affirm.
I. Facts
On January 8, 2018, appellant was charged with rape in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2017) and battery in the second degree in violation of Arkansas Code Annotated section 5-13-202 (Supp. 2017). The State also alleged that appellant was subject to an enhanced punishment pursuant to Arkansas Code Annotated section 5-4-501(c)(2) (Supp. 2017). He was accused of striking Kenneshia Wilson, then choking and attempting to rape her.
At trial, Wilson testified that other than a brief conversation with appellant at the library and seeing him walk down the street, she had no relationship with him. She testified that on October 1, 2016, appellant entered her home and began physically assaulting her, including smashing her head into the refrigerator and repeatedly punching her in the face. Wilson stated that she tried to escape but that appellant prohibited her from leaving, dragging her away from the window by her hair. She testified that he attempted to have sex with her but was unable to obtain an erection. Wilson testified that she received a final blow to her forehead from appellant and lost consciousness.
As part of a sexual-assault kit taken in this case, Amanda Frost took rectal, vaginal, and oral swabs from Wilson. Frost allegedly labeled the swabs and placed them in the sexual-assault kit, and the swabs subsequently were tested by the Arkansas State Crime Lab. Ultimately, the DNA on the rectal swab taken from the victim was matched to appellant within scientific certainty.
The State attempted to introduce the swabs without calling Frost to testify, and appellant objected. Appellant asserted that the swab labels were hearsay and testimonial in nature, which entitled him to confront the witness who had taken and labeled the swabs before they could be admitted into evidence. He also objected on chain-of-custody grounds. The circuit court denied the motion, stating that it would permit testimony on the items in question and that "their admissibility would be determined later." When appellant renewed his motion, the circuit court ruled that the labels were not testimonial in nature and allowed admission of the swabs contained in the sexual-assault kit without testimony from Frost.
The evidence in question was introduced, and the jury found appellant guilty of attempted rape and battery in the second degree. Appellant was sentenced pursuant to a sentencing order filed on January 22, 2018, to fifty years for attempted rape and twelve years for battery in the second degree, all time to be served consecutively, along with fines. He timely filed a notice of appeal on February 12, 2018.
II. Standard of Review
Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on the admissibility of evidence are not reversed on appeal absent an abuse of discretion. Brigance v. State , 2018 Ark. App. 213, 548 S.W.3d 147. A de novo standard of review is applied to questions of constitutional interpretation. Powell v. State , 2016 Ark. App. 116, 550 S.W.3d 872.
III. Discussion
A. Confrontation-Clause Analysis
At trial, appellant objected to the introduction of the swabs and all evidence obtained from them as well as the introduction of a sexual-assault kit that was introduced as having been procured from Wilson. His objection was that the items were not properly authenticated and that they constituted hearsay in violation of the Confrontation Clause.
Frost, an employee at UAMS, purportedly collected and labeled samples for the sexual-assault kit. Neither Frost nor any other witness was called to testify as to when, where, or how the sample swabs were collected. The circuit court allowed the introduction of the swabs and evidence obtained from the swabs, ruling that the labels "vaginal, cervical and oral" were not testimonial in nature. The circuit court further refused to allow the swabs to be relabeled with separate labels that were not prejudicial to appellant.
Appellant notes that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Pointer v. Texas , 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Sixth Amendment to the United States Constitution was made applicable to the states via the Fourteenth Amendment. Id. The United States Supreme Court held that the Confrontation Clause guarantees a defendant's right to confront those who bear testimony against him. See Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, in the case of an unavailable witness, the defendant had a prior opportunity for cross-examination. Id. at 54, 124 S.Ct. 1354. Types of testimonial statements covered by the Confrontation Clause are described in Crawford :
Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; "extrajudicial statements ...
contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]"
Id. at 51-52, 124 S.Ct. 1354 (internal citations omitted).
The Supreme Court further clarified the scope of testimonial statements in holding that a scientific report could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation. Bullcoming v. New Mexico , 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). The Court noted that a document created solely for an "evidentiary purpose" made in the aid of a police investigation is testimonial. Id. The requirements of the Confrontation Clause may not be disregarded at our convenience. Id.
Here, four witnesses testified regarding the swabs and the sexual-assault kit that were ultimately introduced into evidence. Rachel Ganley, a forensic serologist, testified that the swabs and the sexual-assault kit were submitted to her for testing bodily fluids, such as blood or semen. Christopher Glaze, a forensic DNA examiner, testified that the swabs were submitted to him by Rachel Ganley and that he tested the swabs for DNA. Glaze explained that he had relied on the information regarding the swabs and cuttings as marked by the original collector. Wilson testified that the swabs were taken from her to collect possible evidence from her body. Finally, Detective James Kemp testified that he picked up the sexual-assault kit, which included the collected swabs, at UAMS and delivered it to the Arkansas State Crime Lab. It is undisputed that none of the witnesses (1) collected the relevant evidence on the swabs, (2) labeled the swabs that were used to collect the relevant evidence, or (3) labeled the sexual-assault kit. According to the testimony of Ganley, she believed that the swabs and kit were collected and labeled by Frost-who was neither a witness in this matter nor asserted as unavailable by the State-at UAMS.
Appellant maintains that the labels on the swabs and kit were testimonial in nature, purporting to identify where on Wilson's body the evidence was collected. He submits that the swabs and the labeling of the swabs were for an evidentiary purpose, which appellant asserts makes them testimonial in nature. Accordingly, appellant argues that the swabs and the kit and their corresponding labels should be excluded as a violation of the Confrontation Clause because Frost was not called as a witness and was therefore not available for cross-examination.
There was no testimony stating that the swabs had been taken from Wilson's body or, if they were taken from her body, from where on her body they were taken. Moreover, no testimony was offered regarding the method of collection of the DNA on the swabs. Appellant contends that a swab taken from an alleged victim's hand that contained an alleged perpetrator's DNA would provide significantly distinguishable evidence from a swab taken from that alleged victim's cervix, vagina, or rectum. He notes that no witness was called to distinguish the swabs in this case. Appellant requested that the circuit court order the swabs be relabeled with letters rather than with descriptive body parts, but the circuit court denied the request despite the original labeling as to specific body parts being descriptive in nature. Because the State relied on the testimonial nature of the descriptive labels on the swabs and the kit, which were provided by an uncalled witness, appellant argues the evidence was hearsay in violation of the Confrontation Clause.
Although Arkansas appellate courts have not had an occasion to decide whether labels placed on swabs taken from a sexual-assault victim are "testimonial" under the Confrontation Clause-which would require that the notemaker must be present for trial-we need not make that determination under these particular facts. Even if a violation of the Confrontation Clause occurred, any violation was harmless beyond a reasonable doubt. A Confrontation-Clause violation is subject to harmless-error analysis. Roston v. State , 362 Ark. 408, 208 S.W.3d 759 (2005). Whether a Confrontation-Clause violation constitutes harmless error depends on a variety of factors, including (1) the importance of the witness's testimony in the prosecution's case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the prosecution's case. Green v. State , 2015 Ark. App. 291, 461 S.W.3d 731.
Here, neither Frost's testimony nor the actual evidence derived from the swabs was essential because appellant's defense throughout the trial was that Wilson had consented. It is immaterial that DNA from the swab sample was identified as coming from appellant because at trial, both Wilson and appellant admitted that appellant unsuccessfully tried to have sex with Wilson. Specifically, Wilson testified that appellant was unable to penetrate her vagina because he was unable to sustain an erection, and after that she lost consciousness. Appellant testified that he and Wilson unsuccessfully tried to engage in consensual sexual relations; the difference in their respective testimony was whether the attempted act was consensual. Thus, testimony from Frost regarding how she obtained and labeled the swab samples would have had no impact on the determination of that key issue.
The Arkansas Supreme Court consistently has held that a sex-crime victim's testimony need not be corroborated, Brown v. State , 374 Ark. 341, 288 S.W.3d 226 (2008), nor is scientific evidence required. Moss v. State , 2010 Ark. App. 395, 2010 WL 1806484. Here, Frost's proposed testimony regarding the swabs is even less material-and her absence worked to appellant's advantage-in the jury's deliberation on a charge of attempted rape, which oftentimes involves no scientific evidence to be gathered. Here, appellant did not dispute that he may have left behind scientific evidence to be swabbed, admitting that because he took off the condom he was wearing there may have been "some pre-ejaculation" present on Wilson's body. Wilson was unconscious during part of the assault; thus, she could not testify regarding penetration. That fact, coupled with no testimony from Frost, left the jury with a lack of evidence as to whether the fluid sample, determined to be appellant's, was collected inside or outside of Wilson's vagina and anus. Because there was no proof of penetration, a directed verdict as to the original rape charge was granted.
We hold that Wilson's testimony, accompanied by her serious injuries, provided substantial evidence from which the jury could find that the admitted sexual encounter between appellant and her was not consensual. Because the overall strength of the prosecution's case is a factor to be considered in deciding whether Confrontation-Clause error is harmless, Andrews v. State , 344 Ark. 606, 42 S.W.3d 484 (2001), this evidence lends further support that Frost's absence at trial, if error, was harmless beyond a reasonable doubt.
Finally, any Confrontation-Clause violation stemming from Frost's nonappearance also was harmless as to appellant's battery conviction. Frost's testimony about the swabs was irrelevant to the conviction for battery, and the evidence of battery was overwhelming. Andrews, supra. A person commits battery in the second degree if with the purpose of causing physical injury to another person, he causes serious physical injury to any person. Ark. Code Ann. § 5-13-202 (Repl. 2013). Wilson testified that appellant entered her house and "bashed her head into the fridge." He repeatedly punched her to the extent that she suffered a broken jaw, nerve damage, damage to her neck, and a broken nose. Responding police officers confirmed that Wilson was bloody, had a split lip and a swollen face, and was disoriented from the beating. Appellant's beating of Wilson was purposeful as evidenced by his testimony that he hit Wilson "only" "three or four times" when she would not give him the forty dollars back that he had given her when he arrived. Appellant also admitted that he threw Wilson around and knocked her down. Because testimony about the swabs from Frost would have had no bearing on this evidence, her absence from trial was harmless to both the attempted-rape conviction and the second-degree battery conviction.
B. Authentication Analysis
Arkansas Rule of Evidence 901(a) (2018) provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Rule 901 further states "that the testimony of a witness with knowledge that a matter is what it is claimed to be can authenticate evidence, and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence." Id. ; see also Gulley v. State , 2012 Ark. 368, at 13, 423 S.W.3d 569, 578.
The purpose of establishing a chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Duff v. State , 2018 Ark. App. 112, 540 S.W.3d 738. Authentication requirements are satisfied if the circuit court concludes, in its discretion, that the evidence is genuine and that, in reasonable probability, it has not been tampered with or altered in any significant matter. See id. ; see also Chatmon v. State , 2015 Ark. 28, 467 S.W.3d 731. Minor uncertainties in the proof of chain of custody are matters to be weighed by the jury following arguments of counsel, but they do not render the evidence inadmissible as a matter of law. Duff, supra.
Appellant alleges that the circuit court erred in allowing the introduction of the swabs and the sexual-assault kit without proper authentication. Frost, who allegedly collected the evidence on the swabs, was neither present to testify nor subject to cross-examination. The testimony of a witness with knowledge that a matter is what it is claimed to be can authenticate evidence; but here, there was no witness with knowledge about who collected the swabs, when and where the swabs were collected, or what method of collection was employed to obtain the evidence on the swabs. Appellant urges that this is not a "minor uncertainty" and that the circuit court and jury were left to assume that the swabs came from the alleged victim and to speculate as to the manner of collection, the body parts swabbed, and the procedure for collection. While DNA may be distinctive, appellant argues that there is no credible, admissible evidence that the swabs were taken as labeled.
Although appellant acknowledges that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence, he argues that is not sufficient under these facts. He notes that this court has held that proof of the chain of custody for interchangeable items like blood and DNA needs to be more conclusive than for other evidence. Duff, supra. Appellant argues that regarding these swabs, the proof was not more conclusive. There was a lack of testimony to connect the chain of custody of how the evidence was collected on the swabs to the swabs that were examined by the witnesses from the crime lab.
Appellant cites Timmons v. State , 286 Ark. 42, 688 S.W.2d 944 (1985), in which the State attempted to call a forensic serologist as a witness despite knowing that the witness could not connect the chain of custody because the examining doctor who collected the evidence that was sent to the forensic serologist did not testify at trial. The Arkansas Supreme Court found this conduct prejudicial and ordered a new trial. Appellant maintains that the Timmons facts are similar to this case because there was no witness to connect the chain of custody, and allowing such testimony was prejudicial to appellant.
We disagree and hold that that the circuit court did not abuse its discretion regarding the chain of custody in the introduction of evidence. This court will not reverse a circuit court's ruling on the admissibility of evidence under the chain-of-custody rule absent a showing that the court clearly abused its discretion. Freeman v. State , 2010 Ark. App. 8, at 4, 2010 WL 26386. An abuse of discretion is a high threshold that does not simply require error in the circuit court's decision; rather it requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Robertson v. State , 2018 Ark. App. 13, 2018 WL 523250.
Although the circuit court must be satisfied within a reasonable probability that the evidence has not been tampered with, it is not necessary that the proponent of the evidence eliminate every possibility of tampering. Duggar v. State , 2013 Ark. App. 135, at 7, 427 S.W.3d 77, 83. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the trier of fact, but they do not render the evidence inadmissible as a matter of law. Id.
Wilson testified that the attempted rape and battery occurred on October 1, 2016. After police arrived, she was taken to UAMS in Little Rock where she was swabbed by a nurse. Detective Kemp testified that he picked up the rape kit that contained the swabs at UAMS on October 27, 2016. The kit was taped and sealed. He took the kit "straight to the [Arkansas] crime lab," signed an evidence-submission form, and left the kit with the crime lab. The circuit court was satisfied that the evidence provided by Wilson and Detective Kemp was sufficient to establish a chain of custody and the authenticity of the swabs contained in the kit and that the evidence had not been tampered with or altered. See Curtis v. State , 2015 Ark. App. 167, 457 S.W.3d 700. Also, considering that appellant does not contend the evidence was contaminated, we cannot say the circuit court abused its discretion in admitting the swabs and the kit. Id.
Nevertheless, even if the chain of custody somehow was lacking, for the reasons stated above, any error is harmless under the specific facts of this case. Appellant admitted that he battered Wilson and tried to have sex with her, although he claimed it was consensual. See Mosley v. State , 323 Ark. 244, 914 S.W.2d 731 (1996) (witness's testimony on chain of custody held to be harmless error because defendant claimed consent to sexual intercourse).
Affirmed.
Virden and Vaught, JJ., agree.
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21. That during the above stated trial, the jury took notes, were attentive and were able [sic] placed in a position in which they were able to make informed decisions about the credibility of the witnesses, the evidence and allegations.
22. That in consideration of the totality of the allegations, court record, pleadings, transcripts and sentencing documents, the Court does hereby find that the defendant/petitioner has failed to meet his burden of proof and that his Petition For Relief Under Rule 37, Ark. R. Crim. P., is hereby denied/dismissed.
This appeal followed.
We do not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Vaughn v. State , 2017 Ark. App. 241, 519 S.W.3d 717. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with a definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, we consider the totality of the circumstances. Id.
Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Conley v. State , 2014 Ark. 172, 433 S.W.3d 234. In asserting ineffective assistance of counsel under Strickland , the petitioner must first demonstrate that counsel's performance was deficient. Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Conley, supra. This requires the petitioner to show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. We also recognize that "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Anderson v. State , 2011 Ark. 488, at 3, 385 S.W.3d 783, 787 (quoting Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ).
Mr. Bynum's first argument on appeal is that the trial court erred in finding that his Rule 37 petition was untimely filed 120 days after the issuance of the court of appeals mandate. Mr. Bynum is correct that the trial court erred in this regard. Our mandate was issued on March 30, 2017, and Mr. Bynum filed his initial petition on May 25, 2017. Thus, he timely filed his petition, since it was filed within 60 days of the issuance of the mandate.
Although the trial court erred in finding that Mr. Bynum's petition was filed outside the 60-day time limit, this mistake is of no moment because the trial court nonetheless ruled on the merits of the petition. In Todd v. State , 2017 Ark. App. 587, 535 S.W.3d 638, we affirmed the trial court's order denying postconviction relief even though the trial court had erroneously found that the petition was untimely filed. We held that because there were other valid bases that supported the trial court's denial of the petition, the error regarding timeliness of filing was not cause for reversal. Id. In the present case, the trial court addressed and rejected the merits of Mr. Bynum's petition in its order denying relief; it did not dismiss the petition as untimely. Therefore, the trial court's error regarding the timeliness of the petition was harmless, and we review the merits of the trial court's decision.
Mr. Bynum's next argument is that the trial court erred in ruling that his trial counsel was not ineffective in his representation. Mr. Bynum argues that his counsel was ineffective for failing either before trial or at trial to move to dismiss the ten counts of fourth-degree sexual assault committed against A.H. As we held on direct appeal, those charges were barred by the statute of limitations, and we reversed and dismissed those convictions. Mr. Bynum contends that had there been a motion to dismiss at trial, these charges would have been dismissed and A.H.'s testimony would have either been excluded or subject to a limiting instruction. Mr. Bynum thus claims that, in addition to failing to request dismissal of these charges, his counsel was ineffective for not objecting to A.H.'s testimony or requesting a limiting instruction. Mr. Bynum asserts that he was prejudiced by A.H.'s testimony because it was before the jury when it considered the two charges of second-degree sexual assault against T.H. and C.P., and the jury convicted him of these two charges and returned maximum sentences. Mr. Bynum argues that because the jury heard testimony about twelve charges instead of two, this undermined confidence in the outcome of the trial.
Mr. Bynum asserts further that his trial counsel was ineffective for not objecting to the testimony of T.H. and C.P. concerning alleged acts committed by Mr. Bynum against them outside the jurisdiction of the trial court. In particular, he argues that there should have been an objection, or at least a request for a limiting instruction, with respect to the conduct that allegedly occurred in Hot Springs and Tulsa, Oklahoma.
Under the first Strickland prong, we must first consider whether Mr. Bynum's counsel was deficient. We have no hesitancy in concluding that he was. At the time the criminal information was filed charging Mr. Bynum with these offenses, the statute of limitations for the ten counts of fourth-degree sexual assault allegedly committed against A.H. had been expired for five years. Notwithstanding this easily ascertainable fact, Mr. Bynum's counsel failed to move to dismiss the time-barred offenses either before or at trial. The jury convicted Mr. Bynum on all these charges, as well as the remaining two charges for second-degree sexual assault, and gave him the maximum sentences. Although Mr. Bynum's counsel was able to get the ten fourth-degree sexual-assault charges dismissed on direct appeal because this is a jurisdictional issue that cannot be waived, this does not negate counsel's ineffectiveness for failing to raise the issue at trial. Such failure by counsel could not have been the result of reasonable professional judgment; it was a serious error falling below the acceptable range of assistance guaranteed by the Sixth Amendment. We also conclude that counsel was ineffective for not objecting to the testimony of T.H. and C.P., or at least asking for a limiting instruction, with respect to the events that occurred outside the trial court's jurisdiction and with which Mr. Bynum was not charged. This, too, could not have been a matter of trial strategy. Having concluded that Mr. Bynum's counsel was deficient, we proceed to the second prong of the two-prong test.
Under the second Strickland prong, it was Mr. Bynum's burden to show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. This required him to show that there is a reasonable probability-that is, a probability sufficient to undermine the outcome of the trial-that the decision reached by the jury would have been different absent counsel's errors. The "decision reached" includes possible prejudice in sentencing as well as the finding of guilt. Lasiter v. State , 290 Ark. 96, 717 S.W.2d 198 (1986).
We hold that the trial court clearly erred in not finding that Mr. Bynum's counsel's deficient performance prejudiced the defense. In its order denying Mr. Bynum's petition, the trial court found that with or without the ten charges filed against Mr. Bynum pertaining to A.H., A.H.'s testimony would have been admissible under the pedophile exception. However, had counsel moved to dismiss the charges relating to A.H., the trial court would have dismissed those charges and it is unknown under those circumstances whether A.H. would have agreed to testify. But even assuming that A.H. would have nonetheless testified and assuming the testimony would have been admitted under the pedophile exception, this would still not cure the prejudice to the defense. Under this scenario, the jury would have been called on to decide whether Mr. Bynum was guilty of only two charges against two victims as opposed to twelve charges against three victims. We believe the fact of being charged with twelve crimes instead of two was, in itself, prejudicial to Mr. Bynum. Couple that with the fact that, at the jury trial Mr. Bynum received, the jury was given no limiting instruction on A.H.'s testimony, which he would have undoubtedly been entitled to had the charges relating to A.H. been dismissed. Pursuant to Rule 404(b), the jury would have been given a cautionary instruction that evidence of other alleged crimes, wrongs, or acts of the defendant may not be considered to prove that he acted in conformity therewith; that the evidence is not to be considered to establish a particular trait of character he may have, nor is it to be considered to show that he acted similarly or accordingly on the day of the charged incidents; but that the evidence is merely offered as evidence of such things as opportunity, intent, or plan to commit the charged offenses. See AMI Crim. 2d 203-A. Similarly, had counsel raised a proper objection to the testimony of T.H. and C.P. concerning the uncharged acts that allegedly occurred outside the trial court's jurisdiction, at a minimum this testimony would have been subject to a limiting instruction of this nature. Such limiting instructions clearly inure to the benefit of the accused and could reasonably change the outcome of the trial or the sentences imposed. We observe that, at the conclusion of these proceedings in which Mr. Bynum's counsel was deficient, the jury sentenced Mr. Bynum to maximum prison terms on all twelve counts, which were ordered to be served consecutively. Under these circumstances, we hold that there was a reasonable probability that the outcome of the trial would have been different had Mr. Bynum's counsel not been deficient. Because we reverse and remand for retrial for this reason, we need not address Mr. Bynum's remaining argument that the trial court should have conducted a hearing.
Reversed and remanded.
Glover and Vaught, JJ., agree.
The trial court's order incorrectly stated that the mandate was issued on January 25, 2017.
The later-filed amended petition was also considered timely because it was filed with leave of the trial court. See Barrow v. State , 2012 Ark. 197, 2012 WL 1631806. | [
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N. MARK KLAPPENBACH, Judge
Janet Nicholas appeals from the order of the Logan County Circuit Court denying her petition for custody of her granddaughter, AI, and dismissing her from the ongoing dependency-neglect proceedings. Because the order from which Nicholas appeals is not a final, appealable order, we must dismiss the appeal.
The Department of Human Services (DHS) removed eight-month-old AI from the custody of her mother, Chelsi Isbell, in March 2017 due to inadequate food and shelter. A dependency-neglect case proceeded in which Nicholas, Isbell's mother, intervened and petitioned for custody of AI. In a review order entered in January 2018, the circuit court denied Nicholas's petition for custody and dismissed her from the case with prejudice. The court changed the goal of the case to termination of parental rights and adoption. The order included a Rule 54(b) certificate, and Nicholas appealed.
DHS and the attorney ad litem contend that Nicholas's appeal must be dismissed because the order from which she appeals is not final or otherwise appealable due to a deficient Rule 54(b) certificate. Whether an order is subject to an appeal is a jurisdictional issue that this court has the duty to raise, even if the parties do not. Gray v. White River Health Sys., Inc. , 2016 Ark. 73, 483 S.W.3d 293.
The circuit court's order denying custody is not explicitly appealable under either Rule 2 of the Arkansas Rules of Appellate Procedure, which governs appealable matters, or Arkansas Supreme Court Rule 6-9, specifically addressing appeals in dependency-neglect proceedings. Edwards v. Ark. Dep't of Human Servs. , 2015 Ark. 402, 474 S.W.3d 58. The order Nicholas appeals is not a final order under Rule 2(a)(1) because it clearly contemplates future action with respect to the placement of the child. See id. Rule 2(d) specifically addresses custody orders, but it applies only to orders awarding custody, not orders denying custody. See id. Rule 6-9 lacks any specific mention of an appeal from an order denying custody.
Although the order is not appealable outright under our rules, a circuit court may certify an otherwise nonfinal order for an immediate appeal by executing a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. Pursuant to Arkansas Rule of Civil Procedure 54(b),
[w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.
Ark. R. Civ. P. 54(b). With respect to the requirements of Rule 54(b), the supreme court stated in Edwards that merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is a likelihood of hardship or injustice that would be alleviated by an immediate appeal rather than at the conclusion of the case. The supreme court further noted that in addition to requiring the record to show such facts, it had "consistently held that the rule requires the order to include specific findings of any danger of hardship or injustice that could be alleviated by an immediate appeal and to set out the factual underpinnings that establish such hardship or injustice." Edwards , 2015 Ark. 402, at 6, 474 S.W.3d at 61 (quoting Holbrook v. Healthport, Inc. , 2013 Ark. 87, at 4, 2013 WL 776240 ).
Here, the circuit court's Rule 54(b) certificate repeats the court's reasons for denying Nicholas's petition for custody, repeats its determination that the case would proceed toward termination of parental rights and adoption and Nicholas would be dismissed, and then tracks the language from the rule:
Upon the basis of the foregoing factual findings, the Court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. Pro., that it has determined that there is no just reason for delay of the entry of a final judgment shall [sic] be final judgment for all purposes.
The certificate does not include specific factual findings to support the determination that there is no just reason for delay or any finding that there is a likelihood of hardship or injustice that would be alleviated by an immediate appeal. The failure to include such findings means that the certificate does not satisfy the requirements of Rule 54(b), and we lack jurisdiction to hear the appeal. See Edwards , supra ; see also Bushee v. Ark. Dep't of Human Servs. , 2016 Ark. App. 339, 492 S.W.3d 559 (dismissing appeal because certificate did not tie its findings to the conclusion that a hardship may result if an appeal is not permitted).
Nicholas contends that her rights are forever terminated if she cannot prosecute this appeal because termination of Isbell's parental rights would also result in the termination of Nicholas's own grandparent rights. She argues that this court "cannot possibly have any confusion" as to the purpose of the inclusion of the Rule 54(b) certificate. We do not deny that there are obvious facts that could support a conclusion that there is a danger of injustice that would be alleviated by an immediate appeal. However, we are constrained by our supreme court's holdings that such findings must be made by the circuit court in the Rule 54(b) certificate. See Gray , supra ; Edwards , supra ; Holbrook ; supra. The posture of this case is virtually identical to the appeal in Edwards in which grandparents who had intervened in dependency-neglect proceedings attempted to appeal the circuit court's order denying their motion for custody and dismissing them from the case. We have no authority to overrule decisions by the Arkansas Supreme Court. Parnell v. Ark. Dep't of Human Servs. , 2018 Ark. App. 108, 538 S.W.3d 264. Accordingly, we must dismiss the appeal without prejudice.
Appeal dismissed.
Virden and Harrison, JJ., agree. | [
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PHILLIP WHITEAKER, Judge
The appellants, Joseph Roberson and Tawny Roberson, filed a complaint in the Boone County Circuit Court against James Roberson (Jim), the appellee. They sought an order funding an irrevocable credit shelter trust (CST), under the terms of the Roberson Living Trust (the Trust) and requested that the court declare the first amendment (First Amendment) to the Trust invalid. The court entered judgment dismissing their complaint. They appeal, arguing that the court erred in entering this judgment. We reverse the judgment and remand the case to the circuit court.
I. Background
Joe Roberson, Sr., (Joe Sr.) and Cleo Roberson were husband and wife. They were the parents of five children, including twin sons, Jim Roberson and Joe Roberson, Jr. (Joe Jr.). Joe Jr. is the father of Joseph and Tawny. In 1972, Joe Sr. and Cleo purchased over 1800 acres of farmland in Omaha, in Boone County, Arkansas. They used the land primarily to raise cattle. Jim joined the farm operation at its inception. Joe Jr. later joined the operation with his wife, René. Joe Jr. and René lived and worked on the farm for approximately two years, however, before Joe Jr. obtained employment with the United States Department of Agriculture (USDA) in California. After the move to California, Joe Jr. returned to the farm in the summer to help while Jim remained and helped his parents run the farm.
Joe Sr. suffered a heart attack in 1993. Soon after, he and Cleo made Jim a partner in the farming operation because he had lived and worked on the farm with his parents for over twenty years. They also executed a quitclaim deed giving Jim a one-half interest in the farmland in Omaha.
Three years later, in June 1996, Joe Sr. and Cleo executed the Trust. Joe Sr. and Cleo were the trust grantors, the original trustees, and the primary beneficiaries of the Trust. Joe Sr. and Cleo mandated, among other things, in article two, subsection A, that upon the death of either, the surviving spouse "shall" fund a separate CST to take advantage of the $600,000 estate-tax exemption that existed at the time. They named Jim as the successor trustee of the CST and directed a plan of distribution for the CST. Joe Sr. and Cleo specifically provided in article two, section A, that upon the death of the survivor of Joe Sr. and Cleo, the farm land would go to Jim and Joe Jr. as tenants in common, taking into consideration any previous transfers of land to Jim. Joe Sr. and Cleo specifically stated the intent of the CST plan of distribution was to equalize the amount of farmland passing to each son and directed that any asset of Jim or Joe Jr. would pass to his issue by representation if either Jim or Joe Jr. predeceased Joe Sr. or Cleo. Joe Sr. and Cleo made the plan of distribution and all the terms of the CST irrevocable and unamendable upon the death of either Joe Sr. or Cleo. Joe Sr. died in April 1997. Cleo never funded the CST despite the mandatory language in the article two, section A.
In September 2000, Joe Jr. told his family that he had terminal brain cancer. Approximately one month later, Cleo executed the First Amendment to the Trust. In this amendment, Cleo deleted the identical plans of distribution in the Credit Shelter Trust and the Roberson Living Trust which gave the land to Jim and Joe Jr. as tenants in common. Instead, she directed that upon her death the successor trustee conveys any remaining interest in the farm to Jim. Within a few months of the execution of the First Amendment, Joe Jr. died in April 2001. Joseph and Tawny, his children, are his surviving heirs.
Cleo died in June 2011. After her death and pursuant to the terms of the First Amendment, Jim, as the successor trustee, executed a deed transferring his parents' share of the farmland, which had been held in the Trust, to himself.
Joseph and Tawny filed a complaint against Jim arguing that Cleo, their grandmother, was required to transfer the farmland to the CST when Joe Sr. died, that the terms of the CST created an irrevocable and unamendable plan of distribution, and that they were entitled to their father's distribution of the farmland as his descendants. They further argued that the First Amendment was invalid.
The circuit court dismissed Joseph and Tawny's claims, concluding that the plain language of the Trust indicated that Cleo was not obligated to fund the CST at Joe Sr.'s death; therefore, she was free to amend the plans of distribution under the CST and the Trust. The circuit court also found that Joe Sr. and Cleo executed the Trust with the intent to keep the farmland intact and within the family after their deaths, or in other words, free from the influence of their daughter-in-law, René Roberson.
II. Standard of Review
This appeal concerns the construction, interpretation, and operation of a trust. The courts of equity have exclusive jurisdiction in cases involving matters of the construction, interpretation, and operation of trusts. Cason v. Lambert , 2015 Ark. App. 41, at 4, 454 S.W.3d 250, 253. We conduct a de novo review on the record of matters that sound in equity and will not reverse a finding by a circuit court in an equity case unless it is clearly erroneous. Id. A finding is clearly erroneous when, even though there is some evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been made. Le v. Nguyen , 2010 Ark. App. 712, at 12, 379 S.W.3d 573, 580.
III. Discussion
Joseph and Tawny make three arguments on appeal. First, they contend that the circuit court erred by concluding that the language of the Trust gave Cleo the option to avoid funding the CST at Joe Sr.'s death. Second, they allege that because the CST was expressly "unamendable and irrevocable" upon the death of Joe Sr., the circuit court erred by concluding that the terms of the Trust gave Cleo the power to amend the plan of distribution. Third, they argue that the circuit court erred when it concluded that Joe Sr. and Cleo executed the Trust with the intention to "keep the farm intact and within the family."
Joseph and Tawny first argue that the plain language of the Trust evinces Joe Sr. and Cleo's intent to protect their assets from the estate tax, and that tax-saving intent, as well as the mandatory language in article two, Section A, forecloses any interpretation that would have allowed Cleo the option not to fund the CST. Jim argues that the circuit court's judgment is not clearly erroneous and should be upheld. He states that article one of the Trust gave Cleo the option to not fund the CST. We conclude that the plain language of the Trust required Cleo to fund the irrevocable and unamendable CST at Joe Sr.'s death. Thus, we reverse and remand.
We set forth some basic rules of trust construction to support our conclusion. A court construing a trust applies the same rules applicable to the construction of a will, and "the paramount principle" in the interpretation of wills is that the intention of the testator, or trust settlor, governs. Aycock Pontiac, Inc. v. Aycock , 335 Ark. 456, 463, 983 S.W.2d 915, 919 (1998). The settlor's intention "is to be determined from viewing the four corners of the instrument, considering the language used, and giving meaning to all of its provisions, whenever possible." Id. Further, "the court should give force to each clause of the [trust], and only when there is irreconcilable conflict between two clauses must one give way to the other." Id. , at 463, 983 S.W.2d at 919-20. In the event of a conflict, "the last clause in the trust governs the determination of the settlor's intent." Id. Finally, "[t]he court may read the language used by the [settlor] in light of the circumstances existing when the [trust] was written, but only if there is uncertainty about the [settlor's] intentions from looking at the language used in the [trust]." Id. , 335 Ark. at 463, 983 S.W.2d at 919 (emphasis in original).
We now turn our attention to the specific language and provisions of the Trust. Article two, section A states
[u]pon the death of either of us, debts of [the] decedent, debts of the surviving trustmaker, debts of this trust, and expenses of the last illness and funeral expenses of the decedent trustmaker shall be paid. After said debts and expenses are paid our Successor Trustee(s) shall divide the net proceeds of the living trust into separate parts; one part which shall constitute a separate trust, and one part which shall remain in this living trust with the surviving trustmaker as primary trustee and primary beneficiary. The separate trust shall be referred to as the Credit Shelter Trust
This language of article two, section A is mandatory, providing that the successor trustee-Cleo in this case-shall divide the net proceeds of the Trust into a separate trust that shall be called the CST. Article two, subsection A also provides, as relevant here, that Joe Sr. and Cleo "give to James Roberson, as trustee(s) of the Credit Shelter Trust to hold in a trust known as the Credit Shelter Trust an amount equal to the largest amount which can pass free of federal estate tax on the estate of the decedent trustmaker[.]" Additionally, article two, section A, takes control of the assets of the CST away from the surviving spouse, appointing Jim as special co-trustee, giving him the sole "right and power" and "discretion" to distribute the principal of the CST to the surviving spouse, and declaring that "[n]otwithstanding any other provisions of this Living Trust, under no circumstances shall the surviving spouse act as the sole trustee of the Credit Shelter Trust." We conclude that this language leaves no doubt that Joe Sr. and Cleo intended to maximize the amount of their assets that would qualify for the estate-tax exemption, and it imposes a fiduciary obligation on their survivor to protect their assets from the estate tax. Consequently, Cleo did not have the option to avoid funding the CST when Joe Sr. died.
We now turn our attention to article one. Article one, which provides the name of the trust and appoints trustees, designates Joe Sr. and Cleo as primary trustees of the Trust and provides in section B that
[e]ither or both of us may exercise dominion or control over any and all of the trust assets. Upon the death of one of us the survivor shall continue to act as the primary trustee of this trust with full power and authority to deal with any and all of the assets of this trust in any manner that said survivor sees fit. During the existence of this trust each trustmaker shall have the right to partition, enabling each trustmaker to restrict, transfer, or withdraw one-half of the assets in this trust.
(Emphasis added.) Article one also appoints Jim as the successor trustee for the Trust, and it further provides in section L that Joe Sr. and Cleo
[h]ereby designate ourselves as the primary beneficiaries of this trust. As long as we or both of us shall live, we or the survivor of us will have the exclusive right to the use and benefit of the income and the assets of this trust. Upon the death of the survivor of us, our successor trustee(s) shall take charge of the assets then remaining in this trust and distribute them according to the plan of distribution in Article Two of this Living Trust document.
According to Jim, these provisions gave Cleo the power to control the assets of the Trust as she saw fit, including the option not to fund the CST when Joe Sr. died. Because she chose not to fund the CST, he claims all the Roberson's assets, including the farm, remained in the revocable-and amendable-Trust. We are not persuaded.
Article one, section B is consistent with the language in article two anticipating that the Trust will survive the allocation of assets into the CST. Indeed, article two, section A, mirrors article one, section B, and article one, section L, providing that assets remaining after the funding of the CST "shall remain in this living trust with the surviving trustmaker as primary trustee and beneficiary," and similarly providing in subsection (A)(1)(d) that "[a]ll assets of this living trust not placed in the Credit Shelter Trust shall remain in the living trust and will continue to be governed by the terms, provisions, and conditions of the living trust." Read in this manner, article one, section B, and article one, section L, gave Cleo unfettered power as beneficiary and trustee over only those assets-if any-that remained in the Trust after funding the CST, and not the option against funding the CST altogether.
Jim argues that even if this was the intent of Joe Sr. and Cleo at the execution of the Trust, there is nothing in the Trust that required Cleo to fund the CST with the farm. We disagree. The circuit court had undisputed evidence that the estate-tax exemption at the death of Joe Sr. was $600,000, and that the estimated value of Joe Sr. and Cleo's estate was less than $600,000, including the farm. The language in article two, section A, also contemplates that the farmland will be among the assets in the CST, providing in its "irrevocable" plan of distribution that the farmland will be divided equally between the two sons upon the death of the survivor. As a result, Cleo was obligated to fund the CST at Joe Sr.'s death with assets that included the farm.
We likewise see no indication that Joe Sr. and Cleo executed the Trust in 1996 with the intention of "keep[ing] the farm intact and within the family" or, more to the point, with the intention of protecting the farmland from the influence of René Roberson. Indeed, regarding the distribution of the farmland to Jim and Joe Jr., the plain language of the trust provides only that "the intent ... is to equalize the amount of farm land passed to each son." The provisions immediately following also unambiguously state what is to happen when, as actually occurred, "[a] beneficiary named [in the trust] to receive a specific asset does not survive the survivor" of Joe Sr. and Cleo. In that event, the asset is given to "that beneficiary's issue by representation." If Joe Sr. and Cleo intended to foreclose any possibility that René Roberson would influence the fate of her children's share of the farmland, they could have provided Jim or Joe Jr.'s share of the farmland would pass to the surviving brother if one of them predeceased Joe Sr. or Cleo. They did not; and Cleo's intent at the time that she executed the First Amendment-apparently to protect the farmland from the influence of René Roberson-is not consistent with her or Joe Sr.'s intent as expressed at the time the Trust was executed in 1996-which must control. Because the circuit court found otherwise, we must reverse and remand.
IV. Conclusion
The four corners of the Trust demonstrate that Joe Sr. and Cleo Roberson intended for their survivor to establish and fund an irrevocable CST when one of them died. Moreover, the mandatory terms of the Trust left Cleo, as the survivor, no option against funding the CST, or amending its "irrevocable and unamendable" plan of distribution. Accordingly, we reverse and remand the case to the circuit court for further proceedings.
Reversed and remanded.
Gruber, C.J., and Virden, J., agree.
Joe Sr. and Cleo had three daughters who lived outside Arkansas, are not parties to this appeal, and did not have any involvement in the farming operation at issue in this appeal.
More specifically, article two, section A provides that Joe Sr. and Cleo placed an amount equal to the largest amount that could pass free of federal estate tax into the Credit Shelter Trust, with all assets not placed into the Credit Shelter Trust remaining in the Revocable Living Trust.
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ROBERT J. GLADWIN, Judge
First Government Lease Company ("FG") and Paul Graver, sole owner and operator of FG, appeal the Scott County Circuit Court's judgment against Graver in the amount of $258,195 in general damages and $1.5 million in punitive damages and the order of May 11, 2017, denying appellants' posttrial motions for judgment notwithstanding the verdict, new trial, remittitur, and findings of fact and conclusions of law. On appeal, appellants argue that the circuit court erred in (1) its analysis and ruling on their motion to dismiss; (2) refusing to continue or delay the start of trial; (3) allowing punitive damages; (4) denying appellants' motion for new trial; and (5) striking appellants' counterclaims. We affirm.
I. Procedural History
Appellee Northwest Scott County Volunteer Fire Department ("VFD") borrowed $166,500 from FG to buy fire trucks, although the amount of money and number of trucks are disputed. When VFD failed to make payments, FG filed a replevin complaint in circuit court alleging that VFD had violated their "Lease Purchase Agreement" and seeking recovery of seven vehicles, which FG alleged were used as collateral for the loan, interest, and attorney's fees. VFD responded that FG had already repossessed the vehicle financed through their agreement and filed a counterclaim against FG based on fraud and the Arkansas Deceptive Trade Practices Act ("DTPA").
FG dismissed its replevin complaint without prejudice on June 2, 2014. The circuit court filed a June 16 order noting that VFD's counterclaim was still pending. Trial was set for VFD's counterclaim on December 18-19, with a pretrial hearing set on December 11. The scheduling order filed July 21 included an October 30 discovery deadline.
After a hearing held November 13, an order filed December 1 required that FG provide all supplemental discovery responses and a list of exhibits and witnesses by November 24, and all of FG's witnesses were to be made available for deposition between November 25 and December 5. In a separate order, the circuit court denied FG's motion to reconsider its ruling that Graver appear in Arkansas to be deposed and noted that the rulings from the November 13 hearing were imposed on FG as sanctions for failure to answer interrogatories and requests for production of documents.
FG then filed a petition for writ of prohibition with the Arkansas Supreme Court on December 4, and Graver did not appear for deposition on December 5. The petition for writ of prohibition was denied, and the formal order was filed in the circuit court on December 10. On that date, VFD filed a motion to implead Graver because Graver had represented himself as "d/b/a FG" on numerous occasions. At the pretrial hearing on December 11, the trial was continued to August 20-21, 2015. The resulting order, filed February 5, 2015, granted the motion to implead Graver and found that FG did not produce Graver for deposition in violation of the circuit court's order. The circuit court reserved the right to strike FG's answer, and Graver was ordered to reappear for deposition on March 25, 2015. The circuit court found that Graver could not testify as a witness in the case unless called by VFD, and evidence not provided to VFD prior to November 13, 2014, was excluded. A December 22, 2014 scheduling order required any pretrial motions to be filed at least fifteen days prior to the pretrial hearing set for August 13, 2015.
On January 12, 2015, VFD filed an amended counterclaim, which added a complaint against Graver as a third-party defendant. VFD alleged that Graver was liable for FG's conduct and claimed that appellants had committed fraud, conversion, and usury and had violated the DTPA-which included a claim for punitive damages. FG filed a motion to dismiss VFD's counterclaim for failure to state a claim. See Ark. R. Civ. P. 12(b)(6) (2017).
On March 23, two days before Graver's scheduled deposition, he filed a notice of removal in the United States District Court and a separate notice in the circuit court. Accordingly, Graver did not appear for deposition on March 25. On November 12, the federal court remanded for lack of jurisdiction, finding that FG was not a registered business entity and was in fact Paul Graver acting as a sole proprietorship; therefore, Graver was the plaintiff in the circuit court case, and he was not entitled to removal.
On November 30, VFD filed a motion for emergency ex parte relief alleging that appellants took two vehicles from VFD and sold them. The vehicles were the objects of the parties' litigation, and appellants received $179,000 more than the amount of the loan. VFD alleged that appellants were "currently trying to repossess the remaining vehicles, which would effectively render most of the northwestern portion of Scott County without adequate fire protection." VFD further alleged that since appellants initially filed their complaint, appellants' agents had broken into the local fire department and taken a vehicle. VFD asked for an order directing appellants to cease all further collection and repossession efforts. The circuit court granted ex parte relief on December 2, 2015.
VFD filed a motion for contempt and temporary attorney's fees on January 4, 2016, claiming that after filing this action, appellants filed two cases in Illinois regarding the same matter. One Illinois case was dismissed, but the second case was still pending. VFD asked for attorney's fees for having to defend these cases and argued that appellants were trying to cause VFD financial hardship.
By order filed April 6, 2016, the circuit court denied appellants' motion to dismiss VFD's amended counterclaim. The court found that the issues were waived because appellants had not moved to dismiss the original counterclaim, which was no different from the amended pleading except that Graver was named. Because the issues were not raised against the original counterclaim, Graver waived those arguments. The circuit court also found that the claim for fraud should survive the motion to dismiss under Rule 12(b)(6). The circuit court further denied the dismissal request related to the DTPA or conversion because the case had been pending for over three years with most of the delay caused by appellants' failure to answer discovery and their erroneous attempt to remove the case to federal court. Finally, the circuit court denied VFD's motion for contempt and temporary attorney's fees. A new scheduling order provided that the trial was reset for August 18-19, 2016, and a pretrial hearing was scheduled for August 11, 2016. The parties were reminded that all pretrial motions should be filed at least fifteen days before the pretrial hearing.
On May 3, 2016, appellants filed an amended answer with counterclaims based on fraud and breach of contract. Appellants claimed the affirmative defenses of laches, unclean hands, detrimental reliance, and the Illinois Credit Agreement Act, "which bars all tortious causes of action that are 'in any way related' to a credit agreement."
VFD filed a motion to dismiss appellants' counterclaims, citing the circuit court's February 5, 2015 order that excluded evidence not provided before November 13, 2014, and excluding Graver as a witness unless called by VFD. VFD also argued that it was clear from the circuit court's oral instruction prior to the latest scheduling order that no further pleadings would be tolerated and that this matter would proceed to trial under the prior pleadings. VFD also argued that appellants' fraud claim was barred by the statute of limitations because the matter had been pending since 2012, and the May 3, 2016 fraud allegation was appellants' first attempt to sue VFD for any cause of action based on fraud or deceit, and VFD claimed that all of appellants' counterclaims were not timely filed.
Appellants filed a motion for partial judgment on the pleadings on August 1, 2016, claiming entitlement to judgment for breach of contract based on VFD's admission that it had failed to make payments. VFD filed a motion to strike because appellants' motion for partial judgment was filed after the deadline set forth in the circuit court's scheduling order. At the pretrial hearing, the circuit court ordered that appellants were prohibited from testifying or presenting any other witnesses because they had failed to produce witnesses for deposition; the written order was filed on September 8, 2016. In the same order, the circuit court struck appellants' claims against VFD.
Following the pretrial hearing, appellants filed a notice of interlocutory appeal on August 15, 2016, appealing the circuit court's order striking their counterclaims. After the Arkansas Supreme Court denied appellants' petition for emergency stay pending appeal, and the circuit court filed its order of September 8, 2016, appellants filed an amended notice of interlocutory appeal on October 10, 2016.
II. Jury Trial
The scheduling order filed August 24, 2016-setting the jury trial for February 22-23, 2017, and a pretrial hearing on February 9, 2017-remained in effect, despite appellants' attempts at an interlocutory appeal. However, on the first day of the scheduled jury trial, neither Graver nor his counsel appeared. The circuit court elected to proceed after contacting counsel and determining that counsel had mistakenly marked his calendar.
VFD presented its case that it had borrowed $90,000 from FG after contacting Graver. VFD alleged that it already had $170,000 to pay toward a fire truck that cost $260,000. VFD was provided the "Lease Purchase Agreement" from FG, and Donnie Adkins, the fire chief, testified that the document was illegible. He said that he had trusted Graver, that $90,000 had been handwritten at the top of the agreement, and that nothing else on the agreement had been filled in. He was told that he had to sign the agreement to get the check. He said that he signed the document and that Graver "filled out the rest"; although, when the document was faxed to him, it had not been filled out, and they had never discussed the interest amount of $76,500. Adkins also described Graver's hatefulness and their having to hide the smaller truck to prevent repossession after Graver had sold the larger truck for $182,032. Adkins also said that the smaller truck was repossessed after the circuit court had issued an ex parte order to cease and desist any repossessions. He described how appellants' agents had broken into the fire station by pulling out ductwork from the outside air units.
At the close of the evidence, the circuit court instructed the jury, and VFD's counsel gave its closing argument. The circuit court then introduced appellants' counsel, who had just arrived, and appellants made their closing argument. After VFD's reply argument was given, the jury retired to deliberate. Before the jury returned with its verdict, appellants' counsel moved for directed verdict and "JOV at this time based on the insufficiency of the evidence." The circuit court denied the motion. Counsel renewed the motion, and it was denied. The following colloquy then occurred:
APPELLANTS' COUNSEL : Okay. Also, ask the court for a mistrial due to the unfairness of my client not being able to put on any sort of case and not being here and having a chance to cross examine the witnesses.
COURT : And whose fault is that, sir?
APPELLANTS' COUNSEL : It's my, that is mine, Your Honor.
COURT : Okay. This case has been set for months. There was a Notice sent. We've had several pretrial hearings. We had a pretrial on February 9 in which everyone was here including you at which time we discussed any motions pending. There were none. I asked everybody if everybody was ready and said see you on the 22nd. So, I don't see the fact that you put it on your calendar wrong and didn't get here till 11:51 as excusable neglect or reason to grant a continuance or a mistrial. That's denied.
APPELLANTS' COUNSEL : Okay. And then, finally, I would ask for a new trial pursuant to Rule 59(a)(1) for the same reasons that my clients can't cross examine any witnesses and the inherent unfairness that came from it.
COURT : That's due to fault of counsel. Denied. Okay. Bring them in.
The jury returned with a verdict for VFD against Graver in the amount of $258,195 in general damages and $1.5 million in punitive damages. After the jury was excused, appellants moved for judgment notwithstanding the verdict as follows:
APPELLANTS' COUNSEL : [A]s to punitive damages because of the fourth cause of action contains [VFD's] complaint only one, I believe, asks about punitive damages which you specifically don't without a specific jury instruction, jury verdict form, it's impossible to know on which cause of action they actually found for [VFD] and, also, on which one they awarded punitive damages.
COURT : Well, sir, there were no objections to the instructions given to the jury and before the jury was dismissed that objection was not raised either when they might could have been instructed further and sent back to do so, so, it is denied and waived as far as I'm concerned, sir.
APPELLANTS' COUNSEL : Okay, and then I'm also asking for, remittitur on the punitive damages as well for the fact that it's impossible to know what it was based on and what cause of action they are counting on.
COURT : That is denied. Anything else? If not, we stand adjourned.
III. Posttrial Motions
A judgment was filed against Graver in the amount of $1,758,195 plus interest at 6 percent per annum until paid. Appellants filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, asking that the directed-verdict motions made at trial be granted or that a new trial be granted. Appellants argued that a new trial was warranted because of their counsel's "calendaring mistake." Appellants also sought a new trial based on excessive damages, error in the assessment of the amount of recovery, and the use of a general-verdict form, which did not capture the jury's intentions and link the punitive-damages award to a specific cause of action that allows for punitive damages.
The circuit court denied appellants' motions by order filed April 11, 2017. Appellants filed a motion for findings of fact and conclusions of law for the order denying their posttrial motions. The circuit court filed an order on May 11, 2017, with specific findings and conclusions, denying appellants' motions for JNOV, new trial, and remittitur. The circuit court's order states:
1. The court finds that [FG] and [Graver] failed to make a motion for a directed verdict at the conclusion of the evidence presented and thus waived any right to request a JNOV.
2. The failure of [FG], [Graver], or their attorney Matthew Campbell to appear on date of trial due to a "calendaring mistake" is not the type of "accident or surprise" contemplated under ARCP 59(a)(3).
3. There was evidence presented to the jury that persons acting on behalf of [FG] and [Graver] broke into a building owned by [VFD] and took possession of and sold a vehicle and equipment belonging to [VFD].
The court also finds that the undisputed evidence presented to the jury was that [FG] and [Graver] had received approximately $278,000 from the sale of two separate vehicles and equipment owned by [VFD] for a debt of approximately $90,000 and had not accounted for any expenses incurred nor made any effort to return to [VFD] any of the excess monies which were received.
....
5. The court finds that all conclusions of law were set forth in the instructions given to the jury at the conclusion of the evidence. Neither [FG] nor [Graver] failed to object [sic] to any jury instructions given by the court as required by ARCP 51.
6. Finally, findings of fact and conclusions of law are not required under ARCP 52 prior to entry of judgment in contested matters tried to a jury.
7. The court also notes that in the affidavit attached to the present motion that Mr. Campbell states, "My client, a corporate entity, ..." This statement is in direct contradiction to the following statement found in the "Amended Answer with Counterclaims" filed by Mr. Campbell on May 3, 2016. "[FG] admits that [Graver] is doing business as [FG]."
This appeal timely followed.
IV. FG's Motion to Dismiss
Appellants contend that the circuit court's finding that their motion to dismiss VFD's amended counterclaim was untimely is inexplicable. Appellants claim that VFD asked for permission to file an amended counterclaim and was allowed to do so. Appellants argue that they were entitled to respond under Rule 15(a), which response includes a dismissal motion. Ark. R. Civ. P. 15(a) (2018); see, e.g. , Perry v. Baptist Health , 358 Ark. 238, 189 S.W.3d 54 (2004). Appellants emphasize that the amended counterclaim filed by VFD did not incorporate the earlier complaint by reference; thus, it allowed appellants to assert the full panoply of available defenses, including the Rule 12 defenses. See James v. Williams , 372 Ark. 82, 270 S.W.3d 855 (2008). Appellants simply conclude that the "circuit court's refusal to consider the motion to dismiss based on the court's incorrect conclusion that the motion was untimely was therefore reversible error."
However, this argument does not address the circuit court's order. The "timeliness" referred to by the circuit court is FG's failure to move to dismiss the original counterclaim. The circuit court found:
As noted by Judge Holmes in his order remanding this case back from Federal Court, 'First Government is not a registered business entity, and by all appearances is in fact Paul Graver acting as a sole proprietorship.' As such, it was incumbent upon the Plaintiff to raise the issues asserted in his current Motion to Dismiss in response to the Defendant's original Counterclaim filed in this matter. This the Plaintiff did not do, and such issues are waived.
It is not the duty of this court to research or develop arguments for an appellant on appeal. Green v. George's Farms, Inc. , 2011 Ark. 70, at 10, 378 S.W.3d 715, 722. Because appellants fail to address on appeal the circuit court's reasoning, we affirm the circuit court's denial of appellants' motion to dismiss.
V. Motion for Continuance
Appellants argue that the circuit court erred in refusing to continue or delay the start of trial. Appellants argue that counsel mistakenly believed that trial would begin the day after it was scheduled. The circuit court did not delay the trial, and counsel arrived "just as [VFD] was giving its closing argument." Counsel for appellants gave a closing argument and made several posttrial motions, which were denied. Appellants argue that the trial could have easily been postponed until the afternoon or the next day because it had been scheduled for two days. This would have allowed appellants to present their case to the jury on lack of liability and damages. Appellants argue that the denial of a continuance resulted in a complete and utter denial of access to justice. They claim that the court's denial, both over the phone and off the record, without presentation of argument on the record, was improvident, thoughtless, and without due consideration. Appellants allege that they were prejudiced because they were not allowed to voir dire the jury, cross-examine witnesses, present evidence, rebut arguments, have any input on the jury instructions, or participate in any defense against VFD's claims. Appellants further argue that the circuit court's statement that there was "going to be a twist" to the trial and that appellants' counsel "said he was not going to be here at nine o'clock," but that the trial would go ahead, tainted the jury against appellants. Appellants contend that the trial judge's irritation is not a good reason to refuse to continue the case.
We hold that the circuit court did not abuse its discretion by refusing to grant a continuance. Whether a motion for continuance should be granted lies within the discretion of the circuit court, and its decision in this regard will not be overturned unless the circuit court abused that discretion by acting arbitrarily or capriciously. Roe v. Dietrich , 310 Ark. 54, 835 S.W.2d 289 (1992) ; Smith v. City of Little Rock , 279 Ark. 4, 648 S.W.2d 454 (1983). The circuit court should consider an attorney's conflicts that cause delays in preparing and presenting a case for trial; however, an attorney's trial-schedule conflicts and convenience must be subject to the convenience of the circuit court in setting its trial or hearing docket. Bolden v. Carter , 269 Ark. 391, 602 S.W.2d 640 (1980) ; Johnson v. Coleman , 4 Ark. App. 58, 627 S.W.2d 564 (1982).
VFD cites Cagle v. State , 47 Ark. App. 1, 882 S.W.2d 674 (1994), which is instructive because, even in a criminal matter, there was no abuse of discretion in refusing a continuance when the defendant did not appear on time based on counsel's advice that cases were set on the docket ahead of defendant's and counsel did not anticipate that all of those cases would settle. Having reviewed the procedural history of this case, we hold that the circuit court's strict adherence to its scheduling order was not an abuse of discretion and the judgment is affirmed.
VI. Punitive Damages
Judgment was entered against appellants in the amount of $258,195 in general damages and $1.5 million in punitive damages. Appellants argue that VFD's amended counterclaim does not assert a claim for punitive damages. Appellants note that the only passing mention of punitive damages was in VFD's DTPA claim. Appellants assert that the DTPA does not allow for punitive damages. See Ark. Code Ann. § 4-88-113(f) (Supp. 2017) (DTPA action may be brought to recover actual financial loss). Appellants argue that when VFD learned that appellants would not be in court, it raised the issue of punitive damages for the first time.
Appellants contend that to recover punitive damages, VFD had to prove by clear-and-convincing evidence that appellants continued a course of conduct with malice or in reckless disregard of the consequences, from which malice may be inferred, or that they intentionally pursued a course of conduct for the purpose of causing injury or damages. See Ark. Code Ann. §§ 16-55-206 (Supp. 2017) and -207 (Repl. 2005). Appellants complain that the circuit court's order denying the motion failed to reference the applicable standards. Further, appellants contend that they were provided with no notice regarding VFD's claim for punitive damages. This lack of notice, appellants contend, is the epitome of a due-process violation. Appellants ask this court to undertake a de novo review of the punitive-damages award and set it aside. Alternatively, appellants ask this court to reverse and remand for a new trial.
Any argument regarding the sufficiency of evidence or pleadings was waived when there was no objection to the evidence at the conclusion of the evidence. The appropriate time to move for directed verdict regarding the sufficiency of evidence or regarding punitive damages is when the nonmoving party rests its case. Superior Fed. Bank v. Mackey , 84 Ark. App. 1, 129 S.W.3d 324 (2003). Failing to make a directed-verdict motion on punitive damages or to object to the sufficiency of evidence either at the conclusion of evidence or upon the issuance of jury instructions precludes that issue from being considered on appeal. Id. However, appellants' motion for remittitur is preserved, as the jury's award is not known until after the verdict is given; thus, appellants' arguments regarding excessiveness were not waived. See id.
We are obliged to review punitive damages de novo. In Jim Ray, Inc. v. Williams , 99 Ark. App. 315, 321, 260 S.W.3d 307, 310-11 (2007), we stated,
Punitive damages punish and deter. Their premise is that the compensatory damages have made the plaintiff whole, but further sanctions are justified to punish the defendant for its conduct in the case and to deter future, similar conduct by the defendant and others. In evaluating whether the jury's verdict violated due process, we follow three guideposts: the reprehensibility of [defendant's] conduct; the ratio between compensatory and punitive damages; and the available penalties for similar conduct and prior awards in similar cases. BMW [of North America v. Gore] , 517 U.S. 559, 574-75, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) ; Aon Risk Servs. v. Mickles , 96 Ark. App. 369, 378-79, 242 S.W.3d 286, 293-94 (2006). Our analysis is fluid rather than exact. Ibid. As Judge Posner has put it, we are called to police a constitutionally acceptable range, not a fixed point.
Mathias v. Accor Economy Lodging, Inc. , 347 F.3d 672, 678 (7th Cir. 2003).
When there is an issue of excessiveness, we will review the proof and all reasonable inferences in the light most favorable to the appellee. Hudson v. Cook , 82 Ark. App. 246, 261, 105 S.W.3d 821, 831 (2003).
Ordinarily, we follow a two-step analysis in determining whether a punitive-damage award is excessive. First, we determine whether the award is excessive under state law. That entails an analysis of whether the jury's verdict is so great as to shock the conscience of the court. See Advocat , [Inc. v.Sauer , 353 Ark. 29, 49, 111 S.W.3d 346, 357 (2003) ]. It also entails a consideration of the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Hudson [v. Cook , supra ]. Second, we consider the award in light of the federal due process analysis in BMW of North America , [supra ]. This involves an analysis of the degree of the defendant's reprehensibility or culpability; the relationship between the penalty and the harm; and the sanctions imposed in other cases for comparable misconduct. Hudson v. Cook, supra. The United States Supreme Court recently elaborated on the factors to be considered when assessing the degree of a defendant's reprehensibility: whether the harm caused was physical as opposed to economic; whether the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; whether the target of the conduct had financial vulnerability; whether the conduct involved repeated actions or was an isolated incident; and whether the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm Mut. Ins. Co. v. Campbell , 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). The Court in that case also recognized that, in practice, few awards exceeding a single-digit ratio between compensatory and punitive damages will satisfy due process.
Superior Fed. Bank , 84 Ark. App. at 20-21, 129 S.W.3d at 337.
In determining whether the punitive-damages award was excessive under state law, we consider whether the award shocks the conscience of the court. Given the evidence as set forth above, including appellants' direct violation of the circuit court's order to cease and desist any repossession efforts and that repossession of VFD's fire trucks left portions of the county vulnerable, we hold that the punitive-damages award was not excessive under state law. We similarly conclude that the award did not violate federal due process based on the same facts and behavior of appellants as proved by VFD. Further, the punitive-damages award does not exceed a single-digit ratio between compensatory and punitive damages. Id.
VII. Motion for New Trial
Appellants contend that they sought a new trial based on four points: (1) irregularities in the proceedings because they did not participate at trial; (2) counsel's calendaring error was an accident or surprise within the meaning of Arkansas Rule of Civil Procedure 59(a)(3) (2017); (3) the jury's award of punitive damages could only have been made under the influence of passion or prejudice; and (4) the use of a general-verdict form likely precluded appellate review of the jury's basis for awarding punitive damages. The circuit court denied the motion for new trial, finding that the calendaring error was not sufficient to warrant a new trial.
Appellants argue that the question for evaluating a motion for new trial based on irregularities in the proceedings is whether the irregularities materially affected the substantial rights of the party seeking a new trial. Suen v. Greene , 329 Ark. 455, 947 S.W.2d 791 (1997) (holding that a party moving for new trial on basis of irregularity in proceeding or misconduct by jury or prevailing party must show that the party's rights have been materially affected by demonstrating that reasonable possibility of prejudice resulted from misconduct). Appellants argue that their absence from the proceedings prevented them from participating in jury selection, making objections, or presenting evidence. Appellants contend that denying their motion based on irritation with the age of the case was improper, and the denial of the motion for new trial was a manifest abuse of discretion.
A motion for new trial is addressed to the sound discretion of the trial court, and the trial court's refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. Sharp Co. v. Ne. Ark. Planning & Consulting Co. , 269 Ark. 336, 602 S.W.2d 627 (1980). An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Ford Motor Co. v. Nuckolls , 320 Ark. 15, 894 S.W.2d 897 (1995) ; Nazarenko v. CTI Trucking Co. , 313 Ark. 570, 856 S.W.2d 869 (1993).
Buckley v. Summerville , 2018 Ark. App. 100, at 5-6, 543 S.W.3d 534, 538.
We hold that the circuit court did not exercise its discretion thoughtlessly and without due consideration. The circuit court's order explicitly found that appellants' failure to appear is not encompassed under Rule 59(a)(3), which provides that a new trial may be granted for an accident or surprise that ordinary prudence could not have prevented. Ordinary prudence could have easily prevented appellants' failure to appear at the scheduled trial. Further, appellants' absence at trial was not the only limitation they faced because appellants' failure to follow the circuit court's scheduling orders throughout the case had hindered their ability to present evidence and witnesses at trial.
VIII. Motion to Strike Counterclaims
Appellants argue that the circuit court, "apparently acting sua sponte," erred in striking appellants' counterclaims. The circuit court found appellants' pleading untimely because it was filed after the discovery cutoff. Appellants recite Arkansas Rule of Civil Procedure 13(a), which prevents a multiplicity of lawsuits arising from one set of circumstances. See McJunkins v. Lemons , 52 Ark. App. 1, 913 S.W.2d 306 (1996). Appellants contend that under Rule 13, when a pleader fails to assert a counterclaim, he shall be entitled to assert such counterclaim by amended or supplemental pleading subject to the requirements and conditions of Rule 15. Ark. R. Civ. P. 13(e). Under Rule 15, a party may generally supplement or amend his pleadings at any time. Upon motion of an opposing party, the court may strike the amended pleading or grant a continuance if it determines that prejudice would result or the disposition of the cause would be unduly delayed by the amendment. See Ark. R. Civ. P. 15(a), (d). Appellants cite Ultracuts, Ltd. v. Wal-Mart Stores, Inc. , 343 Ark. 224, 33 S.W.3d 128 (2000), holding that it was reversible error to strike the amended complaint when the court made no finding of prejudice.
Appellants contend that, even though appellee filed a motion to dismiss appellants' counterclaim, appellee did not file a motion to strike. The only motion to strike was aimed at appellants' motion for partial judgment on the pleadings. Appellants argue that Rule 15 requires a motion to strike be filed before the circuit court determines whether prejudice would result to that party or if the case would be unduly delayed by the amendment. See Turner v. Stewart , 330 Ark. 134, 952 S.W.2d 156 (1997) (holding that when appellant did not request a continuance or demonstrate that she would be prejudiced or that undue delay would result if the court should allow the amendment, and by applying Rule 15, the circuit court did not abuse its discretion in finding that the amended answer did not prejudice appellant). Appellants argue that, inasmuch as appellee did not file a motion to strike, the striking of appellants' counterclaims was improper, reversible error on its face.
Appellants contend that the circuit court erred by failing to make any finding regarding prejudice or delay, simply finding appellants' pleading untimely because it was filed after the discovery cutoff. Appellants contend that appellee did not demonstrate or even argue that it was prejudiced by the counterclaim. Thus, the circuit court's finding falls short of its finding of prejudice.
Appellants contend that VFD had not sought leave for additional discovery, and appellants' claims arose from the same operative facts, using the same documents and evidence as VFD's claims. Appellants argue that VFD did not demonstrate prejudice. Appellants claim that because there was no prejudice in allowing the pleading, the decision to strike it was an abuse of discretion.
Appellants' arguments ignore the circuit court's reasoning in its September 8, 2016 order as follows:
3. Portions of the Court's prior Order pertaining to the exclusion of Paul Graver as a witness shall remain in effect and Paul Graver and First Government Lease Company shall be prohibited from presenting any other witnesses as they were not produced for a deposition between the dates of November 24 and December 5 as previously ordered by this Court.
4. The Court is striking Paul Graver and First Government Lease Company's claims against the defendant. Paul Graver is doing business as First Government Lease Company and was a party to this action prior to the passing of the Court's discovery deadlines. Accordingly, Paul Graver and First Government Lease Company shall not be permitted to bring any claim against the Defendant herein.
Our standard of review on this issue was stated by the Arkansas Supreme Court:
The circuit court is vested with broad discretion in allowing or denying amendments. Neal v. Sparks Reg'l Med. Ctr. , 2012 Ark. 328, 422 S.W.3d 116. While Rule 15 allows for liberal amendments of pleadings, we adhere to our well-established standard of review that we will not reverse a circuit court's decision allowing or denying amendments to pleadings absent a manifest abuse of discretion. Id.
Deer/Mt. Judea School Dist. v. Kimbrell , 2013 Ark. 393, at 20, 430 S.W.3d 29, 44.
The circuit court's conclusion that appellants would not be allowed to bring any claim against appellee was not an abuse of discretion. The circuit court, being intimately familiar with the case, ruled that there was no difference between Graver and FG. Accordingly, having failed to participate in discovery under the scheduling orders, appellants were properly precluded from bringing their claims after the applicable deadlines had passed.
Affirmed.
Abramson and Murphy, JJ., agree.
Appellants filed a motion on May 16, 2016, to correct the circuit court's ruling that excluded evidence not provided before November 13, 2014. The correct deadline was November 24, 2014, and the circuit court granted this request.
The circuit court issued a show-cause order against appellants' attorney, Matthew Campbell, for his failure to notify the circuit court of the interlocutory appeal, which resulted in a jury being called for service on August 18-19, 2016. After a hearing on September 8, the circuit court did not find Matthew Campbell in contempt but sanctioned him in the amount of $915 for his failure to notify the court of the interlocutory appeal by ordering him to personally reimburse Scott County for the expense of calling in the jury. This order was set aside on February 16, 2017.
This appeal was dismissed by the Arkansas Court of Appeals on June 7, 2017, for failure to file briefs.
The circuit court's docket sheet reflects that a pretrial conference was held on February 9, 2017, but there is no evidence of such hearing in the record. A letter from the court dated January 9, 2017, indicates that the pretrial hearing could have been held without the benefit of a recording. | [
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LARRY D. VAUGHT, Judge
Shelby Murphy appeals the order entered by the Union County Circuit Court terminating her parental rights to her daughter, D.M. (born February 3, 2016). Murphy's counsel has filed a motion to withdraw and a no-merit brief pursuant to our rules and case law, stating that there are no meritorious grounds to support an appeal. Ark. Sup. Ct. R. 6-9 (2017); Linker-Flores v. Ark. Dep't of Human Servs. , 359 Ark. 131, 194 S.W.3d 739 (2004). Our court clerk mailed-restricted delivery, return receipt requested-certified copies of counsel's motion and brief to Murphy's last-known addresses informing her of her right to file pro se points for reversal. Murphy has not filed pro se points for reversal, and the Arkansas Department of Human Services (DHS) has not filed a brief. We affirm the circuit court's decision to terminate Murphy's parental rights and grant counsel's motion to withdraw.
On June 20, 2016, DHS received reports of child maltreatment and environmental neglect regarding D.M. Specifically, it was reported that Murphy was using drugs while holding D.M. and that Murphy's home was filthy. That day, a DHS investigator went to Murphy's home and found the home was messy, not filthy, and that Murphy would not submit to a drug test. However, Murphy did submit to a drug test on June 28, 2016, and she tested positive for THC, methamphetamine, and amphetamine. DHS took custody of D.M., and on July 5, 2016, filed a petition for emergency custody and dependency-neglect. An ex parte order was entered on July 5, 2016.
D.M. was adjudicated dependent-neglected following a hearing on August 1, 2016, based on Murphy's drug use and environmental neglect. In its adjudication order, the circuit court directed Murphy to follow the case plan; obtain and maintain stable, clean, adequate, and suitable housing; obtain and maintain stable employment; complete parenting classes; submit to random drug testing and test negative on all tests; not use or possess illegal drugs; complete a drug assessment and follow the recommendations; and attend and participate in individual counseling. The court set the goal as reunification and ordered family services. Review hearings were held on November 21, 2016, and March 6, 2017.
After a June 19, 2017 permanency-planning hearing, the circuit court entered an order finding that Murphy had not made significant, measurable progress toward achieving the goals established in the case plan. The court further found that Murphy had not diligently worked toward reunification, did not consistently visit D.M., did not comply with the case plan, did not complete intensive outpatient-drug treatment, did not complete substance-abuse treatment with the ACTS program, did not complete parenting classes, and had been jailed twice during the case.
On July 31, 2017, DHS filed a petition to terminate Murphy's parental rights alleging the failure-to-remedy, abandonment, and aggravated-circumstances grounds. DHS also alleged that termination of Murphy's parental rights was in D.M.'s best interest.
At the termination hearing, DHS caseworker Eugenia Ford testified that D.M. had been removed from Murphy's custody on June 28, 2016, due to Murphy's inadequate supervision and drug use. Ford stated that the original goal of the case was reunification and that DHS offered the following services to Murphy: parenting classes; referrals for drug assessments, mental-health counseling, and the ACTS program; random drug screens; drug treatment; and visitation. Ford testified that Murphy maintained stable housing for only three months during the case, was in jail three times during the case, and was incarcerated at the time of the termination hearing. Ford said that D.M. had been in foster care for 446 days, and of that time, Murphy had been incarcerated for 291 days. Murphy was not in jail for 155 days and had fifty-seven opportunities to visit D.M., yet she attended only fourteen visits. Murphy's last visit with D.M. was in late May 2017. Ford said that when Murphy was not in jail, she was difficult to locate.
Ford also stated that Murphy did not complete parenting classes. And although Murphy tested negative for illegal drugs several times in February, March, and May 2016, Murphy tested positive for methamphetamine on July 14, 2016. Ford testified that Murphy admitted using methamphetamine in April 2017. Ford further stated that while Murphy completed the drug assessment, she did not complete the intensive outpatient treatment that was recommended. Her last treatment was on April 7, 2017. Murphy was also ordered to complete ACTS treatment; however, she failed to complete that treatment as well. Ford said that Murphy was discharged from counseling in April 2017 for nonattendance. Ultimately, Ford requested that the circuit court grant DHS's petition to terminate Murphy's parental rights to D.M.
Crystal Williams, a DHS adoption specialist, testified that D.M. is healthy and young and that there are no known medical or physical barriers to her adoption. Williams further stated that using DHS's data-matching tool, there were 398 adoptive families who matched a child with D.M.'s characteristics and that DHS knows of specific families who may wish to adopt her.
Murphy testified that she heard Ford's testimony and did not disagree with it. She admitted that she was currently incarcerated, adding that she was scheduled to attend a court hearing the next day and that she intended to plead guilty in exchange for five years' probation. Murphy also admitted that if released, she did not know where she was going to live but that her family was going to help her. Murphy conceded that she has a drug problem and needs help. Murphy stated that she participated in some outpatient drug treatment but felt that she needed an inpatient program. She also testified that she attended two counseling sessions and then stopped because she "got high again."
At the conclusion of the hearing, the circuit court found that DHS had met its burden of proving that the aggravated-circumstances ground supported termination of Murphy's parental rights and that termination was in D.M.'s best interest. The circuit court entered a termination order on November 29, 2017. This no-merit appeal followed.
We review termination-of-parental-rights cases de novo. Roland v. Ark. Dep't of Human Servs. , 2018 Ark. App. 333, at 3, 552 S.W.3d 443. An order terminating parental rights must be based on a finding by clear and convincing evidence that the sought-after termination is in the children's best interest. Id. , 552 S.W.3d at 445. The circuit court must consider the likelihood that the children will be adopted if the parent's rights are terminated and the potential harm that could be caused if the children are returned to a parent. Id. , 552 S.W.3d at 445. The circuit court must also find that one of the grounds stated in the termination statute is satisfied. Id. , 552 S.W.3d at 445. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction that the allegation has been established. Id. , 552 S.W.3d at 445. When the burden of proving a disputed fact is by clear and convincing evidence, we ask whether the circuit court's finding on the disputed fact is clearly erroneous. Id. , 552 S.W.3d at 445. 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. , 552 S.W.3d at 445.
In dependency-neglect cases, if, after studying the record and researching the law, appellant's counsel determines that the appellant has no meritorious basis for appeal, then counsel may file a no-merit petition and move to withdraw. Id. , 552 S.W.3d at 445 (citing Ark. Sup. Ct. R. 6-9(i)(1) (2017) ). The petition must include an argument section that lists all adverse rulings that the parent received at the circuit court level and explain why each adverse ruling is not a meritorious ground for reversal. Id. at 3-4, 552 S.W.3d at 445-46 (citing Ark. Sup. Ct. R. 6-9(i)(1)(A) ). The petition must also include an abstract and addendum containing all rulings adverse to the appealing parent that were made during the hearing from which the order on appeal arose. Id. at 4, 552 S.W.3d at 445 (citing Ark. Sup. Ct. R. 6-9(i)(1)(B) ).
Counsel correctly states that the only adverse ruling in this case was the circuit court's termination decision. Counsel contends that any challenge to this finding would be frivolous.
In terminating Murphy's parental rights, the circuit court found that DHS proved that Murphy subjected D.M. to aggravated circumstances, meaning 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)(A), (B)(i) (Supp. 2017). In support of its aggravated-circumstances finding, the circuit court found that Murphy had spent a great portion of time during this case in jail. The court further found that had Murphy been released from jail the day after the termination hearing and given additional time to work on the case plan, reunification would not result. The court found that when Murphy was out of jail, she had "not done much to comply with the case plan and court orders." The evidence supports this finding.
For instance, when out of jail, Murphy continued to use illegal drugs as demonstrated by a positive drug test for methamphetamine. Murphy conceded at the termination hearing that she has a drug problem and needs help, yet she did not complete intensive outpatient drug treatment, did not complete the ACTS substance-abuse treatment program, did not complete counseling, and did not complete parenting classes. Furthermore, when provided fifty-seven opportunities to visit D.M., she visited the child only fourteen times. She failed to obtain suitable housing. When out of jail, Murphy was difficult to locate. In February and March 2017, Ford went to Murphy's residence, but no one would come to the door. Ford testified she could not locate Murphy in April 2017. According to Ford, Murphy would report that she was staying with friends but never provided an address. Murphy failed to attend the permanency-planning hearing on June 19, 2017.
Based on this evidence, we hold that the circuit court did not err in finding that there was little likelihood that services to Murphy would result in successful reunification. This evidence first demonstrates that Murphy could not stay out of jail, and when she was out of jail, she showed little or no interest in cooperating with DHS or visiting D.M. We have recognized that a parent's past behavior is often a good indicator of future behavior. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, at 2, 489 S.W.3d 182, 184. In light of Murphy's demonstrated lack of interest in reunifying with her daughter, we conclude that there is no merit to the appeal of the aggravated-circumstances ground. Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, at 9-10, 538 S.W.3d 842, 849 (affirming a termination order based on aggravated circumstances because the evidence showed that when the father was out of jail, he showed little or no interest in cooperating with DHS or visiting his child).
Counsel for Murphy also contends that it would be frivolous to seek reversal of the circuit court's best-interest findings. Facts relevant to those finding are as follows. The DHS adoption specialist testified that D.M. is healthy, young, and adoptable. The specialist further stated that there were 398 adoptive families who matched a child with D.M.'s characteristics and that DHS knows of specific families who may wish to adopt her. This evidence has been held sufficient to support the likelihood-of-adoptability consideration within the best-interest analysis. Matlock v. Ark. Dep't of Human Servs. , 2015 Ark. App. 184, at 8, 458 S.W.3d 253, 257-58 (holding that there was no merit to a best-interest challenge with respect to the adoptability consideration when an adoption specialist testified that there was a high potential for the child to be adopted, with more than 400 matching families on the list, because of the child's young age and lack of any major health or developmental delays).
Regarding potential harm, the evidence showed that Murphy tested positive for methamphetamine during the case and that she agreed that she has a drug problem. Yet Murphy refused to complete the drug-treatment programs, counseling, or parenting classes. She was incarcerated three times during the case and was incarcerated at the time of the termination hearing. While she testified that she hoped to be released from jail the day following the termination hearing, she added that she did not have housing or employment arranged upon her release. There was also evidence that when she was not incarcerated, she was difficult to locate-even evasive-and she did not visit D.M. regularly.
Under these facts, returning D.M. to Murphy's custody would subject D.M. to potential harm. An addicted parent's illegal drug use and instability may demonstrate a risk of potential harm for the children. Robinson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 262, at 5, 520 S.W.3d 322, 325 (holding that continued drug use demonstrates potential harm sufficient to support a best-interest finding in a termination-of-parental-rights case); Matlock , 2015 Ark. App. 184, at 8, 458 S.W.3d at 257-58 (holding that there was no merit to a sufficiency challenge because the mother minimally visited her child, refused all other services, was incarcerated multiple times during the case, was incarcerated at the time of the termination hearing, did not have a stable home, and admitted drug use). Accordingly, we hold that counsel has adequately explained why there is sufficient evidence to support the court's best-interest finding and hold that the appeal of that issue would be wholly frivolous.
In sum, we hold that counsel has adequately addressed the sufficiency of the evidence in the no-merit brief and complied with the requirements of Linker-Flores and this court's rules. Accordingly, we affirm the circuit court's termination order and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Glover and Hixson, JJ., agree.
The ACTS program is a local faith-based outpatient substance-abuse program.
Ford testified that Murphy tested positive additional times, but Ford did not testify to the dates of those tests.
The order also terminated the parental rights of Wesley Murphy, D.M.'s father. He is not a party to this appeal. | [
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Goodwin's friend Phillip Curry also testified that Goodwin had killed Turner. Curry was not present when Turner was killed; however, pursuant to his testimony at the 2014 Rule 37 hearing and his November 21, 2006 affidavit, Curry discussed the shooting with Reams and Goodwin the day after the shooting. Curry testified that Reams told him that while he was trying to turn the car off, he heard a gunshot. Curry testified that Goodwin told him that Reams and Turner were "tussling in the car, and [he] couldn't see what was going on, and [he] just shot."
The State presented one witness, Flora Cook, who is the Chief Deputy Clerk of the Jefferson County Circuit Clerk's Office. Cook testified that the initial selection of jurors is through voter-registration rolls and the use of a jury wheel.
Following the Rule 37 hearing, both Reams and the State submitted posthearing briefs from September 30, 2015, through September 23, 2016. On April 13, 2017, the circuit court entered its order granting in part Reams's Rule 37 petition. Pertinent to the present appeal, the circuit court denied Reams's claims that counsel was ineffective during the guilt/innocence phase. With regard to Reams's claims that counsel was ineffective during the penalty phase of trial, the circuit granted his petition and vacated Reams's death sentence.
On May 10, 2017, Reams timely filed his notice of appeal, and the State timely filed its notice of cross-appeal on May 12, 2017. With this lengthy procedural history in mind, we move to the merits of Reams's appeal and the State's cross-appeal.
I. Standard of Review
When reviewing a circuit court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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 for judging a claim of ineffective assistance of counsel must be '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.' Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]." Henington v. State , 2012 Ark. 181, at 3-4, 403 S.W.3d 55, 58. Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State , 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Springs v. State , 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783.
II. Guilt/Innocence Phase
On direct appeal, Reams presents two arguments regarding the guilt/innocence phase of his trial: (1) his trial counsel was ineffective during the guilt/innocence phase of trial, and thus, he must receive a new trial; and (2) his claims of jury discrimination were cognizable in his Rule 37 proceedings.
As to Reams's arguments regarding trial counsel's ineffectiveness during the guilt/innocence phase, only two of his subpoints are properly before us: (1) trial counsel was ineffective at trial for failing to object to evidence of other crimes; and (2) trial counsel was ineffective for failing to challenge the systematic underrepresentation of African American potential jurors pursuant to Duren v. Missouri , 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). With regard to these claims, the circuit court specifically found as follows:
The 2006 Memorandum of Law contains 14 claims lettered "a" through "n." The first 13 of these repeat claims made in the original Rule 37 petition, and none of them is cognizable because they are claims that could have been raised at trial and on direct appeal. See generally, e.g., Howard v. State , 367 Ark. 18, 26, 238 S.W.3d 24, 32 (2006). Even as ineffective-assistance allegations, however, they do not support relief as they are conclusory. See , e.g. , Jackson v. State , 352 Ark. 359, 371, 105 S.W.3d 352, 360 (2003). The petitioner's mere addition of a sentence that counsel was ineffective with respect to these many otherwise-not-cognizable claims cannot support relief. Thus, these claims ("a" through "m") are denied for that reason.[ ]
....
Given the petitioner's trial testimony admitting to the planning and commission of the crime-the robbery at gunpoint of a stranger at an ATM at night resulting in his shooting death-(Tr. R. 731-79), Reams v. State , 322 Ark. 336, 339, 909 S.W.2d 324, 326 (1995), his guilt-phase ineffective-assistance claims do not merit any relief. In the face of such an admission, there simply is nothing to suggest the reasonable probability of a different outcome-i.e., acquittal of capital murder. Cf. generally Strickland v. Washington , 466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984) ("[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."). All of the petitioner's guilt-phase claims are rejected for want of a showing of prejudice generally in light of his admission at trial to his complicity in the crime.
....
d. 404(b), Prior Crimes Evidence ...; Dixon v. State , 2014 Ark. 97, at 7-8 [2014 WL 805350] (per curiam) (where evidence admissible as res gestae , counsel not ineffective); Sasser v. State , 338 Ark. 375, 391-92, 993 S.W.2d 901, 910-11 (1999) (per curiam) (objection to prior-evidence as to 404(b) not deficient for failure to independently raise due-process objection).
....
f. Fair cross section - Jury Challenges ... Wainwright v. State , 307 Ark. 569, 577-78, 823 S.W.2d 449, 453 (1992) (per curiam) (fair cross section ineffective-assistance claim fails in absence of showing of prejudice).
Batson - Jury Challenges ... Wooten v. State , 351 Ark. 241, 247-48, 91 S.W.3d 63, 67 (2002) (failure to show relief would have been granted had Batson challenge been made); Reams , 322 Ark. at 340-43, 909 S.W.2d at 327-328 ( Batson claim raised on direct appeal).
(Footnotes omitted.)
With regard to both jury challenges in subsection "f," the order contained the following footnote: "Judge Brown ruled that the claims in "f" must succeed together in order for the petitioner to obtain relief on them. As each fails on its own, they also fail together."
A. Other Crimes
For his first point on appeal from the guilt/innocence phase of his trial, Reams argues that his trial counsel was ineffective for failing to object to the admission of evidence of his other crimes. Reams asserts that references to his involvement in crimes unrelated to the capital-murder charge-the burglary of the dry cleaners, the robbery of a bus station, and the robbery at an ATM-were featured prominently throughout the guilt/innocence phase of his trial. Reams argues that the jury should never have heard any of this prejudicial, other-crimes evidence during the guilt/innocence phase of his trial. To support his position, Reams argues that this court has made clear that, under Rule 404(b) of the Arkansas Rules of Evidence, other-crimes evidence can be admitted only if it is "independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal." Lockhart v. State , 2010 Ark. 278, at 9, 367 S.W.3d 530, 536.
As quoted above, the circuit court found that Reams failed to demonstrate that he had been prejudiced. We agree that given Reams's trial testimony admitting the planning and commission of the crime, Reams has failed to demonstrate prejudice under the Strickland analysis. To establish prejudice, Reams must show a reasonable probability that the jury's decision would have been different absent counsel's alleged errors. Howard, supra. If a claim fails under the prejudice prong of Strickland , it is unnecessary to first evaluate whether counsel's performance was deficient in some respect. Strickland , 466 U.S. at 697, 104 S.Ct. 2052 (stating that "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies"). Given Reams's testimony regarding his involvement in the planning and commission of the robbery and shooting death of the victim at an ATM, and given the circuit court's reliance on Reams's own testimony, we cannot say that the circuit court erred in its ruling. Thus, the circuit court did not clearly err in finding that Reams failed to demonstrate a reasonable probability that the jury's decision would have been different had the evidence of his other crimes been excluded. We affirm on this point.
B. Jury Composition
We now turn to the remainder of Reams's arguments on direct appeal, which occurred during the guilt/innocence phase of his trial and involve jury challenges. First, Reams argues that trial counsel was ineffective for failing to raise the fair-cross-section-of-the-jury violation based on the systematic underrepresentation of African American potential jurors pursuant to Duren v. Missouri , 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Second, Reams contends that the circuit court committed clear error in ruling that only Reams's claims of ineffective assistance of counsel were cognizable in his Rule 37 proceedings. Specifically, Reams argues that his Duren and Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claims are cognizable because they are structural in nature. Thus, Reams urges this court to reverse the circuit court's ruling that his Rule 37 claims are limited to ineffective assistance of counsel and remand for adjudication of his Duren and Batson claims.
1. Batson
We first consider Reams's Batson claim. Reams has already presented Batson arguments on direct appeal, which were rejected by this court. However, Reams contends that his new Batson claim is structural in nature and cognizable because new evidence in support of this claim was obtained from the Rule 37 proceedings. However, we hold that Reams has already argued Batson challenges before this court, which were rejected in his direct appeal, and we decline to revisit his claims. See Reams , 322 Ark. 336, 909 S.W.2d 324. Because Reams's Batson claims were raised in his direct appeal and rejected by this court, Rule 37 does not provide an opportunity to reargue settled points. Coulter v. State , 343 Ark. 22, 31 S.W.3d 826 (2000) (citing Trimble v. State , 336 Ark. 437, 986 S.W.2d 392 (1999) (per curiam); Hall v. State , 326 Ark. 318, 933 S.W.2d 363 (1996) ; Dunham v. State , 315 Ark. 580, 868 S.W.2d 496 (1994) ).
2. Duren
We now turn to Reams's fair-cross-section-of-the-jury claims pursuant to Duren . His argument on appeal is twofold. First, Reams argues that he was tried, convicted, and sentenced to death by a predominantly Caucasian jury that was drawn from a mostly Caucasian jury pool and did not come close to reflecting a fair cross-section of the Jefferson County community. Reams argues that trial counsel was constitutionally deficient because he knew that the jury pools in Jefferson County were not representative of the community and knew the likely reason for it-racially discretionary selection by the courtroom bailiffs-yet trial counsel failed to engage in reasonable advocacy to ensure that Reams's Sixth Amendment rights were protected. Regarding the prejudice prong, Reams argues that the circuit court erroneously denied relief on the ground that Reams failed to prove that a jury not tainted by discrimination would have likely reached a different verdict. Reams contends that the only "prejudice" he had to demonstrate was that his underlying fair-cross-section claim had merit but was not raised because of trial counsel's deficient performance. For his second fair-cross-section claim, Reams argues that the circuit court committed clear error in ruling that only his claim of ineffective assistance of counsel was cognizable in these Rule 37 proceedings. Specifically, Reams argues that his fair-cross-section claim is cognizable because it is structural in nature. Reams argues that he should therefore be permitted to raise a Duren claim in his Rule 37 proceeding.
Upon our review, we note that Reams recognizes that, generally, a petition under Rule 37 does not provide a remedy when an issue could have been raised at trial or argued on appeal. E.g. , Springs v. State , 2012 Ark. 87, at 14, 387 S.W.3d 143, 154 ; see also Sasser v. State , 338 Ark. 375, 383-84, 993 S.W.2d 901, 906 (1999) (stating that even constitutional issues must be raised in the circuit court and on direct appeal rather than in Rule 37 proceedings). Rule 37 is a postconviction remedy and, as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Hulsey v. State , 268 Ark. 312, 595 S.W.2d 934 (1980). However, we have made an exception for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Collins v. State , 324 Ark. 322, 920 S.W.2d 846 (1996). When we review a "fundamental" or "structural" error either on direct appeal or through the exception described above, the fundamental nature of the error precludes application of the "harmless-error" analysis. Sasser , 338 Ark. at 384, 993 S.W.2d at 906.
With respect to fundamental errors, we have held that the right to trial by a twelve-member jury is a fundamental right that falls within the above-stated exception. Collins, supra. We have also held that double-jeopardy protection is a fundamental right that can be raised in a Rule 37.1 proceeding. Rowbottom v. State , 341 Ark. 33, 13 S.W.3d 904 (2000). Additionally, the United States Supreme Court has determined that errors are structural in very limited cases. See United States v. Gonzalez-Lopez , 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (erroneous deprivation of the right to counsel of choice); Sullivan v. Louisiana , 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (right to trial by jury denied by giving defective reasonable-doubt instruction); Vasquez v. Hillery , 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (discriminatory exclusion of African American grand jurors); Waller v. Georgia , 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of the right to public trial); McKaskle v. Wiggins , 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of the right to self-representation); Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (denial of right to counsel). The Court has explained that these structural defects "defy analysis by 'harmless-error' standards" because they "affec[t] the framework within which the trial proceeds," and are not "simply an error in the trial process itself." Gonzalez-Lopez , 548 U.S. at 148-49, 126 S.Ct. 2557 (citing Arizona v. Fulminante , 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ).
Thus, the issue for our consideration is whether Reams's alleged fair-cross-section-of-the-jury violation falls within the very narrow structural- or fundamental-error exception. The United States Supreme Court has held that "[t]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community." Taylor v. Louisiana , 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Under the Sixth Amendment, "petit juries must be drawn from a source fairly representative of the community"; however, an accused is "not entitled to a jury of any particular composition."
Id. at 538, 95 S.Ct. 692. The Court explained further,
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power-to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. Duncan v. Louisiana , 391 U.S. [145] at 155-156, 88 S.Ct. [1444] at 1450-1451 [20 L.Ed.2d 491 (1968) ]. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. 'Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case.... (T)he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.' Thiel v. Southern Pacific Co. , 328 U.S. 217, 227, 66 S.Ct. 984, 90 L.Ed. 1181 (1946) (Frankfurter, J., dissenting).
419 U.S. at 530-31, 95 S.Ct. 692 (alteration in original).
Based on Duren , to establish a prima facie violation of the fair-cross-section requirement, a litigant must demonstrate (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. 439 U.S. 357, 364, 99 S.Ct. 664.
In Grinning v. City of Pine Bluff , 322 Ark. 45, 907 S.W.2d 690 (1995), this court considered Grinning's conviction for disorderly conduct that was tried before a six-member jury. On appeal, Grinning challenged the constitutionality of her jury. The State contended that Grinning had waived any objection and urged this court to hold that the issue had not been preserved for review. Relying on Winkle v. State , 310 Ark. 713, 841 S.W.2d 589 (1992), and Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980), we reached the merits in Grinning's appeal and reversed the circuit court:
In both cases, neither the appellants nor their counsel objected to the violation of their jury trial right. In Winkle , this court stated that denial of the right to trial by jury in a criminal case, without the requisite waiver in accordance with the law, is a serious error for which the trial court should intervene, and is therefore an exception to the contemporaneous objection rule. Winkle , 310 Ark. 713, 717, 841 S.W.2d 589, 591 (citing Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980) ).
Grinning , 322 Ark. at 49, 907 S.W.2d at 692. Grinning extended Winkle by holding that the right to a jury trial included not only having a jury, but also having a jury composed of twelve members rather than only six. Id. Almost a decade later, in Anderson v. State , 353 Ark. 384, 397, 108 S.W.3d 592, 600 (2003), we again addressed the significance of a right to a jury trial and explained,
The right to jury trial is part of the basic structure of our courts. Every judge, on his own motion, should accord such a basic right. In Wicks v. State , supra , we set out various exceptions to the contemporaneous objection rule, and we provided that the rule is not applicable when the trial court should intervene on its own motion to correct a serious error. This is such a serious error. The right to a trial by jury in a criminal case is a fundamental right of our jurisprudence and is recognized by the Magna Charta, the Declaration of Independence, the federal constitution, and our state constitution.
Anderson , 353 Ark. at 398, 108 S.W.3d at 600 (citing Winkle , 310 Ark. at 717-18, 841 S.W.2d at 591 ).
Based on our discussion above, the law is clear: the right to a jury trial is part of the basic structure of our courts. Here, in addressing Reams's argument regarding the composition of his jury, we hold that a twelve-member jury is meant to include twelve members who represent a fair cross-section of the community. In reaching this conclusion, we are mindful that this extension is supported by our case law. As we explained in Grinning , "We are well aware of the view expressed by the state that some abuse of the criminal justice system could result from our construction of the Arkansas Constitution and the Arkansas Rules of Criminal Procedure. However ... this may be the price the judicial system must pay to ensure that a defendant is not deprived of his fundamental constitutional right to a trial by jury." 322 Ark. at 50, 907 S.W.2d at 692 (internal citations omitted). Accordingly, we hold that a fair-cross-section-of-the-jury violation is structural and therefore cognizable in Rule 37 proceedings.
Having found that a fair-cross-section claim is structural in nature, we now turn to the circuit court's denial of Reams's ineffective-assistance claim on the basis that Reams failed to demonstrate the Strickland prejudice prong. Again, the circuit court found as follows:
f. Fair cross section - Jury Challenges ... Wainwright v. State , 307 Ark. 569, 577-78, 823 S.W.2d 449, 453 (1992) (per curiam) (fair cross section ineffective-assistance claim fails in absence of showing of prejudice).
The United States Supreme Court has held that in certain Sixth Amendment contexts, prejudice is presumed. Strickland , 466 U.S. at 692, 104 S.Ct. 2052. In Weaver v. Massachusetts , --- U.S. ----, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017), the United States Supreme Court addressed the issue of whether a defendant must demonstrate prejudice when a structural error is raised in the context of an ineffective-assistance-of-counsel claim. In Weaver , the Court specifically found that a violation of the right to a public trial, which has been deemed structural in nature, does not necessarily lead to a fundamentally unfair trial. Id. at 1911. Therefore, with regard to prejudice, the Court held that a defendant must demonstrate either a reasonable probability of a different outcome in his or her case or that the structural error was so serious as to render his or her trial fundamentally unfair. Id. The Court explained that "[n]either the reasoning nor the holding here calls into question the Court's precedents determining that certain errors are deemed structural and require reversal because they cause fundamental unfairness, either to the defendant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process." Id. The Court cited Vasquez v. Hillery , supra , which holds that the exclusion of African Americans from grand juries is a structural error.
Based on our discussion above and a review of the appeal before us, we hold that Reams's fair-cross-section claim is analogous to the structural error of excluding African Americans from grand juries. See Hillery. Unlike the public-trial violation in Weaver , a fair-cross-section violation necessarily renders one's trial fundamentally unfair. This holding is likewise consistent with our decision in Wainwright v. State , 307 Ark. 569, 823 S.W.2d 449 (1992) (per curiam). The parties dispute the meaning of our reference to prejudice in Wainwright . The State contends that Wainwright supports its position that fair-cross-section violations are not structural errors and that prejudice is still required to show ineffective assistance of counsel. In that case, the petitioner alleged that trial counsel was ineffective for failing to timely object to the makeup of the jury panel before voir dire began or in failing to present evidence to show that the panel did not represent a fair cross-section of the community. We explained that the "petitioner has not shown that he was prejudiced in that he has not demonstrated that the jury which tried him was not selected in accordance with the requirements of the Sixth Amendment." Id. at 577-78, 823 S.W.2d at 453-54 (emphasis added). Reams contends that this language indicates that "this Court has made clear that ineffective assistance of counsel claims based on the failure to litigate fair cross-section violation must employ the prejudice test reserved for structural errors-that is, the Court must ask whether an error occurred rather than ask whether a reasonable probability exists that the error affected the outcome." We agree with Reams's interpretation of Wainwright and take this opportunity to clarify that the prejudice prong of Strickland is demonstrated through the existence of a fair-cross-section violation. Stated differently, prejudice is presumed if a fair-cross-section violation is established. Accordingly, we hold that the circuit court clearly erred by requiring Reams to prove that he was prejudiced by his counsel's failure to pursue the fair-cross-section claim. We reverse and remand for further findings as to whether Reams has established a valid Duren claim using the three-prong test set forth above.
III. Penalty Phase
On cross-appeal, the State argues that the circuit court's finding that Reams was denied effective assistance of counsel during the penalty phase of his trial was clearly erroneous. The State urges this court to conclude that trial counsel was not ineffective during the penalty phase for two reasons. First, the State argues that it is dubious that Goodwin would have testified at Reams's trial in 1993, undercutting the credibility and utility of Curry's claim that Goodwin admitted having been the shooter. Second, the State argues that even if Goodwin and Curry had testified that Goodwin was the shooter to support the mitigating circumstance, the question was not beyond dispute, particularly considering Reams's responsibility for procuring the firearm and his complicity-as the shooter or as an accomplice-in its use in the capital murder. Finally, the State argues that Reams cannot show prejudice under Strickland , because there is not a reasonable probability that the jury would not have sentenced him to death in light of the proof that he and Goodwin together committed the capital murder of Turner, without respect to which one had fired the fatal shot.
With regard to trial counsel's ineffectiveness during Reams's penalty phase, the circuit court found:
The question is whether he has shown evidence now that his trial counsel did not which would cast doubt on the reliability of his death sentence. The Court concludes that he has with respect to his co-defendant Alford Goodwin's admission to being the shooter. In other words, the Court concludes that he has shown the reasonable probability of a different outcome-that is, his trial jury would not have imposed a death sentence, despite its finding two aggravating circumstances, one for pecuniary gain and one for a previous violent felony. He has made that demonstration on the totality of the evidence, see , e.g. , Howard , 367 Ark. at 45, 238 S.W.3d at 44, as to whether he fired the fatal shot. The Rule 37 hearing testimony has left the Court with doubts that the petitioner fired the fatal shot. The Court concludes those doubts as demonstrated at the hearing would have caused at least one reasonable juror to have doubt that the petitioner should be sentenced to death, despite his unquestionable complicity in the capital murder.
Consequently, his sentence of death is vacated, and the case to be set for a new trial should the State seek to pursue a sentence other than life imprisonment without parole.
In Wiggins v. Smith , the United States Supreme Court explained that trial counsel's failure to investigate and present substantial mitigating evidence during the sentencing phase of a capital-murder trial can constitute ineffective assistance of counsel. 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). With respect to an ineffective-assistance-of-counsel claim regarding the decision of trial counsel to call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Banks v. State , 2013 Ark. 147, 2013 WL 1491272. When a petitioner alleges ineffective assistance of counsel for failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Wertz v. State , 2014 Ark. 240, at 4, 434 S.W.3d 895, 900 (citing Moten v. State , 2013 Ark. 503, 2013 WL 6327549 (per curiam) ). To demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Hickey v. State , 2013 Ark. 237, 428 S.W.3d 446. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Finally, "[w]hen assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness." Johnson v. State , 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996) (internal citations omitted). To review the circuit court's order and correctly determine this issue, we must look at all the evidence adduced at trial and at the Rule 37 hearing. Howard , 367 Ark. 18, 238 S.W.3d 24.
As for the State's assertion that it was dubious that Goodwin would have testified at Reams's trial, we disagree. Goodwin pleaded guilty to capital murder and was sentenced to life without parole on December 1, 1993. Reams's trial commenced on December 12, 1993. Thus, at the time of Reams's trial, Goodwin had already pleaded guilty to capital murder and had already been sentenced. At the Rule 37 hearing, Goodwin testified that he took the life of another human being on the night of May 5, 1993. Goodwin testified that he and Reams went to an ATM to rob someone and that person turned out to be Turner. Further, Goodwin testified that he shot Turner during the process of the robbery.
Throughout the trial, trial counsel's theory was that Goodwin had shot and killed Turner. Despite this defense theory, trial counsel testified at the Rule 37 hearing that he could not talk to Goodwin because Goodwin was represented by counsel. Trial counsel testified that he did not recall whether he had approached counsel for Goodwin but that he did not have a good working relationship with Goodwin's counsel. Trial counsel further testified that "[he didn't] know when [Goodwin] pled in relation to [Reams's] trial."
Based on the above testimony and in light of the defense's theory that Goodwin shot Turner, there is no strategic reason not to at least investigate and attempt to present Goodwin at trial to corroborate Reams's defense that he was not the shooter. Accordingly, we hold that trial counsel's failure to at least attempt to present Goodwin's testimony during the penalty phase of trial constitutes deficient performance. Stated differently, Reams has demonstrated that his trial counsel's performance fell below an objective standard of reasonableness and has thus satisfied the performance prong of Strickland .
Turning to the Strickland prejudice prong, we agree with the circuit court's determination that Reams "has shown the reasonable probability of a different outcome-that is, his trial jury would not have imposed a death sentence." We hold that trial counsel's error was sufficient to undermine confidence in the jury's decision to sentence Reams to death.
We conclude that trial counsel's failure to, at a minimum, attempt to present Goodwin's testimony during the penalty phase of trial constitutes ineffectiveness. Therefore, based on our standard of review, we cannot say that the circuit court clearly erred in its determination that trial counsel was ineffective for his failure to call Goodwin as a witness during the penalty phase. We affirm the circuit court's decision to vacate Reams's death sentence.
Affirmed in part and reversed and remanded in part on direct appeal; affirmed on cross-appeal.
Hart, J., concurs in part and dissents in part.
Wood and Womack, JJ., dissent.
I agree with the majority's conclusion in Reams's appeal that the circuit court erred in rejecting his Duren claim as uncognizable in Rule 37 proceedings. I also agree with the majority's decision in the State's cross-appeal to affirm the circuit court's finding that Reams is entitled to a new penalty-phase trial because his counsel failed to conduct an adequate investigation before his capital murder trial. I write separately to address Reams's argument that his trial counsel was ineffective during the guilt-phase of his capital murder trial for failing to investigate, interview, or present the testimony of either Alford Goodwin or Phillip Curry to support Reams's averment that Goodwin, and not Reams, was the one who shot and killed Gary Turner (hereafter, the "Goodwin-Curry Guilt-Phase Argument"). The majority disposes of the Goodwin-Curry Guilt-Phase Argument in a footnote, reading as follows:
The State correctly notes that not all of Reams's arguments on appeal were raised below or addressed by the circuit court. Specifically, as to the guilt/innocence phase, arguments regarding Phillip Curry, Alford Goodwin, and trial counsel's unpreparedness are not preserved.
Pages 449, Majority Opinion, fn. 2. I disagree with the majority's conclusion that this argument is not preserved for our review. As set forth in the following paragraphs, not only is it apparent from the record that this argument was raised, litigated, and ruled on below, but the parties and the circuit court also stipulated that this argument and others would be considered on appellate review. Furthermore, because my acceptance of this argument would impact upon my opinion as to the proper disposition of this case, I address the argument on its merits.
Finally, I disagree with the majority's treatment of Reams's Batson claim. I would not limit this court's remand to the substance of Reams's Duren claim, but would direct the circuit court to consider the merits of Reams's Batson claim as well, in light of newly presented evidence.
I. Preservation of the Goodwin-Curry Guilt-Phase Argument
First, contrary to the intimations contained in the majority opinion, the State does not allege that the Goodwin-Curry Guilt-Phase argument is not preserved for our review. While the State does argue on appeal that some of Reams's arguments are not preserved for our review, the Goodwin-Curry Guilt-Phase Argument is not one of them. This omission appears to have been entirely deliberate on the State's part, as set forth in the following paragraphs.
Second, the pleadings and the circuit court's final order reveal that this argument was raised, litigated, and ruled on below, making this issue ripe for our review. While it is true that the Goodwin-Curry Guilt-Phase Argument was not fully set out in the initially filed Rule 37 Petition, Reams did amend his petition after the parties exchanged discovery materials to include Curry's affidavit as an exhibit to support the arguments already raised in the petition. The original Rule 37 Petition, even before the attachment of the Curry affidavit, did plead that "Counsel failed to conduct a reasonably adequate guilt phase investigation, so he could subject the state's case-in-chief to meaningful adversarial testing[,]" though the original Petition went on to list investigative failures not directly related to Goodwin or Curry. Then on January 9, 2007, Reams attached to his Petition the Curry affidavit, which spelled out the details of Curry's knowledge about the case (particularly that Goodwin, and not Reams, was the shooter) and his availability to testify at Reams's capital murder trial. It is also apparent from Reams's motion filed on August 10, 2007 and the circuit court's order issued the same day that Reams had obtained Goodwin's presence from the Arkansas Department of Corrections to testify in the Rule 37 hearing, which began on August 20, 2007. All of this had transpired nearly ten (10) years before the Rule 37 trial judge issued its final order on April 13, 2017, which provided that "[a]ll of petitioner's guilt-phase claims are rejected for want of a showing of prejudice generally in light of his admission at trial to his complicity in the crime."
Third, not only does Reams's Petition with the attached Curry affidavit independently preserve the issue for our review, but the parties also stipulated at the conclusion of the Rule 37 hearing that any issues raised in post-hearing briefs would be ruled upon by the circuit court and preserved for appellate preview, in light of the protracted nature of the Rule 37 proceedings. What follows is an excerpt of the discussion between the parties and the circuit court at the conclusion of the Rule 37 hearing:
THE COURT : Frankly, I would prefer it be done by written brief.
[ PROSECUTION ]: Right. The State's fine with that. I agree with [Ream's postconviction counsel] completely about, you know, sort of a timing of it. And, perhaps, we can get together and give the Court a, sort of -- you know, as part of the brief, sort of a snap-shot as to what happened before. Make sure we have a record that has both of our court reporters. And then you might want to consider -- I mean, you might want to reraise the whatever -- remember the -- Judge Brown, that order that he gave. It was pretty -- I mean, it wasn't real limiting, but there were things in there that, you know could flesh out.
It is an important case, and whatever issue that procedurally is a cognizable issue in Rule 37 that they raise, we want the Court to consider, you know. We don't want a record for federal habeas purposes, we don't want a record here in state court that leaves something undecided.
THE COURT : Yes, sir.
[ PROSECUTION ]: I mean, we have as much of an interest as they do in having every issue that they raise decided.
THE COURT : Yeah, a real conclusion of the case.
End of excerpt.
The Goodwin-Curry Guilt-Phase Argument is one of the issues Reams raised and argued in his post-hearing briefs. The State's post-hearing briefs responded to the Goodwin-Curry Guilt-Phase Argument on its merits, asserting specifically that the argument fails for want of prejudice in light of Reams's testimony during the guilt-phase acknowledging his complicity in the robbery, mirroring the circuit court's order. The circuit court's basis for rejecting all of Reams's guilt-phase ineffective-assistance-of-counsel arguments appears to have been literally "cut and pasted" from this section of the State's post-hearing brief. At no point before this court or the circuit court below has the State argued that the Goodwin-Curry Guilt-Phase Argument should not be addressed.
For these reasons, I would hold that the Goodwin-Curry Guilt-Phase Argument is properly preserved for our review. The inadequacy of Reams's trial counsel's pre-trial investigation has been a primary subject of the parties' postconviction litigation ever since it began back in 1997, with the focus specifically on the failure to call Goodwin and Curry since at least early 2007, before the Rule 37 hearing ever began, then continuing through the hearing itself and the parties' post-hearing briefing. The majority entombs its lone allusion to and erroneous dismissal of this argument in a single footnote. This is beyond troubling, especially considering the impact this argument could have upon the disposition of this case.
Per the majority opinion, Reams has established that he is entitled to a new penalty-phase trial; the circuit court reached that decision based upon Reams's argument that his trial counsel was ineffective for failing to investigate, interview, or obtain the testimony of Alford Goodwin, and we affirm that decision here. However, whether Reams will receive a new guilt-phase trial is a remaining question. The majority remands this case to the circuit court for further proceedings on Reams's Duren claim, and Reams may or may not receive a new guilt-phase trial based upon the outcome of those proceedings. However, in my view, Reams has already established that he is entitled to a new guilt-phase trial because the Goodwin-Curry Guilt-Phase Argument, which the majority does not address, is meritorious. The circuit court's rejection of this argument as to the guilt-phase was clear error. There is simply no basis for treating this argument as preserved and meritorious for purposes of the penalty-phase of Reams's capital murder trial, but somehow not preserved or non-meritorious as to the guilt-phase of the same trial.
II. Merits of the Goodwin-Curry Guilt-Phase Argument for Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are governed by the two-prong analysis in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) : (1) "the petitioner must show ... that counsel's performance was deficient"; and (2) "the petitioner must show that the deficient performance prejudiced the defense." Sparkman v. State , 373 Ark. 45, 49, 281 S.W.3d 277, 281 (2008) (citations omitted). In order to establish prejudice, the petitioner must show a "reasonable probability" that but for counsel's unprofessional errors, the result of the proceeding would have been different.
Strickland , 466 U.S. at 694, 104 S.Ct. 2052. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Lasiter v. State , 290 Ark. 96, 98, 717 S.W.2d 198, 199 (1986) (quoting Mason v. State , 289 Ark. 299, 301-02, 712 S.W.2d 275, 276 (1986) ). In order to demonstrate prejudice for failing to present a witness, there must exist "a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different." Smith v. State , 2015 Ark. 165, at 9, 459 S.W.3d 806, 813 (citation omitted).
Turning to the case at hand, it is plain that the Goodwin-Curry Guilt-Phase Argument satisfies both prongs of the Strickland analysis. At the Rule 37 hearing, both Goodwin and Curry testified that Goodwin (from whom the prosecution and the circuit court accepted a plea before Reams's trial, and against whom the prosecution elected not to seek the death penalty), and not Reams, was the one who shot and killed the victim, and that neither of them were ever contacted by Reams's trial counsel. Their testimony, had it been secured for the guilt-phase of Reams's capital murder trial, would have corroborated Reams's ostensibly self-serving averments that he was not the shooter, that his and Goodwin's plan was only to rob the victim, and that there was never any plan or discussion of killing anyone. Reams's trial counsel's failure to even explore this information before Reams was convicted and sentenced to death was inescapably deficient and cannot be attributed to any reasonable trial strategy. See Farmer v. State , 321 Ark. 283, 287-88, 902 S.W.2d 209, 212 (1995) (counsel ineffective for "fail[ing] to secure the testimony of the only witnesses available who could corroborate his client's version of the facts"); see also State v. Dillard , 338 Ark. 571, 573, 998 S.W.2d 750, 751 (1999) (counsel ineffective for failing to interview or subpoena potential defense witnesses); Russell v. State , 302 Ark. 274, 277, 789 S.W.2d 720, 722 (1990) (counsel, who had no reason not to call defense witness, found ineffective).
This deficiency prejudiced Reams during the guilt-phase of his murder trial. Contrary to the analysis contained in the circuit court's order, the fact that Reams acknowledged complicity in the robbery during his testimony at trial does not obviate the realization of any deficient-counsel-related prejudice for the guilt-phase. While testimony from Goodwin and Curry during the guilt-phase of Reams's trial may not have led to Reams being acquitted of all charges, it certainly could have meant the difference between a conviction for capital felony murder and a conviction for first-degree felony murder. In Arkansas, the elements for capital felony murder are exactly the same as the elements for first-degree felony murder, and the jury was free to convict Reams of either of these offenses during the guilt-phase of Reams's capital murder trial. See, e.g. , Ray v. State , 342 Ark. 180, 181-82, 27 S.W.3d 384, 384-85 (2000) (defendant convicted of first-degree murder, but acquitted of capital murder, in pre-planned armed robbery ambush where defendant provided the murder weapon but was not the shooter), O'Neal v. State , 321 Ark. 626, 628-29, 907 S.W.2d 116, 117 (1995) (defendant found guilty of robbery, burglary, and first-degree murder, but acquitted of capital murder, for being accomplice to burglary/robbery, rape, and murder of 92-year-old woman), Thompson v. State , 2015 Ark. 271, at 1-2, 548 S.W.3d 129, 130 (defendant convicted of robbery and first-degree murder, but acquitted of capital murder, for attempt to rob victim outside a nightclub, where codefendant shot and killed a second victim who intervened in robbery attempt).
The significance of this circumstance cannot be overstated in light of these crimes' respective sentences. Ark. Code Ann. § 5-10-101(c)(1) provides that capital murder is punishable by death or life imprisonment without the possibility of parole, while Ark. Code Ann. § 5-4-401(a)(1) provides that a Class Y felony, such as first-degree felony murder, is punishable by a sentence of "not less than ten (10) years and not more than forty (40) years, or life[.]" Accordingly, this question dictates whether a so-situated individual will be sentenced to death by lethal injection (or, at the very least, to spending the rest of his or her life in prison without possibility of release), or instead will be sentenced to a term of years in prison, after which one could potentially see again the light of day. See Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991) ("[W]e have held in cases where the statutes overlap and both instructions are required, the jury may refuse consideration of both the death penalty and life without parole by returning a guilty verdict as to the charge of murder in the first degree."). This question literally represents the difference between life and death.
Here, the prosecution pursued a conviction against Reams, who was eighteen years old at the time of the crime, for capital felony murder, specifically under the theory that Reams was the one who shot and killed the victim. Central to this theory was the prosecution's assertion that Reams was lying in his testimony that Goodwin, and not Reams, was the one who shot and killed the victim. Under this theory, the jury convicted Reams of capital felony murder.
The fact that the jury reached this determination without the benefit of testimony from either Goodwin or Curry "undermines confidence" in its decision to convict Reams of capital felony murder, and not the lesser charge of first-degree felony murder. If Reams's counsel had done an adequate investigation and presented the testimony from Goodwin and Curry during the guilt-phase, there is at least a "reasonable probability" that the outcome would have been different, i.e., that the jury would have returned a conviction for first-degree felony murder instead of capital felony murder, which would have taken the death penalty off the table. This should be a basic point. If the failure to procure these witnesses' testimony was sufficiently prejudicial as to warrant relief for the penalty-phase of Reams's capital murder trial, as the circuit court found and this court affirms, then it was sufficiently prejudicial as to warrant relief for the guilt-phase as well. Accordingly, I would hold that Reams has already established that he is entitled to a new guilt-phase trial under Strickland , which would render any remand for further proceedings on Reams's Duren claim unnecessary.
III. Reams's Batson Claim
I also disagree with the majority's handling of Reams's Batson claim. Like Reams's Duren claim, the Batson claim is "structural" in nature, and therefore can be addressed for the first time in post-conviction proceedings. Furthermore, the fact that this court addressed a version of Reams's Batson argument (as developed and presented by the same attorney who represented Reams at trial) over two decades ago in his direct appeal does not prevent Reams from raising the claim in these Rule 37 proceedings. Although Rule 37.2(b) ordinarily precludes the consideration of claims adjudicated at trial or on direct appeal, that principle is inapplicable when, as here, the petitioner presents substantial new evidence that fundamentally changes the nature of the claim. See Cullen v. Pinholster , 563 U.S. 170, 186 n.10, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (recognizing that substantial new evidence in support of a previously adjudicated claim may in fact "present a new claim").
At the Rule 37 hearing, Gene McKissic, who worked in the Jefferson County Prosecuting Attorney's Office and then had a private criminal practice in Jefferson County for nearly three decades, testified that the office's "custom and practice was to save strikes to exclude African-Americans." Mr. McKissic also explained that he observed significant discrimination against African Americans in the jury selection process by his fellow Jefferson County prosecutors. Mr. McKissic's testimony-along with statements from his law partner, Jesse Kearney, who is a former Circuit Court Judge in the Eleventh Judicial District, which includes Jefferson County-would have supported the averment from Reams that there existed a custom and practice of racial discrimination in jury selection by Jefferson County prosecutors at the time of his trial. All of this evidence is in addition to the facts presented in support of Reams's Duren claim, which have only been raised for the first time by Reams's postconviction counsel and which surely would have colored any consideration of his Batson claim.
Due process requires effective corrective procedures to protect Mr. Reams's liberty and life interests, which means that state postconviction procedures must comport with principles of "fundamental fairness." See, e.g. , Ford v. Wainwright , 477 U.S. 399, 417-18, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (finding Florida's postconviction procedures for determining sanity of death row prisoner was not adequate to afford a full and fair hearing on a critical issue in the case). Accordingly, I would not limit this court's remand to the substance of Reams's Duren claim, but would direct the circuit court to consider the merits of Reams's Batson claim as well, in light of the newly presented evidence.
The majority misconstrues multiple cases in overturning Wainwright v. State , 307 Ark. 569, 823 S.W.2d 449 (1992) (per curiam). The majority concedes that Reams failed to demonstrate a reasonable probability that he was prejudiced "[g]iven Reams's testimony regarding his involvement in the planning and commission of the robbery and shooting death of the victim at an ATM." Majority opinion, supra , at 450-51. I would affirm on that basis.
The majority's decision has created an entirely new avenue for Rule 37 relief. Under this decision, we apparently no longer require that fair cross-section-of-the-jury claims be raised and preserved on direct appeal under Duren v. Missouri , 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), or be subject to a finding of prejudice under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The majority's analysis is flawed. It erroneously equates this case to other cases and constrains these cases to reach the conclusion that prejudice now is presumed. A thorough and honest comparison of these cases to Reams is therefore required.
First, the majority erroneously relies on Collins v. State to extend the exception to our requirement that constitutional errors be raised at trial and on direct appeal for "errors so fundamental as to render the judgment of conviction void. " 324 Ark. 322, 326, 920 S.W.2d 846, 848 (1996) (emphasis added). Collins is distinguishable from this case because Collins was convicted by an eleven-member jury, instead of twelve. Id. Court rules at that time required the defendant to waive his right to trial by a jury of twelve in writing or personally in open court, which undisputedly did not occur. Id. Consequently, being tried by an eleven-member jury was "a serious error for which the trial court should intervene and is an exception to the contemporaneous exception rule." Id. at 327, 920 S.W.2d at 849. We have repeatedly failed to extend Collins . See, e.g. , Swain v. State , 2017 Ark. 117, at 5-6, 515 S.W.3d 580, 585 ; Springs v. State , 2012 Ark. 87, at 15, 387 S.W.3d 143, 154 ; Howard v. State , 367 Ark. 18, 27, 238 S.W.3d 24, 32 (2006) (declining to extend for allegations of prosecutorial misconduct).
Second, the majority cites to Rowbottom v. State as a reason for overruling our precedent. 341 Ark. 33, 13 S.W.3d 904 (2000). Again, the facts here are distinguishable. In Rowbottom , the issue was whether the defendant could raise double jeopardy in a Rule 37 proceeding without having previously raised it. Id. A double jeopardy violation is one that voids the judgment, which is completely different from the issue here. "A ground sufficient to void a judgment of conviction must be one so basic that it renders the judgment a complete nullity, for example, a judgment obtained in a court lacking jurisdiction to try the accused, or a conviction obtained in violation of an accused's rights against double jeopardy." Jeffers v. State , 301 Ark. 590, 591, 786 S.W.2d 114, 114 (1990). There is no allegation that Reams's judgment is void.
Finally, the majority defends its decision to overturn precedent with the Supreme Court's decision in United States v. Gonzalez-Lopez , 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). The majority uses Gonzalez-Lopez to advance its proposition that some errors are so fundamental as to be considered structural. Yet, an analysis of Gonzalez-Lopez suggests the opposite result from that which the majority reaches in this case.
In Gonzalez-Lopez , the defendant was denied the counsel of his choice. The federal district court then sanctioned the defendant's desired counsel for communicating with the defendant following its denial. The defendant was found guilty and appealed. Although the majority is correct that the Supreme Court held that a defendant's Sixth Amendment right to counsel of choice was structural in nature, it misapplied the Supreme Court's reasoning. In Gonzalez-Lopez , the government argued that such a denial was subject to review on direct appeal for harmless error. The Supreme Court disagreed, explaining that a right to counsel of choice impacts every stage of the proceedings and thus qualified as a structural error.
Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of an attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the framework within which the trial proceeds, or indeed on whether it proceeds at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.
Id. at 150, 126 S.Ct. 2557 (cleaned up).
Clearly, Gonzalez-Lopez is different from the present case. Every case the majority cites to reach its conclusion fails to support it. The majority is straining to provide analysis to overturn precedent.
Here, Reams testified at trial that he participated in the ATM robbery that resulted in a death. He admitted at trial that the gun used to commit the murder came from him. The majority even affirms the circuit court's decision that there was no prejudice because there was no reasonable probability that, despite any alleged errors his counsel might have made, a jury would have reached a different outcome. This is not Gonzalez-Lopez . The majority's decision that we will "presume" prejudice in this case necessarily presumes that a jury consisting of a different racial composition would have reached a different decision. Regardless of juror race, the jury would not have reached a different decision when they heard the defendant's own incriminating testimony. The circuit court's decision was correct. For these reasons, I dissent.
I believe that the majority's decision to declare that a Duren violation is a structural error, and that we will presume prejudice when it occurs, is premature. Therefore, I must respectfully dissent. When ruling on a Rule 37 petition, the circuit court "shall determine the issues and make written findings of fact and conclusions of law with respect thereto." Ark. R. Crim. P. 37.3(c) (2017). In this case, the circuit court made virtually no written findings on Reams's Duren claim and instead made a single-sentence conclusion that his claim fails in the absence of a showing of prejudice. The circuit court's conclusory findings are not adequate for us to properly review this issue on appeal. See Pigg v. State , 2016 Ark. 108, at 2, 486 S.W.3d 751, 753 (per curiam). The appropriate response is for this court to remand the case to the circuit court to properly consider and analyze Reams's Duren claims before we take further action. I therefore dissent.
Jin Hee Lee , NAACP Legal Defense & Educational Fund, Inc. (New York), pro hac vice ; Christopher Kemmitt and Ajmel Quereshi , NAACP Legal Defense & Educational Fund, Inc. (Washington DC), pro hac vice ; Squire Patton Boggs (US) LLP , by: George H. Kendell and Corrine Irish , pro hac vice ; and John W. Walker, P.A. , by: John W. Walker , for appellant.
The State correctly notes that not all of Reams's arguments on appeal were raised below or addressed by the circuit court. Specifically, as to the guilt/innocence phase, arguments regarding Phillip Curry, Alford Goodwin, and trial counsel's unpreparedness are not preserved. An appellant in a Rule 37.1 proceeding is limited to the scope and nature of his arguments below, and he cannot raise new arguments on appeal. Hogan v. State , 2013 Ark. 223, 2013 WL 2295431 (per curiam). In an appeal of the denial of a Rule 37.1 petition, failure to obtain a ruling on an issue, including a constitutional issue, precludes review on appeal. Norris v. State , 2013 Ark. 205, 427 S.W.3d 626 (per curiam). Accordingly, we limit our review of Reams's arguments to those that were ruled on by the circuit court.
Claims "a" through "m" are as follows: (a) failure to change venue; (b) arrest based upon unreliable, insufficient information; (c) admission of illegally seized tangible evidence; (d) admission of unlawfully obtained custodial statements; (e) admission of other-crimes evidence during the guilt phase; (f) admission of inadmissible, prejudicial hearsay; (g) underrepresentation of African Americans in the jury system; (h) discriminatory exercise of peremptory challenges; (i) insufficient evidence on extreme indifference; (j) absence of crucial jury instruction; (k) failure of the State to demonstrate death eligibility; (l) double-counting of circumstance; (m) arbitrary failure to consider mitigating evidence.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, intent, or absence of mistake or accident. Ark. R. Evid. 404(b).
We recognize that the Court noted that the errors in the enumerated cases necessitated automatic reversal after they were preserved and raised on direct appeal. We are likewise mindful that the Court specifically explained that the opinion did not address whether the result should be any different if the errors were raised instead in an ineffective-assistance claim on collateral review.
The State notes in its brief that it is unclear whether the circuit court faulted trial counsel for failing to call both Curry and Goodwin. However, we note that in the April 13, 2017 order granting Reams's petition in part, the circuit court's decision to grant Rule 37 relief as to ineffective assistance of counsel during the penalty phase appears to specifically hinge on Alford Goodwin's admission that he was the shooter. Absent from the order is any specific reliance on Phillip Curry's testimony.
In a footnote on pp. 4-5 of the State's brief, the State states as follows:
Reams' IAC claims are as lettered in his briefing argument at "B." and "D." His global claim at "A." is not a ground for reversal. It was not made or ruled on in circuit court. See generally, e.g., A. R. Cr. P. 37.5(i) (2017) (decision on claims from petition); cf. generally, e.g., Robbins v. State, 2012 Ark. 312, at 2-3 & n.2 (rulings on allegedly omitted issue not kind of pleading, and relief from death penalty obviated need for greater scrutiny). His lettered claims "C." and "E." are just iterations of the prejudice component of Strickland and this Court's appellate review standard for post-conviction claims reiterated supra.
Absent from this excerpt is any suggestion that the "IAC Claim" set out at "I.B" in Reams's brief (the Goodwin-Curry Guilt-Phase Argument) is not preserved for review.
Even if Reams had entirely omitted the Goodwin-Curry Guilt-Phase Argument from any of his pleadings, it remains indisputable that the parties actually tried the issue at the Rule 37 hearing. See Ark. R. Civ. Proc. 15(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings"); see also Barker v. State , 2014 Ark. 467, 4, 448 S.W.3d 197, 199 ("In any event, postconviction matters are considered civil in nature, and there is no absolute right to appointment of counsel."), Brady v. State , 346 Ark. 298, 301, 57 S.W.3d 691 (2001) ("Rule 37 proceedings are civil in nature, and this court has referred to and applied the Rules of Appellate Procedure-Civil when necessary in criminal appeals."), State v. Estrada , 2013 Ark. 89, 2, 426 S.W.3d 405, 407 ("We have held, however, that the State is entitled to appeal from a circuit court's grant of a Rule 37.1 petition, because such postconviction proceedings under Rule 37.1 are civil in nature.").
Although the majority suggests that it is merely "clarifying" Wainwright , by eliminating a prejudice finding, it is overturning Wainwright . | [
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DAVID M. GLOVER, Judge
Nate Wakefield and Angela Bell are the parents of R.W., who was born on November 26, 2014. Nate and Angela lived together with R.W. and K.W., Nate's other child of whom he has custody, until around the end of March 2015 when Angela took R.W. and moved in with her mother. On April 10, 2015, Nate filed a verified petition for paternity testing and petition for custody. Angela did not challenge Nate's paternity. Temporary custody of R.W. was awarded to Angela following a hearing on May 29, 2015. On January 25, 2016, the full custody hearing began, and then resumed and concluded on July 26, 2016. Child-abuse allegations were raised in the proceedings. By order entered December 21, 2016, the trial court awarded custody of R.W. to Angela, finding it was in R.W.'s best interest to do so, and also specifically finding that Angela "has not been battering the minor child." Nate received fairly standard visitation and was ordered to pay child support of $268 a month. Nate appeals from the December 21 order, raising three basic points, which have several subpoints: 1) the trial court erred in allowing expert testimony; 2) the trial court erred "in excluding photographic evidence depicting injuries and included medical records"; and 3) the trial court erred in determining that it was in the best interest of R.W. to be placed in the physical custody of Angela. We affirm.
For his first point of appeal, Nate contends the trial court erred in allowing the expert testimony of Carrie Rye. In making this argument, he asserts that the testimony should have been excluded because 1) it was not helpful to the fact-finder, 2) the proper foundation was not laid, 3) any probative value was substantially outweighed by unfair prejudice, and 4) Rye gave opinions outside of her qualifications as to how the court should rule. We find no abuse of discretion.
Carrie Rye, the expert witness, has a bachelor's degree in psychology and a PhD in education. Briefly, the aspects of her testimony Nate found objectionable involved the fact that she had never met Nate or been to his house, she had a total of seven sessions with Angela, the only information she had was what Angela had described to her about the child's conduct upon returning from a visit with Nate, and she was not familiar with the best-interest standard in Arkansas. Rye gave her professional opinion that Angela was not being abusive to R.W.; that being away from Angela was stressful to the child and that "based on best practice, developmental issues, and temperament, I think one week at a time would be very distressful [sic] for [R.W.]"; that it was traumatic for a child of R.W.'s age to be placed in foster care with a stranger; and that she had no indication it would be in R.W.'s best interest to be taken from Angela and placed in foster care. As indicated by the trial court's response, "Is someone threatening to do that?," a fear of foster-care proceedings, rather than the reality of same, prompted at least some of the testimony.
In reviewing the trial court's handling of this witness's testimony, it is important to note the matter was being tried to the court. In responding to Nate's objections to many aspects of Rye's testimony, the trial court directed the witness to be specific to the case at hand, it noted that the objections would go to the weight of the testimony, and the trial court expressed its understanding that Rye had not interviewed Nate. We find no basis for reversal under this point. Arkansas Rule of Evidence 702 provides:
If scientific, technical, or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
We note Nate raised no initial objections to Rye's qualifications as an expert. Rather, that type of challenge emerged when Rye offered her opinion about visitation, i.e. , Nate argued that she could offer expertise as an educator but not about visitation, and, similarly, that she acknowledged she did not know the Arkansas best-interest standard. However, her initial recitation of her qualifications included a B.S. degree in psychology, and no objection was raised to that portion of her expertise.
In evidentiary determinations, a trial court has wide discretion. Donley v. Donley , 2016 Ark. 243, 493 S.W.3d 762. On appeal, we will not reverse a trial court's ruling on the admissibility of evidence absent an abuse of discretion. Id. Neither will we reverse on an evidentiary ruling absent a showing of prejudice. Oliver v. State , 2016 Ark. App. 332, 498 S.W.3d 320.
Here, throughout Rye's testimony, the trial court demonstrated a thorough understanding of the challenges to the testimony and how the trial court intended to assess the testimony in light of those challenges. For example, the trial court noted the objections would go to the weight of the evidence and recognized Rye had never met with Nate. If this had been a jury trial, Nate's challenges might have carried more weight, but this was a bench trial. The trial court made it abundantly clear it understood how to assess Rye's testimony and that it was not unduly influenced by it. We find no abuse of discretion in the trial court's overruling of Nate's objections. Moreover, even though joint custody was not granted, the trial court's decision to reject that custody arrangement was based more on the parties' inability to get along than any testimony from Carrie Rye, and Nate was awarded fairly standard visitation. Consequently, even if we had concluded there was an abuse of discretion, which we do not, we would find no resulting prejudice. Finally, we do not address Nate's arguments related to a Rule 403 balancing of prejudice versus probative value because it is being raised for the first time on appeal. A party is bound by the scope of his or her arguments made to the trial court, and we will not address arguments raised for the first time on appeal. Sills v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 9, 538 S.W.3d 249.
For his second point of appeal, Nate contends the trial court "erred in excluding photographic evidence depicting injuries and its included medical records." To the extent this argument was preserved, we disagree.
The following colloquy occurred at the beginning of the custody hearing when it resumed on July 26, 2016:
MR. MOON : We have a zip drive with numerous photographs and the originals in those boxes. I provided this zip drive to Ms. Virnig a couple of weeks ago.
MS. VIRNIG : We agree to stipulate that can be admitted.
MR. MOON : It will be Joint Exhibit 1. It is a zip drive containing photographs of the child.
THE COURT : Okay. Are they all relevant?
MS. VIRNIG : There are probably hundreds.
THE COURT : No, we do not need that if we have twenty-five we are going to testify about. That will be fine.
MR. MOON : I am going to proffer this into the record in case of an appeal.
THE COURT : You may proffer it.
(Emphasis added.) Initially, the trial court was clearly amenable to allowing the evidence as a joint exhibit, but when the court asked, "Are they all relevant," the only response came from Angela's counsel, who stated, "There are probably hundreds." Nate's counsel did not add anything to that response. The trial court then ruled, "No, we do not need that if we have twenty-five we are going to testify about. That will be fine." We find no abuse of discretion in this ruling.
Although the parties stipulated to the admission of the zip-drive exhibit containing "hundreds" of photographs, the stipulation did not include explanations putting the hundreds of photographs in context, e.g., when they were taken, under what circumstances, and by whom. Moreover, the only testimony relied upon by Nate in his appellate arguments regarding the "included medical reports" came from his father, Travis Wakefield, who has no medical expertise nor record-keeping responsibilities concerning the medical records. In fact, the testimony from appellant's father regarding the medical records, and relied upon by Nate in arguing this issue, consisted of the following: "The medical records on that disc show that he [R.W.] had contusions, bruises and things like that." Further, as noted by the trial court, several photographs were admitted that purportedly showed abusive marks on R.W.'s body, and those photographs were accompanied by explanatory testimony. Although Nate attempts to do so in his arguments to this court, at trial neither party provided explanations regarding why the proffered exhibit would offer different or more helpful evidence. Nor was there any testimony explaining the context of the proffered photographs and medical evidence. Even the very limited testimony from Travis Wakefield that Nate quotes in his argument to us did not provide any context. Consequently, to the extent Nate asks us to address expanded arguments under this point that were not presented to the trial court, we decline to do so because they were not properly preserved for our review. With respect to the information and arguments actually presented to the trial court concerning this proffered zip drive, we find no abuse of discretion in the refusal to admit it as evidence. Without more explanation from either counsel, the trial court's ruling was perfectly rational because the trial court had sufficient evidence before it on the abuse issue and did not need the addition of "hundreds" of unexplained photographs and "included medical records."
For his final point of appeal, Nate contends the trial court erred in determining it was in R.W.'s best interest to be placed in Angela's physical custody. As subpoints, he contends a trial court "should be aware of all facts at the time of the custody decision, and here that cannot be said to have occurred due to rejection of evidence in the proffered joint exhibit," and "should consider financial stability in a custody award, and here, Angela lacked an ability to support herself and relied upon others." We find no basis for reversal of the trial court's custody decision.
In child-custody matters, we consider the evidence de novo, and we will not reverse unless the trial court's findings of fact are clearly erroneous. Burr v. Burr , 2015 Ark. App. 640, 476 S.W.3d 195. A finding is clearly erroneous when, although there is evidence to support it, our court is left with a definite and firm conviction that the trial court made a mistake. Id. We give due deference to the trial court's superior position to judge the credibility of witnesses, recognizing that there is no other case in which the superior position, ability, and opportunity of the trial court to observe the parties carries a greater weight than one involving the custody of minor children. Id. The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Id. Factors a trial court may consider in determining what is in the best interest of the child include the psychological relationship between the parents and the child, the need for stability and continuity in the child's relationship with parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Id.
In addressing Nate's specific challenges under this point, we reject his first subpoint, i.e., that a trial court "should be aware of all facts at the time of the custody decision, and here that cannot be said to have occurred due to rejection of evidence in the proffered joint exhibit," because we have earlier determined the trial court did not abuse its discretion in denying the introduction of the zip drive containing additional photographs and medical information. We also reject his second subpoint, i.e., that a trial court "should consider financial stability in a custody award, and here, Angela lacked an ability to support herself and relied upon others." Angela was living with her mother, working, and going to school. Nate, on the other hand, received financial assistance from a family trust fund and worked some part-time jobs, but he had not been able to get full-time employment after graduation. There was no evidence that R.W. was suffering from any lack of financial stability on Angela's part.
To the extent Nate challenges the trial court's overall finding that it was in R.W.'s best interest to award custody to Angela, we find no clear error. The trial court specifically rejected Nate's allegations that Angela had physically abused R.W., finding that Angela "has not been battering the minor child." The trial court further noted that both parties were capable of caring for R.W. It was also clear, however, that joint custody was not possible at that point because the two parents could not get along. We give trial courts special deference in cases such as this, Burr , supra , and there is good reason for it. We are convinced by our de novo review of the evidence that deference to the trial court's custody decision in this case is justified. We are simply not left with a definite and firm conviction that the trial court made a mistake in awarding custody of R.W. to Angela.
Affirmed.
Gruber, C.J., and Harrison, J., agree. | [
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ROBIN F. WYNNE, Associate Justice
This case presents a question of law certified to this court by the United States District Court for the Western District of Arkansas in accordance with Rule 6-8 of the Rules of the Supreme Court. The federal district court certified the following question:
Whether Ark. Code Ann. § 14-56-202 confers upon cities of the first class the exclusive power to issue or refuse to issue building permits and to regulate the building of houses, and thereby denies such power to cities of the second class, despite the "general powers" listed in Ark. Code Ann. § 14-56-201.[ ]
As set out below, we answer the question in the affirmative.
The certified question arises from a complaint filed by petitioners First State Bank and Pinnacle Bank n/k/a Central Bank (collectively, the Bank) in the Washington County Circuit Court against the City of Elkins, Arkansas (the City); the case was removed to the federal district court by the City. The complaint is based on the City's moratorium on the issuance of building permits for lots within a partially developed residential subdivision called Stokenbury Farms. Among the relief sought was a declaratory judgment that the City lacked statutory authority to regulate the building of houses or to issue building permits for houses. In its certification order, the federal district court summarizes the factual background as follows:
According to the Complaint, on October 5, 2006, the Elkins City Council accepted the Final Plat for the Stokenbury Farms subdivision, which consisted of 138 lots, 136 of which were residential, and 2 of which contained detention ponds used to hold the subdivision's storm-water runoff. On the same day the Final Plat was submitted for approval, the Mayor of Elkins, City Clerk, Chairman of the Planning Commission, Building Inspector, and representatives from the Water, Police, and Fire Departments all approved the Final Plat. The subdivision's engineer executed and stamped the Final Plat and then filed it of record in the office of the Circuit Clerk and Ex-Officio Recorder of Washington County, Arkansas.
After the Final Plat was recorded, First State Bank agreed to refinance the debt that Stokenbury Farms, LLC, had incurred in developing and constructing the subdivision. About two years later, on September 26, 2008, Elkins filed a lawsuit against Stokenbury Farms, LLC, and some other entities that were involved in the construction and engineering of the detention ponds. The lawsuit alleged that the ponds failed to perform as a result of defective workmanship and did not drain. It appears the lawsuit was non-suited by Elkins, allegedly because Elkins had decided to wait and let the subdivision be "built out" first before taking further action. At some point after August 30, 2010, Stokenbury Farms, LLC defaulted on its financial obligations, and in lieu of foreclosure, deeded 105 undeveloped residential lots to First State Bank. Importantly, First State Bank did not take back two of the lots-the ones that contained the problematic detention ponds that had been the source of conflict with Elkins for the past several years. The Complaint explains that the detention-pond lots remained in the ownership of "an entity related to the developer or this entity's member(s)." The Complaint also makes clear that First State Bank believes it bears no financial responsibility for the condition and upkeep of the ponds, since it does not own the lots that contain the ponds.
Concern about the condition of the detention ponds continued to ebb and flow throughout the next two years until, finally, in late 2014, Elkins began complaining to First State Bank about the high grass surrounding the ponds. Elkins mowed the grass at some point, and then charged First State Bank for the mowing service-allegedly double what the service actually cost. First State Bank then refused to pay the bill, which led to more litigation, and the relationship between Elkins and the Bank deteriorated. On November 17, 2016, Elkins's city council enacted a moratorium "on issuance of building permits in Stokenbury Farms Subdivision until an engineer certifies the functionality of the existing retention ponds." First State Bank maintains that it did not receive notice that Elkins was even considering issuing such a moratorium, and did not receive actual notice that the moratorium had been passed until February 28, 2017, after First State Bank issued a direct request to Elkins for this information. Although at the time First State Bank believed that Elkins lacked the legislative authority to issue a moratorium on building, the Bank nonetheless requested that Elkins supply it with "definitive conditions upon which Elkins would agree to lift the moratorium...." In First State Bank's view, Elkins' response to this request was "vague and non-committal." First State Bank then attempted "to obtain a building permit for residential lots within the Subdivision" but was "rebuffed by Elkins." Fearing that it would lose money on its investment in the subdivision due to the imposition of the moratorium on further construction, First State Bank filed suit in Washington County Circuit Court on April 12, 2017, challenging the constitutionality of the moratorium and Elkins's authority to enforce it. The case was ultimately removed to this Court on May 12, 2017.
(Citations omitted.) According to the certification order, the City has filed a motion to dismiss count I of the complaint, which concerns its statutory authority to regulate the building of houses, and the Bank has filed a motion for judgment on the pleadings as to that count. This leads to the certified question: Whether Ark. Code Ann. § 14-56-202 confers upon cities of the first class the exclusive power to issue or refuse to issue building permits and to regulate the building of houses, and thereby denies such power to cities of the second class, despite the "general powers" listed in Ark. Code Ann. § 14-56-201.
We begin with the language of the statutes. Arkansas Code Annotated section 14-56-201 (Repl. 1998), titled "General powers," provides as follows:
Municipal corporations shall have the power to:
(1) Regulate the erection, construction, reconstruction, alteration, and repair of buildings;
(2) Make regulations for the purpose of guarding against accidents by fire;
(3) Require the use of fireproof or fire-resistant materials in the erection, construction, reconstruction, alteration, or repairs of buildings; and
(4) Provide for the removal of any buildings, or additions thereto, erected contrary to this prohibition.
Arkansas Code Annotated section 14-56-202 (Supp. 2017), titled "Additional powers of cities of the first class," provides:
(a)(1) The following enlarged and additional powers are conferred upon cities of the first class.
(2) They shall have the power to:
(A) Regulate the building of houses;
(B) Provide that no house or structure shall be erected within the city limits except upon a permit to be issued by such officer as the city council shall designate; and (C) Provide that no permit shall be issued for the building of any house or structure deemed to be unsafe, unsanitary, obnoxious, or detrimental to the public welfare.
(b) However, the authority to appoint and remove department heads, including the building official, shall be governed by § 14-42-110 regardless of the classification of the city or town.
According to the Bank, the City lacks the power to regulate the construction of houses or to require building permits for the construction of houses under sections 14-45-201 and 14-56-202 because it is a city of the second class. See Ark. Code Ann. § 14-37-103 (population requirements for classification as city of the first class, city of the second class, and incorporated town). The Bank contends that cities of the second class (as well as lesser categories of municipalities) are not conferred with the enlarged and additional powers to regulate the construction of houses or require building permits for home construction for three primary reasons:
(1) The plain language of Section 202 empowers only cities of the first class with the "enlarged" and "additional powers" to regulate the building of houses or to require building permits for the erection of houses or structures;
(2) Applying the principles of statutory construction and interpretation to Sections 201 and 202, the result is Arkansas law empowers only cities of the first class with the "enlarged and additional powers" to regulate the building of houses or to require building permits for the erection of houses because:
a. Section 202 would be deprived of any meaning if the "general" authority in Section 201 also governed the power to regulate the building of houses and to require building permits for the erection of houses; and
b. Under the doctrines of statutory construction, the general powers conveyed under Section 201 must yield to the more specific Section 202;
(3) Section 201 does not empower cities of the second class to issue or refuse to issue building permits.
The certified question of law presents a matter of statutory interpretation. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Nolan v. Little , 359 Ark. 161, 165, 196 S.W.3d 1, 3 (2004). In determining the meaning of a statute, the 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. However, this court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Id. This court takes pains to reconcile statutory provisions to make them consistent, harmonious, and sensible. Id.
First, the Bank contends that the plain language of section 14-56-202 makes it clear that Arkansas law empowers only cities of the first class with the "enlarged and additional powers" to regulate the building of houses or to require building permits for the erection of houses. We agree. While section 14-56-201 provides municipalities the authority generally to regulate the construction of buildings , the only mention of houses is in section 14-56-202, which grants cities of the first class three specific "enlarged and additional powers": (1) the power to regulate the building of houses; (2) the power to provide that no house or structure will be constructed within the city limits without a building permit; and (3) the power to provide that no permit will be issued for the building of any house or structure deemed to be unsafe, unsanitary, obnoxious, or detrimental to the public. This is an unambiguous grant to cities of the first class the power to regulate the construction of houses and a specific limitation of that power to only cities of the first class.
The City also maintains that sections 14-56-201 and 14-56-202 are unambiguous, but argues that a municipality's general authority to regulate "buildings" under section 14-56-201 necessarily encompasses "houses"-a type of building. The City maintains that, should this court find that the statutes are ambiguous, the legislative history resolves any ambiguity by confirming that cities of the second class have the authority to regulate the building of houses. The Bank aptly summarizes and responds to the City's argument as follows:
Elkins cites Act 352 of 1907 (which created Section 202) and compares it with the then-existing language of Section 201. Elkins states that the earlier version of Section 201 notably included the language that "[Municipal corporations] shall have the power to regulate the building of houses." This being the case, it begs the question-why did the General Assembly remove "houses" in the current version of Section 201? If all municipal corporations enjoyed the power to regulate the building of houses at one point in time (as Elkins suggests), the removal of "houses" from Section 201 coupled with the preservation of the reference to "houses" in Section 202 (and providing that the regulation of home construction constitutes "enlarged and additional powers") evidences the General Assembly's intent to narrow that power to regulate construction of houses to cities of the first class.
The City suggests that the "actual difference" between sections 14-56-201 and 14-56-202 is that "the latter provides for the regulation of structures in addition to buildings for cities of the first class." However, this interpretation does not explain why the General Assembly included the word "houses" in section 14-56-202. "[W]hen interpreting statutes, the rule is settled that a general statute must yield when there is a specific statute involving the particular matter." Vill. Mkt., Inc. v. State Farm Gen. Ins. Co. , 334 Ark. 227, 229, 975 S.W.2d 86, 86 (1998) (per curiam). Here, the general authority for all municipalities to regulate buildings must yield to the specific "additional and enlarged" authority for cities of the first class to regulate the building of houses.
Next, the City argues that the following provide authority for its regulation of housing: the municipal-planning statutes contained in Chapter 56, Title 14 of the Arkansas Code; the fact that that the General Assembly abolished Dillon's Rule in Act 1187 of 2011, making Arkansas a home rule state in which, the City argues, the General Assembly has not expressly revoked the right to issue and deny building permits; and the cities' police power. None of these arguments are directly relevant to the certified question, and we therefore decline to address them.
In conclusion, we answer the certified question in the affirmative. Arkansas Code Annotated section 14-56-202 confers upon cities of the first class the exclusive power to issue or refuse to issue building permits and to regulate the building of houses and thereby denies such power to cities of the second class, despite the "general powers" listed in Arkansas Code Annotated section 14-56-201.
Certified question answered.
The City asks this court to reformulate the question as follows: "Under Arkansas law, may cities of the second class (1) regulate the building of houses; and (2) issue and deny building permits?" We decline to reformulate the question and instead answer the question as certified by the district court.
Dillon's Rule is a restrictive view of municipal power that a municipal corporation possesses and can exercise only powers granted in express words, those necessarily or fairly implied in, or incident to, the powers expressly granted, and those essential to the accomplishment of the declared objects and purposes of the corporation-not simply convenient, but indispensable. Davis v. City of Blytheville , 2015 Ark. 482, at 4, 478 S.W.3d 214, 217 (citing Tompos v. City of Fayetteville , 280 Ark. 435, 438, 658 S.W.2d 404, 406 (1983) ). | [
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Officer Shane Kirkland testified that he became involved several days after the incident and obtained information that appellant was involved from Easter's statement. He also said that Master Leal had "implicated" appellant. He testified that the police recovered a BB gun and a sawed-off shotgun described by Easter in the possession of Kevonte Smith at Fox Creek Apartments. Finally, he testified that a confidential informant had "led to the arrest" of appellant and had said that appellant "was staying" at Fox Creek Apartments, but Officer Kirkland admitted that he never discovered appellant at Fox Creek Apartments. He said he had nothing connecting appellant to these apartments other than the accounts of Easter, Leal, and the confidential informant.
Officer Wayne Easley testified that he became involved in the investigation by interviewing Master Leal, who admitted that he had committed the robbery with Smith and appellant. He said that they recovered the weapons used in the robbery, but he admitted that they did not have fingerprints from the guns and they did not find appellant in possession of any guns.
Finally, Officer Tye Whatley testified that he executed a search warrant at apartment 106 in the Fox Creek Apartments on November 26, 2016, where they located Master Leal and Kevonte Smith. He testified that they discovered a BB gun in the living room and a sawed-off shotgun in the bedroom with Smith. Fingerprints were not found on either weapon. Officer David Parker testified that he participated in the search with Officer Whatley and others and that he discovered the loaded shotgun lying behind the mattress where Smith was sleeping.
At the conclusion of this testimony and after hearing arguments of counsel regarding appellant's earlier Confrontation Clause objection to Officer Jones's testimony, the circuit court allowed Officer Jones to testify-not regarding the details of the information Pickens told him-but to explain Officer Jones's actions in response to the information he discovered that night. Officer Jones then testified that he met with the victim of an aggravated robbery, Pickens, who related what had happened. Officer Jones then reported over central dispatch that "a black female who was approximately 5'4", around a hundred twenty pounds, along with three black males who are about 6 feet tall and 160 pounds and that this had just occurred and these were possible suspects in the case." He also testified that the possible suspects were heading toward Fox Creek Apartments. Finally, Pickens told him that his keys had been taken during the robbery.
The State then called Officer Jason Shores, who said that he interviewed Pickens, reviewed Pickens's Facebook profile, and obtained information leading to Kiona Easter. He said that this information led to the arrest of Leal, Smith, and appellant. He said that appellant was arrested at Fox Creek Apartments and that he "believed" this occurred on November 30.
The final witness for the State was Officer Eric Winters, a crime investigator for the police department, who testified that he and several fellow officers executed a search warrant at apartment 106 in the Fox Creek Apartments on December 1, 2016. He said that his responsibility was to take photographs of the apartment. He also said they discovered a shotgun but that there were no usable fingerprints taken from it.
After the State rested, appellant moved for a directed verdict, contending that the State had failed to sufficiently corroborate the accomplice's testimony. The court denied appellant's motion. Appellant then rested without putting on any testimony.
On appeal, appellant contends that the evidence was insufficient to corroborate Easter's testimony as to either the commission of the offense or his involvement in it. He argues that the elements were not proved because no one, other than Easter, testified that a theft occurred or that weapons were used. He contends that the circuit court should not have allowed Officer Jones to testify about what Pickens told him because it was hearsay and violated his rights under the Confrontation Clause. The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the remaining evidence independently establishes the crime and tends to connect the accused with its commission. MacKool , 365 Ark. at 430, 231 S.W.3d at 688. When reviewing the sufficiency of the evidence supporting a conviction, we consider all the evidence introduced at trial, whether correctly or erroneously admitted, and disregard any alleged trial errors. Williams v. State , 2018 Ark. App. 277, at 4, 550 S.W.3d 42, 46.
Excluding the accomplice's testimony and the alleged statements of accomplice Master Leal, none of the testimony other than that of Officer Jones establishes that a crime was committed. The combined officers' testimony provided that they arrested Smith and Leal in Fox Creek Apartment 106 where they also discovered two guns. They did not recover any fingerprints from either gun. It was unclear exactly where appellant had been arrested, but it was clear that he was not arrested in apartment 106 with Smith and Leal and that he was not in possession of any weapons when he was arrested. Without regard to whether Officer Jones's testimony was properly admitted, his testimony did not establish that a weapon had been used nor did it connect appellant with the commission of any crime. His testimony provided that the victim reported that his car keys had been taken and that the possible suspects included a black female and three black males-all three described as being about 6 feet tall weighing 160 pounds-heading toward Fox Creek Apartments. This does not sufficiently establish either that an armed robbery was committed or that appellant was involved. There was no testimony at trial describing appellant or that he in any way fit this very general description. Appellant is a black male, but that is not enough to connect him with an armed robbery of Burnice Pickens. Corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Ark. Code Ann. § 16-89-111(e)(1)(B). Here, the corroborating evidence does not even establish that.
Accordingly, we reverse appellant's conviction.
Reversed.
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RAYMOND R. ABRAMSON, Judge
Traevaughn Richard appeals the Miller County Circuit Court order revoking his probation. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, Richard's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The clerk mailed a certified copy of counsel's motion and brief to Richard, informing him of his right to file pro se points for reversal. Richard has failed to file any points for reversal. We affirm and grant counsel's motion to withdraw.
On April 12, 2016, Richard pled guilty to possession of a controlled substance, and he was sentenced to sixty months' probation. The terms and conditions of his probation included that he not commit a criminal offense punishable by imprisonment; not use, sell, distribute, or possess any controlled substance; pay fines, fees, and court costs; and report as directed to a supervising officer.
On October 16, 2017, the State filed a petition for revocation of Richard's probation. In the petition, the State alleged that Richard had committed an offense against the law of this, or any other State, or the United States; had failed to report to his supervising officer as directed; had failed to pay court-ordered financial obligations; and had failed to pay the probation-supervision fee.
The court held a revocation hearing on January 2, 2018. Following the hearing, the court entered findings of fact wherein it found that Richard had violated the terms and conditions of his probation by committing a criminal offense punishable by imprisonment, possessing a controlled substance, and failing to report as ordered. The circuit court sentenced him to 120 months' imprisonment in the Arkansas Department of Correction. The court fined him an additional $150 in court costs, a public-defender-user fee of $100, and a booking fee of $200.
On appeal, we review probation-revocation orders to determine whether the circuit court's findings are clearly against the preponderance of the evidence. Jones v. State , 2013 Ark. App. 466, 2013 WL 4766701. To revoke probation, the State has the burden of proving by a preponderance of the evidence that a condition of probation was violated. Id. Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Joiner v. State , 2012 Ark. App. 380, 2012 WL 2129351. Proof of just one violation of the terms and conditions of release is sufficient to support revocation. Id.
Richard's counsel argues that there are no meritorious grounds for appeal and asks to withdraw as counsel. A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief that contains a list of all rulings adverse to appellant and an explanation as to why each ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Id.
In this case, counsel correctly notes that the only adverse rulings were the court's denial of Richard's directed-verdict motion and the revocation of Richard's probation. Counsel provides sound analysis establishing that the circuit court was correct in its ruling that there was sufficient evidence to find that Richard had violated the terms and conditions of his probation. We agree-the circuit court heard sufficient evidence to find by a preponderance of the evidence that Richard had violated his probation by committing a criminal offense punishable by imprisonment and failing to report as ordered. Specifically, Charnell Houff, Richard's supervising officer, testified that on July 6, 2017, Richard was arrested for domestic battery and was convicted on December 21, 2017. Houff further testified that Richard had failed to report to her as directed from July 2017 through September 2017.
In deciding whether to allow counsel to withdraw from appellate representation, the test is not whether counsel thinks the circuit court committed no reversible error but whether the points to be raised on appeal would be wholly frivolous. Williams v. State , 2013 Ark. App. 323, 2013 WL 2112203. In this case, we find compliance with Rule 4-3(k)(1) and Anders and hold that there is no merit to this appeal.
Affirmed; motion to withdraw granted.
Virden and Hixson, JJ., agree. | [
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JOSEPHINE LINKER HART, Associate Justice
Appellant Mark Martin ("Secretary Martin"), in his official capacity as Secretary of State, and appellant-intervenor Randy Zook ("Zook"), individually and on behalf of legislative question committee, Arkansans for Jobs and Justice, appeal the September 6, 2018 order from the Pulaski County Circuit Court. The circuit court's order entered a declaratory judgment finding that Senate Joint Resolution 8, designated as "Issue No. 1" on the ballot for the November 6, 2018 general election, was not referred in accord with article 19, section 22 of the Arkansas Constitution, and issued a writ of mandamus ordering Secretary Martin to refrain from counting, canvassing, or certifying any votes cast for or against. We affirm.
I. Background
In 2017, the Arkansas General Assembly passed Senate Joint Resolution 8 ("SJR 8") as a proposed constitutional amendment pursuant to article 19, section 22 of the Arkansas Constitution, for Arkansas voters to vote upon during the November 6, 2018 general election. In accordance with Arkansas Code Annotated § 7-9-110 (Repl. 2018), Secretary Martin designated SJR 8 as "Issue No. 1" for purposes of the November 2018 ballot. SJR 8 mandated that its "Popular Name and Ballot Title" shall be:
(a) When presented on the general election ballot, the popular name for this proposed amendment shall be "An Amendment Concerning Civil Lawsuits and the Powers of the General Assembly and Supreme Court to Adopt Court Rules. "
(b) When presented on the general election ballot, the ballot title for this proposed amendment shall be "A proposed amendment to the Arkansas Constitution providing that a contingency fee for an attorney in a civil lawsuit shall not exceed thirty-three and one-third percent (33 1/3 %) of the net recovery; defining "contingency fee" as an attorney's fee that is paid only if the claimant recovers money; providing that the General Assembly may amend the foregoing percentage by a two-thirds (2/3) vote of each house; limiting punitive damages awards for each claimant in lawsuits for personal injury, property damage, or wrongful death to the greater of (i) five hundred thousand dollars ($500,000), or (ii) three (3) times the amount of compensatory damages awarded; defining "punitive damages" as damages assessed to punish and deter wrongful conduct; providing that the General Assembly may not decrease the foregoing limitations on punitive damages but may increase the limitations by a two-thirds (2/3) vote of each house; providing that the limitations on punitive damages do not apply if the factfinder determines by clear and convincing evidence that the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage to the claimant and that such intentional conduct harmed the claimant; limiting awards of non-economic damages in lawsuits for personal injury, property damage, or wrongful death to (i) five hundred thousand dollars ($500,000) for each claimant, or (ii) five hundred thousand dollars ($500,000) for all beneficiaries of an individual deceased person in the aggregate in a lawsuit for wrongful death; defining "non-economic damages" as damages that cannot be measured in money, including pain and suffering, mental and emotional distress, loss of life or companionship, or visible result of injury; providing that the General Assembly may not decrease the foregoing limitations on non-economic damages but may increase the limitations by a two-thirds (2/3) vote of each house; providing that the General Assembly shall adopt a procedure to adjust the dollar limitations on punitive damages and non-economic damages in future years to account for inflation or deflation; providing that the Supreme Court's power to prescribe rules of pleading, practice, and procedure for courts is subject to the provisions of this amendment; providing that the General Assembly, by a three-fifths vote of each house, may amend or repeal a rule prescribed by the Supreme Court and may adopt other rules of pleading, practice, or procedure on its own initiative; providing that rules of pleading, practice, and procedure in effect on January 1, 2019, shall continue in effect until amended, superseded, or repealed under the provisions of this amendment; providing that a rule of pleading, practice, or procedure enacted by the General Assembly shall supersede a conflicting rule of pleading, practice, or procedure prescribed by the Supreme Court; providing that certain other rules promulgated by the Supreme Court may be annulled or amended by a three-fifths (3/5) vote of each house of the General Assembly instead of a two-thirds (2/3) vote as presently stated in the Arkansas Constitution; and providing that this amendment becomes effective on January 1, 2019."
The actual text of SJR 8 divides Issue No. 1's parts into four separate sections, and we will do the same for purposes of this opinion.
Section 1 proposes to place a 33 1/3 percent limit on attorney contingency-fee contracts and gives the General Assembly the power to pass additional laws for the implementation of section 1, while also giving the General Assembly the power to pass additional laws to further define and alter the terms of section 1 and the limits on contingency-fee contracts.
Section 2 proposes to (1) place a $500,000 limit on a person's ability to recover noneconomic damages; (2) place a limit on punitive damages of the greater of $500,000 or three times a person's compensatory verdict; and (3) give the General Assembly the power to enact additional laws to implement section 2 and to change the stated limitations to damages awards.
Section 3 seeks to amend amendment 80 of the Arkansas Constitution to give the General Assembly the power to adopt, amend, and repeal rules of pleading, practice, and procedure for the entire Arkansas Judiciary.
Section 4 proposes the following changes to amendment 80: (1) amend section 9 of amendment 80 by lowering the vote threshold by which the General Assembly may annul or amend certain rules of the Arkansas Supreme Court related to section 5 of amendment 80 under which the supreme court determines the appellate jurisdiction of the court of appeals; (2) amend section 6(B) of amendment 80 under which the Supreme Court exercises superintending control over the way in which circuit judges may divide the circuit courts into subject-matter divisions; (3) amend section 7(B) of amendment 80 under which the supreme court establishes the jurisdictional amount and the subject matter of civil cases in district court (as well as criminal jurisdiction); (4) amend section 7(D) of amendment 80 under which the supreme court exercises superintending control over the way district judges may divide the district courts into subject-matter divisions; and (5) amend section 8 of amendment 80, under which the Supreme Court exercises superintending control over the way in which referees, masters, and magistrates may be appointed by the circuit and district courts and the duties they can perform.
On July 12, 2018, appellee Marion Humphrey filed a complaint in the Pulaski County Circuit Court seeking a declaration that Issue No. 1 is unconstitutional, along with a request for either a writ of mandamus or injunctive relief seeking to prevent Secretary Martin from counting, canvassing, or certifying any votes cast for or against Issue No. 1 at the November 6, 2018, general election. On July 25, 2018, appellant-intervenor Zook sought and was given permission to intervene in this matter. The circuit court then set a hearing for August 30, 2018, on Humphrey's claims for a declaratory judgment and a writ of mandamus.
Before the hearing, all parties briefed the issues. At the hearing, Humphrey argued that Issue No. 1 is unconstitutional because the sections of Issue No. 1 are not germane to each other or germane to a general purpose. Secretary Martin and Zook both argued that the sections are germane to each other and to a single purpose; however, each had different formulations of the "purpose" for Issue No. 1. Secretary Martin asserted that the general purpose of Issue No. 1 is "courts and the judiciary," while Zook maintained that the general purpose of Issue No. 1 is "judicial power." A hearing was held on August 30, 2018, with all parties presenting their arguments to the circuit court. After the hearing, on September 6, 2018, the circuit court issued its findings and its order. The circuit court's order provided as follows:
Issue No. 1, as proposed, clearly violates Art. 19, Sec. 22 of the Arkansas Constitution under any analysis.... Plaintiff has clearly demonstrated the four parts of Issue No. 1 are not reasonably germane to each other nor are those four parts reasonably germane to the subject (whatever that subject may be) of the amendment.
Accordingly, the circuit court granted Humphrey's request for declaratory relief because Issue No. 1 violates article 19, section 22 of the Arkansas Constitution. The circuit court also issued a writ of mandamus ordering Secretary Martin to refrain from counting, canvassing, or certifying any votes cast for or against Issue No. 1. This appeal followed.
II. Standard of Review
This court reviews the circuit court's interpretation and construction of constitutional provisions de novo; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Forrester v. Martin , 2011 Ark. 277, 383 S.W.3d 375 ; State v. Oldner , 361 Ark. 316, 206 S.W.3d 818 (2005). When interpreting the constitution, this court's duty is to read the laws as they are written and interpret them in accordance with established principles of constitutional construction. Oldner , 361 Ark. 316, 206 S.W.3d 818. Thus, when the language of a constitutional provision is plain and unambiguous, it must be given its obvious and common meaning. Id. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Id.
However, unlike legislatively referred constitutional amendments that have been submitted to and adopted by the voters, there is no presumption of constitutionality afforded by this court during its review of pre-election-proposed amendments that have not been voted on and adopted or approved by the public. See Chaney v. Bryant , 259 Ark. 294, 298, 532 S.W.2d 741, 744 (1976) (explaining that it is only "after a proposed constitutional amendment has been ratified by the people, [that] every reasonable presumption, both of law and fact, will be indulged in favor of its validity").
This appeal also involves the circuit court's decision to grant Humphrey's request for a writ of mandamus. This court reviews the circuit court's decision to grant a writ of mandamus pursuant to the abuse-of-discretion standard. See City of North Little Rock v. Pfeifer , 2017 Ark. 113, 515 S.W.3d 593. An abuse of discretion occurs when the circuit court makes a decision that is arbitrary or capricious. Id.
III. Arguments and Analysis
This appeal concerns whether Issue No. 1 complies with article 19, section 22 of the Arkansas Constitution --the constitutional provision that allows the General Assembly to submit up to three proposed constitutional amendments for the public's consideration. Article 19, section 22 provides in its entirety:
Either branch of the General Assembly, at a regular session thereof, may propose amendments to this Constitution; and if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State, for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution. But no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.
Ark. Const. art. 19, § 22 (emphasis added). A plain reading of article 19, section 22 provides that the General Assembly can only submit up to "three" proposed amendments at a time and that the proposed amendments must be "submitted as to enable the electors to vote on each amendment separately." This court has held that "under article 19, section 22, there is no violation of the separate-issue requirement so long as all of the amendment parts are reasonably germane to each other and to the general subject of the amendment." Forrester v. Martin , 2011 Ark. 277, at 9, 383 S.W.3d 375, 381 (emphases added). We recently interpreted the word "germane" as it appears in another section of our constitution to mean "relevant; pertinent" or "having a close relationship." Martin v. Haas , 2018 Ark. 283, 556 S.W.3d 509.
We now turn to the case at bar. Humphrey argues that Issue No. 1 is unconstitutional because its contents are not "reasonably germane" to each other or to a "general purpose" pursuant to article 19, section 22 and our prior decisions interpreting that provision. Secretary Martin argues that Issue No. 1 does not violate article 19, section 22 because all four of its sections are reasonably germane to each other and to the general subject of the "judiciary and the courts." Zook argues that the four sections of Issue No. 1 are all reasonably germane to each other and to the general subject of "judicial power."
We conclude that Issue No. 1 does not comply with article 19, section 22 of the Arkansas Constitution.
First, the sections of Issue No. 1 are not all "reasonably germane" to each other. This is evident upon comparing the first section of Issue No. 1 to its other sections. Appellant Martin argues this issue as follows:
The connection between contingent attorneys' fees in Section 1 and damages in Section 2 is obvious-such attorneys' fees are contingent upon the amount of damages awarded, so those sections are reasonably germane to each other. And those sections both have a substantive interplay with Sections 3 and 4 because judicial procedure will govern the way in which the provisions of Sections 1 and 2 will be enforced in the courts.
Without opining upon the relationship between other sections, it is simply untenable to assert that section 1 is reasonably germane to sections 3 or 4. Section 1 limits the rights of private parties to contract for legal services. Sections 3 and 4 broaden and diversify the legislature's ability to exert influence over judicial rule-making authority. Section 1 does not operate to support, develop, clarify, or otherwise aid the function of sections 3 or 4 in any meaningful way, nor do sections 3 or 4 offer any such benefit to section 1. The first section of Issue No. 1 is simply not reasonably germane to the other sections.
Additionally, there is no "general subject" to which all of Issue No. 1's contents can be said to be reasonably germane. Again, this is evident upon comparing Issue No. 1's first section to its other sections. Secretary Martin and Zook argue that the first section, which limits contingency fees in civil actions to 33 1/3 percent, and the other sections are all reasonably germane to the general subject of "courts and the judiciary" or "judicial power." Obviously, an attorney representing a client under a contingency-fee agreement in a wrongful-death case (which section 1 addresses) will obtain a larger fee if the attorney obtains a larger recovery for the client's damages, including non-economic and punitive damages (which section 2 addresses). But how the actual percentage of any recovered amount is to be divided between attorney and client, which is the only subject to which section 1 applies, is entirely a matter of private agreement between client and attorney. The courts have nothing to do with such agreements. The first section of Issue No. 1 is simply not reasonably germane to the general subject of "courts and the judiciary" or "judicial power."
Applying our rules of constitutional interpretation to the plain language of article 19, section 22 further confirms that Issue No. 1, as formulated in this specific case, does not pass constitutional muster. "One of the fundamental principles or rules in the construction of a constitution is that effect must be given to every part and that, unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous, meaningless, or inoperative." Heathscott v. Raff , 334 Ark. 249, 256, 973 S.W.2d 799, 803 (1998) (Arkansas Supreme Court ruling that nonattorney's election to office of prosecuting attorney would violate article 7, section 24's requirement that any elected "prosecuting attorney ... shall be ... learned in the law"). Issue No. 1's current formulation is at odds with art. 19, § 22's plain language limiting the General Assembly to submitting only up to "three" constitutional amendments at the same time, and in such a manner that they may be voted "separately;" this language is a significant limitation that distinguishes the General Assembly's ability to submit a constitutional amendment from that enjoyed by the public, and it must bear some meaning. While SJR 8 divides Issue No. 1's substantive changes into "four" sections, Issue No. 1 would actually implement a considerably larger number of changes to our constitution. The actual text of SJR 8 itself, even by a generous reading, institutes at least seven individual numerated changes or additions to the constitution that would significantly alter the status quo. If we consider the impact SJR 8 would have on other constitutional provisions that the text of SJR 8 does not identify, such as article 2, section 13's guarantee that "[e]very person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character," the number of effective changes SJR 8 would impose is arguably even larger. In short, allowing the General Assembly to submit so many changes to our constitution under the guise of a single amendment, when the alleged links between those proposed changes are so attenuated and tangential (or even non-existent) as they are in this specific case, would render article 19, section 22's three-amendment limitation "superfluous, meaningless, or inoperative." Heathscott, supra.
For these reasons, any one of which would compel affirmance, see, e.g. , Alexander v. Chapman , 299 Ark. 126, 130, 771 S.W.2d 744, 746-47 (1989) ("We will affirm the trial court's ruling if it is correct for any reason."), we affirm the circuit court's ruling that the submission of SJR 8/Issue No. 1 violates article 19, section 22 of the Arkansas Constitution. Accordingly, there is no need to address any of the appellants' remaining arguments on this question, and we decline to do so.
Based on its ruling that Issue No. 1 violates article 19, section 22, the circuit court held that Humphrey was entitled to both a declaratory judgment and a writ of mandamus. Rule 57 of the Arkansas Rules of Civil Procedure allows for the issuance of a declaratory judgment. This declaration is allowed even when another adequate remedy may exist, and such declaration shall have the "force and effect of a final judgment or decree." See Ark. R. Civ. P. 57 ; Ark. Code Ann. § 16-111-101 (Repl. 2016). It is entirely appropriate for a court to declare one's right with regard to an action taken by elected officials. Jones v. Clark , 278 Ark. 119, 122, 644 S.W.2d 257, 259 (1983) (declaratory judgment is "a remedy peculiarly appropriate to controversies between citizens and public officials about the meaning of statutes"). One must only show a potential prejudicial impact to have standing. See Jegley v. Picado , 349 Ark. 600, 80 S.W.3d 332 (2002) ; Lawson v. City of Mammoth Springs , 287 Ark. 12, 696 S.W.2d 712 (1985).
Additionally, courts in these cases may grant any "further relief" whenever necessary and proper. See Ark. Code Ann. § 16-111-108. A party may seek mandamus wherein the court may command "an executive, judicial, or ministerial officer to perform an act or omit to do an act, the performance or omission of which is enjoined by law." Ark. Code Ann. § 16-115-101. The court shall hear the request and "shall hear and determine all questions of law and fact."
Ark. Code Ann. § 16-115-108. A writ seeking mandamus "is traditionally regarded as a remedy to be used on all occasions where the law has established no specific remedy, and justice and good government require it." State v. Craighead Cty. Bd. of Election Comm'rs , 300 Ark. 405, 411, 779 S.W.2d 169, 172 (1989).
Furthermore, this court has routinely ordered the Arkansas Secretary of State to not count or certify any ballots cast for a proposed amendment that does not meet the requirements of the Arkansas Constitution or Arkansas law. See Christian Civil Action Comm. v. McCuen , 318 Ark. 241, 884 S.W.2d 605 (1994) ; see also Wilson v. Martin , 2016 Ark. 334, 500 S.W.3d 160 (enjoining the Arkansas Secretary of State from counting or certifying ballots for a proposed amendment that had an insufficient ballot title); Lange v. Martin , 2016 Ark. 337, 500 S.W.3d 154 (granting citizen petition and enjoining the Arkansas Secretary of State from counting or certifying any votes for a proposed constitutional amendment that did not meet the requirements of Arkansas law).
Here, Secretary Martin is the state official responsible for receiving an abstract of all votes cast for and against referred constitutional amendments, canvassing these returns, and certifying the results to the Governor of the State of Arkansas and the State Board of Election Commissioners. See Ark. Code Ann. § 7-9-119. Furthermore, Humphrey has a right to cast a ballot only on referred constitutional amendments that meet the standards set forth by the Arkansas Constitution. Accordingly, the circuit court did not err when it issued a declaratory judgment after finding that Humphrey had proved that Issue No. 1 is unconstitutional. Furthermore, the circuit court did not abuse its discretion when, in order to enforce its finding, it issued a writ of mandamus prohibiting Secretary Martin from counting, canvassing, or certifying the votes for or against Issue No. 1.
Affirmed.
Mandate to issue within five days.
Special Justice Stephen Tabor joins.
Wood, J., concurs.
Womack, J., dissents.
Kemp, C.J., not participating.
Although I agree that Senate Joint Resolution 8 fails the constitutional requirements of article 19, section 22 of the Arkansas Constitution, I cannot join the majority's analysis.
The majority continues to rely on the court-created doctrine of "germaneness" that was first implemented in Forrester v. Martin , 2011 Ark. 277, 383 S.W.3d 375. This reliance is misplaced, and worse yet, the application of germaneness fails. In utilizing this test, the majority finds that the various sections of SJR8 are not germane to one another because the first section, regarding contingency fees, has nothing to do with the remaining sections. The majority goes so far as to claim that "the courts have nothing to do with" limiting attorneys' contingency-fee agreements. This statement flies in the face of our own court rules, which prohibit attorneys from entering into contingency-fee agreements with clients in domestic relation matters and in criminal cases. Ark. R. Prof'l Conduct 1.5.
I also cannot agree with the majority's statement that "the alleged links between those proposed changes are so attenuated and tangential (or even non-existent)." As explained supra , there are links. We most certainly regulate, to an extent, whether attorneys can enter into certain contingency-fee agreements. Moreover, this court manifested a link between its judicial power and liability limitations when it held in Johnson v. Rockwell Automation, Inc. , that it was within the court's authority to promulgate rules of procedure with respect to liability, not the legislature's law-making authority. See 2009 Ark. 241, 308 S.W.3d 135. How then can the majority state any link between these provisions is "non-existent"?
Despite all of this, article 19, section 22 of the Arkansas Constitution clearly states that "no more than three amendments shall be proposed or submitted at the same time." "They shall be submitted as to enable the electors to vote on each amendment separately." Ark. Const. art. 19 § 22. SJR8's four sections amend (1) article 7, section 53(b); (2) article 5, section 32(d); (3) Amendment 80, section 3; and, (4) Amendment 80, section 9. These are at a minimum two, if not three separate amendments that must be submitted individually to the voters.
I am cognizant that many other legislatively initiated acts that would have failed this test in the past are now part of the constitution. They simply were not timely challenged. This court cannot look retrospectively at a proposed constitutional amendment it never had the opportunity to review.
The power to determine the public policy of the state belongs to the people in two ways: directly at the ballot box and indirectly through their elected representatives. Article 19, section 22 of the Arkansas Constitution joins the two by providing a mechanism for the elected representatives of the people to propose constitutional-level policy changes for the people themselves to adopt or reject. The role of the courts in this process is important but limited. Reviewing the proposal to ensure compliance with constitutional requirements is appropriate and necessary. Here, the majority steps beyond that limited role by disregarding the plain language of the constitution and applying a test that is not required to evaluate the legality of the proposed amendment. Because I disagree with the majority's analysis of Issue No. 1 and application of article 19, section 22, I must respectfully dissent.
The question in this case is straightforward: Does the proposed amendment in Issue No. 1 satisfy the requirement of article 19, section 22 of the Arkansas Constitution that legislatively referred amendments "shall be so submitted as to enable the electors to vote on each amendment separately" (henceforward the "separate-vote requirement")? The majority, relying on this court's questionable prior interpretation of that text, concludes that it does not. I believe the proposed amendment easily satisfies that constitutional requirement, either under a literal reading of the text or under the test set out by the majority.
The "reasonably germane" requirement, the operative concept discussed in detail by the majority, does not appear anywhere in our state's constitution, much less in article 19, section 22. In fact, the separate-vote requirement of the constitution lacks any discussion whatsoever of the content of legislatively referred amendments. On its face, all the separate-vote requirement says is that voters must be able to vote on each legislatively referred amendment-whatever that amendment might be-separately. If this court were to read the specified language as written, there would be no doubt that Issue No. 1 clears the bar. There is no contention from any party that the General Assembly (or any other entity) has made or attempted to make the decision of voters on Issue No. 1 in any way tied to the fate of Issue No. 2, the other legislatively referred amendment set for this year's general election. The votes on the amendments are separate both in form and function.
The majority refers to our interpretation of "germane" in Martin v. Haas , 2018 Ark. 283, 556 S.W.3d 509, as a relevant interpretation of a similar term "as it appears in another section of our constitution." Majority Opinion, supra , at 376. It is important to note, however, that amendment 51, the part of the constitution we interpreted in Haas , actually includes the term "germane." It gives the General Assembly authority to amend the amendment "so long as such amendments are germane to this amendment, and consistent with its policy and purposes." Ark. Const. amend. 51 (emphasis added). Article 19, section 22 has no such requirement of germaneness.
Whence "reasonably germane" in this context, then? As the majority correctly cites, this court adopted the requirement in Forrester v. Martin , 2011 Ark. 277, at 9, 383 S.W.3d 375, 381, that legislatively referred amendments must contain only components that are "reasonably germane to each other and to the general subject of the amendment." This was not a piecemeal modification of our prior case law, we simply imported the interpretation that the Supreme Court of California applied to that state's facially similar legislatively referred amendment process. See Californians for an Open Primary v. McPherson , 38 Cal.4th 735, 43 Cal.Rptr.3d 315, 134 P.3d 299 (2006).
Even putting aside the basic atextuality of the Forrester court's decision to adopt this standard, two observations make reliance on Forrester problematic here. First, the California Supreme Court reached its conclusion by expressly reading the legislative referral language in concert with a separate provision of the California Constitution requiring initiatives to have a single subject. Article 5, section 1 of the Arkansas Constitution, the parallel section outlining referenda and initiatives in this state, contains no such explicit requirement. Second, the Forrester court goes on to describe the separate-vote requirement as the "separate-issue" requirement, a mistake quoted in the majority opinion. See Forrester , 2011 Ark. 277, at 9, 383 S.W.3d at 381 ; majority opinion, supra , at 376. While the Forrester court's wording can perhaps be attributed to a scrivener's error, describing any part of article 19, section 22 as a "separate-issue" requirement obscures that the text of article 19, section 22 requires only one thing to be separate: the votes.
Even accepting the Forrester standard as the correct one, however, the majority errs in holding that Issue No. 1 falls short. Despite any other faults with it, the most useful case to demonstrate this is Forrester itself. In assessing germaneness, both among amendment components and to a general subject, the Forrester court was, to put it mildly, not very demanding. The court summarized amendment 89, the enactment at issue in that case, as including the following provisions: (1) giving to the General Assembly the sole power to set maximum lawful interest rates on bonds issued by, and loans made to, the government; (2) pegging interest and other financial rates for federally insured depository institutions in the state to those specified by federal statute; (3) setting a residual interest rate for other contracts not included in sections 1 and 2 ; and (4) authorizing governmental units to issue bonds for energy-efficiency projects. See Forrester , 2011 Ark. 277 at 7, 383 S.W.3d at 380. The court reasoned that the general subject of amendment 89 was "economic development and debt obligations," that all the provisions concerned this general subject, and that the seemingly out-of-place section 4 referenced section 1, and therefore all provisions were germane to each other. Id.
This same forgiving standard was evident in our earlier cases dealing with the separate-vote requirement (and before the importation of the "reasonably germane" test in Forrester ). In Brockelhurst v. State , 195 Ark. 67, 111 S.W.2d 527 (1937), we examined an amendment that (1) specified the avenues that prosecuting attorneys could use to charge an individual with a crime, and (2) empowered the General Assembly to set the salaries of prosecuting attorneys. We held that the connection between these two very different provisions to the general theme of "prosecuting attorneys" was more than sufficient to satisfy article 19, section 22. Id.
The majority has imposed a much stricter standard in this case than in either Forrester or Brockelhurst . Issue No. 1 is divided into four broad sections: (1) setting a limitation on contingency-fee contracts; (2) setting a limitation on noneconomic and punitive damages in some cases; (3) providing a role for the General Assembly in the adoption of court rules; and (4) changing the vote threshold for the General Assembly to annul or amend court-adopted rules. The majority takes the most umbrage at section 1, which it classifies as a limitation on the "rights of private parties to contract for legal services." Majority opinion, supra , at 377. For the "germane to each other" test, the majority opines that section 1's effect is unrelated to sections 3 and 4, which affect the legislature's rulemaking authority. For the "germane to a general purpose" test, the majority opines that section 1 is unrelated to the "courts and the judiciary" because the courts have no formal role in adjusting the division of an award between attorney and client. It seems likely, however, that limitations on contingency-fee contracts may change incentives in such a way that will alter the type and nature of cases that are brought before the courts. This is the sort of general connection that would have satisfied the undemanding standards on display in Forrester and Brockelhurst .
It is easy to imagine the majority in this case critiquing the amendment in Brockelhurst as, for example, a provision about prosecuting-attorney pay that was unartfully mashed together with a tangential provision about grand juries on which pay has no bearing. Or perhaps the Forrester amendment would become a scatterbrained list of amendments limiting freedom-of-contract rights on interest rates logrolled with an energy-efficiency initiative. If the test is how related the sections sound when presented as uncharitably as possible, it is difficult to imagine that any of these amendments would pass the test.
Finally, amendment 80 of the Arkansas Constitution is instructive in this instance. It covers a wide range of issues, and like Issue No. 1, those issues are all related in some way to the court and judiciary in Arkansas. There are 22 sections in amendment 80. Section 1 vests the judicial power exclusively in "a Supreme Court and other courts established by this Constitution." Section 2 provides for the makeup of the supreme court and describes our jurisdiction. Sections 3 and 4 give the supreme court authority over rules of pleading, practice, and procedure and superintending control over all other courts of the state. Sections 5 through 8 provide for a court of appeals, circuit courts, district courts, referees, masters, and magistrates. Section 9 deals with legislative powers and allows the rules promulgated by the supreme court to be "annulled or amended, in whole or in part, by a two-thirds (2/3) vote of the membership of each house of the General Assembly." Section 10 also addresses legislative powers, giving the General Assembly the power to establish jurisdiction and venue and to determine the makeup of judicial circuits and districts and the number of judges in each. Section 11 provides for a right of appeal. Sections 12 and 13 address temporary disqualification of judges and appointments of special judges. Sections 14 and 15 place limitations on activities of judges and justices. Sections 16 through 18 provide for the qualifications and elections of judges and justices. Section 20 provides for the election of prosecuting attorneys and establishes their qualifications for office and length of terms. Section 22 repeals other parts of the constitution.
Amendment 80, like Issue No. 1, was a legislatively referred amendment under the power provided in article 19, section 22. It was approved by the General Assembly in 1999 and adopted by the people in 2000. Its subjects range from judicial power to legislative power, from elections and qualifications of judges and justices to elections and qualifications of prosecuting attorneys, from adoption and amending of rules to prohibition of the practice of law and candidacy for non-judicial offices. Amendment 80 is the modern foundation of the Arkansas Judiciary, but it never would have survived a challenge in front of this court if we were to use the standard as applied here by the majority.
In summary, the majority has used an extraconstitutional, judicially created test, imported from California, to stop the people of Arkansas from exercising their public policy making power to either accept or reject a change proposed by their elected senators and representatives. Issue No. 1 satisfies the requirements set out in article 19, section 22 of the Arkansas Constitution, whether that provision is understood by its literal terms or by this court's prior interpretations. There is no doubt that, if passed, all sections of the proposed amendment would affect the courts and judiciary of Arkansas. If the impact of Issue No. 1 on the courts and on civil litigation would be too expansive, our constitution leaves that decision to the voters of Arkansas to make at the ballot box, not to a majority of this court of seven.
I respectfully dissent.
This opinion will refer to SJR 8 and its sections as "Issue No. 1."
In an effort to identify and flesh out a link between such agreements and the courts, Appellants point to Rule 1.5 of the Arkansas Rules of Professional Conduct, which provides that "[a] lawyer's fee shall be reasonable ..." based on numerous considerations that will vary from case to case. Appellants' argument is unavailing. Setting an arbitrary cap on a citizen's ability to contract is not a matter contemplated by the Rules of Professional Conduct. The Arkansas Rules of Professional Conduct "provide a framework for the ethical practice of law" and "are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies." Ark. R. Prof'l Cond. , Scope . The Rules of Professional Conduct apply to attorneys, not to citizens. Furthermore, this set of ethical rules applies to all cases, not just those involving contingency fees. Regardless of Issue 1's fate, Rule 1.5 will still be in place governing all attorneys who charge a fee, not just contingency fees, and then only requiring that such fees be "reasonable," based upon the specific circumstances of a given case. Put simply, the mere fact that Rule 1.5 exists does not render a cap on the acceptable percentage in all civil contingency fee cases "reasonably germane" to either "courts and the judiciary" or "judicial power."
Specifically: (1) creating a 33 1/3 percent cap on attorney contingency fee agreements at what would be art. 7, § 53(b), when no such cap presently exists; (2) creating a cap on punitive damages at what would be art. 5, § 32(c), when no such cap presently exists; (3) creating a cap on non-economic damages at what would be art. 5, § 32(d), when no such cap presently exists; (4) amending and adding to Amendment 80, § 3 to eliminate the Arkansas Supreme Court's existing ability to implement rules of pleading, practice, or procedure, except at the approval of the General Assembly; (5) conferring upon the General Assembly the new power to amend or repeal an existing rule of pleading, practice, or procedure implemented by the Arkansas Supreme Court at what would be Amendment 80, § 3(b)(1)(A); (6) conferring upon the General Assembly the new power to adopt a new rule of pleading, practice, or procedure at its own initiative at what would be Amendment 80, § 3(b)(1)(B); and (7) lowering the existing threshold set by Amendment 80, § 9 for the General Assembly to amend or annul an existing rule implemented by the Arkansas Supreme Court pursuant to its superintending control over the Arkansas Court of Appeals, circuit courts, and district courts, as well as any appointed referees, masters, or magistrates from a two-thirds (2/3) vote of the membership of each house of the General Assembly to a three-fifths (3/5) vote of the membership of each house of the General Assembly. See S. J. Res. 8, 91st Gen. Assemb., Reg. Sess. § 1-4 (Ark. 2017). The first of these changes would be applicable in all civil actions. The next two would only be applicable in civil cases of personal injury, wrongful death, or property damage. The remaining changes, including the provisions empowering the General Assembly with judicial rulemaking authority, would be applicable in all forms of state litigation. Id.
That is not to say that I agree with this holding.
"An initiative measure embracing more than one subject may not be submitted to the electors or have any effect." Cal. Const. art. 2, § 8 (d).
As is helpfully-but perhaps unintentionally-demonstrated by the dissent in Forrester and the appellee's briefing in this case, the framers of the Arkansas Constitution knew how to specify a single-subject requirement when they wanted to. Just such a requirement appears in the legislative article and requires that most appropriations be in the form of "separate bills, each embracing but one subject." Ark. Const. art. 5, § 30. | [
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MIKE MURPHY, Judge
Avonis Fisher appeals the termination of his parental rights to his child, AF. On appeal he argues that termination of his parental rights was not in AF's best interest. We affirm.
On February 2, 2017, the Arkansas Department of Human Services (DHS) took an emergency seventy-two-hour hold on AF, who was a little over a month old at the time, because AF's mother, Erika Hood, had an open foster-care case for another child, NR. Fisher was named as AF's putative father.
The case progressed through probable-cause and adjudication hearings. AF was adjudicated dependent-neglected. Fisher was named the biological father, and both parents asked that AF be placed with Fisher's mother. Fisher was ordered to participate in services, and the goal of the case was set as relative placement. A permanency-planning hearing was held on June 13, 2017. AF remained in DHS custody. Fisher missed his appointment for his psychological evaluation, and the circuit court again ordered him to submit to a psychological evaluation. It was also ordered that if the parents requested services, DHS was ordered to provide the services. The circuit court found that DHS had made reasonable efforts to achieve reunification. A month later, the circuit court entered an order directing that the placement decision regarding Fisher's mother, Lajuane Fisher, be expedited pursuant to the Interstate Compact on the Placement of Children (ICPC).
On October 10, 2017, DHS filed a motion to authorize an ICPC placement based on the receipt of a favorable home study on the paternal grandmother. On November 2, 2017, the attorney ad litem filed a response to DHS's motion, arguing that the potential placement with the paternal grandmother was not in AF's best interest.
On December 12, 2017, the circuit court held another permanency-planning hearing and continued the goal of relative placement. The circuit court heard testimony from the paternal grandmother and determined "the court cannot authorize ICPC placement with [the paternal grandmother]." The circuit court's decision was due to the criminal record of the grandmother's boyfriend, a drug raid on her home in 2016, and the court's assessment that the grandmother had credibility issues. That following February, a final permanency-planning hearing was held. The goal of the case was changed to include termination of parental rights and adoption, but the court also ordered home studies on both the paternal grandfather and uncle. DHS was found to have made reasonable efforts. On February 23, 2018, the attorney ad litem filed a petition for termination of both parents' parental rights, alleging the grounds of failure to remedy, subsequent factors, prior findings of neglect or abuse, and aggravated circumstances.
A termination hearing was held on May 15, 2018. The court first heard testimony from an adoption specialist, who testified that there were over five hundred matches available for AF. It next heard from the family-service worker assigned to the case, Breanna Earnest. Earnest testified about the services offered to the parents. She testified that Fisher had not completed any counseling and that he had declined to submit to drug screening. Earnest stated that there was a bond between AF and Fisher and that he had made an effort to see his child. Fisher testified. He stated that he was currently living with his grandmother but that he was still in a relationship with AF's mother. He testified that he wanted the child to be placed with his grandfather. AF's mother, Erica Hood, testified that she believed it was appropriate for AF to be returned to her care but that if that was not an option that AF should go to Fisher's grandfather. In Fisher's closing argument, he reiterated his request to place AF with a relative. At the conclusion of the hearing, the circuit court terminated Fisher's parental rights, finding that it was in AF's best interest to do so. Fisher now appeals.
We review termination-of-parental-rights cases de novo. Bunch v. Ark. Dep't of Human Servs. , 2017 Ark. App. 374, 523 S.W.3d 913. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Bunch, supra. A heavy burden is placed on a party seeking termination because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. We will not reverse a termination order unless the circuit court's findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
The termination-of-parental-rights analysis is twofold; it requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. The first step requires proof of one or more of the nine enumerated statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step, a best-interest determination, must consider the likelihood that the children will be adopted and the potential harm caused by returning custody of the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i), (ii).
On appeal, Fisher does not challenge the statutory grounds and instead limits his argument to the best-interest determination. But even within his best-interest argument, Fisher does not address the findings associated with adoptability or potential harm. Because Fisher has not challenged the court's decision as to the grounds for termination, adoptability, or potential harm, we need not address them now. Instead, Fisher contends that the circuit court's determination to terminate his parental rights in lieu of pursuing relative placement demonstrates reversible error.
Fisher argues that there was error because one of the goals throughout the case was relative placement, and at the time of the termination hearing, AF had multiple relatives available for placement that had not been assessed by DHS. Citing Caldwell v. Arkansas Department of Human Services , 2010 Ark. App. 102, 2010 WL 374432, and Lively v. Arkansas Department of Human Services , 2015 Ark. App. 131, 456 S.W.3d 383, Fisher argues that this is contrary to Arkansas law because without a conclusive decision on the relative-placement issue, it would be impossible for the circuit court to conduct a full best-interest analysis.
This case, however, is distinguishable from Caldwell and Lively , which are one-parent termination cases. In those cases, the child was in the custody of one parent when the other parent's rights were terminated, which severed all legal relationships between the child and the terminated parent's relatives. In both Caldwell and Lively , the children were in the mother's custody, and termination of the father's rights jeopardized the children's relationships with paternal relatives who were stable influences on the children. Lively , 2015 Ark. App. 131, at 8-9, 456 S.W.3d 383, 388 ; Caldwell , 2010 Ark. App. 102, at 7. Here, there is no evidence that AF had a relationship with any of her relatives, let alone one that would be characterized as a stable influence.
Fisher identifies both his uncle and his grandfather as possible placements for AF. However, the record indicates that DHS did pursue possible placement with Fisher's uncle but that reports indicated "he did not want to go forward with the process" and "refused" a home study. Regarding potential placement with Fisher's grandfather, the DHS caseworker stated in the court report that a request for an ICPC home study had been submitted but that DHS was still waiting for a response from the grandfather's home state. From the bench, however, the circuit court noted that the ICPC process "takes a long time" and that AF needed permanency.
Fisher next contends that the circuit court erred because it was required to look for ways to effectuate case goals and permanency through less extreme remedies than termination, such as in Ivers v. Arkansas Department of Human Services , 98 Ark. App. 57, 250 S.W.3d 279 (2007), and Rhine v. Arkansas Department of Human Services , 101 Ark. App. 370, 278 S.W.3d 118 (2008). This is not a case, however, like Ivers , where the noncustodial parent demonstrated "commendable resolve in seeking to remedy his drug problem" to achieve reunification, because Fisher never sought reunification. Nor is it like Rhine , which dealt with the circuit court's abuse of discretion in denying a motion for continuance so that the mother could sign a consent to the termination of parental rights.
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) ; Robinson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 251, at 5, 520 S.W.3d 702, 705. Here, at the time of the termination hearing, AF had lived in foster care for over fifteen months. Fisher requests more time to find an appropriate relative willing to care for AF, but this kind of wait-and-see approach is the definition of instability from which the termination statute intends to protect children. See Smith v. Ark. Dep't of Human Servs. , 2017 Ark. App. 368, at 12, 523 S.W.3d 920, 927. After a de novo review, we are not left with a definite and firm conviction that a mistake has been committed.
Affirmed.
Abramson and Harrison, JJ., agree.
NR had entered foster care due to exposure to extreme cruelty and the unexplained death of a sibling in the care of the mother. The mother is not a party to this appeal.
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) (Supp. 2017).
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) .
Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a) .
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B) . | [
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RHONDA K. WOOD, Associate Justice
Rodney Bunch petitions this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. Bunch alleges that the prosecutor withheld evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) which would have established that his confession to the crimes for which he was convicted was coerced. Because Bunch fails to make sufficient allegations to warrant coram nobis relief, we deny his petition.
A Pulaski County jury convicted Bunch of four counts of aggravated robbery, three counts of theft of property, and one count of first degree sexual abuse stemming from the robbery of a salon. Bunch was convicted as a habitual offender and sentenced to life imprisonment. On direct appeal, Bunch challenged the trial court's denial of his motion to suppress his confession to the robberies contending it was coerced and involuntary. This court rejected his arguments and affirmed. Bunch v. State , 346 Ark. 33, 57 S.W.3d 124 (2001), overruled by Grillot v. State , 353 Ark. 294, 107 S.W.3d 136 (2003) (clarifying the standard of review used to analyze the trial court's ruling on the voluntariness of a confession).
Where a writ of error coram nobis is sought after the judgment has been affirmed on appeal, like in this case, the circuit court may entertain the petition only after this court grants permission. In coram nobis proceedings, this court gives a strong presumption that the judgment of conviction is valid. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. A writ of error coram nobis is an extraordinarily rare remedy. Id. For the writ to issue following the affirmance on direct appeal, the petitioner must show a fundamental error of fact extrinsic to the record. Id. The writ functions to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it 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 petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id.
We allow a writ of error coram nobis only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. The writ is available for addressing errors 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. ; Hillv. State , 2017 Ark. 121, 516 S.W.3d 249. We will reinvest jurisdiction in the circuit court to consider error coram nobis relief only when it appears the proposed attack on the judgment is meritorious. Roberts , 2013 Ark. 56, 425 S.W.3d 771. In making this determination, we look to the reasonableness of the petitioner's allegations and to the probability of truth. Id.
Bunch argues we should issue the writ to reinvest jurisdiction in the circuit court because the prosecution committed a Brady violation. He claims that the State suppressed parts of a recorded, and later transcribed, statement he had provided to investigators. Specifically, he claims that a portion of his transcribed statement was redacted and suppressed by the State, and therefore, it was not presented to the jury. However, as Bunch concedes in his petition, his direct-appeal record contains the CD of the recorded statement. Therefore, Bunch's arguments pertain to matters that are wholly contained within the record and were known to the defense at the time of trial. Because this evidence was not plainly withheld, his allegations do not warrant reinvesting jurisdiction in the circuit court to consider a coram nobis petition. See Roberts , 2013 Ark. 56, 425 S.W.3d 771.
Petition denied. | [
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RAYMOND R. ABRAMSON, Judge
This is an appeal from the Workers' Compensation Commission's (the Commission's) decision awarding benefits to Don Coffman. On appeal, Lonoke Exceptional School, Inc. (Lonoke School), argues that the Commission (1) arbitrarily disregarded medical evidence and (2) erred in finding that Coffman established that he sustained a compensable injury supported by objective findings. We affirm.
Coffman works as a bus driver for Lonoke School. On April 6, 2017, Coffman fell in a gravel parking lot and injured his left shoulder. Lonoke School initially accepted the claim as compensable and began paying benefits; however, after Coffman sought expenses for surgery, Lonoke School denied liability. The case proceeded to a hearing before an administrative law judge (ALJ).
At the hearing, Coffman testified that after he fell on April 6, he immediately reported the injury and that Lonoke School sent him to North Cabot Family Medicine. He was referred to Dr. Stewart, an orthopedic surgeon, and he had an MRI. The MRI showed a tear in his left shoulder; consequently, he had surgery, specifically a reverse shoulder arthroplasty. Coffman testified that he did not have any problems with his left shoulder before the accident. He noted that he had just passed a physical examination for the Department of Transportation on March 27, 2017. He admitted that he had injured his right shoulder in 2012 and that he had a procedure on October 30, 2012, for that injury. Coffman stated that he wanted to return to work as soon as his doctor released him.
The records from North Cabot Family Medicine on the day of the accident show that Coffman reported left-shoulder pain and left-knee pain and had abrasions on both hands. The physician's diagnosis included "sprain of left shoulder joint." Dr. Stewart's records from Coffman's examination on April 19, 2017, reflect that Coffman "is here with a new problem with the left shoulder. Two weeks ago he had a fall at work and injured his shoulder.... He says before this he did not have a shoulder problem." In Dr. Stewart's report following Coffman's MRI, he opined that the findings "do not correlate with an injury that occurred on April 6, 2017. These are very old, chronic problems, and to fix this a reverse shoulder arthroplasty is needed, just like the opposite side needed 5 years ago."
The ALJ denied Coffman benefits. Coffman appealed, and the Commission reversed, finding that Coffman sustained a compensable injury to his left shoulder. The Commission rejected Dr. Stewart's medical opinion. The Commission stated:
The Full Commission recognizes Dr. Stewart's opinion regarding these demonstrated post-injury abnormalities.... The Full Commission in the present matter rejects Dr. Stewart's opinion that the claimant's objective medical findings "do not correlate with the injury that occurred on April 6, 2017." To the contrary, none of the tears in the tendon of the claimant's left shoulder were shown to be present before the stipulated April 6, 2017 accidental injury.
The Commission further found that the injury was supported by objective findings, namely the abnormalities in the MRI. Lonoke School appealed the Commission's decision to this court.
On appeal, Lonoke School first argues that the Commission arbitrarily rejected Dr. Stewart's medical opinion. It points out that Coffman did not introduce any medical evidence to contest Dr. Stewart's opinion and asserts that the Commission substituted its opinion in lieu of Dr. Stewart's opinion.
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. Coleman v. Pro Transp., Inc. , 97 Ark. App. 338, 249 S.W.3d 149 (2007). The Commission, however, may not arbitrarily disregard medical evidence. Pyle v. Woodfield, Inc. , 2009 Ark. App. 251, 306 S.W.3d 455. In order for an administrative action to be invalid as arbitrary, the action must either lack any rational basis or hinge on a finding of fact based on an erroneous view of the law. Pine Bluff for Safe Disposal v. Ark. Pollution Control & Ecology Comm'n , 354 Ark. 563, 127 S.W.3d 509 (2003) ; Ark. Prof'l Bail Bondsman Licensing Bd. v. Oudin , 348 Ark. 48, 69 S.W.3d 855 (2002). An arbitrary act is thus an illegal or unreasoned act; an act is not arbitrary simply because the reviewing court would have acted differently. Woodyard v. Ark.Diversified Ins. Co. , 268 Ark. 94, 594 S.W.2d 13 (1980). In workers'-compensation cases, arbitrary disregard of evidence is demonstrated when the Commission affirmatively states that there is "no evidence" for a proposition when such evidence has, in fact, been presented in the proceeding. See Edens v. Superior Marble & Glass , 346 Ark. 487, 58 S.W.3d 369 (2001). Arbitrary disregard has been described as follows:
The Commission cannot disbelieve the testimony of a witness for an irrational or whimsical reason; for example, it cannot decide a case on the rationale that witnesses with names beginning in vowels are never credible, or that foreign-born doctors always offer more accurate medical opinions, or that back injuries are never work-related.
Pyle , 2009 Ark. App. 251, at 6, 306 S.W.3d at 459 (Pittman, J., concurring).
In this case, the Commission did not reject Dr. Stewart's medical opinion without a rational basis or based on an erroneous view of the law. The Commission specifically considered his opinion but noted that there was no evidence of Coffman's left-shoulder injury before the April accident. The dissent asserts that the Commission's rejection of Dr. Stewart's opinion is arbitrary because Dr. Stewart's opinion is the only medical opinion in the record regarding causation. However, medical-opinion testimony is not essential to establish the causal relationship between the injury and a work-related accident, and nonmedical evidence may suffice to establish the causal relationship between an injury and the work-related accident . See Kiswire Pine Bluff, Inc. v. Segars , 2018 Ark. App. 296, 549 S.W.3d 410 ; Flynn v. Sw. Catering, Co. , 2010 Ark. App. 766, 379 S.W.3d 670. Accordingly, we hold that the Commission did not arbitrarily disregard Dr. Stewart's medical opinion.
Lonoke School next argues that the Commission erred in finding that Coffman established that he sustained a compensable injury supported by objective findings. It points out that Dr. Stewart concluded that the MRI showed Coffman's left-shoulder abnormalities were degenerative and not a result of the accident.
In an appeal 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. Long v. Wal-Mart Stores, Inc. , 98 Ark. App. 70, 250 S.W.3d 263 (2007). The question on appeal is not whether we would have reached the same conclusion as the Commission had we been charged with the duty of finding the facts. Maupin v. Pulaski Cty. Sheriff's Office , 90 Ark. App. 1, 203 S.W.3d 668 (2005). There may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Id.
"The prohibition on arbitrary decision-making has sometimes been seen as an opportunity for the appellate court to weigh evidence not relied upon by the Commission against the evidence that the Commission chose to believe. This view is mistaken." Pyle , 2009 Ark. App. 251, at 6, 306 S.W.3d at 459 (Pittman, J., concurring). Under the substantial-evidence standard, this court may not even consider evidence that the Commission did not rely upon, much less weigh it against evidence that the Commission found credible, unless the appellant has demonstrated that the Commission ignored that evidence for a reason that was truly arbitrary. Id. (Pittman, J., concurring) (citing Woodall v. Hunnicutt Constr. , 340 Ark. 377, 12 S.W.3d 630 (2000) ; Maupin , 90 Ark. App. 1, 203 S.W.3d 668 ; K II Constr. Co. v. Crabtree , 78 Ark. App. 222, 79 S.W.3d 414 (2002) ; Hardin v. S. Compress Co. , 34 Ark. App. 208, 810 S.W.2d 501 (1991) ).
Here, because the Commission did not arbitrarily reject Dr. Stewart's medical opinion, this court cannot consider his opinion in determining whether substantial evidence supports the Commission's decision that Coffman sustained a compensable injury. Instead, this court must examine the evidence in the light most favorable to the Commission's decision. The Commission found Coffman to be a credible witness and that his testimony was corroborated by the medical records. Coffman's postaccident medical evidence showed a left-shoulder sprain, and the subsequent MRI showed a tear in his left shoulder. Accordingly, substantial evidence supports the Commission's decision that Coffman established a compensable injury supported by objective findings. While the dissent seeks to weigh Dr. Stewart's opinion against Coffman's testimony and his postaccident medical records, that is inconsistent with the substantial-evidence standard.
Affirmed.
Gladwin, Klappenbach, Whiteaker, Vaught, and Murphy, JJ., agree.
Virden, Hixson, and Brown, JJ., dissent. | [
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JOHN DAN KEMP, Chief Justice
Pending before this court is a pro se second petition filed by petitioner Lawrence Edward Martin to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The State has filed a response to Martin's petition, and Martin subsequently filed a pending motion seeking leave to file a response to the State's response. Also pending is Martin's motion for file-marked copies at public expense of his petition, exhibits attached to the petition, his motion for leave to respond, and "any and all responses from the respondent should the court denie [sic] the petition." Finally, Martin has filed a motion for appointment of counsel.
Martin was convicted of the capital murder of his mother that was committed in the course of an aggravated robbery. He was sentenced to life imprisonment. We affirmed the conviction and sentence. Martin v. State , 328 Ark. 420, 944 S.W.2d 512 (1997). Because the proposed claims raised by Martin in his second petition are based on allegations that are not cognizable in coram nobis proceedings, we deny his petition to reinvest jurisdiction in the trial court so that he may file a petition for error coram nobis relief, which renders his motion seeking leave to file a response and his motion for appointment of counsel moot. We deny his motion for copies at public expense of the documents filed in this pending appeal.
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. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. A writ of error coram nobis is an extraordinarily rare remedy. Id. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. ; Westerman v. State , 2015 Ark. 69, 456 S.W.3d 374. 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. Roberts , 2013 Ark. 56, 425 S.W.3d 771. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id.
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. Id. ; Howard v. State , 2012 Ark. 177, 403 S.W.3d 38.
In his first coram nobis petition, Martin raised three grounds for relief: that his arrest was a pretext for an illegal search; that the trial court failed to order a mental evaluation; and that new evidence showed that additional charges had been dismissed. See Martin v. State , 2012 Ark. 44 (per curiam). Martin's first petition was denied because it failed to state a claim that was extrinsic to the record or that was cognizable in coram nobis proceedings. Id. The same is true of this second petition.
In his second petition, Martin has raised multiple overlapping and conclusory grounds for relief that include allegations of a prejudicial jury-selection process; misleading and erroneous jury instructions; an unlawful arrest; prosecutorial misconduct; violation of his right to due process; ineffective assistance of counsel; and failure by this court to address adverse rulings on direct appeal in compliance with Arkansas Supreme Court Rule 4-3(h) (1995).
This court will grant permission to proceed with a petition for the writ only when it appears, looking to the reasonableness of the allegations in the proposed petition and the existence of the probability of the truth of those allegations, that the proposed attack on the judgment is meritorious. Jones v. State , 2017 Ark. 334, 531 S.W.3d 384. This court is not required to accept at face value the allegations in the petition. Id. The burden is on the petitioner in the application for coram nobis relief to make a full disclosure of specific facts relied upon and not to merely state conclusions as to the nature of such facts. Rayford v. State , 2018 Ark. 183, 546 S.W.3d 475. Furthermore, errors that occurred at trial that could have been addressed at trial are not within the purview of coram nobis proceedings. Martinez-Marmol v. State , 2018 Ark. 145, 544 S.W.3d 49. A coram nobis action does not provide the petitioner with a means to retry his or her case. Id.
Here, Martin raises conclusory allegations regarding errors that occurred during the course of his trial and on direct appeal. Martin's allegations regarding the jury-selection process, erroneous jury instructions, an illegal arrest, and violations of his right to due process are all matters that were known and should have been challenged either at the time of Martin's trial or on direct appeal. Id. Likewise, Martin's allegations of prosecutorial misconduct include assertions that Martin was prosecuted without probable cause and that the prosecutor provided misleading jury instructions that referenced charges that had been dismissed. These prosecutorial-misconduct allegations could have been raised at trial and are not extrinsic to the record. Martin does not make an allegation that the prosecutor withheld material evidence; therefore, Martin has not raised a cognizable claim based on prosecutorial misconduct. Id. (assertions of prosecutorial misconduct for the admission of "false evidence" could have been raised at trial and are not allegations of material evidence that was withheld by the prosecutor). With respect to Martin's allegations of his trial attorney's errors, this court has repeatedly held that ineffective-assistance-of-counsel claims are not grounds for the writ but are properly raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1995). Wooten v. State , 2018 Ark. 198, 547 S.W.3d 683.
Finally, Martin's claim that this court failed to properly perform a Rule 4-3(h) review on direct appeal is equally unavailing. This court's opinion on direct appeal establishes that such a review was conducted, and in any event, errors that occurred on direct appeal could have been addressed in a petition for rehearing before the mandate of this court was issued. Hall v. State , 2018 Ark. 377, 562 S.W.3d 829 ; see also Martin , 328 Ark. at 433, 944 S.W.2d at 519 (no reversible errors found after a review of adverse rulings). A coram nobis proceeding is not a means to challenge the review conducted by the appellate court on direct appeal. Hall , 2018 Ark. 377, 562 S.W.3d 829. Martin fails to demonstrate entitlement to error coram nobis relief because he failed to establish an error of fact extrinsic to the record that could not have been raised in the trial court or on direct appeal, and his grounds for relief are simply not cognizable in such proceedings.
Finally, Martin has filed a motion seeking copies at public expense of documents filed in this court in connection with his pending coram nobis proceedings. In his motion, Martin contends that he is entitled to copies of public records and is in need of the copies to prepare a brief in the event that he will be required to petition this court for a rehearing if his petition is denied. Martin is mistaken.
The Arkansas Freedom of Information Act, codified at Arkansas Code Annotated sections 25-19-101 to -111 (Supp. 2017), does not require a court to provide photocopies at public expense. Johnson v. State , 2018 Ark. 226, 549 S.W.3d 360. Furthermore, indigency alone does not entitle a petitioner to photocopies at public expense. Id. To be entitled to copies at public expense, a petitioner must demonstrate a compelling need for the copies as documentary evidence to support an allegation contained in a timely petition for postconviction relief. Id. Martin has failed to demonstrate a compelling need for the copies that he has requested in his motion.
Petition denied; motion for leave to file a response and motion for appointment of counsel moot; motion for copies at public expense denied.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
The majority's denial of Mr. Martin's request for copies of certain documents is not grounded in either fact or in law. The majority misstates Mr. Martin's request and seeks to justify its decision pursuant to the Arkansas Freedom of Information Act, which is completely inapplicable to the case before us.
In his motion filed on January 30, 2019, Mr. Martin requested "access to copies of the records, exhibits, respondent records; and admissible public records and reports, docket entries of records, [and this] court's own docket sheets." The list of documents he requested does not match the list of documents that the majority is denying him. The majority recites that it is denying Mr. Martin copies of "his petition, exhibits attached to the petition, his motion for leave to respond, and 'any and all responses from the respondent should the court denie [sic] the petition.' " The discrepancy between these two lists is obvious and unreconcilable.
The legal basis for the majority's decision is also erroneous. First and foremost, Mr. Martin did not file a request for documents pursuant to the Arkansas Freedom of Information Act. As noted, Mr. Martin requested "access to copies of the records." Because they are records in his criminal case, Mr. Martin is unquestionably entitled to these records. Ark. R. App. P.-Crim. 19. Accordingly, the majority's reliance on the Arkansas Freedom of Information Act is puzzling. Rule 19 directly addresses Mr. Martin's request; the Arkansas Freedom of Information Act does not.
I respectfully dissent. | [
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BRANDON J. HARRISON, Judge
This appeal concerns the transfer of more than $ 1.2 million in stock and the securities law of Arkansas. The main procedural issue is whether the circuit court correctly granted summary judgment in favor of First National Bank of Eastern Arkansas on a complaint that William Ash filed against the bank. The complaint raised breach-of-fiduciary-duty, conversion, and replevin claims against First National Bank. Ash challenges the circuit court's decision that he had legally transferred his shares of stock in Bancshares of Eastern Arkansas, Inc. to First National Bank of Eastern Arkansas, as the trustee for the irrevocable testamentary trust Ash's mother had created. Ash says he intended to put the stock into a separate and new revocable trust that he thought he had created with an attorney's help. Ash also contends that, even if there was a transfer of stock to the irrevocable testamentary trust, then the transfer still represents an overreach by the bank and opens it up to some potential liability such that summary judgment was improper. We agree with Ash in part, and disagree in part.
I. The Previous Appeal (Ash I)
This is neither the parties' nor this court's first rodeo. In 2017, we vacated the St. Francis County Circuit Court's order granting summary judgment to First National Bank and held that the "court erred as a matter of law when it determined that the stock power, standing alone, effectively transferred the stock and foreclosed all of Ash's claims under Arkansas law." Ash v. First Nat'l Bank of E. Ark. , 2017 Ark. App. 57, at 4, 513 S.W.3d 268, 271 ( Ash I ). We stated that the "better course" was for the parties to argue, and the circuit court to decide, how a security is effectively transferred under Arkansas law and whether an adverse claim is foreclosed under this state's securities law. Id. ; see also Ark. Code Ann. §§ 4-8-101 to -603 (Repl. 2001 & Supp. 2017) (adopting Uniform Commercial Code).
After First National Bank's unsuccessful attempt to seek review of our first opinion in the Arkansas Supreme Court, the mandate issued and the summary-judgment order was officially voided. See Johnson v. Windstream Commc'ns, Inc. , 2014 Ark. App. 99, 2014 WL 580151. On remand in November 2017, the circuit court set the case for a bench trial in 2018. In December 2017, the bank filed a "post-appeal motion for summary judgment" that also incorporated its previous summary-judgment motion. Ash responded. But on the second go-around Ash did not also ask the court for summary judgment; he only asked the court to deny the bank's motion and to award all the relief requested in the complaint. Ash attached seven exhibits to his response:
1. Stock certificate (included in the first appeal record)
2. Corporation's shareholder agreement
3. Bank's supplemental objections and responses to Ash's third set of interrogatories and requests for production of documents
4. Deposition of William Campbell Ash dated 18 May 2015 (included in the first appeal record)
5. Deposition of William Campbell Ash dated 15 September 2015 (included in the first appeal record)
6. Deposition of Brice Fletcher dated 18 May 2015 (included in the first appeal record)
7. Deposition of Roy Jackson dated 18 May 2015 (included in the first appeal record).
The circuit court entered summary judgment for First National Bank based on some UCC provisions. It reasoned that this court (the court of appeals) "did not return this case to reopen the factual record and receive additional proof and testimony." The circuit court's order dismissed all of Ash's claims with prejudice. Ash has returned and, once again, asks that we reverse the summary judgment. We conclude that material issues of fact preclude the granting of summary judgment on the claim of breach of fiduciary duty. Because we partly agree with Ash, the case is affirmed in part; reversed and remanded in part. Duran v. Sw. Ark. Elec. Coop. Corp. , 2018 Ark. 33, at 5, 537 S.W.3d 722, 726 (standard of review when reviewing a summary judgment).
II. The Circuit Court Case
When Daisy Campbell Wilson died, her last will and testament created the William Campbell Ash Trust under an instrument dated 16 June 2011 (the trust). The trustee of this irrevocable testamentary trust is First National Bank of Eastern Arkansas, the sole defendant (turned appellee) in this case. William Ash is the testamentary trust's beneficiary. When created in 2011, the trust was initially funded with 4,164 shares of capital stock in Bancshares of Eastern Arkansas, Inc. (sometimes referred to as the corporation). As best we can tell, the corporation appears to be a parent holding company owning enough (perhaps all) of the voting stock to control First National Bank of Eastern Arkansas's policies and management.
On 13 July 2012, William Ash owned 3,881 shares of capital stock in Bancshares of Eastern Arkansas, Inc. The corporation had memorialized this ownership interest by issuing stock certificate no. 1221. The certificate is titled in William Ash's individual name, not in the name of any trust.
In 2012, Ash had fallen behind on child-support payments. Ash allegedly received advice from his father to set up a new revocable trust to protect his Bancshares stock from Ash's ex-wife. During a deposition related to this case, Ash said that he had called attorney Phil Hicky. According to Ash, Hicky was to create a new trust in which to place Ash's 3,881 shares of Bancshares stock. Ash said that Hicky set a meeting at First National Bank. Hicky presented documents to Ash for his signature. Ash saw "stock was going into a trust," and he thought he signed a document at First National Bank that created a new revocable trust. Instead, Ash signed a stock power that transferred his individual stock into the irrevocable trust created under the estate of his mother, Daisy Campbell Wilson.
Ash also said during his deposition that he found out from Brice Fletcher-the chief executive officer of First National Bank and the board chairman of Bancshares of Eastern Arkansas-that First National Bank believed the shares to be in the irrevocable testamentary trust, not a separately created revocable trust that Ash testified he thought Hicky had created. This was revealed to Ash when he tried to secure money for a business investment, a move First National Bank refused. More specifically, the bank (as trustee) would not liquidate the stock shares or lend money to Ash. Ash also discussed "the possibility of getting to [his] bank stock" with Doug Glover, who worked in First National Bank's trust department. Ash asked Hicky to help. According to Ash, Hicky told him "that stock shouldn't be where it is ... [i]f somebody comes snooping around, somebody is going to be in trouble. ... But I can't help you anymore." Hicky's billing records appear to reflect that he had done some work for Ash individually, including work to either orchestrate or facilitate the stock transfer. (Curiously, Hicky, acting as an attorney for First National Bank, signed the answer that the bank filed against Ash's complaint, the complaint whose entire subject matter is about the same stock transfer that Hicky appears to have helped orchestrate or facilitate.) In any event, no evidence of a written revocable trust agreement was presented to the circuit court. During his deposition, Ash confirmed that he received a schedule K-1 (a tax document) for 2012, 2013, and 2014 regarding income from dividends that flowed to Ash from the irrevocable testamentary trust that had been created under his mother's will.
Brice Fletcher said during his deposition that he knew Ash wanted to transfer his stock "into a trust that he had set up or was going to set up." Fletcher said that because Ash could not find his original stock certificates, the bank prepared an indemnification agreement-which may have been drafted by Hicky according to a bank employee's testimony-to account for the missing certificates; one new stock certificate with all the shares (3,881) was then issued "so then it could properly be transferred into his trust." Fletcher stated that he knew from First National Bank trust officer Glover, and from Denny Jarratt, a bank employee, that "a trust was being formed, that Will's intent was to put shares of stock into [it]." Fletcher was unsure if he knew, at that time, whether the trust was "pursuant to the settlement of the estate or not." According to Fletcher, Hicky had prepared the indemnification agreement; and he "assumed" Hicky had also prepared the stock-power document, which Fletcher never discussed with Ash. (A stock power is a power of attorney that permits a person other than the owner to transfer ownership of a security to a third party. Black's Law Dictionary 1645 (10th ed. 2014) ).
CEO Fletcher testified that, based on his conversations with bank employee Jarratt, and with Rhea Ash, Will's sister, Fletcher concluded that Ash had intended to transfer his individually held 3,881 shares to the bank as trustee of the irrevocable testamentary trust created by Ash's mother's estate. The core reasoning was that "Will's financial responsibility had not shown to where he could manage the assets[.]" Transferring the shares into an irrevocable trust would not have changed the income stream that Ash would receive from the shares. And because Ash would not have had the option to sell the stock, he would have had "income forever as opposed to short-term." In other words, according to the bank, it as trustee could manage Ash's money better than Ash himself could. Fletcher confirmed that Ash did not receive money or any other form of consideration for the transfer.
Roy Jackson is a senior vice president at First National Bank and oversees its trust department. He confirmed in his deposition that the trust department was the executor of Ash's mother's estate and that the trust department also acts as trustee of the irrevocable testamentary trust. Jackson also testified that on 1 August 2012, the trust department received a stock certificate made out to the William Campbell Ash Trust. Jackson understood from bank employee Jarratt that Ash was putting his personal stock into the testamentary trust. Jackson also understood from attorney Hicky that the transfer was being done to protect Ash's assets from creditors. He did not recall whether the stock power was attached to the stock certificate. Jackson then explained that the trust department filed the stock certificate in a secured drawer-an event Jackson considered to have transferred the Bancshares stock to First National Bank (as trustee). According to Jackson, Ash received as consideration the "future income off the stock." But Jackson confirmed that Ash did not receive anything in return for conveying the stock shares to the bank (as trustee) and that he was not aware of anything that would make him (Jackson) think it was not a gift. Jackson also said that he did not refer to the shareholder agreement referenced on the stock certificate. According to Jackson, the 3,881 shares were worth $ 1,241,920 when transferred on the first day in August 2012. To repeat, Jackson said that he thought First National Bank had agreed to accept Ash's individually owned Bancshares stock to help protect Ash's assets from creditors. Fletcher had, however, opined during his deposition that transferring the Bancshares stock into an irrevocable trust would not shield it from creditors because the trust's spendthrift provisions would not apply to the stock.
III. The Conversion and Replevin Claims
A. Indorsement
Having returned to this court, Ash first argues that the indorsement on stock certificate no. 1221 did not transfer the shares to First National Bank. Under Arkansas securities law, an indorsement "means a signature that alone or accompanied by other words is made on a security certificate in registered form or on a separate document for the purpose of assigning, transferring, or redeeming the security or granting a power to assign, transfer, or redeem it." Ark. Code Ann. § 4-8-102(11) (Supp. 2017) (emphasis added). Ash argues that the indorsement on certificate no. 1221 did not transfer the shares to First National Bank because the indorsement Ash signed on the certificate is specifically to "Will Ash (William Campbell Ash Trust)." An indorsement to a trust is legally insufficient to transfer property to a trustee, because a trustee is the legal owner of the property. Trott v. Jones , 85 Ark. App. 526, 157 S.W.3d 592 (2004). Additionally, Ash and Fletcher testified during their depositions that Ash had intended to transfer the shares into a new revocable trust, not the 2011 irrevocable testamentary trust that Ash's mother had created in her will. This misunderstanding, Ash argues, prevented the circuit court from finding an effective indorsement on the stock certificate as a matter of law.
Though Ash challenges the stock-certificate indorsement, he does not contest the indorsement on the stock power. (To be clear, there are two indorsements at issue: a stock-certificate indorsement and a stock-power indorsement.) In the bank's view, the stock power is a separate document, which is signed; and it was used to transfer the securities (the Bancshares stock). The circuit court agreed with First National Bank that the stock power was an effective indorsement, and the indorsement transferred the shares to First National Bank as trustee. We also agree that the stock power in this case was a proper indorsement.
The stock power states:
William Campbell Ash for value received has bargained, assigned, and transferred and by these presents does set over, assign, and transfer unto First National Bank of Eastern Arkansas, Trustee of the William Campbell Ash Trust, a Irrevocable Trust under Trust document dated June 16, 2011, and established under the Last Will and Testament of Daisy Campbell Wilson[.]
This language is not reasonably susceptible to more than one meaning. Ash does not dispute that he signed the document, nor does he claim a fraud or misrepresentation occurred. In Arkansas, the general rule is that if a person signs a document, he or she is presumed to know its content. Banks v. Evans , 347 Ark. 383, 64 S.W.3d 746 (2002). We have no reason to deviate from the general rule. Moreover, when the signed stock certificate was left in First National Bank's possession the transfer as between Ash and the bank was complete. Ark. Code Ann. § 4-8-304(d) (Repl. 2001); Ark. Code Ann. § 4-8-301 (Repl. 2001) (delivery can mean possession of the security certificate by the transferee or someone else with authority).
Simply summarized, Ash's indorsement and delivery of the stock certificate and stock power transferred all his 3,881 Bancshares shares to First National Bank in its capacity as trustee of the irrevocable testamentary trust that Ash's mother had created. Because Ash has failed to show that he owned or was entitled to possess the personal property (the stock) after he signed and delivered the stock certificate and stock power to First National Bank, the circuit court correctly dismissed with prejudice Ash's conversion claim. See AMI Civ. 425 (2018) (plaintiff alleging conversion of personal property must prove that the plaintiff owned or was entitled to possess the personal property). Ash's action for replevin fails as a matter of law, too, because replevin is available only to one with the right to recover the personal property in the first place. Pettit v. Kilby , 232 Ark. 993, 342 S.W.2d 93 (1961). And that one is not Ash. First National Bank (in its capacity as a trustee) holds legal title to the shares. Ash holds a beneficial interest subject to the testamentary trust's terms and-more generally but no less important-Arkansas's law of trusts. See Lael v. Crook , 192 Ark. 1115, 97 S.W.2d 436 (1936) (trustee holds legal title; beneficiaries hold equitable interest). Because Ash no longer holds legal title to the stock shares, he cannot recover on either a replevin or a conversion claim. Consequently, we affirm the circuit court's dismissal of these claims with prejudice.
B. Transfer Restrictions
The second alleged error is that the transfer violated the stock-transfer restrictions that appear on the face of certificate no. 1221 and the restrictions contained in the corporate bylaws. Here Ash wants to void the transfer by invoking the law of corporations and arguing that Bancshares of Eastern Arkansas, Inc.'s restrictions void the transfer between him and First National Bank. We are unmoved, though the point is earnestly made.
Certificate no. 1221 states that the shares are "transferable only on the books of the corporation [Bancshares of Eastern Arkansas] by the holder hereof in person or by attorney upon surrender of this certificate properly endorsed." The corporate bylaws state that "Certificates of stock shall bear the signatures of any two of the executive officers. ... Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the Company properly endorsed." Section 4-8-204(1) states that a "restriction on transfer of a security imposed by the issuer [Bancshares of Eastern Arkansas, Inc.], even if otherwise lawful, is ineffective against a person without knowledge of the restriction unless: the security is certificated and the restriction is noted conspicuously on the security certificate." Ark. Code Ann. § 4-8-204(1) (Repl. 2001). Section 4-26-610(a)(1) (Repl. 2016) allows for the enforcement of restrictions imposed by private shareholder agreements if they "do not unreasonably restrain alienation." In fact, section 4-26-610(b) states that even reasonable restrictions on alienation are invalid unless the authority for them is set out in the articles of incorporation or the bylaws. Ark. Code Ann. § 4-26-610(b).
The problem here for Ash, as we see it, is that the stock power was a valid indorsement under Arkansas securities law. It unambiguously stated that he intended to transfer the stock shares to First National Bank (in its capacity as trustee). The law of corporations does not help Ash here because he has not shown that an unreasonable restraint upon alienation existed or why the stock power failed to comply with the specific corporate-bylaw provisions at issue. More fundamentally, the issuer (Bancshares of Eastern Arkansas, Inc.) is not trying to impose a restriction on either Ash or First National. Bancshares (the issuer) is not even a party to this case.
The circuit court correctly rejected Ash's argument that the stock transfer to First National Bank was void because some of the corporate-transfer restrictions were not properly applied. See Loeb v. German Nat'l Bank , 88 Ark. 108, 109, 113 S.W. 1017, 1019 (1908) (transfer valid as between purported transferor and transferee even if transfer did not comply with corporate bylaws because "conformity to [the by-laws] is primarily for the benefit of the corporation").
IV. Breach-of-Fiduciary-Duty Claim
The only remaining claim in Ash's complaint is that the bank breached some of the fiduciary duties that Arkansas's trust code and the common law place on trustees. In this vein, Ash presses that even if he did transfer his individual Bancshares stock shares to First National Bank, the transfer was without consideration, which in turn means that the bank has the burden to prove that the transfer was in Ash's best interest. His principal appellant's brief concludes this way: "As Will's trustee and fiduciary, the Bank bears the burden of proving that the gift benefited Will Ash, and it has not ... done so." The bank responds that this argument is silenced by the law-of-the-case doctrine, is outside the scope of our mandate in Ash I, and is otherwise mistaken.
We begin by responding to First National Bank's rebuttal to Ash. As its title suggests, the law-of-the-case doctrine holds that the decision of an appellate court establishes the law a circuit court must apply on remand; the doctrine also cabins the appellate court itself if there is a subsequent appeal in the same case. Green v. George's Farms, Inc. , 2011 Ark. 70, 378 S.W.3d 715. The doctrine is not inflexible and does not absolutely preclude the correction of an error. It does, however, prevent an issue raised in an earlier appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. Harmon v. State , 2019 Ark. 34, 2019 WL 474544. The doctrine also prevents an appellate court from considering an argument that could have been raised during the first appeal but did not appear until the subsequent one. Green, supra.
Again, we did not resolve any factual issues in Ash I . And the circuit court's 2016 judgment was vacated by our 2017 mandate. All this means that the case was alive in the circuit court, the record was reopened, and the parties were free to pursue the case as they wished subject to the superintending control that the circuit court inherently maintains. We only required the parties to account for Arkansas securities law because the then purported transfer of a security was clearly at issue. Ash I , supra. We did not decide in the first appeal whether the alleged transfer was a purchase, gift, or some other type of conveyance. Nowhere were any of these issues addressed in Ash I . We did not dispose of any claims in the complaint. Consequently, Ash is not prevented from arguing, in the alternative, that if he transferred his shares to First National Bank (as trustee of the irrevocable testamentary trust), then the bank has the burden to prove that the transfer was in Ash's best interest. Ash made this argument to the circuit court on remand from Ash I , received a ruling from the court, and has raised the argument again here. So we will address it.
No party in this case has disputed that a fiduciary relationship exists between First National Bank (as trustee) and Ash (as trust beneficiary). Among other duties, a trustee has the duty of loyalty to administer the trust solely in the beneficiaries' interests. Ark. Code Ann. § 28-73-802(a) (Supp. 2017). In some circumstances, a transaction between a trustee and a beneficiary can be voided. See, e.g. , Ark. Code Ann. § 28-73-802. Ash essentially contends that the stock transfer was an unfair conveyance in the circumstances and was not in his best interest.
Three factors that some courts consider when deciding whether the trustee has shown that the transaction was fair to the beneficiary are (1) full disclosure, (2) the payment of adequate consideration, and (3) independent advice. George G. Bogert et al., The Law of Trusts & Trustees § 544 (rev. 2d ed. Supp. 2012); see also Restatement (Third) of Trusts § 78 (2007) (explaining that the trustee "must be able to show that the dealings were fair and that all relevant and material information that was known, or that should have been known ... by the trustee was communicated to the beneficiary or beneficiaries involved"). Legal and equitable remedies are available if a fiduciary breaches a duty owed to the beneficiary and harm results. Berry v. Saline Memorial Hosp. , 322 Ark. 182, 907 S.W.2d 736 (1995) ; see also Hardy v. Hardy , 217 Ark. 305, 230 S.W.2d 11 (1950).
Having come to the end, and keeping the standard of review in mind, we hold that there are genuine issues of material fact on Ash's claim of whether the bank breached a fiduciary duty owed to him. Ash contended before the circuit court that his transfer was by means of a gift. Recall that Ash said during his deposition that he believed he was placing his individually held Bancshares stock into a newly created revocable trust to protect his shares from creditors, including his ex-wife. He asked for help from an attorney who may have represented both Ash and the bank at times relevant to this case. We emphasize may have , because it is not possible to conclude anything without making credibility determinations and weighing the proof in a manner that a summary-judgment review forbids. Hicky may have drafted the stock-power document and an indemnification agreement. We do not know whether Ash was fully informed about the implications of the stock-transfer transaction, including the type of trust that was receiving the intended transfer. Ash thought that he was retaining control over his transfer because he requested that the trustee either liquidate his stock or extend a loan against it. Even First National Bank's own personnel had different opinions and understandings on whether Ash's 3,881 shares were destined for the existing irrevocable testamentary trust or a new, revocable one. But once the shares went into the irrevocable trust, Ash lost the power to do with the securities as he pleased and was not able to liquidate them or vote as a shareholder. He further was not able to diversify his financial portfolio given what happened. Ash argues that because his transfer was by means of a gift, this transaction is voidable.
First National Bank argued to the circuit court that Ash transferred his stock into the irrevocable trust. It argued that Ash received a benefit from, consented to, or perhaps ratified the transaction that he now complains about. Some people believed (rightly or wrongly) that he would be better protected from creditors, and perhaps himself, too. There was no evidence that a revocable-trust document was ever prepared and presented to Ash. The attorney's-fee bill that Hicky sent to Ash does not definitively show a charge related to the creation of a new, revocable trust. And recall that Ash received K-1s based on dividend income from the Bancshares securities that were placed into the irrevocable trust, without objection, for more than one year. Ash also signed the stock certificate and the stock power without question. Yet at the same time, personnel from the bank admitted that Ash did not receive money or any other form of consideration for the transfer. The point is that important facts (and reasonable inferences) support both Ash's and First National Bank's view on the claim.
We therefore hold that a summary judgment against the fiduciary-duty claim is unsustainable on this record.
V. Conclusion
The circuit court's dismissal of Ash's conversion and replevin claims with prejudice is affirmed. The court's dismissal of Ash's breach-of-fiduciary-duty claim, however, is reversed and the claim reinstated. As then judge Benjamin Cardozo has famously written, the law holds a fiduciary to "the punctilio of an honor the most sensitive." Meinhard v. Salmon , 249 N.Y. 458, 164 N.E. 545, 546 (1928). Whether expressed as "the punctilio of an honor the most sensitive" or good faith and fair play or some other iteration of the same legal notion, we hold that genuine issues of material fact exist on Ash's alleged breach-of-fiduciary-duty claim.
Affirmed in part; reversed and remanded in part.
Whiteaker and Murphy, JJ., agree. | [
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ROBIN F. WYNNE, Associate Justice
Rodolfo Martinez appeals from a sentencing order of the Washington County Circuit Court reflecting convictions for capital murder, unlawful discharge of a firearm from a vehicle, and terroristic act, as well as a sentence enhancement for employing a firearm in the commission of a felony. He makes the following arguments on appeal: (1) the trial court erred in allowing hearsay testimony and failing to give a limiting instruction to the jury; (2) the trial court erred by denying his motions for directed verdict on the charges of capital murder and terroristic act, Class B felony; (3) the trial court imposed an illegal sentence because he was not found guilty on the firearm enhancement; and (4) comments by the trial court to the jury during the instructions on the terroristic-act charges prejudiced him. We affirm.
Appellant was charged and tried in connection with the death of Jimmy Rodriguez. The State produced evidence at trial that Rodriguez had been standing in front of his aunt and uncle's home, conversing with a group of people when a blue car drove past. The car returned and pulled up in front of the house. The driver, Giovanni Vasquez, asked a question of the group; then a passenger, identified as appellant, fired several shots at the group. One of the bullets struck Rodriguez, killing him. Bullet holes were discovered in the residence as well as the residence next door. Appellant moved for directed verdicts, and the motions were denied. Appellant was convicted and sentenced as follows: life imprisonment on the count of capital murder; 480 months' imprisonment on the count of unlawful discharge of a firearm, Class Y felony; 60 months' imprisonment on the charge of unlawful discharge of a firearm, Class B felony; 480 months' imprisonment on the count of terroristic act, Class Y felony; 60 months' imprisonment on the two counts of terroristic act, Class B felony; and 84 months' imprisonment for the firearm enhancement. This appeal followed.
Directed-Verdict Motions
In his second and third points on appeal, appellant argues that the trial court erred by denying his motions for directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Pratt v. State , 359 Ark. 16, 194 S.W.3d 183 (2004). Double jeopardy considerations require us to consider a challenge to the sufficiency of the evidence before other points are raised. Id. This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Navarro v. State , 371 Ark. 179, 264 S.W.3d 530 (2007). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Appellant contends that the trial court erred by denying his motion for directed verdict on the charge of capital murder. A person commits capital murder if, with the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person. Ark. Code Ann. § 5-10-101(a)(4) (Supp. 2017). As recounted above, the State produced the testimony of Eric Rodriguez, one of the men who was standing in front of the house, that appellant fired a gun at the group of men, killing Jimmy Rodriguez. The State also produced testimony from Viviana Romero that appellant told her he had shot Rodriguez. She further testified that appellant had a gun when he came to her house shortly after the shooting, that appellant told her he urinated on his hands in her bathroom to "destroy gun evidence," and that she and her brother first hid the gun appellant had in their attic, then buried it outside.
Appellant contends that the evidence is insufficient because Romero was not a credible witness, a man named Jose Delatorre confessed to the shooting and testified during the trial that he shot Jimmy Rodriguez, and the State's firearms expert was unable to link the bullet recovered from Jimmy Rodriguez's body to the alleged murder weapon. It is the sole province of the jury to determine a witness's credibility, as well as the weight and value to be given to the testimony. See Simpson v. State , 355 Ark. 294, 138 S.W.3d 671 (2003). Thus, the jury was free to believe the testimony of Viviana Romero and Eric Rodriguez and disbelieve the confession by Jose Delatorre. Further, there is nothing in our capital-murder statute that requires the State to prove anything regarding the weapon alleged to have been used. Viewing the evidence in the light most favorable to the State, the evidence is sufficient to support the conviction for capital murder.
Appellant also contends that the trial court erred by denying his motion for directed verdict as to the two counts of terroristic act, Class B felony, because Romero contradicted herself and had motive to lie, police were unable to link the bullets recovered from the residences to the alleged murder weapon, and there was no proof that the bullets recovered were fired during the incident. A person commits terroristic act, Class B felony, if the person shoots at an occupiable structure with the purpose to cause injury to a person or damage to property. Ark. Code Ann. § 5-13-302(a)(2) (Repl. 2013).
The State produced testimony that appellant fired several rounds toward a group of people standing in front of a residence. The State is correct in its assertion that it was only required to prove that appellant shot at an occupiable structure with the intent to cause harm to a person or property, and that it was not required to prove that actual injury or damage occurred. The evidence adduced at trial was sufficient for the jury to conclude that appellant shot at an occupiable structure (the Rodriguez home) in an attempt to cause injury to the people standing in front of it. Viewing the evidence in the light most favorable to the State, the evidence is sufficient to support the conviction on two counts of terroristic act, Class B felony. We hold that the trial court did not err by denying appellant's motions for directed verdict on the charges of capital murder and terroristic act, Class B felony.
Testimony of Detective Hendrix
At trial, Detective Michael Hendrix testified after Eric Rodriguez. Appellant objected when Det. Hendrix was asked about information Rodriguez gave him during an interview following the shooting, arguing that Det. Hendrix's responses would be inadmissible hearsay. The State responded that the statements were not hearsay because they were not being offered to prove the truth of the matter asserted, but rather to explain Det. Hendrix's course of action. Appellant also argued that the testimony of Det. Hendrix would prejudice him by bolstering Eric Rodriguez's earlier testimony. In response to the objection, the trial court offered to give a limiting instruction concerning the purpose of Det. Hendrix's testimony. Appellant agreed to the trial court's offer and Det. Hendrix was permitted to testify regarding Eric Rodriguez's responses to his questioning. The trial court never gave the limiting instruction.
On appeal, appellant argues that the trial court erred by permitting the hearsay testimony of Det. Hendrix and failing to give the limiting instruction. The State contends that any error in admitting Det. Hendrix's testimony was rendered harmless by appellant's failure to object to substantially similar testimony of a later witness. Det. Hendrix testified that Eric Rodriguez told him that a blue car driven by Giovanni Vasquez stopped in front of the house, then "words were exchanged, and shots were fired." Rodriguez also said that he recognized the shooter but did not know his name. Later, Benaiah Townsend with the Springdale Police Department testified without objection that Eric Rodriguez stated during an interview that the car was a blue Ford Focus driven by Giovanni Vasquez and that Rodriguez had seen the shooter before but did not know his name. This court will not reverse an evidentiary ruling absent a showing of prejudice. Sauerwin v. State , 363 Ark. 324, 214 S.W.3d 266 (2005). Evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be claimed to be prejudicial. Gonzales v. State , 306 Ark. 1, 811 S.W.2d 760 (1991). Appellant cannot demonstrate prejudice from the trial court's ruling, and we affirm on this point.
Firearm Enhancement
Appellant's next argument is that the trial court illegally enhanced the sentence on his conviction for capital murder because the jury did not find him guilty beyond a reasonable doubt of using a firearm in the commission of a felony. The State contends that the argument is not preserved because appellant failed to object to the imposition of the enhanced sentence before the trial court. However, appellant contends on appeal that the trial court imposed an illegal sentence, and an appellant may raise the issue of an illegal sentence without having objected to it at trial. Bilderback v. State , 319 Ark. 643, 893 S.W.2d 780 (1995).
Arkansas Code Annotated section 16-90-120(a) (Repl. 2016) provides that any person who uses a firearm in the commission of a felony may be subjected to an additional period of confinement not to exceed fifteen years. The felony information alleged that appellant used a firearm in the commission of the offense of capital murder. The jury was given an instruction on section 16-90-120(a). Verdict form 1(D), which required the jury to make a finding as to whether appellant utilized a firearm in the commission of a felony, was given to the jury and the jury was instructed to complete it. Verdict form 1(D) was not completed by the jury, nor did the jury render a specific verdict on the enhancement in open court. At sentencing, the jury enhanced appellant's sentence for capital murder by seven years, pursuant to section 16-90-120.
Appellant contends that the jury's failure to make a finding renders the seven-year enhancement illegal. The State responds that a specific finding by the jury regarding the firearm enhancement is unnecessary because the jury found appellant guilty of unlawful discharge of a firearm, which necessarily includes a determination that he utilized a firearm. In support of his argument, appellant cites Johnson v. State , 249 Ark. 208, 458 S.W.2d 409 (1970). In that case, this court held that a trial court was without authority to impose a firearm enhancement because the information had not alleged a violation of the enhancement statute and there had been no finding by the jury that the defendant had utilized a firearm. However, in Johnson , the defendant's sole conviction was for burglary, and this court pointed out in its opinion that the manner of the force or mode of intimidation is not material to a finding of guilt for robbery.
Here, in contrast, the information alleged that appellant used a firearm in the commission of a felony, and the jury found appellant guilty beyond a reasonable doubt of unlawful discharge of a firearm, Class Y felony. A person commits unlawful discharge of a firearm, Class Y felony, when he or she knowingly discharges a firearm from a vehicle and by the discharge of the firearm causes death or serious physical injury to another person. Ark. Code Ann. § 5-74-107(a)(1) (Supp. 2017). By convicting appellant on this charge, the jury found that he shot a firearm from a vehicle and killed Jimmy Rodriguez. The death of Jimmy Rodriguez resulted in appellant being charged with and convicted of capital murder. Under the facts presented, the convictions for capital murder and unlawful discharge of a firearm, Class Y felony, required the jury to find beyond a reasonable doubt that appellant used a firearm in the commission of the capital murder. As the enhancement is not a substantive offense, but rather a sentence enhancement, Williams v. State , 364 Ark. 203, 217 S.W.3d 817 (2005), the findings of guilt made by the jury were sufficient to trigger the application of section 16-90-120. Accordingly, the enhancement of appellant's sentence for capital murder was not illegal. We affirm on this point.
Comments During Jury Instructions
Finally, appellant contends that he was prejudiced by certain comments made to the jury by the trial court during the guilt-phase instructions. Appellant failed to object to the comment made by the trial court below. Therefore, we decline to consider appellant's claim on appeal. See Remeta v. State , 300 Ark. 92, 777 S.W.2d 833 (1989) (declining to consider a claim that the trial court had improperly commented on the evidence because the issue was not raised below).
Rule 4-3(i) Review
Pursuant to Arkansas Supreme Court Rule 4-3(i) (2018), the record was reviewed for prejudicial error and none was found.
Affirmed.
Hart, J., concurs in part and dissents in part.
Josephine Linker Hart, Justice, concurring in part and dissenting in part.
I agree that the evidence was sufficient to convict Martinez of capital murder. I write separately to address Martinez's sentence of 480 months for the single count of terroristic act, Class Y felony. This sentence violates double jeopardy and should be dismissed.
Double jeopardy, which prohibits multiple punishments for the same offense, has long been a fundamental principle in American criminal law. "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Brown v. Ohio , 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), quoting Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). With regard to overlapping punishments, Ark. Code Ann. § 5-1-110 provides in relevant part as follows:
(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. However, the defendant may not be convicted of more than one (1) offense if:
...
(3) Inconsistent findings of fact are required to establish the commission of the offenses(.)
Ark. Code Ann. § 5-1-110(a)(3) (emphasis added). Furthermore, it is well settled that an "illegal" sentence may be corrected at any time, even on direct appeal. Donaldson v. State , 370 Ark. 3, 257 S.W.3d 74 (2007). "Specifically, this court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction[.]" Id. See also Ark. Sup. Ct. R. 4-3(i) ("When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant[.]").
Appellant was convicted of one count of capital murder, a Class Y felony. A person commits capital murder if, "with the premeditated and deliberated purpose of causing the death of another person , the person causes the death of any person." Ark. Code Ann. § 5-10-101(a)(4) (Supp. 2017) (emphasis added). Appellant was also convicted of three counts of terroristic act, one of the Class Y felony variety, and two of the Class B felony variety. The terroristic act statute provides as follows:
(a) A person commits a terroristic act if, while not in the commission of a lawful act, the person:
(1) Shoots at or in any manner projects an object at a conveyance which is being operated or which is occupied by another person with the purpose to cause injury to another person or damage to property; or
(2) Shoots at an occupiable structure with the purpose to cause injury to a person or damage to property.
(b)
(1) Upon conviction, any person who commits a terroristic act is guilty of a Class B felony.
(2) Upon conviction, any person who commits a terroristic act is guilty of a Class Y felony if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person.
Ark. Code Ann. § 5-13-310(a) - (b) (emphasis added). Based upon the evidence presented at trial and the proof required for each respective conviction, the single Class Y terroristic act conviction necessarily corresponds to the bullet that struck and killed the victim, who was standing with a group of individuals standing at the street curb. The two Class B terroristic act convictions correspond to the bullet fragments found at 609 Savage and 611 Savage, residential homes situated somewhere on the other side of the where the group was standing at the street curb.
Accordingly, Appellant's conviction for Class Y terroristic act violates Ark. Code Ann. § 5-1-110(a)(3) because "inconsistent findings of fact are required" to support both this conviction and the capital murder conviction. To establish a basis for the capital murder conviction, the prosecution had to prove that Appellant fired the shot that struck the victim with "the premeditated and deliberated purpose of causing the death of another person" ( Ark. Code Ann. § 5-10-101(a)(4) ), and indeed the prosecution's theory at trial was that this shooting death was a planned retaliation for other gang-related activity. Consistent with the prosecution's theory, Appellant traveled to the crime scene on the day in question to kill an individual who was standing together with a small group of people outside on the street curb (although the evidence suggests that Appellant may have intended to kill someone else in the group who was standing next to the actual victim)-not to shoot at some houses situated back away from the street. No evidence was presented to suggest that Appellant had reason to be shooting at anything other than the group of individuals standing outside on the street. Even so, it may be that the two "missed" shots can support the two Class B terroristic act convictions because each shot involved an additional pull of the trigger. See McLennan v. State , 337 Ark. 83, 89-90, 987 S.W.2d 668, 672 (1999) ("Each of appellant's shots required a separate conscious act or impulse in pulling the trigger and is accordingly punishable as a separate offense."). However, this rationale cannot be extended to Appellant's Class Y terroristic act conviction, the basis of which is necessarily the shot that struck and killed the victim, which is the same shot forming the basis of the capital murder conviction.
The required findings for the capital murder conviction (that Appellant fired the shot that killed the victim, who was standing outside with a small group on the street curb, with "the premeditated and deliberated purpose of causing the death of another person") are incompatible with the findings required for the Class Y terroristic act conviction (that Appellant fired the shot that killed the victim "at an occupiable structure"). This distinction is of significant importance. If a suspect purposely shoots at a group of individuals standing outside on a street curb, and the fired shot actually strikes and kills one of those individuals, then the facts would be consistent with the "premediated and deliberate purpose" requirement for capital murder. If, however, the suspect was actually "(shooting) at an occupiable structure" when he fired the shot that killed the victim, and the bullet simply struck the victim while traveling in the direction of the targeted occupiable structure, then the facts would be inconsistent with the "premediated and deliberate purpose" requirement for capital murder. In short, it could be one (capital murder) or the other (Class Y terroristic act), but it could not be both, at least with regard to the shot that struck and killed the victim. Accordingly, I would reverse and dismiss the conviction for terroristic act, Class Y felony.
Concurring in part; dissenting in part.
The amended sentencing order contains what appears to be a scrivener's error. Despite the jury-verdict form from the sentencing phase of the trial stating that appellant's conviction for capital murder was enhanced pursuant to Arkansas Code Annotated section 16-90-120, and the court's imposition of the enhancement during formal sentencing, the amended sentencing order reflects that appellant's sentence was enhanced by 0 months. There is no indication in the record that this is anything other than a scrivener's error. When there is a discrepancy between the sentencing order and the pronouncement of sentence, it is the sentencing order that controls. See Vance v. State , 2011 Ark. 243, at 35, 383 S.W.3d 325, 347. However, clerical errors do not prevent enforcement of a judgment, and a circuit court can enter an order nunc pro tunc at any time to correct clerical errors in a judgment or order. Id.
Terroristic act is a Class Y felony if a person who commits a terroristic act causes physical injury or death to another person with the purpose to cause physical injury to another person. Ark. Code Ann. § 5-13-302(b)(2) (Repl. 2013). Appellant does not challenge his conviction for terroristic act, Class Y felony, on appeal.
In support of its argument, the State cites Haynie v. State , 257 Ark. 542, 518 S.W.2d 492 (1975), in which this court declined to consider the argument that the jury, not the trial court, should have determined the sentence on a firearm enhancement because no objection was made below. Unlike here, the appellant in Haynie did not contend that the sentence was illegal.
While the latter fact pattern may or may not support a conviction for Class Y terroristic act if it can be shown that the shooter's purpose was to "(cause) physical injury" (Ark. Code Ann. § 5-13-310(b)(2) ), the distinction is still significant because of the disparity in the statutorily prescribed sentencing possibilities for these two offenses, which illustrates the legislature's intent to treat these situations differently. Ark. Code Ann. § 5-10-101(c)(1) provides that capital murder is punishable by death or life imprisonment without the possibility of parole. Ark. Code Ann. § 5-4-401(a)(1) provides that a conviction for a Class Y felony is punishable by a sentence of "not less than ten (10) years and not more than forty (40) years, or life[.]" | [
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MEREDITH B. SWITZER, Judge
Appellant Katelynn Locke appeals the Lonoke County Circuit Court's grant of summary judgment to appellees State Farm Insurance Company and Patrick Sinclair, a State Farm agent (collectively "State Farm"). We affirm.
I. Facts
Katelynn's father, James, died on May 9, 2015, when Katelynn was fifteen years old. Katelynn's mother is also deceased. On June 2, 2015, in the probate division of the Lonoke County Circuit Court (No. 43PR-15-172), an order was entered appointing Amy Locke, Katelynn's stepmother, as permanent guardian of the persons and estates of Katelynn and her brother, Brett, because they were incapacitated by reason of minority. In that order, the circuit court found it was in Katelynn and Brett's best interest to have Amy appointed, the minors preferred her to be appointed as their guardian, and she was qualified and suitable to act as guardian of the persons and estates of the minors. The order authorized Amy to serve without bond and directed the court clerk to issue permanent letters of guardianship to Amy, which occurred the same day the order was entered.
James had a $ 50,000 insurance policy with State Farm, and his three children were designated as beneficiaries. At some time after receiving her letters of guardianship, Amy made claim as the guardian of Katelynn's estate for Katelynn's portion of the insurance proceeds. State Farm issued a check on October 9, 2015, in the amount of $ 16,416.85 paid to "Amy Locke, Guardian of the Estate of Katelynn Locke."
When Katelynn turned eighteen on December 2, 2017, she inquired of Patrick Sinclair about her portion of her father's life-insurance proceeds. It was then that she learned her share of the proceeds had been disbursed to Amy as the guardian of her estate in October 2015.
In January 2018, Katelynn filed a complaint against State Farm, Sinclair, and Amy alleging negligence, breach of contract, fraud, breach of fiduciary duty, and conspiracy. State Farm filed a motion for summary judgment alleging the life-insurance proceeds due Katelynn had been paid to Amy as the guardian of Katelynn's estate pursuant to the permanent order of guardianship and the letters of guardianship. This motion was granted on August 17, 2018. Katelynn was granted judgment against Amy in the sum of $ 19,066.93 on October 18, 2018, and she filed her notice of appeal from the order granting summary judgment to State Farm on October 23, 2018.
II. Standard of Review
It is well settled that summary judgment should be granted only when it is clear there are no issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Hopkins , 2018 Ark. App. 174, 545 S.W.3d 257. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appeal, viewing the evidence in the light most favorable to the nonmoving party and resolving all doubts and inferences against the moving party, we determine if summary judgment was appropriate based on whether the moving party's evidence in support of its motion leaves a material fact unanswered. Holman v. Flores , 2018 Ark. App. 298, 551 S.W.3d 1. Our appellate review is not limited to the pleadings, as we also focus on affidavits and other documents filed by the parties. Id.
III. Argument
Katelynn makes three arguments on appeal: (1) State Farm breached its contract with her; (2) payment was improperly made to Amy because the guardianship was defective; and (3) State Farm had an affirmative duty to investigate whether the guardianship was valid. Her overarching argument is that State Farm improperly released her portion of the insurance proceeds to Amy, who had no legal authority to receive the funds. We disagree. Summary judgment was proper because there were no issues of material fact to be litigated, and State Farm was entitled to judgment as a matter of law.
State Farm did not have a contract with Katelynn; its contract was with her father for $ 50,000 in life insurance. State Farm paid the portion of the life-insurance proceeds due Katelynn to Amy as the permanent guardian of Katelynn's estate. Katelynn's arguments center on Arkansas Code Annotated section 28-65-216 (Repl. 2012), which concerns the issuance of letters of guardianship and provides:
(a) When a guardian has given such bond as may be required and the bond has been approved, as provided by § 28-48-205, or if no bond is required and the guardian has filed his or her written acceptance of his or her appointment, letters of guardianship under the seal of the court shall be issued to him or her.
(b) The letters, when so issued, until revoked or cancelled by the court, shall protect persons who, in good faith, act in reliance thereon.
Katelynn argues that letters of guardianship should never have been issued to Amy because Amy never posted a bond or filed written acceptance of her appointment. The order appointing Amy permanent guardian authorized Amy to serve without bond; therefore, no bond was necessary. No one disputes Amy did not file a written acceptance of her appointment. Nevertheless, letters of guardianship were issued to Amy.
Katelynn argues State Farm failed to comply with Arkansas law when it released her insurance proceeds to Amy without requiring proof she was duly appointed as Katelynn's guardian. She persists in the argument that because Amy did not file a written acceptance of the guardianship, Amy was not properly authorized by the court to be Katelynn's guardian, and that State Farm "had an affirmative duty to investigate whether the guardianship was valid and whether Amy Locke was fully authorized." She is incorrect.
Regardless of whether the letters of guardianship were improvidently issued, which is not the issue in this appeal, the fact remains that the letters of guardianship were issued and were in effect at the time State Farm disbursed Katelynn's insurance proceeds to Amy as her guardian. Arkansas Code Annotated section 28-65-216(b) protects State Farm in this situation because Amy presented to State Farm both the order appointing her permanent guardian and the letters of guardianship; the letters of guardianship were not revoked or canceled by the court at the time they were presented to State Farm; and State Farm relied in good faith on the letters of guardianship in releasing Katelynn's funds to Amy.
Katelynn cites Prudential Insurance Co. of America v. Frazier , 323 Ark. 311, 914 S.W.2d 296 (1996), as a case "directly on point" in support of her argument. Frazier is easily distinguishable from the present case. In Frazier , Prudential was found to be liable to appellees, Melissa Conrad Frazier and Mellonie Conrad, for improperly paying their shares of their mother's life-insurance proceeds to their uncle, Jerry Reid, as guardian of their estates. In Frazier , although the order appointing Reid as guardian stated that "bond shall be determined," there was no indication that bond was ever set or paid, nor was there evidence that letters of guardianship were ever issued.
In the present case, bond was not required, and because the letters of guardianship were issued and had not been revoked or canceled by the court at the time of State Farm's disbursement of Katelynn's portion of the insurance proceeds to Amy as Katelynn's guardian, State Farm was protected by Arkansas Code Annotated section 28-65-216(b). Therefore, summary judgment was proper.
Affirmed.
Gladwin and Hixson, JJ., agree.
Separate defendant Amy Locke is not a party to this appeal of the grant of summary judgment to State Farm.
Another brother, Richard, was over eighteen years old at the time of his father's death; Brett turned eighteen in January 2016.
In an order dated March 14, 2017, Amy was removed as permanent guardian, and Katelynn's grandmother was appointed as her permanent guardian. It is undisputed that State Farm's disbursal of funds occurred well before Amy's removal as permanent guardian. | [
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MIKE MURPHY, Judge
This is a case about child support. On January 25, 2018, the circuit court of Garland County entered an order modifying Demontie's visitation and increasing his child-support obligation. Demontie appeals, arguing that the circuit court did not have jurisdiction to enter the order or alternatively, that retroactive child support was not correctly calculated, and the amount of child support was too much. We affirm but modify the retroactive-support award to conform with our statute.
Erika and Demontie Cross were married in June 2002 and divorced in July 2010. Two children were born during the marriage. The parties were awarded joint custody with Erika to be the primary physical custodian. Demontie was ordered to pay child support. Throughout the years, Demontie's child-support obligation changed as his career progressed. On August 12, 2016, Erika filed a petition to modify transportation, visitation, and child support. On October 7, 2016, counsel for Erika emailed Mr. Bogdan Susan, an attorney who had previously reached out to her on behalf of Demontie, asking if he would be willing to accept service for Demontie, or if she needed to send out a process server. A legal assistant from the firm emailed Erika's counsel back on October 13, stating that they would accept service. No summons was ever issued, and no affidavit of service was ever filed.
On February 16, 2017, Erika filed the same petition again, a summons was issued, and Demontie answered. On October 12, Demontie filed a motion to decrease his child support. A final hearing was held on December 14, and the court took up the issues of visitation and child support. At the hearing, the parties testified about, among other things, their current living arrangements and finances. At the conclusion of the hearing, the court invited both parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments. Each party submitted proposed findings of fact and conclusions of law, and each party provided a written argument as to why the other's order should not be entered. Relevant to this appeal, the court entered Erika's proposed order, which set Demontie's child-support payment at $6,229.24, based on a net monthly income of $29,982.11, and ordered Demontie to pay arrearages dating back to August 2016, when Erika filed the first petition. Demontie now appeals.
On appeal, Demontie first argues that the circuit court lacked jurisdiction to entertain Erika's August 12, 2016 petition because he was never served with either the petition or the summons. Demontie has waived this argument. Unlike subject-matter jurisdiction, which can be raised at any time, including for the first time by this court sua sponte on appeal, personal jurisdiction may be waived by a party. Vibo Corp., Inc. v. State ex rel. McDaniel , 2011 Ark. 124, at 9, 380 S.W.3d 411, 419. Because this is a case involving the welfare of children, the court had continuing jurisdiction. Our rules do not require that a summons be served when the circuit court has continuing jurisdiction, as it did here. Wilson v. Wilson , 2016 Ark. App. 191, at 7, 487 S.W.3d 420, 425. In his answer to the petition, Demontie admits that jurisdiction is proper, and he did not raise the defense of insufficiency of service of process. Nor did he move to dismiss the August 2016 petition for failure of service of process. A defense of insufficiency of service of process is waived if it is not made by motion under Arkansas Rule of Civil Procedure 12(g) or in a responsive pleading. Ark. R. Civ. P. 12(h)(1) ; see also Wallace v. Hale , 341 Ark. 898, 900, 20 S.W.3d 392, 394 (2000).
Demontie next argues that, in the event his first point on appeal is unsuccessful, the circuit court committed reversible error in awarding seventeen full months of back child support. As previously discussed, Erika filed her first motion for modification of child support on August 12, 2016. The order at issue, however, awarded Erika back child support for "August 2016 through December 2017 in the amount of $2,879.24 per month for a period of 17 months for a total of $48,947.08."
Arkansas Code Annotated section 9-14-107(d) (Repl. 2015) provides that child-support modifications are to be retroactively set as of the filing of the motion for modification. Retroactive modification of a court-ordered child-support obligation may be assessed only from the time that a petition for modification is filed. Yell v. Yell , 56 Ark. App. 176, 178, 939 S.W.2d 860, 862 (1997). Absent a specific finding of fraud in procuring an existing support decree, it is an abuse of discretion to impose a retroactive modification of a support order beyond the filing date of a petition to modify. Beavers v. Vaughn , 41 Ark. App. 96, 849 S.W.2d 6 (1993). We agree that it was erroneous for the circuit court to award a full month of child support for the month of August. In her brief, Erika even conceded this point. Accordingly, the award of retroactive support is affirmed; however, it is modified to begin August 12, 2016, when the petition was filed.
Finally, Demontie argues that the trial court committed reversible error when it did not deviate from the chart in making its child-support award. It is a rebuttable presumption that the Arkansas Family Support Chart amount is the correct amount of support to be awarded. Ark. Code Ann. §§ 9-14-107(d), 234(c)(1), and 9-12-312. The amount of support ordered is within the discretion of the circuit court and will not be disturbed absent an abuse of discretion. Smith v. Smith , 341 Ark. 590, 19 S.W.3d 590 (2000).
Demontie argues that the award was an abuse of discretion because it (1) exceeds Erika's living expenses, (2) is contributing to Erika's accumulation of wealth, and (3) is going toward paying for Erika's third child. He cites Gilbow v. Travis , 2010 Ark. 9, 372 S.W.3d 319, for the proposition that a court may grant more or less support if the evidence shows that the needs of the child require a different level of support. However, in Huey v. Huey , we wrote that while a circuit court may deviate from the child-support chart when the chart exceeds or fails to meet the needs of the child, we have rejected the argument that a noncustodial parent does not have to pay child support pursuant to the chart simply because that amount exceeds a child's actual needs. 90 Ark. App. 98, 104-05, 204 S.W.3d 92, 96 (2005).
Furthermore, the evidence supports the amount awarded because, at the hearing, Erika testified that her two daughters with Demontie have missed opportunities for extracurricular activities such as travel and basketball camps because of a lack of funds. She also testified that one of the girls needed braces, and Demontie would not agree to help pay for them. Accordingly, we affirm the circuit court's determination that Demontie should pay child support pursuant to the chart.
Affirmed as modified.
Abramson and Harrison, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
This case is before us a third time following remand. See Montez v. Montez , 2018 Ark. App. 55, 539 S.W.3d 630 ( Montez II ); Montez v. Montez , 2017 Ark. App. 220, 518 S.W.3d 751 ( Montez I ). On appeal, Daniel Montez argues that the circuit court rendered a judgment inconsistent with our holdings in Montez I and Montez II by awarding sole custody of his children to his former wife, Consuela Montez. Daniel alternatively argues that the circuit court erred by (1) failing to obtain the recommendation of the attorney ad litem, (2) not granting custody to him, and (3) failing to apply the factors that warrant a downward deviation for child support. We affirm.
We first briefly discuss the background of the proceedings as outlined in Montez I and Montez II . On January 9, 2015, the Washington County Circuit Court entered a divorce decree for Daniel and Consuela. The decree incorporated the parties' child-custody agreement in which they agreed to joint custody of their children, M.M. and J.M., and due to the joint-custody arrangement, neither party was ordered to pay child support. Thereafter, on October 29, 2015, Consuela filed a motion to modify the child-support agreement, and on February 11, 2016, both Daniel and Consuela filed motions for modification of custody.
The court held a hearing on June 6, 2016, wherein the testimony showed that communication between Daniel and Consuela had significantly deteriorated. There was further testimony that J.M.'s demeanor had changed and that M.M. had significant disciplinary issues since the parties' divorce. The evidence also showed that Consuela had married Richard Trujillo, who was incarcerated at that time for his fourth driving-while-intoxicated offense, and that the couple had a volatile relationship.
Following the hearing, the court entered an order finding that the parties had failed to establish a material change in circumstances warranting modification of custody and that it was in the best interest of the children for the joint-custody arrangement to continue. The court ordered both Daniel and Consuela to pay child support, but the court offset Daniel's obligation with Consuela's obligation. Daniel appealed the decision to this court and argued that the circuit court erred in finding that he had failed to establish a material change in circumstances warranting modification of custody.
This court agreed. We cited our caselaw holding that when the parties have fallen into such discord that they are unable to cooperate in sharing physical care of their children, this constitutes a material change in circumstances affecting the children's best interest. See Montez I , 2017 Ark. App. 220, 518 S.W.3d 751 (citing Word v. Remick , 75 Ark. App. 390, 58 S.W.3d 422 (2001) ). We further cited caselaw in which we had reversed the continuation of a joint-custody arrangement on a motion to modify custody when "there was a mountain of evidence ... demonstrating that the parties could no longer cooperate in reaching shared decisions in matters affecting their children." Id. at 9, 518 S.W.3d at 757 (quoting Doss v. Miller , 2010 Ark. App. 95, at 8, 377 S.W.3d 348, 354 ). We reversed the circuit court's award of joint custody and remanded the case to the circuit court for an award of custody consistent with the opinion. Id.
Following remand, on June 6, 2017, the circuit court entered a written order finding that a material change in circumstances had occurred following the entry of the divorce decree but nonetheless found it was not in the best interest of the children to change the custody arrangement. The circuit court concluded that the children benefited from extended time with both parents and ordered the joint-custody arrangement to continue. The circuit court ordered the parties to communicate by telephone daily.
Daniel appealed the June 6, 2017 order to this court. On appeal, Daniel argued that the circuit court failed to render a judgment consistent with our opinion in Montez I . See Montez II , 2018 Ark. App. 55, 539 S.W.3d 630. We agreed with Daniel and held that the circuit court failed to execute our mandate. Id. We again reversed and remanded to the circuit court for termination of the joint-custody arrangement, and we directed the circuit court to make a sole-custody determination with a corresponding child-support determination. Id.
On remand, the circuit court held a hearing on March 8, 2018. On April 2, the court entered a written order awarding Consuela sole custody of the children but ordering her and Daniel "to share parenting time with the children equally using a 50/50 schedule in the manner previously ordered which the parties/parents have followed since the divorce." As to child support, the court ordered that Daniel's child-support obligation shall no longer be offset against Consuela's obligation due to the termination of the joint-custody arrangement. Specifically, the court ordered Daniel to pay Consuela $ 3,666 a month in child support. This appeal followed.
On appeal, Daniel first argues that the circuit court erred by failing to render a judgment consistent with our holdings in Montez I and Montez II . He concedes that the circuit court technically followed the mandates when the court awarded sole custody to Consuela; however, he argues that the order violates the spirit of the mandates because the court maintained the previous visitation schedule, and in Montez I , we found that arrangement to be against the best interest of the children.
We disagree with Daniel and hold that the circuit court did not render a judgment inconsistent with Montez I and Montez II . In Montez I , we held that given the evidence that Consuela and Daniel could not communicate, the circuit court erred in finding that Daniel had failed to establish a material change in circumstances warranting modification of the joint-custody arrangement. Thereafter, in Montez II , we held that the circuit court failed to execute our mandate in Montez I because the court maintained the same custody arrangement following our remand. We directed the circuit court to make a sole-custody determination. In the instant case, it did not maintain the previous arrangement. The court awarded Consuela sole custody of the children. Thus, Consuela is charged with the decision-making responsibilities, and she and Daniel are no longer required to communicate and cooperate on those decisions. Accordingly, we find no error on this point.
Daniel next argues that the circuit court erred by failing to obtain a second recommendation of the attorney ad litem on remand. This court has recommended the appointment of guardians ad litem in custody cases, but ad litems are not required by statutory law in custody actions. See Malone v. Malone , 4 Ark. App. 366, 631 S.W.2d 318 (1982) ; Kimmons v. Kimmons , 1 Ark. App. 63, 613 S.W.2d 110 (1981). We review the circuit court's decision to appoint an attorney ad litem for an abuse of discretion. Kuelbs v. Hill , 2010 Ark. App. 427, 379 S.W.3d 47. In this case, at the June 6, 2016 hearing, the ad litem provided the circuit court with her evaluation of the parties, the children, and their relationships, and on remand, the parties did not present any new evidence. Given these circumstances, we cannot say the circuit court erred by failing to obtain a second recommendation of the ad litem.
Daniel next argues that the circuit court erred by not granting sole custody to him. He asserts that the court disregarded the facts that Consuela married a felon and that they have a volatile relationship. He cites Arkansas Code Annotated section 9-13-101(c) (Repl. 2013) and asserts that the court failed to recognize the rebuttable presumption that the children be placed with him.
In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the circuit court unless they are clearly erroneous. Sharp v. Keeler , 99 Ark. App. 42, 256 S.W.3d 528 (2007). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Ford v. Ford , 347 Ark. 485, 65 S.W.3d 432 (2002). We give due deference to the circuit court's superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. The supreme court has held that there is no other case in which the superior position, ability, and opportunity of the circuit court to observe the parties carries a greater weight than one involving the custody of minor children. Taylor v. Taylor , 345 Ark. 300, 47 S.W.3d 222 (2001). The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Id. Arkansas Code Annotated section 9-13-101(c)(2) provides that there is a rebuttable presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent when there is a finding by a preponderance of the evidence that the parent has engaged in a pattern of domestic abuse.
We hold that the circuit court did not err by granting sole custody to Consuela. In making its decision, the court relied on the facts that Consuela had been the primary caregiver during the parties' marriage and that since the divorce, she had continued to be the primary decision-maker regarding the children's educational and medical matters. Further, as to the domestic abuse, many of the contentions concerning the abuse were credibility determinations to be decided by the circuit court. See Wise v. Wise , 2010 Ark. App. 184, 374 S.W.3d 704. Accordingly, we cannot say that the circuit court erred in finding that it was in the children's best interest for Consuela to have sole custody.
Daniel finally argues that the circuit court abused its discretion by not deviating from the family-support chart. He contends that the circuit court failed to consider factors supporting a deviation, i.e., that he created a trust for the benefit of the children, that he had equal physical custody of the children, and that he paid the full cost of their health insurance.
The courts begin with a presumption that the chart amount is reasonable. Ceola v. Burnham , 84 Ark. App. 269, 139 S.W.3d 150 (2003). Reference to the chart is required, and the chart establishes a rebuttable presumption of the appropriate amount that can only be modified on the basis of written findings stating why the chart amount is unjust or inappropriate. Id. Because the child-support guidelines are remedial in nature, they must be broadly construed so as to effectuate the purpose sought to be accomplished by their drafters. Id. The court may grant more or less support if the evidence shows that the needs of the children require a different level of support. Id. (citing In Re: Admin. Order No. 10, Ark. Child Support Guidelines , 346 Ark. App'x. 1064 (2002) ). Administrative Order No. 10 (V) sets forth the factors to be considered when deviating from the amount set by the chart.
In this case, Daniel did not ask the court to deviate from the family-support chart after the court awarded Consuela sole custody of the children. Thus, there are no findings addressing a request for deviation or an explanation why the court did not deviate from the chart based on the sole-custody arrangement. See Riddick v. Harris , 2016 Ark. App. 426, 501 S.W.3d 859 (declining to consider an argument that the circuit court failed to deviate from family-support chart because appellant did not ask the court for a deviation). This court will not consider arguments raised for the first time on appeal, and an appellant must obtain a ruling from the circuit court on an issue in order to preserve an argument for appeal. Id. Because the circuit court did not rule on the point, this court has nothing to review. Id. It was Daniel's burden to raise the issue of a deviation from the family-support chart and to obtain a specific ruling on it, and his failure to do so precludes this court from considering the merits of his argument.
Affirmed.
Harrison and Murphy, JJ., agree.
M.M. turned eighteen on April 14, 2018.
Specifically, the court found Consuela's monthly child-support obligation to be $ 631 and Daniel's obligation to be $ 6,910. Accordingly, it ordered Daniel to pay Consuela $ 6,279 a month.
In calculating Daniel's child support, the court relied on its February 15, 2018 order on Daniel's motion to modify his child support. In that order, the court found Daniel's monthly net income to be $ 17,775 and accordingly modified his child support to $ 3,666 a month. The court determined Consuela's child support to be $ 530 a month. Because the joint-custody arrangement was in place at that time, the court offset Daniel's obligation by Consuela's obligation and ordered Daniel to pay Consuela $ 3,136 a month in child support. | [
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DAVID M. GLOVER, Judge
Juan Cruz appeals the Monroe County Circuit Court's order granting the State's petition for forfeiture of $ 65,850, arguing the circuit court erred in granting the petition prior to the expiration of his time to respond. We agree with Cruz's argument and, therefore, we reverse and remand.
On April 8, 2015, at approximately 5:30 p.m., Arkansas State Police (ASP) initiated an investigation of the report of a gunshot fired at a tractor trailer on Interstate 40 by a Hispanic driver in a Suburban with Texas plates. Cruz was driving the Suburban when ASP made the stop; he told ASP there was no gun in the vehicle. However, a loaded gun was found in the vehicle together with a duffel bag containing $ 64,950; $ 900 in the center console; an odor of marijuana and a small amount of marijuana in a cup on the rear floorboard in front of the seats; and marijuana residue in several shoe boxes. Cruz stated the money belonged to him, but he was only a "small player" in the game.
On February 26, 2018, the State filed a notice of seizure and intent to forfeit as to the $ 65,850 seized on April 8, 2015. This notice was personally served on Cruz on March 2, 2018, at the Monroe County jail, where he was being held. At 1:10 p.m. on April 10, an order of forfeiture was entered forfeiting the $ 65,850 and depositing it in the Monroe County Drug Control Fund.
At 3:30 p.m. on April 10, approximately two hours after the order was entered, Cruz filed a motion to dismiss the forfeiture petition due to untimely filing. In its response to the motion to dismiss, the State argued there was good cause to delay the filing of the petition for forfeiture because the currency was potential evidence in a connected criminal case not disposed of until January 29, 2018; however, the State further acknowledged Cruz was not convicted of a drug crime and had no drug charges pending. On April 24, the State filed a motion to strike as untimely Cruz's motion to dismiss; Cruz argued his motion was timely. The circuit court did not rule on Cruz's motion to dismiss.
On May 2, Cruz filed a motion to set aside the order of forfeiture. He asserted that since the forfeiture petition was filed on February 26, 2018, and he was served in the Monroe County jail on March 2, he then had until May 1 to file his answer as he was incarcerated when he was served and therefore, the order of forfeiture should be set aside, and the circuit court should address his motion to dismiss. The circuit court did not rule on Cruz's motion to set aside, and he timely appealed the order of forfeiture.
Rule 12(a)(1) of the Arkansas Rules of Civil Procedure provides, in pertinent part:
A defendant shall file his or her answer within 30 days after the service of summons and complaint upon him or her. A defendant served under Rule 4(f) shall file an answer within 30 days from the date of first publication of the warning order. A defendant incarcerated in any jail, penitentiary, or other correctional facility in this state, however, shall file an answer within 60 days after service.
(Emphasis added.)
We construe court rules using the same principles and canons of construction used to interpret our statutes. Jones v. State , 2018 Ark. App. 211, 2018 WL 1514952. When reviewing issues of statutory interpretation, the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving words their ordinary and usually accepted meaning in common language. Rylwell, L.L.C. v. Arkansas Dev. Fin. Auth. , 372 Ark. 32, 269 S.W.3d 797 (2007). When the language of a statute is plain and unambiguous, there is no need to resort to the rules of statutory construction. Id.
The State contends the intent behind Rule 12(a)(1)'s extended answer time is to give defendants who are not personally served a fair opportunity to answer, and because Cruz was personally served, there was no justification for an extended period for answering under Rule 12(a)(1) and the general thirty-day period for filing an answer applied. We do not agree.
When a statute is clear, it is given its plain meaning, and our appellate courts will not search for legislative intent; instead, such intent must be gathered from the plain meaning of the language employed. Id. Our appellate courts are very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear a drafting error or omission had circumvented legislative intent. Id.
In the present case, Rule 12(a)(1) is clear and unambiguous that a defendant who is incarcerated has sixty days after service to answer. Therefore, we need not look to legislative intent. It matters not that Cruz was personally served; it only matters that he was incarcerated when he was served. To hold otherwise would inject a level of uncertainty into the rule when one begins to look at the circumstances under which an incarcerated defendant is served, rather than simply looking at the fact the defendant is incarcerated, as is clearly stated in Rule 12. We hold it was error for the circuit court to enter the forfeiture order prior to the expiration of Cruz's time to answer.
Reversed and remanded.
Gladwin and Vaught, JJ., agree. | [
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RHONDA K. WOOD, Associate Justice
Appellant Jackie Breeden, Jr., appeals the denial of his pro se petition to proceed in forma pauperis. The circuit court denied his petition because it found the underlying writ of habeas corpus did not contain a colorable cause of action. Because the circuit court did not abuse its discretion in finding that Breeden should not be permitted to proceed, we affirm.
In evaluating Breeden's petition to proceed in forma pauperis, the circuit court found that Breeden had established that he was indigent, but that he did not raise a cognizable claim. In his habeas petition and on appeal, Breeden alleges that the writ should issue because his incarceration was unconstitutional in that he should have received a lesser sentence as a first-time offender. Breeden did not attach to his petition the judgment that he challenged, but he referenced this court's decision in Breeden v. State , 2013 Ark. 145, 427 S.W.3d 5, affirming his conviction for the rape of his minor daughter.
In support of his claims, Breeden asserts that his life sentence for rape was in violation of due process and the Eighth Amendment's prohibition against cruel and unusual punishment. Breeden points to cases in which juvenile offenders were held less culpable, and appears to assert that these are comparable to his case. Breeden asks that his sentence be vacated and that he be resentenced so that the "first offender act" could be considered.
I. Standard of Review
Our standard of review of a decision to grant or deny a petition to proceed in forma pauperis is abuse of discretion, and the circuit court's factual findings in support of its exercise of discretion will not be reversed unless clearly erroneous. Whitney v. Guterres , 2018 Ark. 133, 2018 WL 1957077. An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Whitney v. State , 2018 Ark. 138, 2018 WL 1957111.
Rule 72 of the Arkansas Rules of Civil Procedure conditions the right to proceed in forma pauperis in civil matters on indigency and the circuit court's satisfaction that the alleged facts indicate "a colorable cause of action." Ark. R. Civ. P. 72(c) (2017). If the underlying petition clearly fails to state a colorable cause of action, there has been no abuse of discretion, and this court may affirm the denial of in forma pauperis status. Muldrow v. Kelley , 2018 Ark. 126, 542 S.W.3d 856. A colorable cause of action is a claim that is legitimate and may reasonably be asserted given the facts presented and the current law or a reasonable and logical extension or modification of it. Penn v. Gallagher , 2017 Ark. 283, 2017 WL 4683871. The decision to deny Breeden's request for pauper status turned on whether he pleaded sufficient facts in his habeas petition to support his claims for habeas relief.
II. Habeas Relief and Jurisdiction
Under our statute, a petitioner for the writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he or she is being illegally detained. Garrison v. Kelley , 2018 Ark. 8, at 2, 534 S.W.3d 136, 137 (citing Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016) ). Assertions of trial error and due-process violations do not implicate the facial validity of a trial court's judgment or jurisdiction. Anderson v. Kelley , 2018 Ark. 222, 549 S.W.3d 913.
III. Breeden's Bases for the Writ
Breeden was charged under Arkansas Code Annotated section 5-14-103 (Supp. 2011), which provides that rape is a Class Y felony. The statutory sentencing range for a Class Y felony is not less than ten years and not more than forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 2013). Breeden's sentence fell within that range.
Breeden's Eighth Amendment argument is that his sentence was excessive as a matter of law, mainly because he was a first-time offender. This is developed poorly, but the crux of it appears to be that a sentence of life without parole for a first offender in a noncapital case is unconstitutionally excessive. Breeden cites no authority to support this position.
As noted above, the sentencing range for rape does not carry a mandatory sentence of life without parole, and the jury that convicted Breeden was allowed to consider imposing a lesser sentence. Breeden's petition made no claim that was legitimate or may reasonably have been asserted given the facts presented and the current law or a reasonable and logical extension or modification of it. Breeden's underlying petition clearly fails to state a colorable cause of action because it does not state sufficient nonconclusory facts to support cognizable claims. Accordingly, we affirm the circuit court's denial of Breeden's in forma pauperis petition.
Affirmed. | [
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RITA W. GRUBER, Chief Judge
Appellant Tina Damron appeals from an order of the Benton County Circuit Court finding her guilty on five counts of indirect criminal contempt pursuant to Arkansas Code Annotated section 16-10-108 (Repl. 2010). For her sole point on appeal, Ms. Damron contends that the court erred in failing to grant her a jury trial. We disagree and affirm.
Tina Damron and Stewart Damron divorced in 2014. The present contempt action arose out of their divorce case. On October 20, 2017, the circuit court ordered Ms. Damron to appear and show cause as to why she should not be held in contempt and incarcerated pursuant to Ark. Code Ann. § 16-10-108 for failure to comply with the circuit court's previous orders. The order listed at least eight alleged violations of specific court orders arising from the divorce proceedings, the substance of which are not at issue in this appeal. The show-cause hearing was set for December 7, 2017.
At the December 7, 2017 hearing, the following colloquy took place:
THE COURT : Pursuant to Ark. Code Ann. § 16-10-108, [Ms. Damron] is on notice as to the citation of contempt in this order dated October 20th as to which orders the Court is wanting to address. She was advised on October 20th of her right to counsel, her presumption of innocence, her right against self-incrimination, her right to confront and call witnesses and subpoena witnesses. The standard of proof is beyond a reasonable doubt. And this is pursuant to § 16-10-108, contempt is a Class C misdemeanor. Also under § 5-4-401 with the penalties being anything 30 days or less in the Benton County jail and $ 500 or less in a fine.
MS. DAMRON'S COUNSEL : And, Your Honor, since there are, I believe, eight counts, correct me if I'm wrong, of contempt that puts the maximum punishment range in this case of 240 days, which gets us over the six-month requirement necessary for my client to have a right to trial by jury in this case. We would like to invoke that right.
THE COURT : Denied. Thank you.
MS. DAMRON'S COUNSEL : Your Honor, one final one if I could. This-each one is punishable by up to 30 days but under the inherent powers doctrine,[ ] you, of course, have the authorization to exceed that. We would like to ask for a statutory cap that you plan to go for each of these counts.
THE COURT : We'll see how the evidence comes in. I'll let you know.
MS. DAMRON'S COUNSEL : Thank you, Your Honor.
At the conclusion of the hearing, the court found Ms. Damron guilty of five counts of indirect criminal contempt under Ark. Code Ann. § 16-10-108 and imposed a total of sixty days' incarceration in the Benton County jail, with thirty days suspended. The court also ordered payment of restitution and fines. The order was entered December 7, 2017, and Ms. Damron filed a timely notice of appeal on December 21, 2017.
On appeal, Ms. Damron contends that the court erred in failing to grant a jury trial. Specifically, she argues that the court's refusal to grant a jury trial, along with the refusal to cap the statutory amount of days she could serve in jail, indicates that she may have been sentenced to six months or longer in jail, which she contends triggers her right to a jury trial. In addition, Ms. Damron suggests that the court's refusal to indicate how long it intended to sentence her if she were found guilty was in violation of Etoch v. State , 343 Ark. 361, 37 S.W.3d 186 (2001). The State responds that Ms. Damron was not entitled to a jury trial and that she is misinterpreting what Etoch requires.
In Etoch , the appellant was charged with two counts of contempt arising out of two criminal proceedings in which he was a lawyer. He requested notice from the circuit court of the punishment contemplated for the contempt and was informed-prior to trial-that it was considering a sentence of up to one year and a fine of up to $ 1000, or both. The appellant requested a jury trial, which was denied. On appeal, the supreme court agreed that the circuit court erred in denying his request for a jury trial:
"Criminal penalties may not be imposed on an alleged contemnor who has not been afforded the protections that the Constitution requires of criminal proceedings." Fitzhugh v. State , 296 Ark. 137, 752 S.W.2d 275 (1988). However, "petty contempt like other petty criminal offenses may be tried without a jury." Taylor v. Hayes , 418 U.S. 488 [94 S.Ct. 2697, 41 L.Ed.2d 897] (1974). "Contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute." Id.
Mr. Etoch was actually sentenced to only one day in jail on each conviction, with the sentences to run concurrently. The State argued that, because the sentence actually imposed upon Mr. Etoch was less than six months, he was not entitled to a jury trial under the reasoning of Taylor v. Hayes , supra . We adopted the rule set out in Taylor v. Hayes in Edwards v. Jameson , 283 Ark. 395, 677 S.W.2d 842 (1984). We noted, however, that "the better practice in cases of criminal contempt is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed. If the judge does not contemplate the imposition of a greater sentence, a jury is not necessary; otherwise one may be demanded. " Id. (emphasis added). Stated in other words, under Arkansas law there is no right to a jury trial in a prosecution for criminal contempt unless the sentence actually imposed upon the contemnor is greater than six months, a sentence greater than six months is authorized by statute, or the trial court announces prior to trial that it is contemplating a sentence greater than six months in the particular case. Under any of these circumstances, the offense can no longer be considered "petty" because the contemplated sentence exceeds six months' imprisonment. See Medlock v. State , 328 Ark. 229, 942 S.W.2d 861 (1997).
Etoch , 343 Ark. at 365-66, 37 S.W.3d at 189-90. In Etoch , the circuit court had clearly announced prior to trial that it was considering a punishment of up to one year.
As stated in Etoch , there is no right to a jury trial in a prosecution for criminal contempt under Arkansas law unless (1) the sentence actually imposed on the contemnor is greater than six months, (2) a sentence greater than six months is authorized by statute, or (3) the circuit court announces prior to trial that it is contemplating a sentence greater than six months; none of these is present in this case. Id. There is no dispute that the sentence imposed on Ms. Damron was less than six months and that the statute at issue did not authorize a sentence in excess of six months. The only question is whether the circuit court announced prior to trial that it was contemplating a sentence greater than six months. Based on the colloquy quoted earlier, we cannot say that the court made such a pronouncement.
Ms. Damron's counsel requested a "statutory cap you plan to go for each of these counts," and the court simply responded, "We'll see how the evidence comes in. I'll let you know." There is nothing to indicate from this colloquy that the court contemplated imposing a sentence greater than six months. While Etoch recognizes that "the better practice in cases of criminal contempt is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed," such was not done here. Etoch , 343 Ark. at 365, 37 S.W.3d at 189. Nor do we agree with Ms. Damron's argument that the circuit court's "refusal to indicate how long it intended to sentence [her] if found guilty" was in violation of Etoch . The only question before us is whether the circuit court announced prior to trial that it was contemplating a sentence greater than six months, and based on these facts, we cannot say that there was such a pronouncement. In so holding, we are simply applying the law as set out in Etoch to the facts of this case, and we do not in any way abrogate the inherent power of the circuit court to punish for contempt in disobedience of its orders. See Yarbrough , supra .
Affirmed.
Glover, Vaught, and Brown, JJ., agree.
Gladwin and Hixson, JJ., dissent.
In interpreting Ark. Code Ann. § 16-10-108, our supreme court has held that the provisions of the statute are not a limitation on the power of the court to inflict punishment for disobedience of process. Yarbrough v. Yarbrough , 295 Ark. 211, 213, 748 S.W.2d 123, 124 (1988) (citing Morrow v. Roberts , 250 Ark. 822, 467 S.W.2d 393 (1971) ). The supreme court, citing article 7, section 26 of the Arkansas Constitution, has held that the legislature "cannot abridge the power of the courts to punish for contempt in disobedience of their process; the Constitution specially reserved this inherent power in the courts, when delegating authority to the Legislature to regulate punishments for contempts." Id. (citing Spight v. State , 155 Ark. 26, 243 S.W. 860 (1922) ; Ford v. State , 69 Ark. 550, 64 S.W. 879 (1901) ).
Specifically, Ms. Damron was sentenced to thirty days for one count, ten days each for three counts, and thirty days for another count with thirty days suspended for that count.
Ark. Code Ann. § 16-10-108(b)(1) provides that punishment for contempt is a Class C misdemeanor, and Ark. Code Ann. § 5-4-401(b)(3) (Repl. 2013) authorizes up to thirty days' imprisonment for a Class C misdemeanor.
We note that the abstract does not indicate that Ms. Damron's counsel asked the circuit court to again consider the request. | [
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The evidence implicating appellant in the crime included the discovery of an AR-15 rifle, .223 rounds, spent shell casings, and spare magazines at his home; security video footage showing appellant wearing camouflage at U-Pull-It on that Friday night at the time of the shootings and showing that he had his AR-15 with him; his statements to law enforcement denying being present on the night of the shootings; and the fact that, on Saturday morning before U-Pull-It opened, appellant crushed the vehicle with the bodies inside. The projectile recovered by the medical examiner could not be conclusively linked to appellant's rifle, but there was testimony that the shell casing recovered at the scene had been cycled through that rifle. In addition, Brock's cell phone was found in the vehicle with the bodies, but the battery was not located. There was testimony that the phone ceased all activity, including receiving information and communicating with the cell towers (suggesting removal of the battery), at 8:00 a.m. on Saturday when appellant was at the salvage yard crushing cars. The State's theory of the case was that appellant, an operator and part owner in the family business, was tired of repeated break-ins and decided to hunt down the perpetrators himself. Appellant's defense was that he had not shot the victims. Although he was seen on surveillance video carrying a rifle, he sought to present evidence showing why other people had motives to harm the victims and why he was armed that night-due to the victims' ties to violent white-supremacist groups. At trial, the defense contended that appellant was at the salvage yard that night because it was raining, and he wanted to see the condition of the gravel that had just been brought in to deal with an erosion problem. He relied on the absence of DNA or other physical evidence connecting him to the shootings and pointed to the video footage showing patterns of moving lights that he argued showed the presence of other persons.
II. Points on Appeal
A. Zinger Evidence
Appellant argues that the circuit court's rulings excluding certain evidence were a misapplication of the doctrine of Zinger v. State , 313 Ark. 70, 852 S.W.2d 320 (1993), which governs admission of evidence of alternative perpetrators. Further, he argues that the rulings also violated his constitutional right to present a defense as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and cognate state constitutional provisions of article 2, sections 8 and 10.
This court reviews the admission of evidence by the circuit court at trial using an abuse-of-discretion standard. Ellis v. State , 2012 Ark. 65, at 10, 386 S.W.3d 485, 490. The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a court's decision regarding the admission of evidence absent a manifest abuse of discretion. Id. Appellant argues that the application of Zinger is a question of law to which a de novo standard of review should be applied, but we disagree. Consistent with our case law, we apply an abuse-of-discretion standard. See Harmon v. State , 2014 Ark. 391, 441 S.W.3d 891 (holding that the circuit court abused its discretion in granting the State's motion in limine to exclude the evidence that there was DNA from more than one individual on several pieces of evidence); Conte v. State , 2015 Ark. 220, 463 S.W.3d 686, (applying an abuse-of-discretion standard to Conte's Zinger argument).
In Zinger , supra , the appellants had been convicted of first-degree murder. At trial, they had attempted to introduce testimony regarding a similar crime that had occurred approximately thirty miles away, in Louisiana, for the purpose of convincing the jury that the person who committed that crime might also have committed the murder of which they had been accused. The circuit court refused to allow the evidence. On appeal, this court wrote:
To address this issue, we must consider under what circumstances evidence incriminating others is relevant to prove a defendant did not commit the crime charged....
Addressing this precise issue, the Supreme Court of North Carolina stated:
A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another's guilt is inadmissible.
State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988). The Supreme Court of California has recognized that a defendant has the right to present evidence of third party culpability but stated:
[T]he rule does not require that any evidence, however remote, must be admitted to show a third party's possible culpability ... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.
People v. Kaurish , 52 Cal. 3d 648, 276 Cal. Rptr. 788, 802 P.2d 278 (1990).
Although there are some similarities between the crimes committed in Louisiana and Arkansas, there was no evidence presented connecting the Louisiana suspect to the Holley murder. The Trial Court was not even given the name of the Louisiana suspect or whether he or she had any connection to Holley. There was neither direct nor circumstantial evidence connecting the Louisiana perpetrator to the Arkansas crime, other than a few similarities found in the two crime scenes, and we cannot conclude the Trial Court abused his discretion in refusing to allow the evidence to be admitted.
Zinger , 313 Ark. at 75-76, 852 S.W.2d at 323. Zinger has been applied many times since it was decided in 1993. In Harmon , 2014 Ark. 391, at 8, 441 S.W.3d 891, 895, this court recognized that the standard for admission of incriminating evidence against a third person, as set forth in Zinger , is merely an application of the Arkansas Rules of Evidence to a specific type of evidence. Pursuant to those rules, relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401 (2018). However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Ark. R. Evid. 403.
Here, appellant argues that the circuit court erred in excluding evidence corroborating the defense that the killings were perpetrated by someone other than him and otherwise exculpating him on the charge of capital murder, i.e., showing that he was justified in being armed at the salvage yard for reasons other than a premeditated killing.
First, appellant argues that the circuit court erred in excluding photographs of footprints at the crime scene. After lead investigator Erick Riggs of the Pope County Sheriff's Department testified on cross-examination that there were various footprints at the scene, the State objected when the defense attempted to introduce photographs of the footprints. The State's position was that Zinger prevented admission of the pictures because the footprints could not be related to a particular person; appellant's position was that they were admissible to show a lack of investigation in that officers believed that the footprints were important enough to photograph and measure, but they were never investigated further. The circuit court excluded the photographs. Here, the footprints were not sufficiently linked to the murders to be relevant, and in any event, there was testimony regarding the existence of the footprints. Under these particular facts, we hold that the circuit court did not abuse its discretion in excluding the photographs.
The other evidence on which appellant argues error concerns the following proffered but excluded witness testimony: employees McCubbin and Ibanez would have testified regarding the reasons for believing the victims would be coming to the property to steal parts and for believing that they were white supremacists; Investigator Keith Lunsford would have testified that he learned through the investigation that someone named J.J. was to have been with Brock and Dewitt at the time of their disappearance, that there was speculation that Brock Lee, the father of Rowan's child and a white supremacist, was involved, and a Randall Gordon stated that he was aware of a disturbance at a church in Casa in which a woman stated that the man with whom she had been arguing had killed two people; Erick Riggs would have discussed connections between J.J. Boen, the victims, and Brock Lee and white-supremacy groups; Officer John Reinhold would have testified that Dewitt's mother expressed concern that Brock Lee might have been involved; Doug Lewis would have testified that he was present at the church altercation in which it was stated that a man had just killed two men; Investigator Russell Hill would have testified that his interviews had disclosed the possibility that J.J. Boen, Brock Lee, and T.J. Ferguson might have been involved; and Zachary Berry would have testified that he knew Beau Dewitt and people in the Scranton area thought he was a violent hoodlum. Additionally, in the testimony of ATF agent Timothy Boles, the defense was precluded from asking him about the National Aryan Empire and the "To The Dirt" investigation. Appellant characterizes this as "evidence about the white supremacist associations of the deceased and evidence about specific persons with whom one or both of the deceased essentially were at war and thus had a motive to harm them."
Appellant argues that the circuit court misapplied Zinger in several ways: by essentially holding that Zinger supersedes other grounds for the admissibility of evidence; by agreeing with the prosecution that the evidence was inadmissible unless appellant testified; by suggesting through discussion of Schnarr v. State , 2017 Ark. 10, 2017 WL 374727, that appellant was arguing justification for the shooting (which he was not); and by suggesting that appellant was required to name a specific person as the alternative perpetrator. However, the fact remains that appellant could not connect the proffered evidence to the murders. This court has rejected arguments that a circuit court abused its discretion in excluding evidence of another person's motive for committing a crime when the defendant could not link the other person to the crime. See Conte , 2015 Ark. 220, 463 S.W.3d 686 ; Armstrong v. State , 366 Ark. 105, 233 S.W.3d 627 (2006). To be admissible, evidence suggesting third-party guilt must be sufficiently linked to the crimes charged. Here, the circuit court did not abuse its discretion by excluding testimony that merely suggested that others may have had a motive for these crimes or that another person had been publicly accused of having killed two unnamed men.
Appellant also argues that evidence of his knowledge of potentially violent white supremacists breaking into his property should have been admitted to explain why he was armed, and the Zinger doctrine is not implicated. The State responds that the testimony offered by appellant-had it been admitted-would have been more prejudicial than probative because the proffered testimony did not establish that either the appellant or the witnesses:
(1) actually knew the victims were associated with white-supremacist groups; (2) personally knew the victims to be violent; or (3) had any knowledge that the victims had ever committed acts of violence. It simply established that, on the basis of tattoos, the witnesses told appellant that they believed the victims were associated with white supremacists and that white supremacists are violent. We agree that the circuit court did not abuse its discretion in excluding this evidence.
Finally, appellant argues that this court's holding in Zinger , and the circuit court's application of it, deprived him of his right to present a defense. However, the constitution permits the exclusion of evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice, or confusion of the issues. E.g. , Holmes v. South Carolina , 547 U.S. 319, 326-27, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). Properly applied, Zinger prohibits evidence of third-party guilt that is irrelevant, or which is relevant but substantially outweighed by the danger of unfair prejudice or confusion because it is not sufficiently linked to the crime in question. Appellant has not shown a deprivation of his constitutional right to present a defense.
We hold that the circuit court did not abuse its discretion in excluding the evidence proffered by the defense.
B. Telescopic Sight
For his second point on appeal, appellant argues that the circuit court abused its discretion by permitting testimony regarding what could be seen using the telescopic sight mounted on appellant's rifle. At trial, appellant objected to the testimony of State witness Timothy Boles, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Appellant objected to Agent Boles's testimony under Arkansas Rules of Evidence 401 and 403, arguing that it goes outside what the rules allow regarding demonstrative evidence and that the conditions under which Agent Boles used the scope were different from the conditions on the night of September 16-17, 2016, because it had not been raining, and the lighting would be different in different areas. The circuit court overruled the objection, stating the it would be helpful for the jury to understand how the scope operates and that the probative value outweighed any prejudicial effect. Agent Boles testified that on August 21, 2017, he conducted a low-level light evaluation of the scope mounted to the rifle found at appellant's house. At about 10:50 p.m., he took the rifle just outside U-Pull-It Auto Salvage and positioned himself so that he was looking down a row of cars. Using a range finder to accurately measure distances, he assessed the capabilities of the scope by comparing what he could see with his unaided eye to what he could see through the scope at the same distance. He determined that he could see better with the scope than without it. On cross-examination, Agent Boles testified that the night was clear, and he could see the stars. He further testified that he was unable to say whether the results of his test would be different if he had been facing another direction, such as away from the waste-water treatment plant.
On appeal, appellant argues that the circuit court abused its discretion because Agent Boles's testimony should have been excluded under Rule 403. According to appellant, the evidence was "prejudicial and confusing because it did not replicate the circumstances for which the testimony was offered." In this case, Agent Boles did not offer any opinion or testimony regarding what appellant could see with or without the scope on the night of the shootings. The evidence was relevant to explain to the jury the functioning of the scope, and the circuit court made the considered decision that it was not unduly prejudicial. We discern no abuse of discretion in the circuit court's decision to admit Agent Boles's testimony. Therefore, we affirm on this point.
III. Rule 4-3(i) Review
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
Special Justice J. Cliff McKinney joins in this opinion.
Wood and Womack, JJ., concur in part and dissent in part.
Hart, J., dissents.
Kemp, C.J., not participating.
Ark. R. Evid. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. | [
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WAYMOND M. BROWN, Judge
Appellant appeals from his probation revocation in case number 60CR-15-396, a matter which was heard simultaneously with his bench trial on the charge of battery in the second degree of which he was convicted in case number 60CR-16-3128. On appeal, appellant argues that the circuit court (1) abused its discretion in case number 60CR-16-3128 in ruling that his counsel "opened the door" on cross-examination of appellee's witness such that the witness was allowed to testify in the form of hearsay; and (2) erred in case number 60CR-15-396 in granting appellee's probation-revocation petition because of the circuit court's erroneous "opened the door" ruling in case number 60CR-16-3128. We affirm and remand to correct the sentencing order.
On February 5, 2015, appellant was charged with felony hot-check writing as a habitual offender in case number 60CR-15-396. Appellant signed a waiver of jury trial on October 20, 2015; the waiver advised that he could receive a sentence of three to thirty years' imprisonment and a fine of up to $10,000. On April 18, 2016, appellant signed a plea statement pleading guilty to misdemeanor hot check writing for which he was advised that he could be sentenced up to 365 days in prison and a fine of up to $2,500. He was sentenced to twelve months' probation and ordered to pay $3,965 in restitution to the victim, in addition to court costs and fees. A sentencing order reflecting the same was entered on April 26, 2016.
Appellee filed a petition to revoke appellant's probation in case number 60CR-15-396 on August 17, 2016, alleging that appellant had violated the terms of his probation in the following ways:
[I]n that on July 29th he was arrested in Lonoke County and charged with Maintaining a Drug Premises, Possession of Controlled Substance with Purpose, Possession of Drug Paraphernalia, Theft by Receiving, and Possession of Firearm by Certain Person, failed to pay restitutions (Owes $3,965.00), Tested positive for THC Marijuana and Amphetamines on 06/20/2016, failed to pay court cost and fines (owes $410.00), failed to pay supervision fees (owes $75.00). The above violations occurred after she [sic] was put on probation.
A felony information charging appellant with battery in the second degree as a habitual offender in case number 60CR-16-3128 was filed on August 31, 2016. Appellant waived his right to trial by jury on December 12, 2016; the waiver advised that he could receive a sentence of up to six years' imprisonment and a fine of up to $10,000.
The parties agreed to hear appellant's revocation proceeding in case number 60CR-15-396 simultaneously with his bench trial in case number 60CR-16-3128; the matter was disposed of on February 16, 2017. Appellant was sentenced to five years imprisonment in the Arkansas Department of Correction in case number 60CR-16-3128. He was sentenced to one year in the Pulaski County jail in 60CR-15-396. The sentences from each case were to run concurrently with one another. Separate sentencing orders in each case were entered on March 30, 2017. This timely appeal followed.
Evidentiary rulings are reviewed under an abuse-of-discretion standard. Arkansas appellate courts do not reverse a trial court's evidentiary rulings absent a manifest abuse of discretion and a showing of prejudice.
Appellant's first argument is that the circuit court abused its discretion in case number 60CR-16-3128 in ruling that his counsel "opened the door" on cross-examination of appellee's witness such that the witness was allowed to testify in the form of hearsay. We do not agree.
Jeff Hooker, the victim, testified that "[w]here [appellant] hit me was-it happened so fast. Certainly the face, bloodied my nose, cracked my ribs. I do not know whether the ribs being cracked were from being punched[.]" Appellant objected. The following colloquy took place:
DEFENSE COUNSEL: Your Honor, I believe this is a testimony from a lay witness. He's trying to testify as an expert. There is no testimony from a doctor today, or there has been no testimony from a doctor saying that he's had a cracked rib. I think he's trying to testify as an expert, and they haven't laid the foundation for that.
DEPUTY PROSECUTING ATTORNEY: Your Honor, he is testifying to the injuries that he experienced, that he was treated for. He responded to a medical facility. He was treated by a doctor. I think he has first-hand knowledge as to what happened to his body.
THE COURT: Lay a foundation.
DEPUTY PROSECUTING ATTORNEY: Okay.
Immediately following this discussion, appellee shifted its questioning from the injuries Hooker suffered to the security measures in his place of business and the videotape of the incident. When Hooker was later questioned again regarding his injuries, he stated only that appellant had bloodied his nose before appellant objected to Hooker testifying to any injuries that involved a diagnosis from a doctor. Appellee noted that officers had already testified to how victim's face appeared when they encountered him and argued that "[s]urely if a lay person can notice what they saw on his face, [Hooker] can testify to what he saw on his face." The circuit court allowed Hooker to testify to what he saw. Hooker then testified as follows:
Physically, what I saw on my person as a result of [appellant] hitting me was getting punched in the face several times and then punched in the ribs. Physically, what I saw on my face that took place because of him punching me [was] well, it bloodied my nose and then I had a bruise on my, on my cheek. Here on the side here where there was a glancing, glancing blow, and then bruised, bruising on, of my ribs.
I didn't go to the doctor that day. I went to the doctor at a later date. They x-rayed me.
Appellee then asked Hooker if he was told about his injuries, and appellant objected, asserting that such testimony would be hearsay. Appellee argued that such testimony would be within an exception to the rule against admission of hearsay, and appellant asked what the exception was. The following colloquy occurred:
THE COURT: If you're going under 803(4), statements for purposes of medical diagnosis or treatment, those would be statements of this gentleman, not of the doctor.
DEPUTY PROSECUTING ATTORNEY: Yes, and he's making those statements.
THE COURT: Well, he couldn't have told the doctor that his ribs were broke without knowing that. He can testify as to pains he felt. He can testify to injuries that he saw on his own body, but he cannot testify to internal injuries because the only person that could have diagnosed that or found those are gonna be the doctor.
DEPUTY PROSECUTING ATTORNEY: It's the State's position that the statement of the doctor is made to him for purposes of the treatment of him that would fall under the rule. That's the statement made for purpose of treatment.
THE COURT: Denied.
Following this colloquy, Hooker testified in part:
I will talk about the pain that I experienced. I experienced pain that night. I experienced pain in the oncoming weeks. The type of pain I experienced was first off, being hit in the face, bruising in my face. I had trouble, difficulty breathing. If you've ever had a cracked rib, broken rib, whatever, is having difficulty breathing,
difficulty sleeping when you lay down. That was on my left side.
Appellant made no objection. Then, during Hooker's cross-examination, the following colloquy happened:
DEFENSE COUNSEL: Now, let's talk about your injuries. What treatment did the doctor prescribe to you on that date that you went and saw him?
WITNESS: Basically he did an X-ray that came back. Obviously, I had to wait for the results. He came back in. He said, "Yes, you have cracked ribs." I didn't want to talk about that a minute ago.
At the conclusion on appellant's cross-examination, appellee stated, "Your Honor, at this time [appellee] will argue that defense has opened the door to this[,]" to which the circuit court responded, "Ask away." Appellee then asked appellant what he was diagnosed with and appellant objected, stating that he "[didn't] think [he] did open the door." The circuit court responded "[a]ctually, you asked him what the doctor said to him, and he said he went to an X-ray, and the doctor came back and said his rib was cracked. So, the door is open." Hooker then testified that he did not remember if the doctor said cracked or broken ribs but that the diagnosis was "one of those two things" and that he "[understood] there was damage done to a bone in [his] body." Appellee then rested its case.
Despite objecting to any testimony from Hooker regarding the diagnosis he received from the incident between Hooker and appellant-and being sustained by the circuit court-appellant allowed Hooker to testify without objection to having cracked ribs during his direct examination by appellee and then asked Hooker to describe the treatment he received from the doctor, which necessarily included a statement of his diagnosis. Furthermore, appellant referenced Hooker's cracked rib in his motion for a directed verdict. This court cannot find error in the circuit court's ruling.
Appellant's second argument is that the circuit court erred in case number 60CR-15-396 in granting appellee's probation-revocation petition because of the circuit court's erroneous "opened the door" ruling in case number 60CR-16-3128. Being wholly reliant on a holding by this court that the circuit court erred in finding that appellant had "opened the door" to certain testimony in case number 60CR-16-3128-which we do not hold-this argument is moot. However, we note that the circuit court agreed with appellant's argument below that the charge in case number 60CR-16-3128 was not noticed as a listed basis for revocation; and therefore, it could not be used as a basis for revocation. Appellant's probation was revoked for not paying restitution and testing positive for illegal drugs; the new offense of battery in the second degree from case number 60CR-16-3128 was not a basis for revocation.
Lastly, we note that the sentencing order in case number 60CR-15-396 erroneously states that appellant entered a negotiated plea in his revocation proceedings; however, there was clearly a hearing on the same and he was found guilty. Accordingly, we remand to correct the sentencing order.
Affirmed; remanded to correct sentencing order.
Harrison and Klappenbach, JJ., agree.
The record does not state the disposition of the charges alleged in the petition.
The sentencing order in case number 60CR-16-3128 was amended twice to ultimately show that appellant was found guilty and sentenced by the court, thereby correcting errors in the two previous orders which stated that appellant pleaded guilty directly to the court and negotiated a plea of guilty, respectively.
Austin v. State , 2016 Ark. App. 194, at 5, 488 S.W.3d 555, 558 (citing Dickey v. State , 2016 Ark. 66, 483 S.W.3d 287 ).
Id.
Furthermore, this court notes that appellant failed to object to further questioning about his diagnosis at the first opportunity as he failed to object when appellee argued that appellant had "opened the door," which was effectively sustained by the circuit court. He did not object until appellee directly asked Hooker what he had been diagnosed with thereafter. The law, of course, is well settled that to preserve an issue for appeal, a defendant must object at the first opportunity. Hardman v. State , 356 Ark. 7, at 11, 144 S.W.3d 744, 746 (2004) (citing Ferguson v. State , 343 Ark. 159, 33 S.W.3d 115 (2000) ; Pyle v. State , 340 Ark. 53, 8 S.W.3d 491 (2000) ); see Lockhart v. State , 2017 Ark. 13, 508 S.W.3d 869.
Appellant raises no argument regarding the denial of his motion for directed verdict. | [
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BART F. VIRDEN, Judge
Appellant Sherry Lynne Glover appeals from a Jefferson County jury's verdict awarding no damages in her negligence claim against appellees Main Street Wholesale Furniture, LLC, and Bryan William McPike. The Jefferson County Circuit Court entered judgment accordingly and awarded appellees costs. Glover raises several points on appeal to this court: (1) the trial court abused its discretion by prohibiting her expert from giving causation testimony during redirect examination, (2) the trial court abused its discretion in allowing evidence of secondary gain, (3) the trial court prejudiced her case by not being impartial during the proceedings, and (4) the trial court erred in granting appellees' motion for costs pursuant to Arkansas Rule of Civil Procedure 68. We agree with Glover's second point; therefore, we reverse and remand for proceedings consistent with this opinion.
I. Procedural History
On March 4, 2015, Glover filed a complaint against appellees following a motor-vehicle accident that occurred on March 9, 2012. Glover's car had been sideswiped by a van driven by Bryan McPike, an employee of Main Street Wholesale Furniture. Glover's complaint alleged that McPike had violated several traffic-safety rules and that the accident had resulted in serious and permanent injuries to her neck and back and had aggravated her preexisting conditions. The appellees answered, denying the material allegations of Glover's complaint and denying that any action by McPike was a proximate cause of Glover's alleged injuries.
Before trial, Glover filed a motion in limine to exclude, among other things, anticipated testimony from Dr. Raymond Earl Peeples, Jr., suggesting that Glover's problems are psychological in nature and that she is malingering, which is another way of saying that she is motivated by secondary gain. Citing Rodgers v. CWR Construction, Inc. , 343 Ark. 126, 33 S.W.3d 506 (2000), Glover argued that such testimony would be irrelevant and that it would be more prejudicial than probative. The trial court denied Glover's motion. A jury trial was held August 22 through 24, 2016.
II. Trial Testimony
On cross-examination of Dr. Michael Courtney, a chiropractic physician presented by Glover, appellees elicited testimony from him that Bonica's Management of Pain is the primary authoritative textbook for the curriculum of the American Academy of Pain Management. Dr. Courtney agreed with a couple of quotes from the book about fibromyalgia patients and then quoted from the textbook that "in the worst cases, patients become involved with disability and compensation systems that almost ensure they will never improve." Dr. Courtney explained that "compensation systems" meant lawsuits. He testified that he did not know whether a fibromyalgia patient would never improve if that patient became involved in a claim for compensation, and he disagreed that the dominant factor for chronic-pain claims is the eligibility for compensation. Glover then testified that no doctors had ever told her that her fibromyalgia had caused her to have compensation-seeking behavior.
Dr. Peeples, although retained by appellees, was called by Glover in her case-in-chief. Dr. Peeples confirmed that he had never met or examined Glover but had only reviewed her medical records and issued a report at appellees' request. He concluded that Glover had sustained a strain resulting from the wreck on March 9, 2012, and that a strain meant there are symptoms with no change in anatomy. He said that, while most people complain of symptoms for three to six weeks following a car wreck, the symptoms last much longer in the litigant pool than in the nonlitigant pool. Dr. Peeples further testified that Glover's wreck was a sideswipe collision, which is a low-energy event. Dr. Peeples then read from the AMA Guides newsletter for chronic pain, which stated that the only individuals who complain of back or neck pain after low-energy trauma or minor trauma are people in litigation. He clarified that he was not saying that people who file lawsuits are motivated by secondary gain-he was merely quoting science. He testified that the AMA Guides newsletter also provided that the unreliability of examinee reports is especially pronounced when the examinee has filed a medicolegal claim. Dr. Peeples said that Glover theoretically had two of the four criteria for identifying a person who is malingering, but he clarified that he had no personal or medical opinion on whether Glover was malingering.
Dr. Peeples was also called by appellees in their case-in-chief. He testified that it was not necessary to examine Glover to form an opinion on diagnosis, treatment, and causation and that the scientific literature states that the independent, nonexamining physician is at an advantage for forming a causation opinion compared to the treating physician. He said that before the wreck Glover had preexisting symptoms, musculoskeletal difficulties, a fibromyalgia diagnosis, chronic-pain complaints, and multiple-level degeneration of the neck. He stated that Glover sustained a strain in the car wreck, which resolves without treatment in the nonlitigant population. On cross-examination, Dr. Peeples testified that the most common medical cause for Glover's symptoms, other than the eligibility for compensation, was a personality disorder. He clarified that he had not offered an opinion that Glover has a personality disorder but that she should be tested for such.
III. Discussion
We review the admission of expert testimony under an abuse-of-discretion standard. Corbin v. Baptist Health, Inc. , 2016 Ark. App. 212, 490 S.W.3d 317. A trial court is accorded wide discretion in evidentiary rulings, and we will not reverse absent a manifest abuse of discretion and a showing of prejudice. Peterrie Transp. Servs., Inc. v. Thurmond , 79 Ark. App. 375, 90 S.W.3d 1 (2002).
Appellees argue that Glover opened the door to secondary-gain testimony and thus waived her objection. They cite Dovers v. Stephenson Oil Co., Inc. , 354 Ark. 695, 128 S.W.3d 805 (2003), in which our supreme court held that Dovers had waived her objection to secondary-gain testimony by a vocational rehabilitation specialist. In that case, Dovers had objected to the specialist's testimony but, although her objection had been overruled, defense counsel elicited no further questions on the subject. On redirect examination, Dovers herself developed the issue on secondary gain, and on recross-examination, defense counsel questioned the specialist a second time about secondary gain with no objection by Dovers. The Dovers case is distinguishable because, here, Glover filed a motion in limine. When a pretrial motion in limine has been denied, the issue is preserved for appeal, and no further objection at trial is necessary. Allstate Ins. Co. v. Dodson , 2011 Ark. 19, 376 S.W.3d 414. Further, once the matter of admissibility has been settled, a party whose motion in limine has been denied may be the first to broach the subject of the motion during the examination of a witness without waiving the error. Burnett v. Fowler , 315 Ark. 646, 869 S.W.2d 694 (1994). Glover's argument is preserved for appellate review.
Glover asserts that defense counsel inferred that her fibromyalgia and chronic-pain syndrome were causing her to have compensation-seeking behavior, but appellees state that Dr. Peeples was only quoting science and did not express his opinion on the matter. Glover contends that Dr. Peeples's testimony suggesting that her complaints of pain could be related to a personality disorder, malingering, and secondary gain should not have been allowed. She relies on Rodgers v. CWR Constr., Inc. , 343 Ark. 126, 33 S.W.3d 506 (2000).
In Rodgers , the trial court permitted a doctor to testify regarding secondary-gain motivation. The doctor explained the concept to the jury at length and commented that a lack of objective findings, as he had observed in Rodgers's case, entered into the possibility of diagnosing someone with secondary gain. The doctor clarified on cross-examination that he was not testifying that Rodgers was malingering or that secondary gain was involved in her case. The supreme court reversed and remanded, holding that the testimony was irrelevant based on the doctor's own testimony and that, even if the testimony had some slight relevance under Ark. R. Evid. 402, the testimony should have been excluded by Ark. R. Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
We agree with Glover that the trial court abused its discretion in permitting testimony suggesting that she was motivated by secondary gain. Dr. Peeples testified that he was not expressing an opinion that Glover was malingering or had a personality disorder and that he was only quoting science when saying that the most common cause of chronic pain is the eligibility for compensation. As such, his testimony in that regard was irrelevant. To the extent the testimony had any relevance, it should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. Here, the jury may well have believed that Glover was motivated by an eligibility for compensation after all the testimony on the subject by an expert and the references to treatises and otherwise authoritative writings.
Because we reverse and remand on Glover's second point on appeal, there is no need to address the remaining points. Ga.-Pac. Corp. v. Carter , 371 Ark. 295, 265 S.W.3d 107 (2007).
Reversed and remanded.
Klappenbach and Murphy, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
This is a will-contest case. Appellant Teresa Griffith is the daughter of decedent Dorothy Grable; appellee Rick Griffith is Grable's son. Teresa sought to admit Grable's purported 2009 will to probate in the Pulaski County Circuit Court. The circuit court admitted the will to probate and appointed Teresa as executrix of the estate. Shortly thereafter, Rick filed a will contest, objection, and petition to set aside the order admitting the will to probate. During a bench trial on the matter, the circuit court granted Rick's motion for directed verdict and subsequently entered an order declaring the previously admitted will invalid and ordering the estate to proceed as if no will existed. Teresa has brought this appeal. We affirm.
I. Background
Grable passed away on June 1, 2015. Less than three months after Grable's death, on August 20, 2015, Teresa filed her petition for probate of will and appointment of personal representative. Teresa attached to her petition a copy of Grable's purported will, dated September 3, 2009. She also attached to her petition proofs of will from Betty Alred, Kimberley Shanley, and Denise Choate, dated August 19 and 20, 2015. Alred had notarized Grable's will in 2009, and Shanley and Choate had signed it as witnesses at the time.
Rick promptly filed his will contest on September 4, 2015, complaining that the order probating the will and appointing Teresa executrix had been filed without notice or service to him; that no hearing had ever been had on the petition, thus depriving Rick and his siblings of the opportunity to object; and that the will purported to leave the "great majority of the estate" to Teresa and small shares to the other siblings. Rick further alleged that the will was "not executed in all respects according to law" and that the facts and circumstances suggested evidence of undue influence, fraud, and other factors affecting the document's validity.
The circuit court conducted a bench trial on Rick's will contest. At the bench trial, the parties stipulated that Teresa had procured the will, thus shifting the burden to Teresa to establish beyond a reasonable doubt that the will was freely, willingly, voluntarily, intelligently, and knowingly executed by Grable without any undue influence on Teresa's part.
Teresa presented testimony from Alred, Shanley, Choate, and Alicia Remick. Each of these witnesses testified about Grable's character and her mental capacity at the time the will was signed. They also testified about witnessing Grable's signature. They all saw Grable sign a document, but none of them testified that the will that was offered for probate and received into evidence was identical to the document that Grable signed, nor did any of them testify that they had read the will themselves.
Teresa testified concerning the procurement, contents, and execution of the will. Concerning its procurement, she stated that she drafted the will at Grable's direction and that "word for word it is her words." Despite this contention that the will was "word for word what [her] mother said," she admitted that specific paragraphs, such as those containing boilerplate language, were not the words of Grable. She conceded that her mother "did not say those contents word for word." She said the information for the will had been taken from a computer program and that not all of the language in the document was word-for-word what her mother had said.
With respect to the contents of the will, Teresa admitted that the document contained at least three different fonts. She explained that she had no legal training, and she said that she "really [didn't] remember" everything she did in preparing the document, stating that the will was variously drafted with a laptop, a typewriter, a pencil, and a computer printer. Teresa stated that the first two pages looked like she typed them on the computer, and the last three pages had just been printed directly from the software program. She conceded that she had written the first two pages that left almost everything to her, that the first two pages that limited her siblings' inheritances did not display Grable's initials or signatures (as did the last three pages), and that those two pages were in a font that was different from the remaining pages. Teresa asserted that the handwriting and initials on the third, fourth, and fifth pages were Grable's handwriting, but she acknowledged that the notations of "N/A," for "not applicable," next to some of the paragraphs were in her own hand. She said that after she had filled out the "N/As," she handed the document to her mother to sign.
Regarding the execution of the will, Teresa said that she, Alicia Remick, Denise Choate, and Kimberly Shanley were present when Grable signed the will, and a "notary came and witnessed the signatures." After the will had been signed, Teresa put it in a manila envelope and sent it by certified mail to Grable's attorney. Teresa was unclear, however, whether it was the original of the will or a copy that she sent to the attorney, and she said she did not know what happened to the original after that day. Randy Satterfield, Grable's attorney before her death, testified that he received a will via certified mail from Teresa on September 12, 2009. He was unable to verify that the will he received in the mail was an original. He did testify that in January 2012, he went to Grable's residence to assist in the execution of a durable power of attorney. At that time, he asked her about her will, and she replied that she already had another one, which was the September 2009 will. Satterfield acknowledged that the font on pages one and two of the proffered will was different from that used on the last three and that the page numbers on all of the pages were in a different font than either of the other fonts used in the document. He also agreed that the enumerated paragraphs on the first two pages of the purported will were not initialed anywhere by Grable-including the paragraphs that substantially disinherited the other beneficiaries-although the provisions on pages three and following bore Grable's initials.
Following Teresa's testimony, Rick moved for a "directed verdict," arguing that Teresa had proved neither that the will was not procured by undue influence nor that it was a valid instrument. As to the latter point, Rick pointed out the discrepancies in the fonts in the document as well as the inconsistencies in the witnesses' testimony, noting that while one witness said she saw Teresa type the entire document on a typewriter, Teresa herself said that was not true.
The circuit court granted Rick's motion, ruling from the bench that there were two issues: one, the procurement of the will; and two, whether the will had been proved pursuant to Arkansas Code Annotated section 28-40-302 (Repl. 2012), which governs the proving of a lost will. With respect to the procurement issue, the court noted that Teresa bore the burden of proof beyond a reasonable doubt because she had procured the will. The court stated that it had "all kinds of doubt" and "tremendous doubts in the way in which this will is executed." Specifically, the court expressed great concern with the differing fonts, reiterating that there was "real doubt" about the validity of the will and finding that Teresa had not met her burden-by even a preponderance of the evidence-of showing that the will was in existence at the time of Grable's death.
With respect to Teresa's attempt to prove a lost will, the court cited the lack of testimony about the location of the original will and found that there was no proof that the will had been in existence at the time of Grable's death, saying, "It's just a fact ... that we don't know where the original will is." Citing the conflicts in the testimony as to the execution and terms of the will, as well as the fact that the proofs of will were not executed concurrently with the execution of the will, the court granted Rick's motion for dismissal. The court thus withdrew the previously admitted will and declared that the estate would be treated as though Grable had died intestate. A written order reflecting the circuit court's findings was entered shortly thereafter, and Teresa filed a timely notice of appeal.
II. Standard of Review
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 (applying de novo standard of review to an appeal following the circuit court's granting a directed-verdict motion). A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake was made. Id. We defer to the superior position of the trial court to weigh the credibility of the witnesses. Pyle v. Sayers , 344 Ark. 354, 39 S.W.3d 774 (2001).
III. Discussion
Teresa's brief raises three separate points on appeal, all of which challenge the circuit court's ultimate decision to grant Rick's motion for dismissal. First, she argues that the circuit court erred in its evaluation of the evidence presented and its assessment of the credibility of the testimony. We find no merit to this argument. We defer to the court's evaluation of the evidence under our standard of review, and we find no merit in the assertion that the court assessed the credibility of the testimony in granting Rick's motion for dismissal. Second, she argues that the circuit court misapplied the burden of proof as it applies to will contests in which one party procures the will and must demonstrate that the will was not procured through undue influence. As noted above, the parties stipulated that Teresa procured the will; therefore, her burden of proof at trial was to demonstrate that the will was not the product of undue influence. The circuit court, however, made no findings with respect to whether the will was procured by undue influence; accordingly, we have nothing that we can review on that specific issue.
In her third point on appeal, Teresa argues that the circuit court erred in finding that she did not make a prima facie case of proving a lost will. Here, the evidence clearly demonstrated that no one knew the location of the original copy of Grable's will. Teresa herself could not testify with any certainty as to the whereabouts of the original, saying that she mailed the original to Grable's lawyer, that she retained the original, and that she did not know the location of the original. Attorney Satterfield testified that he received "a" will from Teresa, but he did not aver that it was the original will. Thus, the circuit court correctly determined that it had to decide whether Teresa met her burden under the statute governing the proving of a lost will.
Arkansas Code Annotated section 28-40-302, which deals with proving a lost or destroyed will, provides as follows:
No will of any testator shall be allowed to be proved as a lost or destroyed will unless:
(1) The provisions are clearly and distinctly proved by at least two (2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness; and
(2) The will is:
(A) Proved to have been in existence at the time of the death of the testator, or
(B) Shown to have been fraudulently destroyed in the lifetime of the testator.
Ark. Code Ann. § 28-40-302.
Under this statute, Teresa, as the proponent of a lost will, had to prove two things: first, the will's execution and its contents by strong, cogent, and convincing evidence; and second, that the will was still in existence at the time of Grable's death (i.e., had not been revoked by her) or was fraudulently destroyed during Grable's lifetime. See Whatley v. Estate of McDougal , 2013 Ark. App. 709, at 3-4, 430 S.W.3d 875, 878 ; Abdin v. Abdin , 94 Ark. App. 12, 223 S.W.3d 60 (2006). The burden of proof to establish the execution and contents of a lost will is on the party who claims under it. Porter v. Sheffield , 212 Ark. 1015, 1017, 208 S.W.2d 999, 1001 (1948).
We note that the statute is written in the conjunctive: that is, the proponent of the will (i.e., Teresa) must prove both the execution and contents of the will and that the will was in existence at the time of the testator's death. See, e.g. , Smith v. Farm Bureau Mut. Ins. Co. of Ark. , 88 Ark. App. 22, 33, 194 S.W.3d 212, 220 (2004) (noting that when a phrase is conjunctive, it requires proof of both clauses). Here, the circuit court found Teresa's proof as to the execution and contents of the will to be lacking, and we are unable to say that this conclusion was clearly erroneous.
We find there was no strong, cogent, or convincing evidence about the circumstances under which the will was produced-it may have been typewritten, handwritten, or printed from a computer. There was no strong, cogent, or convincing evidence to explain the discrepancies in the fonts used in the document. There was no strong, cogent, or convincing evidence that excluded tampering with the document and its testamentary provisions. None of the witnesses testified that they read the will themselves, and only Alicia Remick testified that she observed Grable read the will. The evidence that were introduced showed only that the witnesses saw Grable sign a document, and none of the witnesses testified that the document that was introduced at trial was identical to the document they saw Grable sign. Thus, in the absence of proof of one of the necessary elements to prove a lost will, we cannot say that the circuit court erred in finding that Teresa failed to prove both the execution and contents of the will.
Affirmed.
Gladwin and Brown, JJ., agree.
Grable also had two other sons and two stepsons.
The will devised the bulk of Grable's estate to Teresa, with two parcels of property left to one of her sons and small amounts of cash to the other sons and stepsons.
Rick's motion was properly a motion to dismiss, not a motion for directed verdict. Arkansas Rule of Civil Procedure 50(a) provides that "[i]n nonjury cases a party may challenge the sufficiency of the evidence at the conclusion of the opponent's evidence by moving either orally or in writing to dismiss the opposing party's claim for relief." Nonetheless, the circuit court must use the same legal standard in evaluating a motion to dismiss as it would in evaluating a motion for a directed verdict. The court must decide "whether, if it were a jury trial, the evidence would be sufficient to present to the jury." Woodall v. Chuck Dory Auto Sales, Inc. , 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). If the non-moving party has made a prima facie case on its claim or counter-claim, then the issue must be resolved by the finder of fact. Swink v. Giffin , 333 Ark. 400, 402, 970 S.W.2d 207, 208 (1998).
We note that other cases apply a different standard of review in probate cases in which the circuit court granted a motion to dismiss or a motion for directed verdict. See Higginbotham v. Graham , 2013 Ark. App. 397, 2013 WL 3088995 (standard of review for a Rule 50 dismissal was whether, if the matter had been a jury trial, the evidence would have been sufficient to go to a jury); Stanley v. Burchett , 93 Ark. App. 54, 216 S.W.3d 615 (2005) (same). Under either standard of review, however, our decision would be the same.
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DAVID M. GLOVER, Judge
Jessica Brown appeals the Saline County Circuit Court's decision to award permanent custody of her daughters, J.K.1 and J.K.2, to their father (Jessica's ex-husband), Claude Kirby, and to close the Arkansas Department of Human Services (DHS) case with respect to J.K.1 and J.K.2. On appeal, Jessica argues (1) she did not fail to protect her daughters and in fact took appropriate measures to keep them from harm, and (2) DHS failed to prove Claude was a fit and appropriate parent for placement of their daughters. We affirm the circuit court's award of permanent custody to Claude.
Procedural Background
Jessica is currently married to Jacob Brown, and together they have a son, S.B.; Jacob also has a daughter, I.B., from a previous relationship. On January 23, 2017, DHS filed a petition for emergency custody of S.B., J.K.1, and J.K.2. The affidavit attached to the petition noted Jessica and Claude shared joint custody of J.K.1 and J.K.2 pursuant to their divorce decree, with Jessica as the primary custodian; it sought an emergency order removing the girls from Jessica's custody and leaving them in Claude's custody, as he was fit and appropriate; and it asserted continuing legal custody with Jessica presented an immediate danger to the health or physical well-being of the children.
On January 18, 2017, according to the affidavit, I.B. reported Jessica and Jacob had gotten into an altercation about selling Jacob's prescription medication; I.B. stated Jacob sold his prescription medicine and gave I.B. one of his prescription pills to "calm her down"; Jessica and Jacob both denied I.B.'s allegations; and J.K.1 and J.K.2 confirmed Jessica had dropped Jacob off to "get money," and they had driven around the corner to wait for him.
On January 19, Jacob reported he had been arrested the night before for assault on a family member and was currently incarcerated at the Saline County Detention Center. In an interview with a family-service worker, Jacob explained he and Jessica had a verbal altercation, and he had "accidentally" slapped her as she was trying to call the police after he threatened suicide over concerns he might lose I.B. Jacob said I.B. and S.B. were present in the home during the altercation but were sleeping, and J.K.1 and J.K.2 were with Claude at the time of the altercation. Jessica reported Jacob had brandished a gun and threatened suicide, and while I.B. and S.B. did not witness Jacob hit her, they were awake and witnessed Jacob with the gun. When asked about her plan to protect the children from Jacob, Jessica stated Jacob would go to rehabilitation, although none was court ordered. At that time, Jessica refused to obtain an order of protection, stating Jacob did not mean to hurt her, he would not hurt the children, and she could not take time off work to obtain an order of protection. DHS concluded Jessica was unable to provide for the safety of the children, noting she had previously been ordered to limit J.K.1 and J.K.2's contact with Jacob due to his history of violence and drug use. The affidavit asserted J.K.1 and J.K.2's health and safety were in danger due to the allegations involving failure to protect, substance misuse, inadequate supervision, and parental unfitness.
Ex parte emergency orders of custody were entered on the same day, and J.K.1 and J.K.2 were ordered to remain in Claude's custody, with Jessica having only supervised visitation pending further hearings. A probable-cause order was filed on February 24, 2017, finding there was probable cause the emergency conditions that necessitated removal of all three children continued and continuing custody of S.B. with DHS and J.K.1 and J.K.2 in the custody of their father.
All three children were adjudicated dependent-neglected in an order filed on April 24, 2017; Jessica stipulated to the finding that the children were dependent-neglected. The circuit court found by a preponderance of the evidence the allegations were true. Specifically, it found Jacob had given I.B. two of his prescription Klonipin pills; he had brandished a handgun and threatened to kill himself in front of Jessica; he had forced I.B. and S.B. into a closet; he had then broken down a door to a room where Jessica, I.B., and S.B. had fled; and he then barricaded himself in a bathroom, still threatening to kill himself, until law enforcement arrived. The adjudication order stated the goal for J.K.1 and J.K.2 was to maintain them in Claude's home, with Jessica to have supervised visitation.
A review order, filed on July 26, 2017, found returning joint custody to Jessica was contrary to J.K.1 and J.K.2's welfare, and continuation of sole custody with Claude was in the girls' best interests. The review order noted that Claude had complied with the case plan in that he had maintained the girls in his home, seen to their needs, and was cooperating with DHS.
An agreed order for trial placement in Jessica's home for J.K.1 and J.K.2 was filed in August 2017, but the trial placement ended two days after it began because Jacob returned to the home under the influence of drugs and frightened the girls. At the time Jacob came home, Jessica had put S.B. to bed and had fallen asleep with him; the girls were alone in the living room. Claude filed a motion for permanent custody on September 6, 2017, alleging there had been a material change in circumstances and it was in the best interest of the girls for permanent custody to be placed with him, with Jessica's visitation to be under the circuit court's strict guidelines.
After a review hearing on October 2, 2017, the circuit court entered an order awarding Claude permanent custody of J.K.1 and J.K.2 and closing the case as to them. The circuit court found J.K.1 and J.K.2 could not return to Jessica's custody because she could not protect their health and safety, and it was in the girls' best interest for Claude to have custody. The circuit court noted its concerns about Jessica's ability or willingness to provide necessary supervision to protect the girls from harm and expressed its concerns about Jacob's drug use; Jacob being under the influence of drugs in the girls' presence with Jessica's knowledge; and Jessica's judgment, or lack thereof, and how it would affect her future relationships with Jacob and the girls. The circuit court squarely rejected Jessica's argument that if S.B. was safe with her, J.K.1 and J.K.2 would also be safe, pointing to the August incident in which Jessica was with S.B. and he was safe, but J.K.1 and J.K.2 were exposed to unsupervised contact with Jacob while he was using drugs and were not safe. Jessica was awarded reasonable visitation, but Jacob was ordered not to have any contact with the girls. The circuit court specifically found Claude had complied with the case plan and court orders, as he had been a stable and appropriate placement for the girls during the case. Jessica filed a timely notice of appeal from this order.
October 2, 2017 Review-Hearing Testimony
DHS caseworker Rose Farquhar testified it was DHS's position S.B. could be safely returned to Jessica's custody because Jessica had stated she planned to file for divorce from Jacob, who was now in long-term rehabilitation. She also noted Jessica removed herself from the home she shared with Jacob after the January 2017 incident. Farquhar explained a trial home placement was attempted for J.K.1 and J.K.2 with Jessica on a Friday in August; on Saturday, the girls witnessed Jacob under the influence of some substance, slurring his words, and falling over the furniture; J.K.1 was especially fearful of this behavior from Jacob; and while DHS had assured her everything was okay, the girls were exposed to this behavior after only one day of being with Jessica. Jessica explained to Farquhar that she had gone to lay S.B. down and had fallen asleep with him, and the girls had witnessed Jacob's behavior in the living room at that time. Farquhar admitted on cross-examination the girls did not tell Jessica about the incident until Sunday, and Jessica contacted Farquhar at that time.
Farquhar was unaware Jessica did not have the money to file for divorce from Jacob; she said Jessica told her she was not going to be around Jacob because she did not want to jeopardize her chances to be with her children. Farquhar admitted Jessica had moved out of the house when Jacob relapsed, but Farquhar still recommended that permanent custody of the girls be placed with Claude because with Jessica's not knowing when Jacob would come home the weekend of the trial placement, she should have been with the girls, especially due to J.K.1's anxiety about returning home and being around Jacob. Farquhar was concerned that if Jacob returned from rehabilitation and Jessica had not divorced him by that time, he would be allowed to return to the home; she believed the family ultimately had always wanted to remain together. Farquhar defended the decision to attempt a trial placement, stating Jessica and Jacob had done everything asked of them, and there was no indication Jacob had begun using drugs again until the trial placement. Farquhar stated it should have been a red flag for Jessica that Jacob did not come home on the Friday night of the trial home placement, and she believed Jessica should have been "a little bit more aware" of the girls because they had suffered the most trauma over Jacob's drug use and were scared when they saw him under the influence. Farquhar testified the girls were stable with Claude and were doing well in school.
Jessica testified she had done everything DHS had asked her to do. She explained that on the Friday night of the trial placement, Jacob got mad at her because she went into Claude's home to look at J.K.2's room; Jacob did not come home that night; but he came home the next morning. According to Jessica, Jacob went out Saturday night and came back home around 10 p.m. and was fine; she went to put S.B. down and fell asleep; when she awoke, she checked on the girls; J.K.1's stomach was hurting, and I.B. said she could not sleep. Jessica testified the girls did not tell her about Jacob until Sunday night, but they could not tell her why they waited so long to tell her. Jessica said Farquhar had told her Jacob could move back into the house, but when he did, she moved in with her mother so she would not jeopardize her children. Jessica testified she wanted the custody arrangement to go back to joint custody with her being the primary custodian. She explained she wanted a divorce but could not afford to pay for it. She testified that she did not intend to get back together with Jacob when he got out of rehabilitation, and it depended on whether he maintained sobriety and established a home as to whether she had contact with him. She knew her girls did not want to be around Jacob, and she was willing to do whatever it took to keep them away from him. However, Jessica admitted she owned a home with Jacob, both were on the mortgage, and he had the right to enter the home any time he wanted to do so. Jessica reiterated she did not believe she would stay with Jacob at this point, but she had hopes Jacob would have months of stability and sobriety so he could be the father he needed to be.
Boyce Barger, the girls' counselor, testified J.K.1 is a highly anxious child who had several anxiety-related episodes over the last few months, and he believed if she were put in a situation where she felt caught between her mother and father, it would be devastating to her. Barger said the girls had not voiced an opinion about wanting to go back to the prior custody arrangement, but the girls love both parents and want to see both of them. However, it was Barger's opinion that custody should be placed with Claude Kirby. He based this opinion on the fact Jacob and Jessica did not have a good understanding about the egregious nature of what had brought the children into DHS custody, and they tried to minimize their conduct and attempted to create a moral equivalency between what Jacob had done and what they alleged Claude had done, such as "flipping them off" at a ballgame. Barger also was concerned about the January 2017 incident where Jacob had a gun, but Jessica did not remove herself from the situation and continued to live with Jacob. Barger was of the opinion the girls were safe and secure with Claude, and there was a reduction in J.K.1's stress when she was at Claude's home. Barger's greatest concern was that the girls be in a safe and nurturing environment, and he stated that change at this point could create more anxiety for J.K.1.
Claude Kirby testified the girls were doing well in school. He admitted he had trust issues with Jessica, as she had previously assured him she was "done with" Jacob and they were getting divorced, only for them to be attempting to work things out the following week. Claude stated he and his wife had provided the girls with a stable home, and they had invited Jessica over to "hang out" with the girls, which she had done on a few occasions. He testified that if he received sole custody, he would like for Jessica to be able to see the girls, but he had concerns about Jacob.
Janna Kirby, Claude's new wife, testified they had been married about six months. She said her relationship with the girls is very positive.
The circuit court stated its primary concern was Jacob's repeated substance abuse and his behavior when he was impaired and, to a lesser but significant extent, about Jessica's judgment regarding her future relationship with Jacob and the potential impact it has on the children. The circuit court made it clear it was not ruling on Claude's motion for permanent custody but was ruling instead on DHS's petition. The circuit court then placed permanent custody with Claude subject to reasonable visitation by Jessica and no contact with Jacob during those periods of visitation. The circuit court then closed the case with respect to J.K.1 and J.K.2.
Standard of Review
In juvenile proceedings, our standard of review on appeal is de novo, and we do not reverse unless the circuit court's findings are clearly erroneous. Wheatley v. Arkansas Dep't of Human Servs. , 2016 Ark. App. 438, 503 S.W.3d 86. 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. Due deference is given to the superior position of the circuit court to view and judge the credibility of the witnesses. Metcalf v. Arkansas Dep't of Human Servs. , 2015 Ark. App. 402, 466 S.W.3d 426. This deference is even greater in cases involving child custody, as a heavier burden is placed on the judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Thomas v. Arkansas Dep't of Human Servs. , 2012 Ark. App. 309, 419 S.W.3d 734.
Discussion
Jessica first argues she did not fail to protect her daughters and, in fact, took appropriate action to keep them safe from harm. She points to her testimony she was not in a relationship with Jacob, she simply did not have the funds to divorce him. She argues that although J.K.1 and J.K.2 saw Jacob intoxicated, they were not harmed or threatened by Jacob, and they did not seek her out to tell her what had happened. After the girls told her about the incident, Jessica reported the situation and removed the children from the home. She contends putting S.B. to bed and falling asleep with him is not a lack of judgment worthy of removal of custody.
Jessica places much weight on the fact that the girls were not harmed or threatened with harm. However, she ignores the history of the case, where Jacob had brandished a gun and threatened to kill himself, and the fact that the girls, J.K.1 more than J.K.2, had suffered great anxiety while in her custody due to Jacob's actions. While Jessica stated she was not in a relationship with Jacob and did not intend to have a relationship after he completed rehabilitation, the circuit court was not required to believe this testimony, and it could certainly take note of the fact that Jessica could not even bother to take time off from work to obtain an order of protection after the January 2017 incident.
Arkansas Code Annotated section 9-27-334(a)(2)(A) (Repl. 2015) provides that if a juvenile is found to be dependent-neglected, the circuit court may enter an order transferring custody of the juvenile to a relative or other individual if it is in the best interest of the juvenile. Here, Boyce Barger, the girls' counselor, testified it was in their best interest for custody to remain with Claude because it was more stable for them. Jessica is asking our court to reweigh the evidence more heavily in her favor, which we will not do. The circuit trial court's decision to place permanent custody with Claude was not clearly erroneous.
Jessica next argues DHS did not prove Claude was a fit and appropriate parent for the girls. DHS only had to prove it was in the children's best interest to transfer custody to Claude. Ark. Code Ann. § 9-27-334(a)(2)(A). Claude and Jessica had joint custody prior to DHS becoming involved. There was no evidence presented to counter the evidence that the girls had been with their father for an extended period of time and were stable and doing well in school while in his custody. Furthermore, it was the opinion of the girls' counselor that Claude should have permanent custody because it was in the girls' best interest. The circuit court's decision was not clearly erroneous.
Affirmed.
Gladwin and Whiteaker, JJ., agree.
Although other children were involved in this case, the present appeal only concerns J.K.1 and J.K.2, Jessica's children with Claude Kirby.
This order also placed S.B. in Jessica's custody, finding that to be in S.B.'s best interest. S.B.'s custody is not an issue in this appeal. | [
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DAVID M. GLOVER, Judge
Marianne Young appeals from the February 17, 2017 order and decree in favor of Robin and James Bird. Specifically, the trial court reaffirmed a 1986 chancery court decree that Grist Mill Road ("GMR") is a public road and that no individual shall interfere with the right of the public to use the road. Marianne raises two points of appeal: The trial court erred in granting the Birds' motion for a "directed verdict" because 1) there was substantial evidence that the public use of GMR had been abandoned and 2) there was substantial evidence that the Birds had changed the use of GMR from residential to commercial and imposed burdens on it that destroyed the purpose for which it was normally and generally used. We affirm.
Litigation History
In 1986, Elizabeth Richardson filed a case against Marianne Young and her sister, Jeanne Hutchinson, when the sisters put a gate across GMR. The gate blocked Richardson from accessing her property on the road-property she used only occasionally to camp. In the 1986 case, the trial court entered a decree in Richardson's favor, finding in pertinent part that "[t]he court doth find that said road extending from the highway southwesterly to the brow of the mountainside and thence west is a public road and the defendants are permanently enjoined from placing a gate across the road, or in any way interfering with traffic along said road." The order was binding on the parties, their heirs, and assigns.
Trial Testimony
According to Marianne's testimony, between entry of the 1986 decree and 2011 when the Birds purchased their property on GMR, the road was used "exclusively as a residential driveway" to access the properties located along the road. It is undisputed the Birds do not live on their property; instead, they rent the property to others for use as an event venue for weddings, parties, and other similar gatherings. Marianne filed her original complaint against the Birds on July 24, 2015, seeking a cease and desist order for any use of GMR for commercial purposes. She subsequently amended her complaint to also allege nuisance, but the amended complaint was nonsuited on Marianne's motion at trial. It was also specifically abandoned as a claim in her March 13, 2017 notice of appeal.
At the bench trial of this case, Marianne presented extensive evidence. Officer Phillip Rappold testified about a one-time incident in which he had to back down the road because of three oncoming vehicles. He was not able to identify where the vehicles had come from.
Jimmy Hart, the county judge, knew of GMR's existence and where it was located. He had never been down the road and knew nothing of its width, surface, or ditches. He testified that the county does not maintain the road, but further explained that just because a county does not maintain a road does not mean that it is not a public road. He classified GMR as a "public access road."
Marianne testified on her own behalf. Her house is the first one on GMR. She stated that, "since 1993 [which she subsequently changed to 1986], GMR has only been used as a residential driveway." She testified that the first time she had seen the 1986 decree was "just this past year," but she acknowledged her now deceased husband, James K. Young, was also her attorney in the earlier lawsuit. Marianne stated that the mailboxes for houses located on GMR are all located on Highway 154, and no school buses travel on GMR. She said since the Birds purchased the property from the Slaughter family, use of the road had changed, with more traffic and more people who did not know about the road and its pull-offs. She did not know how frequently there was extra traffic on the road because she "does not get out and about that much," but that "it almost seems like every time [she does, she] meets somebody" on the road. She did not know how to average those occurrences and testified she usually left home only about twice a week. She said the Birds' business had "caused a greater use on the road than when the Slaughters had the property." She said she has had to back up to avoid being run off the road, and she was told an emergency vehicle trying to reach her house when she broke her leg had trouble getting to her, but she did not know that of her own personal knowledge. She did not know how many people usually attend the weddings or other events on the Birds' property, and she did not know how many times the Birds had rented the property since December 2011.
Appellee Robin Bird testified as part of Marianne's case-in-chief. She stated she did "not have any idea how much extra traffic" the events held on her property caused on the road or if having the events changed the use of GMR. She explained there are six pull-offs on the road, and in some areas it is wide enough to pass vehicles.
Don Higgins, Marianne's son and a resident along GMR, testified that since the Birds' business began, "the amount of traffic has increased manifold" with wedding attendees, vacationers, cleaning crews, suppliers, and service providers. He said the attendees come and go multiple times, and a lot of trucks pull trailers down the road. He testified the ditches have been filled in, causing drainage problems; the traffic continues until the wee hours of the morning; and he had called the police three or four times because of noise and a vehicular incident.
Kimberly Darling testified that since the Birds bought the property, the difference in the traffic is significant. She said it has created a sense of a lack of security, and she has had trouble with encountering guests and customers on the road. She stated normal residential traffic up and down the lane might be half a dozen vehicles a day, but now there may be days when there are thirty, forty, or fifty vehicles traveling up and down the road. She acknowledged that level of traffic does not occur every day and that it could be for weekend events. She acknowledged that the majority of the events had probably on the weekends but that there were also times when there was weekday traffic.
At the close of Marianne's case, the Birds moved for a "directed verdict," which was granted by the trial court. The resulting decree was entered on February 17, 2017.
Standard of Review
Because this was a bench trial, the motion made should technically have been to dismiss, rather than for a directed verdict. However, both motions fall under Arkansas Rule of Civil Procedure 50(a) and are very similar in nature. In evaluating the nonmoving party's case, the trial court does not exercise fact-finding powers that involve determining questions of credibility or of the preponderance of the evidence. Swink v. Giffin , 333 Ark. 400, 970 S.W.2d 207 (1998) (quoting George Rose Smith in Brock v. Bates , 227 Ark. 173, 297 S.W.2d 938 (1957) ). To determine whether the plaintiff has presented a prima facie case, the trial court must view the evidence in the light most favorable to the nonmoving party and give the evidence its highest probative value, taking into account all reasonable inferences deducible from the evidence. First United Bank v. Phase II , 347 Ark. 879, 69 S.W.3d 33 (2002). If the evidence, viewed in the light most favorable to the nonmoving party, is not substantial, the trial court should grant the defendant's motion for directed verdict [motion to dismiss]. Id. Evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other or if it does not force a conclusion to pass beyond suspicion or conjecture. Id.
Discussion
For her first point of appeal, Marianne contends the trial court erred in granting the Birds' motion because there was substantial evidence to demonstrate that the public use of GMR had been abandoned. We disagree.
Marianne has had a long history with this area. Her parents bought the property she now owns in 1946. For our purposes, however, the starting point is the 1986 decree, which found GMR is a public road. No appeal was taken from the 1986 decree. Marianne contends the testimony presented in the present case establishes that since entry of the 1986 decree, GMR has been abandoned as a public road because it "has been used only as a residential driveway for families, visitors, utilities, delivery services, and maintenance services." She further relies on her testimony that the mailboxes are all located on Highway 154 and that no school buses use GMR. She claims that until the Birds' purchase in 2011, GMR "has not been used by the public to access anything." She and other residents along the road testified that until 2011, the use of GMR was exclusive to the residents of the road, although they recognized that UPS, FedEx, utility, maintenance, and other service vehicles used the road to access various residences located along it.
Marianne further contends that the testimony and evidence presented in her case demonstrated the intent to abandon public use, either "by presumption or implied intent." In support of this contention, she noted testimony and photos presented through her son, Don Higgins, showing a "sign right at the start of Grist Mill Road that says, 'Private drive no outlet.' " She argues that placement of the sign was an act inconsistent with the future right to use GMR as a public road; however, no time frame was assigned to the sign's installation. She concludes her first point by arguing that the evidence was of sufficient force and character either to compel the conclusion that the public use of the road had been abandoned for seven years or to raise a factual question on that issue. We are not convinced.
Here, the trial court based its decision primarily on the 1986 decree, which found GMR was a public road. The public's right to use a road that has been acquired by prescription can be abandoned by nonuse, accompanied by an express or implied intention to abandon, or by acquiescence to, or tolerance of, the obstruction of passage. See Wallace v. Toliver , 265 Ark. 816, 580 S.W.2d 939 (1979) ; Arkansas State Hwy. Comm'n v. Hampton , 244 Ark. 49, 423 S.W.2d 567 (1968) ; Mount v. Dillon , 200 Ark. 153, 138 S.W.2d 59 (1940).
Marianne presented her evidence in an effort to establish that the public had abandoned its use of GMR after the 1986 decree was entered and before the Birds purchased their property in 2011. However, she did not present substantial evidence to show that the public's use of the road between 1986 and 2011 was significantly different from its use preceding the 1986 decision. Moreover, the photograph of the sign stating the road was private and had no outlet proved nothing because no one ever established a time frame for it, and it did not obstruct use of the road in any fashion. For the testimony concerning lack of use by postal trucks and school buses to prove anything, Marianne needed to establish that those types of vehicles had used the road before 1986. She did not. Further, there was abundant testimony that UPS, FedEx, maintenance vehicles, visitors, and utility trucks continue to use GMR to access the residences located along it. The county judge essentially testified the county does not maintain the road, but further explained that just because a county does not maintain a road does not mean that it is not a public road. In fact, at one point in his testimony, he classified GMR as a "public access road." In short, viewing the evidence in the light most favorable to Marianne and giving the evidence its highest probative value, taking into account all reasonable inferences deducible from the evidence, we cannot conclude it was sufficient to present a prima facie case that GMR's public use had been abandoned.
For her remaining point of appeal, Marianne contends there was substantial evidence that the Birds changed the use of GMR from residential to commercial and imposed burdens on the road that destroyed the purpose for which it was normally and generally used. We disagree.
As with Marianne's first point, we begin with the 1986 decree in which GMR was found to be a public road. In Westlake v. Duncan, Dieckman & Duncan Mining Co. , 228 Ark. 336, 307 S.W.2d 220 (1957), our supreme court acknowledged the reason and logic of recognizing there should be a limit to the burden that can be placed even on a public highway. The court considered the issue of whether a public roadway that had been established by prescription, and over which pedestrians, wagons, and automobiles had passed for several years, had undergone such a change of use with heavy trucks hauling manganese ore over it as to constitute the level of extra burden that would allow prohibition of the trucks. The supreme court conceded for the purpose of its opinion that the appellee's usage of the road amounted to an increased burden, but, as acknowledged by Marianne, the court concluded it was not enough of an increased burden to justify the landowner closing the roadway. In discussing the issue, the court explained in part:
Once highways have been acquired by prescription for public use, they should be open for all uses reasonably foreseeable. This thought is expressed by Elliott on Roads and Streets, 4th Edition, Vol. 1, page 14, where it is stated that roads generally used by the citizens of a locality, but open to the general public, are public roads, although they may afford facilities for travel to only such persons as reside in the neighborhood and may not be useful to the general public. It is, however, essential that such a road should be one open to the public, and free and common to all citizens.
Id. at 338-39, 307 S.W.2d at 222.
Here, viewing Marianne's change-of-use evidence in the light most favorable to Marianne as the nonmoving party, we find it is not of sufficient force or character to constitute substantial evidence and thereby survive the Birds' challenge. As in Westlake , even if we were to concede for purposes of this opinion that the Birds' use of GMR increased the burden, the evidence would not be sufficient to present a prima facie case that the increased burden destroyed the purpose for which the public road was normally and generally used.
Affirmed.
Gruber, C.J., and Harrison, J., agree.
The Birds should have moved to dismiss, rather than move for directed verdict, because the case was being tried by the court and not a jury. See Rymor Builders, Inc. v. Tanglewood Plumbing Co., Inc. , 100 Ark. App. 141, 265 S.W.3d 151 (2007). | [
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Following the hearing, the trial court granted the termination petition. The order states, "The mother was served pursuant to Rule 5, specifically the mother was served by her counsel Terry Jones[.]" The court found that DHS proved by clear and convincing evidence all the statutory grounds alleged in its petition, and the court considered the likelihood that the children would be adopted and the potential harm to the children's health and safety if they were returned to their parents.
II. Applicable Law
The controlling statute requires that the petitioner, DHS, shall serve the petition to terminate parental rights as required under Rule 5 of the Arkansas Rules of Civil Procedure so long as the parent, Tiffany, was personally served at the initiation of the proceeding. Ark. Code Ann. § 9-27-341(b)(2)(A)(i)(a) . The parties do not dispute that Tiffany was personally served with the original petition, and this was found in the circuit court's probable cause order of March 10, 2016. The question then becomes whether Tiffany was properly served through her attorney pursuant to Rule 5.
Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Wilburn v. Keenan Cos. , 298 Ark. 461, 768 S.W.2d 531 (1989) ;
Edmonson v. Farris , 263 Ark. 505, 565 S.W.2d 617 (1978). The same reasoning applies to service requirements imposed by court rules. Proceedings conducted where the attempted service was invalid render judgments arising therefrom void ab initio. Halliman v. Stiles , 250 Ark. 249, 464 S.W.2d 573 (1971) ; Edmonson , [supra ]. Actual knowledge of a proceeding does not validate defective process. Tucker v. Johnson , 275 Ark. 61, 628 S.W.2d 281 (1982).
Carruth v. Design Interiors, Inc. , 324 Ark. 373, 374-75, 921 S.W.2d 944, 945 (1996).
Rule 5 of the Arkansas Rules of Civil Procedure provides in pertinent part:
(a) Service: When Required. Except as otherwise provided in these rules, every pleading and every other paper, including all written communications with the court, filed subsequent to the complaint ... shall be served upon each of the parties.... Any pleading asserting new or additional claims for relief against any party who has appeared shall be served in accordance with subdivision (b) of this rule.
....
(b) Service: How Made.
(1) Whenever under this rule or any statute service is required or permitted to be made upon a party represented by an attorney, the service shall be upon the attorney....
(2) Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail or commercial delivery company at his last known address or, if no address is known, by leaving it with the clerk of the court.... When service is permitted upon an attorney, such service may be effected by electronic transmission, including e-mail, provided that the attorney being served has facilities within his or her office to receive and reproduce verbatim electronic transmissions. Service is complete upon transmission but is not effective if it does not reach the person to be served.
In Brown , 2013 Ark. App. 201, at 3-4, this court analyzed whether the appellant had been properly served with a petition to terminate his parental rights under the governing statute. After determining that DHS's attempt to serve Brown by mail at his parents' address in Idaho was not sufficient under Rule 4, we analyzed DHS's service of the petition to terminate on Brown's attorney under Rule 5 as follows:
Rule 5 partly states,
Service by mail is presumptively complete upon mailing.... When service is permitted upon an attorney, such service may be effected by electronic transmission, including e-mail, provided that the attorney being served has facilities within his or her office to receive and reproduce verbatim electronic transmissions. Service is complete upon transmission but is not effective if it does not reach the person to be served.
Ark. R. Civ. P. 5(b)(2) (2012).
Brown's lawyer told the circuit court that he had looked in his files and emails and could not find any proof that he had received the petition. The burden then shifted to DHS to establish effective service. DHS, as petitioner, did not carry its heavy burden to establish the statutorily-mandated service requirement. Assuming that Rule 5 service was available to DHS under the statute, DHS did not state by what method Brown's lawyer was served with a petition; it did not produce any testimonial or documentary proof to support its contention that service on Brown's lawyer was actually attempted in the first place-whether by mail, fax, or email. Instead, DHS argued that Brown had waived a service objection. Brown did
not waive his insufficient-service objection because he raised it when the hearing on the petition to terminate began, and the circuit court ruled on the issue.
DHS's argument that Brown's attorney knew about the termination petition for months does not make a legal difference because his awareness of this case cannot cure a service defect. Carruth , 324 Ark. at 375, 921 S.W.2d at 945. DHS also contends that any service-related error was harmless. We disagree. Proper service of legal process is required to vest the circuit court with the power to decide the dispute in the first place; a mistaken exercise of this power is never harmless.
Brown , 2013 Ark. App. 201, at 5-6.
III. Discussion
Tiffany argues that she moved to continue the case because neither she nor her attorney had received the petition for termination of parental rights. She argues that she did not contest that DHS showed that they had emailed it to her attorney, but she disputes that it was received. She claims that she would have been eligible for parole within a short time after the hearing, and had the continuance been granted, she would have been able to show the court an accepted parole plan. She also contends that while the date of the hearing had been agreed on, her counsel disputed that the petition had actually been served, and the burden of proof was on DHS to show that it had been received by the attorney.
She cites Rule 5's provision that "service is complete upon transmission" by email, "but is not effective if it does not reach the person to be served." She claims that DHS's argument that she and her counsel knew about the termination proceeding did not overcome improper service. She argues that DHS did not show that the transmission had been received by her counsel and, as such, the continuance should have been granted.
We agree and hold that DHS failed to carry its burden of proving that the petition to terminate parental rights was effectively served. We do not accept DHS's argument that Brown , supra , is inapplicable because Tiffany failed to argue that service was defective under Rule 5. Rule 5 was the basis of Tiffany's argument, and the trial court relied on Rule 5 when it found that Tiffany was served through her attorney. Similarly, we disagree with DHS's argument that the petition for termination of parental rights was no surprise to Tiffany and therefore she had no basis to seek a continuance. As stated in Brown , awareness of the case cannot cure a service defect. Because DHS failed to prove that it procured effective service of the petition to terminate parental rights, we reverse the trial court's decision to terminate parental rights. Accordingly, we do not address Tiffany's second point for reversal.
Reversed.
Whiteaker and Brown, JJ., agree. | [
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DAVID M. GLOVER, Judge
Appellee City of Mountain Home, Arkansas ("Mountain Home" or "City"), provides water to appellant Northeast Public Water Authority of the State of Arkansas ("NPWA" or "Buyer") pursuant to a 2012 wholesale water purchase agreement ("contract"). This 2012 contract replaced the thirty-year contract that had been in effect since 1982. On November 4, 2015, NPWA filed a complaint in the Baxter County Circuit Court against Mountain Home, alleging Mountain Home breached the 2012 contract by improperly calculating the rates charged to NPWA. Mountain Home denied breaching the contract, asserting the contract spoke for itself and contending the parties had established through both the previous contract and the present contract a price calculation that had become established and agreed to by the parties.
At issue is paragraph 2 of the contract, which sets the purchase price for the water NPWA buys from Mountain Home and provides as follows:
2. Water Purchase Price. City shall sell all potable water purchased by Buyer hereunder at a price per thousand gallons that is equal to Buyer's share of City's actual expenses incurred in connection with the City's production and delivery of the water to the Buyer which expenses include, without limitation, costs associated with the City's water supply source, plant, transmission and telemetry cost and expenses, treatment costs, distribution line costs, pumping and related electrical expenses, general and administrative expenses and general and administrative expenses associated with the production of water, plus , a sum which equals 10% of the foregoing expenses (collectively the "Water Purchase Price"). City agrees to provide Buyer with access to its books and records in order to quantify the Water Purchase Price.
(Emphasis in original.)
In a February 21, 2017 pretrial conference, NPWA and Mountain Home both asserted paragraph 2 was not ambiguous, and both parties submitted proposed findings of fact and conclusions of law, which the circuit court treated as pretrial briefs.
Hearing
A hearing was held on March 2, 2017. NPWA contended it was only obligated to pay its share of Mountain Home's actual expenses incurred in connection with the production and delivery of water to NPWA, and instead, Mountain Home was charging NPWA a percentage of all the tanks, all the distribution lines, all the bond costs, and all other associated costs that were not related to NPWA's pumping station and the water-treatment plant. Mountain Home argued the contract provided two components of permissible general administrative expenses-general administrative expenses and general administrative expenses associated with the production of water. Mountain Home pointed out that although the 2012 contract was a new contract, it was, in essence, a continuation of the previous water-supply contract entered into in 1982; there had been previous disputes about the price of the water, but the contract formula had been the same for many years; and NPWA's attorney had drafted the contract.
Gerry Lance, NPWA manager, testified he was familiar with the contract and agreed there had been a previous contract between the two parties. He explained NPWA purchases all its water from Mountain Home, which bills NPWA each month. He said Mountain Home typically raised rates annually, although he admitted there was "a year or two" when there was not a rate increase, and NPWA is currently paying $3.91 per 1,000 gallons of water. Lance testified NPWA obtained 100% of its water from Mountain Home's water-treatment plant, using a line that comes directly from the treatment plant and ties straight into NPWA's pump station, which is approximately 100 feet from Mountain Home's treatment plant. Lance testified that if expenses unrelated to the water-treatment-plant expenses were taken out, the cost of NPWA's water would be drastically reduced, and it was apparent Mountain Home was charging NPWA not just expenses and operating costs related to the treatment plant but rather to its entire system. Lance conceded NPWA was responsible for its pro rata share of the maintenance of the Wallace Knob tank, the storage tank closest to its meter and to the water-treatment plant. Lance also complained that while NPWA received a rate increase in the current year, to his knowledge Mountain Home had not increased the rates of its own customers.
On cross-examination, Lance further conceded the contract stated both "general and administrative expenses" and "general and administrative expenses associated with the production of water," although, as he testified, he believed that wording was a typographical error. Lance agreed the contract was prepared by Heartsill Ragon, NPWA's attorney, and he (Lance) had reviewed the contract before it was signed. Lance acknowledged the water-treatment plant did not operate twenty-four hours a day, and when it was not operating, NPWA drew water from the system; however, he believed NPWA drew from the Wallace Knob tank, the water-storage tank closest to its meter, not the Southwest tank, another of Mountain Home's water-storage tanks. Lance believed if NPWA was using the system that it should pay its percentage share (estimated by Lance to be 1.4% of the total cost) for that use up to the Wallace Knob tank. Lance admitted Mountain Home was obligated under the contract to maintain what was known as the Days Inn tank, but that tank could not be used as part of NPWA's system.
On redirect examination, Lance reiterated his belief that when NPWA was not receiving water from the treatment plant, it was coming from the Wallace Knob tank, not from the other two tanks in Mountain Home's water system. He explained NPWA could not use the Days Inn storage tank because NPWA's water pressure is higher than Mountain Home's water pressure.
Civil engineer Ken Cotter, on behalf of NPWA, calculated that 1.4% of Mountain Home's water system was utilized in providing water from the treatment plant to the Wallace Knob tank. Cotter believed that once the storage capacity of the main water system was consumed, NPWA's water would come from the Wallace Knob tank, as it was the tank in closest proximity to NPWA. Cotter changed his opinion on cross-examination after learning there was an electronic valve controlling the Wallace Knob tank.
Certified public accountant Brian Haas testified that NPWA was presently being charged for a percentage of the entire Mountain Home water system; however, it was his opinion that general and administrative expenses were not part of water-delivery costs. Haas was of the opinion the contract language stating both "general and administrative expenses" and "general and administrative expenses associated with the production of water" was a typographical error; however, he conceded that general and administrative expenses and general and administrative expenses associated with the production of water could be two separate, different items. Nevertheless, it was Haas's opinion that system expenses were not included in the contract.
Kirby Roland, a civil engineer with Garver Engineers since 1976, testified he had worked with Mountain Home and its water system since 1978 and had constructed "a number" of master plans for Mountain Home and its water system. He described Mountain Home's water system as a "batch system," which means that the water plant would turn on only when it was signaled to do so from a source (the control tank). According to Roland, the Wallace Knob tank was originally the control tank, but when the original plant was expanded in 1984 to double its capacity to an 8,000,000-gallon-per-day plant, a new tank, the Southwest tank, was added to the system and became the control tank. The Southwest tank is located on the other side of Mountain Home from the Wallace Knob tank, although both tanks are at 960 feet above sea level at overflow. Roland explained that when the water plant is operating, NPWA receives its water from the treatment facility, but when the plant is not operating, water comes from the Southwest tank, except in certain situations when the Southwest tank is low, and then the valve would open at Wallace Knob. Roland explained that the Southwest tank, as the control tank, is the one to signal the water plant to resume operating; that if the Wallace Knob tank filled before the Southwest tank was full, an electronic valve will close the Wallace Knob tank to prevent overflow; and that the electronic valve will not open again until the water-hydraulic radiant had dropped four to five feet below 960. Per Roland's explanation, during the time the electronic valve closes off the Wallace Knob tank, the only place in the entire 960-based system that water can come from is the Southwest tank until the Southwest tank reaches the hydraulic rating of 955, and the valve begins to open; if the Southwest tank continues to drop, the pumps at the water plant turn back on and refill the system. Roland testified Lance was incorrect that NPWA's water comes from the Wallace Knob tank when the water plant is not running because the Southwest tank, as the control tank, was the operating tank. He explained it is only in certain situations, when the Southwest tank is low, that the electronic valve opens at the Wallace Knob tank. Therefore, Roland explained, NPWA uses the water system, including the Southwest tank. Roland testified there was no dispute that NPWA is paying a percentage based on its total usage of water of the entire operating costs of the Mountain Home water system, which included the treatment plant, tanks, distribution lines, and pump stations.
Alma Clark, the director of Mountain Home's water department, testified the water-treatment plant is offline on average six to seven hours a day, at which time NPWA draws from the water system.
Clark said NPWA's attorney drafted the 2012 contract, and while the language was not identical to the 1982 contract (the term of the contract was shortened from thirty years to twenty years and NPWA was authorized to draw a greater amount of water), Clark told the Mountain Home City Council the contract was the same as the previous contract except for the length of the contract. Clark accused NPWA of attempting to pick and choose what charges it wanted to pay; agreed Mountain Home was charging NPWA its pro rata portion of all the expenses associated with the upkeep of the water system; and disagreed Mountain Home had breached the contract.
Order
The circuit court entered an order on July 27, 2017, finding that NPWA had failed to meet its burden of proof on the issue of contract interpretation and that the City had not breached the contract. In its order, the circuit court found Mountain Home and NPWA's predecessor (Mountain Home Northeast Water Association, Inc.) had entered into a thirty-year wholesale water-purchase agreement in 1982; the monthly payment formula set forth in the 1982 agreement was similar to what was set out in the 2012 contract; the 1982 agreement was performed for a term of thirty years; disputes had arisen over the terms of the 1982 agreement concerning rate calculations paid by NPWA's predecessor, but the annual rate calculations continued to be paid; a new contract was entered into in 2012; the 2012 contract was drafted by NPWA's attorney; Mountain Home's City Council meeting approved the 2012 contract, and it was signed by Mountain Home's mayor and NPWA's president; the minutes of the Mountain Home City Council meeting reflected that the only changes in the 2012 contract were the length of the contract and the allowance for NPWA to draw more water; and while Mountain Home believed the 2012 contract did not change the methodology for NPWA's annual rate calculation, NPWA believed that only those general and administrative expenses associated with the production of water should be included in the annual rate calculation. The circuit court found that NPWA is connected to Mountain Home's water system, explaining how the storage tanks operate when the water plant is not operating and how the water-distribution system is utilized for NPWA's water when the water plant is not in operation. The circuit court found that the 2012 contract was valid and not ambiguous; that the words "general and administrative expenses" are in addition to the "general and administrative expenses associated with the production of water"; that "general and administrative expenses" is a broad phrase; that since NPWA draws from the City's water system, NPWA's portion of the "general and administrative expenses" for the entire City water system may be included in the annual rate calculation pursuant to the terms of the 2012 contract; and that the annual rate calculation is appropriate and consistent with the 2012 contract. The circuit court found, "[B]ased on the language for the 2012 Agreement, there can be no genuine dispute that the phrase 'actual expenses incurred in connection with the City's production and delivery of water' was expressly agreed by the parties to include 'general and administrative expenses' in addition to 'general and administrative expenses associated with the production of water.' " The circuit court additionally concluded the parties' course of performance over the years of the 1982 agreement and the 2012 agreement indicated its construction of the 2012 contract was further warranted.
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. Peregrine Trading, LLC v. Rowe , 2018 Ark. App. 176, 546 S.W.3d 518. 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. The determination of whether an ambiguity exists is ordinarily a question of law to be resolved by the court; when a contract is not ambiguous, its construction and legal effect are questions of law for the court to determine; the court must construe the writing in accordance with the plain meaning of the language employed. Yancy v. Hunt , 2018 Ark. App. 195, 547 S.W.3d 116 (citing Spann v. Lovett & Co. , 2012 Ark. App. 107, 389 S.W.3d 77 ). When the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the responsibility of the circuit court as a matter of law to make such a determination. Id. A circuit court's conclusion on a question of law is reviewed de novo and is given no deference on appeal. Murphy v. City of West Memphis , 352 Ark. 315, 101 S.W.3d 221 (2003).
Discussion
On appeal, NPWA focuses on the portion of paragraph 2 that states the price per thousand gallons of water "is equal to Buyer's share of City's actual expenses incurred in connection with the City's production and delivery of the water to the Buyer. " (Emphasis added.) It argues the clear and unambiguous language in the contract allows NPWA to be charged only the actual expenses incurred in connection with the production and delivery of water to NPWA, the expenses of the rest of the Mountain Home water system are not necessary to comply with Mountain Home's contractual obligation to produce and deliver water to NPWA; therefore, Mountain Home has breached the contract by charging NPWA for general and administrative expenses associated with the entire water system.
We do not agree with NPWA's contentions. When parties express their intentions in a written instrument in clear and unambiguous language, the circuit court must construe the writing in accordance with the plain meaning of the language employed, considering the sense and meaning of the parties' words as they are taken and understood in their plain and ordinary meaning. Kraft v. Limestone Partners, LLC , 2017 Ark. App. 315, 522 S.W.3d 150. In making its argument, NPWA ignores the additional language in paragraph 2 defining the City's actual expenses incurred in connection with the production and delivery of water to NPWA. The contract, drafted by NPWA's attorney, specifically defines actual expenses to include, without limitation, "costs associated with the City's water supply source, plant, transmission and telemetry cost and expenses, treatment costs, distribution line costs, pumping and related electrical expenses, general and administrative expenses and general and administrative expenses associated with the production of water , plus a sum which is equal to 10% of the foregoing expenses." (Emphasis added.) The circuit court found that this wording in the 2012 contract was not ambiguous; that "general and administrative expenses" were separate from the "general and administrative expenses associated with the production of water"; and that, because "general and administrative expenses" is a broad phrase, and since NPWA draws from the City's water system, as evidenced by Kirby Roland's testimony, NPWA could be charged a portion of the "general and administrative expenses" for the entire City water system in the annual rate calculation pursuant to the terms of the 2012 contract. The circuit court found that the phrase "actual expenses incurred in connection with the City's production and delivery of water" was expressly agreed by the parties to include both "general and administrative expenses" in addition to "general and administrative expenses associated with the production of water." Giving the words of the contract their plain and ordinary meaning, the circuit court correctly construed paragraph 2 of the contract to also include the general and administrative expenses of the City's water plant in NPWA's rate calculation. A court cannot make a contract for parties but can only construe and enforce the contract the parties have made. Kraft, supra. In the present case, the circuit court did just that-construed and enforced the contract made by the parties.
Affirmed.
Gladwin and Whiteaker, JJ., agree. | [
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WAYMOND M. BROWN, Judge
Appellants Jim A. Carter, Jr., Logging, LLC, and James A. Carter, Jr., appeal the February 17, 2017 order of the Ashley County Circuit Court granting appellee First National Bank of Crossett (FNBC) summary judgment. Appellants maintain that appellee breached the peace when it repossessed equipment from appellants and that the decision of the bankruptcy court was not sufficient to preclude appellants from presenting the issue of damages to a jury. We affirm.
James A. Carter, Jr. (James), formed Jim A. Carter, Jr., Logging LLC (Carter Logging), with James as its sole member. Carter Logging entered into two loan agreements with FNBC on October 22, 2009, and September 21, 2012, respectively. The loans were secured by logging equipment owned by Carter Logging and were personally guaranteed by James. On October 24, 2012, James transferred the assets of Carter Logging, including the equipment used to secure the two loans, to himself. On November 2, 2012, James and his wife, Leigh, filed for relief under Chapter 13 of the United States Bankruptcy Code. That same day, FNBC filed a replevin action against Carter Logging, seeking to repossess the logging equipment. FNBC obtained an order of delivery on November 14, 2012, directing the Sheriff of Ashley County to take possession of the collateral and to immediately deliver it to appellee. The order of delivery was served on Carter Logging on November 16, 2012. After the order of delivery was issued, a motion to stay the order of delivery was filed, and served on FNBC, which included copies of the assignment and notice of the commencement of James's bankruptcy case. A telephone conference was held between appellants' counsel, appellee's counsel, and Judge Don E. Glover concerning the motion to stay. It is alleged that during this conference, the court ordered the collateral to remain in the possession of the sheriff of Ashley County and not be delivered to appellee; however, no order was entered reflecting this.
On November 6, 2012, FNBC repossessed the collateral (a Prentice Log Loader, an Evans trailer, a CIS delimber, a Prentice grappel, a CSI slasher aaw, and a Prentice double V heel) through a repossession service named Advanced Recovery. James subsequently filed a motion for contempt in his bankruptcy case and requested an emergency hearing. A hearing took place on November 29, 2012. The bankruptcy court ordered the equipment returned to James, but specifically reserved ruling on whether the stay violation was willful. During the established time period, a motion for sanctions was filed seeking compensatory and punitive damages for FNBC's willful violation of the automatic stay. A hearing took place on April 16, 2013. At the hearing, appellants sought damages in the amount of $260,000 ($60,000 was for damage to two pieces of equipment, and $200,000 was for lost profits for five months). At the conclusion of the hearing, the court found in pertinent part:
In the testimony today, there is testimony from the debtor that this equipment was leaking hydraulic oil, there's a conflict in the testimony-well, there's testimony that when the equipment, the-what do you call this?-the loader/delimber was delivered back to the debtor. The day the debtor did not bother to go see to it, like I told him to, because he already suggested that there was a problem with the hydraulic oil. So I am going to hold that against the debtor, because I tried to be as careful as I could about that. But the debtor has the burden of proving by a preponderance of the evidence that whatever damage there is to this equipment was done by the bank. And I don't think that the debtor has carried their burden.
Number one, the equipment was already-from the debtor's testimony at the previous hearing, the equipment was already broken to some extent. It's leaking hydraulic oil. I told the debtor to make sure that it was given back to him, so that there would be no problem with running without the proper amount of oil. He didn't do it. The bank's representative said they checked it. So the debtor had the burden of proving that that happened.
The only testimony is he was not there. So he does not have any way to truthfully testify that they didn't check it. I'm inclined to believe they did.
Furthermore, the amount of movement was minimal.
And thirdly, and of great significance is that there's no mechanic to testify, no qualified person, to testify what the bank did has caused any damage to the equipment that did not already exist at the time it was repossessed, or for that matter that there is any serious damage to the equipment. It's the debtor's speculation that it could be damaged, but speculation is not enough to carry the burden of proof.
I have the banker's testimony as to the conversation he had with debtor, where he admitted that this equipment wasn't working properly, that nothing was working properly, except that one piece of property.
I just don't think that it has been proven that what the bank did has caused the debtor's equipment to be useless or worthless. You've changed theories on me in that in your opening statement, your theory was that you wanted the value of the equipment and the cost to repair it, and then it was changed to the money that the debtor could have earned during the period of time.
Either way, it equaled over $200,000.00. I am just not satisfied that you have sustained your burden, number one. Number two, I don't think that whatever damages could have flowed from the bank's actions were the result of a willful violation of the automatic stay, because if the bank had known about the transfer, that it knew that the property could possibly be owned by the debtor individually, that would be one thing. But here they didn't. So that takes the willfulness completely out it.
The only thing they did that was willful was to send that notice, which they probably-most people don't understand that to be a violation of the stay. The continuation of an act against property of the estate is a technical violation. It wasn't a willful violation. The basic predicate there is not there to collect damages or attorney's fees.
The testimony about the 720 Tigercat, the 1997 model, I am just not persuaded that it is worth $25,000.00. It was laid in the weeds for 12 to 18 months. It is 15 or 16 years old. Used equipment in the lumber business is by definition equipment without any equity because the business is so hard on equipment.
There is not sufficient evidence to prove that anything the bank, or the bank's representatives did caused any damage to this equipment. We do not have a mechanic to say that it was pulled while it was in gear, or in some other inappropriate way, that damaged the equipment. No mechanic has testified to what it would cost to repair. There is no way I could affix damages.
The Court's opinion is that on the motions for sanction judgment will be in favor of the bank.
The bankruptcy court entered an order on April 22, 2013, finding that FNBC did not willfully violate the automatic stay and denying James's motion for sanctions. It incorporated by reference its oral findings. This decision was affirmed on appeal.
FNBC filed a new complaint for replevin on July 15, 2013. It included an order entered on June 18, 2013, dismissing James's bankruptcy petition. Appellants filed an objection to order of delivery on July 19, 2013. James filed an answer and counterclaim on July 24, 2013. In the answer, he denied that FNBC was entitled to an order of delivery. In his counterclaim, he sought both compensatory and punitive damages against FNBC for its breach of the peace and for the damages to the equipment. The counterclaim alleged:
6. On Saturday, November 17, 2012, First National Bank of Crossett employed a repossession service, Advanced Recovery located in Pine Bluff, Arkansas, to complete repossession of the equipment listed in their Order of Deliver[y]. Steve Martens, an officer of First National Bank of Crossett, and the employees of the repossession company, went to the defendant's compound located at 2302 Brooks Road, Crossett, Arkansas, 71635, to obtain possession of the Prentice Log Loader, Evans Trailer, the CIS Delimber, the Prentice Grapple, the CSI Slasher Saw and Prentice Double V Heel. This equipment was all located within the compound behind a locked gate. First National Bank of Crossett and its agents proceeded to allow a private citizen whose identity remains unknown, to cut the lock so that the bank officer and the its agents could enter into the defendant's compound and take possession of the collateral described in its Order of Deliver. There was no deputy or any member of the Ashley County Sheriffs Department present when this was done. Someone driving by on the street stopped and offered to cut the lock and was allowed to cut the lock.
7. Steve Martens and other agents of First National Bank of Crossett, proceeded to start the Prentice Loader which meant operation of the hydraulic system and it was loaded and removed from the defendant's compound. All of the equipment was subsequently placed in the repossession lot of First National Bank of Crossett. It was never in the possession of the Ashley County Sheriffs [sic] Department.
8. The Prentice Loader was damaged in the process because it was low on hydraulic fluid. There is now a massive oil leak on the equipment. James A. Carter, Jr., attempted to start the equipment after putting oil in it, it made unusual noises and leaked a substantial amount of oil. The defendant immediately shut the equipment down to avoid further damage.
9. The conduct of First National Bank of Crossett was done without any judicial authority and constituted a breach of the peace pursuant to the Arkansas Uniform Commercial Code. The defendant, James A. Carter, Jr., is entitled to compensatory and punitive damages from First National Bank of Crossett for its breach of the peace.
10. The defendant, James A. Carter, Jr., is entitled to recover compensatory and punitive damages from First National Bank of Crossett for the damage it caused to his compound located at 2302 Brooks Road, Crossett, Arkansas, 71635 and to his equipment.
FNBC filed an answer to the counterclaim on July 30, 2013, denying the material allegations and seeking to have it dismissed. An answer and amended counterclaim was filed on August 2, 2013, changing the address of the compound to 203 Wood Street. FNBC filed an answer to the amended counterclaim on August 5, 2013. The court entered a judgment for replevin and order of delivery on July 25, 2014.
FNBC filed a motion for summary judgment and supporting brief on September 21, 2016. In seeking summary judgment, FNBC stated that the bankruptcy court had already decided the issue regarding the alleged damage to the Prentice loader and that James was barred by res judicata and collateral estoppel from relitigating that issue. FNBC further argued that there was no evidence of breach of the peace because FNBC obtained an Order of Delivery and followed the statutory procedure for replevin of the collateral. James filed a response to FNBC's summary-judgment motion and a countermotion for summary judgment with supporting brief on October 31, 2016. James contended that although the bankruptcy court denied him damages, his appeal was only from that court's denial of his motion for sanctions and that the appellate courts "declined to address the issue of damages raised by the motion for sanctions"; therefore, he never had an opportunity to fully and faithfully litigate the issue. As for damages, he claimed that "the defendant was not notified of the intent to repossess the property on November 17. The Tiger Cat skidder was removed from private property without the presence of the sheriff or permission of the landowner." He also stated that FNBC "entered onto defendant's property without permission and without the presence of the sheriff's office. It was necessary to break a lock and chain to enter into private property. In fact, a private citizen with no authority to act at all apparently did it." FNBC filed a response on November 9, 2016.
A hearing on the competing motions took place on January 20, 2017. At the hearing, FNBC's attorney argued that James had already unsuccessfully argued a right to damages in bankruptcy court concerning the same equipment and, therefore, his counterclaim for damages was barred by res judicata and collateral estoppel. James's attorney argued that there had been no final adjudication on the issue of damages because the appellate courts did not make a finding on the issue. As to breach of the peace, James's attorney argued that FNBC breached the peace because the equipment was kept in FNBC's possession, instead of remaining in the possession of the sheriff, and that there was no law-enforcement officer present when the lock was broken and the equipment was removed. He further argued:
The question in my mind would be: Is the court order itself sufficient to justify the bank entering on the property without the sheriff being present or being involved? I do think it should be a consideration that they disobeyed Judge Glover's order and took the property to the bank's repossession lot.
All of those actions were done with[out] judicial process, without law enforcement. This repossession crew could have gone in and made off with things that did not have anything to do with this case.
....
Mr. Martens acknowledged that the deputy sheriff had left to find the sheriff. The purpose of the deputy sheriff is to ensure the peace.
....
I think we are down to this. They had a court order, and I acknowledge that. But the sheriff was not the one who executed the order. As I said earlier, I think that is the crux of the case. The sheriff did not execute the order of delivery. The bank and the repossession crew did without the sheriff being involved at all.
The deputy sheriff went out to locate the sheriff. As far as the evidence I have, he never returned. The bank and its crew proceeded to take the property. I think it was about one or two o'clock on Saturday afternoon.
The order directs the sheriff to take the property. The sheriff is there to keep the peace and to ensure that they don't trample on other property that they are not suppose[d] to get and take other property and to just protect the debtor.
The bank is actually the one who is going to get it. The sheriff is just to make sure that it's a peaceful transfer.
Judge Glover, on [sic] his particular case, actually ordered the sheriff to retain possession of the property pending further court order.
The order was never written. I submitted a precedent that never got signed. They acknowledge in their Motion for Summary Judgment that that order was made by Judge Glover. I don't think that is an issue.
In my view it would be safe to say that if Judge Glover went ahead and executed the order for it, by them not having it in a place that he states it would, that would be a further breach, but he never signed the order[.]
There was no record of him giving the order. This was a telephone conference hearing, and it was late on a Friday afternoon. I am sure there is no record of it.
The court made an oral ruling, finding that there was no breach of the peace by FNBC because there was a court order (judicial process), and that breach of the peace was not an issue since judicial process had taken place. The court further found that, even if FNBC had broken the lock to get the property, instead of an unnamed person, it would have been allowed to do so because FNBC had an order directing it to take delivery of the property. The court agreed with FNBC that the issue of damages was addressed in bankruptcy court and that claim preclusion applied. However, the court also found that the issue of damages was moot since there was no breach of the peace by FNBC. The court's order granting appellee's motion for summary judgment and dismissing appellants' complaint with prejudice was filed on February 17, 2017. Appellants filed a timely notice of appeal on March 17, 2017. This appeal followed.
A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law. Once the moving party has established prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, 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 factual question unanswered. This court views 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. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. 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. We will not engage in a sufficiency-of-the-evidence determination.
Appellants argue that the trial court erred by finding that FNBC did not breach the peace, in violation of Arkansas Code Annotated section 4-9-609, which allows a secured party, after default, to take possession of the collateral with judicial process; or without judicial process if it proceeds without breach of the peace. Appellants admit that there was an order for delivery but contend that since delivery was taken at a time when the sheriff was not present, FNBC breached the peace. However, the statute is clear: breach of the peace only becomes an issue if a secured party takes possession of the collateral without judicial process. Here, there is no doubt that FNBC obtained judicial process before repossessing the equipment. Although an unnamed person broke the lock to the property so that FNBC could retrieve the equipment, the court found that FNBC could have broken the lock itself since it had a court order. There was no evidence of a disturbance, as James was not present at the time of the repossession, making the presence of the sheriff unnecessary in this case. Accordingly, we hold that the court correctly granted FNBC summary judgment on this issue.
Next, appellants contend that the court erred by finding that their claim for damages had been resolved by the bankruptcy court. However, the court denied appellants' request for damages on two bases: (1) the issue had been resolved by the bankruptcy court and (2) the request was moot because there was no breach of the peace. Appellants challenge only the first reason for the court's denial of damages. Appellants do not contest that evidence supports the court's finding that the damages issue was moot. Thus, even if appellants' argument had merit, we still would not reverse due to appellants' failure to attack both bases that justified the court's denial of their claim for damages. When two alternative reasons are given for a decision and appellant attacks only one, we must affirm. Even if we were to address the merits of appellants' argument on this issue, appellants have been unable to direct us to a case where damages are appropriate when there is no breach of the peace. Accordingly, we affirm.
Affirmed.
Gruber, C.J., and Harrison, J., agree.
This is the second time this case has been before us. We initially remanded it back to settle the record and ordered rebriefing. Jim A. Carter, Jr., Logging, LLC v. First Nat'l Bank of Crossett , 2018 Ark. App. 107, 2018 WL 736507. Those deficiencies have now been remedied.
Carter v. First Nat'l Bank of Crossett (In re Carter ), 502 B.R. 333 (8th Cir. BAP 2013) ; and Carter v. First Nat'l Bank of Crossett (In re Carter ), 583 Fed.Appx. 560 (8th Cir. 2014).
Mitchell v. Lincoln , 366 Ark. 592, 237 S.W.3d 455 (2006).
New Maumelle Harbor v. Rochelle , 338 Ark. 43, 991 S.W.2d 552 (1999).
Kachigian v. Marion Cty. Abstract Co. , 2011 Ark. App. 704, 2011 WL 5562777.
Druyvestein v. Gean , 2014 Ark. App. 559, 445 S.W.3d 529.
Bingham v. C & L Elec. Coop. , 2015 Ark. App. 237, 459 S.W.3d 831.
Flentje v. First Nat'l Bank of Wynne , 340 Ark. 563, 11 S.W.3d 531 (2000).
See id.
Ark. Code Ann. § 4-9-609 (Repl. 2001).
In fact, during arguments before the court, appellants' counsel stated, "If the court finds there was a breach of the peace, then we get to come back and prove damages." This statement shows that appellants knew that damages were contingent on a finding of breach of the peace.
See Pearrow v. Feagin , 300 Ark. 274, 778 S.W.2d 941 (1989). | [
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N. MARK KLAPPENBACH, Judge
Wilson Clark, by and through his attorney-in-fact, his son Jason Clark, filed a petition in the Madison County Circuit Court to establish a prescriptive easement in a roadway crossing over property owned by appellees Marsha and Jimmy Eubanks.
The circuit court denied Clark's petition. Clark now appeals, and we affirm.
The road in question intersects with a county road and runs through the Eubankses' property and onto the eastern boundary of the property owned by Wilson Clark. Clark alleged in his petition that he and his predecessors in interest had used the roadway in an open, notorious, hostile, and adverse manner for a continuous period of time in excess of fifty years such that their use and maintenance had ripened into a roadway of prescription. He claimed that Jimmy Eubanks had threatened to close the road or otherwise prevent the Clark family's use of the road.
Diana and Jason Clark testified at the November 2017 bench trial that they had lived on the property owned by Wilson Clark for twenty years and had always used the road in question to access their home. They said that the county had graded the road upon their request about twice a year for the last twenty years. They testified that they had never asked for or been given permission to use the road, and they had never had anyone try to limit their use of the road until Jimmy Eubanks bought his property in March 2017. Jason testified that Eubanks had threatened to block the road with gates and fences and to install cattle guards in the road and the lateral lines for his septic system near the road. Jason also claimed that Eubanks had threatened to shoot at anyone using the road.
Jimmy Eubanks testified that he purchased his property in March 2017 from a family member and began living there in July after putting a modular home on the property. He denied that he had threatened to harm the Clarks, had blocked or done anything to interfere with the Clarks' use of the road, or had told them that they could not use the road. Eubanks said that he had spoken to a bulldozer operator about improving the road on his property due to its rough condition. This would result in the road being torn up for a couple of days, but the bulldozer operator would make an alternate route through a field for the Clarks to use while the work was being done. Eubanks said that when he informed Jason of his plan, Jason "blew up" and threatened to sue. Eubanks testified that the county had not maintained the road and had graded it only twice in twenty years. He said that if he chooses to run cows on his property in the future, he would like to install a cattle guard in the road.
The circuit court ruled from the bench that the Clarks had not proved that they had used the road in an adverse or hostile manner for seven years. The court's order dismissed Clark's petition upon finding that he had failed to meet his burden of establishing and proving a prescriptive easement.
We review equity cases de novo on the record, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Baker v. Bolin , 2012 Ark. App. 141, 2012 WL 474527. In reviewing a circuit court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.
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. Wilson v. Schuman , 90 Ark. App. 201, 205 S.W.3d 164 (2005). In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that his or her use has been adverse to the true owner and under a claim of right for the statutory period. Id. The statutory period of seven years for adverse possession applies to prescriptive easements. Id.
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 of right are being exerted. Id. Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Id. Some circumstance or act in addition to, or in connection with, the use that indicates the use was not merely permissive is required to establish a right by prescription. Id. 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. Id.
Clark relies on the following principle as stated by the supreme court in arguing that his family's use of the road over several decades was adverse to Eubanks:
Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to this interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.
Fullenwider v. Kitchens , 223 Ark. 442, 446, 266 S.W.2d 281, 283 (1954). Clark also claims that the fact that Eubanks would not be able to graze cows without a cattle guard shows that the Clark family's use of the road was adverse to Eubanks.
Although the evidence showed that the Clarks had openly used the roadway for more than seven years, time alone will not suffice to transform permissive use into legal title. Baysinger v. Biggers , 100 Ark. App. 109, 265 S.W.3d 144 (2007). There must be some circumstance in addition to length of use to show that the use was adverse. Id. In Baysinger , there was no circumstance, such as use by the general public, that would establish that the landowner knew or should have known that the use was hostile. We noted that the only evidence at trial was that the plaintiff had begun using the road to access his property in 1961 and that there had been no objection.
Similarly here, by the Clarks' own testimony, there had been no objection to their use of the road until 2017. Even if the Clarks' use of the road was adverse as to Jimmy Eubanks beginning in March 2017 when he purchased the property, this usage falls far short of the seven years required to ripen into a prescriptive easement. There was no evidence that the road had been used by the general public or that the Clarks had committed any overt acts that would have put the prior landowners on notice that an adverse use and claim of right were being exerted. See Wilson , supra . Accordingly, their usage did not ripen into an absolute right as in Fullenwider .
Alternatively, Clark argues that the circuit court should have granted a public easement because the road is a county road. His argument below, however, was limited to his claim that his family had obtained an easement by prescription; he did not argue the issue of a public easement to the circuit court. We therefore affirm the circuit court's order.
Affirmed.
Virden and Whiteaker, JJ., agree. | [
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JOHN DAN KEMP, Chief Justice
A Jefferson County Circuit Court jury found that appellant Davis Life Care Center (DLCC), a long-term care facility, was not entitled to charitable immunity. DLCC appeals the judgment entered on the jury's verdict and the denial of its motion for new trial. For reversal, DLCC contends that (1) the circuit court improperly submitted the question of charitable immunity to the jury, (2) the circuit court inadequately instructed the jury on charitable immunity, and (3) the jury's verdict was clearly contrary to the preponderance of the evidence and contrary to the law on charitable immunity. We reverse and remand.
I. Facts and Procedural History
Johnny Newborn resided at DLCC from May 18, 2011, until his death on December 6, 2011. After his death, appellee Gracie Neal, Newborn's sister, was appointed as personal representative of his estate for the purpose of pursuing a personal-injury, wrongful-death action.
On April 25, 2013, Neal sued DLCC on behalf of the estate of Johnny Newborn alleging (1) negligence, (2) medical malpractice, (3) breach of the admission agreement, (4) violations of the Long-Term Care Facility Residents' Rights Act, and (5) breach of the provider agreement. Neal alleged that while in DLCC's care, Newborn sustained numerous injuries, including multiple bedsores, improper catheter care that led to the erosion of his penis, multiple urinary-tract infections, skin tears, poor hygiene that contributed to the development and worsening of pressure sores, malnutrition, dehydration, aspiration, and ultimately, death. She sought compensatory and punitive damages, attorneys' fees, and costs.
Subsequently, DLCC filed a motion for summary judgment claiming entitlement to charitable immunity. The circuit court granted the motion, and Neal appealed. See Neal v. Davis Nursing Ass'n , 2015 Ark. App. 478, 470 S.W.3d 281. After conducting a de novo review and considering the charitable-immunity factors articulated in Masterson v. Stambuck , 321 Ark. 391, 902 S.W.2d 803 (1995), the court of appeals concluded that reasonable persons could reach different conclusions based on the undisputed facts presented. Neal , 2015 Ark. App. 478, at 4-8, 470 S.W.3d at 283-86. Accordingly, the court of appeals reversed and remanded the case to the circuit court for further proceedings. Id. at 8, 470 S.W.3d at 286.
After remand, DLCC moved for bifurcation of the proceedings. DLCC asserted that (1) the circuit court should hear evidence and determine whether DLCC is entitled to charitable immunity and (2) only if the circuit court rules that DLCC is not entitled to charitable immunity should the case proceed to a jury trial on the issues of liability and damages. Neal opposed both the bifurcation of the trial and the submission of the immunity question to the circuit court. Ultimately, the circuit court granted DLCC's request for bifurcation but ordered that the question of DLCC's immunity would be submitted to a jury. Specifically, the circuit court ruled,
First, the issue of charitable immunity will be presented to the jury on interrogatories. If the defendant is found to be entitled to the defense of charitable immunity, an order of dismissal will be entered. If the defendant is found not to be entitled to the defense of charitable immunity, the remaining issues will be presented to the jury.
On November 15-17, 2016, a jury trial was held to determine whether DLCC was entitled to charitable immunity. At the close of evidence, the circuit court instructed the jury on the applicable law. The primary instruction given was based on the Masterson factors. The circuit court declined to give five instructions proffered by DLCC that included language gleaned from cases involving charitable immunity. The case was submitted to the jury on a single interrogatory: "Do you find from a preponderance of the evidence that Defendant Davis Nursing Association d/b/a Davis Life Care Center is entitled to the affirmative defense of charitable immunity?" The jury returned a verdict with the answer "No." The circuit court entered judgment on the jury's verdict. Thereafter, DLCC filed a motion for new trial. The motion was deemed denied.
DLCC appealed the circuit court's judgment and the denial of the motion for new trial to the court of appeals. DLCC contended that (1) the circuit court improperly submitted the question of charitable immunity to the jury, (2) the circuit court inadequately instructed the jury on charitable immunity, and (3) the jury's verdict was clearly contrary to the preponderance of the evidence and contrary to the law on charitable immunity. The court of appeals affirmed. Davis Nursing Ass'n v. Neal , 2018 Ark. App. 413, 560 S.W.3d 485. Davis filed a petition for review with this court, and we granted the petition. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. E.g. , Roberts v. Roberts , 2009 Ark. 567, 349 S.W.3d 886.
II. Charitable Immunity
This court has recognized the charitable-immunity doctrine for over a century. See Low v. Ins. Co. of N. Am. , 364 Ark. 427, 220 S.W.3d 670 (2005) (discussing the history of charitable immunity in Arkansas). The essence of the charitable-immunity doctrine is that organizations such as agencies and trusts created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties under the agency or trust. George v. Jefferson Hosp. Ass'n , 337 Ark. 206, 987 S.W.2d 710 (1999).
Charitable immunity is immunity from suit , not simply immunity from liability. See Low , 364 Ark. 427, 220 S.W.3d 670. Immunity from suit is an entitlement not to stand trial or face the other burdens of litigation, while immunity from liability is a mere defense to a suit. See Robinson, 291 Ark. 477, 725 S.W.2d 839. Because the charitable-immunity doctrine favors charities and results in a limitation of potentially responsible persons whom an injured party may sue, we give the term "charitable immunity" a narrow construction. Williams v. Jefferson Hosp. Ass'n , 246 Ark. 1231, 442 S.W.2d 243 (1969).
To determine whether an organization is entitled to charitable immunity, courts consider the following factors:
(1) whether the organization's charter limits it to charitable or eleemosynary purposes; (2) whether the organization's charter contains a "not-for-profit" limitation; (3) whether the organization's goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its service free of charge to those unable to pay; and (8) whether the directors and officers receive compensation.
Masterson , 321 Ark. at 401, 902 S.W.2d at 809. These factors are illustrative, not exhaustive, and no single factor is dispositive of charitable status. Id. , 902 S.W.2d at 810.
III. Submission of Charitable-Immunity Issue to the Jury
DLCC contends that the issue of charitable immunity is a question of law for the court, rather than the jury, to decide. Accordingly, DLCC contends that the circuit court erred in submitting the issue of charitable immunity to the jury. Neal responds that the circuit court properly submitted the issue of charitable immunity to the jury because there are disputed facts concerning DLCC's charitable status.
In Anglin v. Johnson Regional Medical Center , 375 Ark. 10, 289 S.W.3d 28 (2008), this court reviewed an order of summary judgment granted in favor of a hospital on the basis that it was entitled to charitable immunity. The appellant contended that the issue whether a hospital is entitled to a defense of charitable immunity is a question of fact for the jury to decide. Therefore, he contended that he was unconstitutionally denied his right to a jury trial when the circuit court determined, as a matter of law, that the hospital was a charity entitled to immunity. In addressing the appellant's argument, we stated the following principles related to charitable immunity:
When there are no disputed facts regarding a defendant's charitable status, the determination of charitable status is a question of law for the court. Anglin , 375 Ark. at 21, 289 S.W.3d at 35. Disputed facts concerning an organization's charitable status may be presented to a jury. See id. , 289 S.W.3d at 35 (citing Crossett Health Ctr. v. Croswell , 221 Ark. 874, 256 S.W.2d 548 (1953) ). In some cases, "[w]hile there may be fact issues involved, they are not matters of disputed fact. Rather, they are differing legal interpretations of undisputed facts." Id. , 289 S.W.3d at 35 (quoting George , 337 Ark. at 212-13, 987 S.W.2d at 713 ). In such cases, the circuit court should grant summary judgment "where reasonable persons would not reach different conclusions based upon those undisputed facts." Id. , 289 S.W.3d at 35.
After considering the Masterson factors and the evidence presented, we concluded that because no disputed facts existed, the appellant was not entitled to a jury trial. Anglin , 375 Ark. at 22, 289 S.W.3d at 36 (noting that the issues regarding the hospital's profit and its practice of filing suit to collect unpaid medical bills involved differing legal interpretations of undisputed facts). Accordingly, we held that the circuit court correctly determined, as a matter of law, that the hospital was entitled to charitable immunity. Id. , 289 S.W.3d at 36.
With this background, we return to the facts in the instant case. In 2015, the court of appeals held that the circuit court erred in determining on summary judgment that DLCC was immune from suit. Neal , 2015 Ark. App. 478, 470 S.W.3d 281. Specifically, the court of appeals identified facts that needed further development and concluded that reasonable persons could reach different conclusions based on the undisputed facts presented. On remand, the circuit court submitted the charitable-immunity question to the jury. We hold that the circuit court erred in doing so.
The ultimate question of charitable immunity is a matter of law for the court to decide. See Anglin , 375 Ark. 10, 289 S.W.3d 28. We reverse and remand for the circuit court to hear evidence and determine whether DLCC is entitled to charitable immunity. If the existence of charitable immunity turns on disputed factual issues, then the jury may determine the facts, and the circuit court will subsequently determine whether those facts are sufficient to establish charitable immunity. Based on the foregoing, we need not consider DLCC's remaining contentions.
Reversed and remanded; court of appeals opinion vacated.
Wood, J., concurs.
Baker, Hart, and Wynne, JJ., dissent.
An appeal may be taken from the denial of a claim of immunity from suit. See Ark. R. App. P.-Civ. 2(a)(2) (2018) (stating that a party may appeal an order "which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action"); Simons v. Marshall , 369 Ark. 447, 255 S.W.3d 838 (2007) ; Dermott Special Sch. Dist. v. Johnson , 343 Ark. 90, 32 S.W.3d 477 (2000) ; Ozarks Res. Coop., Inc. v. Daniels , 333 Ark. 214, 969 S.W.2d 169 (1998) ; Newton v. Etoch , 332 Ark. 325, 965 S.W.2d 96 (1998) ;Virden v. Roper , 302 Ark. 125, 788 S.W.2d 470 (1990) ; Robinson v. Beaumont , 291 Ark. 477, 725 S.W.2d 839 (1987) ; cf. Jaggers v. Zolliecoffer , 290 Ark. 250, 254, 718 S.W.2d 441, 443 (1986) (dismissing interlocutory appeal on the issue of statutory immunity from liability because "[w]hile immunity from suit may be a right irretrievably lost if an official claiming immunity has to participate in a trial on the merits, immunity from liability is no such right.").
Carefully drafted interrogatories would allow jurors to decide factual issues and preserve the ultimate legal determination for the court. It is erroneous, however, to submit the ultimate question of charitable immunity to the jury. | [
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Hart, J., concurs in part; dissents in part.
Josephine Linker Hart, Justice, concurring in part and dissenting in part.
I agree with the majority's conclusion that the evidence was sufficient to sustain McClendon's convictions. However, McClendon's right to a fair trial, guaranteed by the Sixth Amendment to the U.S. Constitution, requires reversal of the trial court's denial of McClendon's motion for a mistrial.
The decision to grant or deny a motion for mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. E.g. , Johnson v. State , 366 Ark. 8, 13, 233 S.W.3d 123, 127 (2006). A mistrial is a drastic remedy and should be declared only when there is error so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. E.g. , Tryon v. State , 371 Ark. 25, 42, 263 S.W.3d 475, 488 (2007) Maiden v. State , 2014 Ark. 294, 438 S.W.3d 263. In determining whether a circuit court abused its discretion by denying a mistrial motion, this court looks to several factors, including "whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice." Armstrong v. State , 366 Ark. 105, 233 S.W.3d 627 (2006).
Here, McClendon's trial counsel did literally everything she could conceivably do to keep out the undisputedly inadmissible evidence of McClendon's criminal history. She filed the motion. She got the order. She even got the circuit judge to specifically tell the prosecutor to instruct her witnesses that there would be no discussion of McClendon's criminal history at the trial. But the prosecutor did not abide by the circuit court's instruction. The State did not instruct its witnesses, and predictably, one of those witnesses, Frances Horn, then injected into the trial the very testimony that the circuit court's order was supposed to guard against:
HORN : In July of 2016, I was familiar with the type of vehicle that Mr. McClendon was driving. It was a grey Dodge pickup truck.
PROSECUTOR : And how do you recall that he was driving that kind of vehicle at that time?
HORN : Well, I worked at Dixie Mart. His dad came in. He used to drive it before he got it. When he got out of prison this last time, that's what his dad gave him to drive.
DEFENSE COUNSEL : Your Honor, objection.
McClendon's attorney moved for a mistrial, and the circuit court denied the motion. The majority here affirms that denial under the guise that the prosecution's infraction was "inadvertent," that McClendon only suffered minimal prejudice from the infraction, and that the circuit court's curing instruction to the jury took care of any resulting prejudice. I see this case, and its place in our jurisprudence on the subject of mistrials, in a very different light.
First, any suggestion that an infraction of this sort was "inadvertent," or that it would not or should not have been easily prevented, must be considered closely and carefully. The majority states,
Horn's testimony served a single purpose-to establish that McClendon's vehicle was outside Martin's house around the time of the murder. But before Horn could testify to seeing McClendon's vehicle, the State had to establish her familiarity with it. This is where the infraction occurred[.]
Not to split hairs with the majority, but its own characterization of Horn's role in the prosecution's case shows that her testimony actually served to support at least two separate factual propositions: (1) that David McClendon had a grey Dodge pickup truck, or at least that he was likely to be driving a grey Dodge pickup truck, and (2) on the date of the shooting, Horn saw that same grey Dodge pickup truck at the victim's residence. Any testimony as to either of these propositions would be subject to Ark. R. Evid. 602, which obligates the proponent to establish that a lay witness has "personal knowledge" of whatever matter that witness testifies about. In other words, the prosecution would have known that, in order for Horn to testify that the truck belonged to McClendon, she would likely have to explain what led her to that conclusion. Since Horn's testimony indicates that McClendon "(getting) out of prison this last time" was the very impetus for the vehicle shifting from McClendon's father's hands to his own, the prosecution's failure to instruct this particular witness about the circuit court's order is troubling.
Regardless of whether this infraction was deliberate, I cannot sign on to an opinion that leaves the infraction unremedied. In short, "sorry, I forgot to tell the witness about the order" is simply untenable. The prosecutor acknowledged that she failed to instruct the witness, in contravention of the circuit court's clear directive, and this failure must be held against the prosecution, lest the threat of a mistrial become so neutered as to provide no deterrent against such plain (even if entirely inadvertent) impropriety in the future.
Litigants must be able to rely on an order in limine. McClendon's counsel did everything she could here, and the prosecution's infraction obviously prejudiced McClendon. Horn's testimony not only made it seem that McClendon had engaged in past criminal activity, not only made it seem that he had been to "prison" for that criminal activity, but also made it seem that he had been to prison multiple times. This is classic propensity evidence, and the rules simply do not allow for it. Moreover, the circuit court's twelve-time-repeated curing instruction to each individual member of the jury only drew further attention to this improper evidence and further exacerbated whatever prejudice McClendon suffered by the infraction itself. The circuit court should have just declared a mistrial and set another trial date.
Concurring in part; dissenting in part.
Obviously, this could have been different if McClendon had elected to testify and the prosecution then used some aspect(s) of his criminal history for impeachment purposes. McClendon did not testify. | [
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MIKE MURPHY, Judge
Appellant Agility Financial Credit Union (Agility) appeals a December 2, 2015 Sebastian County Circuit Court order vacating a foreign judgment it had registered in that county against appellee Gayla Largent. More specifically, the order found that the registration of the foreign judgment was null and void for failing to comply with Arkansas Rule of Civil Procedure 44, and that any liens on Largent's property stemming from that registration were also null and void. On appeal, Agility argues that the circuit court erred in finding that (1) Arkansas Rule of Civil Procedure 44 controlled; (2) Agility's judgment was not properly registered; (3) the lien was null and void; and (4) the intervenor's petition for declaratory judgment was moot. We affirm.
I. Facts and Procedural History
Agility obtained a judgment against Largent in Shelby County, Tennessee, and on February 23, 2015, registered that judgment in Sebastian County, Arkansas, where Ms. Largent owned real property. On July 20, 2015, Largent moved to vacate the foreign judgment, alleging that the affidavit accompanying it was not signed, and the circuit court granted the motion the same day. The next day, Largent sold real property situated in Sebastian County to a third party for roughly $58,000, and the closing was handled by Western Arkansas Title Services, LLC (WATS). On July 24, 2015, the court set aside its order vacating the judgment upon learning that the affidavit did, in fact, have all the appropriate signatures. It reinstated the foreign judgment nunc pro tunc to its original filing date of February 23, 2015.
On July 28, 2015, Largent made two new motions to the court. The first was a motion to set aside the registration, this time because the copy of the foreign judgment had not been certified by the Shelby County Circuit Clerk on its face as required by Arkansas Rule of Civil Procedure 44. The second motion asked the court, alternatively, to remove the "nunc pro tunc" language from the set-aside order.
With the foreign judgment in place nunc pro tunc to February, Agility then made demand upon WATS in the amount of the sales price of the real property. WATS was permitted to intervene and file a petition seeking a declaration that it "has no duty to pay any sum over to [Agility]" on the basis that the copy of the foreign judgment had not been properly certified in accordance with Rule 44. Agility responded, arguing that the registration complied with the Uniform Enforcement of Foreign Judgments Act (UEFJA) and that the court was required by the United States Constitution to give full faith and credit to the foreign judgment.
The court ultimately ruled in Largent's favor, finding that to be properly authenticated, a foreign judgment must be "attested or certified to be a true copy of the original document on file with the official custodian of record." That is to say that, even if a foreign judgment complies with the language of Arkansas Code Annotated section 16-66-602 and United States Code Annotated section 1738, if it does not strictly comply with Arkansas Rule of Civil Procedure 44, it is deficient for purposes of registration in this state. Following this reasoning, the court then found that, because the judgment was not properly registered, it could not act as a lien. Agility timely appealed, but we dismissed the case without prejudice because the order from which Agility appealed left WATS's claim unaddressed. Agility Fin. Credit Union v. Largent , 2017 Ark. App. 197, 517 S.W.3d 451. On September 27, 2017, the circuit court entered an order dismissing as moot WATS's petition for declaratory judgment because there was no lien at the time of the sale of Largent's real property on July 21, 2015, for lack of proper registration; thus, Agility had no claim against WATS. Agility again appeals.
II. Standard of Review
Our review of this appeal requires interpretation of Arkansas statutes; accordingly, the standard of review is de novo. Wal-Mart Stores, Inc. v. D.A.N. Joint Venture III, L.P. , 374 Ark. 489, 490, 288 S.W.3d 627, 629 (2008).
III. Mootness
Before we address Agility's points on appeal, Largent first argues that, because the "whole point of this appeal" is for Agility to "attempt to create a lien on the real estate at issue" and because Agility does not make any argument regarding the December 2, 2015 order removing the nunc pro tunc language from the July 24, 2015 order setting aside the order vacating the foreign judgment, that even if Agility were to prevail on appeal, it would still not have a lien on the real property or a claim against WATS.
Largent is correct that, as a general rule, appellate courts of this state will not review issues that are moot. Honeycutt v. Foster , 371 Ark. 545, 268 S.W.3d 875 (2007). However, to extend Largent's reasoning would first require us to address arguments that were not considered and ruled upon by the trial court, which we will not do. Parkerson v. Brown , 2013 Ark. App. 718, 430 S.W.3d 864. Here, the court concluded Agility did not have a lien on the real estate at issue, not because it removed nunc pro tunc language from the second order, but because the judgment was not filed in compliance with Rule 44. The order removing the nunc pro tunc language did not provide that it voided the lien, and Largent did not seek an alternate ruling that it necessarily did so. Therefore, Agility's appeal is not moot for failure to challenge the additional order entered December 2, 2015.
IV. Arkansas Rule of Civil Procedure 44 and the UEFJA
The primary question before us today is whether the lower court erred in the December 2, 2015 order finding that Arkansas Rule of Civil Procedure 44 was the exclusive mechanism for authenticating foreign judgments and the fallout as it relates to that finding. To begin, regarding foreign records, Arkansas Rule of Civil Procedure 44(a)(2) provides that
[a] foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication, or copy thereof, attested by a person authorized to make attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation.
In the present case, the lower court found that the documents mailed to the Sebastian County Circuit Court clerk were not compliant with Rule 44. Instead, what it received was an "uncertified, unattested copy of a foreign judgment from Shelby County that is stapled to a Certificate of Authentication," and that "[e]ven the document attached to [Agility's] final brief with the Court does not have an attestation clause on the foreign judgment." Agility argues that this, however, should not preclude its registration and enforcement in Arkansas, because the filing it provided was compliant with the UEFJA. The UEFJA, codified at Arkansas Code Annotated sections 16-66-601 to 16-66-619, provides a summary procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found. Nationwide Ins. Enter. v. Ibanez , 368 Ark. 432, 435, 246 S.W.3d 883, 886 (2007). Under it, a foreign judgment is "any judgment ... of a court of the United States or of any other court which is entitled to full faith and credit in this state." Ark. Code Ann. § 16-66-601. Regarding filing and status of foreign judgments, the UEFJA provides that
[a] copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any court of this state having jurisdiction of such an action. The clerk shall treat the foreign judgment in the same manner as a judgment of a court in this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court of this state and may be enforced or satisfied in like manner.
Ark. Code Ann. § 16-66-602.
It further provides that Arkansas courts give any judgment of a court of the United States full faith and credit when the judgment is regular on its face and authenticated. Ibanez , 368 Ark. at 435, 246 S.W.3d at 886.
The circuit court recognized that it is this last point, authentication, which is the heart of the case before it. Specifically, it found that
[p]ursuant to Rule 44 of the Arkansas Rules of Civil Procedure, to be properly authenticated, the purported foreign judgment was required to be attested and accompanied with a certificate of authenticity. Here, the purported foreign judgment sought to be registered with this Court was accompanied with a certificate of authenticity, but the purported foreign judgment itself was not attested or certified to be a true copy of the original document on file with the official custodian of record. By failing to file a foreign judgment with the required attestation clause, [Agility]'s attempt to register the purported foreign judgment is deficient because it fails to comply with the authentication requirements of Rule 44. Accordingly, the purported foreign judgment was not filed in accordance with the strict requirements of the [UEFJA]. The Court finds that compliance with Rule 44 is necessary to grant this Court jurisdiction to enforce a foreign judgment. Since there was not compliance with Rule 44, and jurisdiction did not confer, the filing of the purported foreign judgment is a nullity and void.
Agility would have us hold that this construction was erroneous. It argues that, instead, by virtue of Arkansas Code Annotated section 16-66-602, a judgment authenticated per 28 U.S.C.A. § 1738 may also be registered in this state. We disagree because the UEFJA was enacted prior to Amendment 80 to the Arkansas Constitution and Arkansas Code Annotated section 16-11-301, and Rule 44 therefore supersedes it.
Section 3 of amendment 80 to the Arkansas Constitution provides that the supreme court "shall prescribe the rules of pleadings, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution." Arkansas Code Annotated section 16-11-301 provides that the rules adopted by the supreme court supersede all statutes concerning pleading, practice, and procedure in all courts. Arkansas Rule of Civil Procedure 44, which was created by our supreme court, therefore supersedes the UEFJA language pertaining to how foreign judgments may be filed with a court of this state. See also Bird v. Shaffer , 2012 Ark. App. 464, 2012 WL 3854886. The circuit court did not err on this point.
V. Agility's Remaining Points
Because Arkansas Rule of Civil Procedure 44 controls, we agree with the circuit court that Agility's judgment was not properly registered or enforceable. And, because it was not properly registered or enforceable, it necessarily could not serve as a lien on the real estate owned by Largent in Sebastian County. Finally, because there was no lien on the real estate owned by Largent in Sebastian County at the time of the sale of the property, the circuit court did not err in finding that WATS's petition for declaratory judgment was moot.
Affirmed.
Klappenbach and Vaught, JJ., agree.
An additional order was also entered on December 2, 2015. This one granted Largent's motion to remove the nunc pro tunc language from the July 24, 2015 order setting aside the order vacating the foreign judgment. Agility does not argue on appeal that the court erred in removing this language from this order.
28 U.S.C.A. § 1738 provides, in part, that "[t]he records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form." | [
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BART F. VIRDEN, Judge
Appellant Michael Scott appeals from the Logan County Circuit Court's termination of his parental rights to his children, M.S. (DOB: 7-1-2002), B.S. (DOB: 10-3-2007), and T.S. (DOB: 9-28-2012). Michael argues that there was insufficient evidence of grounds for termination and that the trial court erred in finding that termination of his parental rights was in his children's best interest. We affirm the trial court's decision.
I. Procedural History
On September 2, 2016, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect as to the Scotts' children. In an affidavit attached to the petition, a DHS family-service worker attested that DHS visited the home on August 31, 2016, because there was an open protective-services case on the family. The children's mother, Charla Scott, tested positive for illegal drugs and medication for which she had no prescription. Charla was the only one at home with the children, as Michael was at work. The children were taken into DHS custody. When Michael returned home from work, he went to the DHS office where, the family-service worker attested, he became "verbally aggressive." The family-service worker stated that Michael had cursed at and threatened the workers and that he had said that he was "going to get a gun because no one is taking [his] kids." The affidavit also indicated that DHS/DCFS had had a history with the family since 2010. There was a true finding of inadequate supervision as to Charla, a true finding of cuts, bruises, and welts as to Charla, a true finding of medical neglect against Michael, a true finding of neglect against Charla, and a true finding of sexual abuse against Charla's boyfriend.
The trial court entered an ex parte order for emergency custody and later found that probable cause existed to issue the order. Michael was ordered to submit to random drug screens, watch "The Clock is Ticking" video, attend parenting classes, obtain and maintain stable and appropriate housing and stable and gainful employment, submit to a psychological evaluation and follow any recommendations, attend counseling, keep DHS informed of his contact information, and resolve all criminal issues.
On January 4, 2017, the trial court adjudicated the children dependent-neglected based on neglect due to inadequate supervision and parental unfitness. Michael stipulated to the finding and was ordered to complete the same tasks and services as set forth in the probable-cause order. A review order was entered on February 15, 2017, in which the trial court found that Michael had complied with the case plan in that he had started parenting classes, worked at McDonald's, attended counseling, maintained his home, and filed for divorce from Charla. The trial court noted, however, that Michael "does not always make the best decisions." Another review order was entered on May 23, 2017, in which the trial court found that Michael had partially complied with the case plan in that he had completed parenting classes; he was visiting his children; he worked as a manager at McDonald's; he was attending counseling; and he had divorced Charla. The trial court noted, however, that DHS had encountered Charla at Michael's home on April 10 and that Michael and Charla had been arrested for a domestic-violence incident that occurred on April 23 at Michael's home. A permanency-planning order was entered on August 23, 2017. In granting DHS's request to change the goal of the case from reunification to adoption, the trial court found that Michael had a "toxic" relationship with Charla, "which inhibits him from raising his kids." The trial court further found that Charla had been to Michael's home and that the police had been called, that Michael was not attending counseling, that Michael should not discuss termination of parental rights with his children during visitation, that the parents were not making progress, and that the children need permanency.
On September 16, 2017, DHS filed a petition for termination of the Scotts' parental rights. As to Michael, DHS alleged three grounds pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2017). A termination hearing was held on November 1, 2017.
II. Termination Hearing
Ronnie Goff, Michael's therapist at Western Arkansas Counseling and Guidance Center, testified that he treated Michael for major depression and anxiety, which he said likely stemmed from losing his children and feeling as though he could not regain custody of them. He said that he had visited with Michael five times since January 2017 and that Michael had missed four sessions without calling. Goff stated that Michael was "a little resistant" during sessions and that he "didn't seem to listen to much that was said about what he could do to improve his state of mind." He testified that he had offered Michael medication but that Michael had refused. Goff stated that Michael had made "very little progress." Goff testified that Michael "cares deeply for his children" and that
I do not feel like Mr. Scott, in his current mental state, is an immediate danger to his children. I have no indication that he exhibits any type of abusive behaviors. If his children were placed in his care, through what I know from Mr. Scott, those children wouldn't necessarily be in danger from his depression.
Goff stated, however, that he had not been able to get an accurate picture of Michael's parenting skills because Michael had attended so few sessions.
Pamela Feemster, a family-service worker with the Logan County DHS, provided testimony similar to what she had attested to in the affidavit attached to the petition for emergency custody and dependency-neglect. Steve Hodge, a DHS caseworker, testified that Michael had participated with the development of the case plan and that he had complied with parts of the case plan. He said that Michael had completed parenting classes in April 2017 and that he had submitted to a psychological evaluation. He said that Michael had started counseling, attended sporadically, and then stopped going altogether. Hodge said that, after Western Arkansas Counseling and Guidance Center had closed his case, Michael asked for a new referral, which he gave him that day. Hodge stated that he understood that Michael had attended one session since that referral. He testified that Michael has maintained his housing and employment but that he did not budget well. He said, for example, there were occasions on which Michael was unable to buy lunch for his children during visits. Hodge stated that, although Michael completed four of the five things he had been asked to do, he did not think that Michael had substantially complied with the case plan or made substantial progress.
Hodge said that Michael's visits with the children were, for the most part, good. He said that there was not much excitement or affection during his visits with B.S., whereas there was a lot of affection shown toward T.S., along with playing and "constant chatter back and forth." He testified that M.S. had run away from her placement. Hodge stated that the potential for adoption of B.S. and T.S. was "very good" but that he did not think that M.S. wished to be adopted, and given her tendency to run away, "she would not probably currently be highly adoptable." He testified that, although Michael had divorced Charla, he continued to be "in a relationship of some sort" with her. Hodge said that, while Michael had made some progress, "in looking at the problems at the beginning of the case and the problems that we see now, I'm not seeing the substantial and measurable progress."
B.S.'s foster mother for the past year testified that school officials "want to know when visitations are so that B.S. can meet with the counselor after visitations to get him back to a calm state of mind before going back into the class for [an] outburst." She said that B.S. had spoken of missing his younger sister and that, although he had spoken of his father, he "doesn't really feel loved by his dad or as important as his little sister to his dad." She further testified that, when B.S. was not visiting with his father, there was "a notable difference" in that "[B.S.] was just all-around happier" and acted as though "a weight [had been] lifted off of his shoulders." She said that it was normal for B.S. to wet the bed for two or three nights after visitation with Michael but that the bed-wetting had stopped.
Several police officers from the Paris Police Department testified. Jared Petz stated that he had had at least five contacts with Michael since he started at the department in May 2015 and that he had arrested Michael two or three times. He said that the contacts were related to domestic-violence issues between Michael and Charla. He testified that he had arrested Michael for domestic battery but that the charges had been dropped and that there was a no-contact order in place between Michael and his ex-wife. Lieutenant Robin Ellington testified that the department had "dealt with Michael Scott many, many, many, many times over the years." Ellington said that the department had first dealt with the Scotts in 2004 with regard to domestic-violence issues and that the last report had been made in connection with an incident that occurred on July 19, 2017. Christopher Hayden testified that he had located a runaway juvenile at Michael's residence the night before the hearing. He said that he had encountered four people there but that Michael was not at home. Hayden said that he saw M.S. there but did not know at that time that she was also a runaway. After learning of her status, he returned to Michael's residence and detained M.S.
M.S. testified that she is fifteen years old and that she had been made aware of the termination hearing by her mother. She said that she would like to see her and her siblings returned to their father. She stated that she and her siblings have a loving relationship with Michael, that Michael was not abusive, and that he could provide adequate supervision for them. She said that she thought he had been doing a good job as a father before the case was opened and that Charla was "much more to blame for the situation that me and my father are in." She said that, if Michael's parental rights are terminated, she will still consider him her father. As for Hayden's finding her the night before at Michael's residence, M.S. insisted that Michael had been at work and had not known that she was there.
Michael testified that he had divorced Charla in February or March 2017 and that she had been ordered to have no contact with him as part of the divorce. He said, however, that he had had five or six contacts with Charla because he had thought "maybe she'd straighten[ed] up" but that staying in contact with her had been "stupid." He said that his last contact with her was on July 19, 2017, and that she had come to his home and attacked him. He said that they both went to jail over the incident but that the charges had been dropped. He explained that M.S. had been messaging Charla but would not speak with him, so "it was the only way I could get in contact with my daughter." Michael agreed with the trial court's description of his relationship with Charla as "toxic" and said that he had had no communication with her since July. He stated that he understood that Charla was a danger to their children and insisted that he would keep them safe from her.
Michael said that he did not think he needed counseling and that he just needed his children back. He said that the reason he had refused medication recommended by his counselor was that he did not want to end up like Charla. He stated that he had missed some of his counseling sessions because he "did not wake up from working" and that other times his schedule had been changed and he could not make it. He pointed out that he had always rescheduled the missed sessions. Michael stated that he needed "another couple of months of counseling and increased visits with the kids." He stated that he thought the only thing standing in the way of his getting his children back was the fact that he had not completed counseling. Michael testified that "everything [DHS has] asked, I've done."
III. Termination Order
Pursuant to Ark. Code Ann. § 9-27-341(b)(3)(A), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood that the juvenile will be adopted if the termination petition is granted and 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. The order must also find by clear and convincing evidence one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B).
In terminating Michael's parental rights, the trial court relied on the three grounds alleged in DHS's petition: Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (the juvenile has been adjudicated dependent-neglected and has continued out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent); Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that the placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy those issues or rehabilitate the parent's circumstances, which prevent the placement of the juvenile in the custody of the parent); and Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B) ("aggravated circumstances," which 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).
As for the failure-to-remedy ground, the trial court found that, although Michael had complied with the case plan in some respects, he had attended only five out of nine counseling sessions. The trial court noted the therapist's testimony that Michael had made little progress and that he had not followed the recommendations. The trial court stated that the case began because Michael had trusted Charla to care for the children while he was at work, despite her substance-abuse issues. The trial court found that Michael and Charla had a toxic relationship with "constant instability" and domestic-violence incidents and that, even after Michael had divorced Charla, Michael admitted having contacted Charla five or six times. Regarding the subsequent-factors ground, the trial court noted Michael's lack of progress dealing with his mental-health issues through counseling and his statement that he did not want counseling-he just wanted his children back. On the aggravated-circumstances ground, the trial court found that, despite the provision of services, there was still "chaos in the home." The trial court also noted that Michael had missed four out of nine counseling sessions and had not followed his therapist's recommendations. The trial court pointed out that, while Michael loves his children, "he thinks this case is all about him, not his children."
Next, the trial court found that B.S. and T.S. are adoptable and that M.S. may become adoptable once she is in a stable placement and works on her issues through counseling. The trial court also found that there was potential harm in returning the children to the parents given the toxic relationship between Michael and Charla and Michael's refusal to remedy his issues through counseling.
IV. Standard of Review
We review termination-of-parental-rights cases de novo. Williams v. Ark. Dep't of Human Servs. , 2013 Ark. App. 622, 2013 WL 5872757. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep't of Human Servs. , 360 Ark. 340, 201 S.W.3d 391 (2005). On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Id.
V. Discussion
A. Grounds
Michael challenges all three grounds found by the trial court, but we address only the aggravated-circumstances ground. Proof of only one statutory ground is sufficient to terminate parental rights. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. With respect to this ground, Michael argues that the trial court tried to use his "poor decision making" to support this ground. He states, however, that there was not much evidence to support this ground, other than his missing counseling appointments and the occasional presence of Charla in his life-but not the children's lives.
The purpose of the termination-of-parental-rights statute 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. Ark. Code Ann. § 9-27-341(a)(3). Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Friend v. Ark. Dep't of Human Servs. , 2009 Ark. App. 606, 344 S.W.3d 670. In deciding whether to terminate the parental rights of a parent, the trial court has a duty to look at the entire picture of how that parent has discharged his or her duties as a parent. Id. A child's need for permanency and stability may override a parent's request for additional time. See Henderson v. Ark. Dep't of Human Servs. , 2010 Ark. App. 191, at 11, 377 S.W.3d 362, 368. 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. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, 489 S.W.3d 182.
DHS has provided services to Michael, and he has completed most of them. Michael was given the opportunity to get counseling to deal with his mental-health issues, but he missed almost as many counseling sessions as he attended. Given his attitude in being resistant during sessions, not listening to and not following his therapist's recommendations, and his statement that he did not want or need counseling, it is doubtful whether additional counseling could have benefited him. The trial court apparently concluded that there were no other services that DHS could offer Michael that would result in his successful reunification with his children, and we agree with this conclusion. We are not left with a firm and definite conviction that the trial court made a mistake by terminating Michael's parental rights on the ground of aggravated circumstances.
B. Best Interest
Regarding best interest, Michael challenges only the potential-harm prong of the best-interest analysis. He does not challenge the trial court's finding that his children are adoptable. Instead, Michael argues that there was no evidence that the health and safety of the children would be in danger if they were returned to his custody. Michael states that there was no evidence that he would continue a relationship with Charla if the children were returned to him. Also, he points out that his therapist specifically testified that he is not a danger to his children.
In determining potential harm, the trial court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Harbin v. Ark. Dep't of Human Servs. , 2014 Ark. App. 715, 451 S.W.3d 231. The trial court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Id.
Michael stayed in contact with Charla after their divorce, despite their longstanding problems with domestic violence, and Michael failed to attend counseling and follow the recommendations of his therapist to deal with his mental-health issues. We cannot say that the trial court clearly erred in finding that there was potential harm in returning the children to Michael's custody. Further, while Goff testified that Michael's depression and anxiety would not harm the children or present a danger to them, the therapist also said that he could not get an accurate or full picture of Michael's parenting skills because Michael had attended so few counseling sessions and that he had made little progress in counseling.
Affirmed.
Abramson and Hixson, JJ., agree.
The trial court also terminated the parental rights of the children's mother, Charla Scott; however, she is not a party to this appeal. | [
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Vaught, J., dissents. | [
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KENNETH S. HIXSON, Judge
Appellant Brian Morgan (Brian) appeals from an August 31, 2017 order modifying child support filed by the Benton County Circuit Court in favor of appellee Kacie Lynn Morgan (Kacie). On appeal, Brian contends that (1) the circuit court erred when it modified child support based on grounds not pleaded in the petition for modification of child support, (2) the circuit court erred in finding that there was a change in circumstances warranting a modification in child support, and (3) the circuit court erred in its calculation of child support. We affirm.
I. Facts
The parties were married on September 24, 2004, and have two children. A decree of divorce was filed on October 6, 2014. The decree reflects that the parties agreed and approved the terms of the divorce. Kacie was awarded primary custody of the children with visitation granted to Brian. Brian was ordered to pay child support in the amount of $200 biweekly and to maintain health-insurance benefits for the children. Any medical expenses not covered by health insurance were to be shared equally between the parties. Brian further agreed to pay one-half of the childcare expenses until childcare is no longer necessary, pay 25 percent of his year-end bonus for the year 2014, and pay 15 percent of his year-end bonus after 2014 into a savings account. Pursuant to the order, each party was permitted to claim one child as a dependent for tax purposes.
Kacie subsequently filed a petition for modification of child support on February 28, 2017. In her petition, she alleged that she was entitled to a modification commensurate with the Arkansas Family Support Chart because Brian's income had increased by 20 percent or by $100 or more per month. Brian filed an answer generally denying the allegations, and a hearing was held on July 31, 2017.
There was no testimony presented at the hearing. Instead, the parties stipulated to and admitted two exhibits for the circuit court's consideration in ruling on Kacie's petition. The exhibits consisted of information regarding Brian's income, including his 2014 and 2016 tax returns. Kacie's counsel additionally argued at the hearing that the divorce decree did not comply with Administrative Order No. 10(I) (2017) in that the child-support order failed to recite the payor's income, the amount of support that was required under the guidelines, and whether the court deviated from the family-support chart. Kacie's counsel further argued that for the purposes of calculating his child-support obligation, the circuit court should include as income the federal and state tax refunds Brian received.
Brian's counsel objected to any of the arguments that would justify a modification that were not included in the petition for modification of child support. Although Brian's counsel conceded that the language required under Administrative Order No. 10 was not contained in the decree of divorce, he argued that there was nothing to indicate that the decree was not otherwise enforceable. His counsel further argued that it was Brian's position that the only change of circumstance that had been alleged and was before the circuit court was whether there had been an increase in income. Brian maintained that his income had actually decreased since 2014.
The circuit court announced from the bench that
in order to avoid coming back here again, I'm going to allow the pleadings to conform to what in essence is the proof that is submitted here, and-and I am going to take this matter under advisement and will offer a written opinion just as soon as I reasonably can. I anticipate that will be within a couple of weeks. Is there anything else that needs to be addressed at this time?
Brian's counsel immediately responded that he requested the opportunity to file a posthearing memorandum within five days. The circuit court granted his request and additionally permitted Kacie to file a reply to any memorandum.
In his memorandum, Brian argued that the parties agreed to a deviation from the child-support guidelines in the decree of divorce; however, he also agreed that the decree itself did not set forth any reasons for the deviation. Although Brian acknowledged that a court may allow an amendment to conform to the evidence, Brian argued that Kacie was barred from arguing that the failure of the decree of divorce to include the language required under our rules constituted the requisite change in circumstances for a modification of child support. He explained that Kacie was barred from that argument because she had failed to obtain relief under the time limitations prescribed under Arkansas Rule of Civil Procedure 60. Regarding the allegation that his income had increased warranting a modification, Brian explained that his income had actually decreased in 2016, after disregarding any tax refunds that he received. Therefore, he argued that the petition should be denied because Kacie had failed to sustain her burden of showing a material change of circumstances justifying a modification. Finally, Brian alternatively argued that his tax refunds should not be included as income when calculating child support because he was permitted to claim one child as a dependent by agreement in the decree of divorce. He admitted that there was "a direct correlation in the increase in refund attributed to the benefit of claiming a child as a dependent for tax purposes." However, he argued that its inclusion "is tantamount to counting it twice ... [and f]or the Court to then take away the benefit of claiming himself and a child for tax purposes by adding back the refund into the next year's income for child support computation runs counter to logic."
Kacie filed a reply to Brian's memorandum. In it, she argued that "[a]s the amount of child support that is owed by the plaintiff pursuant to the Arkansas Family Support Chart is more than that ordered by the parties' decree of Divorce, that in itself creates a material change of circumstances pursuant to Arkansas Code Annotated section 9-14-107." Kacie further argued that the tax refunds should be included as income in calculating Brian's child support because our supreme court has consistently ruled that the definition of income is intentionally broad and designed to encompass the widest range of sources consistent with this state's policy to interpret income broadly for the benefit of the child. To that end, she explained that Brian was awarded the ability to claim one child as a tax dependent even though he was not the primary custodial parent. She claimed that this created a windfall to Brian that he received each year, and his refunds should therefore be included as income.
In its order filed on August 31, 2017, the circuit court specifically made the following pertinent findings:
2. The Decree of Divorce filed in this matter on October 6, 2014, failed to comply with Administrative Order 10 in that it failed to recite [Brian's] income, the amount of support required under the Child Support Guidelines and whether there was a deviation from the Family Support Chart and the reasons therefor.
3. The parties have two (2) minor children and [Kacie] was not represented by counsel during the divorce phase of this case.
4. The tax refund received by [Brian] shall be included as income for purposes of calculating his child support obligation. The law is settled that the definition of income is broad and designed to encompass the widest range of sources consistent with this State's policy to interpret income broadly for the benefit of the child. Evans v. Tillery , 361 Ark. 63, 204 S.W.3d 547 (2005) ; OSCE v.Hearst , 2009 Ark. 599, 357 S.W.3d 450 (2000).
5. [Brian's] obligation to pay child care as ordered in the Decree of Divorce is now moot as the both minor children are in school and there are no childcare costs required. This change of circumstances since the entry of the Decree also creates a basis for the Court to revisit the issue of child support.
6. The Court finds that there has been a change of circumstances as no deviation from the child support guidelines is stated nor explained in the Decree. However, the amount of support ordered paid by [Brian] substantially deviates from the guideline. Without an explanation for the deviation, the Court concludes that the child support shall be brought in compliance with the Arkansas Family Support guidelines for the benefit of the parties' two (2) minor children.
7. Based upon the stipulated exhibits of the parties, in accordance with the Arkansas Family Support Chart, [Brian's] child support obligation shall be based upon a net income of $1446.14 bi-weekly based upon the 2016 tax year. The amount of child support to be paid by [Brian] to [Kacie] is modified and increased to $352.00 bi-weekly to commence with the date [Kacie] filed her Petition for Modification, February 28, 2017, resulting in an arrearage of $1976.00 through August 25, 2017.
8. Said arrearage shall bear interest at the rate of ten percent (10%) per annum. Further, [Brian] shall pay an additional sum of twenty percent (20%) of his bi-weekly child support obligation, or $70.00 bi-weekly, until the arrears are fully satisfied.
9. [Kacie] shall be awarded attorney fees and costs in the amount of $1905.00 and costs of $105.00, which shall be paid by October 31, 2017.
This appeal followed.
II. Our General Standard of Review
Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. See Hall v. Hall , 2013 Ark. 330, 429 S.W.3d 219. In reviewing a circuit court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion. Id. However, a circuit court's conclusion of law is given no deference on appeal. Id.
In determining a reasonable amount of child support, the court shall refer to the most recent revision of the family-support chart. Ark. Code Ann. § 9-12-312(a)(3)(A) (Repl. 2015). It shall be a rebuttable presumption for the award of child support that the amount contained in the family-support chart is the correct amount of child support to be awarded. Ark. Code Ann. § 9-12-312(a)(3)(B). Only upon a written finding or a specific finding on the record that the application of the family-support chart would be unjust or inappropriate, as determined under established criteria set forth in the family-support chart, shall the presumption be rebutted. Ark. Code Ann. § 9-12-312(a)(3)(C). All orders granting or modifying child support shall contain the court's determination of the payor's income, recite the amount of support required under the guidelines, and recite whether the court deviated from the family-support chart. Ark. Sup. Ct. Admin. Order No. 10(I).
III. Amending the Petition for Modification of Child Support
Although pleadings are required so that each party will know the issues to be tried and be prepared to offer proof, Arkansas Rule of Civil Procedure 15(b) allows for the amendment of the pleadings to conform to the evidence introduced at trial:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time.... If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.
Ark. R. Civ. P. 15(b) (2017). Thus, absent express or implied consent, the question of whether pleadings may be amended to conform to the evidence is within the sound discretion of the circuit court. Pineview Farms, Inc. v. A.O. Smith Harvestore, Inc. , 298 Ark. 78, 765 S.W.2d 924 (1989). A party should be allowed to amend absent prejudice; an important consideration in determining prejudice is whether the party opposing the motion will have fair opportunity to defend after the amendment. Id.
At the beginning of the hearing on the petition for modification of child support, Kacie's counsel alleged additional grounds to show that there had been a change of circumstances warranting a modification. Brian's counsel objected, and the circuit court permitted the petition to be amended. On appeal, Brian repeats his objection to the amended allegations and claims that he suffered prejudice because it was a "trial by ambush."
A circuit court's decision regarding the amendment of pleadings to conform to the evidence will not be reversed absent a manifest abuse of discretion, and the party seeking reversal on that ground must show the manifest abuse. Honeycutt v. Honeycutt , 2017 Ark. App. 113, 516 S.W.3d 750. We do not think that Brian has met his burden of proving material prejudice or a manifest abuse of the circuit court's discretion. First, as is more fully addressed below, Kacie's additional arguments regarding a change of circumstances were not barred as Brian contended before the circuit court, and again on appeal, and were permissible in her petition for modification of child support. Further, at the hearing, the circuit court granted Brian's request to submit a posthearing memorandum before making any ruling, which Brian subsequently filed. Therefore, under these circumstances, we cannot say that the circuit court abused its discretion in permitting the amendment.
IV. Change in Circumstances
It is axiomatic that a change in circumstances must be shown before a court can modify an order for child support. Hall, supra. In addition, the party seeking modification has the burden of showing a change in circumstances. Id. In determining whether there has been a change in circumstances to warrant an adjustment in support, the court should consider remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart. Id. We have made it clear that a finding that a material change in circumstances has occurred is subject to a clearly erroneous standard of review. Id.
Brian argues on appeal that the circuit court erred in finding a change in circumstances to modify child support. The circuit court specifically found that there had been a change in circumstances because the decree of divorce deviated from the child-support guidelines yet did so without any explanation. The circuit court further found that a change in circumstances had occurred because although Brian had been ordered in the decree to pay for childcare expenses, there were not any childcare expenses with both children now in school. Brian argues on appeal that these findings were erroneous because Kacie had waived any error in the decree by approving the order and failing to seek timely relief and because the decree contemplated that the children would outgrow the need for childcare.
Much of Brian's brief on appeal focuses on his argument that Kacie was time-barred from complaining that the decree of divorce that set child support failed to comply with Administrative Order No. 10. He argues that because she failed to appeal from the decree or seek timely relief under Arkansas Rule of Civil Procedure 60, the decree could not be modified under the statute for this reason under the doctrines of waiver or res judicata. Brian is mistaken, and his arguments have already been rejected in Stevenson v. Stevenson , 2011 Ark. App. 552, 2011 WL 4388282, and Alfano v. Alfano , 77 Ark. App. 62, 72 S.W.3d 104 (2002).
The general rule is that a court cannot modify a parties' contract that is incorporated into the decree. Stevenson, supra. However, we have held that a circuit court always retains jurisdiction over child support as a matter of public policy, and no matter what an independent contract states, either party has the right to request modification of a child-support award. Id. That said, a party seeking modification has the burden of showing a change in circumstances sufficient to warrant the modification, and there is a presumption that the circuit court correctly fixed the proper amount in the original divorce decree. Alfano, supra. Arkansas Code Annotated section 9-14-107(c) specifically states that a material change of circumstances is found to exist when there is an inconsistency between the existing support award and the amount of support that results from application of the family-support chart, and no reasons are given to rebut the presumption that the guideline amount was correct. See Stevenson, supra. As a result of Arkansas Code Annotated section 9-14-107(c), parties cannot with any security enter into agreements regarding child support that vary by even a small amount from the family-support chart. Alfano, supra. Although there are numerous reasons why parties would enter into such agreements, counsel for such parties should consider setting out in the support order reasons for the variance that would constitute a "rebuttal" of the chart and obtaining the approval of the circuit court before entering into such agreements in the future. Id.
As in both Stevenson and Alfano , the parties here agreed to the amount of child support set in the decree, and the parties did not dispute that the amount deviated from the chart amount. It is also undisputed that the circuit court failed to follow the correct procedures in deviating from the chart amount in that it failed to make a specific written finding, after considering all relevant factors, that the chart amount was inappropriate or unjust. Because section 9-14-107(c) was applicable, we cannot say that the circuit court's finding of a material change of circumstances was clearly erroneous.
V. Child Support
Because there was a material change of circumstances under the statute, we now turn to appellant's final arguments regarding the child-support award. Section II of Administrative Order No. 10 defines income in pertinent part as follows:
a. Income means any form of payment, periodic or otherwise due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical Insurance paid for dependent children; and
4. Presently paid support for other dependents by court order, regardless of the date of entry of the order or orders.
Cases reflect that the definition of "income" is "intentionally broad and designed to encompass the widest range of sources consistent with this State's policy to interpret 'income' broadly for the benefit of the child." Evans v. Tillery , 361 Ark. 63, 204 S.W.3d 547 (2005) ; Ford v. Ford , 347 Ark. 485, 65 S.W.3d 432 (2002) ; McWhorter v. McWhorter , 346 Ark. 475, 58 S.W.3d 840 (2001) ; and Davis v. Office of Child Support Enforcement , 341 Ark. 349, 20 S.W.3d 273 (2000).
Ark. Sup. Ct. Admin. Order No. 10(II).
Brian argues that the circuit court "improperly ignored (3) Medical insurance paid for dependent children; and (4) Presently paid support for other dependents by court order, regardless of the date of entry of the order or orders." However, Brian cannot now complain about the circuit court's failure to consider the amounts, if any, that he paid for medical insurance for his dependent children or presently paid support for other dependents by court order when he did not produce any evidence to the circuit court that he was entitled to either deduction. See Louton v. Dulaney , 2017 Ark. App. 222, 519 S.W.3d 367. The parties stipulated to the exhibits admitted at the hearing, and those documents did not include any information documenting that Brian had actually paid for medical insurance or support for other dependents, nor did Brian make any argument to the circuit court that he was entitled to such deductions.
Finally, Brian argues that the circuit court erred in considering the tax refunds that he received as income. Kacie argued to the circuit court that Brian was awarded the ability to claim one child as a tax dependent even though he was not the primary custodial parent and that this benefit created a windfall to Brian that he received each year. She therefore argued that the tax refunds that he received on account of this benefit should be included as income given the broad definition of income under Administrative Order No. 10, and the circuit court agreed that the tax refunds should be included as income for purposes of calculating his child support obligation.
In Jones v. Jones , 43 Ark. App. 7, 858 S.W.2d 130 (1993), we affirmed a circuit court's refusal to count tax refunds or any benefit received from claiming children as dependents for income-tax purposes as "income" for purposes of calculating child support. However, we did not do so on the basis that the inclusion of these amounts was improper. Id. Rather, we explained that the appellant had failed to bring up a record sufficient to demonstrate that the circuit court's decision was in error. Id. In particular, we noted that the appellant failed to establish that the tax refunds would be a recurring event and that appellant failed to introduce any evidence to show the monetary value of the tax exemptions sufficient to demonstrate error. Id.
Here, the parties stipulated to the tax returns showing the tax refunds that Brian received. The decree further permitted Brian to claim one child as a dependent by agreement every year. Brian additionally admitted in his posthearing motion that there was "a direct correlation in the increase in refund attributed to the benefit of claiming a child as a dependent for tax purposes." As we already noted above, the definition of income for child support purposes is "intentionally broad and designed to encompass the widest range of sources consistent with this State's policy to interpret 'income' broadly for the benefit of the child." Ford v. Ford , 347 Ark. 485, 495, 65 S.W.3d 432, 439 (2002) ; see also Ark. Sup. Ct. Admin. Order No. 10(II)(a)(4). To that end, our supreme court has previously recognized nonperiodic monetary judgments, monetary gifts, certificates of deposit, retirement payments, and gambling winnings as income for purposes of determining child support. See, e.g. , Evans v. Tillery , 361 Ark. 63, 204 S.W.3d 547 (2005) ; Ford , supra ; McWhorter v. McWhorter , 346 Ark. 475, 58 S.W.3d 840 (2001). Thus, under the broad definition of income and under these specific facts, we cannot say that the circuit court's findings constituted reversible error.
Affirmed.
Abramson and Virden, JJ., agree.
Kacie's last name is now Myers.
In his brief, Brian states that "all child support payments (particularly to include the ordered 1/2 of child care expenses)" should have been deducted from his income. Brian is mistaken. The fourth deduction listed in section II of Administrative Order No. 10 is applicable only to other children who are not born of the marriage at issue. Here, Brian cannot deduct the child support of his two children as he alleges because they are his children with Kacie. See Johnson v. Young , 2017 Ark. App. 132, 515 S.W.3d 159.
Administrative Order No. 10(III)(f) provides that "[a]llocation of dependents for tax purposes belongs to the custodial parent pursuant to the Internal Revenue Code. However, the Court shall have the discretion to grant dependency allocation, or any part of it, to the noncustodial parent if the benefit of the allocation to the noncustodial parent substantially outweighs the benefit to the custodial parent." | [
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Brandon J. Harrison, Judge, dissenting.
[A] motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles. Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike.
What legal principles inform a circuit court's decision to award an attorney fee in a child-custody and paternity case when each party has a legitimate claim against the other for a potential fee award? And if one or more of the principles can be identified, should a circuit court be required to minimally explain why it has chosen to award a fee to one party over the other? If not, how can this court ensure that like cases will be decided alike? This case raises these important questions, ones not often asked and answered.
I and three colleagues conclude that a circuit court should state the reason why it has ordered one party to pay another party thousands of dollars in attorney fees. This court has helped create the problem that exists, which is that circuit courts are not required to provide even a minimal amount of reasoning behind an attorney-fee assessment. We should therefore lead the effort to correct a deficiency that has crept into this area of judge-made law. The majority has passed on an opportunity for correction; but the better course is to reverse the award and remand the issue to the circuit court. If that court makes the same decision on remand, then it can explain why it assessed Brandi's fee against Jason. Ditto if the opposite result issues, or if no fee is awarded at all on remand and a party appeals. In any event, we would review the circuit court's reasoning and ultimate decision under the abuse-of-discretion standard.
Since his son's birth in 2010 until the unmarried couple's ultimate separation in January 2016, Jason had frequent and meaningful time with his son and Brandi. Even after the couple's separation, visitation worked out relatively well for some six months, until the summer of 2016. That is when Brandi stopped allowing Jason to see, and perhaps even telephone, his son. The block occurred when Brandi learned that Jason had a sexual relationship with Brandi's best friend. After not seeing his son for what appears to be at least several weeks, Jason's "only remedy" was to file a paternity case in which he sought joint custody and visitation. In Jason's view, had Brandi continued to allow visitation then he would not have had to file his petition, and she would not have accrued more than $ 8,000 in attorney fees.
Brandi defeated Jason's claim to modify custody and successfully defended against his attempt to dismiss her counterclaim for child support. The court entered a $ 4,320 judgment against Jason for retroactive child support and ordered him to pay $ 90 per week in support. Jason's child-support obligation was tied to his paternity case, which he initiated.
In the end, each party asked the circuit court to assess his or her attorney fee against the other. The bills were virtually equal: Jason was charged $ 8,065, Brandi $ 8,965. Without explanation, the circuit court ordered Jason to pay Brandi's attorney fees. Jason challenged the decision. He doesn't argue that the amount charged to Brandi by her own lawyer was unreasonable-that would implicate the factorial analysis of Chrisco v. Sun Industries, Inc. , 304 Ark. 227, 800 S.W.2d 717 (1990). Jason's complaint is more fundamental: he claims the circuit court abused its discretion by ordering him to pay Brandi's attorney fee given that he essentially had to sue to regain access to his son.
Statutes permitted the circuit court to award an attorney fee in this case, to either Brandi or Jason. For example, Ark. Code Ann. § 9-10-109(a)(1)(A) (Repl. 2015) authorizes, but does not require, a court to award an attorney fee in a paternity action. See Davis v. Williamson , 359 Ark. 33, 194 S.W.3d 197 (2004) (fee denied); see also Ark. Code Ann. § 9-27-342(d) (Repl. 2015). Arkansas Code Annotated § 9-14-233 (Repl. 2015) permits a fee award in a successful child-support-enforcement claim. So each party in this case had a statutory basis to request attorney fees.
Our principal point is straightforward: a court's decision to exercise its discretionary authority to order a party to pay the other party's attorney fee is not the same as explaining why the court ordered it done. (Flip the coin; had Brandi been ordered to pay Jason's fee and appealed, we'd be asking the same essential questions.)
Requiring circuit courts to briefly explain their reasoning behind a fee award should not be controversial. Three core and salutary consequences result. First, every party has a right to know why he or she is being ordered to pay someone else's attorney fee. Transparency is a hallmark of Arkansas's judicial system. Second, a person needs to know why he or she is being assessed someone else's attorney fee so a record for reversal or modification can be clearly made contemporaneous with the adverse ruling. A party can't pointedly object to a ratio decidendi that operates in silence. Finally, this court can more properly fulfill its role as an appellate tribunal when it has an express ruling to evaluate; otherwise we're left searching for a reason to uphold, reverse, or perhaps modify the circuit court's decision.
Our colleagues had to review the record anew and decide-for the first time ever in the case-that Jason should pay Brandi's fee because it is "abundantly clear that Brandi prevailed in all meaningful ways in this litigation." The circuit court made no such statement. This court has supplied its own reason to affirm; and it did so on a record that contains little information about the parties' incomes, their assets, their ability to pay an $ 8,000 attorney fee, and in the absence of any contempt.
The majority invokes Arkansas Rule of Civil Procedure 52(a) as authority for why factual findings are "unnecessary." This point arguably stems from Tiner v. Tiner , 2012 Ark. App. 483, 422 S.W.3d 178, which states that requiring circuit courts to explain why an attorney-fee award has issued will gum up the works. "As a practical matter, this court would impose a considerable burden on the circuit court if we required that specific findings be made when awarding attorney's fees, given the myriad of factors to be considered." Id. at 15, 422 S.W.3d at 186-87. We respectfully disagree. Tiner 's statement, well-intentioned though it was, should be jettisoned for a more transparent, party-centered approach. See, e.g. , Stilley v. Fort Smith Sch. Dist. , 367 Ark. 193, 238 S.W.3d 902 (2006) (the "better practice" is for a circuit court to explain its decision).
One, two, or three well-crafted sentences by a lawyer in a proposed precedent should nearly always suffice to communicate what is needed in this context.
The court may ask the party prevailing on a motion to draft an order. This practice is longstanding in Arkansas. As the Supreme Court has observed, '[i]t is customary for trial judges to rely upon the members of the bar to prepare judgments, orders and decrees in accordance with the court's instructions. Opposing counsel should be given the opportunity to review the document before it is presented to the court.'
David Newbern, John J. Watkins & D.P. Marshall Jr., 2 Arkansas Practice Series: Civil Practice & Procedure § 20:2, at 446 (5th ed. 2010) (internal citations omitted).
Many judges, of course, will take up their own pens or turn to the keyboards and explain why one party must pay another's attorney fee. The focus should return to the parties, so they may receive a reason for the decision. Why a court has acted is as important that it has acted. In the long run, the administration of justice is better served if everyone knows why one person is having to pay another person's attorney fee, especially given the increasing amounts we are continually seeing in this state. See, e.g. , Hargis v. Hargis , 2018 Ark. App. 490, 563 S.W.3d 568 ($ 18,000 attorney fee awarded to the ex-husband).
And if, in Tiner 's words, "a myriad of facts" exist that could support an attorney-fee award in the family-law context, then that specter increases, not decreases, the need for a transparent explication. To the extent Tiner holds or implies otherwise, it should be overruled.
* * *
The attorney-fee award in this case should be reversed and remanded to the circuit court so that it can expressly state a reason for any related decision it makes on remand. If a party appeals, then any reason provided would be reviewed under the abuse-of-discretion standard, as has long been the case and which no one seeks to change. But this court should not itself supply the reason (and a debatable one at that) to affirm a substantial fee award against a parent.
Abramson, Virden, and Hixson, JJ., join.
See Foster v. Foster , 2016 Ark. 456, 506 S.W.3d 808 ; Wilhelm v. Wilhelm , 2018 Ark. App. 47, 539 S.W.3d 619 ; Goodson v. Bennett , 2018 Ark. App. 444, 562 S.W.3d 847 ; and Wyatt v. Wyatt , 2018 Ark. App. 177, 545 S.W.3d 796, respectively. | [
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WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's order requiring him to register as a sex offender. Appellant's sole argument on appeal is that the circuit court lacked the authority or jurisdiction to order appellant to register as a sex offender pursuant to Arkansas Code Annotated section 9-27-356(b)(2). We affirm.
On October 10, 2014, appellant was adjudicated delinquent of sexual assault in the second degree. As part of that adjudication, appellant was ordered to complete a Community Notification Risk Assessment at the University of Arkansas for Medical Sciences. The assessment was completed on March 27, 2017; appellant was assigned a risk level of "Level III (High) high risk of sexual re-offense" and recommended to register as a sex offender. The appellee filed a motion on June 9, 2017, to require appellant to register as a sex offender. Appellant responded in opposition on June 19, 2017. A hearing on the motion was held on July 21, 2017.
Helen Chambers testified to completing a Registration Risk Assessment on appellant, in which she recommended that he be required to register as a sex offender as a "high risk." Appellant had been adjudicated delinquent of sexual assault and residential burglary for incidents in which he sat a minor on his lap and kissed the child on his lips, and for stealing underwear.
Chambers stated that appellant initially denied being involved in any sexual misconduct with the exception of sitting a minor on his lap; however, as she "brought [other incidents] up individually ... he agreed they were also true." These admissions included appellant's disclosure that he sexually abused his younger brother for "several years[,]" beginning when appellant was fifteen; there had been masturbation and fondling, but appellant had been unsuccessful in his attempts to get his brother to perform oral and anal sex. With regard to how many times he had sexually abused his brother, appellant said "there were too many times to remember how many." He had also masturbated in front of his six- and seven-year-old nieces. Chambers described appellant's sexual history as "unusually long[.]" Appellant had been diagnosed with pedophilic disorder. Chambers noted that it "appears that [appellant] has targeted children under the age of 10" and that his targets have remained under the age of ten even as appellant has gotten older.
Chambers testified THAT "there were instances of continued sexual abuse after being caught which is significant" because after reprimand and consequences, the likelihood of a particular behavior being a long-term problem is "considerably less [if the behavior is stopped after a reprimand] than if they continue to have sexual problems after being caught." Appellant's offenses continued despite having received treatment in the court system and "quite a bit of treatment including in-patient." She testified that appellant did not appear to show any remorse or empathy for his victims, though she believed he understood how sexual abuse can be harmful to victims.
Regarding the process of how she receives a child for assessment, Chambers testified that it is "usually triggered" by a court order when being done for the Department of Youth Services, but also AT the behest of the Department of Human Services (DHS) when a person exhibits sexual behavior that DHS wants to treat. In either case, to have a risk assessment there "has to be an adjudication." Chambers stated that in making her assessment, she looks at more than just the adjudicated crime; she looks at "his whole history[,]" many parts of which are not prosecuted in many instances.
The circuit court then took the matter under advisement. The circuit court entered its order on August 18, 2017, stating in pertinent part:
That pursuant A.C.A. 9-27-356, this Court did order a sex offender screening and risk assessment in that the [appellant] had been adjudicated a delinquent for the above serious sexual offense. That this Court has jurisdiction over [J.L.W.] and ordered him to submit to a Sex Offender Registration Risk Assessment. That all Sex Offender Risk Assessments are done by the UAMS Department of Pediatric Family Treatment Program and that this Risk Assessment has been done by Ms. Helen Chambers who is the LCSW with UAMS.
The circuit court then made extensive findings regarding the seriousness of the adjudicated offense, sexual assault in the second degree; Chambers's opinion that appellant is a high risk to reoffend; appellant's "history of sexual acting out" from the age of seven, then being twenty years of age; and his long history of treatment programs, including multiple residential programs. It then found that there was clear and convincing evidence, based on the asserted findings, that appellant should register as a sex offender. This timely appeal followed.
Arkansas Code Annotated section 9-27-356 provides that if a juvenile is adjudicated delinquent for second-degree sexual assault, the court shall order a sex-offender screening and risk assessment. This statute provides that the court may order sex-offender screening and a risk assessment if a juvenile is adjudicated delinquent for any offense with an underlying sexually motivated component (i.e., fourth-degree sexual assault). Arkansas Code Annotated section 9-27-356(b)(2) further provides that the court may require that a juvenile register as a sex offender upon recommendation of the sex-offender-assessment committee and following a hearing. Regarding issues of statutory interpretation, this court has stated the following:
This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. 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, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole.[ ]
Appellant's sole argument on appeal is that the circuit court lacked the authority or jurisdiction to order appellant to register as a sex offender pursuant to Arkansas Code Annotated section 9-27-356(b)(2). The crux of appellant's argument is that the circuit court based its ruling on the testimony of one person, Chambers, despite the statute requiring a recommendation from the nine-member Sex Offender Assessment Committee. Appellant asserts that the trial court did not receive the requisite recommendation from the Sex Offender Assessment Committee; therefore, the argument goes, the circuit court did not have the authority or jurisdiction to order appellant to register as a sex offender.
Appellant is correct in his assertion that the circuit court may require that a juvenile register as a sex offender upon recommendation of the Sex Offender Assessment Committee. However, his reliance on the asserted section is in error. Arkansas Code Annotated section 9-27-356(b)(2) depends on Arkansas Code Annotated section 9-27-356(b)(1) for applicability. Arkansas Code Annotated section 9-27-356(b)(1) states that "[t]he court may order a sex offender screening and risk assessment if a juvenile is adjudicated delinquent for any offense with an underlying sexually motivated component." Appellant was not adjudicated for an offense pursuant to Arkansas Code Annotated section 9-27-356(b)(1).
Appellant was adjudicated delinquent for the offense of sexual assault in the second degree, which is an explicitly enumerated offense listed in Arkansas Code Annotated section 9-27-356(a). There is no requirement of a recommendation from the Sex Offender Assessment Committee for offenses listed in Arkansas Code Annotated section 9-27-356(a), regarding which the statute states the following:
Following a sex offender screening and risk assessment, the prosecutor may file a motion to request that a juvenile register as a sex offender at any time while the court has jurisdiction of the delinquency case if a juvenile is found delinquent for any of the offenses listed in subsection (a) of this section.
Giving the statute its plain meaning based on the ordinary and accepted meaning of the language therein, it is clear that the section appellant references is inapplicable to his case and the applicable section permits an order to register as a sex offender to be based on a risk assessment completed by someone other than the Sex Offender Risk Assessment Committee. In light of the evidence before the circuit court, given that appellant does not challenge the substance of Chambers's report, does not assert that her recommendation was otherwise erroneous, and does not otherwise challenge the circuit court's order, we affirm.
Affirmed.
Abramson and Glover, JJ., agree.
(Repl. 2015).
In the order appealed from, the circuit court stated that appellant used the underwear to masturbate.
There was a three-to-four-year age difference between appellant and his younger brother, which Chambers said was "significant in [her] assessment because a younger child is going to be more easily influenced and under the control of an older sibling[,]" which "does relate back to [appellant's] pedophilic disorder."
Chambers defined "pedophilic disorder" as "a sexual arousal primarily with prepubescent children."
There was very short testimony from appellant's probation officer and an aftercare worker from DYS who was involved in appellant's case; none of the testimony is relevant to the point made on appeal.
D.S. v. State , 2017 Ark. App. 485, at 2, 528 S.W.3d 878, 879 (citing Ark. Code Ann. § 9-27-356(a)(3) ).
Id. at 2-3, 528 S.W.3d at 879 (citing Ark. Code Ann. § 9-27-356(b)(1) ).
Id. , 2017 Ark. App. 485, at 3, 528 S.W.3d at 879.
Wade v. State , 2009 Ark. App. 346, at 3-4, 308 S.W.3d 178, 181 (2009) (quoting Brown v. State , 375 Ark. 499, 292 S.W.3d 288 (2009) (internal citations omitted) ).
Ark. Code Ann. § 9-27-356(b)(2).
Ark. Code Ann. § 9-27-356(d). | [
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DAVID M. GLOVER, Judge
Appellant Janet Smyth appeals the Washington County Circuit Court's dismissal of her petition for contempt against her ex-husband, appellee James Smyth, for failure to mediate and to mediate in good faith. Janet presents seven points on appeal. She contends the circuit court (1) erred in finding the parties had not mediated and therefore erred in granting James's motion to dismiss on that basis and in denying her motion to reconsider; alternatively, the circuit court erred in finding, as James alleged, that she had not mediated in good faith, in dismissing her motion to modify, and in denying her motion to reconsider on that basis; (2) abused its discretion in dismissing her motion without holding a hearing and in refusing to grant her motion to reconsider when James alleged she did not attend mediation when she alleged she had, thus creating a factual issue; (3) abused its discretion in ordering the parties to attend mediation within ten days or have the case dismissed; (4) abused its discretion in dismissing her case without qualification while dismissing James's case without prejudice; (5) committed plain error in dismissing her entire case when, as James alleged, she had mediated issues that were contained in her contempt motion; (6) erred and abused its discretion in failing to rule on her motions to strike, for clarification, and for reconsideration; and (7) erred in making mediation a prerequisite to filing a motion to modify and for contempt and refusing to grant her motion for reconsideration on that issue, as compelling mediation before bringing a case to court is a violation of article 2, section 13 of the Arkansas Constitution. We reverse and remand.
History of Pleadings Since Divorce
The parties were divorced in September 2010. The divorce decree awarded Janet primary custody of the parties' two minor children, with James having reasonable visitation. James was ordered, among other things, to pay alimony and child support; buy Janet out of certain corporate/LLC
entities; refinance any debts on which Janet was a guarantor within two years of entry of the divorce decree; be responsible for any marital debt; and maintain a $ 1,000,000 life-insurance policy with Janet as the beneficiary and a disability policy to ensure Janet would receive her monetary payments as ordered under the divorce decree.
On September 23, 2011, an order was entered concerning visitation issues and the dates of certain payments James was to make to Janet. Additionally, paragraph fourteen of this order stated, "The parties shall submit to mediation prior to filing any future Petitions to Modify this Order or the Decree of Divorce previously filed herein." In an order filed on August 8, 2014, entitled "Final Agreed Order," the parties agreed James would have primary custody of their son (their older child), and the parties would share custody of their daughter, subject to reasonable visitation by both parties. Janet agreed to move back to the Fayetteville area to facilitate the joint custody, and the parties agreed that neither party would pay child support. In addition, paragraph eleven of the final agreed order provided that "should any future disputes between the parties arise that the parties are unable to resolve themselves, the parties shall first make a good faith effort to resolve said dispute in mediation prior to seeking relief in this court." In April 2015, this provision was enforced by the circuit court, as evidenced by its dismissal of Janet's motion for contempt and to modify custody for failure to attend mediation prior to seeking relief from the circuit court.
In July 2017, mediator Sue Ann Newman filed a letter with the circuit court advising that mediation between James and Janet was held on July 18, 2017; both parties attended and participated in the mediation; but no mediation agreement was executed. On November 17, Janet filed a motion for contempt and modification of child support; an amended motion was filed on December 6. Janet's motion alleged James had continued to make alimony and certain other marital-interest payments late, making only partial payments at times; had not removed her as guarantor on certain marital obligations; had failed to pay certain marital debts; had changed the beneficiary on his insurance policy to his new wife; had let the insurance policy lapse and had replaced it with a new policy with different provisions; had failed to attend parent-teacher conferences with her; had taken their daughter out of state without Janet's prior knowledge; and had failed to pick up their daughter on two occasions. Additionally, Janet asked that child support be ordered for the parties' daughter of whom the parties shared joint custody (their son had reached the age of majority by this time); requested that a protective order regarding James's financial information be lifted; and asked that visitation be updated to the current Washington County standard visitation schedule with modifications to reflect the joint-custody arrangement. In her motion, Janet acknowledged the parties were required to attend mediation prior to filing any modification actions and noted mediation had been completed in the summer of 2017, and the mediator had notified the circuit court via letter of the attempt at mediation.
In his answer, James asserted that Janet had "willfully, intentionally and maliciously violated the orders of this Court ... by failing and refusing to go to mediation prior to filing her present cause of action." James further alleged Janet was attempting to relitigate matters that had been fully and completely resolved pursuant to the July 2014 final agreed order. James denied Janet's allegations and further stated Janet had "knowingly and intentionally refused to seek mediation regarding her claims of child support prior to filing her Motion in this matter in a knowing, willful and malicious violation of paragraph 11 of the Final Agreed Order entered in this case," and he requested that the circuit court dismiss her child-support claim for this reason. He further alleged Janet had failed to raise any concerns during mediation about his attendance at parent-teacher conferences, in violation of the requirement that the parties mediate prior to coming to court. James also stated Janet's allegation that he had taken the parties' daughter out of state without Janet's knowledge was made in bad faith and without any merit or justification, and Janet had "failed and refused to seek mediation" on this issue prior to filing her motion for contempt. James denied Janet had presented all issues to mediation prior to filing her motion for contempt in the circuit court and further denied that Janet had complied with the requirement to attend mediation as directed. He asked the circuit court to deny and dismiss Janet's contempt motion and to award him costs and attorney's fees.
At this time, James filed a counterpetition for contempt against Janet, noting the circuit court required the parties to attend mediation prior to seeking any relief from the circuit court; Janet had previously ignored the requirement to mediate, which resulted in the dismissal of her prior motion for contempt in April 2015; and Janet had again ignored the mediation requirement when she filed her latest motion for contempt without first seeking mediation on several matters raised in her motion-specifically an award of child support, James's failure to attend parent-teacher conferences, taking the parties' daughter out of state without her prior knowledge, requesting the protective order be lifted, and transportation requirements. James acknowledged the parties had mediated on two separate occasions-once in the summer of 2015 and most recently in July 2017. However, he asserted a March 31, 2017 letter from Janet's counsel had limited the issues to be mediated to the timing of alimony payments, the release of Janet as guarantor on certain real property, and conditions related to his procurement of life insurance. He further acknowledged that just before mediation, Janet's counsel provided a second document confirming the issues to be raised at mediation and adding two additional issues-paying a marital credit card and adopting the Washington County standard visitation schedule with modifications. James stated no other issues were raised at mediation other than the ones listed above and contended Janet had deliberately chosen not to raise issues in mediation that she now raised in her motion for contempt, in violation of the circuit court's order.
In reply to James's counterpetition for contempt, Janet alleged she had not refused to attend mediation in 2015 but that the mediation had just not occurred prior to her filing her contempt motion. She further noted that the letter setting out the issues she wished to address in the 2017 mediation also included the statement, "as well as other issues related to the parties," and she claimed the issues pled in her contempt petition were addressed or were attempted to be addressed in that mediation. Janet accused James of not mediating in good faith.
On January 16, 2018, the trial-court administrator emailed counsel for the parties and stated the circuit court asked that they "attend mediation and it shall be scheduled within 10 days of today" or the case would be dismissed. Counsel conferred with each other and the mediator and advised the circuit court on January 25, 2018-nine days after the circuit court's directive-that mediation had been scheduled for April 11. The trial-court administrator then emailed counsel for the parties and stated the circuit court "asked that this case be mediated within 10 days" or it would be dismissed. Janet's counsel objected, replying in a letter to the circuit court that the parties had been told to schedule the mediation within ten days, not complete the mediation within that time, and she requested a hearing on the matter if the circuit court was going to dismiss the case.
On January 26, 2018, Janet filed a motion for clarification in which she requested guidance from the circuit court about the parties' mediation requirement. Janet explained she began initiating email exchanges with James in November 2016 to attempt to resolve many of the issues raised in the 2017 mediation, but nothing was resolved, and as a result, she requested mediation. Four months after the July 2017 mediation, Janet filed her contempt motion, and James filed his counterpetition for contempt. Janet asked for the circuit court's assistance in properly interpreting the mediation provision, specifically seeking "more specific rules or guidelines to follow, both in terms of when it is appropriate to seek mediation, and also how best to define good-faith efforts in mediation." Janet questioned if one of the parties believes the other party to be in contempt of a court order if the party is first required to attempt to mediate the issue or to move for contempt, especially if there was no real remedy to the contempt other than punishment by the circuit court; if mediation had occurred and a new dispute arises, did the parties have to mediate again; was showing up for mediation considered "good faith," as she believed all issues had been mediated but James alleged that not all issues were discussed; and when was a matter deemed mediated when that matter is part of a major topic that has been declined before it can even be discussed. Janet further alleged her former counsel's letter regarding issues to be mediated was of no moment because an agenda is not required prior to mediation, it is not proof of what was actually discussed in mediation, and it is in violation of Arkansas Code Annotated section 16-7-201 (Repl. 2010). The circuit court did not rule on this motion.
On the same day, January 26, Janet filed motions to strike portions of James's counterpetition for contempt and portions of his response to her contempt motion due to the fact he sought to introduce into the record as exhibits communications relating to the subject matter of the mediation which, Janet asserted, was in direct violation of Arkansas Code Annotated section 16-7-206(a). Janet also sought to have portions of James's response to her contempt motion struck because statements in his response were false, misleading, and had maligned her character before the circuit court by insinuating she had intentionally misled the circuit court. The circuit court also did not rule on either of these motions.
On February 2, 2018, the circuit court dismissed Janet's November 17, 2017 contempt motion and December 6, 2017 amended contempt motion for failure to seek and attend mediation in good faith prior to filing her pleadings and dismissed James's counterpetition for contempt, stating it could be refiled after the parties had attended mediation in good faith. Janet immediately filed a motion to reconsider or, in the alternative, for new trial; this motion was not ruled on by the circuit court and was deemed denied. Janet then filed a timely notice of appeal.
Standard of Review
The circuit court dismissed Janet's petition for contempt, as amended.
Our standard of review for the granting of a motion to dismiss is whether the circuit court abused its discretion. Hall v. Jones , 2015 Ark. 2, 453 S.W.3d 674. When reviewing a circuit court's order granting a motion to dismiss, the facts alleged in the complaint are treated as true and viewed in the light most favorable to the plaintiff, which requires the facts to be liberally construed in the plaintiff's favor. Id. To abuse its discretion, the circuit court must have not only made an error in its decision but also must have acted improvidently, thoughtlessly, or without due consideration. Reed v. Smith , 2018 Ark. App. 313, 551 S.W.3d 407.
Mediation Authority
Courts in Arkansas are encouraged and authorized to employ dispute-resolution processes such as mediation to resolve disputes, cases, and controversies of all kinds. Ark. Code Ann. § 16-7-201. Each circuit and appellate court in Arkansas is "vested with the authority to order any civil, juvenile, probate, or domestic relations case or controversy pending before it to mediation." Ark. Code Ann. § 16-7-202(b). Additionally, when parties to a divorce action have minor children residing with one or both parties, the court, prior to or after entering a decree of divorce, may require the parties to submit to mediation in regard to addressing parenting, custody, and visitation issues. Ark. Code Ann. § 9-12-322(a)(2) (Repl. 2015). In this case, the parties agreed in 2014 to make a good-faith effort to resolve disputes in mediation before filing actions in the circuit court.
Discussion
Janet's seven points for reversal are all interrelated. Her overarching argument is that the circuit court erred in dismissing her contempt petition, as amended, on the basis she failed to mediate prior to filing her pleadings in the circuit court or, in the alternative, she failed to attend mediation in good faith. We hold this primary argument has merit. The parties clearly attended mediation in July 2017; both parties admit it; and it is evidenced by the mediator's letter to the circuit court stating that the parties attended and participated in mediation, with no mediation agreement being reached.
The only evidence before the circuit court on the issue of mediation was that the parties attended and participated in mediation without reaching an agreement. In his counterpetition for contempt, James asserted no issues were raised at mediation other than the issues Janet identified prior to mediation-the timing of alimony payments, selling property on which Janet was a guarantor, paying a marital credit card, obtaining an appropriate life-insurance policy, and adopting the Washington County standard visitation schedule with modifications. But Janet contends other issues were raised and mediated in addition to the above listed issues.
It is clear the parties agree certain issues were mediated as mandated by the agreed order. Therefore, it was an abuse of discretion for the circuit court to dismiss those portions of Janet's motion for contempt that the parties agree were mediated. James then argues, citing McCoy Farms, Inc. v. McKee , 263 Ark. 20, 563 S.W.2d 409 (1978), that even if the circuit court abused its discretion, the error was harmless because Janet could not show prejudice. We do not agree. If issues were in fact mediated, as required by the agreed order, and no resolution was reached, then Janet's remedy under the agreed order was to file her grievances with the circuit court. To hold otherwise would prevent Janet from accessing the circuit court, which is certainly prejudicial to her.
The circuit court's order of dismissal also stated that Janet failed to attend mediation in good faith. This, too, we find was an abuse of discretion. The circuit court had no basis for its conclusion the parties had not mediated in good faith because there were no facts to support this holding.
James and Janet disagree whether issues other than the ones listed above were mediated. Janet claims other issues were mediated; James states they were not. The circuit court had no basis on which to determine whether other issues were or were not mediated without holding a hearing. Dismissing these contested claims was, therefore, an abuse of discretion.
Janet contends James's response to her petition for contempt improperly disclosed to the circuit court the substantive issues she sought to mediate in violation of Arkansas Code Annotated section 16-7-206. This statutory provision provides:
(a) Except as provided by subsection (c) of this section, a communication relating to the subject matter of any civil or criminal dispute made by a participant in a dispute resolution process, whether before or after the institution of formal judicial proceedings, is confidential and is not subject to disclosure and may not be used as evidence against a participant in any judicial or administrative proceeding.
(b) Any record or writing made at a dispute resolution process is confidential, and the participants or third party or parties facilitating the process shall not be required to testify in any proceedings related to or arising out of the matter in dispute or be subject to process requiring disclosure or production of information or data relating to or arising out of the matter in dispute.
(c) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the court having jurisdiction of the proceedings to determine in camera whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure.
We do not agree with Janet's broad interpretation of this statute. Our court reviews issues of statutory construction de novo. Andreasen v. South Mtn. Estates Prop. Owners Ass'n , 2018 Ark. App. 530, 564 S.W.3d 262 (citing Mamo Transp., Inc. v. Williams , 375 Ark. 97, 289 S.W.3d 79 (2008) ). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to 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 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.
While subsection 206 does prevent revealing the particulars of the communications relating to the subject matter of the mediation, we do not read the subsection to mean that the circuit court is prevented from knowing the subject matter of the mediation. Otherwise, the circuit court could never know, in this particular set of circumstances, if there had been an attempt to mediate issues prior to motions being filed in the circuit court. Here, the circuit court refused to hold a hearing to make this determination.
The circuit court instead, through its trial-court administrator and by email, conveyed to both parties' counsel it wanted mediation scheduled within ten days or the court would dismiss the contempt petition. As evidenced by the two emails contained in the record, counsel reviewed their schedules for available dates and contacted the mediator for her available dates; the mediation was scheduled within ten days, but it was not set to occur until two and a half months later, in April 2018. Because the mediation was not fully completed within ten days from the circuit court's first directive to schedule mediation, the circuit court dismissed Janet's contempt petition.
James contends that because Janet did not mediate prior to filing her contempt petition, the circuit court was correct to dismiss her petition. We do not agree. The circuit court abused its discretion on this issue as well. First, as we discussed above, the parties agreed some issues had been mediated. Second, the circuit court's directive, through the trial-court administrator, was to schedule mediation within ten days, which was done. Then, as the circuit court learned the mediation was not scheduled to occur for approximately two and a half months, it amended the directive-not only was mediation to be scheduled, it was to occur within ten days. When the mediation was not completed within ten days, the circuit court dismissed Janet's contempt petition, which was an abuse of discretion. Janet was not dilatory in scheduling the court-ordered mediation-it was scheduled within the ten-day window set by the circuit court; however, the circuit court then amended its directive requiring mediation to occur within ten days-a nearly impossible task to complete when trying to coordinate a common date with the two parties, their attorneys, and the mediator. This short window was punitive to Janet and was an abuse of discretion by the circuit court.
Janet also argues the circuit court abused its discretion in dismissing her contempt petition without qualification while dismissing James's counterpetition for contempt without prejudice, and in failing to rule on her motions to strike, for clarification, and for reconsideration. Given our holding that the circuit court abused its discretion in dismissing her contempt petition, it is not necessary to address these arguments. For the above reasons, we reverse and remand this case to the circuit court for a hearing (1) to litigate the issues the parties agree were mediated in July 2017; (2) to determine which, if any, of the other issues on which the parties disagree were mediated; and (3) to determine if the parties mediated in good faith.
Reversed and remanded.
Harrison and Klappenbach, JJ., agree. | [
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WAYMOND M. BROWN, Judge
Appellants Robert C. Goldtrap (Goldtrap) and Robert C. Goldtrap, D.D.S. P.A., appeal the Sebastian County Circuit Court's order denying their motion to vacate, modify, or correct an arbitration award in favor of appellees Bold Dental Management and Bold Dental Partners (Bold). Appellants also appeal the court's denial of their motion for reconsideration of the same. They argue on appeal that the court erred in refusing to vacate the arbitration award. They also argue that the court erred in reducing the time for Goldtrap to resubmit his breach-of-contract claim. We affirm.
The parties entered into several agreements on May 1, 2014. In the "Asset Purchase and Sale Agreement," appellant Goldtrap agreed to sell his dental practice to appellees for $30,000 and 330,000 shares of membership interest in Bold. In another agreement, Goldtrap was retained as an employee of Bold and entitled to a guaranteed thirty-percent payment of "actual collections attributable to and produced from services provided by Goldtrap." Goldtrap began practicing dentistry through Bold, but he was subsequently terminated on March 3, 2015.
Appellants filed a complaint against Bold on July 15, 2015, alleging three separate counts: (1) breach of contract, (2) wrongful termination, and (3) right to accounting and production of records. Appellees filed an answer on August 10, 2015, denying the essential elements of appellants' complaint. On August 13, 2015, appellees filed a motion to compel arbitration and stay judicial proceedings. According to the motion, the parties entered into a "Joinder Agreement" in which appellants agreed to become a party/member to the "Amended and Restated Operating Agreement" of Bold and to be fully, legally bound by, and subject to, all of the covenants, terms, and conditions of the "Operating Agreement." Article XV of the "Amended and Restated Operating Agreement" provided:
Any dispute or controversy between the Members or Board of Managers arising out of or otherwise relating to the Company or this Agreement shall be settled by arbitration to be held in Springdale, Arkansas in accordance with the rules then in effect of the American Arbitration Association or its successor.
Therefore, Bold asked the court to enter an order compelling arbitration and staying the action until the arbitration process had been concluded. Appellants filed a response on August 24, 2015, denying that they had agreed to arbitrate any dispute relating to the "Purchase Agreement," the "Guaranteed Payment and Service Agreement," and the "Covenant not to Compete and Confidentiality Agreement." Thus, appellants asked that appellees' motion be denied. A hearing on appellees' motion took place on September 16, 2015, and the court entered an order on September 21, 2015, granting appellees' motion as it related to counts one and two of appellants'
complaint. The court stayed action on count three "pending completion of arbitration or further Order of this Court."
The arbitration hearing took place on November 14, 2015. Prior to the commencement of the hearing, appellants withdrew from consideration all claims other than the claim for wrongful termination. In the arbitration award dated January 10, 2017, the arbitrator noted that appellants' withdrawal of the claims was the equivalent of a nonsuit in state court. The award stated in pertinent part:
Goldtrap's employment contract with Bold was part of the sale of his practice to a Bold affiliate, Bold Dental Management, LLC ("Bold Management"). After the sale, Goldtrap continued to practice dentistry in the same office but as an employee under the management and direction of Bold.
While the Agreement also hires Robert C. Goldtrap, D.D.S., P.A., to perform services, it defines those services to be personal to Goldtrap, nonassignable and nondelegable. Goldtrap agreed to (a) perform his duties and carry out his responsibilities in a diligent manner, (b) devote a mutually agreed amount of time to the business and affairs of the practice, (c) use all reasonable efforts to promote the interest of his employer, Bold, and (d) be just and faithful in the performance of his duties and responsibilities. See Respondent's Ex. 3, paragraph 1.
The Agreement states that Goldtrap cannot be terminated at will or for the convenience of his employer, Bold Dental Partners, PLLC ("Bold"). There is no dispute Goldtrap was terminated, so this act must be justified under the termination provisions of paragraph 4 of the Agreement. See Respondent's Ex. 3.
Goldtrap contends he did not breach the terms of his employment agreement so was not justifiably terminated or, alternatively, was not afforded an opportunity to cure his defaults. Central to Goldtrap's problem with Bold was that he failed to adapt to his role as employee, including losing operational control of the practice he sold to Bold Management and the privileges of being his own boss. Goldtrap's termination was justified:
1. Bold hired a dental practice consultant, Carol Feliciano, who worked in Goldtrap's clinic to identify and correct deficiencies and bring Goldtrap's office and dental practice into compliance with Bold standards and policies. Goldtrap resisted Feliciano's suggestions and the insistence of Bold management that he comply with her recommendations. Goldtrap did not want Feliciano in the office and told her to leave and never return. He did not have the authority to exclude her and was obligated to work with her to promote the interests of his employer.
2. Goldtrap refused to follow Bold's policy regarding administration of anesthesia to patients. Goldtrap apparently administered anesthesia to patients, even for routine, nonsurgical dental procedures. Such a service is not unethical or in violation of the law but was contrary to Bold's established policies and practices. On one occasion, Goldtrap refused to allow a Bold anesthesiologist to assist him with a patient who wanted anesthesia. Scott Bolding, D.D.S., Goldtrap's boss, told Goldtrap to cease and desist from performing the procedure without assistance from the anesthesiologist. Goldtrap refrained from the procedure, but his conduct was insubordinate and failed to promote the interests of his employer. He had to conform his practice to the standards established by Bold, even if he disagreed with them or practiced another way under his own shingle.
These two episodes justified Goldtrap's termination. There were numerous other incidents described in the record illustrating Goldtrap's unwillingness to conform his behavior and dental practice to the standards established by Bold. Goldtrap knew what Bold expected of him from numerous discussions and email exchanges with Dr. Bolding and others in the company. Bold conducted regular training and education meetings for its doctors to inculcate them into the Bold philosophy and business method. Goldtrap cannot reasonably contend he did not know or understand what was expected of him.
Goldtrap was given ample notice of the deficiencies of his practice habits and office behavior and more than enough time to conform his behavior to the expectations of his employer. Goldtrap's lack of good faith and disinterest in promoting the best interests of Bold were unequivocally demonstrated by his ultimate refusal to communicate with Dr. Bolding and the delegation of his obligation to communicate about the business to his wife, who was not a dentist or Bold employee. An opportunity to cure a contract breach is meaningless if the breaching party has no desire to fix the problem. Goldtrap wanted what he wanted, whether it pleased his employer or met its reasonable expectations.
Goldtrap is denied relief for breach of contract and his claim is dismissed.
....
This Award is in full settlement of all claims submitted to this Arbitrator. All claims not expressly granted are denied.
Appellees filed a motion to confirm the arbitration award and to dismiss all claims with prejudice on February 3, 2017. Appellants filed a response and a countermotion to vacate, modify, or correct the arbitration award on February 10, 2017. In their countermotion, appellants contended that the award should be vacated under Arkansas Code Annotated § 16-108-223 (a)(1) and (3) as being one procured by undue means and due to the arbitrator's refusal to consider evidence material to the controversy. Appellants also claimed entitlement to modification or correction of the award under Arkansas Code Annotated § 16-108-224(a)(1) due to an evident mathematical miscalculation or an evident mistake. Appellees filed a reply to appellants' response and a response to appellants' counter-motion on February 21, 2017. In their response, they contended that appellants failed to prove the factors necessary to have the award vacated, modified, or corrected. The court held a hearing on the motion and counter-motion on March 31, 2017. It entered an order on May 9, 2017, confirming the award, but denying appellees' request that all remaining claims be dismissed with prejudice. Instead, the court ordered appellants to notify the court and opposing counsel within fourteen days of the date of the order whether they intended to submit the remaining issues to arbitration. If appellants chose to arbitrate the remaining claims, the court ordered them to notify the court of the date, location and name of the arbitrator scheduled to determine the remaining issues within thirty days of notice. The court denied appellants' countermotion.
Appellants filed a notification of intent and motion for reconsideration on May 23, 2017. In the motion for reconsideration, appellants asked that they be allowed to proceed in court on the remaining issues as opposed to arbitration. More specifically, they stated that they "do not desire to arbitrate any remaining claims and there are no documents (to which the plaintiffs have agreed) which require arbitration." Appellees responded on May 25, 2017, asking that appellants' motion be denied and that the matter be dismissed with prejudice. Appellants replied on June 2, 2017. The court entered an order on July 11, 2017, denying appellants' motion and dismissing appellants' breach-of-contract claim with prejudice. The court noted that appellants' request for records and accounting was retained by the court and remained pending. It stated that the accounting matter "will be addressed as pleadings and/or the normal course of business dictate." Appellants filed a timely notice of appeal on July 18, 2017, appealing the May 9 and July 11 orders. Appellants abandoned any pending but unresolved claims in their notice of appeal.
Our standard of review for arbitration awards is deferential. We have explained that the court's role is limited to determining if the arbitrator acted within its jurisdiction. The party attempting to vacate the arbitration award has the burden of proof. Judicial review of an arbitrator's award is more limited than appellate review of a trial court's decision. Whenever possible, a court must construe an award so as to uphold its validity, and gross errors of judgment in law or a gross mistake of fact will not serve to vitiate an award unless these mistakes or errors are apparent on the face of the award. "The decision of the arbitration board on all questions of law and fact is conclusive.... The court shall confirm an award unless grounds are established to support vacating or modifying the award."
As their first point on appeal, appellants contend that the court erred in refusing to vacate the award. According to appellants, the arbitrator's award was procured by undue means and the arbitrator refused to consider evidence material to the controversy. However, this court has no way of knowing what testimony was before the arbitrator because the parties decided against having the hearing transcribed. Thus, there is no justification for this court to vacate the award for the reasons suggested by appellants because mistakes of fact are insufficient to set aside an award, especially when the mistake or error is not apparent on the face of the award.
Appellants also contend in their first point on appeal that the court erred by not correcting or modifying the award due to an evident mathematical miscalculation or an evident mistake. Goldtrap contends that the arbitrator erred by not granting him over $30,000 in unpaid salary. However, Goldtrap's right to any compensation by appellees was abandoned prior to the hearing due to appellants' withdrawal of the breach-of-contract claim in which unpaid salary for Goldtrap was sought. The only claim presented to the arbitrator was for wrongful termination and there was no evidence that Goldtrap sought any right to monetary damages under this complaint. Therefore, this issue is not properly before this court.
As their second point on appeal, appellants contend that the trial court erred "in reducing the time for Goldtrap to resubmit his breach-of-contract claim by requiring Goldtrap to notify the court and opposing counsel within fourteen days of the date of its order of Goldtrap's intent to submit the remaining issues for arbitration and within thirty days to state the name, date and location of the arbitrator." Appellants did not object to this timeline below and have failed to cite any authority on this issue. We will not reverse when a point on appeal is unsupported by convincing argument or sufficient citation to legal authority.
Affirmed.
Harrison and Klappenbach, JJ., agree.
The hearing was not transcribed.
4. TERMlNATION .
4.1. Termination by the Company . The Company shall not have the right to terminate this Agreement at will or for convenience, and instead shall only have the right to terminate it for "Cause," as hereafter defined. For purposes of this Agreement, "Cause" includes the following matters:
4.1.1. The suspension, revocation or cancellation of Goldtrap's and/or the Member's right to practice dentistry in the State of Arkansas (after any appeals or requests for review or reconsideration are exhausted), the revocation of Goldtrap's and/or the Member's privileges by any hospital medical staff organization; the revocation of any certification or eligibility for certification by any Board responsible for overseeing Goldtrap's and/or the Member's practice of dentistry or for any specialty; or the loss or suspension of Goldtrap's and/or the Member's DEA license;
4.1.2. The imposition of any restrictions or limitations by any governmental authority having jurisdiction over Goldtrap and/or the Member or any hospital medical staff organization to such an extent that the Company reasonably determines that Goldtrap and/or the Member cannot engage in the professional practice of dentistry for the Company to the extent contemplated by this Agreement;
4.1.3. Goldtrap breaches any material term or provision of this Agreement and remains in breach for a period of seven (7) days following written notice detailing to Goldtrap the nature of such breach, provided, however, in the event Goldtrap is making reasonable and good faith efforts to cure such breach, this Agreement shall not be terminated provided the breach is in any event, cured within a reasonable period of time (not to exceed thirty (30) days), and provided further, the Company shall not be required to provide more than one notice of the same or substantially the same breach within the same twelve (12) month period prior to exercising its right to terminate this Agreement;
4.1.4. Goldtrap's and/or the Member's resignation, withdrawal, removal, or termination from any professional medical or dental organization or medical or dental staff under threat of, or as a consequence of, disciplinary action;
4.1.5. Goldtrap's and/or the Member's insubordination or failure or refusal to comply with the reasonable policies, standards and regulations of the Company which may be established from time to time by the Company, it being understood that the Company shall have a policy of progressive discipline whereby Goldtrap and/or Member shall have a substantial warning and opportunity to correct behavior or actions which the Company believes, in its sole and absolute discretion, may fall-within this sub-paragraph, provided, however, that the requirement that the substantial warning and opportunity be given may be superseded by a future Employee Code of Conduct put in place by the Company following the date of this Agreement if Goldtrap has approved the Employee Code of Conduct in advance;
4.1.6. Goldtrap and/or the Member is found by the Company to have committed gross misconduct materially inconsistent with the terms hereof or unprofessional or unethical conduct, including, but not limited to, excessive use of alcohol by the Member, alcoholism of the Member, the Member's use of illegal drugs (other than drugs used for proper medical purposes under prescription from an independent physician), or excessive use of or addiction to habit-forming drugs or other drugs that could impair the Member's dental practice or judgment;
4.1.7. Goldtrap's and/or the Member's conviction of any felony offense, or any misdemeanor offense involving fraud, theft or deceit;
4.1.8. The Member's death;
4.1.9. Goldtrap's or the Member's ineligibility to be covered under professional liability insurance that is reasonably acceptable to the Company; or
4.1.10. Goldtrap's or Member's material failure to perform either or their duties, which nonperformance continues after written notice thereof and a seven (7) day chance to cure, including, without limitation, a material reduction in the gross revenues received by the Company and attributable to Goldtrap.
Hart v. McChristian , 344 Ark. 656, 42 S.W.3d 552 (2001).
Anthony v. Kaplan , 324 Ark. 52, 58, 918 S.W.2d 174, 177 (1996).
Ark. Dep't of Parks & Tourism v. Resort Managers, Inc. , 294 Ark. 255, 260, 743 S.W.2d 389, 391-92 (1988).
Id.
Dean Witter Reynolds, Inc. v. Deislinger , 289 Ark. 248, 711 S.W.2d 771 (1986).
Helton v. Joseph D. Calhoun, Ltd. , 2017 Ark. App. 418, 2017 WL 3881882. | [
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MIKE MURPHY, Judge
This is an appeal from the order entered on August 17, 2017, by the Pulaski County Circuit Court terminating the parental rights of appellant Sierra Crouch to her daughter, MW, born in July 2015. Crouch's sole point on appeal is that the circuit court committed reversible error when it determined that the Indian Child Welfare Act (ICWA) did not apply to this case. We affirm.
Ten-month-old MW was brought into emergency custody of the Arkansas Department of Human Services (DHS) following a call to the child-abuse hotline alleging child maltreatment. DHS filed a petition for emergency custody and dependency-neglect on May 17, 2016. The petition included an affidavit, submitted by a DHS family service worker, that stated, "Ms. Sierra Crouch stated that she may be part of the Cherokee Indian nation but she is not sure." The circuit court entered an ex parte order formally placing MW into DHS's custody.
A probable-cause order was entered on May 23, 2016. The order made no mention of ICWA or its application to the proceeding. On June 29, 2016, the circuit court adjudicated MW dependent-neglected based on parental unfitness. This order also made no mention of ICWA or Crouch's disclosure in the affidavit that she believed she may be a member of the Cherokee Nation. The case proceeded through both a review hearing and a permanency-planning hearing during which there was no mention of ICWA in the resulting orders. On May 17, 2017, DHS filed a petition for termination of parental rights. During the termination hearing, no evidence or testimony was presented with regard to Crouch's Cherokee Nation heritage. On August 17, 2017, the circuit court issued an order terminating Crouch's parental rights. In the termination order, the circuit court made a finding that "[s]ince neither the juvenile nor any parent is a member of any Native American Indian Tribe, ICWA does not apply." This timely appeal followed.
Crouch does not challenge the circuit court's finding that termination of her parental rights was supported by at least one statutory ground, nor does she challenge that the termination of her parental rights was in the child's best interest. Her sole argument on appeal is that the circuit court committed reversible error by not complying with ICWA.
The ICWA establishes minimum federal standards for the removal of Indian children from their families and the placement of Indian children into foster or adoptive homes.
Hall v. Ark. Dep't of Human Servs. , 2012 Ark. App. 245, at 9-10, 413 S.W.3d 542, 547-48. The ICWA provides that a court cannot terminate parental rights to an Indian child unless there is evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. See 25 U.S.C. § 1912(f) (2012).
It is well established that failure to raise an issue before the circuit court is fatal to an appellate court's consideration on appeal. Hall , 2012 Ark. App. 245, at 10, 413 S.W.3d at 548. In Hall , the appellant argued that DHS had an obligation to investigate and notify the tribal nations of appellant's potential Indian heritage. Id. There, the record contained no indication that the issue of ICWA compliance was ever raised by appellant. On appeal, we found the issue was not preserved because the only mention of the child's possible Indian heritage in the entire record was in the DHS employee's affidavit in support of emergency custody. Id. We affirmed the termination, holding that DHS did not have an obligation to investigate the potential Indian heritage of the child. Id. at 9, 413 S.W.3d at 547.
Similarly, the record in the case at hand contains no indication that the issue was ever raised below. In fact, Crouch acknowledges that the issue was not raised at trial for the circuit court to rule on, but she attempts to overcome this limitation by framing the matter as "an issue of sufficiency." Crouch also asserts that the notice requirements under ICWA were triggered and that the parties were put on notice and had reason to know that MW may be a member of the Cherokee Nation. We are not convinced.
The circuit court did not err in not requiring notice to be given to the Indian tribe because the circuit court had no reason to know that MW was an Indian Child. As in Hall , the only mention of MW's possible Native American ancestry was in the DHS employee's affidavit in support of emergency custody. As we held in Hall , neither DHS nor the court was obligated to investigate MW's potential Indian heritage at that juncture. See also Lazaravage v. Ark. Dep't of Human Servs. , 2018 Ark. App. 29, 541 S.W.3d. 450 (holding that appellant did not preserve her argument on appeal that DHS should have provided notification to Indian tribes of proceedings; appellant raised the "possible" ICWA matter at the probable-cause hearing but never provided any more information about potential Indian heritage, and the circuit court had no reason to believe that a relationship to any Indian tribe actually existed).
Accordingly, Crouch's argument is not preserved for appellate review and we affirm.
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RITA W. GRUBER, Chief Judge
A Sebastian County jury found appellant William French guilty of possession of methamphetamine with the purpose to deliver, two counts of possession of drug paraphernalia, and a sentencing-enhancement offense of "proximity to certain facilities." Arkansas Code Annotated section 5-64-411 (Repl. 2016) provides that a person is subject to an additional term of ten years' imprisonment if he or she possesses with the purpose to deliver within 1000 feet of, among other facilities, a church. For his sole point on appeal, appellant argues that the circuit court erred in denying his motion to dismiss the enhancement offense brought pursuant to this statute. We reverse and remand for a new trial on the enhancement offense.
At trial, Fort Smith police officer Keith Shelby testified that while patrolling the south side of Fort Smith at around 7:00 p.m. on June 13, 2017, he saw appellant driving a vehicle in which neither he nor his passengers appeared to be wearing seatbelts. Officer Shelby lost sight of the vehicle before he saw it again, running a stop sign right in front of him. Before Officer Shelby turned on his lights, appellant pulled into a driveway at the corner of 33rd and Vicksburg, and Officer Shelby pulled in behind him. Officer Shelby testified that he discovered methamphetamine and drug paraphernalia in the vehicle. He also testified that a church was located about a block and half from the location of the stop and was visible from the location.
Fort Smith police officer Greg Napier then testified that he was asked to determine whether there were any facilities in the area that qualified under the enhancement statute. He said that he discovered a church right down the street that could be seen from the traffic stop. He testified that he arranged to meet Officer Shelby at the location of the stop and began his measurement from that location. At that point in the testimony, the State attempted to introduce several photographs of the area taken by Officer Napier, and appellant objected:
I am going to object to the introduction of these pictures and the testimony about the proximity because there has been nothing presented to show that my client had knowledge of this church being there and I believe that he is being punished for or this is creating an element of a crime where a mental state should be required and is not. And because it is not it violates his due process rights.
The court overruled the objection, and the photos were introduced. Officer Napier testified that the photographs showed that Southside Full Gospel Church is located near the traffic stop. He testified that he used a Rolatape to physically measure the distance between the church and the traffic stop and that the distance is 535.11 feet.
At the close of the State's case, appellant moved for a directed verdict on the charges, including the enhancement charge. He renewed his objection to Officer Napier's testimony and to lack of due process, arguing nothing demonstrated that appellant knew that the church was there. The court denied the motions without explanation. At the close of the evidence, appellant renewed the motions, which the court again denied.
On appeal, appellant contends that the circuit court erred in denying his motion to dismiss the enhancement charge brought pursuant to Arkansas Code Annotated section 5-64-411(a)(1)(B), (a)(2)(H) because there was no proof of a mental state to sustain the conviction. He cites Small v. State , 2018 Ark. App. 80, 543 S.W.3d 516, in support of his argument. In Small , we held that section 5-64-411 requires a culpable mental state. 2018 Ark. App. 80, at 5-6, 543 S.W.3d at 520. Because the statute does not prescribe a culpable mental state, we held that one must be imputed under Arkansas Code Annotated section 5-2-203(b), which provides that if a statute defining an offense does not prescribe a culpable mental state, one is nonetheless required and "is established only if a person acts purposely, knowingly, or recklessly." Ark. Code Ann. § 5-2-203(b) (Repl. 2013).
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Hinton v. State , 2015 Ark. 479, 477 S.W.3d 517. We will affirm the denial of a motion for directed verdict if substantial evidence, direct or circumstantial, supports the verdict. Matlock v. State , 2015 Ark. App. 65, 454 S.W.3d 776.
The State recognizes that we handed down Small after the jury trial in this case and that the enhancement statute requires a culpable mental state. The State argues, however, that substantial evidence exists that appellant acted recklessly in possessing with the purpose to deliver methamphetamine within 1000 feet of a church, and it urges us to affirm the circuit court for reaching the right result for a different reason. See also Silmon v. State , 2018 Ark. App. 388, 557 S.W.3d 266. We decline the suggestion. The court in this case instructed the jury that appellant was guilty of the enhancement offense if it found beyond a reasonable doubt that he committed the methamphetamine offense within 1000 feet of a church. Because the circuit court erred in concluding that section 5-64-411 does not require a culpable mental state and improperly instructed the jury, we reverse and remand.
Reversed and remanded.
Glover and Murphy, JJ., agree.
Appellant's sentences were also subject to a habitual-offender enhancement. | [
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KENNETH S. HIXSON, Judge
Appellant Sameer Fares and appellee Kifah Fares obtained a marriage license in Missouri in 1990. The parties lived together, had four children, and now reside in Little Rock, Arkansas. In 2015, Kifah filed a complaint for divorce in Pulaski County Circuit Court, and Sameer filed a counterclaim for divorce.
After the divorce proceedings had commenced, Sameer filed a petition for annulment of marriage or judgment declaring the marriage void. This petition was based on the fact that Sameer and Kifah are first cousins, making the marriage void under Missouri law. Missouri Annotated Statutes section 451.020 provides, in pertinent part:
All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as the whole blood, between uncles and nieces, aunts and nephews, first cousins , and between persons who lack capacity to enter into a marriage contract, are presumptively void[.]
(emphasis added).
After two hearings on Sameer's petition and Kifah's divorce complaint, the trial court entered a "Final Order & Decree of Divorce." In that order, the trial court denied Sameer's petition for annulment based on its finding that Sameer was estopped from denying the validity of the marriage. The trial court granted Kifah's complaint for divorce; awarded her custody of the parties' minor child; ordered Sameer to pay child support; ordered Sameer to pay alimony; awarded each party half of the parties' assets; and ordered Sameer's retirement benefits to be divided equally. The trial court subsequently entered an order awarding Kifah attorney's fees.
Sameer now appeals. On appeal, Sameer argues that the trial court erred in finding that he was estopped from denying the validity of the marriage and erred in denying his motion to declare the marriage void or annul the marriage. Sameer further argues that, because the parties were never married, the trial court erred in dividing their property in accordance with Arkansas domestic-relations statutes, erred in dividing his retirement assets, erred in awarding alimony, and erred in awarding attorney's fees. We find no error and affirm.
We review domestic-relations cases de novo, but we will not reverse a trial court's finding of fact unless it is clearly erroneous. Klenakis v. Klenakis , 2017 Ark. App. 36, 510 S.W.3d 821. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that the trial court has made a mistake. Id. In reviewing a trial court's findings of fact, we give due deference to the court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
While the above standard applies to findings of fact, appellate courts will not defer to the trial court on a question of law. Jones v. Abraham , 67 Ark. App. 304, 999 S.W.2d 698 (1999). The trial court's decision will be reversed if it erroneously applied the law and the appellant suffered prejudice as a result. Id.
After the complaint and counterclaim for divorce were filed, Sameer filed an amended counterclaim for divorce requesting that the trial court enforce a premarital agreement between the parties. A preliminary hearing was held on this request, and at that hearing it was revealed in Kifah's testimony that she and Sameer are first cousins-their mothers are siblings. After this disclosure was made, Sameer's counsel filed Sameer's petition for annulment of marriage or judgment declaring the marriage void.
At the first of two subsequent hearings, it was established that Sameer was born in Kuwait and holds a Jordanian passport. Kifah is from Jordan. Sameer moved to the United States about nine years before Kifah, and he earned a civil-engineering degree. Through Sameer's mother, Sameer's marriage with Kifah (whom he had met only over the phone) was arranged in 1990. Kifah then came to the United States to marry Sameer, and they obtained a marriage license in Missouri.
Kifah testified that, when she came to the United States in 1990, Sameer spoke English but she did not. Kifah now understands some English. Kifah relied on Sameer to provide for her and the family, while she took care of the home and the children. Kifah testified that in both Jordan and Kuwait it is culturally acceptable to be married to one's first cousin and that, when they got married, both she and Sameer knew they were first cousins. Kifah stated that she was not aware of the laws in Missouri and had no reason to believe they were not legally married for the twenty-six years prior to Sameer filing his petition to annul the marriage. During the marriage Kifah never heard Sameer say, nor did she have any evidence, that Sameer knew it was illegal in Missouri to marry one's cousin. Kifah stated that had she known the marriage was illegal she would not have married Sameer.
In Sameer's testimony, he too stated that he had no knowledge about the laws of Missouri. Sameer stated that he was aware that Kifah was his first cousin when he filed his counterclaim for divorce and that, had he known it was impermissible to be married to his cousin, he would have told his attorney. Sameer testified that he did not know it was illegal to marry his cousin until his attorney advised him of that fact after the previous hearing when it came out in Kifah's testimony.
At the final hearing, Sameer testified that he believed he was entering into a legal marriage when he married Kifah in Missouri and had no reason to believe otherwise. He stated that throughout the marriage he introduced Kifah as his wife. He acknowledged that during the marriage he had obtained his master's degree and was finishing up his doctorate, and that the entire family, including Kifah, had relied on him financially. Sameer stated that he did not tell Kifah to not tell others that they are relatives but that he did tell her to say that, prior to the marriage, they knew each other through friends. Sameer maintained that he did not intend to lie to Kifah, engage in any dishonesty, or string her along. He stated that had he known it was illegal to marry his first cousin, he would not have married her.
Kifah testified:
After I came to the United States and married Mr. Fares, he asked me not to tell people that we were relatives. He said that it would be inappropriate to tell anyone. He did not tell me it was illegal. He just told me to not tell anyone we are relatives because it is not appropriate.... I would not have had children with Mr. Fares if we were not married. If we had not been married I would not have provided services. If the court grants the annulment, I will be left with nothing except my Arvest account with a few hundred dollars in it. I have no income except child support.... I did not ask Mr. Fares why he did not want me to tell people we are relatives but he did say it is not appropriate in America to suddenly get married to somebody they do not know. Just don't mention we are related.
The parties both gave testimony regarding the assets acquired during the marriage and other circumstances bearing on the issues of child custody, child support, and alimony. However, because this testimony has little to do with the issues on appeal regarding the validity of the marriage, we need not recite it here.
In the "Final Order & Decree of Divorce" now being appealed, the trial court made the following pertinent findings concerning Sameer's petition for annulment of marriage or judgment declaring the marriage void:
b. Factual Findings Regarding the Parties. At the time of the marriage, the Court finds that Defendant [Sameer] was fluent in English; Plaintiff [Kifah] was not. Defendant had lived in the United States for nine (9) years, had obtained one (1) degree-one (1) college degree-taught in English. [At the time of the parties' marriage], Plaintiff was a recent immigrant [to the United States] from the Middle East. After the marriage, the parties held themselves out to the world as husband and wife for twenty-six (26) or twenty-seven (27) years.
c. Course of Litigation. From the record, the divorce case was filed in 2015. Throughout the first year of litigation, the parties proceeded as if they were married, seeking a divorce and division of property from one another. Indeed, the Court finds that Defendant initially claimed that the Islamic Marriage Certificate constituted a Premarital Agreement that limited the recovery of his wife [Plaintiff]-his wife, nonetheless.
d. Court Findings Regarding Estoppel. The Court finds that during the history of the marriage between the parties that Defendant spoke fluent English; that his wife [Plaintiff] had some English, but was not fluent; that he [Defendant] cautioned his wife [Plaintiff] not to refer to the fact that they were cousins without providing her an explanation; and that these facts indicate a superior knowledge on his [Defendant's] part or that he was-Defendant was, at least, what Brown vs. Imboden called "culpably negligent" in his conduct. The Court finds that last year, Defendant shifted tactics and began to claim for the first time that the marriage was "void ab initio " because the parties were first cousins, and "first-cousin" marriage in Missouri was prohibited, as it generally is in Arkansas. The Court finds that Plaintiff relied on the belief that she was married during the entirety of the marriage and performed services for Defendant that were not without value, including: the bearing and rearing of children; the cleaning of the home; acting as his spouse; being introduced and relying upon these facts; and, generally, being the "Wife."
The trial court then declared that Arkansas does not recognize marriage by estoppel but that case law gives reasons why the court might hold that there was an estoppel. The trial court then proceeded to give a summary of holdings from a line of Arkansas cases estopping a party from denying the validity of a marriage. The trial court found, from the facts of this case, that Sameer was estopped from denying the validity of the marriage. The trial court denied Sameer's petition for annulment, granted Kifah's divorce complaint, and issued its rulings pertaining to child custody, child support, alimony, and division of property.
In this appeal, Sameer argues that the divorce decree was erroneously entered because, according to Missouri law, the parties' marriage was void from its inception. Sameer also asserts that the trial court's ruling that he was estopped from denying the validity of the marriage was based on the trial court's misquotation of testimony and that the testimony did not support the trial court's findings regarding estoppel.
In its order, the trial court found that Sameer had cautioned his wife not to refer to the fact that they are cousins without providing her with an explanation. Sameer asserts that there was no testimony to support this finding. The trial court also found that the facts indicated "a superior knowledge on [Sameer's] part" and that he was at least culpably negligent in his conduct. Sameer also challenges this statement, contending that nothing in the record showed that he knew it was illegal to marry his cousin in Missouri until after the divorce proceedings began in this case.
Sameer argues that, in order to find him estopped from denying the validity of the marriage, he would have had to engage in some sort of wrongdoing or deceit. Sameer states that he had no knowledge that it was illegal to marry his cousin, he did not conceal anything from Kifah, nor did Kifah rely on his conduct in entering into the marriage. Sameer submits that this was merely a case of mutual ignorance because both parties were unaware that their marriage was illegal. That being so, Sameer maintains that the trial court erred in finding him culpably negligent.
Based on our review of the record and the trial court's order, we do not agree with Sameer's contention that the trial court's decision was based on a misquotation of the testimony. Nor do we conclude that the trial court clearly erred in finding on these facts that Sameer was estopped from denying the validity of the parties' marriage. While the trial court cited numerous cases in support of its decision in its order, we find three to be particularly relevant to our review.
In Higgins v. Higgins , 266 Ark. 953, 588 S.W.2d 454 (Ark. App. 1979), the facts showed that appellant Charles Higgins and appellee Katie Higgins were married on April 4, 1975. The parties lived together for two and a half years, separated, and lived together for three more months before separating again. Katie filed for separate maintenance, at which time Charles introduced a divorce decree showing that he had not divorced his first wife until April 29, 1975, some twenty-five days after his remarriage. Charles contended that because there had been no divorce from his first wife at the time he married Katie, the marriage was absolutely void. The trial court concluded that the parties had lived together as man and wife and awarded separate maintenance to Katie. Charles appealed.
On appeal our court in Higgins noted that Arkansas does not recognize common-law marriages. Nonetheless, we concluded that Charles was estopped from asserting the invalidity of his marriage to Katie. In reaching this result we relied on Fox v. Fox , 247 Ark. 188, 444 S.W.2d 865 (1969), which quoted the California case Spellens v. Spellens , 49 Cal.2d 210, 317 P.2d 613, 618-20 (1957):
The theory is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the divorce or latter marriage was invalid.... We think it may now be stated that the general public policy in this jurisdiction, as judicially interpreted, no longer prevents application in annulment actions of the laches and estoppel doctrines in determining the effect to be given such divorce decrees.... Rather it is that defendant by reason of his conduct will not be permitted to question its validity of the divorce; so far as he is concerned, he and plaintiff are husband and wife.... It may be noted also that we are not recognizing a common law marriage which does not exist in this state for the theory is that the marriage is not validated; it is merely that defendant cannot contest it.
Our court held that Charles Higgins, by reason of his conduct, was estopped to assert the voidness of his marriage to Katie.
In a subsequent court of appeals case, Brown v. Imboden , 28 Ark. App. 127, 771 S.W.2d 312 (1989), the issue was whether the probate court erred in finding that the appellant, Mae Ireland Brown, was not the legal surviving spouse of the decedent, Bill Brown. In that case, Bill had filed for divorce from his previous wife, Brenda, on February 27, 1981. Bill and Mae married on June 27, 1981. However, Bill's divorce decree from Brenda did not become effective until July 1, 1981, four days after Bill and Mae had married. Therefore, the marriage between Bill and Mae was invalid. After Bill died intestate in December 1987, a hearing was held to determine heirship, and the probate court found that Mae was not Bill's legal surviving spouse and that their June 27, 1981, purported marriage was void ab initio. On appeal, Mae contended that the appellee heirs should have been estopped from questioning the validity of her marriage to Bill. We agreed, and we reversed.
In reversing on a theory of estoppel, we explained:
As stated in Fox v. Fox , 247 Ark. 188, 444 S.W.2d 865 (1969) :
The theory [of estoppel] is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the divorce or latter marriage was invalid.
....
[T]he defendant by reasons of his conduct will not be permitted to question its validity or the divorce; so far as he is concerned, he and the plaintiff are husband and wife.
247 Ark. at 199, 444 S.W.2d 865. In the present case, it was the decedent who initiated the [marriage] of himself and the appellant, and it was at his insistence that she attend the divorce hearing. The evidence shows that the appellant relied, in good faith, on the validity of Bill's divorce from Brenda and relied in good faith on the validity of her marriage to Bill for almost seven years. On our de novo review, Taylor v. Hill , 10 Ark. App. 45, 661 S.W.2d 412 (1983), we find that Bill was at least culpably negligent in not determining that his divorce decree was final before initiating his [marriage] with the appellant and that he would have been estopped to deny that the decree was final. See J.F. Hasty & Sons v. Hampton Stave Co. , 80 Ark. 405, 97 S.W. 675 (1906).
By this holding, we do not declare the validity of common-law marriage in Arkansas. A legal common-law marriage cannot be entered into in Arkansas, nor can one be created by estoppel, but equity can, and we hold that it does, under the facts in this case, require that the parties be estopped from denying the validity of a marriage. Fox , supra ....
We hold that the estate and the heirs of Bill Brown are estopped from challenging the validity of Bill's marriage to the appellant because they stand in privity to the decedent. Because Bill himself would be barred from challenging the validity of the marriage, his heirs and his estate are in no better legal position to challenge the validity of Bill's marriage to the appellant.
Brown , 28 Ark. App. at 129, 771 S.W.2d at 313-14.
In another court of appeals case, Jessie v. Jessie , 53 Ark. App. 188, 920 S.W.2d 874 (1996), appellant Arthur Jessie and appellee Betty Jessie were married in July 1960. Although Betty had filed for divorce from her previous husband in March 1960, unbeknownst to either Betty or Arthur, there was no record that a divorce in that case had ever been granted. Throughout their marriage both Betty and Arthur thought they were legally married. After Betty filed for divorce from Arthur in 1994, Arthur asked that her divorce complaint be dismissed because there was no showing that a divorce decree was ever entered terminating Betty's prior marriage, thus rendering the parties' marriage void. The trial court denied Arthur's request, finding that by Arthur's conduct he was estopped from asserting such a defense. The trial court based its determination upon the extended duration of the marital relationship between the parties for thirty-four years, during which time both parties believed themselves to be legally and morally bound by matrimony, including raising a child together and discharging each party's respective obligations as a spouse. Quoting from Brown v. Imboden , we stated that, while a legal marriage cannot be created by estoppel, equity can require that parties be estopped from denying the validity of a marriage. We affirmed the trial court's ruling, holding that it was not clearly erroneous.
Applying these holdings to the pertinent facts of this case, we conclude that the trial court did not clearly err in finding that, due to Sameer's conduct, he was estopped from denying the validity of the parties' marriage. As an initial matter, we do not agree with Sameer's contention that the trial court misquoted the testimony. Kifah testified that, after the parties married, Sameer asked her not to tell people they are relatives because it would be inappropriate. The trial court found that Sameer had cautioned Kifah not to refer to the fact that they are cousins without providing her an explanation, which we think was a fair characterization of Kifah's testimony. Sameer also contends that he engaged in no wrongdoing or concealment because he did not know it was illegal to marry his cousin and thought they were legally married until after the divorce proceedings were initiated. Based on the evidence, Sameer asserts that the trial court erred in finding him culpably negligent in his conduct.
From our reading of the pertinent cases, we do not believe it was necessary to prove that Sameer knew that marrying his cousin was illegal for the trial court to find him estopped from denying the validity of the marriage. In Jessie , supra , the evidence showed that neither party was aware that the wife's prior marriage had not been terminated prior to the parties' marriage, and yet we invoked an estoppel theory to affirm the trial court's finding that the husband was estopped from denying the validity of the marriage. And in Higgins , supra , we did not state in the opinion whether the husband knew that his prior marriage remained undissolved when he married the wife, stating only that by reason of the husband's conduct he was estopped to assert the voidness of his marriage.
While we acknowledge that the trial court found Sameer culpably negligent, we hold that this finding is not dispositive of the issue of estoppel. The trial court also found that Kifah relied on the belief that she was married during the entirety of the marriage, performed the services of a spouse, and had four children with Sameer. This reliance by Kifah was premised in part on the conduct of Sameer, who joined her in holding themselves out as a married couple for twenty-six years. The trial court found, based on Sameer's conduct of at all times acting as Kifah's husband, that he was estopped from denying the validity of the marriage. This was not clearly erroneous.
Our supreme court in Fox , supra , announced almost fifty years ago that the theory of estoppel is that the marriage is not made valid by reason of the estoppel, but that a defendant by reason of his conduct will not be permitted to question the validity of the marriage; so far as he is concerned, the parties are husband and wife. Since Fox was delivered, this principle has been consistently followed and applied. Sameer and Kifah obtained a marriage license, and for the next twenty-six years the parties proceeded to act as husband and wife and discharge their respective spousal duties as such, and in the process raised four children. We affirm the trial court's findings, from the facts of this case, that by reason of Sameer's conduct he was estopped to deny the validity of the marriage. Therefore, the decree granting Kifah a divorce was properly entered. Because Sameer's remaining arguments regarding division of property, alimony, and attorney's fees are all dependent on his claim that the marriage was invalid, these arguments are rejected, and the trial court's findings are affirmed in their entirety.
Affirmed.
Glover and Vaught, JJ., agree.
Only one of these children is still a minor.
In Everetts v. Apfel , 214 F.3d 990 (8th Cir. 2000), it was held that a void marriage is invalid from its inception if the parties are related in a prohibited manner under Mo. Ann. Stat. § 451.020.
This request by Sameer was ultimately denied by the trial court, which found that there was no valid premarital agreement, and this is not at issue on appeal.
Kifah had, however, studied English as a second language while she was in school in Jordan. | [
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BRANDON J. HARRISON, Judge
As recited more fully in a companion case to this appeal, Hargis v. Hargis , 2018 Ark. App. 469, 561 S.W.3d 336, the circuit court entered an order in February 2017 and decided a dispute, which Colonel Allen Hargis filed, over how much military-retirement money Lynn Hargis was entitled to receive from the property-settlement agreement the divorcing couple signed in 2009. A separate and subsequent order awarding Col. Hargis $18,000+ in attorney's fees against Ms. Hargis was entered. This appeal addresses the circuit court's decision to make Ms. Hargis pay Col. Hargis's attorney's fees. And the narrow issue presented-as we have framed it-is whether Ms. Hargis was denied a sufficient opportunity under the rules of civil procedure to oppose the fee request before the circuit court decided it. The answer is yes.
I.
In March 2017, Col. Hargis timely moved for attorney's fees pursuant to Arkansas Rule of Civil Procedure 54(e)(2) and Ark. Code Ann. § 16-22-308. Attached to the colonel's motion was an affidavit from his attorney that detailed $18,325 in attorney's fees. Col. Hargis had also hired Col. Mark Sullivan to testify as an expert on military-retirement law during the main dispute over the parties' property-settlement agreement. (For more of that history the reader must turn to the companion case.) Suffice it to say that Col. Sullivan charged $15,871.20 for his services as a testifying expert witness.
Ms. Hargis timely opposed the motion. She argued, among other things, that the statute did not apply to a domestic-relations case and that Col. Hargis's "financial abilities" "far exceed[ed]" hers. She asked the court to either deny the motion outright or set a hearing so she could develop the parties' respective financial pictures and abilities to pay fees.
On April 27, the court ordered Ms. Hargis to pay Col. Hargis's attorney's fees (minus an offset) but disallowed the expert fee:
1. Allen Hargis is the prevailing party in an action based in contract to enforce a Property Settlement Agreement. He is also the prevailing party on Defendant's Counter-Motion to "interpret" a contract.
2. Ark. Code Ann. § 16-22-308 allows the trial court to award attorney fees to the prevailing party in contract actions. ARCP rule 54 provides that a demand for attorney fees be made by Motion.
....
4. [Col. Hargis] is awarded attorney fees incurred with Lance B. Garner in the amount of $18,325.00. This judgment is offset against the $5,210.55 awarded to [Lynn Hargis] previously for past COBRA payments. The balance due and owing to [Col. Hargis] is $13,114.45 with post-judgment interest[.]
After the order was entered, Ms. Hargis moved "for relief pursuant to Ark. R. Civ. P. 59," extended her time to appeal the fee order under Ark. R. App. P.-Civ. 4(a)-(b) (2017), and argued that she had a due-process right to appear and oppose Col. Hargis's motion for fees. The motion was deemed denied in the circuit court. Ms. Hargis timely appealed the proper orders.
In this court, Ms. Hargis presses that the circuit court was required to hold a hearing on Col. Hargis's motion so she could present evidence of the parties' relative "financial abilities." Being denied that opportunity, she says, was a procedural due-process violation under the Fourteenth Amendment to the United States Constitution.
II.
Several legal overtones resonate in this case, but for simplicity's sake we focus on the one best tuned to a civil case involving a routine request for attorney's fees: the rules of civil procedure. They amply embody and advance, for this case's purposes, the basic tenet that a party must be sufficiently heard in opposition to an adversary's attorney-fee request before an award issues. This court avoids climbing a constitutional mountain if it can traverse a procedural hill instead.
Turning to Rule 54, which Col. Hargis himself invoked to seek fees, subsection (e)(3) states that if a party asks, then a circuit court "shall afford an opportunity for adversary submissions with respect to the motion in accordance with Rule 43(c) or Rule 78" after a request for attorney's fees has been made. Ark. R. Civ. P. 54(e)(3) (2017). Shall almost universally means must in legal parlance. Prescott Sch. Dist. v. Steed , 2018 Ark. App. 424, at 2, 559 S.W.3d 759 ("The word 'shall' when used in our rules of civil procedure is construed to mean that compliance is mandatory."). We have no reason to deviate from the common understanding. Given that Col. Hargis moved for fees, and Ms. Hargis asked that she be allowed to present opposing evidence, the circuit court was required to permit "an opportunity for [an] adversary submission[ ]".
What does that phrase mean for Rule 54 purposes? Rule 43(c) tells us that when a motion is based on facts that are not of record, then the court may receive affidavits or direct that it will decide the matter on oral testimony or deposition. Ark. R. Civ. P. 43(c) (2017); see also Ark. R. Civ. P. 78(c) (2017) ("Unless a hearing is requested by counsel or is ordered by the court, a hearing will be deemed waived[.]"). So Rule 54(e)(3)'s phrase "an opportunity for adversary submissions" ties to Rule 43(c)'s declaration that, when a motion is based on facts, then the circuit court must receive (1) affidavits that the parties submit, (2) deposition testimony, or (3) oral testimony.
Paper or people. Those are the options. The circuit court may suggest that the parties pursue one option over another. The court, in our view, could order one option over another, assuming a party's evidentiary submission was not unduly limited or curtailed by the choice. For example, a circuit court might prefer "paper" evidence by way of affidavits or a deposition transcript instead of receiving live-witness testimony under Rule 43(c)'s "oral testimony" option. Which avenue is best calibrated to do the most good, in the most timely and efficient manner for all involved, is the circuit court's ultimate decision to make. An important threshold question is whether the motion is predicated on facts that need to be placed in the record for the first time or whether the record needs further development before the motion can be fairly decided. A motion for attorney's fees is one based in facts; and Ms. Hargis's timely plea that she be allowed to present evidence on the parties' relative financial positions and abilities to pay fees is likewise a fact-based point.
Our dissenting colleagues suggest that "we may presume that the trial court found the relative financial abilities of the parties to be far outweighed by the other Chrisco factors, rendering the taking of evidence on this factor unnecessary." But why make that crucial presumption? Nowhere did the circuit court's order recite that it considered any factors discussed in Chrisco v. Sun Industries, Inc. , 304 Ark. 227, 800 S.W.2d 717 (1990). Applying the suggested presumption would only inject guesswork into the key issue on appeal. We know from the companion case's record ( Hargis v. Hargis , 2018 Ark. App. 469, 561 S.W.3d 336 ) that the circuit court only decided a narrow contract-interpretation dispute over a nearly decade-old property-settlement agreement. It was not the initial divorce case. When the court decided the contract dispute it had, at best, a limited and potentially quite uncertain picture of the parties' financial situations since they divorced. In other words, the parties did not develop and present a comprehensive evidentiary case to the circuit court regarding their respective financial positions in either the companion case or this one. Because nothing can be reliably gleaned about either Col. Hargis's or Ms. Hargis's actual and current financial positions-from any record that was before the circuit court and is now before us-the dissenting opinion must necessarily suggest that we presume potentially important, but as yet unknown, facts. We respectfully decline to do so.
Regarding the minimum of process owed to a party who opposes a fee request, we find some guidance from our supreme court in Stilley v. James , 347 Ark. 74, 60 S.W.3d 410 (2001). There the circuit court, without a hearing, notice, or an opportunity to defend, and before the time to respond to the motion had expired, granted attorney's fees to a prevailing party in a contract case. The losing party argued that his due-process rights were violated when the court granted the motions absent a written response or a hearing. Id. at 79-80, 60 S.W.3d at 414. The supreme court affirmed. The critical point for this case's purpose is that, in Stilley , the circuit court held another hearing after the fee motion had been filed and allowed, at that time, the appellant to object to the award of costs and attorney's fees. In other words, although a "separate" hearing on the fees issue was not held, the party opposing the request was permitted to argue his case during a hearing.
Ms. Hargis received less. She was, however, entitled to more given her timely request; but not an "exhaustive" amount more. See Collins v. Collins , 2015 Ark. App. 526, at 3. Having pulled at the thread of how much is enough, we should emphasize that the Rule of Reason is the parties' guide here. The evidence parties should expect a circuit court to receive (in either written or oral form) will, naturally, depend on the complexity of the parties' case for fees, the particular points to be made, the amount and sort of relevant information already in the record (if any), what the applicable law requires the court to consider, and last but by no means least-the circuit court's preferences given the circumstances and its calendar. We therefore make no attempt to prescribe any formulae for calculating an answer to the "how much is enough process" query. Parties should simply confine their fee-related disputes to presenting all the information necessary to make their arguments well enough and clearly enough. Nothing less, nothing more.
When Ms. Hargis requested a hearing, she triggered one of the two primary options available to her under Rules 54(e), 43(c), and 78(c). Consequently, she should have been permitted to pursue her preferred "oral testimony" option, unless the circuit court ordered her to present evidence in an acceptable written form like affidavits. But Ms. Hargis was not directed away from an oral evidentiary submission and toward a written evidentiary submission, and a substantial attorney-fee award was entered against her in the meantime.
III.
We hold that, pursuant to the Arkansas Rules of Civil Procedure, Ms. Hargis should have received a more fulsome opportunity to be heard in opposition to Col. Hargis's motion for attorney's fees and costs. Consequently, the circuit court's order dated 27 April 2017 is reversed and the case remanded for proceedings consistent with this opinion.
Reversed and remanded.
Abramson, Virden, Murphy, JJ., agree.
Gladwin and Klappenbach, JJ., dissent.
Whether this case is best characterized as a contract case at law, or one in which the parties sought to enforce in equity an agreement intimately tethered to their divorce, has significant and varied implications at many levels. The record vacillates on the characterization point, and the legal authorities urged and arguments made have further complicated the issue. These are two reasons why we have focused on the rules of civil procedure at this time.
Black's Law Dictionary (10th ed. 2014) (bold original): shallvb. (bef. 12c) 1. Has a duty to; more broadly, is required to < the requester shall send notice> < notice shall be sent>. • This is the mandatory sense that drafters typically intend and that courts typically uphold. 2. Should (as often interpreted by courts) < all claimants shall request mediation>. 3. May < no person shall enter the building without first signing the roster>. • When a negative word such as not or no precedes shall (as in the example in angle brackets), the word shall often means may. What is being negated is permission, not a requirement. 4. Will (as a future-tense verb) < the corporation shall then have a period of 30 days to object>. 5. Is entitled to < the secretary shall be reimbursed for all expenses>. • Only sense 1 is acceptable under strict standards of drafting.
Verbatim, the rule states, "When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, or the court may direct that the matter be heard wholly or partly on oral testimony or deposition." Ark. R. Civ. P. 43(c). | [
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ROBERT J. GLADWIN, Judge
Ricky Lee Craig, father of decedent Zerottie Lemans Craig, appeals the Garland County Circuit Court's July 21, 2017 order wherein the court admitted the decedent's October 18, 2003 last will and testament ("LWT") to probate and appointed appellant and Thomasena McNutt, the decedent's sister, as coexecutors of the estate. The court also found that the decedent's antenuptial agreement ("AA") removed his wife from the LWT but did not revoke the LWT or remove the residuary bequest to the decedent's stepchildren. On appeal, appellant argues that the circuit court abused its discretion by (1) declaring effective a residuary bequest when the condition precedent had not occurred, and (2) declaring the LWT effective when the later AA canceled it. We reverse and remand in part and affirm in part.
I. Facts
The decedent married Cheryl Craig on March 17, 2001. On October 18, 2003, the decedent executed his LWT, which provides in part:
5.1 Spouse Surviving: In the event my spouse survives me by 30 days, I give all of my property, whether real, personal or mixed, to my spouse.
5.2 Spouse Predeceased: In the event my spouse fails to survive me by 30 days, I give the residue of my estate in equal shares to Jasen Evan Lee McDaniel and Jacob LaRay DeWayne Crawford, my stepchildren/descendants, per stirpes.
The decedent and Cheryl divorced on January 3, 2011. However, on May 10, the decedent and Cheryl entered into an AA, which provides in part:
WHEREAS, both parties desire to define the interests which each other shall have in the respective estate of the other during marriage or after marriage, in the event of divorce between the parties, and after the death of one of the parties herein; and
WHEREAS, it is the desire and intention of the parties that their respective personal and real property and financial affairs and matters be finalized as between the parties herein, such that this Agreement shall settle and determine in all respects, each party's respective interest in and to the other party's past, present and future property rights, claims, demands and actions, obligations, debts, and any other matters relating to each respective party hereto, such that this document is conclusive and final and legally binding upon the parties hereto, and their respective heirs at law; and
WHEREAS, it is the specific intention of the parties herein that they shall, when and if they marry, continue in the marriage relation but in the event of death or legal separation of the parties hereto, that this document shall conclusively settle and be legally binding upon the parties hereto, that this document shall conclusively settle and be legally binding upon the parties herein, such that the property rights in such legal separation or divorce are decided as specified hereinafter, and determine by the terms specified herein; and
WHEREAS, both parties herein desire and agree to accept all of the provisions herein in lieu of all rights which he or she might otherwise acquire or be entitled to or inherit from the other, by virtue of separation, divorce or death; and
....
I.
First Party [decedent] now owns real property, securities, personal effects, automobiles and other personal property and property of a mixed nature which has been disclosed to Second Party [Cheryl] herein.... Any such property so acquired, as well as that property previously acquired prior to marriage and disclosed herein ... shall constitute the sole and exclusive property of First Party, and Second Party, by her signature herein on this Agreement hereby relinquishes all right, title and interest that she might now have or hereinafter have or acquire by law in said property of First Party. Second Party hereby released all rights in the property or estate of the First Party which she might have by reason of their marriage, whether by dower, statutory allowance, intestate share, election to take against his Will, or any other means by which she might acquire an interest, at law or equity, and under the laws of any jurisdiction which might be applicable to said property. Further it is the specific intention of Second Party that such release shall specifically allow First Party to provide that all such property owned by him shall, in the event of his death, pass to the named devisees or legal beneficiaries of First Party, or according to the terms of his Will or other legal instruments in effect at his death, and that in the event of divorce or legal separation or death, said property shall be the sole and separate property of First Party, whether he dies with or without a Will.
....
VII.
Both parties acknowledge to the other, by the signing of this Agreement, that in the event of the termination of the marriage relationship of the parties, by death, by legal proceedings or otherwise, that they will make absolutely no claim nor receive any interest in any part of the property, income or estate of the other party which was acquired before and/or during their marriage, or which arose out of all rights to that claim by reason of the marriage relationship, or other matters between the parties, other than as specified above. It is specifically understood that neither party shall take anything from the other's estate, and neither party has made, nor contemplates, any provision of the other in their respective Last Wills and Testaments.
The decedent and Cheryl remarried on May 14, 2011, and the decedent died on April 10, 2017, while they were still married.
On April 27, 2017, McNutt, the decedent's sister, filed a petition to open the decedent's estate and appoint herself as administrator. In the petition, McNutt alleged that Cheryl was statutorily prevented from serving as executrix of the estate. The applicable statute provides:
If, after making a will, the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator's spouse so divorced are revoked. With these exceptions, no will or any part thereof shall be revoked by any change in the circumstances, condition, or marital status of the testator, subject, however, to the provisions of § 28-39-401 [providing for a surviving spouse's election against a will].
Ark. Code Ann. § 28-25-109(b) (Repl. 2012).
On May 4, Cheryl filed a petition to probate the decedent's LWT and to be appointed personal representative, alleging that she was the decedent's wife and sole heir. On May 9, Cheryl filed an amended petition alleging that she, her two sons, Jasen McDaniel and Jacob Crawford-the decedent's stepsons-and the decedent's mother and father, Betty and appellant Ricky Craig, were the decedent's surviving heirs. Cheryl's sons each filed a consent for Cheryl to serve as executrix of the decedent's LWT. McNutt and appellant filed an amended and supplemented petition to open estate and appoint coadministrators, asking that they both be appointed coexecutors of the estate.
A hearing on the competing petitions was held on June 5. At the hearing, Cheryl for the first time provided the AA to appellant and McNutt. Appellant and McNutt moved to amend their petition, requesting that they be appointed coadministrators but asking that the LWT be held invalid pursuant to the AA and Ark. Code Ann. § 28-25-109(b). They claimed that the statute revoked the provisions to the surviving spouse in the LWT. Further, they argued that the AA revoked the LWT in its entirety. Thus, appellant and McNutt asked to be appointed coadministrators of the estate and that the decedent be declared to have died intestate. Cheryl agreed that the AA terminated her claim to the decedent's estate but argued that it did not affect the claim of her two children. She argued that the LWT was not fully revoked by the AA. The circuit court gave the parties twenty days to submit briefs on the issue.
In Cheryl's brief, she alleged that she was not seeking a claim against the estate and that she was acting on behalf of her sons. She argued that McGuire v. McGuire , 275 Ark. 432, 631 S.W.2d 12 (1982), is parallel to the instant case. The decedent in McGuire bequeathed property to his wife and named his stepchildren as the residual beneficiaries. When the decedent divorced his wife, the question became whether the stepchildren remained the residual legatees. Id. at 433, 631 S.W.2d at 13. Our supreme court held that the bequest to the former spouse was revoked in accordance with the statute, and the stepchildren were the proper parties to receive the property under the terms of the will. Id. at 434-35, 631 S.W.2d at 14.
Appellant and McNutt alleged that Cheryl had no standing to seek probate of the LWT or to be appointed administrator or executor because the AA precluded her from doing so. Under their agreement, Cheryl cannot have any interest in the decedent's property, and she is a stranger to the estate. Further, pursuant to Ark. Code Ann. § 28-25-109(b), all the provisions in favor of Cheryl were revoked when she divorced the decedent.
The circuit court issued a letter opinion on July 5 denying and dismissing Cheryl's petitions and appointing McNutt and appellant as coexecutors of the estate. The court's letter states in part:
Other than the revocation of the provisions in favor of Cheryl Craig, A.C.A. section 28-25-109(b) states no will or any part thereof shall be revoked by any change in the circumstances, condition, or marital status of the testator. A.C.A. section 28-25-109 [ (c) ] states when there has been a partial revocation, reattestation of the remainder of the will shall not be required.
Petitioners Thomasena Craig McNutt and Ricky Lee Craig argue the decedent's LW & T should be voided in its entirety because of decedent's subsequent AA. However, the court finds while it is logical to think decedent would have revoked and or amended his 2003 LW & T upon the execution of the AA, the AA agreement is not inconsistent with decedent's LW & T. The AA clearly removes Cheryl Craig from decedent's estate and LW & T but does not unequivocally revoke the LW & T or remove the residuary request [sic] to decedent's stepchildren.
On July 21, the circuit court issued its formal order dismissing Cheryl's petitions and appointing McNutt and appellant coexecutors of decedent's LWT, which was admitted to probate. Further, the circuit court found that the AA did not revoke the LWT or "remove the residuary request [sic] to decedent's stepchildren." Letters co-testamentary were issued on July 21.
Appellant filed a notice of interlocutory appeal on August 21, appealing the limited portion of the circuit court's order that "finds that the 2003 Will of the Decedent is admitted to probate with the contingent gift to the adult stepchildren of the Decedent held as valid."
II. Standard of Review and Applicable Law
Probate cases are reviewed de novo on the record; however, the decision of the probate court will not be reversed unless clearly erroneous. Farrow v. Fuller , 2017 Ark. App. 144, 515 S.W.3d 652. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left, on the entire evidence, with the firm conviction that a mistake has been committed. Id. Our appellate courts defer to the circuit court's evaluation of witness credibility. Id. We have held that
[a] will contest is not a civil proceeding but rather a special proceeding in probate court, governed by statute. Screeton v. Crumpler , 273 Ark. 167, 617 S.W.2d 847 (1981) ; Coleman v. Coleman , 257 Ark. 404, 520 S.W.2d 239 (1974). The cardinal rule of statutory construction is to give effect to the intent of the legislature. Bell v. McDonald , 2014 Ark. 75, 432 S.W.3d 18. We are to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. 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 interpretation. Id.
Maxey v. Gray , 2014 Ark. App. 689, at 3, 2014 WL 6804930.
The Arkansas Supreme Court has held that
[t]he revocation of wills is governed by Ark. Code Ann. § 28-25-109 (1987), which provides as follows:
(a) A will or any part thereof is revoked:
(1) By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
(2) By being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
(b) If, after making a will, the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator's spouse so divorced are revoked. With these exceptions, no will or any part thereof shall be revoked by any change in the circumstances, condition, or marital status of the testator; subject, however, to the provisions of § 28-39-401.
(c) Where there has been a partial revocation, reattestation of the remainder of the will shall not be required.
In construing § 28-25-109, we have uniformly held that the only methods of revoking a will are those enumerated in the statute. In Re Estate of O'Donnell , 304 Ark. 460, 803 S.W.2d 530 (1991) ; Mosely v. Mosely , 217 Ark. 536, 231 S.W.2d 99 (1950).
Wells v. Estate of Wells , 325 Ark. 16, 19-20, 922 S.W.2d 715, 717 (1996).
Keeping these principles in mind, we consider appellant's points for reversal.
III. LWT Residuary Clause
First, appellant contends that the circuit court erred in declaring effective the residuary bequest in the decedent's LWT because the condition precedent-the decedent's spouse failing to survive him by 30 days-had not occurred. Appellees contend that the contingency did not have to be met because the decedent's obvious intent was that he wanted his stepchildren, whom he referred to in the LWT as "his own," to take the entire estate if their mother could not. Further, they argue that voiding the entire residuary clause would violate the presumption against intestacy.
Appellees cite Cook v. Estate of Seeman , 314 Ark. 1, 858 S.W.2d 114 (1993), for the proposition that, if at all possible, courts must broaden or enlarge a residuary clause to avoid intestacy. However, Cook held that there was no residuary clause disposing of the balance of the decedent's estate, so intestacy as to the residence was unavoidable. Cook, 314 Ark. at 3, 858 S.W.2d at 115. Appellees also argue that there is a strong presumption against partial intestacy, and a will is to be interpreted so as to avoid it unless the language of the will compels a different result. See Chlanda v. Estate of Fuller , 326 Ark. 551, 932 S.W.2d 760 (1996) ; Kidd v. Sparks , 276 Ark. 85, 633 S.W.2d 13 (1982) ; Rufty v. Brantly , 204 Ark. 32, 161 S.W.2d 11 (1942).
Appellees contend that McGuire, supra , disposes of appellant's argument that the residuary bequest to Jasen and Jacob is void or lapsed. In McGuire , Carl and his wife Sharon were divorced on January 28, 1980. McGuire , 275 Ark. at 433, 631 S.W.2d at 13. Carl's last will and testament, dated January 21, 1975, provided:
SECOND: I give, devise, and bequeath the rest, residue and remainder of my estate of every nature and wherever situated to my wife, SHARON LYNN McGUIRE, or, if she shall not survive me, to my surviving stepchildren in equal shares. If neither my wife nor any stepchild shall survive me, I give, devise, and bequeath the rest, residue, and remainder of my estate of every nature and wherever situated to my brother, RICHARD DANIEL McGUIRE, of Texarkana, Arkansas.
Id. at 433-34, 631 S.W.2d at 13. The circuit court rejected a petition to grant letters of administration on the estate, construed the will as though the widow had predeceased the testator, and awarded the bounty to the decedent's stepchildren in accordance with the terms of the will. Id. at 433, 631 S.W.2d at 13. Our supreme court, after quoting the statute codified today in Ark. Code Ann. § 28-25-109(b), held:
We think the above-quoted statute is controlling in this case. The clear meaning of the words used in the statute is that any bequest to the former spouse is void but the remainder of the will remains in effect. Therefore, the stepchildren were the residuary legatees and the proper parties to receive under the will. It is not necessary for us to try to reach the intent of the testator because the statute solves that problem for us. In view of the obvious effect of the statute we see no reason to embark upon a long discussion in order to decide this case. Therefore, in accordance with Ark. Stat. Ann. § 60-407 [ Ark. Code Ann. § 28-25-109(b) ] the named stepchildren are entitled to receive the property under the terms of the will.
Id. at 434-35, 631 S.W.2d at 14.
Appellees argue that, as in this case, McGuire required that the wife be treated as though she had predeceased the testator in order for the stepchildren to inherit. The appellate court ruled that even though the former wife was still alive, the estate passed to the stepchildren. Id. Appellees contend that is the same decision the circuit court in the instant case has made and that it, too, is a correct application of the law.
Appellant insists that McGuire is distinguishable. We agree, noting that Cheryl was still married to the decedent at his death and was therefore decedent's spouse as referred to in the contingent residuary clause of the LWT. In McGuire , Carl and Sharon had divorced before Carl's death, and the couple never remarried. Even though our supreme court in McGuire does not deal clearly with the circuit court's treatment of the divorced spouse as "predeceasing the testator," the court clearly relied on the statute to revoke the bequest to the spouse. We do not rely on McGuire for the proposition that a former spouse should be treated as having predeceased the testator. The reasoning of our supreme court in McGuire -that the statute controls-applies in the instant case; thus, the decedent's bequest to Cheryl was properly revoked.
The circuit court, having eliminated the residuary bequest to Cheryl, was required to construe the second residuary bequest to Jasen and Jacob according to its terms. See also Langston v. Langston , 371 Ark. 404, 266 S.W.3d 716 (2007) (construing Ark. Code Ann. § 28-25-109 and holding that testator's bequest to his wife in a will that was executed the month before the couple's divorce decree had been filed was revoked, despite testator's intent that his wife inherit). This court has held as follows:
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.
Harrison v. Harrison , 82 Ark. App. 521, 526-27, 120 S.W.3d 144, 147 (2003) (quoting Park v. Holloman , 210 Ark. 288, 291, 195 S.W.2d 546, 547 (1946) (holding that the residue of the estate was not disposed of by the will and that it should be distributed according to intestate succession) ).
Applying these principles, we hold that the residuary bequest to Jasen and Jacob must fail because Cheryl, who was the decedent's spouse at the time of his death, did not fail to survive him by more than 30 days. The residuary bequest to her was correctly declared void by the circuit court. However, instead of enforcing the LWT as written, the circuit court made a new will permitting Jasen and Jacob, who would not inherit under intestate succession, to inherit under the LWT, even though their mother is still alive. The invalidity of the bequest to Cheryl pursuant to Ark. Code Ann. § 28-25-109 did not rid the LWT of the condition precedent that Jasen and Jacob were to recover only if Cheryl failed to survive the decedent by 30 days. Thus, as in Harrison , supra , the residue must pass by intestate succession. See Ark. Code Ann. § 28-26-103 (Repl. 2012) (providing that the part of the estate not validly disposed of by will shall be distributed as provided by law with respect to the estates of intestates). Thus, because Cheryl, the decedent's spouse, did not predecease the decedent by 30 days and is in fact still alive, the condition precedent that would allow Jasen and Jacob to inherit under the terms of the LWT was not met. Accordingly, we reverse the circuit court's determination that the residuary bequest to the decedent's stepchildren remained effective.
IV. Effect of the AA on the LWT
Second, appellant contends that the circuit court abused its discretion by declaring the LWT effective because, he argues, the AA recognized the will as canceled. We disagree with appellant's contention. The circuit court, relying on Bratcher v. Bratcher , 36 Ark. App. 206, 821 S.W.2d 481 (1991), held that Cheryl had no standing to seek probate of the LWT in the intestate estate or to seek appointment as administrator or executor because the AA provides that Cheryl would make no claim against the estate. The circuit court also held that the AA did not unequivocally revoke the LWT or remove the residuary bequest to the decedent's stepchildren. We hold that the circuit court's determination that the AA did not revoke the LWT is not clearly erroneous.
The circuit court found that the AA had the same operative effect on the LWT as did Ark. Code Ann. § 28-25-109(b) -it revoked any right Cheryl had to share in the decedent's estate, but it did not revoke anyone else's rights. By its terms, the statute controls the only methods to revoke a will, and the AA is not a subsequent will. See Wells, supra. We reiterate that while the bequest to the stepchildren was not revoked, the condition precedent necessary for the stepchildren to inherit was not met. Accordingly, we affirm the circuit court's finding that the AA did not cancel the entirety of the LWT.
Affirmed in part; reversed and remanded in part.
Abramson and Murphy, JJ., agree. | [
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BRANDON J. HARRISON, Judge
This case turns on whether the State proved that Allen Bradley, who was already a felon, constructively possessed a Glock semiautomatic 9 mm pistol on 16 February 2017 in violation of Ark. Code Ann. § 5-73-103(c)(1)(A) (Repl. 2016). A police officer found a gun inside a cardboard box that was either near or within a shed approximately twenty yards from where Bradley was arrested in the backyard of a jointly occupied house. After a bench trial, the circuit court convicted Bradley of being a felon in possession of a firearm. The court sentenced Bradley to twenty years' imprisonment in the Arkansas Department of Correction and four years' suspended imposition of sentence. Bradley appeals the conviction and argues that the record does not sufficiently support it. We agree that the State did not sufficiently prove that Bradley constructively possessed a firearm in violation of the law and therefore reverse the conviction.
I.
An alleged domestic disturbance at a house in Little Rock, to which police officers were dispatched, ended with Bradley's arrest and the State charging him with six offenses: a felon possessing a firearm; felony aggravated assault on household or family member; felony aggravated assault (two counts); felony third-degree battery; and a criminal-mischief misdemeanor.
We pick up the story with the on-scene police officers telling the circuit court about finding Bradley in the backyard of the house to which they had been called. And we confine our summary of the evidence to the firearm-possession charge for reasons that will become clear in due course.
During the bench trial, Little Rock police officer Timothy Pope testified that Bradley did not have a gun on his person when he was arrested in the backyard. According to Officer Pope, Bradley was arrested "probably 25 feet from the back door-25 yards or so from the back door of [the] house." The 9 mm handgun, according to Officer Pope, "was found in the backyard right outside the back door" by Officer McGuire.
On cross-examination, Officer Pope said that he had talked to two people in the front yard, but he did not speak with people who were inside the house. He said an older teenager, a preteen, and a "younger baby" were inside the house. When asked, the officer agreed that other people could have been in the backyard before he arrested Bradley. When asked by defense counsel where Officer McGuire found the gun, Officer Pope said, "I don't know where he found it. There was-once you go out the back door, there's a small shed. I did see the small shed in the backyard[.]" Officer Pope could not say how far the shed was from the back door of the house. Officer Pope said that he did not see Bradley with the gun, did not see anyone find the gun, and did not test the gun to see if Bradley had touched it. Bradley, according to Officer Pope, was "exiting the area" but was not running when he was arrested in the backyard.
Little Rock police officer Steve McGuire said that he found a Glock pistol "in a metal storage building behind the residence and it was inside of a cardboard box." He agreed that "it was visible from outside that building" and "in the backyard of the residence." Officer McGuire identified State's exhibit no. 4 as a picture of the gun inside an open cardboard box. When Officer McGuire found the gun, there was a round in the chamber and a loaded magazine in it. Photographs of the magazine were admitted as State's exhibit nos. 5 and 6. The officer also identified the open cardboard box in which the gun was found as State's exhibit no. 7; and the gun itself was marked State's exhibit no. 8. Officer McGuire did not participate in taking Bradley into physical custody because he was "across the yard" at the time. According to Officer McGuire, Bradley's arrest occurred twenty yards from where the gun was located.
On cross-examination Officer McGuire said that he never saw Bradley touch the weapon, that there were several people in the house when the police arrived, that he did not know the nature of the relationship Bradley had with the residents, and that the gun he recovered was never tested for fingerprints.
Officer Tony Nativi testified too. He said he did not know the number of people in the house or their ages, but there were some children "in their teenage years." He did not see Bradley possess a gun or hurt anyone while he was there.
Detective Aaron Oncaen was the fourth law-enforcement officer to testify. He filled out an arrest-disposition form for Bradley on 16 February 2017. The detective said that he had completed a Miranda rights form the same day on Bradley's behalf. When asked, he agreed that Bradley had indicated that his address was the same one as the house where he was arrested. The Miranda form itself was not introduced as evidence during the trial.
II.
After listening to extensive arguments by the parties' counsel and dismissing five of the six counts the State had filed against Bradley, the circuit court denied Bradley's motion to dismiss the felon-in-possession charge. At the close of all the evidence, the court was then faced with determining whether the State had met its burden of proof that Bradley had unlawfully possessed a firearm, which at the time of the decision was wholly based on a constructive-possession theory. On the possession charge, the court made the following ruling from the bench:
The Court finds that the State has met its burden of proof as to count one on the charge of possession of firearms by certain persons based upon the proof that the Glock firearm located in the rear of the defendant's residence 5019 Frazier Pike was located in an area from which the defendant was seen by police officers to have been fleeing or running. It was located in close proximity in time from the time that the defendant was being pursued. It was located in an open space, in an area near where defendant was apprehended.
Those factors not only are sufficient to persuade the Court that the firearm was possessed by the defendant but those factors dispel other possibilities with regard to the possession of that firearm at the point in time inasmuch as all other persons who have been identified during the course of the trial were on the opposite side of the residence except for the person identified as children who under the proof were testified to have been inside the residence.
Inasmuch as the defendant was a resident of 5019 Frazier Pike, was the person identified in the vicinity of the firearm that was apprehended, the Court finds that the State has met its burden of proof and finds the defendant guilty of possession of firearm by certain persons.
III.
The circuit court convicted Bradley of possessing the firearm based on circumstantial evidence. Consequently, we must consider whether the evidence indicated Bradley's guilt and excluded all other reasonable hypotheses about who may have possessed or controlled the gun. White v. State , 2014 Ark. App. 587, at 4, 446 S.W.3d 193, 196. Whether circumstantial evidence excludes every other reasonable hypothesis is a decision for the fact-finder; but when the evidence leaves the fact-finder to speculate and conjecture, a conviction cannot stand. Id.
Arkansas Code Annotated section 5-73-103, absent exceptions that do not apply here, prohibits a convicted felon from possessing or owning a firearm. Ark. Code Ann. § 5-73-103 (Repl. 2016). It is undisputed that Bradley was a convicted felon before the arrest and conviction in this case; his prior felony convictions were admitted into evidence during the bench trial without objection. The only point in dispute was whether he possessed the Glock pistol in violation of the law. A conviction for violating section 5-73-103(a)(1) may be based on actual or constructive possession.
Lambert v. State , 2017 Ark. 31, 509 S.W.3d 637. This is a constructive-possession case as presented to this court. To constructively possess contraband means knowing it is present and having control over it. Id. at 3, 509 S.W.3d at 640 (citing United States v. Roberts , 953 F.2d 351, 353 (8th Cir. 1992) ) (noting that "constructive possession" has been defined as "knowledge of presence plus control"). Possession may be imputed when the contraband is found in a place that is immediately and exclusively accessible to the accused and subject to his or her dominion and control, or to the joint dominion and control of the accused and another. Id. Control and knowledge can be inferred from the circumstances, like the proximity of the contraband to the accused, whether it is in plain view, and who owns the property where the contraband is found. Nichols v. State , 306 Ark. 417, 815 S.W.2d 382 (1991). An accused's suspicious behavior, coupled with physical proximity to the contraband, can indicate possession. Pokatilov v. State , 2017 Ark. 264, at 4, 526 S.W.3d 849, 854.
In Williams v. State , this court held that there was not enough evidence to convict on a firearm-possession charge when the defendant was outside an apartment when police arrived, and he was already in custody when police found the gun-under a bed, inside the apartment. 94 Ark. App. 440, 236 S.W.3d 519 (2006). The State presented no testimony on who had placed the gun under the bed or whether Williams had slept in the same bedroom where the gun was found. This court went so far as to note that no evidence was presented that Williams had slept on the same side of the bed as the gun was found. In fact, the State did not even establish that Williams was the person who placed the gun inside the apartment. The gun, moreover, was not found with Williams's personal effects; and neither the weapon nor the ammunition found in the apartment was tested for fingerprints. Finally, the State did not prove that Williams was the subject of a weapon-disturbance call. Id.
The holes in the proof in Williams are strikingly similar to this case. As in Williams , the State presented some circumstantial evidence of constructive possession; but it did not foreclose, beyond speculation and conjecture, every other reasonable hypothesis of Bradley's guilt. The police officers said that multiple people had access to the house and its curtilage when Bradley was arrested. That means multiple people had access to the areas where the gun was found. No witness explained Bradley's relationship to the people in the house. That Bradley indicated in a Miranda form that the house where he was arrested was his "residence" does not in and of itself establish a constructive possession under the law because, even had Bradley resided in the house, the State still had to link him to the gun located on the jointly occupied premises. (The State does not contest that the house was jointly occupied.)
Apart from the Miranda form, Bradley was not closely tied to the house, much less to the Glock 9 mm pistol found near (or inside) the shed. In addition to what we have already noted, no one, for example, testified that utility bills in Bradley's name (or any other mail) were sent to the house. See Harjo v. State , 2017 Ark. App. 337, at 4, 522 S.W.3d 839, 843 (police officers testified that they were familiar with defendant and had prior knowledge that he lived at that address and bills in his name were found in the bedroom along with men's clothing). No one produced any proof that Bradley held some property interest in the house. No one produced evidence of a lease agreement (oral or written) in Bradley's name. Regarding the gun's location, it was not found in an indoor common area but was spotted in an outside area, inside an open cardboard box that was itself near (or inside) an unlocked shed. Compare Cook v. State , 2010 Ark. App. 726, 379 S.W.3d 618 (defendant's mere presence when police find contraband in a shed behind a house is insufficient to show constructive possession), with Lueken v. State , 88 Ark. App. 323, 198 S.W.3d 547 (2004) (affirming conviction when appellant was arrested outside while working on a vehicle with drug paraphernalia on his person, he shared a residence with roommate, and police officers found drug material in kitchen and laundry room area and a bedroom and bathroom).
The circuit court placed a premium on Bradley's proximity to the gun. But in caselaw terms, Bradley was not particularly close to the gun when he was arrested. See Standridge v. State , 310 Ark. 408, 837 S.W.2d 447 (1992) (holding that defendant's fingerprint found on plastic cup beside tent that was six to fifteen feet from marijuana plants did not support constructive possession).
No one testified about who used the storage building, for what purposes, or for how long; and, again, it was undisputed from the police officers' testimony that multiple people had access to the backyard and the shed areas. See Argo v. State , 53 Ark. App. 103, 105, 920 S.W.2d 18, 20 (1996) (reversing felon-in-possession charge when there were four people standing near a car but no one was occupying the car where the gun was found; the defendant did not have exclusive access to the gun nor did he exercise any control over it; the gun was not found on his person or with his personal effects; and he did not own the vehicle in question or exercise control over it).
There is more. The State presented no forensic evidence, like a fingerprint analysis, to link Bradley to either the gun or the ammunition. No proof regarding to whom the gun was originally sold was provided either. Nor was there any testimony, which we may consider, that Bradley had a history of gun ownership, possession, or use (recreational or otherwise). Finally, police officers did not recover any personal items that may have linked Bradley to the metal shed, the gun, or the house. In summary, the State did not establish a connection between Bradley and the gun to a degree that could move a fact-finder beyond speculation and conjecture.
The State invites us to affirm Bradley's conviction based on testimony and documentary proof that was excluded by the circuit court pursuant to Bradley's Confrontation Clause argument. U.S. Const. amend. VI. The State's position is that all the evidence presented to the circuit court during the trial may be included in our sufficiency review. It is generally true that we may consider evidence that has been improperly admitted to determine an appellant's sufficiency point on appeal, e.g., Campbell v. State , 2017 Ark. App. 59, 512 S.W.3d 663, but we do not consider evidence that was excluded from the record. Some more background will put the State's request into context.
In this case the alleged adult victims who initially called 911 and summoned the police to 5019 Frazier Pike on 16 February 2017 did not testify at trial. Although the circuit court initially admitted as evidence a computer-aided dispatch printout of a 911 emergency call from the house (over objections), and permitted the responding officers to testify about what the callers or victims had told them (over objections) the court later reconsidered its decision and excluded the testimony and the 911 document based on Bradley's arguments that the evidence should be excluded under the Sixth Amendment's Confrontation Clause. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."). We read the circuit court's ruling to mean that it excluded much of the State's evidence-including the 911 call log, related notes, and the alleged victims' statements to police and emergency operators-as violations of Bradley's constitutional right to confront his accusers. The circuit court then dismissed every charge the State had filed against Bradley except the felon-in-possession charge, which we have already addressed.
The State has not attempted to cross-appeal the circuit court's adverse Confrontation Clause ruling. Consequently, we have decided this appeal based on the evidence the circuit court received during the bench trial. In the circumstances, we respectfully decline the State's invitation to consider the evidence that the circuit court excluded when it applied Bradley's federal constitutional right to confront his accusers to the case. The Confrontation Clause may as well be written in disappearing ink if we were to do what the State asks on this record.
IV.
Having viewed all the admitted evidence in the light most favorable to the State, we hold that the State did not present substantial evidence to support the conviction on offense 1 of the criminal information. The circuit court's conviction on offense 1 ( Ark. Code Ann. § 5-73-103(c)(1)(A) ) is therefore reversed. We remand the case so the court can enter an amended sentencing order consistent with this opinion.
Reversed and remanded.
Abramson and Brown, JJ., agree.
The record is not clear on whether the Glock-in-a-box was inside the shed or outside the shed. | [
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Regarding postjudgment interest, the relevant statute, Arkansas Code Annotated section 16-65-114, states as follows:
(a)(1) Except as provided in subdivision (a)(2) of this section, interest on a judgment entered by a court shall bear interest:
(A) In an action on a contract at the rate provided by the contract or ten percent (10%) per annum, whichever is greater; and (B) In any other action at ten percent (10%) per annum.
(2) Interest on a judgment shall not exceed the maximum rate permitted under Arkansas Constitution, Amendment 89.
(b) A judgment rendered or to be rendered against a county in the state on a county warrant or other evidence of county indebtedness shall not bear interest.
Here, we hold that the Trust is not entitled to prejudgment interest because the expenses were not reasonably ascertainable-it was unknown exactly what costs would be awarded, whether the court would exercise its discretion to award costs, and if it did award them, how much would it award. On the other hand, we reverse the circuit court's decision regarding postjudgment interest. Subsection 114 says that interest accrues on a "judgment" and Ark. Code Ann. § 16-65-103 provides, "In all judgments or decrees rendered by any court of justice for any debt, damages, or costs , and on all executions issued thereon, the amount shall be computed, as near as may be, in dollars and cents, rejecting smaller fractions." (Emphasis added.) Accordingly, the costs awarded should be treated as a judgment. Therefore, we hold that the Trust is entitled to postjudgment interest dating back to the October 8, 2017 order.
Affirmed on direct appeal; affirmed in part and reversed in part on cross-appeal.
Gruber, C.J., and Glover, J., agree. | [
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Hart, J., concurs. | [
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KAREN R. BAKER, Associate Justice
Appellant Russell Berger filed a civil petition in circuit court in which he sought an order directing the warden of the prison where he was incarcerated to preserve "video evidence" in connection with a period of time at the prison during which Berger alleged he had been confined for sixteen hours in a cell flooded with raw sewage. Berger asked in the petition that the evidence be maintained and not destroyed-as it would be after forty-five days under the prison's normal procedure-so that he would have time to exhaust his administrative remedies as required before he could pursue potential claims concerning the incident either in court or before the claims commission. The circuit court dismissed the petition, and it found that the petition constituted a strike under Arkansas Code Annotated section 16-68-607 (Supp. 2017).
Berger lodged this appeal, and Warden Gibson, represented by the Attorney General's office, has filed a motion to dismiss the appeal because Berger filed a handwritten brief. Warden Gibson also requests in a separate motion that this court stay briefing and grant him an additional thirty days after the decision on the motion in which to file a brief. Because the Attorney General's office should have known that the basis raised to dismiss the appeal was frivolous, we deny both motions.
In the motion to dismiss, Warden Gibson alleges that Berger's brief fails to comply with Arkansas Supreme Court Rules 1-2, 4-1, and 4-2 because it is not typewritten, and that Berger has not requested permission to file a handwritten brief, demonstrated substantial merit for the appeal, or established that he is unable to submit a typewritten brief. Effective June 1, 2006, Arkansas Supreme Court Rule 4-7 applies to briefs filed in postconviction and civil appeals, including mandamus and other petitions pertaining to the appellant's conviction or incarceration, when an appellant is incarcerated and proceeding pro se. Ark. Sup. Ct. R. 4-7(a) (2017). Under Rule 4-7(b)(1), briefs may be handwritten.
To the extent that Warden Gibson would have this court address the merits of the appeal, he has provided no reason why he should not be required to file an appropriate brief that addresses the arguments rather than requesting this court to address the same issues through a motion. We also decline the request for additional time in which to submit a brief.
Motions denied.
Warden Gibson, through counsel, tendered a reply to Berger's response, which our clerk declined to file because there is no procedure permitting such a reply. In that tendered reply, the warden appears to request permission to amend his motion to limit the bases for dismissal to the merits of the appeal based on the arguments made in Berger's brief. We note, however, that after his reply was rejected by the clerk, Warden Gibson did not file a motion to amend or withdraw the previous motion. | [
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ROBERT J. GLADWIN, Judge
Appellant Shawn Harris's appeal of the March 31, 2017 order of the Pope County Circuit Court denying his motion for summary judgment on the basis of qualified immunity is before this court a second time after we ordered rebriefing. See Harris v. Parrish , 2018 Ark. App. 58, 2018 WL 632245. After reviewing the new brief filed by Harris, specifically, the addition of the requested material in the abstract, it appears that Harris has sufficiently cured the deficiencies that caused the rebriefing order, and we now are able to reach the merits of Harris's claim that the trial court erred in denying his motion for summary judgment based on the defense of qualified immunity. Because genuine questions of material fact remain, we affirm.
I. Facts
Appellee James Parrish originally filed suit against various Pope County deputies, including Harris, Sheriff Aaron Duvall, and State Trooper Wilson Short in the United States District Court, Eastern District of Arkansas, Western Division. The suit alleged that excessive force was used upon Parrish during his arrest on April 14, 2012. Separate defendant Trooper Short filed a motion for summary judgment alleging that no excessive force was utilized against Parrish in his arrest. That motion was granted, and immediately thereafter, Parrish filed a voluntary nonsuit under Fed. R. Civ. P. 41. Subsequently, the present underlying suit was filed in the Pope County Circuit Court against the same defendants except for Trooper Short. All defendants filed for summary judgment, and following a hearing on the motions held on March 16, 2017, the trial court entered an order on March 31, 2017, granting summary judgment based on qualified immunity to all individually named defendants except for Harris. Harris filed his timely notice of appeal on April 6, 2017.
II. Standard of Review and Applicable Law
This appeal is pursued on an interlocutory basis pursuant to Ark. R. App. P.-Civ. 2(a)(10) (2017), which allows for an appeal to be taken from a trial court to the Arkansas Supreme Court from "an order denying a motion ... for summary judgment based upon the defense of ... the immunity of a government official." Generally, the denial of a motion for summary judgment is neither reviewable nor appealable. See Martin v. Hallum , 2010 Ark. App. 193, at 8, 374 S.W.3d 152, 158 (citing City of Fayetteville v. Romine , 373 Ark. 318, 284 S.W.3d 10 (2008) ). However, this general rule does not apply when the refusal to grant a motion for summary judgment has the effect of determining that the appellant is not entitled to immunity from suit. Martin , supra. The rationale justifying such an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Id.
The issue of whether a party is immune from suit is purely a question of law and is reviewed de novo. See Martin and Romine , supra ; see also Ark. R. App. P.-Civ. 2(a)(10). In Martin , our supreme court reiterated our general analysis regarding summary judgment:
Of course, our courts have repeatedly held that summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Gentry [v. Robinson , 2009 Ark. 634, 361 S.W.3d 788]. On appellate review, we determine whether 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. City of Farmington v. Smith , 366 Ark. 473, 237 S.W.3d 1 (2006). We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. [Smith v. Brt , 363 Ark. 126, 211 S.W.3d 485 (2005) ]. Our review focuses not only on the pleadings but also on the affidavits and other documents filed by the parties. Dodson v. Taylor , 346 Ark. 443, 57 S.W.3d 710 (2001). In viewing the evidence in the light most favorable to the party resisting the motion, we are not obliged to ignore incontrovertible evidence that is depicted on a videotape. Wallingford v. Olson , 592 F.3d 888 (8th Cir. 2010) (citing Scott v. Harris , 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ).
The issue of whether a party is immune from suit is reviewed de novo on appeal. Romine , supra. Whether summary judgment on grounds of immunity is appropriate on a particular set of facts is purely a question of law. Gentry , supra. Although the determination of whether there is a genuine issue of material fact is a question of law under these circumstances, it is a legal question that sits near the law-fact divide. Id. (citing Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
Martin , 2010 Ark. App 193, at 10-11, 374 S.W.3d at 159.
In Graham v. Underwood , 2017 Ark. App. 498, 532 S.W.3d 88, we stated that the purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id. If a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Id.
The Arkansas Supreme Court has held that even when there is no material dispute as to the facts, the court must determine whether reasonable minds could draw reasonable inconsistent hypotheses to render summary judgment inappropriate. Lipsey v. Giles , 2014 Ark. 309, 439 S.W.3d 13. In other words, when the facts are undisputed but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Id. If so, summary judgment is not appropriate.
III. Discussion
The case arises out of the arrest of Parrish by deputies of the Pope County Sheriff's Department with assistance from the Arkansas State Police on April 14, 2012, in rural Pope County, Arkansas. At approximately 10:00 p.m., Pope County deputies, including Harris, were dispatched in response to a domestic disturbance at a mobile home situated on a parcel of pasture land owned by Parrish. Deputies arrived to discover a minor altercation involving intoxicated individuals. Parrish, the owner of the property, had also gone to the site to personally investigate the headlights that had suddenly appeared in the middle of his pasture.
When Parrish arrived on the scene, he was unaware that Pope County deputies had already arrived. The headlights and spot light of Harris's squad car apparently shone into Parrish's eyes, causing Parrish to drive off his pasture road into a ditch, becoming stuck. Parrish then walked onto the scene and eventually was told that he needed to leave due to the nature of the investigation being conducted by the Pope County Sheriff Department's deputies.
Parrish refused to leave and was advised that if he did not leave he would be placed under arrest. Parrish refused to leave and allegedly became argumentative with officers, which eventually led to him being (1) taken to the ground by a leg sweep issued by Harris, (2) subsequently handcuffed, (3) detained at the Pope County Detention Center, and (4) charged with resisting arrest, disorderly conduct, public intoxication, and interference with governmental operations. In the resulting Pope County District Court criminal trial, Parrish was found guilty on all charges.
Parrish then filed the precursor to this action in the United States District Court, Parrish v. Harris , No. 4:13-CV-526 (E.D. Ark. Sept. 9, 2013), ECF No. 1. The trial court granted a motion for summary judgment filed by Trooper Wilson Short based on the excessive-force claim against him filed by Parrish. None of the other named defendants pursued summary judgment in that initial case. Judge Miller's order granting summary judgment found that "even when viewing the facts in the light most favorable to Parrish, nothing supports his claim that the force used against him was excessive." Parrish, ECF No. 43. Following this ruling on summary judgment, Parrish dismissed all remaining claims against the remaining defendants pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).
Approximately four months later, this case was commenced in the Pope County Circuit Court, and the trial court granted summary judgment for all defendants with one exception-the trial court denied Harris's claimed entitlement to qualified immunity. Parrish's claim of excessive force against Harris was brought solely under the Arkansas Civil Rights Act, see Arkansas Code Annotated section 16-123-105, and subsection (c) provides that "when construing this section, a court may look for guidance to state and federal decisions interpreting Civil Rights Act of 1871 as amended and codified in 42 U.S.C. § 1983." The Eighth Circuit Court of Appeals discussed qualified immunity in Greiner v. City Champlin , 27 F.3d 1346, 1351-52 (8th Cir. 1994) :
Accordingly, whether the officer is immune "ordinarily should be decided by the Court long before trial." Hunter v. Bryant , 502 U.S. 224, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (per curiam), or else much of the benefit of the rule will be lost.
In addition, the U.S. Supreme Court has held that the "qualified immunity standard gives ample room for mistaken judgment by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant , 502 U.S. 224 -229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs , 475 U.S. 335, (1986) ) ; see also Bridgewater v. Caples , 23 F.3d 1447, 1449 (8th Cir. 1994).
The defense of qualified immunity was analyzed by our supreme court in Smith v. Brt , supra , in which it held that a motion for summary judgment based on the defense of qualified immunity is precluded only when the plaintiff has asserted a constitutional violation, demonstrated that the constitutional right is clearly established, and raised a genuine issue of fact as to whether the official should have known that the conduct violated such established rights.
In granting summary judgment in the initial federal district court case, the court held that Parrish was not subjected to excessive force when he was arrested on April 14, 2012. Harris urges that this holding negated the requisite condition precedent that Parrish's constitutional rights had been violated. He notes that when there is no constitutional violation, the remainder of the qualified-immunity examination never arises. Citing Coker v. Arkansas State Police , 734 F.3d 838, 842 (8th Cir. 2013), the federal trial court found that the use of force in this case was objectively reasonable under the circumstances-as judged from the perspective of a reasonable officer on the scene, without the benefit of hindsight. During an arrest, an officer is permitted to use some degree of physical coercion or threat. Coker , 734 F.3d 838. Additionally, a court must balance an individual's Fourth Amendment interests against the relevant government interest, which may include
[t]he severity of the crime; whether the suspect poses a threat of harm to others; whether the suspect is resisting arrest ... whether the situation is "tense, uncertain and rapidly evolving, which would force an officer to make "split-second judgments" about how much force is necessary.
Id. at 842-43. The severity of the plaintiff's injuries may also be considered, as well as whether the police used standard procedures. Mann v. Yarnell , 497 F.3d 822 (8th Cir. 2007).
Harris argues that even if this court were to conclude that a finder of fact could determine that he used excessive force in taking down Parrish with the leg sweep, that does not end the discussion on qualified immunity because there is no proof in the record to indicate that Harris knew his actions in apprehending Parrish violated clearly established constitutional law. His testimony was that in that moment he determined that Parrish was about to attempt to hit him.
Harris maintains that he did not engage in any conduct that violated Parrish's constitutional rights. However, Harris argues that even if this court were to conclude that he did, Harris argues that he would still be entitled to the defense of qualified immunity absent some proof that he intentionally violated Parrish's constitutional rights that evening while handling a "rapidly evolving" situation that led to his split-second decision regarding how much force was necessary under the circumstances pursuant to Coker .
We disagree and hold that the trial court did not err in denying Harris's motion for summary judgment based on qualified immunity. The record indicates that Parrish had set out to investigate an altercation occurring on property that he owns, and we hold that a material question of fact remains as to whether he posed a threat to law enforcement officers at any time and whether Harris's use of force upon Parrish was objectively unreasonable and a violation of Parrish's constitutional rights.
The evidence viewed in the light most favorable to Parrish demonstrates that on reaching the gate to rental property owned by him, after driving across other fields that he also owns, Parrish was met by a spotlight, which blinded him and caused him to drive into a culvert. Only after Parrish yelled at the person holding the spotlight did the person yell back at him, command him to approach, and advise him that they were police. Upon approaching, the officers accused Parrish of being drunk. He made no aggressive moves toward the police, and at the time he was leg-swept to the ground by Harris, Parrish can be seen in the video to be making no gestures of any kind, except to reflexively withdraw his left hand as Harris attempted to grab it. The only move that could have been regarded as "aggressive," as identified by Deputy Sawdy, was that Parrish did not leave his own property when told to do so. Evidence indicates that Parrish was not able to leave the property on his own because he was not physically able to walk the required distance, and his vehicle was inoperable; however, he placed a call to his son-in-law, Rusty Davis, to come get him. According to officers' testimony, when Parrish attempted to explain that he was diabetic and not drunk, they told him to leave or they would arrest him. Because leaving at that time was impossible for him because he was unable to walk that far and his truck was stuck, Parrish ultimately verbally indicated that the officers should arrest him.
We hold that Parrish's constitutional rights were clearly established prior to Harris's actions in question. In Shannon v. Koehler , 616 F.3d 855, 862 (8th Cir. 2010), the Eighth Circuit established, in the context of a claim of excessive force, that
[t]he dispositive question is whether the amount of force the officer used was objectively reasonable. See Graham v. Connor , 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In turn, "[t]he reasonableness of a particular use of force depends on the circumstances of each case, including 'the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.' " Wertish v. Krueger , 433 F.3d 1062, 1066 (8th Cir. 2006) (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ).
The officers' contradictory claims that Parrish presented a threat of some sort create, at best, an issue of fact for trial rather than a basis for summary judgment.
This case is factually similar to Perry v. Woodruff County Sheriff Department ex rel. Barker , 858 F.3d 1141 (8th Cir. 2017), in which the Eighth Circuit affirmed the trial court's denial of a police officer's motion for summary judgment based on qualified immunity. In Perry , Officer Clark threw Perry to the ground, restrained his arms, and forced his knee into Perry's back. Perry , 858 F.3d at 1144-45. As with Parrish, Perry was found to have posed no threat to Officer Clark. Given these facts, the Eighth Circuit held that the officer's use of force was "objectively unreasonable as a matter of law." Id. at 1145. Though Parrish pleaded no contest to the charge of refusal to submit to arrest, viewed in light of Parrish's testimony, the video arguably shows that he was not acting in an aggressive or threatening manner, the other officers were not acting in a defensive manner, and the sum of the evidence supporting the refusal-to-submit-to-arrest charge was his reflexively pulling his hand away when Harris reached for it.
Our supreme court analyzed this issue in Jackson v. State , 2013 Ark. 201, at 27 n.3, 427 S.W.3d 607, 623 n.3,
Thus, with the proliferation of "dash cam" and surveillance video evidence, an appellate court may arguably be in as good a position as the trial court to evaluate certain historical facts, assuming no corresponding authenticity or credibility-related issues need to be addressed. Cf. Scott v. Harris , 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (reaching vastly different interpretations from those of the district court and Court of Appeals upon review of "dash cam" videotape depicting police chase of motorist). To the extent that an appellate court's analysis of probable cause or reasonable suspicion rests in part on interpretations of unchallenged video or audio evidence then arguably the justification for deference to the trial court's "better position" to evaluate facts tends to fade. And yet, there are countervailing notions rooted in the very structure of our trial court-appellate court system that suggest that fact-finding lies most appropriately in the trial courts' domain. In this case, the video was in my opinion inconclusive. Given the fact that the trial judge was both able to review it and to hear live testimony about it, I feel compelled to defer to the circuit court's factual findings and related inferences on this point.
Parrish argues, and we agree, that a jury should be entitled to consider his conduct and to make the determination as to whether Harris's use of force was objectively reasonable.
The facts of this case fall squarely within what the Eighth Circuit has characterized as a "run-of-the-mill" excessive-force case, and under those circumstances, certain effective presumptions have been established relating to the amount of force that may be used. See Shannon , supra (holding that assuming Shannon was not threatening anyone, not resisting arrest, it was unreasonable for Officer Koehler to use more than de minimis force against him). We agree with Parrish's assertion that a mere verbal argument does not remove his incident from this analysis.
We distinguish Harris's actions from the situation contemplated in Chambers v. Pennycook , 641 F.3d 898 (8th Cir. 2011), cited by Harris in his brief. Here, the video evidence shows Parrish-who is undisputedly elderly and infirm-slammed to the ground and having a knee placed in his back while his arms were dragged out from under his body. This is not analogous to the sort of "irritation, minor injury, and discomfort" contemplated by Chambers , which referenced the pain attendant to handcuffs being placed on the wrists. Chambers , 641 F.3d at 907.
We further hold that there is a material question of fact regarding Harris's argument that the actual harm inflicted on Parrish is evidence that the activities of the officers were "objectively reasonable." Simply because Parrish may have been fortunate that the physical damage was less than it could have been does not render Parrish's damaged ear, painful legs, injured wrist, and possibly resulting stroke de minimis. Whether injuries are de minimis is not the appropriate standard for evaluating excessive force under the Fourth Amendment. In Peterson v. Kopp , 754 F.3d 594, 601 (8th Cir. 2014), the court reiterated its prior holding in Chambers , supra :
We have held that de minimis injury does not foreclose a claim of excessive force under the Fourth Amendment.
Chambers , 641 F.3d at 906. Rather, "[t]he appropriate inquiry is 'whether the force used to [a]ffect a particular seizure is reasonable.' " Id. (quoting Graham [v. Connor ], 490 U.S. at 396, 109 S.Ct. 1865 ).
Because there remains a material question of fact as to whether the force used by Harris was objectively reasonable under the circumstances, summary judgment was properly denied.
Finally, we acknowledge that in order to receive qualified immunity, a police officer must have at least "arguable probable cause" to make an arrest. Bernini v. City of St. Paul , 665 F.3d 997, 1003 (8th Cir. 2012). "Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable." Ulrich v. Pope Cty. , 715 F.3d 1054, 1059 (8th Cir. 2013). Despite Harris's argument as to the existence of probable cause to arrest Parrish on charges of disorderly conduct, obstructing governmental operations, and resisting arrest, we do not reach the merits of this argument. As previously discussed in Martin , supra , the question whether there was arguable probable cause for Harris to arrest Parrish for purposes of qualified immunity in this excessive-force claim and under these particular circumstances lends itself to be a legal question that "sits near the law-fact divide" and is a matter to be resolved at the trial court level.
We affirm the trial court's denial of Harris's motion for summary judgment.
Affirmed.
Glover and Whiteaker, JJ., agree.
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BART F. VIRDEN, Judge
Appellant Nicole Killingsworth (formerly Dittmar) appeals from the Sharp County Circuit Court's order awarding custody of her children, M.D. and A.D., to their father, appellee Jeremiah ("J.D.") Dittmar. Nicole argues that (1) the trial court erred in finding that a joint-custody agreement existed and concluding that her relocation was a material change in circumstances and (2) alternatively, even if a joint-custody agreement existed, it was in the children's best interest to remain in her primary physical custody. We affirm.
I. Procedural History
Nicole and J.D. divorced on July 6, 2015. A custody agreement was incorporated, but not merged, into the divorce decree, stating in part,
The Husband and Wife are to have joint custody of the minor children with the Wife being the primary residential custodian. The Husband shall have reasonable visitation at any time the parties agree. The Husband shall have visitation every week from Thursday at 6:00 p.m. until Sunday at 6:00 p.m. and holidays shall be divided pursuant to the Court's standard visitation schedule attached hereto as Exhibit Number 1.
....
(b) The parties shall abide by the Court's Proper Conduct rules as attached hereto as Exhibit Number 2.
Exhibit number 2, entitled "Proper Conduct of Divorced or Separated Parents," includes the following rule: "If you are divorced, DO NOT expose your children to any person with whom you may be living unless you are married to that person. Proper and acceptable contact and association with other persons after divorce is not prohibited under this rule."
On July 21, 2016, Nicole filed a motion to modify visitation and child support in which she asserted that she had moved from Cave City, Arkansas, to Viola, Arkansas, and that she had enrolled the children in school in Viola, where she now works. Nicole alleged that a material change in circumstances had occurred because she was no longer employed at White River Medical Center (WRMC) where she had been required to work weekends. Nicole alleged that she now works Monday through Friday and that the visitation schedule should be modified such that she will have the children every other weekend. Nicole further alleged that there was also a material change in circumstances regarding her need for support given that the parties now live a greater distance apart.
J.D. responded and alleged that the parties were true joint custodians and that Nicole had unilaterally moved the children to Viola to live with her boyfriend. J.D. alleged that there was no material change in circumstances but that, if the trial court determined that there was a material change, custody of the children should be awarded to him.
Nicole amended her motion to add that she is the primary residential custodian pursuant to the divorce decree and that the parties did not share true joint custody.
J.D. responded to the amended motion, alleging that the parties had agreed to joint custody in the divorce decree. J.D. further alleged that the children had been enrolled in the Cave City School District and that, without notice or permission, Nicole had transferred the children to the Viola School District and had moved in with her boyfriend in violation of the proper conduct rules. J.D. counterclaimed that there had been a material change in circumstances warranting modification of the decree with an award of full custody to him.
In answering J.D.'s counterclaim, Nicole clarified that she had moved in with her husband, Robby Killingsworth, who was previously her boyfriend. Nicole asserted the affirmative defense of unclean hands, alleging that J.D. had moved his then girlfriend Stephanie Johnson into his home three days after the parties had separated and that she had continued to reside there until she and J.D. were married. Nicole further alleged that she had abided by the terms of the divorce decree after her relocation, that nothing in the decree required that she give notice or seek permission from J.D. to move to a neighboring county, and that J.D. was not in a position to adequately care for the children during the week.
II. Trial Testimony-January 25, 2017
Amy Rucker, a speech pathologist at the Viola School District, testified that she had been working with A.D., who has a mild language impairment and dyslexia. She said that he had an IEP (individual education plan) for speech therapy but that testing requested by Nicole indicated that he also had dyslexia. Rucker testified that Nicole is "very interested" in A.D.'s education and that his stepfather attended meetings with Nicole and asked about A.D. when picking him up from school. She said that she had never had any contact with J.D. She testified that she was unaware of the services offered by the Cave City School District but that school districts are expected to have the same testing capabilities. She said that A.D. had been doing much better since moving to Viola and that he seemed to be happy.
Erline Divelbiss, a dyslexia interventionist at the Viola School District, testified that she worked with A.D. four days a week. She stated that A.D.'s grades had improved since coming to the Viola School District. She said that, without the one-on-one help A.D. was receiving at Viola, he would not have made as much improvement as he has. She said that she would have concerns about A.D. regressing if he were moved to a different school and did not get such help. Divelbiss testified that she did not know of any school districts that did not offer the one-on-one help A.D. needed but that A.D. had been receiving only speech therapy at the Cave City School District. She stated that Nicole was "very cooperative" and "very compliant" with anything that needed to be done. Divelbiss had never met J.D. but had spoken with him once when M.D. was sick at school.
Nicole testified that she and J.D. divorced because he had been cheating on her with his current wife for the last two years of their marriage. She said that she and Robby had gotten engaged in December 2015. She stated that after losing her job at WRMC in February 2016, she and the children moved in with Robby in Viola in March 2016. She said that, although she had violated the order about not exposing the children to people with whom she is romantically involved, she thought that J.D. had done the same with his current wife. She testified that in June 2016 Robby got divorced after twenty years of marriage; that she and Robby married on September 3, 2016; and that they are expecting a child on August 3, 2017.
Nicole testified that she is now a paraprofessional at the Viola School District and that she provides one-on-one care for a disabled boy. She said that she had gotten the job a week after losing her job at WRMC. She conceded that she had not applied for any jobs in Batesville, Cave City, or Ash Flat. She stated that at her previous job, she had worked ten-hour shifts on Fridays, Saturdays, and Sundays and that she now works Monday through Friday and has time off whenever the school district is not in session. She said that she is now able to spend quality time with her boys over the weekend and that she currently does not get to take them to movies or birthday parties because she does not have them on weekends. She said that if she does not have the boys some weekends, she is concerned that they may not be able to spend time with the new baby.
Nicole said that ten-year-old M.D. and eight-year-old A.D. started school in Viola the week after spring break. She said that J.D. did not learn the children would be attending the Viola School District until the weekend that they moved from Cave City. She said that at the Cave City School District, M.D. had been doing well academically but had been "having a hard time emotionally" and that he had cried when she dropped him off at school. She said that A.D. had Cs, Ds, mostly Fs, and maybe a B while attending the Cave City School District. She said that she thought A.D. required extra help but that the Cave City School District had not made the changes she requested and had even taken him out of occupational therapy and reading programs. She said that she had spoken with J.D. about A.D.'s needing extra help at school but that J.D. had refused to go to the school to speak with the teachers about it and had said that there was nothing wrong with his child. Nicole stated that she had A.D. tested at Miracle Kids in Jonesboro and learned that he has characteristics for dyslexia and ADHD.
Nicole testified that the children are "doing great" at the Viola School District. She said that J.D. is "a good dad" and was involved "sports-wise at school." She said that she was afraid that, if J.D. had the children through the week, they would not receive the same type of academic attention that they are currently receiving. Nicole stated that Robby is a "wonderful stepdad," helps the boys with their homework, and had taken them hunting. She said that Robby was the first to mention that A.D. might be dyslexic.
Nicole said that she now lives fifty-one miles from J.D. and that it is an hour's drive from Viola to Cave City. She said that she thought that, as the primary residential custodian, she had "the say" in where the children lived and went to school. Nicole stated that her lawyer had prepared the agreement in the divorce proceedings and that J.D. had refused to sign it unless it provided for "joint custody."
Robby testified that he had lived in Viola most of his life. He said that he had been an insurance adjuster and had traveled for his job but that he is now unemployed after having had a bad car wreck in 2012. He said that he currently draws workers'-compensation benefits and will apply for disability. He said that he met Nicole around Thanksgiving in 2015. He said that they became engaged and decided that they wanted children together so Nicole had gotten "her tubes reversed." He said that, after having two weeks off for the surgery, Nicole lost her job at WRMC. He said that he helps the children with their homework, cooks, gets them up and ready for school in the mornings, and takes them to meet the school bus. He said that early on in his relationship with Nicole, A.D. had drawn him a picture and written his (Robby's) name on it. Robby stated that he told Nicole that he thought A.D. might be dyslexic like him. He said that, although he had helped raise his ex-wife's children, he did not have the bond with them that he has with M.D. and A.D.
M.D. testified that he likes the Viola School District. He said that he likes it better than the Cave City School District because Cave City has a football team, he does not like football, and his dad wants him to play football. M.D. testified that he does not like having to get up early while at his father's home. He explained that they must leave for school in Viola at 6:45 a.m. M.D. said that he would like to live with his mom in Viola and spend some weekends with her so that they could go on vacations. He testified that he likes his stepparents but that his dad and stepmother smoke and fight.
J.D. testified that he began seeing his wife, Stephanie, in October 2015 and denied having had an affair or sexual relations with her prior to his divorce from Nicole. He said that they were married in April 2016 and that she moved in with him in May 2016. He stated that she did not spend the night with him when his children were present. He said that his wife's children are friends with M.D. and A.D. and that they play together.
J.D. testified that he has worked as a master plumber for twelve years and that he does not work on Fridays or on weekends. He agreed that it was fair for Nicole to have the children on some weekends considering her new schedule. He stated, however, that he wanted his children back at the Cave City School District because they had grown up and have family and friends there. He stated that he volunteers as a coach for the Cave City High School Booster Club. He said that M.D. plays baseball, that he had not missed any games and did not remember missing any practices, and that M.D. also plays baseball at Viola and that he had not missed any of those games. J.D. said that, while both boys are athletically inclined, if either of them did not want to play sports, it was okay. J.D. conceded that he did not understand A.D.'s symptoms before but that he does now. He stated that A.D. will get the help he needs at school if he comes back to Cave City.
J.D. testified that his wife smokes cigarettes and that the children have seen him smoke cigars. He stated that he cannot take M.D. hunting because he has a seventeen-year-old felony conviction involving marijuana in California. He said that he had smoked marijuana since his divorce from Nicole and that he had smoked marijuana with Stephanie four or five months ago.
J.D. said that when he agreed to joint custody, he was under the impression that he had "equal rights with the kids." He said that he would not have signed the agreement if he had known that Nicole "could get up and move with the kids."
Stephanie testified that her children are seven and nine years old, that she works at a restaurant in Cave City, and that she could change shifts at work or have her grandmother watch M.D. and A.D. if they came to live with her and J.D. Stephanie conceded that she smokes every day but said that she does not smoke inside the house.
III. Trial Court's Ruling and Order
In ruling from the bench, the trial court first determined that the language from the divorce decree "sort of muddied the waters" with the term "primary residential custodian" but that there was only some possible advantage in the time division in Nicole's favor in that she had the boys four days a week and that J.D. had them three days a week. The trial court concluded that the parties had a true joint-custody arrangement.
The trial court noted that the parties agreed there was at least one material change of circumstances. The trial court found that the parties' remarriages were not material changes; however, the trial court found that there were changed circumstances in that the children are now required to get up "very early in the morning" to make a fifty-mile trip to school every Friday; that the previous visitation arrangement had been based on Nicole's employment schedule and that she had since lost that job; that Nicole had removed the children from the Cave City School District and enrolled them in the Viola School District; and that she had moved the children into the home of her fiancé six months before they were married in direct violation of the court's order. The trial court found that these changed circumstances were the direct result of choices made by Nicole and that the changes were "made by her not as a sole custodial parent, but as a joint custodian, and were made without consultation or consent of the other joint custodian." The trial court pointed out that Nicole had made decisions "primarily to foster her romantic relationship rather than consideration of the best interest of the children." The trial court also found that there is "virtually no distinction" between the school districts, that they are both good school systems, that they offer the same or approximately the same services and quality of services, and that there is "no significant advantage" to the children being in one school district over the other. In changing custody of the children to J.D., the trial court stated that the parents should "continue to divide the time as near as possible to equally" because the trial court found that "[the children] have a very close relationship with their mother ... and it would not be in their best interest that we follow just the Court's standard schedule."
On August 3, 2017, the trial court entered its order memorializing its findings from the bench. Nicole filed a timely notice of appeal from this order.
IV. Standard of Review
We review child-custody cases de novo but will not reverse a trial court's findings unless they are clearly erroneous. Grindstaff v. Strickland , 2017 Ark. App. 634, 535 S.W.3d 661. Because the question whether the trial court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial court to evaluate the witnesses, their testimony, and the child's best interest. Id. There are no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving minor children. Id.
V. Discussion
A. Existence of a Joint-Custody Arrangement
Arkansas Code Annotated section 9-13-101(a)(1)(A)(iii) (Repl. 2015) provides that in an action for divorce, an award of joint custody is favored in Arkansas. "Joint custody"
means "the approximate and reasonable equal division of time with the child by both parents individually as agreed to by the parents or as ordered by the court." Ark. Code Ann. § 9-13-101(a)(5).
Nicole argues that the trial court erred in finding that a true joint-custody arrangement existed. She says that the term "joint custody," along with the term "primary residential custodian," is ambiguous on its face. We agree that the divorce decree's use of both terms is ambiguous, as did the trial court.
In Singletary v. Singletary , 2013 Ark. 506, 431 S.W.3d 234, the parties' divorce decree provided for "joint custody of the minor child" with the mother having "primary custody," while their property-settlement agreement provided for "joint legal custody" with the mother being "the primary physical custodian." Id. at 2, 431 S.W.3d at 236. The supreme court found that this language was ambiguous. When an ambiguity exists in a contract, the appellate courts are permitted to look outside the contract to determine the actual intent and conduct of the parties. Id. In arriving at the intention of the parties, the courts may consider and accord considerable weight to the construction of an ambiguous contract by the parties themselves, evidenced by subsequent statements, acts, and conduct. Id.
Here, J.D. testified that he thought joint custody meant that the parties had equal say in matters involving the children. Nicole said that she put the term "joint custody" in the agreement because J.D. would not have otherwise signed it but that she thought she had the final word and did not need either J.D.'s or the trial court's permission to move with the children. Despite their conflicting views on the meaning of the term "joint custody," the trial court determined that the parties shared joint custody because the division of time was approximately equal, with only a slight advantage in Nicole's favor. We agree with the trial court that this was a joint-custody arrangement.
B. The Hollandsworth Presumption
In Hollandsworth v. Knyzewski , 353 Ark. 470, 109 S.W.3d 653 (2003), the supreme court held that the relocation of a primary custodian and his or her children alone is not a material change of circumstances and that there is a presumption in favor of relocation for custodial parents with primary custody.
Nicole contends that the trial court erred in not applying the Hollandsworth presumption. She argues that her move to Viola from Cave City and the children's change of schools were not a material change of circumstances to justify awarding custody of the children to J.D.
In Singletary , supra , the supreme court clarified that the Hollandsworth presumption applies only in cases in which a parent has been granted sole or primary custody of a child and simply does not apply when the parents share joint custody of a child. In Cooper v. Kalkwarf , 2017 Ark. 331, 532 S.W.3d 58, the supreme court held that the Hollandsworth presumption should be applied only when the parent seeking to relocate is not just labeled the "primary" custodian in the divorce decree but also spends significantly more time with the child than the other parent. Id. at 15, 532 S.W.3d at 67. Here, Nicole did not spend significantly more time with the children, and because we hold that the parties shared joint custody, the trial court did not err in not applying the Hollandsworth presumption.
C. Relocation with a Joint-Custody Arrangement
The Singletary court recognized that the proper analysis for a court facing a change-in-custody request due to relocation of one parent when the parents have joint custody was announced in Lewellyn v. Lewellyn , 351 Ark. 346, 93 S.W.3d 681 (2002), and is essentially the same as a change-in-custody analysis when relocation is not involved. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Evans v. McKinney , 2014 Ark. App. 440, 440 S.W.3d 357. The reason for requiring more stringent standards 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. Id. In order to change custody, the trial 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.
Nicole argues that, even if there was a joint-custody arrangement, her moving fifty-one miles from Cave City to Viola does not constitute a material change in circumstances. She presented testimony from A.D.'s speech pathologist and an accredited dyslexia interventionist that A.D. is making progress and that he needs the help he is currently receiving at the Viola School District. She contends that the Cave City School District did not make necessary changes for A.D. and that the availability of comparable services at Cave City was speculative at best. She contends that there was little evidence that J.D. had ever been seriously concerned with or involved in the education of his children. Nicole points out that M.D. testified that he likes the Viola School District better and wants to live in Viola with her. She asserts that there was no material change in circumstances, and even if there was, the record clearly shows that it was in the children's best interest to remain in her custody. She contends that the trial court's order is notable for its failure to even discuss the best interest of the children.
The trial court listed multiple changes in circumstances, but Nicole does not address the findings that she violated the trial court's order by living with Robby before they were married and that she lost her job in Batesville when she decided to have her tubal ligation reversed so that she could have children with Robby. Moreover, Nicole's pleadings below indicate that she thought her move, which involved getting a new job with better hours and enrolling the children in what she considered a better school district, was a material change in circumstances. She cannot now argue that there was no material change in circumstances. A party litigant is bound by his or her pleadings and the allegations therein and cannot maintain a position inconsistent therewith. See Morehouse v. Lawson , 90 Ark. App. 379, n. 3, 206 S.W.3d 295 (2005).
The polestar consideration in a change-of-custody determination is the best interest of the child, and the trial court should consider the following factors: (1) the reason for relocation; (2) the educational, health, and leisure opportunities available in the new location; (3) a visitation and communication schedule for the noncustodial parent; (4) the effect of the move on extended family relationships in the new location as well as in Arkansas; and (5) the child's preference, taking into account the child's age and maturity, as well as the reasons given by the child for the preference. Cooper, supra.
The trial court addressed the children's best interest in its ruling from the bench but did not include specific factual findings in that regard in its written order. Tillery v. Evans , 67 Ark. App. 43, 991 S.W.2d 644 (1999) (recognizing that this court may presume that the trial court acted properly and made the findings necessary to support its judgment). The trial court's comments from the bench show that it considered the children's best interest. The trial court noted that the reason for Nicole's relocation to Viola was so that she could "foster her romantic relationship" with Robby and noted that there was no advantage to enrolling the children at the Viola School District because both school districts offered comparable services and were good school systems. Although M.D. seemed to prefer the Viola School District, his testimony suggested that it was because he did not want to play football at Cave City. J.D. testified that it was okay with him if either son did not wish to play sports, and the trial court apparently believed him. Also, there was testimony that the children's extended relatives reside in or near Cave City. The trial court further ruled that it was in the children's best interest that Nicole and J.D. continue to divide their time with the children as nearly equal as possible. Given our standard of review and the special deference we give trial courts to evaluate the witnesses, their testimony, and the children's best interest, we cannot say that the trial court clearly erred in reaching its decision.
Affirmed.
Harrison and Klappenbach, JJ., agree.
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Factual Background
This case involves ownership of the easternmost part of an island in the Arkansas River where the Two Rivers Park was constructed and is located (hereinafter referred to as the "island" or the "island property"). At some point prior to 1915, the island did not exist. This island is close to the south bank of the Arkansas River. The appellants' claim to the property is through what is referred to as the "Bullock chain of title" and the appellees' claim to the property is through what is referred to as the "Blackwood chain of title."
Appellants claim ownership of part of the island through the Bullock chain of title generally as follows: Appellants trace their title back through various conveyances and legal descriptions to 1820 by claiming that their chain of title is through Henry Bullock. Both the City and the County acknowledge that Henry Bullock owned certain property in the west half of the fractional Southeast Quarter of Section 15, Township 2 North, Range 13 West; however, the appellees contend that the Bullock property lies on the north side of the Arkansas River and does not include the island property.
The City claims ownership of the island under a 1975 condemnation decree through the Blackwood chain of title generally as follows: In 1915, the attorney general successfully brought a statutory proceeding to have the State declared the owner of the island property. Shortly thereafter, the State conveyed the island property to J.W. Blackwood. Then in 1974, the City instituted a condemnation action of two parcels: a tract in Section Twenty-two and another tract, which was the island property. In a 1975 decree, the chancery court upheld the condemnation of both tracts including the island property and set the compensation due the owners. The condemnation order recited that the title to said property was divested out of the owners and vested in the City of Little Rock, Arkansas. The compensation was paid into the registry of the court. The condemnation deed was affirmed on appeal. See Sullivan v. City of Little Rock , 260 Ark. N-217 (1976) (unpublished).
The gist of the appellants' claim, inter alia , is that in the 1975 condemnation proceeding, the City gave notice of the proceeding to only the persons in the Blackwood (appellees') chain of title and that no notice was given to the persons in the Bullock (appellants') chain of title. Hence, the appellants claim that because their predecessors in title were not given notice of the condemnation proceedings in 1975 and were not among those compensated by the City, the 1975 condemnation proceeding is still open and pending.
On February 2, 2012, appellants filed their complaint seeking to quiet title to the island property or, alternatively, compensation for the taking of their property. Appellants asserted that both the 1915 decree and the 1975 condemnation decree were void because their predecessors in title did not receive proper notice or service. The City and the County answered separately, denying the material allegations and raising the affirmative defense of the statute of limitations.
Appellants filed a motion for partial summary judgment, asserting that, because there was no publication of notice prior to the entry of the quiet-title decree in 1915 or the condemnation decree entered in 1975, both decrees were void, and those cases were still pending. Appellants contended that, because the cases were still pending, the statutes of limitations could not run.
The City and the County both responded to appellants' motion. The County responded and filed its own motion for summary judgment, arguing among other things that appellants' claims were barred by the statute of limitations. The City responded that appellants had failed to show that their predecessors in title had any interest in the property or that the property described in appellants' complaint included any part of the island property. The City would later file a separate summary-judgment motion wherein it adopted by reference the County's motion for summary judgment contending the appellants' claims were barred by the statute of limitations.
A hearing was held and the circuit court ruled from the bench, denying appellants' motion for partial summary judgment and granting the motions of the City and the County. The order memorializing the ruling was entered on January 26, 2017. The circuit court did not resolve the issue of whether the appellants actually owned the island property or whether title passed through the Bullock chain or the Blackwood chain. Rather, the circuit court essentially found that regardless of whether the appellants possessed an ownership interest in the island property through the Bullock chain, the appellants' sole remedy was an action for inverse condemnation and that the applicable seven-year statute of limitations had expired prior to the present complaint being filed in 2012 by the appellants, thereby barring appellants' claims. Appellants filed a timely notice of appeal.
Standard of Review
Our standard of review for summary-judgment cases is well established. Anderson v. CitiMortgage, Inc. , 2014 Ark. App. 683, 450 S.W.3d 251. Summary judgment should be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Thomas v. Clear Investigative Advantage, LLC , 2017 Ark. App. 547, 531 S.W.3d 458. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Graham v. Underwood , 2017 Ark. App. 498, 532 S.W.3d 88. In reviewing a grant of a summary judgment, the appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party left a material question of fact unanswered. Thomas, supra . We view the evidence in the light most favorable to the party against whom the motion for summary judgment was filed and resolve all doubts and inferences against the moving party. Id.
Discussion
Appellants argue on appeal that they established a good chain of title to the island property and that the 1915 and 1975 proceedings by the State and the City were void for lack of notice to their predecessors in title. As was done in the trial court, due to the fatal application of the expiration of the applicable statute of limitations, we need not address the issue of ownership of the island property by the appellants. Assuming arguendo that the appellants did, in fact, establish an ownership interest in the island property in 1975 or before, the appellant's interest in said property was inversely condemned by the City since at least 1999. The City and the County presented evidence of the City's possession of the island that was consistent with ownership of the property. In 1999, the City constructed public trails over the property, including the island portion. These trails are for pedestrians, bicyclists, and equestrians. The City also constructed walls and signage at the park entrance, which is at the western edge of the park. The City has continued to maintain and exclusively occupy the park. In 2001, the City installed a trailhead map that shows trails extending to the easternmost edge of the island. Further, there was no evidence that the appellants occupied the island property for any purpose since at least 1999.
Further, in 2003, appellant Michael Wilkins contacted the City and claimed to be the owner of the island property. On December 12, 2003, the City provided Wilkins with this response:
Thank you for the information that you furnished to support your claim for ownership of property in and around the City's Two Rivers Park. We have discussed this matter with our City Attorney, Tom Carpenter, and Mr. Mark Webre from the Parks Department.
Mr. Webre informed us that this issue has come up in the past and was researched by Assistant City Attorney, Steve Giles. Mr. Giles sent Mr. Webre a letter stating that Beach Abstract performed a title search of the property and determined that the City of Little Rock had acquired full ownership of the property through eminent domain and a decree in Chancery Court dated November 25, 1975.
Tom Carpenter has also looked at this and feels that the time for making a claim on the property expired in 1990. Any transaction after this date will not be valid. Based on the information we have received, I must deny your claim of ownership of the park property.
(Emphasis added.) This letter from the City to Wilkins clearly put him on notice that the City was claiming absolute ownership of the island property as against all others. Based on this evidence, the trial court found that the appellants' sole remedy was an action for inverse condemnation and that the applicable statute of limitations had expired, which barred all claims by the appellants.
Inverse condemnation is a remedy for the physical taking of private property without following eminent-domain procedures. Daniel v. City of Ashdown , 94 Ark. App. 446, 232 S.W.3d 511 (2006). Fault has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law taking. Robinson v. City of Ashdown , 301 Ark. 226, 783 S.W.2d 53 (1990). Inverse condemnation is thus a cause of action against a governmental entity to recover the value of property which has been taken in fact by a governmental entity although not through eminent-domain procedures. Id.
Appellants' right to bring an inverse-condemnation action is set forth in Arkansas Code Annotated section 18-15-410(a) (Repl. 2015), which provides:
If a municipality shall enter upon property which it has the right to acquire by condemnation proceedings without commencing condemnation proceedings, the owner of the property shall have the right to commence condemnation proceedings against the municipality at any time before an action for the recovery of the property or compensation therefore would be barred by the statute of limitations.
Arkansas Code Annotated section 18-61-101(a) provides:
No person or his or her heirs shall have, sue, or maintain any action or suit, either in law or equity, for any lands, tenements, or hereditaments after seven (7) years once his or her right to commence, have, or maintain the suit shall have come, fallen, or accrued.
All suits for the recovery of any lands shall be had and sued within seven years after the title or cause of action accrued. Ark. Code Ann. § 18-61-101(a)(2). Our courts have consistently upheld the seven-year statute of limitations for inverse-condemnation actions. Daniel, supra . Recovery under the inverse-condemnation statute is a landowner's exclusive remedy. See Missouri & N. Ark. R.R. Co. v. Chapman , 150 Ark. 334, 234 S.W. 171 (1921) ; DeBoer v. Entergy Ark., Inc. , 82 Ark. App. 400, 109 S.W.3d 142 (2003).
Appellants argue that inverse condemnation does not apply because section 18-15-410(a), quoted above, appears in the "Eminent Domain" chapter of the Arkansas Code in a subsection entitled "Municipal Corporations-Waterworks Systems." We disagree. That same section has been used to authorize an inverse-condemnation action for land used as a city dump. Daniel, supra . The language of the statute plainly encompasses actions taken by a municipality and not just waterworks, and it applies to this litigation.
The appellants presented no proof that they had occupied the island property for any purpose. The City and the County presented evidence of the City's possession of the island that was consistent with ownership of the property. As set forth above, since at least 1999, the City had constructed public trails, walls, and signage and continuously maintained the property. Of particular importance is the communication between appellant Michael Wilkins and the City in December 2003. In the letter from the City to appellant Wilkins, the City in no uncertain terms claimed exclusive ownership of the island property. This letter dated December 12, 2003, put the appellant on actual notice that the City was claiming ownership of the island property. Thus, the seven-year statute of limitations began to run, at the latest, in December 2003, and would have expired in December 2010. The appellants did not file their present action against the City and the County until more than seven years later in February 2012. Because the appellants did not file suit within the seven-year statute of limitations, the circuit court correctly ruled that their claims were barred by the statute of limitations.
Affirmed.
Abramson and Virden, JJ., agree.
Although this property was once an island many years ago, it is now in fact a peninsula that attaches to the south bank toward the west. For purposes of this litigation, however, it is referred to as an island.
Bullock also owned the west half of the Northeast Quarter in section 15.
The appellants make the same general claim against the 1915 proceeding.
There was evidence that the City began constructing some improvements to the island property as far back as 1975. | [
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LARRY D. VAUGHT, Judge
Henry Gadsden Jr. appeals the sentencing order entered by the Pulaski County Circuit Court convicting him of first-degree battery and sentencing him to serve ten years in the Arkansas Department of Correction. On appeal, Gadsden argues that evidence was insufficient to support his conviction and that the circuit court abused its discretion in admitting the testimony of Cynthia Field. We affirm.
At Gadsden's bench trial, Jimmia Green testified that on March 13, 2017, she was at school while Gadsden (her boyfriend) was at her home with her four-month-old daughter, RG1, and his one-year-old daughter, RG2. Green stated that she received a text message from Gadsden advising that RG1 had hit her head, she was hurt, and Green needed to come home. Green testified that Gadsden first said that RG1 was injured when RG2's foot came down on RG1's head, but he later told Green that RG1 had fallen from the bed, she had fallen from the kitchen counter, and he may have dropped her. Green said Gadsden never told her that he had kicked RG1 in the head, and she denied having told anyone that.
When Green returned home and saw RG1, she called UAMS to voice her concerns about RG1's injuries and to advise that she was bringing RG1 to the hospital, which she did. Green testified that the doctor evaluated RG1, said she was normal, and released her on March 14, 2017. On the morning of March 15, law-enforcement officers came to Green's home and told her that she had to take RG1 to UAMS for a follow-up evaluation.
Cynthia Field, a receptionist at UAMS, testified that she answered Green's call on March 13. Field stated that Green identified her baby as RG1 and said, "My boyfriend kicked the baby in the head." Field put Green on hold to find a nurse, and Green hung up. Field reported the call to her supervisor, which led to a child-abuse-hotline report and the follow-up evaluation of RG1 at UAMS.
Detective Sarah Hicks of the Little Rock Police Department testified that she received a child-abuse-hotline report concerning RG1's injuries and investigated the report, which included interviewing Gadsden. In his interview, Gadsden said that he had placed RG1 in a bouncy seat on a bed with RG2. He stated that he left the room, heard a bang, returned to the room, and found RG1 and RG2 on the floor. He said that RG2 was trying to get up, and her foot stepped on RG1's head. He also said that RG1's head may have struck the wooden bedframe.
Dr. Rachel Clingenpeel of UAMS testified that she evaluated RG1 on March 15. Her examination revealed that RG1 had sustained fractures to the left and right parietal bones of her skull, bruising on the left side of her forehead, swelling on the left side of her skull, subdural and subarachnoid hematomas and hemorrhages, and swelling of the brain. Dr. Clingenpeel stated that RG1's injuries were caused by a substantial traumatic force that an immobile infant could not generate on her own. The doctor testified that RG1's injuries were inconsistent with short household falls from three to four feet and involved substantial forces "significantly greater than any force that would be involved in any sort of appropriate interaction with an infant." Dr. Clingenpeel stated that the only plausible explanation for RG1's injuries provided in the patient history was a kick to the head by an adult. Her diagnosis of RG1 was child physical abuse and neglect.
Gadsden testified at trial. He stated that RG1's injuries were caused when he was carrying RG1, tripped over RG2, dropped RG1, and fell on top of her. He admitted that the other accounts he gave about how RG1 was injured were lies.
At the conclusion of trial, the circuit court found Gadsden guilty of first-degree battery and sentenced him to ten years' imprisonment. This appeal followed.
Gadsden's first point on appeal is that the evidence is insufficient to support his conviction. In order to preserve a challenge to the sufficiency of the evidence in a bench trial, a criminal defendant must make a specific motion for dismissal or for directed verdict at the close of all evidence. Sellers v. State , 2013 Ark. App. 210, at 3-4 (citing Colgan v. State , 2011 Ark. App. 77, at 1 ; Ark. R. Crim. P. 33.1(b)-(c) (2010) ). Rule 33.1 reads in pertinent part:
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence.... If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.
Ark. R. Crim. P. 33.1(b)-(c) (2018). It is well settled that Rule 33.1 is strictly construed.
Sellers , 2013 Ark. App. 210, at 4. Failure to adhere to the requirements in Rule 33.1(b)"will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment." Ark. R. Crim. P. 33.1(c).
In Sellers , also a bench trial, the appellant moved for dismissal at the close of the State's case, but defense counsel did not renew the motion at the close of all the evidence. Citing Arkansas Rule of Criminal Procedure 33.1, we held that the appellant's sufficiency argument was not preserved for appeal. 2013 Ark. App. 210, at 5. Similarly, Gadsden's attorney moved for directed verdict at the close of the State's case, but he did not renew his motion at the close of all the evidence. Pursuant to Rule 33.1(b) & (c), his sufficiency argument is not preserved for appeal.
Gadsden asserts that he has not waived his sufficiency argument because at the close of the evidence in the case, he was not afforded the opportunity to make arguments or motions before the circuit court announced its verdict. He relies on Olson v. Olson , 2014 Ark. 537, at 7, 453 S.W.3d 128, 133, claiming that it "recognized an exception to the contemporaneous objection rule and stated that '[i]n order for the procedural bar to apply, a party must have had the opportunity to voice an objection to the challenged ruling.' " Olson is distinguishable, however. There, the supreme court held that the appellant was not barred from raising an issue from the divorce proceeding for the first time on appeal when she was not present at the hearing and had no opportunity to object to the circuit court's ruling. Olson , 2014 Ark. 537, at 7, 453 S.W.3d at 133.
In the case at bar, Gadsden was present at the bench trial, and the record reveals that after Gadsden rested, the circuit court did not immediately rule. Therefore, he had the opportunity to renew the motion for directed verdict. Accordingly, we hold that Gadsden's sufficiency argument is not preserved for appeal.
Gadsden's second point on appeal is that the circuit court abused its discretion in admitting the testimony of Field. This argument is not preserved for appeal because Gadsden did not make a contemporaneous objection during Field's testimony. A contemporaneous objection is required to preserve an issue for appeal. Lewis v. State , 2017 Ark. App. 442, at 10, 528 S.W.3d 312, 319 ; see also Johnson v. State , 2013 Ark. 494, at 3, 430 S.W.3d 755, 756 (holding that a defendant's failure to make a contemporaneous objection to testimony prevents him from asserting on appeal any error on the part of the circuit court for admitting the evidence).
Gadsden argues that his pretrial oral motion in limine to exclude Field's testimony preserved the issue for appeal. Although a contemporaneous objection at trial is not required when the objection was made in a motion in limine and was overruled, if the court did not clearly overrule the pretrial objection and specifically tell the parties that they may object at the time and they do not, the issue is not preserved for appeal. Johnson , 2013 Ark. 494, at 3, 430 S.W.3d at 756-57 (citing Banks v. State , 2009 Ark. 483, 347 S.W.3d 31 ). In the case at bar, the circuit court did not rule on Gadsden's pretrial motion in limine to exclude the testimony of Field, and it specifically advised the parties to "bring it up when [Field] testifies." When Field testified, Gadsden did not object. Accordingly, the issue is not preserved for appeal.
Affirmed.
Gruber, C.J., and Whiteaker, J., agree. | [
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RAYMOND R. ABRAMSON, Judge
Appellant Brianna Jones seeks to appeal an order by the Hempstead County Circuit Court terminating her parental rights to her daughters, S.B. and K.J. We dismiss the appeal for want of jurisdiction.
Jones filed her notice of appeal on April 13, 2018. It was signed by her lawyer, Steve Harrelson. On July 19, 2018, William Blake Montgomery entered an appearance on behalf of Jones and filed a motion for belated appeal on July 25, 2018. Our supreme court granted that motion and a motion to stay briefing on September 6, 2018. The appeal was transferred to our court, and briefing commenced.
The requirements of a notice of appeal in dependency-neglect proceedings differ from normal procedure in that Arkansas Supreme Court Rule 6-9(b)(1)(B) requires that the notice of appeal and designation of record be signed not only by Jones's counsel, but also by the appellant herself if, as here, she is an adult. A notice of appeal in such cases that lacks the signature of the appellant is deficient. See McPherson v. Ark. Dep't of Human Servs. , 2013 Ark. App. 238, 2013 WL 1682633. While not every defect in a notice of appeal will deprive the appellate court of jurisdiction, the Arkansas Supreme Court has required strict compliance with the appellant-signature requirements of Rule 6-9(b)(1)(B). Id.
Our supreme court granted Jones's motion for belated appeal, but there has been no cure to the violation of the rule requiring her signature on the notice of appeal. Therefore, we must dismiss this appeal for lack of jurisdiction.
Appeal dismissed.
Glover and Brown, JJ., agree.
Jones's date of birth is August 6, 1992. | [
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JOSEPHINE LINKER HART, Associate Justice
Billy Jack Kain Jr. filed a petition for writ of error coram nobis in the Craighead County Circuit Court, where he previously pled guilty to one count of rape in 1995. His petition alleged, inter alia , that the 1995 guilty plea was coerced. The circuit court denied Kain's petition without a hearing, and Kain appealed. On appeal, the State argues that the allegations Kain raised in his petition to the circuit court below have already been addressed in previous cases, that Kain has included additional documents in his brief that were not included in his petition to the circuit court or otherwise contained in the record, and that Kain has failed to establish a ground upon which the writ may issue. We affirm.
I. Writ of Error Coram Nobis
The function of the writ of error coram nobis is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Henington v. State , 2017 Ark. 111, at 2, 515 S.W.3d 577, 579. This court has held that a writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id.
Normally, an appellant must first seek permission in this court to proceed in the circuit court with a petition for writ of error coram nobis. See, e.g. , McJames v. State , 2010 Ark. 74, 2010 WL 569752. However, where the judgment of conviction was entered on a plea of guilty or nolo contendere, the petition for writ of error coram nobis is first filed directly with the circuit court. Id.
II. Kain's Error Coram Nobis Petition
On appeal, Kain asserts several arguments to warrant issuance of the writ of error coram nobis, but the only issue that was raised in his petition to the circuit court and preserved for our review is his coerced guilty plea argument. Kain's allegation is that, while he was innocent of the 1995 rape conviction, he pled guilty pursuant to advice of counsel after the prosecution spoke with Kain's attorneys on the morning set for trial. Kain asserts that the prosecution showed Kain's attorneys a "Suspended Imposition of Sentence Order" relating to a kidnapping charge from a 1984 prosecution against Kain in which he had also been charged with rape. It is undisputed that Kain pled nolo contendere to the 1984 rape charge, after which he entered custody of the Arkansas Department of Correction (the ADC) and was later released on parole, but as will be explained in greater detail later in this opinion, the disposition of the 1984 kidnapping charge is disputed.
According to Kain, at the meeting with his attorneys on the morning of trial in 1995, the prosecution threatened that if Kain elected to proceed to trial, the prosecution would pursue a revocation of the suspended sentence on the previously filed kidnapping charge and would then seek a life sentence on that charge. Presented with an offer of forty years on the 1995 rape charge that his counsel advised him to accept, Kain pled guilty in exchange for the prosecution declining to pursue the revocation of the suspended sentence on the 1984 kidnapping charge. Kain's allegation here is that in 2015, he learned that the 1984 kidnapping charge had already been nolle prossed when he pled nolo contendere to the accompanying 1984 rape charge. Therefore, Kain argues, his guilty plea on the 1995 rape charge was coerced, as he pled guilty only under duress of the prosecution's threat to pursue a revocation on the prior kidnapping charge when the prosecution had no legitimate legal basis on which to pursue such an action.
III. Procedural Arguments
The State raises a number of procedural arguments as to why this court should not consider Kain's claim. We first address the State's argument that Kain's allegation has already been addressed in previous cases.
First, the State points to Kain's Rule 37 proceedings. Shortly after Kain pled guilty to rape in 1995, on March 23, 1995, Kain filed a Rule 37 petition alleging ineffective assistance of counsel. Kain was appointed counsel for the Rule 37 proceedings, and the circuit court held a hearing on November 3, 1995. Kain's appointed counsel's argument focused on whether the previous kidnapping charge, for which sentencing was purportedly suspended in 1984, was of the Class Y variety (which would tend to legitimize the advice of Kain's trial counsel that he would receive a life sentence on the parole revocation for the 1984 kidnapping charge if he went to trial on the 1995 rape charge) or whether the kidnapping charge was of the Class B variety (which would tend to delegitimize the advice of Kain's trial counsel's because there was not the same threat of a life sentence on the parole revocation). Ultimately, the circuit court denied Kain's Rule 37 petition, but the proceeding addressed only whether the kidnapping charge should have been of the Class Y or the Class B variety. The Rule 37 proceedings did not in any way address whether the kidnapping charge had actually been nolle prossed.
The State also brings to our attention an error coram nobis petition that Kain previously filed in the Craighead County Circuit Court on February 15, 2011. That error coram nobis petition is not contained in the record here, but the State's response and the circuit court's order disposing of it are. From these filings, it appears that Kain filed the first error coram nobis action after the ADC notified him in 2010 that he would not be eligible for parole on the 1995 rape charge, contrary to what Kain had allegedly been told by the ADC up until that point. The State's response and the circuit court's order indicate that Kain was raising the issue of his parole eligibility in terms of an ineffective-assistance-of-counsel argument, asserting that he only pled guilty to the rape charge in 1995 with his attorney's assurances that he would be eligible for parole. However, Kain argued, he had since been informed by the ADC that he would not be eligible for parole, and therefore his trial counsel was ineffective for failing to properly advise him as to the implications of his plea. The circuit court's order, in addressing the timeliness of Kain's petition, noted as follows:
In this case, the Petition for Writ of Error Coram Nobis was filed February 15, 2011-16 years after his plea of guilty. Petitioner alleges, however, that he was not aware of the issues raised in his petition - namely that he would not be eligible for parole after a certain time period - until that time came and went without being paroled. Petitioner states that he initially had a transfer eligibility date of April 10, 2005, and that he received "six one-year denials thereafter from the parole board." But he further states it was not until June 15, 2010, that he received a Time Computation Card "reflecting the application of Act 1805[ ] to Petitioner's sentence for the first time."
The circuit court ultimately denied Kain's petition because the transcript from the 1995 sentencing hearing contained no mention by the court or any party that Kain would be eligible for parole, and because ineffective assistance of counsel is not a cognizable ground for error coram nobis. The 2011 error coram nobis proceedings did not in any way address whether the kidnapping charge had already been nolle prossed.
Then, on August 26, 2016, the petitioner filed a "Motion for Error Coram Nobis" with the circuit court, which would eventually give rise to the present appeal. In this case, Kain's petition asserted a "coerced guilty plea" as to the 1995 rape conviction, specifically in terms of his plea being extracted under threat of legal action that the prosecution lacked authority to pursue. His petition alleges:
Petitioner was coerced into pleading guilty to a crime not knowing the evidence the State was to use against him and with the threat of a life sentence if he were to go to trial.
....
First Petitioner has consistently maintained that Petitioner's counsel coerced the plea bargain by informing him that he would receive a life sentence should he take his case to trial. Petitioner's counsel used as their motivation a possible revocation hearing that the prosecution was seeking on a previous kidnapping charge. Petitioner's counsel however failed to investigate the fact that the kidnapping charge had been nolle prosecutor and was dropped as a result of the previous plea agreement.
....
Petitioner concedes the fact that ineffective assistance of counsel is not cognizant in a writ for error coram nobis. However, his plea agreement is.
[End of excerpt. ]
The circuit court denied this error coram nobis petition as well, and Kain now appeals to this court from that denial. Accordingly, the State's first argument is unavailing, as this is the first set of proceedings in which Kain has asserted that the 1984 kidnapping charge had been nolle prossed as a basis for claiming that his 1995 plea was coerced.
A second procedural issue asserted by the State is that Kain has included additional documents in his brief to support his claim on appeal that were not included in his petition to the circuit court or otherwise contained in the record. Indeed, Kain has attached certain documents titled Exhibits A, B, C, and D to his brief's addendum that were not attached to his petition below or otherwise contained in the record. Without addressing the substance of these documents, it is fair to say that Kain is offering these documents to bolster his assertion that the 1995 guilty plea was coerced.
Arkansas Supreme Court Rule 4-7(c) does contain mechanisms to supplement the addendum in postconviction appeals when the appellant omits something from the addendum that is otherwise available in the record below, but when the appellant's addendum adds new documents that were not before the circuit court or otherwise contained in the record, this court may not consider them. See, e.g. , Darrough v. State , 2013 Ark. 28, 1, 2013 WL 409690 ("This court has long and consistently held that it cannot, in the exercise of its appellate jurisdiction, receive testimony or consider anything outside of the record below.").
Furthermore, for purposes of error coram nobis, "it is a petitioner's burden to show that the writ is warranted." Evans v. State , 2016 Ark. 377, at 4, 501 S.W.3d 819, 822. "This court will grant permission for a petitioner to proceed with a petition for writ of error coram nobis only when it appears that the proposed attack on the judgment is meritorious." Id. "We are not required to accept the allegations in a petition for writ of error coram nobis at face value." Id.
When we remove Exhibits A-D from consideration, as the law requires for purposes of our review in this case, the assertions in Kain's petition to the circuit court were supported only by his own self-serving descriptions of what allegedly occurred decades before in 1984 and in 1995. "Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid," Henington , 2017 Ark. 111 at 1-2, 515 S.W.3d at 579, and under these circumstances, we cannot say the circuit court abused its discretion in denying Kain's petition. Accordingly, the circuit court's decision is affirmed.
Wood, J., concurs.
Kain's brief also alleges certain Brady violations, but this court's review is limited to the coerced-guilty-plea allegation that was contained in Kain's petition to the circuit court.
It is unclear what the circuit court's order is alluding to. Kain's plea proceedings took place in 1984 and 1995. Act 1805 became effective in 2001. The law is well settled that parole eligibility is determined by the laws in effect at the time of the commission of the offense. Pitts v. Hobbs , 2013 Ark. 457, at 3, 2013 WL 5968940 ; see also Bosnick v. Lockhart , 283 Ark. 206, 207, 672 S.W.2d 52, 53 (1984) ("The appellant contends that the application of the [subsequently enacted parole-eligibility law] is a violation of the ex post facto provisions of the Arkansas and U.S. Constitutions because that act was not in effect at the time his crime was committed. We agree."). | [
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BART F. VIRDEN, Judge
James Ernest Duff appeals pro se from the Miller County Circuit Court decision denying his petition for Rule 37 postconviction relief. On appeal, he argues that the circuit court lacked subject-matter jurisdiction over his criminal trial, that the circuit court erred in denying his request for a hearing, and that counsel was ineffective. We affirm.
I. Relevant Facts
Duff was convicted by a Miller County Circuit Court jury of being a felon in possession of a firearm. Our court affirmed his conviction on direct appeal. Duff v. State , 2018 Ark. App. 112, 540 S.W.3d 738.
In his criminal appeal, Duff argued that the circuit court erred by overruling his chain-of-custody objection regarding the firearm offered at his trial as evidence of the charge of felon in possession of a firearm. Duff admitted being a felon. The firearm was not in its original evidentiary packaging; however, the serial number on the gun presented to the jury at his trial was the same as the serial number of the gun taken from his car on his arrest. Our court held that the circuit court did not abuse its discretion in overruling his objection and affirmed Duff's conviction. Id. at 4, 540 S.W.3d at 741. In his appeal, we also affirmed the circuit court's determination that there was probable cause for the traffic stop that led to Duff's arrest. Id. at 6, 540 S.W.3d at 742. The mandate was issued on March 6, 2018.
On May 7, 2018, Duff timely filed a petition for Rule 37 relief for ineffective assistance of counsel, and he requested a hearing and that he be provided a "complete record." In his petition, Duff argued that the circuit court lacked subject-matter jurisdiction because there was no evidence offered at his trial that the charged crime had been committed. Duff also claimed that counsel was ineffective because of an "actual conflict" that existed between him and his attorneys; specifically, Duff argued that his first attorney, David Anderson, supplied the prosecution with privileged information and that he forged Duff's signature on a request for a continuance. Duff asserted that subsequent counsel, Jason Mitchell, failed to inform the court of Anderson's misconduct. Mitchell then "silenced" Duff "via order by the court." Duff claimed that he was denied "counsel of his choice" and that the conflict between him and his appointed counsel was serious enough to constitute ineffective assistance of counsel.
On May 11, 2018, the circuit court denied Duff's Rule 37 petition without a hearing. In the order, the court found that it had subject-matter jurisdiction over the case because Duff was a defendant in the Miller County Circuit Court for alleged offenses committed in Miller County. Furthermore, the court noted that Duff's allegation that no firearm was produced for his trial was incorrect and that Duff had merely reiterated his argument regarding the sufficiency of the evidence against him. The circuit court found that "nothing about the firearm or its admissibility at trial touches on his trial counsel to be ineffective." The circuit court found that Duff's claims of ineffective assistance of counsel were also without merit. The circuit court stated that it would address only Duff's claims against his trial counsel, Jason Mitchell, because Anderson had been relieved as counsel before the trial. The court noted that Mitchell was able to obtain a not-guilty verdict on one charge against Duff and that another charge was nolle prossed. The court found that Mitchell had been very effective as trial counsel and that counsel met all constitutional standards.
Regarding Duff's request for a transcript and for the "complete record," the circuit court found that Duff already possessed what he requested and that a complete record was already available to him. The court denied Duff's request for an evidentiary hearing, finding that Duff had not raised any issue of fact requiring further determination by the court. Duff filed a timely notice of appeal.
II. Analysis
On appeal, Duff argues that the circuit court lacked subject-matter jurisdiction over his trial, that the circuit court erred by denying his request for a hearing, that the circuit court failed to make written findings, and that counsel was ineffective due to a conflict with Duff. We disagree and affirm.
We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Johnson v. State , 2018 Ark. 6, at 2, 534 S.W.3d 143, 146. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id.
When considering an appeal from a circuit court's denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard 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), the circuit court clearly erred in holding that counsel's performance was not ineffective. Taylor v. State , 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. Under Strickland , the effectiveness of counsel is assessed by a two-prong standard. First, Duff must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State , 369 Ark. 104, 108, 251 S.W.3d 290, 292-93 (2007). In order to demonstrate counsel error, a petitioner must show that counsel's performance fell below an objective standard of reasonableness. Abernathy v. State , 2012 Ark. 59, at 4, 386 S.W.3d 477, 481 (per curiam). Furthermore, there is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Bryant v. State , 2013 Ark. 305, at 2, 429 S.W.3d 193, 196 (per curiam).
The second prong of our analysis requires a petitioner to show that counsel's deficient performance so prejudiced the defense that the petitioner was deprived of a fair trial. Holloway v. State , 2013 Ark. 140, at 5, 426 S.W.3d 462, 467. Consequently, Duff must show that there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State , 2014 Ark. 159, at 2, 432 S.W.3d 618, 622 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Conclusory allegations unsupported by facts and that provide no showing of prejudice are insufficient to warrant Rule 37 relief. Nelson v. State , 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001) (per curiam).
Duff's first argument regarding the circuit court's subject-matter jurisdiction over his criminal trial is difficult to follow at times. Generally, he argues that the chain of custody was broken such that the firearm produced at his trial was not reliable evidence. Although Duff characterizes his argument regarding the evidence against him at his trial as a jurisdictional challenge, it is actually a direct challenge to the sufficiency of the evidence and is not cognizable in Rule 37.1 proceedings. See Sanford v. State , 342 Ark. 22, 25 S.W.3d 414 (2000) (citing O'Rourke v. State , 298 Ark. 144, 765 S.W.2d 916 (1989) (per curiam) ). The circuit court did not err in refusing to grant Duff's Rule 37 petition on this basis, and on this point we affirm.
Duff asserts that the circuit court erroneously denied his request for a hearing and that the circuit court failed to make the required written findings. He is incorrect.
Rule 37.3 provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State , 352 Ark. 16, 98 S.W.3d 35 (2003). When the circuit court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the circuit court to make written findings specifying the parts of the record that form the basis of the circuit court's decision. Id. If the circuit court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. Id. It is not incumbent on this court to scour the record to affirm. Turner v. State , 2016 Ark. 96, 486 S.W.3d 757.
The circuit court's order denying postconviction relief complies with the requirements of Rule 37.3. In the order, the circuit court found that Duff failed to state facts to support his claim that counsel was ineffective, and it noted that Mitchell had assisted Duff in acquittal on one charge and a nolle prose on another charge. The court found that Duff's own actions during counsel's representation of him were the source of the conflict to which Duff referred in his petition. Though the circuit court did not specify the parts of the record supporting its conclusion, the record conclusively shows that Duff's petition is without merit. See Sanders, supra.
As for Duff's ineffective-assistance claims, Duff presented no factual basis for his conclusory statement that his attorneys were "loyal only to the State." Moreover, the record supports the circuit court's finding that Duff was well represented by his trial counsel-Mitchell obtained a not-guilty verdict on one charge, and another charge was nolle prossed. The only charge of which Duff was convicted was proved by overwhelming evidence. Despite Duff's claims to the contrary, nothing in the record supports Duff's bald assertion that a conflict existed between him and his attorneys.
Affirmed.
Klappenbach and Whiteaker, JJ., agree. | [
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WAYMOND M. BROWN, Judge
Appellants Luther F. Graves and FirstComp Insurance Company (collectively "Graves") appeal from the Arkansas Workers' Compensation Commission's (Commission) January 13, 2017 opinion affirming and adopting the administrative law judge's (ALJ) June 7, 2016 opinion in favor of appellee. On appeal, Graves argues that (1) appellee's claim is time-barred by Arkansas Code Annotated section 11-9-702(a) ; and (2) the Commission erred in finding that he is estopped from asserting the statute-of-limitations defense because appellee had actual notice of the existence of a workers' compensation policy. We affirm.
I. Facts
On August 26, 2013, appellee fell from a ladder and was injured while working on a construction crew assembled by Graves. Appellee initially filed a complaint in the Phillips County Circuit Court against Ray Dawson, Jr., and Dixie Planting Company (Dixie) on May 14, 2014. Dixie filed a motion to dismiss and brief in support on June 3, 2015, asserting that the Commission has sole jurisdiction of the factual issue of whether appellee was an employee or an independent contractor. At some point, the matter was brought before the Commission for a determination of the employment relationship between Dixie and appellee. The circuit court entered an order on July 8, 2015, staying the matter pending "the disposition of [appellee's] workers' compensation claim."
Appellee filed a complaint against Graves in the Phillips County Circuit Court on August 31, 2015, alleging that he was Graves's employee and not an independent contractor, and that Graves was negligent and failed to provide workers'-compensation insurance. Graves answered the complaint on September 28, 2015, denying all allegations in the complaint in material part and seeking dismissal of the same. Graves also filed a motion to dismiss and brief in support on the same date alleging that the circuit court lacked jurisdiction as the Commission has exclusive, original jurisdiction to determine employment relationships; appellee responded October 8, 2015.
In Dixie's September 3, 2015 prehearing information, it listed the employer-employee relationship as the only issue, claiming that appellee was not its employee, but was "an independent contractor or the employee of an independent contractor." On the same date, appellee submitted his prehearing questionnaire in which he listed the issues to be litigated, among other irrelevant items to this appeal, as (1) whether he was an employee of Dixie; (2) whether he sustained a compensable injury on August 26, 2013; (3) whether he was entitled to reasonable and necessary treatment; and (4) whether he was entitled to temporary and/or permanent total-disability benefits.
On October 13, 2015, appellee responded to Graves's motion to dismiss, asserting that Graves breached the duties of his workers'-compensation insurance policy-including his obligation to report appellee's claim-"thereby making it unenforceable and not effective under these circumstances." On November 9, 2015, the ALJ entered an order joining Graves and his workers'-compensation insurance carrier, FirstComp Insurance Co., as parties to the proceedings. He did so "pursuant to a motion filed herein by Dixie Planting Co." and "based on information growing out [sic] disclosure to the attorney for the claimant regarding employment and workers' compensation insurance status[.]"
In Graves's December 7, 2015 response to the prehearing questionnaire, he denied that "any employment or contractor/subcontractor relationship" existed at the time of appellee's injury, asserting that appellee was "an independent contractor for Dixie Planting Co., or one of the entities owned by Ray Dawson." He alternatively asserted a statute-of-limitations defense and that there was a lack of notice until November 9, 2015. On December 17, 2015, Graves notified the ALJ in correspondence that while his prehearing questionnaire indicated employment relationship and compensability as issues to be litigated, he was also asserting a lack-of-notice and statute-of-limitations argument for the hearing. This was acknowledged by the ALJ in his correspondence dated December 21, 2015.
On March 1, 2016, Dixie filed a motion to dismiss, alleging that appellee originally filed a claim against them "under the assumption" that Graves had no insurance; however, it had been discovered that Graves was insured. Dixie then stated that Graves had admitted that appellee was his employee on all applicable dates on February 29, 2016; therefore, there was no "uninsured sub-contractor" situation. Dixie argued, accordingly, that it should be dismissed because it was not responsible for the claim since Graves was insured.
On March 7, 2016, appellee submitted his brief in opposition to Graves's statute-of-limitations defense, asserting that Graves's failure to disclose that he had workers'-compensation insurance and his statement "misrepresent[ing] the issue of insurance by telling his employees that he did not have insurance" showed that he failed to follow the notice provisions of Arkansas Code Annotated sections 11-9-403 and 11-9-407. He argued that the statute-of-limitations defense provided by Arkansas Code Annotated section 11-9-702(f)(1) was tolled by Graves's actions. On the same date, appellee also responded in opposition to Dixie's motion to dismiss; Graves never responded to the motion. Also on March 7, 2016, Graves responded to appellee's "request to interject new issues[,]" specifically fraud and estoppel. Finally, also on the same date, Graves confirmed that he had accepted the employer/employee relationship between himself and appellee and identified the issues to be litigated as compensability, entitlement to benefits, statute of limitations, notice, and attorney's fees.
A hearing was held on the matter on March 9, 2016. Appellee testified that "he was working with [Graves] when [he] got hurt, for Ray Dawson." Graves hired him. He had worked for Graves "about six or seven years, maybe a little longer" at the time of the accident. He received a hat with "L.F. Graves Construction" printed on it and he understood that phrase "to refer to the five guys, the crew[,]" which included him. Appellee testified that Graves "would get the jobs and we would do them and then the people that we worked for gave us a check." As far as hours and instructions on what was to be done, Dawson "mainly" told Graves "who then told Teddy [Hopper], who then told [them]."
Appellee never told Dawson what his rate of pay was or how he wanted to be paid; that was negotiated by Graves. He received a raise twice during his years of work; both "came from Graves." He testified that Dawson gave him checks up until he was injured. They were always paid by the individual on whose property they were working; Graves would tell him that he was an employee of the person who writes the checks. Graves never paid him, never deducted any Social Security, and never took out any withholding taxes. Graves told him when he hired him that "there's no workman's comp, no insurance, no nothing. In those exact words." When Graves would see workers "going up high, he'll say [to appellee] to remind [the worker] that there ain't no workman's comp and there ain't no insurance and there ain't no nothing." Not having taxes taken out was a "fairly common" arrangement in the Phillips County area. He thought he was "working for Dawson because [Dawson] provided [him] with the checks and paid for the work [they] did." Dawson gave appellee his 1099 at the end of the year.
Though appellee did not have any contact with Graves after August 26, 2013, Graves was there on the day he fell off the ladder and knew he was injured. Appellee never submitted medical bills to or asked for "off-work pay" from Graves and never contacted Graves to request benefits or pursue a claim, but that was because he thought he was working for Dawson. He did not ask Graves about workers' compensation after his injury and did not investigate whether Graves had any on his own. Graves never told appellee that he could not file a workers'-compensation claim or that he did not have a workers' compensation policy after his August 26, 2013 injury, but Graves "always told them there ain't no insurance"-as he had told "everybody on the job"-so he "assumed [Graves] didn't have any." He knew Graves had workers'-compensation insurance "towards the end of 2014" but did not do anything with the information because he thought they were working for Dawson. He received the information about Graves having workers' compensation insurance as a rumor from someone on another crew; Graves never told him. He never saw any notice posted that Graves had workers'-compensation insurance and never knew he had the same. If they were working a "big job[,]" he worked under Graves's license.
Teddy Hopper, brother of appellee, also worked on the crew with appellee and he testified below. He stated that "[w]hoever [they] worked for paid [them]," not Graves, and that that had been the arrangement for "about ten years." He identified Graves as the general contractor and overseer of the jobs, which Graves would get. Graves would then call the crew of five guys whom Teddy considered to be Graves's crew. Dawson would typically give their checks to Graves, who would pass them out, though Dawson would hand them out sometimes; it was the same with other jobs for other people. Graves never wrote Teddy a check in the ten years he worked for Graves. If a customer wanted something specific, he or she would go to Graves first. He confirmed appellee's testimony that Graves told them that he did not have insurance when they were hired-Graves "never said anything about having worker's comp insurance"-and that "whoever [they] work for is supposed to take care of all that stuff." He confirmed hearing rumors that Graves had a workers'-compensation policy. Graves never told him he did not have workers' compensation after the rumors, but he also never told him that he had workers' compensation insurance thereafter. He confirmed that Graves was on the site the day appellee was injured and "went over and saw that he was hurt." Graves would call and check with him about "how [appellee] was getting along."
Ninety-five-year-old Graves testified that he was "just a crew member like the rest of them" and was paid hourly, though he was paid "a little more than the guys did because [he] was the one who would go out and get the jobs." He has been working in construction for probably thirty years and had always had "this type of crew" where someone would call for a project, he would assemble the crew, and the owner would pay the salary. He asserted that the crew would turn in their time by the hour and "would be working for the owner." He paid his own taxes, including Social Security, and told each guy that "[he] hired" that he had to pay his own taxes. The decision to have everyone paid hourly was not done to "try and avoid taxes or liability." It is just the way things are done and "works out cheaper for the owner" because "he didn't have to pay nothing extra." He could fire a crew member if he did not like or need the person. He had "pretty much the same crew."
Graves testified to getting a workers'-compensation insurance policy in February 2013 because they "had come up with a law that you had to have workers' comp to get a state license"; he never had a policy before that time. He obtained the policy from Hargraves Insurance Company (Hargraves), but asserted that his insurance provider "never told me what to do or anything." Graves never said anything about the policy to appellee because Graves thought he was dealing with Dawson. He "had no idea" what made a person an employee under Arkansas workers' compensation law because he "had never been told." He went to Hargraves immediately after being served with the complaint. Nobody asked him about workers'-compensation insurance as "[t]hey were working for [Dawson] and he was paying them and they thought [Dawson] would be responsible for the guy getting hurt." Graves asserted that appellee was not his employee. He told "the people [they] worked for that [the crew members were] their employees[.]"
Graves did not have an office or building, working instead out of his truck, and owned no heavy equipment. He admitted that he "might have" told the crew members that he did not have workers'-compensation insurance before he obtained it, but denied that he did so after he obtained it. In any case, he admitted that he did not notify his crew members that he had obtained workers'-compensation insurance and did not notify his insurance provider that appellee had been hurt on the job. He also admitted checking in on appellee through Teddy and knowing that appellee was "seriously injured because we were the ones who called the airplane to take him to The MED." Appellee came back to work two or three days after he had got hurt, but then he quit.
The ALJ filed his opinion on June 7, 2016, in which he found that the fact that appellee sustained an accidental fall on August 26, 2013; the extent of appellee's injuries; and the reasonableness and necessity of the medical treatment received by appellee were not in dispute. In part pertinent to this appeal, he further found (1) that the employee-employer carrier relationship existed between appellee and Graves at the time of appellee's injury; (2) that appellee was temporarily totally disabled from August 25, 2013, until a date yet to be determined; and (3) that Graves had notice of appellee's August 26, 2013 injury and failed to post notice of compliance pursuant to Arkansas Code Annotated section 11-9-407, and so was estopped from asserting a statute-of-limitations defense to appellee's claim. Regarding his finding that Graves was estopped from asserting a statute-of-limitations defense, the ALJ specifically found that appellee "relied on the conduct of [Graves], and indeed filed his initial workers' compensation claim against [Dixie] because he had been informed by [Graves] that [appellee] worked for [Dixie]." Dixie was found to have no liability on appellee's claim and was dismissed from the matter.
Graves then timely appealed to the Commission, which affirmed and adopted the opinion of the ALJ in its opinion filed January 13, 2017. This timely appeal followed.
II. Standard of Review
On appellate review, 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. Substantial evidence exists if reasonable minds could reach the Commission's conclusion. We will not reverse the Commission's decision unless fair-minded persons with the same facts before them could not have reached the Commission's conclusions. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. Questions of weight and credibility are within the sole province of the Commission, which is not required to believe the testimony of the claimant or of any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision.
III. Time-Barred
Graves's first argument on appeal is that appellee's claim is time-barred by Arkansas Code Annotated section 11-9-702(a). He argues that appellee never filed a claim within the required time period, stating that even if we count appellee's filing of his complaint against Graves in circuit court as the official filing of his claim, the complaint was filed after the two-year period, and therefore his claim is barred. While we agree that appellee never filed a workers'-compensation claim against Graves and that appellee's complaint against Graves was filed more than two years after the date of injury, we still disagree that appellee's claim is time-barred.
Arkansas Code Annotated section 11-9-407 requires that
(a) Every employer who has secured compensation under the provisions of this chapter shall keep posted in a conspicuous place in and about the employer's place of business typewritten or printed notices in accordance with a form prescribed by the Workers' Compensation Commission. The notices shall state that the employer has secured the payment of compensation in accordance with the provisions of this chapter.
(b) The notices shall contain the name and address of the carrier, if any, with whom the employer has secured payment of compensation and the date of the expiration of the policy.
The posting required by this statute was noted by the ALJ to be found on Form AR-P of the "Workers' Compensation Instructions to Employers and Employees." Appellee and Teddy testified that they had been told by Graves, at the time of their hiring, that he did not have workers'-compensation insurance and that they had heard him tell others the same. Graves admitted in his testimony that he "might have" said the same. While appellee, Teddy, and Graves agree that Graves never told any of his employees that he did not have workers'-compensation insurance after he obtained it in February 2013, they also all agree that Graves never told them that he had obtained the same. Appellee and Teddy testified to hearing only a rumor from another crew that Graves had workers'-compensation insurance. More importantly, Graves testified that he worked out of his vehicle and that he never posted a notice that he had obtained workers'-compensation insurance. Appellee testified to learning that appellant had workers'-compensation insurance "near the end of 2014" and Dixie stated in its motion to join Graves as a party that it had learned of Graves's workers'-compensation insurance policy during discovery for appellee's civil matter against it.
In Rider v. Julian Martin, Inc. , this court cited McGehee Hatchery v. Gunter , in which our supreme court "pointed out that the posting of the notices was for the benefit of the employee and the purpose was to inform the employee that he was covered by workers' compensation"; it "refused to allow the employer to benefit from its failure to post the required notices." In Rider , noting the appellant's testimony that he never saw the required notice on the employer's premises, this court held that it thought it "incumbent on the appellees to offer evidence to show that the required notice had been posted as required by Arkansas law."
Graves argues that "[a]ppellee clearly cannot claim that any alleged statements from Mr. Graves regarding the absence of workers'-compensation insurance served as the basis for his decision not to file a workers'-compensation claim against him because he did not file a claim when he found out Mr. Graves had a policy." Whether a statute of limitations has expired is a question of fact for the Commission to resolve. It is clear that Graves had actual notice of appellee's injury on the date of the injury. It is also clear that Graves failed to post notice that he had obtained workers'-compensation insurance and did not notify appellee of the same after appellee's injury. It was incumbent on Graves to notify his employees that they were covered by workers'-compensation insurance and he, by his own testimony, failed to do so. To hold that the statute of limitations had run would allow Graves to benefit from his own failure. Furthermore, the facts are clear that Graves told his employees, based on his own testimony, as well as that of appellee and Teddy, that they were the employees of the person who paid them, the person who wrote their checks; that person was never Graves. The Commission's decision will not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. This court cannot find that fair-minded persons could not have reached the same conclusion as the Commission. We hold that the Commission did not err.
IV. Statute of Limitations
Graves's second argument on appeal is that the Commission erred in finding that he is estopped from asserting the statute-of-limitations defense because appellee had actual notice of the existence of a workers'-compensation policy. Again, we disagree.
There are four necessary elements of equitable estoppel: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that his or her conduct be acted on or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the latter must be ignorant of the true facts; and (4) must rely on the former's conduct to his or her injury. Graves knew that (1) appellee had been seriously injured on the job, he had told appellee that he did not have workers'-compensation insurance, he had told appellee that he was an employee of the person who paid him, which was never Graves, and he never informed appellee that he had workers'-compensation insurance once he obtained it; (2) fair-minded people could agree that Graves intended for appellee to believe that he was employed by another person and that he did not have workers' compensation insurance, even after he obtained it, and the findings of the Commission seem to support this; (3) appellee believed that another entity was his employer and that Graves was uninsured; and (4) appellee sued the other entity to recover his damages because of his belief, which was formed based on Graves's representations.
The entirety of Graves's argument is an exercise in asking this court to give greater weight to certain testimony than the Commission obviously did. The Commission determines credibility and weighs the evidence. Accordingly, we hold that the Commission did not err.
Affirmed.
Harrison and Klappenbach, JJ., agree.
Dawson owns Dixie.
Cottonwood Partnership and CEM Partnership were also named parties in the complaint; however, they are not a party to this appeal.
The record is not clear how the matter ended up in front of the Commission; however, we address the merits because the Commission has exclusive jurisdiction in this matter. See Pineda v. Manpower Int'l, Inc. , 2017 Ark. App. 350, at 6, 523 S.W.3d 384, 389 (citing Johnson v. Bonds Fertilizer, Inc. , 375 Ark. 224, 227, 289 S.W.3d 431, 433 (2008) ("[the] Commission has exclusive jurisdiction to decide whether an employee-employer relationship exists.")); Hickey v. Gardisser , 2010 Ark. App. 464, at 4, 375 S.W.3d 733, 735 (citing VanWagoner v. Beverly Enters. , 334 Ark. 12, 970 S.W.2d 810 (1998)) ("[T]he Commission has exclusive, original jurisdiction to determine the facts that establish subject-matter jurisdiction.").
Dixie's prehearing questionnaire lists only itself and StoneTrust, its workers'-compensation insurance carrier, as "respondent"; Dawson is not listed.
After this court's remand for supplementation of the record and supplementation of the addendum, appellant's counsel responded to the clerk of the Commission by email on November 30, 2015, advising that he called the ALJ and orally moved that Graves be joined as a party to the matter.
Whom "they" refers to is not identified.
Graves never clarified who "we" referred to, but it is sufficient to note that he is apparently included in the "we" referenced.
Terry Hopper, a non-crew brother of appellee, also testified, but his testimony is irrelevant to the points on appeal.
This included an exception of two days on which he returned to "gainful employment" with Graves.
Dixie did not appeal the Commission's opinion and therefore is not a party to this appeal.
La-Z-Boy Mfg., Inc. v. Bruner , 2016 Ark. App. 117, at 5, 484 S.W.3d 700, 703 (citing Get Rid of It Ark. v. Graham , 2016 Ark. App. 88, 2016 WL 537389 ).
Id. (citing Pina v. Wal-Mart Stores, Inc. , 91 Ark. App. 77, 83, 208 S.W.3d 236, 239 (2005) ).
Id.
Id.
Cottage Cafe, Inc. v. Collette , 94 Ark. App. 72, 73-74, 226 S.W.3d 27, 28-29 (2006) (citing Strickland v. Primex Techs. , 82 Ark. App. 570, 120 S.W.3d 166 (2003) ).
Id.
As a subargument to this point, Graves argues that the Commission erred in finding that appellee filed a claim against Graves. The ALJ's opinion states, "The claimant relied on the conduct of [Graves], and indeed filed his initial worker's compensation claim against [Dixie.]" No statement, and therefore no finding, was made that appellee filed a claim against Graves.
Ark. Code Ann. § 11-9-407(a) & (b) (Repl. 2012).
31 Ark. App. 144, 146, 789 S.W.2d 743, 744 (1990) (citing Gunter , 237 Ark. 448, 373 S.W.2d 401 (1963) ).
Id.
Reynolds Metal Co. v. Circuit Court of Clark Cty. , 2013 Ark. 287, at 5, 428 S.W.3d 506, 509 (citing Houston Contracting Co. v. Young , 267 Ark. 322, 590 S.W.2d 653 (1979) ).
Michael v. Keep & Teach, Inc. , 87 Ark. App. 48, 50, 185 S.W.3d 158, 160 (2004) (citing Superior Indus. v. Thomaston , 72 Ark. App. 7, 32 S.W.3d 52 (2000) ).
Smith v. Aluminum Co. of Am. , 78 Ark. App. 15, 18, 76 S.W.3d 909, 912 (2002) (citing Miller Cty. v. Opportunities, Inc. , 334 Ark. 88, 96, 971 S.W.2d 781, 786 (1998) ).
Godwin v. Garland Cty. Landfill , 2016 Ark. App. 498, at 4, 504 S.W.3d 660, 662 (citing Martin Charcoal, Inc. v. Britt , 102 Ark. App. 252, 284 S.W.3d 91 (2008) ). | [
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RITA W. GRUBER, Chief Judge
A Woodruff County jury found appellant Aaron Dewayne Watson guilty of theft of property in excess of $25,000 and commercial burglary. He was sentenced by the jury to six years in prison for each offense with the sentences to run consecutively. On appeal, appellant argues that the circuit court erred by failing to suspend court proceedings and order a mental evaluation to determine his fitness to proceed at trial. We reverse and remand.
On May 31, 2013, the State charged appellant with theft of property in violation of Ark. Code Ann. § 5-36-103 and commercial burglary in violation of Ark. Code Ann. § 5-39-201, both of which were alleged to have occurred on April 22, 2013. Appellant's first trial resulted in a mistrial. The second trial was held in March 2016. The sentencing order was filed on March 2, 2016, and appellant filed a timely notice of appeal on April 1, 2016.
Appellant's arguments on appeal relate only to his requests for a mental evaluation and the circuit court's denial of the requests. The circuit court entered two orders denying his motion for mental evaluation. In the first order entered January 22, 2015, the court denied the motion and found that appellant was competent to proceed to trial. The second order entered on July 17, 2015, denied the motion and also stated that appellant was competent to proceed to trial. Both orders indicate that appellant was represented by counsel; however, the second order was prepared by Teresa Bloodman, who was permitted to withdraw as indicated by an order entered on January 22, 2015, and was entered at a time when appellant represented himself.
After the record on appeal was lodged, appellant's subsequent counsel filed a motion to be relieved and Robert Golden was appointed by this court to represent appellant. Golden filed a motion to remand to settle the record "with regard to the requests and denials of appellant's motion for a mental evaluation." The motion provided that the record contained two orders denying appellant's motions for mental evaluations; the record did not contain any written motions for mental evaluations or a transcript of any hearing where a motion was made orally; the circuit clerk searched for any written filings that may have been left out of the record on appeal, and none were found; and Golden contacted Alvin Simes, previous counsel for appellant, along with Teresa Bloodman, who informed him that his memory was that the request for mental evaluation was made during a telephone conference with the court and it was not on the record. We granted appellant's motion to remand to settle the record.
Upon remand, the trial court held a hearing on August 29, 2017. Appellant, Golden, and the prosecutor John Bell were present at the hearing. Golden stated that when the second trial was set to begin on December 15, 2014, appellant was represented by Bloodman and Simes. Golden indicated that he spoke to Simes, who provided a copy of a motion filed December 11, 2014. This motion, entitled "Notice Pursuant to Ark. Code Ann. § 5-2-304 and Motion for Evaluation," was introduced at the hearing. Golden stated that he assumed this was the motion the court denied when it signed the order January 3, 2015. The order was filed on January 22, 2015. The court permitted Bloodman and Simes to be relieved as counsel on January 3, 2015, as indicated by the order entered January 22, 2015.
At the remand hearing, the circuit court recalled a telephone conversation with appellant. Appellant was sworn under oath and the following colloquy took place:
THE COURT : Sorry to have to put you under oath, but since we're going to be, and you're not the attorney, we need to talk to you.
That's the way I recall it, that Mr. Simes filed something and this was, I was in my office and I received a telephone call, as I recall.
DEFENDANT WATSON : Sir, I sir-
THE COURT : And you did not want a mental evaluation, at the time. DEFENDANT WATSON : -sir, I can't recall. All I can remember is it was me, Mr. Bell, cause he was on the computer, you was on your phone, and Alvin Simes contacted Bloodman, they, neither one of them was present. That's all I can recall, sir.
THE COURT : Okay. And, and so that was part of their, their Motion to Withdraw. And as I recall Mr. Watson was probably then representing himself and he did not want it.
And I, and I just wanted to clear the record by saying here, here's the Order.
I think it was the same day I filed or sent an Order stating that Ms., that the counsel would be relieved, cause Mr. Watson was telling me he wanted to represent himself.
MR. BELL : That-
THE COURT : I'm sitting in my office without a court reporter. And so that's the way I recall that.
The second one, I believe that Mr. Watson sent a letter, while we were trying to schedule this case, and we're trying to get us a date and it was a letter and he then decided that he would like to have a mental evaluation.
And so it was so close to the time that we were trying to get this-and there were things going on, he was wanting to use the law library and he was wanting to represent himself and this was in those-and, and I was getting these telephone calls at the office and I didn't have a court reporter.
So the best I can recall I wanted to clear up the record that I had denied his, what I think was a letter stating that he wanted a mental evaluation. I don't know if that letter was ever filed or not.
Now, with regard to the, this Notice Pursuant to Arkansas Code Annotated 5-2-304, which was filed December the 11th, 2014. I have no idea why that's not included in the record.And so I think you've made a record that this is here and it shows file marked. So, and I do not know why, I do not know why the clerk did not include this in the record, or if it's in the record now or not.
But now it's-
MR. GOLDEN : -now it's in the record.
THE COURT : -now it's in the record. And that's the best I can recall, because it's been a couple of years and-
[DEFENDANT] WATSON : I agree, Your Honor.
THE COURT : and that's the best that I can do to come up with something to clear up the record.
Bell recalled the January 3 telephone conference, and his explanation was that Simes was basically saying, "Our client needs a mental evaluation or we need to withdraw." Bell indicated that appellant was saying, "I want a lawyer because the court told me I could not represent myself last time. I don't want a mental evaluation because I want to go to trial so I can get out of jail, if I win. And if you'll allow my attorneys to withdraw, then I'm going to waive my mental evaluation."
Bell told the circuit court that he had a problem with the orders because there was a spot for his approval, which was not given. He elaborated that had Bloodman, who prepared the orders, asked for his approval, he would have told her she needed to change the orders to indicate that the motion was withdrawn, rather than stating that the court made a competency finding.
Mr. Golden told the court that appellant did not recall withdrawing the motion and asking not to have a mental evaluation at the telephone conference. The following colloquy took place:
MR. BELL : Let me ask this: Are you making a specific finding of fact that Mr. Simes and Ms. Bloodman withdrew and that subsequent to their withdrawal, in an off the record conversation, at which counsel for the State and the defendant were present, Mr. Watson orally withdrew his Motion for Evaluation?
THE COURT : That's what I recall for one. But not, the other one was just a letter from Mr. Watson. I don't think there was any motion filed, to the best of my-
The circuit court did not issue any order following the remand hearing.
This court will not reverse a circuit court's decision to deny a defendant's request for a mental evaluation unless that decision was clearly erroneous. King v. State , 2014 Ark. App. 81, at 5, 432 S.W.3d 127, 130-31. A criminal defendant is ordinarily presumed to be mentally competent to stand trial, and the burden to prove otherwise is on the defendant. Id. The test of competency to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational and factual understanding of the proceedings against him. Id.
On appeal, appellant challenges two pretrial orders denying his motions for a mental evaluation. The Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial. Medina v. California , 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). This principle is codified at Ark. Code Ann. § 5-2-302(a) (Repl. 2013), which provides that a person lacking the capacity to understand the proceedings against him or to assist effectively in his defense as a result of mental disease or defect shall not proceed to trial so long as the incapacity endures. The statutory procedures to be followed when a defendant raises the issues of "mental disease or defect" or "fitness to proceed" were previously found in Ark. Code Ann. § 5-2-305 (Supp. 2011 & Repl. 2013). Arkansas Code Annotated section 5-2-305 was amended during the 2013 legislative session. The offenses for which appellant was charged occurred in April 2013, prior to the amendment. Regardless of which version of the statute applies, we hold that the circuit court clearly erred in denying appellant's motion for mental evaluation.
In this case, there is an insufficient record brought up on appeal to determine what transpired in the circuit court. When the record was originally lodged on appeal, all it contained with regard to appellant's requests for mental evaluation was the two orders entered by the circuit court denying appellant's requests for a mental evaluation and also finding him competent to proceed without any findings. Upon our remand to settle the record, the hearing accomplished nothing definitive except that Golden obtained from Simes one motion requesting a mental evaluation. This motion was entitled "Notice Pursuant to Ark. Code Ann. § 5-2-304 and Motion for Evaluation" and was filed December 11, 2014, at which time appellant was represented by Bloodman and Simes. The motion itself indicated that appellant had filed a motion for continuance on his own behalf, which counsel viewed as a motion to proceed pro se. Neither Simes nor Bloodman was present at the hearing to supplement the record. Golden stated that he assumed this motion was the one the court decided on January 3, 2015, which was later filed on January 22, 2015. The circuit court signed the order relieving Bloodman and Simes on January 3, 2015, which was also filed on January 22, 2015. The circuit court recalled that it was at this time that appellant was on the telephone and had stated that he did not want a mental evaluation. Appellant told the circuit court he could not recall that statement. After the circuit court described what it remembered to have occurred and noting that the December 11, 2014 motion would now be part of the record, the circuit court acknowledged that this was the best it could recall because it had been a couple of years.
Bell recalled the January 3, 2015 telephone conference. He explained that Simes was of the position that appellant needed a mental evaluation or counsel needed to withdraw. Bell also thought that appellant did not want an evaluation, and if his counsel was allowed to withdraw, he would waive the mental evaluation. Bell stated that both the orders entered by the circuit court should have stated that appellant had withdrawn the motion for mental evaluation. At the remand hearing, appellant did not recall withdrawing his request for mental evaluation.
With respect to the entry of the second order on July 17, 2015, the only information gleaned from the hearing was that the circuit court thought the second motion had been requested in a letter sent to him by appellant.
Although the circuit court attempted to settle the record, we are left with nothing upon which to make a determination of the issues on appeal. Pursuant to Administrative Order No. 4 of the Arkansas Supreme Court, "[u]nless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings ... pertaining to any contested matter before the court or the jury." Ark. Sup. Ct. Admin. Order No. 4. It has also been held that it was error for the circuit court to not make a verbatim record of an in-chambers conference. Robinson v. State , 353 Ark. 372, 108 S.W.3d 622 (2003). In Robinson , the supreme court explained that failure to make a verbatim record puts the appellate court at a considerable disadvantage in reviewing points on appeal pertaining to unrecorded hearings and that "henceforth" Administrative Order No. 4 will be strictly construed and applied. Id. at 378, 108 S.W.3d at 625.
The circuit court's attempt to settle the record upon remand was unsuccessful. The recollections of what had taken place were not definitive, and a filed, written order has not been provided. There is nothing in the record or supplemented record to determine upon what basis the circuit court made its decision to deny the mental evaluation and to find appellant competent to proceed. Based on the lack of record before us, we hold that the circuit court clearly erred in denying appellant's motion for mental evaluation.
Reversed and remanded.
Whiteaker and Hixson, JJ., agree.
Appellant proceeded pro se until November 16, 2015, when Danny Glover filed an entry of appearance.
Arkansas Code Annotated section 5-2-305 was repealed during the 2017 legislative session, and is now codified at Ark. Code Ann. §§ 5-2-327 to -328 (Supp. 2017). | [
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KENNETH S. HIXSON, Judge
Appellant Duan Harris was convicted in a jury trial of rape, aggravated assault, and interference with emergency communication. The victim was Mia Colley. For these offenses, Mr. Harris was sentenced to ten years in prison.
Mr. Harris now appeals, raising two arguments for reversal. First, he argues that the trial court erred in allowing Lakeisha Harris to testify about an alleged assault by him against her. Mr. Harris contends that this evidence should have been excluded pursuant to Arkansas Rules of Evidence 403 and 404(b). In addition, Mr. Harris challenges the sufficiency of the evidence to support his aggravated-assault conviction. We affirm.
Prior to trial, the State filed a motion for the admission of Lakeisha Harris's testimony. This testimony pertained to an assault committed by appellant against Ms. Harris about eleven months after he committed the charged offenses against the victim herein, Mia Colley. In its motion, the State asserted that the attacks against each victim were under similar circumstances and that Ms. Harris's testimony was admissible to show appellant's motive and intent with respect to his assault of Ms. Colley. A pretrial hearing was held on the State's motion, wherein Ms. Harris gave her proposed testimony. Appellant objected to the introduction of this testimony at trial, arguing that it was inadmissible under Arkansas Rules of Evidence 403 and 404(b). The trial court found that this testimony was relevant to show appellant's intent and that the probative value was not substantially outweighed by the danger of unfair prejudice. Therefore, the trial court ruled that Ms. Harris's testimony would be admissible at trial.
At the jury trial, Mia Colley testified about the assault and rape committed by the appellant against her, which occurred on August 14, 2015. Ms. Colley testified that she knew Mr. Harris because they had gone to school together, and that he had recently been over to her apartment a couple of times to visit and eat pizza. On his third visit to her apartment, on August 14, 2015, they had planned to go to a movie. According to Ms. Colley, while he was there she was sitting on her couch and received a text message from another man who asked her to go to a movie. While she was responding to the text, Mr. Harris hit her in the back of the head.
Ms. Colley testified that, after Mr. Harris struck her in the back of the head, she jumped up off the couch and he came around and hit her two or three more times. Mr. Harris grabbed her by the neck, and he choked and punched her until she was unconscious. Mr. Harris dragged her into her bedroom. When Ms. Colley regained consciousness, she was naked and Mr. Harris was having forcible intercourse with her. Ms. Colley testified that Mr. Harris penetrated her vaginally and anally and that he also forced her to give him oral sex. Mr. Harris had blocked the front door of the apartment with a couch to prevent Ms. Colley from leaving.
Ms. Colley stated that she was beaten badly, and that after Mr. Harris was finished raping her she asked him if he would take her to the hospital. Mr. Harris at first refused, but he finally agreed to take her to the hospital when Ms. Colley faked an asthma attack. Ms. Colley stated that Mr. Harris had taken her phone from her because he did not want her to call the police. On the way to the hospital, Mr. Harris told Ms. Colley to make up a story about being attacked and raped by a stranger.
When they arrived at the hospital, Ms. Colley told the nurse that Mr. Harris had beaten and raped her. Mr. Harris left the facility. The nurse observed hemorrhaging in Ms. Colley's eyes, and a rape kit was ordered. Vaginal and anal swabs tested positive for semen that matched Mr. Harris's DNA.
The police were put on notice to be on the lookout for Mr. Harris's car. Officer Anthony Petty observed Mr. Harris's car traveling at over eighty miles per hour in a nearby town. Officer Petty initiated his lights and sirens and gave chase. According to Officer Petty, Mr. Harris drove almost nine miles before he finally stopped and was taken into custody.
Two days after his arrest, Mr. Harris agreed to an interview with the police. During the interview, Mr. Harris acknowledged that, on the night of the alleged offenses, he got upset with Ms. Colley after she received a text from another man. Mr. Harris said that he cussed her out and grabbed her by the hair, but he denied striking or choking her. Mr. Harris stated that, after the argument ended, they had consensual sex.
The State called Lakeisha Harris to testify. Mr. Harris renewed his objection to her testimony on the grounds that it should be excluded pursuant to Arkansas Rules of Evidence 403 and 404(b). The trial court overruled appellant's objection.
Ms. Harris testified that appellant is her half sibling. Ms. Harris testified about an incident that occurred on July 4, 2016. On that night, they had been drinking wine and Mr. Harris came to her house. They were sitting on the couch and Mr. Harris was rubbing her arm, which made her feel uncomfortable. According to Ms. Harris, she handed Mr. Harris his car keys for him to leave when he jumped up and punched her in the back of the head. She tried to fight back, and Mr. Harris put her in a choke hold and said she had stolen his money. Mr. Harris choked her until she was unconscious. When she awoke, she was in her daughter's bedroom and was naked. Mr. Harris continued to punch her and pull her hair. Ms. Harris recalled that Mr. Harris told her she was going to "suck his penis," but she could not recall whether that occurred. Ms. Harris described it as an "out of body experience" and did not remember being raped. Mr. Harris restrained Ms. Harris from leaving her home, but at some point she was able to call the police by hitting the panic button on her security system. The police arrived a few minutes later. Ms. Harris went to the hospital and had stitches put in her lip. However, Ms. Harris did not want to do a rape kit and none was performed.
Although it is listed as his second argument on appeal, Mr. Harris argues that there was insufficient evidence to support his conviction for aggravated assault. When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Cogburn v. State , 2016 Ark. App. 543, 2016 WL 6609490. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty without resort to conjecture. Breedlove v. State , 62 Ark. App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State , 2011 Ark. App. 432, 384 S.W.3d 585.
Mr. Harris argues that the State failed to prove each and every element of aggravated assault. Arkansas Code Annotated section 5-13-204 (Repl. 2013) provides, in relevant part:
(a) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely:
(1) Engages in conduct that creates a substantial danger of death or serious physical injury to another person;
....; or
(3) Impedes or prevents the respiration of another person or the circulation of another person's blood by applying pressure on the throat or neck or by blocking the nose or mouth of the other person.
Mr. Harris contends that the State did not put forth any evidence for the elements of "under circumstances manifesting extreme indifference to human life" or "[e]ngag[ing] in conduct that creates a substantial danger of death or serious physical injury." Therefore, he asserts that his aggravated-assault conviction should be reversed.
The phrase "under circumstances manifesting extreme indifference to the value of human life" is found in numerous criminal offenses involving injury or death to persons. McCoy v. State , 347 Ark. 913, 69 S.W.3d 430 (2002). Regardless of the offense in which it appears, however, the supreme court has consistently viewed that phrase as part of the proof of the actor's mental state. Id. We hold that the State introduced sufficient proof that Mr. Harris acted under circumstances manifesting extreme indifference to the value of human life where he repeatedly delivered blows to the victim's face and choked her into unconsciousness. Photographs of the victim introduced at trial showed that, after the attack, Ms. Colley had numerous pronounced red marks about her neck area and burst blood vessels in both eyes. This was substantial evidence to support this element of the offense.
Mr. Harris also argues under this point that the State failed to prove that he engaged in conduct that created a substantial danger of death or serious physical injury. We disagree, but even were we to credit this argument, Mr. Harris did not argue either below or on appeal that the State failed to prove the other manner by which this offense could be established, i.e., that he impeded or prevented the respiration of another person or circulation of another person's blood by applying pressure on the throat or neck or by blocking the nose or mouth of the other person. And even had this been properly preserved below and argued on appeal, there was substantial evidence to support this element given the victim's testimony that Mr. Harris choked her until she was unconscious. Therefore, there was substantial evidence to support appellant's aggravated-assault conviction.
Mr. Harris's remaining argument is that the trial court erred in allowing Lakeisha Harris to testify about an alleged attack by the appellant against her because this testimony should have been excluded pursuant to Arkansas Rules of Evidence 403 and 404(b). The supreme court has held that the admission or rejection of evidence under Rules 403 and 404(b) is committed to the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of a manifest abuse of discretion. Eubanks v. State , 2009 Ark. 170, 303 S.W.3d 450.
Rule 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Gaines v. State , 340 Ark. 99, 8 S.W.3d 547 (2000). Evidence is independently relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Haire v. State , 340 Ark. 11, 8 S.W.3d 468 (2000).
Mr. Harris asserts that he was primarily charged with rape. He points out that Ms. Harris's testimony pertained to events that allegedly occurred after the events for which he stood trial. Mr. Harris further posits that Ms. Harris did not allege in her testimony that she had been raped, and that she was unsure as to whether anything sexual happened during her altercation with appellant. Mr. Harris contends that the events involving Ms. Harris were totally unrelated to the current charges, and that her testimony should have been excluded under the protection provided by Rule 404(b).
Mr. Harris additionally argues that Ms. Harris's testimony should have been excluded under Rule 403, which provides in pertinent part that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Mr. Harris contends that Ms. Harris's testimony was highly prejudicial, particularly because of the fact that Ms. Harris is his half sibling. In the State's closing argument, the State referred to Ms. Harris as appellant's sister and surmised that appellant may have stopped short of raping her because they were half siblings. Mr. Harris argues that the familial relationship he has with Ms. Harris was highly prejudicial and had little probative value.
To establish that there was abuse of discretion, an appellant must make a showing that the trial court acted improvidently, thoughtlessly, or without due consideration. Holland v. State , 2014 Ark. App. 644, 448 S.W.3d 220. We hold that Mr. Harris failed to make such a showing in this case.
As an initial matter, Mr. Harris is incorrect in arguing that testimony about his other bad acts was inadmissible because the acts occurred after the acts giving rise to the current charges. This is because we have recognized that Rule 404(b) does not distinguish between prior and subsequent bad acts by a defendant. In Wells v. State , 2012 Ark. App. 596, 424 S.W.3d 378, we stated that Rule 404(b) also applies to subsequent bad acts of an appellant. Evidence admitted pursuant to Rule 404(b) must not be too separated in time, making the evidence unduly remote. Nelson v. State , 365 Ark. 314, 229 S.W.3d 35 (2006). However, in this case, the assaults on the two victims occurred less than a year apart, which satisfied the temporal-proximity requirement of admissibility under Rule 404(b). See Nelson , supra (prior convictions of appellant were admissible to show his intent in committing the charged offenses even though the prior convictions occurred fourteen years earlier).
We now turn to Mr. Harris's argument that Ms. Harris's testimony was inadmissible because the alleged acts committed against her lacked similarity to the acts committed against Ms. Colley. Our supreme court has held that testimony about other offenses is independently relevant under Rule 404(b) to show a defendant's intent to commit the predicate offenses if there is sufficient similarity between the circumstances of the crimes. See Sasser v. State , 321 Ark. 438, 902 S.W.2d 773 (1995). The degree of similarity between the circumstances of the other crimes and the particular crime at hand required for the admission of evidence under Rule 404(b) is a determination that affords considerable leeway to the trial court. Id.
In this case, we conclude that the appellant's acts committed against Ms. Harris were sufficiently similar to the acts committed against Ms. Colley to be admissible as probative of his intent under Rule 404(b). In both instances, Mr. Harris went to the victim's apartment and initiated the assault by punching the victim in the back of the head. Mr. Harris then choked each victim into unconsciousness and dragged her into a bedroom. When each victim regained consciousness, she discovered she had been disrobed and was naked. Mr. Harris continued to repeatedly punch each victim. Although Ms. Colley confirmed that she was raped and Ms. Harris did not remember being raped, Ms. Harris did recall that Mr. Harris had made sexual advances toward her, choked her unconscious, dragged her into the bedroom, disrobed her, and told her she was going to "suck his penis." During both episodes, Mr. Harris prevented the victim from leaving her home. Each victim later sought medical treatment for injuries inflicted by the appellant.
In this case, Mr. Harris told the police that his sexual acts with Ms. Colley were consensual. We hold that the testimony of his assault against Ms. Harris was independently relevant to show appellant's intent with respect to his acts committed against Ms. Colley and that those acts were forcible as opposed to consensual. Therefore, we hold that there was no abuse in admitting Ms. Harris's testimony under Rule 404(b).
Appellant's remaining argument is that the trial court erred in admitting Ms. Harris's testimony under Rule 403 because any probative value was substantially outweighed by the danger of unfair prejudice. Mr. Harris primarily takes issue with the testimony by Ms. Harris that they are half siblings and the alleged prejudice resulting from this connotation. However, in Ms. Harris's testimony she stated that, after the attack, "he told me he found out that our dad was not really his dad, I guess that made it o.k. to have sex with me." Thus, it is unclear whether not the jury believed appellant and Ms. Harris to be half siblings. At any rate, in view of the similarities of the attacks on the two victims as discussed above, Ms. Harris's testimony was highly probative on the issues of intent and lack of consent. On this record, we cannot say the trial court abused its discretion in balancing the evidence under Rule 403 and finding that its probative value outweighed the danger of unfair prejudice.
Affirmed.
Klappenbach and Glover, JJ., agree. | [
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KENNETH S. HIXSON, Judge
Appellant AT & T Corporation (AT & T) appeals from the trial court's order denying AT & T's motion to compel arbitration of a class-action complaint brought by appellee Clark County, individually and on behalf of similarly situated parties. On appeal, AT & T argues that the trial court's finding that a contract to arbitrate was never formed contravenes the Federal Arbitration Act and Arkansas law. AT & T also argues that the trial court erred in invalidating the arbitration provision on the ground that it deprived Clark County of a right under state law to sue in court or pursue state statutory remedies. We affirm.
Clark County received telephone service from AT & T dating back to at least 2009. On March 17, 2017, Clark County filed a complaint against AT & T on behalf of Clark County and all similarly situated counties in Arkansas that received AT & T telephone service. In the complaint, Clark County alleged that AT & T had collected improper and unlawful fees from Clark County and the putative class members. These allegedly improper fees included 911 fees, "Arkansas Universal Service charges," and "Special municipal charges." According to the complaint, over the course of the past six years Clark County had asked AT & T to provide authority for its imposition of these fees, but AT & T never provided any satisfactory explanation for the fees. Clark County sought a declaratory judgment that Clark County and the putative class members were not subject to imposition of the fees described in the complaint, and requested an injunction to enjoin AT & T from continuing to collect these fees. Clark County also asked for a judgment for all improper fees that AT & T had collected.
AT & T filed a motion to stay the proceedings and compel arbitration. In its motion, AT & T relied on two documents. The first document is labeled "AT & T ILEC Plexar ('Service')," hereinafter referred to as the "Service Agreement." The second document is labeled "AT & T ILEC Business Term and Volume Discount Plan ('Plan')," hereinafter referred to as the "Volume Plan." The top of the Service Agreement and the Volume Plan each contain the following verbiage:
? Pricing schedule to AT & T Agreement Reference No. ___
? Confirmation of Service OrderIf neither box above is checked then this document is a standalone confirmation of service order.
Neither of the above boxes were checked on either document. The Service Agreement and the Volume Plan each contain, inter alia , the following verbiage:
If this document serves as a confirmation of service order (as indicated above), the confirmation of service order is subject to: (a) the terms of the applicable Tariff, if the service is offered pursuant to Tariff; or (b) the AT & T Business Service Agreement (BSA), if the Service is not offered pursuant to Tariff. Tariffs, Guidebooks, and the BSA can be found at www.att.com/servicepublications.
The Service Agreement was for a term of 60 months, and the Volume Plan was for a term of 48 months. However, each document provides:
At the end of the Term, the Service will automatically be provided to Customer under the terms and conditions of the applicable Tariff or Guidebook on a month-to-month basis at the then-current month-to-month Tariff or Guidebook rates unless and until execution of a then available term plan for the Service or until AT & T or Customer cancels the Service on 30-day prior written notice.
In its motion, AT & T asserted that when Clark County signed up for service, the services were provided subject to publicly filed tariffs. However, those services were de-tariffed on October 1, 2013, after which AT & T claimed that the services became subject to the AT & T Business Service Agreement (BSA) pursuant to the terms of the Service Agreement and the Volume Plan. Although AT & T updates the terms of the BSA from time to time, all versions of the BSA contained arbitration clauses. The BSA in effect when the services were de-tariffed provided:
AT & T and You ("We") agree to resolve all disputes between us through binding arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules, as modified by this provision.This agreement to arbitrate is broad, and includes disputes of any type between AT & T (including its subsidiaries, affiliates, agents, predecessors, successors, and assigns) and You (including authorized or unauthorized users/beneficiaries of services or devices) under this or prior agreements. WE AGREE THAT WE ARE WAIVING THE RIGHT TO A TRIAL BY JURY, TO PARTICIPATE IN A CLASS ACTION, OR TO SEEK REMEDIES BEYOND THE EXTENT NECESSARY TO PROVIDE INDIVIDUALIZED RELIEF TO, AND AFFECTING ONLY, AT & T OR YOU ALONE. WE AGREE NOT TO ACT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED OR DE FACTO CLASS OR REPRESENTATIVE PROCEEDING, OR AS A PRIVATE ATTORNEY GENERAL OR ON BEHALF OF THE GENERAL PUBLIC.
AT & T alleged that it notified Clark County that its services were no longer subject to the tariff. AT & T asserted that after Clark County was notified that its service was being de-tariffed effective October 1, 2013, continued use of AT & T services constituted acceptance of the BSA. Because Clark County chose to continue to receive AT & T services, AT & T thus maintained that, pursuant to the terms of the BSA (as allegedly incorporated into the parties' agreements), Clark County was required to resolve its claims against AT & T in binding arbitration.
AT & T attached affidavits of employees in support of its motion to compel arbitration. Cleveland Beverage stated in his affidavit that when the customer is provided with one or more Service Agreements and Volume Plans to sign, the AT & T sales representative will provide copies of the tariffs or BSA to the customer on request. He also stated that those documents are available on AT & T's website. Michele Ruetty stated in her affidavit that the services provided to Clark County became de-tariffed on October 1, 2013, at which point the services became subject to the BSA in effect at the time. She also stated that customers were notified in writing of the de-tariffing and application of the BSA. A copy of this notice was attached to her affidavit, and it states in pertinent part:
Dear Valued AT & T Business Customer:
As a result of recent changes in Arkansas law governing telecommunications services, Intrastate telecommunications services offered by AT & T Arkansas and all of your long distance services offered by AT & T Long Distance (collectively referred to herein as "business telecommunications services") will no longer be provided pursuant to tariffs filed with the Arkansas Public Service Commission.
Instead, effective October 1, 2013, if you are a retail customer, AT & T business telecommunications services to which you subscribe (unless you have an applicable written agreement) will be offered under the terms and conditions of the enclosed Business Services Agreement ("BSA"). Interstate services are not affected.
You will note that the detailed descriptions of most AT & T Arkansas and AT & T Long Distance services under that Agreement are provided as www.att.com/servicepublications, by selecting Arkansas and selecting the Business Publications link. The AT & T Arkansas and AT & T Long Distance links to State Guidebooks/Service Guides can be found under the Guidebooks/Service Guides column and the most current BSA can be found under the Service Agreement column. Guidebooks are documents that contain the description, price, and other terms (Terms of Service) and conditions of services.
If you agree with the terms and conditions of the enclosed BSA with respect to your currently installed AT & T Arkansas and AT & T Long Distance business telecommunications services, no action is required.
If you do not agree to all the terms and conditions of the enclosed BSA, you must contact us no later than October 1, 2013, to disconnect your service(s). You can contact us by calling your AT & T Sales Representative or calling the AT & T Customer Care Center at the toll-free billing inquiries number shown on your bill. Continued use of your AT & T business telecommunications service(s) after October 2, 2013, will constitute your acceptance of all the terms and conditions of the BSA.
Clark County filed a response to AT & T's motion to compel arbitration, asking that the motion be denied. Clark County contended that AT & T failed to produce any contract between the parties containing an arbitration agreement and that Clark County never agreed to arbitrate any claims with AT & T. Clark County asserted that, when it filed its complaint, AT & T was providing services to Clark County pursuant to a verbal contract. As evidence of a verbal contract, Clark County attached a March 2, 2017 email exchange between Clark County's counsel and Matthew Williams, an AT & T client solutions executive. After Clark County's counsel had sent Mr. Williams an email asking for an explanation as to why Clark County had been assessed a termination fee for canceling fax lines, Mr. Williams responded:
The contract or agreement was a verbal one. Because the County had less than 20 lines with ATT we don't have paper contracts. When we split the old account up I worked with Sandra to determine where lines needed to be located and we canceled the lines that we weren't sure were needed any more.
When the lines were moved off of the old account we only had two plan options. One would have been to move the lines with no agreement and they would have been $120.00 per month. Or we placed them on a Business Local calling plan which requires a 12 month verbal commitment for $55 dollars per month per line. The verbal agreement was the best way to go because these were lines we were keeping going forward.
Clark County argued further that, even if there was a written contract in effect between the parties that contained an agreement to arbitrate, AT & T's motion to compel should be denied because it would violate the Tenth Amendment, it would eliminate the county's ability to seek declaratory relief, and it would violate Arkansas law.
A hearing was held on the motion to compel arbitration. No testimony was presented, and counsel for the parties argued their respective positions.
On July 11, 2017, the trial court entered an order denying AT & T's motion to compel arbitration. In its order, the trial court made these pertinent exhaustive findings and conclusions:
The only written contracts in the record are the two 2010 documents labeled "Pricing Schedule/Confirmation of Service Order." These documents do not mention arbitration. The documents contemplate three different options. If one box is checked, the document incorporates a pricing schedule. If another box is checked, the document is a Confirmation of Service Order. And, as was the case here, if neither box is checked, the document is a "standalone Confirmation of Service Order." As standalone Confirmation of Service Orders, the documents do not incorporate or refer to any other document. Therefore, the Court finds that there was no agreement to arbitrate.
According to the terms of the documents, if the box for the Confirmation of Service Order had been checked (which it was not), then the document would have been subject to either "(a) the terms of the applicable Tariff; or (b) an AT & T Business Service Agreement (BSA)." Since neither box was checked on either document, the Court finds that this language would not be applicable. However, even if the documents were construed as Confirmation of Service Orders (instead of standalone Confirmation of Service Orders), there is no dispute that the services in 2010 were being provided according to a tariff. Therefore, the BSA would not have been applicable.
AT & T concedes that the applicable tariff did not contain any arbitration provision. However, AT & T argues that when the services were de-tariffed in 2013, some version of the BSA became applicable. However, the standalone Confirmation of Service Orders do not state that they would incorporate some new contract obligation in the future. Instead, they say that services will either be offered pursuant to tariff or pursuant to a BSA. If parties intend to incorporate a separate document into a contract, the document to be incorporated must be described in such terms that its identity may be ascertained beyond reasonable doubt. It must be clear that the parties had knowledge of and consented to the incorporated terms. The BSAs produced by AT & T contain exculpatory contract provisions which are not favored by the law. As with other contract provisions, if these types of contract terms are contained on a separate document, they will not be incorporated into the parties' contract unless the reference is clear and unequivocal and the terms of the incorporated document were known or easily available to the contracting parties.The Court finds that AT & T has failed to present evidence that either standalone Confirmation of Service Order incorporated any then-existing or subsequent BSA or that the County ever consented to any such incorporation. Therefore, the Court finds that the standalone Confirmation of Service Orders reflected the parties' agreement in 2010 and those documents did not require arbitration. Even if either document could be construed as a Confirmation of Service Order, they would not have incorporated a BSA. AT & T provided an affidavit from Matthew Williams in support of its Motion to Compel Arbitration. The County's Response provided a 2017 email from Mr. Williams that claimed that the County was receiving services pursuant to a "verbal" agreement and that AT & T did not have "paper contracts." AT & T now claims that Mr. Williams "was simply mistaken." Regardless of whether or not Williams was mistaken, the Court finds that AT & T has failed to meet its burden of demonstrating the existence of a contract containing a written provision for arbitration.
Since the Court concludes that the original agreement did not contain any agreement to arbitrate, the Court will now consider whether some version of the BSA became the contract between the parties at some later date. AT & T was providing service to the County in 2010 pursuant to a tariff. It claims that when its services were de-tariffed in 2013, the County then became subject to a BSA. The County argues that the BSA could not be construed as a contract.
[C]ontract formation includes, inter alia , competent parties, mutual agreement, and mutual obligation. Only the County Judge could have agreed to a contract on behalf of the County or to modify the terms of an existing County contract. Arkansas law also limits county contracts to seven-year terms. Each of the 2010 standalone Confirmation of Service Orders are the only documents in the record which were signed by the County Judge. AT & T provides no evidence to demonstrate any subsequent modification of those documents.
AT & T argues that "[c]ustomers were informed of the de-tariffing and application of the BSA." It claims that a notice about this change was sent to customers. However, AT & T provides no evidence that this notice was ever sent to or received by the County. A party cannot be bound by a contractual provision of which it is unaware.
The notice itself says that changes will occur "unless you have an applicable written agreement." If Clark County had received this notice, the County had a standalone agreement in effect in 2013 and would not have been on notice that AT & T was attempting to change the contract or add new terms to that agreement. [T]he FAA does not require parties to arbitrate when they have not agreed to do so.Even if there was evidence in the record that AT & T had notified the County of potential changes to either of the 2010 agreements, there is no evidence that the County ever consented to any such changes. It is well settled that in order to make a contract there must be a meeting of the minds as to all terms. There must be an objective manifestation of mutual assent for the formation of a contract. Only the County Judge would have had authority to bind the County to any contract, including a written agreement to arbitrate. AT & T has failed to produce a written document, signed by the County Judge, which contains any terms other than those present in the 2010 standalone Confirmation of Service Orders. Based on the evidence, the Court finds that the BSA did not become a contract between the parties in 2013.
AT & T also argues that some version of the BSA which was never signed by the County Judge should be considered as the current contractual agreement between the parties. However, in addition to lack of notice and lack of consent by the County, the Court also finds that the BSA lacks mutual obligations and does not reflect a meeting of the minds as to all terms.
The County contends that the BSA does not impose any obligations on AT & T. At the hearing, AT & T argued that the BSA required AT & T to provide phone service. However, the BSA merely states that it "applies to the AT & T services to which you subscribe, except for service provided under (a) a Tariff; or (b) another agreement between you and AT & T." In 2010, AT & T provided phone services to the County pursuant to a Tariff. The parties also had "another agreement," namely the standalone Confirmation of Services Orders.
Without the standalone Confirmation of Service Agreements which include descriptions and prices for services or the applicable Tariff which contained prices, there would be no way to determine what services were covered by a BSA. The BSA itself contains no explanation of what services are being provided or the prices for those services. Among other things, the BSA allows AT & T to "change the price for a service" and to "change the terms and conditions of this Agreement." It also allows AT & T to "withdraw a Service upon reasonable notice" and it disclaims warranties and limits AT & T's liability. The Court finds that these provisions are not mutual and do not create a contract between the parties.
The BSA also contains an arbitration provision. Arbitration may not be enforced when it eliminates a party's right to pursue statutory remedies. An exception applies when arbitration forbid[s] the assertion of certain statutory rights. The County argues that the BSA's arbitration provision is defective in several respects.First of all, the County points out that Arkansas law allows counties to pursue legal and equitable remedies in order to enforce contract claims. AT & T counters that its arbitration provision would allow the County to pursue an action in small claims court. The BSA states that "[a]s the exclusive alternative to arbitration, AT & T or You may commence an individual action in Small Claims Court." The Arkansas Supreme Court has established the jurisdiction of Arkansas' inferior courts in Administrative Order No. 18. Small claims court is expressly limited to individuals or Arkansas corporations which have three or less shareholders and precludes the involvement of attorneys. Therefore, neither the County nor AT & T could be parties to a small claims action in Arkansas. The County also points out that it has a claim for declaratory relief. Courts of record have jurisdiction over declaratory judgment actions and the Arkansas Declaratory Judgments Act allows for a jury trial to determine fact questions. If the arbitration provision in the BSA was applied to the dispute in this case, the County would be unable to prosecute its claim in "small claims court" and would have no ability to obtain declaratory relief.
The arbitration provision in the BSA also prohibits any "representative proceeding." Arkansas law provides that the county judge will represent a county in a legal action. Even if the BSA could be construed as a binding contract between the parties, the prohibition of any representative action could prevent the County from obtaining any relief. Therefore, even if some version of the BSA was incorporated into the original agreements between the parties or could be construed as a valid contract between the parties, the arbitration provision would not be enforceable against the County.
For these reasons, the Court hereby denies AT & T's Motion to Compel Arbitration and AT & T's Motion for Stay is hereby denied as moot. [citations omitted].
This appeal followed.
An order denying a motion to compel arbitration is an immediately appealable order. Ark. R. App. P.-Civ. 2(a)(12). This court reviews an order denying arbitration de novo on the record. Alltel v. Rosenow , 2014 Ark. 375, 2014 WL 4656609.
The Federal Arbitration Act (FAA) provides that "[a] written provision in any ... contract evidencing a transaction involving commerce to settle a controversy ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or equity for the revocation of a contract." 9 U.S.C. § 2. In reviewing an arbitration agreement, despite the provision being subject to the FAA, courts look to state contract law to determine whether the parties' agreement to arbitrate is valid. GGNSC Holdings, LLC v. Lamb , 2016 Ark. 101, 487 S.W.3d 348. Arbitration agreements are simply a matter of contract between the parties, and any dispute is a matter of contract construction. Courtyard Gardens Health & Rehab., LLC v. Quarles , 2013 Ark. 228, 428 S.W.3d 437. The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally; thus, this court will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. Id. The construction and legal effect of a written contract to arbitrate are to be determined by this court as a matter of law. Id. Although we are not bound by the trial court's decision, in the absence of showing that the trial court erred in its interpretation of the law, the trial court's decision will be accepted as correct on appeal. Diamante v. Dye , 2013 Ark. App. 630, 430 S.W.3d 196. The essential elements for an enforceable arbitration agreement are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. GGNSC Holdings, supra.
Our supreme court has repeatedly stated that the threshold inquiry is whether an agreement to arbitrate exists; that is, whether there has been mutual agreement with notice as to the terms and subsequent assent. Alltel Corp. v. Sumner , 360 Ark. 573, 203 S.W.3d 77 (2005). In deciding whether a valid contract was entered into, this court keeps in mind the following two legal principles: (1) a court cannot make a contract for the parties but can only construe and enforce the contract that they have made; and if there is no meeting of the minds, there is no contract; and (2) it is well settled that in order to make a contract there must be a meeting of the minds as to all terms, using objective indicators. Id. Both parties must manifest assent to the particular terms of the contract. Id.
If the trial court finds that a valid agreement to arbitrate exists, then the trial court must determine whether the dispute falls within the scope of the arbitration agreement. Bank of the Ozarks, Inc. v. Walker , 2014 Ark. 223, 434 S.W.3d 357. Even if a court finds that an arbitration agreement exists and that the dispute falls within the scope of the arbitration agreement, the court may still declare an arbitration agreement unenforceable "upon such grounds as exist at law or in equity for the revocation of any contract." Id. (quoting Federal Arbitration Act, 9 U.S.C. § 2 ).
In this appeal, AT & T raises two arguments challenging the trial court's order denying arbitration. First, it contends that the trial court erred in concluding that a contract to arbitrate was never formed by AT & T and Clark County. Next, it argues that the trial court erred in invalidating the arbitration provision on the ground that it deprived Clark County of its right to pursue state statutory remedies.
In support of its first argument, AT & T cites Hart v. McChristian , 344 Ark. 656, 42 S.W.3d 552 (2001), where our supreme court stated that, as a matter of public policy, arbitration is strongly favored and that arbitration is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation. AT & T argues that the parties in this case agreed to binding arbitration because the 2010 documents signed by the Clark County judge incorporated by reference the BSA, which contains the arbitration agreement. AT & T submits that, per the terms of the Service Agreement and the Volume Plan, the agreements became subject to the BSA in 2013 after the services became de-tariffed.
AT & T further submits that, when it notified Clark County of the de-tariffing and applicability of the BSA in 2013, AT & T was not unilaterally modifying the contract. AT & T asserts that this notice merely informed Clark County of what the parties had already agreed to, i.e., if no tariff applied to the services, then the previously dormant BSA would govern. AT & T additionally argues that, even if its 2013 notice could be deemed a modification of the agreement, it was nonetheless valid because the notice communicated to Clark County that if no action was taken Clark County would be subject to the BSA. AT & T asserts that a manifestation of assent may be made wholly by conduct, and that Clark County's conduct of accepting the offer and continuing to receive services manifested its assent to the terms of the BSA.
AT & T's remaining argument is that the trial court erred in finding that the arbitration provision was unenforceable because it eliminated Clark County's right to pursue statutory remedies under Arkansas law. AT & T cites AT & T Mobility, LLC v. Concepcion , 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), where the United States Supreme Court held that when state law prohibits outright the arbitration of a particular type of claim, the conflicting rule is displaced by the FAA. AT & T asserts that although the FAA does not preempt federal statutory rights, this rule does not apply to state statutory rights. See Coneff v. AT & T Corp. , 673 F.3d 1155 (9th Cir. 2012). Therefore, AT & T concludes, any principle of Arkansas law exempting Clark County's claims from arbitration would be preempted by federal law.
Our discussion will be limited to point one. For a party to assent to a contract, the terms of the contract, including an arbitration agreement, must be effectively communicated. Asset Acceptance, LLC v. Newby , 2014 Ark. 280, 437 S.W.3d 119. Therefore, appellant was required to produce specific evidence that appellee was subject to the contract and demonstrate that the arbitration clause was communicated to appellee and that it assented to that clause. See id. We hold that AT & T failed in its burden to show that the arbitration clause was communicated to Clark County or that Clark County assented to it.
When a contract refers to another writing and makes the terms of that writing a part of the contract, the two documents become a single agreement between the parties and must be construed together. Ingersoll-Rand Co. v. El Dorado Chem. Co. , 373 Ark. 226, 283 S.W.3d 191 (2008). AT & T argues that the 2010 documents signed by the Clark County judge incorporated the terms of the BSA, effectively making the two documents a single agreement. However, in order to incorporate a separate document by reference into a contract, the reference must be clear and unequivocal , and the terms of the incorporated document must be known or easily available to the contracting parties. Ingersoll-Rand, supra. Furthermore, it must be clear that the parties to the agreement had knowledge of and assented to the incorporated terms. Id.
The two documents at issue herein clearly state at the top of each document:
? Pricing Schedule to AT & T Agreement Reference No. ___
? Confirmation of Service Order
If neither box above is checked then this document is a standalone confirmation of service order.
(Emphasis added.) Neither of the above boxes was checked by AT & T on either document. Therefore, by the explicit terms of the agreements, these agreements were not "Pricing Schedules to AT & T Agreement Reference No. ___" nor were these agreements "Confirmation of Service Orders." The explicit terms of each agreement make these documents "standalone Confirmation of Service Orders." Each AT & T document provides further:
If this document serves as a confirmation of service order (as indicated above) , the confirmation of service order is subject to: (a) the terms of the applicable Tariff, if the service is offered pursuant to Tariff; or (b) the AT & T Business Service Agreement (BSA), if the service is not offered pursuant to Tariff.
(Emphasis added.)
As stated previously, it was AT & T's burden to demonstrate that Clark County was subject to and assented to the terms of the BSA containing the arbitration clause AT & T sought to enforce. The documents, which AT & T drafted, clearly provide boxes to be checked if the order is to be deemed a "Confirmation of Service Order," and these boxes could have been, but were not, checked. The documents were signed by AT & T on behalf of a contract specialist, who declined to check any boxes. Had the "Confirmation of Service Order" box been checked, then by the terms of the contract, the parties may have been subject to the applicable tariff or BSA (if service was not offered pursuant to a tariff). However, this box was not checked on either document, making these documents by their own terms "standalone Confirmation of Service Orders." The phrase "standalone Confirmation of Service Order" is not defined in the documents. The term "standalone" implies that the parties need not look to some other document to determine if there are other applicable terms. AT & T contends that there is no difference between a "Confirmation of Service Order" and a "standalone Confirmation of Service Order," and that to construe these orders to be not subject to the BSA would produce an absurd result. However, our inquiry is whether the documents clearly and unequivocally incorporate by reference the BSA, and whether it was clear that Clark County assented to the terms of this allegedly incorporated document. At the very least, the AT & T documents are ambiguous in this respect, and our supreme court has held that ambiguities in a contract are construed strictly against the drafter. See Sturgis v. Skokos , 335 Ark. 41, 977 S.W.2d 217 (1998). Because the BSA is implicated only if the 2010 documents constitute "Conformation of Service Orders," and they are instead "standalone Confirmation of Service Orders," we hold that AT & T failed to show that there was a meeting of the minds and that Clark County had assented to the BSA.
AT & T, however, also argues that, even if the 2010 documents did not incorporate the BSA as part of the contract when it was executed, the terms were modified to include the BSA by the conduct of the parties in 2013 when the services were de-tariffed. AT & T does agree that a provision requiring arbitration is a material term to an agreement. AT & T relies on the notice it allegedly sent to Clark County regarding the application of the BSA and Clark County's alleged acquiescence to this modification.
Fundamental principles of contract law require that both parties to a contract agree to any modification of the contract. Van Camp v. Van Camp , 333 Ark. 320, 969 S.W.2d 184 (1998). Unless otherwise provided by statute, it is not essential that the mutual assent of the parties to modify the contract be express, and it may be implied from acts and circumstances. 17A C.J.S. Contracts § 561 (2018). The manifestation of assent may be made wholly or partly by acts or by failure to act. Id.
We conclude, for several reasons, that AT & T failed to produce sufficient evidence that the parties agreed to modify their contract to include the terms of the BSA. First, AT & T did not offer proof that it mailed any notification of the proposed modification to Clark County. Instead, AT & T only submitted an affidavit of an employee stating that "customers" were informed of the de-tariffing and application of the BSA, with an attached copy of a form letter addressed to "Valued AT & T Business Customer." However, this was insufficient to demonstrate that a copy of this letter was actually mailed to Clark County or that the appropriate official received it. Moreover, the form letter provided that if the customer did not agree to the terms of the BSA, it must contact AT & T no later than October 1, 2013. Because AT & T did not show that the letter was sent to Clark County at all, it certainly failed to demonstrate that Clark County received it in time to contemplate the alleged modification and opt out. Finally, even had there been proof that AT & T timely sent this notice to Clark County, the letter provided, "[E]ffective October 1, 2013, if you are a retail customer, AT & T business telecommunications services to which you subscribe (unless you have an applicable written agreement ) will be offered under the terms and conditions of the enclosed Business Services Agreement (BSA)." (Emphasis added.) Again, an AT & T document contains an ambiguous phrase, "applicable written agreement." AT & T contends that Clark County did not have an applicable written agreement as intended by the notice. However, Clark County contended that it did have applicable written agreements with AT & T in the form of the Service Agreement and the Volume Plan, neither of which clearly manifested its assent to the BSA. Clark County, therefore, concludes that the above provision would not have put Clark County on notice that its agreement was being modified to include the BSA. We agree with Clark County that, based on the terms of the AT & T notice, Clark County did not agree to a modification of its agreements with AT & T.
Because AT & T failed to demonstrate it communicated the arbitration clause to Clark County or that Clark County assented to it, we affirm the trial court's order denying AT & T's motion to compel arbitration. Because we affirm on this basis, we need not address the trial court's alternate finding that the arbitration clause infringed on Clark County's state statutory remedies.
Affirmed.
Gruber, C.J., and Whiteaker, J., agree.
It is undisputed that the tariff did not contain an arbitration clause.
We do not express any opinion on whether the provision would be enforceable if the applicable box had been checked, as that issue is not within the scope of our decision. | [
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JOHN DAN KEMP, Chief Justice
Appellant Derrick Lynell Harris appeals from the Drew County Circuit Court's order denying him a resentencing hearing and imposing a sentence of life with parole eligibility pursuant to the Fair Sentencing of Minors Act of 2017 (FSMA). We reverse and remand.
In 1996, Harris was found guilty by a Drew County jury of capital murder. The capital-murder statute in effect at the time of Harris's offense provided for a sentence of either death or life imprisonment without parole. See Ark. Code Ann. § 5-10-101(c) (Supp. 1995). Because Harris was fifteen years old when he committed the crime, he was ineligible for the death penalty. See Thompson v. Oklahoma , 487 U.S. 815, 838, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion) (holding that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who was under sixteen years of age at the time of his or her offense). Thus, he was sentenced to a mandatory term of life imprisonment without the possibility of parole. See Harris v. State , 331 Ark. 353, 961 S.W.2d 737 (1998) (affirming conviction and sentence).
In 2012, the Supreme Court of the United States held that the Eighth Amendment prohibits a sentencing scheme that requires life in prison without the possibility of parole for juvenile offenders. Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Harris petitioned for writ of habeas corpus under Miller , and the Jefferson County Circuit Court issued the writ in 2016. The circuit court vacated Harris's mandatory sentence of life without parole and remanded for resentencing. On remand, and pursuant to the FSMA, the Drew County Circuit Court summarily resentenced Harris to life imprisonment with the possibility of parole after thirty years.
Harris contends that the FSMA does not apply to him, and therefore, he is entitled to resentencing pursuant to this court's decisions in Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906, and Kelley v. Gordon , 2015 Ark. 277, 465 S.W.3d 842. Further, he raises numerous constitutional challenges to the FSMA. We begin with a discussion of pertinent case law and legislative enactments.
I. Juvenile Sentencing
A. Case Law
On June 25, 2012, the Supreme Court handed down its decision in Miller v. Alabama and a companion case from Arkansas, Jackson v. Hobbs . Each case involved a fourteen-year-old offender convicted of murder and sentenced to mandatory life in prison without parole. Relying on its line of precedent holding that certain punishments are disproportionate when applied to juveniles, the Court held that mandatory life without parole for juvenile offenders violates the Eighth Amendment's prohibition on "cruel and unusual punishments." Miller , 567 U.S. at 465, 132 S.Ct. 2455. The Court explained that
[m]andatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him-and from which he cannot usually extricate himself-no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
Id. at 477-78, 132 S.Ct. 2455 (internal citations omitted). Accordingly, the Court held that defendants who committed homicide crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing hearing that would permit the judge or jury to consider the individual characteristics of the defendant and the individual circumstances of the crime as mitigating factors for a lesser sentence. Id. at 489, 132 S.Ct. 2455. Because the mandatory life-without-parole sentencing schemes in Alabama and Arkansas violated the Eighth Amendment's ban on cruel and unusual punishment, the Court reversed the judgments of this court and the Alabama Court of Criminal Appeals and remanded the cases for further proceedings. Id.
On remand in Jackson v. Norris , we rejected the State's argument that the Eighth Amendment violation could be cured by severing the capital-murder statute, Arkansas Code Annotated section 5-10-101(c) (Repl. 1997), to provide for a sentence of life with parole. 2013 Ark. 175, 426 S.W.3d 906. We explained that the imposition of that sentence would not allow for consideration of Miller evidence. Id. , 426 S.W.3d 906. Instead, we severed language from the statute "so that, for juveniles convicted of capital murder, all that remain[ed] [was] that capital murder is a Class Y felony." Id. , at 7-8, 426 S.W.3d at 910. We remanded the case for a sentencing hearing at which Jackson could present Miller evidence for consideration and instructed that Jackson's sentence must fall within the discretionary sentencing range for a Class Y felony, which is ten to forty years or life. Id. at 9, 426 S.W.3d at 911 (citing Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997) ); see also Whiteside v. State , 2013 Ark. 176, 426 S.W.3d 917 (reversing juvenile offender's capital-murder sentence and remanding to the circuit court for resentencing within the discretionary statutory-sentencing range for a Class Y felony and directing that a sentencing hearing be held for presentation and consideration of Miller evidence).
After Jackson obtained relief, other " Miller defendants" sought resentencing. The State took the position that Miller did not apply retroactively to cases on collateral review. We disagreed, and in Kelley v. Gordon , 2015 Ark. 277, 465 S.W.3d 842, cert. denied , --- U.S. ----, 136 S.Ct. 1378, 194 L.Ed.2d 361 (2016), we held that, as a matter of "fundamental fairness and evenhanded justice," Miller applied to all juvenile offenders convicted of capital murder. Id. at 7, 465 S.W.3d at 846. In doing so, we stated that Gordon was entitled to the same relief from his unconstitutional sentence as Jackson received-namely, a sentencing proceeding at which he will have the opportunity to present Miller evidence. Id. , 465 S.W.3d at 846. Consequently, we affirmed the circuit court's order vacating Gordon's life-without-parole sentence and reinvesting the sentencing court with jurisdiction to hold a new sentencing hearing under Miller . Id. , 465 S.W.3d at 846.
After this court decided Gordon , the Supreme Court resolved a split of authority and held that Miller's prohibition on mandatory life without parole for juvenile offenders is retroactive to cases on collateral review. Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). The Court noted that giving Miller retroactive effect "does not require States to relitigate sentences ... in every case where a juvenile offender received mandatory life without parole." Id. at 736. Rather, the Court indicated that states could "remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." Id.
B. Acts of the Arkansas General Assembly
Since the Supreme Court handed down its decision in Miller , the Arkansas General Assembly has twice revised the punishment authorized for juveniles convicted of capital murder. In 2013, the legislature passed Act 1490, which provided for two alternative sentences for a juvenile convicted of that offense: life imprisonment without parole or life with the possibility of parole after serving a minimum of twenty-eight years' imprisonment. See Act of Apr. 22, 2013, No. 1490, §§ 2-3, 2013 Ark. Acts 6587, 6588-89. Act 1490 did not apply retroactively. Id. § 1, 2013 Ark. Acts at 6588.
Following the Supreme Court's Montgomery decision, the legislature passed the FSMA to "eliminate life without parole as a sentencing option for minors and to create more age-appropriate sentencing standards in compliance with the United States Constitution for minors who commit serious crimes." See Act of Mar. 20, 2017, No. 539, § 2(c), 2017 Ark. Acts 2615, 2617. The FSMA authorizes only one punishment for juvenile offenders convicted of capital murder: life with the possibility of parole after serving a minimum of thirty years' imprisonment. See FSMA § 3 (codified at Ark. Code Ann. § 5-4-104(b) (Supp. 2017) ), and § 6 (codified at Ark. Code Ann. § 5-10-101(c) (Supp. 2017) ). In addition, the parole-eligibility provision of the FSMA states that it "applies retroactively to a minor whose [first-degree murder or capital-murder] offense was committed before he or she was eighteen (18) years of age, including minors serving sentences of life, regardless of the original sentences that were imposed." FSMA § 13 (codified at Ark. Code Ann. § 16-93-621(a)(2)(B) (Supp. 2017) ). The Act provides that all juvenile offenders sentenced to imprisonment are entitled to a parole-eligibility hearing at which the parole board shall take into consideration, among other things, Miller evidence and evidence of rehabilitation. Id. (codified at Ark. Code Ann. § 16-93-621(b) (Supp. 2017) ). The emergency clause of the FSMA states that "more than one hundred persons in Arkansas are entitled to relief" under the Miller and Montgomery decisions and that the Act is "immediately necessary in order to make those persons eligible for parole." FSMA § 14.
II. Proceedings in Harris's Case
Having summarized the relevant juvenile-sentencing law, we turn to the proceedings in Harris's case. As previously noted, following the issuance of a writ of habeas corpus, the Jefferson County Circuit Court vacated Harris's life-without-parole sentence and remanded the case to the Drew County Circuit Court for resentencing. The resentencing hearing was set for May 2017. On March 22, 2017, two days after the FSMA was passed, the State filed a "Motion to Discontinue Resentencing." The State argued that the FSMA "retroactively established" parole eligibility for Harris and other similarly situated minors sentenced to life imprisonment without parole for capital murder. The State further argued that, because Harris's parole eligibility would be calculated by the FSMA, the issue of resentencing was moot. Finally, the State contended that the prior order vacating Harris's original sentence should be withdrawn.
Harris filed a response to the State's motion and argued that he was entitled to a resentencing hearing under this court's precedent in Jackson and Gordon because he was similarly situated to the defendants in those cases. He contended that the retroactive parole-eligibility provision of the FSMA was inapplicable to him because his life sentence had been vacated and he currently had no sentence of imprisonment to which parole eligibility could attach. Harris further contended that the substantive penalty provision of the FSMA for juvenile offenders convicted of capital murder-life imprisonment with parole eligibility after thirty years-was not retroactive and thus did not apply to him.
On May 3, 2017, the State filed a motion for determination of the sentencing range. The motion noted that Harris objected to the retroactivity of the FSMA and stated that if the Act was not retroactive, then Harris should be sentenced in accordance with this court's decision in Jackson , which provided a range of ten to forty years' imprisonment or life.
Harris then filed a motion for resentencing under Jackson and Gordon and asserted that the circuit court should grant him a resentencing hearing to present Miller evidence, then resentence him within the discretionary range of ten to forty years or life. He further asserted that applying the current punishment under the FSMA would violate Jackson and Gordon , the purpose of the FSMA, and a host of federal and state constitutional provisions.
The circuit court held a hearing on May 8, 2017. The State argued that, pursuant to the FSMA, Harris should be sentenced to life with the possibility of parole after thirty years. Harris reiterated his argument that he was entitled to resentencing pursuant to this court's decision in Jackson . He maintained that the parole-eligibility provision of the FSMA was inapplicable to him because his sentence had been vacated and that the penalty provision of the FSMA was inapplicable to him because it was not retroactive. The circuit court ruled that the FSMA applied to Harris and sentenced him to a term of life with the possibility of parole after thirty years. A new sentencing order was entered, and Harris timely filed a notice of appeal.
III. Arguments and Analysis
On appeal, Harris contends that his case is controlled by the precedent set forth in Jackson and Gordon and that the FSMA does not apply to him. Further, he raises constitutional challenges to the FSMA. To resolve the issues in this case, we must construe the FSMA. The question of the correct application and interpretation of an Arkansas statute is a question of law which this court decides de novo. E.g. , Worsham v. Bassett , 2016 Ark. 146, 489 S.W.3d 162.
In arguing that the FSMA applies to Harris, the State primarily relies on a provision of the act that sets forth parole eligibility for juveniles. This provision is codified at Arkansas Code Annotated section 16-93-621, which is entitled "Parole eligibility-A person who was a minor at the time of committing an offense that was committed before, on, or after March 20, 2017." See FSMA § 13. Section 16-93-621(a)(2), which pertains to those juveniles who committed capital and first-degree murder, states,
(2)(A) A minor who was convicted and sentenced to the department for an offense committed before he or she was eighteen (18) years of age, in which the death of another person occurred, and that was committed before, on, or after March 20, 2017, is eligible for release on parole no later than after twenty-five (25) years of incarceration if he or she was convicted of murder in the first degree, § 5-10-102, or no later than after thirty (30) years of incarceration if he or she was convicted of capital murder, § 5-10-101, including any applicable sentencing enhancements, unless by law the minor is eligible for earlier parole eligibility.
(B) Subdivision (a)(2)(A) of this section applies retroactively to a minor whose offense was committed before he or she was eighteen (18) years of age, including minors serving sentences of life, regardless of the original sentences that were imposed.
The State argues that the legislature clearly intended for this provision to apply retroactively to juvenile offenders who committed their crimes before the effective date of the FSMA. However, by its plain language, the provision applies only to those juvenile offenders who are serving a sentence for either capital or first-degree murder. Here, Harris's sentence was vacated in 2016. Thereafter, Harris was no longer serving a sentence to which parole eligibility could attach. Accordingly, we hold that the parole-eligibility provision of the FSMA did not apply to Harris at the time of his May 8, 2017 hearing.
Moreover, the penalty provisions of the FSMA do not apply in this case. Section 3, which concerns the authorized sentences for capital murder or treason, amended Arkansas Code Annotated section 5-4-104(b) to read that "if the defendant was younger than eighteen (18) years of age at the time he or she committed the capital murder or treason [then] he or she shall be sentenced to life imprisonment with the possibility of parole after serving a minimum of thirty (30) years' imprisonment." FSMA § 3. Section 6 of the Act, which concerns the punishment for capital murder, amended Arkansas Code Annotated section 5-10-101(c) to provide that if the defendant was younger than eighteen years of age at the time he or she committed the capital murder, the punishment is life imprisonment with the possibility of parole after serving a minimum of thirty years' imprisonment. FSMA § 6.
Since the enactment of the criminal code, this court has consistently held that sentencing shall be in accordance with the statute in effect at the time of the commission of the offense. See, e.g. , Cody v. State , 326 Ark. 85, 929 S.W.2d 159 (1996). In addition, this court has observed a strict rule of construction against retroactive operation, and we indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively. E.g. , Bean v. Office of Child Support Enf't , 340 Ark. 286, 9 S.W.3d 520 (2000). The rule of prospectivity applies unless "the intention of the legislature to make the statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown by necessary implication or by terms which permit no other meaning to be annexed to them, and which preclude all question in regard thereto, and leave no reasonable doubt thereof." Estate of Wood v. Ark. Dep't of Human Servs. , 319 Ark. 697, 700-01, 894 S.W.2d 573, 575 (1995). Further, we have held that in the absence of an express statement that a sentencing statute will apply retroactivel y, the statute will apply prospectively only. See State v. Murphy , 315 Ark. 68, 864 S.W.2d 842 (1993).
Here, we find no general retroactivity provision in the FSMA, nor is there one attached to the penalty provisions of the Act. Therefore, we conclude that the legislature did not intend for the penalty provisions to apply retroactively. See State v. Ross , 344 Ark. 364, 39 S.W.3d 789 (2001) (noting that sentencing is controlled entirely by statute and stating that only when the General Assembly expressly provides that an act should be applied retroactively will we do so).
Our conclusion is bolstered by the fact that the legislature expressly stated its intent that other sections of the FSMA apply retroactively, regardless of the date of the commission of the criminal offense. See FSMA §§ 9-13 (amending title 16, chapter 93 to provide parole eligibility to a person who was a minor at the time of committing an offense "before, on, or after the effective date of this act"). We have recognized that the express designation of one thing may be properly construed to mean the exclusion of another. E.g., Larry Hobbs Farm Equip., Inc. v. CNH Am., LLC , 375 Ark. 379, 291 S.W.3d 190 (2009). Therefore, when the legislature includes retroactivity language in some sections of an act but omits it in other sections of the same act, we may presume that the legislature acted intentionally and purposely in the disparate inclusion or exclusion. See Russello v. United States , 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ; Bolin v. State , 2015 Ark. 149, at 5-6, 459 S.W.3d 788, 791-92 (stating that when there was no "general expression of intent that the whole act should apply retroactively," but a "specific expression of intent" that part of the act applies retroactively, the court could conclude that the only retroactive part of the law was that expressly designated in the act). Had the legislature intended for the penalty provisions in sections 3 and 6 to be retroactive, it could have included language to that effect as it did for the parole-eligibility provisions in sections 9-13. See Bolin , 2015 Ark. 149, 459 S.W.3d 788.
Finally, although the FSMA contains an emergency clause and therefore became effective on March 20, 2017, we find no language in the clause that expressly states or necessarily implies that the penalty provisions of the FSMA apply retroactively. Based on the foregoing analysis, we hold that the penalty provisions of the FSMA are not retroactive. Therefore, the revised punishment for juveniles convicted of capital murder applies only to crimes committed on or after March 20, 2017, the effective date of the FSMA.
IV. Conclusion
In sum, the relevant provisions of the FSMA are inapplicable to Harris. This leaves him in the same situation as the defendant in Jackson . Therefore, he is entitled to a hearing to present Miller evidence for consideration and sentencing within the discretionary range for a Class Y felony, which is ten to forty years or life. Having determined that the FSMA does not apply in this case, we need not address Harris's remaining arguments on appeal. See, e.g. , Solis v. State , 371 Ark. 590, 269 S.W.3d 352 (2007) (stating that if we can resolve a case without reaching constitutional arguments, it is our duty to do so).
Reversed and remanded.
Wynne, J., concurs.
Wood, J., dissents without written opinion.
Womack, J., dissents.
See Act of Mar. 20, 2017, No. 539, 2017 Ark. Acts 2615.
See also Ark. Code Ann. § 5-4-104(b) (Supp. 1995) (stating that "[a] defendant convicted of capital murder ... shall be sentenced to death or life imprisonment without parole"); Ark. Code Ann. § 5-4-615 (Repl. 1993) (stating that "[a] person convicted of a capital offense shall be punished by death by lethal injection or by life imprisonment without parole").
Harris was born on May 2, 1980. The crime occurred on February 19, 1996.
See, e.g. , Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that a sentence of life without parole violates the Eighth Amendment when imposed on juveniles in nonhomicide cases); Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (barring capital punishment for those under the age of eighteen at the time of their crimes). Roper and Graham established that "children are constitutionally different from adults for purposes of sentencing [b]ecause juveniles have diminished culpability and greater prospects for reform." Miller , 567 U.S. at 471, 132 S.Ct. 2455.
Jackson v. Hobbs was styled Jackson v. Norris on remand.
Act 1490 contained no emergency clause or specified effective date. The 2013 regular session of the General Assembly adjourned sine die on May 17, 2013. Op. Ark. Att'y Gen. No. 049 (2013). Therefore, Act 1490 became effective on August 16, 2013. See Reeves v. State , 374 Ark. 415, 421 n.2, 288 S.W.3d 577, 582 n.2 (2008) (stating that pursuant to amendment 7 of the Arkansas Constitution, acts of the General Assembly that do not carry an emergency clause or specified effective date become effective on the ninety-first day after adjournment of the legislative session at which they were enacted).
Specifically, Harris contended that (1) the legislature did not intend the new sentence for juvenile capital murder to apply retroactively, (2) this court has already held that Miller is not satisfied by summarily resentencing a Miller defendant to life with the possibility of parole, (3) treating a defendant differently than other Miller defendants already resentenced is "patently unfair" and denies "fundamental fairness and evenhanded justice," (4) treating a defendant differently than other Miller defendants already resentenced would violate the federal and state equality clauses, (5) the federal and state ex post facto clauses forbid cutting the punishment range from (a) ten to forty years or life to (b) life only, (6) a defendant is entitled to individualized resentencing by "judge or jury," and a parole hearing does not suffice, (7) retroactively applying the new punishment for juvenile capital murder makes the FSMA an unconstitutional bill of attainder, and (8) applying sections 3 and 6 of the FSMA retroactively makes the statute "special" legislation forbidden by the state constitution. | [
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COURTNEY HUDSON GOODSON, Associate Justice
Appellants Jefferson County Election Commission (CBEC); Stu Soffer, in his official capacity as Jefferson County Election Commissioner; and Michael Adams, in his official capacity as Jefferson County Election Commissioner appeal from the Jefferson County Circuit Court's order granting a petition for writ of mandamus filed by appellee Jefferson County Judge Hank Wilkins ex rel. Jefferson County, Arkansas. For reversal, appellants argue that the circuit court did not have the authority to order them to provide the election coordinator (EC) for Jefferson County with information and access to items necessary to facilitate an election process when the EC has no legal duties to perform with regard to elections. We reverse the circuit court's order.
On July 14, 2017, appellee filed a petition for writ of mandamus or, alternatively, for writ of certiorari against appellants. Appellee alleged in the petition that appellants had refused to cooperate with the Jefferson County EC, William Fox, whom appellee had hired to assist with elections. According to appellee, appellants' refusal to work with the EC had caused problems during the recent tax election, and appellee was concerned that the CBEC would not comply with deadlines associated with the upcoming school board election in September 2017. Appellee requested that the circuit court issue a writ requiring the CBEC to perform its duties and to allow the EC to perform his duties.
After considering appellee's petition, as well as supporting affidavits filed by Fox and Lloyd Franklin II, appellee's chief of staff, the circuit court entered an ex parte temporary restraining order the same day. The court stated that Commissioners Soffer and Adams had prevented Fox from "performing the duties of the office of Election Coordinator" and that mandamus was an appropriate remedy. The court temporarily enjoined the CBEC from interfering with the EC's "performance of the obligations of his office" and ordered it to provide Fox with "all necessary keys, logins, passwords, data, information, and any other items necessary to facilitate the election process."
In appellants' response to the petition, they admitted that appellee had hired Fox as an EC. However, appellants claimed that Fox had interfered with a prior election in Pine Bluff and that after directing Fox to stop, Soffer eventually had to call the sheriff's department. According to appellants, Soffer had the expertise to perform the necessary election-related tasks and that the CBEC had therefore decided not to utilize Fox's services. Appellants indicated that the CBEC is not required to use the services of an EC and asserted that they had complied with all mandatory election deadlines in preparation for the upcoming school-board election.
A hearing was held on appellee's petition on July 26, 2017. Leslie Bellamy, the director of elections for the Arkansas Secretary of State, testified that she had worked with election commissioners, election coordinators, and county clerks for more than twenty years. She indicated that the interaction between commissioners, coordinators, and clerks varies within each individual county and that not every county has an EC. According to Bellamy, the position of EC is not defined in Arkansas law, while there are many statutory duties required of the CBEC. She stated that in counties where an EC is utilized, that person can assist the CBEC with administrative functions such as drafting the ballots, working on the election portal, and organizing supplies for poll workers, although the ultimate responsibility for these tasks rests with the CBEC. Bellamy indicated that a county judge may hire an EC to assist the CBEC but that the CBEC does not have to work with the EC if it chooses not to do so.
Daniel Shults, the attorney for the Arkansas State Board of Election Commissioners, also testified at the hearing. He stated that Arkansas law defines and sets forth specific duties for election commissioners and the CBEC, such as formulating the ballot, appointing poll judges and workers, and controlling and supervising the voting machines. Shults agreed with Bellamy that there is no statutory definition of an EC in Arkansas. He also agreed that the county judge has the authority to hire and supervise all county employees, including an EC. According to Shults, all seventy-five counties handle the division of election-related responsibilities differently, and while some counties delegate certain election tasks to the EC, it is the CBEC, along with county clerks, who have the ultimate authority and duty to conduct an election. Shults indicated that an EC is "simply a creature of convenience" and that he knows of no legal requirement that a CBEC use the services of an EC.
At the conclusion of the hearing, the circuit court instructed the parties to file briefs discussing the duties of the CBEC and the duties of the EC. Both parties filed briefs as directed, and the court entered an order on August 31, 2017, granting appellee's petition for a writ of mandamus. The court found that the EC did not have any statutory duties with regard to elections, that the EC can only perform the duties assigned to him by the CBEC, and that the CBEC can even decline to utilize the services of the EC. Nonetheless, the court concluded that appellee had shown a clear and certain right to the relief sought and that there was no other adequate remedy. The court ordered the CBEC to perform its statutory duties and stated that the CBEC cannot deny the EC access to county property or to information necessary to conduct elections. Appellants filed a timely notice of appeal from the circuit court's order.
On appeal, appellants contend that the circuit court erred by issuing a writ of mandamus ordering them to provide the EC with information and access to items necessary to facilitate elections. Appellants argue that the EC has no legal duties to perform regarding elections except those duties that are assigned to him by the CBEC.
The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. City of North Little Rock v. Pfeifer , 2017 Ark. 113, 515 S.W.3d 593. A petitioner requesting the writ must show a clear and certain right to the relief sought and the absence of any other adequate remedy. Id. We have explained that a mandamus action enforces the performance of a legal right after it has been established and that its purpose is not to establish a right. Springdale Bd. of Educ. v. Bowman , 294 Ark. 66, 740 S.W.2d 909 (1987). Thus, there must be no discretion available to the ordered party regarding whether or not to perform the act. Id.
Appellants argue that because the EC has no established or legal duty to perform any functions associated with an election unless it is delegated the authority to do so by the CBEC, a writ of mandamus was inappropriate in this case. We agree.
There are numerous statutes defining the duties of a CBEC. See, e.g. , Ark. Code Ann. § 7-4-107 (Supp. 2017) (requiring the CBEC to allocate a sufficient number of ballot boxes at each polling site and to appoint election officials); Ark. Code Ann. § 7-5-101 (Supp. 2017) (stating that the CBEC shall establish election precincts and designate polling sites for each precinct); Ark. Code Ann. § 7-5-202 (Supp. 2017) (providing specific directions for the CBEC with regard to public notice of elections); Ark. Code Ann. § 7-5-207 (Supp. 2017) (setting forth requirements that the CBEC must follow in formulating the ballots); Ark. Code Ann. § 7-5-211 (Repl. 2011) (requiring the CBEC to designate persons as ballot custodians); Ark. Code Ann. § 7-5-301(k) (Supp. 2017) (stating that the CBEC shall have complete control and supervision of voting machines and electronic vote tabulating devices at all elections); Ark. Code Ann. § 7-5-611 (Supp. 2017) (providing that the CBEC must program and test the electronic vote tabulating devices); Ark. Code Ann. § 7-5-701 (Supp. 2017) (setting forth the deadlines for the CBEC to certify the election results to the Secretary of State). However, there are no statutory provisions describing the responsibility of an EC. The position of EC is mentioned in only three sections of the Arkansas Code, and not one of these sections assigns any specific election-related duties to the EC. See Ark. Code Ann. § 7-1-101(11) (Supp. 2017) (including an election coordinator in the definition of an "election official" or "election officer"); Ark. Code Ann. § 7-4-109(b)(2)(C) (Supp. 2017) (stating that an election coordinator does not have to be a resident of the precinct or county in which he or she serves); Ark. Code Ann. § 21-5-208 (Supp. 2017) (listing the classification of the position of election coordinator).
The parties also cite two Arkansas Attorney General opinions that discuss the relationship between an EC and a CBEC. In opinion No. 2010-146, the Attorney General indicated that the county judge has the authority to hire, supervise, and fire the EC, as with any other county employee. However, the opinion further stated that the county judge may delegate supervisory authority over the EC to the CBEC; that state law imposes many election responsibilities on the CBEC itself, not on the county in general; and that, by hiring an EC, the quorum court and county judge may not transfer to themselves or to the EC any of the CBEC's statutory election duties or compel the CBEC to use the EC to perform any of its duties. Op. Ark. Atty. Gen. No. 2010-146. Also, in a recent opinion requested by Adams, one of the commissioners in this case, the Attorney General reiterated that it is the county judge, not the CBEC, who has the authority to hire an EC. Op. Ark. Atty. Gen. No. 2017-039. The opinion further notes, however, that the duties of an EC are not defined by statute and that there is no statutory authority addressing how that position is established. Id. While Attorney General opinions are not binding on this court, we have held that they can be persuasive. Mississippi Cty. v. City of Blytheville , 2018 Ark. 50, 538 S.W.3d 822.
In addition to the statutes and the Attorney General opinions discussed above, appellants' contention that an EC has no specific legal duties with regard to conducting elections is further supported by the testimony of both Bellamy and Shults, who indicated that not all counties hire an EC and that it is in the CBEC's discretion whether or not to utilize the services of an EC. The circuit court even recognized in its order that the EC can only perform duties assigned to him by the CBEC. Accordingly, appellants are correct that there is no clearly established right or duty of the EC in this case to election-related information or items that would warrant the issuance of a writ of mandamus. See Pfeifer , supra. Further, while the circuit court's order also directed the CBEC to "perform its statutory duties," there was no evidence introduced at the hearing to show that the CBEC had failed to do so, nor did the court make any findings that would support the writ of mandamus on that basis.
Appellee also asserts that the circuit court's order may be affirmed based on his alternative request for a writ of certiorari. A petition for writ of certiorari may be granted when there is no other adequate remedy but for the writ. McCain Mall Co. LP v. Pulaski Cty. Cir. Ct. , 2016 Ark. 279, 495 S.W.3d 625. In addition, the petitioner must show that there has been a plain, manifest, clear, and gross abuse of discretion; that there is a lack of jurisdiction or an act in excess of jurisdiction; or that the proceedings are erroneous on the face of the record. Id.
For the same reasons set forth above with regard to the writ of mandamus, appellee cannot demonstrate that, on the face of the record, the CBEC has abused its discretion by refusing to use the services of the EC, that it has acted without or in excess of jurisdiction, or that the actions of the CBEC are erroneous. We therefore reverse the circuit court's order granting the writ.
Reversed.
Hart and Wood, JJ., dissent.
Josephine Linker Hart, Justice, dissenting.
I dissent. The majority characterizes the election commissioners' (the commissioners) conduct as though they simply declined to utilize the services of an election coordinator (the coordinator). Because there is no statute requiring the commissioners to utilize the services of the coordinator, the majority holds that it was therefore improper for the circuit court to issue the writ of mandamus, as the purpose of a writ of mandamus is to enforce an established right or duty. City of N. Little Rock v. Pfeifer , 2017 Ark. 113, 515 S.W.3d 593. I submit that this characterization of the commissioners' alleged conduct in this case is inadequate.
An important detail omitted from the majority opinion is the very reason why the commissioners were refusing to work with the coordinator. According to appellee's petition, the commissioners, who had already missed one election deadline, were continuing to refuse to perform their election-related responsibilities until they were paid for services they had allegedly performed outside official commission meetings. Furthermore, the commissioners refused to cooperate with the coordinator in order to prevent him from performing those responsibilities in their stead. Not only did the election commissioners decline to work with the coordinator, they affirmatively denied the coordinator access to county property. The coordinator was duly hired as a county employee by the county judge to handle election-related responsibilities. There is a profound distinction between the commissioners' simply declining to work with the coordinator and the commissioners' affirmatively preventing the coordinator from performing the responsibilities the county judge hired him to perform.
These facts are important, especially considering that the viability of the county election process in Arkansas necessarily depends on the commissioners' cooperation with county employees. As the circuit court pointed out, while several statutes prescribe the responsibilities of the commissioners, the commissioners largely lack any independent ability to carry out those responsibilities. The commissioners have no authority to hire employees or to set compensation for county employees, nor do they have any independent power to own property, file lawsuits, contract for services, or perform many other election-related support services.
Additionally, our caselaw directs us to afford the circuit court some deference in these situations. The standard of review of a circuit court's decision to grant or deny a petition for writ of mandamus is whether the circuit court abused its discretion. Pfeifer , 2017 Ark. 113, at 5, 515 S.W.3d at 596 (citing Dobbins v. Democratic Party of Ark. , 374 Ark. 496, 288 S.W.3d 639 (2008) ). A circuit court abuses its discretion when it makes a decision that is arbitrary or capricious. Id. (citing Ortho-McNeil-Janssen Pharms., Inc. v. State , 2014 Ark. 124, 432 S.W.3d 563 ).
Here, the circuit court was careful to craft its order with narrow specificity, and it supported its decision with five pages of legal authority and application to the specific facts of this case. The order contains only three limited directives: (1) the commissioners must comply with their "statutory duties," (2) the commissioners cannot deny the coordinator access to information he needs to perform his job, and (3) the commissioners cannot deny the coordinator access to county property. These commissioners had already missed one election deadline, and they were threatening to miss another. In light of the circumstances, I see nothing about the circuit court's order that could be even tenuously characterized as "arbitrary or capricious." Furthermore, to the extent there could potentially be a conflict between the election commissioners' statutorily designated responsibilities and the responsibilities the election coordinator was hired to perform, said potential conflict is not adequately developed in the record.
I would affirm. | [
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BART F. VIRDEN, Judge
Kenneth J. Clark appeals the Carroll County Circuit Court's order that two trust assets must be reappraised and the assets of the trust redistributed accordingly. We dismiss without prejudice for lack of a final order.
In 1997, Kenneth B. Clark and Melva Clark, husband and wife, executed a trust and named their four children, Kenneth J. Clark (Kenneth J.), Melva Jean Summers, Cora A. Clark, and Barbara R. McClenathan, as beneficiaries. The trust named Kenneth J. as the successor trustee upon the death of both parents. The trust owned a one-half interest in a 360-acre tract of land (parcel 1) and full interest in a 100-acre tract of land (parcel 2). The value of these assets is the crux of the parties' dispute.
In 2012 Melva Clark died, and pursuant to the language of the trust, the decedent's share of parcel 1 was transferred into the surviving grantor's "survivor's trust." Kenneth J. and his father drew up an agreement that, for the purpose of transferring the asset to the survivor's trust, set the value of parcel 1 at $180,000.
In 2013, Kenneth B. Clark passed away. The trust directs that on the death of both grantors, Kenneth J. shall distribute the interest in parcel 1 to himself and his wife, Peggy Clark. The trust also sets forth that
[t]he Trustee shall determine the value of the property being distributed to KENNETH J. CLARK and PEGGY CLARK as set forth in paragraph C above [parcel 1]. The Trustee shall then pay an equal sum to MELVA JEAN SUMMERS, CORA A. CLARK, and BARBARA R. McCLENATHAN. Any remaining assets shall be divided into four (4) equal shares and distributed in equal shares to each of the four (4) children per stirpes. It is the intention of the Grantors to make equal gifts to their children except that Kenneth Jay Clark is to receive specific property.
Upon his father's death, Kenneth J. paid the trust $180,000 for parcel 1 and distributed the proceeds of the transfer to himself and each of his siblings. Each of the four beneficiaries received $45,000. Kenneth J. decided to purchase parcel 2 from the trust as well, and he had it appraised. The value of parcel 2 was estimated to be $240,000. Kenneth J. sold the parcel to himself and distributed a one-quarter share of the proceeds-$60,000-to each of his siblings and to himself.
Summers filed a motion for declaratory judgment in which she alleged that Kenneth J. undervalued parcel 1 and parcel 2, which resulted in distribution of a larger portion of the trust assets to himself. Summers requested that the circuit court require a new appraisal of parcel 1 by a mutually agreed-upon appraiser, that the circuit court order Kenneth J. to repay the trust for the unequal distribution of assets from the sale of parcel 1 to himself, that the circuit court cancel the sale of parcel 2 and refund Kenneth J. the money, and that the circuit court require Kenneth J. to distribute the trust property equally to all four beneficiaries.
On April 7, 2017, after a hearing in which the parties presented evidence regarding the value of the land and argument regarding the language of the trust, the circuit court entered an order. The circuit court found that the intent of the trust was to equally divide the assets of the trust to the grantors' four children and that Kenneth J. breached his fiduciary duty as trustee by not properly valuing parcel 1. The circuit court also found that it was impossible to determine the value of the parcels based on the testimony, and it ordered new appraisals performed by an agreed-upon appraiser.
On appeal, Kenneth J. asserts that the circuit court erred by ruling that he breached the terms of the trust and breached his fiduciary duty by valuing parcel 1 at $180,000 and that the circuit court erred by ordering new appraisals of the property. Kenneth J. argues that the trust allows him to determine the value of the assets and that adequate consideration is not required for the distribution of assets.
We must first address the preliminary issue of whether this appeal involves a final, appealable order. When the order appealed from is not final, this court will not decide the merits of the appeal. Kines v. McBride , 2017 Ark. App. 40, at 3, 511 S.W.3d 352, 354. The finality of an order is a jurisdictional question that we have the right and duty to raise in order to avoid piecemeal litigation. Toney v. White , 31 Ark. App. 34, 787 S.W.2d 246 (1990). Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by a circuit court. For an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Toney, supra. Rule 2(a)(12) also sets forth that an order is appealable if it is pursuant to Arkansas Code Annotated section 28-1-116 (Repl. 2012), which sets forth that all orders in probate cases, except 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, are appealable.
Kenneth J. argues that
[t]his is an action in which the Arkansas Probate Code is implicated.... Additionally, the Order in this case included "findings regarding probate matters," particularly the findings regarding whether Mr. Clark had violated his fiduciary duties, and whether Ms. Summers had triggered the no-contest clause.... Because this Court has held that "[v]irtually all probate orders are appealable," Mr. Clark timely filed his Notice of Appeal and Designation of the Record on May 5, 2017.
(Citations omitted.)
First, we agree that Arkansas Code Annotated section 28-1-116 indeed governs probate matters, which Rule 2 dictates are appealable; however, trust matters are governed by Arkansas Code Annotated sections 28-73-101 to -1106, and these statutes are not designated by Rule 2 as appealable. Furthermore, trust matters have not historically been cognizable as probate matters. See Vaught v. Vaught , 71 Ark. App. 196, 198, 29 S.W.3d 365, 366-67 (2000) (the construction, interpretation, and operation of trusts are matters that lie within the jurisdiction of chancery courts.) It is important to note that our supreme court has recently held in In re Matter of Hamilton Living Trust , 2015 Ark. 367, 471 S.W.3d 203, that a circuit court's order granting a trust beneficiary's claim for an accounting against the purported successor trustee was appealable as a final judgment or decree pursuant to Rule 2(a)(1) ; however, in that case, the parties were dismissed from court, the action was discharged, and the rights to the subject matter were concluded. In the instant case, no parties have been dismissed, the action has not been discharged, and the rights to the subject matter have not been concluded because the value of the two parcels of land are still unknown, and the value of each beneficiaries' share is unknown. As we stated above, the purpose of requiring a final order is to avoid piecemeal litigation, and to allow this appeal to proceed would almost certainly lead to just that. See Blackman v. Glidewell , 2011 Ark. 23, at 4, 2011 WL 291938.
Dismissed without prejudice.
Abramson and Whiteaker, JJ., agree. | [
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WAYMOND M. BROWN, Judge
Appellant Alice McCutchen appeals the July 14, 2017 opinion of the Arkansas Workers' Compensation Commission (Commission) affirming the February 3, 2017 opinion of the administrative law judge (ALJ) finding that appellant failed to prove by a preponderance of the credible evidence that she sustained a compensable right-knee injury on May 9, 2016. Appellant's sole argument on appeal is that substantial evidence does not support the Commission's finding. We affirm.
Appellant began working for Human Development Center (HDC) in 2013 as a food-prep specialist. Her duties included cooking, cleaning, sweeping, prepping the food, and answering the telephone. She was working in that capacity on May 9, 2016, on the 9:00 a.m.-5:30 p.m. shift. On May 9, between 2:45 and 5:00, she claims that she injured herself while on break. More specifically, she contends that while she was preparing to eat a sandwich, the stool she was attempting to sit on moved, causing her to fall and land on top of it. After the fall, she received a phone call requiring her to prepare a salad and fix cheese dip for a client. She completed her duties, including cleaning the kitchen, and left. Appellant subsequently went to church. While standing at church talking to someone, appellant felt a "crack" and immediately noticed pain and swelling in her right knee. She went to the emergency room on May 10 and reported the injury to HDC that same day. Appellant had an MRI performed on May 19, 2016, which revealed a meniscal tear, osteoarthritis, synovitis, and chondromalacia. She underwent surgery on July 1, 2016, and the history from that date indicated that appellant had experienced some prior right-knee pain, but that it got acutely worse after May 9, 2016. Appellant was released to return to work on August 15, 2016.
A hearing was held before the ALJ on November 8, 2016. The parties stipulated that an employer-employee relationship existed on May 9, 2016, and appellant was entitled to a compensation rate of $238/$179 if compensability was established. The claim was controverted in its entirety.
Appellant testified that she was unsure of the time of her injury, but admitted that she had indicated that it was around 5:00 p.m. She stated that she decided to take her break in the kitchen on May 9, 2016, which required her to answer the phone. She said that when she attempted to sit on a stool, it slipped from under her and fell, causing her to fall on her bottom on top of the stool. She testified that she was unsure if her knee twisted or hit anything, but she said that her ankle went one way and her knee went the other way. She stated that all of her weight was on her right knee. Appellant said that Kalani Gannaway, a co-worker, was walking by at the time and witnessed her fall. She further testified:
He was on his way out the door. We didn't talk about it. He saw it and asked me if I was ok. I started laughing and said yes. I laughed because I was embarrassed because I fell in front of one of my coworkers. Alicia was my supervisor. I did not report it to her that day. I did not know that she was there at the time.
Appellant stated that she went to church after work. She denied doing anything to her knee between the time she left work and arrived at church.
Upon being questioned by the ALJ, appellant stated that she did not experience any pain or symptoms after her fall until she went to church. She said that while at church, her knee popped, causing her pain to the extent that she could hardly walk.
On cross-examination, appellant stated that after the incident, she got up and tried to eat her sandwich but that she received a call to fix a salad and cheese dip for a client. She admitted that she was able to leave work and drive to church without experiencing any pain in her knee. She indicated that her knee gave out, cracked, and buckled while she was at church. Appellant testified that she is five feet three inches and weighs between 225 and 230 pounds. On redirect, appellant stated that the fall was the only thing that happened on May 9 to injure her knee.
Alicia Jones, appellant's supervisor, stated that she was at work on May 9, 2016. She said that Kalani was in the office with her before he left that day. She testified that she subsequently heard some laughing and waited until Kalani was in the parking lot before she went to ask appellant about the laughter. She stated that at that time appellant was getting on the stool. Jones said that she could not state whether appellant fell because appellant did not report a fall to Jones on May 9. She testified on cross-examination that she did not see the alleged fall and could not say whether appellant was lying about falling. She admitted that appellant reported the knee injury the next day.
In its opinion filed on February 3, 2017, the ALJ found that appellant injured her knee at church and denied appellant's claim for benefits. Appellant appealed to the Commission. The Commission affirmed and adopted the ALJ's findings in an opinion filed on July 14, 2017. This timely appeal followed.
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 we affirm that decision if it is supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 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. It is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision.
To prove a compensable injury as a result of a specific incident that is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Arkansas Code Annotated section 11-9-102(16), establishing the injury; and (4) that the injury was caused by a specific incident identifiable by time and place of occurrence.
In arguing that substantial evidence does not support the Commission's findings, appellant contends that the "medial records and filings all reflect an injury occurring at work.... [T]here is no evidence to support an injury occurring anywhere other than at work." Appellant also contends that the Commission ignored testimony and other evidence admitted during the hearing. We disagree. The only testimony reflecting that appellant fell at work on May 9, 2016, came from appellant. The testimony of an interested party is always considered to be controverted. It is the Commission's province to weigh the evidence and determine what is more credible. Here, the evidence shows that appellant did not experience pain or swelling in her right knee until after her knee popped and buckled while she was standing at church. She was able to complete her job duties and drive herself to church without any indication that she was injured. Thus, the Commission's finding that appellant's right-knee injury was not work related is supported by the evidence. Accordingly, we affirm.
Affirmed.
Gladwin and Murphy, JJ., agree.
She actually returned to work on August 2, 2016.
Thrapp v. Smith Blair, Inc. , 2013 Ark. App. 683, 430 S.W.3d 810.
Id.
Id.
Id.
Cottage Café, Inc. v. Collette , 94 Ark. App. 72, 226 S.W.3d 27 (2006).
(Repl. 2012).
Ark. Code Ann. § 11-9-102(4)(A)(i).
Sally v. Serv. Master , 2009 Ark. App. 209, 301 S.W.3d 7.
Weld Rite, Inc. v. Dungan , 2012 Ark. App. 526, 423 S.W.3d 613. | [
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BART F. VIRDEN, Judge
Danny L. Burrow appeals from the Craighead County Circuit Court order finding him in contempt of court, imposing fines and costs, sentencing him to twenty days in jail, and awarding appellee attorneys' fees. We affirm.
I. Facts
On October 31, 2003, Rick Tubbs, owner of J.T. White Hardware & Lumber Company, filed a motion for default judgement against Danny and Shena Burrow. On July 1, 2004, the Craighead County Circuit Court granted the motion and awarded Tubbs $9,127.92 in damages plus interest and $1,000 in attorney's fees. The circuit court also ordered the Burrows to file a verified affidavit of property. In 2006, the circuit court issued a writ of execution ordering the sheriff of Craighead County to take into his possession a Lexus, a tractor, and a dump trailer, or any other personal property or money in the amount of the owed sum. On March 10, 2006, the writ was returned, and it set forth that the personal property that had been located was encumbered by liens or belonged to Burrow's mother. The undiscovered property had been sold, according to Burrow, and no assets were collected as a result of this writ.
In September 2015, Tubbs learned that Danny Burrow owned several antique vehicles, and the circuit court issued another writ of execution. The writ commanded the Craighead County sheriff to take possession of six vehicles: a 2007 Ford Mustang, a 1964 Ford Fairlane, a 1972 Chevrolet El Camino, a 2012 Cadillac SRX, a 2012 Ford F-150 crew cab, and a 1970 Chevrolet C10 truck. By this time, $6,139.96 in interest had accrued on the default judgment, and including credits and setoffs, the circuit court found that the Burrows owed $16,412.88 plus any interest that would continue to accrue.
On December 16, 2015, Tubbs petitioned the court to reopen the case for purposes of collection. The court issued a subpoena duces tecum ordering Danny Burrow to appear for deposition and to produce, among other things, any and all documentation regarding the six vehicles described in the writ, documentation of his ownership or lease of the "shop building," and an itemized list of the contents of the shop building. Burrow presented himself for deposition on or around January 13, 2016, and he responded to questions regarding his ownership of the vehicles listed in the writ and the location of those vehicles.
On January 12, 2016, a writ of execution was issued to the sheriff of Craighead County and to the sheriff of Cross County. On February 3, 2016, Lieutenant Philip Wheaton of the Craighead County Sheriff's Office entered certification that he served Danny Burrow with the writ on January 13, 2016, at 1:13 p.m. In the writ, Wheaton stated that he located the vehicles at 2210 Conrad Drive and 4208 Sydney Cove in Jonesboro and that he took possession of the Fairlane and the El Camino. The writ showed that on January 20, 2016, at 3:20 p.m., Burrow paid the writ in full, and the vehicles were released to him.
On March 3, 2016, Tubbs filed a petition to show cause why Burrow should not be held in contempt of court. In the petition, Tubbs alleged that Burrow had refused to comply with the circuit court's default judgment. Specifically, Tubbs stated that Burrow had not filed a schedule of assets within forty-five days of the 2004 default judgment, he had hidden his assets, he had refused to produce documentation regarding the assets, he had lied under oath regarding his assets, and he had otherwise refused to cooperate with Tubbs's attempts to collect on the default judgment. Tubbs asserted that Burrow's actions "interfered with the Court's Default Judgment filed on July 1, 2004, and with a subpoena duces tecum issued to defendant on December 16, 2015." Tubbs alleged that Burrow, through his attorney, sent a letter to Tubbs's attorney stating that all the vehicles listed in the writ of execution were encumbered by liens. In a second letter sent two days later, Burrow reported that all the vehicles listed in the writ, except the Cadillac, had been sold before the writ issued. Tubbs attached both letters to his petition, and he also attached title registration and lien reports showing that Burrow held the title to the El Camino and the Fairlane and that the cars were unencumbered by liens. In an affidavit attached to the petition, Tubbs described in detail Burrow's multiple attempts to hide the El Camino and Fairlane and the measures Tubbs had been required to take to find the property. Tubbs also attached Burrow's recent deposition in which he denied any knowledge of the location of the cars.
On December 14, 2016, the circuit court held a show-cause hearing for Burrow to explain why he should not be held in contempt. Burrow chose not to testify, and excerpts from his deposition were read into evidence. In his deposition Burrow claimed that he had forgotten to bring both his tax returns and any paperwork on the cars regarding ownership or sale of the vehicles. Burrow stated that the only car he currently owned was the Cadillac. Burrow stated that in September 2015, he sold the Fairlane at a Kentucky car show to a man from Colorado, and he sold the El Camino at a Nashville car show to a man from Mississippi. Both were cash-for-title sales, and he had no paperwork from the sales. Burrow explained that he had spent the proceeds, $14,500, on his wife's medical bills. Burrow admitted that on October 14, 2015, he sent a letter through his attorney to Tubbs stating that all vehicles listed in the writ of execution, including the El Camino and the Fairlane, were encumbered by liens. Burrow also admitted that two days later he caused his attorney to send a second letter in which he claimed that all the vehicles listed in the writ (except the Cadillac, on which he stated that he owed $9,000) had been sold before the writ issued. Both of these letters were inaccurate, and Burrow explained that he had mistakenly given his attorney "misinformation." Specifically, Burrow testified that "not all the liens were at the banks," and he actually did not owe money on the El Camino, the Fairlane, or the 1970 pickup truck.
In his deposition, Burrow was shown photographs taken on January 12, 2016, of both the El Camino and the Fairlane located in a shop in Wynne owned by a man named Nub Ramsey. Burrow admitted that he knew Ramsey; however, he denied knowing where Ramsey's shop was located, and he could not explain why his cars had been in Ramsey's shop. Burrow was shown more photographs taken on January 12, 2016, this time of his vehicles parked at 4208 Sydney Cove, # 38, and 2210 Conrad Drive in Jonesboro. The latter of the two addresses is the home of Burrow's brother Bobby at the Kenwood Pointe apartment complex. Burrow again denied knowledge or ownership of the vehicles, and he denied knowing where his brother lived, though he admitted that he talked to his brother several times a week. Burrow stated that he had spoken to his brother the morning of the deposition but that Bobby had not mentioned the two cars during their conversation. Burrow supposed that he would have to ask his brother about the matter.
Burrow was also presented with registration and lien-report summaries obtained from the Arkansas Department of Motor Vehicles showing him as the registered owner of the El Camino, the Fairlane, the 2007 Mustang, and the 2012 Cadillac. Burrow could not explain why he was still listed as the owner on the title.
At the hearing, there was extensive testimony from Tubbs, Lieutenant Wheaton, and private investigator Mauri Cole regarding the events leading up to Burrow's payment of the writ on January 20, 2016. Tubbs testified that on January 12, 2016, he received a phone call from Nub Ramsey, who reported that he was storing a 1964 Fairlane and a 1972 Chevrolet El Camino in his shop in Wynne. Ramsey told Tubbs that he had been informed that the owner was hiding the vehicles to avoid a court judgment, and when he realized this he called Tubbs to inform him of the location of the vehicles. Tubbs explained that after he had talked to Ramsey, he hired private investigator Mauri Cole to photograph the vehicles at Ramsey's shop, which Cole did. Tubbs testified that after observing the cars for about an hour, the El Camino and the Fairlane were driven away, and Cole followed the cars to Jonesboro. The driver of the El Camino parked the car in the parking lot of Bobby Burrow's apartment located at 2210 Conrad Drive, and the Fairlane was parked a couple of miles away at 4208 Sydney Cove, # 38. Tubbs stated that Cole photographed the parked cars, and while he was there Cole ran the Vehicle Identification Numbers ("VIN"). Cole reported to Tubbs that the El Camino and the Fairlane were registered to Danny Burrow and that the cars were unencumbered by liens. Tubbs estimated the cost of discovering Burrow's assets to be $2,672.51, and he estimated $7,257.50 in attorney's fees.
Lieutenant Wheaton testified that in October 2015, he served the writ of execution on Shena Burrow at the Burrows' home where he saw the Mustang, the Cadillac, the Fairlane, and the El Camino that were listed in the writ. Lieutenant Wheaton explained that he customarily gives the subject of a writ of execution a chance to get resources together, and he comes back later to take possession of the property if necessary. Wheaton testified that he again served Burrow on January 13, 2016, and that he took possession of the El Camino and the Fairlane at that time. The two vehicles had been at the impound lot for a week when Burrow paid the writ in full, and the cars were released to him. Lieutenant Wheaton stated that the vehicles would not have been released to Burrow if he had not provided proof of an ownership interest in them. Lieutenant Wheaton also recounted that Burrow told him that the Mustang belonged to his son, and the Fairlane and El Camino belonged to his brother.
Burrow moved to dismiss arguing that the writ of execution directed the sheriff to act and did not order Burrow to do anything; thus, he was not the subject of any court order, and he could not be held in contempt. Burrow asserted that the only order he did not comply with, the order requiring him to file a schedule of his assets within 45 days associated with the 2004 order, became moot when he paid the default judgment.
On January 27, 2017, the circuit court entered an order setting forth the following relevant findings of fact and conclusions of law: Lieutenant Wheaton served the writ on Shena Burrow at the Burrow home, and at that time, the El Camino and the Fairlane were on the premises. Burrow caused his attorney to contest seizure by contending that his vehicles were encumbered by liens and then a few days later by contending that the vehicles had been sold before the execution of the writ. Later, the vehicles had been removed. At the time the writ was executed, Burrow owned the vehicles, he had knowledge of the service of the writ, he had taken active measures to frustrate the writ by hiding the cars and by lying in his deposition, and it had been necessary for Tubbs to employ a private investigator to find the cars. Tubbs had incurred attorney's fees and expenses that would not have occurred but for Burrow's actions.
The circuit court found Burrow in contempt of court, holding that Arkansas Code Annotated section 16-10-108 (Repl. 2010) provides that the court shall have the power to punish by holding a party in criminal contempt for willful disobedience of any process or order lawfully issued or made by the court or for resistance willfully offered by any person to the lawful order or process of the court. The circuit court found that a writ of execution is a process of the court.
Burrow was sentenced to twenty days in the county jail, fined $500, and ordered to pay $10,000 in attorney's fees. He filed a timely notice of appeal.
II. Issues on Appeal
On appeal, Burrow argues that the circuit court erred by finding him in contempt of court because he did not violate the process of court or an order of the court; thus, the circuit court erred by employing the penalties of contempt-sentencing the contemnor to jail, imposing fines, and awarding costs and attorney's fees. Because it is not clear whether Burrow was held in criminal or civil contempt and our standard of review differs for criminal and civil contempt, we must first address the preliminary issue of the nature of the contempt found by the court.
In determining whether a particular action by a court constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Ivy v. Keith , 351 Ark. 269, 280, 92 S.W.3d 671, 678 (2002). Criminal contempt vindicates the power and dignity of the court and constitutes punishment for disobedience of its orders, while the purpose of civil contempt is to preserve and enforce the rights of private parties to suits and to compel obedience to orders made for the benefit of those parties. Stehle v. Zimmerebner , 2016 Ark. 290, 497 S.W.3d 188. Because civil contempt is designed to coerce compliance with the court's order, the contemnor may free himself or herself by complying with the order. Conlee v. Conlee , 370 Ark. 89, 257 S.W.3d 543 (2007). As we have stated many times, civil contemnors "carry the keys of their prison in their own pockets." Ivy , 351 Ark. at 280, 92 S.W.3d at 678. Criminal contempt, by contrast, carries an unconditional penalty solely and exclusively punitive in character and the contempt cannot be purged. Fitzhugh v. State , 296 Ark. 137, 752 S.W.2d 275 (1988). The appellate courts have often noted that the line between civil and criminal contempt may blur at times. Ivy , 351 Ark. at 280, 92 S.W.3d at 677.
The circuit court's order that Burrow serve a twenty-day jail sentence is clearly punitive because it is for a set amount of time that is not related to any requirement of the court that, if complied with, would end the sentence. The $500 fine payable to the court is also purely punitive and in the nature of criminal contempt. The circuit court's award of attorney's fees, however, is in the nature of civil contempt. We addressed the issue of whether the award of attorney's fees is a form of civil or criminal contempt of court in Applegate v. Applegate , 101 Ark. App. 289, at 293-94, 275 S.W.3d 682, 685 (2008). We held:
[O]ur supreme court has set a bright-line rule that aids our resolution of the first question before us-whether the $500 attorney fee was in essence a "punitive fine" for criminal contempt. A contempt fine for willful disobedience that is payable to the complainant is remedial, and therefore constitutes a fine for civil contempt, but if the fine is payable to the court, it is punitive and constitutes a fine for criminal contempt.
(Citations omitted.)
We hold that the circuit court found Burrow in both criminal and civil contempt, and we turn to the issue of whether the circuit court erred by doing so. The standard of review in a case of criminal contempt requires the appellate court to view the record in the light most favorable to the circuit court's decision and to sustain that decision if it is supported by substantial evidence. James v. Pulaski Cty. Cir. Ct. , 2014 Ark. 305, 439 S.W.3d 19. Substantial evidence is evidence of sufficient force and character that it compels a conclusion one way or another, forcing the mind to pass beyond suspicion and conjecture. Id. Issues of credibility are for the fact-finder. Balcom v. Crain , 2016 Ark. App. 313, at 5, 496 S.W.3d 405, 408.
Arkansas Code Annotated section 16-10-108 provides:
(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:
...
(3) Willful disobedience of any process or order lawfully issued or made by it;
(4) Resistance willfully offered by any person to the lawful order or process of the court; and
...
(b)(1) Punishment for contempt is a Class C misdemeanor.
(2) A court shall always have power to imprison until its adjournment.
Ark. Code Ann. § 16-10-108 (a)(3)-(4), (b)(1)-(2).
Burrow argues that because the writ of execution directed an officer of the sheriff's office to act and did not direct Burrow himself, he did not willfully disobey or resist any process or order of the court. His argument is not well taken. In Carle v. Burnett , 311 Ark. 477, 845 S.W.2d 7 (1993), our supreme court recognized that Ark. Code Ann. § 16-10-108(a)(3) is not a limitation on the power of the court to impose punishment for disobedience of process. The court held that the term "process" in the sense of the statutes is a comprehensive term that includes "all writs, rules, orders, executions, warrants, or mandates issued during the progress of an action." Carle , 311 Ark. at 483, 845 S.W.2d at 11.
Our supreme court has held that when a person resists process or evades or circumvents an officer in the service of process, and the actions of the person are sufficient to amount to contempt of court, he or she is disobedient of process. Bryan v. State , 99 Ark. 163, 137 S.W. 561 (1911). In Bryan , the Bryan brothers were running a gambling room in Hot Springs at the time a warrant commanding police officers to search for gambling devices was issued. Someone tipped off the Bryans that a warrant was about to be served. When the officers reached the room, they found one of the brothers standing outside the area to be searched, and they demanded the key to the door, which he denied having in his possession. By the time the police entered the room, the gambling devices described in the warrant had been removed and hidden. They were later found by the officers. The Court held that
[i]t is unnecessary to go to the extent in this case of holding that merely secreting property, which the officer is seeking to seize, constitutes contempt, but where, as in this case, the officer, by some device or deception, is hindered or delayed in the prompt execution of the process, we hold that this constitutes contempt, even though there is no force or intimidation, or direct refusal to obey the process.
In Bryan , the search warrant directed the officers to search the property and seize the gaming machines; similarly, in the instant case, the circuit court's writ of execution directed the sheriff, and not Burrow, to act. Burrow was held in contempt of court for hindering the execution of the writ by hiding property after he had been served, by having his attorney write two letters containing false information regarding the cars, and by lying in his deposition about his ownership of the cars and the location of the cars. When confronted with registration and lien information, Burrow denied ownership of the vehicles, and several witnesses testified about the measures Burrow had taken to avoid execution of the writ. Burrow's elaborate deception clearly constitutes resistance to the process of court, and Burrow's actions are punishable by the court through its contempt power.
Moreover, this court has previously held that even one who is not party to an action may be held in contempt. In Arkansas Department of Human Services. v. Gruber , 39 Ark. App. 112, 115, 839 S.W.2d 543, 544 (1992), the department argued on appeal that the circuit court erred in holding it in contempt after one of its representatives failed to appear at a placement hearing. This court rejected the Department's argument and held that "[e]ven one not a party to an action, who has been served with an order, or who has notice of it, may be held in contempt of the order." Similarly, in Omni Holding & Development Corp. v. 3D.S.A., Inc. , 356 Ark. 440, 455, 156 S.W.3d 228, 239 (2004), our supreme court held that a nonparty who has "full knowledge of a court order and its import cannot flout it with impunity." In the instant case, it is clear that Burrow flouted the order of the court.
The evidence that Burrow actively and knowingly interfered with the process of court is of sufficient force and character for the circuit court to have held Burrow in criminal contempt. See James, supra. Viewing the record in the light most favorable to the circuit court's decision and without resorting to suspicion and conjecture, we affirm.
Furthermore, because the evidence in the instant case supports the circuit court's finding of criminal contempt, which is subject to a higher standard of review than a finding of civil contempt, we hold that the circuit court did not err when it awarded attorney's fees which are in the nature of civil contempt.
For the first time on appeal, Burrow argues that "there is no caselaw, precedent, or legal authority under the criminal contempt statute for the trial court (as the trier of fact) to hold a person in criminal contempt of court for not being truthful in a deposition" and that the circuit court violated his "constitutional rights that all criminal defendants are entitled to" by finding him in contempt for giving false testimony in his deposition. Burrow asserts that the proper way to pursue the allegation that he lied in his deposition is to file perjury charges against him and prove the elements of the crime beyond a reasonable doubt. Burrow failed to make these arguments to the circuit court; thus, we are unable to address his argument. This court will not consider arguments that are not preserved for appellate review. Stacks v. Stacks , 2009 Ark. App. 862, at 4, 377 S.W.3d 265, 269. It is incumbent on the parties to raise arguments initially to the circuit court in order to give that court an opportunity to consider them. Balcom , 2016 Ark. App. 313, at 3, 496 S.W.3d at 407.
Affirmed.
Klappenbach and Murphy, JJ., agree.
The record shows both January 11 and January 14, 2016, as the dates of the deposition, and there was testimony that the deposition took place "on or around" January 14. The deposition transcript shows that the parties were interrupted briefly when Lieutenant Wheaton served Burrow with the writ of execution, and the returned writ shows that it was served on January 13, 2016. The discrepancies in the dates are not an issue in this case and do not affect the outcome of this case.
Later at the hearing, Cole testified to the same facts-that on January 12, 2016, he found the cars at Ramsey's shop in Wynne, he followed the cars to Jonesboro, and he ran the VINs on the cars and learned that Burrow was the registered owner and the cars were unencumbered by liens.
Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Applegate , 101 Ark. App. at 294, 275 S.W.3d at 686. | [
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WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's order terminating his parental rights to D.J., born 3/3/16. On appeal, he argues that there was insufficient evidence to support termination of his parental rights. He also argues that the Arkansas Department of Human Services (DHS) failed to offer sufficient proof of the other elements of both the subsequent-factors and aggravated-circumstances grounds rendering its grant of termination reversible. We affirm.
D.J. and his mother, Jonese Boyd, tested positive for cocaine and THC at the time of D.J.'s birth. Appellant was contacted and verbally acknowledged paternity of D.J. Noting, among other things, a history with DHS that included a Garrett's Law case in 2011 and another in 2014, a 72-hour hold was taken on D.J. on March 4, 2016. DHS filed a petition for ex parte emergency custody and dependency-neglect on March 7, 2016. The circuit court entered an order for emergency custody on the same date.
A probable-cause order was entered on March 14, 2016, finding that probable cause for D.J.'s removal existed and continued to exist by stipulation of the parties. Because a named father had yet to be added as a party to the matter, "any legal and biological father" was ordered to submit to random drug screens, complete a drug-and-alcohol assessment, complete a counseling assessment, complete a psychological assessment, and maintain stable housing and income. Appellant was ordered to establish paternity, and all visitation and services were ordered to begin for him once his paternity was established. Appellant was not present at the hearing, but a positive drug test for THC from appellant was submitted as an exhibit.
In its May 2, 2016 adjudication order, the circuit court adjudicated D.J. dependent-neglected based on Garrett's Law due to the positive drug tests on D.J. and Boyd, by stipulation of all the parties. The circuit court found that D.J. had no noncustodial parent because appellant was a putative father. The goal of the case was reunification with Boyd with a concurrent goal of adoption. The order noted that appellant lived with Boyd, the latter of whom needed support from a sober parent. It went on to state that "[i]f [appellant] wants to be involved in the life of this child, he needs to take the DNA test and stop doing drugs.... Choices will need to be made, all the way around."
In its August 22, 2016 review order, the circuit court noted testimony that appellant completed DNA testing on August 5, 2016; and that appellant was living with Boyd and handling her financial needs. Appellant was ordered to complete a hair-follicle drug test. The parties were advised that missed screens were considered positive by the circuit court. The goal of the case was reunification with the mother.
In its February 8, 2017 permanency-planning order, in which appellant first appeared as a party in the style of the case, the circuit court stated that appellant's drug-and-alcohol assessment recommended outpatient treatment. The order stated that appellant had denied drug use despite having positive hair-follicle tests. The order stated that appellant had an order of paternity. The circuit court instructed that "[i]f [appellant] wants to be clean and get his child, he may have to let mother go." Specifically relating to appellant, it stated the following:
DON JOHNSON testified that he has four children.... Two of the children are grown. He lives with Jonese Boyd. He has lived with her six years. He has been to prison four times. It was for possession with intent to deliver cocaine. That was 1998 and other times. He was not in prison for theft of property in 2013. He went to prison in April 2013 for possession. He has had 3 drug charges he was found guilty or pleaded guilty to; he has been to prison for three drug charges. He is on parole. He was positive for marijuana up to August 1. He is trying to get his son back. He has not used cocaine. He has an order of paternity, and he has to pay child support. It came two months ago. He wants to remain a family unit with mother. He works; he drives trucks. He plans to continue this job.
The circuit court found that appellant was "just now getting going on services. We are a year in." The goal of the case was changed to adoption.
DHS filed a petition for termination of appellant's parental rights on March 7, 2017. The grounds given in support of termination of his parental rights were:
1. That the juveniles had been adjudicated dependent-neglected and had continued out of the custody of the parent for twelve months and despite a meaningful effort by the department to rehabilitate the parent and correct the conditions which caused the removal, those conditions had not been remedied by the parent;
2. That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that placement of the juveniles in the custody of the parent is contrary to the juvenile's health, safety or welfare and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances which prevent the placement of the juveniles in the custody of the parent; and
3. That the parent is found by a Court of competent jurisdiction, including the Juvenile Division of Circuit Court to have subjected any juvenile to aggravated circumstances.
Additionally, DHS asserted that termination of appellant's parental rights was in the best interest of the children.
Appellant submitted a response to DHS's petition on April 4, 2017, requesting that the circuit court dismiss the petition and grant him custody of D.J. He specifically denied the grounds asserted by DHS and that termination was in D.J.'s best interest as he denied that there were not any barriers to adoption for D.J., and denied that there was any potential harm in giving custody of D.J. to him.
DHS filed a motion to dismiss its own petition to terminate appellant's rights on May 3, 2017. It stated therein that appellant had been compliant since the February 8, 2017 permanency-planning hearing, noting that appellant had not had a positive drug test since the last court date. Attached as an exhibit thereto was appellant's graduation certificate from parenting classes.
The attorney ad litem filed a petition for termination of appellant's parental rights on May 8, 2017. It alleged the same three grounds-the twelve-months-without-remedy, other-subsequent-factors, and aggravated-circumstances grounds-that DHS alleged in its March 7, 2017 petition based on essentially the same arguments.
On the same date that the ad litem filed its termination-of-parental-rights petition, a hearing was held before the circuit court and the circuit court entered a fifteen-month permanency-planning order. Therein, it granted DHS's motion to withdraw its termination petition. The order stated that Tameka Jones, the family services worker, testified that both parents, who resided together in an appropriate and well-maintained home, had made significant, measurable progress since she obtained the case in August 2016, and that reunification could be achieved in a reasonable time. Jones testified that the parents were ready for unsupervised visits; her supervisor believed a trial placement could start in three months. Other pertinent testimony revealed that appellant gambled, but "not that much"; and the foster parent testified that D.J. is pretty "laid back most of the time" but he has "a little of a temper, but that is just getting bigger."
The circuit court found that both parents were complying, but the goal of the case was "reserved." Visitation was to remain as previously ordered and it found, as it had throughout the case, that DHS had made reasonable efforts to provide services and achieve the goal of the case. It specifically found:
Doing services is not the same thing as benefitting from services. There has not been random drug or alcohol screening. The Court has to rely on the hair drug screens due to this.
This case cannot go on forever. There is no doubt the parents love the child, but they have to actually show a benefit from services. Either the parents are in this, or they are not. They have to do more than check off boxes. They must provide sign in sheets, proof of attendance, and proof of actual work being done and improvements being made.
The Court has seen no information that this child is truly "special needs," and the Court is not going to slap that label on every child in DHS custody. The attributes that [the foster parent] described can very well be merely a demanding child, not based on some underlying disorder or issue.
[Appellant] has money to gamble, he has money to contribute to attorney fees.to the father would result in successful placement of the child with him. He has previously testified that he has lived with the Mother for six years. [D.J.] is the third child they have had together. All three have been Garrett's Law cases.
....
[Appellant] has testified at prior hearings that he intends to remain with Ms. Boyd and live together as a family. Even if he were to become substance-free, he cannot provide a safe and appropriate home for the child as long as the mother lives there. He has shown no inclination to separate himself from Mother, despite her ongoing drug usage. Further, Mr. Boyd [sic] has testified previously that he is on parole for prior drug-related convictions. At worst, his prior positive drug screens have jeopardized his liberty. At best, even if he is now drug-free, the mother's drug use puts him at risk of obtaining a parole violation, as well. The Court made it very clear to [appellant], indeed both of these parents, that mere lip service is insufficient for placement.
....
[Appellant] completed his psychological evaluation, after initially missing the first scheduled appointment. He completed parenting classes. He started outpatient drug and alcohol sessions but is not even halfway through with the assessment recommendations despite having those results for six (6) months. [Appellant] still lives with Ms. Boyd. He still denies using drugs for which he has tested positive. He plays games with availability for random drug screens. The Court sees no change in his circumstances from those that existed when the child came into care. The Court cannot ascertain any available service that can correct his mindset when [appellant] himself seems content to maintain it despite Court involvement for seventeen (17) months in this case. It is for these reasons that the Court finds that there is little likelihood that continued services to the father would result in successful placement of the child with him, which is aggravated circumstances.
Characterizing appellant's efforts as "half-hearted[,]" the circuit court found those efforts insufficient to sustain a goal of reunification as "additional time would merely require the child to needlessly languish." Accordingly, it found no compelling reason to grant appellant additional time for services or attempts at compliance. Additionally, it found that appellant was not a fit and proper parent and stated that it had "no confidence" that he could consistently and safely provide for D.J. as appellant had shown no evidence that he could provide what D.J. needed: a "stable, safe, appropriate environment with a drug-free parent who will ensure he receives appropriate care and supervision." It found that termination was in D.J.'s best interest, making the necessary potential-harm and adoptability findings. This timely appeal followed.
The standard of review in appeals of termination of parental rights is de novo, but we reverse a trial court's decision to terminate parental rights only when it 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 distinct and firm conviction that a mistake was made. Grounds for termination of parental rights must be proven by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. The appellate inquiry is whether the circuit court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. In resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. 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.
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. 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. Only one statutory ground is necessary to terminate parental rights.
Appellant argues on appeal that there was insufficient evidence to support termination of his parental rights because neither DHS nor the attorney ad litem submitted evidence of an order establishing appellant as D.J.'s parent. He argues, essentially, that the failure to enter an order equates to a lack of proof that he was a "parent" of D.J., as required by the statute. We disagree.
Arkansas Code Annotated section 9-27-303(40) defines "parent" to mean a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth or who has signed an acknowledgment of paternity pursuant to § 9-10-120 or who has been found by a court of competent jurisdiction to be the biological father of the juvenile. In Earls v. Arkansas Department of Human Services , our supreme court stated the following with regard to reviewing Arkansas Code Annotated section 9-27-303(40) :
" 'The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.' ... The basic rule of statutory construction is to give effect to the intent of the legislature. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole." A plain reading of the applicable statute, Ark. Code Ann. § 9-27-303(40), defining "parent" means that a parent can be biological, or by adoption, or by a man who is married to a biological mother at the time of conception or by a man who has signed an acknowledgment of paternity, or by being found by a court of competent jurisdiction to be the biological father.
While there was no order expressly dedicated to determining that appellant was a parent of D.J., the circuit court stated in its probable-cause order that appellant was to be provided all visitation and services "once a DNA test showing he [was] the biological father of the child was received." It was noted in the circuit court's adjudication order that appellant had been referred for DNA testing and had not participated in services. Its review order stated that appellant had completed DNA testing on August 5, 2016. Again, the circuit court noted therein that services would start once DNA testing confirmed that he is the biological father of D.J. The permanency-planning order stated that appellant's paternity tests had "[come] back" and that appellant was "just now getting going on services." It was in this order that appellant was added as a party and included in the style of the case.
In its fifteen-month permanency-planning order, the circuit court noted testimony from Jones that "DNA testing was completed, then [appellant] did the [other services] after DNA." Finally, in its review hearing/termination of parental rights hearing order, the circuit court stated that DNA results for appellant regarding D.J. were submitted as an exhibit and the document stated that appellant's probability of paternity of D.J. was 99.99 percent. The circuit court also stated therein:
Regarding [appellant], he was putative father of the child at the time the child was taken into care. He was ordered to receive services identical to those offered to Mother. Additionally, he completed a referred DNA test that showed him to be the biological father of the child.
On the basis of these facts, this court cannot find-as appellant argues-that DHS failed to prove or that the circuit court failed to find that appellant was a "parent" of D.J.
Alternatively, appellant argues that DHS failed to offer sufficient proof of the other elements of both the subsequent-factors and aggravated-circumstances grounds rendering granting termination reversible. Again, we disagree.
Though DHS and the attorney ad litem only had to prove one of the three grounds asserted from their joint petition to terminate appellant's parental rights, the circuit court found that they had proven two of the three asserted grounds-the other-subsequent-factors and aggravated-circumstances grounds. Because proof of only one ground was necessary, this court only addresses the other-subsequent factors ground.
D.J. was brought into care on March 4, 2016, pursuant to Garrett's Law due to his and Boyd's testing positive for THC and cocaine at the time of D.J.'s birth; D.J. was adjudicated dependent-neglected for the same reason. Appellant was ordered to stop using drugs in the adjudication order due to his positive test for THC prior to the hearing; this was the first mention of appellant having any issue with drugs. Appellant submitted to hair follicle testing and was positive for cocaine as recent as January 13, 2017, despite testifying at the February 8, 2017 permanency-planning hearing that he had not used illegal substances since August 1, 2016. The circuit court specifically found said testimony to be lacking in credibility given the results of the scientific drug testing. The circuit court also expressed concern that appellant's "lack of availability for random drug screens masks the true nature and extent of his drug usage." Finally, while appellant's drug-and-alcohol assessment had recommended that he attend nine group and nine individual sessions in outpatient treatment, he had only attended three group sessions and two individual sessions in the six months since the recommendation had been made. The appellant's continued use of illegal drugs demonstrated his indifference to remedying the problems that prevented the return of D.J. to his custody. Accordingly, having only become an issue after the filing of DHS's dependency-neglect petition and because of its continuing nature, appellant's drug use is a subsequent factor.
We also note, as did the circuit court, that appellant testified at the February 8, 2017 hearing that he wanted to remain a family unit with Boyd, with whom he had lived for six years. At that same hearing, he was warned by the circuit court that he may have to leave Boyd, if he wants to remain clean and obtain custody of D.J. Because appellant-and Boyd, since they resided in the same home-continued to have positive hair-follicle test results, no trial placement ever occurred. At the time of the termination hearing, appellant was still living with Boyd who-being in the Garrett's Law case, this time with her third child with appellant-was still testing positive for cocaine and only partially complying with the case plan. While the home in which appellant lived was deemed to be "appropriate and safe" by Jones, the circuit court expressly found that it was not safe by virtue either of appellant's drug use or Boyd's drug use, stating regarding the latter that "[e]ven if [appellant] were to become substance-free, he cannot provide a safe and appropriate home for the child as long as the mother lives there." Appellant's inability or unwillingness to separate himself from Boyd is a subsequent factor.
Finally, a parent's failure to comply with court orders can serve as a subsequent factor upon which termination can be based. Appellant was ordered to (1) remain drug free, but continued to have positive drug tests; (2) submit to random drugs screens, but was always unavailable for random screenings; (3) complete the recommendations of the drug-and-alcohol assessment but only partially complied; (4) and submit proof of his attendance at AA/NA meetings, but failed to do so.
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. 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. What matters is whether completion of the case plan achieved the intended result of making the parent capable of caring for the child. We have recognized that a child's need for permanency and stability may override a parent's request to improve his or her circumstances.
Overall, appellant asks this court to reweigh the evidence. This court cannot act as a super fact-finder or second-guess the circuit court's credibility determination. ,
Affirmed.
Gladwin and Murphy, JJ., agree.
Boyd's parental rights to D.J. were terminated in the same order; however, she is not a party to this appeal.
Three other children, Z.J., Da.J., and De.J., were involved in this matter, but were not subjected to the 72-hour hold as Z.J. had resided with the maternal grandmother for five years and Da.J. and De.J. had resided with the paternal grandmother for more than a year. We note that while the affidavit in support of the petition states that Z.J. resides with the maternal grandmother, the circuit court states in its probable-cause order that Z.J. resides with her great-grandmother.
No such order was entered at that time.
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017).
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) .
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) .
It is not clear whether the "last court date" refers to the February 8, 2017 permanency-planning hearing at which appellant was present or the March 29, 2017 status hearing at which appellant was not present.
Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, at 3, 489 S.W.3d 182, 184 (citing Ullom v. Ark. Dep't of Human Servs. , 340 Ark. 615, 12 S.W.3d 204 (2000) ; Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851 ; Brewer v. Ark. Dep't of Human Servs. , 71 Ark. App. 364, 43 S.W.3d 196 (2001) ).
Id. (citing Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 990 S.W.2d 509 (1999) ; Knuckles v. Ark. Dep't of Human Servs. , 2015 Ark. App. 463, 469 S.W.3d 377 ; Hopkins v. Ark. Dep't of Human Servs. , 79 Ark. App. 1, 83 S.W.3d 418 (2002) ).
Greenhaw v. Ark. Dep't of Human Servs. , 2016 Ark. App. 294, at 2-3, 495 S.W.3d 109, 111 (citing Hughes v. Ark. Dep't of Human Servs. , 2010 Ark. App. 526, 2010 WL 2522197 ).
Id. at 3, 495 S.W.3d at 111 (citing J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997) ).
Houseman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 227, at 3, 491 S.W.3d 153, 155 (citing Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. 356, at 7, 2015 WL 5895440 ; Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001) ).
Friend v. Ark. Dep't of Human Servs. , 2009 Ark. App. 606, at 10, 344 S.W.3d 670, 675 (citing Dowdy v. Ark. Dep't of Human Servs. , 2009 Ark. App. 180, 314 S.W.3d 722 ).
Johnson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 412, at 6-7, 501 S.W.3d 391, 395 (citing Oldham v. Ark. Dep't of Human Servs. , 2015 Ark. App. 490, at 6-7, 469 S.W.3d 825, 829 ).
Id. at 2, 491 S.W.3d at 155 (citing Harbin v. Ark. Dep't of Human Servs. , 2014 Ark. App. 715, at 2, 451 S.W.3d 231, 233 ).
Id. (citing Ark. Code Ann. § 9-27-341(b)(3)(B), (b)(3)(A) (Repl. 2015); Harbin , supra ).
Beard v. Ark. Dep't of Human Servs. , 2016 Ark. App. 467, at 7, 503 S.W.3d 89, 93 (citing Sanford v. Ark. Dep't of Human Servs. , 2015 Ark. App. 578, 474 S.W.3d 503 ).
Ark. Code Ann. § 9-27-303(40) (Supp. 2017).
2017 Ark. 171, at 10-11, 518 S.W.3d 81, 87-88.
Appellant makes no argument with regard to the circuit court's best interest findings; therefore, we affirm if at least one statutory ground is proven. Del Grosso v. Ark. Dep't of Human Servs. , 2017 Ark. App. 305, at 5, 521 S.W.3d 519, 522 (a failure to challenge the best-interest finding waives the issue on appeal.).
See Taylor v. Ark. Dep't of Human Servs. , 2016 Ark. App. 453, at 8, 503 S.W.3d 813, 818 (citing Fenstermacher v. Ark. Dep't of Human Servs. , 2013 Ark. App. 88, 426 S.W.3d 483 ).
Id. (citing Carroll v. Ark. Dep't of Human Servs. , 85 Ark. App. 255, 148 S.W.3d 780 (2004) ).
Bynum v. Ark. Dep't of Human Servs. , 2017 Ark. App. 471, at 12, 528 S.W.3d 859, 868 (citing Miller v. Ark. Dep't of Human Servs. , 2017 Ark. App. 396, 525 S.W.3d 48 ; Clements v. Ark. Dep't of Human Servs. , 2013 Ark. App. 493, 2013 WL 5273040 ).
He was only screened at his scheduled visitations with D.J.
Sarut v. Ark. Dep't of Human Servs. , 2015 Ark. App. 76, at 7, 455 S.W.3d 341, 346 (citing Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2013) ).
Id. (citing Schaible v. Ark. Dep't of Human Servs. , 2014 Ark. App. 541, at 8, 444 S.W.3d at 371 ; Ford v. Ark. Dep't of Human Servs. , 2014 Ark. App. 226, at 3, 434 S.W.3d 378 ).
Davis v. Ark. Dep't of Human Servs. , 2009 Ark. App. 815, at 11, 370 S.W.3d 283, 288 (citing Wright v. Ark. Dep't of Human Servs. , 83 Ark. App. 1, 115 S.W.3d 332 (2003) ).
Arnold v. Ark. Dep't of Human Servs. , 2013 Ark. App. 260, at 7, 427 S.W.3d 165, 168 (citing Henderson v. Ark. Dep't of Human Servs. , 2010 Ark. App. 191, 377 S.W.3d 362 ).
Dunbar v. Ark. Dep't of Human Servs. , 2016 Ark. App. 472, at 12, 503 S.W.3d 821, 828-29 (citing Lynch v. Ark. Dep't of Human Servs. , 2012 Ark. App. 149, 2012 WL 474807 ).
Appellant also makes the argument before this court that DHS failed to provide him appropriate services in a timely fashion. He did not make this argument below. Because appellant failed to challenge the reasonable-efforts finding in the permanency-planning order, he has waived the issue for purposes of appeal. Cheney v. Ark. Dep't of Human Servs. , 2012 Ark. App. 209, at 11, 396 S.W.3d 272, 278 (citing Anderson v. Ark. Dep't of Human Servs. , 2011 Ark. App. 526, 385 S.W.3d 373 ). | [
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PHILLIP T. WHITEAKER, Judge
Appellant Daniel Honey was convicted by a Logan County jury of one count of rape and one count of second-degree sexual assault. On appeal, he argues that the Logan County Circuit Court erred in denying his motion for mistrial that he made in response to allegedly improper cross-examination by the State. We agree and reverse and remand.
I. Background
Honey was charged with two counts of rape based on allegations that he inserted his finger into the vagina and anus of seven-year-old R.T. Prior to trial, Honey filed a motion for discovery to which the State filed a response and supplemental response. Honey later filed a separate request for discovery pursuant to Arkansas Rule of Criminal Procedure 17.1, specifically asking the State to disclose "all evidence the Prosecution anticipates will be used against Defendant pertaining to character and to that of other crimes, wrongful conduct, or acts, including, but not limited to, evidence allowed under Rule 404(b) of the Arkansas Rules of Evidence." The State did not respond to this motion.
At trial, the State presented its evidence against Honey. Honey then testified in his own defense. During cross-examination, the State questioned Honey about his living arrangements. Honey stated that he had lived with the victim's mother's cousin for about a month until arrangements were made for him to move across the street. The prosecuting attorney then asked, "In fact, they didn't make arrangements for you to move, you were asked to move, because of some allegations that you had touched another little girl on the leg in the apartment parking lot; is that not true?" Honey replied, "No, that is incorrect." The State persisted: "Nothing happened in the parking lot with the young lady that fell on a bike, and some allegations of you rubbing on her?"
Honey's counsel objected, saying he had "no clue what [the prosecutor] is talking about" and that nothing about a bike or a young lady had been disclosed during discovery. The prosecutor responded that it was "just cross-examination, it's just things that I've picked up in talking to witnesses." Defense counsel answered that if the prosecutor had notes of those conversations, they should have been provided during discovery so that he could have known what the State was going to use to cross-examine Honey. The prosecutor replied that there were no notes and reiterated that these were "just things that I've picked up in talking with witnesses."
Defense counsel moved for a mistrial, arguing that the statements about "another little girl on a different charge" were extremely prejudicial. The prosecutor repeated that because there were no notes, there was nothing he was obligated to hand over. The circuit court denied the motion for mistrial but proposed three options, suggesting that it could allow both attorneys time to talk things over, give the jury a curative instruction, or direct the State to move forward. Defense counsel opted for the curative instruction, and the circuit court instructed the jury that it was to "disregard any allegations or inference regarding the girl on the bike. There is no foundation for that. You are just to disregard that and we are going to move on."
After the State passed the witness, defense counsel asked to approach and noted to the court that he had specifically filed a motion for discovery of Rule 404(b) evidence prior to trial. Counsel contended that the prosecutor's failure to disclose Honey's alleged wrongful conduct was itself wrongful conduct that could not be cured with an instruction from the court. Counsel therefore again asked for a mistrial, which the circuit court again denied. Honey's testimony was the last evidence heard by the jury before its deliberations.
The jury went on to convict Honey of one count of rape and one count of second-degree sexual assault. He was sentenced to forty years in the Arkansas Department of Correction on the rape conviction and twenty years on the sexual-assault conviction. Honey filed a timely notice of appeal and an amended notice of appeal. On appeal, he argues that the circuit court erred in denying his motion for mistrial for two reasons: (1) the prosecutor's improper question was unduly prejudicial, and (2) the prosecutor improperly failed to disclose the existence of other Rule 404(b) allegations against him.
II. Standard of Review
Our court has held that a mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Phillips v. State , 2015 Ark. App. 419, 467 S.W.3d 742. As a result, we leave the decision whether to grant a new trial to the sound discretion of the trial court and will not reverse that decision in the absence of an abuse of discretion or manifest prejudice to the complaining party. Id. Here, Honey contends that the trial error was so prejudicial that justice could not be served by continuing his trial and that the circuit court's denial of his mistrial motion prevented him from receiving a fair trial. We agree.
III. Discussion
In his first argument, Honey contends that the circuit court should have granted his mistrial because the prosecutor deliberately asked a question designed to produce an incriminating answer. The supreme court and this court have both held that an important factor in determining when a circuit court should grant a mistrial is whether the prosecutor deliberately intended to induce a prejudicial response. See, e.g. , Jones v. State , 349 Ark. 331, 78 S.W.3d 104 (2002) ; Jimenez v. State , 83 Ark. App. 377, 128 S.W.3d 483 (2003) ; Barker v. State , 52 Ark. App. 248, 916 S.W.2d 775 (1996). For example, in Barker , this court reversed the circuit court's denial of the defendant's mistrial motion when the State asked the defendant whether she had two previous convictions for DWI. Because the record was clear that the defendant had only one prior DWI conviction, this court held that the State could not have had a good faith reason for believing she had two prior convictions, and the State's question therefore resulted in manifest prejudice to the defendant. Barker , 52 Ark. App. at 248, 916 S.W.2d at 776.
Likewise, in Maxwell v. State , 279 Ark. 423, 652 S.W.2d 31 (1983), the defendant took the stand in his murder trial and admitted on direct examination that he had previously been convicted of rape. On cross-examination, the prosecuting attorney asked him, "I believe you acknowledged to [defense counsel] that in 1968 you pled guilty and were convicted of the raping of an eleven-year-old girl[.]" Defense counsel requested a mistrial based on the prosecutor's reference to the age of the victim. The circuit court denied defense counsel's motion but admonished the jury not to consider the prosecutor's reference to the victim's age. Id. at 425, 652 S.W.2d at 32. The supreme court reversed Maxwell's conviction, stating that it could not "say that in the circumstances the admonition cured the possibility of prejudice. The prosecutor's action must have been deliberate, for he could not reasonably have believed that Maxwell had admitted the inadmissible and prejudicial fact that he had raped an eleven-year-old child." Id. , 652 S.W.2d at 32-33.
Honey argues that we should reach the same conclusion in the instant case, contending that, as in Barker and Maxwell , the State deliberately intended to elicit an incriminating response with an improper question. We agree. Here, as noted above, the prosecutor asked Honey about allegations that he had touched the leg of another little girl in a parking lot. When Honey denied the allegation, the State again asked whether anything "happened in the parking lot with the young lady that fell on a bike, and some allegations of you rubbing on her?"
We find that this conduct falls squarely within the ambit of Barker and Maxwell . The State's pointed questioning about a similar accusation-with which Honey had not been criminally charged-was clearly designed to imply to the jury that Honey was a serial child molester. One of the factors to be considered in determining whether a circuit court abused its discretion in denying a motion for mistrial is whether the prejudicial response was deliberately induced.
Moe v. State , 2017 Ark. App. 546, at 2, 532 S.W.3d 110, 112. As Honey notes, the prosecutor "did not stumble on inadmissible testimony" through a witness's unresponsive or inadvertent answer to a question. In this case, the prosecutor's conduct was clearly deliberate.
We also consider the timing of the prosecutor's questions important in our analysis. The questions were posed almost at the end of the trial, so that they were among the last things the jury heard before it retired to deliberate. We acknowledge that the court did give an admonition to the jury, but the phrasing of the admonition that was given-"to disregard any allegations or inference regarding the girl on the bike"-only reinforced the impact of the question. We therefore conclude that the admonition to the jury could not have cured any resulting prejudice, and we hold that the circuit court abused its discretion in denying Honey's motion for mistrial on the basis of the prosecutor's improper questioning.
Honey raises a second argument in which he asserts that the State improperly failed to disclose the existence of other Rule 404(b) allegations against him, thereby unduly prejudicing him. Based on our consideration of both Rule 404(b) and Arkansas Rule of Criminal Procedure 19.2, we agree with Honey on this point as well.
Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Prior to trial, Honey filed a motion pursuant to Rule 404(b) that specifically asked the State to produce, in accordance with Arkansas Rule of Criminal Procedure 17.1, "all evidence the Prosecution anticipates will be used against Defendant pertaining to character and ... that of other crimes, wrongful conduct, or acts, including, but not limited to, evidence allowed under Rule 404(b) of the Arkansas Rules of Evidence." The State did not respond to this motion.
Arkansas Rule of Criminal Procedure 19.2, in turn, establishes that the parties in a criminal proceeding have a continuing duty to disclose, stating that "[i]f before trial, but subsequent to compliance with these rules, ... a party discovers additional material or information comprehended by a previous request to disclose, he [or she] shall promptly notify opposing counsel ... of the existence of such material or information." Here, although the State did not respond to Honey's Rule 404(b) motion, it nonetheless attempted through its line of cross-examination to introduce evidence of other allegations against Honey that it had found during discovery but had not disclosed to defense counsel. Honey objected to these questions with surprise, stating that nothing along these lines had been disclosed during discovery. The prosecutor responded that it was "just things that I've picked up in talking to witnesses," that he had taken no notes of any of his conversations with those witnesses, and that he did not think he was "obligated to, when I interview witnesses, write things down and give them all my notes."
We find the case of Williams v. State , 267 Ark. 527, 593 S.W.2d 8 (1980), instructive in our analysis. In Williams , the defendant was charged with committing first-degree battery on her ten-month-old daughter. Her attorney filed a discovery motion prior to trial seeking all statements she might have made to the police. The State responded to the motion but neglected to mention a statement that the defendant had made to the child's doctor. The defendant told the doctor, in the presence of a police officer, that she would not have sought medical attention for the child had she known the doctor was going to call the police. The night before trial, the prosecutor learned that the doctor intended to testify about the defendant's statement made in the presence of the police officer. The prosecutor did not inform defense counsel of this statement until just before the trial started. Defense counsel moved to preclude the introduction of the statement, but his motion was denied. Williams , 267 Ark. at 531, 593 S.W.2d at 10.
The supreme court reversed, holding that the violation of Rule 19.2 was clear and that the evidence should have been excluded or a continuance granted: "The court's error was its failure to enforce the rule of discovery that imposes upon the State an obligation to timely inform the defendant of all information it has been properly requested to furnish. " Id. , 593 S.W.2d at 11 (emphasis added).
Here, despite a proper motion expressly seeking disclosure of Rule 404(b) evidence, the State failed to disclose that it had Rule 404(b) evidence. The transgression here is greater than in the Williams case. In Williams , the State disclosed the material prior to trial. In this case, the State failed to "disclose" the information until it was cross-examining Honey. At that juncture, it was far too late for Honey to investigate the matter himself or to prepare any kind of defense or response to the allegation. As the supreme court stated in Williams , "The [circuit] court must act in such a situation." Id. The circuit court's failure to grant Honey's motion for mistrial in the face of the State's misconduct was an abuse of discretion. We therefore reverse on this point as well.
Despite the trial error in this case, the State suggests that any error was harmless. Under the harmless-error rule, we can declare error harmless if two conditions are met: (1) the evidence of guilt is overwhelming, and (2) the error is slight. Cutsinger v. State , 2017 Ark. App. 647, at 6, 536 S.W.3d 134, 138.
Concerning the evidence of guilt, the State points to the testimony of the victim, R.T. Admittedly, R.T. testified that Honey put his finger into her vagina and anus, and that testimony, standing alone, was sufficient to convict Honey. See McPherson v. State , 2017 Ark. App. 515, at 4, 532 S.W.3d 96, 100 (A rape victim's uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child.). The State also urges that R.T.'s testimony was corroborated by her mother's account of the events. Additionally, the State points out that when R.T.'s mother confronted him with the allegations, Honey fled the house.
See Bailey v. State , 2016 Ark. App. 209, at 5, 489 S.W.3d 203, 206 (noting that the jury may consider evidence of flight as probative evidence of guilt). What the State does not mention in its arguments are the inconsistencies in R.T.'s testimony. In fact, these inconsistencies were so prominent that the State sought and received permission to introduce a videotape of an interview that R.T. had given to a forensic interviewer at a child-advocacy center. As to the issue of Honey's "flight" from the scene, the State neglects to mention that he ran only when R.T.'s mother threatened to go get her gun.
Even if we were persuaded that the evidence against Honey was overwhelming, there is another prong of harmless error to consider: whether the erroneous actions of the prosecutor were "slight." In determining whether the error is slight, we look to see if the defendant has been prejudiced. Cutsinger , supra. Prejudice is not presumed, however, and we will not reverse the circuit court's ruling unless the appellant demonstrates prejudice by the admission of the evidence. Id. For an error to be harmless, it must be harmless beyond a reasonable doubt. Watson v. State , 318 Ark. 603, 887 S.W.2d 518 (1994) (citing Delaware v. Van Arsdall , 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ). Here, at the end of the trial, the State improperly interjected new, uncharged, undisclosed allegations that Honey had engaged in sexual misconduct with another child. We cannot say that the improper interjection was harmless beyond a reasonable doubt or that this error was slight. As the supreme court stated in Maxwell , supra , "We cannot establish a precedent that a deliberately unfair tactic such as the one before us can be made harmless by anything less than a reprimand in the presence of the jury or by the granting of a mistrial." Maxwell , 279 Ark. at 425, 652 S.W.2d at 33. The circuit court in this case should have granted Honey's motion for mistrial.
Reversed and remanded.
Abramson and Virden, JJ., agree.
We note the State's contention that Honey's argument is not preserved for appeal. The State maintains that Honey "acquiesced" to the denial of his mistrial motion and cannot now challenge a ruling by the circuit court with which he agreed. We disagree that Honey acquiesced to the circuit court's ruling. The court explicitly denied his motion for mistrial and then offered three options for proceeding in light of that denial. By choosing one of those options, Honey did not waive his right to challenge the denial of his motion on appeal.
In addition to the victim, the State produced another child witness, K.E., to testify that Honey had sexually abused her. K.E., and the substance of her testimony, however, had been disclosed to the defense prior to trial in response to Honey's initial discovery motion.
We note that the State did not respond to Honey's Rule 404(b) argument in its brief.
Rule 17.1 establishes the prosecuting attorney's obligations in discovery, requiring the State to disclose to defense counsel, upon timely request, material and information such as the names of witnesses, written or recorded statements of the defendant, or any record of prior criminal convictions of any person the prosecutor intends to call as a witness at trial. The supreme court has held that Rule 17.1"imposes a duty upon the state to disclose to defense counsel, upon a timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof."Williamson v. State , 263 Ark. 401, 405, 565 S.W.2d 415, 418 (1978).
R.T.'s mother testified that R.T. came into her room and woke her up to tell her that Honey had touched her "in the privates."
R.T. testified that her mother "told me about saying [Honey] did this to me," that she could not see the face of the person who touched her, and that she and her mother "went over this story a lot, probably more than ten times." | [
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N. MARK KLAPPENBACH, Judge
Appellant Kathy Frazier Mays appeals the May 2017 order entered by the Pulaski County Circuit Court, probate division, finding that she failed to establish the invalidity of an antenuptial agreement. The parties to the 1995 antenuptial agreement were Kathy and Sedrick Mays. Sedrick died in June 2015. Kathy argues on appeal that the trial court's finding that the antenuptial agreement was enforceable against her is clearly erroneous and must be reversed. We disagree with her argument and affirm.
The appellate court reviews probate proceedings de novo but will not reverse the decision of the probate court unless it is clearly erroneous. Seymour v. Biehslich , 371 Ark. 359, 266 S.W.3d 722 (2007). A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Patton v. Fulmer , 2016 Ark. App. 260, 492 S.W.3d 512. To the extent that the appellate court reviews questions of law, that review is de novo. Estate of Taylor v. MCSA, LLC , 2013 Ark. 429, 430 S.W.3d 120 ; Broussard v. St. Edward Mercy Health Sys., Inc. , 2012 Ark. 14, 386 S.W.3d 385.
Arkansas law has long recognized the validity of premarital agreements. See , e.g. , Oliphant v. Oliphant , 177 Ark. 613, 7 S.W.2d 783 (1928). In Arkansas, a premarital agreement is valid if it was freely entered into and is free from fraud and not inequitable. Arnold v. Arnold , 261 Ark. 734, 553 S.W.2d 251 (1977) ; Gooch v. Gooch , 10 Ark. App. 432, 664 S.W.2d 900 (1984). Parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law. Banks v. Evans , 347 Ark. 383, 64 S.W.3d 746 (2002) ; Hughes v. Hughes , 251 Ark. 63, 471 S.W.2d 355 (1971). In determining the fairness or equity of the agreement, the court may consider the parties' respective stations in life, their experiences and educations, and their knowledge of financial and legal matters. Banks , supra ; Gooch , supra.
At issue here is the enforcement of a premarital agreement, governed by Arkansas Code Annotated section 9-11-406, which provides in relevant part as follows:
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive after consulting with legal counsel, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
....
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
This law places the burden on the party contesting the agreement to prove its invalidity. Branch v. Branch , 2016 Ark. App. 613, 508 S.W.3d 911. To prevail under this statute, it was Kathy's burden to establish either that she did not execute the agreement voluntarily, or that all of the following existed: (1) that the agreement was unconscionable; (2) that, before the execution of the premarital agreement, she was not provided a fair and reasonable disclosure of Sedrick's property or his financial obligations; (3) that, before the execution of the premarital agreement, she did not voluntarily and expressly waive, after consulting with legal counsel, in writing, any right to disclosure of Sedrick's property or financial obligations beyond the disclosures provided; and (4) that, before the execution of the premarital agreement, she did not have, or reasonably could not have had, an adequate knowledge of Sedrick's property or financial obligations. Id. at 3-4, 508 S.W.3d at 914-15.
With these principles in mind, we examine the facts of this case. Sedrick Mays was the owner and operator of Kitchen Express, a restaurant in Little Rock, Arkansas. Sedrick graduated from high school, but he did not go to college. In 1993, Kathy's aunt introduced her to Sedrick at the restaurant. Kathy had gone to college, and she was trained to be a registered nurse. The two began dating in December 1993.
Kathy moved back to her hometown in Camden, Arkansas, to live with her mother, but she and Sedrick alternated driving between Camden and Little Rock to visit one other. Kathy would stay with Sedrick at his house on West 31st Street in Little Rock, near the restaurant. The two eventually planned to marry, setting the date for December 30, 1995. On December 27, 1995, the two applied for a marriage license in Pulaski County. Sedrick was 34 years old, and Kathy was 31 years old; they signed as "Sedrick Louis Mays" and "Kathy G. Frazier," and their signatures were verified by the county clerk.
Willie Bradley would later testify that he came to the restaurant on December 29, 1995, to visit his cousin "Sed." The restaurant was open. Willie stated that this was the first time he met Kathy and that Sedrick introduced her as his fiancée. Willie was there when Sedrick signed the document in front of a notary, Michael Craig. Willie said that he and another witness, Angela Peterson, whom he did not know, signed the document as well. He said that Kathy did not say anything, nor did he hear any conversation between Sedrick and Kathy about the document, but he did not witness Kathy behave in any way to make him think she was not voluntarily signing the document. Willie witnessed the notary place the physically imprinted, raised notary seal on the document. Willie stated that the date on the document, December 29, 1995, was already written on the document and that it was the date that everyone signed. Willie admittedly did not read through the document; the signature pages were open for him. In response to the trial court's question, Willie stated that "[t]he only document that I saw was the part that we signed. It was just two pages. As far as I can remember, there were just two pages. The two pages we signed. There probably were some more there, but I didn't really pay enough attention to it." On cross-examination, Willie agreed that Sedrick had loaned him money in June 1995, but Willie said that he paid Sedrick back in a week's time and that he was not asked to sign the document in exchange for forgiveness of debt. Willie did not go to Kathy and Sedrick's wedding.
The "Antenuptial Agreement" was eleven pages long, and in it, Sedrick and Kathy agreed that they intended, in anticipation of marriage, to fix and determine their rights and claims to the estate and property of the other person by reason of marriage. The agreement recited that both of them had "disclosed to the other the nature and extent of their various property interests and all of their sources of income, both earned and unearned"; that each of them had "fully acquainted" the other of his or her "means and resources" and had "informed" the other "in detail" of his or her "net worth"; that they accepted the agreement's provisions "in lieu of all rights which they would otherwise acquire by reason of the marriage in the property or estate of each other"; that "each party has been fully informed of the financial condition of the other"; that both of them "clearly understand and consent to all provisions hereof" and "had the benefit of the advice of an attorney and counselor of their own selection" and entered the agreement "freely, voluntarily, and with full knowledge." The agreement recited that this document contained "the entire understanding of the parties."
The agreement recited that each party would retain his or her own premarital property, including "real, personal or mixed" property, free from any and all rights or claims of the other party, including through "inheritance." The agreement set forth that the "only exception to this Agreement" would be the real property located at 11025 Dogwood Cove in Little Rock, which they had "purchased jointly"
in November 1995, before their marriage. The agreement specified particular premarital assets located in Little Rock belonging to Sedrick, including 2805 Cross Street; 4624 West 31st Street; portions of four particular lots in Riffel and Holder's Second Edition; "Kitchen Express" located at 4600 Asher Avenue; the "Bread Store" at 4612 Asher Avenue; the "House" at 4617 West 31st Street; and a "vacant lot" at 4624 Asher Avenue in the Oakhurst Addition. Kathy specifically agreed that Sedrick would have unfettered control and ownership of his premarital property "including all profits and increases in value from said real property." Each party waived and released any interest that might exist in those assets "including any interest, improvements, increases in value and/or profits derived from any real property during the course of the marriage." Each party agreed to "abolish spousal support obligations." The agreement was to become effective at the time of their marriage.
The last three of the eleven pages contained the signature pages. The ninth page contained the notary's two acknowledgments that the parties had executed the document, one for Kathy and one for Sedrick. Pages ten and eleven contained the signatures of "Sedrick Mays" and "Kathy Frazier" as well as witnesses "Willie C. Bradley" and "Angela Peterson," which were all verified by the notary. Just below the signature of "Kathy Frazier" are the witnesses's statements that they are witnesses to the "Antenuptial Agreement" that was "executed by Kathy Frazier[.]"
Kathy and Sedrick married on December 30, 1995, in a small town a few miles away from Camden, Arkansas. The parties eventually sold the house on Dogwood Cove and bought a house at 17 Reynard Estates Drive in Little Rock. In July 2013, Sedrick filed a complaint for divorce from Kathy. In response to Kathy's pleading that sought spousal support, Sedrick alleged that "the parties are bound by a valid, executed antenuptial agreement that abolishes spousal support obligations." The parties subsequently reconciled, and the divorce matter was dismissed in March 2014. Kathy worked as a nurse manager for Centers for Youth and Families, while Sedrick continued to run the restaurant.
Sedrick went missing for a few days in June 2015, and his body was found in Hensley, Arkansas, on June 20, 2015. Sedrick, who was then 53 years old, did not have a last will and testament. On June 24, 2015, Kathy filed a petition to be appointed administratrix of Sedrick's estate, which was granted.
In August 2015, Sedrick's ten siblings filed a petition seeking to remove Kathy as administratrix and to have an accounting and inventory conducted. The siblings presented the document titled "ANTENUPTIAL AGREEMENT" as the basis for asserting the following allegations: that Sedrick had specifically informed Kathy of his ownership of Kitchen Express and other real properties and that she had waived any and all interest in Sedrick's premarital assets; that Kathy had changed the locks on the restaurant and had the restaurant's safe drilled opened and emptied; that thereafter Kathy intentionally excluded the siblings from any management or administrative functions of the business; and that Kathy intentionally failed to disclose the existence of the antenuptial agreement and misled the court in order to prevent Sedrick's rightful heirs from receiving his premarital property. In response, Kathy argued that (1) she did not knowingly and voluntarily execute the antenuptial agreement; (2) she did not execute the document before marriage; and (3) enforcement of the agreement against her would be unconscionable.
The matter was presented in a February 2017 bench trial. Kathy explained that after dating for about two years, she and Sedrick planned to get married. She verified her and Sedrick's signatures on their application for a marriage license, dated December 27, 1995. Kathy said that she was not in Little Rock, though, on December 29, 1995, because she was in Camden getting ready for the wedding, getting her nails done, meeting with the church decorator, and taking her maid of honor for a dress fitting.
Kathy denied signing any antenuptial agreement, but if she did sign this one, it was not knowingly and voluntarily. She said that if Sedrick had asked her to sign this agreement (which she had read before trial), she would not have married him; if she was going to enter into such an agreement, she would have consulted with an attorney.
Kathy stated that she knew that Michael Craig was a CPA who did accounting for Sedrick and that Willie Bradley was one of Sedrick's relatives, but she did not know who Angela Peterson was. She added that she did not know about a lot of Sedrick's assets, though she knew he owned Kitchen Express and had visited him at his home on West 31st Street. She knew about his vehicles but not about their worth; she was unaware of Sedrick's investments and debts. When asked what personal property that she thought Sedrick had not disclosed to her before marriage, Kathy replied twenty shares of Walmart stock, which would have been valued at approximately $211 at that time, and his clothes and furniture.
Kathy stated that she did sign a single page of paper at the restaurant a week after they returned from their honeymoon. She testified that Sedrick had already signed the piece of paper, that he told her that she was a witness "to evidence a debt that Willie owed to Sedrick," that she did not recall seeing Michael Craig there, and that Willie and a female were there. Kathy said that she signed using her maiden name, even though it was after the wedding, noting that the document already had "Frazier" typed on it. She said, "I didn't really read this document in its entirety. I saw Sedrick's name, he asked me to sign it, I signed it. And that was the end of that.... [T]here were two documents, that's my position, there were just two pages." She acknowledged, though, that on the page below her signature were the words "Antenuptial Agreement."
Kathy denied ever knowing about the antenuptial agreement until after Sedrick's death. She denied having read anything about it in the divorce papers. She said that she did not ever work at Kitchen Express during the marriage but that Sedrick did give her keys to the restaurant, and she handled a lot of office duties. She said that in 1997 they borrowed roughly $225,000 to renovate and expand the restaurant, but she would not have put her name on that loan had she known that she did not have any interest in Kitchen Express. She said that they also borrowed $55,000 during the marriage to buy real estate near the restaurant and used it as a banquet room that could be rented out, which became her sole property at his death. She said that they owned household furniture valued at $64,000 that was now hers.
Kathy explained that when Sedrick died, she had the restaurant locks changed because Sedrick trusted his sister Jacqueline with the keys, but she did not. Kathy said it cost $400 to have the restaurant's safe drilled. Jacqueline had the combination, and Kathy believed the safe held "money and papers." Kathy said that she received life insurance proceeds after Sedrick's death and that she sold Sedrick's boat for $3,800 to pay for his headstone. She said that after Sedrick died, his vehicle was totaled, and she received the insurance proceeds. Kathy received Sedrick's Edward Jones retirement investment account worth over $300,000, and she retained ownership of their home at Reynard Estates. Kathy told the court that she did not think it would be fair to permit the Kitchen Express value that she helped to create to go to Sedrick's brothers and sisters when they never made an investment in the restaurant like she did.
Kathy's mother, Margaret Frazier High-Smith, testified that her daughter got married on Saturday, December 30, 1995. Margaret said that the day before, on Friday, she and Kathy were busy with wedding preparations, including meeting with the maid of honor for a dress fitting, getting their hair and nails done, meeting with the church decorator, getting ready for the rehearsal dinner, and staying overnight at their Camden home, with no time to drive up to Little Rock. She said that Kathy was living with her and working at a Camden nursing home before her marriage but that Kathy would occasionally go back and forth between Camden and Little Rock.
A forensic document examiner, Grant R. Sperry, was called to testify about his expertise in identifying handwriting. He used comparative samples of Kathy's handwriting, explained their similar cumulative characteristics, and opined that Kathy "probably" wrote the signature on the antenuptial agreement, meaning that his opinion was with a "relatively high degree of certainty." He testified that there was no evidence of page substitution, manipulation, deletion, or insertion; that the font and impact of the print on the pages was consistent with machinery used in 1995; that there were no notable differences in the composition of the eleven pages of paper; that rust around the staple holes indicated age and/or storage; and that all the signatures except the notary's made indentations to the next page.
Willie testified at the bench trial in line with what has been heretofore described. In short, he testified that he was present on December 29, 1995, at the restaurant with Sedrick, Kathy, and Angela, when they all signed the document and had their signatures notarized.
Fredrick Mays, Sedrick's older brother, testified that he came to the wedding in 1995 and that Sedrick showed him the agreement before the wedding. He said that Sedrick had the agreement with him on that day. Fredrick said that he and Sedrick had previously discussed the agreement "to protect our family restaurant" and that Sedrick "had previously said he was going to have it done." That was why Fredrick had "pulled Sed to the side" before the wedding to ask if he had gotten "the business taken care of," and Sedrick confirmed that he had.
Jacqueline Mullins, Sedrick's youngest sister, testified that she had previously been the office manager at Kitchen Express but that after Sedrick died, Kathy demoted her. Jacqueline said that Sedrick trusted her with the keys and the combination to the safe but that Kathy did not. Jacqueline testified that Michael Craig and Sedrick's lawyer, Horace Walker, were no longer alive but that the lawyer had prepared the premarital agreement, that it was what Sedrick wanted, that she knew about the agreement before his death, and that the agreement was "important to the family." Jacqueline stated that she was qualified to run the restaurant and that she was also "ready, willing, and able" to take over the administration of her brother's estate.
Rodney Williams, Sedrick's nephew, testified that Sedrick had told him about the premarital agreement and that it was found in the trailer on Sedrick's property in Hensley, Arkansas, where he was found deceased.
After hearing arguments of counsel, the trial court asked for posttrial briefs and for proposed findings of fact and conclusions of law. The trial court then took the matter under advisement.
In May 2017, the trial court filed the order that is on appeal. Therein, the trial court considered Kathy's contentions that she did not knowingly and voluntarily execute the agreement; that she did not execute the agreement until after the marriage; and that the agreement was unconscionable. In pertinent part, the trial court found that (1) Kathy and Sedrick executed the agreement on December 29, 1995, with two witnesses present; (2) Kathy failed in her burden to prove that she did not voluntarily execute the agreement; (3) Kathy's testimony was not credible; (4) Kathy and Sedrick had equal bargaining power at the time of the agreement's execution; (5) Kathy's failure to read the agreement did not render it unenforceable; (6) Kathy failed to prove that she was not given a fair and reasonable disclosure of Sedrick's property or financial obligations or that she did not have or could not have had an adequate knowledge of the property or financial obligations of Sedrick; (7) the agreement listed all of Sedrick's real property owned at that time and referred specifically to the "Kitchen Express" property; (8) Kathy was aware that Sedrick owned Kitchen Express at the time of the agreement's execution; (9) Sedrick disclosed the bulk of his assets in the agreement, and Kathy was familiar with the property he owned before the marriage; (10) Kathy complained of lack of disclosure of Sedrick's personal property, vehicles, and Walmart stock, but those were cumulatively of "minimal value" when compared to the property he did disclose; (11) Sedrick provided a fair and reasonable disclosure of the property he owned before the marriage, and Kathy had an adequate knowledge of his property; (12) the agreement was valid and enforceable and precluded Kathy from any rights to Sedrick's premarital property; and (13) Kathy was removed as administratrix, and Jacqueline was appointed as administratrix subject to her acceptance. This timely appeal followed.
On the issue of voluntariness, we hold that the trial court did not clearly err. Kathy's argument appears to be that she was tricked into signing only the signature pages, that she was deceived into believing that she was witnessing a promise by Willie to repay a debt to Sedrick, and that she could only have been asked to do this after the marriage and not before she married. What Kathy is asking us to do, in essence, is to reweigh the evidence in her favor and to find her to be credible, which is not the function of the appellate court. See In re Estate of Davidson , 310 Ark. 639, 839 S.W.2d 214 (1992) ; Minton v. Minton , 2010 Ark. App. 310, 374 S.W.3d 818.
The trial court had before it the testimony of Willie Bradley who confirmed that the execution of this document took place on the day before the wedding, with Sedrick, Kathy, Angela, and the notary present; Willie stated that Sedrick introduced Kathy as his fiancée; the document bore the notary seal pressed through each of the final pages; the page on which Kathy's signature appears contains the words "antenuptial agreement" just below her signature; a document examiner provided expert testimony supporting a finding that this was Kathy's signature; and even Kathy acknowledged that she probably signed something with these people present, although she disputed the document's length, purpose, and the timing of its execution. The trial court obviously believed that the entire agreement was present on the date it recites that it was signed. The trial court clearly put the responsibility on Kathy, an adult college-educated person, for any alleged failure to read or comprehend this agreement as a choice made at her own peril. Therefore, we cannot say that the trial court clearly erred in concluding that Kathy failed to prove that she involuntarily executed the agreement.
On the issue of unconscionability, we have reviewed this de novo and hold that there is no error. The issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. Ark. Code Ann. § 9-11-406(c). An act is unconscionable if it affronts the sense of justice, decency, and reasonableness. Gulfco of La., Inc. v. Brantley , 2013 Ark. 367, 430 S.W.3d 7 ; Baptist Health v. Murphy , 2010 Ark. 358, 373 S.W.3d 269. When assessing whether a contractual provision is unconscionable, the courts review the totality of the circumstances surrounding the negotiation and execution of the contract. Jordan v. Diamond Equipment & Supply Co. , 362 Ark. 142, 207 S.W.3d 525 (2005). Two important considerations are whether there is a gross inequality of bargaining power between the parties and whether the aggrieved party was made aware of and comprehended the provision in question. GGNSC Holdings, LLC v. Lamb ex rel. Williams , 2016 Ark. 101, 487 S.W.3d 348.
The trial court found that these parties had equal bargaining power. Sedrick was a businessman with a high school education; Kathy was a college-educated licensed nurse; both were in their thirties; the parties dated approximately two years before their marriage; and both had their own assets before their marriage. Notably, the antenuptial agreement was mutual in that both parties were precluded from having any rights to any property interests of the other party that existed prior to marriage. The agreement disclosed Sedrick's premarital real estate with particularity. This antenuptial agreement does not in any way affront the sense of justice, decency, and reasonableness. Thus, we hold that Kathy failed to prove that this agreement was unconscionable. This renders moot any discussion about the three additional statutory factors that Kathy was required to prove along with unconscionability. Nonetheless, we hasten to add that the trial court did not clearly err in finding that Kathy had, or reasonably could have had, an adequate knowledge of Sedrick's property or financial obligations.
In summary, we hold that the trial court did not clearly err in finding that Kathy failed to prove that she involuntarily executed the antenuptial agreement or that the agreement was unconscionable. For these reasons, we affirm the trial court's order.
Affirmed.
Harrison and Brown, JJ., agree.
The terms "antenuptial" and "premarital" are synonymous, see Ark. Code Ann. § 9-11-401 (Repl. 2015), and we use those terms interchangeably in this opinion.
The driving distance between Camden and Little Rock is approximately 100 miles.
One exhibit listed Kathy as the beneficiary of life insurance policies with a face value exceeding one million dollars.
Apparently, Sedrick's body had been in the vehicle decomposing for some days before it was found, which left a persistent unpleasant odor inside the vehicle. | [
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DAVID M. GLOVER, Judge
Curtis Motley, Jr., appeals from the trial court's dismissal with prejudice of his complaint against Dr. Michael Sifford, alleging medical malpractice in the death of his mother, Laura Motley. We find no error and affirm.
The essential facts of this case are undisputed. Laura Motley died on September 17, 2012. On August 29, 2014, Curtis Motley, Sr., her husband and special administrator of her estate, filed suit against Dr. Sifford within the two-year statute of limitations; however, Curtis, Sr., died on November 29, 2014, before Dr. Sifford was served with the complaint on December 14, 2014. Although an amended complaint was filed on February 5, 2015, it merely changed the name of the plaintiff in the case from Curtis, Sr., to Curtis, Jr., as special administrator of Laura's estate. No order of substitution or revivor was entered in the case. Dr. Sifford moved to strike the amended complaint and to dismiss it for failure to revive the action, which also rendered service of the complaint defective. Curtis, Jr., then moved to substitute himself as the plaintiff in the action. Following a hearing, the trial court entered its July 8, 2015 order dismissing the complaint without prejudice, but it did not order the substitution of Curtis, Jr. No appeal was taken.
On January 13, 2016, Curtis, Jr., refiled the action as special administrator of his mother's estate. Dr. Sifford was served on September 2, 2016, and again moved to dismiss, contending the action had not been properly revived, it was barred by the statute of limitations, and service was defective. Following a hearing, the trial court entered its April 28, 2017 order, dismissing the complaint with prejudice. This appeal followed.
For his sole point of appeal, Curtis, Jr., contends the trial court erred in granting Dr. Sifford's motion to dismiss the amended complaint with prejudice. We disagree.
To put the current case in context, in dismissing the original complaint without prejudice, the trial court explained in its July 2, 2015 letter opinion:
The facts impacting these motions are straightforward. Separate Defendant maintains that the Special Administrator, Curtis Motley, died after filing the Complaint (on August 29, 2014) but before achieving service on Separate Defendant (on December 15, 2014). Separate Defendant argues as follows: (a) the lawsuit abated when Curtis Motley died, necessitating a revivor which has yet to occur; (b) service occurring after the death of Curtis Motley is void which warrants dismissal; and (c) all pleadings filed after the death of Curtis Motley should be stricken. Separate Defendant contends that the dismissal should be with prejudice. Plaintiff opposes such and argues that dismissal is not warranted.
The trial court concluded that the death of Curtis, Sr., rendered service of the lawsuit defective but did not deprive the plaintiff of the savings statute; the trial court specifically found "that the service in this case was timely completed, but was ultimately defective due to the death of the special administrator." In accordance with that reasoning, the court granted Dr. Sifford's motion to dismiss but did so without prejudice. As acknowledged by Curtis, Jr., however, neither the letter opinion nor the order dismissing without prejudice specifically says anything about substituting Curtis, Jr., as special administrator for Curtis, Sr.
Coming forward, the April 28, 2017 order of dismissal clearly sets forth the trial court's rationale for dismissing the case with prejudice:
1. The original suit filed by Curtis Motley, as Special Administrator of the Estate of Laura Motley, deceased, Craighead County Circuit Court, No. CV-14-433, was never properly revived following the death of Curtis Motley, Sr.
2. The applicable statute of limitations for this medical malpractice claim is two (2) years, according to Ark. Code Ann. § 16-114-203. This lawsuit was filed by Curtis Motley, Jr. more than two (2) years following the death of Laura Motley; therefore, the action is barred by the statute of limitations.
3. The savings statute set forth in Ark. Code Ann. § 16-56-126 does not apply to the case at bar and will not toll the limitations period.
4. Plaintiff's attempt to obtain service was defective because it was attempted during the time when the case had not been properly revived.
5. For all these reasons and the reasons set forth in the Court's letter opinion dated April 13, 2017, which is hereby incorporated by reference, the instant lawsuit filed by Curtis Motley, Jr. against Dr. Michael Sifford is dismissed with prejudice.
Curtis, Jr., contends that the trial court erred in dismissing the current case with prejudice in its April 28, 2017 order because the case had been properly revived. That is, although Curtis, Jr., acknowledges that the order dismissing the original complaint without prejudice did not contain the words revivor or substitution, he nevertheless argues that in not striking the complaint, "the request for substitution was granted." We cannot agree.
The opening paragraph of the order of dismissal without prejudice provides:
On the 22nd day of June 2015, this matter came on to be heard on the Motion to Dismiss and Motion to Strike filed by separate defendant, Michael Sifford, M.D. ....
(Emphasis added.) While the order specifically mentions Dr. Sifford's motions to dismiss and to strike, it says nothing about the motion to substitute filed by Curtis, Jr., and no appeal was taken from that order. As noted by Dr. Sifford, our supreme court has held that it will not presume a ruling when a trial court's order is silent on an issue, TEMCO Constr., LLC v. Gann , 2013 Ark. 202, 427 S.W.3d 651, and the mere filing of an amended complaint changing the name of the plaintiff does not suffice to substitute a party. Wooley v. Planter's Cotton Oil Mill, Inc. , 91 Ark. App. 213, 209 S.W.3d 409 (2005). Finally, to the extent Curtis, Jr., may be inviting us to review the order of dismissal without prejudice for error, we merely note that we are without jurisdiction to do so.
In short, the arguments from both sides in this appeal acknowledge that unless there is consent from the defendant, an order of revivor must be entered within one year from the date of death of the decedent plaintiff, which in this case was Curtis, Sr., who died on November 29, 2014, making the one-year period for revival expire on November 29, 2015. Thus, all of the bases upon which the trial court dismissed this case with prejudice hinge on whether we can accept the position of Curtis, Jr., that the July 8, 2015 order of dismissal without prejudice effectively included an order substituting him as a party. We are not able to do so. In the absence of an order substituting him as the appropriate party, we find no error in the trial court's conclusion that the original suit was never properly revived, that the statute of limitations had expired, and that the savings statute did not apply under these circumstances to toll the limitations period.
Affirmed.
Abramson and Murphy, JJ., agree.
As our supreme court explained in Ausman ex rel. Estate of Ausman v. Hiram Shaddox Geriatric Ctr. , 2013 Ark. 66 at 9, 426 S.W.3d 379, 385 :
Arkansas law provides that every action is to be prosecuted in the name of the real party in interest. Ark. R. Civ. P. 17(a) (2012). A real party in interest is considered to be the person or corporation who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery. We [have] explained ... that the person appointed as the special administrator was the only person who had a right to discharge a claim. Thus, in this case, Mrs. Ausman was the real party in interest and her death abated the action, necessitating its revivor. The procedure for such revivor is set forth in Rule 25, but, as we have explained and as set forth in subsection (e) of Rule 25, the limitations provision of section 16-62-108 remains applicable. Accordingly, the Estate's failure to move for substitution within one year from the time of Mrs. Ausman's death prevents the revivor of the action, and the circuit court properly granted the motion to strike, thereby dismissing the action with prejudice. | [
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LARRY D. VAUGHT, Judge
Appellant Angie Hewett appeals the Benton County Circuit Court's order modifying custody of G.H., her child with appellee, ex-husband Kelly Hewett. The court's order modified the previous custody arrangement, under which Angie had primary custody, and awarded joint custody. We reverse and remand to reinstate the previous custody order.
Kelly and Angie Hewett were divorced on October 29, 2012. Based on an agreement of the parties, the court awarded Angie primary custody of the couple's son, who was five years old at the time, and awarded Kelly standard visitation. The record reflects that the parties have had significant difficulty communicating since the divorce and that they have continually argued. In 2013, Angie obtained an ex parte order of protection against Kelly, which was dismissed after a full hearing and that which resulted in the court increasing Kelly's visitation. In August 2016, Angie obtained an ex parte order terminating Kelly's visitation, stemming from an incident on July 31, 2016, in which Kelly's current wife, April Hewett, called Angie and reported that April and Kelly had gotten into an argument, Kelly had been drinking, the police had been called, and Kelly had left with G.H. to go to a hotel room. Angie retrieved G.H. from the hotel room and refused to allow Kelly to have further visitation. The court entered an ex parte order suspending Kelly's visitation but subsequently vacated the order and reinstated visitation after a full hearing.
Kelly then filed a motion for contempt against Angie and a counterclaim for modification of custody. He argued that Angie had made derogatory statements about him, failed to notify him of G.H.'s baptism, refused to provide him with extracurricular equipment he purchased for G.H., was disrespectful to Kelly via text and in the presence of G.H., and was attempting to alienate G.H. from Kelly. The court appointed Acacia Stinnet as attorney ad litem for G.H.
After a temporary hearing, the court found that the parties had not been able to get along since the time of the divorce and found no reason to restrict Kelly's visitation. Angie amended her motion to include allegations that Kelly had been excessively checking G.H. out of school and that Kelly had failed to give Angie the right of first refusal when he needed childcare for G.H., as required by the divorce decree.
The final hearing revealed further evidence of antagonistic behavior by both parties, including name-calling and an inability to communicate with each other. The court issued an order, filed on January 17, 2017, which found that there had been a material change in circumstances warranting a change of custody. While the court did not explicitly state how the circumstances had changed, the only circumstances that the court mentions in the order are the parties' inability to get along or communicate civilly with each other. The court found it was in G.H.'s best interest to award joint custody, which it did. It ordered the parties to agree on all decisions regarding the child, specifically stating that if the parents could not agree on extracurricular activities then G.H. would not be able to participate in such activities. The court found both parties in contempt: Angie for name-calling and Kelly for being under the influence of alcohol in the presence of the child. Angie filed a timely notice of appeal challenging the court's modification of custody.
The Arkansas Supreme Court has stated that "the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary." Hamilton v. Barrett , 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999). Further, the court has stated that "[a] judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is 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 the chancellor or were not known by the chancellor at the time the original custody order was entered." Jones v. Jones , 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996). "[C]hild custody is determined by what is in the best interests of the child, and it is not altered absent a material change in circumstances." Id. at 487, 931 S.W.2d at 770. "The party seeking modification of the child-custody order has the burden of showing a material change in circumstances." Id. at 491, 931 S.W.2d at 772. Further, "[f]or a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child." Lewellyn v. Lewellyn , 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).
In reviewing child-custody cases, we consider the evidence de novo but will not reverse a trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Lowder v. Gregory , 2014 Ark. App. 704, at 14, 451 S.W.3d 220, 229. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Id. , 451 S.W.3d at 229. This deference is even greater in cases involving child custody, as a heavier burden is placed on the trial court judge to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id. , 451 S.W.3d at 229. When the circuit court fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the circuit court could have found a change in circumstances. Campbell v. Campbell , 336 Ark. 379, 384, 985 S.W.2d 724, 727 (1999) ; Stamps v. Rawlins , 297 Ark. 370, 761 S.W.2d 933 (1988).
On appeal, Angie argues that there was insufficient evidence of a material change in circumstances warranting modification of custody and that the award of joint custody was not in G.H.'s best interest. We agree on both points, reverse the court's order modifying custody, and remand for the court to reinstate the former custody arrangement.
To facilitate stability and continuity in the life of a child and to discourage repeated litigation of the same issues, custody can be modified only upon a showing of a material change of circumstances. Stills v. Stills , 2010 Ark. 132, 361 S.W.3d 823. The court's order failed to articulate the specific change in circumstances warranting modification in this case. The only circumstances referenced in the order were the parents' inability to communicate civilly and work together to make parenting decisions. These facts do not demonstrate a change; in the temporary order filed September 21, 2016, the court found that "the parties have a miserable relationship going back to the divorce." The court had previously found in 2013 and 2014 that Angie's demeanor toward Kelly was unreasonable and could negatively impact the child. Neither the evidence presented at the hearing nor the court's final order demonstrate that the parties' bickering and name-calling was new or had significantly worsened. We agree with Angie's argument that this case is akin to the "scattering of petty complaints" we rejected in Byrd v. Vanderpool , 104 Ark. App. 239, 244, 290 S.W.3d 610, 613 (2009). Based on the evidence presented below and the court's previous findings, we see no basis for determining that there had been a material change, which is required before modification of custody can be considered.
Further, even if we assumed, for the sake of argument, that the parties' inability to get along and their overt hostility toward each other amounted to a material change in circumstances, it clearly counsels against affirming on the second point, whether joint custody was in G.H.'s best interest. In the recent case of Li v. Ding , 2017 Ark. App. 244, 519 S.W.3d 738, we reversed and remanded an award of joint custody where the parties had a longstanding problem with communication and cooperation. In Li , we explained
Arkansas Code Annotated section 9-13-101 states that an award of joint custody is favored in Arkansas. As used in this section, "joint custody" means the approximate and reasonable equal division of time with the child by both parents individually as agreed to by the parents or as ordered by the court. Regardless of whether joint custody is favored, our law remains 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 an award of joint custody, and such an award is reversible error when cooperation between the parties is lacking.
Li , 2017 Ark. App. 244, at 10-11, 519 S.W.3d 738, 743-44.
In the present case, the court based its award of joint custody on the parents' inability to cooperate and communicate. This is in direct violation of our clear dictate in Li and other previous cases, such as Hoover v. Hoover , 2016 Ark. App. 322, at 7, 498 S.W.3d 297, 301, and Stibich v. Stibich , 2016 Ark. App. 251, 491 S.W.3d 475. Joint custody is inappropriate when cooperation between the parties is lacking. We therefore reverse and remand for the court to reinstate its previous order awarding Angie primary custody.
Reversed and remanded.
Gruber, C.J., and Harrison, J., agree.
In a later order, the court found that the parties had partially purged themselves of the contempt and could fully purge themselves by paying fines to the registry of the court. | [
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LARRY D. VAUGHT, Judge
Bobby Bolden appeals after the Pope County Circuit Court entered an order terminating his parental rights to his sons, N.B. (born 9-3-15) and L.B. (born 4-5-14). On appeal, Bolden challenges the sufficiency of the evidence supporting the circuit court's findings that the Arkansas Department of Human Services (DHS) proved statutory grounds and that termination was in the best interest of the children. Bolden also argues that the circuit court's termination decision is fundamentally unfair. We affirm.
On December 1, 2015, DHS exercised a seventy-two-hour hold on N.B. and L.B. On the same date, DHS filed a petition for emergency custody and dependency-neglect seeking to remove the children from the custody of their mother, Crystal Griffin, due to her drug use and the physical abuse of the children while in her care. Bolden, the putative father of N.B. and L.B., was incarcerated at the time. The circuit court entered an emergency order on December 3, 2015, and a probable-cause order was entered on December 16, 2015. An adjudication order was entered on January 11, 2016, wherein the circuit court found the children were dependent-neglected based on parental unfitness due to Griffin's drug use and her failure to protect the children. The court further found that Bolden had not presented evidence that he had established significant contacts with the children; therefore, putative-parent rights did not attach. The goal of the case was reunification.
A review-hearing order was entered on March 18, 2016, in which the court found that Bolden is the legal father of N.B. and L.B. The order further directed Bolden to submit to random drug screens; attend and complete parenting classes; obtain and maintain stable and appropriate housing and employment; and maintain weekly contact with DHS. The goal of the case continued to be reunification. A second review-hearing order was entered on June 13, 2016. This order reordered Bolden to comply with the same case plan. The goal of the case continued to be reunification. A third review-hearing order was entered on August 29, 2016. The court reiterated the case-plan directives for Bolden. The court also directed DHS to initiate an ICPC home study on Bolden. The goal of the case continued to be reunification.
On November 28, 2016, a permanency-planning hearing was held. In addition to the previously ordered services, the court ordered Bolden to provide DHS with proof of employment and be available for random drug testing. The goal of the case continued to be reunification. On December 5, 2016, the circuit court entered an order appointing special advocates (CASA).
A second permanency-planning hearing was held on January 23, 2017. As it relates to Bolden, the court restated its case-plan directives. The goal of the case was changed to termination and adoption, and a termination hearing was scheduled.
On February 27, 2017, DHS filed a petition for termination of parental rights against both Griffin and Bolden. DHS alleged that termination was in the best interest of N.B. and L.B. and that several grounds supported termination under Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2017), including the failure-to-remedy, subsequent-factors, and failure-to-maintain-meaningful-contact grounds.
A hearing on the termination petition was held on April 24, 2017. DHS caseworker Milissa Ennis testified that Bolden was incarcerated when N.B. and L.B. were placed in DHS custody in December 2015, was released in February 2016, and was reincarcerated in late January 2017. She said that he was expected to be released in June 2017.
Ennis further testified that Bolden had sporadic employment during the case. She also stated he completed parenting classes and maintained "somewhat" stable housing. She said that after he was released from prison in February 2016, he lived in Pope County from February to May 2016, moved to Union County where he lived from May to July 2016, moved to Louisiana where he lived from July to October 2016, and moved back to Pope County where he lived from October 2016 to January 2017. She said he was reincarcerated in January 2017 for failure to pay court-ordered child support.
Ennis reported that Bolden tested positive for opiates and THC on May 4, 2016, and that he had a prescription for hydrocodone at that time; he was positive for opiates and THC on June 13, 2016; he had negative drug screens on June 20 and 30, 2016; he was positive for oxy and methadone on December 20, 2016; and he was negative for drugs on December 30, 2016.
Ennis testified that Bolden attended only fifteen of forty-one scheduled visits with N.B. and L.B. and that there were big gaps in time when Bolden did not visit the children at all. She said that his last visit with the children was on December 30, 2016. Ennis stated that when Bolden did visit the children, the visits went well. Finally, Ennis testified that N.B. and L.B. were adoptable and that they lacked medical or behavioral issues that would prevent them from being adopted.
Bolden testified that at the onset of this case, he had been incarcerated on a drug charge and was released on February 1, 2016. He said that he was later prosecuted and found guilty of failing to pay court-ordered child support for his two older children in the amount of $18,000 to $20,000 for which he received a ten-year-probation sentence. He testified that he absconded from probation when he moved to Louisiana without permission but that he did not know he was not permitted to leave Arkansas. Instead of having his probation extended, he elected to serve two years' imprisonment. He testified that he chose prison because DHS asked him to take care of his legal problems. Bolden added that he was currently under an order to pay the child-support arrearage at the rate of $200 per month and that he planned to start paying it back upon his release from prison.
Bolden also stated that upon his release from prison in February 2016, he met a "wonderful girl," Katie Percy. He moved from Pope County to Union County for Percy, and they decided together to move to Louisiana where Percy's family was living and because there were better job opportunities for them there. He stated that he worked on a farm and Percy worked as a teacher and that they had a house there that was being held for them upon their return to Louisiana. He stated that Percy has had a positive effect on his life and that he no longer desired to "run the streets." He said that Percy's family are "good Christian people" who accept his past and love him. He stated that Percy attended visits with him and that N.B. and L.B. immediately accepted her. Bolden said that he requested a home study on his Louisiana home, but because it took so long, he and Percy decided to return to Arkansas to be closer to the children.
Bolden told the court that he expected to be released from prison in late May 2017. He said he planned to marry Percy upon his release and that he and Percy are expecting a child. He planned to live with his grandparents in Pope County if he is able to continue working toward reunification with his children. He said that if this case does not go in his favor, he plans move to Louisiana with Percy and go back to work on the farm.
Bolden testified that he was not appointed an attorney until the goal of the case changed to termination of parental rights and that he believed he would have made better progress in this case if he had been appointed an attorney earlier. He testified that he wanted custody of N.B. and L.B. and that he wants them to be raised with their brothers. He said that he was "done with drug use" and that Percy is his incentive not to relapse. Percy did not testify.
At the conclusion of the hearing, the circuit court orally granted DHS's petition and terminated Bolden's parental rights, finding that termination was in the best interest of the children and taking into consideration the likelihood of adoption and the potential harm posed by returning them to Bolden. The court also concluded that DHS proved the failure-to-maintain-meaningful-contact and subsequent-factors grounds. In support of its conclusions, the circuit court found that Bolden had been given sixteen months to comply with the case plan and was unable to assume custody of the children. He was incarcerated at the beginning of the case for one reason and was incarcerated at the end of the case for another. The court found that he was dependent on Percy for housing and that there was nothing legally binding them together. The court stated that "[i]f at any moment [Bolden] messes up ... he runs the risk of being told 'Pick up your stuff, goodbye.' " The court found that this was a "very tenuous, very unstable situation and these children need permanence." The court found that N.B. had spent most of his life in foster care and that L.B. had spent almost half of his life in foster care. The circuit court found that it could not make the children wait forever. On May 9, 2017, the court entered an order terminating Bolden's parental rights. Bolden's appeal followed.
A circuit court's order terminating parental rights must be based on findings proved by clear and convincing evidence. Krecker v. Ark. Dep't of Human Servs. , 2017 Ark. App. 537, at 10, 530 S.W.3d 393, 400 (citing Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015) ). 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. , 530 S.W.3d at 400. On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Id. , 530 S.W.3d at 400. 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. , 530 S.W.3d at 400. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit court to judge the credibility of witnesses. Id. , 530 S.W.3d at 400. The appellate court is not to act as a "super factfinder," substituting its own judgment or second-guessing the credibility determinations of the circuit 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, at 7, 470 S.W.3d 316, 320.
In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). Only one ground must be proved to support termination. Krecker , 2017 Ark. App. 537, at 10, 530 S.W.3d at 400.
The circuit court found that Bolden's reincarceration, lack of stable housing, and lack of employment support the subsequent-factors finding. The subsequent-factors ground requires
[t]hat other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) .
In this case, subsequent to the filing of the dependency-neglect petition, Bolden was released from prison, was reincarcerated, and had no stable plan in place upon his release. In Conway v. Arkansas Department of Human Services , 2015 Ark. App. 30, at 7, 453 S.W.3d 703, 707, we held that the appellant's incarceration and lack of a viable plan upon his release were issues that arose subsequent to the filing of the original petition and made it not only inadvisable to place his child in his custody but also impossible to do so.
Also, subsequent to the filing of the dependency-neglect petition, Bolden violated court orders by failing three drug tests, failing to secure stable housing and employment, failing to visit his children, failing to pay child support, and violating his probation. In Cotton v. Arkansas Department of Human Services , 2012 Ark. App. 455, at 11, 422 S.W.3d 130, 138, this court affirmed the circuit court's termination decision, pursuant to the subsequent-factors ground, where the evidence demonstrated that the appellant failed to comply with the case plan and court orders and failed to obtain stable housing, employment, or income.
Finally, subsequent to the filing of the dependency-neglect petition, Bolden tested positive for illegal drugs on multiple occasions. In Henderson v. Arkansas Department of Human Services , 2010 Ark. App. 191, at 11-12, 377 S.W.3d 362, 368, we affirmed the circuit court's termination decision based on the subsequent-factors ground because the evidence demonstrated that the appellant used drugs during the case; she committed drug-related crimes after her child was taken into DHS custody; she failed to follow court orders during much of the case; and she failed to have appropriate housing or employment more than one year into the case. Based on the case law and the facts in the instant case, we hold that the circuit court did not clearly err in finding that the subsequent-factors ground supported the termination decision.
Bolden argues that his failure to secure housing and employment was due to being incarcerated. Citing Bush v. Dietz , 284 Ark. 191, 680 S.W.2d 704 (1984), and Zgleszewski v. Zgleszewski , 260 Ark. 629, 542 S.W.2d 765 (1976), he contends that although imprisonment imposes an unusual impediment to a normal parental relationship, our supreme court has held that it is not conclusive on the termination issue. These cases are inapplicable to the case at bar because they were decided under the adoption statutes. Nevertheless, this proposition has been applied to termination-of-parental-rights cases.
In Crawford v. Arkansas Department of Human Services , 330 Ark. 152, 157, 951 S.W.2d 310, 313 (1997), our supreme court held that imprisonment is not conclusive on the termination issue. However, our supreme court has also stated that a parent's imprisonment does not toll a parent's responsibilities toward his or her children. Malone v. Ark. Dep't of Human Servs. , 71 Ark. App. 441, 447, 30 S.W.3d 758, 762 (2000). Tolling a parent's obligations to comply with reunification orders while they are in jail would be contrary to the goal of the juvenile code to provide permanency for the children. Id. , 30 S.W.3d at 762. The appropriate inquiry when a parent has been ordered to comply with a court's reunification orders and is incarcerated is whether the parent utilized those resources available to maintain a close relationship with the children. Id. at 447-48, 30 S.W.3d at 762.
In the instant case, the circuit court did not terminate Bolden's rights solely because he was reincarcerated. His parental rights were terminated based on subsequent factors-as set forth above-that not only included his January 2017 reincarceration but also included evidence of his conduct during the eleven months that he was not incarcerated. This evidence included three positive drug tests; fifteen of forty-one visits with his children; no visits with his children since December 30, 2016; no stable housing or employment; no payments toward his court-ordered child support; probation for failing to pay the child support; and violation of his probation.
Bolden also argues that the circuit court failed to properly weigh his testimony that (1) he did not know that he was not permitted to move to another state without permission; (2) he elected the two-year prison sentence instead of extending his probation because DHS asked him to "take care of my legal stuff"; and (3) he had a postprison plan in place-marry Percy, remain drug-free, pay his $200 per month child-support arrearage, and get a job and housing-which would remedy his lack of housing and employment. It was for the circuit court to determine whether Bolden gave credible reasons for not complying with its orders and for violating other court orders and probation conditions. It was for the circuit court to determine whether Bolden's postprison plan was credible. Bolden's argument here hinges on his credibility as a witness, and we give great deference to the circuit court on credibility issues. Posey v. Ark. Dep't of Health & Human Servs. , 370 Ark. 500, 509, 262 S.W.3d 159, 167 (2007). And we note that Percy did not testify at the hearing.
Under this point, Bolden lastly argues that there is no evidence in the record to demonstrate that he did not comply with services; therefore, there is no evidence that he demonstrated incapacity or indifference to rehabilitate his circumstances as required by section 9-27-341(b)(3)(B)(vii)(a) . He claims that he completed parenting classes and was randomly drug tested. He points to his decision to return to prison in January 2017 as evidence that he complied with DHS's request that he "take care of [his] legal stuff." Again, these arguments hinge on Bolden's credibility as a witness. We give great deference to the circuit court on credibility issues. Posey , 370 Ark. at 509, 262 S.W.3d at 167.
In conclusion, we hold that the circuit court did not clearly err in finding that DHS met its burden of proving the subsequent-factors grounds, and we affirm on this point. Because we hold that this ground was sufficient to support the termination of Bolden's parental rights, and only one ground is required, we do not address the failure-to-maintain-meaningful-contact ground. McElroy v. Ark. Dep't of Human Servs. , 2014 Ark. App. 117, at 10-11, 432 S.W.3d 109, 116.
Bolden next argues that the circuit court erred in finding that termination of his parental rights was in the best interest of N.B. and L.B. He does not challenge the adoptability finding. His challenge is limited to the potential-harm finding.
In assessing the potential-harm factor, the court is not required to find that actual harm would ensue if the child were returned to the parent or to affirmatively identify a potential harm. Krecker , 2017 Ark. App. 537, at 12, 530 S.W.3d at 401. The potential-harm analysis is to be conducted in broad terms. Id. , 530 S.W.3d at 401. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Id. , 530 S.W.3d at 401.
The court's finding that Bolden lacked stable housing supports the best-interest finding. "[T]his court has stated, time and time again, that a failure to provide appropriate housing is contrary to the best-interest of the children." Selsor v. Ark. Dep't of Human Servs. , 2017 Ark. App. 182, at 6, 516 S.W.3d 314, 318 (citations omitted). A stable home is one of a child's most basic needs, and that cannot be ignored. Id. , 516 S.W.3d at 318 (citing Latham v. Ark. Dep't of Health & Human Servs. , 99 Ark. App. 25, 33, 256 S.W.3d 543, 548 (2007) ).
Furthermore, Bolden's continued drug use during the case supports the circuit court's best-interest finding. Allen v. Ark. Dep't of Human Servs. , 2011 Ark. App. 288, at 10, 384 S.W.3d 7, 12 ; Welch v. Ark. Dep't of Human Servs. , 2010 Ark. App. 798, at 9, 378 S.W.3d 290, 295. In addition to testing positive for drugs and failing to secure stable housing, Bolden also failed to secure employment and to visit his children regularly. He violated his probation by moving out of state without permission. He was incarcerated at the time of the termination hearing. He claims he has a plan for housing, employment, marriage, and repayment of his child-support arrearage upon his release from prison, but the circuit court found that his plan was based entirely on the "good graces" of Percy and was a "very tenuous, very unstable situation." This evidence illustrates that Bolden's behavior over the course of this sixteen-month case does not show enough stability to render clearly erroneous the circuit court's finding that he posed a risk of potential harm to N.B. and L.B.
Bolden's reliance on Bunch v. Arkansas Department of Human Services , 2017 Ark. App. 374, 523 S.W.3d 913, and Cranford v. Arkansas Department of Human Services , 2011 Ark. App. 211, 378 S.W.3d 851, is misplaced. In Cranford , the child, after being removed from his parents' custody, was placed in his maternal grandparents' custody, where he lived before the case began and who had significant influence in his life before and after DHS became involved. Cranford , 2011 Ark. App. 211, at 9, 378 S.W.3d at 856. Likewise, in Bunch , the children, after being removed from their parents' custody, were placed in their maternal grandmother's custody, where they remained throughout the case. Bunch , 2017 Ark. App. 374, at 9-10, 523 S.W.3d at 919. In both cases, we held that the circuit court clearly erred in finding that termination of parental rights was in the best interest of the children because there was no urgency for permanency and stability-whether or not termination occurred, the children would remain in the custody of their grandparents in the same place they had lived since being removed from their parents' custody. Id. , 523 S.W.3d at 919 ; Cranford , 2011 Ark. App. 211, at 11, 378 S.W.3d at 857.
These facts are absent in the case at bar. The evidence here reveals that while N.B. and L.B. were initially placed in the custody of their maternal grandparents, the grandparents subsequently advised DHS that they were no longer able to care for the children. The children were placed in foster care and have stayed there the remainder of the case. The court found that N.B. had spent most of his life in foster care and that L.B. had spent almost half of his life in foster care and that both children needed permanence. Therefore, Bunch and Cranford are distinguishable. We affirm the circuit court's best-interest finding.
Lastly, Bolden argues that the circuit court's termination decision deprived him of fundamental fairness. He contends that there is a "blank record" on appeal in that he had practically identical requirements placed on him from April 2016 to January 2017, and that there is no mention of his compliance, or lack thereof, in court orders. He argues that the petition for termination was the first and only notice of his failures to achieve reunification in the case and that a parent cannot be faulted for lack of compliance when he never had notice of what he was supposed to comply with and never had an opportunity to challenge or defend against findings that he was not in compliance. He further contends that there were no staffings after CASA was appointed or in the four months prior to the termination hearing, which is a violation of the Division of Children and Family Services policy.
We need not reach the merits of Bolden's fundamental-fairness argument because it was not raised below; therefore, it is not preserved for appeal. It is well settled that with the notable exception of matters involving subject-matter jurisdiction, we will not consider an issue raised for the first time on appeal, even when the issue is a matter of constitutional magnitude. Potterton v. Ark. Dep't of Human Servs. , 2017 Ark. App. 454, at 4, 527 S.W.3d 769, 772 (citing Maxwell v. Ark. Dep't of Human Servs. , 90 Ark. App. 223, 234, 205 S.W.3d 801, 808 (2005) ).
For the above-stated reasons, we affirm the circuit court's termination order.
Affirmed.
Gruber, C.J., and Harrison, J., agree.
The affidavit attached to the petition states that the perpetrator of the physical abuse was Griffin's boyfriend, Jonathan Smith.
The record reflects that Bolden was incarcerated and did not attend the hearing.
Bolden had been released from prison in February 2016, and according to the testimony of the DHS caseworker, he attended the March 2016 review hearing.
Bolden has two older children who live with their mother, Bolden's ex-wife.
Bolden is referring to his two older sons and the son he is expecting with Percy.
Griffin's parental rights were also terminated in the May 9, 2017 order; however, she is not a party to this appeal. | [
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RITA W. GRUBER, Chief Judge
Appellant Lewis M. Yancy, Jr., appeals from an order of the Jefferson County Circuit Court granting summary judgment to appellee Eugene Hunt. Mr. Hunt filed a breach-of-contract action against Mr. Yancy regarding an agreement between the parties pursuant to which Mr. Hunt, an attorney, provided legal services to Mr. Yancy in his divorce case. We hold that there are genuine issues of material fact to be decided; accordingly, we reverse the circuit court's order and remand for further proceedings.
Mr. Hunt's complaint alleged that the parties had entered into a contract on September 21, 2010, pursuant to which Mr. Hunt would represent Mr. Yancy in his divorce case for a $2500 retainer and $200 per hour. He alleged that on July 30, 2012, he provided an itemized statement to Mr. Yancy for services rendered between September 28, 2011, and July 23, 2012, totaling $11,160. He alleged that on November 1, 2012, Mr. Yancy paid $350 on the account balance, leaving a balance of $10,810. The complaint indicated that since the July 2012 bill, Mr. Hunt had provided additional services in the amount of $850, leaving a final amount owing of $11,660, for which he billed Mr. Yancy in a statement dated March 27, 2013. Mr. Hunt attached four exhibits to his complaint: a copy of the contract; the itemized statement dated July 30, 2012; a receipt documenting Mr. Yancy's $350 payment made on November 1, 2012; and the statement provided to Mr. Yancy on March 27, 2013, for a balance due on the account of $11,660. Mr. Hunt also filed requests for admission.
Mr. Yancy filed an answer, admitting that he had hired Mr. Hunt to represent him in his divorce, stating that the contract between the parties "speaks for itself," and admitting that he had paid the $350 on his account represented by the receipt attached to the complaint. He denied the remaining allegations in the complaint, including the allegation that he owed Mr. Hunt $11,660. Mr. Yancy responded to Mr. Hunt's requests for admission, admitting that he had signed the contract, that he had paid $350 on November 1, 2012, and that his divorce case was tried in June 2012. Mr. Yancy also propounded interrogatories and requests for production of documents, to which Mr. Hunt replied on March 4, 2016.
In response to an interrogatory requesting Mr. Hunt to "list all payments made to you" by Mr. Yancy and an accompanying request for production, Mr. Hunt reported the following payments received from Mr. Yancy: $1,500 on September 23, 2010, and $1,000 on October 6, 2010, were both applied to the retainer; $250 on March 28, 2011, February 16, 2012, April 24, 2012, and June 5, 2012, indicate they were all applied to attorney's fees; $350 on July 13, 2012, receipt not clear but appears to be in part for subpoena; $45.75 on December 7, 2012, expense for subpoena; and $350 on November 1, 2012, reflected as attorney's fees paid in the statement provided to Mr. Yancy on March 27, 2013. Copies of the receipts for each of these payments were provided.
On April 29, 2016, Mr. Hunt filed a motion for summary judgment, contending that there was no genuine issue of material fact, and he was entitled to judgment as a matter of law on two issues: (1) whether there was a contract between the parties and (2) whether the amount he "sued on" was the amount of debt owed by Mr. Yancy. In support of his motion, he attached the same four documents that he had attached to his complaint. Mr. Yancy responded to the motion and filed a countermotion for summary judgment. He contended that there were multiple disputed factual issues, including the interpretation of provisions of the document (contending it was vague and ambiguous), how the money he paid had been allocated, whether Mr. Hunt "dedicated his full professional abilities" to the matter as the contract required, and the reasonableness of the total fee. He argued specifically that the contract contained "nebulous provisions" because it addressed the filing of only three pleadings and the amounts paid by Mr. Yancy were "more than sufficient" to cover those three tasks. He contended that any other services provided would be barred by the statute of frauds and the statute of limitations. Mr. Yancy did not attach any affidavits or other documents to his response.
After a hearing, the circuit court entered an order on May 17, 2017, granting the motion without a detailed explanation and awarding judgment to Mr. Hunt against Mr. Yancy in the amount of $11,660 plus prejudgment interest, costs, and attorney's fees. Mr. Yancy filed this appeal.
The parties' contract is set forth below:
CONTRACT TO HIRE ATTORNEY Lewis M. Yancy, Jr. hereafter called "CLIENT" hereby hires and authorizes Eugene Hunt, hereafter called "ATTORNEY" to represent Client in the divorce case of Moneatha Yancy v. Lewis M. Yancy, Jr. DR-20101044-3, wherein Moneatha Yancy has asked the court to award her TEMPORARY SPOUSAL SUPPORT, TEMPORARY ALIMONY, PERMANENT ALIMONY And a DIVISION OF PROPERTY. Attorney will file an answer, Counterclaim and Petition for a restraining order. Attorney will dedicate his full professional abilities to this matter wherein attorney has been retained and client will fully cooperate with attorney. Attorney will charge a retainer of 91,500,00 9/22/11-91,000.00 10/7/10 Attorney shall be paid $200.00 per hour for all legal representation herein. Client agrees to pay all amounts owed by him to attorney upon the conclusion of this case. R 42 I have read the foregoing contract and a copy has been provided to me. Add 37 Done this 21st day September, 2010. LEWIS M. YANCY JR EUGENE HUNT
A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law. Mitchell v. Lincoln , 366 Ark. 592, 596, 237 S.W.3d 455, 458 (2006). Once the moving party has established prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. New Maumelle Harbor v. Rochelle , 338 Ark. 43, 46, 991 S.W.2d 552, 553 (1999). 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 question unanswered. Kachigian v. Marion Cty. Abstract Co., 2011 Ark. App. 704, at 6, 2011 WL 5562777. This court views 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. Druyvestein v. Gean , 2014 Ark. App. 559, at 7, 445 S.W.3d 529, 532. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Bingham v. C & L Elec. Coop. , 2015 Ark. App. 237, at 4, 459 S.W.3d 831, 833.
Summary judgment is not proper, however, "where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ." Thomas v. Sessions , 307 Ark. 203, 208, 818 S.W.2d 940, 943 (1991). 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. Flentje v. First Nat'l Bank of Wynne , 340 Ark. 563, 570, 11 S.W.3d 531, 536 (2000). We will not engage in a sufficiency-of-the-evidence determination. See id.
The issue on appeal is whether summary judgment was appropriate in this case. First, Mr. Yancy argues that the essential elements of the parties' contract are not reasonably certain because the phrases "dedicate his full professional abilities" and "legal representation" are uncertain and leave questions of fact regarding the parties' intent. He contends that the contract required Mr. Hunt merely to perform the tasks specifically mentioned in the contract: "file an answer, Counterclaim and Petition for a restraining order." He argues that the uncertainty regarding these terms makes the contract ambiguous and thus not subject to summary judgment.
This court cannot make a contract for the parties but can only construe and enforce the contract that they have made; if there is no meeting of the minds, there is no contract. City of Dardanelle v. City of Russellville , 372 Ark. 486, 490-91, 277 S.W.3d 562, 565 (2008). Moreover, the terms of a contract cannot be so vague as to be unenforceable. Id. The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. Id. at 491, 277 S.W.3d at 566.
The determination of whether ambiguity exists is ordinarily a question of law for courts to resolve. Machen v. Machen, 2011 Ark. App. 47, 380 S.W.3d 497. When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine, and it is the court's duty to construe the writing in accordance with the plain meaning of the language employed. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Id. The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. Id. We must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. It is a well-settled rule that the intention of the parties to a contract is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id. In determining the true intentions of the parties, different clauses of a contract must be read together and construed so that all of its parts harmonize if that is possible. Harris v. Harris , 82 Ark. App. 321, 107 S.W.3d 897 (2003). Where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the trial court's duty to make such a determination as a matter of law. Smith v. Farm Bureau Mut. Ins. Co. of Ark., Inc. , 88 Ark. App. 22, 194 S.W.3d 212 (2004).
Spann v. Lovett & Co. , 2012 Ark. App. 107, at 11-12, 389 S.W.3d 77, 88.
Mr. Hunt produced the contract between the parties, which provides that Mr. Yancy has hired Mr. Hunt to represent Mr. Yancy "in the divorce case of Moneatha Yancy v. Lewis M. Yancy, Jr. DR-20101044-3, wherein Moneatha Yancy has asked the court to award her TEMPORARY SPOUSAL SUPPORT, TEMPORARY ALIMONY, PERMANENT ALIMONY And a DIVISION OF PROPERTY." The contract indicates that Mr. Hunt will file an answer, counterclaim, and petition for a restraining order; that he will "dedicate his full professional abilities to this matter"; and that the client will "fully cooperate." For these services, Mr. Yancy agreed to pay a retainer, "$200 per hour for all legal representation herein," and "all amounts owed by him to attorney upon the conclusion of this case." Mr. Hunt also provided two statements itemizing the services he provided, which included, without being limited to, the following: preparing for hearings, conferencing with the client, receiving and responding to letters, responding to a motion for sanctions, preparing a motion to strike, preparing a motion to compel, preparing for and taking depositions, attending to the service of subpoenas, conferencing with witnesses, motion to reconsider alimony, response to request for attorney's fees and hearing, answering interrogatories, preparing trial exhibits, and drafting proposed findings of fact and conclusions of law. Finally, Mr. Hunt produced receipts indicating that Mr. Yancy had already paid for some of his services.
The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. Although Mr. Yancy argues that the phrases "dedicate his full professional abilities" and "legal representation" are uncertain or ambiguous, he provided no evidence to suggest that Mr. Hunt did not provide these services, that he did not dedicate his full professional abilities, or that Mr. Yancy had requested Mr. Hunt not to perform any of these services. Indeed, receipts indicate that he has already paid for some of the services. His argument that the contract only anticipates Mr. Hunt's filing an answer, counterclaim, and petition for a restraining order pursuant to the contract is disingenuous at best. That language does not even contemplate Mr. Hunt's actually drafting these documents-which certainly must have been intended by the parties-but only filing the documents. Nor does that language contemplate preparing or filing interrogatories or responding to requests or motions from Ms. Yancy. According to Mr. Yancy's interpretation of the contract, it does not provide that Mr. Hunt will actually attend the divorce hearing. We simply do not read the contract the way Mr. Yancy now proposes. We consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning, and we gather the parties' intentions, not from particular words and phrases, but from the whole context of the agreement. Spann , 2012 Ark. App. 107, at 12, 389 S.W.3d at 88. Different clauses of the contract must be read together and construed so that all of its parts harmonize if that is possible. Id. Mr. Hunt presented a prima facie case that the parties entered into the contract, which contemplated the services rendered by, and set forth in, the itemized statement provided by Mr. Hunt. Mr. Yancy presented no evidence at all to rebut this or to raise a genuine issue of material fact on this issue.
Mr. Yancy also argues that there is a genuine issue of material fact regarding the disposition and allocation of the payments he made and whether and how the payments reduce the balance owed. Because we agree with Mr. Yancy that there is a genuine issue of material fact regarding the exact amount owed on the contract, we reverse and remand.
Mr. Hunt provided receipts for payments made by Mr. Yancy. The payments of $1,500 on September 23, 2010, and $1,000 on October 6, 2010, were both applied to the retainer and therefore appear to have been allocated to services provided before the bill submitted to Mr. Yancy on July 30, 2012. The $250 payment made on March 28, 2011, also occurred before the services rendered in the July 2012 bill, which set forth services rendered beginning on September 28, 2011. The receipts dated after that payment do not clearly indicate how they were allocated, particularly the receipt dated July 13, 2012, for $350. From a notation on the receipt, the payment appears to have been allocated at least in part for subpoena expenses, but the handwriting on the receipt does not clearly indicate if all or only part of the amount went to expenses. Mr. Hunt contends in his brief that the receipt indicates Mr. Yancy had a "zero balance on his account" as of "August 31, 2011." While that very well may be, this court cannot tell from the receipt alone that this is the case. Without an evidentiary explanation of the allocation of these payments-for example, a ledger or affidavit of explanation-there is a factual question regarding the exact amount owed to Mr. Hunt. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. New Maumelle Harbor v. Rochelle , 338 Ark. 43, 45-46, 991 S.W.2d 552, 553 (1999). Therefore, we reverse and remand to determine the amount owed pursuant to the contract.
Reversed and remanded.
Whiteaker and Hixson, JJ., agree. | [
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ROBERT J. GLADWIN, Judge
I.K. appeals his adjudication of delinquency by the Polk County Circuit Court. He argues that the circuit court violated his due-process rights by adjudicating him delinquent for an offense for which the State did not charge-specifically by sua sponte amending the charge from second-degree terroristic threatening to second-degree assault at the conclusion of the bench trial. We affirm.
On March 6, 2018, the State filed a petition in the juvenile division of the Polk County Circuit Court seeking to adjudicate I.K. delinquent for committing the offense of terroristic threatening in the first degree, a Class D felony, in violation of Arkansas Code Annotated section 5-13-301(a)(1) (Supp. 2017). In the petition, the State alleged that appellant threatened to "shoot up" the Mena High School campus.
On April 4, 2016, at the beginning of the hearing on the petition, the State amended the charge to terroristic threatening in the second degree, a Class A misdemeanor, in violation of Arkansas Code Annotated section 5-13-301(b)(1) (Supp. 2017). At the end of the evidence the circuit court found:
[T]o sustain a charge of terroristic threatening in the second degree under Title 5 Chapter 13 section 301, the statute requires that a person commits the offense of terroristic threatening in the second degree if with the purpose of terrorizing another person, the person threatens to cause physical injury or property damage to another person.
Now, the evidence that I've heard here today, the conversation that took place between [I.K.] and Dustin was not with the purpose of terrorizing Dustin, by making those threats. However, when he said, "No, if I shoot up your school I will tell you, but if I come to school that day, you're f* * *ed." Then, that to me constitutes assault in the second degree, which is defined as:
A person commits assault in the second degree if he or she recklessly engages in conduct that creates a substantial risk of physical injury to another person.
Whether it was a joke or not it was reckless. You're guilty of assault in the second degree. And that's what the Court finds. I'm gonna place you on probation for a period of six months, [I. K.], under the standard conditions of probation. I'll need an order prepared to that effect. And you will need to meet with Ms. Hillard just as soon as we leave court. Okay. Anything else, in this matter?
The circuit court in effect sua sponte amended the charge to assault in the second degree, a Class B misdemeanor, in violation of Arkansas Code Annotated section 5-13-206(a) (Repl. 2013), at the end of the trial and sentenced I.K. accordingly. Although counsel and the circuit court subsequently discussed the possibility of a diversion, it is undisputed that neither I.K.'s counsel nor the State objected to the circuit court's sua sponte change in the charge. I.K. was sentenced to six months of supervised probation pursuant to an order of adjudication filed on May 18, 2018. He filed a timely notice of appeal, and this appeal followed.
I.K. argues that the circuit court erred in sua sponte amending the charge to an uncharged, non-lesser-included offense. The United States Supreme Court has extended constitutional due-process protections to juveniles. See In re Gault , 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In Gault , the Court held that juveniles should be afforded the right against self-incrimination and the right to counsel under the federal Constitution. Id. at 36, 87 S.Ct. 1428. The Court's holding affirmed that "[d]ue process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise." Id. at 20, 87 S.Ct. 1428.
Although juvenile proceedings need not conform with all the requirements of a criminal trial, essential requirements of due process and fair treatment must be met. Golden v. State , 341 Ark. 656, 21 S.W.3d 801 (2000). We have held that "[n]otice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with particularity.' " X.O.P. v. State , 2014 Ark. App. 424, at 3, 439 S.W.3d 711, 712 (citing In re Gault , 387 U.S. at 33, 87 S.Ct. 1428 ).
The Arkansas Constitution provides that the duty of charging an accused with a felony is reserved to the grand jury or to the prosecutor. Ark. Const. amend. 21, § 1. The Arkansas Supreme Court has consistently held that a circuit court does not have the authority to amend a charge brought by the prosecuting attorney. See State v. Brooks , 360 Ark. 499, 505, 202 S.W.3d 508, 512 (2005) (citing State v. Knight , 318 Ark. 158, 884 S.W.2d 258 (1994) ; Simpson v. State , 310 Ark. 493, 837 S.W.2d 475 (1992) ; State v. Hill , 306 Ark. 375, 811 S.W.2d 323 (1991) ; State v. Brooks , 301 Ark. 257, 783 S.W.2d 368 (1990) ). Doing so invades the province of the prosecuting attorney who is part of the executive branch, and thus, is a violation of the separation-of-powers doctrine as reflected in article 4, sections 1 and 2 of the Arkansas Constitution. See, e.g. , State v. D.S. , 2011 Ark. 45, at 8, 378 S.W.3d 87, 92.
Because second-degree assault is not a lesser-included offense of second-degree terroristic threatening, this case does not involve the amendment of the initial charge to one of a lesser-included offense as in X.O.P. where this court affirmed the adjudication, explaining that "[b]y virtue of the fact that XOP was on notice of the greater offense, he cannot claim surprise by the circuit court's true finding as to the lesser-included offense." X.O.P. , 2014 Ark. App. 424, at 5, 439 S.W.3d at 714.
A person commits the offense of terroristic threatening in the second degree if, with the purpose of terrorizing another person, he threatens to cause physical injury or property damage to another person. Ark. Code Ann. § 5-13-301(b)(1). Section 5-13-206 provides that a person commits assault in the second degree if he or she recklessly engages in conduct that creates a substantial risk of physical injury to another person. Assault in the second degree fails to satisfy the lesser-included-offense criteria set forth in Arkansas Code Annotated section 5-1-110(b)(1)-(3) (Repl. 2013), and it is not a lesser-included offense of terroristic threatening in the second degree.
A juvenile defendant must raise a due-process challenge at the circuit court level in order to preserve the issue for appellate review. E.g. , C.M. v. State , 2010 Ark. App. 695, at 2, 2010 WL 4132892 (stating that "[b]ecause C.M. did not make his due-process argument below, it is not preserved on appeal"); M.H. v. State , 2009 Ark. App. 247, at 3, 2009 WL 936898 (holding M.H.'s due-process challenge not preserved for appellate review because he failed to raise the issue below).
We find no merit in appellant's argument that a contemporaneous objection was not required to preserve this issue for appeal because the circuit court exceeded its subject matter jurisdiction. See M.S v. State , 2011 Ark. App. 222, at 3, 2011 WL 904842 (citing State v. D.S. , supra ) (applying an exception to the contemporaneous-objection rule when a court acts in excess of its authority, which creates a question of subject-matter jurisdiction).
I.K. acknowledges that he failed to raise this issue at the circuit court level but attempts to overcome his failure to preserve the argument by claiming that his due-process challenge stripped the circuit court of subject-matter jurisdiction. Arkansas appellate courts have rejected similar arguments arising from criminal proceedings. See Cantrell v. State , 2009 Ark. 456, 343 S.W.3d 591 ; Bell v. State , 101 Ark. App. 144, 272 S.W.3d 110 (2008). In VanOven v. State , 2011 Ark. App. 46, 380 S.W.3d 507, this court addressed with an appellant's claim that he was convicted of a crime for which he was not charged that was framed as one challenging the legality of his sentence such that his failure to raise the issue at trial did not waive the issue for appellate review. The court distinguished that argument from the ones made in Bell and Cantrell , in which the appellants merely argued lack of proper notice without reference to any particular statutory provision. The Bell and Cantrell courts held that any alleged error made by the circuit courts would entail only a lack of notice and not a lack of authority.
Here, despite appellant's attempt to blur the lines of the argument in his conclusory statements regarding both a due-process argument and a lack of authority, we hold that I.K.'s argument does not involve the circuit court's subject-matter jurisdiction; rather, he is arguing an alleged due-process violation, which must be raised below. See, e.g. , Cantrell , 2009 Ark. 456, at 11, 343 S.W.3d at 597 ; Bell , 101 Ark. App. at 147, 272 S.W.3d at 113.
As a reminder, we reiterate this court's admonition from Bell , 101 Ark. App. at 147, 272 S.W.3d at 112-13 :
Because appellant's failure to raise the issue of notice about the sentencing enhancement at trial precludes this court from addressing it here, we affirm on this point.
Nonetheless, we are troubled by the trial court presenting this issue to the jury. The decision to charge appellant with a sentencing enhancement lies within the discretion of the prosecuting attorney, not the trial judge. Compare State v. Knight , 318 Ark. 158, 162, 884 S.W.2d 258, 260 (1994) ("The Arkansas Constitution provides that the duty of charging an accused with a felony is reserved to the grand jury or to the prosecutor.... We have consistently held that a circuit judge does not have the authority to amend the charge brought by the prosecuting attorney.").
By instructing the jury to consider the sentencing enhancement, the trial judge took the discretion away from the prosecuting attorney and violated appellant's right to know the charges brought against him. While appellant's failure to preserve the point precludes us from determining whether the trial judge's actions constitute reversible error, we emphasize that such conduct is not viewed favorably on appellate review if it is timely challenged at trial.
Affirmed.
Gruber, C.J., and Brown, J., agree. | [
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COURTNEY HUDSON GOODSON, Associate Justice
Appellant Michael Lee Anderson appeals the dismissal of his petition for writ of habeas corpus. Anderson argues on appeal, as he did in his petition, that he is being illegally detained because he was not personally charged in an original felony information; instead, his name was added to an amendment to the felony information that originally charged only his brother Myron with the offenses of which Anderson was later convicted. We find no error and affirm the order.
I. Background
In 2007, Anderson, who was tried jointly with Myron, was found guilty of five counts of committing a terroristic act and one count of possession of a firearm by certain persons. He was sentenced to an aggregate term of 1320 months' imprisonment. The Arkansas Court of Appeals affirmed. Anderson v. State , 2010 Ark. App. 177, 2010 WL 653846. On January 24, 2018, Anderson filed in the Jefferson County Circuit Court, which is located in the county where he is incarcerated, the petition for writ of habeas corpus that is the subject of this appeal.
II. Grounds for Issuance of the Writ
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris , 369 Ark. 405, 255 S.W.3d 466 (2007). Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is being illegally detained. Id. ; Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566.
III. Standard of Review
A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision 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 made. Id.
IV. Legality of Judgment of Conviction
As stated, Anderson argues that the trial court lacked personal jurisdiction in his case because he was charged in an amendment to the information originally filed in his brother Myron's case rather than by an original information filed in his individual case and assigned an individual docket number. He contends that the lack of jurisdiction rendered the judgment in his case invalid on its face, and therefore, the writ should issue to effect his release from custody. The original information charging Myron was filed in the Ashley County Circuit Court on November 30, 2006, and assigned docket number CR-2006-197-4. On December 28, 2006, an amended information was filed that added Anderson's name. The amended information bore the docket number CR-2006-197-4 A & B. (Anderson was designated defendant "B.")
Claims of a defective information that raise a valid jurisdictional issue are cognizable in a habeas proceeding. Philyaw , 2015 Ark. 465, 477 S.W.3d 503. However, allegations of a defective information that do not raise such a claim are not generally considered jurisdictional and are, accordingly, treated as trial error. Id. See Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104 (claim that the failure to assign a different case number to severed criminal proceedings failed to provide defendant with adequate due process is the type of claim constituting trial error that must have been raised at trial and is not cognizable in habeas proceedings).
Here, Anderson did not allege that the amended felony information that charged him was defective in that it failed to apprise him of the charges against him. Because his allegation did not rest on an assertion of trial error and a lack of due process based on a flaw in the information, Anderson's argument that he was never charged with the offenses would, if established, be a ground for the writ.
Anderson's argument that he was never charged fails because he did not establish that the trial court lacked jurisdiction to enter the judgment of conviction merely because he was charged in an amendment to the felony information that charged Myron. A circuit court has subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes. Love v. Kelley , 2018 Ark. 206, 548 S.W.3d 145. Regarding personal jurisdiction, the commission of the offenses by Anderson in Ashley County subjected him to being charged and prosecuted in that county. When the trial court had personal jurisdiction over the appellant and also had jurisdiction over the subject matter, the court had authority to render the particular judgment. Johnson v. State , 298 Ark. 479, 769 S.W.2d 3 (1989). In short, charging Michael Anderson in an amendment to the information charging Myron did not deprive the trial court of either subject-matter or personal jurisdiction.
In his habeas petition, Anderson relied as authority for his argument on Whitehead v. State , 316 Ark. 563, 873 S.W.2d 800 (1994), and State v. Pulaski County Circuit Court , 327 Ark. 287, 938 S.W.2d 815 (1997) (per curiam). In Whitehead , this court held that the circuit court did not have jurisdiction to rule on a motion to transfer a matter to juvenile court because no information or indictment had been filed charging the defendant with an offense. 316 Ark. 563, 873 S.W.2d 800. Anderson, however, was charged in the amended felony information with the offenses. In Pulaski County Circuit Court , we held that if a defendant seeks relief in a circuit court from a bond established by a lower court, the defendant must first commence his or her action by filing a pleading with the clerk of the superintending circuit court. 327 Ark. 287, 938 S.W.2d 815. Neither case stands for the argument posited by Anderson that the judgment in his case was illegal on its face because he was never charged with a criminal offense because he was charged in a joint amended information.
Affirmed.
Hart, J., concurs.
Josephine Linker Hart, Justice, concurring.
I agree that the circuit court did not clearly err in denying Mr. Anderson's habeas petition. It is readily apparent that he was properly charged and that the amended information satisfied due process. I wright separately, however, I wish to distance myself from the all-too-familiar dicta that suggests that the writ of habeas corpus is an extremely narrow remedy.
Under Arkansas Code Annotated section 16-112-103(a)(1), the writ is available to any person who has demonstrated that there is "probable cause to believe he or she is detained without lawful authority, is imprisoned when by law he or she is entitled to bail, or who has alleged actual innocence of the offense or offenses for which the person was convicted." In my view, the boiler-plate dicta that the majority has included in its opinion, to wit, "Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue," grossly understates the situations in which the writ may be appropriate. Detention without lawful authority is not a concept that can be folded into a neat little box, as suggested by the majority and as stated in innumerable cases that summarily dispose of habeas appeals filed by pro se inmates. In truth, the circumstances constituting unlawful detention are limited only by man's imagination when it is applied to the time-honored pursuit of man's inhumanity to man.
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LARRY D. VAUGHT, Judge
Jason Hearst appeals the Pulaski County Circuit Court's order granting summary judgment to appellee Robert Newcomb and dismissing Hearst's legal-malpractice lawsuit against Newcomb. We affirm.
On June 13, 2010, Hearst was arrested in Faulkner County after Mayflower police officer Billy Baker responded to a 911 call placed by Hearst's wife reporting domestic abuse. Baker instructed a deputy to take Hearst to the Faulkner County Detention Center despite Hearst's protests that he could not go to jail because he suffers from Crohn's disease, has a medical port in his chest, and is highly susceptible to infection. Hearst was jailed, suffered an infection following his detention, and hired attorney Robert Newcomb to represent him in pursuing a civil rights lawsuit against Baker pursuant to the Arkansas Civil Rights Act, Arkansas Code Annotated sections 16-123-101, et seq. (Repl. 2006), and the Arkansas Constitution. Hearst sought compensatory and punitive damages, alleging that he had incurred medical expenses and suffered emotional distress as a result of Baker's actions. Baker answered, denying the claims and asserting the defense of statutory immunity.
Baker filed a motion for summary judgment on December 12, 2012. Newcomb failed to file a response on behalf of Hearst. On February 6, 2013, Hearst filed a motion under Rule 41 of the Arkansas Rules of Civil Procedure requesting that his suit be dismissed without prejudice. Hearst states that Newcomb told him that he was voluntarily nonsuiting the case in order to obtain a new judge. An order was entered the same day granting Hearst's motion to voluntarily nonsuit the case without prejudice. Also on February 6, 2013, Baker responded to the dismissal motion, arguing that it should be denied and that summary judgment should be granted in his favor based on Hearst's failure to respond to Baker's summary-judgment motion. In the alternative, Baker requested that Hearst be required to reimburse him for all costs associated with the case and that any refiling be stayed until such costs were paid. On March 25, 2013, the court entered an amended order of dismissal vacating its earlier dismissal order and denying Hearst's motion. The court then granted Baker's summary-judgment motion and dismissed the suit with prejudice.
On April 18, 2013, Hearst filed a timely notice of appeal. On appeal he argued that the court erred in vacating his dismissal order and dismissing his suit with prejudice. We found no error and affirmed in Hearst v. Baker , 2014 Ark.App. 214, 2014 WL 1327883.
Hearst then filed a legal-malpractice lawsuit against Newcomb on March 10, 2016, alleging negligent representation in the civil-rights claim. After conducting discovery, Newcomb moved for summary judgment, arguing that Hearst's malpractice suit was barred by the statute of limitations, and Hearst could not prevail on his negligence claim as a matter of law. After a hearing, the circuit court granted summary judgment on both grounds. As to the statute of limitations, the court found that Arkansas Code Annotated section 16-56-105 provides for a three-year statute of limitations for legal-malpractice claims, that the statute begins to run on the date of the negligent act, which was January 7, 2013 (the date on which Hearst's response to Baker's motion for summary judgment was due), and that even if the statutory period is tolled during the period of time that the nonsuit order was in effect (as Hearst argues it should be), Hearst's complaint was still filed beyond the statutory period. The court also found that Hearst had failed to present evidence supporting fraudulent concealment, which he argued should further toll the statute of limitations.
The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. Crockett v. C.A.G. Invs., Inc. , 2011 Ark. 208, at 7, 381 S.W.3d 793, 798 (citing Bryan v. City of Cotter , 2009 Ark. 172, 303 S.W.3d 64 ). A circuit court will 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. Id. The burden of proof shifts to the opposing party once the moving party establishes a prima facie entitlement to summary judgment; the opposing party must demonstrate the existence of a material issue of fact. Id. After reviewing the undisputed facts, the circuit court should deny summary judgment if, under the evidence, reasonable minds might reach different conclusions from the same undisputed facts. Id. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party leave a material question of fact unanswered. Id. 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. This review is not limited to the pleadings but also includes the affidavits and other documents filed by the parties. Id.
To prevail on an attorney-malpractice claim in Arkansas, the plaintiff must show that he or she suffered damages proximately caused by the defendant's negligence, meaning that the plaintiff must show that but for the attorney's alleged negligence, the result would have been different in the underlying action. Callahan v. Clark , 321 Ark. 376, 386, 901 S.W.2d 842, 847 (1995) ; Ark. Kraft v. Cottrell , 313 Ark. 465, 855 S.W.2d 333 (1993). In Arkansas, an attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of his or her client. Id. ; Welder v. Mercer , 247 Ark. 999, 448 S.W.2d 952 (1970).
On appeal, Hearst argues that the circuit court erred in granting summary judgment in favor of Newcomb based on its finding that his claim was filed after the statute of limitations had expired because there were questions of fact as to whether Newcomb's actions should have tolled the statute of limitations. The statute of limitations for attorney-negligence cases is three years. Parkerson v. Lincoln , 347 Ark. 29, 61 S.W.3d 146 (2001). Absent fraud or concealment, the statutory period begins to run on the date of the negligent act. Delanno, Inc. v. Peace , 366 Ark. 542, 545, 237 S.W.3d 81, 84 (2006) (citing Goldsby v. Fairley , 309 Ark. 380, 831 S.W.2d 142 (1992) ). Fraud on the part of the defendant can suspend the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. Delanno , 366 Ark. at 545, 237 S.W.3d at 84. In order to toll the statute of limitations, the fraud perpetuated must be concealed. Id. Fraud consists of (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) intent to induce action or inaction in reliance upon the representation, (4) justifiable reliance on the representation, and (5) damage suffered as a result of the representation. Id. Hearst argues that Newcomb fraudulently concealed the true deadline for Hearst's attorney-malpractice suit by telling Hearst that he had until March 19, 2016, to file the claim. The circuit court analyzed this argument and rejected it, finding no evidence that Newcomb knew that his statement was false and intended for Hearst to rely on it to his detriment.
Hearst has not demonstrated that this finding was erroneous; he has not cited any evidence that Newcomb knew that the date he provided to Hearst was incorrect and did so with the intent to mislead Hearst into missing the filing deadline for his malpractice suit. Moreover, we note that Hearst cannot prove that he justifiably relied on Newcomb's statement as to the exact date on which the statute of limitations would expire because justifiable reliance requires proof that Hearst exercised reasonable diligence in relying on Newcomb's assertion. Here, Hearst asserts that it was reasonable for him to have relied exclusively on Newcomb's off-the-cuff statement as to the deadline for filing his malpractice claim despite the fact that the lawsuit hinged entirely on Hearst's contention that Newcomb is a negligent lawyer who egregiously erred by missing an important filing deadline. Finally, Hearst admitted in a response to an interrogatory propounded by Newcomb that by late January 2014, Hearst had consulted a second attorney, James Lane, who reviewed Hearst's civil-rights suit, explained to him why it was dismissed, and further explained that this court had denied his request for appellate relief.
In Delanno , the Arkansas Supreme Court held that even in cases where fraud is found, the plaintiff has the burden to "prove that the fraud would not have been detected by the exercise of reasonable diligence." 366 Ark. at 547, 237 S.W.3d at 85. Given that Hearst sought additional legal advice related to this matter, we cannot say that any misrepresentation by Newcomb regarding the statute of limitations "would not have been detected by the exercise of reasonable diligence." Our standard for establishing fraudulent concealment speaks to concealment that is "so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed." Carlson v. Kelso Drafting & Design, Inc. , 2010 Ark. App. 205, at 3, 374 S.W.3d 726, 728 (citing Curry v. Thornsberry , 354 Ark. 631, 128 S.W.3d 438 (2003) ). Here, the applicable statute of limitations is a matter of public law and is easily discoverable, as is the date on which the statute began to run. We therefore disagree with Hearst's argument that the circuit court's finding that Hearst had failed to allege facts constituting fraudulent concealment was reversible error.
Hearst next argues that the statute of limitations should be tolled for the forty-one-day period during which the circuit court's order granting Hearst's motion for voluntary dismissal without prejudice was in effect. He relies on Stroud v. Ryan , 297 Ark. 472, 763 S.W.2d 76 (1989), in which an attorney failed to file his client's response to a writ of garnishment, and as a result the client was held liable by default judgment. In Stroud , the circuit court then entered a nunc pro tunc order setting aside the default judgment and entered judgment in favor of the client. The circuit court's nunc pro tunc order, which alleviated the attorney's negligence, remained in place until it was reversed on appeal. In the subsequent attorney-malpractice case, the Arkansas Supreme Court held that the statute of limitations was tolled for the period in which the circuit court's nunc pro tunc order setting aside the default was in effect because the client had no cognizable malpractice claim (because he could not have shown any injury) until the order was reversed on appeal.
The Arkansas Supreme Court distinguished Stroud in Goldsby and explained that the appellants' malpractice action in Goldsby had never ceased to exist from the time the appellee attorney had prepared a warranty deed in 1980 and misrepresented that the appellants had a first mortgage on the subject property. 309 Ark. 380, 831 S.W.2d 142. In Goldsby , appellants were not aware of the misrepresentation until 1985 when they suffered a business loss as a result of the alleged misrepresentation. This court held that the three-year statute of limitations barred appellants' 1986 malpractice suit and explicitly rejected their argument that, under Stroud , the statute of limitations should be tolled until the appellants suffered damages as a result of the negligence.
In Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372, (1998), the Arkansas Supreme Court examined both cases and held:
The distinguishing factor in both Stroud and Pope County [v. Friday, Eldredge & Clark , 313 Ark. 83, 852 S.W.2d 114 (1993) ] was the judgment entered in favor of the appellant. Here, as in Goldsby , there was no intervening judgment in Appellant's favor; hence, her malpractice claim never ceased to exist. At a minimum, Appellant was alerted to her claims for actionable negligence when the bankruptcy court entered the disqualification and the fraudulent-conveyance orders against her. Unlike Stroud , there was no point where Appellant was prevented from bringing suit. We are therefore not persuaded by Appellant's argument that accrual of her action was delayed; her alleged damages were evident through the trial court's adverse rulings, affirmed on appeal, and thereby never ceased to exist.
Ragar , 332 Ark. at 221, 964 S.W.2d at 375-76.
Newcomb argues that the statutory period should not be tolled during the forty-one-day period that the circuit court's voluntary-dismissal order was in place and that Stroud is distinguishable because the circuit court's voluntary-dismissal order in the present case was not akin to a "judgment entered in favor of the appellant," as was the case in Stroud , and did not prevent Hearst from bringing his attorney-malpractice claim during the pendency of that voluntary-dismissal order.
Both arguments miss the mark. Here, the circuit court applied Stroud and found that even if the statute of limitations had been tolled for the forty-one-day period, Hearst's malpractice claim was still untimely. Specifically, the court found that Newcomb's alleged negligence occurred on January 7, 2013, the date when Hearst's response to Baker's motion for summary judgment was due, and that even if the statutory period was tolled by the circuit court's voluntary-dismissal order, which was in effect between February 6 and March 19, 2013, Hearst's malpractice complaint, filed on March 10, 2016, was filed more than three years and forty-one days after the negligent act. Despite making numerous legal arguments on appeal as to why the statute of limitations should be tolled in this case, Hearst does not challenge the circuit court's simple mathematical calculation that, even if the statute of limitations had been tolled pursuant to Stroud , "Plaintiff should have brought his claim within three years and forty-one days" but "failed to bring his claim within the tolled statute of limitations period under Stroud analysis."
To the extent that Hearst also argues that the statute of limitations should be tolled for the full pendency of his appeal of the underlying civil-rights lawsuit, he cites no authority nor does he make any persuasive legal argument that would support this position. While the Stroud court held that the statute of limitations for filing an attorney-malpractice claim was tolled until an appellate court reversed the circuit court's nunc pro tunc order setting aside the default judgment, the operative issue was not the appeal process but the existence of the underlying nunc pro tunc order and subsequent legal judgment in the client's favor negating the attorney's negligence until the appellate court's reversal of those orders. In Ragar , supra , the Arkansas Supreme Court specifically explained that "[t]he majority of jurisdictions considering this context, regardless of the applicable rule, holds that a pending appeal by the damaged party does not serve to toll the statute of limitations when damages can be presently identified." Ragar , 332 Ark. at 221, 964 S.W.2d at 376 (citing Gulf Coast Inv. Corp. v. Brown , 813 S.W.2d 218 (Tex. 1991) (holding that under the discovery rule, the statute of limitations accrued at the time an adverse proceeding was filed against the plaintiff, not when the circuit court rendered final judgment against the plaintiff) ). Hearst has not argued that his damages were nonexistent or unidentifiable prior to the final resolution of his appeal, and we see no basis for reversal on this ground in light of the Arkansas Supreme Court's clear guidance in Ragar .
Finally, in his last argument challenging the circuit court's finding that his claim was barred by the statute of limitations, Hearst argues that Newcomb should be estopped from raising the statute of limitations as a defense because Newcomb misinformed Hearst as to when the statute would expire. Because Hearst neither affirmatively pled estoppel pursuant to Rule 8 of the Arkansas Rules of Civil Procedure nor raised the issue to the circuit court in response to Newcomb's summary-judgment motion, we cannot address it on appeal. Electro-Air v. Villines , 16 Ark. App. 102, 697 S.W.2d 932 (1985) (we will not entertain an argument raised for the first time on appeal). As a result, we find no error in the circuit court's finding that Hearst's attorney-malpractice claim was barred by the statute of limitations and affirm the court's grant of summary judgment on this basis.
Affirmed.
Whiteaker and Murphy, JJ., agree.
Although the briefs repeatedly refer to Baker as the police chief, Baker's abstracted testimony simply describes him as the "arresting officer." Baker's rank at the time of the arrest is unclear from our record but is immaterial to the issues presented for our review.
There was conflicting testimony about whether and to what extent Hearst told Baker about his medical conditions and his susceptibility to infection.
Hearst claims that discovery was incomplete.
Hearst stated that Newcomb had incorrectly told him that he had until March 19, 2016, to file his malpractice claim. The court found that, even if true, Newcomb's actions did not amount to fraudulent concealment because there was no evidence of "secretive, furtive, or deceptive action designed to conceal."
We note that, as an appellee who filed neither a notice of appeal nor a notice of cross-appeal, Newcomb's argument that the circuit court erred in applying the tolling analysis in Stroud to the case at bar is not properly before us. Moreover, as the prevailing party below, he has already obtained relief in the form of dismissal of Hearst's malpractice lawsuit. See Banks v. Barton , 2018 Ark. App. 523, 2018 WL 5636349 (citing Washington Cty. Reg. Med. Ctr. v. Nw. Physicians, LLC , 2018 Ark. App. 497, 562 S.W.3d 239 ).
The court was comparing the occurrence rule, under which the statute starts to run from the date of the negligent act, to the damage rule, under which the statute starts to run as soon as damages from the negligence accrue. Arkansas utilizes the occurrence rule. | [
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MIKE MURPHY, Judge
Appellants, C.D. and Kathleen Andreasen, husband and wife, appeal from the June 26, 2017 Benton County Circuit Court order that vacated South Mountain Drive (the Drive), the roadway at issue, as a public road and denied appellants the right to ingress and egress to their adjoining property via the Drive. On appeal, appellants argue that (1) the circuit court erred when it vacated the Drive as a public road, and (2) even if the circuit court is correct in vacating the Drive, they should still be entitled to access their property via the Drive. We affirm.
A summary of the evidence presented at a bench trial follows. Appellants bought forty acres of land in Benton County in 1974 that is adjacent to what would become the South Mountain Estates Subdivision in 1998. Appellants have access to all areas of their property, including the part that is adjacent to the Drive, without using the Drive. However, appellants' property contains a ravine in the area near the Drive, so accessing the "back side" of their property by way of the Drive is more convenient to them. Before the development of South Mountain Estates, a dirt roadway existed where the Drive is now located, which appellants used from time to time to fix their fence, brush hog, and generally take care of that side of their property.
In 1996, the county court entered an order that identified and named six roads for a proposed subdivision; one of the roads became known as "South Mountain Road." After purchasing the property where South Mountain Estates Subdivision (the Subdivision) is now located, Alice Riggins and her husband caused a recorded plat of the Subdivision to be recorded in the Benton County Recorder's Office in 1998. Riggins testified that from the time they purchased the property until the plat was recorded, the area that had once been a dirt road was so overgrown that a four-wheeler was needed to access it, and there were no tracks on it. The developer of the Subdivision paid to have the Drive "black-topped," and presently the property owners' association (POA) assesses its residents and pays for maintenance of the Drive. Benton County has never maintained the Drive. The Drive is located on the southern boundary of the plat, is approximately 1400 feet long, and is approximately 50 feet wide. It is undisputed that the Subdivision is situated in Benton County outside of the corporate limits of any city or town. All twenty lots in the Subdivision have been sold.
At the time the plat was filed, the plat contained a declaration that all the streets on the plat were for use by the general public. In 2000, at least three utility easements were filed, all of which indicated that the Drive was a public road-the southern edge of the 50-foot easement of the Drive abuts the northern edge of appellants' property. Alice Riggins testified that the first time she noticed the wording "public roadway" was a couple or three years before the trial date when the utility easements were presented to her. She explained that she did not intend for the road to be public because she thought she had created a private subdivision.
Riggins testified that the entrance to what is now the Subdivision contained a gate with a lock on it in 1989. Riggins paid $20,000 to replace it with a heavy wrought-iron retractable gate with a masonry wall sometime before June 2001. Appellants testified that they did not notice the existence of this gate until 2007. This new gate was left open from 6:00 a.m. to 6:00 p.m. for some time while it was broken and being repaired. It was also left open from time to time when homes were being constructed in the Subdivision. Per Riggins's testimony, the gate was basically closed at all times by 2005.
On December 11, 2007, the county court entered an order changing the street signs in the Subdivision from blue to white to indicate that the roads, including the Drive, were private. Shortly thereafter, appellants and their son were able to access the gate only on several occasions either when it had been left open or when they had the code to the keypad. The Subdivision's residents use the Drive virtually every day.
Appellants filed simultaneous petitions on December 8, 2014, seven years later, in the circuit court and the county court, seeking to declare the December 11, 2007 order as void. The POA petitioned the county court on May 27, 2015, seeking to vacate the Drive as a public road, if it was even to be considered a public road. The county court held a hearing on both petitions, and the county court entered an order on July 14, 2015, denying both. Both parties timely appealed to circuit court.
Both appeals and appellants' original circuit court petition were all tried simultaneously on February 13 and 14, 2017. At the end of the second day of trial, the circuit court entered its oral ruling, finding that (1) the county court's December 11, 2007 order is vacated for lack of notice and a hearing; (2) the Drive was declared a public road, but appellees' petition to vacate the Drive as a public road is granted, with appellants and no other members of the public (other than Subdivision residents and a handful of third parties having recorded easements) retaining any rights to use it; and (3) the public and the appellants have abandoned whatever rights they may have had to the Drive, thereby making it private as to all but the Subdivision residents. Final orders were entered on June 26, 2017, which stated in part,
35. The Court finds that the evidence supports ... that South Mountain Drive has not been opened or actually used as a public street, alley, or roadway for a period of five (5) years within the meaning of Ark. Code Ann. Sec. 14-18-105.
....
38. The Court finds that South Mountain Drive has been used overwhelmingly only by the residents of the Subdivision and their guests for at least the previous seven years, and not by the public during that time.
39. The Court finds that South Mountain Drive has not been used by anyone other than property owners and residents of the Subdivisions [sic], their invitees and guests, and possibly the Andreasens on very few occasions since a gate was erected and closed.
40. The Court notes that the handful of times the Andreasens were able to get into the Subdivision does not constitute sufficient use of South Mountain Drive to justify it continuing to be a public road or right of way.
41. The Court finds that, to the extent these witnesses have used any portion of South Mountain Drive at all within the previous five years, such use was so sporadic and for other uses and purposes so as to be de minimis and to not rise to the level, whether individually or collectively along with the Andreasens' use, as constituting "... open or actually used as a street, alley, or roadway ..." within the meaning of Ark. Code Ann. Sec. 14-18-105.
42. The Court finds that all of the requirements contained in Ark. Code Ann. Sec. 14-18-107 in order for this Court to vacate South Mountain Drive as a public road or right of way have been met.
....
46. The Court separately finds that, to the extent that C.D. Andreasen, Kathleen Andreasen, Ron Andreasen, Don Andreasen, James Gregory, or any other person or entity (but excluding the named Plaintiffs and Petitioners) had any rights of any kind to use all or any part of South Mountain Drive, such rights have been abandoned.
Appellants then filed timely notices of appeal.
When an owner of land files a plat and thereafter lots are sold with reference to it, such action constitutes an irrevocable dedication of any street or passageway for public use shown or indicated on the plat. Weisenbach v. Kirk , 104 Ark. App. 245, 248, 290 S.W.3d 614, 616-17. Title acquired by dedication to the public is an easement with the fee remaining in the adjacent landowner. Id. The public's right to use a dedicated roadway extends to the whole breadth of it, not merely to the part that is constructed or actually traveled. Id. However, Arkansas Code Annotated sections 14-18-101 through 110 (Repl. 2013) provide a statutory process for vacating a dedicated roadway in platted subdivisions located outside the limits of a municipality.
The plain wording of Arkansas Code Annotated section 14-18-105, which the circuit court relies on in its order, connotes when streets and passageways have been platted but never used or, if used at one time, have not been used for a period of five years, the county court is empowered to declare such passageways closed and vacated if it finds those facts to exist. Weisenbach , 104 Ark. App. at 249, 290 S.W.3d at 617. Arkansas Code Annotated section 14-18-105 states:
In all cases where the owner of lands situated in a county and outside of a city of the first or second class or incorporated town has dedicated a portion of the lands as streets, alleys, or roadways by platting the lands into additions or subdivisions and causing the plat to be filed for record in the county and any street, alley, or roadway, or portion thereof shown on the plat so filed shall not have been opened or actually used as a street, alley, or roadway for a period of five (5) years, or where any strip over the platted lands, although not dedicated as a street, has been used as a roadway, the county court shall have power and authority to vacate and abandon the street, alley, or roadway, or a portion thereof, by proceeding under the conditions and the manner provided in this chapter.
On appeal, appellants first argue that the circuit court erred when it vacated the Drive as a public road because it erroneously applied Arkansas Code Annotated section 14-18-105.
We review issues of statutory construction de novo. Mamo Transp., Inc. v. Williams , 375 Ark. 97, 289 S.W.3d 79 (2008). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to 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 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. However, we will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Id. We strive to reconcile statutory provisions relating to the same subject to make them sensible, consistent, and harmonious. Weisenbach , 104 Ark. App. at 251, 290 S.W.3d at 618.
Appellants assert that per statutory construction, the language of the statute is clear: in order to vacate a public road there must be no use for five years, and because there has been use, even by the appellees, then the roadway cannot be vacated. Essentially, appellants argue that the statute requires absolutely no use by anyone for at least five years before the road can be vacated. Appellants note that the statute does not qualify the use of the road to only a certain class of people-such as the residents of the Subdivision. Rather than focus on whether to apply a broad or narrow interpretation of Arkansas Code Annotated section 14-18-105, we prefer to affirm using the common law approach. See, e.g. , Fritzinger v. Beene , 80 Ark. App. 416, 97 S.W.3d 440 (2003) ("We may affirm the circuit court if it is correct for any reason.")
We rely on Goodman v. Powell , 210 Ark. 963, 198 S.W.2d 199 (1946) to hold that the method described in Arkansas Code Annotated sections 14-18-101 through 110 is not the only process for vacating a dedicated roadway. Goodman acknowledges that it is possible to abandon a dedicated public use-in that case, a dedicated public "square." While the supreme court ultimately held that no abandonment had been shown in that case, the court could have ruled otherwise. There, the supreme court held,
While prescription does not run against the right of the public to the use of land dedicated for such use, see Adverse Possession, § 14, yet it may by abandonment relinquish its rights to the land dedicated.... The question of abandonment is one of fact to be determined by the circumstances of each case, or, according to some decisions, a mixed question of law and fact. The burden of proving abandonment is on the party who asserts it; and it should be established by a preponderance of the evidence.
Goodman , 210 Ark. at 969, 198 S.W.2d at 202.
In Powell v. Miller we explained,
Although a legislative body has the power to alter the common law, Nietert v. Citizens Bank and Trust Company , 263 Ark. 251, 565 S.W.2d 4 (1978), it is a principle of statutory construction that a statute will not be construed as overruling a principle of common law, "unless it is made plain by the act that such a change in the established law is intended." White v. State , 290 Ark. 130, 136, 717 S.W.2d 784, 787 (1986) (quoting Starkey Constr., Inc. v. Elcon, Inc. , 248 Ark. 958, 457 S.W.2d 509, 248 Ark. 978A (1970) ).
Powell , 30 Ark. App. 157, 161, 785 S.W.2d 37, 39 (1990).
Based on the circumstances in our case, the circuit court made sufficient findings of unique factors that show appellees met their burden of proving abandonment by a preponderance of the evidence. We hold the following to be of particular importance: the Subdivision's POA assesses its members for maintenance of the Drive, and the POA is the entity that maintains it; every property owner within the Subdivision wanted the Drive to be private; appellants do not need to access their property from the Drive, as evidenced by the substantial work they were performing on the "back side" of their property just a few months before the trial date; and by appellants' own testimony, they used the Drive only sporadically over the years to fix their fence, "inspect their property," "pick up souvenirs," and "just generally be nosy." Further, although Arkansas Code Annotated section 14-18-105 was enacted after Goodman , the language of Ark. Code Ann. § 14-18-105 does not indicate that it was intended to overrule the common-law remedy of abandoning a dedicated roadway.
For appellants' last point on appeal, they argue that even if the circuit court was correct in vacating the Drive, it erred in finding that they had abandoned their independent right to ingress and egress. We do not agree.
Generally, when a public road is abandoned, it does not affect the private rights of occupants to ingress and egress. Sevener v. Faulkner , 253 Ark. 649, 650, 488 S.W.2d 316, 317 (1972). Here however, appellants tolerated the existence of the gate for more than seven years before they filed suit. Appellants testified that they had accessed their property by using the Drive "maybe five or six" times since 2005, which is when the construction of homes was mostly completed, and the gate was closed. Based on the facts in this case, we hold appellants were on notice and failed to exercise their rights. We cannot that hold the circuit court erred in finding appellants had abandoned their rights.
Affirmed.
Gruber, C.J., agrees.
Glover, J., concurs.
The area where the Drive is presently located was once called Elston Street when the platted town of Monte Ne existed. Monte Ne was vacated in its entirety, including Elston Street, in 1984 by county court order.
The record uses "road" and "drive" interchangeably; we choose to use "drive."
The easements were necessary because the Drive "dead ends" on the west side of Lot 1, meaning it leads to and stops at Lot 1.
A blue sign indicates a residential drive.
The circuit court proceedings were stayed until the county court proceedings were concluded.
The three appeals, CV-18-65, CV-18-66, and CV-18-67 have been consolidated into CV-18-67. | [
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MIKE MURPHY, Judge
On November 21, 2017, a Cleveland County jury found appellant Phillip Anthony Herren guilty of rape and sentenced him to forty years' incarceration in the Arkansas Department of Correction. On appeal, he argues that the circuit court abused its discretion when, under the rape-shield statute, it excluded some evidence regarding the victim's sexual behavior that occurred shortly before the charged conduct. He further argues that this denied him the due-process right to present a complete defense. We agree that the evidence was improperly excluded and therefore reverse and remand for a new trial.
A summary of the evidence, as it was presented to the jury, follows. On May 5, 2015, several teenage girls, including the victim, BLR, were spending the night at the house of their friend, KB. KB lived with her mother and her stepfather, Herren. Testimony from the trial revealed that BLR arrived at Herren's house around 8:00 p.m., smoked marijuana with Herren and his wife, and then participated in a "shot-drinking contest" with Herren. Over the course of the next hour, BLR then drank about ten or eleven shots of Crown Royal. BLR testified that she had no memory of anything that happened after about 10:00 p.m.
BM, one of the friends there, testified that she witnessed BLR drink about ten or eleven shots of whiskey, that BLR was drunk and falling over the bar stools, and that Herren was holding BLR up and grabbing her breasts. BM saw Herren pick BLR up and carry her into the living room from the kitchen. She testified that BLR was "drunk and knocked out." At this point, BM ran back to KB's bedroom to tell the other girls. One of the other girls, HM, then went to the bathroom and started videoing the encounter from under the door.
The girls then sneaked into the living room, hid behind a sofa, and watched Herren pull BLR's pants down and watched him inserting his fingers into BLR's vagina. At one point the girls came out from behind the couch and were standing by BLR, taking photos and videos while Herren was touching BLR. HM testified that, while she was videoing, BLR was slumped over, drunk, and passed out. The jury saw some of the photos and videos the State was able to recover from the girls' mobile phones.
Herren's and KB's testimony differed slightly from that of BM and HM. KB said that BLR's eyes were open most of the time and that BLR seemed "pretty conscious like she knew it was happening." Herren testified that BLR had a buzz but was "definitely conscious." He said that she knew what she was doing and told him to do it.
BLR testified that, the next morning, she woke up "feeling like death" and did not remember what had happened. The other girls told her what happened and showed her the photos and videos they took. BLR became upset and asked to be taken home. After telling her mother what happened, BLR went to Arkansas Children's Hospital for a rape test and evaluation.
Herren was convicted of rape and timely appeals, and the issues in this appeal revolve around evidence not yet summarized. This evidence was excluded from trial and not considered by the jury. Before trial, Herren had filed an extensive motion and incorporated brief for a rape-shield hearing with offers of proof on twenty-five areas of testimony he wanted to develop at trial. He received unfavorable rulings in almost every area; however, on appeal, he narrows his discussion to BLR's sexual conduct with Herren on the night of the alleged rape.
Specific to this appeal, the circuit court ruled that Herren would not be allowed to introduce evidence that before Herren digitally penetrated BLR, she was asking him for sex, masturbating in front of him, offering him oral sex, attempting to undo his shorts, and touching his penis through his shorts. Specifically, the circuit court ruled that "[t]his is not admissible under A.C.A. Sec. 16-42-101 unless relevancy has been determined. Whether this assertion is true or not, the Court finds it is not relevant and the prohibition of A.C.A. Sec. 16-42-101(b) applies." On appeal, Herren argues that this evidence was improperly excluded.
The crime of rape encompasses sexual intercourse or deviate sexual activity with a person who is incapable of consent because she is physically helpless or mentally incapacitated. Ark. Code Ann. § 5-14-103(a)(2) (Supp. 2017). Deviate sexual activity is "any act of sexual gratification involving ... the penetration, however slight, of the labia majora ... of one person by any body member or foreign instrument manipulated by another person." Ark. Code Ann. § 5-14-101(1)(B). "Mentally incapacitated" means that a person is temporarily incapable of appreciating or controlling her conduct as a result of the influence of a controlled or intoxicating substance that renders her unaware a sexual act is occurring. Ark. Code Ann. § 5-14-101(5)(B). A person is "physically helpless" under the statute if she is unconscious, physically not able to communicate, or otherwise unaware that a sexual act is happening. Ark. Code Ann. § 5-14-101(7).
The rape-shield statute broadly excludes evidence of prior sexual conduct. Such evidence is "not admissible by the defendant ... to prove consent or any other defense, or for any other purpose." Ark. Code Ann. § 16-42-101(b) (1999). The circuit court is vested with a great deal of discretion in determining whether evidence is relevant and will not be reversed in deciding the admissibility of rape-shield evidence unless its ruling constitutes clear error or a manifest abuse of discretion. State v. Cossio , 2017 Ark. 297, at 5, 529 S.W.3d 620, 623.
On appeal, Herren argues that BLR's sexual conduct leading up to the act was improperly barred by the rape-shield statute because the conduct was not "prior sexual conduct" but was instead the res gestae, part and parcel, of the event as a whole. Res gestae comprises
circumstances so nearly related to the main fact under consideration as to illustrate its character and the state of mind, sentiment and disposition of the actor are parts of the res gestae, which embraces not only the actual facts of the transaction and the circumstances surrounding it, but also matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality part of the occurrence.
Cossio , 2017 Ark. 297, at 5, 529 S.W.3d at 623.
Res gestae can include conduct of both the accused and the victim. See, e.g. , Brockwell v. State , 260 Ark. 807, 815, 545 S.W.2d 60, 66 (1976). Specifically, all the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Gaines v. State , 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000).
The State argues that Herren's interpretation of "prior" is too narrow and that BLR's actions leading up to the act of digital penetration have no bearing on whether she was awake and consenting at the time of the act. The State likens this case to Cossio, supra.
Cossio was charged with the rape of a victim who was incapable of consent due to being physically helpless; the evidence showed that the adult victim was passed out due to consumption of alcohol and fatigue when she was raped. Id. at 3, 529 S.W.3d at 622. Cossio sought to introduce evidence of sexual conduct between the victim and Cossio's girlfriend from the night before, arguing that the events leading up to the rape were part of the res gestae of the case. Id. The circuit court ruled that Cossio could not use this evidence to show that the victim consented to the contact but admitted the evidence anyway, as res gestae, so that the jury would understand the nature of the relationship between the parties. Id.
On appeal, the Arkansas Supreme Court reversed and remanded, holding that the circuit court abused its discretion in admitting evidence of the victim's prior sexual conduct under the res gestae exception because Cossio failed to demonstrate how evidence of the victim's sexual conduct on the day before the offense was probative of whether Cossio raped her the next evening while she was physically helpless and incapable of consent. Id. at 7-8, 529 S.W.3d at 624-25.
Herren argues, and we agree, that Cossio is distinguishable. The evidence excluded in Cossio involved sexual activity the victim had with a third party the night before. Here, the excluded evidence is alleged sexual activity between the same parties on the same night as the charged conduct. Herren asserts the activity took place approximately ten minutes before the penetration.
Instead, we agree with Herren that the above evidence is res gestae and that excluding it was clear error. Kemp v. State is instructive. 270 Ark. 835, 606 S.W.2d 573 (1980). In Kemp , the victim was the babysitter for the defendant and his wife. Id. The defendant was charged with rape. Id. Kemp asserted consent as his defense and sought to introduce evidence that on nights he had taken the victim home, they had "necked," she had put her hand on his penis, and he had rubbed her breasts. Id. at 838-39, 606 S.W.2d 5. He also said she had told him of her affairs with two married men. Id. at 839, 606 S.W.2d at 575. The circuit court ruled that he could not introduce this evidence under the rape-shield statute. Id. at 838, 606 S.W.2d at 575. Kemp then brought an interlocutory appeal in which he asserted, in part, that the circuit court's rape-shield ruling was error. Id. at 837, 606 S.W.2d at 574. Our supreme court affirmed the circuit court but made an instructive note "that the rape shield statute only excludes evidence of prior sexual conduct of the victim, and that appellant may testify at trial as to the actions of the prosecuting witness on the night of the alleged rape." Id. at 839, 606 S.W.2d at 575.
The "rape-shield statute is intended to protect victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending , paraded before the jury and the public when such conduct is irrelevant to the defendant's guilt." Butler v. State , 349 Ark. 252, 266, 82 S.W.3d 152, 160 (2002) (emphasis added). Simply put, evidence that BLR was asking Herren for sex, masturbating in front of him, offering him oral sex, attempting to undo his shorts, and touching his penis through his shorts, all within approximately ten minutes of penetration, is conduct related to the charges pending, and therefore relevant and probative to the issue of consent.
Nor can we say the error is harmless. Even when a circuit court errs in admitting evidence, we have held that when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm the conviction. Buford v. State , 368 Ark. 87, 91, 243 S.W.3d 300, 303 (2006). To determine if the error is slight, we look to see if the defendant was prejudiced. Id. Here, at trial, the story painted for the jury was essentially one in which Herren encouraged a sixteen-year-old girl to drink eleven shots of whiskey and then raped her. Introducing the above evidence changes that story rather significantly. Herren argued that BLR was cognizant and consenting at the time of the charged conduct and had he been allowed to introduce evidence of BLR's conduct with him leading up to penetration, it could have bolstered his testimony and his account of the events. The circuit court's ruling precluding Herren from introducing that evidence and questioning witnesses about those events was prejudicial to Herren and therefore not harmless.
Because we reverse and remand for retrial for this reason, we need not address Herren's remaining argument that the circuit court's application of the rape-shield exclusion violated his rights under the Confrontation Clause and denied him due process.
Reversed and remanded.
Abramson and Gladwin, JJ., agree.
At the time, BLR was sixteen, which is over the age of consent in Arkansas. | [
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BART F. VIRDEN, Judge
Appellant Melanie Fischer (Jaskiewicz) appeals from the Saline County Circuit Court's order granting her petition to modify child support. On appeal, Melanie argues that the trial court erred in modifying child support based solely on appellee Michael Fischer's affidavit of financial means (AFM), which resulted in a "meager" increase in child support, and that the trial court instead should have averaged Michael's income over the last three or four years. We find no error and affirm.
I. Procedural History
The parties were married in October 1997 and divorced in May 2011. Melanie was awarded custody of their three children, and Michael was ordered to pay $1,703 biweekly child support. On November 15, 2016, Melanie filed a petition to modify child support, alleging that there had been a material change in circumstances in that Michael's income had increased. The trial court granted Melanie's petition in part. She filed a motion for reconsideration, which was deemed denied.
II. Administrative Order No. 10
In determining an appropriate amount of child support, courts are to refer to the most recent revision of the family-support chart in Arkansas Supreme Court Administrative Order Number 10, which provides a means of calculating child support based on the payor's net income. Ark. Code Ann. § 9-12-312(a)(3)(A) (Repl. 2015). There is a rebuttable presumption that the amount of child support contained in the family-support chart is the correct amount of child support to be awarded. Ark. Code Ann. § 9-12-312(a)(3)(B) ; Ark. Sup. Ct. Admin. Order No. 10(I). "Income" means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions. Ark. Sup. Ct. Admin. Order No. 10(II)(a). The definition of "income" is "intentionally broad and is designed to encompass the widest range of sources consistent with this State's policy to interpret 'income' broadly for the benefit of the child." Id.; Evans v. Tillery , 361 Ark. 63, 70, 204 S.W.3d 547, 552 (2005) (quoting Ford v. Ford , 347 Ark. 485, 495, 65 S.W.3d 432, 439 (2002) ). The affidavit of financial means shall be used in all family-support matters. Ark. Sup. Ct. Admin. Order No. 10(IV).
III. Hearing Testimony
Michael Fischer testified that he is a doctor employed by Practice Plus. He explained that he works as a hospitalist for Baptist Hospital ("Baptist") in North Little Rock. He stated that he is a W-2 employee and is paid biweekly but that he also earns 1099 income from working for hospitals other than Baptist. Michael stated that he sometimes receives bonuses from Baptist depending on his collections for the month but that he had "not really made a bonus from them in a long time." He testified that, even though he had not been ordered to do so, he had paid Melanie a portion of his quarterly bonuses and 1099 income in 2015 and 2016 because "it was the right thing to do." Evidence of those additional payments was submitted, including three checks written to Melanie in 2015 totaling $7,390 and three checks written in 2016 totaling $5,500.
Michael also submitted federal income-tax returns, plus exhibits, for 2014, 2015, and 2016. His 2014 tax return, filed jointly with his current spouse, reflected an adjusted gross annual income of $373,942, including a net profit of $1,673 from his chart-review business. His 2015 tax return, also filed jointly with his spouse, showed an adjusted gross annual income of $430,550, including a net business profit of $43,510 from his 1099 income. Michael's 2016 tax return, filed separately from his spouse, showed an adjusted gross annual income of $288,487, including a net profit of $20,827 from his 1099 income.
Michael stated that his 1099 income had decreased because the non-Baptist hospitals had "a full complement of full-time hospitalists" and did not need him. Michael said that his 2016 income was not as much as before because (1) there was no extra work available, (2) there had been "a decrease in reimbursements on my regular job," (3) given "the current situation with Medicare and all," physicians are not being paid as much as in the past, and (4) "Medicaid has had cuts over the years." He insisted that he would have worked more if he could have but that he could not.
Michael's AFM was introduced into evidence. It reflects gross wages per pay period in the amount of $10,128.74 and $3,841.02 in deductions, leaving him with a net biweekly income of $6,287.72. Under a section entitled "Other Income," Michael wrote that another source was "other jobs" and that the amount was $0 but "variable." He testified that when he filled out the AFM, he had not done any extra work but that he had since worked a couple of nights at Saline Memorial Hospital, which is not owned by Baptist. Michael attached to his AFM three pay stubs from Baptist dated March 9 and 23, 2017, and April 6, 2017, reflecting current total gross wages of $13,128.74, $11,928.74, and $10,128.74, respectively. Michael explained that the totals were different because one of the checks reflected work he had done for a Baptist-owned hospital in Hot Spring County. Michael agreed that his pay varied from month to month.
IV. Trial Court's Order
The trial court rejected Melanie's argument that an average of Michael's income over the last four years should be used to calculate child support. It also rejected Melanie's assertion that Michael's AFM is not a true reflection of his average biweekly income. The trial court determined that there had been a material change in Michael's income sufficient to warrant an upward modification of his child-support obligation.
Relevant here, the family-support chart provides that, when a payor's net biweekly income is $2,000, he or she shall pay $493 for three dependents and $425 for two dependents. Ark. Sup. Ct. Admin. Order No. 10. When income exceeds the chart, the percentage of the payor's biweekly income in excess of $2,000 to be paid as support is twenty-five percent for three dependents and twenty-one percent for two dependents. Ark. Sup. Ct. Admin. Order No. 10(III)(b). A support order may include as its basis a percentage of a bonus to be received in the future. Ark. Sup. Ct. Admin. Order No. 10(II)(b). The percentage owed for two dependents is twenty-one percent of the payor's net bonus. Id. The child support attributable to a bonus amount is in addition to the periodic child-support obligation. Id.
The trial court determined that Michael's net biweekly income was $6,287.72. Referencing the family-support chart, the trial court found that Michael owed $1,565 biweekly support for three dependents until the oldest child turned eighteen on August 24, 2017. The trial court found that Michael will then owe $1,393.42 biweekly support for two dependents ("$493 maximum support for three children based on $2000 bi-weekly income + 21% of $4287.72 ($6287.72-$2000) = $1393.42"). The trial court further ordered Michael to pay twenty-one percent of any net bonuses and 1099 income as they accrue.
V. Standard of Review
We review an appeal from a child-support order de novo on the record, but we will not reverse a finding of fact by the trial court unless it is clearly erroneous. Boyd v. Crocker , 2017 Ark. App. 108, 513 S.W.3d 302. In reviewing a trial court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. As a rule, when the amount of child support is at issue, we will not reverse the trial court absent an abuse of discretion; however, a trial court's conclusion of law is given no deference on appeal. Id.
VI. Discussion
Melanie argues that the trial court erred in basing its modification of child support on what she asserts is Michael's "incorrect" AFM instead of averaging his income over the last three or four years given that Michael's income fluctuated and he earned both W-2 and 1099 income. Melanie argues that the trial court should have followed the Arkansas Supreme Court's "rule" set forth in Taylor v. Taylor , 369 Ark. 31, 250 S.W.3d 232 (2007). In Taylor , it was undisputed that the payor's weekly income fluctuated. The trial court averaged the payor's income over a seven-week period, which was how long he had worked at his current job. In affirming the trial court's child-support order, the supreme court stated that the trial court's calculation of an average over a seven-week period was reasonable and that the award was not an abuse of discretion. Moreover, the Arkansas Supreme Court cited with approval the method used by this court in Delacey v. Delacey , 85 Ark. App. 419, 155 S.W.3d 701 (2004).
In Delacey , the trial court calculated the payor's monthly income using only his November 2002 earnings. The payor, a doctor employed by a clinic, argued that November was his second-highest producing month of 2002 and that, because his pay varied from month to month, the trial court should have used a monthly average of his 2002, or his 2001, income, rather than relying on one particular month. This court agreed and reversed the child-support award. We noted that the payor's net income fluctuated considerably in that it ranged between $19,389 and $30,418 per month in 2001 and between $20,970 and $26,454 per month in 2002. We said that this did not give an accurate picture of the payor's income generally. This court noted that there had been no Arkansas case approving or disapproving a method for calculating income when a payor's income fluctuates from month to month and that it was not addressed by Administrative Order No. 10. Despite the lack of precedent, this court held that the payor's income should have been calculated by averaging his monthly earnings. We stated, "Common sense dictates that an average of appellant's monthly income over a year or two years will present a truer picture of his income than a calculation derived solely by reference to one of his highest earning months." Delacey , 85 Ark. App. at 428, 155 S.W.3d at 706. This court remanded the matter for the trial court to recalculate child support.
Taylor was decided eleven years ago. Although our supreme court has amended Administrative Order No. 10 several times since the Taylor decision, it has not amended the order to require trial courts to use a specific method of calculating support when a payor's income fluctuates and to set parameters on when the calculation must be used. See, e.g. , Grady v. Grady , 295 Ark. 94, 747 S.W.2d 77 (1988) (holding led to our supreme court's inclusion of the "imputed income" section in the Arkansas Child Support Guidelines). Also, although our supreme court in Taylor said that a method of averaging monthly earnings over a period of one or two years "had merit," it affirmed the trial court's averaging a payor's income over only a seven-week period.
It is the ultimate task of the trial court to determine the expendable income of a child-support payor. Delacey , supra. The only evidence of Michael's income over multiple years was his tax returns. There was testimony from which the trial court could have determined that Michael's tax returns, while not unreliable, did not present an accurate picture of his current expendable income due to changes in the healthcare industry. The only portion of Administrative Order No. 10 that directs the trial court to utilize a payor's tax returns to calculate support is the section involving self-employed payors, a finding not made with respect to Michael. In that instance, the trial court must examine the last two years' federal and state income-tax returns and quarterly estimates for the current year. Because the trial court was required to consult Administrative Order No. 10 for guidance, and there is no provision that requires an averaging method of calculating support when a payor's income fluctuates, we cannot say that the trial court erred as a matter of law in not using Michael's tax returns to average his income over a three- or four-year period.
Here, the trial court considered all the evidence, including Michael's income-tax returns, his AFM, and his testimony, and determined Michael's expendable income. Using Michael's most current financial information from his AFM, the trial court referred to and followed the family-support chart and ordered an amount of child support that is presumed reasonable. Under these circumstances, we cannot say that the trial court abused its discretion in setting the amount of child support.
Affirmed.
Harrison and Klappenbach, JJ., agree.
Michael did not file a responsive brief.
The parties appeared to agree below that the amount was reduced to $1,526 in 2014.
In her motion for reconsideration, Melanie sought an average of Michael's income over a three-year period.
Biweekly means a payor is paid once every two weeks or twenty-six times during a calendar year. Ark. Sup. Ct. Admin. Order No. 10(III)(a).
The trial court's order was entered August 30, 2017.
The trial court mistakenly used the figure meant for three children ($493) when it should have been for two children ($425). Michael, however, did not file a cross-appeal, and we will not grant affirmative relief that has not been requested. Hanshaw v. Blair , 2011 Ark. App. 30.
Melanie includes a single sentence in the conclusion section of her argument asserting that Michael's AFM is "incorrect," but she does not explain in what respect it is incorrect-only that it is not an average over at least a two-year period. We will not address an argument that is not supported by any legal authority, and the failure to cite authority or make a convincing argument is sufficient reason for affirmance. Garcia v. Garcia , 2018 Ark. App. 146, 544 S.W.3d 96.
Counsel also cites and discusses an unpublished opinion in violation of Supreme Court Rule 5-2(c), which provides that such opinions shall not be cited, quoted, or referred to in any argument. See also One Bank & Trust, N.A. v. Lenderman , 2017 Ark. App. 42, 512 S.W.3d 651. | [
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RAYMOND R. ABRAMSON, Judge
Tabitha Young appeals the Craighead County Circuit Court order revoking her probation. On appeal, Young argues there was insufficient evidence to support the circuit court's finding that she violated the terms and conditions of her probation. We affirm.
On November 26, 2014, Young pled guilty to financial identity fraud and theft of property. The court sentenced her to 60 months' suspended imposition of sentence for financial identity fraud and 60 months' probation for theft of property. The terms and conditions of her suspended sentence and her probation included that she not commit a criminal offense punishable by imprisonment, report as directed to a supervising officer, and pay restitution and court costs.
On May 23, 2016, the State filed a petition to revoke, and on December 12, 2017, the State amended its petition. In the amended petition, the State alleged that Young had violated the terms and conditions of her probation and her suspended sentence by (1) failing to live a law-abiding life by committing violations of the Arkansas Hot Check Law and by committing theft of property, (2) failing to report to her probation officer and absconding, and (3) failing to pay restitution and court costs. The court held a hearing on the petition.
At the hearing, Keith Ming, a probation officer for Craighead County, testified that Young had failed to report to him for almost a year. The State also introduced a payment ledger showing that Young had made no payments toward restitution or court costs. The State further introduced a group of checks that Young had issued on a closed account without sufficient funds.
At the conclusion of the hearing, the court revoked Young's probation for failing to report, failing to pay restitution and court costs, and engaging in criminal activity. The court sentenced her to 60 months' probation. Young timely appealed the revocation. On appeal, Young argues that there is insufficient evidence to support the revocation because the State failed to prove that her failure to report and her failure to make payments was inexcusable and willful.
In a revocation proceeding, the State must prove its case by a preponderance of the evidence, and on appellate review, we do not reverse the circuit court's decision unless it is clearly against the preponderance of the evidence. Williams v. State , 2015 Ark. App. 245, 459 S.W.3d 814. When a circuit court bases its decision on multiple, independent grounds and an appellant challenges only one of those grounds on appeal, we can affirm without addressing the merits of the argument. Bedford v. State , 2014 Ark. App. 239, 2014 WL 1663033.
Here, the circuit court based its decision to revoke Young's probation on three independent grounds-that she failed to report to her probation officer, she failed to pay restitution and costs, and she engaged in criminal activity. On appeal, Young challenges only the findings that she failed to report and failed to pay. Because Young failed to challenge the circuit court's alternative ground for revocation on appeal, we must affirm the circuit court's revocation.
Affirmed.
Harrison and Brown, JJ., agree.
In her brief, Young acknowledges that the circuit court revoked her probation on three grounds. | [
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An administrative law judge (ALJ) held a hearing on Ferris's claim. The ALJ considered the competing medical opinions from Drs. Arnold and Pearce. The ALJ found the medical opinion of Dr. Arnold, who was Ferris's treating physician, more credible than that of Dr. Pearce. The ALJ also considered testimony from Cheryl Edwards, Ferris's charge nurse when she worked at BRMC, and from Ferris. The ALJ concluded that Ferris and Edwards had "credibly testified" that Ferris had not been having problems with her knee before the February 2015 incident. Finally, the ALJ found that the fact that Ferris had some preexisting problems with her left knee was not problematic because the 2015 injury constituted an aggravation of a preexisting injury. The ALJ concluded as follows:
The evidence at bar establishes that the tripping over the IV cord on February 1, 2015 aggravated Claimant's preexisting left knee condition. The evidence shows that the surgery proposed by Dr. Arnold is causally related to her compensable injury. Consequently, Claimant has proven her entitlement to this treatment at Respondents' expense by a preponderance of the evidence.
[Citation omitted.] BRMC appealed to the full Commission, which in a 2-1 decision adopted and affirmed the ALJ's opinion. BRMC timely appealed the Commission's decision, and it now argues that the Commission's decision is not supported by substantial evidence.
II. Standard of Review
Our court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Pratt v. Rheem Mfg. , 2013 Ark. App. 577, 2013 WL 5592516. Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Id. Normally, we review only the decision of the Commission, not that of the ALJ. Queen v. Nortel Networks, Inc. , 2012 Ark. App. 188, at 3, 2012 WL 639540. When, however, as here, the Commission affirms and adopts the ALJ's opinion, thereby making the findings and conclusions of the ALJ the Commission's findings and conclusions, our court considers both the ALJ's opinion and the Commission's opinion. Mercy Hosp. Fort Smith v. Hendley , 2015 Ark. App. 527, at 1, 2015 WL 5734411.
III. Discussion
On appeal, BRMC argues that substantial evidence does not support the Commission's decision that Ferris proved her entitlement to additional medical treatment in the form of a surgical procedure to her left knee. While it admits that Ferris sustained a compensable injury to her left knee, it asserts that the procedure recommended by Dr. Arnold is not causally related to Ferris's on-the-job injury. BRMC argues that Ferris's need for additional surgery was because of her "years of failed surgeries." Ferris maintains that her need for surgery was a natural and probable result of the February 2015 fall.
Ferris bore the burden of proving by a preponderance of the evidence that the medical treatment recommended by Dr. Arnold was reasonable and necessary. Nucor Yamato Steel Co. v. Kennedy , 2017 Ark. App. 126, at 6, 513 S.W.3d 895, 899 ; Goyne v. Crabtree Contracting Co. , 2009 Ark. App. 200, 301 S.W.3d 16. What constitutes reasonably necessary treatment is a question of fact for the Commission, which has the duty to use its expertise to determine the soundness of the medical evidence and to translate it into findings of fact. Nucor Yamato Steel, supra.
Here, the ALJ found that Ferris proved her entitlement to additional medical treatment. In so doing, the ALJ found Dr. Arnold's medical opinion more credible than Dr. Pearce's. In reaching this credibility determination, the ALJ heard unrefuted testimony that the IME performed by Dr. Pearce lasted ten or fifteen minutes at the most and that Dr. Pearce never physically examined Ferris's knee during the IME. In contrast, Dr. Arnold treated Ferris seven or eight times, and Ferris testified that he "absolutely listens" to her.
It is the Commission's duty, not ours, to make credibility determinations, to weigh the evidence, and to resolve conflicts in the testimony. Nichols v. Micro Plastics, Inc. , 2015 Ark. App. 134, 2015 WL 826691. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission; if so, the appellate court must affirm. Moore v. Ark. State Highway & Transp. Dep't , 2013 Ark. App. 752, 2013 WL 6686146.
Admittedly, Ferris had an extensive history of problems with her left knee before her compensable injury. The ALJ's opinion acknowledged that Ferris had preexisting problems with her left knee. The ALJ nonetheless concluded that the February 2015 incident aggravated those problems and that the need for surgery was causally related to the February 2015 incident. Arkansas law is clear that an employer takes the employee as it finds him or her, and employment circumstances that aggravate preexisting conditions are compensable. Heritage Baptist Temple v. Robison , 82 Ark. App. 460, 464, 120 S.W.3d 150, 152 (2003). An aggravation is a new injury resulting from an independent incident, and the aggravation of a preexisting, noncompensable condition by a compensable injury is, itself, compensable. Firestone Bldg. Prods. v. Hopson , 2013 Ark. App. 618, at 2, 430 S.W.3d 162, 164 ; Williams v. L & W Janitorial, Inc. , 85 Ark. App. 1, 9, 145 S.W.3d 383, 388 (2004). A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Emergency Ambulance Serv., Inc. v. Burnett , 2015 Ark. App. 288, at 13, 462 S.W.3d 369, 376 ; St. Vincent Infirmary Med. Ctr. v. Brown , 53 Ark. App. 30, 917 S.W.2d 550 (1996).
Viewing the evidence in the light most favorable to the Commission's decision, we disagree with BRMC's assertion and conclude that the decision is supported by substantial evidence. The ALJ credited Ferris's and Edwards's testimony that before the 2015 fall, Ferris experienced no problems with her knee. Specifically, Ferris testified about the five procedures she received before February 2015. Although she stated that the most recent one had been in 2008, she had not had any serious trouble with her leg since then. Edwards corroborated this testimony. She testified that Ferris was able to do her job without any problems and never complained about her knee or had to use a cane. After the injury, however, Ferris had to wear a metal brace and use crutches, could not drive, and was unable to do anything but sit-down jobs such as answering phones or doing secretarial work. Based on this credible testimony, the ALJ found that the need for surgery was causally related to Ferris's compensable injury. These credibility determinations were entirely the ALJ's to make. See Univ. of Ark. Pub. Employee Claims Div. v. Tocci , 2015 Ark. App. 505, at 3, 471 S.W.3d 218, 220 (noting that we defer to the Commission's findings on what testimony it deems to be credible, the resolution of conflicting evidence is a question of fact for the Commission, and the Commission has authority to accept or reject medical opinion and to determine its medical soundness and probative force).
Here, the ALJ and the Commission weighed and evaluated competing medical evidence, assessed the credibility of the witnesses, and found that BRMC, the employer, is required to provide Ferris, an injured employee, the medical services suggested by Dr. Arnold as reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Supp. 2017). Our standard of review requires us to defer to the Commission's decision.
Affirmed.
Vaught and Murphy, JJ., agree.
Ferris's medical records indicated that her last surgery before the February 2015 injury was actually in 2005, not 2008. | [
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MIKE MURPHY, Judge
Appellant Lee Arthur Johnson was allegedly injured during a physical-therapy session at Fenter Physical Therapy. He sued, and the appellees moved for summary judgment for failure to offer expert testimony to support the elements of a medical-malpractice claim. The circuit court granted the motion and Johnson brings this timely appeal. We affirm.
I. Background
Johnson had surgery on his left knee on September 11, 2012. He was subsequently referred to physical therapy. On November 5, Johnson began attending physical therapy at Fenter Physical Therapy in West Memphis, Arkansas. On November 9, Johnson alleged he was attending physical therapy when, while his left knee was being manipulated by one of the therapists, Sarah Schafer, he experienced excruciating pain and heard a loud "pop." He sought medical treatment and a second knee surgery took place later in November. Prior to the surgery, doctors believed Johnson may have re-torn his patellar tendon, but once they were inside, it was discovered that there was a small tear in the retinaculum, the tissue next to the patellar tendon, and that it was bleeding. This tissue had been repaired in the previous surgery, but it was retorn. The doctors let the blood out of the knee and stitched up the tear. Johnson had been on blood thinners at the time of the second trauma, and one expert, Dr. Jay Lipke, explained that people who are on blood thinners can bruise easily and bleed badly. He explained that it was the bleeding that caused the need for the second surgery.
Johnson filed suit on November 5, 2014, against Schafer and Fenter Physical Therapy. In his complaint, Johnson alleged that Schafer failed "to operate at the standard of care required of a physical therapist and that as a result, he suffered a re-injury of his tendon, which required a second surgery to repair." After discovery, Schafer and Fenter Physical Therapy moved for summary judgment, alleging that Johnson lacked the expert proof necessary to support his claim for medical negligence. The circuit court granted the motion for summary judgment, finding that Johnson failed to establish by expert testimony that the appellees breached the applicable standard of care in a manner that caused injury to Johnson. Johnson now timely appeals, arguing that summary judgment was inappropriate.
II. Standard of Review
Summary judgment is appropriate if no genuine issues of material fact exist for trial. Neal v. Sparks Reg'l Med. Ctr. , 2012 Ark. 328, at 7, 422 S.W.3d 116, 120. Once the moving party has demonstrated an entitlement to summary judgment pursuant to Arkansas Rule of Civil Procedure 56, Arkansas law shifts the burden to the non-moving party, who must show that a genuine issue of material fact remains. Flentje v. First Nat'l. Bank of Wynne , 340 Ark. 563, 569, 11 S.W.3d 531, 536 (2000). At this point, the responding party "must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact." Id.
In medical-malpractice actions, unless the asserted negligence could be comprehended by a jury as a matter of common knowledge, a plaintiff has the additional burden of proving three propositions by expert testimony: the applicable standard of care; the medical provider's failure to act in accordance with that standard; and that the failure was the proximate cause of the plaintiff's injuries. Ark. Code Ann. § 16-114-206(a). When the defendant demonstrates the plaintiff's failure to produce the requisite expert testimony, the defendant has demonstrated that no genuine issues of material fact exist and is therefore entitled to summary judgment as a matter of law. Hamilton v. Allen , 100 Ark. App. 240, 249, 267 S.W.3d 627, 634 (2007).
III. Discussion
The circuit court ruled that Johnson did not establish any one of the above-listed elements by expert testimony. On appeal, Johnson makes the following two arguments: (1) that expert testimony was established, and (2) that even if it was not established, expert testimony is unnecessary because the negligence could be comprehended by a jury as a matter of common knowledge.
A. Expert Testimony
To support his argument that he established that the appellees breached the applicable standard of care in a manner that caused injury to him, Johnson directs this court's attention to evidence from three witnesses: Dr. Duane "Scott" Davis, a professor of physical therapy and the program director for the physical therapy school at Marshall University in West Virginia; physical therapist Mark Wagner; and Dr. Jay Lipke, an orthopedic surgeon with over 40 years of experience.
1. Dr. Davis
On appeal, Johnson first claims that the affidavit from Dr. Davis establishes the standard of care. In pertinent part, the affidavit provided:
Based on my review I am of the opinion, and I state this with a reasonable degree of physical therapy certainty, that the Plaintiff, Lee Arthur Johnson, was injured in the therapy. Assuming the pop occurred during the stretching, it was not documented in the report of the physical therapist in this case. It is my opinion that the failure of the physical therapy staff, including the assistant, who did the work at the time of the complaint of the pop by Lee Arthur Johnson, did not document the incident and did not refer this to the therapist in what should be described as a change of status. The physical therapy assistant did not advise the therapist as to the incident, and should have, and the failure to document and to advise the therapist is a deviation from the standard of care under these circumstances.
If the physical therapy assistant reported this to the therapist then it could be referred to a [physician] for treatment.
The problem with Johnson's reliance on Dr. Davis's testimony is twofold. First, at best, it provides that the breach of the standard of care was the failure to report any incident, and Johnson has not established he has suffered any injury due to any failure to report. Second, in Fryar v. Touchstone Physical Therapy, Inc. , our supreme court held that "vague and conclusory statements" that a certain treatment "did not conform to the standard of care" are not sufficient to establish proximate cause capable of withstanding the scrutiny of summary judgment. 365 Ark. 295, 301-02, 229 S.W.3d 7, 12-13 (2006) (holding that summary judgment was appropriate because a medical expert's affidavit did not connect the physical therapist's alleged negligence with the plaintiff's injuries).
2. Mark Wagner
Next, Johnson points us to the following exchange between his counsel, Mr. Hodges, and licensed physical therapist, Mark Wagner, during depositions. Johnson asserts that this testimony establishes the standard of care and that Schafer breached it while treating Johnson.
MR. HODGES : Okay. If it turns out that the jury believes that there was some type of tear or something that occurred with Sarah Schafer on November 9 that injured Mr. Johnson to the point he had to have a second surgery, would that be below the standard of care for the conduct of this physical therapist? I'm not asking you to assume that.
MR. WAGNER : Right. It would be, yes.
MR. HODGES : It would be?
MR. WAGNER : Yes.
MR. HODGES : So if, in fact, this is true, that we contend that he experienced this problem on November 9 -- from a physical standpoint -- based on a physical therapy session with Sarah Schafer, and that he had a 25-percent patellar tear, he had some torn stitches, all that would be below the standard of care for the physical therapist. Correct?
MR. WAGNER : Yes.
...
MR. HODGES : Is that a "yes"?
MR. WAGNER : It would be below, yes.
MR. HODGES : And so because you don't want that to happen when you get physical therapy. Correct?
MR. WAGNER : That is correct. There are times where something might happen, whether that be an injury or irritation of tissue, whatever it may be, but that is not what our goal is to be.
MR. HODGES : And it was not within the standard of care?
...
MR. WAGNER : It's not within the standard of care.
This testimony, like Dr. Davis's, is again too vague to accomplish what Johnson contends it does. The standard of care is not stated with specificity and it does not establish that Johnson's injuries were proximately caused by Schafer. See, e.g. , Fryar, supra , at 301, 229 S.W.3d at 12 ("Dr. Reilly's affidavit in no way connects [the physical therapist's] alleged negligence with Ms. Fryar's injuries.").
3. Dr. Lipke
Johnson next argues that the deposed testimony of Dr. Jay Lipke, an orthopedic surgeon, establishes the standard of care and causation required by statute. However, at the outset of Dr. Lipke's deposition, the parties agreed that the standard of care applicable to physical therapists was outside the scope of Dr. Lipke's opinions and that Dr. Lipke's opinions were based on his knowledge as an orthopedic surgeon.
During the deposition, Dr. Lipke testified about both of Johnson's surgeries and why the second one was necessary. He explained that the second surgery was necessary because Johnson's knee was, essentially, filled with blood from a small tear in it due to Johnson's use of blood-thinning medication. Dr. Lipke stated that "anybody on Coumadin is always at risk for bleeding," and he agreed with the statement that a physical therapist would know that a person on Coumadin could potentially experience the problem Johnson did. Dr. Lipke even agreed that the stretching at physical therapy probably caused the bleeding. Even still, Dr. Lipke never testified about what the standard of care is for physical therapists treating knee-surgery patients on blood thinners or that Schafer's actions constituted a breach of that care. In fact, Dr. Lipke even went on to say that bleeding is just a risk patients like Johnson have to take to "get the knee moving."
After review, we agree with the appellees that Johnson did not establish the requisite elements by expert testimony.
B. Are Experts Even Necessary?
In the alternative, Johnson argues that even if the expert testimony is not sufficient to satisfy the subpoints of Arkansas Code Annotated section 16-114-206(a), it does not matter, because the asserted negligence lies within the jury's comprehension as a matter of common knowledge, and expert testimony is only necessary when the jury must have the assistance of experts to decide the issue of negligence. Robson v. Tinnin , 322 Ark. 605, 911 S.W.2d 246 (1995).
The vast majority of our cases considering this issue hold that expert medical testimony is necessary because the alleged medical negligence is not within the comprehension of a jury of laymen. See, e.g. , Mitchell v. Lincoln , 366 Ark. 592, 599, 237 S.W.3d 455, 460 (2006) (collecting cases). Accordingly, a plaintiff may proceed on his claim for medical negligence without the required expert testimony, but only if he can establish that (1) the asserted negligence lies within the jury's comprehension as a matter of common knowledge, (2) the applicable standard of care is a matter of common knowledge, and (3) the jury does not need assistance of experts to decide the issue of negligence. Lee v. Martindale , 103 Ark. App. 36, 40, 286 S.W.3d 169, 172 (2008). The classic examples of instances in which these elements are satisfied include when a surgeon might fail to sterilize the instruments or forget to remove a sponge before closing an incision. See, e.g. , Dodd v. Sparks Reg'l Med. Ctr. , 90 Ark. App. 191, 197, 204 S.W.3d 579, 583 (2005).
Here, at a minimum, Johnson's case would require the explanation of knee anatomy, two knee surgeries, physical therapy rehabilitation practices and procedures, and the pharmacology of anticoagulants. In Fryar , our supreme court held that expert testimony was necessary because the patient had preexisting "neck and spine injuries." 365 Ark. at 302, 229 S.W.3d at 12-13. The present facts are, frankly, far more complex than those in Fryar and do not justify a departure from the general rule that a plaintiff must prove a medical-malpractice claim through expert testimony.
Affirmed.
Harrison and Hixson, JJ., agree. | [
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Although he reported and/or demonstrated numerous functional limitations during his evaluation, he also exhibited numerous inconsistencies which invalidated his entire evaluation. Therefore, his current functional status remains unknown at this time due to his failure to produce sufficient objective data to substantiate his reported and/or demonstrated limitations.
Although Dr. Mangels subsequently assigned the claimant permanent restrictions, he indicated in his May 15, 2017 report:
Basically the functional capacity evaluation is unreliable and we can't really use it. I can't use it to give him permanent restrictions.
Thus, while Dr. Mangels assigned claimant permanent restrictions, his true functional status remains unknown due to the inconsistencies present during the functional capacities evaluation. This is a factor to be considered in determining the extent of wage loss. City of Fayetteville v. Guess , 10 Ark. App. 313, 663 S.W.2d 946 (1984).
After consideration of all relevant wage loss factors in this case, I find that claimant has suffered a loss in wage earning capacity in an amount equal to 65% to the body as a whole. Based on the evidence presented, claimant has obviously suffered a significant loss in wage earning capacity. He has few transferrable skills and based on testing his academic skills range from the grade equivalent of 3.5 to 7.0. On the other hand, claimant's inconsistent effort on the functional capacities evaluation invalidated his evaluation. Respondent has controverted claimant's entitlement to permanent partial disability benefits in an amount equal to 65% to the body as a whole.
Appellants timely appealed the ALJ's opinion to the Commission. The Commission affirmed and adopted the ALJ's decision in an opinion dated February 13, 2018. Under Arkansas law, the Commission is permitted to adopt the ALJ's opinion. In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Therefore, for purposes of our review, we consider both the ALJ's opinion and the Commission's majority opinion.
It is the Commission's duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence. We review the Commission's decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. The issue is not whether the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission: if so, the appellate court must affirm.
As their first point on appeal, appellants contend that the finding that appellee is entitled to a 30 percent (30%) impairment rating is not supported by substantial evidence. Appellants maintain that appellee was entitled to only the 28 percent (28%) rating given by Dr. Randolph, whom appellants claim clearly documented his calculations. Dr. Mangels was appellee's treating physician and he performed the last surgery on appellee, which alone can be the basis for affirming the impairment rating. The Commission was confronted with two different medical opinions as to appellee's impairment rating. It is within the Commission's province to reconcile conflicting evidence, including the medical evidence. The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. This is a classic "dueling-doctors" case in which this court is bound by the Commission's findings. Thus, we cannot say that there is not substantial evidence to support the Commission's decision. Therefore, we affirm.
Appellants also contend that the Commission's finding of 65 percent (65%) wage-loss disability is not supported by substantial evidence. Pursuant to Arkansas Code Annotated section 11-9-522(b)(1), 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. The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. 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.
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.
Here, the Commission considered appellee's age, his limited education, and his lack of transferable skills based on his work history over the past twenty years; it considered appellee's motivation; it also considered appellee's unreliable functional-capacity evaluation, as well as other factors. It subsequently concluded that appellee was entitled to 65 percent (65%) wage-loss disability. As part of its argument, appellants argue that the Commission considered a non-work-related injury in its calculations as well as a 4 percent (4%) impairment rating to appellee's shoulder that already existed. However, there is no evidence that the Commission considered anything other than what it was asked to consider. The Commission's findings are based on the appropriate wage-loss factors, and its opinion adequately discusses the rationale that underlies that finding. In sum, appellants are requesting that we reweigh the evidence and credibility findings made by the Commission; however, as we stated above, it is the Commission's duty to make credibility determinations and to weigh the evidence. We hold that reasonable minds could reach the result found by the Commission. Accordingly, we affirm.
Affirmed.
Gruber, C.J., and Gladwin, J., agree.
SSI, Inc. v. Cates , 2009 Ark. App. 763, 350 S.W.3d 421.
Id.
Id.
Martin Charcoal, Inc. v. Britt , 102 Ark. App. 252, 284 S.W.3d 91 (2008).
Parker v. Atl. Research Corp. , 87 Ark. App. 145, 189 S.W.3d 449 (2004).
Id.
Prock v. Bull Shoals Boat Landing , 2014 Ark. 93, 431 S.W.3d 858.
Guy v. Breeko , 310 Ark. 187, 832 S.W.2d 816 (1992) (per curiam).
Boykin v. Crockett Adjustment Ins. , 2013 Ark. App. 157.
See Ark. Human Dev. Ctr. v. Courtney , 99 Ark. App. 87, 257 S.W.3d 554 (2007).
Id.
(Repl. 2012).
Redd v. Blytheville Sch. Dist. No. 5 , 2014 Ark. App. 575, 446 S.W.3d 643.
Lee v. Alcoa Extrusion, Inc. , 89 Ark. App. 228, 201 S.W.3d 449 (2005).
Redd, supra .
Id.
Although he had a twelfth-grade education, his academic skills were between a 3.5 to 7.0 grade equivalent. | [
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